It’s Process as punishment.

To move forward the medical council needs to acknowledge that it acted without power and if it will not do this, the judicial review will need to proceed.

How I ended up representing myself in the Supreme Court:

Stand up for your rights,

The lawyers have failed us.

(Save my crack team of amazing freedom loving legal friends)

I’m an Australian Born doctor, I got my medical degree at Sydney University and did my anaesthetic training at the Royal Prince Alfred Hospital.

I practiced in Anaesthesia and Critical Care medicine for over 32 years.

On the 3rd of September last year the Medical Council of NSW suspended my registration based on 2, then 4 anonymous complaints made to them about my Facebook posts.

Here is my heresy :

These are the 10 posts sent to me by the council that they used to justify the use of the Section 150 immediate action powers for public protection under the Health Practitioners Regulation National Law (NSW):

Facebook posts the medical board NSW used to support my suspension

There was no further particularity given as to what, in the posts, showed that I merited the urgent immediate action powers.

Once the panel had reached the belief that my conduct posed a serious health risk to the public, this triggers the immediate action power pursuant to S150.

I knew I wasn’t going to change the outcome. I went to the S150 hearing to get the message of early treatment on the public record and to say, you have been warned. There are signals, signals of harm.

Here is what I said to them:

My testimony to the medical council.

https://pauloosterhuis.substack.com/p/my-testimony-to-the-medical-council

The council has obligations and duties under the same Health Practitioner Regulation National Law (NSW) that it derives it’s power from.

That is why I summonsed the Medical Board, to get my licence back, which is, to assert a private right as a practitioner and answer the question:

Do I have the right to practise free from the unlawful interference of a regulatory body?

This needs to be answered or this abuse of power will remain unaddressed.

On the 10th of May the Medical Council of NSW lifted my suspension, but the council has thus far failed to acknowledge it’s lack of power to suspend me in the first place.

Also, what has been done before may be repeated.

My summons of the Medical Council of NSW was for judicial review in the Supreme Court of NSW and the Question of law to be answered by the court is:

“Did the Medical Council of NSW suspend my registration to practise medicine pursuant to S150 of the Health Practitioner Regulation National Law (NSW) absent authority to do so by reason of s145D(1) of the Act and therefore committed a jurisdictional error?”

A decision without jurisdiction has no force in law.

I have not argued on the merits of anything I posted, or said to the council.

Health Practitioner Regulation National Law (NSW) - Section 145D

145D Serious complaints must be referred to the Tribunal [NSW]

(1) Both the Council for a health profession and the commission are under a duty to refer a complaint to the Tribunal if, at any time, either form the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner’s or students registration.

In the recent case of Dr Pridgeon v Medical Council of NSW, the ruling in the Supreme Court of Appeal is significant, paragraphs 52 and 53 are relevant:

52. By reason of the limitation in s 145D(1), the Medical Council could not have suspended Dr Pridgeon’s registration even if a complaint had been made. If the Medical Council had formed the opinion that the complaint warranted suspension, it would have had to refer it to the Tribunal...

53. This is the setting in which s 150 is to be found. It is contained in a Division headed “Complaints” and in the context of provisions that contemplate that if a complaint is made, it will be the Tribunal and not the Medical Council that would have the power to suspend. Section 150 is contained in Subdivision 7. The heading to that Subdivision is “Powers of a council for protection of public”. emphasis added

So this ruling of the full bench of the Supreme Court of Appeal supports the claims made in my summons for judicial review.

So far, the professional boards and the medical council have ignored the judgement in Pridgeon v Medical Council of NSW.

All health professionals suspended under S150 in NSW should already have their licences back.

The finding of professional misconduct is beyond the powers of the council.

Can the Medical Board panel make the a finding of of professional misconduct?

If not, they must refer to an entity that can ... (the tribunal in it’s original and NOT appellant jurisdiction)

A serious risk to the public? Can the council make that finding? No
It is what happens after the immediate action powers that causes the harm.

This failure on behalf of the council, has created a situation where it is the process and procedures that cause harm.

It’s Process as punishment.

At the S150 hearing I provided evidence to the panel to which I was told:

“ The panel is not in a position to actually evaluate the validity of the scientific evidence in this area.”

Which raises the question of the panels credentials to evaluate the public risk, the public safety or the public interest.

There was never a public safety issue, there was never a public interest issue (that relates to the public safety and the practise of medicine for which I am registered).

There was never any urgency, any emergency, or any valid basis to the powers.

The council claimed my lone voice in the vast internet represented a threat to public safety and that a suspension was in the public interest. Seriously?

To move forward the medical council needs to acknowledge that it acted without power and if it will not do this, the judicial review will need to proceed.

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