Schwartz v Health Care Complaints Commission

[2026] NSWCA 162

NSW Court of Appeal

Built by Barristers,
For Australian Law.

1. PROFESSIONS AND TRADES — medical practitioner — breach of conditions of registration — findings of professional misconduct and unsatisfactory professional conduct — condition “not to administer any conscious sedation (by any route)” — whether intramuscular administration of fentanyl contravened condition — whether subsequent guidance relevant to construction of condition — whether necessary for HCCC to establish depression of consciousness
1. APPEALS — appeal on question of law — requirement to identify question of law — criticism of practice of drafting grounds of appeal with the words “The Tribunal erred in law in” — obligations of practitioners

Technical words in a condition on a medical practitioner's registration bear their meaning as understood at the time the condition was imposed; subsequent reclassifications in professional guidelines (here, the 2023 ANZCA distinction between 'minimal' and 'moderate' sedation) do not alter the scope of a condition framed under earlier guidance.
When construing a condition on registration that is ambiguous or susceptible of more than one meaning, regard may be had to the reasons given for imposing the condition, applying the same principle as for construing court orders by reference to reasons for judgment (Athens v Randwick City Council; Ross v Lane Cove Council).
The drafting technique of prefacing each ground of appeal with 'The Tribunal erred in law in/by' does not convert a factual challenge into a question of law; practitioners must identify in precise terms the question(s) of law sought to be raised, and repeated failure to do so will attract criticism and potentially adverse orders.