Moses v Health Care Complaints Commission (No 3) [2022] NSWCATOD 18

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Moses v Health Care Complaints Commission (No 3) [2022] NSWCATOD 18 Hearing dates: On the papers Date of orders: 10 February 2022 Decision date: 10 February 2022 Jurisdiction: Occupational Division Before: The Hon Jennifer Boland AM, Deputy President Decision: Pursuant to s 163A(1)(a1) of the Health Practitioner Regulation National Law (NSW) the Nursing and Midwifery Council of New South Wales is the appropriate review body to review the conditions imposed by the Tribunal on 19 December 2019 on the registration of Andrew Michael Moses. Catchwords: HEALTH – Professional registration and discipline - Registration Legislation Cited: Health Practitioner Regulation National Law (NSW) Category: Procedural rulings Parties: Andrew Michael Moses (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2022/0031772; 2018/00269912 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. These reasons are in respect of an application by Mr Andrew Michael Moses, a registered nurse, to have conditions on his registration reviewed by the Nursing and Midwifery Council (the Council) as the appropriate review body rather than the Tribunal. 2. The Health Care Complaints Commission (HCCC) supports the making of an order that the Council is the appropriate review body. 3. The New South Wales Nurses and Midwives Association, who act for Mr Moses, and the HCCC agree that the application should be dealt with on the papers by me as List Manager.

The statutory regime 1. Section 163 of the Health Practitioner Regulation National Law (NSW) (the National Law) is found in Division 8 of Part 8 of that law. It deals with "the appropriate review body" to conduct a review of various orders made in disciplinary proceedings including orders imposing conditions on a practitioner's registration. 2. Section 163 provides as follows: 163 Appropriate review body [NSW] (1) For the purposes of this Division, the appropriate review body is— (a) if the order being reviewed provides that it may be reviewed by a Council, the Council; or (a1) if the Tribunal List Manager decides, on application by the person the subject of the review or the Commission, that a Council is the appropriate review body, the Council; or (b) if the Tribunal List Manager decides, on application by the person the subject of the review, that a National Board is the appropriate review body, the National Board; or (c) otherwise, the Tribunal. (2) An application for review by a person must be lodged with the Executive Officer of the Council for the health profession in which the person is or was registered. (3) The Executive Officer must refer the application to the appropriate review body. 1. Generally, following the determination of an inquiry under the National Law when conditions are imposed on a practitioner's registration, the Tribunal will specify in its orders that the relevant Council for the profession is the appropriate review body. However, as s 163 makes clear, if no such order is made, the default position is that the matter must come back to the Tribunal unless an order is made under s 163(1)(a1).