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). The earlier Tribunal's decision 1. On 19 December 2019 the Tribunal published a decision (Health Care Complaints Commission v Moses (No 2) [2019] NSWCATOD 190. In its reasons the Tribunal explained why it found Mr Moses guilty of professional misconduct. The Tribunal in the process of its evaluative reasoning determined that Mr Moses' registration should not be cancelled or suspended, but that his registration should be subject to conditions. The Tribunal ordered that: (1) The respondent is reprimanded. (2) The following conditions are imposed on the registration of the respondent; (a) The respondent is to attend for ongoing treatment by a psychologist or psychiatrist for a period of at least 12 months. The frequency of that treatment is to be determined by the practitioner. (b) The respondent is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any failure to attend for treatment, the termination of treatment or any significant change in his health status (including a significant temporary change in that status). (c) The respondent is subject to mentoring in accordance with the Nursing and Midwifery Council of NSW Mentor Guidelines for a period of 12 months (3) … 1. As is apparent, the Tribunal did not make an order that the Council should be the appropriate review body. Evidence in support of the application 1. By letter dated 20 January 2022 the New South Wales Nurses and Midwives' Association (the Association) wrote to the Council seeking a review of the conditions on Mr Moses registration "on the basis that he has now fulfilled the requirements of the conditions. He seeks to have the current conditions removed". 2. The letter further requested to the Council to approach this Tribunal for the Council to be appointed as the appropriate review body to review the conditions. Attached to the letter was a brief report from Dr Peter Corrigan, Consultant Psychiatrist. I will return to that report shortly. 3. On 3 February 2022 the Tribunal received email correspondence from the HCCC explaining that the HCCC agreed the Council should be the appropriate review body and supported the application being dealt with "on the papers". 4. In his letter dated 6 December 2021 addressed to the Health Professionals Councils Authority Monitoring Program, Dr Corrigan explained that Mr Moses is currently being treated by him as an outpatient, that his last appointment was 3 August 2021 and on that occasion he found Mr Moses to be "mentally well and stable". Consideration 1. The letter from the Association states that Mr Moses has fulfilled the requirements of the conditions imposed on 19 December 2019. However, there is no evidence before me which demonstrates that assertion. That said, I accept it is likely that Mr Moses has complied with the conditions imposed which will have been monitored by the Council. That fact itself makes it practical for the Council to be the review body as it no doubt is in possession of all relevant information about the mentoring required by the conditions and attendances for treatment by a psychologist or psychiatrist also required by the conditions. 2. A further factor in favour of appointing the Council as the appropriate review body is the expertise of the Council in monitoring conditions and varying or removing where appropriate by notification to the Australian Health Practitioner Regulation Agency (AHPRA). 3. I am also conscious that if the Council is the appropriate review body, a review of the conditions can be carried out expeditiously and at less cost than is likely to be incurred if Mr Moses has to have the conditions reviewed by the Tribunal. 4. For the reasons stated above, I am satisfied it is appropriate to order that the Council is the appropriate review body. ORDERS 1. Pursuant to s 163(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. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2022