Nelson v Health Care Complaints Commission [2023] NSWCATOD 5

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nelson v Health Care Complaints Commission [2023] NSWCATOD 5 Hearing dates: 8 November 2022 Date of orders: 24 January 2023 Decision date: 24 January 2023 Jurisdiction: Occupational Division Before: O Shub, Senior Member W Thomas, Senior Member L Schalk, Senior Member C Gardiner, General Member Decision: (1) The Tribunal grants a reinstatement order in favour of the Applicant subject to application to AHPRA and the Nursing and Midwifery Council subject to the conditions set out below and any additional or amended conditions imposed by AHPRA or the Nursing and Midwifery Council (the Council) when considering the application for reregistration by the Applicant: (a) the Applicant must provide to the Council, a copy of these conditions signed by the Applicant and by, and on behalf of, each employer indicating their awareness of the conditions and authorisation within one week of commencing work with such employer; (b) the Applicant must engage in a mentoring relationship for a period of at least 12 months, from the date that he recommences work as a registered nurse, with a registered nurse (Division 1) who does not have conditions on his/her practice. The registered nurse mentor must be approved by the Council; (c)the Applicant must: (i) provide the Council with the name, contact details and resume of the registered nurse who has agreed to act as a mentor; and as specified in the conditions; (ii) authorise the mentor: (A) to notify the Council of any breach of the conditions including repeated failure to attend mentoring meetings; and (B) to exchange information with the Council in relation to the Applicant's compliance with the conditions; (iii) provide to the Council a copy of the conditions signed by the registrant and by the mentor indicating awareness of the conditions and authorisation; (iv) submit a mentoring plan developed in consultation with the mentor within 8 weeks of the mentor being approved by the Council. The plan must detail: (A) Specific objectives/outcomes of the mentoring relationship. The objectives/outcomes must relate to, but are not limited to, the following areas: professional boundaries and responsibilities, patient-nurse issues arising during his work as a nurse and the impact of personal challenges (for example, health or relationships) on his nursing practice and decision‑making; (B) Evidence which will demonstrate objectives/outcomes have been met; (C) Schedule of meetings with the mentor comprising a minimum of one meeting per month; (v) The Applicant must provide to the Council a mentoring report which is co‑signed by the approved mentor addressing: (A) Progress towards or achievement of specified objectives/outcomes; (B) Any challenges/issues affecting progress and a plan to deal with these; and (C) Any changes to practice resulting from mentoring/associated learning; (vi) the mentoring report must be provided to the Council every 4 months during the currency of the mentoring relationship; (d) for a period of 3 years from the date the Tribunal makes a reinstatement order, the Applicant is to attend by a registered psychologist or registered psychiatrist of his choice for treatment, at a frequency to be determined by the treating practitioner, but for the first year it must be no less than once a month; (e) the practitioner is to: (i) authorise the treating practitioner to inform the Council of any failure to attend for treatment, termination of treatment, or if there is a significant change in health status (including a significant temporary change); and (ii) provide the Council with the professional details of the treating practitioner; (f) for a period of 3 years from the date the Tribunal makes a reinstatement order, to attend for treatment by a registered General Practitioner of the Applicant's choice. The frequency of the treatment is to be determined by the treating practitioner but for the first year shall be no less than once a month. The practitioner: (i) is to authorise the treating practitioner to inform the Council of any of the following: failure to attend for treatment, or termination of the treatment, or a significant change in health status (including a significant temporary change); and (ii) must provide the Council with the professional details of the treating practitioner; (g) for a period of two years, the Applicant shall submit to regular psychiatric review for assessment and monitoring of mental health should occur at a frequency of every 6 months and a report provided to the Council; (h) the Applicant shall also attend a drug and alcohol counsellor prior to making an application for registration and provide a letter of advice from the counsellor as to recommended management strategies which may be appropriate to him to manage his relationship with alcohol and such letter to be provided to the National Board for its consideration as to a further condition on his registration; (i) the appropriate review body for the purpose of a review of these conditions under sections 163‑163C of the National Law is the Council when the Applicant has a principal place of practice in New South Wales. In the event that the Applicant's principal place of practice is anywhere in Australia other than in New South Wales the appropriate review body shall in those circumstances be the relevant National Board. (2) There is a non‑publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of Patient A and Person A listed in the schedule to the Complaint. (3) The costs associated with the application shall be determined by the Tribunal on the papers in due course. Catchwords: HEALTH — Nurse — reinstatement application — previously surrendered registration — earlier Tribunal hearing — failure to maintain boundaries — relationship with mental health patient — steps to rehabilitation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Asar v Medical Council of New South Wales Bahramy v Medical Council go NSW [2014] NSWCATOD 116 Briginshaw v Briginshaw (1936) 60 CLR 336 Chen v Medical Council of New South Wales [2021] NSWCATOD 33 Coe v Health Care Complaints Commission [2013] NSWNMT 12 Dawson v Law Society of NSW [1989] NSWCA 58 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 Haber v Health Care Complaints Commission [2018] NSWCATOD v 16 Health Care Complaints Commission v Nelson [2019] NSWCATOD 22 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Jan v Health Care Complaints Commission [2021] NSWSC 350 Ng v Health Care Complaints Commission [2018] NSWCATOD 105 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Re Jason Martin [2010] NSWMT 13 Re Mansoor Haider Zaidi [2006] NSWMT 6 Reimers v Medical Council of NSW [2015] NSWCATOD 38 Scully v Health Care Complaints Commission [2013] NSWNMT 7 Shah v Health Care Complaints Commission (2014) NSWCATOD 94 Sundaraja v Health Care Complaints Commission [2020] NSWCATOD 144 Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 Texts Cited: Nil Category: Principal judgment Parties: Faron James Nelson (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: K Young (Applicant) A Bhasin (Respondent)