Health Care Complaints Commission v Gaberman [2023] NSWCATOD 77

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gaberman [2023] NSWCATOD 77 Hearing dates: 13 – 15 February 2023 Date of orders: 14 June 2023 Decision date: 14 June 2023 Jurisdiction: Occupational Division Before: A Britton, Deputy President M Rowles, Professional Member J Haines, Professional Member C Gardiner, General Member Decision: (1) Pursuant to s 149A(1) of the Health Practitioner Regulation National Law (NSW), Mr Gaberman is reprimanded. (2) Mr Gaberman's registration is subject to the condition that before returning to work as a nurse Mr Gaberman must: (a) complete an educational course approved by the Nursing and Midwifery Council of New South Wales that covers the obligations imposed on members of the nursing profession by cl 4.1 of the Code of Conduct for Nurses (Nursing and Midwifery Board of Australia, March 2018) (the Course); and (b) provide documentary evidence to the Nursing and Midwifery Council of New South Wales of satisfactory completion of the Course. (3) If the parties do not reach agreement on the issue of costs within 14 days of the date of this decision, the Commission must file and serve brief submissions in support of its application for costs. (4) Within 28 days of receiving the Commission's submissions on costs, Mr Gaberman must file and serve brief submissions in reply. (5) Within 30 days of the date of this decision, the parties must notify the Tribunal and each other whether they consent to the issue of costs being determined "on the paper" as permitted by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: HEALTH PRACTITONER —professional misconduct — whether conduct is of a "sufficiently serious nature" to justify an order for suspension or cancellation STATUTORY CONSTRUCTION — whether conduct can be unsatisfactory professional conduct within both s 139B(1)(a) and s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 64 Health Practitioner Regulation National Law (NSW), ss 3B, 139B, 139E, 149A, 149C(1)(b), 150, Sch 5D, cl 13, Sch 5D Mental Health Act 2007 (NSW) Cases Cited: Attia v Health Care Complaints Commission [2017] NSWSC 1066 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 Health Care Complaints Commission v Day [2022] NSWCATOD 134 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 297 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Code of Conduct for Nurses (Nursing and Midwifery Board of Australia, March 2018) Search Patient and Staff Safety Procedure [name of LHD omitted]-PRO-0561-19 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Lane Michael Gaberman (Respondent) Representation: Counsel: S McCarthy (Applicant)