Health Care Complaints Commission v Torroba [2023] NSWCATOD 109

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Torroba [2023] NSWCATOD 109 Hearing dates: 1 – 2 June 2023 Date of orders: 26 July 2023 Decision date: 26 July 2023 Jurisdiction: Occupational Division Before: H J Dixon SC, Senior Member J Haines, Senior Member J Harrington, Senior Member J Kearney, General Member Decision: (1) The Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW). (2) The Respondent is guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW). (3) Pursuant to s 149C of the Health Practitioner Regulation National Law (NSW), the Respondent's registration as a health practitioner is suspended for a period of nine months. (4) Pursuant to s 149A of the Health Practitioner Regulation National Law (NSW), there is imposed in relation to the Respondent's registration as a nurse the following conditions. The practitioner must: 1a. not practise as a registered nurse until a mentor has been approved by the Council; b. undertake mentoring by the approved mentor in accordance with the Council's Compliance Policy – Mentor (as varied from time to time) and the Mentor Approval Position Statement, and as subsequently determined by the appropriate review body; c. meet with the mentor for a minimum of one hour on a monthly basis for a minimum period of three months, and thereafter at a frequency to be determined by the Council; d. provide a mentoring plan, which is developed with the mentor and outlines the specific objectives and outcomes of the mentoring arrangement, for approval by the Council within fourteen (14) days of receiving written approval of the mentor; e. at each monthly meeting with the mentor, discuss at least the following topics: i. professional behaviour and boundaries, including Code of Conduct and use of social media; and ii. ethics and professional practice; f. authorise the approved mentor to provide written reports to the Council at quarterly intervals, or as specified by the Council; g. authorise the Council to provide the approved mentor with a copy of the Tribunal's decision in this matter. 2. Not practise until a supervisor has been approved by the Nursing and Midwifery Council of NSW. 3. Not undertake agency nursing. 4. Not be the nurse in charge of any shift, ward or unit. 5. Forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of the date of imposition of these conditions, that the practitioner has provided a copy of full conditions to his nursing employer/s. 6. Within seven (7) days of a change in the nature or place of practice, forward evidence to the Nursing and Midwifery Council of NSW that he has provided a copy of full conditions to the nursing employer/s. 7. Authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. 8. Only be employed as a nurse in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions. (5) The Respondent shall pay the Applicant's costs under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) as agreed or assessed. Catchwords: OCCUPATIONS – nurses – misconduct and discipline –whether practitioner guilty of unsatisfactory professional conduct and professional misconduct – cancellation of registration or suspension with conditions Legislation Cited: Health Care Complaints Act 1993 (NSW), s 90B(1) Health Practitioner Regulation National Law (NSW), ss 139B(1)(l), 139E, 144(d), 149A, 149C(1)(b), Sch 5D cl 13 Cases Cited: Amaca Pty Ltd (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 Browne v Dunn (1893) 6 R. 67 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263; [2022] NSWCA 60 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Emil Martin Torroba (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) New South Wales Nurses and Midwifes' Association (Respondent) File Number(s): 2022/00362671 Publication restriction: It is noted that the Tribunal on 23 December 2022 issued a non-publication order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) in respect of the persons identified as Colleagues and Person D in the Schedule to the Complaint.