Health Care Complaints Commission v McCallum [2023] NSWCATOD 170

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v McCallum [2023] NSWCATOD 170 Hearing dates: 25 September 2023 Date of orders: 22 November 2023 Decision date: 22 November 2023 Jurisdiction: Occupational Division Before: S Dunn, Senior Member L Hunt, Senior Member (Professional) J Haines, Senior Member (Professional) M Ficarra, General Member Decision: (1) Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (National Law), the Respondent is reprimanded. (2) Pursuant to s 149A(1)(b) and (c) and s 149A(3), the following conditions are imposed on the Respondent's registration when she is registered: (a) The Respondent is to attend for ongoing counselling by a psychologist for a period of at least 12 months. The frequency of that counselling is to be determined by the psychologist; (b) The Respondent is subject to mentoring in accordance with the Nursing and Midwifery Council of NSW (Council) Mentor Guidelines for a period of 12 months. (3) The Council is the appropriate review body to review these conditions. (4) Under clause 13 of Schedule 5D of the National Law, the Respondent is to pay the HCCC's costs as agreed or assessed. Catchwords: HEALTH – professional registration and discipline – nurse – accessing health records - practitioner convicted of criminal offences – whether circumstances of the offences render the practitioner unfit in the public interest to practise - unsatisfactory professional conduct – improper or unethical conduct – professional misconduct – was the conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration – whether the Tribunal has power to reprimand where the practitioner is no longer registered - appropriate protective orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Health Practitioner Regulation National Law (NSW), ss 139B, 139E, s 149A and 149C Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Gayed v Walton [1997] NSWCA 121 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD 153 Heath Care Complaints Commission v Jouda [2023] NSWCATOD 83 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Lowe [2023] NSWCATOD 121 Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 Health Care Complaints Commission v Neale [2023] NSWCATOD 137 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Reyes [2023] NSWCATOD 57 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Emma McCallum (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) B Haider, Nursing and Midwives' Association (Respondent) File Number(s): 2023/00201808 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act) the disclosure of the names of the persons listed in the Annexure to the Complaint (Persons A - H) is prohibited.