Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Crook v Health Care Complaints Commission [2014] NSWCATOD 50 Hearing dates: 21 March 2014 Decision date: 07 May 2014 Jurisdiction: Occupational Division Before: Boland AM ADCJ Decision: The parties are requested to make a copy of the reasons for decision available to the Australian Health Practitioners Regulation Agency (AHPRA) and the Nursing and Midwifery Council of NSW (the Council). AHPRA and the Council are requested to file written submission or to relist before the Tribunal within 30 days of the date of these orders. In the event no submissions and/ or application for relisting is received the Council is nominated as the appropriate review body to review conditions placed on the practitioner's registration by a Professional Standards Committee. No orders as to costs Catchwords: APPLICATION to determine appropriate review body. Whether "spent" condition requires a review hearing. Where inconsistency in language in the statute. HELD opportunity afforded to AHPRA and Council to make submissions or relist, failing which Council is nominated as appropriate review body. Legislation Cited: Health Practitioner Regulation National Law Cases Cited: HCCC v Percevel [2014] NSWCATOD39 HCCC v Arkita McAuley [2013]NSWNMT 13 HCCC v Rachel Coe [20111] NSWNMT 11 Category: Principal judgment Parties: Janelle Crook (Applicant) Representation: New South Wales Nurses and Midwives' Association (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 14 20085 reasons for decision The application before the Tribunal 1On 23 January 2014 the New South Wales Nurses and Midwives Association ("the Association") filed an application on behalf of Ms Janelle Crook ("the practitioner") in the New South Wales Civil and Administrative Tribunal ('the Tribunal") for an order under s 163 (1) (a1) of the Health Practitioner Regulation National Law ("the National Law"). 2The practitioner named the Health Care Complaints Commission as respondent to the application. 3The matter came before the Tribunal at a Directions Hearing held on 21 March 2014. On that occasion the Principal Member acceded to the request of the legal representatives for the named parties that the matter should proceed "on the papers" without the need for a formal hearing of the application. The decision in respect of the application was reserved. 4In her application, under the heading "Orders sought", the practitioner sets out the following: The order sought by the registered nurse RN Crook is to have the conditions placed on her registration by order of the Professional Standards Committee removed. The decision of the Professional Standards Committee failed to specify the appropriate review body to facilitate the removal of the conditions. RN Crook seeks an order that the appropriate review body to review the conditions on her registration is the Nursing and Midwifery Council of New South Wales. 5The Health Care Complaints Commission, as contradictor, did not oppose the Nursing and Midwifery Council ("the Council") being appointed as the appropriate review body. The Council did not seek any costs associated with the application. Issues raised in this application 6This application highlights some of the complexities which regularly arise when conditions are imposed on a practitioner's registration under the National Law. It focuses on when, and how, conditions relevant to a practitioner, which are recorded on the register kept by the Australian Health Practitioner Regulation Agency ("AHPRA"), may be removed or varied. 7In this particular case, while there is no doubt that the conditions imposed by a Professional Standards Committee ("PSC") have expired by reason of effluxion of time, they nevertheless remain on the practitioner's registration as maintained by AHPRA on behalf of the Nursing and Midwifery Board of Australia ("the Board"). The centralised recording of conditions is an integral part of the national registration scheme implemented under the National Law. 8Although the HCCC are named in the application, and Ms B Butt of the Commission appeared at the directions hearing, it is relevant to consider which body is the appropriate respondent to this application. 9The issues which I identify as requiring determination on this application are: (1)Who is the proper respondent to the application? (2)Is it necessary for there to be a review by an appropriate review body to remove expired conditions from a practitioner's registration? (3)Does the AHPRA have power under the National Law to remove conditions imposed on a practitioner's registration by a PSC which have expired without a review hearing? (4)Can a PSC, at the time of imposing conditions on a practitioner's registration, also order that conditions imposed for a specified time period be removed when that time has expired thus obviating the need for the matter to come before an appropriate review body? (5)Is legislative amendment to s 163 and/ or s 163A required? (6)Should an order be made under s 163 (1) (a1) nominating the Council as the appropriate review body be made? Background 10The relevant background to this matter is straightforward. 11On 28 June 2010 the practitioner was one of two registered nurses on duty in the Emergency Department of the Queanbeyan District Hospital. 12A women, who was in the late stages of pregnancy, came to the Emergency Department at just before 2 am complaining of back pain. She was spoken to briefly by the practitioner who advised her there was no doctor on duty until 8 am and suggested to the woman ("the patient") she take Panadol. The exchange between the patient and the practitioner was of about 20 seconds duration. 13The patient thereafter left the emergency department drove to Canberra Hospital where she was admitted. 14The HCCC brought a complaint against the practitioner which was heard and determined by a PSC under s 171 of the National Law. The National Law provides that a committee established by a council may exercise functions conferred or imposed on it under the National Law. A PSC must hear an inquiry into a complaint referred to it. However, if during a hearing a committee forms the view the complaint, if proven, is of such a serious nature that it would lead to the suspension or cancellation of a practitioner's registration, it must cease hearing the complaint and refer the matter to the Tribunal. 15The PSC found the practitioner had failed to undertake a thorough and complete nursing assessment of the patient, including a failure to take general observations in contravention of a policy "Critical Operations Standing Operating Procedure - When Medical Officer is Not available" ("the policy") [original emphasis]. The PSC also found the practitioner had failed to triage the patient in accordance with the policy, inappropriately advised the patient to take Panadol, and failed to create a record of the patient's attendance at the hospital. 16Prior to the hearing of the complaint, on 12 April 2011, the Council imposed conditions on the practitioner's registration under s 150 (1) (b) of the National Law. The Council thereafter referred the matter to the HCCC for investigation ultimately leading to the complaint which was referred to the PSC under s 150D (4) of the National Law. 17At the date of the hearing before the PSC the practitioner was no longer working at the hospital. She was employed in a local general practice comprised of four doctors. 18In its reasons the PSC noted that the practitioner had complied with the conditions imposed under s 150. 19The PSC made the following orders: (1)The practitioner is hereby reprimanded (2)For the period of 12 months from the date of these orders, 30 October 2012 - where the practitioner works and practices as a registered nurse or midwife in a hospital the following conditions apply to that work and practice in a hospital: 2.1 The practitioner must not be in charge or be the sole registered health practitioner on any shift, ward or unit. The other registered health care practitioner must be either a Registered Nurse or a Registered Medical Practitioner. 2.2 The practitioner must not work for a nursing agency as a registered nurse or registered midwife in a hospital. 2.3 The practitioner must advise all current and future nursing hospital employers of any conditions of registration and within one week provide the Nursing and Midwifery Council of NSW with a copy of the conditions signed by the employer or an authorised officer of the employer as acknowledgement of that notification. 2.4 The practitioner must authorise each nursing hospital employer to notify the Nursing and Midwifery Council of NSW of any breach of these conditions, and within one week of commencing work and practice in a hospital must provide written acknowledgement of this signed by the employer. Documents relied on in the application 20The material relied on in this application is the General Application Form for commencement of proceedings in the Tribunal, and the decision of the PSC. No material was filed by on or behalf of the HCCC. Neither party provided submissions. 21However, the Tribunal file contained all the material before the PSC, as well as a transcript of the proceedings before it. The relevant law 22This application was filed in the Tribunal after the commencement of the Civil and Administrative Act 2013 ("NCAT Act"). The proceedings were not part-heard or unhead proceedings as defined in s 6 of the NCAT Act. As the earlier proceedings under the National Law were complete, I treated the application as one instituted in Tribunal after the commencement of its operation. Accordingly the National Law to be considered is the law in force after 1 January 2014. 23The application is brought under s 163 (1) (a1) of the National Law Section 163 relevantly provides: 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. 24It is also necessary to consider the questions posed earlier in these reasons to refer to s 163A of the National Law. That section is in the following terms: 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of-- (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made-- (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section--"decision-making entity" means the following- (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division or under Subdivision 5 of Division 3; (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court. "relevant order", in relation to a person, means any of the following orders made by a decision-making entity-- (a) an order that the person's registration as a registered health practitioner or student is suspended; or (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or (c) an order that conditions be imposed on the person's registration in a health profession. 25The PSC was entitled to exercise any power conferred on it under Subdivision 3 of Division 3 of Part 8 of the National Law. Specifically the PSC was empowered under s 146B as follows: 146B General powers to caution, reprimand, counsel etc [NSW] (1) A Committee may do one or more of the following in relation to a relevant health practitioner the subject of a complaint referred to it-- (a) caution or reprimand the practitioner; (b) direct that the conditions, relating to the practitioner's practising of the practitioner's profession, it considers appropriate be imposed on the practitioner's registration; [my emphasis] (c) order that the practitioner seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order that the practitioner complete an educational course specified by the Committee; (e) order that the practitioner report on the practitioner's practice at the times, in the way and to the persons specified by the Committee; (f) order that the practitioner seek and take advice, in relation to the management of the practitioner's practice, from the persons specified by the Committee. (2) If the relevant health practitioner is not registered, a direction may still be given under this section but has effect only so as to require the conditions concerned to be imposed when the health practitioner is registered. (3) If a Committee acting under this section makes an order or directs that any condition be imposed on a health practitioner's registration, the Committee may order that a contravention of the order or condition will result in the health practitioner's registration in the health profession being cancelled. (4) The order or condition concerned is then a "critical compliance order or condition". 26Thus it is apparent that the PSC can direct that orders be imposed on a practitioner's registration, or it may order a practitioner to undergo medical treatment or require a practitioner to do various things. The Council may, if it reasonably believes a practitioner has contravened any condition imposed under the direction made by a PSC, refer the asserted contravention to the Tribunal. However, sub-division 3 does not contain any provision which enables the particular PSC, or another differently constituted PSC, to review conditions it has directed be placed on a practitioner's registration by way of variation or discharge. The difference between a complaint and an order is discussed by the Tribunal in HCCC v Perceval [2014]NCATOD39. 27The direction to impose a condition and lack of a provision in sub-division 3 to review a direction to impose conditions may be contrasted by the language employed by the draftsperson in s 150 (1) (b), the review power in s 150A, and the power to remove or alter conditions under s 150C. These provisions are as follows: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest-- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or ..... 150A Review of certain decisions [NSW] (1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to-- (a) suspend the practitioner's or student's registration; or (b) impose conditions on the practitioner's or student's registration or alter conditions imposed on the practitioner's or student's registration. (2) On receiving an application for review, a Council-- (a) may refuse to reconsider its decision if, in the Council's opinion, the application is frivolous or vexatious; or (b) must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers is relevant. (3) Following its reconsideration of a decision, a Council may-- (a) affirm or vary the decision; or (b) set it aside and take any action the Council has the power to take under section 150. (4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision. 150C Power to remove or alter conditions or end suspension [NSW] (1) A Council may, at any time-- (a) end a period of suspension imposed by the Council under this Subdivision; or (b) alter or remove conditions imposed under this Subdivision. 28The effect of 163A (as in force prior to 1 January 2014) was discussed by me in Arkita McAuley v Nursing and Midwifery Council of New South Wales [2013] NSWNMT 13. The amendments made to the section on the coming into operation of the NCAT Act do not affect the matters discussed in these reasons. At paragraph 26 - 31 I noted: It is useful at this point to make some general observations about the review process in respect of Nurses and Midwives:- (a)First, it is clear that the Council has power under the National Law when it imposes conditions under s150 to alter or remove the conditions imposed (s150C). (b)Second, the only decisions of a Council which are reviewable under s163 are those made under Sub-division 5 of Division 3 (which division has no application to the Medical Profession or the Nursing and Midwifery Profession) and under Division 8 of Part 8. That is, where the order sought to be reviewed is an order which provides the review body shall be the Council (see s163(1)(a). (c)Third, if a Committee, a Performance Review Panel, a Tribunal or the Supreme Court imposes conditions and the conditions are imposed by order of the Committee, Panel, Tribunal or Supreme Court such conditions may be reviewed by the Tribunal (s163A(1)(b)). (d)Fourth, it is common practice for Tribunals dealing with complaints against practitioners under the National Law to provide in protective orders made at the conclusion of proceedings that any review of those orders which impose conditions should be reviewed by a Council (see Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 (21 June 2013)). Such a provision has legislative support in s163(1)(a). There is some ambiguity when the National Law, on the one hand, provides a power to review an order which order may impose a condition, and an express provision of the National Law which empowers a Council or Tribunal to impose a condition but does not specifically provide a mechanism for the review of a condition or conditions so imposed. Thus, it is not clear whether the drafter intended to distinguish between an order and a condition. Giving a purposeful interpretation to the statute as provided in Schedule 7, and in particular Clause 7 of that Schedule, for the purpose of this application, I have not distinguished between an order requiring compliance with a condition and a condition imposed by a Council, a Performance Review Panel, or a Tribunal. To take a strict interpretation of the legislation would lead to the absurdity that a condition imposed by an order is reviewable, but a condition imposed a Performance Review Panel is incapable of review. In this case the conditions were imposed, not directly by the Council, but as specifically authorised under s 156C(2)(a) by a Performance Review Panel. As I have earlier noted such a panel is a "decision making entity" as defined in s163A(4). Again, giving a purposeful interpretation to the National Law, it appears to me that the broad general power afforded to the Council under s157(2) may provide the power to the Council to require removal conditions such as Conditions 10 to 14 of the relevant conditions recorded on the practitioner's registration maintained by AHPRA in association with the Nursing and Midwifery Board of Australia. The contrary position however is supported by the reference in s163A(4) to a Performance Review Panel as a decision making body whose decisions made under Division 3 Subdivision 4 of Part 7 of the National Law may be reviewed under s163 (see s163A (4) (b)). The consequence of this provision is, that unless a Tribunal or a Council when making an order imposing conditions specifies the appropriate review body as provided in s163(1)(a), then an application to the Chairperson of the Tribunal is necessary to determine that issue otherwise, by default, the matter must come before the Tribunal (see s163(1)(c)). Given the terms of s163A(1)(a1) and (b), I discern although the Council, Performance Review Panel or the Tribunal has mandated the appropriate review body in its original order that is not the end of the matter. This is because, although an order may nominate the body to conduct the review, it does not preclude a practitioner applying under s163 (1) (a1) and or s163A (1) (b) if circumstances at the time of the proposed review support a different review body to that initially nominated. In saying this I accept an applicant for review by a different review body to that nominated by a Council or Tribunal in determining a complaint is likely to face a significant challenge to demonstrate why there should be a change of position from that deemed appropriate by the Tribunal or entity ordering the conditions on the practitioner's registration. I take this opportunity to note that need for an application under s163A(1) (a1) may generally be avoided by the decision making entity specifying in the order imposing conditions the appropriate review body. Further, in my view, applications under s163A (1) (a1) are capable of being dealt with "on the papers" provided procedural fairness is afforded to all actual and potentially relevant parties, and the Chairperson of the Tribunal is provided with sufficient relevant background material, including any relevant decision which led to the imposing of conditions, and written submission in support of, or opposing, the application. Such a procedure will be both cost and time effective for the applicant, the Council, the HCCC (where appropriate) and the Tribunal. 29As discussed in HCCC v Perceval, there is a clear distinction in National Law between: (1) the imposing a condition on a practitioner's registration, or direction that a condition attach to a practitioner's registration, thus governing the way he or she may practise nursing, and (2)an order such as an order that a practitioner undergo a course of education, or attend on a psychiatrist. The latter does not directly impact on the practitioner's ability to engage in the practise of nursing. The "blurring" between conditions and orders however often occurs because: (a)conditions must appear on the practitioner's registration, but orders may also be recorded by the AHPRA on a practitioner's registration; (b)imprecision in drafting in reasons at the conclusion of a PSC, a Performance Review Panel, an Impaired Registrants Panel or a Council or Tribunal inquiry; (c)variations in language employed in the National Law (i)to direct conditions be imposed; (ii)to impose conditions; (iii)to order conditions be imposed. (e.g 146B (1) (b) power to direct conditions be placed on registration, and s 146E (1) (c) (d) (e) and (f) to make orders; s148E (c) direct conditions be placed on registration and s 146E (1) (d) (e) and (f) to make orders; s 149A (1) (b) power to impose conditions be placed on registration and s 149A (c) (d) (e) and (f) to make orders; s 150 (1) (b) by order impose a condition). Who is the appropriate respondent to the application 30I consider applications, such as the present one, raise a threshold issue, namely, who is the appropriate respondent or contradictor. In some instances it will be clear that the relevant parties are the practitioner and the HCCC. Thus, if a practitioner is seeking to have orders made at the conclusion of an inquiry before a Tribunal reviewed by a Council it would appear the HCCC should be a party to the application. But, as in this case, (and as discussed in Rachel Coe v Health Care Complaint Commission [2013] NSWMT 11 ), I perceive questions of procedural fairness and practicality may arise and it may be appropriate for the Council to be joined as a party have the opportunity to make submissions about the appropriate review body, particularly if the application seeks the review body is the Council. 31In this case the HCCC was represented before me, but did not oppose or support the application. To ensure procedural fairness, I propose to permit the Council be granted leave to re-list the matter before me should it be thought by the Council appropriate to do so. 32The conditions imposed in this matter, while framed as an order rather than a direction (it would appear to APHRA acting on behalf of the Board) are clear. They set out a commencement date (30 October 2012) and are limited for a period of 12 months. Accordingly, the condition ceased to have any effect on 30 October 2013. But the conditions remain on the register, a publicly accessible document. 33In my view it may be implied that a condition, which is directed to be imposed for a finite period of time, when spent, should cease to appear on the register, and that AHPRA should remove such a condition as a matter of course. This would appear to be consistent with s 25 (e) and (f) of the National Law which requires AHPRA "to establish and administer an efficient procedure for receiving and dealing with applications for registration as a health practitioner and other matters relating to the registration of registered health practitioners", and "in conjunction with the National Boards, to keep up-to-date and publicly accessible national registers of registered health practitioners for each profession". It would certainly be cost effective if a protocol was established between AHPRA and the National Board obviating the necessity for review by a Council or Tribunal to "lift" the spent condition. It would also ensure the register is up to date and accurate. 34I also note that if a matter is to be reviewed s 163C requires the appropriate review body to "determine the appropriateness, at the time of the review, of the order concerned". Further, s 163C (2) makes it clear that the review "is not to review the decision to make the order, or any findings made in connection with the making of that decision". In my view, and without the benefit of submissions on the topic, in light of these provisions it is strongly arguable that it Is a nonsense to review the order concerned because it has no force or effect having been spent. 35I note that in a recent publication of the Health Professional Councils Authority "Legal Practice Note No 1, 2014" the authors state: In NSW conditions imposed on a health practitioner's registration following a conduct process (Tribunal, Professional Standards Committee, or a Council inquiry) or a Performance Review Panel hearing can only be lifted following a formal review process by the appropriate review body. 36Without the benefit of any argument or submissions on this topic, I accept that, notwithstanding the inconvenience and expense caused to a practitioner, the Council and perhaps the Tribunal, it may necessary for a "spent" order imposing a condition to be "reviewed" at an inquiry under s 163C. Because this situation occurs frequently, I propose before making orders determining this application, to request the Council to provide submissions to me on this topic. 37However, given the importance to the practitioner I propose to determine the other matters raised by the application, but to delay the coming into effect of my orders until the Council and/ or AHPRA has an opportunity, if either determines to do so, to be heard on this matter. Can a PSC at the time of the original hearing craft orders to remove a condition from the register 38It may be that the problem of "spent" conditions can be overcome by careful drafting at the time the direction about the condition is made 39A PSC may draft an order to provide that it is to commence on a particular date, expire on a particular date, and on the expiry date AHPRA is requested to remove the condition from the Register obviating the need for a review hearing. Is legislative amendment to s 163 A required 40This topic is explored by the Tribunal in HCCC v Perceval and I incorporate into these reasons the discussion in paragraphs [115]-[126] and rely on those paragraphs. Is the Council the appropriate review body 41In HCCC v Arkita McAuley and HCCC v Rachel Coe I discussed the factors in favour, and against, the Tribunal being the appropriate review body rather than the Council. The matters in favour of maintaining a matter before the Tribunal included the fact the orders sought to be reviewed were imposed by a Tribunal, the seriousness of the complaint and findings of the Tribunal, the ability of the Tribunal to inquire into and test evidence including requiring documents to be produced pursuant to summons. Balanced against those matters were costs considerations and the timeliness of a hearing before the Council. I add to those factors the experience and expertise of the Council in reviewing conditions the currency of which may continue over a number of years. 42In this matter I find the following to be relevant factors to be taken into account in the exercise of my discretion: (1)The original complaint was heard and determined by the PSC not the Tribunal; (2)The conditions imposed on the practitioner's registration have expired. The reasoning of the PSC does not suggest the need for ongoing conditions; (3)The nature of the order sought (removal of a lapsed condition from the register) does not warrant the cost and expense of a hearing before a full Tribunal. 43Thus, subject to any submissions being received by any party to the effect that a review hearing is unnecessary because AHPRA should in consultation with the Board be able to remove the condition from the register, I would be prepared to make orders nominating the Council as the appropriate review body. Costs 44The HCCC did not seek any order for costs. In these circumstances I do not propose, at least at this juncture, to make any order for costs. ORDERS (1)The practitioner's legal representatives (the New South Wales Nurses and Midwives Association) and the Health Care Complaints Commission are requested to provide as soon as practicable a copy of these reasons to the Australian Health Practitioner Regulation Agency ("AHPRA" ) and/ the Nursing and Midwifery Council of New South Wales ("the Council"). (2)In the event that AHPRA and/ or the Council wish to do so they may file any submissions relevant to the question of the appropriate review body to determine this application and/or may notify the Registrar, Occupational Division, New South Wales, Civil and Administrative Tribunal to list the matter before the List Manager at the earliest available date. (3)In the event that no submissions or request to list this matter before the List Manager are received within 30 days of the date of this order the appropriate review body for the application shall be the Council. ********** 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: 07 May 2014