Crook v Health Care Complaints Commission (No 2) [2014] NSWCATOD 91

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Crook v Health Care Complaints Commission (No 2) [2014] NSWCATOD 91 Hearing dates: By written submissions dated 20 June 2014 Decision date: 14 August 2014 Jurisdiction: Occupational Division Before: Boland AM ADCJ Decision: The Nursing and Midwifery Council of NSW is the appropriate review body to review conditions imposed on the practitioner's registration. No order as to costs Catchwords: ADMINISTRATIVE LAW - Application to determine appropriate review body Legislation Cited: Health Practitioner Regulation National Law Category: Principal judgment Parties: Janelle Crook (Applicant) Health Care Complaints Commission (Respondent) Representation: New South Wales Nurses and Midwives' Association (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 1420085

reasons for decision

Introduction 1Ms Janelle Crook ("the practitioner") is a registered nurse. A complaint about the practitioner was referred by the Health Care Complaints Commission and heard under s 171 of the Health Practitioner Regulation National Law by a Professional Standards Committee. The Committee, at the conclusion of its hearing in September 2012, imposed conditions on the practitioner's registration. The Committee did not nominate the body responsible to review the conditions at any time during the pendency of the conditions, or on their expiration. 2The conditions imposed by the Committee applied for a period of 12 months. They have now expired, but remain on the practitioner's registration and are accessible on the publicly available records maintained by the Australian Health Practitioner Regulation Agency ("AHPRA") on behalf of the Nurses and Midwives Board of Australia ("the Board"). The practitioner wishes to have the conditions removed from her registration. 3The practitioner's professional association (the New South Wales Nurses and Midwives' Association) brought an application on her behalf under s 163 (1) (a1) of the National Law. That provision empowers the List Manager to determine an appropriate review body to review an application such as the present one. The List Manager may determine a Council (in this case the Nursing and Midwifery Council of NSW) or the Tribunal shall be the appropriate review body. 4On 7 May 2014 I published reasons in which I explained why I determined the appropriate review body should be the Council (Crook v Health Care Complaints Commission [2014] NSWCATOD 50) ("the substantive reasons"). However, because the Council and AHPRA, were not parties to the proceedings, I made a self-executing order permitting AHPRA and the Council to file written submissions either supporting or disputing the foreshadowed proposed order within 30 days. By consent the time-table for filing submissions was extended. 5Joint submissions were received from AHPRA and the Nursing and Midwifery Council of NSW ("the Council") on 20 June 2014. The submissions canvassed issues identified by me in my substantive reasons. I acknowledge the assistance I have derived from these comprehensive and helpful submissions. The submissions make it clear they are not provided on behalf of the Board. The submissions also state that neither AHPRA nor the Council seek to re-list the matter before me. 6As it is inappropriate for a tribunal to give an advisory opinion, and reasons should be limited to issues to be determined by the Tribunal, not all matters raised in the submissions are addressed in these reasons.