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. The issues identified in the substantive reasons 7The issues to be determined in the practitioner's application were set out in [9] of my substantive reasons as follows: Who is the proper respondent to the application? Is it necessary for there to be a review by an appropriate review body to remove expired conditions from a practitioner's registration? 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? 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? Is legislative amendment to s 163 and/ or s 163A required? Should an order be made under s 163 (1) (a1) nominating the Council as the appropriate review body be made? 8The submissions address four of the six issues identified in [9] of my substantive reasons. The four nominated issues are: (1)Is the Council the appropriate review body? (2)If the Council is the appropriate review body, it is necessary for there to be a review by the Council to remove expired or "spent" conditions for the practitioner's registration? (3)Can a Professional Standards Committee ("PSC") at the time of imposing on a practitioner's registration also order that conditions imposed for a specified time be removed when that time has expired? (4)Is legislative amendment to s 163 and/or s 163A of the National Law (NSW) required? 9I propose insofar as the questions posed in the submissions are relevant to my determination to discuss the questions identified in the submissions. Is the Council the appropriate review body? 10The submissions state at [6] that the Council is the appropriate review body. The reasoning in the submissions goes substantially to the factors considered by me at [41] and [42] of my substantive reasons. The submissions however note that: The PSC Order 2 above imposed conditions on the practice of the applicant, albeit for a specified period, which were predicated upon her return to a hospital environment. If there had been no time limitation in this order, the Council would be best placed to conduct the review given the expertise of the Council in assessing clinical matters and the Council's ability to monitor the progress of the applicant and her compliance with the condition. The time limitation of 12 months does not change the substantive nature of the condition as a restriction on practice, which applies if the applicant is practising in a hospital context 11I discern the thrust of the above paragraph is that the Council and AHPRA's view is that, regardless of whether a time period is specified in a condition, it is the nature of the condition itself which requires review. It is not necessary for me to comment at this point on this submission as it does not affect my determination, which is supported by the submissions, that the Council is the appropriate review body. If the Council is the appropriate review body, is it necessary for there to be a review by the Council to remove expired or "spent" conditions from the practitioner's registration? 12In my substantive reasons I canvassed, without deciding, whether or not an implication could be drawn that a "spent" or expired condition could or should be removed from the register administratively obviating the necessity for a review hearing. At [36] I noted that, "without the benefit of any argument or submissions on this topic, that ....it may be necessary for a 'spent' order imposing a condition to be reviewed at an inquiry under s 163C" and requested submissions on this issue. Earlier at [34] of my substantive reasons I noted: I 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. 13The submissions record that s 163B of the National Law mandates that an appropriate review body must conduct an inquiry into the review application made under s 163A before it can exercise powers under s 163B (1) (d) removing conditions on a person's registration. I accept that submission as soundly based. 14The submissions further note, and I accept as an accurate reflection of the objects and principles underpinning the National Law, that the purpose of imposing conditions or restrictions on a health practitioner's registration "is to ensure the public is protected by the practitioner having to practise within a framework of conditions designed to promote safe and competent practise". The submissions go on to refer to the fact that practice conditions are, by reason of their publication on the National Register. available to the public including employers "so that conditions are transparent". 15The questions which have arisen in this application and the submissions provided raise significant matters of public policy. Essentially, the issues elucidated raise the balancing of two interests. First, the need to protect the health and safety of the public by making appropriate and enforceable conditions which are publicly recorded. Second, the issue of the mechanism to remove conditions or orders which have become redundant, and which are potentially or actually prejudicial to a practitioner who has complied in all respects with a condition which has ceased to have effect. In the facts of this case relevant to the first question is the ongoing accessibility to the public and employers of the conditions. Relevant to the latter consideration is the time, and cost both financial and emotional for the practitioner involved in a review process. It is also relevant to consider the costs incurred in such applications by the appropriate review body, and ultimately the community. 16At [10] it is submitted: In this case, the orders were recorded on the National Register as conditions. It is in the public interest that the question of their review and removal be considered by the Council pursuant to a regulatory process, which is transparent, accountable and procedurally fair rather than dealt with on an informal or administrative basis without regard to these important considerations 17The submissions also discuss the fact that "there is no specific legislative pathway requiring orders which involve completion of certain activities to be included on the National Register or to be removed from the register by the relevant National Board". The submissions further note that a National Board has a discretion under s 226 "to determine what information should be entered into the National Register and what information can be removed or changed". I accept the accuracy of that submission. 18The submissions then refer to the requirement for the National Board to implement (or in the language of the National Law "give effect to") the decisions of an adjudication body (see s 176A). An adjudication body includes the Tribunal, a Council and a PSC (see s 5 of the National Law and s 6A Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)). 19Relevant to this discussion are s 225 and 226 of the National Law. They relevantly provide: 225 Information to be recorded in National Register A National Register or Specialists Register must include the following information for each registered health practitioner whose name is included in the register-- (a) the practitioner's sex; (b) the suburb and postcode of the practitioner's principal place of practice; (c) the registration number or code given to the practitioner by the National Board; (d) the date on which the practitioner was first registered in the health profession in Australia, whether under this Law or a corresponding prior Act; (e) the date on which the practitioner's registration expires; (f) the type of registration held by the practitioner; (g) if the register includes divisions, the division in which the practitioner is registered; (h) if the practitioner holds specialist registration, the recognised specialty in which the practitioner is registered; (i) if the practitioner holds limited registration, the purpose for which the practitioner is registered; (j) if the practitioner has been reprimanded, the fact that the practitioner has been reprimanded; (k) if a condition has been imposed on the practitioner's registration or the National Board has entered into an undertaking with the practitioner-- (i) if section 226(1) applies, the fact that a condition has been imposed or an undertaking accepted; or (ii) otherwise, details of the condition or undertaking; (l) if the practitioner's registration is suspended, the fact that the practitioner's registration has been suspended and, if the suspension is for a specified period, the period during which the suspension applies; (m) if the practitioner's registration has been endorsed, details of the endorsement; (n) details of any qualifications relied on by the practitioner to obtain registration or to have the practitioner's registration endorsed; (o) if the practitioner has advised the National Board the practitioner fluently speaks a language other than English, details of the other language spoken; (p) any other information the National Board considers appropriate. [my emphasis] 226 National Board may decide not to include or to remove certain information in register (1) A National Board may decide that a condition imposed on a registered health practitioner's registration, or the details of an undertaking accepted from a registered health practitioner, because the practitioner has an impairment is not to be recorded in its National Register or Specialists Register if-- (a) it is necessary to protect the practitioner's privacy; and (b) there is no overriding public interest for the condition or the details of the undertaking to be recorded. (2) A National Board may decide that information relating to a registered health practitioner is not to be recorded in its National Register or Specialists Register if-- (a) the practitioner asks the Board not to include the information in the register; and (b) the Board reasonably believes the inclusion of the information in the register would present a serious risk to the health or safety of the practitioner. (3) A National Board may decide to remove information that a registered health practitioner has been reprimanded from the National Register or Specialists Register if it considers it is no longer necessary or appropriate for the information to be recorded on the Register.[my emphasis] 20The submissions at [13] note: Aside from matters listed in section 225, the relevant National Board is the entity, which has the discretion under section 226 to determine what information should be entered into the National Register and what information can be removed or changed. This discretion permits the National Board to record orders notified by a co-regulatory adjudication body. The National Board may delegate certain functions to AHPRA but the power to remove information from the National Register (s 125-127) resides with the National Board. AHPRA does not have the power whether administratively or under the National Law (NSW) to remove spent conditions from the national register without a review process first occurring. 21Section 125, s 126 and s 127 vest in a National Board the power to change or remove a condition but the power in s 125 may only be exercised if: (1)a practitioner makes an application to the National Board and (2)if the adjudication board (in this case a PSC) when imposing the condition determined s 125 should apply. That did not occur in this case 22Similarly the power vested in the National Board under s 127 may only be exercised: (1)during a review period applying to the condition unless the National Board forms the view that there has been a material change in circumstance or (2)the adjudication body (in this case a PSC) has decided when imposing a condition that the subdivision shall apply to the condition. 23Thus, it is clear that the legislature has provided a wide discretion to a National Board in deciding what information may be included on a practitioner's entry in the register (see s 125 (p)). 24The power vested in the National Board to remove information, unless s 125 -127 apply, is however limited to the circumstances set out in s 226. Section 226 (2) (a) requires a practitioner to "ask the Board not include information", and the Board may only accede to that request "if it believes the inclusion of the information on the register would present a serious risk to the health or safety of the practitioner". On a strict reading s 226 limits the National Board's power to remove information on the register, except a reprimand. Accordingly, the circumstances in which a National Board can remove a condition are constrained by the requirements of the legislation. The National Board's power to remove information is not found in s 226. Rather s 226 (2) appears to apply to the decision not to record information in the special circumstances set out in s 226 (2). 25It is not suggested that, in the circumstances of this case, the National Board has any role to play relevant to the removal of the reprimand recorded on the practitioner's registration as such order is not sought in the application. Nor is the Board asked to consider the removal of "spent" conditions on the practitioner's registration. 26The submissions support the continuation of a formal review process in circumstances such as the present case on the basis such a review is "transparent, accountable and procedurally fair". The submissions do not however canvas the time and cost involved to the practitioner and to the community. 27It may be legitimately argued the fact conditions have been imposed at some point in time on a practitioner's registration that the conditions should remain a matter of public record indefinitely. But if the primary purpose (the protection of the health and safety of the public) of the time limited condition has ceased to have effect, other factors may require consideration. I discuss these competing policy issues further under the next identified issue. 28The question of what is recorded on a practitioner's registration including conditions or other information such as an order to undergo medical or psychiatric treatment or counselling or attend a specified course or courses, and the manner and timing by which such conditions or information should ever be removed is a question for the legislature. 29The National Law does provide a mechanism for the removal of conditions on application to a review body. Unless the legislature provides a mechanism to review expired conditions without application to an appropriate review body the following matters are apparent: (1)Adjudication bodies imposing conditions on a practitioner's registration need to ensure conditions are properly drafted and enforceable; (2)Adjudication bodies need to give careful consideration when imposing a condition or conditions to providing for review of the condition/s by a nominated review body at the expiration of a fixed time period; and (3)AHPRA, the public and practitioners will be assisted if an adjudication body clearly specifies at the conclusion of proceedings what it requires to be recorded on the register. . Can a PSC at the time of imposing conditions on registration, order that conditions imposed for a specified time period be removed when that time has expired without the need to come before an appropriate review body? 30I raised this issue at [9(4)] of my substantive reasons. Although in the circumstances of this decision it is unnecessary for me to determine this issue, in fairness to the Council and AHPRA I record the gravamen of the joint submissions. 31At [15] of the submissions the following argument is advanced: It is difficult to see by what means or in what circumstances an adjudication body, such as a PSC, could predict at the time of imposing a condition that at the conclusion of a specified time period there would be no further need for the conditions and that the public would be adequately protected. Accordingly, the Council does not view time limited conditions as an appropriate mechanism for the protection of the health and safety of the public. 32It is apparent that the submissions of the Council and AHPRA taken to their logical conclusion, are in effect, critical of the drafting of the condition imposed by the PSC in this case because it is time limited. By October 2013 the practitioner was no longer, if she had ever been given the preamble in Order 2, bound to comply with any requirements set out in 2.1 - 2.4, (see [19] of my substantive reasons) so the intended protective nature of the conditions never had effect, or had ceased to have effect by September 2013. 33If the submissions of the Council and AHPRA correctly reflect the objects and principles of the National Law, then it follows a time limited condition in the terms made in this case should never be made. Rather, any order or imposing of a condition on a practitioner's registration should provide for the ongoing operation of the condition or conditions, with a review mechanism "built in", generally not earlier than a specified period (in this case 12 months). 34This conclusion does not, on its face, sit comfortably with the fact from time to time adjudication bodies impose conditions, rather than making orders, which require completion of a specified course within a fixed time period, or attendance on a treating specialist for a defined period thus blurring the distinction between conditions and orders notwithstanding the terms of the National Law. This dilemma can generally be overcome by imposing these time limited provisions as orders, albeit I accept a National Board can determine such orders should be recorded on the register. Conclusions 35Having regard to the provisions of the National Law set out above, the following conclusions may be drawn: * If an order is made imposing conditions by a Tribunal, a Council or a PSC ("an adjudicating body") and the adjudicating body fails to nominate an appropriate review body for the purposes of s 163A, or to provide for review on application by the practitioner to a National Board under s 125, then subject to an application under s 163 (1) (a1), only the Tribunal can review the order imposing the conditions; * the List Manager may on determining an application under s 163(1) (a1) order that an appropriate review body is to be a review body other than the Tribunal; * The List Manger has power under s 163 (1) (a1) to refer a review to the National Board. Without deciding, it appears, as the powers of the review body are limited to the remedies set out in s 163B, that the review may not include an application to a National Board to remove a reprimand from the Register. The removal of a reprimand is governed by s 226 (3); * On determining the review application the review body must determine the appropriateness at the time of the review the order (imposing a condition) but is not to review the decision to make the order or any findings made in connection with the making of the order. Additionally the review body must take into account any complaint made or notified to a Council or a National Board about a person whether before or after the making of the order the subject of review. Is legislative amendment of sections 163 and or s 163A required? 36The submissions address this topic at [18]-[19]. Having noted the inconsistencies in the language employed in various provisions of the National Law in [16]-[29] of my substantive reasons, the submissions go on to note at [19]: However, precision by the relevant adjudication body in drafting conditions and orders as well as specifying the appropriate review body will also assist and in some cases obviate unnecessary applications to NCAT under s 163 (1) (a1). Additionally, greater precision is need by the adjudication body in identifying what information is required to be notified to the National Board and AHPRA for the purposes of maintaining the National Register. 37As is apparent from my substantive reasons I endorse this submission. Conclusions 38I am satisfied that the Council has been afforded procedural fairness in this application. I note for future applications it would be practical and efficient if the applicant for review is seeking a review body other than the Tribunal, for that review body to be given notice by the practitioner prior to the directions hearing so that the review body may, if it desires to do so, seek to be joined as a party, or to be heard in respect of the application. 39For the reasons set out in my substantive reasons, I have determined the appropriate review body in this case should be the Council. I note the Council and AHPRA support this outcome. ORDERS (1)The appropriate review body for the purpose of the review of conditions imposed on the registration of Ms Janelle Crook by a Professional Standards Committee on 12 September 2013 is the Nursing and Midwifery Council of NSW. (2)No order as to costs. . ********** 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: 14 August 2014