Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 Hearing dates: 15-16 December, 2014 Decision date: 06 May 2015 Jurisdiction: Occupational Division Before: J Hughes, Principal Member C Maloney, Professional Member Z Wilson, Professional Member J Lyon, Lay Member Decision: 1. The Tribunal granted the application for a reinstatement order pursuant to s.163B(1)(c) of the Health Practitioner Regulation National Law (NSW) 2009, subject to conditions upon registration.

2. In the event that the health practitioner or the Council seeks a review of the conditions imposed in the orders the appropriate body is the Nursing and Midwifery Council of NSW, pursuant to s.163(1)(a1) of the National Law. In the event that the practitioner's principal place of practice is anywhere in Australia other than in NSW, the appropriate review body shall in those circumstances be the relevant National Board.

3. A non-publication order was made under clause 7 of Schedule 5D to the National Law prohibiting the publication of the name of the patient who had been the subject of the original Complaint, and who was referred to in the initial proceedings and these as Patient A.

4. The Tribunal did not make a costs order, such that each party should pay their own costs of and incidental to the proceedings. Catchwords: Application under s163A of the Health Practitioner Regulation National Law (NSW) 2009 for review of order cancelling registration – Where the HCCC is neutral – Whether former nurse has insight into the effect of her past inappropriate conduct – Whether former nurse has demonstrated by that she is appropriate that she be restored to the register – Whether education undertaken is sufficient – Whether conditions on registration are appropriate – Whether mentoring or supervision conditions are appropriate – Costs – Principles for determining costs awards in reviews - Whether HCCC should be sanctioned concerning filing all material from previous hearing and whether such should sound in costs. Legislation Cited: Health Practitioner Regulation National Law (NSW) No.86a ("the National Law") Cases Cited: Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Coe v. HCCC [2013] NSWNMT 12 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Hardy v HCCC [2009] NSWNMT 21 HCCC v. Dr Mazzaferro [2011] NSWMT 9 HCCC v Litchfield (1997) 41 NSWLR 630 HCCC v Mnyandu [2010] NSWNMT 21 In Re Jason Martin [2010] NSWMT 13 Kazmierczak v. NSW Medical Board (unreported, NSW Medical Tribunal, 6 May, 2010 Latoudis v Casey ((1990) 170 CLR 534 Litchfield v Medical Council of New South Wales [2012] NSWMT 8 Nelson v HCCC [2009] NSWMT 7 Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58 Re Lenehan (1948) 77 CLR 403; [1948] HCA 45 Scully v HCCC [2013] NSWNMT 7 Sunjic v HCCC [2010] NSWNMT 13 Stanoevski v The Law Council of New South Wales [2008] NSWCA 93 Zaidi v HCCC (1998) 44 NSWLR 82. Category: Principal judgment Parties: Thembekile Mnyandu (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: S Talbert (Respondent) Solicitors: New Law Pty Ltd, (Applicant) R Lewis, Health Care Complaints Commission (Respondent) File Number(s): 1420205 Publication restriction: Non-publication order with respect to the patient who was the subject of the initial complaint, referred to as Patient A in these reasons for decision.