Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Yule v Health Care Complaints Commission [2016] NSWCATOD 55 Hearing dates: 4 March 2016 Date of orders: 04 March 2016 Decision date: 04 March 2016 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Decision: 1.Grant leave to Ms F Westwood to make an oral application to join the Health Care Complaints Commission (HCCC) as a party to the proceedings under s 163 (1) (a1) of the Health Practitioner Regulation National Law (the National Law). 2.The HCCC is joined as a party to the proceedings. 3.Under s 163A (1) (a1) of the National Law the Nursing and Midwifery Council of NSW is the appropriate review body to review the orders made the Nursing and Midwifery Tribunal of NSW on 23 July 2010. 4.The external appeal filed 8 January 2016 is dismissed. 5. No order as to costs. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW). Where orders made by now repealed Nursing and Midwifery Tribunal of NSW imposing conditions on practitioner's registration. Where practitioner seeks a review or discharge of the conditions – transitional provisions give Tribunal jurisdiction. – Consideration of the appropriate review body. HELD – Nursing and Midwifery Council is the appropriate review body. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Crook v Health Care Complaints Commission [2014] NSWCATOD 50 Health Care Complaints Commission v Coe [2013] NSWNMT 11 Health Care Complaints Commission v Arkita McAuley [2013] NSWNMT 13 Category: Principal judgment Parties: Margaret Yule (Applicant) Health Care Complaints Commission (Respondent) Representation: Nurses and Midwives Association of NSW (Applicant) Health Care Complaints Commission (Respondent) C Campbell, Nurses and Midwifery Council of NSW File Number(s): 1620010 Publication restriction: Nil EX TEMPORE decision Introduction 1. HER HONOUR: On 8 January, Ms Margaret Yule, who I will refer to as the applicant, filed an external appeal form in the Occupational Division of the Tribunal. In her appeal form the applicant stated "I have enclosed documents for my grounds of appeal". The applicant did not set out grounds of appeal but annexed documents setting out conditions imposed on her registration as a registered nurse. I take it from those documents that what the applicant, who was unrepresented at the time of filing her appeal, is seeking is either the conditions be removed from her registration or they be varied. 2. On 25 November 2015, which was prior to the receipt by the Tribunal of the external appeal form, a letter was sent to the Registrar by the Nursing and Midwifery Council of NSW (the Council). The letter referred to the fact that the practitioner had requested a review of conditions which had been placed on her registration on 23 July 2010. The Council suggested the Tribunal could make an order specifying the Council as the appropriate review body for a review of those conditions. With the applicant's consent, I have today indicated that I would treat the letter of 25 November 2015 as a general law application to seek an order under the relevant provisions of the Health Practitioner Regulation National Law, namely s 163 (1) and s 163A. 3. Section 163 (1) provides as follows: 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. 1. Ms F Westwood appeared for the Health Care Complaints Commission (HCCC). The HCCC was joined as party to the proceedings. Ms Westwood advised that the HCCC supported the making of an order that the Council be the appropriate review body. 2. Pursuant to the transitional provisions in the Civil and Administrative Tribunal Act 2013 (NSW) on the establishment of this Tribunal, jurisdiction is conferred to review orders made by the former Nursing and Midwifery Tribunal of NSW. Background 1. The background of this matter is that the practitioner came before the former Nursing and Midwifery Tribunal of NSW in proceedings instituted by the HCCC on 19, 20 and 21 July 2010, and the Tribunal made orders on 23 July 2010. 2. The Nursing and Midwifery Tribunal's extensive reasons for decision disclose that the applicant had made admissions of the particulars in the complaint. The Tribunal found that she had been forthright and honest in her demeanour in the witness box. They noted the applicant indicated a greater understanding of the implications of her actions, which include falsifying a drug register, while she was being cross-examined, and that she had been very co-operative with the inquiry process. The Nursing and Midwifery Tribunal also noted that the applicant demonstrated some degree of insight into her behaviour, there was no direct harm suffered by any patient, and the complaint was limited to a brief period of 16 days between July and August 2006. 3. The Tribunal further noted that the applicant provided references from her supervisors and concluded, after reprimanding the practitioner, that an appointment of a mentor could inform the Council if there were any concerns relating to her nursing practices. The Tribunal then imposed a number of conditions on the applicant's registration and made other orders, which are set out at the conclusion of the reasons for decision at [48]. Those orders record that the practitioner was formally reprimanded, she was to attend an ethics course, and required to comply with mentoring conditions for a period of two years by a registered nurse of at least eight years standing. 4. There was also an order that the applicant was to notify the head of school at Charles Sturt University, the practice manager of the Russell Street Medical Centre and the director of nursing at St Catherine's Aged Care facility of the conditions and provide them with a copy of the reasons for decision. She was also required, while she had conditions on her registration, to inform the Council of the name, address and contact of her immediate supervisor for any new nursing employment. Legal Principles 1. I have earlier today alluded to the principles that seem to me to be relevant in dealing with this application. Those principles or guidelines were discussed in the matter of Health Care Complaints Commission v Arkita McCauley [2013] NSWNMT 13, and Health Care Complaints Commission v Coe, [2013] NSWNMT 11. 2. I also refer to the decision in Crook v the Nursing and Health Care Complaints Commission [2014] NSWCATOD 50 and in particular [41] of that decision. There I discussed the factors in favour of, and against, this Tribunal being the appropriate review body rather than the Council as follows: In 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. Discussion and conclusions 1. Having regard to those principles or guidelines, I note that in the matter under consideration, whilst the conduct was serious, even at the time of the hearing before the former Tribunal, that Tribunal noted a degree of insight by the applicant, that she had conceded the complaints against her and had made appropriate admissions in cross-examination. The Tribunal did not find it was appropriate to cancel the practitioner's registration. 2. Having regard to the nature of the conditions that were imposed by the Tribunal, I accept that they are conditions which have, since 2010, been monitored by the Council, who would now have an intimate knowledge of what the applicant has or has not done. 3. Given the concessions of the applicant before the previous Tribunal, it would be highly unlikely that cross-examination would elicit any further evidence that would be of use in dealing with the review of the conditions. 4. As submitted by Ms Campbell for the Council, I have also taken into account the fact the Council may be able to deal with this matter on the papers. This would certainly provide a timely and cost efficient review process. 5. The principal matter I take into account is the experience and expertise of the Council members in reviewing conditions, such as the present ones, which have been in place now for approximately five years. Taking into account all the relevant circumstances, I am satisfied that the Council is the appropriate review body and I so order. ********** 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: 09 May 2016