Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zahorowska v Health Care Complaints Commission [2016] NSWCATOD 56 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 163 (1) (a1) of the National Law the Nursing and Midwifery Council of NSW is the appropriate review body to review orders made by the former Nurses and Midwives Tribunal on 15 December 2008. 4. The external appeal form filed 8 January 2016 is dismissed 5. No order as to costs. Catchwords: APPLICATION UNDER HEALTH PRACTITIONER REGULATION NATIONAL LAW – Civil and Administrative Tribunal Act 2013 (NSW). Where orders made by now repealed Nurses and Midwives Tribunal imposing conditions on practitioner's registration. Where practitioner seeks a review or discharge of the conditions – Consideration of appropriate review body. HELD – Nursing and Midwifery Council of NSW is the appropriate review body. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Nurses and Midwives Act 1991 (NSW) (repealed) Cases Cited: Crook v Health Care Complaints Commission [2014] NSWCADOD 50 Health Care Complaints Commission v Coe [2013] NSWNMT 11 Health Care Complaints Commission v Arkita McAuley [2013] NSWNMT 13 Category: Principal judgment Parties: Ewa Zahorowska (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): 1620004 Publication restriction: nil EX TEMPORE decision Introduction 1. HER HONOUR: On 5 January 2016, Ms Eva Zahorowska, who I will refer to as "the applicant", filed an external appeal form in the Tribunal. In that form the applicant seeks orders that conditions placed on her registration be either varied or discharged at the conclusion of the appeal under the provisions of the Health Practitioner Regulation National Law (the National Law). 2. The conditions the subject of the appeal were imposed by the former Nurses and Midwives Tribunal on 15 December 2008 under the Nurses and Midwives Act 1991 (NSW) (repealed). 3. On 15 December 2015, the Nursing and Midwifery Council of NSW (the Council) wrote to the Registrar, Occupational Division of the Tribunal, and noted, "Although conditions are being monitored by the Council, the appropriate review body is the Tribunal. However s 163(1) b of the law enables the chairperson of the tribunal to make an order specifying the Council as the appropriate review body for a specified order or orders." 1. Annexed to the Council's letter is a letter dated 3 December 2015 from the applicant to Dr Margaret Cook, at the Council, in which the applicant said that she would be seeking an order that the Nursing and Midwifery Council of New South Wales be the appropriate review body. The applicant asked could her letter be forwarded to the Chairperson of the Tribunal. 2. Although I note there was advice given by the Registry to the applicant that this application should be made in a general application form, that advice was not followed. However, consistent with the objects of the Civil and Administrative Tribunal Act 2013 (NSW), I propose to treat the external appeal form and the two letters as an applications under s 163A and s 163(1)(a)(1) of the National Law with the effect the order sought is that the Council be the appropriate review body rather than the Tribunal. 3. I have granted leave today to the Health Care Complaints Commission (HCCC) to be joined as a party. I am informed by Ms Westwood, who appears on behalf of the HCCC, that the HCCC supports the application that the Council be the review body. 4. Further, Ms Campbell, who appears on behalf of the Council, for reasons I will enumerate shortly, also supports the application. Background 1. I turn now to the brief background facts. The former Nurses and Midwives Tribunal heard proceedings on 20 and 21 August 2008, and published their orders and reasons on 15 December 2008. The basis for the conditions that were imposed by the former Tribunal are set out at p 16 of the Tribunal's reasons, commencing at [83]. Here, the former Tribunal stated it was comfortably satisfied de-registration would not be an appropriate sanction, but rather explained it was comfortably satisfied that suspension of the respondent (the present applicant) for a period of 18 months from the date of the reasons for decision, with conditions, were sufficient and appropriate orders for the protection of the public. 2. The conditions were set out at p 17 of the former Tribunal's reasons and, without repeating those in full, the conditions include an education condition, which is unlimited in time, except that the education had to be completed before the practitioner could return to work, an employment condition, a medical treatment condition, and a requirement that the conditions be notified to any employer. 3. Further, the applicant was required to supply written authorities to the then Nursing and Midwifery Board to enable the Board, for a period of two years from the date of the orders, to receive reports from any employer, mentor, psychiatrist or other treating practitioner concerning the applicant. Relevant statutory provision and principles 1. I turn to the principles that are relevant to determining this application. Those principles have been discussed in former decisions of the Nursing and Midwifery Tribunal namely in the decision of Health Care Complaints Commission v McAuley, [2013] NSWNMT 13, and Health Care Complaints Commission v Coe [2013] NSWNMT 11. 2. In this Tribunal the former decisions were referred to in the matter of Crook v Health Care Complaints Commission [2014] NSWCATOD 50. At [41] of the decision in Crook the following is noted: 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. 1. Dealing with the matters identified Crook, I note in this matter a suspension and the conditions on the applicant's registration were imposed by a Tribunal at the conclusion of disciplinary proceedings. 2. I turn then to consider the seriousness of the complaint and the findings of the Tribunal. As Ms Westwood on behalf of the HCCC pointed out, this was not a matter where a tribunal found that cancellation of the practitioner's registration was appropriate. Having regard to the Tribunal's reasons it is clear the principal reason that the conditions were imposed was because of a medical condition then suffered by the applicant. 3. There is no doubt the Tribunal would have the ability to inquire into and test evidence in relation to whether or not the conditions should be removed. But, it appears to me, this is not a matter where it would be necessary for documents to be produced under summons because there is no suggestion raised by the Council that the applicant has been anything but compliant with the conditions that were imposed. 4. I turn then to the matters that were alluded to by Ms Campbell this morning. Costs considerations are a very important matter in this application and also the timeliness of the hearing before the Council compared to Tribunal. While I do not have specific evidence before me about how soon the Council could deal with this review, given the current number of matters in the Tribunal awaiting hearing, I think it is more likely that the matter would be dealt with in a more timely manner by the Council. It would certainly be heard in a more cost effective manner than incurring the costs of convening a full Tribunal and having the HCCC participate in the hearing. 5. But the most important matter in my determination in this matter is the experience and expertise of the Council in reviewing conditions, particularly ones like the present conditions which have been in place over the period from 2008 to 2016. The members of the Council will have a much more practical grasp on the nature and impact of the conditions, and whether any, or all of them, remain appropriate or necessary for the health and safety of the public. Weighing up all relevant factors, I am satisfied that it is appropriate that the Council should be the review body. Accordingly, the orders of the Tribunal are as follows; 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 163 (1) (a1) of the Health Practitioner Regulation National Law the Nursing and Midwifery Council of NSW is the appropriate review body to review orders made by the former Nurses and Midwives Tribunal on 15 December 2008. 4. The external appeal form filed 8 January 2016 is dismissed. 5. 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: 09 May 2016