Health Care Complaints Commission v Nosek (No. 2) [2017] NSWCATOD 101

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Nosek (No. 2) [2017] NSWCATOD 101 Hearing dates: On the papers Date of orders: 29 June 2017 Decision date: 29 June 2017 Jurisdiction: Occupational Division Before: A Britton, Principal Member A Bizzotto, Professional Member A Jarrett, Professional Member R Davis, General Member Decision: The interim non-publication order made on 13 January 2017 is revoked. Catchwords: PRACTICE AND PROCEDURE — principles of open justice — whether appropriate to order the suppression of name of an impaired health practitioner Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Mental Health Act 2007 (NSW) Cases Cited: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaint Commission v Vo [2014] NSWCATOD 127 Merrilyn Walton v Alexander Sergevich Momot & Anor NSW Court of Appeal, 17 April 1997 Category: Consequential orders (other than Costs) Parties: Health Care Complaints Commission (Applicant) Michelle Nosek (Respondent) Representation: Counsel: F Shah (Applicant) In Person (Respondent) File Number(s): 1620066

REASONS FOR DECISION 1. In a decision handed down on 13 January 2017, the Tribunal (constituted by A Britton, Principal Member; A Bizzotto, Professional Member; A Jarrett, Professional Member; R Davis, General Member), made orders under the Health Practitioner Regulation National Law (NSW) (the National Law) to cancel the practitioner registration of nurse, Michelle Nosek: Health Care Complaints Commission v CWY [2017] NSWCATOD 6 (the substantive decision). At the same time, we made interim orders prohibiting the publication of Ms Nosek's name and invited the parties to comment on whether those orders should continue (the interim non-publication order). 2. In mid-2016, Ms Nosek was admitted as an involuntary patient at Goulburn Hospital following an acute psychotic episode and diagnosed with schizophrenia. At the time of the hearing, Ms Nosek was subject to a six months' community treatment order made by the NSW Mental Health Review Tribunal under the Mental Health Act 2007 (NSW). 3. In the substantive decision we found that Ms Nosek had an "impairment" as defined by s 5 of the National Law, namely a condition, schizophrenia, that detrimentally affected or was likely to detrimentally affect, her capacity to practise the profession of nursing. In addition, we found that Ms Nosek was not competent to practise nursing: s 139(a) of the National Law. 4. At our invitation, each party made written submissions about whether the interim non-publication order should be lifted. Despite being invited to do so, neither party commented on whether the matter could be dealt with "on the papers" without a hearing as permitted by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Nonetheless, being satisfied that the issues for determination could be adequately determined in the absence of the parties by considering their respective written submissions, we determined the matter without a further hearing.