Health Care Complaints Commission v Gallard [2017] NSWCATOD 169

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gallard [2017] NSWCATOD 169 Hearing dates: 24, 25, 26, 27, 28 and 31 July 2017 Date of orders: 27 November 2017 Decision date: 27 November 2017 Jurisdiction: Occupational Division Before: J Millbank, Senior Member C Doyle, Senior Member S Hillsley, Senior Member S Lovrovich, General Member Decision: (1) A finding that Complaints 1 and Complaint 2, and parts of Complaint 3, of unsatisfactory professional conduct are made out to the required standard;

(2) A finding that Complaint 2 individually, and the balance of the proven complaints cumulatively, amount to professional misconduct per Complaint 4;

(3) A finding that Complaint 5 of impairment is established;

(4) A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of any patients in the schedule to the complaint, and any other patients or nurses and midwives named in evidence, apart from those giving oral evidence and the respondent;

(5) An order that the matter proceed to Stage 2 determination, with directions to the parties to communicate with the registry to set a hearing date. Catchwords: Nursing and Midwifery – handling and administration of Schedule 8 medications – misappropriation of Schedule 8 medication – impairment by reason of dependence upon prescription medication Legislation Cited: Health Practitioner Regulation National Law NSW 2009 (NSW) ('The National Law') ss 5; 139B; 139E Civil and Administrative Tribunal Act 2013 (NSW) ss 3, 36, 38, 53, 64 Poisons and Therapeutic Goods Act 1966 (NSW); Poisons and Therapeutic Goods Regulation 2008 (NSW); Therapeutic Goods Administration Act 1989 (Cth); Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; Colquhoun v Psychology Council of NSW [2011] NSWPST 3 Hanna v Medical Council of NSW [2017] NSWCATOD 27; HCCC v Fisher [2016] NSWCATOD 62; HCCC v Flekser [2016] NSWCATOD 1; HCCC v Phung (No 1) [2012] 1 NSWDT 3; I v Medical Board of Australia [2011] SAHPT 18; Liddell v Medical Board of Australia [2012] WASAT 120; Lindsay v NSW Medical Board [2008] NSWSC 40; Litchfield v HCCC (1997) 41 NSWLR 630; Ord v Nursing and Midwifery Board of Australia [2014] QCAT 688; R v Medical Board of Australia [2013] WASAT 28; Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53; Shahinper v Psychology Board of Australia [2013] QCAT 593; HCCC v Perroux [2011] NSWDC 99; HCCC v BXD (No 1) [2015] NSWCATOD 134; Pillai v Messiter (No 2) (1989) 16 NSWLR 197; Council of The Law Society of NSW v Hancock [2013] NSWADT 63; New South Wales Bar Association v Howen [2008] NSWADT 148; Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73 Texts Cited: Australian Commission on Safety and Quality in Heath Care, National Safety and Quality Health Service Standards (2012); NSW Ministry of Health, Code of Conduct (2005); NSW Ministry of Health, Code of Conduct (2012); NSW Ministry of Health, Medication Handling in Public Hospitals Policy Directive (2007); NSW Ministry of Health, Medication Handling in Public Hospitals Policy Directive (2013); Nursing and Midwifery Board of Australia, A Midwife's Guide to Professional Boundaries (2010); Standard for the Uniform Scheduling of Medications and Poisons ('Poisons Standard') (2017); Westmead Hospital, Clinical Practice Standard at Westmead (2014) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Michelle Gallard (Respondent) Representation: Counsel: Ms Tronsen (Applicant) Mr Hickey (Respondent) File Number(s): 2016/00378808 Publication restriction: A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of any patients in the schedule to the complaint, and any other patients or nurses and midwives named in evidence, apart from those giving oral evidence and the respondent.