Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Pearson [2018] NSWCATOD 59 Hearing dates: On the papers Date of orders: 27 April 2018 Decision date: 27 April 2018 Jurisdiction: Occupational Division Before: R C Titterton, Principal Member Decision: 1. The Tribunal consents to the withdrawal of the application. 2. The application is dismissed. Catchwords: TRADES AND PROFESSION –– Nursing –– Health Practitioner Regulation National Law ––nurse practitioner cannot be located –– nurse practitioner not registered Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioners Regulation National Law Cases Cited: Health Care Complaints Commission v Campbell [2014] NSWCATOD 107 Health Care Complaints Commission v Khan [2014] NSWCATOD 83 Health Care Complaints Commission v Sarfraz [2015] NSWCATOD 75 Health Care Complaints Commission v Singh [2016] NSWCATOD 85 Category: Procedural and other rulings Parties: Health Care Complaints Commission (Applicant) Elizabeth Ann Pearson (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent: No appearance File Number(s): 2017/00290221 REASONS FOR DECISION Introduction 1. This is an application of the Health Care complaints Commission (the Commission) to withdraw its application for disciplinary findings and orders filed 25 September 2017. 2. In its application, the Commission alleged that the respondent, Ms Pearson, suffers from an impairment, lacks competence to practice as a nurse and has engaged in unsatisfactory professional conduct under s 139B(1)(b) and (e) of the Health Practitioners Regulation National Law (National Law). 3. The matter has been listed for a number of directions hearings, namely on 3 November 2017, 1 December 2017, 9 February 2018 and 9 March 2018. On each occasion there has been no appearance of Ms Pearson. 4. The Commission has attempted to contact Ms Pearson via the telephone numbers and email addresses it holds on file, but has been unsuccessful. The Commission does not have any alternative contact details to submit to the Tribunal to make an application for substituted service. Accordingly, the Commission is not satisfied that Ms Pearson is aware of the proceedings against her. 5. On 9 March 2018, Boland ADCJ directed that the present application could proceed "on the papers". 6. After reading the application, correspondence to the Tribunal and Commission's submissions, I am satisfied that it is not in the interests of the public for the application for disciplinary orders to proceed to a hearing, that the complaint should be withdrawn and the application dismissed. Constitution of Tribunal 1. I note the comments of her Honour in Health Care Complaints Commission v Khan [2014] NSWCATOD 83 at [47] to [49]. In summary, her Honour considered whether or not an application for withdrawal, such as the present one, could be determined by a single member prior to the hearing of the proceedings, or whether such an application must go before a full Tribunal. Her Honour concluded that it was possible, and may be appropriate, for such applications to be brought before a single member who would normally preside at the final hearing. In the case of the medical practitioner this is a judicial officer: see Health Care Complaints Commission v Campbell [2014] NSWCATOD 107 at [7]. 2. I am the member presiding for the purposes of this application. In this respect I note the remarks of Boland ADCJ in Health Care Complaints Commission v Sarfraz [2015] NSWCATOD 75 at [19] to [24]. As in that matter, for abundant caution, the Registrar has requested the relevant Council (here the Nursing and Midwifery Council of NSW) to nominate occasional members under s 165B(2)(b), and those persons nominated were appointed by the President as occasional members. 3. In the circumstances, I am satisfied that the Tribunal is properly constituted to consider this application. Commission's submissions 1. The Commission submits that it is not in the public interest to prosecute a complaint against Ms Pearson for the following reasons: 1. Ms Pearson is no longer registered; 2. the complaints against Ms Pearson relate to her impairment (being Attention Deficit Hyperactivity Disorder, major depression, thought disorder and paranoia and symptoms of an illness in the spectrum of schizophrenia) and lack of competence; 3. there is evidence that Ms Pearson's appears to have had a decline in her mental health; 4. there is evidence that both AHPRA and the Nursing and Midwifery Council are aware of Ms Pearson's health issues and they can be taken into account in relation to any future application for registration; and 5. as this an interlocutory decision (see Health Care Complaints Commission v Singh [2016] NSWCATOD 85 at [27]), the Commission can seek to have the proceedings reinstated if Ms Pearson seeks registration again. 1. The protection of the public is the paramount consideration under the National Law (s 3A). The Commission submits that the public is adequately protected given the reasons listed above, particularly, that Ms Pearson is no longer registered. 2. In addition, the complaints brought against Ms Pearson are not conduct complaints. Although there are two complaints of unsatisfactory professional conduct, they relate to a failure to respond to a notice from the Commission and failure to maintain continuing professional development. The Commission submits that there is evidence to suggest that these failures were related to Ms Pearson's impairment. 3. Therefore, the Commission submits that, despite Ms Pearson no longer being registered, the complaints are not of the nature that require prosecution for the deterrence aspect and it is not in the public interest to proceed with an inquiry. Consideration 1. Clause 12 of Sch 5D of the National Law relevantly provides as follows: 12 Certain complaints may not be heard [NSW] (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if— (a) any of the following circumstances apply— (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. 1. Relevant principles dealing with such matters were articulated by Boland ADCJ in Singh as follows: 29. I have already recorded that this matter has been subject of six directions hearings at a cost to both the HCCC and the public. Further directions hearings when the practitioner's whereabouts are unknown will only increase costs which are ultimately borne by the public. 30. Importantly, as the Tribunal will not have determined the proceedings if they are withdrawn, the practitioner's suspension will remain in place thus precluding him from practising medicine in Australia thereby ensuring public safety. 31. Finally, an order permitting withdrawal is not a final order and the rights of the parties to agitate the proceedings in the Tribunal will not be lost. Should the practitioner be located, whether in Australia or outside the jurisdiction, he can be served with process either by personal service or substituted service. Once served, the practitioner can be afforded an opportunity to lodge a Reply and any documentation on which he may seek to rely at a hearing. If no response is received from the practitioner the matter may be listed for an undefended hearing. 1. Those comments are appropriate in the circumstances of this application. This matter has been subject of four directions hearings at a cost to both the Commission and the public. Further directions hearings when the practitioner's whereabouts are unknown will only increase costs which are ultimately borne by the public. While the protection of the public is the paramount consideration under s 3A of the National Law, I accept that that the public is adequately protected given the reasons listed above, particularly, that Ms Pearson is no longer registered. 2. In this respect I note that there is evidence before me, in the form of an Evidentiary Certificate of the Australian Health Practitioner Regulation Agency, issued pursuant to s 244 of the National Law dated 14 March 2018 which states that the respondent has been a registered nurse in the period 1 July 2010 to 31 May 2011, and again from 1 September 2014 to 31 May 2017. I am satisfied therefore on the basis of this evidence that Ms Pearson is presently unregistered. 3. In my view, pursuing these complaints to a final hearing is not in the interests of the public, and unnecessary public funds would be expended in the litigation. In addition, at best, establishment of the second complaint (lack of competence) leads in practical terms, to no different or more protective a result. At best the Tribunal may make an order that, were the respondent still registered, the Tribunal would have cancelled her registration. 4. In addition, I am satisfied that the complaints against Ms Pearson are not of the nature that require prosecution for a deterrence aspect of a protective order. Orders 1. For the above reasons: 1. the Tribunal consents to the withdrawal of the application for disciplinary findings and orders lodged on 25 September 2015; 2. the application is dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013. ******** 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: 27 April 2018