DPD v Nursing and Midwifery Council of NSW [2018] NSWCATOD 170

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DPD v Nursing and Midwifery Council of NSW [2018] NSWCATOD 170 Hearing dates: 21 September 2018 Date of orders: 21 September 2018 Decision date: 21 September 2018 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Decision: 1. The General Law Application filed 24 August 2018 is dismissed. 2. No order as to costs Catchwords: PROFESSIONS AND TRADES – registered health professional – where applicant seeks to re-open application to dismiss appeal for lack of jurisdiction or to file a further appeal. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Mahony v Dental Council of NSW [2018] NSWCATOD 146 Category: Procedural and other rulings Parties: DPD (Applicant) Nursing and Midwifery Council of NSW (Respondent) Representation: Applicant (self-represented) I Martin (Assistant Director Legal, Health Professionals Councils Authority) (Respondent) File Number(s): 2018/00260960 Publication restriction: An order was made by consent on 21 September 2018 prohibiting the publication of the name of the applicant under Cl 7 of Schedule 5D of the National Law.

Ex Tempore REASONS FOR DECISION

Introduction 1. On 17 August 2018 an external appeal filed by Ms DPD (a nurse) was dismissed because the Tribunal has no jurisdiction to hear an appeal against a decision of the Nursing and Midwifery Council that a nurse be required to undergo a performance assessment under s 154 of the Health Practitioner Regulation National Law (NSW) (the National Law). Written reasons for the decision dismissing the application were published on 23 August 2018. No application for leave to appeal that decision has been made by the nurse to the NSW Court of Appeal. 2. The nurse has current registration without conditions. 3. On 24 August 2018 the nurse filed a general application form. The orders sought by the nurse are as follows: New Tribunal Application reason. New evidence to object Performance Assessment base on Health Professional National Law Guideline book. 1. In her attachment to the application the nurse explains she is seeking a "New appeal to [the] Tribunal regarding unreasonable Performance Assessment request from Nursing and Midwifery Council". 2. The nurse sought to rely on s 160 (2) of the National Law as the jurisdictional basis for her proposed new appeal. Section 160 (2) deals with how an appeal against a decision of a Performance Review Panel is to be conducted. As I will explain later in these reasons, at the date of this hearing the Council had not referred the report of an assessor to a Performance Review Panel. 3. It was not in dispute before me that the nurse has recently attended a performance assessment as directed by the Nursing and Midwifery Council (the Council). 4. These reasons should be read in conjunction with the reasons published on 23 August 2018 (the first reasons). Although no application was made for a non-publication order in the earlier application, I note that, with the agreement of the parties, the nurse's name has now been anonymised in the first reasons, and will be anonymised in these reasons.