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. The relevant provisions of the NCAT Act and National Law. 1. The first reasons set out the relevant provisions of the Civil and Administrative Tribunal Act 2013 (NSW) and the National Law. I incorporate [16]-[31] of the first reasons into these reasons. 2. The types of decisions in respect of which an appeal may be brought to this Tribunal as "external appeals" are set out in ss 158, 159 and 160 of the National Law. Section 158 deals with appeals against a decision of a Committee. Section 159 deals with appeals against decisions of a Council. None of the six actions by a Council, which can be the subject of an appeal under s 159 includes an appeal against a decision to have a practitioner undertake a performance assessment under s 154. Section 160 provides for an appeal against a decision of a Performance Review Panel. 3. A further useful discussion of the statutory framework relating to appeals under the National Law is set out in the decision of Principal Member Britton in Mahony v Dental Council of NSW [2018] NSWCATOD 146 at [4]-[19]. The reasons usefully note, as I did in the first reasons, that the word "Committee" has two definitions for the purpose of Part 8 of the National Law. A committee may be an Assessment Committee established under s 172A of the National Law, or a Professional Standards Committee established under s 169 of the National Law. 4. The decision in Mahony was published after the first reasons. In Mahony Principal Member Britton explored the provisions dealing with appeals and, applying the principles of statutory construction, concluded that an appeal under s 158 (an appeal from the decision of a committee) is limited to an appeal from a Professional Standards Committee. 5. As also noted in the first reasons and in Mahony, the provisions relating to an Assessment Committee have no application to members of the medical profession or the nursing and midwifery profession. However, the provisions relating to Professional Standards Committees do have application to members of the medical and the nursing and midwifery professions. 6. As noted in the first reasons, the provisions relating to referral to an Assessment Committee do not have any application to nurses. Discussion and conclusions 1. The National Law provides for an external appeal to this Tribunal against a number of actions which may be taken by a Council against health practitioners. The provisions of the National Law do not include an appeal against a decision to refer a nurse for a performance assessment. However, following a performance assessment, a number of outcomes are possible under s 155C of the National Law. One outcome is that no further action is taken. Another outcome is that a practitioner is referred to a Performance Standards Committee, or a complaint is made about the practitioner if the assessment raises significant issues of public health or safety. A nurse can appeal against a decision made by a Performance Standards Committee to the Tribunal. 2. As I endeavoured to explain to the nurse at the hearing, if, following the assessment she has undertaken, a report is referred to a Performance Review Panel, she may appeal any decision of that panel. If conditions are placed on her registration by the panel, she has a right of appeal against the decision to impose conditions; or, if she is required to complete an educational course, she may appeal that decision. She may also appeal against a decision that she seek and take advice in relation to the management of her practice from a person nominated by the panel. 3. I find that the nurse's present application is misconceived on a number of bases: 1. The nurse has not sought leave to appeal my orders to dismiss her appeal made on 17 August 2018. 2. No proper ground to set aside the orders made 17 August 2018 to dismiss the appeal is established. 3. The nurse has participated in the performance assessment, albeit it appears reluctantly, so seeking to appeal the decision to refer her to such assessment (if an appeal was available) has no utility. 4. The decision the nurse seeks to appeal (again) is not a decision subject to a right of appeal under s 158, or s 159 of the National Law. 5. The nurse has not been referred to a Performance Review Panel. Thus, ss 160 and 160A of the National Law have no application. 6. The nurse currently has unconditional registration. 1. It was for these reasons I dismissed the nurse's application. The non-publication order 1. No application was made for a non-publication order at the initial hearing before me. The nurse is clearly very emotionally distressed as a result of having to bring her original successful appeal against conditions imposed on her registration (heard by the Tribunal on 27 June 2018), and ongoing issues relating to delays in removal of the conditions from her registration. 2. I accept the proceedings overall have had an adverse financial and emotional impact on the nurse. That impact, on the evidence before me, has not been because of any improper action by the nurse. Thus, the circumstances are different to those where a practitioner's unsatisfactory professional conduct or professional misconduct are at the heart of the proceedings, and publication is to uphold the high standards of the profession, or to deter similar behaviour by other professionals. 3. The Tribunal acts in accordance with the principles of open justice and generally only makes a non-publication order to protect the privacy of third parties such as patients or otherwise in special or exceptional circumstances. When the nurse sought that her name not be published, Mr Martin on behalf of the Council consented to that application. 4. I find there are unusual circumstances in this matter that warrant the suppression of the nurse's name. Those circumstances include, principally, the emotional and financial distress the nurse has suffered, associated with the necessity for her first successful appeal, and other delays and errors, which I accept have occurred in having her unconditional registration recognised, and in the process leading to the performance assessment. Orders 1. The general law application filed 24 August 2018 is dismissed. 2. 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: 11 October 2018