Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DPD v Nursing and Midwifery Council of NSW (No 3) [2018] NSWCATOD 192 Hearing dates: 26 October 2018 Date of orders: 03 December 2018 Decision date: 03 December 2018 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Decision: 1. The appeal filed on 2 October 2018 is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Each party is to pay their own costs of the proceedings. Catchwords: PROFESSONS AND TRADES – registered health practitioner – registered nurse – purported appeal under the Health Practitioner Regulation National Law – where there is no jurisdiction to appeal a Performance Assessment Report Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: DPD v Nursing and Midwifery Council of NSW [2018] NSWCATOD 170 DPD v Nursing and Midwifery Council of NSW No 2 [2018] NSWCATOD 144 Category: Procedural and other rulings Parties: DPD (Applicant) Nursing and Midwifery Council of NSW (Respondent) File Number(s): 2018/00300101 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 Health Practitioner Regulation National Law. REASONS FOR DECISION The appeal 1. Ms DPD is a registered nurse. She is self-represented. This is her fourth external appeal or application filed in the Tribunal in 2018. The present appeal was filed on 2 October 2018. The External Appeal form under para 2 "Decision Appealed" states "I attach a copy of the decision I am appealing". It further records "the date I was notified about the decision is 29 September 2018". 2. The nurse annexes, among other documents, a document headed "Performance Assessment Report" (the report) dated 20 September 2018 authored by assessors Gillian Taylor and Joan Lynch. The assessors are assessors who conducted a performance assessment of the nurse's skills at St Vincent's Hospital, Darlinghurst on 27 August 2018. The report 1. The report does not refer to how the assessors were appointed, or under what provision of the National Law they were tasked with conducting an assessment of the nurse. Rather, the report commences by noting that on 21 December 2017 the Nursing and Midwifery Council of NSW received a notification from the Executive Director of Nursing and Midwifery, Far West Local Health District about the nurse. The assessors record "The notification alleged that whilst employed at Broken Hill Hospital [the nurse] placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from standards". Para 2 of the assessment report sets out what is described as a "timeline" of events. 2. Para 5 of the report is headed "Assessments Formulated" and provides as follows: The NMBA Registered Nurse Standards for Practice (2016) provided the framework for formulating assessments, to allow the practitioner to demonstrate their performance relevant to the performance issue identified. In line with a competency-based approach to assessment, a range of assessment activities were developed. Please refer to Attachment 1 for the Assessment Plan. 1. The assessors note at para 6 that the assessment plan was discussed with the nurse who agreed to participate and complete all components of the proposed assessment schedule. 2. At the conclusion of their report, the assessors at para 8 set out two recommendations. First, it is recommended that the nurse undergo programs of education relating to medication knowledge and administration, ISBAR (or equivalent communication framework) and Adult Life Support. Secondly, it is recommended that the nurse be mentored by another registered nurse in relation to provision and management of care, clinical documentation and medication administration for a period of twelve months. Provisions of the National Law relied on by the nurse in support of her appeal 1. In her external appeal document the nurse states her participation in the assessment was involuntary, and that the assessment was incorrect and unfair. She purports to bring her appeal against the Nursing and Midwifery Council (the Council) under s 159, s 159B and s 159C, s 162 and 162A of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. I note that s 162 and s 162A are repealed provisions of the National Law. I also note that s 159 permits, amongst other matters, an appeal against a decision of a Council to impose conditions on a practitioner's registration or to refuse to remove conditions. Section 159B permits a practitioner, who has been subject of an action taken after a s 150 hearing, or a review of actions taken at a s150A hearing to bring an appeal on a point of law. Section 150C gives power to the Council to end a suspension or to alter or remove conditions imposed under that Division. None of these provisions permit an appeal against a referral by the Council of a practitioner to undergo a performance assessment or to challenge the manner in which the assessment is conducted. 3. It is relevant that I note the Council previously made orders under s 150 but those orders were set aside by the decision of a separately constituted Tribunal on appeal. Accordingly, there is no point of law arising out of a decision under s 150 that may be the subject of an appeal under s 159B of the National Law. 4. At the date of the hearing before me the Council had taken no steps to implement the recommendation of the assessors and the practitioner's registration was not subject to any conditions. However, the nurse is aggrieved at the assessors were tasked with carrying of the assessment based on what she asserts was flawed complaint. She describes the complaint as one founded on "hearsay evidence". Earlier appeals 1. In 2018 the delegates of the Council imposed conditions on the practitioner's registration under s 150 of the National Law. The nurse appealed against the Council's decision, and her appeal under s 159 of the National Law was upheld on 27 June 2018. The basis on which the appeal was successful is set out in the Tribunal's reasons as follows: When the proceedings commenced today, it became obvious that, in essence, the delegates had proceeded to determine the matter on the basis of information or material available to them which was not, as we have said, of relevant probative value. As the respondent to the appeal, the Nursing and Midwifery Council of New South Wales, has properly conceded through its counsel, that the relevant probative value and effect, was lacking, it is not necessary that we consider the material in any detail. We agree that the appeal should succeed because of this fundamental and unfortunate defect, in the manner in which the delegates of the Council, considered the matter. The second basis for appeal was a denial of natural justice because, in essence, the appellant was not given sufficient and adequate information concerning the factual matters upon which the delegates of the Council have sought to conduct their enquiry under s 150 of the National Law. Again, this is a matter which has been properly conceded on behalf of the respondent and we agree that it is appropriate that the appeal should succeed also on this basis. 1. Prior to the hearing and determination of this appeal the nurse was informed that the Council required her to attend a Performance Assessment. No assessment occurred because of the pending hearing of the appeal. 2. Following the nurse's successful appeal, she received further notification that the Council required her to undergo a performance assessment. The nurse brought an appeal lodged on 16 July 2018 in which she sought to challenge the Council's notification to attend a performance assessment on 27 August 2018. In reasons I delivered on 23 August 2018 I set out the relevant provisions of the Civil and Administrative Tribunal Act 2013 (NSW) which enabled me to hear and determine an application that the Tribunal had no jurisdiction to determine an appeal of the nature the nurse sought to agitate. I also set out the relevant appeal provisions of the National Law. Those reasons should be read in conjunction with these reasons. I concluded that the National Law does not provide for an appeal against a decision to refer a practitioner to a performance assessment. 3. In [49]–[54] I noted procedural fairness issues which could potentially taint any future decision of the Council based on the assessment report if there was not proper compliance with s 155A. 4. On 24 August 2018 the nurse filed a third application. She sought to object to "the unreasonable Performance Assessment request from the Nursing and Midwifery Council". At the time of hearing that application the nurse had not participated in the performance assessment. In my decision I endeavoured to explain to the nurse that her application was misconceived for the six reasons set out in [16]. I explained that if the nurse was referred to a Performance Standards Committee, and that Committee determined an outcome which the nurse believed to be improper, she had a right of appeal to the Tribunal. 5. On 2 October 2018 the nurse filed her fourth application. At the date of the hearing of the current application the assessors' report had not, so far as I am aware, been referred to a Performance Standards Committee, and no conditions had been imposed on the nurse's registration. Discussion and conclusions 1. The National Law does not provide for a right of appeal against recommendations of assessors tasked with conducting a performance assessment, nor does it provide for an appeal against the assessment process itself. I note the practitioner makes a number of very critical statements about the conditions under which the assessment was conducted, and an aspect of the assessors' conduct. This Tribunal has no jurisdiction to determine the veracity of the nurse's allegations at this time. The allegations may be matters to be properly raised in any appeal the practitioner may bring if conditions are placed on her registration as may her assertion that the complaint raised by the Far West Area Local Health Service was flawed. That however is not the present case. 2. If ultimately a Performance Standards Committee imposes conditions on the nurse's registration based on the assessors' recommendations the nurse may appeal against the conditions imposed. At present, as I have earlier explained in the earlier decisions, there are no conditions that may be the subject of an appeal. 3. I take this opportunity to note the assessors concluded: The assessors agree that [the nurse] is a capable practitioner; who demonstrated her experience as a registered nurse in the Intensive Care Unit; Although she did not meet some of the NMBA Registered Standards for Practice (2016)… 1. There being no jurisdiction to determine the nurse's application, it must be dismissed. ORDERS 1. The appeal filed on 2 October 2018 is dismissed under s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Each party is to pay their own costs of the proceedings. ********** 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: 03 December 2018