Health Care Complaints Commission v Nelson [2019] NSWCATOD 22

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Nelson [2019] NSWCATOD 22 Hearing dates: 11 December 2018 Date of orders: 12 February 2019 Decision date: 12 February 2019 Jurisdiction: Occupational Division Before: J Millbank, Senior Member D Beaumont, Senior Member R Roseby, Senior Member A Johnston, General Member Decision: (1) Pursuant to findings of unsatisfactory professional conduct and misconduct, under s149C(4)(a) of the National Law if the practitioner was still registered as an enrolled nurse the Tribunal would have cancelled his registration; (2) Pursuant to s149C(4)(b) of the National Law the practitioner is disqualified from being registered as an enrolled nurse or student nurse for a period of 2 years from the date of this decision; (3) Pursuant to s149C(4)(c) of the National Law, the Tribunal requires the Nursing and Midwifery Board to record the fact that had he been registered the Tribunal would have cancelled Mr Nelson's registration for a period of 2 years from the date of this decision; (4) Pursuant to s 149C(5A) of the National Law, the practitioner is prohibited from providing health services for a period of 2 years from the date of this decision; (5) The Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW); (6) A non-publication order under s 64(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of the Patient A and Person A listed in the schedule to the complaint. Catchwords: TRADES AND PROFESSIONS ─ nursing ─ mental health nursing ─ personal and sexual relationship with patient ─ failure to cease relationship when directed ─ deliberate deception in the course of investigation Legislation Cited: Health Practitioner Regulation National Law NSW 2009 (NSW) ('The National Law'); Health Care Complaints Act 1993 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169; Health Care Complaints Commission v BDX (No 2) [2015] NSWCATOD 135; Health Care Complaints Commission v CRF [2016] NSWCATOD 120; Health Care Complaints Commission v CSM [2016} NSWCATOD 125; Health Care Complaints Commission v CWY [2017] NSWCATOD 6; Health Care Complaints Commission v Fisher [2016] NSWCATOD 62; Health Care Complaints Commission v Von Marburg [2012] NSWMT 5; Health Care Complaints Commission v XC [2016] NSWCATOD 62 Texts Cited: Nursing and Midwifery Board of Australia, Code of Professional Conduct for Nurses in Australia (2015); NSW Department of Health Code of Conduct (2012) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Faron James Nelson (Respondent) Representation: Counsel: A Bonner (Applicant) E James (Respondent)