Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v CSM [2019] NSWCATOD 41 Hearing dates: 25 February 2019 Date of orders: 21 March 2019 Decision date: 21 March 2019 Jurisdiction: Occupational Division Before: A Britton, Principal Member S Kennedy, Professional Member A Flanagan, Professional Member B Smith, General Member Decision: (1) Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), the Tribunal decides that if CSM were still registered as a nurse, the Tribunal would have cancelled his registration. (2) Pursuant to s 149C(4)(b) of the National Law, CSM is subject to a 12 month disqualification period commencing 5 October 2016. (3) Pursuant to s 149C(4)(b) of the National Law, the Nursing and Midwifery Board of Australia is required to record the fact that the Tribunal would have cancelled CSM's registration in the National Register kept by the Board. Catchwords: ADMINISTRATIVE LAW — health practitioner — appropriate disciplinary orders where person is found guilty of professional misconduct PRACTICE AND PROCEDURE — relationship between an order made under s 149C(4)(b) and a non-publication order made under cl 7 of Sch 5D of the National Law Legislation Cited: Health Practitioner Regulation National Law (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Cases Cited: Health Care Complaints Commission v CSM [2016] NSWCATOD 125 Health Care Complaints Commission v CSM [2018] NSWSC 902 Health Care Complaints Commission v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) CSM (Respondent) Representation: Counsel: N Evans (Applicant) Solicitors: Health Care Complaints Commission (Applicant) CSM (Respondent in person) File Number(s): 1620050 Publication restriction: Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW), the publication or disclosure of the name, address or any information which might tend to or lead to the identification of Patient A and CSM, is prohibited. REASONS FOR DECISION 1. In 2016, following an inquiry into a complaint referred by the Health Care Complaints Commission (the Commission), we found former registered nurse, CSM, guilty of "professional misconduct" as defined by s 139E of the Health Practitioner Regulation National Law (NSW) (the National Law): Health Care Complaints Commission v CSM [2016] NSWCATOD 125 (the 2016 Decision). CSM admitted the conduct the subject of the complaint: commencing an intimate and sexual relationship with a female patient in his care while working in a mental health facility. In addition, he conceded that that conduct amounted to professional misconduct. 2. Having decided that CSM's conduct amounted to professional misconduct, we decided under s 149C(4)(a) of the National Law, that if CSM were still registered as a nurse we would have exercised the power to cancel his registration. In addition, we made orders prohibiting the disclosure and publication of CSM's name and the name of the female patient the subject of the complaint (Patient A). 3. An appeal brought by the Commission against the 2016 Decision was allowed in part: Health Care Complaints Commission v CSM [2018] NSWSC 902, Lonergan J. The Supreme Court set aside the order made by the Tribunal under s 149C(4)(a) of the National Law and remitted the matter to the Tribunal for further hearing on the issue of what protective orders should be made. The Court refused to grant leave to the Commission to appeal the decision to make a non-publication order in respect of CSM's name. Protective orders sought by the Commission 1. In addition to the original order made by the Tribunal under s 149C(4)(a) of the National Law — that if CSM were still registered the Tribunal would have cancelled CSM's registration — the Commission seeks the following orders: 1. That CSM be disqualified from being registered for a period of one to two years: s 149C(4)(b). 2. That the National Board be required to record the fact that if CSM were still registered, the Tribunal would have cancelled his registration: s 149C(4)(c). 1. In the original proceedings, the Commission urged the Tribunal to make a prohibition order under s 149C(5) of the National Law. The Commission no longer seeks a prohibition order. Statutory framework 1. In NSW, where the Tribunal finds the subject matter of a complaint against a practitioner proven, or the practitioner admits to it in writing, the Tribunal may exercise any of the disciplinary powers conferred by Subdivision 6 of Division 3 of Part 8 of the National Law. Where the Tribunal finds a practitioner guilty of professional misconduct the powers available to the Tribunal include the power to suspend or cancel the practitioner's registration. Where, as in this case, the person is no longer registered as a health practitioner, the Tribunal may among other things, decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration: s 149C(4). That provision provides: 149C TRIBUNAL MAY SUSPEND OR CANCEL REGISTRATION IN CERTAIN CASES [NSW] … (4) If the person is no longer registered, the Tribunal may-- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. … If CSM were still registered as a nurse would it be appropriate to cancel his registration? 1. In the 2016 Decision, we concluded that the proven conduct was "sufficiently serious" to justify the cancellation of CSM's registration: at [56]. 2. In these proceedings, neither party challenged that conclusion nor opposed a decision again being made under s 149C(4)(a) of the National Law. In our view, having regard to the serious nature of the proven conduct, the decision to make an order under s 149C(4)(a) of the National Law, remains appropriate. We make that order. Should an order be made under s 149C(4)(b) of the National Law? 1. The Commission submits that it is appropriate that the Tribunal exercise the power to make a disqualification order under s 149C(4)(b) of the National Law for the following reasons. First, a disqualification order would serve to protect the health and safety of the public by triggering the operation of s 149E(1), thereby ensuring that if, in the future, CSM decides to apply to be re-registered as a nurse, he would be required to obtain a reinstatement order from the "appropriate review body". Unless otherwise ordered, the Tribunal is the appropriate review body: s 163. 2. Section 149E(1) of the National Law applies to a person whose registration as a health practitioner has been cancelled by the Tribunal and to a person who is the subject of a disqualification decision made by the Tribunal. While a decision under s 149C(4)(b) to disqualify a person from being registered enlivens s 149E(1), a decision under s 149C(4)(a) does not do so. Section 149E(1) states: 149E EFFECT OF CANCELLATION AND DISQUALIFICATION DECISIONS OF TRIBUNAL [NSW] (1) Despite any other provision of this Law, each of the following persons cannot make an application for registration as a health practitioner unless the Tribunal has made a reinstatement order under section 163B with respect to the person-- (a) a person whose registration as such a health practitioner has been cancelled by the Tribunal under this Law; (b) a person who has been disqualified from being registered as such a health practitioner by the Tribunal under this Law. 1. Second, citing Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the Commission contends that a disqualification order would serve to deter the general body of health practitioners from engaging in similar misconduct by denouncing CSM's misconduct. 2. CSM argues that a disqualification order would have no practical effect because he has no intention of returning to nursing or an associated field. He claims that he will "never work as a nurse again, and even if I could, doubt whether anyone employ me". He made the same claim in the 2016 proceedings. Nonetheless, he does not oppose a disqualification order being made. Consideration 1. Five years have now passed since the misconduct which gave rise to the complaint occurred. CSM continues to disavow any intention of returning to nursing. We remain of the view that it is unlikely that CSM will seek to return to nursing, but accept that it is possible that CSM might change his mind: 2016 Decision at [65]. Without a disqualification order it would be open to CSM to apply to the Nursing and Midwifery Board of Australia (the Board) for registration without first obtaining a reinstatement order from the appropriate review body. To grant registration, the Board must be satisfied that CSM meets the requirements for registration, which include being a suitable person to hold registration, relevantly, being a fit and proper person for registration in the profession of nursing: ss 52(1)(c) and 55(1)(h) of the National Law. Having been found guilty of professional misconduct, it is not a forgone conclusion that the Board would find CSM to be a suitable person to hold registration. 2. Nonetheless, we accept the submission made by the Commission that requiring CSM to obtain a reinstatement order before becoming eligible to apply for reregistration, provides an additional safeguard. For that reason we have decided to make a disqualification order for a period of 12 months. 3. As agreed by the Commission, CSM should not be prejudiced by the delay in finalising the form of protective orders caused by the appeal. For that reason we have decided that the period of disqualification should commence on the date of the original decision, that being 5 October 2016. Should an order be made under s 149C(4)(c) of the National Law? 1. The Commission seeks an order under s 149C(4)(c) to require the Board to record the fact that the Tribunal would have cancelled CSM's registration in the national register kept by the Board. CSM does not oppose that proposed order, provided it does not operate to undermine the non-publication order by permitting the details of the conduct the subject of the complaint, specifically his relationship with Patient A, to be recorded in the register. In the 2016 proceedings, CSM asserted that unless a non-publication order was made in respect of him: (i) there was a risk that Patient A might be identified, (ii) his wife and school age children would suffer acute embarrassment and shame, (iii) his marriage would probably come to an end, and (iv) his already precarious mental health would be likely to deteriorate further: 2016 Decision at [75]. 2. At a directions hearing in January 2019, the Tribunal raised with the parties the relationship between the proposed order and the non-publication order made by the Tribunal on 27 June 2016. That order states: Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW), the disclosure of the respondent's name is restricted to the parties and their representative, and to any other person or bodies where disclosure is necessary for the effective implementation and administration of the orders made in these proceedings. 1. An order to similar effect was made in respect of Patient A on 1 April 2016. The Tribunal confirmed each order in the substantive decision handed down on 5 October 2016: 2016 Decision at [88]-[94]. 2. As noted, the Supreme Court refused to grant leave to the Commission to appeal the non-publication order made in respect of CSM. In addition, the Court made an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), prohibiting the publication of the names of CSM and Patient A, and any information tending to reveal their identity, except as may be necessary for the proper conduct of the proceedings. 3. The question of whether the order sought by the Commission under s 149C(4)(c) is compatible with the non-publication order, requires consideration of Division 3 of Part 10 of the National Law, which details the obligations of the Australian Health Practitioner Regulation Agency (AHPRA) and the Board (and the other National Boards listed in s 222) in respect of keeping registers of health practitioners. 4. Contained in Division 3 of Part 10, s 222(1) requires AHPRA and the relevant Board to keep a public national register for each health profession. That register must include the names of: (a) all health practitioners whose registration has been cancelled by an adjudication body; and (b) all persons subject to a prohibition order: s 222(4). (A prohibition order prohibits a cancelled or suspended practitioner, or a person the subject of an order under s 149C(4)(a), from providing "health services": ss 149C(5), 149C(5A)). CSM is not subject to a prohibition order. 5. Section 227 prescribes the types of information that must be included in the public registers required to be kept by ss 222 and 223(b). (Section 223(b) is the equivalent of s 222 and applies to specialist health practitioners.) Section 227 states: 227 REGISTER ABOUT FORMER REGISTERED HEALTH PRACTITIONERS A register kept by a National Board under section 222 or 223(b) must include the following-- (a) for each health practitioner whose registration was cancelled by an adjudication body-- (i) the fact the practitioner's registration was cancelled by an adjudication body; and (ii) the grounds on which the practitioner's registration was cancelled; and (iii) if the adjudication body's hearing was open to the public, details of the conduct that formed the basis of the adjudication; (b) for each person subject to a prohibition order, a copy of the order. 1. AHPRA's website https://www.ahpra.gov.au/, carries the public national register required to be kept by the National Law listing the names of cancelled and prohibited health practitioners. In addition, the register includes the names of former health practitioners who are the subject of an order under s 149C(4)(c). Entered against each of the former practitioners listed in the register are: the person's name, previous registration number, registration status, previous principal place of practice and the date their registration was cancelled or the order was made under s 149(C)(4)(a) (See for example, cancelled practitioner no MED0001180022). However, in addition to that information, against the name of some of the people listed in the register is a summary of the initiating complaint and the decision made by the Tribunal which resulted in the cancellation/prohibition order, or the order made under s 149C(4)(c). In addition, that entry carries a link to NSW Caselaw and the reasons for the subject decision. See for example, former practitioner registration no NMW0001660541, who is the subject of an order made under s 149C(4)(c) of the National Law and former practitioner registration no MED0001159224, who is the subject of a cancellation order made under s 149C(1). We have not been provided with any information which might explain why the register carries detailed information about some of the people listed in the register and not others. 2. The Commission contends that given the existence of the non-publication order, if an order were to be made under s 149C(4)(c) in respect of CSM, the Board and AHPRA would not be permitted to enter into the register information about the grounds on which CSM's registration was cancelled. The Commission points out that the requirements in s 227, to include in the register the grounds on which the practitioner's registration was cancelled and the details of the conduct that formed the basis of the adjudication (if the proceedings were open to the public), applies only to cancelled practitioners. Those requirements do not apply to persons who are the subject of orders made under ss 149C(4)(a) and 149C(4)(c). 3. A review of the register reveals that while the requirements imposed by s 227(a)(ii) and (iii) to include in the register the grounds on which the practitioner's registration was cancelled and the details of the conduct that formed the basis of the adjudication, apply only in respect of practitioners whose registration has been cancelled, the register sometimes carries that information in respect of former practitioners who are the subject of orders under s 149C(4)(c). See for example, former practitioner registration no NMW0001660541. 4. The terms of the non-publication order permit CSM's name to be disclosed to "any other person or bodies where disclosure is necessary for the effective implementation and administration of the orders made in these proceedings". In our view, the terms of that order are sufficiently broad to permit the Board and AHPRA to include in the register CSM's name, previous registration number, registration status and the date the orders under s 149C(4) were made. However, we accept the Commission's submission that it would not permit the Board and AHPRA to include in the register information of the type described in pars (ii) and (iii) of s 227(a) because that would not be necessary for the effective implementation and administration of the disciplinary orders made in respect of CSM. 5. In our view it is appropriate that CSM's name be included in the register to enable any future employer or regulatory body to verify his registration status. For the reasons given, the making of an order under s 149C(4)(c) does not offend the non-publication order. Therefore we have decided to make an order under s 149C(4)(c). Orders 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law) that if CSM were still registered as a nurse practitioner, the Tribunal would have cancelled his registration. 2. Pursuant to s 149C(4)(b) of the National Law, CSM is subject to a 12 month disqualification period commencing 5 October 2016. 3. Pursuant to s 149C(4)(c) of the National Law, the Nursing and Midwifery Board of Australia is required to record the fact that the Tribunal would have cancelled CSM's registration in the national register kept by the Board. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 21 March 2019