Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Nkomo [2019] NSWCATOD 106 Hearing dates: 18 June 2019 Date of orders: 04 July 2019 Decision date: 04 July 2019 Jurisdiction: Occupational Division Before: J L O'Meally, Principal Member G Tolhurst, Senior Member J O'Baugh, Senior Member A Gray, General Member Decision: Application to review the order cancelling registration as a nurse, granted subject to conditions Catchwords: Registered nurse – Registration cancelled in earlier proceedings – Application for review of cancellation order – Application granted subject to conditions Legislation Cited: Health Practitioner Regulation National Law (NSW) 2009 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Thulani Nkomo (Applicant) Health Care Complaints Commission (Respondent) Representation: T Nkomo (Applicant in person) Health Care Complaints Commission File Number(s): 2014/20003; 2019/63045 Publication restriction: Pursuant to Schedule 5D Clause 4 of the Health Practitioner Regulation National Law (NSW) publication or disclosure of the name, address or any evidence or information which might lend to the identification of the name of the patient identified in these proceedings is prohibited. REASONS FOR DECISION INTRODUCTION 1. Following a hearing on 25 and 26 November 2013, the Tribunal, differently constituted, published its decision on 28 February 2014. In those proceedings (14/20003), the Health Care Complaints Commission (in these proceedings the respondent), sought orders against Thulani Nkomo (in these proceedings the applicant), who had been registered as a registered nurse by the Nurses and Midwives Board of New South Wales on 25 September 2009 and then was registered under the Health Practitioner Regulation National Law (NSW). The respondent alleged that the applicant was guilty of professional misconduct and unsatisfactory professional conduct as a result of inappropriate conduct and an inappropriate sexual relationship with a patient while he was working at Queanbeyan District Hospital. 2. The Tribunal found the applicant guilty of professional misconduct and unsatisfactory professional conduct and made the following orders: 1) The Tribunal reprimands Mr Nkomo in the strongest possible terms. 2) The Tribunal orders the cancellation of Mr Nkomo's registration. 3) The Tribunal orders that Mr Nkomo not be eligible to apply for review of that cancellation decision within 18 months from the date of this order. Any such application for review must be considered by the New South Wales Civil and Administrative Tribunal. 4) The Tribunal orders that Mr Nkomo is prohibited, for a period of 18 months, from providing the following health services on a public, private or volunteer basis: (a) Medical, hospital, nursing and midwifery services (including services as an assistant in nursing); and (b) Community health services 5)The Tribunal orders that Mr Nkomo pay the costs of the Health Care Complaints Commission. 6) The Tribunal makes a non‑publication order in relation to any information identifying the original complainant, referred to in these Reasons as Patient A. 1. The applicant now applies for review of the order cancelling his registration. 2. At the commencement of these proceedings the respondent took a neutral position. In the course of the hearing we were informed that it did not oppose the applicant's application, subject, however, to conditions. 3. The applicant gave evidence and was cross-examined. He freely admitted he had been guilty of professional misconduct and unsatisfactory professional conduct. He expressed remorse for his past conduct. 4. Notwithstanding some inconsistent responses he made in the investigation into the complaints which brought him before the Tribunal, we were impressed by his honesty and his acceptance of the findings and orders made in the earlier proceedings. We were impressed by the fact that he has enrolled in courses better to acquaint himself with the requirements of those who engage in the nursing profession. We were impressed by his insight into the consequences of his past misconduct and by his ready acceptance of the necessity to comply with the Code of Conduct for Nurses. We were impressed by the support he gives to his community in Darwin, where he now lives. We were impressed by his acceptance of the orders prepared by the respondent and of the conditions attached to those orders and by his willingness to consent to them. 5. We are confident that the likelihood of a repetition of past conduct is so remote as to be non-existent. We are confident that the applicant has learned from the experience which brought him before the Tribunal. 6. By consent we make the following orders: 1. The Application for reinstatement be granted, subject to the following conditions. 2. The Applicant is not to work in any mental health facility or dedicated mental health unit for a period of at least 12 months from the date he recommences employment as a registered nurse. Mentor 1. The applicant must engage in a mentoring relationship for a period of at least 12 months from the date he recommences employment as a registered nurse, with a registered nurse who does not have conditions on his/her practice. The registered nurse mentor or mentors must be approved by the Nursing and Midwifery Board of Australia ("the Board"). 2. The registrant must: 1. Provide the Board with the name, contact details and resume of the registered nurse who has agreed to act: 1. as mentor, and 2. as specified in the conditions. 1. Authorise the mentor: 1. to notify the Board of any breach of the conditions, including repeated failure to attend mentoring meetings; 2. to exchange information with the Board in relation to the applicant's compliance with the conditions, and 3. provide to the Board a copy of the conditions signed by the applicant and by the mentor indicating awareness of the conditions and authorisation. Mentoring Plan 1. The applicant must submit a mentoring plan developed in consultation with the mentor within three weeks of the mentor being approved by the Board. The plan must detail: 1. Specific objectives/outcomes of the mentoring relationship. The objectives/outcomes must relate to, but are not limited to, the following areas: relationship with patients, the impact of personal challenges (eg health or relationships) on practice, communication skills and decision making. 2. Specific education, professional development and learning activities planned to achieve the specified objectives/outcomes. 3. Timeframe/s for completion of identified activities and outcomes/objectives. 4. Evidence which will demonstrate objectives/outcomes have been met; 5. Schedule of meetings with the mentor. Mentor Report 1. The applicant must provide to the Board a mentoring report which is co‑signed by the approved mentor addressing: 1. progress towards or achievement of specified objectives/ outcomes; 2. any challenges/issues affecting progress and a plan to deal with these, and 3. any changes to practice resulting from mentoring/associated learning. 1. The mentoring report must be provided to the Board every three months for a period of at least 12 months. USUAL MONITORING Notice to Employers 1. The applicant must: 1. Provide the Board with the name and contact details of all nursing employers (including agency placements) prior to commencing work. 2. Authorise each nursing employer: 1. to notify the applicant of any breach of the conditions or unsafe practice, and 2. to exchange information with the Board related to compliance with the conditions. 1. Inform all current and any future employers of the conditions before commencing work/employment as a registered nurse. 2. Provide to the Board a copy of the conditions signed by the registrant and by, or on behalf of, each employer indicating awareness of the conditions and authorisation within one week of commencing work. Review by other States 1. Sections 125 to 127 of the Health Practitioner Regulation National Law 2009 are to apply should the practitioner's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. COSTS 1. No order as to costs. 1. Before leaving this case, we make this observation. In the course of giving evidence the applicant tendered his curriculum vitae. At least one member of the Tribunal thought it might be improved and be of greater assistance to potential future employers if all professional and academic qualifications were listed, reciting official title and the month and year of achievement and the title of the academic position. In respect of employment, the identity of employers and position in which he was employed should be mentioned. It might be helpful if a short description of the role and employment type, ie whether casual, part time or supernumerary, were also included. ********** 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: 04 July 2019