Burggraaff v Health Care Complaints Commission

NCAT Occupational|2016-06-29

Introduction

Mr Keith Burggraaff (the practitioner) is a registered nurse who was subject of disciplinary proceedings in the former Nursing and Midwifery Tribunal of NSW (the former Tribunal). The former Tribunal found the practitioner was guilty of unsatisfactory professional conduct and professional misconduct as defined in the Health Practitioner Regulation National Law (the National Law). Consequent on its findings, the former Tribunal ordered, on 1 June 2011, that the practitioner should be reprimanded, that conditions should be placed on his registration, and that he should pay the costs of the Health Care Complaints Commission.
The former Tribunal did not state in its orders an appropriate review body to review the conditions it imposed. By default, therefore, unless otherwise ordered by the List Manager, the default position is that any review of the conditions must be conducted by the NSW Civil and Administrative Tribunal (the Tribunal).
On 4 March 2016 the practitioner lodged an application for review of the conditions on his registration with the Tribunal. That application was listed before me on 15 April 2016. On that occasion, which was before recent amendments to the National Law came into effect on the proclamation of the Health Practitioner Regulation National Law (NSW) Amendment (Review) Act 2016 (NSW), I granted leave to the Health Care Complaints Commission (the HCCC) to apply to be joined as a party to the proceedings. I subsequently made an order joining the HCCC as a party. I also directed that any application to consider whether the Council should be the appropriate review body could be lodged by 22 April 2016, and if lodged dealt, with "on the papers" as provided in the Civil and Administrative Tribunal Act 2013 (NSW) (see s 50 (4)). Mr Flintoft, solicitor, who appeared for the HCCC on that occasion did not object to nor oppose the orders made.
On 18 April 2016 the practitioner lodged an application seeking orders under s 163(1)(a1) of the National Law, namely that the Council be nominated as the appropriate review body to review the conditions on his registration.

The former Tribunal proceedings and conditions imposed on the practitioner's registration.

The former Tribunal found that the practitioner had, during a period of time he worked at Cessnock Hospital, on "numerous occasions between 15 July 2008 and 13 November 2008, accessed patient records without authorisation to do so and in breach of the NSW Health Privacy Policy Directive 2005-593 and the NSW Health Code of Conduct". The former Tribunal did not, however, find all occasions of unauthorised access asserted by the HCCC were proved.
Although the Tribunal found professional misconduct proved, it said that the conduct was "at a relatively low level of seriousness".
The Tribunal imposed two conditions on the practitioner's registration: 1. No later than seven days from the date of these orders, [the practitioner] is to provide his current employer with a copy of the Tribunal's orders and reasons for decision in this matter. 2. No later than four weeks from the date of these orders, [the practitioner] is to provide to the Nursing and Midwifery Council of NSW a copy of a set of procedures, drafted in consultation with and endorsed by [the practitioner's] current employer, to be implemented to ensure the maintenance of confidentiality of patients to whose records [the practitioner] has access.
The practitioner in his grounds for review states: The conditions were discharged in respect of [the practitioner's] "current employer' (as at the date of the Commission's decision) and the Orders did not make any specification in respect of employers other than the employer "current" at the time of the orders. The practitioner wishes to obtain employment closer to home as he is currently working in the Northern Territory, and the old conditions still registered against his name are making his employment applications unsuccessful.
The application goes on to note that the practitioner's medical condition is being monitored by his general practitioner. He states that his medical practitioner is prescribing his medication and his "medical condition" is under control. The practitioner asserts his employment in the Northern Territory is sporadic, that he has been financially reliant on his wife's superannuation and that he requires full time employment which "a difficult task" due to the out-dated conditions on his registration.
In his grounds in support of this application the practitioner states: The conditions imposed by the Nurses and Midwives Tribunal have been discharged by the Applicant and it is submitted that there is no need for the parties to incur the costs and take up the NSW Civil and Administrative Tribunal's time to proceed to a full hearing. It is submitted this matter is administrative in nature and more appropriately dealt with by the Nursing and Midwifery Council.

Procedural Fairness

It was not clear on the material before me whether the application under s 163(1)(a1) had been served on the HCCC. However, Mr Flintoft appeared for the HCCC at the directions hearing and did not make any submissions opposing an application being lodged with the Tribunal to determine the appropriate review body and for that application to be dealt with on the papers. As some time has elapsed since the directions hearing, and noting no material has been lodged by the HCCC, I infer that the HCCC does not wish to file material in opposition to the application. But as I cannot be sure this is the case, and absent evidence of service on the HCCC, I propose to grant leave to the HCCC to apply to set aside my decision in this matter on 7 days' notice in writing to the practitioner and the Tribunal.
I note that affording procedural fairness in applications such as the present one is discussed in Arkita McAuley v Nursing and Midfiery Council of New South Wales [2013] NSWNMT 13.

Relevant statutory provisions and principles to be applied in determining this application.

The principles or more correctly "guidelines" applicable to an application under s 163 (1) (a1) are set out in the recent decision in Re Application of Guy Kingsley Herron [2016] NSWCATOD 59 at [23]-[27] The decision relevantly notes: Section 163 of the National Law sets out the appropriate review body to conduct a review of conditions imposed on a health practitioner's registration. The appropriate review body, if nominated in a "relevant order" may be the Council for the relevant profession, the National Board or the Tribunal. Subject to s 163 (1) (a1) if no nomination is made in the orders the default position is that the review body is Tribunal. However, if the practitioner's registration has been cancelled, s 149E mandates that any review under s 163B must be by the Tribunal. Section 163 (1) (a1), a remedial provision, was inserted into the National Law in 2012. It permits "on application by the person the subject of the review, or the Commission [the Health Care Complaints Commission] the Tribunal List Manager has power to determine whether the review should be conducted by a Council, a National Board or the Tribunal. Section 163A enables a person to apply to the appropriate review body for a review of a "relevant order". Relevant order includes "an order that conditions be imposed on the person's registration in a health profession." In this instance the practitioner is entitled to apply for a review to this Tribunal (as the successor of the Medical Tribunal of NSW) for a review of the conditions on his registration. Section 163B provides the appropriate review body may conduct an inquiry into the review and may, amongst other matters, "alter or remove the conditions to which a person's registration is subject, including by imposing new conditions". Section 163C sets out the matters to be taken into account when conducting the inquiry into the review. Those factors are not directly relevant to the present application.

Guidelines applied in earlier decisions made under Section 163(1)(a1).

In Herron, I set out in a summary form a non-exhaustive list of factors that may be taken into account in determining an application such as the present one. I now repeat those factors: They include:

the requirement to consider the objects in s 3 and s 3A of the National Law.
the seriousness of the conduct as found by the earlier Tribunal that led to the imposition of the conditions;
whether it is necessary for the proper conduct of the inquiry that the practitioner be subject to cross-examination in a Tribunal hearing context;
whether the review body would be aided by documents produced under Summons, which could demonstrate compliance or non-compliance with conditions, or be provide relevant records in respect of the practitioner's health, either physical or psychological;
the nature of the conditions, and evidence of the practitioner's compliance with the conditions;
any issues relating to the monitoring of the conditions, and the length of monitoring that has occurred,
the experience and expertise of the Councils in monitoring conditions;
the timeliness and costs associated with a review before a fully constituted Tribunal of four persons compared a review by the Council or Board.

In this case I would add to the considerations the difficulties associated with the drafting and interpretation of condition 2. That condition, on its face, was satisfied, and became "spent" once the practitioner provided the Council a draft copy of a set of procedures to be implemented to ensure the maintenance of confidentiality of patients to whose records the practitioner had access. The condition did not mandate that the practitioner adhere to the procedures, or that they should remain in place for any particular period of time. Nor did the condition on its face bind the practitioner in respect of any other employer with whom he may obtain employment from time to time. On one interpretation it may be inferred that the protocol to be established in consultation with the practitioner's then current employer is to be applied in any situation where the practitioner is employed as a registered nurse. That however appears to me to be unlikely, as an appropriate protocol would be likely to differ depending upon the State or Territory in which the practitioner may be employed.
The problem that arises in this case is that, notwithstanding there has been prima facie compliance with the condition imposed by the Tribunal, the removal from the public register may only occur on a review application as the Australian Health Practitioner Regulation Agency does not automatically remove "spent" conditions but only acts on the order of the appropriate review body. This is the case, unless the adjudication body has, when imposing the condition, invoked Subdivision 2 Division 11 of Part 6 of the National Law. When the relevant provisions of Part 6 are engaged, an application may be made to the National Board. That was not the circumstance in this case.

Discussion and conclusions

The drafting of the conditions, particularly condition 2, imposed by the former Tribunal have created unfortunate uncertainty. After the practitioner provided the Council with a plan, he was not bound pursuant to a further condition to comply with the plan. If implementation of the plan was to be inferred by the condition it did not have a start or conclusion date, and specifically only referred to the practitioner's "current employer" not future employers. No review or mechanism for removal of the condition was contained in the orders.
It is the practitioner's untested assertion that he has fully complied with condition 2 and it is otiose. I accept it is likely he has done so or he would not bring this application. That is an evidentiary matter that can be examined by either the Council or the Tribunal.
Costs are a significant factor in my determination. It would be contrary to the provisions of s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) to require this matter to be agitated before a full Tribunal as constituted under s 165B of the National Law. That process would incur not insubstantial costs for the practitioner, the HCCC and the public to determine a matter of short compass.
Significantly, members of the Council have the relevant experience and expertise to determine whether the condition should be removed from the practitioner's registration, or whether the condition should be varied to make it workable and enforceable.
I also accept that it is likely the review will be able to be conducted in a shorter time frame than if it is necessary to conduct a further directions hearing and fix dates before the Tribunal. For these reasons, the application to nominate the Council as the appropriate review body is granted.

ORDERS 1. ORDER that pursuant to s 163(1)(a1) the Nursing and Midwifery Council of NSW is the appropriate review body to review the conditions on the registration of the applicant. 2. ORDER that on application made in writing to the Registrar and notified to the applicant within 7 days of the making of this decision the Health Care Complaints Commission may seek to set aside or vary Order 1 of these orders.

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: 29 June 2016

Amendment (Review) Act 2016(NSW)

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