Health Care Complaints Commission v Morato

NCAT Occupational|2024-04-16

To advise the Nursing and Midwifery Council of NSW in writing at least seven (7) days prior to changing the nature or place of practice.

To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of commencing employment, that the practitioner has provided a copy of the Tribunal decision to his nursing employer/s.

To only be employed as a nurse in circumstances where the employer has agreed to notify the Nursing and Midwifery Council of NSW of any breach of the conditions or unsafe practice, and exchange information with the Council related to compliance with the conditions.

The respondent must not: [a.] Be the nurse in charge of any shift, ward, or unit. [b.] Have supervisory responsibilities for any other nurse. [c.] Work as the sole practitioner on any shift, ward, or unit.

The respondent is to practice under the indirect supervision of a Registered Nurse in accordance with the Nursing and Midwifery Council of NSW regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. [a.] The respondent is to nominate a supervisor for approval by the Nursing and Midwifery Council of NSW within 14 days of commencing work as specified by the Nursing and Midwifery Council of NSW. [b.] The respondent is to authorise the approved supervisor to provide written reports to the Nursing and Midwifery Council of NSW at monthly intervals, or as specified by the Nursing and Midwifery Council. [c.] The supervisor must: [i.] Not have any conditions on his/her registration. [ii.] Be on-site and available for reasonable access to provide advice if required by the respondent; and [iii.] Able to check in on the respondent during a shift to ensure the responsibilities delegated to the respondent are being met.

To nominate an experienced Registered Nurse to act as his professional mentor for approval by Nursing and Midwifery Council of NSW in accordance with the Nursing and Midwifery Council of NSW's Compliance Policy- Mentor (as varied from time to time) and as subsequently determined by the appropriate review body. [a.] The mentoring must comprise a minimum of 6 sessions with each session being of 1 hour duration occurring over a 3-month period. [b.] At each mentoring meeting the practitioner is to include discussion of the following: [i.] Any issues arising from his transition back to nursing, such as staffing levels and support and training from managers. [ii.] Appropriate handover procedures. [iii.] Appropriate record-keeping. [iv.] Incident response and management. [v.] Self-care. [c.] To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct or personal wellbeing. [d.] To authorise the Nursing and Midwifery Council of NSW to provide approved mentors with a copy of the decision which led to the imposition of this condition.

To satisfactorily complete within 12 months of [date of decision] education approved by the Nursing and Midwifery Council: [a.] The practitioner must provide evidence to the Nursing and Midwifery Council of NSW of enrolment in approved courses on the following topics: [i.] Registered Nurse Standards for Practice. [ii.] Code of Conduct for Nurses. [iii.] Falls Assessment and Management. [iv.] Recognition, assessment, and escalation of deterioration. [v.] Clinical patient assessment (incl. vital signs A-G, GCS neurovascular observations). [vi.] Communication and documentation. [b.] Within one month of completing an approved course, the practitioner is to provide documentary evidence of satisfactory completion to the Council. [c.] The practitioner is to be responsible for any costs incurred in meeting this condition.

To be responsible for the cost associated with complying with the conditions.

These conditions may be altered, varied, or removed by the Nursing and Midwifery Council of NSW and the Nursing and Midwifery Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW).

Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia."

Having regard to ss 3 and 3A of the National Law and the principle that disciplinary orders should not have more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law, we are satisfied that the Proposed Revised Conditions address the need for supervision and mentoring, ongoing CPD requirements in the areas of risk identified, and review conditions. If followed, they will enable the practitioner to practice as a nurse to the standards expected without risk to the community.
Apart from replacing the word "respondent" with "practitioner" (for consistency), and inserting the words "The practitioner is" at the commencement of each of paragraphs numbered [1], [2], [3], [6], [6c], [6[d], [7] and [8], the conditions agreed in substance between the parties to apply to the practitioner's registration, are set out in Schedule B to these Reasons.

Issue: Costs

Under clause 13(1) of Schedule 5D in the National Law, the Tribunal has the power to order the respondent to pay the Commission's costs. Under clause 13(3A) of Schedule 5D, the Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the applicable legal costs legislation or on any other basis.
The Court of Appeal has affirmed that, as a general rule, costs of proceedings before the Tribunal should follow the event (that is, the successful party is entitled to receive their costs), and costs are not intended to penalise an unsuccessful party: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44].
The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40] applied by the Tribunal in several decisions including HCCC v CSM [2016] NSWCATOD 125 at [98] and HCCC v Brush (No. 2) [2015] NSWCATOD 154 at [9].
As previously noted, the Commission no longer seeks an order that the respondent pays the Commission's costs. The respondent seeks an order that each party pays their own costs of these proceedings.
Nonetheless, without asserting that there has been disentitling conduct by the Commission, the respondent made submissions on a technical point concerning referral of the prosecution of a complaint under s 90(B)(1) of the Health Care Complaints Act 1993. On 30 October 2023, the definition of "disciplinary body" in that Act was amended with the effect that a complaint could be referred to either "a responsible tribunal" or "a Professional Standards Committee".
In written submissions in reply, the Commission asserted that, at the time that the determination to prosecute was made (27 October 2023), the Director of Proceedings did not have the power to refer a prosecution to any disciplinary body except the Tribunal.
Clearly, by the time the Complaint was signed (on 24 November 2023), the legislative amendments were in force such that the prosecution could have been referred to either this Tribunal or a Professional Standards Committee. The respondent acknowledged that the Director of Proceedings is not bound to consult within any specified timeframe regarding a determination to prosecute a complaint.
In our view, there was no 'disentitling conduct' on the Commission's part. Indeed, the respondent also acknowledged that the matter was brought before the Tribunal "unusually quickly". On that basis, there remains no issue impacting on our decision to order each party to pay their own costs of the proceedings.

ORDERS

Accordingly, we make the following orders: 1. Pursuant to s 149(A)(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimanded the practitioner for his improper conduct relating to the practice of nursing and his improper and unethical conduct in providing false and misleading information relating to the practice of nursing as particularised in Schedule A to these Reasons. 2. Pursuant to s 149(A)(1)(b) of the Health Practitioner Regulation National Law, the conditions set out in Schedule B to these Reasons are imposed on the practitioner's registration. 3. Each party is to pay their own costs of the proceedings.

    Schedule A-B (90813, pdf)

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: 13 September 2024

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Judgment (10 paragraphs)

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Cases Cited (24)