Health Care Complaints Commission v Murray

NCAT Occupational|2024-10-25

Background

Under Pt 7 of the Health Practitioner Regulation National Law (NSW) 2009 (NSW) (National Law), the respondent was registered at various times as a nurse, midwife and chiropractor. On 13 December 2023, the applicant lodged an application for disciplinary findings and orders against the respondent (the Complaint). The grounds for the Complaint are that the respondent "is not competent, has an impairment and is not a suitable person to hold registration under ss 144(c), (d) and (e) of the National Law". The applicant sought orders, including that the respondent's registrations be cancelled with a non-review period of three to five years; and that the respondent be prohibited from providing a health service for the same period.
After multiple failed attempts to serve the Complaint and relevant documents on the respondent, the applicant now seeks to withdraw the Complaint and seeks an order that the inquiry by the Tribunal be terminated. For the following reasons, the Tribunal has determined it is not in the public interest to conduct the inquiry and the inquiry is to be terminated.

Other circumstances

The registrations previously held by the respondent have each lapsed; the last in December 2022. The respondent is not currently registered under the National Law.

Relevant legislation and principles

In Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 and Health Care Complaints Commission v Pearson [2018] NSWCATOD 59 (Pearson), the Tribunal held that cl 12 of Sch 5D to the National Law is the relevant provision for terminating a disciplinary inquiry on the withdrawal of an application.
Clause 12 of Sch 5D National Law relevantly provides: 12 Certain complaints may not be heard [NSW] (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if - (a) any of the following circumstances apply - (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. (2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies. (3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal.
In Health Care Complaints Commission v Khan [2014] NSWCATOD 83 at [47]-[49], Boland ADCJ stated that the member determining such an application must meet the requirements of s 165B(2)(a) of the National Law. That section states: 165B Constitution of Tribunal for complaints, applications and appeals [NSW] … (2) Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by - (a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and …
That is satisfied here.
In determining this matter, the Tribunal must have the objectives and principles of the National Law, firmly in mind. In Puri v Medical Council of New South Wales [2024] NSWCATOD 87 at [17], the Tribunal outlined the paramount consideration of the national registration and accreditation scheme: "Of paramount consideration is the health and safety of the public: ss 3A and 3B of the National Law, Segal at [43]-[47], Lee v Health Care Complaints Commission [2012] NSWCA 80 at [21] per Barrett JA (with Macfarlan JA and Tobias AJA agreeing), Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at p 637; Hampshire v Health Care Complaints Commission [2021] NSWCA 283 at [78] per Gleeson JA (with Meagher JA agreeing)."
In Puri v Medical Council of New South Wales (No 2) [2024] NSWCATOD 122, the Tribunal said at [6]-[7]: "[6] As with any matter the Tribunal deals with under the National Law, the Civil and Administrative Tribunal 2013 (NSW) (NCAT Act) provides that the Tribunal is under a duty to observe the objectives and principles of the National Law: cl 9(1) of Sch 5 of the NCAT Act. This is in addition to s 36(5) of the NCAT Act which provides that the Tribunal is not to exercise any function conferred or imposed under enabling legislation, inconsistently with the objects or principles of that legislation. [7] The main guiding principle of the National Law is that the protection of the health and safety of the public must be the paramount consideration: National Law, s 3A(1). As explained in the Interlocutory Decision (at [19]), this includes protecting the integrity of the health system. Also relevant is that the scheme is to operate in a fair manner: National Law, s 3A(2)(a)."
Section 3A of the National Law provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that - (i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and (ii) contributes to the elimination of racism in the provision of health services; …
Section 36(5) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states: 36 Guiding principle to be applied to practice and procedure … (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
Also relevant, the term "health service" (as relied on by the applicant) is defined in s 4 of the Health Care Complaints Act 1993 (NSW), as follows: health service includes the following services, whether provided as public or private services - (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act.

Submissions

The applicant seeks to withdraw the Complaint. In these circumstances, the Tribunal may terminate the inquiry if the Tribunal is satisfied that it is in the public interest to do so.
The applicant submitted that the following factors favour the position that it is in the public interest to terminate the inquiry: 1. The applicant would not be barred from reinstating these proceedings in the future if circumstances change, as there has been no determination on the merits. In support, the applicant relies on Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508; and Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) (2018) 265 FCR 290; [2018] FCAFC 132. 2. All three of the respondent's registrations (nursing, midwifery and chiropractic) have expired. 3. The respondent is not currently registered under the National Law. 4. The matter has already been subject to four direction hearings, costing the public and the applicant.
The applicant cited no countervailing factors.
In Health Care Complaints Commission v Singh [2016] NSWCATOD 85 (Singh), Boland ADCJ relied on just such factors to determine that it was in the public interest to terminate the inquiry; likewise, the Tribunal in Pearson at [18].
The applicant also submitted that the respondent cannot currently practise as a nurse, midwife or chiropractor. In the event that the respondent sought to reapply for registration with the Australian Health Practitioner Regulation Agency (Ahpra), then Ahpra could alert the applicant to the respondent's intentions and whereabouts.
The applicant also noted that the Tribunal in Singh considered whether, instead of terminating the inquiry, to simply adjourn the proceedings sine die, but the Tribunal concluded that that would not be appropriate.

Determination

The attempts at service have been genuine and reasonable, but fruitless.
The principles for substituted service were recently considered by the Tribunal in Health Care Complaints Commission v Rayamajhi [2024] NSWCATOD 107 (Rayamajhi) at [26]: "In order to make an order for substituted service, it must be demonstrated that service, by the stipulated means, is impractical. Further, the Tribunal must be satisfied that the method of substituted service will be efficacious. It is not necessary to demonstrate that service is otherwise impossible. See for instance Health Care Complaints Commission v Ghosh [2020] NSWCATOD 7 and the authorities there cited (Alstom Limited v Sirakas [2010] NSWSC 669 at [40]-[42] per Palmer J; and Electrolux Home Products Pty Ltd v Delap Impex Ltd [2013] FCA 600 at [76] and [78] per Katzmann J). As noted by Boland ADCJ in Health Care Complaints Commission v Ghosh [2020] NSWCATOD 7 at [16]: 'There are numerous authorities dealing with the principles to be applied when making an order for substituted service. The authorities do not support the making of an order for substituted service for mere convenience, rather it must be demonstrated that it is impractical to effect service. In all cases, the practicality or impracticality of personal service will be coloured by the degree to which the Court can be assured that substituted service will efficaciously bring the proceedings to the proper notice of the defendant. The more likely it is that substituted service will not be efficacious, the more difficult it will be to persuade the Court to dispense with personal service.'"
On the current information, there is no basis upon which an order for effective substituted service could be made.
The position, therefore, is that the respondent has not been served with the Complaint and supporting documents, her whereabouts is currently unknown and further, there is no reasonable basis to infer that an order for substituted service would likely be efficacious.
The respondent has no notice of these proceedings. The applicant, fairly, has not suggested that the Tribunal should nevertheless proceed to finally determine the proceedings.
The paramount consideration is the health and safety of the public. On one hand, the health and safety of the public is protected in that the respondent is no longer registered. On the other hand, the applicant originally sought an order that the respondent be prohibited from providing a health service. As the definition of "health service" (extracted above) demonstrates, this has a wider reach than merely cancelling a registration. To terminate the inquiry would mean this form of protection to the public, is not granted (assuming, without deciding, it to have been warranted). Nevertheless, there is no basis to infer that the respondent is likely to try to practise a health service. None was suggested.
In addition to the paramount consideration, the national registration and accreditation scheme under the National Law should be fair and transparent: National Law, s 3A(2)(a). This accords with the Tribunal's own mandate to afford natural justice: NCAT Act, s 38(2). The only real choices that accord with these principles would be to continue to make attempts to locate the respondent and further adjourn the proceedings, or alternatively, to terminate the inquiry.
Here, the health and safety of the public is safeguarded in that the respondent is no longer registered under the National Law and cannot practise as a nurse, midwife or chiropractor. This serves the public interest. Further, there is a public interest in not wasting public resources in further, likely futile, attempts to locate the respondent.
These factors give the Tribunal sufficient grounds to be satisfied that it is in the public interest to terminate the inquiry.
Ultimately, whether the termination of the inquiry would finally and for all time conclude this matter may depend on the circumstances. Even accepting the general rule that proceedings determined without a hearing on the merits might be "re-enlivened", there may be other considerations at play. One factor might be the length of the delay, and whether any future inquiry might be oppressive as a result. See for instance (albeit in a very different forum and circumstances) where there was a stay of proceedings on the grounds of abuse of process: UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [57]-[59].
The applicant submitted that, as a result of factors (2) to (4) (referred to at [19] above), it is not necessary for the Tribunal to determine whether the applicant may indeed bring fresh proceedings, in the event of a change of circumstances.
The Tribunal accepts this submission. The other factors are indeed adequate.
For the foregoing reasons, the inquiry before the Tribunal should be terminated. This is sufficient to bring an end to the proceedings. Nevertheless, to the extent necessary and for abundant clarity, the proceedings should be dismissed under s 55(1)(a) of the NCAT Act.

Orders

The Tribunal orders: 1. To the extent necessary, leave to withdraw the Complaint is granted. 2. The inquiry is terminated pursuant to cl 12 of Sch 5D to the Health Practitioner Regulation National Law (NSW) 2009 (NSW). 3. There be no order as to costs. 4. The matter is otherwise dismissed pursuant to s 55(1)(a) of the Civil and Administrative Act 2013 (NSW).

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: 01 November 2024

Civil and Administrative Act 2013(NSW)

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