Health Practitioner Regulation National Law 2009 (NSW) ('The National Law') s 3A
s 149C(1)(b)
Source
Original judgment source is linked above.
Catchwords
s 64Sch 5 cl 9Health Practitioner Regulation National Law 2009 (NSW) ('The National Law') s 3As 149C(1)(b)s 149C(7)s 149C(5)s 149C(6)s 165Bcl 13(1) Sch 5DHealth Practitioner Regulation National Law 2009 (Qld) s 154Health Practitioner Regulation National Law 2010 (ACT) s 154Public Health Act 2010 (NSW) s 102(3)Cases Cited: Chowdhury v HCCC [201] NSWCA 56Gad v HCCC [2002] NSWCA 111HCCC v Do [2014] NSWCA 307HCCC v Della Bruna [2014] NSWCATOD 31HCCC v Epstein (No 2) [2015] NSWCATOD 36
HCCC v Fraser [2014] NSWCATOD 29HCCC v Jamieson [2014] NSWCATOD 56HCCC v Abou Hatoum & Anor [2004] NSWCA 30HCCC v Khalsa (No 2) [2014] NSWCATOD 47HCCC v King [2013] NSWMT 9
HCCC v Lau [2011] NSWPHT 2
HCCC v Litchfield (1997) 41 NSWLR 630
HCCC v Philipiah [2013] NSWCA 342
HCCC v Sheldrick [2016] NSWCATOD 105
Kioa v West [1985] HCA 81
King v HCCC [2011] NSWCA 353
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Re MIMIA
Ex parte Lam [2003] HCA 6
Prakash v HCCC [2006] NSWCA 153
Qasim v HCCC [2015] NSWCA 282
Sabag v HCCC [2001] NSWCA 411
Sudath v HCCC [2012] NSWCA 171
Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193
Judgment (13 paragraphs)
[1]
Prakash v HCCC [2006] NSWCA 153;
Qasim v HCCC [2015] NSWCA 282;
Sabag v HCCC [2001] NSWCA 411
Sudath v HCCC [2012] NSWCA 171;
Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29.
Category: Principal judgment
Parties: Health Care Complaints Commission (HCCC) (Applicant)
Machelle Sheldrick (Respondent)
Representation: Counsel:
H Bennett (Applicant - Hearing)
V Hartstein (Applicant - Further submissions)
L Andelman (Respondent)
[2]
Solicitors:
Health Care Complaints Commission (Applicant)
NSW Nurses and Midwives' Association (Respondent)
File Number(s): 1620039
Publication restriction: A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure or publication of the names of the Patients in the schedule to the complaint, or their partners.
[3]
Background
This is the Stage 2 determination addressing the appropriate orders concerning a registered midwife found to have committed professional misconduct in the course of two homebirths that took place two years apart. The practitioner also maintains her registration as a nurse.
The factual background to the matter is set out in detail in our decision from Stage 1: HCCC v Sheldrick [2016] NSWCATOD 105. These reasons are to be read in conjunction with the Stage 1 reasons.
In summary: the two incidents concerned Patient A, who went into labour at what the practitioner believed to be 33 weeks gestation in 2014 and Patient B, who had a known breech presentation, meconium staining and prolonged ruptured membranes in 2012. Neither baby survived. This process did not in any way address causation as to the death of Baby A or Baby B, but was directed rather to the professional standard of conduct of the practitioner concerning the labours, and to a lesser extent, the antenatal care of Patient B.
The Tribunal determined three complaints proved against the practitioner. Complaints 1 and 2 were of unsatisfactory professional conduct concerning Patients A and B respectively; Complaint 3 was that the matters in 1 and 2 both individually and cumulatively amount to professional misconduct.
[4]
Relevant Law
The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: HCCC v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.
The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions: HCCC v Do [2014] NSWCA 307 [35].
As observed by Basten JA in Prakash v HCCC [2006] NSWCA 153 at [91], and applied by the then Pharmacy Tribunal in HCCC v Lau [2011] NSWPHT 2:
The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards...of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognize the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted.
Having made a finding of professional misconduct, the powers available to the Tribunal include the power to suspend or cancel the registration of the practitioner: s149C(1)(b).
A summary of relevant factors in determining the appropriate orders was made by the Medical Tribunal (as it then was) in HCCC v King [2013] NSWMT 9 at [26-27]:
Where there is a finding of professional misconduct, the Tribunal has a wide discretion in relation to disposition of the complaint. The circumstances of the particular case will determine the appropriate disposition: HCCC v Karalasingham [2007] NSWCA 267 per Basten JA at [67].
The jurisdiction of the Tribunal is protective rather than punitive. The protection of the public is associated with the protection of the profession: Litchfield. The protection of the health and safety of the public encompasses a range of considerations.
First, there may be a need to protect the public against further misconduct by a practitioner.
Second, there is a need for general deterrence.
Third, the high professional standards of the profession must be reinforced and transgressions must be denounced.
Fourth, public confidence in the profession must be maintained.
Fifth, it may be desirable to make available to the public any special skills possessed by a practitioner. It may be that the circumstances of a particular matter require the Tribunal to give greater weight to some of these considerations, or to consider other matters bearing on the health and safety of the public.
[5]
Submissions and Evidence
The HCCC relied upon the evidence from Stage 1.
At Stage 2 the practitioner tendered an additional statement dated 23 November 2016 in which she stated that she had read and accepted the Tribunal's Stage 1 decision, accepted the importance of working within the relevant professional guidelines and competencies, and noted that she had undertaken CPD to 'address the weaknesses identified in the Decision'. Appended to the statement was a reviewed suite of documentation for the practitioner's homebirth midwifery practice. The practitioner also gave oral evidence at Stage 2.
The HCCC submitted that the practitioner's proven lack of knowledge, skills and judgement possessed, and care exercised, in the practice of midwifery meant that cancellation of the practitioner's registration as a midwife was the only appropriate order.
The Respondent sought orders that the practitioner be reprimanded and that her registration as a midwife be subject to conditions.
Counsel for the Respondent noted that there was no dishonesty, fraud or impropriety in the practitioner's misconduct, that the practitioner had made numerous admissions, and that she accepted the findings of the Tribunal. Ms Andelman submitted that the failures identified by the Tribunal lent themselves to a protective order requiring a period of continuous monitoring and assessment in order to rehabilitate the practitioner. Moreover Counsel stressed that the practitioner provided a much needed service in a regional area.
[6]
Midwifery Registration: The Appropriate Protective Orders
The Tribunal determined that cancellation of the practitioner's registration as a midwife to be the only appropriate order for the following reasons.
The misconduct was extremely serious, and occurred in two separate incidents two years apart.
At Stage 1 the panel determined that the established professional criteria for a safe homebirth were plainly not present for either Patient B or Patient A. We found that the practitioner did not have a proper appreciation of how unsafe each situation was, nor did she ensure that the risks were clearly and effectively communicated to the patients, or make appropriate efforts to transfer care, or strongly recommend transfer of care, to a hospital setting where the required specialist medical assistance was available. The practitioner conceded that she had never at any stage had an "emergency plan" or any clear escalation process in either case. The failures of clinical practice and professional judgement in both cases were very grave for such an experienced practitioner.
The Tribunal is more critical of the practitioner's failures concerning Patient A. At Stage 1 we stated at [89-91]:
89 Ms Sheldrick's oral evidence was that she believed the situation at the time to be "very, very unsafe" and that a transfer to hospital was inevitable. We find nothing that was said or done by the practitioner at the time conveyed that belief in terms which would be comprehended by a patient.
90 We find, based on the practitioner's own account, that she led Patient A to believe that she was equipped to provide respiratory care in circumstances where this was beyond the realm of her expertise, and that this, rather than any informed consideration of risk, generated a false sense of security for Patient A and Mr A in proceeding with the homebirth.
91 The Tribunal finds that the practitioner did not make a recommendation of immediate transfer, discuss the specific risks of a homebirth involving a pre-term pregnancy, or the specific medical care available in the hospital environment. In these circumstances, we find that the "disclaimer" signed by Patient A and Mr A did not document an informed decision, but rather was an ill-judged attempt to deflect the practitioner's own professional responsibilities.
The practitioner did make a number of admissions at Stage 1 concerning Patient B, but did not concede unprofessional conduct concerning Patient A, and was at both Stages far less able to concede responsibility for her failures concerning Patient A.
[7]
Nursing Registration: The Appropriate Protective Orders
In written submissions served on the Respondent on 3 November 2016 the HCCC sought deregistration of the practitioner as both a midwife and as a nurse. The HCCC argued that the findings concerning the practitioner's conduct as a midwife were equally applicable to her knowledge and skills in the practice of nursing, and for this reason, the protection of the public required cancellation of her registration as a nurse also.
The Complaint filed with the Tribunal dated 12 February 2016 (and amended in minor respects during the hearing in July 2016) makes reference only to the conduct of the practitioner in the practice of midwifery in Complaints 1 and 2.
Complaint 3 is that the conduct in Complaints 1 and 2 is of a sufficient serious nature, or when taken together is of a sufficiently serious nature, as to justify suspension or cancellation of "the practitioner's registration", without referring to which registration is in issue. Because Complaint 3 is based upon the facts of Complaints 1 and 2 and arises through a characterisation of the seriousness of those complaints, we must take Complaint 3 to also be limited to the registration in midwifery.
At the Stage 2 hearing Counsel for the practitioner submitted that she was not "on notice" of the application to cancel her nursing registration such that to do so would be procedurally unfair. Counsel further submitted that as the powers under s 149 to make orders of the National Law are enlivened by having found a complaint proved, that no jurisdiction existed to cancel the practitioner's nursing registration because no complaint had been made concerning conduct in nursing.
The question of how to address the issue of deregistration when the practitioner holds registration in more than one health profession is not self-evident, and is complicated here by the lack of notice to the practitioner and the fact that a single Board governs both nursing and midwifery, leading to them often being regarded as a single form of registration when they are in fact separate registrations. It is possible to be registered as a nurse and not a midwife, and vice versa, although many midwives are also registered nurses. Rather confusingly, the National Law, s 5 defines "health profession" to mean a number of specified professions all of which are listed under separately numbered subsections, except for "nursing and midwifery" which is listed under sub-section (g).
[8]
Jurisdiction
The National Law mandates that health practitioner matters are determined by a Tribunal composed of four members, two of whom are members of the practitioner's own registered profession (and where possible of the same division of the profession where the profession is divided): s 165B.
It is not expressly stated that the registered profession of the professional members of the Tribunal is the same one in which the relevant conduct occurred if the respondent practitioner holds more than one registration, but a logical and purposive reading of the statute leads to this conclusion. Part of the role of the professional members is to bring their expertise to the collective decision-making process. Professional members provide context and content to the norms and standards of professional conduct being applied by the Tribunal: Prakash v HCCC [2006] NSWCA 153 at [91]; HCCC v Fraser [2014] NSWCATOD 29 at [238].
The HCCC submitted that as the Tribunal as currently constituted had two professional members who were registered as both nurses and midwives, there was no impediment to the exercise of jurisdiction concerning the nursing registration. In fact both professional members were registered as midwives, but only one of the professional members was also registered as a nurse.
The HCCC was able to direct the Tribunal to only one case in which a practitioner's registration as both nurse and midwife was cancelled: HCCC v Khalsa (No 2) [2014] NSWCATOD 47. That case was of limited assistance because the respondent did not appear or make any representations at Stage 2. In addition it is not apparent whether the complaint identified both forms of registration as in issue, and the facts were distinguishable on the basis that the practitioner deliberately falsified clinical records in order to mislead the inquiry.
Ms Adelman for the practitioner noted that the Tribunal only has power to make orders under s 149(a) of the National Law if it finds that 'the subject matter of a complaint' has been proved. Counsel argued therefore that as the complaint related only to midwifery, so did the power under s 149C: that is, that the power to make orders was limited to the subject matter of the complaint.
Section 149 reads:
Powers may be exercised if complaint proved or admitted [NSW]
The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if-
(a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or
(b) the practitioner or student admits to it in writing to the Tribunal.
[9]
Fairness
Section 38 of the CAT Act provides:
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) Despite subsection (2):
(a) the Tribunal must observe the rules of evidence in:
(i) proceedings in exercise of its enforcement jurisdiction, and
(ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and
(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.
(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(5) The Tribunal is to take such measures as are reasonably practicable:
(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and
(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
(6) The Tribunal:
(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(b) may require evidence or argument to be presented orally or in writing, and
(c) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
Although, in conducting an inquiry, the Tribunal is not bound by the rules of evidence and may inform itself "of any matter in such manner as it thinks fit", in doing so it remains subject to an overriding obligation to accord procedural fairness: Sudath v HCCC [2012] NSWCA 171 at [75]; Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29 at [28], [29].
[10]
Justification
The HCCC submitted that many of the findings about the practitioner's practice and judgment as a midwife were also relevant to her practice as a nurse; for example failures to document treatment and decision-making, and to understand and communicate risk.
The HCCC submitted that any concerns about procedural fairness could be cured through the respondent being provided with the opportunity to make further submissions or adduce evidence on this point.
The Tribunal must balance efficiency and fairness under ss 36(1), 38 and 53 of the CAT Act, but its paramount duty is the protection of the health and safety of the public: National Law s 3A; CAT Act s 36(5); Sch 5 cl 9.
The Tribunal has made prohibition orders which are directed to the practitioner undertaking a broad range of pregnancy and birth related roles. These orders reflect the evidence and the findings concerning the very serious failures of the practitioner's professional skills and judgement as a midwife in an unstructured sole practitioner setting.
There were no findings, and no allegations, of unethical or dishonest conduct, or of lack of capacity of professional judgement which would necessarily translate across to nursing practice, particularly if it were in a more structured setting such as a hospital. Therefore we conclude that the protection of the health and safety of the public does not require the issue of the nursing registration to be re-opened for further evidence or submissions.
[11]
Costs
While the Tribunal has a discretion to make a costs order in respect to proceedings before it, that discretion is not unfettered and is to be guided by the relevant legal principles. Costs are for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise: Qasim v HCCC [2015] NSWCA 282 [85].
The NSW Court of Appeal has noted that factors that might mitigate the successful party recovering all of its costs include: achieving only partial success in the orders sought, or particulars established, or oppressive or inefficient conduct of proceedings: HCCC v Philipiah [2013] NSWCA 342 [42]-[44].
Although the HCCC was successful in obtaining orders for cancellation of the practitioner's registration as a midwife, and prohibition orders relating to birth roles, it was not successful in its argument for cancellation of the practitioner's registration as a nurse.
Notably the HCCC sought the order for cancellation as a registered nurse without having included the practitioner's conduct as a nurse within the scope of the original or amended complaint. As a consequence the Tribunal required the parties to file additional written submissions on this point addressing the issues of jurisdiction and fairness. Having agreed to a timetable the HCCC then failed to comply with two sets of directions concerning the filing of submissions, prolonging the proceedings into 2017.
Both the partial success in the orders sought and the inefficient conduct of the proceedings at the final stage justify a reduction in the costs recovered by the HCCC. A reduction of 20% in costs is made on this basis.
[12]
Orders:
1. A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of the Patients in the schedule to the complaint, or their partners;
2. The practitioner's registration in midwifery is cancelled pursuant to s149C(1)(b) of the National Law;
3. The practitioner may not reapply for registration for a period of at least 16 months from the date of these orders pursuant to s149C(7) of the National Law;
4. The practitioner is prohibited, pursuant to s149C(5) of the National Law, from providing any of the following health services unless and until she makes a successful application to be restored to the register as a midwife:
1. a doula;
2. a birth attendant;
3. working in any pregnancy-related role;
4. working in any birth-related role; and
5. working in any other ante- or post-natal role, including education or preparation for birth.
1. The Commission is entitled to 80 % of its costs of Stage 2 pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).
[13]
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: 10 February 2017
In determining the appropriate order the Tribunal is required to consider the whole of the practitioner's conduct: Gad v HCCC [2002] NSWCA 111 at [55].
In making an assessment of the risk posed by the practitioner and the appropriate orders, the following non exhaustive factors were summarised from the relevant case law of this jurisdiction by the HCCC in HCCC v Epstein (No 2) [2015] NSWCATOD 36 at [24] as follows:
1. the seriousness and extent of the misconduct;
2. whether the practitioner has made any admissions and when the admissions were made;
3. whether the practitioner has expressed any remorse;
4. whether the practitioner has insight and accepted responsibility for her actions; and
5. whether there is a risk of the practitioner repeating the conduct in issue or reoffending.
Whether the gravity of the misconduct is such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v HCCC [2001] NSWCA 411 at [82].
Demonstrated current unfitness, not a determination of probable permanent unfitness, is required to justify deregistration: HCCC v Abou Hatoum & Anor [2004] NSWCA 30 at [42]: HCCC v Jamieson [2014] NSWCATOD 56 at [102]; HCCC v Della Bruna [2014] NSWCATOD 31.
If the Tribunal either suspends or cancels a practitioner's registration under s149C(1) or (3) or if the Tribunal makes a disqualification order under s149C(4) of the National Law, it is then open to the Tribunal to consider imposing a prohibition order. The National Law requires that the Tribunal must be satisfied that a person "poses a substantial risk to the health of members of the public" prior to making a prohibition order under s 149C(5).
We accept Ms Sheldrick's remorse as genuine and her attempts to remediate her practise as sincere. However we cannot be satisfied that she has sufficient insight into her conduct, or has changed sufficiently, as to pose no further risk. In particular, the practitioner continued to characterise the events concerning Patient A as having arisen from her not 'standing strong' against the wishes of Patient and Mr A. In effect, the practitioner's position was that she was led into an unsafe delivery in compliance with her patient's desire for a home birth. The practitioner did not appear to accept that she was herself responsible for creating that situation - because she had actually generated a false sense of security in Patient and Mr A, through accepting their assertion of a different due date and through misrepresenting her skills in respiratory care and the utility of oxygen in the circumstances.
Likewise the practitioner did not accept the Tribunal's finding that she had not appropriately communicated the risks to Patient A; rather her position was that she had failed to document her discussion of the risks. We stress that our findings of failure to appropriately communicate the risks of home birth or recommend the urgent need for hospital transfer were based on the practitioner's own testimony as to what she said at the time, as well as the written 'disclaimer'. We held at Stage 1, and reiterate now, that the practitioner's communications to Patient and Mr A were neither specific nor emphatic, as required by the circumstances. The document signed by Patient A was designed to protect the practitioner, who knew herself to be acting outside of the scope of her professional practice. The document did not inform the patient of the risks of the situation she was in.
The practitioner's appendix to her statement at Stage 2, documenting recent CPD activities, does not provide compelling evidence of either improved professional skills or insight into which skill set the practitioner needs to improve. The appendix lists a series of brief readings, many of which are from online blogs, including some sources of questionable authority, rather than any formal training from authoritative professional sources addressing fundamental matters of clinical standards and judgement. The practitioner reported having undertaken some hospital-based learning on neo-natal CPR but did not attach evidence of this. The practitioner responded to questions from the Tribunal by stating that she had no structured CPD plan and was waiting on the outcome of the hearing before developing one. Given the four months which passed between the release of the Stage 1 decision and the Stage 2 hearing we find that this was a superficial effort at demonstrating an improvement in skills and knowledge.
Although we accept the practitioner's sincerity in stating that she will in future follow the relevant professional guidelines, based on all of the evidence and the factors outlined above, the Tribunal still has settled misgivings about her professional judgment. Specifically the Tribunal has misgivings about the practitioner's ability to understand, distil and communicate information about risk, and to authoritatively make recommendations for care in circumstances where such risks are compounding or escalating.
At Stage 1 the practitioner submitted 17 references from former clients. The references characterise Ms Sheldrick as a compassionate, supportive and nurturing midwife and attest to the fact that her assistance has been greatly valued by the women who have utilised her care. We accept that this is so.
In submissions, Counsel for the practitioner drew attention to the 'very strong current' running through the references, also emphasised by fellow midwife Ms Bailey, who gave evidence for the practitioner at Stage 1, of the need in the local community for home birth services. The references indicate a perception that women in that area who do not want hospital-based or high-intervention births have few, or no, other options if Ms Sheldrick does not return to practice.
The Tribunal accepts that safe home birth options for women are important, and moreover that these are in scarce supply in rural and regional areas. However we do not accept that Ms Sheldrick offers a safe option at present, nor that she can safely practise under conditions at this time.
Given the very serious, and repeated, failures of professional judgment shown by the practitioner, the Tribunal is also of the view that a prohibition order is required to prevent her from undertaking other pregnancy and birth-related roles during the period of deregistration. The higher threshold of 'substantial risk' to the public is met in these circumstances.
In our view a sustained period of reflection and education is required to improve the practitioner's professional capabilities, and a period of deregistration offers Ms Sheldrick the ability to commit to such a course if she wishes to return to practice as a midwife. We also encourage the practitioner to build collaborative arrangements with other maternal health care providers in her area, including close links with hospitals and medical practitioners.
The National Law provides at s 165D "The Tribunal may, subject the rules of procedural fairness, order the joinder of more than one complaint against the same or different health practitioners in proceedings."
While the ACT and Queensland enactments of the National Law provide for National Boards to deal jointly with notifications if a health practitioner is registered in more than one health profession, the NSW enactment does not do so.1
The Tribunal was required to determine the scope of its powers with regard to cancellation of more than one form of health practitioner registration. This encompassed three issues:
1. Does the Tribunal have jurisdiction under the National Law to cancel one form of health practitioner registration based on findings of misconduct that occurred in the course of registration in a different health profession? If so:
2. Is the Tribunal prevented from cancelling the practitioner's nursing registration by requirements of procedural fairness in this case? And if not (or if any unfairness could be cured):
3. Is an order to cancel the practitioner's registration in nursing justified in this case?
The "any power" conferred by the Subdivision includes the powers to caution, reprimand, counsel and impose conditions under s 149A, to impose a fine under s 149B and to suspend or cancel a registration, as well as to place conditions on or prohibit the provision of "health services or specified health services" under s 149C.
Section 149C provides:
Tribunal may suspend or cancel registration in certain cases [NSW]
(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied-
(a) the practitioner is not competent to practise the practitioner's profession; or
(b) the practitioner is guilty of professional misconduct; or
(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or
(d) the practitioner is not a suitable person for registration in the practitioner's profession.
(2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied-
(a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or
(b) the student is otherwise not a suitable person to undertake clinical training in the health profession.
(3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition.
(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.
(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a
"prohibition order") do any one or more of the following-
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;
(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Note: Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
(5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered.
(6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order-
(a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and
(b) give the Council, National Board and Commission an opportunity to make a submission.
(7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.
Although the phrasing of s 149A and s 149C the National Law is in the singular, concerning "the registered health practitioner's registration" and "the practitioner's profession", there are some forms of professional misconduct under s 149C(1)(b), and most forms of incompetence as contemplated by s 149C(1)(a), as well as lack of suitability and unfitness arising from a criminal conviction under s 149C(1)(d) and (e), respectively, that would render a practitioner unfit for some, or all, other registered health professions. Notably there is nothing that ties the unfitness or unsuitability of a practitioner (or student) to conduct which occurred within the profession.
The underlying premise that unfitness to practice may extend beyond the registered professional is reflected in the National Law through the provision for "prohibition orders" in s 149C(5). This section provides the Tribunal the power, once it has suspended or cancelled a practitioner's registration, to also prohibit the practitioner from proving other health services, or to place conditions on the provision of such services, if it is satisfied that the person poses a "substantial risk to the health of members of the public." This power is broad: it can cover a very wide range of registered and unregistered health services, and can address a "period specified or permanently". Breach of a prohibition order is an offence punishable by up to 200 penalty units, 12 months imprisonment, or both: Public Health Act 2010 (NSW) s 102(3).
Significantly, section 149C(6) clearly contemplates that prohibition orders address a registered health profession, as it requires notice to be given to other health profession Councils or Boards concerning a registration "other than the health profession in respect of which the Tribunal is making the order". "The" order in this subsection is a prohibition order, not a deregistration order.
Our reading of s 149C and the objectives and purpose of the National Law as a whole, is that the Tribunal does have power to prevent a health practitioner found guilty of professional misconduct from practising in a registered health profession other than the one that is the subject of the complaint. However the means to do so is through a prohibition order under s 149C(5) (or 5A if the practitioner is no longer registered), not under s 149C(1)(b). The threshold requirements of a finding of "substantial risk to the health of members of the public" and notice and hearing requirements to the relevant Council or Board must therefore be met under this subsection.
What does the duty to act fairly require in the circumstances of this particular case?: Kioa v West [1985] HCA 81 [34] per Mason J.
The concern of procedural fairness is said to be the avoidance of "practical injustice": Re MIMIA; Ex parte Lam [2003] HCA 6 per Gleeson CJ at [37]; Minister for Immigration and Border Protection v WZARH [2015] HCA 40per Gaegler and Gordon JJ at [57].
The statutory framework of this jurisdiction does not require the HCCC or the Tribunal to formulate complaints into the form of a pleading or charges, as in a criminal case. However procedural fairness requires that the party affected be informed of the adverse material and given the opportunity to ascertain the relevant issues and respond: King v HCCC [2011] NSWCA 353.
In Chowdhury v HCCC [201] NSWCA 56 the NSW Court of Appeal held that a medical practitioner was denied procedural fairness when the Tribunal made orders for deregistration and prohibition orders in circumstances where such orders had not been sought by the HCCC. The practitioner argued that he had not been put on notice of this possibility, and therefore had not had an opportunity to make submissions concerning the risk that he posed to the public or to address the evidence upon which such a finding could be based.
The present case poses a strong parallel with Chowdhury in that the practitioner's fitness to practice as a nurse was not addressed by the complaint, the evidence at Stage 1, or the terms of the prohibition order which was sought at Stage 2.
In the present case the practitioner was put on notice that the HCCC was seeking cancellation of the nursing registration three weeks before the Stage 2 hearing, when the HCCC served its submissions. However, we hold here that such an application should have been within the terms of the prohibition order. Consequently there was practical injustice because none of the submissions on this question of the nursing registration addressed the correct standard - of substantial risk to the health of members of the public.