Moslemi v Health Care Complaints Commission

NCAT Occupational|2022-12-08

Introduction

This an application by the applicant seeking : 1. seeking a review of a prohibition order: National Health Practitioner Regulation Law (NSW) (National Law), s 163A; and 2. a reinstatement order (National Law, s 163B(1)(c)).
On 8 January 2020, for the reasons set out in Health Care Complaints Commission v Moslemi [2020] NSWCATOD 2 (Primary Decision), the Tribunal: 1. found the applicant guilty of unsatisfactory professional conduct; 2. ordered that the applicant not be entitled to apply for registration as a midwife for a period of one year from the date of the order; 3. required the National Board with which the applicant was registered to record the fact that the Tribunal would have cancelled the applicant's registration in the National Register kept by the National Board; 4. ordered that the applicant be subject to a prohibition order to prevent her from providing the following health services on a public, private or volunteer basis until she is re-registered as a midwife:

medical hospital, nursing or midwifery services;
mental or community health services;
health education services.

For the following reasons, we have decided to revoke the prohibition order and to make the reinstatement order sought.

The applicant's evidence

The evidence relied on by the applicant relevantly included her statement of 30 September 2019 (which was tendered in the proceedings the subject of the Primary Decision), her statement of 24 August 2022 and evidence of her ongoing continuing professional development (CPD) and other education she has undertaken since the Primary Decision.
In summary, in her recent statement the applicant states: 1. in 1990, she completed a Bachelor of Science in Nursing at the Shiraz University of Medical Science, Iran. In 1993, she completed a Graduate Diploma in Midwifery at the Shiraz University of Medical Science, Iran. Before migrating to Australia, she worked as a midwife in clinical midwifery, as an independent midwife, and as a clinical midwifery educator for approximately nine years; 2. in 2003, she migrated to Australia. In 2004, she completed the requirements to register as a midwife in Australia. She commenced working as a midwife in both private and public hospitals in the Sydney area. The applicant worked in full-time positions for approximately 11 years. She also worked, at times, in a casual role; 3. her last shift as a midwife was on 27 May 2017; 4. on 8 November 2016, the conditions set out in Attachment A were imposed on her registration; 5. condition 7 required her to complete an education course on Care of the Deteriorating Patient in the Context of Midwifery. On 27 March 2017, she successfully completed Between the Flags education which satisfied the requirements of Condition 7; 6. condition 8 required the applicant to complete the Perinatal Training Program conducted by K2M Medical Systems. On 30 March 2017, she successfully completed the K2M course, Antepartum and Postpartum Emergencies; 7. these courses were in addition to the 20-hour Continuing Professional Development required by the Nursing and Midwifery Board of Australia's Registration Standard; 8. she accepts that orders made by the Tribunal in the Primary Decision were appropriate; 9. since the cancellation of her registration on 8 January 2020, she has continued to reflect on her conduct. She says that she needed this time to properly consider how she could restore her midwifery career to a level that the Tribunal would consider acceptable to allow her to apply for registration again; 10. the applicant can now see that by not complying with the conditions on her registration she breached the Code of Conduct for Midwives statement 3, by not acting honestly. At the time she breached the Conditions she could see no other solution for her to comply with the education conditions on her registration. It was her belief that she needed to be in a midwifery workplace to achieve this. She can now see that this was not the only option available to her. She says she could have sought a review by the Nursing and Midwifery Council of NSW (Council) of the Conditions. Had she done so, she would not have needed to lie to the Council, the facilities where she was working or to her lawyer; 11. since 8 January 2020, she has remained committed to the midwifery profession through CPD. She now has a good working knowledge of the Midwife Standards for Practice and has engaged in ongoing education. She has continued to read publications related to the practice of midwifery on the Australian Nursing and Midwifery Federation website; 12. in March 2022, she completed CPD addressing Maternity Emergencies. She has also attended CPD concerning Medication Administration; 13. in March 2022, she completed a post-graduate unit of study at the Australian Catholic University on "Healthcare Ethics: Principles in Practice". This unit of study took approximately 6 months to complete and was based on the theoretical frameworks in ethics. Through a process of critical reflection, she learned about the application of principles of healthcare ethics to specific issues arising in the workplace. The applicant says she is able to relate these principles to her practice of midwifery; 14. throughout this intensive course, the applicant says she was constantly reflecting on the complaints before the Tribunal, and has gained a better understanding of what affects the way one thinks in different situations and how to make better ethical decisions; 15. in June 2022, she completed the Safe Medicate course. This is an intensive and comprehensive E-learning course that is designed to develop and assess medication competence and safe drug calculations. The course took approximately one month and had a final examination component which she successfully completed; 16. since 8 January 2020, the applicant has completed a unit of study in Archaeology at the University of Sydney. This subject was "Historical Health Research conducted on First Nation Health and Involved Organisations". In this unit, she gained skills, knowledge and understanding in creativity, collaboration, critical reflection, and communication in interdisciplinary knowledge. It also assisted her to identify gaps associated with Aboriginal health and the insufficient medical attention directed to Aboriginal newborns and children; 17. since 8 January 2020, the applicant has reflected on her communication skills in general. She now understands the importance of actively listening to someone. She now takes into consideration what the person is saying, the tone of their voice and their body language. This has helped her to understand the many different types of communication and how to respond to different communication styles, which she will take with her back to her practice of midwifery; 18. throughout most of her midwifery career, she has been a respected and competent midwife. It was during her employment at Auburn Hospital that she lost confidence when her clinical care and professionalism were constantly scrutinised and criticised. Since 8 January 2020, she has had the time to develop better communication skills and regain her self-confidence to now be ready to resume her midwifery career.
The applicant was required for cross-examination by the respondent. We will refer to her evidence given in cross-examination in the Consideration section of these reasons.

The respondent's evidence

The respondent tendered several documents which had been before the Tribunal at the time it made the Primary Decision.

The applicable provisions of the National Law

Part 1 (ss 1-10) contains provisions dealing with preliminary matters. Section 3 specifies the objectives and guiding principles of the National Law, and relevantly provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and … (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and
Section 3A specifies the particular objective and guiding principle of the National Law in New South Wales, and provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
Part 7 Division 1 (ss 52-56) contains provisions dealing with the general registration of health practitioners. Section 55 deals with the circumstances of unsuitability for an individual to hold general registration, and relevantly provides: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if - … (h) in the Board's opinion, the individual is for any other reason - (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely.
Part 8 Division 8 (ss 163-163C) contains provisions dealing with reviews. Section 163(1)(c) specifies the Tribunal is the appropriate review body except where specific circumstances are present.
Section 163A provides for a right of review, and relevantly provides: 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of - … (b) a relevant order made in relation to the person. … (4) In this section - decision-making entity means the following - … (d) the Tribunal ….; … relevant order, in relation to a person, means any of the following orders made by a decision-making entity - … (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; …
Section 163B deals with the powers of an appropriate review body on a review, and relevantly provides: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; … (c) make a reinstatement order; … (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if - (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. … (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order.
Section 163C deals with the inquiry to be made in a review application, and relevantly provides: 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. …
Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner … concerned, or … to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.

Relevant Principles

The relevant principles in relation to reinstatement were set out in Marquinez v Health Care Complaints Commission [2017] NSWCATOD 148 at [19] to [22] and may be summarised as follows: 1. an objective and "guiding principle" of the national registration and accreditation scheme provided for by the National Law is the protection of the public through ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (National Law, s (3)(2)(a)); 2. in all applications in which the Tribunal in NSW is involved, the protection of the health and safety of the public is the paramount consideration (National Law, s 3A); 3. the Tribunal's jurisdiction in relation to reinstatement orders is protective: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155; 4. the power "is to be exercised in a way that ensures that any health practitioner who is the subject of a reinstatement order is of good character and both fit and competent to practise their profession": Donnelly at [12]; 5. the onus of proof lies on the former practitioner seeking reinstatement, requiring an evidentiary basis and with the standard of proof being the civil standard of the balance of probabilities: Donnelly at [12]; 6. the Tribunal "must approach the matter of reinstatement with a healthy scepticism" and "with the greatest caution and only upon solid and substantial grounds": Donnelly at [13]; 7. the Tribunal ought to be open to the possibility that a former practitioner has demonstrated that he or she is now fit for reinstatement to the register: Donnelly at [14]-[15]. There may also be public interest considerations served by permitting reinstatement: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 at [39]. 8. the passage of time since deregistration without further infraction does not imply that former practitioner is a changed person - clear proof is required to show that some years later the person has established themselves as a different person: Mnyandu at [38]; 9. improved insight into conduct which led to the cancellation of registration in the first place, and into the personal factors which resulted in the complaints in question, will often be relevant to any application for reinstatement, as will any steps taken to demonstrate such improved insight as well as that the former practitioner is a changed person: see Donnelly, Mnyandu; Ristevski v Medical Council of NSW [2016] NSWCATOD 18; 10. when such a person applies for reinstatement they are in a more disadvantageous position than an original applicant because they must displace the decision as to probable permanent unfitness which was the basis of his removal, the power to reinstate only being exercised with the greatest caution and only upon solid and substantial grounds: Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655); Re Lenehan (1948) 77 CLR 403; [1948] HCA 45.
To these principles can be added the following matters which appear in Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]. That paragraph summarises a lengthy passage of the Nursing and Midwifery Tribunal in Scully v Health Care Complaints Commission [2013] NSWNMT 7 as follows: The applicant bears the onus of proving that he is a fit and proper person to be engaged in the profession of nursing as an endorsed enrolled nurse (see [41] and the authorities there referred to); The standard of proof to be applied by the Tribunal is the civil standard of proof, the balance of probabilities, tempered by the requirements of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336); (see [41] and the authorities there referred to; see too In Re Jason Martin [2010] NSWMT 13 at [41]); The purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction is exercised is for the protection of the public (see [47] and the authority there referred to); The power to reinstate should "be exercised with great caution and only upon solid and substantial grounds" (see [48] and the authority there referred to); There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance (see [49] and the authority there referred to); In making an assessment of the applicant's worthiness and reliability for the future the Tribunal may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register. At [50] the Tribunal referred to In Re Jason Martin [2010] NSWMT 13 where the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner would behave in the future and remarked that "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant".
Finally, we note a number of further principles referred to by the respondent: 1. the power to reinstate should be exercised with great caution and only upon solid and substantial grounds: Shah at [34]; 2. there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners because the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance: Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85]; 3. it is not a question of what an applicant has suffered in the past, rather a question of the applicant's worthiness and reliability for the future: Zepinic at [85]; 4. there is difficulty associated with predicting how an applicant would behave in the future: Shah at [34]. The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: Zepinic at [85] 5. the question is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence: Shah at [35]. 6. clear proof is required to establish that there has been a reformation of character: Zepinic at [85]; 7. an applicant bears the heavy onus of proving that the applicant is a fit and proper person trusted to exercise the high responsibilities of the profession: Shah at [35].

Practitioner's submissions

After referring to the relevant principles regarding reinstatement, in summary the applicant submits she should be reinstated for the following reasons: 1. since she provided an initial reflection in a statement dated 30 September 2019 her reflective process has evolved. She continues to be ashamed by her limited insight at that time which lead her to resort to dishonesty. She understands this was inexcusable behaviour; 2. she understands that by breaching the conditions on her registration and lying as she did, she lost the trust of her employer and the NMC and the Commission. She not only tarnished her own reputation, but also the reputation of the midwifery profession as a whole and had also lost the trust of the public in general. She continues to deeply regret and be remorseful for her actions; 3. she has read the Primary Decision and now understands that the orders made were appropriate; 4. she now understands that at the time of this incident, her critical thinking skills were challenged, and her problem solving, and decision making were not at a level that should be expected of a midwife of her level of experience; 5. she has undertaken substantial and relevant CPD in the past several years. It has been important for her to remain connected to the midwifery profession, and has taken guidance from the Primary Decision and engaged in CPD that would improve her clinical skills, and CPD that would develop her ethical values; 6. she has completed an intensive unit of study at the Australian Catholic University - Health Care Ethics: principles in Practice. This Unit of study provided her with structure and guidance for future workplace values and principles. She now understands that, going forward, that the Code of Conduct and the Code of Ethics are important to the midwifery profession, and are fundamental guides for midwifery performance; 7. she has also reflected on her communication skills. She can now see that her problems at Auburn Hospital originated from her misunderstanding of different communication styles. She now will take back to the workplace skills in communication she has developed in recent years.

Commission's submissions

After setting out many references to the relevant principles and authorities, the primary submissions of the respondent were that: 1. the applicant bears a heavy burden to establish her worthiness and reliability for the future. The findings made at first instance reflect serious examples of unsatisfactory professional conduct and professional misconduct in circumstances where the applicant was already subject to conditions on her practice due to prior complaints; 2. the multiple instances of false and misleading statements made to the Council and the applicant's legal representatives would cause the Tribunal concern as to the future conduct of the applicant if reinstated. Honesty and integrity are central components to the Code of Professional Conduct for Midwives and Code of Ethics for Midwives. Honesty and integrity in the practice of midwife are intertwined with the trust places in midwives by members of the community and other members of the medical profession.
The respondent acknowledged that the applicant had provided material establishing the applicant's rehabilitation through ongoing education and personal reflection on the findings made by the Tribunal at first instance. The respondent accepted that the applicant gave evidence of remorse for her conduct that resulted in the cancellation of her entitlement to apply to practice as a midwife. The respondent submitted that while remorse may be one factor considered by the Tribunal as to reinstatement, it is not the only factor with the principal concern being the protection of the community.
That said, the respondent conceded that it could not submit that the applicant posed any danger to the public.

Consideration

In the Primary Decision, the Tribunal found the applicant guilty of three complaints.
The particulars of the complaints were that between 8 November 2016 and 21 May 2017, whilst working at the Nepean Private Hospital the applicant contravened: 1. condition 1 of the conditions placed on her registration, in that she did not practice under the direct or indirect supervision of a registered midwife; 2. condition 2, in that she was in charge of approximately 30 of the shifts she worked; 3. condition 3, in that she did not practise under the supervision of a midwife manager approved by the Council; 4. condition 4, in that she did not inform her employer of the conditions placed on her registration or provide the Council with her employer's name and contact details; 5. condition 5, in that she undertook employment in circumstances where her employer had not agreed to notify the Council of any breaches of the conditions or unsafe practices. 6. on 26 October 2016, the applicant instructed her legal representative to make a statement to the Council that she was resigning from Nepean Private Hospital and would complete no further shifts, which was false or misleading in circumstances where she then continued her employment at Nepean Private Hospital; 7. on 10 November 2016, the applicant sent an email to the Health Professionals Councils Authority in which she made the false or misleading statement: "I withdraw from midwifery job completely and will not go back to that position unless finalise the requirements [sic]" in circumstances where she continued to work at Nepean Private Hospital; 8. on 16 November 2016, in a telephone conversation with a Program Officer from the Council, the practitioner made a false or misleading statement that she: 1. "cannot work because of the conditions on her registration"; 2. "is not working... [and] cannot provide for the family", in circumstances where she continued to work at Nepean Private Hospital; 1. on 25 May 2017, in a telephone conversation with a Program Officer from the Council, the applicant made a false or misleading statement that she had not been working for six months and was struggling financially, in circumstances where she had continued to work at Nepean Private Hospital until 21 May 2017.
In relation to the applicant's evidence, the Tribunal stated: 18. The Respondent was called to give evidence and be cross-examined. It must be said that large parts of the Respondent's cross-examination related to issues that had in fact been admitted by the Respondent. The Applicant indicated that this was necessary in order to give the entire picture. However, in light of the admissions made by the Respondent, it is not essential for the purposes of this decision to list all the issues raised in the cross-examination of the Respondent, as much of the responses made by her go to confirmation of her admissions. 19. The Respondent spent a large part of her evidence and cross-examination aimed at drawing the Tribunal's attention to the severe difficulties under which she was operating when she breached her conditions of registration. In essence, her problems arose in two respects. Part of the conditions required her to undertake various educational modules to enhance her level of understanding and competence relating to her operation as a midwife. The balance of the breaches related to her working as a midwife not always under supervision, as required by the conditions imposed upon her. She also dealt with her working in a position where she had not informed her employers of the conditions which had been imposed upon her and requiring them to be able to report to the Council in respect of her activities. 20. In addition, it was alleged and admitted by the Respondent that she lied to the Council and to her employer on at least four occasions, either directly herself or by instructing her lawyer to convey information which was not true. 21. Her evidence was to the effect that some of the educational requirements were absolutely impossible for her to comply with unless she was employed. In addition, she indicated that unless she was employed, she would not be able to undergo a performance review in a live environment but would be obliged to undergo such performance review in simulated conditions which she found very difficult. Finally, she indicated that the performance review included answering a large number of questions in a time allocation which was insufficient. In essence and in summary, the evidence given by the Respondent in defence of her position was that she could not comply with the conditions imposed upon her licence, unless she was employed and for that reason, she was forced to take employment in circumstances which were in breach of her conditions and that it was the only option available to her. 22. She also indicated to the Tribunal the circumstances under which she had been working in Auburn Hospital which led to the complaint. This included bullying and an interpersonal breakdown in the relationship with her immediate superior. She informed the Tribunal that she had been working very happily at Auburn Hospital until 2013, at which time a new manager was appointed who treated her poorly with an implication that the situation was one of discrimination.

Conclusion

Ultimately, the respondent neither opposed nor consented to the applicant's application.
The respondent accepted that the applicant posed no risk to the public, and acknowledged that she appeared remorseful and had undertaken steps to maintain CPD and to connect with the profession of midwifery.
We agree with that assessment. We had the opportunity to hear from the applicant in additional oral evidence in chief and when cross-examined. We accept the submission advanced by her advocate, that Ms Moslemi has demonstrated true remorse and genuine insight into the importance of being honest and truthful, not only in her practice as a midwife, but also in her life generally. Ms Moslemi appeared to us to be a serious and thoughtful person who answered the questions put to her by the respondent's counsel with honesty, understanding, and with considerable dignity.
On the basis of the applicant's written and oral evidence to us, and given our impressions gained observing her cross-examination, and her responses to questions from the Tribunal members, we are satisfied that Ms Moslemi will not repeat her past conduct, and do her utmost to comply with all relevant Codes of conduct and Ethics. We are satisfied that she now fully appreciates the importance of honesty and integrity in the practice of midwifery, and in her ethical obligations to the profession and the regulatory authorities.
As to communication skills, particularly during changeover, we note that Ms Moslemi said several times that she understands that the "handover" communication process in general had improved since 2014, and that recent guidelines published by the Clinical Excellence Commission would assist her communication skills.
We note the applicant's assurances that she understands that conditions may be placed on her registration in the future, or may be ordered as a pre-requisite to registration, and that she will accept any future conditions that may be placed on her registration by the regulatory authorities.
We consider that Ms Moslemi has a valuable contribution to make to the profession in the future.
For the above reasons, we consider it appropriate to revoke the prohibition order made in 2020, and to now permit Ms Moslemi to take the steps needed to again be registered as a mid-wife.

Costs

The respondent seeks an order for costs. The applicant submits that there should be no order as to costs.
We heard oral submissions on this issue, and had the benefit of the parties' written submissions.
In Ake v Health Care Complaints Commission [2019] NSWCATOD 165, the Tribunal set out the following principles to be applied to determine the costs of proceedings for the reinstatement of a practitioner: "[46] In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. [47] Whether the discretion to award costs should be exercised in favour of the Commission raises the issue of whether the so-called compensatory principle - that without some disentitling conduct a successful party is generally entitled to recover their costs - can and should be applied where the Tribunal makes a reinstatement order under s 163B of the National Law. [48] This issue was addressed in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 (Ameisen). There, the Tribunal considered it a misnomer to describe an applicant who is reinstated following an inquiry to review a "relevant order" as having been "successful". Reasoning that this characterisation "misunderstands the nature of the respondent's involvement in the proceedings", the Tribunal pointed out at [90] that reinstatement proceedings "arise because of the prior misconduct of the applicant [practitioner], and can be seen as ancillary [to the original proceedings which resulted in the cancellation of the practitioner's registration]". The Tribunal ordered Dr Ameisen to pay the respondent Council's costs, notwithstanding its decision that he be reinstated to the register of medical practitioners. [49] This approach was followed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. There the Tribunal concluded at [87]: Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused. [50] In Ristevski the Tribunal examined a number of cases where on review of the relevant order, the applicant practitioner was reinstated but not ordered to pay the costs of the respondent Council or Commission: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43, Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 and Roberts v Medical Council of New South Wales [2015] NSWCATOD 35. The Tribunal concluded that each case had "exceptional features" and the relevant Tribunal had been critical of aspects of the respondent's participation in the inquiry: Ristevski at [74], [78], [82] and [88]. (See also Vo v Medical Council of NSW [2018] NSWCATOD 18 at [144]. Cf Haber v Health Care Complaints Commission [2018] NSWCATOD 16; Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102) [51] We agree with the view expressed by the Tribunal in Ristevski at [70]-[71] that in conducting a review of a relevant order under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the relevant practitioner Council or the Commission. Without a respondent in this class of matters, there is a risk that the Tribunal might only have available the self-serving evidence adduced by the applicant practitioner. The involvement of, to use the term coined in Ristevski, a "public interest respondent" in review proceedings, assists the Tribunal in discharging its obligation to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue: s 38(6)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)."
The respondent, which seeks an order for costs, referred to other authorities to similar effect.
As noted, the applicant requests that there be no order as to costs. She relies on authorities including Brown v Health Care Complaints Commission [2015] NSWCATOD and Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155.
True it is that in Donnelly the Tribunal said at [56] that the compensatory principle in relation to costs "is not necessarily apposite to reinstatement cases", and concluded at [66]: In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour. We also note that Dr Donnelly had no choice but to make the application to NCAT that he did make if he wished to obtain reregistration as a psychologist. Similarly such an application generates a role as contradictor for the HCCC. To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case. Consequently we declined to exercise our discretion to make a costs order under cl 13 of Sch 5D of the National Law. As a result the parties will bear their own costs in relation to this application.
However, as was explained in Ake, in Ristevski, the Tribunal examined a number of cases where the applicant practitioner was reinstated but not ordered to pay the costs of the respondent. Those cases included Donnelly. The Tribunal concluded that the cases (including Donnelly) had "exceptional features" and that the relevant Tribunal had been critical of aspects of the respondent's participation in the inquiry.
In Ristevski at [77] the Tribunal noted that in Donnelly the respondent had "opposed outright" the reinstatement application, had to be pressed to supply any proposed conditions in relation to possible reinstatement, and that clearly the Tribunal took a much more positive view of the application than the respondent. It could possibly be said that the respondent 'lost' its case in opposition to reinstatement, and that considerably weakened its application for a costs order in its favour.
The Tribunal further observed at [78] that: Donnelly, as we see it, involves a situation where the Tribunal was not assisted in the way seen as appropriate in the circumstances of the case by the respondent's choices as to its mode of participation. The same can be said of Mnywandu v Health Care Complaints Commission [2015] NSWCATOD 43.
It was in those circumstances that the Tribunal made no order as to costs.
In the present application the respondent proceeded in an appropriate way, participating in an appropriate and concise way, and (ultimately) the evidence it tendered was not voluminous. And only one witness, being the applicant was required for cross-examination. In addition, the respondent properly reserved its final position at the outset of the hearing until the evidence had been heard, in particular the applicant's evidence: see the discussion of these matters in Ristevski at [75] to [79]).

Conclusion

Having regard to the above principles we are satisfied that the practitioner should pay the Commission's costs of the proceedings. There are no exceptional features that would warrant a departure from the principle that Ms Moslemi should pay the costs of the Commission.
Ms Moslemi must pay the respondent's costs as agreed or as assessed.

Orders

The Tribunal orders: 1. A reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) is made in respect of the applicant. 2. The prohibition order made on 8 January 2020 in proceedings 2019/00171206 is revoked. 3. The applicant is to pay the respondent's costs as agreed or as assessed.

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

Conditions placed on the applicant's registration effective 8 November 2016 (1) Supervision requirement. a. When providing care to women in labour the registrant must practice under the direct supervision of a registered midwife who does not have any conditions on his/her practice: i. At all times the supervisor must be present to observe, work with, guide and direct the registrant. b. At all other times the registrant must practice under the indirect or direct supervision of a Registered Midwife who does not have any conditions on his/her practice. The supervisor must be: i. On-site and working in close proximity within a ward or unit with the registrant; and ii. Able to oversee and provide advice about the registrant's practice when necessary. (2) The registrant must not: a. be the midwife in charge of any shift, ward or unit; b. have supervisory responsibilities for any other midwife; c. work as the sole practitioner on any shift, ward or unit. (3) The registrant must be supervised by a midwife manager (or equivalent) approved by the Nursing and Midwifery Council of New South Wales who has agreed to oversee the supervision and designate supervisors. The registrant must: a. Provide the Nursing and Midwifery Council of New South Wales with the name, contact details and resume of the nominated midwifery manager within two weeks of commencing work; b. Authorise the midwifery manager to: i. Notify the Nursing and Midwifery Council of New South Wales of any breach of the conditions or unsafe practice and: ii. Exchange information with the Council related to compliance with the conditions and; iii. Provide the Council with a copy of the conditions signed by the registrant and by the nominated midwifery manager indicating awareness of the conditions and authorisation. c. Authorise the midwifery manager to provide a written report about the registrant's performance against the competency standards for a registered midwife approved by the Nursing and Midwifery Board of Australia after one month and then at 3 monthly intervals. (4) The registrant must: a. Inform all current midwifery employers (including midwifery managers at agency placements) of the conditions immediately and provide the Nursing and Midwifery Council of New South Wales with each employer's name and contact details; b. Inform ail future midwifery employers (including midwifery managers at agency placements) of the conditions, and provide the Nursing and Midwifery Council with the name and contact details of each employer, before commencing work/employment as a midwife. (5) The registrant must only be employed as midwife in circumstances where the employer has agreed to notify the Nursing and Midwifery Council of New South Wales of any breach of the conditions or unsafe practice and exchange information with the Council related to compliance with the conditions. (6) The registrant must complete an education course, that has been approved by the Nursing and Midwifery Council of New South Wales with the following characteristics: a. At either a tertiary or vocational institution or an institution approved by the Council; b. With either content or learning objectives covering - Medication Administration; c. The course is to include clinical assessment; d. The completion date should be no later than twelve months from the date of the PRP Reasons for Decision document or otherwise a date determined by the Council. (7) The registrant must complete an education course, that has been approved by the Nursing and Midwifery Council of New South Wales with the following characteristics: a. With either content or learning objectives covering - Care of the Deteriorating patient in the context of midwifery; b. The completion date should be no later than twelve months from the date of the PRP Reasons for Decision document or otherwise at a date determined by the Council. (8) The registrant is to successfully complete Perinatal Training Program conducted by K2 Medical Systems or an equivalent course that has been approved by the Nursing and Midwifery Council of New South Wales: a. The commencement date should be no later than 31 March 2016 or otherwise at a date determined by the Council; b. The completion date should be no later than 12 months from the date of the PRP Reasons for Decision document or otherwise at a date determined by the Council; c. The course must be taken in addition to 20 hours of Continuing Professional Development hours required by the Nursing and Midwifery Board of Australia's Registration Standard. (9) On completion of Courses required by conditions 6, 7 & 8, the registrant must complete a performance assessment by performance assessor/s approved by the Nursing and Midwifery Council of New South Wales. The Performance Assessment is to focus on Medication Administration, Care of the Deteriorating Patient and Postnatal Care. The cost of assessment is to be met by the Nursing and Midwifery Council of New South Wales. 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: 19 December 2022

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