Nuevo v Health Care Complaints Commission

NCAT Occupational|2024-03-05

Solicitors: NSW Nurses and Midwives Association (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2023/00356396 Publication restriction: Nil

Introduction

This is an application by the Applicant, Mr Nuevo, for review of an order made by the Tribunal on 14 March 2023 cancelling his registration as a nurse. Mr Nuevo seeks a reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) (National Law).
On 25 October 2022, the Tribunal found that complaints of unsatisfactory professional conduct against Mr Nuevo were made out and that his conduct amounted to professional misconduct: Health Care Complaints Commission v Nuevo [2022] NSWCATOD 124.
The Tribunal subsequently cancelled Mr Nuevo's registration and made an order that he could not apply for a review of the cancellation order for a period of 6 months from the date of its orders: Health Care Complaints Commission v Nuevo (No 2) [2023] NSWCATOD 24.
The Health Care Complaints Commission (the Commission) appeared as a contradictor in these proceedings. In its reply filed on 17 January 2024 it indicated that at that time it consented to the application but submitted in the event that the Tribunal makes a reinstatement order, that Mr Nuevo's registration as a nurse should be subject to conditions.

Background

Mr Nuevo was registered as a nurse in New South Wales on 16 January 2009. At the time of the conduct the subject of the complaint he was employed by Justice Health and Forensic Mental Health Network (JH&FMHN) at Parklea Correctional Centre (PKA). On 6 December 2017 he was rostered as the Nurse in Charge (NIC) of the Night Shift, rostered to work between 9.30pm to 7.30am on the following day. The other nurse rostered on that shift was Enrolled Nurse (EN) Day, in respect of whom Mr Nuevo held seniority. Along with Mr Nuevo a total of five other nurses were involved in the care of an inmate, Patient A, who was found deceased on 7 December 2017.

Patient A

Patient A was a 37-year-old man with a documented medical history of epilepsy, asthma, Crohn's disease, hypertension, and opioid dependence. He was transferred to PKA from Sydney Police Cells on 6 December 2017, arriving at about 11.38am. PKA houses approximately 800-900 remand, minimum- and maximum-security inmates. Health services at PKA were operated by JH&FMHN.
At about 2.07pm Patient A was taken from a holding cell to the Processing Area at Reception. Patient A was too unwell for reception screening assessment to be undertaken, and he was taken to the Main Clinic where he was assessed by the Drug & Alcohol Medical Officer (MO) and the Clinical Nurse Specialist D&A (CNS D&A).
The CNS D&A recorded baseline clinical observations, noting in Patient A's clinical/progress notes that he was "extremely unwell - in opiate withdrawal". The treatment plan recorded by the MO and the CNS D&A in the progress notes was that Patient A was to remain in detox, with four hourly observations, with Panadeine and Stemetil for opiate withdrawal, and to be reviewed in the morning.
The clinical handover from the morning shift JH&FMHN staff to the afternoon shift took place in the Clinic tearoom between 2.00pm to 2.30pm, when Patient A was in Reception, and he was not included in that handover. Just after the shift handover concluded the CNS D&A asked for someone to come and give an IM injection. Registered Nurse (RN) Gallagher, Nurse Unit Manager (NUM) on the morning shift, administered intrasmuscular (IM) Stemetil to Patient A at approximately 2.45pm, recording that in Patient A's medication notes. At approximately 2.46pm Patient A was placed in Cell 34, one of 14 observation cells in the Main Clinic. Cells 34-39 are "Detox" cells.
At approximately 4.20pm as she was leaving for the day, the CNS D&A provided a verbal handover of Patient A to RN Stratten, who was rostered on the afternoon shift and allocated PKA Areas 3 and 5 and the Clinic. The handover provided to RN Stratten included the information that Patient A was detoxing and was unwell, that four hourly observations were required, and that the next set was due at approximately 7.00pm: Health Care Complaints Commission v Stratten [2022] NSWCATOD 126 at [135].
In the circumstances discussed in Health Care Complaints Commission v Nguyen [2022] NSWCATOD 127, RN Nguyen (also rostered on the afternoon shift) packed the Clinic medications on behalf of RN Stratten, and then administered those medications including to Patient A at approximately 7.00pm. The Tribunal was satisfied that at the time she administered the medications RN Nguyen was not aware of the need for observations due at that time, nor asked to complete them as part of the medication round that she undertook on behalf of RN Stratten: Health Care Complaints Commission v Stratten [2022] NSWCATOD 126 at [138].
Mr Nuevo was rostered, as nurse in charge, on the night shift with EN Day (9.30pm-7.30am). The clinical handover from the afternoon shift to the night shift staff took place between 9.30pm-10.00pm. RN Stratten provided the handover.
It was not in dispute that neither Mr Nuevo nor EN Day had any interaction with Patient A during the night shift. After his assessment by the MO and CNS D&A on being brought to the Clinic, the last recorded interaction by nursing staff with Patient A was the administration of medication by RN Nguyen at approximately 7.00pm on 6 December 2017.
Patient A was found deceased in his cell at approximately 7.11am on 7 December 2017. It was not in dispute that none of the nursing staff on duty on the afternoon or night shifts on 6 December 2017 had read Patient A's progress notes in which the treatment plan, which included the requirement for four hourly clinical observations, was recorded. It was not in dispute that no clinical observations were taken after the baseline observations by the CNS D&A at approximately 2.30pm on 6 December 2017.

The Tribunal decisions of 25 October 2022 and 14 March 2023

The Tribunal summarised the complaints against Mr Nuevo in the following way in Nuevo (No 2) at [18]-[22] 18. There were two complaints against RN Nuevo. Complaint One alleged that he was guilty of unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law in that his conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s 139B(1)(a)), and that he had engaged in improper or unethical conduct (s139B(1)(l)). There were seven particulars, that RN Nuevo: (1) failed to read the clinical notes and health records of Patient A, in accordance with specified JH&FMHN policy; (2) failed to direct EN Day to read the Clinical Notes and Health Records, in accordance with specified JH&FMHN policy; (3) failed to implement the treatment plan ordered by the treating MO in that he failed to complete or ensure that EN Day completed the four hourly clinical observations as instructed, in accordance with specified JH&FMHN policies; (4) failed to respond appropriately or at all to Patient A's requests to see a nurse; (5) failed to accurately document and/or update Patient A's clinical notes in that he made a false or misleading entry in the medical record, in accordance with NSW Health policies; (6) failed to ensure that the oncoming morning shift nursing staff were provided with a clinical handover of Patient A, in accordance with specified JH&FMHN policies; and (7) failed to seek appropriate approval to leave early at the end of his shift, in accordance with the NSW Health Code of Conduct. 19. RN Nuevo admitted that he did not read Patient A's clinical notes or health records, having relied on the clinical handover, and because he was busy. He had the additional task of doing the pharmacy inventory and ordering because the pharmacy deadline for the Christmas period was the following day, and that took 4-5 hours. RN Nuevo disputed that the handover document use had included the information that Patient A was in opiate withdrawal and had IM Stemetil and PRN medications charted. He admitted that he had not directed EN Day to read Patient A's clinical notes or records, stating that she is a capable enrolled nurse and is also responsible for reading patient notes. RN Nuevo admitted that he did not implement the treatment plan requiring four hourly observations, as this was not handed over verbally or in writing by the previous shift. 20. RN Nuevo denied particular 4, stating that he was never asked to attend the patient cells at any time during the shift. He denied particular 5, stating that he had written in Patient A's notes "Nursing: Pt settled overnight. Nil issues raised" at the end of the shift because the patient had not called for assistance overnight and the correctional officers did not alert him or EN Day of any issues with Patient A. 21. RN Nuevo admitted that he failed to ensure that the morning shift staff on 7 December 2017 were provided with a clinical handover of Patient A, stating that the handover he was given was incomplete. He acknowledged that he did not get permission from the afternoon shift or day shift NUM to leave early, stating that they had had a busy night and were told to go home after handover. 22. The Tribunal found all seven particulars established. In reaching those findings, the Tribunal did not accept RN Nuevo's evidence that the word "Currently in Opiate W/D. IM Stemetil 12.5mg given, PRN meds charted" were not included in the handover document provided in the handover from the afternoon shift; and that if in fact those words were not included, the fact that Patient A was a new admission housed in a detox cell for whom reception screening had not been completed was sufficient to have alerted him as nurse in charge on the night shift that he, or EN Day, needed to check the clinical notes to see what care was required: Nuevo Stage 1 at [129]-[131]. In addressing the disputed evidence as to whether there was a call out by Patient A requesting to see a nurse to which RN Nuevo did not respond appropriately, the Tribunal concluded that the contact by Patient A with a correctional officer and his subsequent conversation with another officer which RN Nuevo heard was, in the context, such that RN Nuevo should have taken steps to check directly with Patient A and not rely on what he had overheard. The Tribunal was satisfied that RN Nuevo failed to respond to Patient A's request for nursing assistance: Nuevo Stage 1 at [141]-[142]. The Tribunal was also critical of RN Nuevo's documentation in Patient A's clinical notes, concluding that the entry was not accurate or comprehensive, and was an observation that RN Nuevo had not made: Nuevo Stage 1 at [143]-[145].
In Nuevo at [163] - [164] the Tribunal concluded that Mr Nuevo was guilty of professional misconduct as alleged in Complaint Two. It stated: [163] The HCCC submits that RN Nuevo's failure to attend Patient A after being told of his request to see a nurse, his failure to review Patient A's notes prompted by those requests, and his inaccurate note in Patient A's progress notes in circumstances where he was aware that Patient A had twice asked to see a nurse, in themselves justify a finding of professional misconduct. In the alternative, the HCCC submits that RN Nuevo's conduct as a whole warrants a finding of professional misconduct. [164] The Tribunal acknowledges, as did Ms Muller,(Independent Expert) the challenges of nursing in a custodial setting. The Tribunal has noted above its concerns as to the appropriateness of diverting one of only two nursing staff on the night shift from the provision of clinical care to the task of undertaking the pharmacy inventory and ordering, occupying a substantial part of that shift. However, the Tribunal agrees with Ms Muller that provision of patient care should have been the primary focus, and none was provided by RN Nuevo, either directly or by his requesting EN Day to provide that care. The Tribunal is satisfied that the conduct established in each of particulars 4 and 5 of Complaint One, and when all the particulars are considered together is conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. RN Nuevo is guilty of professional misconduct under s 139E of the National Law.
In making the order for cancellation in Nuevo (No 2) at [35]-[38] the Tribunal stated: 35. It was readily apparent in RN Nuevo's oral evidence, and as the HCCC acknowledged, that he is remorseful for his misconduct. Based on his continuing education, and as confirmed by his referees, he has taken steps to improve his clinical knowledge to ensure that his shortcomings are rectified. That evidence, and the positive statements by his referees as to his competence and diligence, was not contested. RN Nuevo's present fitness to practice was not in issue. RN Nuevo has acknowledged and attempted to address the personal and professional issues that his failures in providing care for Patient A and the disciplinary process itself have raised for him. 36. That said, the Tribunal acknowledges the objective seriousness of RN Nuevo's failures in ensuring that Patient A was provided with the nursing care to which he was entitled. The failure to follow up with Patient A and the recording of misleading and inaccurate information in his notes was particularly egregious, and involved an element of wilfulness and dishonesty. While the Tribunal is confident that RN Nuevo would not in a similar situation make the same choice again between his clinical role and a non-clinical task, his conduct on the night of 6 December 2017 was unacceptable and should be denounced as such. As acknowledged in Do, protective orders must not only act as a deterrent to the individual concerned but to the general body of practitioners, and maintain public confidence that those whose conduct does not meet the required standards will not be permitted to practise. 37. The Tribunal agrees with the HCCC that a reprimand alone, as submitted by RN Nuevo, would not meet the protective purpose. A reprimand serves as a rebuke for the misconduct and pursuant to s 225(j) of the National Law would appear on the practitioner's record of registration maintained by the Australian Health Practitioner Regulation Agency: Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156. While such an order serves to denounce the conduct and provide deterrence, and the disciplinary proceedings themselves are denunciatory in part, the seriousness of RN Nuevo's conduct, in particular as found in response to particulars 4 and 5, requires strong denunciation and an effective deterrent. 38.The Tribunal agrees with the HCCC that the appropriate course is to cancel RN Nuevo's registration The HCCC seeks an order under s 149C(7) of the National Law to impose a period of one year before an application for review and reinstatement order may be made. The purpose of such an order is that in setting a minimum period within which RN Nuevo should not be able to practise his profession it sends a message to him, to the profession, and to the public, about the seriousness of his conduct. It also holds open the possibility that he may, with demonstrated rehabilitation and reformation, be able to return to the profession at some time: Chen v Health Care Complaints Commission [2017] NSWCA 186…
In determining the appropriate non review period before which Mr Nuevo could seek reinstatement, the Tribunal highlighted the lapse of five years since the events the subject of the complaint, with no issues with Mr Nuevo's practise as a registered nurse. The Tribunal considered that the length of disqualification proposed by the Commission would go further than is required for the proper protection of the community and the proper purposes of such an order. It decided a shorter period of six months was appropriate.

The application for reinstatement

In the application, which is the subject of this matter, and which was filed in the Tribunal on 9 November 2023, the applicant seeks the following order: Reinstatement as a registered nurse to the register of nurses.
The application sets out the following grounds: The Applicant is now entitled to apply to NCAT for an order for reinstatement to the register of nurses.

Provisions of the National Law

Section 163A of the National Law provides that a person may apply for a review of a "relevant order" which includes an order that the person's registration be cancelled. An application may not be made while the terms of the order provide that an application for review may not be made (see s 163A(3)(a)) of the National Law). The period of six months, within which the 2023 Tribunal specified that a review application may not be made, expired on 14 September 2023, so Mr Nuevo was eligible to apply for a review of the cancellation of his registration when he filed this application.
After conducting an inquiry into an application for review under s 163A of the National Law, in a case where registration has been cancelled, the Tribunal may dismiss the application (s 163B(1)(a)) or make a reinstatement order (s 163B(1)(c)) National Law.
The National Law provides, in s 163B(3), (3A) and (4): (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. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (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.
The purpose of a review, in a matter of this type, is to determine the appropriateness of the order cancelling the registration continuing in force as at the time of the review (s 163C(1) National Law). It is not the purpose of the review to reconsider the decision to cancel the registration or to reconsider any findings made in connection with the making of that decision (s 163C(2) National Law).
In conducting this review, we bear in mind the objective and guiding principle of the National Law, which is set out in s 3B: 3B 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. Note - This section is an additional New South Wales provision.
We also have had regard to the objectives of the national registration and accreditation scheme of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a) National Law).
Mr Nuevo bears the onus of demonstrating that he can be trusted to practise in a way that conforms to the professional standards expected of a nurse and which presents no risk to the safety of the public or to the confidence of the public in the nursing profession: Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [18]-[19].

The Applicant's evidence.

Mr Nuevo said that he had read, reviewed, and accepted the Tribunal's findings in its decisions in both matters. He had reflected on his conduct. He took full responsibility for the mistakes he had made and for which he held regret. He realised the steps he should have taken in focusing on patient care, clinical documentation, and the clinical handover.
Mr Nuevo left the employment of Justice Health in May 2018. From November 2018 until the cancellation of his nursing registration he worked as a registered nurse with Northern Sydney Local Health District (NSLHD) at the Health Contact Centre (HCC). During this time he practised as a RN with conditions attached to his nursing registration. These conditions included supervision.
Since cancellation of Mr Nuevo's registration in March 2023 he has stayed engaged in the health sector and remained working with NSLHD at HCC as an administration officer. He has also undertaken a substantial amount of targeted education. Details of his recent education was set out in his Curriculum Vitae and continuing professional development records contained in a bundle of documents tendered in support of his application and which was in evidence.
As an RN with NSLHD Mr Nuevo was involved in the delivery of community health services. His role included being an advocate for patients, conduct interviews with, and triage of patients; assess priority for community nursing needs and arrange services to meet patient needs within the community and thus avoid hospitalisation. In his current administrative role his tasks include registration and admissions for child and health services.
As to his future plans if he were to be re-instated Mr Nuevo, said he had no plans to return to nursing in a clinical setting. He liked working in a community setting. He also indicated that that if conditions were to be attached to his registration, he understood that the broader purpose of this was patient safety. He had no problem with supervision, and he wanted to prove that he could practise safely.
Mr Nuevo provided two references from Ms D Armstrong and Ms M Christiansen.
Ms Armstrong is the operational manager for the Health Contact Centre (HCC) at NSLHD. She provided a reference dated 9 November 2023 which indicated that Mr Nuevo has worked with HCC as a registered nurse from 19 November 2018 until 3 April 2023 and then continued to work with HCC as an Administrative Officer from 4 April 2023 to date. Ms Armstrong was Mr Nuevo's direct line manager in both these roles. Mr Nuevo had disclosed the disciplinary proceedings before the Tribunal to her and she had reviewed the Tribunal's decisions and orders.
Ms Armstrong stated that Mr Nuevo had always worked within his scope of practice. He had upheld NSLHD core values and worked with patients and colleagues in a professional and respectful manner at all times. With reference to Mr Nuevo's performance within a HCC environment, she considered him fit to be reinstated as a registered nurse "in this limited context with clinical supervision, re-orientation, and education to support his reintegration into the clinical workplace."
Ms Christiansen is a Clinical Nurse Specialist at HCC. She has known Mr Nuevo as a colleague since he started at HCC in 2018. She provided a reference dated 30 October 2023. Ms Christiansen was aware of the disciplinary proceedings and had read the Tribunal's decisions. She expressed the view that Mr Nuevo had worked very hard to remediate any gaps in knowledge that had been highlighted in the decisions.
Ms Christiansen stated that Mr Nuevo was an honest, kind, and compassionate man. The incident and subsequent cancellation had affected him personally and professionally. But rather than complain he had chosen to learn from it and shared his learning and growth with others. She believed he was an asset to the profession, representing the profession as one which is compassionate, educated, and honest. She suggested that reinstatement with "sufficient supports that his reinstatement to RN be as successful as possible".

The Applicant's Submissions

It was submitted on behalf of Mr Nuevo by Mr Thompson (NSW Nurses and Midwives Association) that Mr Nuevo had demonstrated insight and remorse and taken steps to improve and correct his clinical practice.
Mr Nuevo was aware that he had a duty to a vulnerable patient in his care. He has a clear understanding now of how he must conduct himself to the requisite professional standards required as a RN and health professional.
It was submitted by Mr Thompson that it was not necessary for Mr Nuevo to have conditions placed on his nursing registration in order for him to safely return to practice as a RN. He has previously had practice conditions on his nursing registration and had all, but basic administrative conditions removed. It is not necessary to repeat this process and there is no recency of practice considerations that would warrant the re-application of conditions on his nursing registration. Prior to the cancellation of his nursing registration, Mr Nuevo was practicing as a RN safely as recently as March 2023. Since the incident that led to the initial complaint and the cancellation of his nursing registration, he had no other complaints concerning his practice.
It was further submitted that if the Tribunal found conditions were appropriate then the conditions that should be preferred were "indirect remote". We understood this to mean that a potential supervisor did not need to be present or even accessible at the workplace.

The Commission's submissions

The Commission supported reinstatement. It did not wish to make submissions on the merits of reinstatement. Its concern, and its submissions were focused on the appropriate conditions which ought to be attached to Mr Nuevo's registration.
It submitted that Mr Nuevo has not been in a supervisory or clinical role since early 2018. If no conditions were imposed, then once reinstated Mr Nuevo could potentially practice in any nursing setting and go into in any role. Remote supervision was not appropriate. The Commission presented a document containing proposed conditions the purpose of which was to assist the Tribunal in the process of formulating potential conditions if required.

Consideration

In our view the regulatory process had gone a long way to improving Mr Nuevo's practice. Mr Nuevo has had time away from nursing to reflect on the shortcomings of his nursing practice which were central to the complaint. He demonstrated through his oral evidence that he had taken the time to deeply reflect on his practice as a registered nurse (RN). He understood that his practice as a RN fell well below the standards of the profession. We believed his expression of remorse and insight was genuine.
Having regard to all of the evidence, we find that Mr Nuevo has demonstrated that, as at the date of the hearing of this application, he can be trusted to practise in a way that conforms to the professional standards expected of a nurse.
We are confident that Mr Nuevo can now practise as a nurse in a manner which does not compromise the health and safety of the public, or place at risk the maintenance of the confidence of the public in the nursing profession. We find that Mr Nuevo is now capable of practising nursing in a way which conforms to the professional standards expected of a nurse and is highly motivated to do so.
We determine that Mr Nuevo is entitled to a reinstatement order. However in our view that registration ought to be subject to a supervision condition. The submissions of the Commission have significant force on this point. We have also had regard to the comments made in the references provided by Mr Nuevo. Both Ms Armstrong and Ms Christiansen are well placed to make the observations that they did that supervision would support Mr Nuevo's reintegration. We find that supervision is aligned with the objective and guiding principle in the exercise of our functions under the National Law that the protection of the health and safety of the public must be the paramount consideration.
The Australian Health Practitioner Regulation Agency (AHPRA) has produced a Supervised Practice Framework dated 1 February 2022 which is capable of applying to nurses. The levels of supervised practice are designed to make sure that the supervisee practises safely. There are four levels of supervised practice described in this framework. AHPRA notes that not all levels will be used by all National Boards.
The levels as set out in the Framework at Point 5 page 8 are: 1. Direct: Supervisor physically present at all times to observe the supervisee 2. Indirect 1 (present): Supervisor physically present at the workplace 3. Indirect 2 (accessible): Supervisor is accessible by phone or other means and available to physically attend the workplace. 4. Remote: Supervisor is not present at the workplace
In our view level indirect 2 (accessible) is the most appropriate to these circumstances. It would assist Mr Nuevo in his reintegration if his supervisor were accessible and available to physically attend the workplace if required.

Costs

On behalf on Mr Nuevo it was submitted that each party should bear their own costs, especially in circumstances where Mr Nuevo is successful in obtaining an order for re-reinstatement. Mr Nuevo has not engaged in conduct that would warrant an order for costs being made against him and is currently in the process paying off a costs order concerning his original matter. In support of this position reference was made to Brown v Health Care Complaints Commission [2015] NSWCATOD 40 at [32]-[36] which in turn drew on Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 at [56]-[58].
The Commission sought its costs. In support of its position it referenced Moslemi v Health Care Complaints Commission [2022] NSWCATOD 170 at [39], [41] and [50] and Ake v Health Care Complaints Commission [2019] NSWCATOD 165.
The Tribunal's power to order costs, as conferred by Sch 5D, cl 13 of the National Law.
Costs are discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide the exercise of the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43] referencing Williams v Lewer (1974) 2 NSWLR 91 at 95.
In general terms, cost orders are ancillary to the disposition of substantive issues in controversy: Health Care Complaints Commission v Ake [2018] NSWSC 1170 at [11].
For costs purposes, a fundamental feature of the outcome of the original disciplinary proceedings is that a party, usually the Commission, has had to run its case often over the practitioner's opposition to satisfy the Tribunal that the practitioner was guilty of professional misconduct to secure an order that registration should be cancelled for the protection of the community: Health Care Complaints Commission v Ake at [24]. As made clear by Philipiah, at [45] normally unless there is some disentitling conduct, a costs order compensates the Commission for that work.
For costs purposes in reinstatement proceedings, the Tribunal has considered it a misnomer to describe an applicant who is reinstated following an inquiry to review a "relevant order" as having been "successful" and thereby should, at the least, not be exposed to the respondent's costs: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [90]. There, the Tribunal reasoned that this characterisation "misunderstands the nature of the respondent's involvement in the proceedings". The Tribunal pointed out 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.
A fundamental feature in reaching an outcome in a reinstatement application made by a practitioner is that there is a public interest in the Tribunal being assisted by the Commission. Without a contradictor, there is a potential risk that the Tribunal might only have available the self-serving evidence adduced by an applicant. In this sense, there is a public interest in ensuring that practitioners found guilty of professional misconduct are not lightly restored to the register: in Ristevski v Medical Council of NSW [2016] NSWCATOD 18 at [71].
If a practitioner wants to return to practice, they must initiate reinstatement proceedings, and as the statutory contradictor, the Commission must respond to it. In this case, it cannot be said that there is any disentitling conduct on the part of either Mr Nuevo by merely initiating the application or by the Commission in responding to it.
It is the nature of a respondent's involvement in reinstatement proceedings which provides the material upon which to exercise the discretion to award costs. If there is value to the work done by a respondent Commission, for example in testing and responding to the substance of a reinstatement application which is directed towards the pursuit of the protective purpose of the disciplinary regime, then it is that work which is capable of being compensated: Mackie v Health Care Complaints Commission [2023] NSWCATOD 55 at [27]-[31].
The Tribunal should be vigilant in the making of costs orders and not compensate a respondent who proves in the preparation and conduct of their role to be unconstructive, unduly hostile, or whose participation proves to be token. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused: Ristevski at [86] and [87].
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].
In the circumstances of this case the Commission appropriately supported reinstatement from an early stage. There was only one witness, Mr Nuevo, and the Commission confined its cross examination. It was focused and targeted in its submissions as to the appropriate conditions to be attached to registration. It assisted in the process of formulating conditions. Its position, reflecting the protection of the public, that it was appropriate to include a condition of supervision, found favour. We have no criticism of the Commission's participation.
We have sympathy for Mr Nuevo's position in that he is still paying off the costs order from the original disciplinary proceedings. However in the exercise of our discretion, the appropriate role played by the Commission in the proceedings and adopting the approach taken in Ristevski and Ameisen, we have decided to order that Mr Nuevo pay the costs of the Commission as agreed or assessed.

Orders

We will make the following orders; 1. A reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) is made in respect of Jeremy Nuevo ('the practitioner'), subject to the following conditions being imposed upon his registration: 1. To practise under indirect supervision in accordance with the Nursing and Midwifery Council of NSW (the Council) regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. 1. To nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council. 2. To authorise the approved supervisor to provide written reports to the Council at three monthly intervals, or as specified by the Council. 3. To authorise the Nursing and Midwifery Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition. 4. The supervision period is to occur for a period of 6 months, and for any further period determined by the Council. 1. The Nursing and Midwifery Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 2. Sections 125, 126 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's place of residence is anywhere in Australia other than New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia. 1. The practitioner must pay the legal costs of the Health Care Complaints Commission in this matter, to be agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2024

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (19)