Health Care Complaints Commission v CSM

[2018] NSWSC 902

Supreme Court

New South Wales

Medium Neutral Citation:

Health Care Complaints Commission v CSM [2018] NSWSC 902

Hearing dates:

20 July 2017

Date of orders:

18 June 2018

Decision date:

18 June 2018

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Allow the appeal in part

 

(2) Set aside order 1 made by the Tribunal on 5 October 2016.

 

(3) Otherwise refuse leave to appeal and dismiss the appeal in so far as it challenges the non-publication order made by the Tribunal.

 

(4) Remit the matter to the Civil and Administrative Tribunal for further hearing confined to legal argument on the issue of what protective orders should be made based on the evidence tendered and heard on 27 June 2016.

 (5) The parties to provide written submissions on costs of the appeal within 10 days, failing which I will order that each party pay its or his own costs of this appeal.

Catchwords:

ADMINISTRATIVE LAW – judicial review – appeal on question of law – procedural fairness – protective orders – where Tribunal indicated contentment with proposed orders but then did not make all proposed orders – where procedural fairness was denied – whether certain orders may only be made as a package – statutory interpretation – individual orders may be made to the exclusion of others

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW) ss 38, 64, Schedule 5 cl 29
Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 8
Health Care Complaints Act 1993 (NSW) s 3
Health Practitioner Regulation National Law (NSW) ss 3A, 52, 139B, 139E, 149B, 149C, 149E, 163B, 165M, Schedule 5 cl 7

Cases Cited:

Bahramy v Medical Council of New South Wales [2015] NSWCA 384
BHP Billiton v Dunning [2013] NSWCA 421
Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56
Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135
Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Huber [2017] NSWCATOD 68
Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
Health Care Complaints Commission v Saedlounia (No 2) [2017] NSWCATOD 77
Health Care Complaints Commission v Turner [2016] NSWCATOD 163
Health Care Complaints Commission v Vo [2014] NSWCATOD 127
Prakash v Health Care Complaints Commission [2006] NSWCA 153
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6
Re UF [2017] NSWSC 437

Category:

Principal judgment

Parties:

Health Care Complaints Commission (Plaintiff)
CSM (Defendant)

Representation:

Counsel:
C Webster SC (Plaintiff)
A Abadee/E Ball (Defendant)

  Solicitors:
Crown Solicitors Office (Plaintiff)

File Number(s):

2016/326966

Publication restriction:

Until further order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), publication of the name of CSM and Patient A, and any information tending to reveal the identity of CSM or Patient A is prohibited, except as may be necessary for the proper conduct of the proceedings. I make this order upon the ground that the order is necessary to prevent prejudice to the proper administration of justice, in that the Tribunal of the NCAT Occupational Division on 27 June 2016, made an order confining disclosure of the respondent CSM’s name to be restricted to the parties and their representatives and to any other persons or bodies where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings.

 Decision under appeal 

Court or tribunal:

Civil and Administrative Tribunal of New South Wales

Jurisdiction:

Occupational Division

Citation:

[2016] NSWCATOD 125

Date of Decision:

5 October 2016

Before:

A Britton, Principal MemberS Kennedy, Professional MemberA Flanagan, Professional MemberB Smith, General Member

File Number(s):

1620050

Judgment

1. The Plaintiff, the Health Care Complaints Commission (“the HCCC”), appeals from part of the decision of the Civil and Administrative Tribunal of New South Wales made on 5 October 2016 regarding a registered nurse (“CSM”) working at a psychiatric facility who commenced a sexual relationship with a patient under his care.

2. CSM admitted the conduct, admitted it was professional misconduct and consented to a package of proposed orders which included cancellation, disqualification and prohibition (ss 149C(4)(a)-(c) and 149C(5) of the Health Practitioner Regulation National Law (NSW) (“the National Law”)). Despite this position and in the absence of any argument about protective orders, the Tribunal made only one of the protective orders.

3. The Further Amended Summons filed in court on 20 July 2016 alleged errors by the Tribunal in its inadequate protective orders and its accession to CSM’s application for a non-publication order over his name.

4. The appeal was defended, CSM arguing that there was no error associated with those aspects of the Tribunal’s decision, and that there is no basis for appellate review of the suppression order.

Background facts

5. The plaintiff, the HCCC is an independent body established under statute for the purpose of receiving and assessing complaints under the Health Care Complaints Act 1993 (NSW) relating to health services and health service providers in New South Wales and investigating and assessing whether any such complaint is serious, and if so, whether it should be prosecuted, as well as prosecuting serious complaints and resolving or overseeing the resolution of complaints (s 3 of the Health Care Complaints Act 1993 (NSW)).

6. The National Law is central to these proceedings. I adopt the analysis of the statute’s role and purpose as explained by the Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 (per Meagher JA, Basten and Emmett JJA agreeing) at [34]-[35]:

[34]   The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include 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 to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3.

[35]   The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.

7. CSM was reported to the HCCC because whilst he was working in 2014 as a registered nurse at a leading Sydney psychiatric hospital (“the Hospital”), he commenced a relationship with a female patient including touching, kissing, cuddling and sexual intercourse, phone contact and text messages and roster information to enable arrangements for contact.

8. When the relationship was disclosed, CSM was suspended and then terminated and has not worked as a nurse practitioner since that time.

The complaint and CSM’s admissions

9. On 3 March 2016, the complaint was referred to the New South Wales Civil and Administrative Tribunal (NCAT) for determination. The HCCC complained that the conduct constituted both unsatisfactory professional conduct and professional misconduct under ss 139B and 139E of the Health Practitioner Regulation National Law (NSW) (“the National Law”).

10. In correspondence during late 2014 and 2015, CSM admitted the conduct, apologised to his employer and the patient and others, removed himself from practice and completed a statutory declaration stating that he would not apply for re-registration. Documents before the Tribunal indicated that CSM’s wife and children were unaware of the conduct and the reason why he left his job at the Hospital. He had spent 25 years working as a registered nurse and was 54 years old at the time of the hearing.

11. In a letter dated 30 April 2015, CSM requested that his identity be kept confidential to protect the identities of both the patient and himself for the following reasons:

“I have real and genuine concerns for the patient’s safety and my own if her partner finds out what occurred. There are people/patients that would know both of us, that could inadvertently, through social media or otherwise, disclose identities.

2. My wife and children (whom I love dearly) are not aware of what occurred – if they found out my family would be devastated/destroyed.”

12. In a letter dated 11 May 2016 (to the Registrar at NCAT), CSM made a formal request for a non-publication order over his name pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) for the following reasons:

“1. The risk to Patient A’s personal safety, as well as that of myself and my family: If my name is disclosed in publications relating to the proceedings, it is likely that Patient A’s identity will be exposed. Staff and patients at the hospital will be able to infer the identity of Patient A, and through the use of social media, this information could quickly spread and become widely known among the hospital community. This would create a very real risk of patient A’s partner becoming aware of events, which poses a risk to Patient A’s personal safety. Patient A did disclose to myself and other hospital staff at the time that her partner was both very aggressive and jealous. If Patient A’s partner were to become aware of events, my own personal safety and that of my family would also be at risk for the same reasons.

2. The harm to the welfare of my children and family: My family is unaware of what has occurred, other than me no longer working as a nurse, and if my name is disclosed in publications relating to the proceedings, the welfare of my children and family would suffer great harm. If my wife were to become aware of events, because of the disclosure of my name, it is likely that the family unit will breakdown. This would have a significant and damaging impact upon the welfare and mental health of my children.

3. The significant harm to my own mental health: The proceedings have already had a major detrimental impact on my mental health. I have needed to have ongoing crisis counselling since losing my job and continue to do so (please see attached letter from my counsellor). The damage to my mental health will become unbearable, if my name is disclosed, due to the associated distress that the breakdown of my family unit would cause.”

13. In a document headed “Reply to application for disciplinary findings” filed in May 2016, CSM formally admitted all the particulars of the complaint, stating that he fully acknowledged that his conduct fell well below the standard reasonably expected of a practitioner of his training and experience, and that he would “accept whatever disciplinary measures the Tribunal sees fit to impose”. He asked the Tribunal to take into account his early and consistent acknowledgement of his culpability, his expressions of remorse and his previous unblemished record as a registered nurse.

14. On 24 June 2016, as part of the preparation for the hearing the following Monday, HCCC’s lawyer sent a letter to CSM setting out the orders that would be sought by the HCCC at the hearing and seeking CSM’s consent to those proposed orders. The orders proposed were:

1.   That if you were still registered, that the Tribunal would have cancelled your registration (s149C(4)(a)) National Law);

2.   That you will be disqualified from being a registered nurse for a period of 1 – 2 years (s149C(4)(b) National Law);

3.   That the National Board record the fact that if you were still registered, the Tribunal would have cancelled your registration (s149C(4)(c) National Law);

4.   That you be prohibited, for a period of 1 – 2 years, from providing the following health services on a public, private or volunteer basis (s149C(5) National Law):

(a)   Medical, hospital, nursing services (including services as an assistant in nursing); and

(b)   Community health services.

5.   A non-publication order preventing the publication of Patient A’s name (s64 Civil and Administrative Tribunal Act 2013 and Clause 7, Schedule 5D National Law); and

6. Costs (Clause 13, Schedule 5D National Law).

15. By email dated 26 June 2016, CSM consented to all proposed orders except the order that he pay costs.

The hearing on 27 June 2016

16. The Tribunal comprised a judicial member, two professional members and a general member. The HCCC’s letter and CSM’s reply dated 24 June 2016 were tendered early in the hearing (p 5 of the Transcript of hearing). A plan was then discussed on the record for dealing with CSM’s application for the suppression order, “housekeeping matters” in respect of the complaint, and submissions in respect of costs (p 6 of the Transcript).

17. Counsel for the HCCC made it clear that she opposed the suppression order over CSM’s identity, but as is standard in such matters, sought a suppression order over Patient A’s name.

18. CSM was examined at length regarding the basis for his application for the suppression order over his own name.

19. This was followed by legal argument on this issue. Health Care Complaints Commission v Vo [2014] NSWCATOD 127 was relied upon by the HCCC to support the submission that there were no exceptional circumstances which would warrant the suppression of CSM’s name in this case and the application should be refused.

20. In relation to the proposed protective orders sought by the HCCC and agreed to by CSM, the following was said (p 5 of the Resumed Hearing Transcript):

Judicial Member:   “I should advise the parties now we accept, with some drafting, we are content with the proposed protective orders that have been agreed to by the parties. My question shouldn’t be taken to indicate that we think they’re not harsh enough or they’re too lenient, but I just want to ask you a couple of questions about the issue that I have been asking Ms Thomas about …”

21. There were then some short questions regarding the timing of the commencement of the relationship and what CSM had said at a Nursing and Midwifery Council hearing in s 150 proceedings in November 2014.

22. Oral submissions regarding costs followed.

23. At the completion of the hearing, the judicial member stated the Tribunal’s decision on the suppression order in favour of CSM:

“In relation to the application for a suppression order, I won’t give reasons today. The panel has considered it, but my decision is that we will grant the order. Pursuant to clause 7 of Schedule 5D of the National Law, the disclosure of the Respondent’s name is restricted to the parties, their representatives, and to any other person or bodies where disclosure is necessary for the effective implementation and administration of the orders that the Tribunal will make in these proceedings.”

24. Clause 7 of Schedule 5D titled “Release of information” provides as follows:

7   Release of information

(1)   The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)—

(a)   direct that the name of any witness is not to be disclosed in the proceedings; or

(b)   direct that all or any of the following matters are not to be published—

(i)   the name and address of any witness;

(ii)   the name and address of a complainant;

(iii)   the name and address of a registered health practitioner or student;

(iv)   any specified evidence;

(v)   the subject-matter of a complaint.

(2)   A direction may be amended or revoked at any time by the person presiding.

(3)   A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to—

(a)   a person who requested the direction; and

(b)   the complainant or the registered health practitioner or student concerned, as appropriate; and

(c)   another person the person presiding thinks fit.

(4)   For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

…

The Tribunal’s decision of 5 October 2016

25. The Tribunal’s decision was published on 5 October 2016 and concluded with the following orders:

1. The Tribunal decided under s 149C(4)(a) of the National Law that if CSM was still registered as a nurse practitioner, the Tribunal would have cancelled his registration,

2. CSM must pay the HCCC’s costs of the proceedings as agreed or assessed.

26. There were detailed reasons for the non-publication order over CSM’s name ([74]-[94]). The order was made pursuant to cl 7 of Schedule 5D which provides as follows:

7   Release of information

(1)   The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)—

(a)   direct that the name of any witness is not to be disclosed in the proceedings; or

(b)   direct that all or any of the following matters are not to be published—

(i)   the name and address of any witness;

(ii)   the name and address of a complainant;

(iii)   the name and address of a registered health practitioner or student;

(iv)   any specified evidence;

(v)   the subject-matter of a complaint.

(2)   A direction may be amended or revoked at any time by the person presiding.

(3)   A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to—

(a)   a person who requested the direction; and

(b)   the complainant or the registered health practitioner or student concerned, as appropriate; and

(c)   another person the person presiding thinks fit.

(4)   For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

…

27. The reasons examined CSM’s evidence on the four reasons he advanced in support of the order. The first was the risk that Patient A might be identified because colleagues could draw a link between CSM and Patient A and social media discussion could reveal the relationship more generally, including to Patient A’s husband and children. She had been subjected to domestic violence in the past by the husband. Other reasons examined were CSM’s family and marriage and his own precarious mental health. The HCCC’s submissions on Vo were dealt with as were the statements of principle made by the Tribunal in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 about public interest.

28. The Tribunal reasoned that given the relatively small size of the Hospital and the risk to Patient A if the relationship was revealed [89]-[91], and CSM’s mental health, it was appropriate to make the order sought, acknowledging the relative rarity of such orders in that jurisdiction.

29. Regarding protective orders, the discussion commences with analysis of the particulars of the conduct in question. There is a formal finding ([19]) that there was “ample evidence that the conduct had occurred” and that CSM had admitted to it and acknowledged it amounted to professional misconduct.

30. Professional misconduct is defined in the National Law:

139E   Meaning of “professional misconduct” [NSW]

For the purposes of this Law, professional misconduct of a registered health practitioner means—

(a)   unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration; or

(b)   more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration.

The Tribunal referred to the evidence of the expert who described the conduct as falling significantly below the appropriate standard, and finally describing it as “selfish, unethical and exploitative”.

31. The Tribunal formally found all particulars except particular 2 (disclosing personal information regarding hobbies, children, and difficulties in his marriage) amounted to professional misconduct as described in the legislation.

32. Under the heading “What, if any, disciplinary orders should be made” the Tribunal referred to s 3A of the National Law and set out the principles articulated by Wright J in Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31 in deciding protective orders.

33. The orders sought by the HCCC are dealt with in paragraphs [60]-[65] of the decision, followed by an analysis in paragraphs [66]-[73] addressing the question of whether the Tribunal should exercise its power to make a prohibition order. (There is no appeal from the Tribunal’s decision not to make a prohibition order.)

34. The Tribunal noted in [61] that CSM consented to the orders proposed, and that CSM had declared that he had no intention of returning to nursing or working in an associated field.

35. The Tribunal determined that notwithstanding the findings made that the conduct amounted to professional misconduct, and thus qualified as misconduct sufficiently serious to justify a decision to suspend or cancel the registration, it did not follow that a prohibition order must be made.

36. In support of that conclusion, the Tribunal relied on Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [100], which states:

[100]   Although the Tribunal has concluded that Dr Jamieson's conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the present case. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 was a decision under the Medical Practice Act 1992 (NSW) but the relevant provisions of that Act are substantially the same as the applicable provisions of the National Law and the Court of Appeal's reasoning is equally applicable to the present case. At [67] it was held:

... However, it is clear that the definition [of professional misconduct] is focused on the nature of the conduct, which must have the capacity to justify such an order [suspension or cancellation], whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64 [which are substantially the same as ss 149 to 149C of the National Law], which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [s 149C(1) of the National Law is to a similar effect]. Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2) [see s 149B(2) of the National Law]. Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case : see, in relation to legal practitioners, Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ).

37. It seems the Tribunal placed reliance on the extract in Jamieson from Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 that the Tribunal’s discretion is “at large” and will “depend on the circumstances of the individual case”. Whilst in broad terms that statement is correct, the Tribunal did not provide the HCCC with an opportunity to address why, on the evidence in this case, the Tribunal should make the full package of agreed orders. Given what the Tribunal said about the proposed orders, the HCCC, unsurprisingly, assumed that all the orders agreed to would be made.

38. The Tribunal then continued:

“[62]   …Cancellation and suspension are but some of the orders available to the Tribunal following a finding of guilty of professional misconduct. While the safety of the public is the paramount consideration, any disciplinary order must nevertheless be commensurate with the seriousness of the impugned conduct. In making an appropriate order, consideration must also be given to the probability of recurrence of that conduct and the nature and extent of any justifiably apprehended harm.

[63]   CSM adduced no evidence to support his claim that his relationship with Patient A was the only time he had acted inappropriately with a patient. We understand the reason for this was because he in effect had acquiesced to any order the Tribunal decided was appropriate. Nonetheless, contained in the material tendered by the Commission was some support for that claim. For example, in a statement dated 23 February 2015 the Director wrote that she was shocked to learn that CSM had been involved with a patient. She wrote that in the 11 years she had known CSM there had “never been an issue” with his care or treatment of patients; he was known to be “quiet, diligent and caring” and had never been the subject of complaints by staff or patients. The manager of the unit where CSM was working when he was suspended provided a statement to the same effect.

[64]   Given the seriousness of the impugned conduct, we have decided to declare that if CSM were still registered we would have cancelled his registration.”

39. After some analysis, the Tribunal determined that order 1 sought by the HCCC should be granted but declined to make orders 2 or 3 (or 4) on the following rationale:

“[65]   As over two years have passed since the offending conduct and CSM claims to have no intention of returning to nursing, we have decided that no useful purpose would be served in exercising the power to order that CSM be disqualified from being registered, for a specified period of time. We are mindful that in not exercising that power, there would be nothing to prevent CSM from applying for reregistration. This does not mean that his application would necessarily be successful. CSM would need to satisfy the relevant review body that there was no real and material risk that the offending conduct would be repeated.”

40. There is nothing in the decision that demonstrates that the HCCC was given any opportunity at all to be heard on the issue of whether it was open to the Tribunal to make only one of the three agreed proposed orders, or whether it should take that course. CSM had consented to the orders and the Tribunal gave no indication it would not make the orders. On the contrary it was said “…we are content with the proposed protective orders that have been agreed between the parties”.

This appeal

41. The appeal is brought pursuant to Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) as a profession decision. An appeal lies of right on any question of law and with leave on any other ground (Schedule 5, cl 29(4)(b)).

42. Schedule 5, cl 29(7)-(8) set out the way this Court may deal with the appeals:

(7)   Non-lawyer appeals

The court in a non-lawyer appeal may:

(a)   decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and

(b)   permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.

(8)   In determining a non-lawyer appeal, the court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:

(a)   the decision under appeal to be confirmed, affirmed or varied,

(b)   the decision under appeal to be quashed or set aside,

(c)   the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(d)   the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the court.

43. The appellant seeks orders pursuant to s 149C(4)(b)-(c) of the National Law recording disqualification of CSM for a period of 1 year and recording in the National Register kept by the Board, that if the Defendant were registered as at 5 October 2016, the Civil and Administrative Tribunal of New South Wales would have cancelled his registration.

44. Section 149C provides relevantly as follows:

149C   Tribunal may suspend or cancel registration in certain cases

(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

…

(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.

45. Having found CSM was guilty of professional misconduct of a sufficiently serious nature to justify suspension or cancellation of his registration, and having made orders pursuant to s 149C(4)(a), it is asserted that the Tribunal made an error of law in failing to make the further orders sought.

46. First, it erred in law in denying the HCCC procedural fairness because the Tribunal stated during the course of the hearing, “we are content with the proposed protective orders that have been agreed to by the parties”. No notice was given to the HCCC that it proposed not to make the agreed orders.

47. Second, it erred in law in failing to give adequate reasons for refusing to make an order pursuant to s 149C(4)(c) of the National Law. Paragraph [65] of the Tribunal’s reasons are wrong because the legislation requires s 149 orders be dealt with as “a suite of orders” which necessarily follow once a finding pursuant to s 149C(4)(a) has been made (Health Care Complaints Commission v Do). The Tribunal failed to deal with the regime proposed or give any reasons why it did not do so.

48. The HCCC also seeks an order setting aside the non-publication/non-disclosure order made in respect of CSM’s name, arguing that it was an error in law or, alternatively, an error to make that order.

Submissions

a)   HCCC submissions regarding protective orders

49. The HCCC argued that having found CSM guilty of professional misconduct and deciding pursuant to s 149C(4)(a) of the National Law that had CSM still been registered as a nurse practitioner, the Tribunal would have cancelled his registration, orders 2 and 3 were “consequential” because order 2 would have provided for a specific period of disqualification and order 3 directs the National Board to record the effect of order 1.

50. There was no debate about the orders given that the Defendant consented to the orders sought (other than the costs order), and there was a statement by the Tribunal, in terms, as set out in ground 1(a) of the appeal, “We are content with the proposed protective orders that have been agreed to by the parties”. In the course of discussion regarding the costs order later in the hearing, there was an express statement by counsel for the Commission that there had been no debate about protective orders (Transcript p 80.6).

51. There is no doubt the Tribunal is bound by the rules of procedural fairness (s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW)), given the reference in that section to the rules of natural justice. From what appears in [65] of the Decision, the Tribunal may have proceeded under the misapprehension as to the mechanics of CSM seeking re-registration.

52. The argument in respect of the need to make orders 1, 2 and 3 proposed by the HCCC was that they are, in effect, a package of orders which control the registration of a person in circumstances where the person was not registered at the time of the hearing. The language of s 149C(4) supports the conclusion that all three elements were intended to be contained in an order pursuant to ordinary principles of statutory interpretation. The word “and” is a conjunction at the end up each sub-paragraph and it should not be interpreted as “or”, leading to a disjunctive reading of the sub-paragraphs.

53. Whilst reliance was placed on Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382; [1998] HCA 28 to the effect that a court construing a statutory provision strives to give meaning and effect to every word of the provision, alleviating any conflict by adjusting the meaning to give effect to the purpose and language of the provisions while maintaining unity of all of the provisions, what is sought to be made of that principle in the context of the interpretation of s 149C(4) was not entirely clear. A comparison with s 149B(2) of the National Law, where there is a clear conjunctive use of “and” was put forward as an illustration.

54. I interpolate here to observe that this does not solve the problem of the use of the word “may” in the chapeau before the series of alternatives (a), (b) and (c) in s 149C(4), which provides a discretionary basis, not a mandatory one.

55. It was specifically submitted that this package of orders is often made by the Tribunal in cases such as this. Three examples were given. However, I do not agree that the cases cited are useful guides on the issue. In respect of one of those decisions, the practitioner in question chose not to participate in the proceedings of the Tribunal at all, so the Tribunal had “no information which may shed light on the reasons for the behaviour” (Health Care Complaints Commission v Saedlounia (No 2) [2017] NSWCATOD 77 at [10]). In respect of another, the practitioner in question submitted to all orders sought (Health Care Complaints Commission v Huber [2017] NSWCATOD 68).

56. In the third, which involved misappropriation of drugs of addiction and questions of impairment and competency and a Local Court criminal conviction (Health Care Complaints Commission v Turner [2016] NSWCATOD 163), the Tribunal there carefully considered and provided reasons for the application of each of the protective aspects of s 149C(4), as well as explaining their reasons for making specific orders. There was no order made pursuant to s 149C(4)(c). There were other orders including the prohibition order under s 149C(5)(a) of the National Law given ongoing fitness issues and an order that the registrar notify the Nursing and Midwifery Council and the AHPRA of the orders that had been made. These decisions illustrate discretion and the need to identify with clarity the reasons for imposing particular conditions and orders.

57. Further written submissions dealt with the machinery for reinstatement under ss 149E and 163B, as well as the right for review in relation to a “relevant order” as defined in s 163A(4). It was argued that because there has not been any order here by the Tribunal cancelling CSM’s registration, in the absence of a disqualification order, there is no “relevant order” for the purposes of Division 8. This situation is problematic when read against [65] of the decision which seems to have an expectation that a review body would have a role in determining whether CSM ought to be permitted to be re-registered, and that therefore that requirement has a protective function. This shows a misunderstanding as to the processes. It was also argued that no reason was given for refusing to make an order under s 149C(4)(c) and this provides a specific basis to the complaint that insufficient reasons have been given.

b)   CSM’s submissions on protective orders and construction of s 149C(4)

58. The disciplinary powers under the National Law must be construed against the range of powers that NCAT holds upon complaints being established, which includes fines, the power to caution, reprimand or counsel, and the powers to suspend or cancel registration. Section 149C(4) should be construed in a way that acknowledges that it is one of a range of possible sanctions deployed as a matter of discretion.

59. The HCCC relying upon the “linguistic canon of construction” was not correct. This tenet of construction depends upon the context or purpose. There are circumstances where “and” should be construed disjunctively.

60. Textual considerations support reading the “and”, where it appears at the end of sub-paragraphs (a), (b) and (c) of s 149C(4), in a dispersive way for the following reasons:

1. The verb “decide” is used twice, both in (a) and (b), and if the HCCC’s construction was correct, there would be nothing in (b) to decide, because if the decision was taken to cancel registration, and there would be an automatic disqualification without the need for any decision about it, the word “decide” would have no work to do in that context. The Court is required under Project Blue Sky to give meaning to every word of the provision.

1. Section 149E makes it clear that a cancellation decision is distinct from a disqualification decision, and this reinforces the need for there to be two separate decisions in s 149C(4)(a) and (b) – one dealing with cancellation and one dealing with disqualification - rather than that these are a combination, and in effect automatic.

2. The word “may” as part of the chapeau to s 149C(4) works against, not for, the HCCC’s construction because it indicates a discretion applies to each and every one of the items listed after it. In Bahramy v Medical Council of New South Wales [2015] NSWCA 384 at [35], the Court of Appeal interpreted the observations of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 as accepting the existence of a discretion to make a disqualification order, after an order that cancellation would have been made. In Health Care Complaints Commission v Do, it was decided that a disqualification order should also be made, not that it was automatic upon the making of a cancellation order under s 149C(4)(a).

3. Section 149C(5) providing a discretion for prohibition is also consistent with there being available an exercise of discretion to decide whether to impose a disqualification order at all upon people who are no longer registered.

4. Acknowledging that the protective orders powers in sub-Division 6 of Division 3 of Part A to the National Law are to protect the public is well recognised, some protective powers may be punitive, and disciplinary powers should be construed in a fashion that yields a degree of flexibility commensurate with the broad range of considerations factored into the determination of what disciplinary powers to exercise (Prakash v Health Care Complaints Commission [2006] NSWCA 153 per Basten JA at [91]).

61. As a matter of statutory purpose, why would NCAT’s power to discipline a formerly registered practitioner with mental health issues and who had sustained a period of prolonged employment and foresworn any intention to practice in the profession, be fettered, or require imposition of the full range of disciplinary powers. Sub-paragraph (b) of s 149C(4) provides a prohibition for a particular period to applying for re-registration and (c) provides an administrative sanction by recording the decision for official or public purposes, and to that extent fulfils a punitive purpose.

62. Even bearing in mind the need for construction of the legislation so as to safeguard the public from the prospect CSM might change his mind and re-apply, there are other requirements that would place roadblocks in his way. For example, s 52(1)(c) and (e) of the National Law which provide as follows:

52   Eligibility for general registration

(1)   An individual is eligible for general registration in a health profession if—

(a)   the individual is qualified for general registration in the health profession; and

(b)   the individual has successfully completed—

(i)   any period of supervised practice in the health profession required by an approved registration standard for the health profession; or

(ii)   any examination or assessment required by an approved registration standard for the health profession to assess the individual’s ability to competently and safely practise the profession; and

(c)   the individual is a suitable person to hold general registration in the health profession; and

(d)   the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and

(e)   the individual meets any other requirements for registration stated in an approved registration standard for the health profession.

(2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83.

63. The Nursing Midwifery Board and Council are aware of the proceedings and have their own role to play in determining protection of the public and whether imposition of conditions could achieve that aim and decides whether CSM is eligible for general registration.

64. The limited nature of the protective order made by NCAT will not prejudice the public interest if CSM changes his mind and wants to re-register, although it was conceded that the NCAT may, perhaps erroneously, have believed that there would be a relevant review body to consider his reinstatement. In any event, difficulties in making application for reinstatement remain for CSM given what has occurred.

65. In respect of the procedural fairness ground, it was argued that the concern of the law is to avoid practical injustice (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6 per Gleeson CJ at [13]-[14]). In short, it was argued that what the HCCC has lost by way of practical injustice, is only the opportunity to argue its erroneous interpretation of the requirements of s 149C(4)(a)-(c). The HCCC had the opportunity to impress upon the Tribunal its construction of s 149C(4) as part of opposing the application by CSM for non-publication of his name, and they failed to do that.

66. In respect of appeal ground 1(b), that the reasons were inadequate for refusing to make an order pursuant to s 149C(4)(c), the statutory obligation to give reasons is in s 165M(1)-(2) which provide as follows:

165M   Tribunal to provide details of decisions

(1)   As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to—

(a)   the parties; and

(b)   the Council for the health profession in which the practitioner or student is registered (regardless of whether it is a party).

(2)   The statement of a decision must—

(a)   set out any findings on material questions of fact; and

(b)   refer to any evidence or other material on which the findings were based; and

(c)   give the reasons for the decision.

67. Neither provision stipulates that specific reasons must be given for imposing one available disciplinary sanction over another or not acceding to a party’s application that a certain form of sanction be imposed.

c)   HCCC submissions re non-publication order

68. The written submissions provide a series of cases where tribunals and courts have formed the view that the practitioner’s name ought not be suppressed. It was submitted that the Tribunal’s decision as to the potential identification of Patient A by virtue of disclosure of CSM’s identity was “mere speculation”, and that it would relate only to a small class of persons. More broadly, the HCCC submitted that the Tribunal’s approach was “inconsistent with the authorities”, which, it is said, require something special, exceptional or out of the ordinary before a Tribunal can make an order avoiding the result of disclosure of the practitioner’s name.

69. A significant part of the submissions were directed to the test under the Court Suppression and Non-publication Orders Act 2010 (NSW) and the requirement of s 8(1) of that legislation that the order be “necessary” to achieve certain aims. This is not the test that applied to the Tribunal’s decision-making regarding cl 7 of Schedule 5D of the National Law, which is a much wider test. A list of cases where the Tribunal (including the Medical Tribunal) determined that non-publication orders should not be made, was set out.

70. I pause here to observe that what each of those decisions show is that the Tribunal considered carefully the facts of each case and made a discretionary determination. None of those decisions included an argument that revelation of the name of the practitioner ran the risk that the patient in question could be identified.

d)   CSM’s submissions regarding the non-publication order

71. There is no error of law and accordingly the Court’s leave to appeal the decision to make a non-publication order is required. Leave should be confined to issues of principle, questions of public importance, or matters of administration or policy which might have general application, reasonably clear injustice, factual error unreasonably arrived at and clearly mistaken or unorthodox fact-finding. There should be only a limited approach to anything that is truly a question of practice and procedure.

72. In Re UF [2017] NSWSC 437, White J added a further constraint upon interference by a Court, namely the legislative intention that applications made under the law are dealt with by a body whose composition included persons of particular expertise to decide matters under the law.

73. Leave should not be given and eight reasons were advanced in support of this. First, imposition of a non-publication order is quintessentially a matter of practice and procedure. Second, disclosure to appropriate public bodies that would govern any re-application for registration had been allowed for by the order. Third, the Tribunal’s determination relied, to some extent, on credibility findings it made (implicitly) in favour of CSM. Fourth, the decision is in effect peripheral to the main question of what protective order(s) should be imposed. Fifth, there is no real issue of principle. Relevant authorities were brought to NCAT’s attention in argument. Sixth, the result is not manifestly unfair. Seventh, there is no issue of general importance identified. Eighth, the making of the order did not go beyond what was arguable.

e)   HCCC’s submissions in reply on the non-publication order

74. The non-publication order was not interlocutory in nature, decided as it was at final hearing. It was disputed that it was a practice and procedure decision and that in reliance on BHP Billiton v Dunning [2013] NSWCA 421, leave to appeal should be given for a question of principle, where the question was of public importance or there was a clear injustice. The decision was clearly wrong based on the material before the Tribunal, and there is a public interest in saying so. The decision deals with a question of principle, and it departs from Court authority.

Decision: Protective orders

75. It is within the discretion of the Tribunal to make some (or all) of the protective orders available in the legislation in pursuit of the requirement to provide for the protection of the public by ensuring that only health practitioners who are suitable trained and qualified to practise in a competent and ethical manner are registered. There is no obligation that a Tribunal make all, or any particular combination of available protective orders. There is persuasive merit in the legislative interpretation arguments made on behalf of CSM. The use of the word ‘may’ in the chapeau to s 149C and the conjunctive ‘and’ between paragraphs (a), (b) and (c) of s 149C(4), provides an option for a tribunal to make some or all of those protective conditions. The word “decide” in ss 149C(4)(b) would have no work to do if (b) and (c) were automatic consequences to (a). Decisions where a Tribunal or Court imposed conditions consistent with (a), (b) and (c) of s 149C(4) have no binding effect on the Tribunal. I accept the submission made by counsel for CSM that Meagher JA in Health Care Complaints Commission v Do is voicing a discretion to make that combination of orders, not that that combination is mandated by the text of the legislation.

76. The single protective order made was a course reasonably open to the Tribunal on an interpretation of the legislation and relevant legal principles.

77. The issue here is that in declining to make the additional protective orders that were the subject of the proposed orders and consent of CSM, and in circumstances where the Tribunal specifically stated that they were “content with the orders”, there was a failure to follow due process. The HCCC was not given any opportunity to either posit an argument that the protective orders should be seen as a package, and that the proper interpretation of s 149C(4) required that those orders be made as a package, or in the alternative, to argue that there were cogent reasons why the other orders should be made in light of the evidence before the Tribunal. Procedural fairness was not afforded to the HCCC and practical injustice resulted. In so concluding, I reject the argument advanced by CSM that all that was lost was the prospect of advancing an incorrect interpretation of s 149C(4). The situation is more nuanced than that.

78. Whilst the Tribunal is not bound by the rules of evidence, it is subject to the rules of natural justice (Civil and Administrative Tribunal Act 2013 (NSW) s 38(2)). The failure to follow due process is what has led to error, not that the determination made by the Tribunal to make only one of the protective orders sought was itself necessarily in error.

79. In reaching this conclusion, I do not accept as necessarily correct the argument made on behalf of the HCCC that the statute requires that the protective orders set out in s 149C(4)(a), (b) and (c) comprise a package which, of necessity, must all be made to be in compliance with the legislative scheme. As long as due regard is had to the objects and purpose of the Act in making the protective orders it makes, it seems to me that there is no mandatory requirement that if an order pursuant to s 149C(4)(a) is made, that orders pursuant to (b) and (c) must also be made. I do not however need to decide this issue given that the decision I have made is that the whole issue of protective orders needs to return to the Tribunal for its determination in accordance with law.

80. It is possible – although not necessarily so – that [65] of the Tribunal’s decision reveals a misapprehension of the process to be undertaken if CSM decides to reapply to practice. That misapprehension, if there be one, does not necessarily infect the decision regarding protective orders, but it may. Given that I have decided to vacate the protective order made and return it to the Tribunal, this issue can be the subject of submissions before the reconvened Tribunal hearing.

Decision: Non-publication order

81. In respect of the non-publication order over the name of CSM, I am of the view that this order was made in accordance with the law. The decision was made after the evidence of CSM and legal argument from the HCCC. The HCCC argued in some detail, including with authorities, the reasons why the order should not be made.

82. There is no error in the way in which the Tribunal exercised its discretion under the legislation to make this order. The power set out in cl 7 to Schedule 5D is very broad. The HCCC drew attention to similar matters, where differently constituted Tribunals determined on the facts of those cases, that a suppression order over the professional’s name ought not be made. The decisions relied upon by the HCCC do no more than illustrate circumstances where Tribunals did not make the order sought because the Tribunal or Court did not find special circumstances. The reasoning set out in [74]-[94] of the Decision as to why the order was made in this case reveals no error by the Tribunal. The reasons are carefully developed and explained. A specific finding of special circumstances is made based on the risk of disclosure of Patient A’s identity and the risk of deterioration in CSM’s mental health.

83. The HCCC requires leave to appeal in respect of this part of the Tribunal’s decision. The decision contains no error and there is no purpose in granting leave to appeal that part of the decision. However, I refuse leave to appeal also on the basis that there is no issue of general principle or importance to be extracted by the decision made here, confined as it is to the specific facts of this case, and based on close examination of the particular circumstances and assessment of the credibility of CSM.

Remittal to the Tribunal

84. I am permitted to quash and substitute my own decision for that of the Tribunal pursuant to Schedule 5 cl 29(7)-(8). I have formed the view that I should not do so, and that the proper course is that pursuant to sub-cl (8)(d), part of the case should be reconsidered by the Tribunal at first instance. There is obvious value in a Tribunal being the determinative body in respect of protective orders, particularly given at the hearing there was no engagement in submissions about why certain protective orders should be made. It is evident that there was significant weight placed by the Tribunal upon its assessment of CSM and his oral evidence and the credibility of that evidence. This provides another basis for return to the Tribunal as opposed to a substitution of my own views.

85. The Tribunal was not given the benefit of the HCCC’s submissions on the “package” or other necessary components of s 149C(4) and it is clear that the HCCC was denied procedural fairness as a result.

86. The part for reconsideration by the Tribunal is confined to the question of appropriate protective orders, given that I have determined that the HCCC was not given an opportunity to be heard on the need for the combination of protective orders it proposed. This issue can be dealt with by legal argument. There is no need for any further evidence to address this issue.

87. It follows that the HCCC’s argument that there was a failure to afford to it procedural fairness is upheld. I will set aside order 1 of the orders made by the Tribunal on 5 October 2016 to allow for the Tribunal to reconsider fully the question of protective orders with the benefit of submissions from the HCCC and CSM.

88. I remit the matter for argument and determination on the question of what protective orders should be made.

Non-publication order over these proceedings

89. At the beginning of the hearing on 20 July 2017, I made an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) s 7 prohibiting the publication of the name of, and any information or other material that might identify or tend to identify, Patient A and CSM.

90. That order was made pursuant to s 8(1)(a) of that Act on the basis that the order prevented prejudice to the administration of justice as one of the issues before me on this appeal was whether the non-publication order made by the Tribunal pursuant to cl 7 of Schedule 5D of the National Law was properly made or ought to be set aside. To maintain the status quo, and to ensure that order was not rendered nugatory, I made the non-publication order pending further order.

91. Having now considered the appeal on its merits, I have refused leave to appeal that part of the Tribunal’s decision. There is no basis to set aside the non-publication order made by the Tribunal. I now make a further order in the context of my determination of this appeal.

92. Until further order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), publication of the name of CSM and Patient A, and any information tending to reveal the identity of CSM or Patient A is prohibited, except as may be necessary for the proper conduct of the proceedings. I make this order upon the ground that the order is necessary to prevent prejudice to the proper administration of justice, in that the Tribunal of the NCAT Occupational Division on 27 June 2016, made an order confining disclosure of the respondent CSM’s name to be restricted to the parties and their representatives and to any other persons or bodies where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings.

93. In respect of costs, each party will have an opportunity to provide written submissions as to an appropriate order for the proceedings in this Court. However, my preliminary view is that each party should bear its own costs of the appeal as each party has had some success with their arguments.

94. For clarity, I note that the order made by the Tribunal on 5 October 2016 regarding the costs of those proceedings before the Tribunal, that is that CSM must pay the HCCC’s costs of the proceedings as agreed or assessed, remains unaltered.

Orders

95. I make orders as follows:

1. Allow the appeal in part

2. Set aside order 1 made by the Tribunal on 5 October 2016.

3. Otherwise refuse leave to appeal and dismiss the appeal in so far as it challenges the non-publication order made by the Tribunal.

4. Remit the matter to the Civil and Administrative Tribunal for further hearing confined to legal argument on the issue of what protective orders should be made, based on the evidence tendered and heard on 27 June 2016.

5. The parties to provide written submissions on costs of the appeal within 10 days, failing which I will order that each party pay its or his own costs of this appeal.

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Decision last updated: 21 June 2018