CITATION: ALISON PERRIN V HEALTH CARE COMPLAINTS COMMISSION  NSWNMT 16
APPLICATION UNDER SECTION 163 (1) (a1) OF THE HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW)
Applicant: Alison Perrin
Respondent: Health Care Complaints Commission
Tribunal: The Hon. Jennifer Boland AM, Chairperson
Date of Hearing: By written submissions of Nursing and Midwifery Council dated 1 August 2013, correspondence from the Health Care Complaints Commission dated 27 July 2013, and documents provided by the NSW Nurses and Midwives? Association including submissions of the applicant dated 29 July 2013.
Appellant: Ms Linda Alexander of the NSW Nurses and Midwives? Association appeared on behalf of the applicant.
Complainant: Ms Christine Campbell, Solicitor, appeared on behalf of the Health Professional Council Authority.
Ms Samantha King appeared on behalf of the Health Care Complaints Commission.
Application under s 163 (1) (a1) of the Health Practitioner Regulation National Law (NSW) for review of conditions imposed on practitioner?s registration by a Professional Standards Committee to be heard by a Health Profession Council rather than the Nursing and Midwifery Tribunal – whether Tribunal or Council most appropriate body to hear review. HELD review should be determined by Council.
Health Practitioner Regulation National Law (NSW)
Health Legislation Amendment Act 2012 (NSW)
Nurses and Midwives Act 1991 (NSW) (repealed)
Marks v Health Care Complaints Commission NSWNMT 16
Coe v Health Care Complaints Commission  NSWNMT 11.
McAuley v Health Care Complaints Commission  NSWNMT 13
REASONS FOR DECISION
What the Tribunal decided
1. On 12 September 2013, in my capacity as Chairperson of the Nursing and Midwifery Tribunal, I ordered that a review of conditions on the registration of Ms Alison Perrin imposed by orders made by a Professional Standards Committee on 18 August 2008 under the now repealed Nurses and Midwives Act 1991 (NSW) (?the repealed Act?) , should be conducted by the Council rather than the Tribunal.
Reasons for decision
2. These are the reasons for my orders. In these reasons, for convenience, I will refer to relevant persons and entities as follows:
(a) Ms Alison Perrin as ?the applicant?;
(b) the Nursing and Midwifery Tribunal as ?the Tribunal?;
(c) the Health Care Complaints Commission as ?the HCCC?;
(d) the Health Professional Council Authority as ?the HPCA?;
(e) the Nursing and Midwifery Council of New South Wales as ?the Council?;
(f) The New South Wales Nurses and Midwives? Association as ?the Association?;
(g) Ms Linda Alexander as ?Ms Alexander?. Ms Alexander is a solicitor employed by the Association;
(h) Ms Christine Campbell as ?Ms Campbell?. Ms Campbell is a solicitor in the employ of the HPCA.
(i) Ms Samantha King as ?Ms King?. Ms King is a solicitor in the employ of the HCCC; and
(j) The Professional Standards Committee as ?the Committee?.
3. Unless stated to be an allegation the following facts were accepted by me as established to the requisite civil standard.
4. The applicant completed a Bachelor of Nursing degree at the University of Western Sydney in 2001. She undertook a New Graduate Programme at Royal North Shore Hospital (?RNSH?) in 2002, and was employed in that hospital in the neurosurgery ward from February 2003 until July 2006.
5. The parents of a teenage girl (Patient A) lodged a complaint with the HCCC about the care and treatment of their daughter at RNSH in November 2005. Patient A sustained a head injury (depressed skull fracture and contusion of the brain) as a result of an accidental injury. She was transferred from Hornsby Hospital to RNSH for neurological management on 6 November 2005. Patient A died at RNSH on 8 November 2005.
6. The Committee was convened on 1 July 2008 to conduct an inquiry into a Complaint brought against the applicant by the HCCC. On 18 August 2008 the Committee provided written reasons for its determination that the applicant was guilty of unsatisfactory professional conduct. The applicant was reprimanded under s 55 (1) of the repealed Act, and ordered to comply with four conditions (Orders 2 to 5) as follows:
2. If the Respondent resumes practice in the acute care clinical setting that she not be placed in charge of a shift for a period of six months.
3. That the respondent prior to undertaking in charge of shift be mentored by senior nursing staff in the charge role and responsibilities for a minimum period of six months.
4. The Respondent is required to inform her current employer and her first employer, should she return to the acute care setting, of these proceedings and the decision of the Committee including conditions applying to her registration.
5. The Respondent?s first employer in the acute care setting must not be a nursing agency.
7. In 2008 the applicant, through the association, requested the then Nurses and Midwives? Board to clarify certain aspects of Orders 2 to 5 of the orders made on 18 August 2008.
8. By letter dated 20 October 2008 the Council explained:
In relation to Order 3, the clarification is as follows:-
? As you have not worked in the acute care clinical role for some time;
– should you resume nursing practice in the acute care setting, you should initially work in the role of a registered nurse and not in the ?in charge role? nor in any in charge of shift role for a period of 6 (six) months (Ref. Order 2). During this period of employment you are to be mentored in your work by senior nursing staff.
– Subsequently, should you undertake ?higher duties? in the acute care clinical settling, and if this work is in the ?in charge role? or the ?in charge shift role?, you should at the outset be monitored for a minimum period of 6 (six) months by senior nursing staff while you are in the ?in charge? position.
9. The Council also provided further explanation of Orders 2, 4 and 5 and noted ?These Orders are to remain in place until each of the conditions has been met and the Orders fully complied with?.
10. By letter dated 12 August 2009 the applicant wrote to the Board (by letter addressed ?To Whom it May Concern?), and advised she was commencing a 12 month Temporary Full Time contract position as a registered nurse at Blacktown Hospital. The applicant advised her employment would be in the Intensive Care Unit and that she intended to take leave from her then employment at St Joseph?s Hospital, Auburn where she was employed as a ?TEN CNE?. The applicant?s employer was advised of the orders, and the Director of Nursing and Midwifery at the Blacktown Hospital advised the Council that the applicant would be working within the restrictions placed on her registration.
11. On 6 April 2011 the applicant wrote to the Council noting that she had been employed in the acute care area from 12 August 2009 ?to the present? without taking an ?in charge of ward position?. The applicant asked that Order 2 of the orders be discharged. The applicant further explained that she had obtained a part-time secondment position at Blacktown Hospital, and if the opportunity to take an in charge of shift position occurred, she would seek monitoring from senior staff, a situation she explained that the Nurse Unit Manager was happy to support.
12. On 28 April 2011 the Council wrote to the applicant, and having noted the applicant?s employment at Blacktown Hospital in an acute care area since August 2009, requested that she provide evidence that her work was monitored during the first six months of her employment, and ?that you have not worked in an ?in charge role? or ?in charge of shift role? since commencing employment in an acute care area?.
13. In its letter dated 28 April 2011 the Council also advised:
In relation of Order 3, a suitable mentor may be identified by you however the mentor must be approved by the Council before commencing the role. You are therefore requested to prove a Curriculum Vitae (CV) of your proposed mentor prior to commencing the ?in charge? role. A copy of the Council?s Mentor Policy is attached for your information. The Council will write to both you and your mentor once the mentor is approved.
14. On 8 February 2012 the applicant wrote to the Council in response to a letter from the Council dated 31 January 2012 (which sought an urgent update of the applicant?s compliance with the conditions imposed by the orders). The applicant advised she had been monitored by senior staff in the ICU at Blacktown Hospital for a period of six months from the commencement of her employment in August 2009. She also confirmed she had not taken any ?in charge of shift role? since commencement of her employment at Blacktown Hospital. The applicant also advised she had made arrangements for a senior nurse to act as a mentor for her for a period of six months during which period she would be attending ALS training and a 12 week Team Leader Development course run by Blacktown Hospital.
15. The applicant subsequently provided the Council with a curriculum vitae for her proposed mentor.
16. On 6 March 2012 the applicant?s Nurse Unit Manager wrote to the Council confirming the actions undertaken by Blacktown Hospital to monitor the applicant?s performance during the first six months of her employment.
17. On 30 April 2012 the Council wrote to the applicant confirming approval of the applicant?s proposed mentor, and made recommendations about a suitable mentoring plan. The applicant responded to the Council?s comments and set out the steps she proposed to undertake during the forthcoming six months to prepare for an ?in charge? role. She explained that she had undertaken a Critical Care 6 week Short Court in November 2009. She also explained she had undertaken a ?Team Leader Roles and Responsibilities? course through the Royal College of Nursing (Feb 2010).
18. On 21 June 2012 the Council wrote to the applicant acknowledging her mentoring plan and provided feedback on that plan. While noting the satisfactory aspects of the plan, the Council explained that the plan did not ?identify the goals which underpin the activities you have listed?. The applicant was requested to submit a revised plan, which she did on 30 July 2012.
19. On 28 November 2011 the applicant wrote to the Council enclosing copies of her mentoring report, performance appraisal and reflection journal. She advised that she had arranged with her Nurse Unit Manager to commence taking in charge nursing shifts with monitoring by senior nursing staff from 3 December 2012 for a period of six months. The applicant submitted that, on compliance with the monitoring period and appropriate confirmation of monitoring, the conditions imposed on her registration be lifted.
20. By letter dated 28 December 2012 the Council wrote to the applicant. The letter advised the applicant of the requirement for a Tribunal to consider whether the conditions imposed by the orders should be lifted as provided in the Health Profession Regulation National Law (NSW) (?the National Law?) and the availability of an application under s 163 (1) (a1) of that law to the Chairperson of the Tribunal to determine the appropriate review body. The letter also pointed out that ?the letter from the Nursing and Midwifery Board dated 20 October 2008 specified that the monitoring be for a minimum period of six months, and an appropriate review body could require a further period of monitoring ?before your conditions are lifted??.
21. On 27 July 2013 Ms King, on behalf of the HCCC, wrote to Dr Margaret Cooke, Executive Office of the Council advising that the HCCC would not oppose the matter being dealt with by the Council as the appropriate review body and said: ?It is a matter for the Chairperson of the Tribunal?.
22. By letter dated 1 August 2013 and received by the Tribunal on 6 August 2013 the Council indicated its willingness to act as the review body. Further, the Council supported this application being dealt with ?on the papers? without the need for a formal hearing of the application.
23. A directions hearing in respect of the application under s 163 (1) (a1) was conducted by me on 26 July 2013. I made directions for the filing of any relevant documents and submissions. I was subsequently provided by the Association with a copy of the reasons for decision of the Committee, and copies of the documents summarised by me under the heading ?Background? in these reasons. All concerned with the application agreed the matter could appropriately be dealt with ?on the papers? without a formal hearing thus minimising costs.
24. Section 163A, which is found in Division 8 of the National Law, provides that a person may apply to the appropriate review body for, inter alia, a review of a relevant order made in relation to the person. Person is not defined in the National law, but it may be implied a person for the purpose of the section is a person affected by an order made by ?an appropriate review body?. The definition of appropriate review body includes the both the Council and the Tribunal.
25. Section s163A(3) places constraints on when an application for review may be filed. Those constraints are irrelevant in the circumstances of this application.
26. Section 163A (4) defines the subject matter of a review in that it explains what constitutes ?a relevant order?, and immediately after s163A(4) the National Law defines the bodies who are a ?decision making entity?. The relevant sub-sections of s163A to be considered in this application are s163A (1) and (4). They provides as follows:
(1) A person may apply to the appropriate review body for a review of ?
(b) a relevant order made in relation to the person
(4) In this section ?
relevant order, in relation to a person, means any of the following
orders made by a decision-making entity ?
(c) an order that conditions be imposed on the person?s registration in a health profession
27. A ?decision making entity? is defined in s163A (4) as follows:
(4) In this section–“decision-making entity” means the following–
(a) a Committee;
(b) a Performance Review Panel;
(b1) a Council, but only in relation to orders made under this Division or under Subdivision 5 of Division 3;
(c) the Chairperson or Deputy Chairperson of a Tribunal;
(d) a Tribunal;
(e) the Supreme Court.
28. The determination of the appropriate review body to deal with any properly brought review is set out in s 163. That section was amended by the Health Legislation Amendment Act 2012 (NSW). It provides as follows:
163 Appropriate Review Body NSW
(1) For the purposes of this Division, the “appropriate review body” is-
(a) if the order being reviewed provides that it may be reviewed by a Council, the Council; or
(a1) if the Chairperson of the Tribunal decides, on application by the person the subject of the review or the Commission, that a Council is the appropriate review body, the Council; or
(b) if the Chairperson of the Tribunal decides, on application by the person the subject of the review, that a National Board is the appropriate review body, the National Board; or
(c) otherwise, the Tribunal.
(2) An application for review by a person must be lodged with the Executive Officer of the Council for the health profession in which the person is or was registered.
(3) The Executive Officer must refer the application to the appropriate review body.
29. In Marks v HCCC  NSWNMT 16 I explained:
The powers to be exercised on a review are set out in s163B. The language of the section makes it plain that appropriate review body is mandated to conduct an inquiry into the application for review. Inquiry is not defined in the legislation, but in my view and without the benefit of any argument on the topic, it appears the type, or perimeters of, the inquiry are guided by the provisions set out in the s163C. As that provision is relevant to the exercise of discretion under s163 (a1) I now set out that section:
163C Inquiry into review application [NSW]
(1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned.
(2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision.
(3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint.
The written submissions
30. The material provided to me includes the applicant?s written submissions. These submissions do not directly address the question of the appropriate review body, but rather are principally directed as to why she submits the orders imposing the conditions should be discharged. She notes that, following the decision of the Committee, she was reprimanded because of the finding she was guilty of unsatisfactory professional conduct which arose from her care of Patient A on 8 November 2008, and that four other conditions were placed on her registration. The applicant submits:
As the Committee expected I have learnt from the incident, but not only the incident. I have also learnt from the conditions that were placed on my Registration.
31. As noted the Council and the HCCC, do not oppose the applicant?s position that the Council be the appropriate review body.
32. In three previous decisions to determine the appropriate review body I have canvassed, without providing an exhaustive list, relevant criteria to be taken into account in dealing with applications under s163 (1) (a1) (see Marks v Health Care Complaints Commission  NSWNMT 16 and Coe v Health Care Complaints Commission NSWNMT  11 and McAuley v Health Care Complaints Commission NSWNMT  13. In Marks I explained relevant considerations include the nature of the original complaint which led to the orders imposing conditions, to the imposition of costs to the parties, and the proper use of the Tribunal and the Council?s resources. In Coe at [46-47], in determining the review should be by the Tribunal, I recorded:
Factors in favour of the Tribunal remaining the review body include:
? The fact the order imposing the condition restricting the nurse?s authority to possess and supply Schedule 4D and Schedule 8 drugs was made by a Tribunal after hearing and determination that complaints of professional misconduct and unsatisfactory professional conduct were proven;
? that the proceedings before the Tribunal were not the first proceedings before the Tribunal, the nurse having been subject of complaints in 2001 also of professional misconduct and unsatisfactory conduct which were conceded by the nurse;
? the Tribunal did not find the order imposing the condition in paragraph 1 should automatically expire in 3 years (as with other conditions imposed). This is indicative the Tribunal thought a review by a Tribunal after a minimum period of three years would be appropriate;
? the powers available to the Tribunal in conducting the review include the power to issue summons for production of documents or the calling of witnesses;
? the fact the Council was not the decision making entity who made the order now the subject of the review;
? the ability of the Tribunal to inquire and determine whether the nurse was psychologically able to cope at the time of her infant son?s tragic and untimely death without resort to illicit drugs or that she abused prescription drugs at about that time. If not, whether there is presently an ongoing concern about past or potential drug addiction noting that the review is to determine, at the time of the review, the appropriateness of the order concerned.
I have balanced the above factors with the following matters:
? the costs involved for the nurse, the relevant bodies and the public in a review hearing before the Tribunal compared to those before a Council;
? the assertion the matter may be dealt with in a more timely way by the Council rather than the Tribunal.
Discussion and findings
33. As I noted in Marks, Coe and McAuley: ?Section 163(1)(a1) does not set out any criteria to be take into consideration in determining if the Council, or the Tribunal, is the appropriate review body. In other words, the determination of the appropriate review body is a matter of discretion, which must be exercised judicially, having regard to the underlying factual matrix?.
34. In this case I have placed weight on the following matters. First, the original hearing which dealt with the Complaint brought by the HCCC was heard and determined by the Committee, not by the former Tribunal. Notwithstanding that fact, as the reprimand imposed at the conclusion of the hearing demonstrates, the issues of inappropriate or inadequate appropriate professional care of Patient A by the applicant raised in the Complaint were very serious ones.
35. Second, the evidence provided by the applicant demonstrates that during the period from 2008 to date she has been in regular contact with the Board and since 2010 with the Council in its role as successor of the Board. She has responded to correspondence and requirements of the Council. The Council has effectively monitored the conditions imposed in the orders including contact with both the applicant and her employer. The relationship between the Council and the applicant, on the material before me, discloses a very appropriate professional role undertaken by the Council in monitoring the conditions imposed by the orders, and also an appropriate professional attitude to compliance by the applicant. In short, the Council has been actively involved with the applicant and has relevant and up to date knowledge of her circumstances, including her employment history, mentoring relationship, and compliance with the conditions.
36. Third, it is appropriate for the review of conditions imposed by the orders to be considered in a timely manner. Because of the Council?s active involvement to date in supervising the conditions, it is uniquely placed to deal with the review in a timely way and in a manner proportionate to the matters now in issue. This is a particularly relevant factor given the evidence of the courses undertaken by the applicant, her compliance with the conditions, her work history since 2008 and the time which has elapsed since the complaint was determined.
37. Fourth, the costs to all parties, and the Tribunal will be minimised if the Council is the appropriate review body.
38. Finally, I have taken into account this matter was determined by the Committee prior to the introduction of the National Law. As I discussed in McAuley the need in future years for applications such as the instant one, will be avoided by a Council, Performance Review Panel or Committee nominating in relevant orders the appropriate review body to undertake the review of any order imposing conditions.
39. I have also placed weight on the fact that the Council, and the HCCC, do not oppose the Council being the appropriate review body.
40. Taking each of the considerations enunciated above in account, I am satisfied on the evidence before me, that the Council should be the review body.
1. Pursuant to s163(1)(a1) of the Health Practitioner Regulation National Law (NSW) the NSW Nursing and Midwifery Council is the appropriate review body to review the conditions set out in Orders 2-5 of the Professional Standards Committee