Following the making of findings of professional misconduct against a registered nurse who had commenced a sexual relationship with a patient under his care in a psychiatric facility, the nurse consented to a package of orders which included (1) cancellation, (2) disqualification and (3) prohibition. Despite the nurse's consent and the absence of any argument about protective orders, the Tribunal made only one of the protective orders, being (1) cancellation.

The HCCC argued that as the Tribunal had found that cancellation was appropriate orders 2 and 3 were "consequential" because order 2 would have provided for a specific period of disqualification and order 3 directs the Board to record the effect of order 1. It argued that orders 1, 2 and 3 were 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 hearing. All 3 elements were intended to be contained in an order pursuant to the ordinary principles of statutory interpretation.

The Court held however that it is within the discretion of the Tribunal to make some (or all) of the protective orders available to it. There is no obligation that a Tribunal make all, or any combination of all available protective orders.

The single protective order was open to the Tribunal on an interpretation of the legislation and relevant legal principles.

However the Court noted that the HCCC had not been provided with an opportunity to make submissions that the protective orders should be seen as a package or that there were cogent reasons why the other orders should be made. As procedural fairness was not afforded to the HCCC, the issue was referred back to the Tribunal for determination.

To read the full decision in HCCC v CSM  [2018] NSWSC 902, click here.