Health Care Complaints Commission v Ferguson [2015] NSWCATOD 14

Procedural Posture

Disciplinary Complaint Against an Enrolled Nurse in the Occupational Division Health Practitioner List / Principal Judgment After Hearing of the Hccc's Complaint Dated 28 March 2014

Legal Issues

1. 1 ['Whether Mr Ferguson suffered from an impairment within the meaning of s 5 of the Health Practitioner Regulation National Law (NSW), namely alcohol dependence or abuse, that detrimentally affected or was likely to detrimentally affect his capacity to practise nursing.' 'Whether Mr Ferguson presented for work at Hay Hospital on 18 December 2012 in an intoxicated state.' 'Whether Mr Ferguson was not competent to practise nursing because he did not have sufficient physical or mental capacity, knowledge or skill to practise nursing.' "Whether Mr Ferguson's failure to attend health assessments required by written notices under s 145E(1) of the Health Practitioner Regulation National Law (NSW) proved lack of competence." 'What protective orders should be made after complaint one was proved and complaint two was not proved.']

Ratio Decidendi

The evidence established an ongoing impairment of alcohol dependence or abuse characterised by intermittent remission and relapse with binge-drinking, including the proved intoxicated presentation for work at Hay Hospital on 18 December 2012. That impairment detrimentally affected, or was likely to detrimentally affect, Mr Ferguson's capacity to practise nursing because during episodes he would be unavailable for scheduled shifts or would have to be sent home. However, the positive evidence about his nursing skills and abilities was not outweighed by limited negative evidence, and his failure to attend a later assessment was explained in the circumstances by his stated decision to leave...

Court Disposition

Complaint one proved; complaint two not proved; Mr Ferguson reprimanded and ordered to pay the HCCC's costs, with delayed commencement of the decisions and orders.

Orders

• ['The Tribunal reprimanded Mr Ferguson for his failure to take action personally to come to terms with his alcohol dependence or abuse.' "The Tribunal ordered that Mr Ferguson pay the HCCC's costs of these proceedings, as agreed or assessed." 'The Tribunal ordered that the decisions and orders set out in these...