Health Care Complaints Commission v Bialowas [2015] NSWCATOD 16

Health Care Complaints Commission v Bialowas [2015] NSWCATOD 16

Complaint one was not proved because the Tribunal accepted the respondent's account that the contact with the child had a strong element of instinctive reaction for personal protection and was not significantly below the expected standard or improper or unethical conduct. Complaint two was not proved because, although physical and past psychiatric conditions were established, the Tribunal was not satisfied that they currently detrimentally affected or were likely to detrimentally affect her capacity to practise nursing, particularly having regard to remission of psychiatric symptoms and the need to consider reasonable adjustments. Complaint three was proved because competency assessments...

Jurisdiction
Australia
Judgment Date
18 March 2015
Procedural Posture
Inquiry Into a Complaint Against a Registered Nurse in the Occupational Division / Final Decision After Hearing on Complaints, Protective Orders and Costs
Outcome
Complaints one and two were not proved; complaint three was proved; the respondent's registration was cancelled with a 6 month minimum period before applying for reinstatement; costs and non-publication orders were made.
Legal Topics
['complaint Against a Nurse' 'unsatisfactory Professional Conduct' 'impairment' 'competence to Practise Nursing' 'protective Orders' 'costs' 'non Publication Order']
['administrative Law' 'health Practitioner Regulation' 'professional Discipline'] ['complaint Against a Nurse' 'unsatisfactory Professional Conduct' 'impairment' 'competence to Practise Nursing' 'protective Orders' 'costs' 'non Publication Order']

Case Brief

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Procedural Posture

Inquiry Into a Complaint Against a Registered Nurse in the Occupational Division / Final Decision After Hearing on Complaints, Protective Orders and Costs

Legal Issues

  1. 1 ["Whether the respondent's conduct toward a three year old child on 29 June 2011 amounted to unsatisfactory professional conduct under s 139B(a) and (l) of the Health Practitioner Regulation National Law (NSW)." 'Whether the respondent had an impairment within the meaning of s 5 of the Health Practitioner Regulation National Law (NSW) that detrimentally affected or was likely to detrimentally affect her capacity to practise nursing.' 'Whether the respondent was not competent to practise nursing under s 139 of the Health Practitioner Regulation National Law (NSW).' 'What protective orders and costs orders should be made if a complaint was proved.']

Ratio Decidendi

Complaint one was not proved because the Tribunal accepted the respondent's account that the contact with the child had a strong element of instinctive reaction for personal protection and was not significantly below the expected standard or improper or unethical conduct. Complaint two was not proved because, although physical and past psychiatric conditions were established, the Tribunal was not satisfied that they currently detrimentally affected or were likely to detrimentally affect her capacity to practise nursing, particularly having regard to remission of psychiatric symptoms and the need to consider reasonable adjustments. Complaint three was proved because competency assessments...

Court Disposition

Complaints one and two were not proved; complaint three was proved; the respondent's registration was cancelled with a 6 month minimum period before applying for reinstatement; costs and non-publication orders were made.

Orders

  • ['The registration of Halina Christina Bialowas on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia and maintained by the Australian Health Practitioner Regulation Agency (AHPRA), is cancelled.' 'At least 6 months must elapse from the date of the order...