Health Care Complaints Commission v Cain (No. 2) [2017] NSWCATOD 171

Health Care Complaints Commission v Cain (No. 2) [2017] NSWCATOD 171

Suspension of Mr Cain's registration is not necessary; protection of the public and maintenance of professional standards can be achieved by a reprimand and a prohibition on solo practice for 12 months, coupled with strict supervision and practice conditions. Given the Commission did not succeed on significant particulars and there was no disentitling conduct by either party, costs should be apportioned at 75% against Mr Cain.

Parties
Applicant: Health Care Complaints Commission; Respondent: David Cain
Jurisdiction
Australia
Judgment Date
30 November 2017
Procedural Posture
Disciplinary/occupational / Consequential Orders Following Finding of Professional Misconduct
Outcome
Reprimanded and conditions imposed (no suspension); partial costs order against Mr Cain.
Legal Topics
Health Practitioner Regulation, Costs, Protective Orders, Nursing Misconduct
Health Law Regulatory/professional Discipline Health Practitioner Regulation Costs Protective Orders Nursing Misconduct

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Parties

Health Care Complaints Commission

Applicant

David Cain

Respondent

Procedural Posture

Disciplinary/occupational / Consequential Orders Following Finding of Professional Misconduct

Legal Issues

  1. 1 Whether Mr Cain's registration should be suspended or subject to conditions as a result of findings of unsatisfactory and professional misconduct
  2. 2 Whether costs should be awarded against Mr Cain, and if so, in what proportion

Ratio Decidendi

Suspension of Mr Cain's registration is not necessary; protection of the public and maintenance of professional standards can be achieved by a reprimand and a prohibition on solo practice for 12 months, coupled with strict supervision and practice conditions. Given the Commission did not succeed on significant particulars and there was no disentitling conduct by either party, costs should be apportioned at 75% against Mr Cain.

Court Disposition

Reprimanded and conditions imposed (no suspension); partial costs order against Mr Cain.

Orders

  • Mr Cain is reprimanded.
  • Mr Cain is not to engage in solo practice for 12 months or further if determined appropriate by the Council of the Nursing and Midwifery Council; condition commences in three months.