The DHB's mandatory reporting obligations could not be circumvented by a settlement agreement Section 34(3) of the HPCAA requires employers to notify the relevant regulatory authority (here the Nursing Council) whenever a health practitioner resigns or is dismissed from employment "for reasons relating to competence". The Employment Court confirmed that section 34(3) is a compulsory reporting obligation that could not be circumvented by a settlement agreement. It also held that the HPCAA threshold for notification is low and that section 34(3) only required that the subject of competence was raised or played some part in the decision to end the nurse's employment. It was not necessary for the DHB to establish a competence issue or issue a final decision prior to notifying the Nursing Council. The Court also analysed the meaning of competence, including whether Ms Evans-Walsh's behaviour fell within the Nursing Council's domain. The Nursing Council's competencies extend beyond patient care and clinical competence and apply to ethical matters such as the way in which nurses deal with one another. These include effective communication, collaboration and participation with colleagues. The Code of Conduct also requires nurses to work and communicate clearly, effectively and respectfully with other nurses. In the Court's view, the alleged bullying behaviour (if substantiated) could be a breach of these expectations. Even though no decision had been made by the DHB, once the DHB reached this view, notification to the Nursing Council was compulsory and inevitable.
No breach of settlement agreement The settlement agreement required confidentiality "so far as the law allows". The DHB acted in reliance on its statutory obligations and only disclosed information necessary to discharge its obligation. The notification contained simple statements of fact and did not include the settlement agreement or any terms of settlement. As such, there was no breach of confidentiality, nor was there any disparagement. Further, while the settlement agreement was a full and final settlement of all matters arising out of their employment relationship, this did and could not cut across the DHB's statutory duties. Potential for wider professional consequences The Court was very clear that the parties could not contract out of their statutory obligations and that the settlement agreement did not prevent notification to the Nursing Council. It is not clear whether the DHB informed Ms Evans-Walsh at any stage of the process that it was considering notifying the Nursing Council. While doing so could have been a barrier to settlement, arguably the DHB's obligation of good faith required disclosure. We expect that the obligation to disclose will depend on the circumstances, including the employer's own assessment of whether the behaviour meets the relevant threshold. Different thresholds and statutory reporting duties apply to professionally registered employees whose work is subject to regulatory supervision and oversight, including health practitioners, educators, lawyers and accountants. The dismissal or resignation of a professionally registered employee endangers