Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Stone v Health Care Complaints Commission [2020] NSWCATOD 57 Hearing dates: 3 December 2019, 2 March 2020 Date of orders: 27 May 2020 Decision date: 27 May 2020 Jurisdiction: Occupational Division Before: L Pearson, Principal Member A Bizzotto, Senior Member B Clarke, Senior Member A Johnston, General Member Decision: (1) The application is dismissed. (2) The applicant is to pay the Health Care Complaints Commission's costs of and incidental to the proceedings as agreed, or assessed. Catchwords: TRADES AND PROFESSIONS – health practitioner – nurse – application for reinstatement order Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Haber v Health Care Complaints Commission [2018] NSWCATOD 16 Health Care Complaints Commission v Stone [2016] NSWCATOD 117 Health Care Complaints Commission v Stone (No 2) [2016] NSWCATOD 150 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Ng v Health Care Complaints Commission [2018] NSWCATOD 105 Ristevski v Medical Council of NSW [2016] NSWCATOD 18 Category: Principal judgment Parties: William Stone (Applicant) Health Care Complaints Commission (Respondent) Representation: Applicant (Self Represented) Health Care Complaints Commission (Respondent) File Number(s): 2019/00259162 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of the names of the patients referred to in these reasons as Patient A and Patient B is prohibited. REASONS FOR DECISION 1. On 20 August 2019 William Stone applied to the Tribunal under s 163B of the Health Practitioner Regulation National Law (NSW) (the National Law) for review, seeking a reinstatement order so he could apply for re-registration as a nurse. In his application to the Tribunal Mr Stone stated as grounds that it was over 18 months and he was wishing to re-apply for nursing registration. Background 1. On 2 September 2016, in proceedings brought by the Health Care Complaints Commission (the HCCC), the Tribunal made findings that Complaints 1, 2 and 3 of unsatisfactory professional conduct were made out, and a finding that the complaints cumulatively amounted to professional misconduct: Health Care Complaints Commission v Stone [2016] NSWCATOD 117 (the Stage 1 Decision). 2. On 6 December 2016 the Tribunal cancelled Mr Stone's registration, and made orders that he not apply for return to the register for 18 months, an order under s 149C(5) of the National Law prohibiting him from providing any "health services" until such time as a reinstatement order is made, and an order that he pay the costs of the HCCC: Health Care Complaints Commission v Stone (No 2) [2016] NSWCATOD 150 (the Stage 2 Decision). 3. The background to those proceedings was summarised in the Stage 2 Decision as follows: 1. Mr Stone is a registered nurse, and since 2007 has been accredited as a nurse practitioner. The practitioner has worked in mental health services for almost 20 years. 2. From July 2008 the practitioner provided therapy as a nurse practitioner at Matthew Talbot Lodge ('MTL') and Edward Eager Lodge ('EEL') (both of which provide crisis and homeless accommodation to adults). At MTL and EEL the practitioner worked in collaboration with, and under the supervision of, three psychiatrists. 3. From June 2013, the practitioner undertook private work in psychotherapy. The practitioner saw up to 28 private clients per week; almost all of whom were referred via EEL and MTL, including referrals he made himself. There was no supervision of this private practice and no collaboration with other medical practitioners. 4. The HCCC brought four complaints against the practitioner, which arose primarily but not entirely through his private practice. Complaint 1 concerned two female patients, Patient A and Patient B, and comprised a series of boundary crossings and boundary violations. These involved the practitioner: engaging in regular out of session contact through letter and email correspondence with both patients; making inappropriate sexual references or disclosures of feelings of sexual arousal, attraction or erotic "counter transference" with both patients; hugging both patients at the end of sessions, as well as other forms of in session physical contact with Patient B; driving Patient A home; and the giving and accepting of gifts with Patient B. 5. Complaint 2 concerned the practitioner's billing of certain sessions with both Patient A and Patient B under Medicare item 82215 (individual consultations) when they were undertaken as "creative" or "studio" sessions with up to five patients present in the room. 6. Complaint 3 concerned the practitioner's prescription of Quetiapine (brand name Seroquel) to both Patient A and B in circumstances where he did not conduct a basic physical examination, consider the effects of the drug with regard to concurrent medications, or liaise with treating doctors. The practitioner denied this complaint. 7. Following a Stage 1 hearing on 10 and 11 August 2016, this Tribunal handed down its decision on 2 September 2016: HCCC v Stone [2016] NSWCATOD 117 (the Stage 1 decision). The Tribunal found that Complaints One, Two and Three of unsatisfactory professional conduct to be made out to the required standard. The Tribunal also found that those complaints cumulatively amounted to professional misconduct per Complaint Four. 1. Patient A had initially seen Mr Stone through his work at a homeless/crisis service for women, and had a history of severe childhood abuse and a diagnosis of Dissociative Identity Disorder. Between August 2010 and November 2014 Mr Stone provided psychotherapy to patient A, initially weekly and then between two and four times a week. Mr Stone worked with Patient A as one of two "training" cases for his course of study for a Diploma of Adult Psychotherapy through the Australian and New Zealand Association of Psychotherapy. 2. The issues concerning Mr Stone's conduct with Patient A came to the attention of AHPRA in November 2011, and an inquiry under s 150 of the National Law by the Nursing and Midwifery Council (the Council) in June 2012 recommended that Mr Stone discuss the issues raised in its reasons with his supervisor, and that he begin a discussion about planning termination of therapy concerning Patient A. In November 2014 Patient A terminated the therapy. 3. Mr Stone began providing psychotherapy to Patient B in March 2014. She had approached him through dropping in to one of the services he worked at, and presented with a diagnosis of borderline personality disorder, a developmental consequence of childhood trauma and abuse resulting in chronic post-traumatic stress, and with a history of stalking and other destructive and violent behaviours. Dr Rogoz, a psychiatrist at Edward Eager Lodge, advised Mr Stone not to take Patient B on as a patient. Mr Stone began working with her as a private patient. Mr Stone terminated therapy in June 2014 when Patient B commenced a complaint process, resumed therapy in July, and continued until August 2014. Patient B made a formal complaint in August 2014. 4. On 29 September 2014 an inquiry by the Council under s 150 of the National Law imposed conditions on Mr Stone's registration, including that he was required to practise under the direct or indirect supervision of a nominated supervisor on site, provide employers with a copy of the conditions and reasons for decision, and provide monthly reports to the Council from a nominated supervisor as well as monthly mentoring. 5. At the time of the Stage 1 proceeding, those conditions (amended slightly in July 2015) were in force. Following the Stage 1 Decision, in s 150C proceedings on 19 September 2016 to consider varying the conditions then in place, the Council determined, based on the seriousness of the conduct found proved by the Tribunal, to suspend Mr Stone's registration. The Council noted that Mr Stone had failed to comply with conditions in the past and was still non-compliant at that time. Relevant legislation 1. The powers of the Tribunal on a review under s 163B are as follows: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following— (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order— (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 1. These proceedings are not a re-hearing of the decision of 6 December 2016 to cancel Mr Stone's registration as a nurse, or the prohibition order, or the order that he not seek re-registration for a period of 18 months. In conducting this review the Tribunal cannot review the original decision, or any findings made in connection with the making of that decision: s 163C(2) National Law. The task of the Tribunal is to determine the appropriateness, at the time of the review, of the order concerned: s 163C(1). 2. The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms: 12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24]. (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]; 1. In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated: 30. In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: [A]n applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. 31. In that case, the Medical Tribunal also stated at [42]: [T]he ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. 1. We note that the fixing of the period of 18 months by the Tribunal in 2016 does not necessarily mean that the Tribunal had at that time formed a view that things will have changed by the end of that period. The purpose of such an order is to indicate the minimum period within which the Tribunal considers the person should not be able to practice his or her profession, while holding open the possibility that an application for re-registration thereafter will at least be considered: Chen v Health Care Complaints Commission [2017] NSWCA 186. 2. As noted in Ng at [29], the standard of proof is the civil standard, on the balance of probabilities. In making its findings the Tribunal is required to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order: Forster v Hunter New England Area Health Service [2010] NSWCA 106; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170. 3. The role of the HCCC in these proceedings is to act as contradictor to test the evidence, to bring evidence itself where appropriate, and to assist the Tribunal with submissions: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155. The HCCC has adopted a neutral position in these proceedings, however in its written submissions based on the material filed by Mr Stone submitted that there is not sufficient evidence available for the Tribunal to be satisfied that reinstatement is appropriate. The HCCC provided proposed conditions that it considers should be imposed should the Tribunal make a reinstatement order. Tribunal proceedings 1. The hearing of Mr Stone's application was listed for 3 December 2019. At that time the HCCC had filed and served its documents, including documents relating to the original proceedings in the Tribunal, and the applicable registration standards and Code of Conduct. Mr Stone had not filed or served any material in support of his application. 2. The proceedings were adjourned with directions for Mr Stone to file and serve any further evidence or other material on which he proposed to rely and for the HCCC to file and serve any material in reply. 3. On 13 February 2020 Mr Stone filed a statement by Dr Olav Nielssen, psychiatrist, dated 9 February 2020; a statement; and copies of certificates for completion of courses in Ethical Decision Making (8 November 2016) and Safe Professional Boundaries (20 September 2016). 4. At the adjourned hearing on 2 March 2020 Dr Nielssen, and Mr Stone, gave oral evidence. Mr Stone's evidence 1. In his statement Mr Stone acknowledged that he had failed at his profession, and he has a realistic acceptance that due to his failure there would be an effort to comply with whatever is achievable. He is aware that he was less than up to the reporting requirements in the aftermath of the previous proceedings. He does not expect that it is reasonable for him to move away from the public health service as his management of billing with Medicare was also at fault. His private practice became open to many forms of poor professional boundaries. He realises that practising individual psychotherapy is not a goal for him or realistic given how his private practice became poorly run. He acknowledges that his clinical technique in psychotherapy was faulty, one serious flaw in technique being to be overly accommodating. He would be happy to work as a registered nurse in a mental health or aged care setting and gradually return to working collaboratively in a consultative role, perhaps as a Nurse Practitioner. 2. Mr Stone stated that he has not worked in any health related roles, having worked for Airtasker doing handyman, garden maintenance and other work, some work as a research assistant for Dr Nielssen, as a busker, and as a machinist at a coffee machine repair factory and in a small furniture repair workshop. 3. In oral evidence Mr Stone was taken through the Tribunal's findings in the Stage 1 Decision. He stated that in future he would take great care to be aware of all clinicians involved in a patient's care and if there was ongoing treatment there would be regular updates. He would be more collaborative, and would now go to extra lengths, and make sure a patient saw a GP. He had struggled to have structure with Patient B, and he would make more of an effort to keep notes. He accepts that his approach to Medicare was wrong. He regrets the boundary violations, and accepts his email communications were inappropriate, because that causes confusion for a patient as to what the boundaries are. He agreed he was too eager to accommodate what he thought the patients needed and wanted. He would have to take great care if working one to one. He does not anticipate it would be appropriate to work one to one with patients for some time, because every interaction is in private. He acknowledges that in work with the homeless there is little he can do to say no to one to one care. He accepts he went against the advice of his supervisor Dr Rogoz when he took on the care of Patient B, and he sees now that in wanting to extend himself he was putting his own needs ahead of hers. 4. Mr Stone was taken through the findings in the Stage 2 Decision. He stated he accepts full responsibility now for what happened when he took on Patient B and that it is the health practitioner's responsibility. He acknowledges that there was a good reason for the conditions requiring him to have a supervisor and provide reports, and that he was too relaxed about compliance: he would now make every effort to comply. 5. In terms of what he would do in future, Mr Stone stated that he accepts there would be conditions that he not be the sole practitioner on duty, which would limit him to public health services, and he has to be realistic about the prospects of going back to mental health nursing after three years. He would like eventually to get his Nurse Practitioner endorsement but that would take some time. He anticipates being able to work in aged care or palliative care. He does not think work in psychotherapy would be a good idea. His goal is to work as a registered nurse and eventually as a Nurse Practitioner, in a general mental health setting. Mr Stone referred to the courses he had done in 2016, and to a book by Dr Rogoz on boundary violations. Dr Nielssen's evidence 1. Dr Nielssen is a psychiatrist, who was Mr Stone's supervisor when he was employed by St Vincent's Hospital, and then employed at Matthew Talbot Lodge (MTL). Dr Nielssen provided statements in support of Mr Stone in the 2016 Tribunal proceedings. 2. In his written statement of 9 February 2020 Dr Nielssen states that he believes that Mr Stone has gained good insight into his conduct and an understanding how his behaviour was inappropriate and potentially harmful to the patient with whom he had a counselling relationship. From his observations from close association performing clinics in the homeless hostels in inner city Sydney over 10 years, Mr Stone exercised a high level of professional skill in assessing and providing nursing care and counselling to a large number of mainly homeless men with severe mental illness, substance abuse disorders, severe personality disorder, acquired brain injury and intellectual disability. While he understands the need to protect the public from predatory and incompetent practitioners, a real consequence of the suspension of Mr Stone's registration has been a marked reduction in the availability of mental health care to the homeless in Sydney. He would not hesitate to re-engage Mr Stone to work if his registration was reinstated. 3. In oral evidence Dr Nielssen stated that Mr Stone was valued in his role at the walk up clinic at MTL, which has 250 active patients at any one time. He believes Mr Stone has a good level of insight, and he has spoken of his regret and remorse. He does not believe Mr Stone would attempt to run a practice without supervision or support again, and he would work in an institutional setting such as a clinic. He is not able to offer Mr Stone employment. He would be prepared to provide the role of supervisor and mentor if that were required as a condition of re-registration. Discussion and findings The 2016 findings 1. As noted above, this review is not a rehearing of the decisions made in 2016 or the findings made in connection with the making of those decisions. However, in order to determine whether Mr Stone has discharged the onus of demonstrating the reformation of character referred to in Ex parte Tziniolis, so that the Tribunal can be satisfied that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, the Tribunal notes the following findings from the 2016 proceedings: 1. The Tribunal determined that the boundary violations with Patients A and B were over an extended period in relation to two extremely vulnerable patients, and constituted a pattern of behaviour which continued with the second patient despite disciplinary intervention concerning the first patient (at [21]-[22]); 2. While each of the boundary transgressions viewed in isolation may appear at the lesser end of the scale of such violations (as they did not, for example, involve actual sexual contact) they were extremely serious when viewed in their specific context, which was that in which a very experienced mental health nurse practitioner engaged in sexualised communications and behaviour with the most deeply vulnerable patients, both of whom had traumatic histories of sexual abuse and trust violations known to him. He did so moreover with Patient B two years after Patient A, with significant professional, counselling and disciplinary interventions in between that ought to have prevented any such recurrence in even a very inexperienced practitioner (at [23]); 3. Mr Stone's evidence at both hearings confirmed a lack of understanding concerning the role and importance of professional standards and boundaries and evinced a disturbing lack of insight as to the harm he had inflicted on Patients A and B (at [26]); 4. The Tribunal noted the regard in which Mr Stone was held by his supervising psychiatrists at EEL and MTL, Drs Nielssen, Elliot and Rogoz, based on close and long-standing professional relationships, in references given with knowledge of the complaints, however considered the gravamen of their opinions had to be limited to the very different context in which they were working, namely a structured workplace where patients were co-managed by medical practitioners as opposed to an unstructured private practice where they were solely managed by Mr Stone (at [28]-[29]); 5. Mr Stone's statement to the s 150 inquiry in September 2016 suggested that he continued to blame Patient B for the disciplinary proceedings, and a continuing failure to understand that health professionals are held to higher standards than their patients and why that was so (at [32]-[33]); and 6. The Tribunal accepted as uncontested that mental health services to the homeless are under-resourced and specialist expertise is in short supply, and that in that context Mr Stone's skills are highly sought after and difficult to replace. However, the Tribunal could not be confident that conditions requiring practice under supervision and not as a private practitioner would adequately protect the range of very vulnerable patients involved, nor that any conditions would be properly complied with by Mr Stone (at [34]). 1. The Tribunal considered Mr Stone's non-compliance with the conditions on his registration in the following terms: 38. The HCCC also drew attention to Mr Stone's previous failures to comply with conditions, including a period of some months without a mentor, failure to submit a number of supervisory reports, and regular failure to provide supervisory reports without prompting, or on time. In a compliance interview with the Council on 29 July 2016 when Mr Stone was asked what steps he would take to ensure reports were provided on time in the future he undertook instead to inform the Council 'in a timely manner' when they were delayed. 39. In the September 2016 s 150 proceedings, the Council noted in its deliberations at [52] that: Council has discussed with Mr Stone on many occasions his compliance with conditions imposed on his registration, yet he has continued to ignore the advice and continued to demonstrate a disregard for the seriousness of the situation. Mr Stone has made no attempt to demonstrate remediation of action and behaviour. 40. While each of the acts of non-compliance viewed separately may appear minor, taken as a whole, in the context of the practitioner's substandard conduct which involved repeated failures to follow supervisors' advice or act within his professional scope of practice, the Tribunal apprehends a long-standing pattern of disregard for professional limits and authority. This pattern of disregard gives us grave misgivings concerning the practitioner's willingness or ability to comply with any conditions we might impose. 1. The Tribunal concluded: 47. In light of all of the factors laid out in the Stage 1 decision and the reasons above, the only available order is that of cancellation of registration. Given the serious and repeated boundary violations and failures to adhere to professional standards over a prolonged period, and the very vulnerable population of patients, the risk posed by the practitioner is substantial. This risk is magnified considerably in a less structured or supervised setting, such as private practice as an unregistered practitioner. We therefore conclude that until the practitioner is able to demonstrate fitness to practise as a registered nurse he should also be prohibited from providing any health services, in particular mental health services. For clarity, we note that this includes but is not limited to: welfare services, psychotherapy, counselling, art therapy and life coaching, either on a one-to-one or group-therapy basis, and that criminal penalties attach to proven breaches of such orders. Submissions 1. The HCCC maintained its neutral position on the application for reinstatement. The HCCC proposed conditions requiring that Mr Stone not be the nurse in charge of any shift, ward or unit, or have supervisory responsibilities or work as the sole practitioner on any shift, ward or unit; that he work under direct or indirect supervision of a registered nurse for a period of 18 months; that the supervisor be approved by the Council, and provide a report each month about Mr Stone's performance; that he inform current and future employers of the conditions, and that he be employed as a registered nurse only where the employer agreed to notify the Council of any breach of conditions or unsafe practice and confirmed they were aware of the conditions; and that he complete within 12 months a clinical skills refresher course for registered nurses approved by the Council, providing evidence of enrolment and satisfactory completion. 2. The HCCC acknowledged that in his oral evidence Mr Stone had gone further in terms of acknowledging the deficiencies in his conduct, and shown insight in relation to the boundary violations. A condition providing that Mr Stone not practice as a psychotherapist would be suitable, however it would be problematic to monitor. Mr Stone has been out of practice for three and a half years and so recency of practice would be an issue. The HCCC submits that there is still a risk that Mr Stone would not comply with conditions. There were issues with him acting outside the scope of his expertise, and the issues with Patient B arose after he was on notice that there was an issue with his conduct with Patient A, and his supervisor had warned him not to take on Patient B. 3. Mr Stone submitted that he had acknowledged his responsibility, and he agrees with the conditions proposed by the HCCC. His employment would depend on what opportunities are available. He has learnt the value of humility, he has insights into his behaviour, and he is less judgmental. In communication with colleagues he would be clearer and more proactive, and he would make a real effort to follow through with what is required. Whether the cancellation order is now the appropriate order 1. The central question for the Tribunal is whether Mr Stone has demonstrated that he can be trusted now to practise in a way that conforms to the professional standards expected of a health practitioner. That would require both recognition of appropriate professional boundaries and avoidance of boundary violations in his work with patients, and compliance with any conditions on his registration. 2. The Tribunal acknowledges that Mr Stone has expressed remorse for his conduct. He has acknowledged that in failing to communicate and liaise with other practitioners his practice was inadequate. He acknowledges that he failed to maintain structure with Patient B, and that he made errors of judgment in entering into email communication and in being too eager to accommodate what he thought his patients needed and wanted. 3. Mr Stone's response as to how he might avoid problems in future was to state that he would not continue in psychotherapy. He would attempt to work with patients he would feel confident about. He would try to avoid one to one work, preferring to find employment in an institutional setting such as a hospital or aged care ward or unit. However, Mr Stone acknowledged that it would be difficult to not work one to one in mental health work, and he would have to be realistic about going back into mental health work after three years. 4. Mr Stone expressed regret about being late with reports or missing some reports, and said he was far too relaxed about compliance. He would make every effort now to comply with conditions. 5. While the Tribunal accepts that Mr Stone is willing to comply with conditions, his previous failure to do so in the circumstances noted by the Council in its September 2016 proceedings causes some doubt as to his ability to do so. Mr Stone took on working with Patient B despite the advice of Dr Rogoz, and despite the disciplinary issues consequential on his work with Patient A. Mr Stone has not undertaken since the previous Tribunal proceedings any formal education to assist his management of ethical issues that might arise in his future practice, instead relying on what appears to be informal discussions with Dr Rogoz, and reading a book written by him. 6. The Tribunal gives considerable regard to the evidence of Dr Nielssen, who is confident that Mr Stone has developed a good level of insight into his conduct, and who attests to the high level of professional skill exhibited by Mr Stone in his previous work with the homeless. 7. While accepting that Mr Stone has demonstrated a level of insight into the conduct that led to cancellation of his registration, the issue for the Tribunal is whether we can now be confident that Mr Stone has demonstrated that he has the capacity to maintain appropriate professional boundaries if placed in a position similar to that with Patients A and B. While he states that he would seek employment in an institutional setting rather than private work, he can see himself returning to mental health nursing at some stage. The Tribunal is concerned with Mr Stone's acknowledgment of the risks if he is working one to one with clients, particularly if he returns to working with the homeless where, as he acknowledged, it is difficult to say no to one to one care. 8. The Tribunal acknowledges that Mr Stone accepts that if re-registered there would be conditions on his registration, and that he agrees to the conditions proposed by the HCCC. However, the Tribunal remains concerned that Mr Stone has not complied with conditions on his registration in the past, and can now only state that he would make an effort to comply. The Tribunal is not confident that Mr Stone has demonstrated that he would comply. 9. As noted above, the non review period imposed in 2016 was not an indication that the Tribunal had formed a view that things would have changed by the end of that period. The Tribunal accepts that with the level of insight demonstrated particularly in his oral evidence, Mr Stone has the potential to be re-registered at some time in the future. However, for the reasons given above, we are not satisfied that he has discharged his burden of proof at this review. The application for a reinstatement order should be dismissed. Costs 1. The HCCC seeks an order that Mr Stone pay its costs of these proceedings. Mr Stone did not oppose such an order. The Tribunal's power to order costs, as conferred by Sch 5D cl 13 of the National Law, in the context of an application for a reinstatement order and given the role of the HCCC in such proceedings, was discussed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. At paragraph [87] of that decision, the Tribunal concluded: 87….A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused. 1. As was the case in Ristevski, in this application the HCCC proceeded in an appropriate way. The HCCC did not oppose an adjournment of the hearing when it became apparent that Mr Stone required more time to prepare his evidence and submissions in support of his application for a reinstatement order. The HCCC assisted in the process by formulating possible conditions should the Tribunal consider that Mr Stone had made a case for re-registration. The Tribunal concludes that an order that Mr Stone pay the costs of the HCCC should be made. Orders 1. The orders of the Tribunal are: 1. The application is dismissed. 2. The applicant is to pay the Health Care Complaints Commission's costs of and incidental to the proceedings as agreed, or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2020