Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Harris [2020] NSWCATOD 92 Hearing dates: 22 June, 10 July 2020 Date of orders: 20 August 2020 Decision date: 20 August 2020 Jurisdiction: Occupational Division Before: L Pearson, Principal Member L Carlin, Senior Member Dr L Gregory, Senior Member G Alder, General Member Decision: 1. The respondent practitioner Rene Janine Harris is reprimanded. 2. The respondent is to pay the Health Care Complaints Commission's costs of these proceedings pursuant to clause 13(1) of Schedule 5D of the Health Practitioner Registration National Law (NSW) in the amount of $7,000. Catchwords: PROFESSIONS AND TRADES – health practitioner – conviction of an offence – whether circumstances of the offence render the practitioner unfit in the public interest to practice the practitioner's profession – appropriate protective order Legislation Cited: Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Health Practitioner Regulation National Law (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Health Care Complaints Commission v Bakarich [2019] NSWCATOD 158 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v Perera [2018] NSWCATOD 112 Health Care Complaints Commission v Wingate (2007) NSWLR 323 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Pharmacy Council v Ibrahim [2020] NSWSC 708 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Rene Harris (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2020/00015348 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of the name of Person B in the Schedule to the Complaint is prohibited. REASONS FOR DECISION 1. On 16 January 2020 the Health Care Complaints Commission (the HCCC) applied to the Tribunal for orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Rene Janine Harris, an enrolled nurse. 2. The complaint was brought under s 144(a) of the National Law, that the practitioner had been convicted of an offence in the State of New South Wales, being an offence under s 527C(1)(c) of the Crimes Act 1900. 3. The particulars of the complaint, as amended, were that: 1. On 10 January 2019 the practitioner was charged with one charge of Unlawfully obtained goods (personal custody) under s 527C(1)(a) of the Crimes Act; 2. The details of the offence were that: Between 7.50pm and 8.30pm on 10/01/2019 at Port Macquarie [the practitioner] did have in her custody certain property, to wit, Port Macquarie Base Hospital prescription book which may be reasonably suspected of being stolen or otherwise unlawfully obtained. 1. On 24 April 2019 at Port Macquarie Local Court the practitioner was convicted on one charge of goods suspected stolen in/on premises contrary to section 527C(1)(c) of the Crimes Act; 2. The practitioner failed to attend the hearing; 3. The practitioner was convicted of an offence contrary to s 527C(1)(c) of the Crimes Act and ordered to pay a fine of $350; 4. On 10 January 2019: 1. The practitioner was the passenger in a motor vehicle driven by Person A which was pulled over by police on Oxley Highway in Port Macquarie; 2. A search of the vehicle located a Port Macquarie Base Hospital prescription book number 522649 (the prescription book) with script numbers 33400 to 33500; 3. An examination of the prescription book by Police showed that the first five prescriptions were missing. Two of the prescriptions had also been pre-filled in the name of the practitioner's daughter, Person B; 4. The practitioner admitted to Police that the prescription book belonged to her; 5. The prescription book was the lawful property of Port Macquarie Base Hospital; 6. The practitioner was not entitled to be in possession of the prescription book; 7. The practitioner misappropriated the prescription book. 1. The practitioner did not provide a formal reply to the Complaint. 2. The HCCC seeks the following orders: 1. An order under s 149C(1)(c) of the National Law cancelling the practitioner's registration; and 2. An order under s 149C(7) of the National Law that an application for review of the order under Division 8 may not be made until after 1 year. Background 1. The practitioner was first registered as an enrolled nurse on 29 March 2010. She was employed as an enrolled nurse at Port Macquarie Base Hospital (the Hospital) from 2009, working in the Emergency Department. She was on leave from 29 December 2018, and due back at work on 19 January 2019. 2. On 17 January 2019 the Hospital notified AHPRA that NSW Police had informed the Hospital that a Hospital prescription pad was found in a car in a roadside inspection on 10 January 2019, and that the practitioner was a passenger in the car and the driver was her partner, who was known to Police for drug related issues. An investigation had identified that the prescription pad was missing from the Hospital Emergency Department. 3. A hearing was held on 25 February 2019 by the Nursing & Midwifery Council of NSW under s 150 of the National Law. The practitioner did not attend. The practitioner's registration was suspended. Tribunal proceedings 1. The practitioner did not attend directions hearings on 14 February 2020 or 13 March 2020, or provide any documents including a Reply as directed on 13 March 2020. 2. At the directions hearing on 13 March 2020 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) prohibiting disclosure to any person or entity of the names of the persons set out in the Schedule to the Complaint. 3. At a directions hearing on 16 June 2020 the practitioner stated that she had not been able to provide any documents because of family circumstances. She confirmed she had received the HCCC's bundle of documents, the amended application, and confirmation of the orders that would be sought by the HCCC. Directions were made for the HCCC to provide to the Tribunal its written submissions and proposed protective orders, and the additional evidence on which it proposed to rely, and for the practitioner to provide to the Tribunal and the HCCC her response to the amended Complaint and proposed protective orders, and a statement. 4. On 19 June 2020 the Tribunal received an email from the practitioner seeking an adjournment of the hearing listed for the following Monday 22 June 2020, stating she wished to provide further details and documents relating to the matter. 5. At the hearing on 22 June 2020 leave was granted by consent for amendment of the Complaint, and to revoke that part of the non-publication order made on 13 March 2020 applying to the former partner of the practitioner, identified as Person A in the Schedule to the Complaint. 6. The Tribunal heard the practitioner's application for an adjournment of the hearing. The practitioner stated that she had not been able to provide a reply and wanted to be able to respond to the allegations, including to dispute the allegation of text messages with her former partner. The practitioner stated that she loves her job and is taking steps to change her circumstances, and wants to have her name cleared. She has full time care of her 10 month old grandchild and would need to arrange a babysitter so she could participate in the hearing. The HCCC representative neither consented to nor opposed an adjournment. 7. The Tribunal noted that the practitioner had had an opportunity to respond to the Complaint, however accepted that it would be preferable for the hearing to proceed at a time when the practitioner could arrange care for her grandchild, and when she had formally responded to the Complaint. The Tribunal decided to adjourn the hearing for a limited period, with directions for the practitioner to provide a Reply and for the HCCC to reply to any additional material. 8. The hearing resumed on 10 July 2020 by telephone. The practitioner gave sworn oral evidence. Evidence 1. The HCCC relies on the following documents: 1. Bundle of documents filed 18 May 2020 (other than the documents at tabs 31-38 and 40, withdrawn at the hearing), including the notification to AHPRA, correspondence between the HCCC and the practitioner, documents relating to the s 150 proceedings, the NSW Police Brief including transcript of interviews with the practitioner and her former partner from body worn recordings, and correspondence between the HCCC and the Hospital (ex A1); 2. Emails dated 20 May 2020 from Penelope Pink, Director of Nursing at the Hospital, to the HCCC (ex A2); 3. Email dated 8 July 2020 from the HCCC to the practitioner attaching the Amended Complaint, and the HCCC's bill of costs (ex A3). 1. The practitioner's documentary evidence was an email dated 19 June 2020 (ex R1). The practitioner's oral evidence 1. The practitioner denies that she took the prescription pad from the Hospital. The Police pulled the car over on 10 January 2019 and found the prescription pad, however she had no clue it was in the car. There were lots of things in the car, including lots of her daughter's things. She was not living at home at the time. The police questioned her, but she had no idea how the prescription pad got there. They questioned her partner who was on an ICO at the time and if he had any further charges he would go to prison, so she said she would take the blame, but in hindsight that was a poor choice. It never entered her head that it would come back to her. Her daughter has been on ice since she was 17, and at the time was involved with underworld people, and at that time they were threatening her and her parents for money. Her daughter was also pregnant and had nowhere to go, and they had to move out of her parents' place. 2. The practitioner said that she had been homeless for three months, and now is in community housing. Her parents have moved away. Her daughter was clean while she was pregnant, and is now doing well. She has not worked since she lost her job at the Hospital. She has full time care of her granddaughter, and is receiving income support payments. 3. In cross examination the practitioner agreed that her former partner had said to the Police that the prescription pad was hers. She is unhappy with how she behaved when questioned by Police on 10 January 2019, however there had been a build up with that police officer, and ongoing dealings with him concerning her daughter. She did not know she had been charged by police until the Hospital told her. The court hearing was adjourned the first time. On the second occasion she did not attend because she overlooked the court listing as she thought she would have time to look at the brief, which she received that morning. She had been at the courthouse with her daughter, but had not realised it was her date. She agreed she had notice of the date. 4. The practitioner accepted that she had been convicted, in her absence, and said that it was not proven that she had taken the prescription pad. She was aware of the conviction and fine because she rang the courthouse the next day when she realised she had overlooked it. She is paying off the fine. 5. The practitioner was asked about the file note of the telephone conversation between her and Kim Bryant of the Nursing and Midwifery Council on 17 January 2019 (ex A1, tab 14), and stated she did not believe she had said her daughter was in the car, but that her daughter had been in the car the previous day when the car was pulled over. The practitioner stated that she did not know about the five scripts missing from the prescription pad, that she never had it in her possession. Her daughter had come into the Emergency Department a couple of times and slept there. 6. The practitioner stated that she is now full time carer for her granddaughter, but would like to return to nursing in future. She has never been charged before, and is respected in the community. She could not get character references because she had been told not to contact anyone from the Hospital. Most of her life is her work and 99% of her support is work friends. She is a good person, and honest. She denied taking the prescription pad because she did not do it. 7. In response to questions from the Tribunal the practitioner stated that there was no system in the Emergency Department for keeping prescription pads, they would be left on the doctors' desk or the nurses' station or in treatment and procedure rooms. There was easy access on the main corridor. Legislation 1. The complaint against the practitioner is brought under s 144(a) of the National Law, which provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. … 1. The general powers of the Tribunal, on a complaint being proven or admitted, are provided in s 149A of the National Law: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner— (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 1. HCCC seeks orders under s 149C(1)(c) and (7) of the National Law: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— … (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). The standard of proof is the civil standard. Due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, 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; Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 at [135]. Whether the complaint is proven 1. It was not in dispute, and is confirmed by the documents in evidence, that: 1. On 10 January 2019 the practitioner was in a vehicle driven by her then partner which was pulled over by Police, and in which Police located a prescription pad originating from the Hospital on the back seat of the car (ex A1, tabs 29, 30); 2. the prescription pad had prescriptions missing, and two had been partially completed in the name of the practitioner's daughter, Person B (ex A1, tab 26); 3. the practitioner was charged with an offence under s 527C(1)(a) of the Crimes Act, and on 24 April 2019 was convicted in her absence of an offence under s 527C(1)(c) of the Crimes Act and fined $350 (ex A1, tabs 42, 44). 1. The practitioner agreed in oral evidence that she was not entitled to be in possession of the prescription pad. 2. The Tribunal notes that while the initial notification to AHPRA stated that the vehicle was owned by the practitioner, it is not in dispute that it was owned by her former partner, and that the practitioner was a passenger in the vehicle when it was stopped by Police on 10 January 2019. 3. Particulars 1, 2, 3, 4, 5, 6(a), (b), (c), (d), (e) and (f) of the Complaint are established. 4. The practitioner denies that she took the prescription pad from the Hospital, and denies particular 6(g) of the Complaint. The HCCC submissions 1. The HCCC contends that the NSW Police documents including the interviews recorded with the practitioner and her former partner on 10 January 2019, establish the particulars in the Complaint. There is no dispute that the practitioner was convicted. 2. The HCCC submits that the Tribunal should find that the practitioner, and not the practitioner's daughter or anyone else, took the prescription pad from the Hospital, for the following reasons: 1. The practitioner had items stored in the vehicle; 2. When stopped by the Police the practitioner's former partner told them the prescription pad was the practitioner's, and she said it was hers; 3. The Tribunal should not accept the proposition that the practitioner's daughter had taken the prescription pad, because: 1. While accepting it was possible for any member of the public to take the prescription pad from the Emergency Department, there is no evidence that it was taken by the practitioner's daughter; 2. The Tribunal should not accept the practitioner's evidence that her daughter had slept at the Hospital, as that was given for the first time at the hearing; 3. The practitioner could have called her daughter and her former partner to give evidence, if necessary with a certificate under s 128 of the Evidence Act 1995. The practitioner's submissions 1. The practitioner submits that the Police interview recordings include her former partner telling Police he did not know whose the prescription pad was. She agrees she had access to prescription pads at the Hospital, but that was to put them away. In her 11 years of employment at the Hospital there has been nothing to suggest she is dishonest. She did not call her daughter to give evidence, as given her past she would not be believed. Her belongings were in the boot of the car. Discussion and findings 1. The central factual issue is whether particular 6(g) is proven. The Tribunal is not satisfied that the evidence supports a finding that the practitioner took the prescription pad from the Hospital, for the following reasons. 2. First, while the Tribunal is satisfied that the practitioner had the opportunity to take a prescription pad, having worked in the Emergency Department for some time including up to two weeks before 10 January 2019, the evidence from the Hospital supports her evidence that security measures were such that any other worker or patient could have had access to the prescription pad. 3. In a statement to Police dated 27 March 2019 Penelope Pink, Director of Nursing and Midwifery at the Hospital, states that it was confirmed that the prescription pad located in the vehicle belonged to the Emergency Department at the Hospital, as the pad number corresponded with prescription pads ordered by the Emergency Department. It was not possible to confirm when the pad was dispensed into circulation or by who, or when it went missing. Ms Pink stated that during the investigation it was realised that at that time the security process for prescription pad management in the Hospital was suboptimal. Pads were ordered directly from the printers by the department and held by administration staff for distribution to Medical Officers. There was no structured tracking process for documenting distribution of pads or return of used pads and nor were the pads dispensed sequentially. Hence it was uncertain when or if it was dispensed or when it went missing from the department. Due to the nature of the Emergency Department, with several doctors working in varying clinical locations around the department, prescription pads were readily accessible to staff at that time. Ms Pink stated that a centralised dispensing process for prescription pads through Pharmacy had since been implemented. 4. Secondly, the HCCC relies on the transcript of body worn recordings made on 10 January 2019 by the officers who stopped the car (ex A1, tabs 29, 30). Senior Constable Williams recorded an interview with both the practitioner and her former partner. The transcript commences with a question from Senior Constable Williams "what can you tell me about this mate" and the practitioner's partner replying "That's not mine – that's (pointing to Rene Harris)". Senior Constable Williams then warns them that they are being recorded, and do not have to say anything but what they said would be recorded, and then asks "what can you tell me about this book here?". The practitioner is recorded as saying she had no idea about the prescription pad and had never seen it before; it was nothing to do with them; and they did not know it was there. She denied that it was her handwriting. Her partner is recorded as saying he did not know what it was, and had not seen it. Neither knew the names of any of the many people who had been in the car. 5. The transcript of the recording made by Senior Constable Hudson starts with a question to the practitioner as to who Person B was, and the answer that she is the practitioner's daughter. The Tribunal infers that that part of the recording relates to the partially completed prescription in the name of Person B in the prescription pad. The practitioner is asked "So you don't know anything about this"" and responds "I know nothing about this, but I will take the blame. I don't car[care?]". After stating that she did "not really" know anything about the prescription in her daughter's name, the practitioner said "I will take the blame, I don't care. I don't want [Person B] to take the blame ever". The practitioner is asked about another name, and then the following is recorded: Practitioner: I will say it's mine, I don't want [Person B] to go to gaol ever. S/C Priest: If you don't know anything about the book. Practitioner: But I am not going to send [Person B] to gaol. S/C Hudson: I am not saying [Person B] is in trouble at this stage. Practitioner: She is already in trouble, she is out on ICO or whatever. I will just say it's mine. It's my book. S/C Hudson: Do you want to go over there and tell the officer. Practitioner: Yep its my book, its my book. Partner: How's it your book? Practitioner: Cause it is, it belongs to me. S/C Hudson: Just come over here mate. Practitioner: Nah its my book. 1. At that point in the transcript Senior Constable Hudson identifies himself and states he will ask some questions in relation to the book found in the car, and that the practitioner does not have to say anything but what she says can be used in evidence. The practitioner then stated she did not want to say anything, and would have to speak to her solicitor; she did not agree that she had previously told Senior Constable Hudson it was her book. 2. Reading the transcripts as a whole, there is no clear admission by the practitioner that she was responsible for the prescription pad being in the vehicle; rather she was taking responsibility to protect her daughter, and her former partner was deflecting responsibility. 3. Thirdly, the HCCC relies on the file note dated 17 January 2019 of a telephone conversation between the practitioner and Kim Bryant of the Nursing and Midwifery Council in which the practitioner was advised of the notification from the Hospital (ex A1, tab 14). The practitioner was asked for an overview of what happened, and is recorded as having responded that she was in the car with her daughter and her daughter's boyfriend who have issues with the Police. The practitioner was asked whether anything was found and is recorded has having said that a prescription pad was found, but that it was her daughter's. When advised it had come from the Emergency Department at the Hospital, the practitioner is recorded as responding that she thought it had come from Lismore Hospital, she advised she had nothing to do with it, and that she did not understand what this had to do with her. 4. The HCCC relied on the discrepancy in accounts as to whether it was the practitioner's daughter or her partner who was in the car, noting that her oral evidence was that her daughter was not in the car. However, in the absence of evidence from Kim Bryant, the Tribunal does not place significant weight on the record in the file note, or the discrepancy. 5. In summary, the evidence does not provide any clarity as to when the prescription pad was dispensed into circulation or how or when it left the Hospital. While the transcript of the Police recordings confirms the practitioner as stating that the prescription pad was hers when her partner was denying it was his, it is clear from the segment of the recording with Senior Constable Hudson quoted above that the practitioner was attempting to protect her daughter, who was addicted to drugs. That the practitioner may have thought that her daughter was responsible for the taking of the prescription pad is consistent with the comment in the telephone conversation of 17 January 2019, and with the practitioner's oral evidence to the Tribunal as to her daughter sleeping in the Hospital. 6. The Tribunal accepts that it is unlikely that the practitioner's daughter took the prescription pad. The last occasion on which the practitioner's daughter was formally recorded as presenting to the Hospital before January 2019 was on 4 April 2017 (ex A2), and the first mention of her sleeping at the Hospital while the practitioner was working was not until the hearing. However, the possibility that she did take the prescription pad cannot be discounted. 7. The Tribunal is of the view that it is plausible that the practitioner took the prescription pad from the Hospital. However in the context of the evidence of Ms Pink as to the inadequate management of security for prescription pads; the practitioner's association with her former partner, described in the Police Facts Sheet (ex A1 tab 26) as "well known for drug possession, use and supply"; the practitioner's concerns for and desire to protect her daughter; and having regard to the admonition in Neat Holdings at [2] that a decision-maker should not lightly make a finding that a person has engaged in fraudulent or criminal conduct, the Tribunal is not persuaded that it is established that the practitioner misappropriated the prescription pad. 8. The Tribunal does not find that particular 6(g) is established. What protective orders should be made 1. There is no dispute that the practitioner was convicted of an offence under s 527C(1)(c) of the Crimes Act: 527C Persons unlawfully in possession of property (1) Any person who— (a) has any thing in his or her custody, (b) has any thing in the custody of another person, (c) has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or (d) gives custody of any thing to a person who is not lawfully entitled to possession of the thing, which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court— (a) if the thing is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 1 year, or to a fine of 10 penalty units, or both, or (b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both. … 1. The complaint under s 144(a) of the National Law is established. The Tribunal may exercise the powers to make protective orders under Subdivision 6 of Div 3 of Part 8 of the National Law. Those powers include the general powers in s 149A, and the power to suspend or cancel a practitioner's registration in s 149C. The HCCC is seeking cancellation of the practitioner's registration under s 149C(1)(c) of the National Law, which requires that the Tribunal be satisfied that: (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; 1. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a), to provide for 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. The protection of the health and safety of the public must be the paramount consideration: s 3A. 2. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. While a disciplinary order may have punitive effects, its purpose is not to punish the practitioner concerned, but rather to protect the public and maintain proper professional standards: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [73]; Health Care Complaints Commission v Wingate (2007) NSWLR 323 at [55]. 2. The HCCC submits that there is an expectation of appropriate use of hospital resources and an element of trust, from the public and the profession. The HCCC acknowledges the difficulties faced by the practitioner, which may explain the lack of engagement in the court and tribunal processes. Notwithstanding those difficulties, the HCCC submits that the conviction, and the practitioner's ongoing denials, mean that the practitioner is unfit to be in the profession, and point to cancellation of registration as the only appropriate order. 3. In written submissions, the HCCC submits that clinical capacity is not the only relevant consideration, and matters such as diligence and professionalism, ethical practice, and care and judgment are important: and here the practitioner disregarded her obligations under the Nursing and Midwifery Board's Code of Conduct for Nurses, the International Council of Nurses Code of Ethics for Nurses, and the NSW Health Code of Conduct. The practitioner has not admitted the conduct or demonstrated adequate insight, and those factors present an unacceptable future risk to the public. The practitioner by her repeated denials is seeking to avoid the consequences of her behaviour and its impact on the assessment of her character. 4. The HCCC submits that there is a close nexus between the criminal conduct and the practitioner's professional role and responsibilities, as the conduct occurred in the workplace where she was tasked with the proper handling and use of hospital resources. The HCCC points to the absence of character or professional references, or evidence of education or any explanation that might show reform. 5. The HCCC submits that suspension of registration is inappropriate, due to the lack of reform and absence of independent assessment of character. A non-review period after cancellation would indicate the seriousness of the conduct, and the time fixed would not necessarily mean that the Tribunal has formed a view that things will have changed by the end of that period. The proposed period of one year would take into account the time since the conduct occurred. It would not be crushing but would give the practitioner a measurable period in which to gain insight into her conduct and given her family commitments undertake that reform in a realistic timeframe, and be an appropriate signal to the profession that such conduct and a refusal to self-reflect is inappropriate. In response to a question from the Tribunal the HCCC's representative submitted that the practitioner took the prescription pad and has continued to deny it, and on that basis cancellation of registration is the appropriate protective order, and a reprimand is not appropriate. 6. The practitioner submits that she was unable to obtain character references as most of her life has been in her work, and she was told not to contact people from work. The people at work know what she was going through. She was homeless for three months after she was suspended from work. She is a good person, and she took pride in her work and would never do anything to reflect on the hospital or the health system. Discussion and findings 1. Section 149C(1)(c) requires the Tribunal to determine whether "the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession". The term "public interest" is not defined in the National Law, and was the subject of recent consideration in the context of s 150 proceedings in Pharmacy Council v Ibrahim [2020] NSWSC 708, in which the Court held that the "public interest" is a broader concept than protection of the health or safety of the public, encompassing wider community interests such as the standards to which human conduct is to be held; and in Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53. 2. In Grygiel, the Tribunal was considering an application under cl 12 of Schedule 5D of the National Law and s 55(1)(b) of the NCAT Act for an order that the proceedings against a health practitioner be dismissed. Deputy President ADCJ Boland noted at [143] that the words "public interest" are found in various provisions of the National Law including relevantly s 3, in association with a practitioner found guilty of criminal offences (s 149C), in determining whether to take action under s 150, in making an interlocutory order suspending a practitioner's registration (s 165L), in determining what information should be included in the public register (s 226), in requiring Committee members to put the public interest before the interests of a health professional in their determinations (Schedule 2), and obligations on members of National Boards (Schedule 4) and in cl 12 of Schedule 5D. 3. Her Honour considered the authorities on the "public interest", and concluded at [151] that the authorities emphasised a number of matters relevant to the scope and purpose of the legislation, those factors including "the high moral and ethical obligations on practitioners, the need to comply with regulations, and the confidence of the public in those who treat them". Her Honour referred in particular to the comments of Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. 1. In Health Care Complaints Commission v Bakarich [2019] NSWCATOD 158 the Tribunal referred at [64] to the decision of the Court of Appeal in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [69] that s 149C(1)(c) is not subject to any "probably permanent" limitation on the fitness finding required. The Tribunal stated the question in the following terms: 74. The question for the decision-maker seeking to apply s 149C(1)(c), therefore, is whether the circumstances surrounding the relevant offence currently render the practitioner unfit to practise his or her profession in the public interest. Nonetheless, that evaluation has a narrow focus and is to be undertaken solely by reference to "the circumstances of the offence". 1. In considering whether the circumstances of the offence for which the practitioner was convicted make her "unfit in the public interest" to practise in her profession, the Tribunal has had regard to the following factors: 1. the Tribunal agrees with the HCCC that misappropriation of a prescription pad, with the high possibility of misuse, would be a serious breach of the ethical obligations imposed on the practitioner, and not be consistent with the high standards expected by both the public and the profession. While the Tribunal considers that it is plausible that she did, the Tribunal has not found it established to an appropriate level of satisfaction that the practitioner misappropriated the prescription pad from the Hospital. The charge and conviction reflect, however, the fact that the prescription pad was located in a vehicle in which she was travelling with her then partner and in which there were items belonging to her; 2. the transcript of the Local Court proceedings on 24 April 2019 records that in terms of the offending there was no prior history (ex A1, tab 43). The Magistrate's decision not to impose a custodial sentence would indicate that the subject offence did not fall at the high end of the scale in terms of seriousness; 3. there is no suggestion in the evidence that the practitioner is not a competent and diligent practitioner. She has worked at the Hospital for 11 years, the only adverse comment recorded being that her leave record includes some "erratic" sick leave, and that an anonymous complaint in around 2017 that she used illicit drugs had been dismissed as there was no evidence to substantiate the allegations (ex A1, tab 13). In her oral evidence the practitioner emphasised that she loves her job and takes pride in her work; 4. there was no evidence to counter the practitioner's evidence as to her difficult personal and family circumstances at the time of the offence, and the Tribunal accepts that she has reached a degree of stability since, and has taken on carer responsibilities for her granddaughter; 5. The practitioner did not engage in the s 150 process, or appear in court on 24 April 2019, or engage in the Tribunal process until the directions hearing on 16 June 2020. Her failure to do so reflects poorly on her understanding of and compliance with her ethical obligations of candour with regulatory authorities. However, the Tribunal accepts that the practitioner has provided explanations for that failure to engage. She did not appear at the s 150 hearing, having notified the Council by telephone on 25 February 2019 that was due to the difficulty of travelling from Lake Cathie. In that conversation, the practitioner stated that she had not provided a s 164G response on the advice of her solicitor (ex A1 tab 22). The practitioner stated that she did not appear in court because she overlooked the date; the court transcript records that she had appeared on the previous occasion (ex A1 tab 43). The practitioner's explanation for not providing documents in the Tribunal process was the ongoing stressors and current circumstances, including homelessness since she was suspended without pay, serious threats to her daughter and demands for payment of money, her car firebombed when money was not paid, and severe domestic violence initiated by her daughter's boyfriend (ex R1). 1. The Tribunal is not satisfied that it can comfortably conclude that the circumstances of the offence render the practitioner unfit in the public interest to practise her profession. The Tribunal acknowledges the high ethical obligations imposed on registered health practitioners, the need for practitioners to comply with regulations, and expectation of confidence of the public. The Tribunal has not found that the practitioner misappropriated the prescription pad; and the Tribunal is satisfied that the offence was one incident at a difficult period in the practitioner's life, against a background of otherwise competent and diligent practice, and with no evidence as to any potential risk of recurrence. Accordingly, the Tribunal does not consider that the circumstances of the offence are such as to render the practitioner unfit to practise her profession so that it would be open to cancel her registration under s 149C(1)(c) of the National Law. 2. If there were power to cancel the practitioner's registration under s 149C(1)(c), the Tribunal is not satisfied that such an order would be required or appropriate in all the circumstances. The Tribunal acknowledges that the circumstances of the discovery of the Hospital prescription pad by Police in the vehicle in which the practitioner was travelling, and her attitude to the police officers who interviewed her and her partner as reflected in some of the language used, fell short of the high standards expected of a registered health practitioner. Having regard to the circumstances of the charge and conviction, and the practitioner's failure to engage with the Council in the s 150 proceedings and her failure to engage in the Tribunal process, the Tribunal is of the view that some form of protective order is required to reflect the degree to which the practitioner fell short of expected professional standards. In the Tribunal's view a reprimand is required in order to reinforce the importance of complying with professional standards, including in fulfilling the ethical obligations of honesty and candour with regulatory authorities. A reprimand demonstrates that the practitioner is sanctioned for failing to meet expected professional standards, and acts as a deterrent to other practitioners; and further, upholds and reinforces the standards of the profession: Health Care Complaints Commission v Perera [2018] NSWCATOD 112 at [99]. Costs 1. The HCCC seeks an order for payment of its costs of these proceedings, in a fixed amount of $7,000. Clause 13 of Sch 5D to the National Law provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. … 1. The HCCC has provided a bill of costs for the period 12 November 2019 to 28 May 2020, including an estimate for the hearing of 22 June 2020, and disbursements including photocopying and personal service of documents, totalling $8,004.25. The HCCC has incurred costs since then, but is not seeking to recover those costs. 2. The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, being that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. The HCCC was successful in establishing that the complaint was proven. While it did not establish that particular 6(g) was proven, and the Tribunal has not made the protective orders sought in the proceedings, the Tribunal has made a protective order in circumstances in which the practitioner's conduct has been found to fall short of expected professional standards. The HCCC assisted both the practitioner and the Tribunal in ensuring that the proceedings were conducted fairly and expeditiously. The costs incurred reflect steps taken to ensure that the practitioner was properly informed of the Tribunal process. There was nothing in the conduct of the proceedings that would make it unjust or unreasonable to award costs in favour of the HCCC. A fixed sum order in an amount which the Tribunal agrees represents a discounted amount would avoid the cost and delay of an assessment of costs. Orders 1. The Tribunal orders: 1. The respondent practitioner Rene Janine Harris is reprimanded. 2. The respondent is to pay the Health Care Complaints Commission's costs of these proceedings pursuant to clause 13(1) of Schedule 5D of the Health Practitioner Registration National Law (NSW) in the amount of $7,000. ********** 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: 20 August 2020