Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Tane [2020] NSWCATOD 112 Hearing dates: 18 September 2020 Date of orders: 02 October 2020 Decision date: 02 October 2020 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member J Williams, Senior Member D Beaumont, Senior Member R Kusuma, General Member Decision: Consequent upon the finding of professional misconduct which we have made we make the following orders: (1) Within 14 days the applicant is to inform the respondent to the best of its ability of what protective orders it seeks. (2) Within 28 days thereafter the respondent is to advise the applicant and the Tribunal Registry of what information she wishes to put before the Tribunal in its consideration of what protective orders should be made. Without in any way wanting to restrict the respondent, we indicate that in matters of this kind persons in the position of the respondent sometimes endeavour to offer any reasons for or insight into their conduct, any evidence of any medical or other condition which might be relevant to their conduct, any indication of what steps might be available by way of rehabilitation, and character references. We stress that the respondent is not under any obligation to provide any of this or other material, and it is a matter for her whether she wishes to do so. (3) Within 14 days thereafter the applicant is to file and serve any additional information it wishes to put before the Tribunal. (4) The respondent should use her best endeavours to inform the Tribunal Registry and the applicant of any contact details for her. (5) The parties will be informed by the Registry of a date by the Tribunal for the conduct of the Stage 2 hearing (6) We grant liberty to apply which may be exercised by either party making contact with the Registry. Catchwords: TRADES AND PROFESSIONS – nurse – breach of professional boundaries – forming friendship with patients outside professional relationship – borrowing moneys from patients – supply of prescription drugs to patient in exchange for money – held constitutes professional misconduct- proceedings stood over for Stage 2 hearing. Legislation Cited: Health Practitioner Regulation National Law (NSW) ss150,139B,139E Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Health Care Complaints Commission v Do [2014] NSWCA 307 Spicer v NSW Medical Board & Ors (Court of Appeal (NSW), 19 February 1981, unrep) Texts Cited: Code of Ethics for Nurses in Australia A nurse's guide to professional boundaries Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Cherie Adriane Tane (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) No appearance (Respondent) File Number(s): 2020/00182185 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 a non-publication order is made with respect to the name of any patient of the respondent named in the proceedings and any information which might tend to identify any such person. REASONS FOR DECISION Background 1. These proceedings concern an Application brought by the applicant, Health Care Complaints Commission, seeking findings that the respondent, Cherie Adriane Tane, be found guilty of unsatisfactory professional conduct and professional misconduct as those terms are defined in the Health Practitioner Regulation National Law (NSW) ("the National Law") arising out of her practice as a nurse. 2. We set out hereunder relevant portions of the Application. The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Ms Cherie Adriane Tane ("the practitioner") of (address omitted) being a nurse registered under the National Law, COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as a nurse in New South Wales on 22 October 2003. The practitioner was employed as a registered nurse in the Drug and Alcohol Unit at Northside Clinic, Wentworthville ('Northside Clinic') from 7 November 2016 to 6 October 2017. BACKGROUND TO COMPLAINT ONE Patient A had a number of admissions to Northside Clinic from May 2016 for alcohol withdrawal management. Relevant to this Complaint, Patient A was admitted to Northside Clinic on 17 August 2017 and was discharged on 11 September 2017. PARTICULARS OF COMPLAINT ONE 1. Around November 2016, the practitioner breached professional boundaries in that she commenced a personal friendship with Patient A in circumstances where Patient A was an inpatient at the Northside Clinic. 2. Between 3 September and 4 October 2017, the practitioner breached professional boundaries in that she sent a number of inappropriate text messages to Patient A including, but not limited to, the following: (a) On 4 September 2017: "I desperately need $6,500 if possible if not I could maybe manage with minimum of $5,000 happy to repay with interest [emoji] soo worried" (sic); (b) On 9 September 2017: "Hon can you please forward me your BSB n Acc numbers so I can deposit money back on Wed." and "Also hon could I ask if theres any possibility of borrowing an extra 500 n again I can repay it on Wed just so I can pick up my medications tomorrow??" (sic); (c) On 23 September 2017: "Please give me this time and please don't put me back on the streets by your family now reporting this" (sic) including an attachment of a photograph of the practitioner's baby granddaughter in hospital; (d) On 23 September 2017: "theres No fucken lies. Your drunk!!!!" (sic); (e) On 2 October 2017: "Also wanted to know if you would consider helping me one last time [name suppressed] only this time is urgent n life or death for me…"(sic); (f) On 2 October 2017: "Like I said I hope your not drinking cos thats why your now sending me threatening msgs or reporting me to Northside again…" (sic); (g) On 2 October 2017: "I dunno who your talking too or where your getting your information from but its all wrong nd your breaching all of the legalities within the Statutory Declaration so Get yourself your own lawyer your going to need it. Your shooting your mouth off and you need to stop" (sic). 3. Around 11 September 2017, the practitioner breached professional boundaries in that she: (a) borrowed $7,500 from Patient A for personal reasons ('the loan'); (b) signed a statutory declaration setting out the terms of the loan; (c) failed to honour the terms of the loan and only made one repayment to Patient A in the amount of $1,500. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing BACKGROUND TO COMPLAINT TWO Patient B was admitted to Northside Clinic from 31 January 2017 to 28 February 2017. Patient B's presenting complaint was a 10 month history of opioid use disorder. PARTICULARS OF COMPLAINT TWO 1. Around January and February 2017, the practitioner provided additional medication, namely, benzodiazepines, Schedule 4D restricted drugs, to Patient B during her stay as an in-patient in circumstances where: (a) there was no clinical indication; (b) Patient B was not prescribed these drugs; (c) the practitioner received money in exchange for the drugs. 2. The practitioner breached professional boundaries in that she sent the following text messages to Patient B in circumstances where Patient B was a former in-patient at Northside Clinic: (a) Around 6 May 2017: "Huni listen Im in strife and theres gunna be further delay… sooo I have to get it reimbursed and I cant fucken beliebe this…. So what I will do is I will pay you back almost 3x yr money nd gv you $6000 if that's ok its just we need to wait a further 10days. Im sorry" (sic); (b) Around 9 May 2017: "This is a long shot I know but do you just have $100 urgently for me to feed the girls and get petrol. Im in such a bad stage"(sic); (c) Around 9 May 2017: "If yr able to stretch it to $150 thats like a million dollars to me right now" (sic); (d) Around 14 May 2017: "Honey seriously Ive sat down nd done my sums nd to save my ass nd my house I only need 2.5k by Tues latest. I can get u more Valium if u need em and ativans and I will cover your holiday nd pay your debts with no hesitation…" (sic) (e) Around 15 May 2017: "…Ive got a bottle of Valium as an emergency… I will drive it out to you at anytime u need some…" (sic); (f) On 9 June 2017: "Heey GF Im at work Ive got access to what u need Im gunna need you to come tonight after work to meet me…" (sic); (g) On 9 June 2017: "NO u cant get 4 bottles of valium n 2 of Ativans we don't stock Xanax u need to go to yr doctor for those. The maxiumum amount to dispense without signing out is 2x valium 100 tabs n 1x Ativan 50…. thats it sorry." (sic); (h) Around 24 June 2017: sent a photo to Patient B that displayed a sign at the Northside Clinic that the diazepam supply was short and included the accompanying text – "Just to let u know therez no supply of any this whole week becos of this… sorry I tried." (sic). (i) On 26 June 2017: "Hey lovely I couldnt get u Diazepam cos like I told u the supply is low but I did an alternative which is the same as valium nd got u 50 Oxazepam 30mg tabs" (sic). (j) On 27 June 2017: "Hey darlin sorry for my late note….Ive managed to sort out 2boxs so u let me know what u wanna do to get them (wink emoji)" (sic); (k) Around 22 June 2017: "Hey GF dunno how serious you were about doing yourself a loan nd a top up to help me out cos Id happily repay it with no problems with that…..I just need to be safe probably 8k but I can make do on 5k if I had too n 8k was too much on top of what u need. Plez just let me know Im as desparate as u are for valis hahaha" (sic); (l) Around 6 July 2017: "I need to know from u if you've told any ex patients from here that you see me nd Ive given u vals??????????????" (sic) 3. Between May and July 2017, the practitioner provided benzodiazepines, namely, Diazepam, Oxazepam and Lorazepam to Patient B in circumstances where the practitioner obtained the medications from Northside Clinic and provided it to Patient B in exchange for money. 4. In around July 2017, the practitioner breached professional boundaries in that she borrowed approximately $6,000 from Patient B in circumstances where: (a) Patient B was a former in-patient at the Northside Clinic; (b) The practitioner did not repay the entire $6,000. 5. Around 17 October 2017 the practitioner sent a text message to Patient B advising that she had 2 sheets of 20 tablets of Endone 5mg, a Schedule 8 Drug of Addiction that she needed to sell as she was not working. COMPLAINT THREE The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT THREE The Background to Complaints One and Two are repeated. PARTICULARS OF COMPLAINT THREE 1. Complaint One, Particulars 2 and 3 are repeated and relied upon individually. 2. Complaint Two, Particulars 1, 2, 3, 4 and 5 are repeated and relied upon individually. 3. Complaints One and Two and are repeated and relied upon cumulatively. 1. The respondent did not file any Reply document in answer to the Application nor did she file any evidentiary material in the proceedings, although invited to do so. On 31 July 2020 the proceedings were set down to be heard for a stage 1 hearing on an undefended basis. In an email communication with the applicant on 29 July 2020, the respondent advised that her emails had been unattended to for some time because she did not possess an Internet connection or any access to a device on which to read them. She did not at that stage have a mobile phone or mobile phone number and she would endeavour to check her emails regularly. On the following day the respondent confirmed with the applicant that she then had no fixed address and that her only stable contact was via email. In the course of that email to the applicant the respondent said that she gave: … permission for you to proceed in my absence and conclude your findings without my input or defence as it's all extremely overwhelming and I currently have no support to assist me through this process. I understand that the allegations and findings made against me are serious and concerning only I am not this person that the reports make me out to be and so I stand in faith with God is my witness and will await the outcomes. 1. On 28 August 2020 Ms N Williams, solicitor for the applicant, forwarded by email to the respondent a link to the evidentiary material upon which the applicant was to rely in the proceedings. The applicant provided proof that the link had been accessed and that the relevant files had been downloaded. 2. By email communication to the applicant on 16 September 2020 the respondent asked that the matter proceed: with all your stages and your proceedings in my absence as I will not be in attendance. Yes I can confirm that I received your email and attempted twice to download the files from the library Internet only there was an error occur and so it didn't complete. I believe that the file was too big for the data memory I have access to, so I just left it and didn't attempt again. Should the matter proceed ex parte? 1. The matter was fixed for hearing using an audiovisual link provided by NSW Justice. The link was provided to the respondent by email from the Registry of the Tribunal. When the matter came on for hearing there was no participation by the respondent. The applicant's solicitor asked that the matter proceed in her absence. 2. We determined to proceed in the absence of the respondent. This is a course of action which we were reluctant to take, because it precluded her from challenging the evidence adduced by the applicant. It is clear that the respondent's personal circumstances are unfortunate and deserving of sympathy. However, there is no indication that the respondent ever sought to participate in the proceedings. She has failed to indicate her response to the allegations contained in the Application, and there is no indication that even if she had the ability to participate in the proceedings that she would do so. Furthermore, there can be no certainty when the respondent's circumstances will change such that she would be able to participate. 3. We are mindful also that these current proceedings are confined to a consideration of whether the respondent is guilty of unsatisfactory professional conduct or professional misconduct, as those terms are defined in the National Law. Once those matters are determined, there will be a Stage 2 hearing to determine what consequential protective orders should be made, and the respondent will be given an opportunity to participate in that hearing, whether by remote attendance (assuming the current Covid 19 hearing restrictions remain in force) or by making written submissions, or both. 4. In all the circumstances the public interest dictates that these proceedings should be finalised even though the respondent was, unfortunately, unable to participate. Section 145 of the National Law provides that 145 Complaints to be dealt with expeditiously [NSW] All complaints are to be dealt with expeditiously. The evidentiary material 1. Before considering the evidentiary material we confirm that in considering these proceedings and in making factual findings that we will proceed on the basis that we must be satisfied that they have been established on the balance of probabilities. However, because of the seriousness of the allegations made against the respondent, and because of the seriousness of the consequences for her if the complaints against her are established, in conformity with the processes adopted by this Tribunal in matters of this kind, we will proceed on the basis that what is known as the Briginshaw principle applies. That is, in general terms we must be "comfortably satisfied" that, on the balance of probabilities, the factual matters have been established. 2. The applicant tendered a large volume of evidentiary material, relevant portions of which we will refer to in the course of these reasons for decision. The narration which follows is based upon this material. 3. Extracts from the personnel file of the respondent substantiate her employment as a registered nurse in the Drug and Alcohol Unit of the Northside Clinic, Wentworthville from 7 November 2016 to 6 October 2017, as alleged in the Background material in the Application. 4. The complaints contained in the Application were initiated by Tracey Stobo the Chief Executive Officer and Director of Clinical Services of Northside Group Wentworthville Clinic, who received information on 3 October 2017 that Patient A had loaned $7500 to the respondent. Patient A had had a number of admissions to the facility commencing in May 2016 for alcohol withdrawal management. She said that she was again seeking admission but was concerned about seeing the respondent to whom she had loaned money which had not yet been repaid. Ms Stobo met with Patient A on 5 October 2017 and was given copies of text messages which had been exchanged between Patient A and the respondent which evidenced the loan of $7500, and that $6000 remained outstanding. 5. Ms Stobo arranged a meeting with the respondent later that day, and the following day the respondent resigned her employment as a registered nurse at the facility. At the meeting on 5 October 2017 the respondent conceded that she had borrowed monies from Patient A because she was "desperate" but did not acknowledge that she had breached professional boundaries in doing so because the loan arrangement had been documented by her. Ms Stobo submitted a mandatory notification of this matter to the Australian Health Practitioner Regulation Agency (AHPRA) on 10 October 2017. 6. Patient records relating to Patient A corroborate the allegations that she had a number of admissions to Northside Clinic from May 2016 for alcohol withdrawal management and was admitted to that facility between 17 August and 11 September 2017. 7. On 13 October 2017 the respondent self-notified a complaint concerning her conduct to AHPRA. In that document the respondent said she had met a patient in November 2016 while she was in hospital and that they became friends and continued to be friends "outside of work." The notification described circumstances in which she borrowed $7500 from that patient, the preparation of a statutory declaration and other matters which enable us to conclude that the patient was Patient A. In the notification, the respondent said she had been advised by her employer to discuss the incident with AHPRA with respect to "a possible breach of boundaries with an ex-patient of the hospital under the code of conduct." 8. On 16 October 2017 Ms Stobo became aware of allegations that the respondent had borrowed monies from Patient B whilst she was an inpatient, and which had not been repaid. That patient informed Ms Stobo at a face-to-face meeting that at the time of her last admission in February 2017 the respondent had supplied her with Schedule 4 medication in exchange for the payment of money and had continued to supply her with this medication until July 2017. This patient also provided copies of text messages between herself and the respondent confirming these matters. Ms Stobo submitted a mandatory notification of this matter to AHPRA on 18 October 2017. 9. The Nursing and Midwifery Council of NSW convened a hearing on 30 October 2017 under section 150 of the National Law which was attended by the respondent. The respondent informed the delegates that she admitted to having borrowed monies from Patient A whom she had originally met through her practice at work and with whom she had formed a friendship. The respondent denied having borrowed monies from Patient B, and that she had sold prescription only drugs to that patient. Following that hearing the Council suspended the respondent's registration effective that day. 10. The respondent provided written information to the delegates of the Council shortly prior to the s 150 hearing, and a copy is in evidence before us. In that document the respondent "strongly" denied allegations that she had supplied Schedule 4 and Schedule 8 drugs to Patient B. She also denied having borrowed monies from that person. 11. With respect to Patient A, we have in evidence copies of many SMS exchanges between that patient and the respondent. The content of those messages and their context make it clear that they are between the respondent and Patient A. Each of the text messages which are contained in paragraph 2 of the Particulars of Complaint One is included in the material before us and we are satisfied that the exchange of text messages referred to in this paragraph took place. We are also satisfied that the matters referred to in paragraphs (a), (b) and (c) in paragraph 3 occurred. 12. We are satisfied to the requisite standard that all of the particulars of Complaint One have been made out. 13. With respect to Patient B, her clinical notes confirm her admission to Northside Clinic from 31 January to 28 February 2017 and her presenting 10 month history of an opioid use disorder. Those clinical notes do not disclose any clinical indication for the supply of benzodiazepines during that period nor the issue of any scripts for those drugs. 14. With respect to Patient B, we have in evidence copies of many SMS exchanges between that patient and the respondent. The content of those messages and their context make it clear that they are between the respondent and Patient B. The content of those messages includes the matters referred to in paragraphs (a) to (l) of paragraph 2 of Complaint Two. Those text messages also corroborate the allegation detailed in paragraphs 3, 4, and 5 of Complaint Two. 15. It is notorious that benzodiazepines are highly addictive drugs of addiction, that their supply is restricted except when lawfully prescribed by an authorised health practitioner, and that they must be taken in accordance with well-established guidelines. 16. We are satisfied to the requisite standard that all of the particulars of Complaint Two have been made out. The expert report 1. The applicant retained Susan Lynette Banks, who has had extensive experience in the nursing profession and as a nurse-educator, to furnish an expert report concerning the conduct of the respondent. Ms Banks is also experienced and qualified in dealing with drug and alcohol related conditions. She was given access to relevant background documentation. We should stress that there are certain matters dealt with in the report of Ms Banks which are not the subject of any complaint brought against the respondent in these proceedings. We have ignored those matters and will not take them into account for the purpose of these proceedings. 2. With respect to Patient A, Ms Banks said that the respondent had breached the appropriate professional boundaries which should apply to the nurse/patient relationship. These boundaries exist because of "the power imbalance present in a professional relationship (which) places the recipients of care in a position of vulnerability and of potential exposure to exploitation or abuse if that trust is not respected." In forming and participating in a personal relationship with Patient A, Ms Banks said that the respondent's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience and she was strongly critical of her conduct. This was particularly so in the case of a patient suffering from substance abuse and drug addiction who is particularly vulnerable to abuse from someone perceived to be in a more powerful position. 3. In commenting on the financial relationship between the respondent and Patient A, and in particular on the exchange of messages set out in the Application, Ms Banks again said that the respondent's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience, and she was strongly critical of this conduct. Ms Banks said that the significant boundary violations occasioned by the borrowing of money: demonstrates a complete lack of moral integrity and ethical behaviour and borders on unlawful behaviour especially as it is in the context of a nurse-patient relationship. It is essential that nurses recognise that involvement in financial transactions (other than in a contract for the provision of services) and the receipt of anything other than "token" gifts within the professional relationships with persons in their care is likely to compromise the professional relationship. 1. In addition, Ms Banks was highly critical of the respondent in calling Patient A "an alcoholic" and accusing her of intoxication. This showed a lack of understanding and empathy for the work that she was employed to do with this patient. 2. Ms Banks levelled criticism to similar effect with respect to the respondent's conduct concerning Patient B. This was particularly so in supplying that patient with additional prescription only drugs in exchange for money whilst she was an inpatient. In sourcing those drugs from her employer, the respondent exposed her employer, the patient and herself to accusations of unlawful conduct. The respondent's misconduct was exacerbated by the potential harm to which she exposed Patient B by providing prescription only drugs to her for which no prescription had been issued. 3. Overall, Ms Banks was of the opinion that the respondent's conduct with respect to Patient B breached her professional obligations to this patient, exceeded professional boundaries and involved "dishonest, unprofessional, unethical and irresponsible" behaviour. Such conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience and Ms Banks was strongly critical of the respondent. Codes of conduct 1. There are in evidence before us Codes of Conduct issued by the Nursing and Midwifery Board of Australia being a 'Code of Ethics for Nurses in Australia' and 'A nurse's guide to professional boundaries'. We are entitled to take the provisions of these Codes into account in assessing the misconduct of the respondent under the National Law. It is not necessary that we traverse the contents of these Codes in any detail. The conduct of the respondent which we have found to have occurred detracts from the Code of Ethics in multiple ways which it is not necessary to describe. The conduct of the respondent clearly broke many of the requirements to maintain professional boundaries which are set out in that Code, as was described in the expert report of Ms Banks. The respondent is guilty of professional misconduct 1. The applicant alleges that by reason of Complaints One and Two the respondent should be found guilty of unsatisfactory professional conduct and by reason of Complaint Three, the more serious form of misconduct, professional misconduct. 2. As will be seen, we have determined that the respondent is guilty of the more serious misconduct of professional misconduct as alleged in Complaint Three. It is therefore only necessary that we consider our reasons for so finding. 3. Professional misconduct is defined in the National Law as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. This definition in turn refers to the definition of unsatisfactory professional conduct which is found in section 139B of the National Law. We reproduce hereunder that part of that definition which is relevant to our consideration of these proceedings: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) Contravention of this Law or regulations 1. It is clear from the expert opinion of Ms Banks, which we accept, that the conduct of the respondent constitutes unsatisfactory professional conduct. All of the conduct of the respondent which is the subject of each of the Particulars of Complaints One and Two has been assessed by Ms Banks as being significantly below the standard reasonably expected of a nurse of an equivalent level of training and experience of that of the respondent for the reasons which she has given. Each of these matters reflects upon the knowledge, skill and judgement of the respondent in her practice as a nurse. We are comfortably satisfied that in the aggregate, all of these matters constitute unsatisfactory professional conduct and we so find. 2. It is now necessary to determine whether the respondent is guilty of professional misconduct as asserted by the applicant. By reason of the definition contained in section 139E which we have set out above, it is necessary to determine whether the unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration or there is "more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration." 3. This directs attention to a consideration of those circumstances which would justify suspension or cancellation of registration. Whilst this involves the exercise of a value judgement having regard to all of the relevant factual circumstances, it must be undertaken in the context of the statutory regime which applies to these proceedings. 4. It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction there are a number of matters to which we must have regard. They have been succinctly referred to in the judgment of Meagher JA in the New South Wales Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour 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. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. We should make it clear that in determining whether the conduct of the respondent may be characterised as professional misconduct justifying cancellation or suspension of registration, such a characterisation is not necessarily determinative of any consequential appropriate protective orders. Our concern for present purposes is to determine whether or not the conduct is such that cancellation or suspension is warranted. In determining this matter we have regard to the protection of the public, the maintenance of public confidence in the integrity of the nursing profession, and the deterrent effect both on the respondent and on other members of that profession. 2. As has been endorsed often by this Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law engages in conduct which constitutes professional misconduct. In Spicer v NSW Medical Board & Ors (Court of Appeal (NSW), 19 February 1981, unrep), Hope JA (Reynolds and Hutley JJA agreeing) said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner. 1. There is no reason why these comments made in Spicer should not apply equally in the case of a nurse who also has access to restricted drugs, including drugs of addiction. We have previously described the conduct of the respondent in her dealings with Patient B. It is sufficient by way of summary to note that the respondent unlawfully obtained illicit drugs and provided them for reward to a vulnerable patient without any appropriate medical justification. 2. We have no hesitation in concluding that in all the circumstances, the conduct of the respondent which is the subject of these proceedings as we have described in the aggregate, constitutes professional misconduct and we so find. The further course of the proceedings 1. It is now necessary for arrangements to be made to conduct a Stage 2 hearing to determine what protective orders should be made consequent upon the finding of professional misconduct which we have made. In so doing we are conscious of the logistical and other difficulties which apparently face the respondent. To this extent we shall grant liberty to apply, which may be exercised by either party making written contact with the Registry, and the matter can be relisted at short notice before the presiding member. Orders 1. Consequent upon the finding of professional misconduct which we have made, we make the following orders: 1. Within 14 days the applicant is to inform the respondent to the best of its ability of what protective orders it seeks. 2. Within 28 days thereafter the respondent is to advise the applicant and the Tribunal Registry of what information she wishes to put before the Tribunal in its consideration of what protective orders should be made. Without in any way wanting to restrict the respondent, we indicate that in matters of this kind persons in the position of the respondent sometimes endeavour to offer any reasons for or insight into their conduct, any evidence of any medical or other condition which might be relevant to their conduct, any indication of what steps might be available by way of rehabilitation, and character references. We stress that the respondent is not under any obligation to provide any of this or other material, and it is a matter for her whether she wishes to do so. 3. Within 14 days thereafter the applicant is to file and serve any additional information it wishes to put before the Tribunal. 4. The respondent should use her best endeavours to inform the Tribunal Registry and the applicant of any contact details for her. 5. The parties will be informed by the Registry of a date by the Tribunal for the conduct of the Stage 2 hearing. 6. We grant liberty to apply which may be exercised by either party making contact with the Registry. ********** 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 Amendments 08 October 2020 - Name suppressed in paragraph 2(e). 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: 08 October 2020