Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Tane (No 2) [2020] NSWCATOD 159 Hearing dates: 11 December 2020 Date of orders: 23 December 2020 Decision date: 23 December 2020 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member J Williams, Senior Member D Beaumont, Senior Member R Kusuma, General Member Decision: (1) The registration of the respondent as a nurse is cancelled with effect from this date (2) The respondent is prohibited from providing health services as defined in section 5 of the Health Practitioner Regulation National Law (3) The respondent is precluded from seeking a review of orders (1) and (2) for a period of 3 years from this date (4) The appropriate review body of orders (1) and (2) is this Tribunal (5) The respondent is to pay the costs of the applicant in an amount of $11506.86 Catchwords: TRADES AND PROFESSIONS – nurse – breach of professional boundaries – forming friendship with patients outside professional relationship – borrowing moneys from patients – unauthorised supply of prescription drugs to patient in exchange for money – found guilty of professional misconduct- protective orders made including cancellation of registration and prohibition order -costs order made Legislation Cited: Health Practitioner Regulation National Law (NSW) ss 5,149C Legal Profession Uniform Law (NSW) No 16a of 2014 Cases Cited: 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: None cited 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. In Health Care Complaints Commission v Tane [2020] NSWCATOD 112 ("the earlier decision") we dealt with complaints brought by the applicant Health Care Complaints Commission that the respondent Cherie Adriane Tane was guilty of professional misconduct as that term is defined in the Health Practitioner Regulation National Law (NSW) ("the National Law"). We found the respondent guilty of professional misconduct and adjourned the proceedings for a Stage 2 hearing to determine what protective orders should be made consequent upon our findings. 2. These reasons for decision should be read in conjunction with the earlier decision. In that decision we noted that the respondent had not filed any Reply document in answer to the Application nor did she file any evidentiary material in the proceedings, although invited to do so. Furthermore, although she acknowledged that she was aware of the proceedings and that documentation had been forwarded to her, the respondent said that the proceedings should be heard in her absence. She said in part 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. A second stage hearing was fixed for 11 December 2020. Again, the respondent did not participate in any way, nor did she file any documents in relation to this hearing. We are satisfied that both the Tribunal Registry and the applicant forwarded information and the applicant's submissions concerning this hearing to her at her last known email address and her last known postal address. The email communications were shown on each system as having been received. The professional misconduct found proven against the respondent 1. For the purpose of considering the protective orders that it is appropriate to make, we set out the following summary of the professional misconduct found to have been committed by the respondent. 2. Complaint One concerned the conduct of the respondent who was employed as a nurse at a drug and rehabilitation facility with respect to a patient known as Patient A. During the admission of this patient the respondent had discussed with her a number of personal issues in relation to her own family and financial problems. The respondent sent a large number of text messages to this patient asking for the loan of money and expressing concern over her financial circumstances. This culminated in the receipt of a loan from this patient of $7500 on 11 September 2017. The respondent repaid $1500 of this loan on 26 September 2017, but then failed to make any further repayments. 3. Complaint Two concerned the conduct of the respondent with respect to another patient known as Patient B. This patient was admitted to the same facility on 31 January 2017 with a 10 months history of opioid use disorder and was discharged on 28 February, 2017. She was on a regime of scheduled medication for anxiety and agitation. The respondent offered to procure for her additional Schedule 4 medication which had not been prescribed for the patient in exchange for money. The respondent had unlawfully obtained this medication from the hospital supplies and continued to do so after the patient was discharged in July 2017. In addition, the respondent obtained a loan of $6000 from this patient on the basis that she was suffering financial hardship. 4. All of these allegations were found proven, and many had been admitted by the respondent. The misconduct of the respondent is described more fully in the earlier decision but for present purposes we adopt the following summary 1. the respondent exploited two patients both of whom were vulnerable by reason of the conditions for which they were being treated in the facility 2. the respondent used her position of power as a nurse to borrow monies from these patients 3. the respondent misappropriated Schedule 4 D drugs from her workplace and provided them to Patient B in exchange for money 4. those drugs were provided in circumstances where no prescription had been issued creating a potential risk to the health and safety of Patient B 5. although the respondent conceded her misconduct with respect to Patient A, she denied any misconduct in relation to Patient B 6. there is no evidence available to us that the respondent has any insight in relation to her conduct concerning Patient B 1. As will be seen, cancellation of registration is a protective order which is available to be made consequent upon a finding that a health practitioner is guilty of professional misconduct. In finding the respondent guilty of professional misconduct we have found that her conduct was of a sufficiently serious nature to justify suspension or cancellation of her registration as a nurse. It then becomes necessary to determine whether a protective order involving cancellation of registration is appropriate to be made in these proceedings. This involves a reconsideration of the principles applying to the making of protective orders which we discussed in the earlier decision. In the earlier decision we said, commencing at [35] 35 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. 36 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 37 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. 38 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." 39 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. 40 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. After referring to the conduct of the respondent as including unlawfully obtaining and providing for reward prescription only drugs to a vulnerable patient, and the other conduct of the respondent we held in the aggregate that she was guilty of professional misconduct, and therefore susceptible to a protective order involving the cancellation of registration. Protective orders 1. The protective orders which are available consequent upon a finding of professional misconduct are set out in section 149C 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. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied— (a) the student 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 student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note— Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order— (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (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 applicant submitted that an appropriate protective order is the cancellation of the respondent's registration as a nurse. In addition to a consideration of the gravity of the professional misconduct which we have found it is also relevant to have regard to the circumstances of the respondent. 2. There is evidence that the respondent conceded that her conduct with respect to Patient A was inappropriate, but no concession was made by her with respect to her interaction with Patient B. On this basis we cannot be satisfied that the respondent possesses a relevant degree of insight into her misconduct, nor has she expressed contrition or remorse for her behaviour. 3. There is scant information available concerning the respondent's current personal circumstances which might afford some clue as to her prospects of rehabilitation and whether she is likely to engage in misconduct of this kind in the future. In an email communication to the applicant on 9 April 2018 the respondent indicated that she was managing the very difficult personal circumstances of an adult child. She said that another child was suffering from a serious illness requiring major surgery and for whom she was the sole carer. At that stage she had been unemployed since October 2017, her car had been repossessed, her power disconnected, and she was in debt. She was also homeless. The respondent said she was a single mother with four dependent children the youngest of whom was 12 months old. Significantly the respondent said that she was "currently unstable both physically and emotionally" due to her circumstances. There is a further email communication from the respondent of uncertain date containing similar information. 4. Clinical notes provided to the applicant by the respondent's treating general practitioner corroborate her difficult circumstances as outlined above. 5. Our consideration of the principles which apply to the formulation of appropriate protective orders which we have referred to above emphasises that the primary concern is the protection of the health and safety of the public. We repeat that the misconduct of the respondent is serious and is incompatible with any assessment that at the current time she is able to practice safely as a nurse. Furthermore, her personal circumstances as known are not conducive to any prospects of rehabilitation. The result is that we are unable to conclude that the respondent might be able to safely practice her profession as a nurse either at the present time or in the near future. This conclusion of itself justifies cancellation of registration. 6. In addition, cancellation of registration will provide a deterrent to the respondent should she regain registration, to preclude her from engaging in misconduct of this kind in the future. In the same way cancellation of registration will have the effect of deterring other health practitioners from engaging in misconduct of this kind, protect the public by reinforcing high professional standards and denouncing transgressions and will maintain public confidence in the nursing profession. All of these reasons complement the basis for the cancellation of the respondent's registration. We intend to order accordingly. 7. It is also appropriate that we set a minimum period under section 149C(7) before the respondent becomes entitled to seek a review of our Decision and able to again apply for registration. Such a period is usually set as a minimum period during which a former health practitioner might engage in reflection, rehabilitation and other processes including professional development in order to regain competence to again practice his or her profession. There is insufficient information available to us to make any meaningful assessment of what is likely to be an appropriate period before the respondent might be ready to seek registration as a nurse. The applicant suggested that an appropriate period would be 3 years, as a matter of impression. We agree that in all the circumstances this is an appropriate minimum period, and we propose to make an order accordingly. Prohibition order 1. Under section 149C(5) we are entitled in the circumstances contemplated by that subsection to make an order prohibiting the respondent from engaging in health services for a specified period or permanently. In order to make such an order we must be satisfied that the respondent poses a substantial risk to the health of members of the public. The applicant asked that we make such an order. The applicant was concerned that the respondent might seek employment in roles related to nursing which did not require registration, but which might expose her to patients. Examples given were assistant in nursing, care worker, support worker or case worker 2. Health services are defined in section 5 of the National Law in the following terms Section 5 definition health service includes the following services, whether provided as public or private services— (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services. 1. Having regard to the misconduct of the respondent which we have found to have occurred, and the nature of that misconduct, and having regard to what is known of the personal circumstances of the respondent we agree that she poses a substantial risk to the health and safety of members of the public if she were permitted to engage in providing services of the kind set out above. We are concerned that she might again engage in a similar manner with patients and others in connection with the provision of the services described, and we are also concerned that her personal circumstances are such that she might not be in a fit and proper state to provide those services. We propose to make an order accordingly. 2. For the same reasons advanced above in connection with a minimum period before the respondent is entitled to seek a review of our decision to cancel the registration, we intend fixing a minimum period of 3 years before which the respondent is entitled to seek a review of the prohibition order under section 163A of the National Law. Costs 1. This is a costs jurisdiction and prima facie the applicant having succeeded in the proceedings is entitled to a costs order in its favour. There is no conduct of the applicant or any other circumstances which would disentitle it to a favourable costs order. We note that impecuniosity is not a valid reason for declining to make a costs order where circumstances otherwise dictate that it should be made. 2. The applicant provided a detailed schedule of costs in the sum of $12,653.46 and asked that we make a costs order in this sum. We asked the applicant to provide corroborative information that the charge out rate of the practitioner involved was an appropriate amount by way of assessment under the provisions of the Legal Profession Uniform Law (NSW) No 16a of 2014. 3. We note that all of the substantive professional work has been carried out by Ms N Williams solicitor. From 5 May 2020 until 14 October 2020 this work has been charged out at a particular hourly rate. From 15 October 2020 save for one item Ms Williams' charge out rate increased significantly because, as she informed us during the hearing, she had received a promotion. There is no evidence before us that the professional work conducted in connection with this matter required the services of a solicitor who performed work at a higher level in the respondent's organisation than that formerly carried out by Ms Williams prior to her promotion. Indeed, our impression is that Ms Williams continued to carry out her work on this matter at the same professional level notwithstanding her promotion. On this basis it would seem appropriate that the level of costs payable by the respondent should be set by reference to the charge out rate which applied prior to the promotion of Ms Williams. We calculate that for the period 15 October to 11 December 2020 the total charges on the prior rate should have been $2239.14 in lieu of the amount actually charged for this period of $3385.75, a reduction of $1146.60. This will reduce the amount of the costs to $11,506.86, which is the amount we intend including in our costs order. Orders 1. We make the following orders 1. The registration of the respondent as a nurse is cancelled with effect from this date 2. The respondent is prohibited from providing health services as defined in section 5 of the Health Practitioner Regulation National Law 3. The respondent is precluded from seeking a review of orders (1) and (2) for a period of 3 years from this date 4. The appropriate review body of orders (1) and (2) is this Tribunal 5. The respondent is to pay the costs of the applicant in an amount of $11506.86 ********** 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: 23 December 2020