Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v De Guzman [2021] NSWCATOD 83 Hearing dates: 28 May 2021 Date of orders: 18 June 2021 Decision date: 18 June 2021 Jurisdiction: Occupational Division Before: The Hon J Boland AM, Deputy President Prof Emerita M Chiarella, Senior Member I McQualter, Senior Member R Wellington, General Member Decision: (1) Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) (the National Law) the registration of Michael De Guzman (the practitioner) is cancelled. (2) Pursuant to s 149C(7) of the National Law the practitioner is prohibited from seeking a re-instatement order for a period of five years from the date of these orders. (3) By consent, each party is to pay their own costs of and incidental to the proceedings. Catchwords: HEALTH – professional registration and discipline – professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chen v Health Care Complaints Commission [2017] NSWCA 186 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 Texts Cited: Nursing and Midwifery Board of Australia, "Code of Ethics for Nurses in Australia" (August 2008) Nursing and Midwifery Board of Australia, "Code of Professional Conduct for Nurses in Australia" (August 2008) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Michael De Guzman (Respondent) Representation: Counsel: A Petrie (Applicant) D Burwood (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2020/00189349 Publication restriction: Nil REASONS FOR DECISION Introduction 1. Mr Michael De Guzman is a registered nurse. He is currently detained as an involuntary patient in a Forensic Hospital in Sydney. By order of the Guardianship Division of this Tribunal on 25 February 2021 the Public Guardian was appointed as his guardian with a legal services function. 2. The circumstances that led to the practitioner's detention are, particularly for victims of his actions, tragic. 3. In 2016 the practitioner was charged with 11 offences including "to shoot with intent to murder". As a result of the practitioner's conduct, a police officer and a security guard were seriously injured and other hospital and security staff at the emergency department of the Nepean Hospital were also injured and/or threatened. The offences occurred at a time the practitioner was experiencing a psychotic episode exacerbated by his use of the illicit drug methamphetamine, or, as it is commonly referred to, "ice". We describe in greater detail below the relevant events in 2016, the practitioner's mental health and his illicit drug use. 4. Following a Judge alone trial before Robison DCJ in October 2018, his Honour made orders under s 39 of the Mental Health (Forensic Provisions Act) 1990 (NSW) that the practitioner be detained in a secure correctional centre or such facility as the Mental Health Review Tribunal (MHRT) may determine until released by process of law. 5. Disciplinary proceedings under the Health Practitioner Regulation National Law (NSW) (the National Law) were commenced in this Tribunal on 26 June 2020 by the Health Care Complaints Commission (HCCC). Leave was granted, without objection, to rely on an Amended Complaint at the commencement of the hearing. 6. In the Amended Complaint the HCCC allege under s 139B(1)(l) of the National Law that the practitioner has engaged in improper or unethical conduct by purchasing and using methamphetamine between some time in 2012 and 2016. The HCCC further allege, in Complaint Two of the Amended Complaint, that the practitioner suffers an impairment as defined in s 5 of the National Law, namely that he has a mental illness being Amphetamine Use Disorder and Schizophrenia. Complaint Three asserts that the practitioner is, by reason of Complaints One and Two, not competent to practise. Finally, Complaint Four alleges the practitioner is guilty of professional misconduct. 7. As soon as the practitioner obtained legal advice, following the appointment of the Public Guardian as his Guardian, he conceded all of the complaints against him in writing in a Reply to the original complaint document, and at the commencement of the hearing following the filing of the Amended Complaint by the HCCC, in an Amended Reply. We take this opportunity to acknowledge and thank Mr David Burwood of counsel who has appeared in these proceedings on a pro bono basis for the practitioner and who facilitated the preparation of documents on his behalf. We also acknowledge and thank the practitioner's social workers who have assisted at directions hearings and who organised the application to the Guardianship Division of the Tribunal leading to the making of the limited guardianship order. 8. Before us the HCCC sought that we make orders cancelling the practitioner's registration and providing a period of five years before he may seek re-instatement to the register. Mr Burwood on behalf of the practitioner acknowledged the present reality of the practitioner's situation and on his behalf indicated that it was a matter for us what protective orders should be made. 9. For the reasons that follow, we have determined that the practitioner's registration should be cancelled, and that a period of five years should elapse before he can seek a re-instatement order. We will also order, by consent, that each party should bear their own costs of the proceedings. The HCCC acknowledged the early and full admission of the complaint by the practitioner and other matters raised in written submissions on costs prepared by Mr Burwood support the making of the proposed costs order. We agreed the costs order is, in the unique circumstances of this case, an appropriate one to be made. Background 1. The following matters, except where noted to be an assertion, are accepted by us as facts established to the requisite civil standard. 2. The practitioner, who was born in the Philippines in 1976, migrated to Australia in 1988. 3. In 1997 the practitioner engaged in nursing studies at the University of Western Sydney. In 2001 he obtained qualifications as an Assistant in Nursing and obtained various positions in that role. He was first registered as a registered nurse on 3 April 2003. He worked both as an Assistant in Nursing and later as a registered nurse with Ageing, Disability and Home Care NSW where he cared for patients with a disability. 4. The practitioner asserts that, in 2011, following the birth of his son, he became anxious. 5. In about 2012/2013 the practitioner commenced using methamphetamine at a social function at his brother-in-law's home. He continued to purchase and use methamphetamine at a frequency varying from daily to two to three times per week up until about 1 January 2016. He used methamphetamine while he was practising nursing. 6. In 2013, the practitioner attended the Hills Private Hospital for treatment for anxiety and substance abuse. He attended a psychologist for marriage guidance counselling and addiction counselling. He was also referred to a psychiatrist, who he asserts prescribed Serenace, which the practitioner says he took daily for three months. He says this drug affected his ability to work and after taking leave from work, he was prescribed Abilify (aripiprazole). Although the practitioner says that this drug improved his delusional symptoms it "impacted my movements physically" and he ceased the medication. 7. The practitioner asserts he did not take methamphetamine for approximately six months but he again resumed using this illicit drug once per week always with his brother-in-law. 8. In February 2015 the practitioner asserts he was made redundant from his employment as a nurse and commenced work as a construction worker. He asserts his delusions became worse and his mental health deteriorated rapidly. 9. The HCCC assert in the Amended Complaint that until about 1 January 2016 the practitioner was employed on a part-time basis with Ageing, Disability and Home Care NSW. 10. On 12 January 2016 the practitioner used methamphetamine. While under the influence of the drug, and psychotic, the practitioner attempted to enter a woman's home. When police attended the scene he assaulted the police and attempted to take a firearm. He was then conveyed to Nepean Hospital for assessment. 11. In the emergency department of the hospital, the practitioner assaulted a female Registrar, attacking her with a 15cm pair of scissors held to her throat, and made threats that he would kill her. The practitioner resisted attempts by police and two security guards to have him release the Registrar. He resisted or refused police requests to free the Registrar. During actions by the police and security guards to overpower the practitioner he removed a police officer's gun and shot and wounded the police officer and a security guard. Serious injuries were sustained by the police officer who attempted to calm the practitioner and free the Registrar. The security guard was shot in the leg and another security guard was also wounded by a metal fragment caused by the discharge of the gun. 12. On 14 January 2016 following a hearing under s 150 of the National Law the practitioner's registration was suspended. 13. On 21 January 2016 the practitioner was screened at the Mental Health Unit at Metropolitan Remand and Reception Centre. The practitioner was described as paranoid and fearful for his safety. He was prescribed olanzapine. Since January 2016 the practitioner has been diagnosed as suffering from amphetamine use disorder and schizophrenia. 14. On 30 October 2018 following a Judge alone trial in the District Court of NSW, his Honour Judge Robison entered a special verdict of not guilty by reason of mental illness in respect of the 11 charges brought against the practitioner, including attempted murder. 15. In May 2020 the practitioner was admitted to the Bronte Unit at the Forensic Hospital and subsequently transferred to the sub-acute ward. The practitioner has been subject to reviews by the MHRT and at the date of the hearing remained an involuntary patient. 16. In January 2021, a psychiatrist reviewing the practitioner noted he had demonstrated "good behavioural stability" and an absence of psychotic symptoms since treatment with olanzapine. Some boundary crossing incidents with other patients were noted. 17. The MHRT is scheduled to review the practitioner's status in July 2021. 18. The practitioner has regular audio-visual link contact with his wife and children. Relevant statutory provisions and principles 1. It is convenient that we first refer to the provisions of the National Law which have particular relevance to this matter. 2. As with all matters determined by the Tribunal, decision making is guided by the objective and guiding principle of the National Law. In this case s 3A, a New South Wales provision, is important. Section 3A provides as follows: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Complaint One of the Amended Complaint is agitated under s 139B(1)(l). That sub-section defines a type of unsatisfactory professional conduct as follows: 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— … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. … 1. Complaint Two asserts the practitioner suffers an impairment, as defined in s 5 (which impairment is a ground for a complaint under s 144(d)). Section 5 defines "impairment", as relevant to a registered medical practitioner, as: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or … 1. Complaint Three asserts the practitioner is, pursuant to s 139(a) of the National Law, not competent to practise. Section 139(a) provides as follows: 139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person— (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and … 1. Complaint Four asserts the practitioner is guilty of professional misconduct. Professional misconduct is defined in s 139E 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. It is not in dispute that the HCCC carry the onus of proof in these proceedings and must establish the asserted four complaints to the requisite civil standard. The standard of proof in professional disciplinary proceedings conducted under the National Law and its predecessors has generally been accepted to be on the balance of probabilities, as explained in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. The Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 emphasised that a tribunal, as distinct from a court, is not bound to apply the Briginshaw standard to fact finding. Notwithstanding this observation, we must reflect, in making our findings on the evidence before us, the serious nature of those findings and their consequences. 2. It is also useful at this point in our reasons to set out the summary of the scheme and underlying principles relating to protective orders explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]–[35], as follows: "The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include 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" and to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3. 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. The authorities make it clear that protective orders which may be imposed at the conclusion of disciplinary proceedings are not to punish the practitioner but to protect the public: see Clyne v New South Wales Bar Association (1960) 104 CLR 186. Matters in issue The conduct of the hearing 1. We commence by noting this is a matter which we determined fell within the terms of s 165H of the National Law. That provision provides that no inquiry needs to be conducted into a complaint if the practitioner admits the complaint in writing to the Tribunal. It is not in dispute that is the factual situation in this case. We indicated to the parties at the commencement of the hearing that we did not propose to conduct an inquiry into the complaint, but would focus on appropriate protective orders. 2. We also note that under s 165M(5) we are required to provide, as we now do, a statement of decision for the protective orders to be made. Principal matter/s in issue 1. Given the practitioner's concessions, the principal issue for us to determine was whether the practitioner's registration should be suspended or cancelled and, if the latter, the period of time before he can seek a re-instatement order. Improper or unethical conduct 1. The National Law refers to a category of unsatisfactory professional conduct namely "any other improper or unethical conduct relating to the practice or purported practice" of nursing. Although the words "improper" and "unethical" are not defined in the National Law their meaning has been explored in a number of the Tribunal's decisions: see Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. 2. In his statement, and his two Replies, the practitioner has admitted that he engaged in improper and unethical conduct by taking illicit drugs during the period he was working as a nurse. 3. The HCCC relied on the Code of Professional Conduct for Nurses in Australia (the Code) in force at the relevant time. Conduct Statement 1 of the Code at par 5 provides: "Nurses practise in a safe and competent manner that is not compromised by personal health limitations, including the use of alcohol or other substances that may alter a nurse's capacity to practise safely at all times. Nurses whose health threatens their capacity to practise safely and competently have a responsibility to seek assistance to redress their health needs. This may include making a confidential report to an appropriate authority." 1. Conduct Statement 9 of the Code also has relevance to this complaint. Paragraph 2 of Statement 9 is relevant. It provides: "The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession's good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care." 1. The HCCC also relied on the Code of Ethics for Nurses in Australia (the Ethics Code). Value Statement 4 of the Code explains that "Nurses value and accept responsibility for self-care. This involves maintaining their own health, acknowledging their physical and psychological strengths and limitations…" 2. While there was no challenge to the practitioner's evidence that he did cease work for a period, and abstained from illicit drug use for a period of about six months, the reality is that he worked as a nurse providing services to a vulnerable group in society whilst he was actively and regularly using drugs. 3. We are independently satisfied that his illicit drug use whilst nursing was conduct that was improper and unethical and in breach of the Code and the Ethics Code. Impairment 1. This complaint requires little discussion. At the date of the hearing the practitioner remained an involuntary patient subject to review by the MHRT. 2. For completeness we note that we had the benefit of a report by Dr Anthony Samuels dated 4 November 2019. Dr Samuels confirmed in an email provided shortly prior to the hearing that he had not changed his opinions set out in the report. 3. Dr Samuels opines that the practitioner "does suffer from an impairment as defined by section 5 of the National Law. He has a confirmed diagnosis of chronic Schizophrenia and amphetamine use; both in remission". 4. Dr Samuels was asked by the HCCC to comment on whether the practitioner's impairment detrimentally affects, or is likely to detrimentally affect, the practitioner's capacity to practise nursing safely. Dr Samuels responded to this question as follows: "There is evidence from the material reviewed that [the practitioner] was using ICE on a daily basis whilst working as a nurse. The effect of the ICE use on his mental state was ultimately catastrophic, lead to police officers and medical personnel and health professionals being seriously injured and traumatised and resulted in serious adverse publicity for the nursing profession." 1. Although Dr Samuels acknowledges from the Justice Health records that the practitioner has made good progress and that he is not using substances whilst in custody, he opines that the practitioner will require ongoing rehabilitation and treatment in the Forensic Hospital. He also notes, given the gravity of the offences, that it is likely that the practitioner will be in the Forensic Hospital for a number of years before discharge to a less secure setting. 2. Dr Samuels also opines that the practitioner has a serious mental illness with significant potential for relapse. 3. In responding to the HCCC's question about the practitioner's current competence to practise nursing, Dr Samuels noted that the practitioner's current conditions are in remission, that he is not currently symptomatic, and in the ordinary circumstances, subject to a considerable number of safeguards, he could practise. Dr Samuels qualifies his opinion noting that the practitioner has not practised nursing for a number of years, and the fact of his present detention. Dr Samuels concludes: "... It is unlikely that he will be at the point where he could have his registration restored with conditions for many years. If and when [the practitioner] reaches this point, there will be significant recency of practice issues and at that point he will require significant retraining." 1. We note that Dr Samuels was not required for cross-examination and his evidence comes before us unchallenged. 2. We have no hesitation in accepting and adopting Dr Samuels' opinions set out in his report. We are satisfied that the practitioner does suffer an impairment as defined in the National Law. Not competent to practise 1. We also accept and adopt Dr Samuels' opinion about the practitioner's competence, or rather lack of fitness to practise at the present time. We are satisfied that the expert evidence supports a finding that the practitioner is not competent to practise by reason of his mental health. Professional misconduct 1. We have earlier in these reasons set out the definition of professional misconduct. The matters which may lead to a finding of professional misconduct are explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]–[22] as follows: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C (1). Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided." 1. The seriousness of the improper and unethical conduct we have found supports a finding of professional misconduct. The practitioner, by his illicit drug-taking, potentially exposed the patients in his care to ill-treatment and negligent care. His actions on 12 January 2016, which we are cognisant did not occur in the practice of his profession or the purported practice of his profession, have had terrible and lasting consequences for those who suffered injury from his conduct. His actions on that day brought the reputation of the profession into disrepute and support a finding that he is not competent to practise. 2. We have no hesitation in finding, based on our conclusions in respect of Complaint One, that the practitioner is guilty of professional misconduct. Appropriate protective orders 1. We are cognisant that the practitioner expresses a wish to be able to practise in the future and at a time sooner than proposed by the HCCC. We also accept he has expressed remorse for his actions on 12 January 2016. 2. In determining, as sought by the HCCC, to impose a period of five years before the practitioner can apply for a reinstatement order, we have balanced factors relating to his current medication compliance, support of his family and recency of practice issues, against the seriousness of his diagnosis and his ability to abstain from illicit drug use outside the forensic hospital setting. It is relevant that the practitioner was able to obtain and smoke methamphetamine with his brother-in-law. His ability to avoid further drug use in an unsupervised environment when he may again be exposed to access to illicit drugs in a family environment is a relevant matter of concern. We also take into account his past failure to adhere to taking prescribed medication, and note his present medication regime is by three-monthly injection. His ability to comply with a medication regime in the community when released is untested. 3. We are also conscious, in setting a five-year period before the practitioner can re-apply to this Tribunal for a reinstatement order, of the seriousness of the practitioner's conduct and the deterrent element of such an order. This is cogently explained by Payne JA in Chen v Health Care Complaints Commission at [88]. There his Honour notes: "… a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order." 1. In summary, we concur with the HCCC's position that a period of five years is appropriate. Costs 1. We have earlier noted that the parties sought that we make an order that each party pay their own costs of the proceedings. We find such an order to be appropriate having regard to the practitioner's prompt concession of all complaints once he had legal advice, the circumstances referred to in Mr Burwood's submissions and the fact it was necessary for the Tribunal to facilitate an application being made for the appointment of a guardian for the practitioner. Orders 1. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) (the National Law) the registration of Michael De Guzman (the practitioner) is cancelled. 2. Pursuant to s 149C(7) of the National Law the practitioner is prohibited from seeking a re-instatement order for a period of five years from the date of these orders. 3. By consent, each party is to pay their own costs of and incidental to the proceedings. ********** 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: 18 June 2021