Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Payne [2021] NSWCATOD 192 Hearing dates: 1 July, 16 August and 27 October 2021 Date of orders: 01 December 2021 Decision date: 01 December 2021 Jurisdiction: Occupational Division Before: O Shub, Senior Member C Sippel, Senior Member W Thomas, Senior Member A Gray, General Member Decision: (1) The registration of the Respondent is cancelled with effect from the date of this decision. (2) The Respondent is not permitted to seek a review of the cancellation for a period of two years from the date of this decision. (3) The Respondent is ordered to pay the costs of the Applicant as assessed or agreed. Catchwords: HEALTH – professional registration and discipline – complaints – enrolled nurse – improper or unethical conduct – misleading information – false medical certificates Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: Nursing and Midwifery Board of Australia, "Code of Conduct for Nurses" (1 March 2018) Nursing and Midwifery Board of Australia, "Enrolled Nurse Standards of Practice" (1 January 2016) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Karinna Ann Payne (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self-Represented) File Number(s): 2020/00354645 Publication restriction: Prohibition of the disclosure of the names of Practitioner A and Practitioner B referred to in the Complaint under s 64(1)(a) of the Civil & Administrative Tribunal Act 2013 (NSW). REASONS FOR DECISION 1. The reasons for the complaint brought by the Applicant appear from the Complaint lodged with the Tribunal under Case No. 2020/00354645 dated 11 December 2020. Complaint "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 Miss Karinna Ann Payne ("the practitioner") of [address], being an enrolled nurse registered under the National Law, BACKGROUND TO ALL COMPLAINTS In 2010 the practitioner was working as an Assistant in Nursing at the Bundaberg Base Hospital in Queensland. During 2011 and 2012 the practitioner undertook and completed a Diploma of Nursing at the Wide Bay Institute of TAFE in Queensland. In February 2012 the practitioner commenced working as an Endorsed Enrolled Nurse at the Bundaberg Base Hospital. In March 2013 the practitioner commenced work as an Endorsed Enrolled Nurse at the Wagga Wagga Rural Referral Hospital ('the Hospital'). The practitioner was employed during this time by the Murrumbidgee Local Health District ('MLHD'). On 29 August 2017, in a letter to the practitioner, the MLHD raised concerns regarding the practitioner's excessive amount of sick leave without explanation or medical certificates. On 17 October 2017, the practitioner provided 12 medical certificates to Medical Practitioner A to support the sick leave instances raised in the letter from the MLHD. On 6 November 2017, the practitioner attended a meeting with representatives from the MLHD in relation to the 12 medical certificates that were provided to Medical Practitioner A. A further meeting was held by representatives of the MLDH, which the practitioner attended on 30 November 2017. On 14 February 2019, the practitioner attended proceedings held by the Nursing and Midwifery Council of NSW ('NMWC') under s 150 of the Health Practitioner Regulation National Law (NSW) ('the National Law'). On 30 September 2019, the NMWC held proceedings under s 150C of the National Law, which the practitioner did not attend. COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. PARTICULARS OF COMPLAINT ONE 1. On 17 October 2017, the practitioner provided false and/or misleading information to her employer in that she provided 12 medical certificates written in the name of Medical Practitioner B to support previous instances of sick leave for the dates as set out in Schedule B to the Complaint, in circumstances where Medical Practitioner B did not write the medical certificates. 2. By providing false and/or misleading information as set out in Particular 1, the practitioner engaged in conduct that was contrary to: a. Conduct Statement 3 of the Code of Professional Conduct for Nurses in Australia from the Nursing and Midwifery Board of Australia ("NMBA"); b. Section 3.2.2 of the NSW Health Policy Directive 'Leave Matters for the NSW Health Service'. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. PARTICULARS OF COMPLAINT TWO 1. On 6 November 2017, the practitioner provided false and/or misleading information to the representatives of the MLHD in that she denied that the 12 medical certificates she provided to her employer on 17 October 2017 were forged. 2. On 30 November 2017, the practitioner provided false and/or misleading information to the representatives of the MLHD in that she denied that the 12 medical certificates she provided to her employer on 17 October 2017 were forged 3. In a letter dated 18 May 2018, which the practitioner provided to the MLHD, the practitioner provided false and/or misleading information in that she denied that the 12 medical certificates she provided to her employer on 17 October 2017 were forged. 4. In a letter dated 2 July 2018, which the practitioner provided to NMWC, the practitioner provided false and/or misleading information to the NMWC in that she denied that the 12 medical certificates she provided to her employer on 17 October 2017 were forged. 5. On 14 February 2019, the practitioner provided false and/or misleading information to the representatives of the s 150 proceedings in that she denied that the 12 medical certificates she provided to her employer on 17 October 2017 were forged. 6. By providing false and/or misleading information as set out in Particulars 1 to 5, the practitioner engaged in conduct that was contrary to: a. Sections 4.2.3, 4.3.8, 4.3.9 and 4.3.11 of the NSW Health Code of Conduct; b. NMBA Code of Professional Conduct for Nurses in Australia; c. NMBA Code of Ethics for Nurses in Australia; d. NMBA Enrolled Nurse Standard for Practice. COMPLAINT THREE The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has 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. PARTICULARS OF COMPLAINT THREE 1. Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively." Nature of the Jurisdiction 1. The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and to maintain proper standards in the profession of nursing. 2. In Clyne v NSW Bar Association (1960) 104 CLR 186 at 201‑202; [1960] HCA 40 the High Court said: "Although it is sometimes referred to as "the penalty of disbarment" it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view in order that abuse of privilege may not lead to loss of privilege." 1. Section 3A of the Health Practitioner Regulation National Law (NSW) ("the National Law"), provides that "in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration". The interests of the public includes patients or potential patients of the Practitioner concerned. 2. As observed by Beston JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "…The purpose of any order made upon a finding that a complaint has been proved is said to be protective] of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." The Issues 1. In essence, therefore, the issues which arise are clearly set out in the particulars of Complaint One. 2. The Complaint against the Respondent alleges that the practitioner provided false and/or misleading information to her employer in that she provided 12 medical certificates written in the name of Medical Practitioner B to support previous instances of sick leave for the dates scheduled in the Complaint in circumstances where Medical Practitioner B did not write the medical certificates. 3. In respect of Complaint Two, it is alleged that the Respondent is guilty of unsatisfactory professional conduct in that it is alleged that she provided false or misleading information to the representatives of the Murrumbidgee Local Health District (MLHD) in that she denied that the 12 medical certificates she provided to her employer on 17 October 2017 were forged. 4. In addition, whether the certificates provided to the MLHD are proven to be false or whether the Respondent's denial that she forged any of the medical certificates is accepted. 5. The position adopted by the Respondent can be gleaned initially from various documents provided by the Applicant and contained in Exhibit 1, a volume of documents with Tabs 1 to 48 as early as July 2018. In response to a letter addressed to the Respondent dated 20 June 2018 by the Nursing and Midwifery Council, the Respondent indicated to the Council that she recognised the importance of the allegations made against her and the fact that it appeared that she had falsified medical certificates on purpose which she stated was not the case. She stated that it was an innocent mistake caused by a virus on her computer. She indicated that she should have gone through all the information before she gave it to work the following morning and although it was not an excuse, she stated that she was completely exhausted following a double shift that day. She was struggling with low blood pressure in her final trimester of pregnancy and she dealt with the medical certificates late at night. She also had to work an early shift the following day so she collected the information as quickly as possible to give to work in the morning. It came to her attention a week or so later when she went to print something off her computer that everything had her medical practitioner's letterhead attached to the documents. She made enquiries of the computer company who indicated that this could have been a virus. 6. The Respondent was called to a s 150 enquiry which she attended on 14 February 2019. The Respondent was interviewed and gave responses to all questions asked of her by the Council. In their deliberations the Council found the explanation of a computer virus in the absence of any evidence was implausible. They noted the MLHD investigation had found the misconduct allegation substantiated and the Respondent's responses during the hearing were distressed, vague and evasive. Having regard to their assessment of the information and the evidence relevant to the issues, the Council concluded that the Respondent does pose a risk to public health and safety which requires them to take action because of the following risks: 1. the Respondent demonstrates unstable health and wellbeing as noted by her emotional fragility during the hearing and her significant sick leave when last working as a nurse; 2. the Respondent continues to deny any wrongdoing in regards to the presentation of false medical certificates which led to serious outcomes; 3. the Respondent has not taken any responsibility for her actions; in light of serious findings regarding her professional misconduct; 4. the Respondent lacks any professional health support and this increases her vulnerability to unstable health and wellbeing. 1. At that point the Council took the view that this risk could be addressed by the imposition of conditions which include supervision and monthly reports on her ability to practise safely, ethically and competently in the profession. 2. Following the concerns expressed by the Nursing and Midwifery Council in regard to the mental health of the Respondent, the Respondent was referred to the Impaired Registrants Panel for review. 3. A review hearing took place on 15 August 2019. 4. A follow‑up hearing under s 150 was held on 30 September 2019. 5. It was reported that the Impaired Registrants Panel formed the view that the Respondent's explanations for her submission of false material was not plausible and that her character flaws as noted by the doctor account for her misconduct. Unlike the doctor, the panel considered the Respondent's character flaws do not make her impaired as defined by s 5 of the National Law. 6. Following the interview with the Respondent and after carefully considering the information available to the Council, the Council determined that in order to ensure the safety of the public a condition restricting the Respondent from working as an enrolled nurse was necessary at this time. They noted the Respondent's lack of engagement with the Council and her persistent failure to acknowledge her breaches of conduct or unprofessional behaviour. Both the Enrolled Nurse Standards of Practice (2016) and the Code of Conduct for Nurses (2018) set out clearly the expectations of the Nursing and Midwifery Board of Australia. The Code sets out the legal requirements, professional behaviour and conduct expectations for all nurses in Australia. Based on her non‑engagement with the regulator, breaches of conduct and a lack of accountability, she has failed in her nursing to practise within this framework. Historically, the Respondent has exhibited a pattern of behaviour which is suggestive of unsatisfactory professional conduct, namely numerous submissions of fraudulent documents to her workplace. This behaviour in addition to the Respondent's history of unstable health and wellbeing is concerning and indicates a risk to the public. Applicant's Evidence 1. The Applicant has provided a large body of documents some of which will be dealt with in these reasons in order to determine the appropriate protective orders that should be made. Respondent's Evidence 1. The Respondent's evidence flows largely from the cross‑examination of the Respondent. The cross‑examination centred extensively around the allegation that the medical certificates involved were fraudulently created and provided to the Respondent's employer. The Respondent claimed that the medical certificates were not falsified by her but that because of a computer glitch the computer picked up the heading of the one medical practice which she attended. The medical practice confirmed that they had not provided those certificates. There was cross‑examination about whether she had copies of the certificates which she said she did not. 2. The Respondent was referred to various certificates and in particular one dated 13 July 2016. This certificate allegedly prepared by Coolamon Regional Medical Centre indicates that the Respondent would be unfit for normal work from 13 July 2016 to 15 July 2016 depending on how she feels on 14 July 2016 inclusive. However, on that document the signature of the doctor is dated 11 July 2017. A further medical certificate allegedly issued by Coolamon Regional Medical Centre dated 15 June 2017 states that in the opinion of the doctor the Respondent would be unfit for normal work from 14 June 2017 to 16 June 2017 inclusive. That document carries the signature of the doctor and is dated 21 August 2017. A further certificate from Coolamon Regional Medical Centre dated 15 April 2017 indicates that in the opinion of the doctor the Respondent would be unfit for normal work from 15 April 2017 to 18 April 2017. However, the signature of the doctor is dated 11 July 2017. 3. Similar inconsistencies exist in respect of others of the medical certificates provided. 4. In addition, it was pointed out that some of the medical certificates have what looks like a line underneath the title 'Medical Certificate' which could indicate that the letterhead of the particular medical centre was utilised to add content below that line which was not created by the medical centre. 5. The Respondent was also asked in cross‑examination a number of questions about the information that she claims flowed from the computer service provider but the Respondent was unable to provide any confirmation of the advice which she had been given or the times and persons to whom she spoke. 6. When cross‑examination turned to issues that could lead to allegations of fraud, the Respondent was advised by the Tribunal that she might need to seek advice on answering questions that could be self‑incriminating and to seek advice as to whether she should apply for a s 128 order, under the Evidence Act 1995 (NSW), against self‑incrimination. The matter was adjourned to a date to be confirmed for her to obtain such advice. 7. The matter returned to the Tribunal on 27 October 2021 and the Tribunal was informed that the Respondent had not succeeded in obtaining advice as to how to proceed. Nevertheless, the Respondent indicated that she was prepared to proceed and would rely on s 128 in the event that it became necessary. There was no questioning that caused her to seek an opportunity not to answer any questions. 8. The Respondent then opened her case and indicated that when she received the complaint she was shocked about reference to her days of intoxication as it was long ago and she had dealt with that issue. Then she was shocked to see them assuming that she was being dishonest. She had always been a very good nurse, everybody thought she was a very good worker and she loves her job. She stated that she has a beautiful boy and she wants him to grow up very nicely. She stated that she did not falsify the documents and regrets that she had computer problems. She stated that on the occasion of provision of the medical certificates, she got home at about 1:00 am and had to be at work at 7:00 am. She just went to bed, otherwise if she knew what would happen she would have sorted it all out that night. She stated that she even phoned Apple Support and couldn't get any information from them. She went through everything she could and could not find any of the original documents. The Tribunal sought clarification on various issues and in particular what the virus was. She indicated that with scanning something can be different. She did not know how to do this so she did it on her partner's computer and the documents all came up with the medical centre where the form is. Apple advised her that it could only come up that way with a virus on the computer. 9. There were also questions put to the Respondent about the fact that she might have visited other medical practitioners who might have given her medical certificates for absences from work. She stated that she did go to other practitioners but was unable to provide any information of any other practitioners she had seen. The Tribunal asked whether she had gone to the various other towns where she might have visited other practitioners to see whether she could recognise the practice and seek confirmation from them that they had issued her with medical certificates. The Tribunal was concerned that there was no information that the Respondent was able to give regarding any other medical practitioner that she might have seen other than the one listed on all the medical certificates. 10. The Respondent, having chosen not to give evidence under oath or affirmation, closed her case. Applicant's Oral Submissions 1. The Applicant made some oral submissions in addition to the written submissions and in particular stated that a statement from the bar should be given little weight because there has been no cross‑examination of her. Applicant's Closing Submissions 1. The Applicant provided the Tribunal with two sets of written submissions, one relating to Stage 1 and one relating to Stage 2. These submissions are set out below. "Stage 1 Introduction 1. This matter is about an enrolled nurse who submitted 12 falsified medical certificates to her hospital employer for claimed sick leave, provided false and/or misleading information to the Local Health District on three occasions, then provided false and/or misleading information to the Nursing and Midwifery Council on two further occasions, continuing to deny her conduct. The inquiry 2. This is an Inquiry into a Complaint made in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the National Law. The practitioner is registered under the Health Practitioner Regulation National Law (NSW) ('the National Law'). 3. For the purpose of Stage 1, the Tribunal must consider: a. First, whether, on the evidence, the subject matter of the complaint is proven [s 149 National Law]. b. Second, if unsatisfactory professional conduct is proven, whether the conduct amounts to professional misconduct. 4. The Commission seeks findings that the subject matter of the complaint is proven and that the practitioner is guilty of unsatisfactory professional conduct and professional misconduct. 5. The relevant principles include: a. The protection of public safety and health is paramount [s 3A of the National Law]; b. The Commission bears the burden of proof [Lindsay v Health Care Complaints Commission [2005] NSWCA 356]; c. The Tribunal is not bound by the rules of evidence [s 38(2) Civil and Administrative Tribunal Act 2013 and clause 2 of Schedule 5D of the National Law]; d. While the Tribunal is not bound to adopt the approach set out in Briginshaw [v Briginshaw (1938) 60 CLR 336] and s 140 of the Evidence Act 1995 does not directly apply to the Tribunal's decision‑making [Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; Sullivan v Civil Aviation Authority [2014] 226 FCR 555 at [106]; HCCC v Meneghetti [2020] NSWCATOD 39 at [14]], the Briginshaw principles remain relevant [See recent examples: HCCC v Mikhail [2021] NSWCATOD 103 at [25]-[26]; HCCC v Sriskanda [2021] NSWCATOD 42 at [101]; HCCC v Saab [2020] NSWCATOD 145 at [47]] and have been accepted by the Court of Appeal [Gautam v Health Care Complaints Commission [2021] NSWCA 85 per Payne JA at [89]; Leeming JA at [1] and Simpson MA at [118] agreeing], so that the Tribunal should be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding [Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705 at [18]], e. The Tribunal is subject to rules of procedural fairness [Sudath v HCCC [2012] NSWCA 171 at [75]]. Complaint 1 6. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law because she has engaged in improper or unethical conduct relating to the practice or purported practice of nursing by providing 12 falsified medical certificates to her employer, the Murrumbidgee Local Health District (LHD). 7. The Tribunal has considered the meaning of improper or unethical conduct [see, for example, HCCC v Liu [2016] NSWCATOD 133 at [51]-[55]; HCCC v Nguyen [2018] NSWCATOD 168 at [47]; HCCC v Shrimpton [2019] NSWCATOD 25 at [67]-[69]; HCCC v Petros [2019] NSWCATOD 83 [116]‑[121]]. The relevant principles include: a. The words "improper" and "unethical" are not defined in the National Law so the Tribunal has considered their dictionary meanings: improper relevantly means not right or not in accordance with propriety of behaviour and unethical relevantly means contrary to moral precept, immoral or in contravention of some code of professional conduct [HCCC v Liu [2016] NSWCATOD 133 at [51]-[52]]; b. The relevant ordinary meanings of improper include not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong [HCCC v Liu [2016] NSWCATOD 133 at [53]]; c. In professional disciplinary proceedings, impropriety means a breach of the standards of conduct that would be expected of a person in the position of the practitioner [HCCC v Liu [2016] NSWCATOD 133 at [54]]; d. It is not necessary to state an exhaustive definition of improper or unethical conduct as it encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession [HCCC v Liu [2016] NSWCATOD 133 at [55]]; e. Whether conduct is improper is an objective test [HCCC v Liu [2016] NSWCATOD 133 at [54]]: f. To make a finding of improper or unethical conduct, it is not necessary for the Tribunal to be satisfied that the conduct is intentional: improper conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct [HCCC v Aref [2018] NSWCATOD 133 at [19]-[21]]; g. Impropriety does not depend on the practitioner's consciousness of impropriety, it consists in a breach of the standards of conduct that would be expected of a person in the position of the practitioner by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case [HCCC v Nguyen [2018] NSWCATOD 168 at [47]]; h. Codes approved by the National Board are admissible evidence of what constitutes appropriate professional conduct or practice for the profession [s 41 National Law] and may be relevant to whether conduct is improper or unethical. 8. The evidence for complaint 1.1 includes: a. the 12 medical certificates purportedly written by Medical Practitioner B [the Tribunal has made a non-publication order regarding the name of Medical Practitioner B]; and b. the evidence from Medical Practitioner B's practice manager that he did not write the medical certificates. 9. By way of background, on 29 August 2017, the Local Health District wrote to the practitioner, concerned about the excessive amount of sick leave she had taken without providing medical certificates. In response, on 17 October 2017, the practitioner provided 12 medical certificates to the LHD. 10. The 12 medical certificates initially appear to be genuine but, on closer examination, all contain questionable discrepancies: a. 13 July 2016 - It has a questionable gap between the date of the certificate "13/07/2016" and the date of signature "11/7/2017" (over a year later) b. 3 October 2016 - It has questionable gaps between the date of leave "03/1/2016", the date of the certificate "03/10/2016" and the date of signature "21/8/2017" c. 1 November 2016 - It has a questionable reason "due to family illness, as I have asked her to stay with her grandmother" d. 1 November 2016 - It has questionable gaps between the date of leave "03/1/2016", the date of the certificate "1/11/2016" and the date of signature "21/8/2017" (and is strikingly similar to the certificate dated 3 October 2016) e. 10 November 2016 - It has a questionable gap between the date of the certificate "10/11/2016" and the date of signature "11/7/2017" (over 8 months later) f. 7 December 2016 - It has questionable spelling "revuauate karinna" g. 29 January 2017 - It has a questionable gap between the date of the certificate "29/01/2017" and the date of signature "21/8/17" (and the same questionable reason as the certificate dated 1 November 2016) h. 15 April 2017 - It has a questionable gap between the date of the certificate "15/04/2017" and the date of signature "11/7/2017" i. 30 April 2017 - It is for an invalid date "31/04/2017" j. 15 May 2017 - It is for a questionable reason "to assist family at home with illness and travel as per her requested days off' k. 15 June 2017 - It contains no reason I. 21 June 2017 - It is for a questionable reverse period "21/04/2017 to 18/04/2017". 11. The evidence establishes that Medical Practitioner B did not write on the 12 medical certificates: a. the practice manager's email confirms there is no electronic record of the certificates; b. the practice manager's email and statement confirm that the certificates were not issued by Medical Practitioner B. 12. The practice manager's evidence should be accepted because: a. the practice manager's emails and statements were admitted into evidence without objection; b. the practice manager was not required for cross-examination; c. the questionable discrepancies on the certificates indicate that they are not genuine; d. the certificates bear 12 separate dates between 13 July 2016 and 21 June 2017 but seven of the certificates were purportedly signed on 11 July 2017 and five of the certificates were purportedly signed on 21 August 2017; e. it is implausible that a medical practitioner would sign multiple medical certificates on two occasions so long after alleged sickness. 13. The evidence for complaint 1.2 includes: a. the Code of Professional Conduct for Nurses: a. Conduct statement 3.1 which requires nurses to be familiar with relevant laws (defined to include criminal laws) and not engage in conduct prohibited by such laws; b. Conduct statement 3.4 which requires nurses to be stewards of the resources of their employing organisations; b. the NSW Health Leave Matters Policy Directive: a. Section 3.2.2 that for periods of sick leave of up to one week, evidence of sickness and incapacity is required and must be signed by an appropriate registered health service provider, that medical certificates should indicate the date on which the employee was examined, provide an assessment of the level of the employee's incapacity and the date the employee is likely to be able to return to work; 14. The Commission submits that the conduct in particular 1 amounts to unsatisfactory professional conduct because: a. It is improper to submit falsified medical certificates to her LHD employer because it is a breach of the standards of conduct that would be expected of an enrolled nurse; b. It is unethical to submit falsified medical certificates to her LHD employer because it is dishonest, contrary to the relevant codes of professional conduct, influenced by self interest and has the potential to bring NSW Health into disrepute and jeopardise the nursing profession's good reputation and standing. 15. There are several examples where health practitioners have been found guilty of unsatisfactory professional conduct for engaging in improper and unethical conduct by submitting documents which are not genuine (such as non-contemporaneous GP letters [HCCC v Von Marburg [2019] NSWCATOD 85 at [45]], an inaccurate CV [HCCC v Picones [2018] NSWCATOD 56 at [65]], a medical certificate based on inaccurate information [HCCC v Ashford [2015] NSWCATOD 15 at [26]], altered consultation records [HCCC v Huda [2019] NSWCATOD 109 at [227]-[228]], fabricated boarding passes and backdated receipts [HCCC v Sun [2016] NSWCATOD 80 at [26]]). Complaint 2 16. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law because she has engaged in improper or unethical conduct relating to the practice or purported practice of nursing by providing false and/or misleading information to the LHD then the Council on multiple occasions. 17. The relevant principles include: a. it goes to the core of professional conduct that a practitioner can be trusted to be truthful by their supervisors, professional body and regulators [HCCC v Picones [2018] NSWCATOD 56 at [65]]; b. it is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities [HCCC v Chowdhury [2015] NSWCATOD 65 at [81], HCCC v Shrimpton [2019] NSWCATOD 25 at [72]; HCCC v Kesserwani [2017] NSWCATOD 149 at [98]; HCCC v Mitchell [2015] NSWCATOD 151 at [67]]. c. practitioners should uphold the highest standards of honesty and integrity in their dealings with regulatory authorities [HCCC v Shrimpton [2019] NSWCATOD 25 at [72]; HCCC v Chowdhury [2015] NSWCATOD 65 at [81]; HCCC v Kesserwani [2017] NSWCATOD 149 at [97]; HCCC v Luque [2019] NSWCATOD 129 at [71]]; d. the protection of the health and safety of the public must be the paramount consideration [s 3A National Law]; e. our system of health regulation cannot achieve the paramount objective of protecting the health and safety of the public without the co-operative and candid involvement of health practitioners [HCCC v Luque [2019] NSWCATOD 129 at [71]]; f. engaging with the professional regulator and all forms of disciplinary inquiry with diligence and honesty are fundamental requirements of any professional [HCCC v Picones [2018] NSWCATOD 56 at [103]]; g. lying to the LHD may indicate that the Tribunal cannot be confident that the practitioner will adhere to conditions [HCCC v Picones [2018] NSWCATOD 56 at [101]]; h. lying to the Council may demonstrate a lack of insight into the need to show proper respect to the requirements of the Council [HCCC v Mitchell [2015] NSWCATOD 151 at [67]] and a lack of integrity required to be trusted to comply with relevant laws and conditions [HCCC v Azizi [2016] NSWCATOD 94 at [250]]; i. the ability to acknowledge errors in judgment is particularly crucial for health professionals because covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions because such behaviour may pose a risk to the safety of patients [HCCC v Picones [2018] NSWCATOD 56 at [104]]; j. a health professional who cannot be trusted to tell the truth presents a risk to the public because, without candid admissions by a health professional who may be in the wrong, the ability of other professionals to treat patients appropriately, including by remedying any original error, is grossly impaired or altogether prevented [HCCC v Picones [2018] NSWCATOD 56 at [104]-[105]]. 18. The evidence for particular 2.1 flows from the Transcript of the interview and includes: a. On 30 October 2017, the practitioner received a letter notifying her of serious allegations which may constitute a breach of the NSW Code of Conduct and LHD core values. The letter inviting her to attend a meeting stated that the conduct, if substantiated, is an act of fraud and that her name would be placed on the service check register. b. On 6 November 2017, the practitioner attended the LHD meeting. The practitioner was reminded that allegedly providing 12 fraudulent sick leave certificates could result in a breach of the NSW Code of Conduct and LHD core values if substantiated and was given the opportunity to respond. The practitioner denied that the medical certificates were forged and provided the following justifications [emphasis added]: i. I received the letter from Sam, unfortunately I was on an evening shift, so I didn't get to read it till later that evening. And then I went home I was quite surprised too, because I had noticed they were all Coolamon and a lot of them weren't Coolamon and I have gone to other medical centres. [Practitioner B] is my GP but of course being a nurse in a rural country town you can't get in somewhere in town for two, three weeks. So that's why I visited some in Wagga and that,as well. But I was shocked because, anyway when me and my partner went to the computer to have a look ... he's a farmer, so all his business document's, his letterheads, everything had the Coolamon thing up the top and the bottom... Header and footer....I think I wrote about twenty-three forty that night we contacted an after-hours computer support ... program people and I spoke to a Deeper? Deepak ... he noticed that, he just talked me through a few things because I had apparently scanned it in with Adobe, sorry I'm not very computer literate ...Adobe Flash Player ... He advised me that when you scan it in, it comes up ... sorry it was midnight. Separate pieces — and unless you highlight the whole thing it goes through. I don't know what means, ... apparently, you've gotta highlight the whole thing otherwise in comes up in separate pieces, ... I also told him that all my partner's business documents, letterheads everything has got the medical thing up the top and the bottom. ... he over accessed my computer ... apparently that's when he confirmed that yeah, there's more things like the letterhead and everything that was on it. And he said it was the way that we scanned it in, so he showed me for future how to scan it in. You've gotta apparently highlight and drag the whole thing, not just plug it in and push scan. ii. … … he rang us back at about quarter to seven. To advise me that he'd fixed up the header and the footer. ... my partner now has to go through and replace his business header. ... and all the medical certificates now have nothing on them. ...So, he's informed me try not to scan with Adobe Flash Player ...And just to go in as a word document [why do you need to scan a medical certificate?] I'm in the process of moving and I just keep them all like for, my own record sort of thing. So, if I ever normally need them again I can just print them out. [do you have a copy of the originals then?] Well, they're all on the computer now with no letterhead or no footer. [So, you can produce the actual original] No...Not unless I go back into the doctors and get them to print out, like the copies. iii. I know there was couple I'd gone to Trail Street ...a lot of the girls had helped me with places to go. Like on short notice in Wagga ...[I'm still a little bit confused why you went to scan a copy of them?] That's only me for my personal....Like I've always, always kept copies.[So, you scanned from the original document?] Yep, yep. [And you haven't got the original documents anymore?] iv. No well, apparently as he explained when it scanned in it didn't scan in as a whole document or something and it comes up in... like sections ...He did show me while he was accessing the computer... it was like a few different things on the page ...this bit ... had a block around it. And this bit had a block around it, and so did this bit, so it actually scanned through as pieces, so instead of one whole thing ....[Where is the original piece of paper that had the scan?] Oh, I would've disregarded them. Cause when I out things in the computer that's normally it....Well, I normally throw them all, shred them, yeah. v. The practitioner was asked to track down the genuine medical certificates from her doctor/s to support her account and was given the opportunity to make any other comment; vi. The practitioner acknowledged that the transcript was accurate. 19. The evidence for particular 2.2 includes: a. On 24 November 2017, the practitioner received a letter advising that the matter would be managed as misconduct and reminding her to provide evidence to support her account; b. The practitioner knew that the matter was serious; c. On 30 November 2017, the practitioner attended a LHD interview and did not provide any evidence to support her account. The practitioner denied that the medical certificates were forged: i. I haven't been able to track down my medical certificates, I just haven't been able to remember who I've seen....But I have contacted the computer people again and they've just advised me that because it's a virus, or, or was a virus ... That was on the computer, ... unfortunately, it just what happened, like you can't prevent things from happening. ... the only thing that I probably should have done, which I didn't, was actually check when I printed it. [they can't give you a stat dec or evidence to support this?] No, well they said ... That unless it's like a, um, like a company that comes to you. because it was just an after-hours tech support that I contacted. ii. They did advise me like, if you ask an IT specialist that they can also, ensure that stuff like that can happen with a virus.... they're all blank on my computer now. d. The practitioner was given the opportunity to say anything else, but declined. 20. The evidence for particular 2.3 includes: a. On 30 April 2018, the practitioner received a letter inviting her to show cause why her employment should not be terminated; b. On 18 May 2018, the practitioner responded by letter to the LHD. The practitioner denied that the medical certificates were forged: i. I realize that maybe yes keeping certain documentation in certain ways isn't necessary, (like scanning and keeping on a computer, just in case). ... I am totally ashamed for the accusation that has been placed on me as I have a pretty perfect record in life, I was brought up to never lie, cheat or steal ...I have contacted the computer company again, they did mention that if I had a case no, they may have been able to gain supporting evidence in regards to my phone call, however I have obviously gotten rid of the same when dealing with the computer and document that night. I have given them my serial no; they said they might have a small chance of chasing it, however not positive. ii. I have gained from coolamon medical center all medical certificates dating back to June 2016, ...I haven't been able to get any others at this stage still due to too simply not being able to remember which places at his time, unfortunately I can't remember much early last year with being pregnant and stress etc. 21. The evidence for particular 2.4 includes: a. On about 20 June 2018, the Council notified the practitioner of the complaint and requested information; b. On 26 June 2018, the practitioner completed the information form; c. On 2 July 2018, the practitioner sent a letter to the Council responding to the complaint. The practitioner denied that the medical certificates were forged: i. ...It was an innocent mistake caused by a virus on my computer. ... It was late at night and I also had to work an early shift the following day so I collided the information as quick as possible to give to work in the morning. I completed this and went to bed. It came to my attention a week or two later when I went to print something off my computer that everything had my medical practioners [sic] leader head attached to the documents. I then went and rang the computer company to see what was happening, they helped me fix the problem and informed me that my computer had obtained a virus. 22. The evidence for particular 2.5 includes: a. On 14 February 2019, the practitioner gave evidence at the section 150 hearing. The practitioner was introduced to the section 150 delegates, including a registered nurse and an enrolled nurse. The practitioner was told that the purpose of the section 150 hearing was to determine whether action was required on her registration. The practitioner denied that the medical certificates were forged: i. I've always kept copies on my computer of each - same as receipts, I keep them on my computer, and I have gone to print them out. It was late at night and I did do a double shift, and being the - nine months pregnant probably didn't help as well. And it was late at night and I had to be back at work at seven. So I didn't actually read what I've printed, which I take full responsibility for that. But when I printed it off, it must've been the next day or the day after, I've been - well, I've noticed that there was something going on with the computer and upon ringing up the computer network, support - like the help people, I was informed that I had a virus on my computer... So everything I printed, no matter what it was, whether it was an email - yeah, it kept coming up with the Coolamon Medical Centre, like header at the top… everything was printed with the medical centre header. ...Well, I rang up the computer support people to try and get-like because apparently they are able to like state that you rang them and that they helped you out. However, I didn't receive their email. They then advised me that it can go to your junk email. ... then by the time I rang them again to get it all sorted, I wasn't able to get any further information. I have seen a doctor in Wagga at the same time and that's where- I don't know what's happened but obviously as they explained to me on the phone, with a virus it just - yeah, weird things happen to your computer.... And I mean the thing that upset me the most was we worked it out when my partner was printing off some of his invoices and it had like Coolamon Medical Centre and that on it. And in a way I wish I'd kept it but we straight away shredded it because we thought, you know that's like - people might think that's forgery or something.... And I wish I would've kept one so I could prove that part, but we shred - shredded it to that fact and that's when I notified work of the situation. 23. The Commission submits that the Tribunal would not accept the practitioner's explanation of a computer virus because: a. the 12 medical certificates were all purportedly written by Medical Practitioner B but the evidence from the practice manager establishes that he did not write them; b. the 12 medical certificates were all purportedly issued at the same medical practice but the practitioner apparently went to different medical centres [Transcript of meeting mentions other medical centres in Wagga including Trail Street Medical Centre; the practitioner agreed in cross-examination on 1 July 2021 that she went to other medical centres]; c. the medical certificates contain questionable discrepancies indicating that they are not genuine; d. the section 150 delegates found that the practitioner's explanation of a computer virus was implausible; e. it appears that the practitioner initially had medical certificate/s on her computer as PDF document/s [Transcript of meeting mentions scanning with "Adobe", a PDF tool. The practitioner mentioned in cross-examination on 1 July 2021 that she scanned using "Adobe" and "that scans onto the computer as PDF"] and, some time later, had medical certificates on her computer as word documents [Transcript of meeting mentions that the electronic certificates now have nothing on them, being told just to go in "as a word document" and that the electronic certificates are now on the computer with no letterhead or no footer. Transcript of interview mentions "they're all blank on my computer now." The practitioner mentioned in cross-examination on 1 July 2021 that the electronic certificates are now blank word documents]; f. there is an available inference that the practitioner scanned genuine medical certificate/s then falsified the contents. 24. The evidence for complaint 2.6 includes: a. The relevant provisions of the NSW Health Code of Conduct i. 4.2.3 Ensure that their actions and decisions are not influenced by self-interest or considerations of personal gain or other improper motives ii. 4.3.8 Comply with all lawful and reasonable directions given by their managers or other members of staff authorised to give them iii. 4.3.9 Comply with all applicable NSW Health policies and procedures, and those of the NSW Health agency where they work iv. 4.3.11 Observe all laws, professional codes of conduct and ethics relating to their profession b. The relevant provisions of the Code of Professional Conduct for Nurses: i. Conduct statement 9.1 which provides that the conduct of a nurse is to maintain and build public trust and confidence in the profession at all times; ii. Conduct statement 9.2 which provides that the unlawful and unethical actions of nurses in their personal lives risk jeopardising the profession's good reputation and standing and so jeopardise the inherent trust between the profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care; c. Element 1 Code of Ethics for Nurses adopted by the NMBA which requires a nurse to demonstrate professional values such as respectfulness, trustworthiness and integrity; d. NMBA Enrolled Nurse Standards for Practice: i. 1.1 Demonstrates knowledge and understanding of commonwealth, state and /or territory legislation and common law pertinent to nursing practice ii. 10.6 Promotes a positive professional image. 25. The Commission submits that the conduct amounts to unsatisfactory professional conduct because: a. It is improper to provide false or misleading information to the LHD and the section 150 delegates because it is morally wrong and it is a breach of the standards of conduct that would be expected of an enrolled nurse; b. It is unethical to provide false or misleading information to the LHD and the section 150 delegates because it is dishonest, contrary to the relevant codes of professional conduct, influenced by self interest and has the potential to bring NSW Health into disrepute and jeopardise the nursing profession's good reputation and standing. 26. There are several examples where nurses who have lied to their LHD [HCCC v Picones [2018] NSWCATOD 56 at [65]; HCCC v Ashford [2015] NSWCATOD 15 at [26]] and health practitioners who have lied to the section 150 delegates [HCCC v Azizi [2016] NSWCATOD 94 at [71]; HCCC v Chowdhury [2015] NSWCATOD 65 at [76]; HCCC v DAC [2017] NSWCATOD 98 at [120]; HCCC v Cakan [2018] NSWCATOD 5 at [136]] have been found guilty of unsatisfactory professional conduct for engaging in improper and unethical conduct. Complaint 3 27. Complaint Three is that the practitioner is guilty of professional misconduct under section 139E because she engaged in more than one instance of unsatisfactory professional conduct that amounts to conduct of a sufficiently serious nature to justify suspension or cancellation. 28. The relevant principles include: a. professional misconduct is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation [Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19]]; b. whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment [Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]]; c. in assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards [HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638]. 29. The evidence for complaint 3 is the evidence for complaints 1 and 2. The Commission submits that the conduct amounts to professional misconduct because: a. providing falsified medical certificates to her LHD employer is serious: ii. the practitioner provided 12 separate medical certificates covering a range of dates so this is not an inadvertent error; iii. the practitioner provided the falsified certificates to her LHD employer with the intention that they would be accepted as genuine to avoid scrutiny about her excessive sick leave and retain a financial benefit (her paid sick leave); iv. section 253 of the Crimes Act 1900 makes it an offence to make a false document and use it with the intention to induce another person to accept it as genuine and therefore obtain any financial advantage [maximum penalty 10 years]; v. there is an available inference that the practitioner falsified the medical certificates on her home computer, which would have involved some planning, sophistication and time to scan, edit and print the 12 certificates; vi. the LHD is a public sector employer with limited resources to pay nursing staff and monitor excessive sick leave so will necessarily rely on the honesty and integrity of nursing staff to submit genuine medical certificates; vii. the LHD employer considered providing the falsified medical certificates was so serious that it terminated the practitioner's employment and placed her on the Service Check Register. b. providing false or misleading information to the LHD and the Council is serious: i. it is well established that providing false and misleading information alone may constitute such a serious and deliberate departure from accepted professional standards as to constitute professional misconduct [Wanigaratne v Health Care Complaints Commission [2000] NSWCA 204 [62]; HCCC v Abad [2009] NSWNMT 23 at [36]; HCCC v Oladiran [2020] NSWCATOD 56 at [49]]; ii. before the practitioner lied to the LHD (particular 2.1), she was well aware that the LHD was concerned about her unacceptable level of sick leave and her attention was clearly drawn to the Leave Matters policy; iii. before the practitioner lied to the section 150 delegates (particular 2.5), the practitioner was clearly warned by the Chair "It's important that you provide complete and accurate information to us"; iv. the practitioner had ample opportunity, in her contact with the LHD and then the Council, to be truthful and accept responsibility for her conduct; v. the section 150 delegates found that the practitioner poses a risk to public health and safety for reasons including that she continues to deny any wrong doing regarding the presentation of false medical certificates and has not taken any responsibility for her actions; vi. the section 150C delegates on 30 September 2019 considered the practitioner's conduct was so serious that they imposed a condition that she not work as an enrolled nurse. 30. The Commission seeks findings that the subject matter of the complaint is proven and that the practitioner is guilty of unsatisfactory professional conduct and professional misconduct. Stage 2 Protective orders 1. For the purpose of Stage 2, there are two steps for the Tribunal to consider: a. First, once the subject matter of the complaint is proven [s 149 National Law], what orders are appropriate to protect the public [ss 149A and 194C National Law]; b. Second, what costs orders are appropriate to compensate the successful party. 2. The Commission submits that it is appropriate for the Tribunal to make: a. an order under section 149C(1)(b) of the National Law cancelling the practitioner's registration; b. an order under section 149C(7) of the National Law that an application for review of the cancellation order may not be made until after 1-2 years from the date of the Tribunal's decision; and c. an order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed. Cancellation 3. The relevant principles include: a. the protection of public safety and health is paramount [s 3A National Law]; b. the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community [Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]]; c. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered [s 3(2)(a) National Law]; d. the Tribunal has a discretion to make a cancellation order [s 149C(1) National Law]; e. it is not necessary to make a finding that the practitioner is probably permanently unfit to practise before registration can be cancelled [Chen v HCCC [2017] NSWCA per Basten JA at [14] and [20] and per Payne JA at [67]-[69]]; f. whether the professional misconduct is sufficiently serious to warrant cancellation or suspension is a matter of degree and judgment [Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]]; g. this requires an assessment of the gravity of the professional misconduct found proved, and consideration of remorse and insight, if any, demonstrated by the practitioner [HCCC v King [2013] NSWMT 9]; h. the gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards [HCCC v Litchfield [1997] 41 NSWLR at 638]; i. cancellation may, in serious cases, be required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the profession [HCCC v Litchfield [1997] 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [64] (Santow JA) and [101] (Basten JA)]; j. the jurisdiction is primarily protective [HCCC v Litchfield (1997) 41 NSWLR 630 at 637] however it is unavoidable that protective orders may be incidentally punitive [Lee v HCCC [2012] NSWCA 80 at [20] and [31]]; k. deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession [HCCC v Litchfield (1997) 41 NSWLR 630 at 637]; I. protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession [HCCC v Do [2014] NSWCA 307 at [35]]; m. asserted reformation of a practitioner's character is exceptional and requires clear proof [Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 6 SR (NSW) 448, 461]. 4. The Commission submits that cancellation is appropriate because: a. the proven conduct is serious; and b. the practitioner lacks insight. 5. The practitioner must have been well aware of her ethical obligations: a. she had previously worked as an assistant in nursing since 2010; b. she was first registered as an enrolled nurse in 2012 c. she had previously worked as an endorsed enrolled nurse at Bundaberg Base Hospital since 2012; d. she had worked as an endorsed enrolled nurse at Wagga Wagga Base Hospital since 2013; e. she must have known that it was wrong to provide falsified medical certificates to her employer and provide false and misleading information to the regulator. 6. The practitioner lacks insight: a. During the section 150 hearing on 14 February 2019, the practitioner blamed her boss: "get really disappointed more that a new person can start ... he criticised a lot of people and then this happened. Like I know that if the previous boss was there, you know this wouldn't have happened"; b. During the section 150 hearing, the practitioner's responses were "vague and evasive"; c. After assessing the practitioner on 5 June 2019, Dr Walker noted the practitioner's poor judgment, dishonesty and lack of accountability; d. During the IRP on 15 August 2019, the practitioner's responses were brief and guarded, she was frequently evasive and her explanations were not plausible. She denied any accountability for the false medical certificates and maintained her stance that the errors were due to a computer virus despite not being able to produce any evidence to this effect nor any evidence of medical appointments or original certificates. e. In her letter to the Council, the practitioner blamed the Council: "I am very upset that this matter has been referred through to the council and that I am trying to deal with all of this while currently on maternity leave which I consider to be quite unfair." f. In her reply to the Tribunal, the practitioner blamed "a virus on the computer" and "pregnancy brain"; g. In her oral evidence before the Tribunal, the practitioner continued to blame a virus. 7. The practitioner has not been fully candid with the regulatory authorities: a. At the IRP on 10 April 2018, the practitioner did not mention that her employer had initiated an investigation into the presentation of the false medical certificates (saying later "I just didn't think it was relevant."); b. At the IRP on 15 August 2019, the practitioner continued to claim that her computer was affected by a computer virus; c. When the council contacted the practitioner by phone on 15 January 2019 to confirm her employment status, the practitioner said that she remained on maternity leave but her employment had already been terminated on 16 July 2018; d. On 11 May 2020, the Commission gave the practitioner the opportunity to make submissions, provided her with full details of the allegation and attached all relevant documents, including the certificates and the code of conduct. On 25 June 2020, the practitioner said she was "unsure as to what I need to reply to exactly"; e. Practitioners have a duty to be candid and honest with the Commission because this is an integral part of the proper functioning of the regulatory system — electing not to provide a substantive response deprives the Commission of information that is relevant to its role and limits the information available to the disciplinary body; f. The deceitful nature of the conduct means general deterrence is a relevant consideration, in ensuring a message is sent to other registered health practitioners, that knowingly providing false medical documentation is a significant departure from the ethical standards expected and will not be condoned. 8. The Commission submits that the Tribunal should give limited, if any, weight to the practitioner's character references because: a. none mention the conduct; b. none are addressed to the Tribunal; c. none refer to the complaint. Non-review period 9. The Tribunal has the power to select the length of the appropriate non-review period [s 149C(7) National Law]. The Court of Appeal has cautioned against relying on the "range" of orders made in previous disciplinary proceedings and emphasised that the predominant consideration is the protection of the public by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the practitioner is shaped in a way that is consistent with protecting the public [Lee v HCCC [2012] NSWCA 80 [34]]. 10. The Commission submits that a 1-2 year non-review period is appropriate to deter others from similar conduct and because the practitioner will need a lengthy period to gain genuine insight and engage in meaningful rehabilitation: a. The practitioner has continued to display limited insight in her responses to her LHD and the Tribunal so she will need an extended period to reflect on her conduct and take responsibility for her actions: i. "I feel I work above and beyond what is required in my role while following policies and procedures....this was never intentional or on purpose it was unfortunately a huge error that occurred.... I have a pretty perfect record in life:" ii. "To say that i have more than one instances of unsatisfactory professional conduct? I find that dismeaning [sic] and irrelevant. ... the world is at my feet and I can do anything." b. An enrolled nurse is required to engage in continuing professional development and identify learning needs through critical reflection but there is no evidence that the practitioner has identified her errors in judgment or undertaken any relevant remedial training; c. An enrolled nurse is required to develop and promote positive professional working relationships with members of the multi‑disciplinary team but, given that the practitioner provided falsified medical certificates to the Acting NUM, purportedly signed by a medical practitioner, and provided false or misleading information to the section 150 delegates, including two nurses, the practitioner cannot be trusted to respect her nursing and medical colleagues; d. An enrolled nurse is required to immediately report any incidents of unethical behaviour but the practitioner has continued to deny her unethical conduct, despite being given many opportunities to take responsibility, so a non-review period is warranted. Costs 11. The Tribunal has the power to order the practitioner to pay costs under clause 13(1) of Schedule 5D of the National Law. 12. Given the circumstances of the practitioner's late adjournment application, the Tribunal, on its own motion, has already ordered the practitioner to pay the Commission's costs of 16 August 2021 on an indemnity basis, irrespective of the ultimate outcome. 13. If the subject matter of the complaint is ultimately proven, the Commission seeks an order that the practitioner pay the Commission's costs (apart from the Commission's costs of 16 August 2021) on an ordinary basis as agreed or assessed because: a. the Court of Appeal has affirmed that costs are awarded to compensate the successful party and accepted that as a general rule, costs of proceedings before the Tribunal should follow the event [HCCC v Philipiah [2013] NSWCA 342 at [42]-[46]]; b. the presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party [Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]; applied by the Tribunal in several decisions including HCCC v CSM [2016] NSWCATOD 125 at [98] and HCCC v Brush (No. 2) [2015] NSWCATOD 154 at [9]]; c. there was no disentitling conduct by the Commission to warrant a departure from the general rule; d. the Commission took a number of steps during the matter to minimise costs and progress the matter, including serving the Commission's material electronically and by post, re-listing the matter to confirm the practitioner was ready to proceed and not briefing counsel." (Original footnotes incorporated.) Respondent's Submissions 1. The Respondent was asked whether she was able to give oral submissions at that time but indicated that she would prefer to provide written submissions and an opportunity was provided to the Respondent to provide written submissions. The Respondent provided those written submissions which are set out below. "Introduction I thank you for this opportunity to submit my comments on this matter, outlining that I submitted 12 falsified medical certificates to my previous employer for claimed sick leave, and that I have provided misleading and false information to the NSW Health District, and Nursing and Midwifery Council. Complaint 1 I am aware under the Professional Code of Conduct that it has been perceived by the complainant that I am guilty of unsatisfactory misconduct, in providing 12 falsified medical certificates to my previous employer Murrumbidgee Local Health District. I take note of Section 7 a–h in which the tribunal has outlined the term of unethical conduct and would like to state that I take my role as a nurse very seriously and to my highest profession, I value my rights and responsibilities to the highest regard along with the Principles of ethics with the main 4 being autonomy, beneficence, justice and non – maleficence and the Professional Conduct in which I perform professionally and to my up most highest standard. Section 8-9: The evidence on which was presented in the way of 12 medical certificates on the 29th August 2017, I duly noted after they were presented and brought to my attention appeared to contain questionable discrepancies also which was outlined in section 10 a-l upon confirming on several occasions that I didn't deliberately create these medical certificates myself and had I noticed the discrepancies earlier I would not have handed them in as I would have known that they were incorrect and been aware of the repercussions and what this would of looked like for myself both personally and professionally. I have advised on numerous amounts of occasions that I was informed that our computer at home had attained a software virus in due to which performed several things to our computer, documentation at this time. I have been able to obtain that "Viruses and Malware can steal, delete, change swaths of data or bring business operations to a crawl, destroying company functionality. A computer often gets a virus from an email based attack or through phishing that tempts an employee to click on a corrupted link. This link then allows the virus or malware to enter the computer system which can then relate to damaged or stolen files" Section 11-12 I would like to state that during this time I have never stated that the 12 medical certificates came from the one Medical Practice. Upon noticing the discrepancies in the Certificated I did make an appointment at Coolamon Medical Centre to speak to the Dr in which I informed of the current situation and what had happened, I also advised at the time that I did not make them up and continued to discuss the problem informing also of the virus at this time and what had happened. During our conversation it was stated by myself and the Dr that I knew if I had any or issues or concerns that I only had to go and see her into which I agreed. I apologized for what this appeared to look like and stated that I had the up most respect for her as a Dr and person and would never deliberately do anything like this. I am also aware and fully knowledgeable in our profession what a medical certificate means, when it is required and the fact that they cannot be backdated or multiple certificates cannot be issued at once. Section 13 - Practicing as nurse for the past 5-6 years at this point of time I was fully aware of the Code of Professional Conduct for Nurses and understood the relevant laws and Policies in which we follow and practice along with the duties and professionalism we uphold in this position. A – I understand the importance of medical certificates, why they are required and when you need to present it to your employer, to allow them the knowledge of, are you currently fit for work, can you fulfill your duties to the right standard and so they are aware of when you can return to work. Section 14 – I am fully aware both personally and professionally that it is improper and unethical to produce falsified documentation to anybody including your employee and again would like to pass on that if I was aware at the current time of the discrepancies I would not have passed them on to my employer knowing fully what this could do for me both personally and professionally. Complaint 2 I understand that because I provided the 12 falsified medical certificates to my previous employer Murrumbidgee Local Health District that this had made me guilty of unsatisfactory professional conduct to the LHD and the Council themselves, however during this ongoing period of time I have continued to advise the situation of the virus and that if I was aware at that time I would never have handed in the medical certificates. 17 a-c As an honest, reliable, punctual and professional employee who holds their profession and employment to the highest of value I have always held a truthful relationship to my supervisors and colleagues, allowing me to obtain numerous amounts of professional relationships in many situations and occurrences. d-f I have always held the health and safety of the public and my colleagues in a highly successful way enabling me to be very highly respected and regarded by my supervisors, colleagues and patients. g-h I understand that by lying to the LHD or Council can indicate that the professional may not be able to adhere to the conditions required of them and create a lack of integrity and trust. I have always prided myself on my honesty and respect for others and was raised to always tell the truth no matter how bad it may seem at the time, honesty always prevails. i-j I have always been able to provide a strong professional value to my patients, I never have put my patients at risk and have achieved a lot of positive results and positive comments on my care of patients by staff, supervisors and the public in which I look after. I am very well respected from my patients and fellow colleagues for being an honest and reliable nurse who has in turn also made me quite popular to work as my colleagues and patients know that they are working with someone reliable and who they trust professionally and personally. Justifications (Emphasis Added) 1. Upon learning of the discrepancies in the medical certificate yes I was quite shocked actually very shocked, and upon learning they all obtained a Coolamon Medical Centre leader head I knew that something was incorrect as this was not the case in which I explained. Not reading the leader straight away was impossible as I was working a double shift and my duties required of me that day came first. Learning then that my partner's leader heads and business documents also obtained the leader head again was very shocking and scary as at that point in time I had no idea what had happened. When I rang the apple support company and spoke to Deepak at that point of time he advised me through computer support (where they enter your computer) what appeared the problem to be and corrected this for me. He advised me that the program we used for scanning was one of the places the virus had hit. 2. Upon being asked why I need to scan documents into my computer, one this is a personal reason that I have always been advised to do, in ways of receipts, invoices etc. so this insures that they do not fade and you always have the evidence. I still am informed of this when purchasing and from our accountant to this current day, I feel I should not be judged for performing this action. 3. As mentioned above it is a personal decision that I know a lot of people do in the current years to insure that all documents of any kind can be kept forever, again a person should not be judged on performing this action. 4. Yes it was scanned through as a whole document; I'm not quite sure how it is possible to scan through a whole document as a part document. 5. When I scan things in the computer we then place them through the shredder as I feel it is unwarranted to keep duplicates unless warranted, however I now perform this on all occasions. 6. I tried to obtain medical certificates from where I could remember at this time, as we going back a year and given the situation and how I was, I did this to the best of my ability at the time. 7. Yes the transcript was correct. 19 I understood upon being informed of the misconduct that this was a serious matter, I was scared and still shocked. I was also upset as to why I wasn't being believed when I have never had the reason to lie or mislead information for any reasoning. It hurt that people thought I would do that and still is affecting me to this day, as I had worked and trusted in these people for 5 years and all the trust and help I had contributed made me feel unworthy. I advised the LHD, the Council and The Tribunal that I had contacted Apple Support, they advised me of the virus and fixed the virus however it meant that all documentation was lost and left blank. I was advised upon contacting them again that I should have received a notification email in regards to our conversations however I informed them that I didn't receive one and after completing that conversation I was asked to check if I had one for today and upon looking through all folders, noted there was nothing again. We were not sure why it hadn't come through. 20 Upon being invited to show cause as to why I should not be terminated, I did take this action on as you will see and produced a letter with references at this time, and by fellow colleagues at the Murrumbidgee Health in which I was very grateful. 21 I completed the relevant documentation the council asked me to complete, I continue to deny forging the medical certificates myself, as well as being unethical it is not in my nature and as informed on several occasions if I was aware that night I would never have submitted the certificates, knowing how it would of looked and how I would have been perceived and what this would do for me both personally and professionally. 22 The hearing on the 14th February 2019 again upon presenting my story that I had not deliberately forged medical certificates and the virus being on my computer and again having to explain why I scan documents into my computer, I went through the story again. Yes I was very emotional during this time again, as although I continued to tell my story I felt as though I was getting nowhere, and was getting very concerned for myself. 23 I advised that I did not purportedly write the medical certificates and that they were all not from the Coolamon Medical Centre anyway, I again advised that we had business (personal) documents with the Coolamon Medical Centre leader head also. I was lost as to think why and how I would put this on Medical Certificates. I was also shocked as to think how I could sign all the medical certificates also. The medical certificates were PDF and our business documents were Microsoft word, I make no excuse for how the documents are on our computer and when things are scanned they automatically go through PDF, created tax invoices etc. we make through word document. 24 I take the Code of Conduct very serious and observe and adhere to provisions relating to this. I note that I have always built and gained professional and public trust during my employment and was seen as a very valuable nurse and employee. 25, 26 I am very aware that it is unethical and improper to provide misleading information, however again all I can say is that I did not personally falsify or create the medical certificates I and that if I was aware that there was a discrepancies I would not have submitted the documentation. I am aware of the repercussion in to what this can do for a person both personally and professionally and would never put myself or others in a situation like this on purpose." Applicant's Submissions in Response 1. The Applicant advised the Tribunal it would not be responding to the Respondent's submissions. Decision and Reasons 1. The Tribunal, having read the evidence contained in all of the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and the evidence given by the Respondent, having reviewed the various additional documents which were tendered, including the Transcripts of the s 150 hearings, and having considered the submissions made by the Applicant and the Respondent, is satisfied that the complaint made by the Applicant against the Respondent as set out in the Complaint is proven and that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. 2. The basis on which the Tribunal has come to that conclusion is that the Tribunal had considerable difficulty accepting the explanation given by the Respondent in regard to the cause of the apparent flaws in the medical certificates provided. The explanation that the problem arose because of a virus on the Respondent's computer, including the same virus on the computer of her partner, was in the view of the Tribunal highly implausible. The errors did not only relate to a heading created in respect of the medical practice that the Respondent regularly visited but the dates of the alleged illnesses and the dates of the signature of the medical practitioner were so consistently false that the Tribunal could only come to one conclusion, namely that it had to reject the explanation provided by the Respondent. 3. In addition, the Tribunal was concerned that, despite the fact that the Respondent confirmed that she had been visiting other medical practitioners than her regular medical practitioners and that those medical certificates would have been provided by alternative medical practices, the Respondent was unable to remember any single medical practice that she visited in the region in which she was living. The Tribunal in fact asked the Respondent whether she had visited the towns where she had sought medical treatment and tried to identify those medical practices in order to confirm with them that they had issued medical certificates to her. The fact that she was unable in a matter of 12 or so medical certificates to find one single alternative medical practice to which she alleged that she had gone for obtaining such certificates, made the Tribunal doubt the veracity of the defence provided by the Respondent. 4. It is correct that the Respondent did produce some good references but the Tribunal could not take those into account in determining whether the allegations against the Respondent were proven since those references were made by people who had no knowledge of the complaints against the Respondent, had no indication that they were required for the purposes of dealing with an allegation of fraud and accordingly were not relevant to the decision made by the Tribunal. 5. In coming to its conclusion, the Tribunal is fully aware and agrees with the submissions of the Applicant as to the purpose and role of the Tribunal in complaints of this nature against a practitioner and is aware that its obligation is to ensure the safety of the public while at the same time also protecting the good name of the profession. 6. In addition, the Tribunal has regard to the fact that its role is protective and not punitive, but should also operate as a deterrent for other members of the profession. 7. In this respect, the Tribunal considered the various cases referred to by the Applicant which deal with these issues and was comfortably satisfied that an order for cancellation is appropriate. In considering the question of registration, it is important to note that in the view of the Tribunal each of the alleged breaches by the Respondent in the Complaint, and the particulars thereof, would be sufficient for the Respondent's registration to be cancelled. Taken together, the Tribunal believes that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. The Tribunal is of the view that the breaches are extremely significant and that the conduct of the practitioner constitutes a flagrant disregard for the obligations of the Respondent and a serious risk to the public and the good name of the nursing profession. Orders 1. The Tribunal makes the following orders. 1. The registration of the Respondent is cancelled with effect from the date of this decision. 2. The Respondent is not permitted to seek a review of the cancellation for a period of two years from the date of this decision. 3. The Respondent is ordered to pay the costs of the Applicant as assessed or agreed. ********** 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: 01 December 2021