Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Lu [2023] NSWCATOD 51 Hearing dates: 12 April 2023 Date of orders: 01 May 2023 Decision date: 01 May 2023 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member D Armitage, Senior Member (Professional) E Moore, Senior Member (Professional) A Gray, General Member Decision: (1) The respondent is reprimanded. (2) The respondent to pay the applicant's costs of the proceedings in the amount of $18,000.00. Catchwords: HEALTH – professional registration and discipline – nurse – where nurse is guilty of unsatisfactory professional conduct and professional misconduct – what protective action should be taken Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Evidence Act 1995 (NSW), s 140 Health Practitioner Regulation National Law (NSW), ss 3A, 39, 139B, 139E, 149, 149A, 149C, 150, 150A, 150D, Sch 5D cl 13 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 Healthcare Complaints Commission v Hollenbach [2019] NSWCATOD 118 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Picones [2018] NSWCATOD 56 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Health Care Complaints Commission v Wong [2022] NSWCATOD 59 Lee v Health Care Complaints Commission [2012] NSWCA 80 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Nursing and Midwifery Board of Australia, Code of conduct for nurses (March 2018) Nursing and Midwifery Board of Australia, Registered nurse standards for practice (June 2016) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Xiaoping Lu (Respondent) Representation: Counsel: E Lambert (Applicant) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Mills Oakley (Respondent) File Number(s): 2022/00304456 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of Patient A is prohibited. REASONS FOR DECISION Overview 1. In these proceedings the applicant, the Health Care Complaints Commission (which is also referred to as "the Commission" or "the HCCC"), is seeking findings against the respondent, Xiaoping Lu, a nurse, that she is guilty of unsatisfactory professional conduct and professional misconduct within the Health Practitioner Regulation National Law (NSW) (National Law), and the making of consequential protective orders, which arise out of the treatment of a family member, who is referred to as Patient A, at their home on 1 and 2 July 2020 and its aftermath (the incident). 2. We have decided to make: 1. the following findings: 1. that the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law; 2. that the respondent is guilty of professional misconduct within s 139E(a) of the National Law; 1. the following orders: 1. that the respondent is reprimanded; 2. that the respondent is to pay the applicant's costs of the proceedings as agreed or assessed. The factual background The respondent's qualifications and employment history 1. The respondent, who was born on 18 November 1977 in China, is a nurse currently registered under the National Law. 2. In July 1996, the respondent qualified as a nurse upon completion of a Diploma of Nursing at the Minbei Health School, Fujian Province, China. 3. From July 1996 to January 2005, the respondent worked as a registered nurse in China. 4. From January 2005 to August 2008, the respondent worked as an enrolled nurse in Singapore. 5. In April 2007, the respondent obtained a Bachelor of Science in Nursing degree from the University of South Australia. 6. On 18 September 2009, the respondent was first registered as a nurse in New South Wales. 7. From September 2009 to December 2019, the respondent worked as a registered nurse in the Haemodialysis Unit at the Royal Prince Alfred Hospital, Camperdown, initially on a full-time basis and from 2014 on a part-time basis. 8. From July 2018 to June 2019, the respondent worked as a cosmetic nurse at a clinic in Drummoyne on a part-time basis. 9. Since June 2019, the respondent has worked as a cosmetic nurse at the Skin Laser Cosmetic Clinic in West Hoxton on a part-time basis. The incident and the complaint against the respondent 1. At around 10pm on 1 July 2020, the respondent at the family home injected Patient A with the following mixture of substances into his abdomen and waist using a syringe with multiple injections: 1. 12mL of Lipolytic solution (contains artichoke extract, L-carnitine, theophylline, organic silicon); 2. 15mL of L-carnitine (L-carnitine 20%); and 3. 16mL of caffeine (caffeine 20%). 1. About five minutes later, Patient A experienced a negative reaction. 2. At around 2:30am on 2 July 2020, the respondent administered an EpiPen injection into Patient A. 3. At 6:44am on 2 July 2020, the respondent called an ambulance and on its arrival Patient A was taken to Blacktown Hospital, where he remained for a 24-hour observation period and was then discharged. 4. On 3 July 2020, Dr Satish Mitter, an emergency clinical toxicologist at Blacktown Hospital, made a complaint about the respondent to the HCCC. The proceedings before the Council 1. On 27 July 2020, the Nursing and Midwifery Council of New South Wales (the NSW Council) suspended the respondent's registration with effect from 28 July 2020 pursuant to s 150(1)(a) of the National Law and referred the complaint to the HCCC for investigation under s 150D of the National Law (the 27 July 2020 NMC decision). 2. On 24 August 2020, the NSW Council varied the 27 July 2020 NMC decision pursuant to s 150A of the National Law by removing the suspension imposed on the respondent's registration and imposing conditions on the respondent's registration including requiring her to have direct supervision (the 24 August 2020 NMC decision). 3. On 26 October 2020, the NSW Council varied the 24 August 2020 NMC decision pursuant to s 150A of the National Law by varying the conditions imposed on the respondent's registration including requiring her to have remote supervision and written reports by the approved supervisor to the NSW Council at monthly intervals. 4. On 7 June 2021, the NSW Council varied the 24 August 2020 NMC decision pursuant to s 150A of the National Law by varying the conditions imposed on the respondent's registration including requiring her to have remote supervision and written reports by the approved supervisor to the NSW Council at quarterly intervals. The proceedings The procedural history 1. On 12 October 2022, the applicant commenced these proceedings against the respondent by filing an application for disciplinary findings and orders, in which the respondent is referred to as "the practitioner", and which relevantly provides: "3. ORDERS SOUGHT The Applicant seeks the following orders: 1. A direction that the name and address of the witnesses listed in the Schedule to the attached Complaint not be disclosed under clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) ("National Law") / an order prohibiting the disclosure of the name/s of the persons listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013. In the event the subject-matter of the complaint is proved or admitted, the Applicant seeks: 2. Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law, with a non-review period of 2 years 3. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law. In the event that only some of the particulars of the complaint are proved, the Applicant may seek alternative protective orders under section 149A (caution, reprimand, counsel etc.), section 149B (fine), and/or section 149C (suspension) of the National Law. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a), (b), (c) and/or (I) and/or professional misconduct within the meaning of section 139E of the National Law." 1. On 28 October 2022, the Tribunal made procedural orders including an order prohibiting the disclosure of the name of Patient A pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. On 3 March 2023, the respondent filed her statement dated 10 February 2023 (the Lu statement) which includes her Reply. 3. On 6 April 2023, the applicant filed an Amended Complaint. 4. On 12 April 2023, the applicant filed a Further Amended Complaint. The Further Amended Complaint 1. The Further Amended Complaint relevantly provides (omitting the part entitled "Background To All Complaints" within Complaint One and the strikethrough and red text indicating amendments): "COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of profession [sic] is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. … PARTICULARS OF COMPLAINT ONE 1. On 1 July 2020, the practitioner injected a mixture of substances into Patient A, which were not registered by the Therapeutic Goods Administration (TGA) to be injected for cosmetic use. 2. On 1 July 2020, the practitioner injected a mixture of substances into Patient A which were not approved by the TGA, to be injected for cosmetic use. 3. On 1 July 2020, the practitioner injected a mixture of substances into Patient A, for which a valid prescription was not obtained. 4. On 1 July 2020, the practitioner made a 'cocktail' of substances, which were injected into Patient A, without having the appropriate training and qualifications to do so. 5. On 1 July 2020, the practitioner failed to follow the manufacturer's guidelines and training in relation [to] the recommended product treatment doses, as follows: a. The Mesoestetic guidelines/ training documentation recommended up to 10mLs of the lipolytic solution in a ratio or 2.1.1. The practitioner administered 12mL of the lipolytic solution, as well as 16mL of caffeine. 6. On 1 July 2020, the practitioner administered injections to Patient A in an inappropriate setting, namely at their family home. 7. On 2 July 2020, the practitioner administered an EpiPen to Patient A, without a valid prescription being obtained. 8. On 2 July 2020, the practitioner administered the EpiPen to Patient A, without undertaking an appropriate assessment, namely by failing to assess the clinical appropriateness based on Patient A's symptoms of vomiting, nausea, vomiting, heavy breathing and increased heart rate. 9. On 2 July 2020, the practitioner failed to appropriately manage Patient A's health conditions, following the administration of the EpiPen to Patient A. Namely, the practitioner failed to: a. Follow the EpiPen guidelines and observe Patient A for at least four hours following the administration of an EpiPen. b. Monitor and respond accordingly to Patient A's conditions. 10. On 1 July 2020, the practitioner failed to provide adequate care to Patient A, in her delay in seeking medical assistance and instead administering an EpiPen to Patient A. 11. On 1-2 July 2020, the practitioner provided treatment to a family member … Patient A, contrary to Principle 4.1 (c) of the Nursing and Midwifery Board of Australia, Code of Conduct. 12. On 1 July 2020, the practitioner failed to consult with a medical practitioner before injecting the combination of substances into Patient A. 13. On 1 July 2020, the practitioner failed to undertake appropriate assessments and examinations of Patient A prior to injecting Patient A with the combination of substances. 14. On 1-2 July 2020, the practitioner failed to document or make any clinical records in relation to the treatment administered by the practitioner and the symptoms following the treatment of Patient A. COMPLAINT TWO The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when [the] instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT TWO 1. Complaint One, particulars 1 to 10 inclusive, are repeated and relied upon individually. 2. Complaint One and the particulars thereof are repeated and relied upon cumulatively." The hearing 1. On 12 April 2023, the hearing took place. Ms E Lambert, a barrister, represented the applicant. Ms P Dwyer, a barrister, represented the respondent. 2. At the commencement of the hearing, we granted leave to the applicant to file the Further Amended Complaint. Counsel for the respondent indicated that she admitted Complaints One and Two. 3. The applicant indicated that it was seeking the orders in the document entitled "Commission's proposed protective orders" (the proposed HCCC orders) which was marked for identification as MFI1. 4. The applicant relied on the following documents which were admitted into evidence without objection: 1. tabs 2 to 78 of its bundle of documents which was marked as exhibit A1 and includes: 1. the report of Jacqueline Kelly (Ms Kelly) dated 18 December 2021 (the Kelly report); 2. the supplementary report of Ms Kelly dated 18 February 2022 (the first supplementary Kelly report); 3. the Nursing and Midwifery Board of Australia's (the National Board) 'Code of conduct for nurses' (the NMC code of conduct); 4. the 'Registered nurse standards for practice' of the National Board (the NMC standards for practice); 1. the supplementary report of Ms Kelly dated 10 April 2023 (the second supplementary Kelly report) which was marked as exhibit A2; 2. the certificate of the NSW Council dated 21 December 2022 which was marked as exhibit A3; 3. the certificate of the Australian Health Practitioner Regulation Agency (AHPRA) dated 11 April 2023 which was marked as exhibit A4. 1. The respondent relied on the Lu statement which was admitted into evidence without objection and marked as exhibit R1. 2. The respondent gave oral evidence. 3. The applicant relied on its written submissions dated 11 April 2023 handed up at the hearing with paras 36(c) and 36(d) in an amended form (the HCCC submissions), and made oral submissions. 4. The respondent relied on her outline of submissions dated 11 April 2023 handed up at the hearing (the Lu submissions), and made oral submissions. 5. As the respondent accepted that she was liable to pay the costs of the applicant, we encouraged the parties to agree upon a gross sum costs order. 6. At the conclusion of the hearing, we reserved our decision. 7. On 21 April 2023, the parties notified the Registry that they had agreed on a gross sum costs order of $18,000.00. The issues 1. The following issues arise for determination: 1. whether the respondent engaged in the conduct constituting Complaint One, and whether any such proved conduct constitutes unsatisfactory professional conduct; 2. whether by reason of any such proved conduct of the respondent for Complaint One, she engaged in professional misconduct with Complaint Two; 3. whether any protective orders should be made against the respondent; 4. whether the respondent pay the applicant's costs of the proceedings. 1. It is convenient to consider issues 1 and 2 together. 2. Before considering these issues, it is appropriate to set out the applicable provisions of the National Law and the applicable legal principles. The applicable provisions of the National Law 1. Part 1 (ss 1-10) contains preliminary provisions. Section 3A specifies the guiding principles of the national registration and accreditation scheme for health practitioners under the National Law, and provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows— … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Part 5 Division 3 (ss 38-41) contains provisions dealing with registration standards and codes and guidelines. Section 39 deals with codes and guidelines, and relevantly provides: 39 Codes and guidelines A National Board may develop and approve codes and guidelines— (a) to provide guidance to the health practitioners it registers; and (b) about other matters relevant to the exercise of its functions. 1. Part 8 Division 1 (ss 138-139I) contains provisions dealing with preliminary matters in relation to health, performance and conduct. Section 139B contains a definition of unsatisfactory professional conduct of a registered health practitioner, and relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (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. Section 139E contains a definition of professional misconduct of a registered health practitioner, and provides: 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. Part 8 Division 3 Subdivision 6 (ss 149-149E) contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies the circumstances in which these disciplinary powers may be exercised, and relevantly provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner … if— 1. (a) it finds the subject-matter of a complaint against the practitioner … to have been proved; …Section 149A specifies the general powers of the Tribunal to make a variety of protective orders, and relevantly provides: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner— (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; ... (d) order the practitioner to complete an educational course specified by the Tribunal; … 1. Section 149C specifies the powers of the Tribunal to suspend or cancel registration in certain cases, and relevantly provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— … (b) the practitioner is guilty of professional misconduct; or … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner … concerned, … to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. The applicable legal principles The proof of facts 1. In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52]. 2. In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), Dixon J commented at 362: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..." 1. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171 (Neat Holdings), the majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) said: "[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (citations omitted) 1. Section 140 of the Evidence Act 1995 (NSW) (Evidence Act) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact. 2. In approaching this issue we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126]-[127] (Leeming JA, with Basten JA at [1] and Gleeson JA at [37] agreeing); Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [85]-[87] (Payne JA, with Leeming JA at [1] and Simpson AJA at [118] agreeing). Unsatisfactory professional conduct 1. In Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [18]-[20], the Tribunal considered the meaning of unsatisfactory professional conduct in s 139B(1)(a) and (l) of the National Law: "[18] In making a finding of unsatisfactory professional conduct per (a), the Tribunal must compare the conduct of the practitioner with a standard 'reasonably expected'. In HCCC v Simonson [2017] NSWCATOD 87 the Tribunal noted at [9]: 'Obviously, there will be many cases where there is no one bright line which typifies the relevant knowledge, skill or judgement or care of such a practitioner. In most cases, the expected standard of relevant knowledge, skill or judgement or care of a practitioner will fall within a band, sometimes narrow and sometimes broader.' [19] 'Improper' and 'unethical' are not defined in the National Law. The assessment of what constitutes improper or unethical conduct is based upon their ordinary meaning. In the professional disciplinary context there is necessarily some overlap between the two words. [20] 'Improper' conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: HCCC v Phung (No 1) [2012] 1 NSWDT 3 at [68]; HCCC v Fisher [2016] NSWCATOD 62 at [57]; HCCC v Flekser [2016] NSWCATOD 1 at [119]. Improper and unethical conduct may be dishonest, disreputable to the profession, in breach of explicit professional standards such as codes of conduct, guidelines and competencies, and may also be determined by reference to the views of reasonable members of the profession: Slezak, Dr Peter [2011] NSWMPSC 10 at [83] and [87]." Professional misconduct 1. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen), at [19]-[20] Basten JA (Leeming JA at [23] agreeing) relevantly said: "[19] ... The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. … [20] 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. …" 1. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWCA 264, the New South Wales Court of Appeal (Gleeson CJ, Meagher and Handley JJA) said in relation to professional misconduct: "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." The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law 1. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA at [19]-[21] (Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." 1. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], Meagher JA (Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: "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. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88]. Section 149A of the National Law 1. The Tribunal has held that the concept of general deterrence and the need to uphold public confidence in the standards of the profession in an appropriate case will be adequately addressed if the misconduct of the practitioner is denounced, in the sense of being openly condemned, by reprimanding him: Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [94]-[95]; Healthcare Complaints Commission v Hollenbach [2019] NSWCATOD 118 at [553]. Section 149C of the National Law 1. In Chen at [21]-[22], Basten JA (Leeming JA at [23] agreeing) considered the operation of s 149C of the National Law: "[21] 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. [22] 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. …" 1. In Health Care Complaints Commission v Picones [2018] NSWCATOD 56 at [103]-[106], the Tribunal considered cancellation of registration was the only order available to appropriately protect the safety of the public where the practitioner cannot be trusted to tell the truth: "[103] Engaging with one's professional regulator and all forms of disciplinary inquiry with diligence and honesty are fundamental requirements of any professional. [104] The ability to acknowledge errors in judgment and clinical treatment is particularly crucial for health professionals. Mistakes happen. Covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions and services because of the real and present danger that such behaviour poses to the safety of patients. Without candid admissions and the provision of assistance to peers and superiors from 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. [105] A health professional who cannot be trusted to tell the truth presents a substantial risk to the public in any and every health services setting. [106] In these circumstances cancellation of registration was the only order available to appropriately protect the safety of the public. …" 1. In Chen at [88], Payne JA (Basten JA at [1] and Leeming JA at [23] agreeing) considered the operation of s 149C(7) of the National Law: "The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. … [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 Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim), the Court of Appeal rejected the ground of appeal that the Tribunal erred in determining the period of four years during which the practitioner would not be entitled to reapply for registration because it was required to take into account the fact that the practitioner had already been suspended from practice for a period of three and a half years. Meagher JA at [74] (McColl JA at [1] and Ward JA at [91] agreeing) relevantly held: "The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. … In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. …" The exercise of the power of the Tribunal to award costs under Sch 5D cl 13 of the National Law 1. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42], Emmett JA in considering the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law held that as a general rule costs of proceedings before the Tribunal should follow the event (with Meagher JA at [1] and Beech-Jones J at [50] agreeing). Whether the respondent engaged in the conduct constituting complaint one, and any such proved conduct constitutes unsatisfactory professional conduct Whether by reason of any such proved conduct of the respondent for complaint one, she engaged in professional misconduct with complaint two Introduction 1. Having regard to the admission of the respondent, it is unnecessary to summarise all of the applicant's evidence. It is sufficient to set out the key aspects of the applicant's evidence. The applicant's evidence The NMC code of conduct 1. The NMC code of conduct, which has been in effect since 1 March 2018 and was approved by National Board under s 39 of the National Law, relevantly contains the following principles: 1. nurses apply evidence-based, safe, and quality care by practising in accordance with professional nursing standards and other applicable health standards (principle 2.1); 2. nurses recognise and work within their scope of practice (having regard to their level of education, training, authorisation, competence, qualifications, and experience), and make appropriate referrals when care falls beyond the scope of that practice (principle 2.2); 3. nurses obtain appropriate informed consent (principle 2.3); 4. nurses understand and maintain professional boundaries (principle 4.1). The NMC standards for practice 1. The NMC standards for practice, which has been in effect since 1 June 2016 and was approved by the National Board under s 39 of the National Law, relevantly contains the following standards: 1. nurses are to comply with legislation, common law, policies, guidelines and other standards or requirements relevant to the context of practice when making decisions (standard 1.4); 2. nurses are to maintain accurate, comprehensive, and timely documentation of assessments, planning, decision-making, actions, and evaluations (standard 1.6); 3. nurses are to establish, sustain and conclude relationships in a way that differentiates the boundaries between professional and personal relationships (standard 2.1); 4. nurses are to have the capability for practice (standard 3); 5. nurses are to accurately conduct comprehensive and systematic assessments (standard 4); 6. nurses are to practise within their scope of practice (standard 6.2). The Kelly reports 1. When the Kelly report, the first supplementary Kelly report and the second supplementary Kelly report are considered together, Ms Kelly has expressed the opinion that the respondent's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience in the following respects: 1. the respondent injected substances into Patient A which were not registered or approved by the Therapeutic Goods Administration (TGA); 2. the respondent injected substances into Patient A for which she did not obtain a valid prescription; 3. the respondent failed to follow the manufacturer's guidelines with regard to the recommended product treatment doses; 4. the respondent administered the injections to Patient A in an inappropriate setting, namely, at home; 5. the respondent administered EpiPen to Patient A without obtaining a valid prescription; 6. the respondent failed to undertake an appropriate assessment prior to injecting Patient A with EpiPen; 7. the respondent did not appropriately manage or monitor Patient A's condition on 1 July 2020 and overnight; 8. the respondent's decision to administer EpiPen at 2:30am on 2 July 2020, rather than calling an ambulance, was inappropriate. Consideration 1. Having regard to the legal principles at [49]-[56] above, the agreed facts constituting the incident, the applicable principles of the NMC code of conduct, the applicable standards of the NMC standards for practice, and the uncontradicted opinions of Ms Kelly, we are satisfied that the admissions of the respondent that she engaged in unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law and in professional misconduct within s 139E(a) of the National Law were properly made. 2. As we consider that the incident should be characterised as a single instance of unsatisfactory professional conduct, we are not satisfied that the respondent engaged in professional misconduct within s 139E(b) of the National Law. 3. It follows that we find that the respondent engaged in unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law and in professional misconduct within s 139E(a) of the National Law. Whether any protective orders should be made against the respondent Introduction 1. The applicant and the respondent, while agreeing that protective orders should be made, disagreed as to what protective orders are appropriate. 2. In the proposed HCCC orders, the applicant seeks suspension of the respondent's registration for a period of six months, and the imposition of conditions on the respondent's registration including remote supervision and mentoring for a period of 12 months after the expiry of the suspension period. 3. The respondent seeks the making of a reprimand and no imposition of conditions on the respondent's registration. 4. Before considering this issue, it is appropriate to summarise the evidence of the respondent and the submissions of the parties. The evidence of the respondent The Lu statement 1. In the Lu statement, the respondent gave the following evidence: 1. she has undertaken extensive continuing professional education including courses in professional boundaries (at pars 17-18); 2. as to Complaint One (at par 30): "I have read the particulars to Complaint One and accept them. At the time that I injected the substances, I did not think I was doing anything wrong, and I did not consider that there was any risk to [Patient A]. I accept, however, there was a risk and that I should not have administered the products at home or in the circumstances articulated in the complaint." 1. she has provided the following reflection and closing remarks (at pars 33, 35, 37, 38): "33. As mentioned and reinforced in my numerous submissions to the Council, I am regretful of my conduct and will never repeat such actions again, namely: (a) I will only provide treatment within a clinical setting, and will adhere to all professional boundaries. (b) I will ensure that any substances injected are TGA approved and approved by a medical practitioner before administration. (c) I will make sure I have the appropriate training and qualifications prior to performing any treatment, and will ensure any treatment is documented in the patient's clinical records. (d) I will not administer an Epipen without a valid prescription, undertake appropriate assessments prior to administering the Epipen, and will ensure all Epipen guidelines are followed. (e) I will ensure that any treatment I provide aligns with evidence-based practice. … 35. The past two and a half years have been very difficult for me and my family. The disciplinary proceedings have significantly impacted me and my family emotionally and financially, even though I acknowledge that these are the consequences of my actions, for which I hold myself responsible. … 37. I have spent the past 30 months reflecting on the circumstances that have given rise to this disciplinary process, and have demonstrated a commitment to continue my professional development through educational courses to address my shortcomings. I have also fully engaged in supervision sessions, with my supervisor providing glowing feedback on my performance in all her reports. … 38. I hope the Tribunal will recognise my contrition and allow me to continue to work in an environment where I can provide valuable, conservative and very safe treatment for my patients." 1. she annexed character references of her employer, Tanya Pizzuto (Ms Pizzuto), and her supervisor, Agnes Nguyen (Ms Nguyen) (annexure A). In her reference, Ms Pizzuto attests to the respondent's good character, and describes her as "always cautious", as well as "gentle, honest and responsible", and provides the following statement: "I am well aware of the mistakes Ms Lu made, she is incredibly remorseful about it. When her registration was suspended in 2020, I witnessed the tremendous stress caused on her. I understand the incident has happened at home. It is highly unlikely the similar mistake will happen again especially in the clinic. I believe she has learned from the lesson during the difficult times and she will not risk her career again." 1. she annexed Ms Nguyen's quarterly reports from September 2021 to December 2022 (annexure B) which provided a positive assessment. The oral evidence of the respondent 1. In her examination in chief, the respondent gave the following evidence: 1. she did not understand at the time of the incident that she needed TGA approval for the substances; 2. she explained that she now understands that treatment at home is not safe as it lacks appropriate hygiene and infection controls, there is no help available should complications arise, and there is no system for keeping records; 3. that she would never perform treatment at home; 4. it had been hard for her and her family with her not being able to work for several months from 28 July 2020 to near the end of 2020; 5. that she has completed various training courses; 6. she hopes to continue working as a cosmetic nurse. 1. In cross-examination, the respondent gave the following evidence: 1. she explained that she now understands that substances not approved by the TGA were not safe for use as there had not been enough research to prove their safety; 2. she explained that she now understands that it is important to have a prescription for an EpiPen as a doctor will do their own assessment as to the patient's condition; 3. she explained that she now understands that treatment at home is not safe as it lacks infection controls, and so there is a higher risk of infection, it is not an appropriate environment to deal with complications, it is unprofessional, and there is no system for keeping records. The submissions of the parties The submissions of the applicant 1. In the HCCC submissions, the applicant made the following submissions: 1. the respondent's evidence does demonstrate that she has a degree of insight and remorse into her conduct and she has provided evidence of further education and training. While this is certainly a factor to be taken into consideration, there are concerns as to the seriousness of the conduct and the level to which it fell below the standards expected of a registered nurse; 2. much of the risk posed to the public by the respondent's actions can be mitigated by further supervision and mentoring to ensure that she understands her professional obligations. However, the seriousness of the conduct that occurred and noting that it occurred away from the workplace, an element of deterrence is appropriate in this instance, and a period of suspension in addition to such protective orders would be appropriate. 1. In her oral submissions, counsel for the applicant accepted that the respondent now had insight into and had taken responsibility for her actions. She referred to the compound nature of the incident over a period of 24 hours. She submitted, in the alternative, that a reprimand would be an appropriate protective order. She accepted that there should be no order made that the respondent complete any educational courses. The submissions of the respondent 1. In the Lu submissions, the respondent made the following submissions: 1. after balancing the gravamen of the conduct in the Further Amended Complaint, and the objectives of the National Law, the appropriate protective order is a reprimand having regard to the following factors; 1. the unusual nature of the conduct which was an aberration from her practice; 2. the negligible risk of a repeat of the conduct; 3. the insight which she has shown; 4. the additional learning she has completed since the incident; 5. the period of effective and lengthy supervision of her practice; 6. her positive embrace of conditions, including a supervisor, for over 2.5 years waiting for the hearing of the Tribunal; 1. Ms Pizzuto and Ms Nguyen attest to her good character; 2. she has completed additional training to ensure there are no gaps in her knowledge relating to the incident including courses in professional boundaries; 3. her reflections and understanding are evident in every submission made to the HCCC and the NSW Council after the incident as well as in the Lu statement at pars 3, 36 and 38; 4. Ms Nguyen's supervision reports reflect her commitment to supervision for over two years, as well as her safe and competent work practices. 1. In her oral submissions, counsel for the respondent submitted that the respondent had demonstrated insight and that there was no risk that the conduct constituting the incident would be repeated. Her conduct was not deliberate as she did not understand that she was doing anything wrong. The consequences of the incident had brought home to her the seriousness of her conduct. The public nature of a reprimand and the decision of the Tribunal would be a sufficient general deterrence and would uphold public confidence in the standards of the profession of nursing. There was no need for the imposition of any conditions on the respondent's registration. Consideration 1. We accept that the respondent was an honest witness and demonstrated insight as to the nature and extent of her departure from the applicable principles of the NMC code of conduct and the applicable standards of the NMC standards for practice. We are satisfied that she is genuinely remorseful for her actions and there is no risk that she will ever repeat her conduct. 2. In all the circumstances, we are satisfied that the appropriate protective order is to reprimand the respondent pursuant to ss 149(a) and 149A(1)(a) of the National Law. The public nature of a reprimand will be recorded on her practitioner's registration, which is accessible to the public on AHPRA's website, and this decision, which is accessible to the public on the NSW Caselaw website, will be a sufficient general deterrence and will uphold public confidence in the standards of the profession of nursing. The suspension of the respondent's registration for a period of six months pursuant to ss 149(a) and 149C(1)(b) of the National Law would be inconsistent with the principle in s 3A(2)(c) as such a restriction is not necessary to ensure health services are provided safely and are of an appropriate quality. There is no need for the imposition of any conditions on the respondent's registration pursuant to ss 149(a) and 149A(1)(b) of the National Law or to order the respondent to complete any educational courses pursuant to ss 149(a) and 149A(1)(d) of the National Law. Whether the respondent pay the applicant's costs of the proceedings. 1. Having regard to the principles in Philipiah at [42] and the agreement of the parties, it is appropriate to order the respondent to pay the applicant's costs of the proceedings pursuant to Sch 5D cl 13 of the National Law in the amount of $18,000.00. Orders 1. We make the following orders: 1. the respondent is reprimanded; 2. the respondent to pay the applicant's costs of the proceedings in the amount of $18,000.00. ********** 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 May 2023