Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v McCosker [2023] NSWCATOD 87 Hearing dates: 23 March 2023 Date of orders: 21 June 2023 Decision date: 21 June 2023 Jurisdiction: Occupational Division Before: R Lethbridge SC, Senior Member S Daly, Senior Member D Robertson, Senior Member M Christensen, General Member Decision: (1) That pursuant to s 149C(1)(b) of the National Law, the Practitioner's registration is cancelled. (2) That pursuant to s 149C(7) of the National Law, an Application for Review of the order cancelling the Practitioner's registration pursuant to Division 8 of the National Law may not be made for a period of two years from the date of these Orders. (3) That pursuant to s 149C(5)(a) of the National Law, the Practitioner is prohibited from providing any health services until registered as a health practitioner. (4) That pursuant to clause 13 of Schedule 5D of the National Law, the Practitioner pay the costs of the Health Care Complaints Commission as agreed or assessed. (5) A non-publication order under s.64 of the Civil Administrative Tribunal Act 2013 (NSW) be made prohibiting publication of the diagnosis of the Practitioner and the immediate cause of the condition diagnosed upon her admission to Lismore Base Hospital on 14 January 2019. Catchwords: OCCUPATIONS – nurses – misconduct and discipline – professional misconduct – substance abuse (alcohol) –assault guilty finding – registration suspended – conditions not met – non-compliance with remedial requirements – registration cancelled Legislation Cited: Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Health Care Complaints Act 1993 (NSW), s 90B(1) Health Practitioner Regulation National Law (NSW), ss 5, 139, 139B, 139E, 144, 145F, 149C, 150, 165J(3), 176D, Sch 5D cl 13 Cases Cited: Allinson v General Council of Medical Education and Registration [1984] 1 QB 750 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 335; [2017] NSWCA 186 Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 Gayed v Walton [1997] NSWSC 279 Grove v Favel (1986) 43 SASR 410 Health Care Complaints Commission v Collins [2021] NSWCATOD 132 Health Care Complaints Commission v Dr DWF [2019] NSWCATOD 78 Health Care Complaints Commission v Elliott [2017] NSWCATOD 20 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 29 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Prakash v Health Care Complaints Commission [2006] NSWCA 153 The Queen v Byrnes (1995) 183 CLR 501; [1995] HCA 1 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Fiona Ann McCosker (Respondent) Representation: Counsel: A Bhasin (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (no appearance) File Number(s): 2022/00253025 Publication restriction: Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the contents of the paragraphs in these Reasons marked '[NOT FOR PUBLICATION]' are not to be published other than to the parties. REASONS FOR DECISION Introduction 1. These are proceedings brought by the Health Care Complaints Commission (HCCC) against Ms Fiona Ann McCosker, a Registered Nurse (the Practitioner). The HCCC's complaint was pursuant to s 90B(1) of the Health Care Complaints Act 1993 (NSW) (the Act). The HCCC commenced proceedings by way of an Application for Disciplinary Findings and Complaint both dated 24 August 2022 and filed on 25 August 2022. Before the Tribunal, the HCCC sought leave and leave was granted to it to proceed on the basis of an Amended Complaint filed with the Tribunal on 21 March 2023. 2. Prior to the hearing, the Practitioner had not engaged with the HCCC or taken part in the proceedings. As a matter of abundant caution, the Tribunal asked that the Practitioner's name be called outside the Tribunal hearing room at the commencement of the hearing. This was done and there was no response. In addition, in order to establish the Practitioner's Notice of Issues to be dealt with by the Tribunal, the HCCC relied upon an Affidavit of Ms Lucinda Cannon, a solicitor formerly with carriage of the matter in the Tribunal, sworn 17 March 2023 and filed 20 March 2023 which detailed attempts to contact the Practitioner. The HCCC also relied upon more recent attempts referred to in the documents which became Exhibits 1 and 2. 3. Section 165J(3) of the Health Practitioner Regulation National Law (NSW) (the National Law) permits the Tribunal to proceed in the absence of the Practitioner as long as it is satisfied that notice of the inquiry has been given. On the basis of the material referred to, the Tribunal is satisfied that the Practitioner is on notice of the proceedings. 4. The Tribunal agrees with the submission of counsel who appeared on behalf of the HCCC that this is a matter which should proceed and be dealt with on the basis of a combined hearing dealing with first whether the complaints are established and, if so, the appropriate protective orders to be made. Background 1. The Evidentiary Certificate provided by the Australian Health Practitioner Regulation Agency (AHPRA) dated 13 March 2023 and filed with the Tribunal on 20 March 2023 establishes that the Practitioner was first registered as a Registered Nurse on 1 September 1986. Her registration history is noted as continuous from 1 July 2010 until 7 September 2020 when that registration was suspended and that is its current status. During that period, the Practitioner had worked at Lismore Base Hospital first being employed on a casual basis and subsequently becoming a permanent employee of the hospital. 2. On 9 October 2019, during an interview with Dr J G Reddan, a consultant psychiatrist instructed on behalf of the Nursing and Midwifery Council of NSW (Council), the Practitioner stated that following the final breakdown of her marriage in approximately July 2017, she and her husband separated. The Practitioner reported that she had been drinking to excess. Concerns about the Practitioner's health had been noted in her workplace and in July 2018 her rosters were altered so that she worked day shifts from Monday to Friday. Subsequently, by October 2018, these restrictions had been removed. [1] 3. On 14 January 2019, the Practitioner failed to attend her work. Consequently, Police were asked to undertake a welfare check. As it transpired, the Practitioner was admitted to the Emergency Department of Lismore Base Hospital [NOT FOR PUBLICATION]. [2] 4. On 4 May 2019, the Practitioner was charged with assault occasioning actual bodily harm (domestic violence) and common assault (domestic violence). On 1 July 2019, the charges were heard and determined and the Practitioner made subject to, in each case, a conditional release without conviction for a period of 12 months. On 18 August 2019, and subsequently on 22 August 2019, the Practitioner was charged with breaches of an AVO then in place. In the case of each charge, the Practitioner was given a conditional release without conviction for a period of 12 months. [3] 5. On 1 September 2019, the Practitioner was subject to proceedings under s 150 of the National Law. As a consequence, conditions were placed on the Practitioner's registration commencing from 29 July 2019. At a further s 150 hearing which took place on 7 September 2020, the Practitioner's registration was suspended from 7 September 2020. The Complaint 1. The Amended Complaint by the HCCC comprised seven particularised complaints as set out below (omitting the background detail where included). Complaint 1 1. Pursuant to s 144(a) of the National Law, the Practitioner has been made the subject of a criminal finding for a criminal offence in New South Wales. Particulars of Complaint 1 1. On 1 July 2019, the Practitioner was made the subject of a criminal finding for the following offences: 1. Common assault, domestic violence related contrary to s 61 of the Crimes Act 1900 (NSW). 2. Assault occasioning actual bodily harm, domestic violence related contrary to s 59(1) of the Crimes Act. 1. On 9 September 2019, the Practitioner was made the subject of a criminal finding for the following offences: 1. Contravene prohibition or restriction in an apprehended domestic violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). 2. Contravene prohibition or restriction in an apprehended domestic violence order contrary to s.14(1) of the Crimes (Domestic and Personal Violence) Act. Complaint 2 1. The Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that she has contravened s 130(1) of the National Law as set out below. Particulars of Complaint 2 1. The Practitioner failed to notify the National Board that she had been charged before a NSW Court with offences punishable by 12 months imprisonment or more, within 7 days of becoming aware of the fact. 2. The Practitioner failed to notify the National Board that she had been the subject of a finding of guilt for an offence punishable by imprisonment within 7 days of becoming aware of the fact. Complaint 3 1. The Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law in that the Practitioner has contravened a condition to which the Practitioner's registration is subject. Particulars of Complaint 3 1. The Practitioner failed to provide evidence to the Council within 7 days of the conditions being imposed that she had provided a copy of the full conditions to her employer in breach of Condition 1. 2. Particular 2 was deleted in the Amended Complaint dated 21 March 2023. 3. On 16 August 2020, the Practitioner returned a positive alcohol breath test while at work at the hospital in contravention of Condition 6. 4. Between March 2020 and July 2020, the Practitioner failed to conduct an alcohol breath test at the required time, in breach of Condition 6 by doing the following: 1. Failing to test no more than 30 minutes before the Practitioner started her shift of the following occasions: 1. On 2 March 2020, the Practitioner tested 17 minutes after the start of her shift; 2. On 24 March 2020, the Practitioner tested 20 minutes after the start of her shift; 3. On 17 April 2020, the Practitioner tested 44 minutes after the start of her shift. The second test after the initial positive test was conducted too late; 4. On 15 June 2020, the Practitioner tested 30 minutes after the start of her shift; 5. On 1 July 2020, the Practitioner tested 20 minutes after the start of her shift. 1. Failing to test no more than 30 minutes before the end of the Practitioner's shift on the following occasions: 1. On 11 March 2020, the Practitioner did not do a test at the end of her shift; 2. On 6 May 2020, the Practitioner tested 15 minutes after the end of her shift; 3. On 14 May 2020, the Practitioner tested 34 minutes before the end of her shift; 4. On 23 May 2020, the Practitioner tested 1 hour and 17 minutes before the end of her shift; 5. On 13 June 2020, the Practitioner tested 45 minutes before the end of her shift; 6. On 21 June 2020, the Practitioner tested 55 minutes before the end of her shift; 7. On 3 July 2020, the Practitioner tested 55 minutes before the end of her shift; 8. On 6 July 2020, the Practitioner tested 45 minutes before the end of her shift. 1. Since December 2019, the Practitioner failed to provide evidence of her engagement with her general practitioner to the Council, in breach of Condition 7. 2. Since December 2019, the Practitioner failed to provide evidence of her engagement with her psychiatrist to the Council, in breach of Condition 8. 3. Since December 2019, the Practitioner failed to provide evidence of engagement with her psychologist to the Council, in breach of Condition 9. 4. Since December 2019, the Practitioner failed to provide evidence of engagement with her drug and alcohol counsellor to the Council, in breach of Condition 10. 5. On 4 August 2020, 19 December 2020 and 10 February 2021, the Practitioner failed to attend a Council Appointed Psychiatrist (CAP) on a 6-monthly basis in breach of Condition 12. Complaint 4 1. The Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the Practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Particulars of Complaint 4 1. Around 14 January 2019, the Practitioner misappropriated insulin from the emergency department at Lismore Base Hospital for personal use. Complaint 5 1. The Practitioner is guilty of unsatisfactory professional conduct under s 139E of the National Law in that the Practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration, and/or 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 5 1. Complaints 2 to 4 of the particulars thereof are repeated and relied upon both individually and cumulatively. Complaint 6 1. Under s 144(d) of the National Law, the Practitioner has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the Practitioner's capacity to practice the profession of nursing. Particulars of Complaint 6 1. The Practitioner suffers from major depression. 2. The Practitioner has an alcohol use disorder (specifically alcohol abuse) which is prone to recurrence or relapse. 3. Around August 2020, the Practitioner attended work at Lismore Base Hospital while intoxicated. 4. Around January 2019, the Practitioner misappropriated insulin from her employer, [NOT FOR PUBLICATION]. 5. [NOT FOR PUBLICATION]. 6. The Practitioner was admitted as a patient from 14 to 17 January 2019 to Lismore Base Hospital. 7. From 17 January 2019 to 15 February 2019, the Practitioner was admitted as a patient of the Currumbin Clinic Mental Health Facility. Complaint 7 1. The Practitioner is not competent within the meaning of s 139(a) of the National Law in that the Practitioner lacks the mental capacity to practise as a nurse. Particulars of Complaint 7 1. The particulars of Complaint 6 are repeated and relied upon both individually and cumulatively. 1. In relation to Complaints 6 and 7, counsel for the HCCC referred the Tribunal to the provisions of s 145F of the National Law. That section refers to the consequences which may flow from a practitioner failing, without reasonable excuse, to attend either counselling as directed pursuant to s 145B or to undergo an examination directed pursuant to s 145E of the National Law. In each case, that failure constitutes evidence that the Practitioner does not have sufficient physical or mental capacity to practise the health profession in which the Practitioner is registered. The orders sought by the HCCC 1. The HCCC seeks the following: 1. Cancellation of the Practitioner's registration (s 149C(1)(b) of the National Law); 2. An order that an Application for Review under Division 8 of the National Law may not be made for a period of 2 to 3 years (s 149C(7) of the National Law); 3. A prohibition order preventing the Practitioner from providing any health services for the same period as any non-review period imposed (s 149C(5)(a) of the National Law); and 4. An order for costs. The evidence relied upon by the HCCC 1. The HCCC relied upon the following evidence: 1. Two volumes of evidentiary material comprising 92 tabs which became Exhibit 3 in the proceedings; 2. An Evidentiary Certificate from AHPRA which was added at Tab 3 to Exhibit 3; 3. A volume of evidentiary material comprising 4 tabs titled, "Further Documents served by the Health Care Complaints Commission", which became Exhibit 4 in the proceedings; and 4. A further volume of evidentiary material comprising 13 tabs entitled, "Further Additional Documents served by the Commission", which became Exhibit 5 in the proceedings. Discussion 1. Counsel for the HCCC in a helpful written submission noted in relation to the Tribunal's exercise of its jurisdiction a number of matters which this Tribunal agrees govern our deliberations (at pars 9-10 of that submission). Counsel submitted: "9 The National Law establishes that proceedings of this type are inquisitorial in nature [references and authority omitted]. 10 A number of key principles govern proceedings in this jurisdiction: (i) Fundamental to the purpose of the proceedings in the health and safety of the public; [4] (ii) Proceedings are primarily protective, not punitive in nature; [5] (iii) However, in protecting the community the Tribunal must take into account the maintenance of the standards of the relevant profession and the preservation of public confidence in that profession; [6] and (iv) Deterrence is a relevant factor. [7] " 1. The HCCC bears the onus of proof in these proceedings but the Tribunal is not bound in assessing evidence by the Rules of Evidence. [8] The Tribunal is required to consider each complaint on the balance of probabilities. Whilst the Briginshaw test does not apply directly to the Tribunal's decision-making, it must be informed by matters including the seriousness of an allegation and the gravity of the consequences of making a finding. [9] 2. In this hearing, as counsel for the HCCC submits and the Tribunal agrees, the failure of the Practitioner to give evidence may enable us to infer that her evidence would not have assisted her case and more confidently draw adverse inferences form the available evidence. [10] Complaints 1 and 2 1. The HCCC evidence already referred to establishes that the Practitioner was found guilty of offences of common assault and assault occasioning actual bodily harm being offences which occurred on 4 May 2019. The Practitioner pleaded guilty to the offences and on 1 July 2019, without proceeding to a conviction, was sentenced to a conditional release order for a period of 12 months. [11] 2. In sentencing the Practitioner for assault, and assault occasioning actual bodily harm, the Court made an Apprehended Domestic Violence Order (ADVO) which, among other things, prohibited her from contacting her husband including by text messages. The offences of breaching the ADVO with which the Practitioner was charged related to text messages sent to her husband. Although the magistrate dealing with the matter described the text messages as "almost completely benign", [12] the Practitioner pleaded guilty and was found guilty and sentenced on 9 September 2019 to a conditional release order for a period of 12 months. [13] The HCCC evidence establishes that the Practitioner first notified the Board of the common assault and the assault occasioning bodily harm through renewal forms received on 2 August 2019. The Respondent first notified the Board of the breach of the ADVO charges and convictions on 7 August 2020. In neither case was the notification made within 7 days of the Practitioner being charged and within 7 days of the Practitioner being convicted. In these circumstances, the Tribunal finds both Complaints 1 and 2 established. Complaint 3 1. Complaint 3 alleges that the Practitioner is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(c) of the National Law because she contravened conditions to which her registration was subject. The full array of those conditions appears in the 'Background' to this complaint as set out in the HCCC's Amended Complaint. The Tribunal will refer to those conditions only to the extent that they support the particulars of this complaint. That is, alleged breaches of Conditions 1, 6, 7 to 10 and 12. Public Condition 1 (Particular 1) 1. Condition 1 required the Respondent to forward evidence to the Council within 7 days of conditions being imposed that she had provided a copy of the full conditions to her nursing employers. 2. An email exchange between the Respondent and the Council on 25 February 2020 confirms that the employer notification form was sent by the Respondent on 12 February 2020. [14] The particular is therefore established. Private Condition 6 (Particulars 3 and 4) 1. Condition 6 required the Respondent "to comply with the [Council's] Alcohol Screening Policy and Participant Procedure: Breath-Testing for Alcohol Policy (as varied from time-to-time)". The Alcohol Screening Policy and Participant Procedure: Breath-Testing for Alcohol Policy (Participant Policy) was in force at the relevant time. [15] 2. Particular 3 alleges that the Practitioner returned a positive alcohol breath-test on 16 August 2020. RN Kelly, one of the Practitioner's ABT supervisors, provided a statement that on 16 August 2020 the Practitioner commenced her shift without first having been tested. She gives evidence that when the Respondent undertook a test, she returned a high positive result. The Practitioner disputed that the test was as a consequence of excessive alcohol consumption. She was subsequently re-tested by RN Austin, who was another ABT supervisor for the Practitioner. RN Austin gave evidence that she tested the Practitioner at the request of RN Kelly who was otherwise engaged. The test administered by RN Austin was again positive and a high result. [16] The evidence establishes that the initial tested reading was 0.106 and the second reading 0.069. [17] 3. The Tribunal does not accept the Practitioner's explanation which was, in each case, that the reading was due to her use of a commercial preparation, "Bonjela" and finds that it was as a consequence of excessive alcohol consumption. Particular 3 is therefore established. 4. Particular 4 alleges that the Practitioner failed to submit to alcohol breath testing as required at the times required between March and July 2020. Particular 4(a) sets out failures to test no more than 30 minutes before the start of the Practitioner's shifts and Particular 4(b) sets out the failures to test no more than 30 minutes before the end of her shifts. The requirement to do so is set out at section 6.2 of the Participant Policy referred to above. [18] 5. The HCCC has established the Practitioner's start and end shift times for the relevant dates at Exhibit 3, Tab 55 and Exhibit 4, Tabs 6 and 7. The alcohol breath test results are established by the HCCC and appear at Exhibit 3, Tab 56 to 57 and Exhibit 4, Tabs 5 to 8. That evidence establishes each of the elements comprising the fourth particular which is therefore established. Private Conditions 7 to 10 (Particulars 5 to 8) 1. Particulars 5 to 8 of Complaint 3 allege that since December 2019, the Respondent failed to provide to the Council, evidence of her engagement with her general practitioner, psychiatrist, psychologist and drug and alcohol counsellor in breach of Conditions 7 to 10, respectively. Those conditions appear in the HCCC evidence. [19] 2. The reasons for decision of the proceedings which were undertaken pursuant to s 150 of the National Law dated 26 September 2020, [20] notes that while the Practitioner submitted a form from her psychiatrist on 15 February 2020 and a form from her drug and alcohol counsellor on 23 February 2020, she failed to submit forms from her general practitioner and psychiatrist. [21] The HCCC noted that there was no evidence before it of engagement by the Practitioner with her treating health practitioners since their nomination. As counsel for the HCCC pointed out, that remains the case at this hearing. The Tribunal finds each of Particulars 5 to 8 established. Private Condition 12 (Particular 9) 1. Particular 9 of Complaint 3 is that on 4 August 2020, 19 December 2020 and 10 February 2021, the Practitioner failed to attend a Council Appointed Psychiatrist on a 6-monthly basis in breach of Condition 12. Failure to attend the appointment scheduled for 4 August 2020 with Dr Jill Reddan is established by Exhibit 4, Tabs 9 and 10. The missed appointments for the 9 December 2020 and 10 February 2021, are contained in an email sent to the Practitioner on 22 December 2020, [22] and a report by Dr Samuels dated 26 August 2021. [23] The Tribunal finds that Particular 9 is established. 2. On the basis of the Tribunal's findings that each of the particulars has been established, the Tribunal finds that Complaint 3 is established. Complaint 4 1. Complaint 4 alleges that the Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law because she engaged in improper or unethical conduct relating to the practice or purported practice of nursing. It is alleged that she misappropriated insulin from her then employer for personal use. The offence is said to have occurred around 14 January 2019. 2. To establish the complaint, the HCCC relies upon a letter dated 24 April 2019 addressed the Practitioner from Ms Narelle Gleeson, the then Director of Nursing and Midwifery at Lismore Base Hospital. The letter notes it was hand delivered. In that letter, Ms Gleeson refers to a meeting between the Practitioner, Ms Gleeson and Mr Joel Organ which took place on 19 March 2019. At the meeting, Ms Gleeson notes that the Practitioner admitted removing insulin from the hospital. Ms Gleeson provided a statement to the HCCC dated 20 July 2021. That statement became evidence in these proceedings. [24] At pars 11 and 13 of her statement, Ms Gleeson refers to a further admission by the Practitioner that she had taken insulin from the hospital emergency department. [NOT FOR PUBLICATION]. The Tribunal finds that the particulars of Complaint 4 are established. 3. The words, "improper" and "unethical" conduct are not defined in the National Law. However, their use in the legislation has been considered in a number of authorities including Health Care Complaints Commission v Shrimpton. [25] The Tribunal there said (at [67]), among other things: "The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as: 1. Not "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law." 1. In The Queen v Byrnes, [26] the concept of impropriety is as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with a knowledge of the duties, powers and authority of the position and the circumstances of the case." 1. This approach in determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases before the Tribunal. [27] 2. The Tribunal has little difficulty in finding that the removal of insulin by the Practitioner from the emergency department of her employer constitutes improper and unethical conduct within the meaning of s 139B(1)(l) of the National Law. Complaint 4 is therefore established. Complaint 5 1. Complaint 5 alleges that the Practitioner should be found guilty of misconduct pursuant to s 139E of the National Law. As counsel for the HCCC correctly submits, a number of principles apply when the Tribunal is called upon to consider what conduct amounts to professional misconduct. Counsel submits and the Tribunal agrees that the following principles apply: 1. That there is no category of unsatisfactory professional conduct which is not capable of forming professional misconduct; [28] 2. The traditional common law definition of "professional misconduct" is that conduct "which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency"; [29] 3. Professional misconduct may be made out by a deliberate departure from professional standards or "such seriousness negligence as although not deliberate to portray indifference and an abuse of the privileges which accompany registration"; and [30] 4. The gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from proper standards. [31] 1. The evidence before Tribunal discloses a breakdown in the Practitioner's apparently complaint-free practice and behaviour as a Registered Nurse from about the time of the breakdown of her marriage in 2017. Whether or not that circumstance was the cause or the primary cause of the events which have followed, the Tribunal cannot determine and is not required to determine. Those events may evoke some sympathy but they do not detract from the seriousness of the Practitioner's conduct. In particular: 1. The removal of a drug from the Practitioner's place of employment for personal use; 2. The failure of the Practitioner to abide by conditions to which her registration was subject; and 3. The Practitioner's failure to notify the Board of the criminal charges. 1. Each of these failures was, the Tribunal finds, a serious departure from the standards of conduct expected and required of a Registered Nurse. The Tribunal finds Complaint 5 established. Complaint 6 1. The HCCC by Complaint 6 alleges that pursuant to s 144(d) of the National Law, the Practitioner has an impairment within the meaning of s 5 of the National Law being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the Practitioner's capacity to practice nursing. 2. Section 5 of the National Law relevantly defines "impairment" as follows: Impairment, in relation to a person means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practice the profession; … 1. Taken together, the particulars relied upon by the HCCC in relation to this complaint relate to the Practitioner's diagnosis as suffering from major depression, the probability that the Practitioner has an alcohol-use disorder and a misappropriation of insulin for personal use as already referred to. 2. The Tribunal notes that in determining whether or not a practitioner has impairment within the meaning of the section, that impairment may be demonstrated by evidence of a deficiency at a particular time combined with the absence of any evidence of any improvement. The Tribunal's finding of impairment does not require it to make a finding as to a particular diagnosis. The question is whether the evidence demonstrates that a practitioner is afflicted by a condition that is detrimental or prejudicial to the orderly conduct of his or her mental or physical duties as a health practitioner. [32] 3. The HCCC relies upon the report of Dr Jill Reddan. [33] Dr Reddan opined that the Practitioner was impaired within the meaning of the National Law, had a history of alcohol-use disorder (specifically alcohol abuse) and likely suffered a major depressive episode during 2019. Dr Reddan noted that the alcohol-use disorder was a disorder prone to recurrence. 4. As counsel for the HCCC points out and the Tribunal has accepted, the Practitioner has disengaged with the regulatory process and failed to attend appointments with respect to her ongoing treatment. Dr Samuel in his reports [34] noted that although he had not had the opportunity to assess the Practitioner, "[t]here is a large amount of clinical evidence to suggest that she does have an impairment within the meaning of the National Law, namely, a problem of major depression and alcohol misuse." 5. The Tribunal is satisfied and finds that the Practitioner was relevantly impaired at the time she was interviewed by Dr Reddan in October 2019. The absence of any evidence of improvement since that time together with the evidence of Dr Samuel enables the Tribunal to find and the Tribunal does find that the Practitioner has presently impairment within the meaning of s 5 of the National Law. Complaint 6 is therefore established. Complaint 7 1. Complaint 7 as pleaded alleges that: "The [P]ractitioner is not competent within the meaning of section 139(a) of the National Law in that she lacks the mental capacity to practise as a nurse." 1. That section is, however, to be read conjunctively with s 139(b) which relates directly to a practitioner's communication skills including an adequate command of the English language. The section reads as follows: 139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person— (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practise of the profession, including an adequate command of the English language. 1. Counsel for the HCCC, however, addressed the Tribunal on the basis that the relevant section of the National Law with respect to the complaint is s 144(c) rather than s 139(a) as included in the Amended Complaint. The Tribunal agrees. It is also highly likely that if the section now addressed, s 144(c) of the National Law, had been included in Complaint 7 in lieu of s 139(a) in the Amended Complaint provided to the Practitioner, she would not have altered her position. The Tribunal must be satisfied that however slight the difference might be between the two sections in bringing to the Practitioner's notice the substance of the HCCC's complaint, and how slight the prospect might be that the change would have affected her decision to take part in proceedings, the Tribunal should determine Complaint 7 as re-framed. A different result might well have flowed had the Amended Complaint referred to s 144(c) of the National Law. That is so, particularly having regard to the Tribunal's findings with respect to Complaint 6. But that is not the case and Complaint 7 as a matter of procedural fairness is rejected. Protective Orders 1. The Tribunal has found that the Practitioner is guilty of professional misconduct and in addition, having found Complaint 6 satisfied, that the Practitioner has an impairment within the meaning of s 5 of the National Law. That is an impairment which pursuant to s 144(d) of the National Law detrimentally affects or is likely to detrimentally affect the Practitioner's capacity to practise the profession of nursing. The Tribunal must therefore consider the Protective Orders which appropriately reflect these findings. 2. The Tribunal's paramount consideration is the protection of the health and safety of the public. The Tribunal may suspend the Practitioner's registration for a specified period or cancel the Practitioner's registration pursuant to s 149C(1)(b) of the National Law. The AHPRA Evidentiary Certificate provided to the Tribunal notes the Practitioner's registration to be suspended. Section 176D of the National Law therefore applies and provides as follows: 176D Effect of suspension [NSW] (1) If a person's registration as a health practitioner or a student issuspended under this law, the person is taken during the period of suspension not to be registered under this law, other than for the purposes of this Part. 1. Section 176D falls within Part 8 of the National Law dealing with health, performance, and conduct, which is the part under which the present proceedings are brought. In Health Care Complaints Commission v Elliott, [35] the Tribunal noted that the effect of s 176D was that the disciplinary powers of the Tribunal applied to a suspended practitioner (who in that case as here had been suspended some years before the proceedings were heard) as though they were registered. 2. The Tribunal is therefore in a position to make orders in the form sought by the HCCC. Those orders seek the cancellation of the Practitioner's registration and an order that she be prohibited from making an Application for Review for a period of two to three years. 3. The findings the Tribunal has made make it both necessary and appropriate that orders be made reflective of the primary obligation upon the Tribunal to protect the public. The orders, while not punitive, need also to reflect the significance of the departure by the Practitioner from the conduct necessarily to be expected of members of the nursing profession. It follows that the Tribunal is satisfied and will make orders in terms sought by the HCCC. The term during which the Practitioner will be prohibited from seeking to review the cancellation of her registration will two years. Costs 1. Pursuant to clause 13 of Schedule 5D of the National Law, the general rule is that costs follow the event. The Tribunal finds no reason in this case to depart from the general rule and an order that the Practitioner pay the HCCC's costs as agreed or taxed will be made. Orders 1. That pursuant to s 149C(1)(b) of the National Law, the Practitioner's registration is cancelled. 2. That pursuant to s 149C(7) of the National Law, an Application for Review of the order cancelling the Practitioner's registration pursuant to Division 8 of the National Law may not be made for a period of two years from the date of these Orders. 3. That pursuant to s 149C(5)(a) of the National Law, the Practitioner is prohibited from providing any health services until registered as a health practitioner. 4. That pursuant to clause 13 of Schedule 5D of the National Law, the Practitioner pay the costs of the Health Care Complaints Commission as agreed or assessed. 5. A non-publication order under s.64 of the Civil Administrative Tribunal Act 2013 (NSW) be made prohibiting publication of the diagnosis of the Practitioner and the immediate cause of the condition diagnosed upon her admission to Lismore Base Hospital on 14 January 2019. ********** Amendments Coversheet amended – deleted one catchword. Paragraph 7 amended – part of second sentence redacted. Paragraph 16 amended – Particular 5, and part of Particular 4, of Complaint 6 redacted. Paragraph 39 amended – second last sentence redacted. Order 5 added Endnotes 1. Exhibit 3, Tab 62 at p.2. 2. Exhibit 3, Tab 12. 3. Exhibit 3, Tab 65. 4. Health Care Complaints Commission v Dr DWF [2019] NSWCATOD 78 at [70]. 5. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; [1997] NSWSC 29; Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40. 6. Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. 7. Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at [637]. 8. See s 38(2) of the Act and Clause 2 of Schedule 5D of the National Law. 9. Briginshaw v Briginshaw (1938) 60 CLR 336; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]. 10. Counsel's Submissions at par 13. 11. Exhibit 3 at Tabs 68, 69 and 70. 12. Exhibit 3 at Tab 71. 13. Exhibit 3 at Tabs 66 to 67, 69 and 71. 14. Exhibit 4, Tab 3. 15. Exhibit 1, Tabs 91 to 92. 16. Statements of RN Kelly and RN Austin, respectively at Exhibit 1, Tab 47 and Tab 44. 17. Exhibit 3, Tab 29. 18. Exhibit 3, Tab 92 at pp.6 of 12. 19. Exhibit 3, Tab 23 at pp.4-5. 20. Exhibit 3, Tab 60. 21. Exhibit 3, Tab 60 at p.4. 22. Exhibit 4, Tab 13. 23. Exhibit 1, Tab 63 24. Exhibit 3, Tab 45. 25. [2019] NSWCATOD 25 at 67-69. 26. (1995) 183 CLR 501 at 514-515, citing Grove v Favel (1986) 43 SASR 410 at 420. 27. For example, Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at 54-55. 28. Chen v Health Care Complaints Commission (2017) 95 NSWLR 335; [2017] NSWCA 186 at 18-21. 29. Allinson v General Council of Medical Education and Registration [1984] 1 QB 750. 30. Pillai v Messiter (No 2) (1989) 16 NSWLR 197. 31. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWSC 29. 32. Health Care Complaints Commission v Collins [2021] NSWCATOD 132 at [49]. 33. Exhibit 3, Tab 62. 34. Exhibit 3, Tab 63 and Exhibit 4, Tab 1. 35. (2017) NSWCATOD 20 at 12. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 16 August 2023 - 16 August 2023 – Coversheet amended – deleted one catchword. 16 August 2023 – Paragraph 7 amended – part of second sentence redacted. 16 August 2023 – Paragraph 16 amended – Particular 5, and part of Particular 4, of Complaint 6 redacted. 16 August 2023 – Paragraph 39 amended – second last sentence redacted. 16 August 2023 – Order 5 added 16 August 2023 - Coversheet amended – deleted one catchword. Paragraph 7 amended – part of second sentence redacted. Paragraph 16 amended – Particular 5, and part of Particular 4, of Complaint 6 redacted. Paragraph 39 amended – second last sentence redacted. Order 5 added 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: 16 August 2023