Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v GBX [2023] NSWCATOD 143 Hearing dates: 03 July 2023 Date of orders: 06 October 2023 Decision date: 06 October 2023 Jurisdiction: Occupational Division Before: R Lethbridge SC, Senior Member T-M Anderson, Senior Member E Moore, Senior Member M Maher, General Member Decision: 1. That pursuant to ss.149C(1)(b) and 149C(1)(c) of the National Law, the Respondent's registration to practice as a Registered Nurse is cancelled from the date of this order. 2. That pursuant to ss.149C(7) of the National Law, the Respondent may not make an application under Division 8 of the National Law for a period of two (2) years from the date of this order. 3. That the Respondent pay the Commission's costs as agreed or assessed pursuant to Clause 13 of Schedule 5D of the National Law. 4. That pursuant to s.64 of the Civil and Administrative Tribunal Act 2013, disclosure of the name or names of the persons listed in the Schedule attached to the Amended Complaint filed by the Commission on 30 June 2023 is prohibited. 5. That pursuant to s.64 of the Civil and Administrative Tribunal Act 2013, publication of the name of the Respondent is prohibited and further publication of the Respondent's personal health information contained in documents filed with the Tribunal and/or contained in documents placed before the Tribunal in evidence is prohibited and access to those documents is restricted to the parties and their legal representatives. Catchwords: Health – occupational division, nursing, criminal conviction – larceny, prescription pads from employer – forgery – professional misconduct Cases Cited: Health Care Complaints Commission v Bakarich [2019] NSWCATOD 158 at [61]. Health Care Complaints Commission v Chen [2021] NSWCATOD 210 at [40]. Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [42]. NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114]. Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) GBX (Respondent) Representation: Counsel: K Sharma (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Nurses & Midwives Association (Respondent) File Number(s): 2023/00053002 Publication restriction: That pursuant to s.64 of the Civil and Administrative Tribunal Act 2013, disclosure of the name or names of the persons listed in the Schedule attached to the Amended Complaint filed by the Commission on 30 June 2023 is prohibited. That pursuant to s.64 of the Civil and Administrative Tribunal Act 2013, publication of the name of the Respondent is prohibited and further publication of the Respondent's personal health information contained in documents filed with the Tribunal and/or contained in documents placed before the Tribunal in evidence is prohibited and access to those documents is restricted to the parties and their legal representatives. REASONS FOR DECISION Introduction 1. On 16 February 2023, the Health Care Complaints Commission (the Commission) commenced disciplinary proceedings in the Tribunal seeking orders under the Health Practitioner Regulation National Law (NSW) 2009 (the National Law) against Respondent (the Practitioner). The Practitioner is a Registered Nurse who was first registered on 15 December 1997. 2. The Commission alleges that the Practitioner has been guilty of unsatisfactory professional conduct and/or professional misconduct in her practice of nursing. The Commission further relies upon the fact, undisputed before the Tribunal, that the Practitioner has been subject to a relevant criminal conviction. Lastly, the Commission contends that the Practitioner has a relevant impairment being an impairment within the meaning of s.5 of the National Law that detrimentally affects or is likely to detrimentally affect the Practitioner's capacity to practice the profession of nursing. All complaints arise under the provisions of Part 8 of the National Law. 3. The Practitioner's conduct leading to and the circumstances surrounding the Commission's decision to commence proceedings arise from criminal charges and later the Practitioner's conviction of criminal offences on 24 March 2022 at the Local Court of New South Wales at Gosford. The Practitioner pleaded guilty to those offences which are discussed in more detail later in these Reasons. Background 1. The Evidentiary Certificates tendered by the Commission and provided by the Australian Health Practitioner Regulation Agency (AHPRA) and the Nursing and Midwifery Council of New South Wales (NMC), disclose that in 1997 the Practitioner obtained a Bachelor of Nursing from Avondale College of Higher Education. She was first registered to practice on 15 December 1997. The written Reasons for Decision of Proceedings under s.150 of the National Law note that the Practitioner commenced working for the Central Coast Local Health District in 1998. She completed a new graduate program between 1998 and 1999 before working on an in-patient neurological ward for a year until 2000. From 2000, the Practitioner worked in renal services on the dialysis unit and then in 2005 became a Renal Clinical Nurse Consultant. 2. In or around April 2020, the Practitioner suffered a back injury. A workers compensation claim was lodged with respect to the injury, that claim being closed by the insurer and subsequently as a consequence of agitation by the Practitioner re-opened in late 2021. 3. On 5 October 2021, the NMC received a self-notification from the Practitioner advising her hospitalisation. On 5 November 2021, the NMC received a further notification from the Practitioner's employer alleging that between 3 July 2021 and 3 August 2021, the Practitioner had engaged in inappropriate and fraudulent activity including accessing and altering CCLHD external prescriptions and obtaining medication unlawfully. On 24 December 2021, a third notification was received from the Pharmaceutical Regulatory Unit reporting that its investigation had uncovered 36 prescriptions with associated repeats that had been dispensed in the Practitioner's name and that none of the prescribers of the prescriptions presented by the Practitioner were responsible for issuing those prescriptions. The prescriptions, it was claimed, had been identified by the investigating officer to be forgeries. 4. On 6 January 2022, the Practitioner was charged at Gosford with the offences of: 1. 37 counts of forge / alter prescription for prescribed restricted substance contrary to s.16(2) of the Poisons and Therapeutic Goods Act 1966 (PTGA); 2. 1 count of 'larceny' contrary to s.117 of the Crimes Act 1990. 1. On 14 January 2022, the NMC imposed conditions on the Practitioner's registration which, among other things, required that she not work as a registered / enrolled nurse until reviewed by the NMC. 2. On 20 January 2022, the NMC advised that the previously imposed conditions were to be amended in relation to the Practitioner as follows: 1. Not to work as a registered nurse / enrolled nurse until reviewed by the Nursing and Midwifery Council of New South Wales. 2. To attend hair drug testing as directed by the Nursing and Midwifery Council of New South Wales. The test will require head hair with a minimum length of 3 cm and: (a) comply with any instructions provided by the Council in relation to hair testing; (b) the costs of this assessment will be met by the Council. 3. To attend for review by a Council appointed neuropsychologist. The professional costs of the review pursuant to this condition will be met by the Council. 1. On 24 March 2022, as already set out above, the Practitioner pleaded guilty and was convicted of 1 count of each of the following offences: 1. forge / alter prescription for prescribed restricted substance contrary to s.16(2) of the PTGA; 2. larceny, contrary to s.117 of the Crimes Act. 1. The remaining 36 counts of forge / alter prescription for a prescribed restricted substance were taken into account in relation to sentencing. On the same date, 24 March 2022, with respect to each of the two offences for which the Practitioner was convicted, she was sentenced to a Community Service Correction Order for a period of 18 months to commence on that same date. Participation in the Proceedings 1. The Commission placed evidence before the Tribunal and the Tribunal accepts that although aware of it, the Practitioner failed to attend a directions hearing before the Tribunal on 3 March 2023. As a consequence, the matter was adjourned for further directions to 17 March 2023. An Affidavit of Ms Joan Lee, a Commission employee, dated 16 March 2023, sets out attempts made to notify the Practitioner of the date of the adjourned directions hearing. Notwithstanding those attempts, there was no appearance by the Practitioner on 17 March 2023. On that date, orders were made for preparation for hearing. The matter was listed for hearing on 3 July 2023 that date and on 3 April 2023, the Registrar issued a Notice of Listing confirming the hearing date. 2. To this point, the Practitioner had not engaged in the proceedings. However, an Affidavit sworn by Mr Gavin Bellamy, a process server, dated 16 June 2023, establishes that the Practitioner was served on 14 June 2023 with documents provided by the Commission which included the Tribunal's Orders made 17 March 2023 and the Notice of Listing for Hearing dated 3 April 2023. We infer that personal service led the Practitioner, belatedly, to take steps to engage in the proceedings. That is because the Registrar was contacted by email on 20 June 2023 by a legal officer in the employ of the NSW Nurses & Midwives Association to inform the Tribunal that on 16 June 2023, the Association had received instructions to act on behalf of the Practitioner. 3. On 27 June 2023, a Reply to the Commission's Application for Disciplinary Findings and Complaint was filed on the Practitioner's behalf by a legal officer in the employ of the Nurses & Midwives Association who provided its address as the address for service for the Practitioner in the proceedings. 4. Those documents became Exhibit 3 and included a medical certificate on the letterhead of Reliance Medical Practice dated 30 June 2023 and signed by Dr Thushani Dassanayake which read as follows: THIS IS TO CERTIFY THAT Respondent (dob) has a back injury and will be unfit to attend to the Court on 3 July 2023. 1. Consistent with the content of that certificate, the Respondent did not attend the hearing. A written submission at Tab 2 of Exhibit 3 was, however, made on her behalf by Ms Robertson, the legal officer in the employ of the NSW Nurses & Midwives Association who also took instructions from the Practitioner and prepared her Reply. [19] of that submission is in the following terms: The Respondent is aware the Tribunal will be making a decision in her absence and she sincerely apologises to the Tribunal for her non-attendance as she is currently unwell. 1. The written submission as with the Reply filed on the Respondent's behalf is dated 27 June 2023. However, by an email dated 29 June 2023, under the hand of Mr Jordan Mitchell, a legal officer in the Commission's employ, notice was given of the Commission's intention to seek leave to amend the orders sought in its Application for Disciplinary Findings dated 15 February 2023 and further to seek to amend detail contained in Particulars 2, 9 and 11 of Complaint 2. In a response to that email on the same date, Ms Robertson, the Practitioner's legal representative replied in the following terms: The Respondent consents to the amendments to the Complaint as set out in your letter dated 29 June 2023 and she does not wish to amend her Reply. The Respondent admits all the complaints and particulars as amended. 1. An Amended Application for Disciplinary Findings and Orders and an Amended Complaint both dated 30 June 2023 and containing the amendments proposed in Mr Jordan's email were provided to the Tribunal. Leave to rely upon them was granted and the hearing proceeded on the basis of the contents of those documents. The Commission's Amended Complaint and the Respondent's Reply 1. The Commission's Amended Complaint comprises five (5) separate complaints each of which is particularised. The Practitioner in her Reply admits each of the complaints alleged by the Commission and, with one exception, each of the particulars set out to support each of those complaints. In relation to the first particular supporting Complaint 2 being the particular not admitted by the Practitioner, the Commission alleges that: 1. Between 1 January 2021 and 24 September 2021, the Practitioner stole three (3) external prescription pads belonging to Gosford Hospital. 2. In her Reply to Particular 1 of Complaint 2, the Practitioner states: The Respondent admits between January 2021 and 24 September 2021 the Practitioner stole three external prescription pads belonging to Gosford Hospital. 1. It follows that the substance of the particular is conceded and the matter at issue of little significance. The admissions made by the Practitioner allows the Tribunal to set out in short form below each of the complaints in the Commissions' Amended Complaint omitting for the most part the detailed particulars provided to support each of those complaints. Complaint 1 Pursuant to s.144(a) of the National Law, the Practitioner was convicted of a criminal offence in New South Wales. 1. The particulars to this complaint rely upon the criminal charges referred to earlier of which the Practitioner was convicted on 24 March 2022 in the Local Court of New South Wales at Gosford. Complaint 2 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. 1. The particulars to this complaint set out each of the 37 fraudulent prescriptions referred to in the criminal charges brought against the Practitioner and taken into account by the Court in the sentence imposed upon her. Complaint 3 The Practitioner is guilty of unsatisfactory professional conduct under s.139B(1)(b) of the National Law in that the Practitioner has contravened s.130(1) of the National Law. 1. The fact relied upon in the Commission's particulars to support this complaint is that the Practitioner failed to notify the National Board within 7 days of being convicted of the offences already referred to. Complaint 4 The Practitioner is guilty of unsatisfactory professional conduct under s.139E of the National Law in that the Practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration, and/or 2. engaged in one or more 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. 1. The particulars relied upon are the particulars provided in support of Complaints 2 and 3 in the Commission's Amended Complaint. Complaint 5 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 the profession of nursing. 1. The particulars to this complaint assert impairments of memory disorder secondary to epilepsy; post-traumatic stress disorder and anxiety. The orders sought by the Commission and the Practitioner 1. In its Amended Application for Disciplinary Findings and Orders, the Commission seeks the following orders: 1. An order prohibiting the disclosure of the name/s of the persons listed in the Schedule to the attached Complaint under s.64 of the Civil and Administrative Tribunal Act 2013; 2. Cancellation of the Respondent's registration, pursuant to s.149C(1)(b) and/or s.149C(1)(c) of the National Law with a non-review period of 18 months to 2 years; 3. An order that the Respondent pay the Commission's costs as agreed or assessed under Clause 13 of Schedule D of the National Law. 1. The Commission also seeks a non-publication order in relation to the persons referred to in the annexures to its Amended Complaint. In the submissions made on her behalf at [18], the following outcome is submitted as appropriate, namely: … It is submitted that the following proposed protective orders would satisfy the guiding principles as s.3A(1) of the National Law and the Tribunal's duty in its exercise as a protective jurisdiction: (i) Reprimand; and (ii) Suspension with conditions similar to the current suspension and conditions already imposed the Respondent's registration; and (iii) That the Nursing and Midwifery Council of NSW is the appropriate review body for the purpose of a review of any conditions. 1. At [20], it is submitted on behalf of the Practitioner that a non-publication order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 be made in relation to the name of the Practitioner and further in relation to the non-publication of and restricted access to the Practitioner's personal health information contained in the Commission's material. 2. The concluding submission made on the Practitioner's behalf notes that she has no objection to a costs order or the non-publication order sought by the Commission. The parties' evidence 1. The Commission relied upon the following documents: 1. A bundle of documents comprising 587 pages which became Exhibit 1; 2. A supplementary bundle of documents provided to the Tribunal under cover of a letter dated 23 June 2023 which became Exhibit 2; and 3. Submissions by counsel instructed by the Commission dated 30 June 2023 and admitted as an aide memoir which became Exhibit 4. 1. The Practitioner relied upon a bundle of documents filed in the Tribunal on 27 June 2023 which became Exhibit 3. That bundle comprised the Reply filed on the Practitioner's behalf, the medical certificate and submissions already referred to. In addition, Tab 3 in that bundle comprised an email submission by the Practitioner dated 8 April 2022 and addressed to the Acting General Manager of the Gosford and Woy Woy Hospitals. Discussion 1. As we have said, the Practitioner has admitted each of the Commission's 5 Complaints. Further, in doing so with one exception which we have already noted is of no moment, the Practitioner has also admitted the facts and circumstances comprising the particulars alleged by the Commission with respect to each complaint. Leaving aside those admissions, counsel for the Commission, Mr Sharma, in his written submission contends that each complaint is also established on the evidence now before the Tribunal. The Tribunal agrees with that submission. The submissions made on behalf of the Practitioner rely upon her admissions as sufficient to establish each complaint and do not address the evidence before the Tribunal which would otherwise support that conclusion. The Practitioner's admissions and the independent evidence before the Tribunal pointed to by Mr Sharma leave us comfortably satisfied that each of the particulars is established and therefore, that each complaint is made out and the Tribunal so finds. 2. In reaching its decision that the Practitioner is guilty of unsatisfactory professional conduct, the Tribunal was particularly concerned by the particulars to Complaint 2 which established that the Practitioner had on multiple occasions forged prescriptions and that that had been made possible by her access to prescription pads through her employment as a nurse in the health care system. In this regard, Mr Sharma submitted and the Tribunal agrees that "… by reason of her considerable experience as a nurse [the Practitioner] was well aware of the wrongfulness of her conduct. It was conduct which continued over a considerable period of time. 3. In finding that the Practitioner is guilty of professional misconduct, the provisions of s.139E of the National Law are satisfied. That section provides that professional misconduct 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. The significant factor which changes unsatisfactory professional conduct to professional misconduct is that it is sufficiently serious to justify suspension or cancellation of a practitioner's registration. [1] Among the matters which may be considered are the deliberateness of the conduct in assessing seriousness. [2] 2. In his written submission, Mr Sharma notes that the Respondent stole prescription pads from Gosford Hospital where she worked. That from about February 2021 to September 2021, she forged prescriptions and had dispensed to her Schedule 4 and 4D drugs. That conduct involved deliberate and repeated wrongdoing which the Practitioner took steps to endeavour to prevent it being discovered. For example, she forged prescriptions under the names of a number of medical practitioners and negotiated those prescriptions at differing pharmacies. 3. In relation to the impairments which the Practitioner concedes, these are also established on the evidence before the Tribunal. In particular, the reports of Ms McMillan (clinical neuropsychologist) [3] and Dr Messner (consultant psychiatrist). [4] Ms McMillan referred to the Practitioner experiencing, "extremely severe symptoms of depression and anxiety". Dr Messner found that the Practitioner was experiencing significant memory problems and had symptoms of post-traumatic stress disorder and anxiety. Both experts concluded that the Practitioner had an impairment within the meaning of s.5 of the National Law. What are the appropriate protective orders? 1. As we have said, the Commission seeks and the Practitioner concedes that protective orders are appropriate. They disagree about the terms of those orders. 2. The Tribunal must consider in the exercise of its functions the protection of the health and safety of the public which s.3A of the National Law provides must be its paramount consideration. On behalf of the Commission, Mr Sharma submits that the protective purpose extends beyond the immediate safety of patients from the Practitioner. It includes the public interest in protection from similar misconduct or incompetence from other practitioners (general deterrents) as well as upholding public confidence in the high standards of health practitioners (by signalling that those whose conduct does not meet the required standards will not be permitted to practice). [5] 3. Further, Mr Sharma submits on behalf of the Commission that where a person has been convicted, a relevant question is whether the circumstances of the offence are such as to "render the practitioner unfit in the public interest to practice the practitioner's profession". In undertaking that assessment, he submits that the Tribunal should have regard to circumstances that include, "the actions and intentions of the practitioner constituting the physical and mental elements of the offence", as well as, "the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances". [6] 4. On behalf of the Practitioner, Ms Robertson submits the Respondent has made frank admissions to all the Complaints and the particulars of the Complaints. That whilst it is open to the Tribunal to make an order to cancel the Respondent's registration, it is not the only option available. [7] 5. Ms Robertson further submits, relying upon authority, that the admission by the Practitioner of conduct constituting "professional misconduct" which concedes conduct that is of a sufficiently seriousness nature to justify suspension or cancellation of a practitioner's registration; those are not the only alternatives. [8] The proper outcome, Ms Robertson submits, is the outcome which is the least serious outcome that is reasonably necessary to protect the health and safety of the public. [9] 6. Having carefully considered the submissions made on behalf of each of the parties and the other relevant evidence they have each put before us the Tribunal, accepts the submissions put on behalf of the Commission as to the proper outcome. This is essentially but not only because the Practitioner's conduct in stealing prescription pads and forging prescriptions was deliberate and repeated over a period of many months where the evidence clearly establishes that she took steps to endeavour to ensure that her dishonesty would not come to light. The evidence before the Tribunal further indicates that during the period she was able to access medications by reason of her deceit, the Practitioner ceased to attempt to obtain it by legal means. 7. The Tribunal accepts that the Practitioner is remorseful but that does not equate to the Practitioner obtaining insight into the significance of her breach of ethical standards and the conduct expected by the public of the nursing profession. 8. The Tribunal will make an order in the terms sought by the Commission in Order 2 of the Amended Application for Disciplinary Findings and Orders. The non-review period will be two (2) years. Non-Publication Orders 1. An order for non-publication was made on the Commission's Application on 17 March 2023. As a matter of abundant caution, the Commission seeks that that order be restated in relation to the persons referred to in the Schedule annexed to the Amended Complaint. The Practitioner does not oppose the making of that order and consequently it will be made. 2. A non-publication order is also sought on the Practitioner's behalf. Noting that the Commission does not wish to be heard in relation to that order and the fact that the Tribunal finds the submissions in support of it persuasive, an order in terms sought by the Practitioner for non-publication will also be made. Costs 1. The Commission seeks an order for costs and that order is not opposed by the Practitioner. Consequently, the orders sought by the Commission will be made. Orders 1. That pursuant to ss.149C(1)(b) and 149C(1)(c) of the National Law, the Respondent's registration to practice as a Registered Nurse is cancelled from the date of this order. 2. That pursuant to ss.149C(7) of the National Law, the Respondent may not make an application under Division 8 of the National Law for a period of two (2) years from the date of this order. 3. That the Respondent pay the Commission's costs as agreed or assessed pursuant to Clause 13 of Schedule 5D of the National Law. 4. That pursuant to s.64 of the Civil and Administrative Tribunal Act 2013, disclosure of the name or names of the persons listed in the Schedule attached to the Amended Complaint filed by the Commission on 30 June 2023 is prohibited. 5. That pursuant to s.64 of the Civil and Administrative Tribunal Act 2013, publication of the name of the Respondent is prohibited and further publication of the Respondent's personal health information contained in documents filed with the Tribunal and/or contained in documents placed before the Tribunal in evidence is prohibited and access to those documents is restricted to the parties and their legal representatives. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar Endnotes 1. Health Care Complaints Commission v Chen [2021] NSWCATOD 210 at [40]. 2. Health Care Complaints Commission v Bakarich [2019] NSWCATOD 158 at [61]. 3. Exhibit 1 at pp.97-104. 4. Exhibit 1 at pp.105-113. 5. Exhibit 4 at [22] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. 6. Exhibit 4 at [26] and Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [42]. 7. Exhibit 3, Tab 2 at [13]. 8. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. 9. Exhibit 3, Tab 2 at [20] and NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114]. 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: 06 October 2023