Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v GKW [2024] NSWCATOD 113 Hearing dates: 28 June 2024 Date of orders: 31 July 2024 Decision date: 31 July 2024 Jurisdiction: Occupational Division Before: S McIllhatton, Senior Member N Sharma, Senior Member D Walker, Senior Member A Gray, General Member Decision: (1) Under s 149C(1)(a) of the Health Practitioner Regulation National Law (NSW), GKW's registration is cancelled. (2) Under s 149C(7) of the Health Practitioner Regulation National Law (NSW), an application for review may not be made for a period of 18 months from the date of this decision. (3) If GKW is not registered then, in lieu of Order 1, under s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), if GKW were still registered the Tribunal would have cancelled her registration. (4) If GKW is not registered then, in lieu of Order 2, under s 149C (4)(b) of the Health Practitioner Regulation National Law (NSW), GKW is disqualified from being registered for 18 months from the date of this decision. (5) If GKW is not registered then, under s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the National Board is required to record the fact that if GKW were still registered, the Tribunal would have cancelled her registration in the National Register kept by the Board. (6) GKW is prohibited from providing any health service as defined in section 4 of the Health Care Complaints Act 1993 (NSW) until such time as she is a registered health practitioner under s 149C(5) of the Health Practitioner Regulation National Law (NSW). (7) GKW is to pay the costs of the Health Care Complaints Commission as agreed or assessed. Catchwords: HEALTH — professional registration and discipline — impairment — competence — costs Legislation Cited: Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW), ss 3(2)(a), 3B, 5, 139(a), 144(c), 144(d), 149A, 149B, 149C, 150, 165J(3), cl 7 of Sch 5D Civil and Administrative Tribunal Act 2013 (NSW), s 64 Cases Cited: Council of the Law Society of NSW v CZD [2017] NSWCATOD 31 GKN v Medical Council of NSW [2024] NSWCATOD 87 Grant v Health Care Complaints Commission [2003] NSWCA 73 Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) GKW (Respondent) Representation: Counsel: G Marsden (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (no appearance) File Number(s): 2023/00269961 Publication restriction: Under clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) the publication or disclosure of the Respondent's name is restricted to the parties and their legal representatives, and to any other person or body where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings, and is otherwise prohibited. REASONS FOR DECISION Introduction 1. For reasons that are explained at the end of this decision we have pseudonymised the Respondent's name. 2. The Health Care Complaints Commission ("the Commission") made an application to the Tribunal for disciplinary findings and orders against the Respondent ("GKW") under the Health Practitioner Regulation National Law (NSW) ("the National Law"). The application is based upon a complaint filed on 24 August 2023. The Complaint was amended on 26 April 2024 and was further amended on 3 June 2024 ("the Complaint"). 3. Prior to the hearing GKW was represented by the NSW Nurses and Midwives' Association ("the Association"). Amongst documents filed on behalf of GKW were a reply to the original complaint dated 24 August 2023, two medical reports from Dr Sundakov, Consultant Psychiatrist, dated 8 September 2022 and 13 October 2023 (filed 24 November 2023), an application for non-publication and non-disclosure of GKW's name (filed 12 April 2024) and a reply to the Complaint as further amended (filed 12 June 2024). 4. Since the lodgement of the application by the Commission in August 2023, GKW's mental health has been unstable. She has a diagnosis of psychotic illness and in the period before the hearing required two hospital admissions for depression and suicidality. 5. The essence of the Complaint that is now pressed is that GKW suffers an impairment which affects her capacity to practice nursing safely. The reply to the Complaint as further amended which was filed on behalf of GKW admitted the contents of the further amended Complaint. 6. At the commencement of the hearing, Mr Thompson, the legal representative for the Association, told the Tribunal that GKW had contacted his office earlier that morning and advised that she would not be attending the hearing. Mr Thompson was unaware as to the circumstances of GKW's inability to attend the hearing. In view of this, he indicated he had no instructions to appear on behalf of GKW at the hearing or to request an adjournment. He noted that all previous documents filed by GKW including the application for non-publication and non-disclosure were based on instructions. In the circumstances he sought and was granted leave to withdraw from the proceedings. 7. Section 165J(3) of the National Law allows the Tribunal to proceed with the hearing in the absence of a practitioner provided that notice of the hearing has been given. We are satisfied that GKW has been given notice of the hearing and has declined the opportunity to attend. GKW did not contact the Tribunal directly and no request for an adjournment of the hearing was made to the Tribunal. Accordingly, the hearing proceeded in the absence of GKW. 8. Although GKW did not attend the hearing, we considered all material which had been supplied on her behalf prior to the hearing. The request for non-disclosure and non-publication of her name was determined in her favour at the hearing. The reasons for making those orders appear at the end of this decision. 9. The hearing proceeded to finality as a combined stage one, consideration of the evidence to substantiate the Complaint; and in the light of the Complaint being proved, stage two, being what disciplinary orders should be made. 10. We are satisfied that GKW was on notice of the substance of the orders sought by the Commission. The orders asked for are contained in the application filed on 24 August 2023. More recently, by letter dated 18 June 2024, the Commission wrote to the Association advising that at the hearing it would be seeking orders of cancellation of GKW's registration with a non-review period of 1-2 years, and a prohibition order prohibiting GKW from providing a health service and costs. 11. In addition to the documentary evidence previously filed on behalf of GKW, the Commission adduced two bundles of documentary evidence including the transcript and decision arising from a hearing under s 150 of the National Law, work, medical and clinical records relevant to GKW (filed 1 and 5 December 2023), additional documents produced under summons comprising records for GKW held by South Western Sydney Local Health District ("SWSLHD") community mental health team, hospital admissions for GKW, material from Odyssey House about their interactions with GKW (filed 24 April 2024), and a supplementary bundle of documents comprising of medical reports from Dr Sundakov and Dr Samuels (Consultant Psychiatrists) as to GKW's impairment and competence (filed 29 May 2024). 12. At the hearing oral evidence was given by Dr Sundakov and Dr Samuels. 13. The standard of proof in this matter is proof on the balance of probabilities. Background 1. GKW was registered as an enrolled nurse in 2009. The evidentiary certificate produced by the Commission from the Australian Health Practitioner Regulatory Agency ("AHPRA") as to GKW's registration is dated 26 April 2024. It shows that GKW is currently registered but is subject to a condition not to work as an enrolled nurse. 2. At the time of the hearing, it was unclear whether GKW had sought registration for the current registration period. This was raised with the Commission at the hearing. As this potentially affected the form of any orders the Commission was seeking the Tribunal to make, it was asked to confirm after the hearing in writing whether GKW was registered or not. 3. After the hearing, the Commission provided the Tribunal with an internet link to the Register of Practitioners AHPRA's webpage. The Tribunal was provided with nothing more from either the Commission or AHPRA to confirm GKW's registration status. On accessing this link no record of GKW could be found. In view of this we have proceeded on the basis that GKW's registration status is unclear. 4. Section 150C proceedings were taken against GKW by the NSW Nursing and Midwifery Council ("the Council") on 25 July 2022. These proceedings varied conditions imposed by the Council on GKW's registration made in an earlier s 150 decision. The conditions as varied and placed on GKW's registration were that she not work as an enrolled nurse until reviewed by the Council, and to attend for review by a Council appointed psychiatrist. The Complaint 1. The Complaint against GKW as originally filed contained three individual complaints. 2. The ground for Complaint One was unsatisfactory professional conduct in that GKW had engaged in improper or unethical conduct relating to the practice of nursing. This complaint was made under s 139B(1)(l) of the National Law. It was alleged that around January 2022 to February 2022 GKW inappropriately took a photo of a patient record with her personal mobile phone. 3. Complaint One was withdrawn by the Commission and no finding was sought as to whether this complaint as framed was established. However, the factual matrix and conduct underpinning the complaint was in evidence before us and was referenced in submissions made by the Commission as to the protective orders it sought. The evidence before us indicates that the conduct which was referred to in the withdrawn complaint was not disputed by GKW: see Reply to original complaint filed 24 November 2023 and letter addressed to the Tribunal from GKW dated 23 November 2023. 4. Complaint Two was that GKW has an impairment. This complaint was made under s 144(d) of the National Law. To mirror the numbering of the further amended complaint this complaint is referred to as Complaint Two in this decision. 5. Complaint Three was that GKW is not competent to practice nursing. This complaint is made under s 144(c) of the National Law. Again, to mirror the numbering of the further amended complaint this is referred to as Complaint Three in this decision. Complaint One 1. As indicated above this complaint was withdrawn. Complaint Two 1. The National Law relevantly defines "impairment" in s 5 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 practise the profession; … 1. Complaint Two alleges that GKW has an impairment within the meaning of s 5 of the National Law, that detrimentally affects or is likely to detrimentally affect her capacity to practice nursing. The particulars set out in Complaint Two lists the diagnosis for GKW as follows: 1. bipolar disorder and in the past has exhibited manic and psychotic features. 2. marijuana dependence. 3. attention deficit hyperactivity disorder. 4. complex trauma and borderline personality disorder. 5. alcohol dependence (in remission). 1. Complaint Two also particularises that between January and March 2024, GKW experienced symptoms of suicidal ideation and major depression which necessitated admission to hospital as an in-patient as follows: 1. Liverpool Hospital on 13 January 2024; 2. Bankstown-Lidcombe Hospital between 22 and 29 January 2024; and 3. Liverpool Hospital on 12 February 2024 until 6 March 2024. 1. Material produced under summons and available to the Tribunal supported and was the source of evidence for the particulars in Complaint Two. 2. For clarity we note that the records from Liverpool Hospital about GKW's attendance on 13 January 2024 indicate that she was taken by Ambulance to the Emergency Department of the Hospital on 13 January 2024 and was discharged later that same day. 3. In the reply to the further amended complaint filed on behalf of GKW the particulars set out above in Complaint Two were admitted. Complaint Three 1. Complaint Three alleges that GKW is not competent within the meaning of s 139(a) of the National Law in that she lacks the mental capacity to practise as a nurse. To support this complaint the particulars of Complaint Two were repeated and relied upon. 2. In the reply to the further amended complaint filed on behalf of GKW the particulars were again admitted. However, on behalf of GKW it was said that she should be subject to ongoing assessment as part of the Nursing and Midwifery Council of NSW Health Program as her condition may improve in the future. 3. A letter from the Association dated 12 June 2024 and submitted on behalf of GKW was attached to the reply to the further amended complaint. In this letter it was said that GKW admitted the further amended complaint in its entirety. Whilst acknowledging that GKW is not well enough to return to nursing as an enrolled nurse at present she sought by way of protective orders to be admitted to the Nursing and Midwifery Council of NSW Health Program for ongoing monitoring and assessment as an alternative to cancellation of her nursing registration. It was GKW's intention to engage with her treating practitioners to become well enough to work as an enrolled nurse with whatever conditions may be necessary and appropriate as determined by the Council to ensure that her practise as an enrolled nurse is safe and effective on an ongoing basis. 4. As GKW did not attend the hearing the reply and attached letter is one of the few sources from which we can glean her views to the Application and attached Complaint. Evidence 1. In support of the particulars set out in the Complaint, the Commission primarily relies on a supplementary report of Dr Viktoria Sundakov dated 8 May 2024 ("The Third Sundakov Report"). We will deal with this report in detail below, but we interpose to refer briefly to Dr Sundakov's first and second reports about GKW. 2. At the request of the Council Dr Sundakov first saw GKW on 8 September 2022 and wrote a report of the same date (the First Report). GKW was very unwell at this time. Dr Sundakov recorded that GKW presented with severe formal thought disorder, a persecutory delusional system resolving around injustices against her, her documentation being altered and the clinicians in the clinic at which she had been working, harming, and exploiting patients. 3. In Dr Sundakov's opinion GKW suffered from an impairment within the National Law and was exhibiting symptoms "consistent with DSM -5 diagnosis of Bipolar 1 disorder, current episode Manic with psychotic features". Additionally, Dr Sundakov noted past diagnoses of Attention Deficit and Hyperactivity disorder ("ADHD"), Post Traumatic Stress Disorder ("PTSD") and substance misuse disorders. 4. At the request of the Commission Dr Sundakov saw GKW for a second time on 13 October 2023 and wrote a report of the same date (the Second Report). At this time Dr Sundakov noted that GKW was currently in remission from her bipolar illness. She recommended that GKW "remain under a community treatment order on depot antipsychotic as prescribed by her treating psychiatrist to allow stabilisation and recovery". 5. In Dr Sundakov's Third Report in response to the question of whether GKW currently has an impairment within the meaning of the National Law, Dr Sundakov said: [GKW] does currently have an impairment as defined by the law. [GKW] has a chronic mental illness. The provisional diagnosis is bipolar disorder with her most recent episode being a major depressive episode. There have been past differential diagnosis of schizophrenia and schizoaffective disorder. [GKW] also has diagnoses of marijuana dependence, alcohol dependence in remission, attention deficit and hyperactivity disorder, complex trauma, and borderline personality disorder. 1. In reaching this conclusion, Dr Sundakov did not assess GKW in person but relied on previous written assessments of GKW made by her on 8 September 2022 and 13 October 2023, as well as the following additional material: 1. summons material from SWSLHD Community Mental Health Team between 1 May 2023 and 12 March 2024; 2. summons material from Bankstown-Lidcombe Hospital between 19 October 2023 and 9 April 2024; 3. summons material from Liverpool Hospital between 13 January 2024 and 12 April 2024; 4. a Liverpool Hospital Discharge Summary dated 12 February 2024 provided by the Nursing and Midwifery Council of NSW; and 5. summons material from Odyssey House NSW between 1 October 2023 and 10 April 2024. 1. The summons material from SWSLHD Community Mental Health Team covered the period 1 May 2023 to 12 March 2024. Dr Sundakov notes that GKW's Community Treatment Order lapsed in November 2023. She further notes that GKW had an admission to Liverpool Hospital with depression and suicidal ideation in February 2024 and was admitted first as a voluntary patient and then as an involuntary patient. 2. The summons material from Bankstown-Lidcombe Hospital covered the period 19 October 2023 to 9 April 2024. Dr Sundakov notes that GKW presented to the Liverpool Emergency Department with suicidal ideation on 13 January 2024 against a background of alcohol consumption and daily marijuana use (but was not admitted). She further notes that GKW was admitted to Banks House Mental Health Unit between 22 and 29 January 2024 with suicidal ideation and was admitted first as a voluntary patient and then as an involuntary patient. 3. The summons material from Liverpool Hospital covered the period 13 January 2024 to 12 April 2024. Dr Sundakov notes that GKW was admitted to Liverpool Hospital between 12 February and 6 March 2024 with depression and suicidal ideation and that GKW was reportedly smoking 1g marijuana daily at the time of her admission. Dr Sundakov further notes that an occupational therapy assessment was completed during this admission and GKW was found to have a mild impairment of functional cognition. 4. An Occupational Therapy Cognitive Screening and Functional Assessment was conducted on 21 February 2024. The allied report noted that an Allen's Cognitive Level Score was completed and GKW scored 5.4. The report outlined that a score within the fifth level is indicative of a mild impairment of functional cognition. 5. Dr Sundakov referenced the contents of this report. Relevantly the report stated: The person is expected to be capable of exploratory actions and modifying the steps they use to complete a routine task, using trial-and-error problem-solving and considering their own personal preferences and social expectations for decision-making. The person is expected to display impulsive decision-making, poor judgment and make abrupt changes in plan. They may display limited thought to planned actions or anticipate potential mistakes. … A person scoring 5.4 is expected to be able to live alone, with at least weekly drop in supports and work in a job with a wide margin of error. This person may not be safe in jobs with a high potential for industrial accident… 1. Dr Sundakov recorded that GKW has continued to use marijuana daily and exhibits an ongoing marijuana dependence. Dr Sundakov also conducted a review of SafeScripts records and noted that they showed that GKW is currently being prescribed medical marijuana and is using 1g daily. She could not comment if GKW continues to use illicitly acquired substances. Dr Sundakov stated that marijuana whether it is prescribed or illicit can cause functional and cognitive impairment as well as precipitate psychoses and mania. 2. The Odyssey House material produced under summons indicated that in December 2023 GKW had been assessed and approved for the non-residential treatment program at Odyssey House Community Programs. GKW had been registered for in person alcohol and other drugs recovery group however did not attend. GKW's file was closed on 7 February 2024 due to lack of contact. GKW disclosed to Odyssey House that she was illicitly using 1 gram of marijuana per day. 3. The Commission also relies on GKW's actions whilst unwell where she took photographs of patient files which had led to the initial complaint in respect of her conduct. As indicated above it was this conduct which formed the basis of the withdrawn Complaint One. It was submitted that these actions were direct evidence of the nature and degree of GKW's impairment. 4. The same particulars relied upon for Complaint Two are relied upon for Complaint Three. 5. In support of these particulars, the Commission relies on the Third Sundakov Report and, specifically, Dr Sundakov's responses to Questions 3 and 4 which are as follows: Question 3: If [GKW] does currently have an impairment, is that impairment likely to detrimentally affect her capacity to practice as a nurse? Based on the occupational therapy assessment in February 2024, [GKW's] impairment is likely to detrimentally affect her capacity to practice as a nurse. The assessment specifically highlights that [GKW's] cognitive difficulties can result in her being "unsafe in a job with a high potential for industrial accident." In addition, [GKW's] ongoing substance use also contributes to her functional impairment and capacity to function as a nurse. Question 4: Is [GKW] competent to practice the profession of nursing and has the sufficient mental capacity, knowledge, and skills to practice the profession? Based on the information available to me, in my opinion, at present, [GKW] is not competent to practice the profession of nursing. [GKW] requires a cognitive and functional assessment to be completed by a neuropsychologist prior to consideration of her returning to work as a nurse. She would also require a period of mental health stability and abstinence from illicit substances. At present there is evidence to suggest that she does not have the capacity to practice safely. 1. Finally, in response to being asked what, if any, restrictions should be placed on GKW's registration if she is permitted to return to practise (Question 8), Dr Sundakov commented: In my opinion, at present, GKW should not be allowed to return to practice until she has been absent from illicit substances, had a period of mental health stability and been assessed by a neuropsychologist in regards to cognitive and function impairment. If in the future GKW were to return to practice, then she would require strict monitoring and supervision, including direct on-site supervision and ongoing drug testing. GKW would also be required to continue her ongoing community treatment. 1. Dr Sundakov concluded her third report by stating that GKW was not currently stable or safe to return to work as a nurse. GKW did not have capacity to continue nursing at present and posed a risk to patient well-being if she were to return to work as a nurse. Dr Sundakov's oral evidence 1. Dr Sundakov confirmed her opinions as contained in her reports. A number of other significant matters relating to GKW's impairment and competence emerged from Dr Sundakov's oral evidence. They are summarised as follows: 1. GKW is unstable in her mental health and there was a marked difference between GKW's presentation at the time of the second report which was done in October 2023 and the time of the third report in May 2024. 2. GKW ought to be fully assessed by a neuropsychologist to assess her cognitive ability. Such testing should be done when she is well, stable, and not using marijuana otherwise a false low reading could be given. 3. Cognitive impairment can occur if a person is bipolar. It can be a secondary condition or a complication of bipolar. If problem solving abilities are affected this can pose a risk to safety. This is a further reason why a full cognitive assessment of GKW is required. 4. GKW's marijuana use impacts both her mental health and substance abuse issues. 5. Any use by GKW of marijuana with tetrahydrocannabinol ("THC"), which is a psychoactive agent, is associated with psychosis and mania. 6. The prescribing of medicinal cannabis can be done through on-line clinics. There are two agents, cannabinoids ("CBD") which are not associated with mania, and THC, the psychoactive ingredient. Prescribers can prescribe various formulations and strengths of these two agents. 7. It was striking how quickly GKW's mental health became unstable after the review in October 2023. 8. A period of at least 12 months mental health stability would be reasonable for GKW to be in a position to demonstrate competence. Dr Samuels' written and oral evidence 1. At the request of the Nursing and Midwifery Council GKW was also assessed by Dr Anthony Samuels, psychiatrist on 30 April 2024. Dr Samuels prepared a Council Directed Health Assessment in respect of GKW of the same date. The context to the assessment was to review the conditions that GKW not work as an enrolled nurse which had been placed on her registration by the Council. Dr Samuels saw GKW via Zoom on 30 April 2024. 2. The Commission indicated that it did not rely upon this report in support of the orders sought. This is because Dr Samuels was not briefed with the same material briefed to Dr Sundakov and, as a result, it was said the report was of limited utility. Notwithstanding this indication we have had regard to the report because it sets out Dr Samuels' opinion as to the potential for GKW's impairments to impact upon her professional functioning. 3. The Commission provided the Third Sundakov Report to Dr Samuels and Dr Sundakov's findings were raised with him in his oral evidence. 4. Dr Samuels gave oral evidence that at the time he saw GKW he felt that the medical history she gave was vague and that she may have omitted some matters. For example, she denied using any substances. His concern had been borne out after reading the Third Sundakov Report which referenced marijuana use. 5. At the time of his assessment Dr Samuels was left with uncertainty as to GKW's clinical state. He did not think she was stable. In his view she had an active substance abuse disorder. He referenced her lack of engagement with Odyssey House and did not believe that she fully grasped her substance abuse issues. 6. Dr Samuels did not believe GKW was well enough to return to nursing. She needed a period of stabilisation and the opportunity for further assessment to form a view about the longer term and competency. He believed she was "a long way off" from being in a position to return to a nursing role. Her impairment affected her capacity to practise as a nurse and her current mental health posed a risk to patient safety. He thought that GKW could potentially get better and become competent, but she did have a history of hospital admissions and ongoing substance use. A prognosis was guarded because of the variables involved and it would depend on GKW complying with treatment and becoming substance free before it could be said she was competent. 7. As to the period of stability GKW might require Dr Samuels thought that a minimum of 6 months to attain stability and then a further 6 months to retain that stability. Absence from substances would be required so it could take a year or more. 8. Dr Samuels concluded his evidence by stating that there was uncertainty around GKW's overall mental health management. She was currently taking Alprazolam which is highly addictive, and contra indicated especially given her substance abuse history. He could not on the information available to him identify a clinical reason to give this medication. He was unclear as to who was in charge of GKW's management of care. Her management appeared to be chaotic. She needed a dedicated psychiatrist with a clear rationale as to what was to be prescribed and why. GKW also needed to be under the care of a Drug and Alcohol specialist who could advise the psychiatrist as to potentially addictive medications. Findings 1. GKW has made admissions of impairment. She has acknowledged that she is not well enough to practice nursing. 2. Based on the clinical records and expert evidence we find that GKW presently has an impairment, within the meaning of s 5 of the National Law being a mental impairment comprising bipolar disorder, marijuana dependence, attention deficit hyperactivity disorder, complex trauma and borderline personality disorder, and alcohol dependence (in remission). 3. Dr Sundakov describes the nature of GKW's impairment as "chronic mental illness", and states that GKW should not be allowed to return to practise until she has been absent from illicit substances, had a period of mental health stability, and has been assessed by a neuropsychologist in regard to cognitive and functional impairment. 4. As submitted by the Commission, GKW's actions while unwell, which saw her taking photographs of patient files and which led to the initial complaint in respect of her conduct, goes to the potential risks to the public of a practitioner practising with such an impairment, as well as the danger to public safety. 5. The Commission also submits that GKW's reported ongoing (and presently prescribed) use of 1g marijuana daily is also of significant concern in the context of her impairment. We agree with that submission. Significantly Dr Sundakov notes that use of cannabis "can cause functional and cognitive impairment as well as precipitate psychoses and mania", whether prescribed or illicit. 6. We further find that GKW's impairment presently has a detrimental effect on her mental capacity to safely practise nursing within the meaning of s 139(1) of the National Law. We find that Complaint Three has been established. GKW is not presently competent to practise nursing on account of her impairment. Protective orders 1. The Commission seeks the following protective orders: 1. an order under s 149C(1)(a) of the National Law cancelling GKW's registration; 2. an order under s 149C(7) of the National Law that GKW not make an application for review under Division 8 for a period of 1-2 years from the date of the decision; and 3. a prohibition order under s 149C(5)(a) of the National Law prohibiting GKW from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for the same period as any non-review period imposed. 1. We note that in a letter dated 12 June 2024 from the Association on behalf of GKW addressed to the Tribunal and attached to her Reply, as an alternative to cancellation of her registration it was sought that the Tribunal admit her to the Nursing and Midwifery Council of New South Wales Health Program (Health Program) for ongoing monitoring and assessment. 2. The powers of the Tribunal that may be exercised if a complaint is proven or admitted are set out in Subdivision 6 of Division 3 to Part 8 the National Law. Those powers include general powers to caution, reprimand, or counsel etc practitioners: s 149A; the power to fine registered practitioners in certain cases: s 149B; and the power to suspend or cancel registration in certain cases: s 149C. 3. The Health Program and impairment are internally managed by the Council under Division 4 to Part 8, ss 152-152L of the National Law. The Tribunal does not have the power to admit GKW to the Health Program as proposed. Nor do we have the power to direct the Nursing and Midwifery Council of New South Wales to admit practitioners into the Health Program. 4. In exercising our functions under the National Law, the protection of public safety and health is paramount: s 3B of the National Law. 5. We accept the submissions of the Commission that the following considerations are relevant here to the question of the appropriate protective orders: 1. The maintenance of the standards of the medical profession, the preservation of public confidence in the profession and the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. 2. Public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered: National Law, s 3(2)(a). 1. In Grant v Health Care Complaints Commission [2003] NSWCA 73, R Meagher JA (with whom Beazley and Santow JJA agreed) said at [16]: … If, for example, the Tribunal comes to a conclusion of fact justified by the evidence that the doctor will not be fit to commence practice for a given space of time it has the power and one would have thought the duty to make an order that he or she does not practice until that space of time has elapsed. 1. We have concluded that GKW has an impairment within the meaning of the National Law, and she is presently not fit to practise nursing. In our view her registration should be cancelled and an appropriate period of time that she should not be allowed to practice is 18 months. This period will potentially give her the opportunity to attain and maintain mental health stability, address substance issues including cannabis use both illicit and prescribed, and to undergo further neuropsychologist assessment as to cognitive ability. In addition, hopefully stability, continuity, and clarity in the management of her mental health care can be established. Prohibition order 1. The Commission sought an order prohibiting GKW from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for the same period as any non-review period imposed. In the light of the findings we have made about GKW's impairment and competence, we will make a prohibition order for the protection of the public. Application for non-publication order 1. GKW applied for orders that her name not be disclosed or published, and that her name be pseudonymised. The reasons for this application were GKW's mental health and recent hospitalisations for suicidal ideation. 2. In response to the application the Commission indicated that its position was to neither consent nor object to such orders being made. At the hearing the Commission made submissions canvassing Tribunal decisions where applications for orders of this nature had been made in the context of practitioners with mental health conditions. 3. The Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") provides in s 64: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. There is a similar, though not identical, provision in clause 7 of Schedule 5D of the National Law. It relevantly provides: 7 Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)— (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published— (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the person presiding. (3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to-- (a) a person who requested the direction; and (b) the complainant or the registered health practitioner or student concerned, as appropriate; and (c) another person the person presiding thinks fit. (4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. … 1. The Tribunal has routinely made confidentiality orders in matters under the National Law under s 64 of the NCAT Act, and in this case an order was sought on behalf of GKW under s 64. The decision of GKN v Medical Council of NSW [2024] NSWCATOD 87 considered whether that provision provides the Tribunal with a source of power to make such an order. 2. The analysis in GKN v Medical Council of NSW suggests that where the Tribunal is considering a non-disclosure and non-publication order in circumstances where the panel is constituted, the person presiding would exercise the power under clause 7 of Schedule 5D and not section 64. At the hearing an order was made prohibiting the disclosure and publication of GKW's name. The reasons for this are reflected below. 3. The principles of open justice apply to proceedings under both the Civil and Administrative Tribunal Act 2013 and the National Law: Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203. 4. The principles of open justice were set out in Council of the Law Society of NSW v CZD [2017] NSWCATOD 31 at [26]–[29]: 26. The principle of open justice is a widely recognised principle of the common law. The rationale for the principle and the limited circumstances recognised at common law for departure from the principle is well explained by McHugh JA in John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 as follows (at 476–477): The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is 'necessary to enable it to act effectively within' its jurisdiction. 27. Also relevant are the comments of Kirby P (as his Honour then was) in his dissenting reasons in John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & ors (1991-1992) 26 NSWLR 131. There his Honour explained: It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported. 28. The reports contain many authorities dealing with the principle, and the exceptions to it. While the core principle remains the touchstone, particular care must be exercised when considering the precise terms of a statutory provision that provides exceptions to the principle. 1. Consistent with the principles of open justice, the starting point is that the name of a person who is the subject of disciplinary proceedings is expected to be disclosed unless there is a good reason for the making of a non-publication order. 2. The question for the Tribunal, when considering an application for a non-publication order under clause 7 of Schedule 5D is whether the person presiding thinks it appropriate in the particular circumstances of the case. By virtue of GKW's pre-existing mental health conditions there is a real potential for a negative impact on her mental health if her name were to be disclosed or published. 3. The mental illnesses with which GKW is dealing, together with previous recent hospital admissions reveal a risk of suicide. This constitutes a compelling set of reasons to make a non-publication and non-disclosure order with respect to GKW's name. Accordingly, that order was made at the beginning of the hearing. 4. Upon the publication of this decision, the facts of this case will be available to members of the public and the nursing profession. The confidence of the public in the profession can be maintained by the facts and reasons set out in this decision. It is not necessary for GKW's name to be published for that to occur. 5. GKW will be disqualified from being registered as an enrolled nurse and prevented from reapplying for a period of 18 months. Should she seek to be registered in the future she will have to make an application, after 18 months, under s 163B of the National Law, for the reinstatement of her registration. In making that application, she would have to prove that she is fit to practise before her registration can be reinstated. As a non-publication order has been made, the public will not be able to ascertain from this decision whether GKW has orders against her under the National Law. However, the public will be protected by the rigorous process which must be undergone to achieve reinstatement. Costs 1. The Commission seeks an order that GKW pay its costs as agreed or assessed. It pointed to well settled case law in support of the proposition that generally costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. The Commission has been successful in establishing the Complaint. It has been successful in obtaining all the orders it sought. An order for costs will be made. Conclusion 1. We have found GKW presently has an impairment that detrimentally affects her capacity and competency to practise nursing. 2. We make the following orders: 1. Under s 149C(1)(a) of the Health Practitioner Regulation National Law (NSW), GKW's registration is cancelled. 2. Under s 149C(7) of the Health Practitioner Regulation National Law (NSW), an application for review may not be made for a period of 18 months from the date of this decision. 3. If GKW is not registered then, in lieu of Order 1, under s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), if GKW were still registered the Tribunal would have cancelled her registration. 4. If GKW is not registered then, in lieu of Order 2, under s 149C (4)(b) of the Health Practitioner Regulation National Law (NSW), GKW is disqualified from being registered for 18 months from the date of this decision. 5. If GKW is not registered then, under s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the National Board is required to record the fact that if GKW were still registered, the Tribunal would have cancelled her registration in the National Register kept by the Board. 6. GKW is prohibited from providing any health service as defined in section 4 of the Health Care Complaints Act 1993 (NSW) until such time as she is a registered health practitioner under s 149C(5) of the Health Practitioner Regulation National Law (NSW). 7. GKW is to pay the costs of the Health Care Complaints Commission as agreed or assessed. ********** 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: 31 July 2024