Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Khalsa (No2) [2014] [2014] NSWCATOD 47 Hearing dates: On the papers Decision date: 06 May 2014 Before: Mr Ian Newbrun, Principal Member Ms Tania Andrews, Professional Member Ms Leigh Schalk, Professional Member Mr John Davies, General Member Decision: 1. The registration of Akal Kaur Khalsa ("the practitioner") as a registered nurse and a registered midwife on the National Register of Health Practitioners ("the Register") maintained by the Australian Health Practitioner Regulation Agency ("AHPRA") is cancelled under s 149C (1)(b) of the Health Practitioner Regulation National Law (NSW) No 86a ("the National Law") and AHPRA is requested to forthwith amend the Register accordingly. 2. The practitioner shall not apply under s 163A of the National Law to the NSW Civil and Administrative Tribunal, Occupational Division (Health Practitioner List) ("NCAT") to be registered on the Register until the expiry of a period of not less than 2 years from the date of this order. 3. The practitioner be and is hereby reprimanded. 4. The practitioner shall pay the Health Care Complaints Commission's costs (on the ordinary basis as defined in s 3 of the Civil Procedure Act 2005 (NSW)) and in the event of a dispute about costs liberty is granted to either party to restore the matter before the NCAT. 5. Under Schedule 5D, cl 7 of the National Law, publication of the name of Patient A, her first child and husband, referred to in the Amended Complaint, is prohibited. Catchwords: Complaints against a practitioner (a registered nurse and midwife) of unsatisfactory professional conduct and professional misconduct found by Tribunal in Stage 1 proceedings. Where HCCC seeks orders that the practitioner's registration be cancelled. Where HCCC seeks period of 2 years before the practitioner can seek to review the de-registration order. Where HCCC seeks practitioner pay its costs of and incidental to the proceedings. Whether cancellation of registration necessary to protect the public. HELD-cancellation of registration for 2 years necessary as practitioner continues to provide a risk to the public Costs-Where HCCC seek that the practitioner pay the costs of and incidental to the proceedings. Whether there are disentitling circumstances to the usual "costs follow the event" principle. HELD- practitioner to pay the HCCC's costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Health Practitioner Regulation National Law (NSW) 86a Uniform Civil Procedure Rules 2005 Cases Cited: Peter Cecil Harcourt Dawson v Law Society of New South Wales [1989] NSWCA 58. Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; 41 NSWLR 630 Law Society of New South Wales v Byrnes [2000] ADT 20 Lee v Health Care Complaints Commission [2012] NSWCA 80 Health Care Complaints Commission v Rolleston [2013] NSWMT 12 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Khalsa (No 1) [2013] NSWNMT 19 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Akal Kaur Khalsa (Respondent) Representation: Counsel C Spruce Ms J Dinihan, Health Care Complaints Commission (Complainant) A Khalsa (Respondent in person and no part taken in Stage 2 proceedings) File Number(s): 142014 Publication restriction: Under Schedule 5D cl 7 of the National Law, publication of the name of Patient A, her first child and husband, referred to in the Amended Complaint, is prohibited. reasons for decision What the Tribunal decided: 1The Tribunal ordered that Akal Kaur Khalsa ("the practitioner"), a registered midwife and nurse, be removed from the register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency ("AHPRA") in relation to both her registration as a midwife and nurse. 2The Tribunal further ordered that a period of two (2) years elapse before the practitioner may apply to the New South Wales Civil and Administrative Tribunal ("NCAT") under s 163A of the Health Practitioner Regulation National Law (NSW) ("the National law") for a review of the cancellation order. 3The Tribunal ordered that the practitioner pay the costs of the Health Care Complaints Commission ("HCCC"). If agreement on costs cannot be reached the parties have liberty to apply to the NCAT. 4The Tribunal continued a non-publication order made at Stage 1 of these proceedings. Background 5On 16 October 2013 the Tribunal published its reasons for decision in respect of a complaint made by the HCCC against the practitioner ("the Stage 1 reasons"). 6The Tribunal found the practitioner guilty of unsatisfactory professional conduct and professional misconduct. The Tribunal's Stage 1 reasons (Health Care Complaints Commission v Khalsa (No 1) [2013] NSWNMT 19) should be read in conjunction with these reasons. 7In the orders made at the conclusion of the Stage 1 reasons, the Tribunal, consistent with directions previously made on 3 May 2013, provided a time-table for the parties to make written submissions as to protective orders. The Tribunal's orders further provided the parties the opportunity to relist the matter before the Tribunal with a view to a further hearing being held to make oral submissions about appropriate protective orders to be made. 8In the Tribunal on 16 October 2013, on the handing down of the Stage 1 reasons, Ms S Le from the NSW Nurses and Midwives' Association ("the Association") and appearing for the practitioner, informed the Tribunal that the practitioner had been uncontactable, instructions could not be obtained from her and that it would be ceasing to act for the practitioner. The Tribunal directed that the Association file a Notice of Ceasing to Act within 48 hours (which was duly effected) and adjourned the proceedings for further directions to 31 October 2013. 9After 16 October 2013 and up to and including 2 December 2013 the HCCC took various steps to both bring the listed directions hearing of 31 October 2013 to the attention of the practitioner and to serve upon her its written material to be relied upon in the Stage 2 proceedings. These steps are set out at pages 14 and 15 of the HCCC's "Stage 2-Outline of Submissions for the HCCC" document filed with the Tribunal ("the HCCC Stage 2 submissions"). The steps included sending by registered post the written material to the practitioner's last known post office box address in Broadway, NSW. 10At page 15 of the HCCC Stage 2 submissions it refers to the movement records of the Department of Immigration and Citizenship dated 14 October 2013, obtained by the HCCC on 19 November 2013, and which referred to the practitioner having departed Australia for Christchurch, New Zealand, on 23 June 2013 and not having re-entered Australia as of 14 October 2013. 11There was a directions hearing in the Tribunal held on 31 October 2013. Ms J Dinihan appeared for the HCCC and there was no appearance for the practitioner. Directions were made at that time for the filing and service of the documents and written submissions to be relied upon by each party in the Stage 2 proceedings. Liberty was given to either party to apply to the Tribunal to have the matter listed for a further directions hearing on 3 day's notice. We have referred above to the HCCC's compliance with the directions of 31 October 2013 including its reasonable efforts to bring the Stage 2 proceedings to the attention of the practitioner. At all material times the HCCC has been content for the Tribunal to proceed to make protective orders in the absence of an oral hearing and by way of written submissions. When the practitioner was last legally represented before the Tribunal in the Stage 1 proceedings on 3 May 2013, she too was content for the Tribunal to proceed on this basis. The Tribunal should formally note that it has not been contacted by the practitioner, or anyone on her behalf, since the handing down of the Stage 1 reasons on 16 October 2013 to the date of these Stage 2 reasons. 12On 5 February 2014 it was reported on page 5 of the Sydney Morning Herald that the practitioner, pursuant to a previous order of the Supreme Court of NSW, in relation to civil damages proceedings against the practitioner in that Court, had been arrested at Sydney Airport on 4 February 2014 whilst seeking to depart the country. The report stated that the practitioner was then taken before Garling J of the Supreme Court of NSW who remanded her in custody. The report stated that the practitioner was due to appear before the Court on 6 February 2014 for an examination of her financial situation. The Tribunal then ascertained from the Supreme Court of NSW website, specifically from its daily court list for 6 February 2014, that the practitioner was due to appear for an examination on that day at 2pm in the matter of Will Patterson by his tutor Jodi Michelle Latter v Akal Khalsa (Supreme Court of NSW, Common Law Division No 2009/00297855)("the Supreme Court of NSW proceedings"). The Tribunal will refer later in these Stage 2 reasons to the Supreme Court proceedings which proceedings were the subject of written material filed by the HCCC in the Stage 2 proceedings. 13On 5 March 2014 Ms Dinihan for the HCCC wrote to the Tribunal informing it that the solicitors for the plaintiff in the Supreme Court of NSW proceedings had informed the HCCC that the practitioner was currently residing in New Zealand with family members at a stated address, that she would be returning to Sydney on 11 April 2014 for further examination in the Supreme Court of NSW proceedings, and that they had been provided with two personal email addresses of the practitioner. Accordingly, the Tribunal then made further orders directing that the HCCC forward to the practitioner at her New Zealand address a copy of the Stage 1 reasons and a copy of its written material and submissions in relation to protective orders. The Tribunal directed that the HCCC inform the practitioner through her email addresses that it had sent that material to her at such address. The HCCC complied with these directions. The Tribunal further directed that the practitioner file and serve upon the HCCC any written material and submissions in relation to protective orders no later than 7 April 2014. As stated previously, the practitioner has made no contact with the Tribunal since 16 October 2013 and it has not filed and served any material or submissions in relation to protective orders. The National Law and relevant legal principles - protective orders 14It is useful, prior to discussing relevant legal principles which are applicable to orders made in professional disciplinary matters involving health professionals, including the medical profession, to refer to the power to make such orders as found in the National Law and the type of orders which may be made. 15The starting point in any disciplinary proceeding before the Tribunal in NSW must be the objective and guiding principle found in s 3A of the National Law. That is "the protection of the health and safety of the public must be the paramount consideration". 16The necessary jurisdictional basis to be established before a Tribunal can make protective orders is found in s 149 of the National Law. That section provides that, if the Tribunal finds the subject-matter of a complaint against a practitioner proved, it may make orders in terms of one or more of the various provisions found in ss 149A-149C. Section 149 provides as follows: "A Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if- (a)It finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b)The practitioner or student admits to it in writing to the Tribunal." 17The provisions found in ss 149A-149C of the National Law include the power to suspend a practitioner's registration or cancel the registration. A health practitioner may be precluded from seeking a review of his or her registration for a particular period of time (s 149 C (7)) or from providing particular health services for a period of time or permanently (s 149C (5)). The Tribunal may also impose a fine (s 149B). It is not suggested by the HCCC in this case that the Tribunal should impose a fine, noting that the practitioner has taken no part in the Stage 2 proceedings. 18As the Tribunal has made a finding of professional misconduct, although not mandatory that we do so, it is open to the Tribunal to suspend or to cancel the practitioner's registration. We note that in the written submissions filed on behalf of the Director of Proceedings, HCCC, her counsel seeks the practitioner's registration be cancelled and that she be precluded from applying for "re-registration of her midwifery and nursing registration for a period of at least 24 months after the Tribunal decision". Accordingly, it is appropriate that we set out s 149 C (1) (a) (b) and s 149 C (7). Those sections provides as follows: "(1) A Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (c)The practitioner is not competent to practise the practitioner's profession; or (d)The practitioner is guilty of professional misconduct; ... (7)An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time." Section 149A(1) is in the following terms: (1)The Tribunal may do any one or more of the following in relation to the registered health practitioner- (a)caution or reprimand the practitioner; (b)impose the conditions it considers appropriate on the practitioner's registration; (c)order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d)order the practitioner to complete an educational course specified by the Tribunal; (e)order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f)order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 19The role and purpose of protective orders is discussed in a number of decisions relating to legal and health professionals (see Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at [637D and F]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at [441B]; Lee v Health Care Complaints Commission [2012] NSWCA 80 per Barrett JA at [20]-[21]). In Lee v Health Care Complaints Commission His Honour said: "20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." 20The relevant principles, although made in the context of disciplinary proceedings against a lawyer, are also aptly summarised in Law Society of New South Wales v Byrnes [2000] NSWADT 20 as follows: "29 It is trite to say that on numerous occasions the courts and tribunals have emphasised the seriousness of false and deceptive conduct. See, for example, O'Reilly v. Law Society of New South Wales (1988) 24 NSWLR 204; Law Society of New South Wales v. Foreman (1994) 34 NSWLR 408. This is especially so where it involves courts or tribunals. See also Beazley JA in Law Society of New South Wales v. Walsh (Court of Appeal, unreported 15 December 1997). 30 Disciplinary proceedings are concerned with the protection of the public. The Tribunal's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner. The duty extends to protecting the public from similar default by other practitioners. It is relevant to take into account the effect the Tribunal's order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors. "In this sense any penalty imposed should contain an element of general deterrence, publicly marking the seriousness of what the instant solicitor has done.": Foreman (supra, per Mahoney, JA. at 441) and see Law Society of New South Wales v. Walsh (Court of Appeal, unreported 18 December 1997 at 45)." 21In Health Care Complaints Commission v Litchfield, the Court of Appeal of NSW heard an appeal concerning complaints that had been before the Medical Tribunal relating to inappropriate conduct of a sexual nature by a doctor in the course of professional consultations with three female patients aged between 20 and 30. The Court of Appeal stated: "In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW) (Pt 2) 275 at 286: "...Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man." Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession. Lapse of time since the events giving rise to a complaint will be relevant in determining whether disciplinary proceedings can be fairly determined or should be stayed as an abuse of process. It may also be relevant in determining whether the doctor has undergone a reformation of character and behaviour, or whether the incidents can be viewed as isolated or passing departures from proper professional standards or attributed to youth or inexperience. Lapse of time appears to have no other relevance and the Tribunal erred in relying on it as it did. The Tribunal referred to the effect of the criminal and disciplinary proceedings on the doctor and their cost "in money and emotional stress". These matters would be highly relevant if the purpose of these proceedings was punitive, but their purpose is entirely protective. In Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202 the Court said: "...Although it is sometimes referred to as `the penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege". Later in NSW Bar Association v Evatt (1968) 117 CLR 177 at 183-184, the Court said: "...The power of the Court to discipline a barrister is ... entirely protective and notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved"." 22These proceedings involve a finding that the practitioner deliberately provided false and misleading clinical notes to an investigating officer of the HCCC. The Tribunal notes the decision of HCCC v Lyons (NT120299DSCL) in the Nursing and Midwives Board of NSW which stated: "The Tribunal further finds that there is an obligation on the part of an accredited nurse to respond and deal frankly and promptly with the Health Care Complaints Commission in the course of an investigation by that organisation in the course of its statutory duties." 23In passing, the Tribunal notes in this context the terms of cl 21 of Schedule 5 of the National law; clause 21 provides that a person must not give an investigator a document containing information the person knows is false and misleading in a material particular with a breach of cl 21 attracting a maximum penalty of $5,000. The submissions of the HCCC 24The HCCC has filed written submissions in relation to protective orders. Again, the practitioner has not filed and served any written material or submissions in relation to protective orders and has taken no part in the Stage 2 proceedings. Having referred to the considerations set out in HCCC v Litchfield, the HCCC submitted, in our view correctly, that in determining appropriate orders, the Tribunal may take matters, including the following, into account: · the seriousness of the misconduct; · the non-participation of the practitioner in the Stage 2 proceedings; · admissions made by the practitioner; · contrition and responsibility taken by the practitioner; · whether the practitioner has addressed the character defects that led to the misconduct or implemented appropriate changes to her professional practice; and · the risk of re-offending Stage 1 findings of Tribunal in relation to professional misconduct 25In the Stage 1 reasons the Tribunal stated, relevant to its finding of professional misconduct: "144. The Tribunal makes the following findings in relation to this complaint particular (namely "Complaint One, Particular 3.3. The second set of clinical notes was false and/or misleading"): (a) The midwife commenced to write the Labour Notes after she received the complaint from the HCCC in its letter of 15 February 2011. She completed the Labour Notes at some time after 24 February 2011, and, giving the midwife the benefit of the doubt, before the HCCC's letter to her of 30 March 2011 requesting her clinical notes. (b) When the midwife completed the Labour Notes she was just working off her rough notes made on 3 January together with her memory. The tribunal is of the view the midwife's likely ability to recall the details of matters, such as timeframes, some 6 weeks after the events in question, which details had not previously been recorded in the rough notes, would have been negligible. (c) The midwife knew, when she completed the Labour Notes, that the timeframes in those notes were inaccurate. The midwife inserted such timeframes in the Labour Notes because that was what she viewed would have been expected in notes from a hospital midwife. (d) As found previously in these reasons, the midwife did not have any discussions with either Patient A, Patient A's husband or Ms Henry on 3 January (or indeed in the early hours of 4 January up to the time that Patient A and Patient A's husband retired to bed) about a possible transfer of the baby to hospital; as found previously, the references in the Labour Notes to such alleged discussions do not reflect what occurred on 3 January. The tribunal should state that the midwife's evidence to the Inquiry in relation to her alleged conversations with Patient A and Patient A's husband on 3 January 2011 about a possible transfer of the baby to hospital lacked credibility. The tribunal, having observed the midwife carefully when giving her evidence on this topic, found the midwife to be an unimpressive witness. The Tribunal further finds, and has no doubt, that the midwife, when she completed the Labour Notes, knew that she had had no discussions with Patient A or Patient A's husband on 3 January about a possible transfer of the baby to hospital. (e) The Tribunal does not accept the midwife's evidence that she was doing her best to record what she actually believed happened when she completed the Labour Notes. The Tribunal finds that the midwife intentionally made false entries in the Labour Notes and such entries at least included: (a) the above alleged discussions on 3 January 2011 (b) the timeframes appearing in the Labour Notes which do not appear in the rough notes (f) The Tribunal finds that the midwife, when she provided the Labour Notes to the HCCC, did intend to mislead the HCCC by at least representing: (a) that the entries in the Labour Notes were the contemporaneous notes made by her on 3 and 4 January 2011 in relation to the baby, Patient A and Patient A's husband, (b) she had had discussions with Patient A and Patient A's husband about a possible transfer of the baby to hospital on 3 January 2011, (c) that the timeframes appearing in the Labour Notes, which do not appear in the rough notes, were accurate 145. The tribunal is in no doubt that the midwife's motive for such conduct was to ward off any criticism of her management of the baby's condition when in her care on 3 and 4 January 2011. 146. The Tribunal finds that this complaint particular has been proven. It finds that this conduct of the midwife amounts to unsatisfactory professional conduct, being improper or unethical conduct relating to the practice or purported practice of the midwife's profession under s139B(1)(l) of the National Law. Complaint Two 147.This complaint provides that the midwife: "is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration." 148. Under Complaint Two, the particulars of Complaint One were repeated and relied upon, individually and cumulatively. ............... 150. The Tribunal is of the view that the unsatisfactory professional conduct the subject of Complaint One, Particular 3.3, namely that the midwife provided the "second set of clinical notes", being the Labour Notes, to the HCCC on 2 May 2011, which notes were intentionally false and misleading to the knowledge of the midwife, was conduct "of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration". Accordingly, pursuant to s139E(a) of the National Law, the Tribunal is of the view that such unsatisfactory professional conduct also constitutes professional misconduct. 151. The midwife provided the Labour Notes to the HCCC on 2 May 2011 after the HCCC had requested her clinical records for Patient A and the baby to facilitate its investigation of the earlier complaint against the midwife. The conduct of the midwife in providing clinical notes to the HCCC, which notes were intentionally false and misleading, was dishonest. Such conduct obviously departed from what was expected of the midwife, namely that such records provided to the HCCC would be a truthful account by her of what had previously occurred." Additional evidence relied on in the Stage 2 proceedings by the HCCC 26The HCCC filed additional material in the Stage 2 proceedings covering essentially the following areas: · Documents, including pleadings, interrogatories material and judgments in the Supreme Court of NSW proceedings · Medical evidence in the Supreme Court of NSW proceedings · Department of Immigration and Citizenship movement details for the practitioner · Australia Post material relating to the HCCC attempts to serve the practitioner with their Stage 2 material · Nurses and Midwives Board of NSW material relating to counselling of the practitioner on 2 occasions before 2011, namely 2 July 2009 and 1 April 2010, relating to clinical documentation Discussion and findings 27The Tribunal accepts that, while the primary purpose of any protective order is, and must be, the protection of the public, the consequence of such an order, which precludes a practitioner from working in his or her chosen profession, is a serious deprivation of professional status and concomitant loss of income. 28The Tribunal is also mindful of the desirability of a practitioner who can successfully rehabilitate him or herself being restored to the register to serve the health needs of the public. The appreciation of the benefit of rehabilitation and restoration to practice is cogently explained by Kirby P (as His Honour then was) in Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58. His Honour said: "There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance ...." 29In determining the issue of protective orders we have considered the references provided by the referees (former clients and a husband of one of those clients) who provided written references on behalf of the practitioner in the Stage 1 proceedings. We have placed little weight on these references. They do not address satisfactorily the complaints and particulars made against the practitioner relating to the provision of the second set of clinical notes (referred to as the Labour Notes in the Stage 1 reasons and in these Stage 2 reasons) which were false and/or misleading. There were no references provided by professional colleagues of the practitioner. 30The Tribunal will now discuss the criteria that we identified previously in these reasons in the context of considering appropriate protective orders in relation to the finding of professional misconduct of the practitioner. 31The practitioner's dishonest conduct in intentionally making false entries in the Labour Notes and then providing those notes to the HCCC with the intention of misleading them was misconduct of a very serious nature. It involved deliberate dishonesty which was calculated to ward off any criticism of her management of the baby's condition when in her care on 3 and 4 January 2011. The Tribunal again refers to its findings in paragraphs 144-146 and 150-151 of the Stage 1 reasons. It should be noted that the Labour Notes were prepared by the practitioner at some time after 24 February 2011 (noting that the HCCC's complaint was sent to her in its letter of 15 February 2011) and before the HCCC's letter to her of 30 March 2011 requesting her clinical notes. 32The Tribunal finds that the practitioner has made a deliberate decision not to take any part in these Stage 2 proceedings. The practitioner was aware from her participation in the Stage 1 proceedings in 2013 that the proceedings had not yet been concluded. She declined to make contact with those representing her in the Association. She has made no contact with the Tribunal to date. Through compliance by the HCCC with the Tribunal's most recent orders and directions, it is likely that the practitioner has had actual notice of the Stage 1 reasons and the material and submissions relied upon by the HCCC in these Stage 2 proceedings. In any event, she could have contacted the Tribunal at any stage to ascertain these matters. The Tribunal notes that the practitioner was brought before Garling J of the Supreme Court of NSW in the Supreme Court proceedings on 4 February 2014 and was due to appear again before that Court on 6 and 11 February 2014. The practitioner's deliberate conduct not to take any part in the Stage 2 proceedings displays, at best, an indifference by her to the authority of this Tribunal to make protective orders in relation to its complaint findings. Such conduct, by omission, indicates that the practitioner is unwilling to confront her responsibilities as a party to these Tribunal proceedings, including confronting the complaint findings of this Tribunal. 33At this point, reference should be made to the evidence relating to the Supreme Court of NSW proceedings. It is clear from that evidence that the practitioner, at least up until her recent arrest at Sydney airport on 4 February 2014, had made a deliberate decision to avoid compliance with the orders of the Supreme Court of NSW, including orders that she attend Court for examination. In those respects at least, the practitioner's failure to take part in these Stage 2 proceedings has close parallels with the Supreme Court of NSW proceedings. 34As to relevant admissions made by the practitioner during the course of the Stage 1 proceedings, often in cross-examination, the Tribunal makes the following observations. 35The practitioner admitted that her rough notes were not adequate records. The Tribunal places little weight on this admission because the inadequacies of those notes were evident on their face. 36The practitioner admitted that the Labour Notes were misleading in so far as they would indicate, or give the reader the impression, that they were written contemporaneously on or about 3 and 4 January 2011, when in fact they were written sometime later, taken from her rough notes and her memory; the practitioner admitted that this constituted unethical or improper conduct. (It was submitted, however, that she did not construct them for the purpose of misleading or providing a false account and she did not have any intention to mislead.) The Tribunal gives little weight to this admission when it was evident on the face of the Labour Notes that they purported to have been written on the dates specified in those notes. Furthermore, the evidence was that those notes were provided to the HCCC on 2 May 2011 without any accompanying statement that the notes were written at a later date than appeared in the notes. 37The practitioner admitted that the Labour Notes were inadequate in that they failed to document: · the decision-making process, recommendations for care and/or ongoing treatment of the baby; · conversations concerning a plan of care or recommendations as to transfer before 0800 hours on 4 January 2011 including clinical indications and rationale; · vital signs including heart rate, colour, respirations, alertness and tone/activity of the baby at least every 30 minutes; and · a signature for each entry. Again, the Tribunal places little weight on these admissions by reference to the evident omissions on the face of the Labour Notes in the above respects. 38The practitioner admitted that by 15 February 2011 her memory of what happened on 3 and 4 January would not have been as accurate as it was on 4 January. The midwife stated that she probably knew, when she completed the Labour Notes, that the "times" in those notes might be inaccurate. She stated that the "timeframes" were made by her because that was what would have been expected in notes from a hospital midwife. Later in evidence, she confirmed that the "timeframes" were not accurate. She stated that the purpose of putting in the dates and times in the Labour Notes was to try and be consistent with hospital practices, since she was being judged on hospital practices (see paragraph 139 of the Stage 1 reasons). The Tribunal has given some weight to these admissions but not significant weight in view of the practitioner's persistence in maintaining that she had had a conversation with the parents of the baby at 11:30pm, as recorded in the Labour Notes, which was untrue. Further, the practitioner's reasoning for including the timeframes in the Labour Notes (that is, compliance with hospital practices) did not really display any professional acknowledgment of the importance of accurate timeframes in the clinical records. 39The Tribunal notes that the practitioner admitted, belatedly in cross-examination, that she did not suggest at 9pm on 3 January that the baby might need to be transferred to hospital, contrary to the content of the Labour Notes. The Tribunal refers to paragraph 141 of the Stage 1 reasons, which had referred to the practitioner's "change of position" by her, when giving this belated evidence, which "did not reflect well on her credibility." Again, the Tribunal has given some weight to these admissions but not significant weight in view of the practitioner persisting in maintaining that she had had a conversation with the parents of the baby at 11:30pm, as recorded in the Labour Notes, which was untrue. 40As to the practitioner's contrition, the Tribunal again notes that the practitioner has made a deliberate decision not to participate in these Stage 2 proceedings. During the Stage 1 proceedings the practitioner did not concede that she intentionally made false entries in the Labour Notes with a view to misleading the HCCC and maintained that she was doing her best to record what she actually believed happened when she completed the Labour Notes. The Tribunal has no evidence before it to suggest that the practitioner's exculpatory position has changed in the above respect. 41The next criteria to be considered, which has some overlap with the issue of contrition, is whether the practitioner has addressed the character defects that led to the misconduct or implemented appropriate changes to her professional practice. Again, it should be clearly stated that the practitioner was prepared to deliberately create, and provide to the HCCC, a false and misleading document with a view to dishonestly exculpating herself from a complaint relating to her conduct. In the view of the Tribunal, in the present circumstances, the practitioner has not addressed or confronted her dishonesty, nor her own reasons for such dishonesty, the subject of the findings of professional misconduct. 42The next criteria to be considered is whether there is a risk of re-offending. The Tribunal is of the view that, in the present circumstances, there is a high risk of re-offending in terms of the potential for the practitioner to deliberately create false and misleading clinical notes. In particular, the practitioner has not only not addressed or confronted her dishonesty, nor her own reasons for such dishonesty, the subject of the findings of professional misconduct, but she has made a deliberate decision not to participate in the Stage 2 proceedings. The Tribunal also refers to its comments and findings below, under the heading "Protective orders in relation to findings of unsatisfactory professional conduct", including its view that the practitioner has a continuing, chronic and deep-seated unwillingness (and present inability) to maintain adequate and contemporaneous clinical notes. 43The matters we have identified above do not comfortably lead to a finding that the principles to be observed in making a protective order would be fulfilled if the practitioner remained registered as a midwife and nurse, but subject to conditions. These matters militate against registration with conditions providing the necessary safety to the public. A fine is obviously not appropriate. In particular, the Tribunal takes into account the practitioner's failure to acknowledge her dishonesty in relation to the Labour Notes in the Stage 1 proceedings, her deliberate decision not to take part in the Stage 2 proceedings, her history of non-compliance with orders made in the Supreme Court proceedings, her persisting failure to maintain adequate and contemporaneous clinical notes despite counselling by the Nurses and Midwives Board of NSW in 2009 and 2010, and her misguided attitude as to the professional necessity to maintain contemporaneous clinical notes. 44The Tribunal acknowledges that its findings of unsatisfactory professional conduct and professional misconduct related to the practitioner's conduct as a midwife. However, the matters we have identified above will impact upon the practitioner's work not only as a midwife but as a nurse, noting that the nurse's professional obligations to maintain adequate and contemporaneous clinical notes are also critical. Furthermore, in respect to the Tribunal's findings of dishonesty by the practitioner, the Tribunal is of the view that such conduct manifests the presence or absence of qualities which are incompatible with, or essential for, the conduct of both professional midwifery and nursing practice. 45The Tribunal does not consider that, to suspend the practitioner's registration for a period of time, is an appropriate order. Before being re-registered, the practitioner needs to, inter alia, acknowledge and demonstrate insight into her dishonesty, and the reasons for that dishonesty; satisfactorily explain the reasons for her deliberate decision not to take part in the Stage 2 proceedings; acknowledge and demonstrate insight into her misguided attitude in relation to maintaining contemporaneous clinical notes; genuinely acknowledge the professional necessity of maintaining adequate and contemporaneous clinical notes; and demonstrate her practical ability (or at least her genuine willingness and need to learn) to maintain adequate and contemporaneous clinical notes. Those matters, when and if satisfactorily demonstrated, can best be tested by evidence adduced at a review hearing. Accordingly, for the reasons explained above, the Tribunal is satisfied the appropriate protective order is cancellation of the practitioner's registration as both midwife and nurse. 46The HCCC seeks an order that the practitioner be prohibited from applying for a review of the cancellation of her registration as a midwife and nurse for a period of two years. The Tribunal considers a constraint for a two year period to be appropriate for the protection of the public. During this period the practitioner should be able to reflect deeply on the content of these Stage 2 reasons. Protective orders in relation to findings of unsatisfactory professional conduct 47The Tribunal refers to paragraph 153 of the Stage 1 reasons and now summarises the findings of proven relevant unsatisfactory professional conduct, and relevant admissions made by the practitioner, during the Stage 1 proceedings: a) Complaint One, Particular 1.2 (failure to monitor baby's temperature on a regular basis) The practitioner admitted that she did not monitor the baby's temperature from around 11.30pm until around 6am the following morning; this admission was not surprising given that the practitioner admitted being asleep most of the night on 4 January. The practitioner did admit that she only took the baby's temperature at irregular intervals; such admission was clearly justified by reference to the lack of regular temperature findings in the rough notes and the Labour Notes. b) Complaint One, Particular 1.3 (failure to observe all of the baby's vital signs at lease every 30 minutes) The practitioner admitted this complaint particular; again this omission was evident on the face of the rough notes and the Labour Notes. c) Complaint One, Particular 1.4 (failure to develop a management plant for the baby) The practitioner admitted in cross-examination that she did not suggest at 9pm on 3 January that the baby might need to be transferred to hospital. However she persisted in maintaining that she that she had had a conversation with the parents of the baby at 11:30pm, as recorded in the Labour Notes, which was untrue. d) Complaint One, Particular 3.1 (the clinical notes provided by the practitioner to the hospital on 4 January were inadequate) The practitioner admitted that her rough notes were not adequate records; again, this fact was evident from the face of those records. She had stated that those rough notes "ere a summary of my notes to be written out in full when I returned home" - as to this statement, however, the Tribunal notes its findings at paragraph 144a) of the Stage 1 reasons that the Labour Notes were not commenced to be written by the practitioner until after she received the complaint from the HCCC in its letter of 15 February 2011 and completed them at some time after 24 February 2011 and before the HCCC's letter to her of 30 March 2011. 48It can be seen from the above findings of unsatisfactory professional conduct that they comprise both clinical issues relating to the care of the new-born baby and a documentation issue. 49In relation to the documentation issue, the Tribunal has some very serious concerns about the practitioner which impact upon the protection of the public. The Tribunal is of the view that the practitioner has a continuing, chronic and deep-seated unwillingness to maintain adequate and contemporaneous clinical notes. The Tribunal is further of the view that the practitioner, at least presently, lacks the ability to make such notes adequately and contemporaneously. Again, the Tribunal notes that even the deliberately false and misleading Labour Notes were not adequate. 50The practitioner's unprofessional attitude and unwillingness to make contemporaneous clinical notes was evident in her cross-examination in the Stage 1 proceedings. The Tribunal has not overlooked that the practitioner admitted that her rough notes were inadequate, which, as previously stated, was obvious. 51The practitioner stated in cross-examination that she was not required to hand her clinical notes to hospital staff on presenting a homebirth new-born baby to them, rather she was merely required "to give a handover". She disagreed with the proposition that if her clinical notes were not accurate she would not be in a position, at the handover of the new-born baby to the hospital, to give a complete and detailed picture in relation to the baby's condition or what had occurred previously. She stated that even if her own clinical notes were not complete and detailed she would still be in a position to give a thorough and accurate handover of the baby to hospital staff because she could "add information from her memory of the incident". 52It was put to the practitioner in cross-examination that unless she had made a contemporaneous clinical note, she could not be sure that the information she added from her memory was accurate or correct to which she replied, "Yes, I can." 53The practitioner disagreed with the proposition that if she relied on her memory in the absence of a contemporaneous written record, she would not be in a position to know for certain that events or figures that she had remembered were in fact accurate. The practitioner stated that she did not believe it was important to record all of the details which she "had in her head" when she "sat down and wrote an account of the events on 3 January". She agreed that she had formed a view that an appropriate course was to write down some of what had happened but to keep other pieces of information in her head. She said there was no particular reasoning or determination as to which pieces of information should be written down and which should be kept in her head. She also stated: " At the time of writing these notes (a reference to the practitioner's rough notes), they were my personal notes for my reference, and no other reason. They were not intended to be handed over to the hospital and I gave an oral handover to the doctors at the hospital, that was accurate and sufficient for their needs to treat the baby." (see Transcript of Stage 1 hearing pages 193-194, 197-198) The Tribunal has also not overlooked the practitioner's written statement, at paragraph 46, in the Stage 1 proceedings, acknowledging the necessity in maintaining contemporaneous clinical notes. However, the Tribunal does not accept that this acknowledgment was a genuinely held view of the practitioner and, again, the Tribunal refers to the cross-examination of the practitioner above. 54In this context of the midwife's attitude and conduct in maintaining adequate and contemporaneous clinical notes, the prior instances of professional counselling of the practitioner by the Nurses and Midwives Board of NSW (2 July 2009 and 1 April 2010) in relation to her standards of documentation are relevant. 55In the counselling which occurred on 2 July 2009, which related to a complaint against the practitioner by the Northern Sydney Central Coast Area Health Service following a homebirth transfer of a patient to the Royal North Shore Hospital on 12 August 2007, the Counselling Committee stated that it had counselled the practitioner "that for the protection of both her clients and herself there was need for improvement of labour record documentation in order to accommodate complex and extended events which should also include a partogram. The Committee further counselled that documentation is critical and Ms Khalsa needs to be more comprehensive as one day she could be held accountable in court....Ms Khalsa accepted the Committee's counselling and stated that she has learned from the incident and has since changed her documentation practice choosing to use hospital records now." 56In the counselling which occurred on 1 April 2010, which related to a complaint against the practitioner by a patient following her homebirth labour and her transfer to hospital for the birth, the Counselling Committee, having noted that the allegations made against the practitioner relating to her care were not supported, referred to the HCCC's expert advisor having commented that the practitioners records were at times "scant", although overall they appeared to be adequate. In respect to the counselling which occurred, the practitioner stated to the Counselling Committee that "she now uses the Royal Hospital for Women's notes that had been previously presented to the Counselling Committee and finds that they are working well for her." The Counselling Committee "further counselled Ms Khalsa that it is her professional responsibility to document everything including professionally relevant conversations. It is critical to keep documentation as should she ever have to go to court it can take several years and therefore it highlights the importance of good and thorough documentation." 57The documentation issues arising in the above counselling events, taken together with the inadequate documentation findings in the Stage 1 proceedings, confirms the Tribunal's views regarding the practitioner's continuing, chronic and deep-seated unwillingness (and present inability) to maintain adequate and contemporaneous clinical notes. In the view of the tribunal, the practitioner does not have any meaningful insight into the unprofessional attitude that she holds in relation to maintaining adequate and contemporaneous clinical notes. And further, she lacks insight into her present inability to make such notes. 58As stated previously in these reasons, the Tribunal is of the view that these very serious documentation shortcomings in the practitioner are likely to impact upon her work not only as a midwife but as a nurse, noting that the nurse's professional obligations to maintain adequate and contemporaneous clinical notes are also critical. 59The Tribunal is of the view that the practitioner should be reprimanded for the found instances of unsatisfactory professional conduct. 60The Tribunal recommends that if and when the practitioner is re-registered as a nurse and/or midwife that she only be permitted to practice in a supervised hospital setting with such restriction being removed after she clearly demonstrates that her day to day making of clinical notes are both sufficiently adequate and contemporaneous. Costs of these proceedings 61The HCCC has sought an order that the practitioner pay the Commission's costs. To aid understanding of what is encompassed by the word "costs" the order should specify costs as if awarded under the definition provisions of the Civil Procedure Act 2005 (NSW) ("the Civil Procedure Act") (s 3) and also referred to in Uniform Civil Procedure Rules 2005 ("the rules") (rule 42.2). 62The definition of costs as found in s 3 of the Civil Procedure Act is as follows: costs, in relation to proceedings, means costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration. 63The Civil Procedure Act is not applicable in any proceeding applying the National Law, nor are the Civil Procedure Act and the rules applicable under the Civil and Administrative Tribunal Act 2013 (NSW). They do, however, provide a convenient guide as to what is encompassed in a costs order. This Tribunal sees some merit in the formulation if it aids understanding of parties before the Tribunal. The Civil and Administrative Tribunal Rules 2014 under the Civil and Administrative Tribunal Act 2013 (NSW) are silent as to costs (apart from costs in the Consumer and Commercial Division). 64Schedule 5D (cl 13) of the National Law provides that the Tribunal may order one party to pay the costs of the other party. 65As to the principles applicable to the ordering of costs in proceedings under the National Law, the relevant principles have recently been reiterated in HCCC v Philipiah [2013] NSWCA 342 at [42-45]. 66The discretion to be exercised in the award of costs is one to be exercised judicially. 67The authorities now direct the Tribunal to generally order that costs should "follow the event" unless there are disqualifying circumstances from making an order in favour of the party seeking costs. Hardship of the losing party is not a relevant consideration. However, disqualifying factors may include matters such as the failure of the HCCC to establish professional misconduct if alleged in a complaint, to establish all the particulars of the complaint, or if the HCCC conducts proceedings in an oppressive manner, including taking procedural steps which unnecessarily increase the expense of the hearing. An early admission of a complaint may invoke the discretion (see Health Care Complaints Commission v Rolleston [2013] NSWMT 12). 68Here the matters to take into account in the exercise of the discretion are that: · the practitioner conceded Complaint One, Particulars 1.2, 1.3, 3.1 and 3.2 and 3.3 (that is, an admission that the Labour Notes were misleading in so far as they would indicate they were written on or about 3 and 4 January 2011 but there was no intention to mislead). However, these concessions were only formally made in oral submissions towards the end of the last hearing day of the Stage 1 proceedings, being 3 May 2013 · not all the particulars set out in Complaint One were established by the HCCC although sufficient of the particulars were established to ground the complaint · balanced against those factors is the fact the HCCC established to the requisite civil standard the complaints of both unsatisfactory professional conduct and professional misconduct. In summary, the HCCC was substantially successful in the proceedings. 69Weighing and balancing these matters we are not satisfied that factors favouring the practitioner displace the "usual" rule. Consequently, we find the practitioner should pay the HCCC's costs. ORDERS 1 The registration of Akal Kaur Khalsa ("the practitioner") as a registered nurse and a registered midwife on the National Register of Health Practitioners ("the Register") maintained by the Australian Health Practitioner Regulation Agency ("AHPRA") is cancelled under s 149C (1)(b) of the Health Practitioner Regulation National Law (NSW) No 86a ("the National Law") and AHPRA is requested to forthwith amend the Register accordingly. 2 The practitioner shall not apply under s 163A of the National Law to the NSW Civil and Administrative Tribunal, Occupational Division (Health Practitioner List) ("NCAT") to be registered on the Register until the expiry of a period of not less than 2 years from the date of this order. 3 The practitioner be and is hereby reprimanded. 4 The practitioner shall pay the Health Care Complaints Commission's costs (on the ordinary basis as defined in s 3 of the Civil Procedure Act 2005 (NSW)) and in the event of a dispute about costs liberty is granted to either party to restore the matter before the NCAT. 5 Under Schedule 5D, cl 7 of the National Law, publication of the name of Patient A, her first child and husband, referred to in the Amended Complaint, is prohibited. 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 May 2014