Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Deano v Health Care Complaints Commission [2014] NSWCATOD 85 Hearing dates: 29 and 30 January 2014 Decision date: 30 July 2014 Jurisdiction: Occupational Division Before: J Muller (Principal Member) L Burns (Nurse Member) A Flanagan (Nurse Member) F Taylor (Lay Member) Decision: 1. Application for Review of Order cancelling registration is dismissed. 2. An application under Division 8 of Part 8 of the National Law for review of cancellation may not be made until after the expiry of two years from the date hereof and subject to any order under s 163(1)(b) of the National Law the Tribunal is the appropriate review body. 3. The Applicant must pay the costs of the Respondent as agreed or assessed. 4. In accordance with Clause 7 of Schedule 5D of the National Law publication of the name, address or any other material identifying any patient to which any facts of the matter relate is prohibited. Catchwords: Health practitioner regulation - nurse - cancellation of registration following finding of professional misconduct - Application under s 163 A of the Health Practitioner Regulation National Law (NSW) 2009 (National Law) for review of order cancelling registration - where HCCC opposes application - whether deficits identified had been remedied - Whether risk to the public if former Registered Nurse is re-instated to register - Whether former nurse has insight into her past inappropriate conduct - whether former nurse has demonstrated by her actions that it is appropriate she be restored to the register - Where former nurse has undertaken and completed further education - where nurse's written material in support of application and her oral evidence demonstrates conflicting attitude about her insight - failure to pay costs as ordered by previous tribunal and court. Legislation Cited: Civil and Administrative Tribunal Act (2013) - Part 2 - clause 8ss. Health Care Complaints Act 2003 - s39 (1)(e) Health Practitioner Regulation National Law (NSW) No 86a - s163A, s163B, s163C, s145A, clause 7 of Schedule 5D Poisons and Therapeutic Goods Regulations 2002 Poisons and Therapeutic Goods Regulations 2008 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Deano v HCCC [2011] NSWSC 1570 Deano v HCCC [2012] NSWSC 693 Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 488 HCCC v Deano [2011] NSWNMT 27 In Re Jason Martin [2010] NSWMT 13 Law Society of New South Wales v Walsh [1997] (unreported) New South Wales Bar Association v Stevens [2003] NSWCA 95 Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58 Re Lenehan (1948) 77 CLR 403; [1948] HCA 45 Re Mansoor Haider Zaidi [2006] NSWMT 6 Scully v HCCC [2013] NSWNMT 7 Zaidi v HCCC [1998] NSWSC 335 Category: Principal judgment Parties: Nusrat Mariyam Deano (Applicant) Health Care Complaints Commission of NSW (Respondent) Representation: Counsel N Sharp (Applicant) A Cheshire (Respondent) N Deano (Applicant in person) R Lewis (Respondent) File Number(s): 1420006 Publication restriction: Clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) No 86a applies reasons for decision What the Tribunal decided 1The Tribunal refused an application made by Ms Nusrat Mariyam Deano for a re-instatement order under s 163B of the Health Practitioner Regulation National Law (NSW) No. 86a ("the National Law"). 2The Tribunal also made a non-publication order under clause 7 of Schedule 5D to the National Law prohibiting the publication of the name of the patient in the original Complaint made against the Applicant, thereby continuing the non-publication order made in HCCC v Deano [2011] NSWNMT 27. 3Tribunal ordered the Applicant pay the costs of the Respondent as agreed or assessed. If agreement cannot be reached between the parties then leave is granted to have the matter relisted before the Tribunal for determination. 4The Applicant is not entitled to apply for a further review of the Order cancelling her registration for a period of two years of the date hereof. The background to cancellation order of the NMT, the subsequent stay application and appeal and the application and the hearing of the re-instatement application 5The original Complaint made by the Health Care Complaints Commission (HCCC) against Ms Nusrat Mariyam Deano (Applicant) of professional misconduct and unsatisfactory professional conduct was heard on 14 October 2011 by a Nursing and Midwifery Tribunal (NMT) constituted in accordance with the National Law as it then was. The Complaints of unsatisfactory professional conduct and professional misconduct were found to be proved by the NMT. 6The National Law has now been amended and the 'relevant tribunal' as of 1 January 2014 is the NSW Civil and Administrative Tribunal (NCAT), this matter being the first matter heard by NCAT in the Health Practitioner List (Clause 8 of Part 2 of the Civil and Administrative Tribunal Act 2013 'CATA'). This Tribunal is differently constituted from the NMT, not just in name but in membership. 7The NMT ordered that the Applicant's Registration on the Register of health practitioners kept by the Nursing and Midwifery Board of Australia (NMBoard), in association with Australian Health Practitioner Registration Agency (AHPRA), be cancelled. AHPRA acted upon the cancellation order on 20 October 2011. The NMT also ordered that a period of at least two years elapse before the Applicant could apply under s163A of the National Law to review the cancellation of her registration. From the evidence before this Tribunal it appears that the NMT proposed a set of conditions on registration as an alternative to cancellation of registration and these were not accepted by the Applicant (being the Respondent in those proceedings). 8It is an application to review the cancellation order that this Tribunal now deals, with noting that the two-year period has now elapsed. 9There is further background to this matter. The Applicant filed a Summons in the Supreme Court of NSW on 10 November 2011 seeking appellate and prerogative relief from the decision of the NMT and a stay of the orders of the NMT pending the hearing of the Summons. 10The stay application was heard by Justice Schmidt on 12 December 2011. The motion for a stay was dismissed with the usual order for costs being made (see Deano v HCCC [2011] NSWSC 1570). The Tribunal notes that this decision of the Supreme Court provides a helpful analysis of the law relating to stays in protective jurisdiction which ought to be of assistance to tribunals and litigants. Justice Schmidt observed that there did not seem to be much substance to the Applicant's claim that she had been denied procedural fairness by the Tribunal or that the Tribunal had erred in the course it perused (see around paragraph 24 & 25). Justice Schmidt also commented that the conditions that had been offered to the Applicant for consideration by letter dated 4 April 2011 were the basis for the conditions of stay being sought before her (see paragraph 30). 11A document titled 'Summary of proceedings of the Hearing conducted by the Tribunal Health Professional Council Authority Nurses and Midwifery Board NSW' was provided to the Supreme Court by the Applicant. The Applicant relied upon this document (prepared in April 2011) before the Court. The Tribunal notes her position remained substantially unchanged in 2014. This document formed part of exhibit 77 in the current matter. 12Paragraph 32 of HCCC v Deano [2011] NSWNMT 27 reads (the reference to Stevens being New South Wales Bar Association v Stevens [2003] NSWCA 95): Given the nature of the conclusions reached by the Tribunal as to Ms Deano's view that she had done nothing wrong, a view which largely appears to remain, given the matters to which she deposed in her affidavit, it is difficult to see that a discretion could be exercised in her favour, on the conditions of practice which she says she is now prepared to accept, but was not prepared to consider, when they were put to her by the Tribunal, Having in mind the matters discussed in Stevens in relation to the consideration which must be given to protection of the public and the Tribunal's views as to Ms Deano's unsatisfactory professional conduct, in my view if there was a discretion available to be exercised, it could not in these circumstances be exercised, in favour of the grant of the application. 13The balance of the matters claimed in the Further Amended Summons filed on 4 May 2012 were determined by in the Supreme Court by Associate Justice Harrison on 25 June 2012 (see Deano v HCCC [2012] NSWSC 693). The Applicant's appeal and claim for prerogative relief failed and the Amended Summons was dismissed with costs. 14The Tribunal also had evidence before it that the Applicant had lodged an appeal against the decision of Associate Justice Harrison. It does not appear that this appeal proceeded (see exhibit 83). 15Whilst considering the ground of appeal alleging a denial of procedural fairness, Associate Justice Harrison noted the evidence before her of written legal advice dated 14 February 2011 the Applicant had received prior to the NMT hearing from Mr Brett Holmes, General Secretary of the NSW Nurses' Association. Associate Justice Harrison extracted the following from that written advice (at paragraph 74 - the name of the EN being redacted by this Tribunal): 1.Chances of success ... As discussed with you at the meeting on 24 January and 12 February 2011, there is a very strong possibility that the Nurses and Midwives Tribunal will believe the evidence of [name omitted - the enrolled nurse] ...common sense and logic does not support your answers...there is no support for your statements...it must be stressed that it does not matter that there was no hospital policy on what 'we should do during our break or using patient bed'. You know, or should know, through your many years of nursing that...it is never acceptable...That is the view the Tribunal will take. 2. Outcome On the basis of the above, there is a very strong possibility that the Tribunal will find: (a) The complaint against you proved; (b) That you were an untruthful witness; (c) That you haven't taken responsibility for your actions; (d) You don't accept and/or understand the overall seriousness of your conduct and in particular you're not being honest with the Tribunal; (e)That you are guilty of both unsatisfactory professional conduct and professional misconduct. It is therefore a very strong possibility that you will be deregistered and for a significant period of time (at least 1.5 to 2 years)...As was discussed on 12 February 2011, you will find it very difficult to overcome a finding that you were not honest with the Tribunal and it is difficult at this stage to see you being re-registered in the future. 16The quality of the advice of the Nurses' Association is demonstrated by the subsequent findings of the NMT, which were not disturbed on review. It also provides objective evidence of the knowledge of the Applicant prior to the NMT hearing. At this point the Tribunal also notes that the evidence reveals the Applicant is still of the view this advice was biased or otherwise flawed in some way. This is an example of the Applicant's significant deficits in the areas of insight and judgment. 17The original Complaints of unsatisfactory professional conduct and professional misconduct related to the Applicant's conduct whilst working in the Medical Assessment Unit (MAU) at the Concord Repatriation and General Hospital (CRGH) in 2008 and 2009. The misconduct was characterised by the NMT as: * that her conduct lapsed from levels of judgment and care reasonably expected of her; and * that she had been guilty of improper or unethical conduct in the practice of nursing 18The specific factual matters (Particulars) found proved by the NMT against the Applicant (and not disturbed in any way on appeal) were: * on multiple occasions in 2008 and 2009, regularly on night shift slept in empty patient beds in the ward * on multiple occasions in 2008 and 2009, encouraged and/or allowed enrolled nurses to take longer breaks and/or to sleep in empty patient beds * on multiple occasions in 2008 and 2009, took longer breaks than she was entitled to * during the night shift of 8 February 2009, signed the medication chart for Patient A for a medication that she had not administered or witnessed being administered * on multiple occasions in 2008 and 2009, including 8 February 2009, allowed an enrolled nurse (without medication endorsement- administering EN) to administer intravenous medication in contravention of relevant hospital, area health service and/or departmental policies and protocols for medication handling * contacted the administering EN prior to the latter's interview on 12 February 2009 during the hospital investigation of these matters and attempted to influence the evidence she would give, including suggesting that she give false and/or misleading evidence to the hospital investigators. 19Another Particular relating to the practice of the Applicant of leaving the drug keys in a drawer at the nurses station was not established as the NMT could not be satisfied, to the requisite standard, that the keys had been left in the drawer for the entire night as alleged rather than a failure to keep them on her person at all times (refer to provision in the Poisons and Therapeutic Goods Regulations 2002 and the Poisons and Therapeutic Goods Regulations 2008). 20The NMT made the following comments that may assist with the consideration of the current application: 70. The Tribunal found much of Ms Deano's evidence to be unconvincing. The respondent's testimony lacked candour and showed a marked tendency to self-justificatory rationalisation, artificial distinctions and even prevarication. At critical points, her evidence was internally contradictory and inconsistent with objective material or with the weight of other evidence. When confronted with such inconsistencies, Ms Deano was evasive and offered implausible explanations. ... 103. The Complaint does not impugn Ms Deano's skills or clinical competence. The Tribunal accepts that Ms Deano is, as her referees attest, highly skilled, empathetic and, at least at times, caring. However, the Tribunal notes that those who provided Ms Deano with references had not had the opportunity to read the Complaint but had been given a brief account of the matter by the respondent. This significantly reduces the weight that the Tribunal can give to the opinions expressed by the referees. The Tribunal cannot accept the descriptions of Ms Deano as "a very safe practitioner" and "a good team player" given its findings of sleeping, taking extended breaks and leaving an enrolled nurse unsupervised. ... 109. The respondent would need to satisfy a future Tribunal that she has addressed the lapses of judgement and ethical standards identified in these reasons in order to have the cancellation reviewed and return to practise as a nurse or midwife. In particular, she would need to demonstrate a proper and ethical understanding of her supervisory duties as a registered nurse and both willingness and capacity to ensure that her personal responsibilities would not interfere with her professional obligations. 21The Tribunal also noted the Applicant's evidence regarding the need for nurses working night shift to take 'naps', her lack of willingness to self-monitor to avoid needing to sleep on night duty, her preference for working night duty, the significant family responsibilities that the Applicant had (both financially and as a care giver), her view that resting on patient beds and even falling asleep on them were within the terms of her employment. 22On 18 December 2013 the Applicant wrote, by email, to the then Chairperson of the Nursing and Midwifery Tribunal noting that the two years had now elapsed and requesting an opportunity to make an application for re-registration. Without objection from the HCCC, the Tribunal accepted this correspondence as an application under s163A of the National Law. 23A hearing commenced before the Tribunal on 29 February 2014 and concluded very late on the following day. The Applicant was self-represented. The Applicant indicated she would be without a support person if the hearing was not concluded on that day. The HCCC was represented by Mr G Denman of counsel instructed by Ms Lewis of the HCCC. Mr Denman orally advised the Tribunal that the HCCC opposed the applicant's application for a re-instatement order. Each party had provided a bundle of documents to be relied upon, being a total of three folders of documents that were filed with the Tribunal. A timetable for written submissions was set at the conclusion of the evidence. The Applicant indicated her preference for written submissions on the basis that she perceived she was at a disadvantage as a result of not having legal representation and English being her second language. The Applicant sought and was granted an extension of time for her submissions. Ultimately the totality of the submissions were provided to the members of the Tribunal on 14 April 2014. Background of the Applicant 24The Applicant was born in December 1968. She obtained her nursing and midwifery qualifications from the Holy Family School of Nursing in Karachi in 1988 and 1990 respectively. The applicant was first registered in NSW in 2003, having worked in Pakistan for about five years and in Kuwait for about two years. The Applicant worked as a registered nurse in a casual capacity or as an agency nurse and on two occasions on a full time basis (one period being for a period of about two and a half years in the Intensive Care Unit of Blacktown Hospital and the second for a period of about one year in the MAU of Concord Hospital - the setting for the original Complaints). It was during this second period of full time employment that the incidents, subject of the original complaint occurred. 25There is conflicting evidence before this Tribunal as to the Applicant's marital status. As the Applicant raised her family commitments by way of mitigation (both before the NMT and this Tribunal) it became a relevant factor. There is evidence that the Applicant represents herself as being married to the father of her three children. There is also evidence in the Applicant's material that she had, at some point, been divorced and that her former husband re-married (although this relationship has also broken down). Ultimately the relevance of this matter goes to the credit of the Applicant and the accuracy of representations made to various witnesses called on her behalf. There was also some inconsistent evidence as to health issues suffered by the Applicant's children. 26Since the cancellation of her registration as a nurse the Applicant has been studying at TAFE in the area of Community Service Work and working on a voluntary basis for Settlement Services International and at Graceades Community Cottage. In answer to questions from the Tribunal it became clear that this volunteer work was for the purpose of a compulsory placement being part of her TAFE course. 27The oral evidence given by the Applicant's general practitioner indicates that she may also be known by the name of Nusrat Mariyam, with Deano being the family name of the father of her children. Matters in issue 28In summary, the following issues required determination by the Tribunal: (1)does the Applicant accept the conduct found to be proved by the NMT was improper, unethical and was significantly below the standards expected of a registered nurse - noting the Applicant substantially did not accept this conduct as recently as June 2012 before the Supreme Court; (2)does the Applicant understand the basis on which the findings of professional misconduct and unsatisfactory professional conduct were founded against her; (3)does the Applicant show remorse for her conduct; (4)does the Applicant acknowledge and appreciate both the severity of her conduct and the potential harm she placed patients in her care and her nursing colleagues; (5)what has the Applicant done to demonstrate she has addressed the deficits in her judgment identified from the findings of the NMT; (6)is there a risk of recurrence of the behaviour (where this risk is compounded by a lack of insight); (7)is this Tribunal able to be satisfied that the Applicant has overcome the lack of candour, the tendency to self-justificatory rationalisation, artificial distinctions and prevarication found by the NMT; (8)is the Applicant likely to breach any requirements found in the relevant codes of conduct, policy documents or legislation in the future, or does she now fully appreciate the purpose, relevance and application of such requirements; (9)in all of the circumstances of this case (including the character evidence provided to this Tribunal) is this Tribunal able to repose the trust required in this Applicant to allow her to practice nursing at this time; (10)having regard to the serious findings of the earlier Tribunal should any re-instatement order be subject to conditions; and (11)in the event the Tribunal determines conditions should be imposed, what conditions would be appropriate. Relevant legal principles and the National Law 29The Applicant bears the onus of proving she is a fit and proper person at the current time to be engaged in the profession of nursing. The standard of proof to be applied by this Tribunal is the civil standard of proof, that is, on the balance of probabilities. Sections 3 (2) (a) and s 3A of the National Law provide that this jurisdiction is protective of the public, the Tribunal must be satisfied to a high level of probability that the applicant is 'fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence' (see In Re Jason Martin [2010] NSWMT 13; Briginshaw v Briginshaw (1938) 60 CLR 336). It follows that the onus in a re-instatement application is a high onus as the Tribunal's paramount consideration is the protection of the health and safety of the public (see Re Jason Martin [2010] NSWMT 13). 30The Tribunal also does not act in any punitive capacity. 31The relevant provisions of the National Law regarding applications for review of the nature of the current application and the powers of this Tribunal (in particular those found in (ss 163A (1),163 A (4)(b), 163C and 163B) are clearly set out in paragraphs 42 to 44 inclusive of the decision of the Nursing and Midwifery Tribunal in the matter of Scully v HCCC [2013] NSWNMT 7. 32There is extensive case law that refines the relevant legal principles to be applied by Tribunals such as this with respect to an application to be re-registered (see, for example: Re Lenehan (1948) 77 CLR 403; [1948] HCA 45 per Latham CJ, Dixon and Williams JJ at [33] Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 488; Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]; Zaidi v HCCC [1998] NSWSC 335 per Mason P at 15). 33The decision of the High Court of Australia in Lenehan sets down the principle that tribunals (and courts) should exercise the power to restore registration should 'be exercised with great caution and only upon solid and substantial grounds' having regard to facts of each case on a case by case basis. 34The role of this Tribunal is to consider, in all of the circumstances, whether the name of the Applicant should be restored to the Register. Whilst there may be some exceptional cases where such a review may involve revisiting the findings of the earlier tribunal (such as where fresh evidence of a compelling nature becomes available), it is not the role of this Tribunal to go behind the findings of the NMT. This is particularly so in this matter as it has stood up to the rigours of a full judicial review. 35For the Applicant to be successful in the current review proceedings she must satisfy the Tribunal that she has overcome the deficits identified by the NMT decision. Whilst there are other requirements for registration (recency of practise, English language competency, criminal record clearance etc) which would be questions for the Nursing and Midwifery Board of Australia to determine, this Tribunal is concerned with the question of whether the Applicant has remedied those deficits evident from the proven conduct and determine whether she is, at the present time, a suitable, fit and proper person to hold the privilege of registration. 36A stated intention not to commit misconduct of the nature found by the NMT will not assist the Applicant unless the Tribunal is satisfied that the Applicant has an appreciation of the wrongfulness of the conduct. In the NSW Court of Appeal decision of Law Society of New South Wales v Walsh [1997] (unreported) it was held: Although a practitioner's expressed intention not to re-offend is relevant to mitigation, it will have little weight unless accompanied by an understanding of the wrongfulness of the conduct. The evidence 37The documents which were before the NMT came before this Tribunal detail the Complaints originally faced by the Applicant. Additional material particularly relevant to the Applicant's view of the conduct was contained in the Summary document filed with the Supreme Court in support of the Applicant's Summons (stay and appeal). 38The Applicant's new material included: (1)documentary evidence including a written statement supporting her application, a CV, documents relating to recent academic achievements and various Codes of Conduct and policy documents; (2)a letter to the HCCC dated 4 December 2013 relating to the issue of the payment of costs as ordered by the NMT; (3)oral evidence in chief and answers to questions asked by counsel for the HCCC and the Tribunal; and (4)seven written references and oral evidence. 39The Applicant's email letter dated 18 November 2013, as earlier noted, was treated by the Tribunal as the initiating application under s163A of the National Law. The Applicant thanked the Tribunal in this letter for allowing her to 'present her case in the light of a new perspective'. The Applicant further stated: Healthcare nursing has been my profession for more than 20 years. I started my nursing career in 1985. I have been accustomed to it and I feel that it has always been my God given calling. ... Having been restricted to practice my profession for the last 2 years, it came as a big jolt to my being. As I look back then as to what has transpired, I realized that while I maybe technically skilled in the practice of nursing, I needed to evaluate further my handling of personal human difficulties while at night work and not be influenced by others who may open times deviate from the acceptable level of standard. I needed to revisit the fundamentals of professional ethics affecting the role of Health Care nurses in the community. (as written) 40The Applicant provided the Tribunal with both written evidence and an oral explanation of the ongoing studies she had undertaken since being de-registered. The Applicant stated that she had embarked upon these studies after having a few months off after her registration was cancelled as she concluded that she '...must embark on a new perspective towards serving the public as a professional.' 41The Applicant reported that the studies she had been undertaking had allowed her to gain a 'great insight to the relevant Legal and Ethical framework, Legislations and also Duty of Care'. The Applicant further expressed the view that these studies had taught her 'not only to be more proficient in the role of being a Registered Nurse but to be a good caring community worker with public safety at the core of the profession. 42The Applicant stated that she was now 'aware' of the 'National competency standards for the registered nurse in Australia'. The letter continued: This is to include: to integrate organisational policies and guidelines of professional standards. To recognise the differences in accountability and responsibility between registered nurse and enrolled nurse. The use of appropriate strategies to manage own responses to the work environment in a professional way. To supervise and evaluate nursing care provided by enrolled nurses at work or whoever are working with me in our team. (as written) 43Given the reliance on the letter of 18 December 2013 made by the Applicant the Tribunal will recount the section wherein she addressed the findings of the NMT: With this in mind, I have revisited the details of complaints made against me, examined the findings of the Tribunal and have concluded as follows (1)The care and safety of patients is the primary concern of the assigned Registered Nurse. Taking irregular breaks in spite of the hospital difficulty to provide relief nurse nor any other reason for doing so, is not acceptable. I should always be alert at all times of any urgent or emergency need of patients in the ward or help other nurses to respond to any medical emergencies. This is more especially true in situations where, I am the only available registered nurse to take care of the ward. According to my award, I maybe entitled to a work break, but if it is not possible, I still have the obligation to inform my supervisor on duty of the situation. (2)Sleeping on an empty bed is not considered appropriate professional conduct for reason that such practice is not safe due to probable mis-identification of patients, a bad precedent to other nurses and subordinates. (3)That it is not tolerable to allow the subordinates to take longer breaks in spite of all kinds of excuses including health issues, family problems. A degree of discipline and regularity of professional behaviour should be observed at all times. (4)Signing the medical chart for confirmation of a medicine having been administered and on time is a serious legal duty and should not be taken lightly. Any possibility of duplication, which can be detrimental to the patient, will also be avoided. Such documents becomes the basis for the continuing treatment and the signature is an attestation to its reliability. I shall not sign the medication chart for medications I have not administered, regardless of any pressure from colleagues or any other circumstance under pressure. (5)The enrolled nurses are available to assist the Registered Nurses in many of the routine nursing work. These enrolled nurses may not be authorized to administer medications to patients for reason that they may need proper training, attestation and certification. This is to ensure that the wellbeing of the patients are protected and possibility of over dose, miscalculation, administering to wrong patients and any other mishandling by the enrolled nurse can be avoided. I shall be strict in supervising the Enrolled Nurses and other junior subordinates and ensure that they follow the hospital policy and protocols in administering medications. The Enrolled Nurses shall not be allowed to administer drugs. (6)In situations where an incident of whatever happened in the ward is under investigation, I must refrain from unnecessarily communicating with the other personnel involved as such communication can be misinterpreted, misunderstood and may contribute to misleading the investigation. As I was accused of influencing an enrolled nurse to mislead the investigation, I will always endeavour to ensure that such incident will be avoided in the future. (7)Due to the presence of drugs that can be detrimental to the wrong user, it is important that such drugs are held in a higher level of security and ensure that control is in the hands of properly designated authority. Therefore, I shall adhere strictly to the Departmental Policy and Regulations under the Poisons and Therapeutic Goods Regulations 2002 and the Poisons and Therapeutic Goods Regulations 2008. The S-8 key must always be secured by the Registered Nurse in her position at all times whilst on duty. (8)The practice of Registered Nurse is a very demanding profession with the care and safety of patients as the primary concern. The ability of a Registered Nurse to attend to the demanding task will also depend on his or her social and family pressured. I am also a mother of 3 children who have grown to senior school age, my oldest daughter have turned 18 years of age lately and has been trained as carer for the not too sick members of the family who have learned to be very much less dependent and are now going out and do their daily chores of attending school, gardening, exercising in the park on their own. I am therefore free from any activities that may cause family or social pressures. 44The Applicant's letter continues by stating that there are 'so many intricacies, problems in the hospital and conditions may not always be ideal'. The Applicant indicates her resolve to inform management in writing within a hospital if there she encounters persistent problems. 45The Applicant goes on to state that financial difficulties arising from having been unable to work since being deregistered have resulted in her not being able to pay the costs. The Applicant states 'I have made a commitment that the matter will be settled in due course as I try to get back to be a contributing individual to the benefit of the community'. 46The CV provided by the Applicant reveals that her post de-registration studies commenced in 2011 and continued in the second half of 2013. 47Applicant provides the names of two referees in her CV, Ms Boyle and Ms Azares. There was no written reference from Ms Boyle and the reference provided by RN Azares is not contemporary in as much as the evidence of Ms Azares recorded there had been little contact between her and the Applicant in recent times. At this point the Tribunal also notes that RN Azares acted as the Applicants support person during the NMT hearing. RN Azares was not aware of the allegations regarding the Applicant's attempt to change the ENs evidence until after the NMT hearing had commenced. Similarly RN Azares was not aware that the Applicant had received advice (quite prescient advice as detailed above) from the NSW Nurses and Midwifes Association of NSW until the time she appeared before this Tribunal. 48As noted above, the Applicant provided the Tribunal with seven written references. The Tribunal carefully considered each one and makes the following observations with respect to each below. 49The first reference provided by the Applicant is from Ms LL, a fulltime Community Services Teacher with TAFE - Western Sydney Institute. Ms LL also acted as the Applicant's support person throughout this Inquiry. The reference dated 12 December 2013 is addressed 'To whom it may concern' with a heading that indicates the letter is for the purpose of supporting the Applicant in her application for reregistration. The reference notes that the Applicant had been completing studies at Nirimba College with Ms LL being her teacher and project coordinator for 18 months. Ms LL stated that the Applicant had confided in her the circumstances surrounding the deregistration but does not record whether or not she had read, for example the decision of the NMT, the reference concludes with the statement that Ms LL would do all within her power to support the application. The reference also includes the following comments: * I have nothing but high regard for her as an Adult Learner and as a Woman of great integrity (as written) * She has demonstrated a great commitment to learning, breaking down her own personal barriers to learning, whilst also clearly struggling with her experiences in the Health sector and also juggling supporting her family and child with chronic illness. * During this time she has never failed in her duties as a student in project work and has been proactive in seeking professional support and guidance where she required it. * I will be supporting her at the tribunal and would sincerely hope she is successful in her application to obtain her Nursing licence and work in the area of nursing. She as also indicated this is the field she has the most passion for and I personally believe this is where she has the capacity to make a difference to the people she serves. 50In her oral evidence Ms LL stated that the Applicant came to see her in around November or December 2013. The Applicant brought a file of documents with her, but Ms LL stated she had not had time to read these documents. The Applicant was extremely emotional during this meeting. Ms LL gave evidence that the Applicant informed her that the original complaints related to one particular night when she was very fatigued and that she had slept on duty for the first time in her career. The Applicant described the circumstances around this occurrence as including having had a series of very long shifts. The Applicant did not disclose the aspect of the Complaint that related to the EN and the finding that she had attempted to have the EN change her evidence to the hospital investigation. 51Ms LL confirmed that the she was the teacher of the TAFE course currently being undertaken by the Applicant. Ms LL stated she had no background in nursing nor any knowledge of the Code of Professional Conduct for Nurses. Ms LL confirmed that the course content included study of the relevant legal and ethical framework, standards and principles to be applied by community workers. 52The second reference is from Miss IP, the Team Leader of Community Development at Graceades Cottage. The reference dated 13 December 2013 is addressed 'To whom it may concern' and to the Tribunal. The reference records that the organisation provides activities, groups and services to the local community. Miss IP indicated that there was a partnership with TAFE NSW. The Applicant had been attending a work placement at Graceades Cottage since September 2013, being one of 18 students completing the placement. Ms IP indicated she was happy to answer further questions and her reference includes the following comments: * Nusrat has been a model student working responsible, ethical and professionally and her conduct in all areas is beyond reproach (as written). * ... Nusrat has worked very hard with her classmates to seek items from local community business ... This evidence was clarified and expanded when Ms IP gave oral evidence before the Tribunal. 53The Applicant also relied on a written reference provided by her family general practitioner dated 6 December 2013. The short reference reads as follows (as written): Nusrat's husband suffers from multiple chronic diseases including chronic renal failure, on peritoneal dialysis and her son, [omitted] suffers from severe asthma, sleep apnoea, chronic severe eczema and anaphylaxis to nuts, eggs, seafood, dairy products and peas. Nusrat has been looking after her husband and son extremely well. She is very caring of the well being of her family and others around her and takes extreme care in what she does. To my knowledge, she is of good character. She is ready to go back to work as a nurse. I have no hesitation in supporting her application for her registration to work as a registered nurse. I do appreciate if you consider her application. 54In her oral evidence the family doctor stated she understood that the Applicant was married to Mr Deano and did not know that they were divorced. The family doctor also confirmed that one of the Applicant's children had had significant allergies. As the family doctor was not in her surgery at the time she gave evidence she was unable to confirm the surnames she had recorded for the Applicant and her family members. 55A further reference was provided by RN Luzviminda Azares. The Applicant confirmed that RN Azares was her support person during the NMT hearing and is the referee listed in her CV as Lucy Azares. RN Azares informed the Tribunal that she was the After Hours Manager at a large Sydney hospital and states she has known the Applicant since 2006. In her reference RN Azares wrote: I have known Mrs. Nusrat Mariyam (Mary) Deano in 2006. We have work together in many different hospitals and we have known each other very well. She have explained to me her situation with regards to her registration as a Registered Nurse and I have been her support person during the hearings by the Tribunal. Her predicament at the moment is that of having lost her nursing registration with the Nurses and Midwifery Board due to lack of proper judgement and insight to the issues that occurred at Concord hospital. Mary may have had lapses of judgement on the situation that occurred and may have allowed inappropriate behaviour contributing to not so acceptable level of standard. However, I find Mary as technically a very skilled Healthcare Nurse and that while doing a course in Community Services which involves serious subjects on Professional Ethics and Duty of Care, I believed she has learned tremendously and is endeavouring to improve her performance if given a second chance. I know she will be a much better, caring person as a Registered Nurse and will make a good contribution to the benefit of the community in general. I find Mary (Nusrat Mariyam Deano) as very good hearted, caring, sincere person with very matured, responsible altitude towards her family, friends and the community in general. 56RN Azares concludes her reference by highly recommending and supporting the Applicant's re-registration and indicating she is willing to be contacted with respect to this matter. In her oral evidence RN Azares clarified that she had obtained the address details for her written reference (which contained a misspelling of the name of the Chair of the NMT) from the Applicant's husband. 57In her oral evidence RN Azares stated that prior to the NMT hearing the Applicant had expressed the view that the 'Union' was biased against her, they were being 'unfair' and 'one sided'. 58RN LC provided an undated reference for the Applicant. The reference did not refer to her knowledge of the applicant's proceedings before the Tribunal or the Complaint made by the HCCC although she was aware that the Applicant was seeking restoration of registration. The reference reported that she had often worked as an agency nurse alongside the Applicant and that she had found the Applicant 'to be an honest and kind nurse who cared for her patients well. She was always helpful and had good knowledge. I hope that her registration is restored to her. The nursing profession will gain a good nurse'. 59Another undated reference came from Ms VB. This reference addressed 'To Whom it May Concern' states that she had met the Applicant in February 2013 when they enrolled in a Certificate 4 in Community service. Ms VB states that she had read 'the transcripts and other relevant paperwork that Nusrat has about her nursing deregistration and also spoken to Nusrat on many occasions about this as well and I am quite happy to provide a personal reference for her'. Ms VB records that during the Certificate 4 course there had been a significant amount of learning around 'Policy and Procedures and Laws' so that the Applicant had 'become more aware of the Laws, Policy and Procedures that are required for her Nursing career and now knows how strictly she must adhere to them'. Ms VB further commented that as a result of discussions with the Applicant appreciated that she 'must obey to hospital policy guidelines at all times'. Ms VB wished the Applicant well in her endeavours to regain her nursing licence and stated that she found the Applicant to be 'very caring, open and honest, always willing to help others and has a willingness to learn, very diligent and I can count on Nusrat for anything'. 60Another classmate of the Applicant provided a reference, again undated. Ms KL addresses her reference 'To whom It May Concern' and reports that she has known the Applicant since July 2013 as they are both enrolled in a Diploma of Community Services Work and completed their work placements at Graceades Cottage. Ms KL states she was qualified as a mechanical engineer in her native China. She found the Applicant to be friendly and observed that she got along with her classmates. In particular she had assisted Ms KL with her English language skills, Ms KL having come to Australia from China two years ago and generally was a kind hearted person who had helped and encouraged her when she had problems. Ms KL further observed that the Applicant was a good team player and had made a contribution to the first aid skills of the people in the local community when they attended events at the Cottage. 61Ms KL's reference records that she was aware that the Applicant had been a registered nurse for more than twenty years and attests that the Applicant 'has professional register nurse skill and she can contributes her skill to patients who need help'. Ms KL offered to assist by providing further information if required. Awareness on the part of Ms KL of the issues that brought the Applicant before the NMT are clear from the following paragraph in her reference: Mary told me her case that happed two years ago and showed me the record about her on the internet. I really sorry to Mary that this case affected her so much, she lost her job as a register nurse and lost her new house, also her son who has suffered asthma and usually goes to children hospital. However, Mary still provides services to the local residents and helps them to achieve a high level and quality of life as a volunteer, she contributes her professional skills to the community although she suffered financial problems in her family and struggled her quality of register nurse. Oral Evidence of the Applicant 62Some of the evidence given under cross-examination of the Applicant included: * That she accepted the 'judgment' against her * That she agreed it was unsatisfactory professional conduct and professional misconduct * the unsatisfactory professional conduct was her failure to inform hospital management of the problems she was aware of in the ward * she also considered it was unsatisfactory professional conduct when she failed to submit documented complaints to 'higher authorities' within the hospital when there was no response from her NUM to her oral complaints to him (in particular the complaint relating to the EN) * it was also unsatisfactory professional conduct when she was 'too lenient' with the break times of staff she was supervising * the demonstration of the administration of IV medications to the EN was professional misconduct * that she never allowed the EN to administer IV antibiotics * that the EN was 'known' in the ward as being forgetful and the Applicant considered she may have been in the early stages of dementia * that she had been totally honest with the NMT * that she never got into a patient's bed with the intention of sleeping but later stated that this had occurred on the one occasion * that she had 'accidentally' slept during breaks on other occasions * that she signed the medication chart because she felt pressured by the CNC (night manager) who she considered to be a 'higher authority' and had used a 'loud voice' when talking to her about the matter * the issue arising from an RN sleeping is that an EN being supervised may 'take advantage' and undertake tasks they were not qualified for * she understood signing the medication chart was a serious matter as the patient may have an allergic reaction and then she would be responsible * that she did not want to disclose her contact with the EN in the period of time after the incident but before the hospital interview as they were discussing 'personal' things relating to the sale of the business that she owned (a restaurant) * that the two telephone calls to the EN made on the day the EN was interviewed by the hospital (one lasting 51 minutes and the other 45 minutes) could also have been about general 'family matters' * that she regrets taking a 'break' on the night in question The applicant's submissions 63The applicant's statement dated 18 December 2013 has been detailed above. The Applicant also made a detailed written submission received by the Registry on 19 March 2014. 64In the covering letter accompanying her submissions the Applicant states she has a 'passion' for her profession as a nurse, that she would like to utilise her skills, knowledge and experience to provide high quality health care and to serve the community. The Applicant states 'If I get back my registration, I intend to focus in a better way on my clinical practices, work closely with clinical staff and manage my time more effectively and efficiently'. The covering letter also states that she has kept abreast of current 'Nursing practices, rules and regulations relating to nursing activities that will equipped me with patient/client services'. The Tribunal however notes that it did not receive any evidence of the manner in which the Applicant has kept up to date with nursing practices - leaving aside the evidence given regarding the TAFE course. 65At paragraph 3 of her submission the Applicant states: 'Although in my point of view, I did not really commit extreme violations, I needed to see the point of view of other parties (Hospital Management and HCCC) and most important of all is the view of the N&M Tribunal who is concerned that I may not be in full compliance of the law where is says, "the protection of health and safety of public is of paramount importance".' 66Paragraphs 4, 5 and 6 of the Applicant's submissions reads: 4. Although I can admit and accept my mistakes, I must go deeper and evaluate how these incidents have occurred in the first place by knowing the root cause which is the inappropriate attitude of not being vigilant enough to be on the watch of what can or may go wrong during my duty. The fact that the incidents did occur, it just confirm that I must change my inappropriate attitude. 5. While I may be technically skilled in the practice of nursing, I needed to evaluate further my handling of personal human difficulties while at night work and not to be influenced by others (practises in other wards) who may deviate from the acceptable level of standard. 6. I needed to revisit the Code of Professional Conduct for Nurses in Australia affecting the role of Health Care nurses in the community and ensure that I do not simply comply with those ethical rules but also understand the very criteria and principles behind each of the rules. Copy of those Code of Ethics and Professional Conduct are attached with my file which I submitted to the Tribunal on 18/12/13. 67The Applicant commences paragraph 7 of her submission as follows: To simply admit guilt and show remorseful attitude is simply compromising by false admission and act of contrition and can be misguiding and as an easy way out in the efforts to obtain acceptance into registration of Nurses. 68The Applicant's submission then deals with 'repentance' indicting that she understood the current review had to determine whether she had learned what 'went wrong' and was able to 'plan the necessary steps to be taken to prevent the recurrence of those incidents in the future' (see paragraph 7 and 8). 69The Applicant accurately set out in her submissions an outline of the history of this matter leading up to this application to review the cancellation order (see paragraphs 9 to 11). 70The Applicant points to her 20 year career as a registered nurse (1990 to October 2011) as having been without any 'questionable mishap', 'reprimand', 'improper performance' or 'complaint' to illustrate that the protection of health and safety of the patients has always been her primary consideration. In particular the Applicant submits that her performance prior to 'the incident' was exceptional and submits that the background will assist in understanding the 'wrongfulness of the incident'. The Applicant also submitted that her objective is also to plan and take steps so as 'to avoid or prevent the re-occurrence of that incident', and illustrate her good standing and reputation within the community. At paragraph 29 of her submission the Applicant provides details of her good performance prior to the 'incident'. The Tribunal notes at this point that there is little in the way of evidence regarding the quality of her nursing prior to this incident, other than the Applicant's own assertions. 71The Applicant points to her 20 year career as a registered nurse (1990 to October 2011) as having been without any 'questionable mishap', 'reprimand', 'improper performance' or 'complaint' to illustrate that the protection of health and safety of the patients has always been her primary consideration. In particular the Applicant submits that her performance prior to 'the incident' was exceptional and submits that the background will assist in understanding the 'wrongfulness of the incident'. The Applicant also submitted that her objective is also to plan and take steps so as 'to avoid or prevent the re-occurrence of that incident', and illustrate her good standing and reputation within the community. At paragraph 29 of her submission the Applicant provides details of her good performance prior to the 'incident'. The Tribunal notes at this point that there is little in the way of evidence regarding the quality of her nursing prior to this incident, other than the Applicant's own assertions. 72The Applicant's submission details the difficulties she faced during the 2011 hearing given the 'highly skilled lawyers of the HCCC' and her lack of legal advice. The Applicant submitted that her friends and referees told her that the case was 'doomed right from the start, without a legal representative'. The Applicant stated that the decision to de-register her was expected, that she accepted it and that it was the 'prerogative' of the tribunal to make such an order. At paragraph 25 of her submission the Applicant wrote: The hearing was difficult for me to comprehend because I am not accustomed to such setting and I never had any experience of this type of scenario prior to this incident. I was confused and felt uneasy by the questioning of the HCCC. More often than not, I do not understand what they are trying to make me arrive at with their questioning. Since I do not have legal representation, I was not even aware if my responses were appropriate. One thing I am sure of is that I cannot admit and agree to some of the findings of previous N&M Tribunal on matters that I know is not the truth. I can only understand the frustration HCCC as they tried very hard to make me admit those findings. 73With respect to the referee evidence she placed before the Tribunal the Applicant submitted (at [26]): My support person [Ms LL] and other referees did not knew what is going to be expected from them during the hearing and therefore they were unaware of what HCCC is trying to arrive at. My referees did not come to show that they are very knowledgeable of the case as it is no longer a trial since the N&M Tribunal have arrived to a decision and I was penalized. In this application, they came to show that in spite of my unfortunate shortcomings, they would like the NCAT Tribunal to consider my Registered Nursing registration to be restored.[as written] 74The Applicant explained that she may not appear to have been remorseful as she had initially felt, due to the HCCC cross-examination, resulting in her feeling that she was 'still on trial again'. With respect to the 'disadvantage' she suffered during the hearing the Applicant further submitted (at paragraph 28): There was a lengthy questioning by HCCC about my family which is personal matter and I believe is also governed by the privacy law of Australia and therefore I could not comprehend the relevance to my application. It should suffice to say that there is only one man in my life and he is the father of my children. He is sick and the moral support of a family would be healthy environment for him. My children have grown and have learned to be independent. 75At this point the Tribunal notes that not all of the questions in this regard came from the HCCC - the members of the Tribunal also asked questions to clarify issues such as the Applicant's marital status where conflicting evidence had been provided. 76The Applicant summarised her approach to working the 10 hour night duty shift. Whilst some of her submission is in the nature of evidence, there was no objection from the HCCC and it does assist in understanding her current position with respect to her practice. Paragraph 29c of the Applicant's submission reads: During the entire 10 hour shift of being the only Registered Nurse in MAU Ward, my nightly routine was to attend first to the needs of the patients, administer medicines and get every patients to settle to sleep in the quietness of the night. Then I continue to do other work in the ward. Only after everyone is well settled asleep and preparation has been made for the next scheduled administration of medicines, that I will then take a rest, pause, sit down right there inside, in the middle of the ward as enrolled nurses do their duty break. (refer floor plan of MAU Ward as attachment 2). Depending on the number of patients in the ward, I will work continuously from 9:30 p.m. for 6 to 7 hours. Without a tea or meal breaks (as defined in the award). After the enrolled nurse has taken their rest, only then that I will take turn and have a rest right there in the middle of the ward. This will occur between 4:00 a.m. to 5:30 a.m. All the while, I never leave nor abandoned my patients in the ward. I remained present and available at all times for the entire 10 hours night shift, right inside the ward, ready to answer to any calls for assistance by the patients, ready to respond to any call for emergency. Even during those periods that I was supposedly on a duty break, I remained physically present inside the MAU Ward and am available to respond to any call for assistance or emergency. With my understanding that a relief Nurse is difficult for the hospital to be made available, and being the only RN in the ward, I have faithfully cooperated and has remained physically present in the Ward. (Refer to plan layout of the MAU Ward, attachment 5, showing where I was found to have fallen asleep).I have always shown an unselfish attitude to ensure that the patient's safety and wellbeing is taken cared of first. I was always with them in the ward. 77The Applicant makes the following submission in response to the HCCC submission regarding the need to have a clear understanding of the wrongfulness of the conduct and also to detail her plan to prevent future conduct of this nature (at paragraphs 32 and 33): 32. (It is alleged that I, Ms Deano was at several occasion, slept during breaks and as a consequence, took longer hours for a duty break). It may appear that I took longer breaks somewhere else other than the ward as I am entitled to but it is not the case. It may appear that I left the enrolled nurse on her own in the ward but it is not the case. At 9:30 p.m., we start the night shift after the normal handover of patients from the afternoon shift, with our routine checking of medicine schedule, looking after the patient's needs, looking after the new arrivals from Emergency department ICU, and Post operated patients. This will go on until the patients settled and gone to sleep. After all the patients have settled asleep and the preparation have been made for the next scheduled round of medicine, only then would I take a pause, maybe lie down on an empty bed (this bed is always not used being inside the cubicle, no front door, where spare and unused equipment are kept at that time and this cubicle is located right in the middle of the ward, surrounded by all the patients bed, refer to Mau Ward Floor Plan layout attachment 2) to rest more specially my tired legs. From 9:30 p.m. to 5:00 a.m., a total of 7 ½ hours continues duty, I could not go for a meal break as I could not (and is not allowed) abandon my patients and therefore I remained present among the patients in the Ward and available ready to respond to patients needing help and assistance. (With all these nursing work, there were no complaints from Hospital night management team or from any patients or their relatives nor any other allied health team members. There was no notice of impropriety nor any warning nor any discussion in spite of 3 officers roaming at night doing inspection. For 8 months, I have successfully fulfilled my role without regard for my own needs and with great personal sacrifice.) Though I may have fallen asleep and as a consequence took longer to take that rest, I was still, right there in the middle of that ward, among the patients. On other occasions, I may have taken a nap during that time so called break (a considered acceptable practice as far as I know). This kind of break is not really in accordance with PHS Nursing and Midwifery (state) Award 2008 where it is mentioned that during periods of breaks, a nurse will not be at work. Refer Attachment 1. 33. However, it is apparent that such conduct is not good enough as decided by N&M Tribunal. Therefore, I sincerely admit that dozing off to sleep and thereby take longer time for a rest, even if it happened once or repeatedly and inadvertently is not acceptable, no matter what condition of the situation is. I apologize for this act and I stand corrected. On the other hand, I, Ms Deano, have actually taken a great sacrifice to remain present in the MAU Ward during my entire 10 hours shift night duty whether I am on break or not. I have demonstrated as a matter of my natural character (with modesty aside) to put the wellbeing of the patients first before my own needs by staying among the patients during the entire shift. The patients were not left alone without the physical presence of a Registered Nurse at any time during my shift. This is not just a demonstration of my compliance to the Law, "The protection of health and safety of the public is of paramount consideration", but it is a matter of my true character. [Emphasis added by the Applicant] 78The Applicant details her plan to ensure she will 'will not doze off to sleep and as a consequence took longer time to finish the rest or break period' to include: * Not laying down on empty hospital beds at any time whilst on duty * Ensuring she has enough rest prior to going on duty * Working on a rotating roster to minimise the effects of working night duty * Ask the After Hours Manager to be relieved of her duties should she be feeling unwell or tired 79With respect to it being alleged that she encouraged ENs to have longer breaks than they were entitled to the Applicant submitted that this 'may only occur somewhere around 4.00am onwards' and then only if they remain in the ward 'ready to assist me instantly at a moment notification'. The Applicant concluded that with respect to this 'scenario' she 'may not have been strict to keep that period of rest at a precise limit'. The Applicant included the following conclusion regarding this aspect of the findings of the 2011 Tribunal: Having allowed the enrolled nurses to take a longer period of rest is a practice that is not considered good enough by the N&M Tribunal even if that kind of break was taken where the enrolled nurse are still in the ward among the patients and are instantly available to assist me, if ever I needed. Therefore, I admit that lapse of judgement and I apologize for it and I stand corrected. [Emphasis added by the Applicant] 80Once again the Applicant details the manner in which she intends to prevent this conduct in the future. The Applicant states in her submission that in order to ensure that ENs strictly adhere to their allocated period of break in the future she 'should be strict in supervising the enrolled nurses and restrict their excesses' and 'keep tract (sic) of records of their break periods'. 81With respect to the administration of IV medication by an EN the Applicant makes the following submission (at paragraphs 38 and 39): 38. (It is alleged that I, Ms Deano have allowed an enrolled nurse to administer IV drug to a patient on several occasion. A violation of drug administration rule).The incident whereby enrolled nurse grossly violated the drug administration rule with premeditation, was an offense accepted by the enrolled nurse and she have written an apology for it. The offense was committed (as witnessed by CNC Valerie Brown) at around 5:20 a.m. at the same period that I was taking rest on an unused empty bed in a cubicle (no front door) for storing equipment at that time, right there among the patients in the ward. The enrolled nurse administered the intravenous injection to a patient while I was taking rest at around 5:20 a.m. and at 40 minutes earlier ahead of the scheduled time of its administration, which is supposedly at 6:00 a.m. In effect, it is an established fact that the enrolled nurse was doing the violation in secret, behind my back, which is an attempt to make her malicious activity unnoticeable. If she says, she has the permission of the duty RN, why does she have to do it in secret? Such an activity is an indication that this person does not have the conviction to be upright in character. If a person who was then known as not upright, how can we then rely upon her as a credible witness. How can we take her word that she did have permission from the duty RN? Is it possible that she is trying to find a way out by pointing her finger at RN? These questions will never be answered because the trial of the case is finished. This person as a witness was not cross examined by a Trained Legal practitioner, as I was disadvantage by not having legal representation. It should be noted then that in the hospital memorandum dated 27 April 2009, signed by the Director of Nursing Services, Sharne Hogan, (copy attached as an attachment 3) it was mentioned therein that the allegation of the permission having been granted by the duty RN, was not proven by the hospital investigation. I stand in my conviction of the truth, that I did not ever give that permission to administer the IV drug to a patient. 39. However, it is apparent that the picture as a whole is not acceptable to N&M Tribunal. Though I know, I did not gave permission, the fact that it happened in my shift (where I am the team leader) is not acceptable. I therefore admit that since I was in command responsibility and there were some lapses in communication, misunderstanding with EN nurse, the onus of responsibility falls on my lap. In this regard, I apologize for that lapse of judgement and I stand corrected. [Emphasis added by the Applicant] 82The Applicant submitted that she would prevent future violations of medication regulations by ensuring that when she demonstrates a procedure she will be clear to staff that 'under no circumstances shall they practice that procedure with a patient', that she should strictly supervise staff to ensure they properly following regulations and 'where any inkling or sign that a staff is doing misconduct or any misbehaviour or any tendency to violate a regulation rule, the matter must be reported to the hospital management in writing, for proper handling of the situation.' 83With respect to Particular 4 the Applicant speculates in her submissions as to who would have signed the medication chart if she had not. She submitted that as the RN in charge it fell to her to sign. On the basis that the chart was signed in the presence of the CNC and the Applicant construed her silence 'as an approval by hospital authority'. On this basis it is the Applicant's submission that the legal responsibility 'falls on the shoulder of the hospital officer and the signing of the medication chart should be considered legal'. The Applicant also points to the finding of the hospital investigation wherein no mention was made of her signing the medication chart. The Applicant submits that her conclusion regarding this matter is as follows (paragraph 42): However, it is apparent that the N&M Tribunal believe that I should stand on a conviction that the medication was not given by me and therefore I should not sign the medication chart. Therefore, I admit that it is not proper for me to sign the medication chart on medication I did not administer, no matter what the circumstance is, even though I believe it was done in the presence of a ranking officer of the hospital. I apologize for such violation and lapse of judgement and I stand corrected. [Emphasis added by the Applicant] 84The Applicant submitted that she would ensure that she 'did not sign ever a medication chart for medications [she] did not administer'. She submitted this would be achieved as follows (paragraph 43): I should stand on a conviction that under no circumstance, even in the presence of a higher ranking officer of the hospital, shall I sign the medication chart for medicines I have not administered. The incident should firstly be clarified with the hospital management as to who should sign the medication chart. I must keep in mind that the medication chart is not only a record but is used by the doctors and nurses as a reference for the continuing medication. The accuracy of the medication chart is essential and the integrity should always be maintained. 85With respect to the Particular relating to the attempt to influence the evidence of the EN the Applicant submitted that it would be expected that people would talk to each other after an incident. The Applicant adds 'The most truthful fact on the matter is that I did not offer any money, nor any favour' and that she did not influence the EN to lie. The Applicant maintains in her submission that when she contacted the EN in the telephone calls shown in the records she was discussing the sale of her business on the basis that she 'may have good prospective buyers' as she was Chinese. 86The Applicant makes the following conclusion regarding this Particular (paragraph 45): However, the N&M Tribunal believes that I may have tried to influence EN Teng because of the telephone records. Therefore, though I maintain my stand that I did not try to influence EN Teng, I must admit that the telephone conversation is highly suspicious and gives the impression that I am trying to influence EN Teng. I therefore admit that a lapse of judgement have occurred, having been in contact with her. I apologize for that and I stand corrected. [Emphasis added by the Applicant] 87The Applicant submitted that she would avoid being suspected of trying to influence anyone who is under investigation by refraining from contacting or communicating with the 'affected individual as this person is under restriction not to discuss the incident to anyone, other than the investigating officer'. Further she considered that trying to influence a person to tell a lie was not 'acceptable', it was not 'righteous', was 'totally irresponsible' and 'unbecoming of a very respectable and trustworthy medical practitioner with good character'. 88With respect to reformation of character the Applicant submitted her conduct was not an extreme violation as other cases she had read which involved abuse of illegal drugs, excessive alcohol, gambling and immoral sexual activity. The Applicant also submitted that the findings of the 2011 tribunal had come as a' strong jolt' and she has realised that she must correct her conduct and 'must do my very best to be a better person, a better individual in my profession'. Further, the Applicant submitted that she has also widened her understanding of community life by undertaking the TAFE course. In particular the course has extended her knowledge of professional ethics and conduct, duty of care, 'how nursing work, affecting the community, is actually about protecting the health and safety of patients and people under my care with greater commitment to the Australian public'. 89The Applicant summarises, extends and consolidated the evidence she gave regarding the level of dependence of her family (once again the HCCC has not objected to the additional material in the submissions). The Applicant states that her children do not require her supervision to go about her activities and that her husband is 'self caring and very independent and is able to assist [their] children at any time they needed him'. The Applicant submitted that this allows her to have a high level of commitment to her studies. She also submitted that she was now 'better equipped to deal with challenges ahead in nursing activity' and that she was a 'renewed individual'. 90The Applicant stated that she was not in a financial position to pay the costs of the HCCC at the present time. She is committed to settling the matter but a prerequisite is her securing a stable source of income by returning to work as a registered nurse. The written submissions provided by the HCCC 91The Tribunal had the benefit of a substantial submission from the HCCC which set out relevant history of the matter and legal principles. 92In summary, the HCCC submitted that the evidence of the Applicant made it clear she did not accept the findings of the first tribunal, that she lacked remorse and insight and that she continued to fabricate evidence to benefit her own personal cause. The HCCC submitted that the Applicant was not candid with the referees that she called on her behalf, including Ms LL, who acted as her support person throughout the proceedings. In particular she had not informed them of the allegations made against her or the findings of the first tribunal. 93The HCCC submission raised the value that could be given to the reference evidence in these circumstances. Ms LL had only been told that the Applicant fell asleep on one occasion. When Ms LL was informed of the scope of the allegations and findings she responded by saying 'this is not the person I know'. In her evidence Ms LL provided considerable detail of the training that the Applicant had received in her TAFE course. In particular she provided details of the manner in which consideration should be given of your own conduct. Ms LL spoke of there being a 'Reflective Period' after an incident. The HCCC submitted that the Applicant had not reached this phase as she had not yet made a real admission of her conduct and therefore there can be no reflection. 94The HCCC also submitted that the value of the ethics training the Applicant had undertaken in 2011 is questionable in the circumstances of her not admitting the conduct. Further the ethics training was delivered in the context of community care rather than nursing - the difference being that nursing required a university level qualification, involved the administration of medications and there being a strict hierarchy within nurses especially with respect to the type of duties that can be performed at different levels of qualification. 95The HCCC also submitted that whilst the evidence of the Applicant showed an attempt to hide behind a lack of language skill that the conduct subject of the original complaint could not be explained by language difficulties as the 'mistakes' found were sleeping on duty, allowing an EN to administer medication etc. The HCCC submitted that this was indicative of a lack of insight into her own conduct, a lack of remorse and a lack of candour. 96The HCCC submitted that whilst the character evidence offered by the Applicant may indicate she is a 'nice person' that her evidence reveals a serious character flaw which would carry into her practice as a nurse. At paragraph 25 the HCCC submitted that 'she is dishonest, and when she has a personal issue at stake, she is prepared to sacrifice the truth and her colleagues to get her way, which is contrary to the Code of Conduct'. 97The HCCC submitted that the admissions of mistakes made by the Applicant were: * not documenting and escalating higher within the hospital the issue she raised with the NUM regarding the ENs sleeping on night duty * being too lenient with the ENs and allowing them to sleep although this is what she had observed happening in other parts of the hospital * relying upon the NUMs indication that she could allow the EN to administer medications, and * demonstrating to the EN the administration of IV medications. 98The Tribunal also notes that the HCCC submits that the Applicant only admitted to sleeping on one occasion despite being reminded of the first tribunal's decision and informed as to the protection provided by s38 of NCAT (re self-incrimination).The HCCC submitted that when the Applicant dealt with further evidence relating to Particular 1 (of the original Complaint) she provided inconsistent answers. The HCCC submitted that the Applicant's answers were fashioned to exculpate her by using the example of the evidence she gave in response to a question regarding what she saw as the 'inherent dangers' of sleeping on duty. The Applicant's reply was that it allowed the EN to take 'advantage', which she later explained (after considerable prompting) to be the administering of the IV medication unsupervised. 99With respect to Particulars 2 and 3 of the original Complaint the HCCC submitted that the Applicant gave conflicting evidence as to whether or not she had encouraged the junior nurses to sleep on duty. Ultimately she backed away from the finding that she had encouraged the junior nurses and took the position that her error was not standing up to them when they did take longer breaks to sleep. 100With respect to Particular 4 the HCCC submitted that this was another example of the Applicant blaming someone else for her conduct. Just as she had before the NMT the Applicant maintains it was CNC Brown who pressured her into signing the medication chart when she had not in fact witnessed the administration thereof. Further, the HCCC recounted that despite the Applicant being provided with numerous opportunities during cross-examination to indicate that the danger of not maintaining a good medication chart was overdosing or underdosing it was not until ultimately Mr Denman indicated that he was concerned about overdosing. The HCCC submitted that this was indicative of a lack of insight on the part of the Applicant as well as an inherently dangerous lack of understanding of the inherent dangers of inaccurate medication charts. 101In relation to Particular 5 as established by the NMT the HCCC submitted that the evidence of the Applicant could be seen as continuing her pattern of blaming others. The HCCC also pointed at the evidence of the Applicant where, at one point, she claimed she could not be responsible for this conduct as she was on her break and asleep at the time but later stated that she accepted that the RN is always responsible for supervising the ENs. 102The HCCC submitted that the conduct of the Applicant regarding the manner in which she has dealt with to the allegations surrounding the actions of the EN administering IV medication illustrates her dishonesty and lack of trustworthiness. The HCCC submits that the impact of this lack of honesty and trustworthiness would extend not only to the public safety but would also have an impact on her interactions with other nurses. The relatively contemporaneous admission of the EN of her misconduct stands in contrast to the denial of the Applicant and the pressure she placed on the EN to change her evidence. The HCCC also recounted the evidence of the Applicant, labelling the EN as having 'early dementia' or being 'always forgetful'. The HCCC noted that ultimately the Applicant's evidence before the Tribunal regarding whether or not she had asked the EN to lie during the hospital investigation the Applicant stated 'I'm not saying I'm lying or she was lying'. At this point the Tribunal indicates it is of the view that the evidence given by the Applicant and the EN relating to the relevant Particulars of the original Complaint are not compatible. 103The HCCC drew the attention of the Tribunal to the Applicant still giving evidence that was rejected by the NMT with respect to the reason for the telephone records showing lengthy telephone calls between her and the EN in the days before the EN was formally interviewed by senior staff at the hospital. 104The HCCC submitted that the evidence of the Applicant indicates that the importance of the family doctor knowing the next of kin for the purpose of, for example, obtaining consent for medical care in times of emergency, seemed to be lost on her. 105The HCCC submit that the Applicant has demonstrated she is duplicitous and untrustworthy with her descriptions of the illnesses suffered by her children. The family doctor only recalled one of her children suffering from anaphylactic allergies whereas the evidence of the Applicant claimed, on at least two occasions, that two of her children suffered from this condition. When asked about the treating doctor that had provided the Epipen carried by that child the Applicant provided vague and unbelievable evidence. 106Another area in which the evidence of the Applicant conflicted with other witnesses was the level of activity in the ward on the evening in question. The Applicant's evidence was that the ward was extremely busy, in contrast to the evidence of both the EN on the ward and the After Hours Manager for the hospital. 107The HCCC submit that the Applicant's claim that she would not make the same mistakes again should she be allowed to return to nursing would ring hollow with the Tribunal. In support of this application the HCCC points to the evidence of the Applicant: * The Tribunal asked the Applicant what was now different in her life now and what awareness she had regarding her past mistakes. * The Applicant replied 'It would not have been done'. * Counsel for the HCCC asked what she meant by 'It' in the above answer. * The Applicant answered that she meant her deregistration - she regretted that she was de-registered. * The Tribunal asked her about her regrets and the Applicant added 'had I not gone for a late break this incident wouldn't have happened'. * The Applicant also stated that if she returned to nursing she would ensure that she would tell her supervisors and management both verbally as well as in a document (meaning her concerns regarding the practice of ENs taking longer breaks than allowed under the award and the concerns she had regarding the conduct of the EN). 108The HCCC also made submissions regarding the character evidence the Applicant relied upon. 109With respect to the evidence given by RN Luzuiminda W Azares, a registered nurse, the HCCC submitted: * RN Azares had been the Applicant's support person during the NMT Inquiry * She had worked with the Applicant between 2006 - 2008 although there was some vague evidence regarding working together in 2010 * RN Azares was not aware of all of the allegations faced by the Applicant before the commencement of the NMT * The evidence given by RN Azares ('in every hospital nurses sleep at night' and to the effect that it was appropriate for nurses to decide what breaks they would take) seems to support the Applicant's conduct of sleeping on duty * The fact that the Applicant did not reveal to RN Azares the advice she had been given by the Union to the effect that there were poor prospects of success before the first tribunal prior to that hearing taking place is evidence of the Applicant's lack of candour and duplicity * RN Azares described the Union advice as 'biased' and noted that the Applicant made the following comment about the Union advice: I feel they want me to accept the charges which I have not done and is therefore highly questionable as to their true intentions on the matter. 110The evidence given by RN Azares does not allow the Tribunal to form a view as to whether or not she actually saw the letter from the NSW Nurses and Midwives Association prior to the time she gave evidence. The Tribunal is able to find that RN Azares had formed the view that the contents of the letter were biased against the Applicant. 111The HCCC submitted that if the Applicant had resolved to express remorse and work honestly and diligently through the issues raised in the complaint against her she would have confided in RN Azares and sought her assistance to improve herself. 112The evidence of RN Azares and the Applicant regarding the Applicant's attitude towards the advice given by the Union (in essence accusing the Union of being in league with the prosecution) is submitted by the HCCC as another example of her blaming others for her own conduct. 113Another of the Applicant's referees, Ms DXL gave evidence that she had known the Applicant since July 2013 as a fellow student in the Community Service TAFE course. The HCCC submissions note the following with respect to this reference: * The Applicant only asked for this reference a few days after she was informed of the issues that had come before the original tribunal * Ms DXL stated 'Mary is a good hearted person and is very friendly' * The Applicant only informed Ms DXL that the issue before the original tribunal was that the unauthorised administration of IV medication by an EN which was 'a mistake by the EN' because the EN had no authority to do so. * Ms DXL was unable to nominate any 'mistakes' that the Applicant had admitted making 114As noted above RN LC provided a written reference for the Applicant. In her oral evidence she confirmed she had been a friend and work colleague of the Applicant for many years. The HCCC made the following submissions regarding RN LC's evidence: * RN LC found the Applicant to be 'honest and kind' and a 'good professional nurse ... who cared for her patients'. * RN LC found out about the allegations made against the Applicant from a newspaper article about the outcome of the 2011 tribunal hearing. * RN LC had accepted the Applicant's claim that she had been told to sign the medication chart by a senior nurse * RN LC had been told by the Applicant that the allegations were confined to conduct on one night - 8 February 2009 * RN LC was not aware of any allegations regarding sleeping on duty or allowing an EN to administer IV medications during 2008 and at other times during 2009 * RN LC was not aware of the allegation of asking an EN to change her evidence * The applicant did not seek advice from RN LC as to how best to undertake training to overcome the mistakes she had made 115The HCCC made the following submissions with respect to the evidence of Ms VB: * Ms VB had read part but not all of the 2011 tribunal decision from the internet * From the evidence given by Ms VB it appeared that during the discussions between them regarding this matter the only regret expressed by the Applicant related to the S8 drug keys. * Ms VB had no knowledge of legislation relating to the practice of nursing * Ms VB understood that the Applicant was undertaking the TAFE course to 'learn about the community'. 116Ms IP gave evidence by telephone. She is also a TAFE student and was another of the 18 students that undertook a placement at the community centre. With respect to the evidence of Ms IP the HCCC submitted: * Ms IP considered the Applicant to be very hard working and determined to improve the local area (around the community centre) * Ms IP was impressed at how the Applicant looked after her 'husband' * Ms IP had not read any material about the circumstances of the Applicant's de-registration and the Applicant had informed her that 'her nursing paperwork had been taken away' * Ms IP understood that the Applicant was undertaking the TAFE course so she could commence a career in Community Service 117The HCCC submitted that this final point of the evidence of Ms IP was in conflict with the evidence given by the Applicant that she was undertaking the TAFE course to improve her competence in nursing. The HCCC notes that the Applicant stated in her letter (exhibit A1) that she had 'concluded that I must embark on new perspective towards serving the public as a professional'. Further, the HCCC point to number of courses available that would allow the Applicant to hone her skills and reskill for the workplace. The HCCC submitted that this showed a lack of commitment to nursing as well as a lack of insight into her offending behaviour. 118Overall the HCCC submitted that the evidence of the Applicant before this Tribunal illustrated the findings of the NMT - i.e. that her evidence was 'unconvincing' and that she 'lacked candour and showed a marked tendency to self-justificatory rationalisation, artificial distinctions, and even prevarications ... she was evasive and offered implausible explanations' (see HCCC Submissions [70]). 119The HCCC submitted that the Applicant had not addressed the matters flagged by the NMT as issues she should be in a position to do so on a review application (see at [109] of the NMT Decision). By way of example the HCCC pointed to the NMT's comments re addressing the lapses of judgment and ethical standards identified and demonstrating a proper and ethical understanding of her supervisory duties as a RN. 120The HCCC submitted that the Applicant cannot be considered to have addressed these matters as she had not even admitted much of the conduct had occurred in the face of the tribunal's findings, her continued attempts to discredit witnesses and her lack of candour and trustworthiness. 121The HCCC submitted that something more than an expression of the intention not to re-offend is required (see at [14] Law Society if NSW v Walsh). The HCCC also submitted that the mere effluxion of time does not allow a conclusion that change has occurred and clear proof is required that change has occurred (see at 461 Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448). The Tribunal accepts these as relevant and applicable legal principles. 122The HCCC submitted that the imposition of conditions (as provided for in s163B(4) of the National Law) is inappropriate in light of the Applicant not admitting to any real wronging. 123The HCCC submitted that having regard to the fact that the Applicant bears the onus of proving that she is a fit and proper person, the Tribunal would not be comfortably satisfied on the balance of probabilities that it was appropriate to displace the decision of the NMT and therefore the appropriate order was to dismiss the application under s163B(1)(a). 124The HCCC submitted that the Applicant has demonstrated she had little respect for the order of the previous tribunal awarding costs in favour of the HCCC. These costs have been claimed by the HCCC as $28,000 with an indication it would accept $25,000. These costs have not been paid and the HCCC note that a similar amount had been expended by the Applicant in her unsuccessful appeal to the Supreme Court. 125On the question of costs the HCCC submitted that the power to award costs is set out in s60 NCAT Act. The Tribunal is requires to be satisfied that 'special circumstances' exist. Considerations relevant to such a finding are the relative strengths of the claims made by each party, whether the proceedings were frivolous and vexatious or otherwise misconceived or lacking in substance and any other matter the tribunal considers relevant. The HCCC point to the Applicant's continued dispute of the finding of facts of the NMT, no display of remorse, no demonstration of any technical change, no change in attitude(as she does not admit her errors) to support a submission that the application for restoration to the Register was misconceived and lacking in substance (s60(3)). Issues the HCCC submit fall within s60(3)(c) include: the making of claims without basis in fact, the Applicant's rebuttals of the 2011 tribunal findings, her continued claim that the signing of the medication chart resulted from pressure from the CNC, the claim her daughter is anaphylactic and her claims that she did not speak to the EN re her evidence even in light of the evidence of the lengthy telephone calls. Discussion and findings 126The NMT's conclusions, the factual matters found, together with comments made by the NMT are all relevant to the deliberations of this Tribunal. They are of particular relevance to our consideration of the Applicant's level of insight, state of her judgment and attitude to the findings at the current time. 127Whilst the Applicant makes statements of her intentions to make changes these do not appear to be reflected in her current conduct. By way of example the Tribunal notes the content of the covering letter provided by the Applicant with her submissions, as well as the submissions themselves, are largely unsupported by the actions and oral evidence of the Applicant. There are numerous claims as to the present situation or as to her intentions as to certain matters but these are not supported by the actions of the Applicant. 128As to the submissions made by the Applicant regarding the disadvantaged position that she found herself in, both before the NMT and this Tribunal it should be noted that there is evidence that the Applicant had the benefit of legal advice from the NSW Nurses' Association which, as set out above, provided to be entirely accurate in every regard. Further, the assertions made by the Applicant that she had difficulty comprehending the process before this Tribunal does not accord with the Tribunal's observations. Not only had the Applicant been through a similar process a few years earlier she had also engage in litigation on appeal in the Supreme Court of NSW. The Tribunal notes that throughout the hearing explanation of the process and any legal terms used was provided to the Applicant. The statements regarding not understanding what the HCCC were 'trying to make me arrive at' and that as a result of not having legal advice she was not 'aware if my responses were appropriate' are representative of the general approach the Applicant took to giving evidence before the Tribunal. The Tribunal records its observation that the Applicant consistently appeared to tailor her evidence to what she perceived to be most likely to support her re-registration application. 129The Applicant was far from candid with her referees. There was a process of selectively informing each referee with different parts of 'allegations' as she saw them. The value of these references to the Tribunal is consequentially limited. The Tribunal accepts the submission of the HCCC that there is no reason not to accept that the referees are honest in their characterisations of the Applicant as she presents to them. The Tribunal also accepts the further submission made by the HCCC that the whole process by which the character references were obtained reveal that the Applicant has been dishonest and when a personal culpability was at stake she is willing to sacrifice the truth and place blame on her colleagues ([25] of the HCCC Submissions). 130Prior to considering this aspect the Tribunal notes that the Applicant has maintained denial of significant and substantial elements of the conduct that was found proved by the NMT. Although her evidence regarding her position with respect to the elements that are denied was not presented as a settled position in the evidence before this Tribunal, nevertheless it should be noted that denial of various parts of the proven conduct was maintained with varying degrees of vigour as at the time of this Tribunal. On some occasions the Applicant gave evidence that as she still did not accept that the conduct occurred it would be false to accept that it did occur. This is a position that would be respected by the Tribunal (and has been accepted in previous Tribunals as a position that would not preclude a person from having registration restored) if it had been maintained in a consistent manner by the Applicant throughout her evidence. The Tribunal found that the evidence as to acceptance or otherwise of particular conduct vacillated throughout the Applicant's evidence. 131The Tribunal also notes that the Applicant refers fairly consistently throughout her submission to the Particulars of Complaint that were found to be proved by the NMT as 'alleged'. This is in the context of the substance of these 'allegations' being found proven by an investigation at the hospital level, by the NMT - a decision undisturbed by an Appeal to the Supreme Court. 132At paragraph 5 of her submissions the Applicant states that she can and will accept her mistakes she places the blame for any accepted mistakes on having an 'inappropriate attitude of being not vigilant enough to be on watch of what can or may go wrong during my duty'. In paragraph 33 of her submissions (set out above) the sincere admission of the Applicant is significantly tempered by her claim to have made a 'great sacrifice' by remaining present in the ward whilst she slept. The balance of paragraph 33 of the Applicant's submissions along with the balance of the evidence in this matter are found by this Tribunal to indicate that the Applicant has not accepted that her conduct was found to be improper, unethical or significantly below the standard expected of a RN (of an equivalent level of training and experience). Indeed the applicant sees some of her conduct as virtuous (e.g. remaining physically in the ward whilst sleeping as demonstrative of having put the wellbeing of the patients before her own needs). 133The Tribunal will now deal with each of the issues to be determined as identified above. 1. Does the Applicant accept the conduct found to be proved by the NMT was improper, unethical and was significantly below the standards expected of a registered nurse -noting the Applicant substantially did not accept this conduct as recently as June 2012 before the Supreme? 134In paragraph 24 of her Submissions the Applicant states that she accepted the decision of the NMT 'as this is their prerogative as they are satisfied with the findings of the HCCC as presented'. The fact that the NMT decision was tested and upheld in the Supreme Court has not been accorded significance of any note by the Applicant. 135The HCCC list the matters where the Applicant admits she made a mistake. The Tribunal also notes that essentially these admissions are retracted, at least in part, in some part of her submissions. Admissions made by the Applicant are highly qualified and made with riders. 136With respect to this issue the Tribunal also accepts the submissions made by the HCCC in paragraphs 33 - 39 of the submissions dated 7 February 2014 and finds the Applicant has not accepted the findings of the NMT in any relevant regard. 2. Does the Applicant understand the basis on which the findings of professional misconduct and unsatisfactory professional conduct were founded against her? 137There are numerous places within the evidence and submissions where the Applicant sets out the basis upon which she notes a finding of professional misconduct or unsatisfactory professional conduct was made against her. Upon analysis the Tribunal is not satisfied that the Applicant truly appreciates the reason why her conduct was found to constitute unsatisfactory professional conduct or professional misconduct. Rather, the Applicant has engaged in an exercise of taking extracts from other documents and placing them before the Tribunal as her analysis and position. 138When questioned about the inherent dangers of a registered nurse sleeping on duty the Applicant's response focussed on the danger of an EN 'taking advantage' of the situation of the lack of supervision afforded by the absence of the RN. 139The Tribunal is satisfied that the Applicant is able to identify and repeat some of the reasons for criticism of some of her conduct. The Tribunal is not satisfied that the Applicant comprehends the various Codes, Competencies and Guidelines that form the basis of the criticism of her conduct. When these principles were put forward by the Applicant they rang hollow as to any depth of comprehension or anything other than a superficial replication. 3. Does the Applicant show remorse for her conduct? 140With respect to this issue the Tribunal has had regard to the Applicant's submissions and in particular to the contents of paragraph 33 as illustrative of the Applicant's general lack of remorse for her conduct. Rather the remorse expressed by the Applicant focussed on the circumstances in which she has found herself as a result of her conduct (i.e. being without registration as a nurse and the financial consequences thereof). 141In the view of the Tribunal the suggestion made by the Applicant that there was some form of personal sacrifice on her part by remaining in the ward precinct whilst sleeping is inconsistent with the personal qualities required for a person to be suitable to be a registered nurse. 142The Tribunal also notes the Applicant's continued deflection of responsibility for any of the proven conduct and the irrational constructions by which she blames others for her own conduct. 143The lack of remorse is also reflected in the Applicant's stated position that she felt like she was 'still on trial again' during this Tribunal's hearing. 144The Tribunal also accepts the submissions of the HCCC regarding the Applicant's lack of remorse made, for example, at paragraph 24 of its submission dated 7 February 2014. 4. Does the Applicant acknowledge and appreciate both the severity of her conduct and the potential harm she placed patients in her care and her nursing colleagues? 145There are a number of aspects of the Applicant's evidence that would not allow the Tribunal to be satisfied that the Applicant acknowledges or appreciates the severity of her conduct or the potential for harm (to both patients and nursing colleagues) that resulted from her conduct. 146The Tribunal refers again the contents of paragraph 33 of the Applicant's submissions (see reproduced above). To suggest that she was in some way meeting the needs of her patients by sleeping in the ward rather than elsewhere illustrates the Tribunal's finding that the Applicant does not, other than by way of bare statement, acknowledge or appreciate the severity of her conduct. Rather than appreciate the risk she placed her patients and nursing colleagues at by allowing an EN to administer medication, the Applicant seeks to blame the EN for 'going behind her back'. 147The Tribunal also notes comments made by the Applicant to the effect that she considered that she must 'change my inappropriate attitude' (see paragraph 4 of the Applicant's Submissions for example) illustrate the reason for the finding by the Tribunal that the Applicant was not willing to acknowledge her misconduct. Rather, the manner in which she approached her misconduct was to deflect it onto others, blame others for their influence upon her or to minimise it to a mere expression of attitude rather than conduct. 148The Tribunal also accepts the substance of paragraph 35 of the HCCC submissions dated 7 February 2014. This submission refers to a line of questioning put to the Applicant regarding the dangers of not keeping an accurate medication chart. The Tribunal accepts that the evidence of the Applicant demonstrated a lack of insight and an alarming lack of knowledge regarding the inherent dangers of inaccurate medication charts. 149The Tribunal also notes that the Applicant sought to reduce the severity of her conduct by comparing it to other misconduct matters that involved the use of drugs and alcohol or sexual boundary breaches. On one view of it the Applicant's perspective may be accepted, However, this is a protective tribunal, and it is not designed to punish people for their actions. When patient safety is at risk as a result of a registered nurses neglecting duties, for whatever reason, the Tribunal has an obligation to act in accordance with the provisions of the National Law. 150There was no appreciation observed by the Tribunal of the Applicant understanding the severity or potential for harm of her conduct in particular as it related to sleeping on duty and allowing an EN to administer IV medications. 5.What has the Applicant done to demonstrate she has addressed the deficits in her judgment identified from the findings of the NMT? 151The Applicant has successfully completed the ethics component of the current Community Work TAFE course she was undertaking. The Tribunal also notes the Applicant's statement that she had a plan to help prevent the occurrence of future 'incidents'. The Applicant documents various 'Prevention' measures she will put in place. These are set out in paragraphs 34 to 46 of the Applicant's submissions. An analysis of these 'preventions' provides an illustration of the reasons why the Tribunal has found that the Applicant has not taken ownership for her misconduct and seeks to deflect most if not all culpability for her conduct onto others. 152Undertaking any ethics course and formulating plans (however flawed they may be) are both positive moves on the part of the Applicant. However, it is the view of the Tribunal that the ethical component of the TAFE Course is not sufficiently comprehensive to be comparable to those applicable to registered nurses. The Applicant's understanding of the ethical standards that apply to registered nurses in Australia under the National Registration and Accreditation Scheme is found lacking by the Tribunal. Fundamentally, it is the Tribunal's view that the ethical dimensions of the provision of nursing care extends beyond that applicable to the provision of community care. 6. Is there a risk of recurrence of the behaviour (where this risk is compounded by a lack of insight)? 153The Tribunal finds that the limited understanding demonstrated by the Applicant as to why her conduct was found to be misconduct as well as her significant lack of insight into the severity of the conduct result in there being a high risk that the misconduct would recur should the Applicant's registration being restored. 154As recorded above, the Applicant sought the assistance of the NSW Nurses and Midwives Association prior to the NMT hearing. The advice provided in writing by the Association accurately predicted the course that would eventuate should the Applicant continue to maintain her position with respect to the matters alleged. The Tribunal notes the Applicant still does not appreciate the providence of this advice. 7. Is this Tribunal able to be satisfied that the Applicant has overcome the lack of candour, the tendency to self-justificatory rationalisation, artificial distinctions and prevarication found by the NMT? 155Submissions regarding the Applicant's lack of candour with her character referees are set out in paragraphs 49 to 59 of the HCCC submissions dated 14 February 2014. These submissions are accepted. 156Paragraph 5 of the Applicant's submissions is reproduced above. This paragraph is indicative of the Applicant's tendency to blame others for her conduct, her general lack of candour, her tendency to self-justificatory rationalisation, artificial distinctions and prevarication (as had been found by the NMT). This Tribunal reaches the same view as the NMT; a finding which has more gravity given some three years have elapsed since that original finding and the intervening events. It appears to this Tribunal that nothing has changed in the Applicant's attitude to or acceptance of the finding of the first NMT. 8.Is the Applicant likely to breach any requirements found in the relevant codes of conduct, policy documents or legislation in the future, or does she now fully appreciate the purpose, relevance and application of such requirements? 157In her evidence (and submissions) the Applicant referred to the Code of Professional Conduct for Nurses in Australia. This, along with a number of other key documents, are the essential building blocks for the framework that regulates the conduct of nurses in Australia. The Tribunal was satisfied that the Applicant appreciated that these documents exist and apply to the practice of a registered nurse. However, her evidence did not demonstrate that she comprehends the content of these documents. 158The content of paragraph 41 of the Applicant's Submissions provide an example of the lack of knowledge of the Applicant regarding the legal and policy aspects relating to the administration of medication. The Applicant's evidence with respect to the administration of medication is indicative of a lack of aptitude to apply legislative provisions, policies and procedures to real circumstances. 159Further, the Applicant's use of terms such as 'ranking officer' (see paragraph 42 of the Applicant's Submissions) provide sources of concern as to the Applicant's knowledge of contemporary nursing terminology. 160Overall the evidence of the Applicant demonstrates that she has a significant lack of understanding of the relevant codes of conduct, the status of policies and procedures and the legislative requirements relating to the administration of medications. 161The Tribunal does not doubt that the Applicant understands that some of her conduct was not appropriate. Largely this understanding comes from the sequelae to the conduct rather than an actual appreciation of the elements of the conduct that were unsatisfactory. There is no degree of comfort in the Tribunal that the Applicant understands how her conduct breached the various regulatory requirements. Not only does the Applicant seek to deflect responsibility for breaches onto others, there is little substance to her understanding of the deficits of her own conduct. 162As the Applicant lacks the appropriate level of understanding regarding the conduct the Tribunal cannot, at this time, be confident that the Applicant will not commit further breaches. 9. In all of the circumstances of this case (including the character evidence provided to this Tribunal) is this Tribunal able to repose the trust required in this Applicant to allow her to practice nursing at this time? 163Malleability of the Applicant's evidence before the Tribunal was a prominent feature. The pattern of her evidence was that by and large it was being fashioned to fit the answer the Applicant anticipated would advance her application. The Applicant makes reference in her submissions to her lack of understanding as to what the HCCC was trying to make her 'arrive at' during cross-examination (see paragraph 25 of her submissions). This confirms the observations made by the Tribunal of the manner in which the Applicant fashioned her evidence. 164The evidence of the Applicant regarding the status of her marriage, the claims she has made over time regarding her financial circumstances, and the impact of the health of her children along with claims regarding the need to sell her home as a result of the disciplinary action are all matters that either were not supported or fully supported by the totality of the evidence. 165The Tribunal accepts that the Applicant has taken the step of undertaking further education since the time her registration was cancelled. The evidence before the Tribunal indicates that the Applicant is applying herself to these studies in a diligent manner and will no doubt obtain the qualification she is working towards. 166It is unfortunate that the Applicant was far from frank with the various people from whom she sought references. This limits the weight that can be accorded to them when considering the question of the Applicant's suitability to work as a RN. 167The Applicant's lack of candour with both the Tribunal and her own referees would also not allow the Tribunal to repose trust in the Applicant. 168Whilst candour, honesty, integrity, insight and other characteristics would no doubt be required for a person working in community care, this Tribunal is charged with the responsibility of ensure anyone who is accorded the privilege of registration as a RN is suitable. 169The Tribunal notes that the Applicant was self-represented. As has been noted by previous tribunals this can provide an opportunity to observe the Applicant's demeanour. The Tribunal observation of the Applicant's demeanour, although not determinative, has certainly not assisted her Application. 10. Having regard to the serious findings of the earlier Tribunal should any re-instatement order be subject to conditions? 170Given the failure of the Applicant to remedy the deficits in her practice, her continued lack of understanding of the relevant codes of conduct, policies or legislative requirements, her continued lack of candour, remorse and insight, the Tribunal does not consider any conditions on registration would provide the required level of protection for public safety. 171The Tribunal is of the view that the Applicant's conduct as found proven by the NMT and her evidence before this Tribunal is indicative of her fundamental unsuitability to hold registration as a nurse. Given the period of time this has been evident there must be grave concern that she will never be in a position to demonstrate she has remedied these deficits. 11. In the event the Tribunal determines conditions should be imposed, what conditions would be appropriate? 172Having found that the Applicant has not addressed the defects in her practice identified by the NMT and that in any case there is no set of conditions that could be placed upon the Applicant's registration that would ensure the safety of the public the Tribunal does not have to consider appropriate conditions. General Comments 173The Applicant made numerous statements that she would not conduct herself in the manner described in the Particulars of Complaint in the future. However, in the Tribunal's view that must be seen in the context of her shifting admissions with respect to the conduct and a fundamental lack of appreciation of the wrongness of the conduct found against her (whether or not she accepts the findings). 174The Applicant has not provided any solid or substantial ground to consider finding that she was now a suitable person for the Nursing and Midwifery Board of Australia to consider for registration. The Tribunal is of the view that the evidence of the Applicant has placed her in a less advantageous position to achieve this goal by virtue of issues such as the lack of candour with her character witnesses and the vacillation in her acceptance of any wrongdoing. 175Overall the Tribunal has significant concerns that the Applicant continues to show a lack of aptitude for applying Codes, Guidelines and Policies to her own conduct or a set of facts or practical circumstances. When the Applicant was asked by the Tribunal to describe the correct course of action for signing Medication Charts she was unable to provide an acceptable answer and was unsure about what NSW Ministry of Health Policy might be relevant. The Applicant remains defensive and evasive with respect to the proven conduct. There is little that the Tribunal can point to as a sign that the Applicant is remedying the defects identified in her practice by the NMT. The Applicant's continued lack of candour is of grave concern. In particular her attempts to hide behind language difficulties and to claim 'legal' naivety are considered by the Tribunal as disingenuous. 176NCAT (or any subsequent 'relevant tribunal) is the only appropriate body to review the Orders made herein as provided by ss163 and 163A of the National Law. 177The HCCC submitted that a period of two years should be fixed as the time that must elapse before the Applicant is permitted to seek a review of the cancellation of registration order. The Tribunal considers that this is the minimum period of time that should elapse before another application is made. The Tribunal is of the view that when the Applicant makes a further application, at the very least she must be able to demonstrate she can apply the current guidelines, codes, legislative provisions and policies to her past conduct. 178The Tribunal also notes that the NMT identified in 2011 at [109] that the Applicant would need to satisfy a future tribunal that she 'has addressed the lapses of judgment and ethical standards identified in these reasons in order to have the cancellation reviewed and return to practice.....in particular, she would need to demonstrate a proper and ethical understanding of her supervisory duties as a registered nurse and both willingness and capacity to ensure that her personal responsibilities would not interfere with her professional obligations'. This Tribunal finds that the Applicant has failed to so demonstrate. Rather, her evidence has demonstrated that she appears to lack the personal capacity to understand the nature and full scope of the responsibilities of a registered nurse. Costs 179The Tribunal notes that the Applicant has not paid the costs as ordered in the original NMT. A letter from the Applicant in evidence indicates that payment is conditional on her obtaining re-registration. The Tribunal heard evidence that the Applicant has experienced financial difficulties as a result of the earlier proceedings before the Tribunal and the Supreme Court which has necessitated the sale of an investment property. The applicant submits that she is not in a position to pay costs arising from these proceedings. 180Whether it is simply a question of costs following the event, there having been no disentitling conduct on the part of the HCCC or the fact that the Applicant has brought this application with little to support it, in all the circumstances of this matter the Tribunal is of the view that it is appropriate to award costs in favour of the HCCC. ORDERS 181The Tribunal orders: (1)The Application for Review of Order cancelling registration of Ms Nusrat Mariyam Deano is dismissed. (2)An application under Division 8 of Part 8 of the National Law for review of cancellation of registration may not be made by Ms Nusrat Mariyam Deano until after the expiry of two years from the date hereof, the Tribunal being the appropriate review body. (3)The Applicant, Ms Nusrat Mariyam Deano, must pay the costs of the Respondent 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: 30 July 2014