Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Parsons [2014] NSWCATOD 97 Hearing dates: 18 - 19 August 2014 Decision date: 09 September 2014 Jurisdiction: Occupational Division Before: N O'Neill Principal Member N Miles Nurse Member C Anderson Nurse Member P French Lay Member Decision: 1.The tribunal cancelled the registration of Amity Kim Parsons on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia and maintained by the Australian Health Practitioner Regulation Agency (AHPRA). 2. The tribunal ordered that at least two years elapse, from the date of the order in this matter, before Ms Parsons may apply (make an application for a review under s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law) to the Civil and Administrative Tribunal of New South Wales (NCAT) to be registered as a nurse on the register of health practitioners maintained by AHPRA. 3. The tribunal ordered that Ms Parsons pay the HCCC's costs of the proceedings, as agreed or assessed. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - Occupational division - health practitioners list - Complaint against a nurse - substance dependence - impairment - lack of competence - failure to report charges of and convictions for reportable criminal offences - criminal conviction - unsatisfactory professional conduct - cancellation of registration - costs Legislation Cited: Civil Procedure Act 2013 Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Cieslak [2013] NSWNMT 5 Health Care Complaints Commission v King [2012] NSWMT 9 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Reimers v Health Care Complaints Commission [2012] NSWCA 317 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Amity Kim Parsons (Respondent) Representation: Counsel S Talbert (Complainant) Health Care Complaint Commission (Complainant) No appearance (Respondent) File Number(s): 1420089 reasons for decision Introduction 1This matter, before the Occupational Division, is an inquiry into a Complaint lodged with NCAT by the Health Care Complaints Commission (HCCC) against Amity Kim Parsons, an Enrolled Nurse (Division 2). The panel of NCAT conducting the inquiry comprised a presiding member who is an Australian lawyer, a registered nurse member, an enrolled nurse member and lay member who is not a nurse. Below we set out the decisions of the tribunal, our reasons for those decisions and the orders made by the tribunal. What the tribunal decided 2The tribunal cancelled the registration of Amity Kim Parsons on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia and maintained by the Australian Health Practitioner Regulation Agency (AHPRA). 3The tribunal ordered that at least two years elapse, from the date of the order in this matter, before Ms Parsons may apply (make an application for a review under s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law) to the Civil and Administrative Tribunal of New South Wales (NCAT) to be registered as a nurse on the register of health practitioners maintained by AHPRA. 4The tribunal ordered that Ms Parsons pay the HCCC's costs of the proceedings, as agreed or assessed. Issues arising at the commencement of the hearing 5Ms Parsons was not present at the commencement of the hearing, so we had to decide whether we should proceed to hold the inquiry into the Complaint made against her by the HCCC in her absence. It was clear from NCAT's records of its directions hearings and from the statement, dated 18 August 2014, of Ms Dinahan, the solicitor employed by the HCCC, who had carriage if this matter, that Ms Parsons had been provided, in good time, with all the documents that the HCCC intended to tender to the panel in this case and that she had plenty of time to prepare her case, if she wished to. We were also aware that Ms Parsons had made it clear, on a number of occasions, including on the morning that the hearing commenced, that she did not intend to take part in it. We tried to contact Ms Parsons at the commencement of the hearing on the mobile number that she had been contacted on previously, but were unable to. We decided to continue the inquiry without her being present. 6At the commencement of the hearing, counsel for the HCCC, Ms Talbert, tendered an amended Complaint to us and advised us that that document had been emailed to Ms Parsons. All but one of the amendments proposed simply to repair typographical errors. The substantive amendment added the single particular from complaint five to the particulars of complaint six. As we did not consider Ms Parsons to be prejudiced by these late amendments, we allowed them to be made and proceeded to conduct our inquiry on the basis of the amended Complaint. The Complaint and what has to be proved 7In this matter, the HCCC's amended Complaint contained seven complaints which covered all five forms of complaint that may be made about a registered health practitioner under s 144 of the National Law. Those complaints are: (1)Criminal conviction, (2)Unsatisfactory professional conduct (and) professional misconduct (3)Lack of competence (4)Impairment, and (5)Suitable person. 8Our role is to consider the evidence put before us as it relates to the subject-matter of each of the seven complaints. We have to be satisfied, on the balance of probabilities, by that evidence as to which, if any, of the seven complaints has been proved. It is only after we have found that the subject-matter of a complaint has been proved that we may take action in relation to it and consider whether or not to make a protective order. The responsibility for proving the subject-matter of a complaint lies with the party alleging it - in this case the HCCC. The sources of the evidence 9The two volumes of documentary material relied upon by the HCCC in this case were tendered by Ms Talbert. That material was marked Complainant's Exhibits (CE) 1- 41. Three other documents were tendered. These were marked CE 42-45. No witnesses, other than Ms Dinahan on preliminary questions relating to Ms Parsons' non-attendance at the hearing of the inquiry, were called to give evidence at the hearing. The documentary material tendered to us included clinical and progress notes, documentation relating to Ms Parsons' admissions to hospitals and other places for rehabilitation and other material. It was this documentary material that gave us an understanding of Ms Parsons' history of drug and alcohol use. The evidence 10Ms Parsons was born in 1985. She completed a Certificate IV in Nursing at TAFE NSW and was registered as an enrolled nurse by the then Nurses and Midwives Board of NSW on 17 June 2010. However, despite this significant achievement, Ms Parsons had already had a turbulent life. Before she was 24 years old and before she became an enrolled nurse she had had five children. The first was born in August 2003 and the last in April 2009. The drug and alcohol assessment notes and other notes made during her admissions seeking opiate detoxification show her advising that she began drinking at age 12. In notes made on 31 January 2012, she advised she had not used alcohol for a year, but that she had been abusing it prior to that time. At another time she advised that she first had cannabis at age 13. She began to use amphetamines at age 15 and had continued to use amphetamines on and off from that time. The notes made on 31 January 2012 report Ms Parsons as advising that she started using heroin a year ago and used it "at least three times daily". She spent from $150 to $300 a day obtaining it. However, she claimed that she had reduced her use in the last few days before her admission for detoxification. She also advised that she used prescription opiates occasionally but not regularly. Her partner got these opiates "off the street". 11It is unclear when Ms Parsons began working as an enrolled nurse after her registration, but she stopped working as an enrolled nurse in May 2011, only 11 months after her registration. Notes from NSW Health's Mid North Coast Local Health Network at Port Macquarie dated 17 May 2011 report her as being "9 days out of detox" at Concord Hospital and that she had relapsed immediately into using heroin and speed. This report is consistent with her commencing heroin use early in 2011. The rest of the note is consistent with her having ready access to heroin. A further note, dated 1 June 2011 indicates that Ms Parsons rang to state that she had missed an appointment on 25 May and wished to make another one. She attended an assessment for opiate detox on 6 June 2011 and was accepted for detox to commence on 14 June. However she failed to attend to attend for the program to commence on that day. She had been using drugs on that day and agreed to come the next day, but did not attend. As there was no further contact with her, she was formally discharged fron the drug and alcohol service in Port Macquarie on 11 July 2011. 12By the time she reported her heroin use, her two eldest of her children were with her mother and her three younger ones were with their biological father. It appears that after she met up with her new partner she began to use heroin. 13On 3 December 2011, Ms Parsons went the Accident and Emergency Department of Wyong Hospital and was admitted from there to the Drug and Alcohol Unit with abdominal cramps and nausea and because she wanted detoxification from methadone and heroin. On that day she agreed to commence a period of detoxification immediately. Ms Parsons was admitted to the unit and settled in. However, by 10.30am on 4 December she wanted to discharge herself in order to fly to Western Australia in order to join her partner. She was counselled about the risks of doing this, but by 12.15pm she had signed a discharge against medical advice form which set out the risks of her discharge. She then left the hospital. 14Whether she went to Western Australia or not is unclear. However she came to the notice of the police when she was in the driver's seat of a car in Malta St, Fairfield East, a suburb of Sydney, on 3 January 2012. During a search by a policewoman, she was found to be in possession of a single valium tablet. As she was unable to produce a prescription for that tablet and refused to offer any other explanation she was charged with possession of a prescribed restricted substance (valium). She was convicted of that offence on 30 January 2012. 15At approximately 12.15pm on 15 January 2012, Ms Parsons stole $80.00 worth of petrol from a service station in Port Macquarie. At approximately 12.30pm on the same day, she stole $26.95 worth of petrol from another service station in Port Macquarie. She was subsequently charged with two offences of dishonestly obtaining property by deception as a result of those two incidents and was convicted of both offences. 16On 31 January 2012 she returned to Wyong Hospital and was admitted with opiate withdrawal for detoxification. Her reason for her presentation was noted as being because her supply of heroin was no longer available because her partner was in gaol. The progress notes state that there was extensive scarring and new marks on both her forearms and feet. 17Her progress notes also show that she suffered withdrawal symptoms during her admission to Wyong Hospital. She was discharged on 8 February 2012 into the care of the Kempsey Community Health Centre. Her progress notes state that she was going to stay with her sister. 18Two days later on 10 February 2012, Ms Parsons assaulted her sister and damaged her sister's car. She was charged with both common assault and damaging property as a result of those events and was convicted subsequently of those offences. 19We note that while Ms Parsons was not obliged to report the valium offence to the Nursing and Midwifery Board of Australia (the National Board), she did have an obligation under s 130 of the National Law to report, through AHPRA, both the fact that she had been charged with the other three offences and the fact that she had been convicted of those charges. Ms Parsons reported neither the fact of the charges nor the fact of the conviction for those charges, within seven days as required by s 130. However she did note those convictions on her application, through AHPRA, for re-registration as an enrolled nurse in 2012. Other charges brought by the police against her will be referred to below. She did not bring the fact of either being charged with or convicted of those offences to the notice of the appropriate bodies as required by s 130 of the National Law. 20On 6 February 2012, AHPRA received a Notification (complaint) from a nurse working in the withdrawal management (detox) unit at Wyong Hospital stating that, while a patient in the unit, Ms Parsons had admitted to injecting amphetamines since 15 and injecting heroin and illicit prescription opiates daily for the past 12 months. The notifying nurse expressed concern that Ms Parsons may be impaired as a result of her substance use and may not be fit to practise nursing. 21That notification was referred to the Nursing and Midwifery Council of NSW (the Council). Its Notification Committee met on 24 February 2012 and resolved that Ms Parsons should attend for a health assessment and provide the Council with any information regarding drug use, charges or convictions and any other material that could assist the Council in the assessment of the matter. On 2 March 2012 correspondence was sent to Ms Parsons advising of the notification and of the matters resolved by the Committee. An appointment for her to attend a psychiatric assessment by Dr Samuels, was made for 8 May 2012. Attempts to contact Ms Parsons, though numerous, were unsuccessful until, probably as a result of an email sent to her on 20 August 2012, she contacted the Council by telephone on 22 August 2012. 22Some of what Ms Parsons had been doing in the interval between the time she left Wyong Hospital on 8 February 2012 and when she telephoned the Council on 22 August 2012 was reported on by Michael McCarthy the Nursing Unit Manager of Kempsey Drug and Alcohol Services in a letter to AHPRA dated 3 September 2012. In it he reports that Ms Parsons self-presented at Port Macquarie Drug and Alcohol in March 2012 and was seen by Dr Samara, a Staff Specialist, on 14 March. Dr Samara commenced Ms Parsons on Suboxone before she transferred to Kempsey on 20 March. 23Ms Parsons commenced work as an enrolled nurse at Kempsey District Hospital in early May 2012. Mr McCarthy states that she had stabilised on a dose of 16mg of Suboxone; "and presented motivated in her quest to re-establish her life". He also reported that she had provided clean urine drug samples and was eligible for take away doses (meaning that she did not have to come every day to a clinic to receive her doses of Suboxone). 24However, he went on to report that in early July 2012 Ms Parsons' partner was released from custody and, despite "warnings of apprehension" by those knowing her, Ms Parsons "returned to him". Mr McCarthy further reported that on 15 August 2012, Ms Parsons disclosed that she had, at a wake of a friend, relapsed. She was very remorseful and claimed it to be a one off. However, a urine sample conformed that she had used methyl amphetamine (Ice). 25When Ms Parsons contacted the Council by phone, she stated that she couldn't afford either the time or the money to attend the appointment with Dr Samuels. However she was advised that flights and accommodation could be provided for her at the expense of the Counsel. These were in fact booked and Ms Parsons was advised if this by email. Nevertheless, Ms Parsons did not attend the appointment and did not use either the flights or accommodation booked for her. 26On 28 August 2012, Ms Parsons was driving a car south, in the direction of Sydney, on the F3 freeway when she was stopped for a breath test. She was asked to produce her driver's licence, but was unable to do so. The further enquiries carried out by the police revealed that her licence had been suspended for non-payment of fines. She was charged and convicted of the offence of driving while her licence was suspended. As already noted, she did not report either the charge or the conviction as required by s130 of the National Law. 27The matter of the suspension of Ms Parson's registration as an enrolled nurse will be dealt with below. But at the hearing of her request for a review of the suspension of her registration, held on 6 September 2012, Ms Parsons stated that she did get to Sydney but "really late" on the night of 28 August and that the next day she; "was so completely anxious" that she couldn't go to the appointment with Dr Samuels. In his letter of 3 September 2012, Mr McCarthy reported that Ms Parsons saw Dr Samara, we assume in Port Macquarie, on 31 August 2012 and told him that she had not gone to the appointment in Sydney because she became very anxious. Mr McCarthy also noted in that letter that Ms Parsons and her partner had completed applications to attend Benelong's Haven Rehabilitation Centre and that they were scheduled to be admitted on 10 September 2012 where Ms Parsons would continue to have the support of Kempsey Drug and Alcohol services in relation to the slow reduction of Suboxone. 28Ms Parsons' last day of work as an enrolled nurse was on 26 August 2012 at Kempsey District Hospital, two days before she travelled to Sydney and was caught on the F3 freeway driving while her licence was suspended. 29On 30 August, the Council conducted an inquiry and suspended Ms Parson's registration with immediate effect. However, Ms Parsons sought a review of that suspension and at that review, held on Thursday 6 September 2012, stated that she found out that her registration had been suspended from staff at Kempsey District Hospital when she reported there for work. At that review Ms Parsons noted that she had advised the hospital of her drug and alcohol issues and that she was on an opioid substitution program at the very beginning of her employment there. In a letter "to whom it may concern" and dated 5 September 2012, the Director of Nursing at the hospital noted that Ms Parsons had worked full-time from 14 May 2012 and was on the opioid substitution program. Her report of Ms Parson's work at the hospital was positive starting with a reference to many favourable reports about Ms Parson's good patient care and work performance. 30At the end of the review, the delegates of the Council appointed to conduct the review told Ms Parsons that they were continuing her suspension but that they wanted her to report back after her period at Benelong's Haven. They were looking forward to her period of rehabilitation there being successful. They specifically asked her to keep away from sources of illicit drugs and any of the places where she thought she might be tempted. 31Despite the anxiety about Ms Parsons teaming up again with her partner, there were hopes that the period in rehabilitation at Benelong's Haven would have a good outcome. On 5 September 2012, Mr McCarthy wrote to Centrelink advising them that it was anticipated that Ms Parsons would be at Benelong's Haven for two to three months. He also noted that Ms Parsons would be able to resume full-time employment at Kempsey District Hospital after she had completed her stay at Benelong's and her suspension had been lifted. 32However, Ms Parson's progress notes from Kempsey Community Health Drug and Alcohol show her admitting on 31 August 2012 that she had been using amphetamines once or twice weekly for the last three weeks. Her progress notes for 11 September 2012 show that between 31 August and 9 September 2012 she was using up to $300 of heroin daily and for amphetamines $200 daily. 33On Monday 10 September 2012 Ms Parsons did go to Benelong's Haven with her partner. However he discharged himself on Saturday 15 September and she discharged herself the next day, Sunday 16 September. The Director of Nursing at Kempsey District Hospital brought that matter to the notice of the Council by a letter dated 26 September 2012. She also noted that the Kempsey and Other Drugs Counsellors had not been able to contact Ms Parsons or her partner. The Director of Nursing also went on to note her concern about Ms Parson's then current ability to practice as an enrolled nurse being aware that she had taken some illegal drugs since going to the Council earlier in the month. She also said that she currently supported the suspension of Ms Parson's registration as an enrolled nurse. 34Kempsey Community Health Drug and Alcohol closed their file on Ms Parsons on 9 October 2012. 35On 24 October 2012, Ms Parsons was driving what the police described as a vehicle of interest in Port Macquarie. When she did not indicate before turning, the police stopped her and discovered that she did not have a licence to drive because it was still suspended. The licence of another woman driver was found in the pocket of a jacket that belonged to Ms Parsons that was in the car. She was charged again with driving while her licence was suspended and also with stealing the driver's licence. She was convicted of both charges. 36After Ms Parson's suspension, the matter was then referred to be dealt with via the impairment pathway, but in February 2013 it was redirected to the HCCC for investigation. 37The HCCC's Complaint in this matter was received at NCAT on 5 February 2014 and, after two directions hearings, it came on for hearing on 18 August 2014. 38Port Macquarie Community Health provided an "Update of D & A assessment details" dated 19 February 2014 as well as progress notes from 2012 and April to June 2014 (CE 41). This material indicated that Ms Parsons had another attempt at rehabilitation either late in 2012 or early 2013 at "Transformations Christian Rehabilitation". Whether that attempt was completed or had any success is not known. However Ms Parsons moved from Port Macquarie to Kempsey and from there to Sydney arriving in Sydney in April 2013. She is recorded as indulging in polysubstance use, using opioids, amphetamines and benzodiazepines for three months before entering into treatment at Rankin Court in July 2013. She is then reported as having relapsed again briefly in November 2013 using heroin, MS Contin (morphine), Ice and benzodiazepines. The report states that she denied using "any substance" since late November 2013 and is noted as being stabilised on a set dose of methadone. 39The update described Ms Parsons as, "happily single at present" and focussed on her children. She had the hope to practise nursing again once fully stabilised. Also she had, "nothing before the courts at present". 40Her progress notes from February, April and May 2014 show her attending appointments or otherwise being in touch with Port Macquarie Community Health. However, in June 2014 there was an incident when police found others in a car but in possession of tablets dispensed to her. She had an explanation for how this happened and the notes, from the last entry on 9 July, show her intending to go the the police station to pick up her confiscated tablets and return them to the pharmacy that dispensed them to her. NCAT's findings in relation to the complaints Complaint one - Criminal conviction 41The particulars of complaint one set out the seven criminal offences which the HCCC relied on to prove that Ms Parsons had been convicted of criminal offences. The evidence demonstrated that the particulars had been proved so that we found that the subject-matter of the complaint, and complaint one itself, had been proved. 42We note that it was not part of the HCCC's case to allege, under s 149C(1)(c) of the National Law, that the circumstances of any of the offences, or the offences considered together, were such as to render Ms Parsons unfit in the public interest to practise nursing. Complaint two - Impairment 43The definition of impairment, as it applies to health professionals (and others) under the National Law, has two parts - see s 5. The first part requires that the health professional, here a nurse, to have a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence). The evidence in this case makes it clear that Ms Parsons has been using illicit and other substances, some over many years, in ways that indicate substance dependence, if not on some occasions, substance abuse. 44The second part of the definition requires that the impairment that meets one or more of the descriptions in the first part must also either, in fact, detrimentally affect or be likely to detrimentally affect the health practitioner's capacity to practise their profession. 45In this case the evidence shows that Ms Parsons has been using amphetamines "on and off" since age 15. She began using heroin in 2011. Her progress notes from 31 January 2012 note that she started using heroin a year ago and had been using it, "at least three times daily since ". There was also evidence of uses of Ice and benzodiazepines. Although there were periods when she was not using drugs, there was also evidence that, between April and July 2013 she was using opioids, amphetamines and benzodiazepines for three months. She had another, apparently brief, relapse in November 2013 and was using heroin, MS Contin (morphine), Ice and benzodiazepines. 46While Ms Parsons' failure to attend her appointment with Dr Samuels could be seen as an example of drug use actually affecting her capacity to practise nursing by failure to meet one of the requirements statutorily imposed on her practise of nursing, there is no evidence of her drug dependence actually affecting her ability to work as an enrolled nurse. Nevertheless, we considered that it was a matter of common sense that her substance dependence was likely, at any time she tried to work as a nurse when she was using drugs, to detrimentally affect her capacity to practise nursing. Consequently we were satisfied that Ms Parsons did have an impairment. Furthermore we were satisfied that Ms Parsons still had the impairment at the time of this hearing. We agree with Ms Talbert's submission that, based on the totality of the evidence, it was a reasonable and available inference to draw that Ms Parsons' substance dependency remained in place. The evidence showed that she has had forms of drug dependence since age 15. Also since 2011 at least she had episodes of heroin use which, since 2013 have also included use of amphetamines, benzodiazepines and more recently morphine. While there is no evidence of a further relapse in 2014, there is no evidence that she has made any progress in overcoming her substance dependence and occasional periods of abuse. 47We were satisfied that the subject-matter of the particulars of complaint two were proved and that complaint two was proved. Complaint three - Lack of competence 48What is alleged in this complaint is that Ms Parsons is not competent to practise nursing because she does not have sufficient physical capacity, mental capacity, knowledge and skill to practise nursing. This is because, it is alleged in the particulars, that she has substance dependence and further that she failed, without reasonable excuse, to comply with a direction from the Council to undergo an examination by Dr Samuels on 29 August 2012. The relevant provisions of the National Law are ss 144(c), 139(a), 145E(1) and 145F(a). 49Particular 1 of complaint 3 relates to the fact that Ms Parsons currently has an impairment, namely substance dependence. While that finding of fact led us to find complaint two proved, it also led to us finding that Ms Parsons did not currently have sufficient mental capacity to practice nursing. Our finding that her substance dependence, which is a mental impairment, was likely to adversely affect her capacity to practise nursing necessarily leads, in the context of this case, to a finding that she lacks the mental capacity to practise nursing. This is because her substance dependence is made up of opioid dependence which includes methadone, which she is currently being treated with, and heroin, her amphetamine dependence which is of very long standing, probably benzodiazepine dependence and now possibly morphine dependence. Dependence on these drugs, or even just some of them, makes it much more likely than not that her mental capacity would be affected to such an extent that it would be insufficient for her to practise nursing should she seek to do so. 50Particular 2 of complaint 3 alleges that she failed, without reasonable excuse, to comply with a direction from the Council to undergo an examination by Dr Samuels on 29 August 2012. The evidence shows that she admitted this to both Dr Samara on 31 August 2012 and to the delegates of the Council who took evidence from her, on 6 September 2012, in relation to her application for a review of the Council's decision, made on 30 August 2012, to suspend her registration as an enrolled nurse. 51Section 145F(1) states that, for the purposes of the National Law and any inquiry conducted under it, the failure, without reasonable excuse, to comply with the direction to see Dr Samuels, is evidence that Ms Parsons did not have sufficient mental capacity to practise nursing. We accepted that evidence as sufficient evidence of that matter to find that the subject-matter of Particular 2 to be proved. 52We accept Ms Talbert's submission that there is a statutory connexion between a complaint of impairment and a complaint of incapacity. We also note the views of members of the Court of Appeal in Lindsay v Health Care Complaints Commission [2010] NSWCA 194. Although this case was decided before the coming into force of the National Law, the provisions it deals with are, as noted in 2013 by the then Nursing and Midwifery Tribunal in Health Care Complaints Commission v Cieslak [2013] NSWNMT 5 at [84] "broadly analogous in concept" to the relevant provisions of the National Law. At paragraph [168], Sackville AJA stated: There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of [what is now s 64(1)(a) of the Act. 53We also note the comments of Giles JA at paragraph [2]: With reference to [paragraph] [169] and following of his Honour's reasons, I respectfully do not think that there was any arguable deficiency in reasons in the Tribunal moving from impairment to the appellant not being competent to practice medicine. Reading the reasons as a whole, the basis for finding impairment inevitably led to incompetence to practice medicine. It was not a case where detailed explanation of the step from impairment to incompetence was necessary. 54Taking the subject-matter of both particulars, particularly particular 1, to be proved, we were satisfied that complaint three itself was proved. 55We also note that the approach we have taken in this case is consistent to the approach taken by the then Nursing and Midwifery Tribunal in Health Care Complaints Commission v Cieslak [2013] NSWNMT 5 at paragraphs 85 to 103 in accepting the connexion between a complaint of impairment and a complaint of incapacity. Complaint four - Unsatisfactory professional conduct (s 139B(1)(b)) 56Complaint four alleges that Ms Parsons is guilty of unsatisfactory professional conduct because she has contravened a provision of the National Law. That provision is s 130. Particular 1 alleges that Ms Parsons failed, within seven days of becoming aware of the fact, to disclose to the National Board on each of seven different occasions that she had been charged with an offence that she was required to disclose that fact to the National Board. 57Particular 2 alleges that Ms Parsons failed, within seven days of becoming aware of the fact, to disclose to the National Board on each of seven different occasions that she had been convicted of an offence when she was required to disclose that fact to the National Board. 58The subject-matter of both particulars is set out in detail in the summary of the evidence above. We were aware, from Ms Dinahan's evidence, that Ms Parsons had stated recently that she did not appreciate that even when her registration to practise nursing was suspended, she still had the obligation to disclose those matters to the National Board. If that was Ms Parsons' understanding, she was mistaken. A health practitioner whose registration is suspended is still registered during the entire period of suspension and is still bound by any statutory obligations of a registered practitioner such as those set out in s 130 of the National Law. 59The evidence of these contraventions of the National Law is clear. Consequently we were satisfied that the subject-matter of the particulars, and the complaint, was proved. Complaint five - Unsatisfactory professional conduct (s 139B(1)(l)) 60Complaint four alleges that Ms Parsons is guilty of unsatisfactory professional conduct because she engaged in improper or unethical conduct relating to the practise or purported practice of nursing. The only particular to the complaint alleged that Ms Parsons she failed, without reasonable excuse, to comply with a direction from the Council to undergo an examination by Dr Samuels on 29 August 2012. That matter is clearly established by the evidence. Consequently we found that the subject-matter of this complaint and the complaint itself was both proven. Complaint six - Professional misconduct. 61The allegation in complaint six is that the instances of unsatisfactory professional conduct found to be proved in relation to complaints four and five, either separately or taken together, show that Ms Parsons engaged in unsatisfactory professional conduct of such a serious nature as to justify suspension or cancellation of Ms Parsons' registration as an enrolled nurse. 62The particulars of complaint six were first those of complaint four repeated. These were that Ms Parsons failed to give notice to the National Board that she had been charged with and then convicted of certain charges as required by s 130 of the National Law. The second was the single particular of complaint five repeated, namely her failure, without reasonable excuse, to comply with a direction to undergo an examination by Dr Samuels. 63The particulars of complaint six did not allege that Ms Parsons was guilty of professional misconduct arising from the fact she had an impairment. However Ms Talbert did submit to the panel that if Ms Parson's failures to act, which were the subject-matter of both particulars, were to be seen as arising from her impairment, it was well established that a finding of impairment was no barrier to a finding of professional misconduct. 64As Ms Talbert noted, this matter was dealt with by the NSW Court of Appeal in Reimers v Health Care Complaints Commission [2012] NSWCA 317, at [11] to [13] in particular. In that case it was argued that if it was established that the health practitioner had an impairment then he or she cannot be guilty of professional misconduct. However Basten JA, with whom Campbell and Hoeben JJA agreed, pointed out that that proposition elided two ideas which need to be separated. The first proposition was that conduct which results from an impairment cannot be professional misconduct. The second was that it is manifestly unreasonable to treat misconduct which is the result of an impairment as professional misconduct. 65Basten JA stated that the first proposition was untenable because, as were the facts in that case, gross, repeated, incompetent medical practice did not cease to be such because it was caused by an addiction to alcohol, heroin or other drugs. The practitioner was not unaware of his condition or its consequences, and because he continued to practice as an anaesthetist whilst unable to exercise the necessary care, skill and judgment, his conduct could reasonably be found to constitute professional misconduct. Basten JA also found the second proposition to be untenable. 66In this case there was no evidence about the conduct of Ms Parsons during her actual work as an enrolled nurse other than "many favourable reports ... [of her] good patient care and work performance". While we accept Ms Talbert's submission, the issue was not relevant to this case. What we had to decide was whether or not the particulars alleged, either separately or together, amounted to professional misconduct. As already noted, the panel found the alleged conduct to be unsatisfactory professional conduct. Such a finding is a significant blot on a nurse's professional record and the panel confirms the obligation of a nurse or other health practitioner to comply with the requirements of s 130 of the National Law. However, given the nature of the offences and the particular facts constituting each of those offences in this case, we did not consider, either separately or together, they were of a sufficiently serious nature to justify suspension or cancellation of Ms Parsons' registration as an enrolled nurse. 67We also considered Ms Parsons' failure, without reasonable excuse, to comply with a direction to undergo an examination by Dr Samuels as a serious example of unsatisfactory professional conduct. Again we confirm the obligation of a nurse or other health practitioner to comply with the requirements of s 145E of the National Law when directed to do so. However, given the circumstances of her failure to comply with the direction, the context of this case and her admissions of her failure to comply, we did not consider, either separately or together with the failures to comply with s 130 of the National Law, this particular example of failure to comply with the requirements of s 147E was of a sufficiently serious nature to justify suspension or cancellation of Ms Parsons' registration as an enrolled nurse. 68Given these considerations, we were not satisfied that the subject-matter of complaint six was proved. Complaint seven - not a suitable person 69Complaint seven alleged that Ms Parsons was not a suitable person to hold registration as a nurse under the National Law. As in complaint six, the particulars of this complaint were that Ms Parsons failed to give notice to the National Board that she had been charged with and then convicted of certain charges as required by s 130 of the National Law. A further particular was that she failed, without reasonable excuse, to comply with a direction to undergo an examination by Dr Samuels. 70The HCCC did not include in its particulars of complaint seven a reference to Ms Parsons having an impairment. As Ms Talbert noted during her oral submissions to the panel, the only particulars to complaint seven related to Ms Parsons' breaches of s 130 and her failure to attend to undergo an examination by Dr Samuels. 71As Ms Talbert noted in her written submissions to us, the content of the "suitable person" complaint is not defined in the National Law. However, she went on to submit that assistance in determining the content of that complaint can be obtained by considering s 55 of the National Law which sets out a number of grounds upon which a National Board may decide whether or not a person is suitable to hold general registration in the health profession it is the National Board of. The first of these is that the National Board may refuse registration if it forms the opinion that the applicant has an impairment that would detrimentally affect that person's capacity to practise the profession to such an extent that it would place or may place the safety of the public at risk - s 55(1)(a). 72As we have already noted, there is no evidence of Ms Parsons' substance dependence actually affecting her ability to work as an enrolled nurse. Our finding of impairment was based on her substance dependence being "likely to detrimentally affect" her capacity to practise nursing. There is a difference between the wording of the definition of impairment in s 5 which makes a distinction between an impairment which "detrimentally affects" and one which "is likely to detrimentally affect" and s 55(1)(a) which refers only to "would detrimentally affect". 73We also note that s 144 of the National Law sets out five forms of complaint that can be made about a registered health practitioner. After the complaints based on criminal conviction, conduct, lack of competence and impairment come the final ground of complaint "otherwise not a suitable person". The word "otherwise" may suggest that the suitable person complaint is intended to apply to circumstances not covered by the other four complaints. However, we did not consider that we needed to form a view about these matters in order to determine whether or not complaint seven was proved because we resolved that question by other means. 74Ms Talbert submitted that the offences Ms Parsons committed showed issues of dishonest and violence and a disrespect for the law. She also noted that the failure to attend the appointment with Dr Samuels showed a disrespect for authority. She also referred us to a list of factors that were seen as useful in relation to whether or not a health practitioner was of good character, the form of complaint replaced by the "suitable person" complaint. Insofar as those factors are still relevant, we accept that Ms Parsons' actions which led to some of her convictions were not isolated episodes. There was insufficient evidence before us to determine whether Ms Parsons' criminal convictions arose from a defect of character or whether they were errors of judgement, sometimes significant. 75The panel notes that it was not the HCCC's case that the circumstances of the convictions set out in the particulars to several of the complaints rendered Ms Parsons unfit in the public interest to practise nursing. There was little evidence before the panel about Ms Parsons' motivations in relation to the matters contained in the particulars to complaint seven. However there was evidence of her attempts to deal with at least some episodes of her substance dependence. 76Having considered the evidence relevant to the issue of whether or not Ms Parsons was currently a suitable person to practise nursing, we could not be satisfied that she was not a suitable person. Consequently we found complaint seven not proven. Protective orders 77After being directed to the relevant evidence in the documents tendered to us and after receiving Ms Talbert's written submissions and hearing her oral submissions on whether the seven complaints in this matter were proved, we adjourned to make our findings. After we announced our findings in general terms and continuing in the opinion that Ms Parsons did not wish to take part in these proceedings, we asked Ms Talbert to address us on the question of protective orders and costs. 78Ms Talbert submitted that because if our finding that Ms Parsons was not currently competent to practise nursing, we could, under s 149C(1)(a) of the National Law, make an order cancelling Ms Parsons' registration as an enrolled nurse. She advised that the HCCC requested such an order on the grounds that Ms Parsons' problems could not be overcome in a way that was safe for the public by the imposition of conditions on her registration. She also submitted that cancellation of her registration for at least two years was required for the protection of the public 79In making her submissions, Ms Talbert referred us to Health Care Complaints Commission v King [2012] NSWMT 9 in which the Medical Tribunal summarised the considerations to be taken into account when determining what protective orders to make. In that case the tribunal rejected the practitioner's submission that it may order deregistration only if it finds that the practitioner is permanently unfit to practise. It took the view that the health and safety of the public could be protected only if its decision addressed current unfitness, rather than limiting its consideration to permanent unfitness - see [25]. The tribunal continued in [27]: The jurisdiction of [now NCAT] is protective rather than punitive. The protection of the public is associated with the protection of the profession. The protection of the health and safety of the public encompasses a range of considerations. First, there may be a need to protect the public against further misconduct by a practitioner. Second, there is a need for general deterrence. Third, the high professional standards of the profession must be reinforced and transgressions must be denounced. Fourth, public confidence in the profession must be maintained. Fifth, it may be desirable to make available to the public any special skills possessed by a practitioner. It may be that the circumstances of a particular matter require [NCAT] to give greater weight to some of these considerations, or to consider other matters bearing on the health and safety of the public. 80We took all these considerations into account, except the fifth one, in determining to accept Ms Talbert's submission and cancel Ms Parsons' registration as an enrolled nurse. We were of the view that the fundamental basis for Ms Parsons' current situation was her substance dependence which rendered her currently not competent to practise nursing because of impairment. However, we took a more positive view of Ms Parsons' current situation than submitted by Ms Talbert. Ms Parsons has stated a wish to return to nursing, but before she will be able to she will need to overcome her substance dependence and show that she is able to remain drug free for a substantial period. She will also need to show what she has done to revive her nursing competencies, or practical proposals to revive them. She will also need to show what she has done, and is continuing to do to rebuild and maintain her continuing professional development. These are key matters she would have to deal with, not an exhaustive list of the matters she may have to address before she would be allowed to return to nursing. 81We considered that Ms Parsons would need a minimum of two years to attend to all these things. Consequently we ordered that at least two years elapse before Ms Parsons could apply to NCAT to review the orders made by us and thus clear her pathway back to the nursing profession. 82We considered that, given the circumstances of this case, including the fact that Ms Parsons did not take part in the hearing or any part of the processes involving NCAT, she be required to demonstrate to NCAT, to the appropriate standard of proof that she is able to return to nursing. In doing so she would need to provide evidence from appropriate health professionals that she is both ready and able to return to nursing and to make her case to NCAT, including being questioned by it and other parties taking part in her application for a review and a reinstatement order. 83Ms Talbert submitted that we should reprimand Ms Parsons. We did not consider that a reprimand would do anything to protect the public or assist Ms Parsons in any attempt she may make to overcome the difficulties that lie between her and a return to nursing. Costs 84Ms Talbert sought costs on behalf of the HCCC and submitted that the HCCC, as the successful party was entitled to its costs and had done nothing to preclude an order for the full costs that it was entitled to. We accepted that submission and ordered that Ms Parsons pay pay the HCCC's costs of the proceedings, as agreed or assessed. Orders 85The Civil and Administrative Tribunal of New South Wales (NCAT) made the following orders: 1. The tribunal cancelled the registration of Amity Kim Parsons on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia and maintained by the Australian Health Practitioner Regulation Agency (AHPRA). 2.The tribunal ordered that at least two years elapse, from the date of the order in this matter, before Ms Parsons may apply (make an application for a review under s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law) to the Civil and Administrative Tribunal of New South Wales (NCAT) to be registered as a nurse on the register of health practitioners maintained by AHPRA. 3.The tribunal ordered that Ms Parsons pay the HCCC's costs of the proceedings, 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 Amendments 05 March 2015 - Typographical error in counsel name on coversheet and throughout decision 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: 05 March 2015