Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Marquinez [2014] NSWCATOD 125 Hearing dates: 7-8 September 2014 Decision date: 30 October 2014 Jurisdiction: Occupational Division Before: N O'Neill, Principal Member D Beaumont, Nurse Member C Maloney, Nurse Member J Lyon, Lay Member Decision: 1. The tribunal found the subject-matter of complaints one, two and three in this matter proved and the complaints proved. Complaint four was not proceeded with and the tribunal found complaint five not proved. 2. The tribunal cancelled the registration of Orlando Villalobas Marquinez 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). 3. The tribunal ordered that at least two years elapse, from the date of the order in this matter, before Mr Marquinez 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. 4. The tribunal ordered that Mr Marquinez pay the HCCC's costs of proceedings, as agreed or assessed. 5. The tribunal ordered that the non-disclosure order made by Boland ADCJ in this matter on 16 May 2014 be revoked. Catchwords: ADMINISTRATIVE LAW Legislation Cited: Drug Misuse Trafficking Act 1985 (NSW) Health Practitioner Regulation National Law (NSW) Health Care Complaints Act 1993 (NSW) Cases Cited: HCCC v Buksh [2013] NSWNMT 22 King v Health Care Complaints Commission [2011] NSWCA 353 New South Wales Bar Association v Meakes [2006] NSWCA 340 Health Care Complaints Commission v King [2012] NSWMT 9 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Orlando Villalobas Marquinez (Respondent) Representation: F Westwood, Health Care Complaints Commission (Complainant) O Marquinez (Respondent in person) File Number(s): 1420148 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 Orlando Villalobas Marquinez, a Registered Nurse. The panel of NCAT conducting the inquiry comprised a presiding member who is an Australian lawyer, two registered nurse members 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 found the subject-matter of complaints one, two and three in this matter proved and the complaints proved. Complaint four was not proceeded with and the tribunal found complaint five not proved. 3The tribunal cancelled the registration of Orlando Villalobas Marquinez 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). 4The tribunal ordered that at least two years elapse, from the date of the order in this matter, before Mr Marquinez 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. 5The tribunal ordered that Mr Marquinez pay the HCCC's costs of proceedings, as agreed or assessed. 6The tribunal ordered that the non-disclosure order made by Boland ADCJ in this matter on 16 May 2014 be revoked. Issues arising at the commencement of the hearing 7Mr Marquinez 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 him by the HCCC in his absence. It was clear from the letters sent by the HCCC to Mr Marquinez that the HCCC had served all bar 2 of the approximately 113 documents upon which it intended to rely in the hearing of this matter well in advance of the hearing dates. It was also clear that Mr Marquinez had not served any material upon which he intended to rely on the HCCC nor had the HCCC heard from him about this matter. As a result, a second directions hearing was conducted by NCAT on 1 October 2014. At that directions hearing and at the commencement of the full hearing of the matter, the tribunal had available to it a letter, dated 21 September 2014, from Mr Marquinez to the HCCC which stated in part; "In regards to attending the hearing or not on October 7, 8, 9 2014, I am still unsure and undecided ...". 8By a letter dated 2 October 2014 sent by the HCCC to Mr Marquinez by express registered post, Mr Marquinez was advised that it was the HCCC's position that the hearing would commence on 7 October 2014, as listed regardless of whether he attended or not. The letter referred to the time and place of the hearing. It also advised that if the tribunal were to find one or more of the complaints made by the HCCC against him to be proven, it would ask the tribunal to make protective orders. Furthermore, the letter advised that if the tribunal made a finding of professional misconduct against him and/or a finding that he was not a suitable person to hold registration as a nurse, the HCCC would seek an order that his registration as a nurse be cancelled "for a minimum period of 2 years" and an order for costs against him. 9We were satisfied that Mr Marquinez, who was at the first directions hearing in this matter when the arrangements for the exchange of documents between the parties and for the time date and place of the hearing were set down, knew where the hearing would be held and when it would commence. We were also satisfied that he had had ample time to prepare his case to put to the tribunal if he had decided to do so. Consequently we decided to conduct the inquiry into the Complaint against him in his absence. 10At the commencement of the second day of the inquiry, Ms Mathur tendered to the tribunal on behalf of the HCCC a letter from Mr Marquinez dated 1 October 2014 received at the HCCC on 7 October 2014. That letter commenced as follows: "First of all, I would like to express my sincerest apology for not coming to this hearing,..". Those words and other parts of the letter make it clear that, on 1 October 2014 at the latest, Mr Marquinez had decided not to attend the hearing. 11We discussed with Ms Mathur the process for conducting this hearing. We decided that it would appropriate, efficient and fair, in the circumstances of this case, to hear the evidence of the single witness by telephone and then be taken through the documentary evidence before receiving Ms Mathur's submissions on the subject-matter of the complaints being proceeded with. After that we would make our findings on at least sufficient of the complaints and announce them so that Ms Mathur could address us on the question of what protective and other consequential orders to make. 12A further matter related to the conditions imposed on Mr Marquinez's registration by the Nursing and Midwifery Council of NSW on 19 December 2012. The Council provided that conditions 3 to 7 of those conditions were not to be published on the public register. At the first directions hearing in this matter, Boland ADCJ made an order to ensure that the "private" conditions on Mr Marquinez's registration were not disclosed to anyone other than the parties to these proceedings. In the interests of open justice, as Ms Mathur submitted, and because we could not deal with the subject-matter of at least complaints two and three in this matter and make our findings and provide our reasons for our decisions without dealing explicitly with those conditions, we lifted that order. The Complaint and what has to be proved 13In this matter the HCCC's Complaint contained five separate complaints. The first 2 dealt with 2 different kinds of unsatisfactory professional conduct. The third alleged that either separately or together those 2 kinds of unsatisfactory professional conduct amounted to professional misconduct. Complaint four alleged that Mr Marquinez suffered from an impairment, but during the course of the hearing Ms Mathur advised that the HCCC was not pressing that complaint. Complaint five was that Mr Marquinez was otherwise not a suitable person to hold registration as a nurse. 14Our role is to consider the evidence put before us as it relates to the subject-matter of each of the complaints to be proceeded with. We have to be satisfied, on the balance of probabilities, by that evidence as to which, if any, of those 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 15The three volumes of documentary material relied upon by the HCCC in this case were tendered by Ms Mathur. That material was augmented during the hearing as a result of documents relating to the question of whether we should proceed to conduct the inquiry in the absence of Mr Marquinez and documents relating to the review conducted under s150A of the National Law being tendered. The documents tendered were marked Complainant's Exhibits (CE) 1- 121. Mr Wayne Herbert, a drug and alcohol counsellor, gave evidence to us over the telephone. The evidence 16Mr Marquinez was born in 1967. He first registered as a nurse in New South Wales on 22 May 1998 on the basis of his Bachelor of Nursing degree from Centro Escolar University Manilla awarded in 1988 and his experience as a registered nurse. His registration lapsed on 3 May 1999 but was renewed after a 6 month break on 31 October 1999. His registration ceased again on 2 November 2000, but was renewed 18 months later on 30 May 2002. There was another 2 month gap in his registration in 2003. He has been registered as a nurse on the National Register of Health Practitioners since 1 July 2010 and is currently registered until 31 May 2015. However, his registration, under the national registration scheme, was subject to conditions from 19 December 2012 until it was suspended on 29 April 2013. That suspension was lifted on 30 October 2013 but replaced by a series of conditions, essentially the same as those on his registration prior to his suspension, on 29 April 2013. 17However, Mr Marquinez's registration as a nurse had been subject to conditions prior to the national registration scheme coming into existence. On 5 September 2002, Mr Marquinez commenced employment at The Children's Hospital at Westmead as a permanent part-time Registered Nurse. On 12 August 2008, he attended a formal fact-finding interview to discuss what was described as his unsatisfactory attendance record, including punctuality. At that interview, he revealed that he had experienced some personal problems and that he had, until very recently, used the drug ICE. The Director of Nursing at the hospital referred this matter to then NSW Nurses and Midwives Board. The Board referred Mr Marquinez to Dr Samuels who saw him on 29 October 2008. Dr Samuels reported that he saw no neurovegetative symptoms of depression or anxiety, no psychotic symptoms and no suicidality. Dr Samuels reported that Mr Marquinez told him that this was "the first use of substances and he smoked the ICE and did not inject it". Dr Samuels continued; "He states that he has been abstinent for three months now and has no cravings for any substance". 18Dr Samuels recommended that Mr Marquinez enter the Impaired Registrants Program and recommended conditions. On 19 December 2008, the Impairment Panel met and interviewed Mr Marquinez. The panel's report contains information that Mr Marquinez must have provided. The report states that Mr Marquinez went back to the Philippines in January 2008, returned to Australia in February, but went back to the Philippines 2 weeks later for another week during which his 2 ½ year relationship with his girlfriend broke down. Upon his return to Australia alone and depressed, he met some people through a friend and they introduced him to drugs. It was at this time he began taking ICE and this caused him personal and financial difficulties. He began using ICE on a daily basis at the cost of $500 per day. He realised he was in trouble and ceased using the drug in July 2008 and slept for a week after doing so. He appears to be the informant that led the panel to report that between March and August 2008 he began missing shifts and running late for work. 19That was the conduct that led to the formal fact-finding interview at which he disclosed his drug problem which, in turn, led to his employment at the hospital being suspended, his being referred to an Addiction Psychiatrist, Dr Jurd and the Director of Nursing referring the matter to the Board. In her letter to the Board, which was dated 9 September 2008, the Director of Nursing noted that Mr Marquinez was advised to attend Dr Jurd for assessment, that he saw Dr Jurd on 5 September 2008 and had another appointment to see him on 8 October 2008. The panel reported that Mr Marquinz saw Dr Jurd in September but that Dr Jurd assured him that he "was alright" and so Mr Marquinez did not attend any further consultations. 20The panel reported its impression of him as freely admitting his resort to drugs at a time when he was experiencing personal problems, that he recognised the damage he was doing to his physical and financial status and had stopped using immediately. The panel was of the view that he took drugs for a relatively short time and stopped using of his own accord. The panel recommended that Mr Marquinez's registration be subject to conditions. These were that he maintain a therapeutic relationship with his general practitioner at a frequency determined by the practitioner. That he authorise the practitioner to inform the Board of any serious or immediate concerns about his fitness to practise. That he agree to copies of reports from the Impairment Panel and the Board appointed specialists going to his general practitioner. That he advise his employer of these conditions and that he attend the panel for review in 2 months. 21As Mr Marquinez agreed to those conditions, the Board placed them on his registration on 19 December 2008. At the follow up meeting of the panel on 23 March 2009, Mr Marquinez reported that he had been working full-time as a registered nurse at the hospital since 26 January 2009. The panel formed the impression that Mr Marquinez had overcome the problems that led him to use drugs and that he had returned to his position at the hospital. The panel also noted that he had entered an arrangement with the bank to pay down his credit card debt. The panel recommended that the Board remove the conditions on his registration and discharge him from the impairment process. The conditions on his registration were removed in May 2009. 22Mr Marquinez's apparent advice to the panel does not appear to be consistent with what the Drug and Alcohol; Counsellor , Mr Herbert reported in a letter dated 5 August 2013 to the HCCC. In that letter, Mr Herbert stated that; "on 26 June 2013, Mr Marquinez reported a history of drug use since 1996". Mr Herbert's letter continues that Mr Marquinez reported that during the period when he used ICE, he used it no more than once a week and further that he abstained from using ICE for extensive periods including the period 2003 to 2006 and the period 2007 to 2011. 23By a letter dated 13 March 2012 Healthcare Australia (HCA) advised the police that Mr Marquinez had made false claims for payment for shifts in hospitals run by HPA when he did not work those shifts. HCA also advised that it had summarily terminated his employment for serious misconduct. 24By a letter dated 30 March 2012, HCA made a formal notification to AHPRA of Mr Marquinez's fraudulent activity and advised AHPRA that it had notified the police about the matter. 25The investigation of the matter revealed that, between 28 October 2011 and 19 January 2012, Mr Marquinez submitted false claims for shifts not worked on 30 different occasions at 6 different hospitals run by HCA. Each false claim involved Mr Marquinez filling out a timesheet but also falsely signing it as the person authorised to do so. As a result of these false claims, he was paid $12,301.18 that he was not entitled to. 26By a letter dated 24 July 2012, the HCCC advised Mr Marquinez that it was assessing a mandatory notification made in relation to his defrauding of HCA and invited him to make a response. In an email dated 4 August 2012 and headed "written response to complaints", Mr Marquinez stated in part (using his words exactly); "I admit I am guilty of the allegations and complaints made against me. It all happened when I am experiencing some personal issues that I can't handle on my own, I live by myself here and no one really to turn to open my situation and not realising that I am surrounded by the wrong people whom I thought are helping me in my situation but instead put me in a problem that I am now regretting for the actions that I have made". He continued (again using his words exactly) that he was; "now ready to face the consequences of my mistakes" but immediately went on to say; "and I hope that they could give me one last chance to proved to them that I have changed and it only happens due to desperations. I am willing to pay back the said amount...". 27By 7 August 2013, Mr Marquinez had not entered any arrangement to repay HCA for the money he obtained from it by false pretences and there was no other material before us to indicate that he had done so subsequently. 28As part of the investigation of HCA's notification, a delegate of the NSW Nursing and Midwifery Council (the Council) referred Mr Marquinez back to Dr Samuels. Dr Samuels saw Mr Marquinez on 3 October 2012 and, in his report to the Council of the same date noted that he was asked to report on Mr Marquinez's mental health, its potential impact on his performance and practice as a nurse and, if appropriate and to make recommendations as to the possible conditions to be considered by a panel "reviewing this case". 29Dr Samuels reported that Mr Marquinez told him that after seeing him (Dr Samuels) in 2008, he (Mr Marquinez) had some conditions placed on his registration for a short time. Dr Samuels noted that those conditions did not involve urine drug screening or the need to see a psychiatrist or drug and alcohol specialist. Dr Samuels noted that Mr Marquinez reported that he was abstinent until late 2011 and then started using ICE again for a period of 4 months. Dr Samuels noted further Mr Marquiez's reports that he had personal issues again, that he felt his family didn't care for him, that he started mixing with the wrong crowd and, once again, slipped back into a pattern of using ICE on his days off; perhaps 2 or 3 days a week. 30Dr Samuels' report continued the history given to him by Mr Marquinez with Mr Marquinez reuniting with his family later in 2011 and them apologising and blaming themselves for what had happened. He felt much better and much closer to his family as he had more contact with him. He immediately stopped seeing the people he had been associating with and ceased using stimulants without any support from health professionals. He had not used since that time and denied any cravings since that time. However, he did accumulate a $25,000 debt. It was in order to pay back his debts that he began falsifying his time sheets. 31Later in the report, Dr Samuels notes that Mr Marquinez was not currently seeing a psychiatrist, he did not smoke, drank 2 beers a fortnight, didn't use marijuana or any other illicit substance and hadn't used ICE since February 2012. 32In giving his opinion, Dr Samuels noted the similarity in Mr Marquinez's presentation to his previous one (in 2008) and went on to state that Mr Marquinez seemed "once again" to have engaged in a brief period of stimulant use and rapidly found himself in debt. Once again he successfully stopped using stimulants without professional intervention. Dr Samuels stated that, apart from 2 periods of abuse of stimulants, the first in 2008 and the second in late 2011, as far as he could ascertain, Mr Marquinez had no other substance misuse history. He also stated that it might be appropriate to bring Mr Marquinez back into the impairment program and suggested that the conditions to be imposed included at least random drug screening and some formal drug and alcohol follow up and treatment. 33Dr Samuels' suggestion was taken up and Mr Marquinez was referred back to the impairment program. He attended the Impaired Registrants Panel on 13 December 2012 where he gave evidence similar to the matters he reported to Dr Samuels and stated that he was currently working at Nepean Private Hospital. The panel considered that Mr Marquinez did have an impairment which it described as a drug impairment. It recommended that the Council impose 2 public and 5 private conditions on Mr Marquinez's registration as a nurse. Mr Marquinez agreed to these conditions. The five private conditions, which were the relevant ones in relation to the complaints in this matter, were first, that he not self-administer a list of substances including Schedule 8 drugs of addiction, Schedule 4D prescribed restricted substances and any substance detailed in Schedule 1 of the Drug Misuse Trafficking Act 1985. One of the substances in that Schedule is methylamphetamine commonly known as ICE. The next condition, in brief, was that he attend random urine drug testing when working or employed as a nurse. That was followed by a condition requiring Mr Marquinez to establish and maintain a therapeutic relationship with a psychiatrist or a psychologist at a frequency determined by the practitioner. The next condition was that Mr Martinez must provide the Council with the names and contact details of his treating health practitioners, inform them and any future treating health practitioners of the conditions imposed on his registration and a number similar matters. The final condition was that the Council would review him in 3 months. Those conditions were made effective from 19 December 2012. 34It was Mr Marquinez's failure to comply with the first 4 of these conditions that gave rise to complaints two and three against Mr Marquinez. 35By a letter from the Council dated 2 January 2012, Mr Marquinez was advised in some detail of his responsibilities in relation to compliance with and the monitoring of the conditions imposed on his registration as a nurse. This letter contained a summary of the matters he was required to comply with in January 2013. It also advised him that it was his responsibility to comply with the conditions imposed and enclosed all the forms necessary for him to do so. He did not comply with any of those requirements. In a phone call made to him on 18 February 2013, Mr Marquinez was advised by one of the Council's staff members of what he had to do to comply with those conditions. 36On 1 March 2013, one of the Council's staff members, noting that he had not returned any forms or begun urine drug testing, rang and left him a message. A follow up letter was sent by the Council to Mr Marquinez on 1 March 2013. On 18 March 2013 Mr Marquinez was emailed a second copy of the relevant forms and asked to contact the Council. Also on that day he was rung on his mobile and left a message. The Nepean Hospital was also rung, but the representative of the Council making the call was advised that no one of that name was known there. By a letter dated 19 March 2013 Mr Marquinez was advised that he must commence urine drug testing and that the matter of his non-compliance with the conditions on his registration would be put on the Council's agenda for its next meeting. 37On 25 March 2013, Mr Marquinez was personally served with notice of the meeting of the Impaired Registrants Panel scheduled for 13 April 2013 to consider the question of him breaching the conditions imposed on his registration as a nurse. 38The panel met on 13 April 2013, but Mr Marquinez did not attend. Nevertheless, the panel conducted its hearing and formed the opinion that he had breached the conditions imposed on his registration as a nurse. The panel noted that it considered that he had an impairment and that a complaint of impairment be referred to the Council for investigation. The panel also recommended that Mr Marquinez's registration as a nurse be suspended and that before the suspension of his registration was lifted, he be assessed by a Council appointed psychiatrist to determine whether he is fit to practise as a registered nurse. 39By a letter dated 22 April 2013, the Council advised Mr Marquinez of its intention to hold an inquiry under s 150 of the National Law, on 29 April 2013, to determine whether it should take immediate interim action to suspend his registration as a nurse. Mr Marquinez attended the hearing and gave evidence during which he stated in relation to using the drug ICE; "I honestly I tell you I stopped a month ago". That meant that he claimed that he had stopped using ICE in March 2013. Consequently he had breached the first of the private conditions on his registration. The Council suspended Mr Marquinez's registration as a nurse. We note that, less than 2 months after the s 150 hearing, Mr Marquinez's urine screening test on 24 June 2013 was positive for amphetamine. 40By a letter dated 29 April 2013, the Council advised Mr Marquinez of its decision to suspend his registration as a nurse under s 150. That letter also advised him he could, under s 150A of the National Law, seek a review of the Council's decision to suspend him from practising nursing. 41Mr Marquinez requested such a review in a letter to the Council dated 30 July 2013. In that letter, he stated: "Enclosed are documents that show I have attended the treatment and counselling that was required by the Council and I would say that I am now changed and ready to go back to work". One of the enclosed documents was a letter dated 23 July 2013 from Mr Herbert, a drug and alcohol counsellor, noting that Mr Marquinez had been assessed by the Centre for Addiction Medicine, Mt Druitt Drug and Alcohol Network on 26 June and since then Mr Marquinez had attended 2 drug and alcohol counselling sessions. Another of these documents was a letter dated 30 July 2013, from Dr Jeyachandran "To Whom It May Concern". That letter contained 2 sentences as follows: Mr Orlando Marquinez is consulting me for regular D&A counselling and urine drug screening since 30/4/13. His condition improved markedly. 42The other documents sent by Mr Marquinez with his letter dated 30 July 2013, in support of the review he requested, were the results of 4 urine drug screenings conducted on 30 April, 4, 7 and 16 July 3013. All of these were negative to amphetamine type substances. Mr Marquinez did not include the results of the screening test screening test which was conducted on 24 June 2013 and which was positive for amphetamine. Nor did Dr Jeyachandran refer to this screening test in his letter dated 30 July 2013. 43Meanwhile, the HCCC was investigating the notification/ complaint about Mr Marquinez and appears to have begun to investigate the question of impairment. On 1 August 2012, it wrote to Mr Herbert noting that he was providing drug and alcohol treatment to Mr Marquinez and that Mr Marquinez was of the opinion that he (Mr Herbert) was capable of providing information and producing documents relevant to its investigation. Mr Herbert responded to that request by a letter to the HCCC dated 5 August 2013. In it he reported Mr Marquinez as stating, in his initial assessment at the Centre for Addiction Medicine on 26 June 2013, that since he was deregistered as a nurse he had not used ICE. (We note that Mr Marquinez was suspended from practice between 29 April and 30 October 2013). 44Mr Herbert also noted in this letter that Mr Marquinez had reported that he had used ICE from 1996 and that during the periods he used ICE, he used it no more than once a week. He also noted that Mr Marquinez also reported that he had extensive periods when he abstained from using ICE and that these included periods between 2003 and 2006 and 2007 to 2011. 45Mr Herbert continued his letter by reporting that Mr Marquinez had been very engaging and proactive in addressing his past drug use issues while attending drug and alcohol at the Centre. He also reported that, (what we assume from the construction of the sentence) he and Mr Marquinez agreed to an initial treatment plan for Mr Marquinez to attend SMART Recovery groups at the Nepean Centre of Addiction Medicine, to get a referral to see a psychologist, if need be, and to attend for drug and alcohol counselling at the Centre for Addiction Medicine, Mt Druitt. 46In a letter to the Council dated 14 May 2014, Mr Herbert stated that Mr Marquinez had successfully completed drug and alcohol counselling at the Mt Druitt Centre. His letter stated that Mr Marquinez had attended 5 counselling sessions between 13 January and 14 May 2014 when Mr Martinez reported that he no longer required further counselling. That advice led to an agreed 'exit treatment plan" that had 2 components; first that Mr Marquinez could apply to the service in the future if need be and second he could attend Narcotics Anonymous if need be. 47As already noted, Mr Herbert gave us oral evidence over the telephone. It emerged from this evidence the Mr Marquinez had only five counselling sessions at the Centre at Mt Druitt between 26 June 2013 and 14 May 2014. Mr Herbert said he told Mr Marquinez about the SMART groups, but didn't tell him he had to go. He didn't recall whether Mr Marquinez had engaged a psychologist. He also told us that it was up to the individual persons whether they came to the Centre or not. He said it was a "client-driven service" and that they didn't mandate a person to attend the service. It was up to them to decide whether or not they had had sufficient counselling. When asked whether Mr Marquinez had told him that he (Mr Marquinez) had been to 3 Impaired Registrants Panels, he said; "No". When asked whether he would have expected Mr Marquinez to disclose that information, he responded that it was up to each patient to disclose what they wanted to disclose and that the service didn't probe. 48On 1 August 2013, the HCCC also asked Dr Jeyachandran, in terms similar to the letter to Mr Herbert, to provide information and documents about Mr Marqiunez. He replied with a letter dated 24 August 2013. In that letter he noted that Mr Marquinez had seen doctors in the Parkview Medical Centre, where he practised, for various medical problems since 2003. Dr Jeyachanran advised that he saw Mr Marquinez on 30 April 2013; "with a history of drug abuse again due to his personal problems". Dr Jeyachandran advised that Mr Marquinez told him that he had been using ICE twice a week for the past 2 years due to personal problems but that he had stopped using since mid-March 2013. Dr Jeyachandran noted that Mr Marquinez was counselled and had had urine drug screening on 30 April, 4, 15 and 24 July and 13 August which were negative, and screening that was positive for amphetamines on 24 June 2013. He continued; "Mr Marquinez is clinically not depressed or anxious. He is motivated to remain drug free". Dr Jeyachandran noted that Mr Marquinez's treatment plan comprised continuous counselling, fortnightly urine drug screening, regular consultation with Mr Herbert and referral to a psychologist for relapse prevention. 49Neither of these responses from Mr Herbert or Dr Jeyachandran to the requests from the HCCC were available to the Council when it conducted its review of Mr Marquinez's suspension on 28 October 2013. In its reasons for its decision to revoke Mr Marqunez's suspension and reimpose the previous conditions on his registration as a nurse, the Review Committee of Council noted that Mr Marquinez had not been the subject of any complaint about his performance as a nurse. Nor had the Council received any notification that he had misappropriated any drugs or behaved inappropriately in the workplace. The Committee also noted that there was no evidence provided that showed Mr Marquinez's performance as a nurse was not satisfactory. It also noted that it was Mr Marquinez's; "lack of engagement with the Council and lack of compliance with the ... conditions on his registration which led the Committee [of Council] to suspend Mr Marquinez's registration as a nurse". The Committee went on to note that Mr Marquinez had subsequently engaged with the Council and the process of complying with the conditions that had previously been on his registration. The Committee also noted in Mr Marquinez's correspondence that he now recognised the extent of his mistakes and in facing the consequences of his actions was willing to engage in the Council's health program to help stop his addiction. In addition he was willing to agree to whatever conditions the Council required him to accept. NCAT's findings in relation to the complaints Complaint one - Unsatisfactory professional conduct (s 139B(1)(a) and (l)) 50Complaint one alleged that Mr Marquinez was guilty of unsatisfactory professional conduct because he engaged in conduct that demonstrated that the judgment he possessed, or care exercised in the practice of nursing was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and or that he engaged in improper or unethical conduct relating to the practice or purported practice of nursing - contrary to s 139B(1)9a) and (l) of the National Law. 51The only particular of the complaint was that between 28 October 2011 and 19 January 2012, Mr Marquinez submitted false time-sheets in relation to 30 shifts which he did not work but in relation to which he was paid $12,301.18 none of which sum he has repaid. 52The evidence before us confirmed the allegations in the particular and the fact that the false claims were made in relation to 6 different hospitals run by HCA. The evidence also showed that each false claim involved Mr Marquinez filling out a timesheet but also falsely signing it as the person authorised to do so. As already noted, in an email dated 4 August 2012, Mr Marquinez admitted that he was guilty of fraudulently obtaining money through submitting false time-sheets. 53Ms Mathur submitted that Mr Marquinez's misappropriation of the $12,301.18 was evidence of both improper and unethical conduct. We agree. His conduct was manifestly improper and unethical. As a nurse you don't claim payment for shifts you have not worked as a nurse. Consequently we were satisfied that the subject-matter of complaint one and complaint one was proved. Complaint two - Unsatisfactory professional conduct (s 139B(1)(c)) 54Complaint one alleged that Mr Marquinez was guilty of unsatisfactory professional conduct because he contravened conditions imposed on his registration as a nurse by the Council. The single particular was that between 19 December 2012 and 29 April 2013 Mr Marquinez failed to comply with 4 conditions on his registration. 55The first of these conditions was that he not self-administer certain listed substances including any substance detailed in Schedule 1 of the Drug Misuse Trafficking Act 1985 (NSW). As already noted, one substance listed in that Schedule is methylamphetamine commonly known as ICE. On 29 April 2013, Mr Marquez admitted at the s 150 inquiry that he had used ICE in March of that year. In his letter to the HCCC dated 28 August 2013, Dr Jeyachandran reported Mr Marquinez as telling him, on 30 April 2013 that he had stopped using ICE in March 2013. This evidence satisfied us that Mr Marquinez had breached this condition during the relevant period. 56The second of these conditions related to random urine testing. The evidence set out above shows that Mr Marquinez, despite a number of reminders, did not comply with this condition until 30 April 2013, the day after his registration as a nurse was suspended. This evidence satisfied us that Mr Marquinez had breached this condition during the relevant period. 57The third of these conditions was that Mr Marquinez establish and maintain a therapeutic relationship with a psychiatrist or psychologist at a frequency determined by the practitioner. There is no evidence that Mr Marquinez made contact with a either a psychiatrist or a psychologist during the relevant period at all or with a view to establishing a therapeutic relationship. His first contact with Mr Herbert who is a counsellor with social science qualifications and who has a degree in social work was on 26 June 2013, well outside the relevant period. Although it appears that Dr Jeyachandran thought Mr Herbert was a psychiatrist, Mr Herbert was clear in his evidence to us that he was neither a psychiatrist nor a psychologist. This evidence satisfied us that Mr Marquinez had breached this condition during the relevant period. 58The fourth and final one of these conditions was that Mr Marquinez must provide the Council with the name and contact details of all treating health practitioners and 4 other related sub-conditions. Because Mr Marquinez did not comply with the 2 proceeding conditions, despite reminders of his obligation to do so, he was not able and did not comply with this condition. There was no evidence before us that Mr Marquinez informed the Council even of the Medical Centre he attended when wishing to consult a general practitioner. This evidence satisfied us that Mr Marquinez had breached this condition during the relevant period. Consequently, we were satisfied that the subject-matter of this complaint was proved and that the complaint too was proved. Complaint three - Professional misconduct 59The allegation in this complaint, put simply, was that either one of the complaints of unsatisfactory professional conduct found to be proved above, or both of them considered cumulatively, amounted to professional misconduct. Professional misconduct is defined as unsatisfactory professional conduct that is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration - see s 139E of the National Law. 60In this case we considered the unsatisfactory professional conduct found proven in complaint one met the test for professional misconduct. As Ms Mathur submitted, the misappropriation of $12,301.18 is not only both improper and unethical, it is criminal in nature. It was not just a one off act; it involved 30 instances over nearly three months. It needed careful planning and execution as it involved 6 different workplaces albeit all managed by the one organisation, HCA. There was time in the 3 month period for Mr Marquinez to reflect on his conduct and abandon it. While he said he would pay back what he had misappropriated, he has not done so, nor has he entered into any arrangements to do so. Even in August 2012, when he admitted to his misappropriation, he gave excuses showing that he had not taken responsibility for his actions. For these reasons, we considered that this example of his conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration as a nurse. 61We also considered that the unsatisfactory professional conduct found proven in complaint two met the test for professional misconduct. As Ms Mathur submitted, Mr Marquinez has provided no evidence as to why he failed to comply with the conditions which, as Ms Mathur noted, were not difficult to comply with. Despite persistent reminders of his obligation to comply with the conditions, Mr Marquinez made no effort to comply with them, until his registration was suspended and even then his compliance was both incomplete and far from sufficient. Unbeknown to the Committee of Council which revoked his suspension and reimposed the conditions on his registration on 28 October 2013, he had already flouted the first and arguably most serious condition in March 2013 and again in June 2013. The evidence before us includes his admission that he used ICE in March 2013 and must have used it again in June 2014. This is because he provided a urine sample on 24 June 2013 that contained evidence of amphetamine and he claims that he does not use other forms of amphetamine. We also note that, only 2 days later, he saw Mr Herbert for the first time (on 26 June) and claimed that he had not been using ICE since he was suspended (on 29 March 2013). His actions show not only examples of breaches of the conditions, but also a lack of intention, despite statements to the contrary, to comply with any of them. Given the circumstances surrounding his failure to comply with the conditions on his registration, we are of the opinion that this is a very serious example of professional misconduct. Complaint four - Impairment 62On the first day of the inquiry into the Complaint in this matter, Ms Mathur advised that the HCCC was no longer pressing this complaint against Mr Martinez. Nevertheless, she advised that the HCCC did; "rely on all the material tendered thus far in relation to the proof of complaints one, two, three and five, and say all that material is relevant to all the complaints that remain". This means that the HCCC did not seek to prove that Mr Marquinez had an impairment as defined in the National Law. ` Complaint five - Otherwise not a suitable person 63At the commencement of the hearing, we raised our concern that the particulars of complaint five were simply the particulars of complaints one to four repeated and that what was alleged to be the subject-matter of those complaints was the subject-matter of complaint five without the addition of any other material. In other words, there was nothing being added to show what was "otherwise" the basis for finding that Mr Marquinez was not a suitable person to be registered as a nurse. 64Ms Mathur dealt in some detail in her submissions to us with the question of the meaning of the term "not a suitable person". She did not deal with the word "otherwise" immediately before that term. But she did refer us to HCCC v Buksh [2013] NSWNMT 22 and HCCC v Bosanquet [2012] NSWDT 2 to assist us with an understanding of the term "not a suitable person". However in the Buksh Case, the relevant complaint did allege that the practitioner was "otherwise not a suitable person to hold registration as a registered nurse in that he was not of good character". In the Bosanquet Case the relevant complaint alleged only that the practitioner was "not a suitable person to hold registration ...". However it contained 7 particulars alleging 7 different sets of facts as to what rendered the practitioner not a suitable person to practise his profession. Those cases showed 2 different ways of alleging how a health practitioner may be "otherwise not a suitable person to hold registration...". They were cases in which either the complaint itself or the particulars of the complaint alleged ways in which the health practitioner was "otherwise" not a suitable person to hold registration. 65We accept the point that McColl JA made in King v Health Care Complaints Commission [2011] NSWCA 353 at [4] namely that the statutory framework, here the National Law and the Health Care Complaints Act 1993 (NSW), within which, as here, the employers' complaint was brought before NCAT did not require the Director of Proceedings of the HCCC to formulate complaints in a pleading. We also note her honour's view at [6] that there is no analogy between the protective/disciplinary regime relating to the health professions under the National Law and jurisprudence relating to the commencement of criminal proceedings. We also note her view that what she described as "that ancient jurisdiction", which requires a necessary sufficiency of information to found the jurisdiction to deal with an alleged criminal offence, does not apply in terms to the statutory protective/disciplinary jurisdiction created by the legislation that we operate under. 66Our problem in this case is that complaint five does not allege any conduct, condition or action that is "otherwise" than that alleged in relation to the complaints that have already been dealt with and found proven, or in relation to the complaint of impairment, that the HCCC did not press, meaning did not seek to prove, and in relation to which there was insufficient evidence to prove to the required standard of proof that, if it had existed at all, was current at the time of our inquiry. 67In these circumstances, arguably unique to this case, we found that complaint five was not proved. However, we did not consider that anything turned on that finding in the circumstances of this case; as we will point out below. We do note however that we considered that a number of the matters that Ms Mathur submitted went to the question of whether or not Mr Marquinez was a suitable person to practise nursing, were relevant to the question of what protective orders we should make. Protective orders 68In making the protective orders set out below, we were of the view that the key factual matters in this case were Mr Marquiez's misappropriation of HCA's money and his serious breaches of the conditions imposed on his registration as a nurse, both of which matters we found to amount to professional misconduct. Added to them for the purpose of determining what protective orders to make was the evidence of the circumstances surrounding those factual matters as well as Mr Marquinez's explanations avoiding responsibility for his misconduct, his attitude to his misconduct and his lack of candour in providing histories to the health practitioners he consulted or was required to consult. 69As already noted, we were of the view that the misappropriation of HCA's funds and the breaches of the conditions of registration we found proved were separately instances of professional misconduct. While we appreciated that despite such findings we did not have proceed either to suspend or to cancel Mr Marquinez's registration if we thought other protective orders would be sufficient for the protection of the health and safety of the public which is the paramount consideration we must have in mind when exercising our functions under the National Law, in this case we considered that either Mr Marquinez's misappropriation or his breaches of conditions required that his registration as a nurse to be cancelled. 70There are a number of reasons for our position, some of which reasons were submitted to us by Ms Mathur for finding that Mr Marquinez was not a suitable person to hold registration as a nurse. Mr Marquinez used his use of ICE and his debt arising from his claimed use as an explanation, to Dr Samuels at least, for his misappropriation. 71Mr Marquinez claimed to at least Dr Samuels, Mr Herbert and Dr Jeyachandran that he had had stopped using stimulants for substantial periods, but started again when pressure came on him. However, there was also evidence before us, including an admission by him and a urine test showing recent amphetamine use, which satisfied us that he did not always tell the truth. Indeed, we accepted Ms Mathur's submission that Mr Marquinez gave contrary histories to the health practitioners that he encountered and "tailored" his accounts of his use of ICE to best serve the purpose of the day. 72Mr Marquinez's breach of the conditions on his registration as a nurse may have been affected by his use of ICE during the time those conditions were in place. He admitted to use during that time and was found to be a user subsequent to that time through a urine drug test that was positive for amphetamine. Whatever the reason, despite many clear and assisting reminders, he simply didn't comply and gave no explanation for his failure to do so. After he was suspended from practising as a nurse he snapped into action and made out that he had become compliant and intended to remain so. However, the evidence shows, as Ms Mathur submitted, that Mr Marquinez did not keep his word, both before and after his suspension. 73He told Drs Samuels and Jeyachandran and also Mr Herbert that he had stopped using ICE (or stimulants) without the assistance of a health professional. Whether he had in fact done this and actually stopped the use of ICE we only have his word for. But there was evidence before us of his avoidance of available help. He saw Dr Jurd only once associated with his first admission that he used ICE and his suspension from his employment in 2008. He didn't seek the services of either a psychiatrist or a psychologist when that was a condition of his registration as a nurse. When he did seek assistance as part of his activity to have his suspension revoked, he saw Mr Herbert, a drug and alcohol counsellor 5 times. Three of these 5 times were prior to the review of and revocation of his suspension. 74Mr Marquinez has expressed good intentions in the past, but these have come to nothing. As already noted, on 24 July 2012, in relation to his misappropriations, he advised the HCCC that he was then ready to face the consequences of his mistakes, but that he hoped that; "they could give me one last chance to prove to them that I have changed" and it only happens due to "desparations" and that he was willing to pay back the money. He has not done that. 75In the letter to the Council dated 30 July 2013 seeking the review of his suspension, he stated: "Enclosed are documents that show I have attended the treatment and counselling that was required by the Council and I would say that I am now changed and ready to go back to work". 76In his letter to the HCCC dated 21 September 2014, Mr Marquinez stated that he sincerely regretted his in the past that brought him to "my present circumstances" and continued; "I am hoping that I would be forgiven and given one last chance to prove everyone who I am. I consider myself as a hardworking and dedicated nurse for more than 27 years now ...". 77In his letter dated 1 October 2014 in which he advised that he would not be attending the hearing, he reiterated his statement that had been was a hardworking and dedicated nurse for 27 years and went on to state; "I guess my biggest mistake was when I encountered people I thought were friends but instead took advantage of my weakness during my lowest point in life, and gradually took me to this unacceptable habit of taking drugs." He concluded his letter with the words: "I am begging to the people who will take part of this hearing that I will be able to be given one last chance to continue my nursing career". 78Unfortunately these letters show that Mr Marquinez had not yet taken responsibility for his problems. He still blames others for them. Also these letters and other statements show that he has not yet got insight into the fact that he has to do something substantial about what he blames for his problems, namely his drug use. Whether or not that is the reason for his problems, he has yet to appreciate that he needs to seek assistance from people properly equipped professionally to help him and maintain a professional relationship with them for a period they, not he, consider appropriate. Despite his satisfaction in the past in claiming that he gave up drug use without the assistance of health professionals, the evidence before us, including his own statements and letters, demonstrates that that approach has failed if he is of the view that drug-taking is the cause of his problems. 79While Mr Marquinez seeks yet another last chance, he has not been willing to attend the NCAT hearing to deal with the evidence against him, give us his evidence and answer the questions the representative of the HCCC and the questions we may wish to ask of him. 80His failure to attend the hearing and give evidence to us, or as Ms Mathur put it, "Mr Marquinez's lack of engagement in these proceedings" led to her submission that; "it was difficult to silence concerns that he is still abusing ICE" and her reference to the evidence about his urine drug tests and his stated relapses in the past. We note that this would be a matter that Mr Marquinez would have to address in the future. We could have relied on what Tobias JA said in New South Wales Bar Association v Meakes [2006] NSWCA 340 at [77] and drawn from Mr Marquinez's refusal to give sworn testimony in this matter that his evidence would not have assisted his case in resisting a finding of professional misconduct. However he had already admitted his misappropriation and we were very clear in our view of the seriousness of his breaches of the conditions on his registration, so we did not need to do so. 81For all the reasons set out above and also for the considerations, which we considered applied to the circumstances of this case, set out in Health Care Complaints Commission v King [2012] NSWMT 9 at [27] as follows: 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 (not relevant in this case). 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. we ordered that Mr Marquinez's registration as a registered nurse be cancelled. We also ordered, that at least two years elapse from the date of the order in this matter, before Mr Marquinez may apply (make an application for a review under s 163A of the National Law to NCAT to be registered as a nurse on the register of health practitioners maintained by AHPRA. In coming to the conclusion that we needed to make these orders, we accepted Ms Mathur's submission that Mr Marquinez would need a substantial period of engagement with rehabilitation before he would be able to seek a return to nursing. Also, as is clear from what we have set out above, we were of the opinion that Mr Marquinez would need a significant period of time to develop insight into his situation and its actual causes and take responsibility for overcoming those causes, in order to be able to demonstrate those matters, in any review of our order he may apply to NCAT for in the future. Costs 82Ms Mathur sought costs on behalf of the HCCC and made submissions to the effect 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 those submissions and ordered that Mr Marquinez pay the HCCC's costs of the proceedings, as agreed or assessed. The tribunal's orders 83The tribunal found the subject-matter of complaints one, two and three in this matter proved and the complaints proved. Complaint four was not proceeded with and the tribunal found complaint five not proved. 84The tribunal cancelled the registration of Orlando Villalobas Marquinez 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). 85The tribunal ordered that at least two years elapse, from the date of the order in this matter, before Mr Marquinez 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. 86The tribunal ordered that Mr Marquinez pay the HCCC's costs of proceedings, as agreed or assessed. 87The tribunal ordered that the non-disclosure order made by Boland ADCJ in this matter on 16 May 2014 be revoked. ********** 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 October 2014