Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v BQB [2014] NSWCATOD 157 Hearing dates: 14 November 2014 Decision date: 14 November 2014 Jurisdiction: Occupational Division Before: Boland AM ADCJ Decision: 1. Leave granted to the Health Care Complaints Commission (HCCC) to make an oral application to withdraw the complaint and an application for disciplinary findings and orders filed 17 February 2014. 2. The Tribunal consents to the complaint in respect of Ms BCB referred to Tribunal by the HCCC on 17 February 2014 being withdrawn under cl 12 of Sch 5D of the Health Practitioner Regulation National Law. 3. The application for disciplinary orders filed by the HCCC on 17 February 2014 is dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW). 4. No order as to costs. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal. Professional disciplinary proceedings against a nurse. Where practitioner has surrendered her registration - where practitioner has a serious illness - whether or not in the interests of the public for the complaint to be heard. Legislation Cited: Civil and Administrative Tribunal Act 2014 (NSW) Health Practitioner Regulation National Law Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Khan [2014] NSWCATOD 83 Category: Interlocutory applications Parties: Health Care Complaints Commission (Applicant) BQB (Respondent) Representation: Health Care Complaints Commission (Applicant) BQB (Respondent in person) File Number(s): 142107 Publication restriction: The Tribunal made an order restricting the publication of the name of the practitioner reasons for decision Introduction 1The application before me today is an oral application, which is made by consent, by which the Health Care Complaints Commission (HCCC) seeks an order that the Tribunal consent to the withdrawal of the complaint against [practitioner's name] (Ms BQB) which was lodged in the New South Wales Civil and Administrative Tribunal on 14 February 2014. At the time the complaint was lodged with the Tribunal Ms BQB was a registered nurse. Evidence relied on in support of the application 2The HCCC today provided a chronology of relevant events. That chronology was received by me without objection and has become Exhibit "A" in these proceedings. At an earlier directions hearing a report prepared by Dr Bruce Westmore, Psychiatrist, concerning Ms BQB's health was before the Tribunal. That report is dated 8 July 2014 and I have marked it again, as I understand without objection, as Exhibit "B" in these proceedings. Background to the referring of the complaint to the Tribunal 3The following matters provide the background to this application. Unless otherwise noted by me to be an assertion, I accept as facts established to the relevant civil standard all other material set out below. 4Between 20 May to 25 August 2011 it is asserted by the HCCC that Ms BQB misappropriated supplies of Schedule 4 medication, namely Seroquel, from her place of employment at the [name of a Sydney clinic]. The HCCC further assert on 20 August and 22 August 2011 that Ms BQB's conduct in failing to seek medical assistance for her then de facto partner was inappropriate conduct. It is not in dispute that Ms BQB's former partner was found deceased on 22 August 2011. 5On 5 September 2011 the New South Wales Police made a complaint relating to Ms BQB's role in the death of her former partner. On 9 February 2012 Ms BQB was charged with murder of her former partner. That charge was subsequently withdrawn but two drug possession charges were made against Ms BQB. 6 On 30 July 2012 the Nursing and Midwifery Council of New South Wales (the Council) imposed a condition on Ms BQB's registration requiring her to attend the offices of the Pharmaceutical Services Branch of the New South Wales Department of Health and surrender her drug authority by 14 August 2012. The HCCC assert Ms BQB failed to comply with the condition requiring her to submit her drug authority. 7On 13 February 2013 the HCCC assert that Ms BQB was charged with assault occasioning actual bodily harm in relation to a domestic dispute with a lady who is described in the chronology as Ms B. 8On 6 March 2013 the HCCC assert that Ms BQB was charged with common assault, assault a police officer and assault occasioning actual bodily harm in relation to a domestic dispute with another named gentleman. 9On 16 April 2013 the drug possession charges and the charge relating to the lady referred to as Ms B against Ms BQB were dismissed at the Parramatta Local Court under the provisions of s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 NSW. The Magistrate found, by reason of Ms BQB's health, she was not fit to plead to the charges. 10On 31 May 2013 Ms BQB was convicted of the charge of assault police officer and assault occasioning actual bodily harm at the Burwood Local Court. 11Between February 2012 and June 2013 Ms BQB is asserted to have failed to notify the Australian Health Practitioner Regulation Agency of being charged with criminal offences which carry a punishment of 12 months' imprisonment or more and of her conviction at the Burwood Local Court. Procedural History 12 As a result of these matters a complaint was filed in the Tribunal on 14 February 2014. Thereafter there were a number of directions hearings and a report was prepared by Dr Bruce Westmore on behalf of the HCCC. It is unnecessary for me to catalogue all of the matters that happened at the directions hearings, but by 19 November 2014, Ms BQB provided evidence to the Tribunal confirming that she had sought to tender her resignation to AHPRA and that she was no longer registered with AHPRA. 13The matter was stood over until 11 November to permit Ms BQB to sign a statutory declaration in which she deposed that she would not seek to practise in the future. That statutory declaration has been signed and tendered to me today as part of the evidence before me. The relevant law 14This application is one which is brought under two relevant statutory provisions. The first one is Schedule 5D cl 12 of the Health Practitioner Regulation National Law (the National Law). That provision, which is a New South Wales provision is as follows: (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if-- (a) any of the following circumstances apply-- (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. (2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies. (3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal. 15The other potentially relevant section is s 55 of the Civil and Administrative Tribunal Act. It is found in Part 4 (Practice and Procedure) of the Act and it provides that: The Tribunal may at any stage of proceedings before it dismiss proceedings in any of the following circumstances. 16Those circumstances include if the applicant, or one or more of each of the applicants, withdraws the application or the appeal to which the proceedings relate. 17 I have regard to s 55 noting, however, it is subject to s 35 of the Civil and Administrative Tribunal Act. . . 18The basis of the jurisdiction for me to hear this application as a single member is discussed in another decision of the Tribunal, Health Care Complaints Commission v Khan 2014 NSWCATOD 83 published on 22 July 2014. I incorporate into these reasons [31] to [49] of that decision. Evidence relevant to the application 19I note that Ms BQB was born in 1960. She is accordingly aged 54 years, 20I turn then to what I consider to be the relevant evidence in relation to this application, namely the report of Dr Bruce Westmore. That report is dated 8 July 2014. It is unnecessary for me to set out the background which Dr Westmore records in his report. Much of that is captured in the chronology I have recited earlier in these reasons. 21Significantly, Dr Westmore says as follows: I note in my previous report dated 19 September 2012 that I indicated that [practitioner's name] suffered from a depressive disorder and the differential diagnosis included severe adjustment order with depressed mood or a major depressive disorder. 22The specialist then goes on, under the heading, "Psychiatric Diagnostic Issues" to say: The Axis 1 diagnosis of a depressive disorder remains unaltered following my re-examination of [practitioner's name].. She presents as a tearful, distressed woman and I note some disturbances in her biological functions. While the differential diagnosis continues to include a severe adjustment order with depressed mood or major depressive order, my feelings at this time that is she has an adjustment disorder rather than a major depressive disorder. This illness is severe in nature and it has taken a chronic course. 23Dr Westmore then opines: [The practitioner] continues to experience multiple difficulties. A previous serious charge of murder was dropped by the DPP and two other matters which were before the court at that time were dealt with by way of s 32,[that is of the Mental Health (Forensics Provisions) Act] Unfortunately she faced 2 further assault charges and she was placed on a good behaviour bond in relation to those matters. She provides a history as to how those charges arose. [The practitioner] has experienced a period of homelessness since I last examined her and she re-established some type of contact with a previous partner with whom she had a long-term highly dysfunctional relationship which was characterised by domestic violence. While having further contact with her ex-partner, Bob, she started drinking again and did so for one week. She no longer drinks in a heavy regular fashion, but only occasionally if at all. Unfortunately [the practitioner] has not received ongoing assistance from mental health professionals since I last examined her and she needs to see a psychiatrist. She is suffering from quite a significant depressive condition and I think she would benefit from antidepressants and a hypnotic to assist her with sleep and also medication to treat anxiety. 24Dr Westmore then responded to specific questions that had been posed to him by the HCCC and opined:: [The practitioner] has a chronic depressive illness with significant symptoms of anxiety, the provisional diagnosis is that of a chronic/ severe adjustment disorder with depressed and anxious mood. 25He then goes on to note: This condition would, in my opinion, detrimentally affect her capacity to practice the profession of nursing. 26He then says: She does have reasonably good insight and understanding and appreciation about her condition. She knows that she is depressed and she has reasonably good insight into the fact that her depression will detrimentally affect her capacity to practise nursing. She has indicated she did not think she could work as a nurse. 27Dr Westmore then opines: She does require ongoing treatment. She should be seeing a psychiatrist and she needs treatment with antidepressants, a hypnotic and an anti-anxiety agent. 28Dr Westmore then canvasses the consequences that may follow findings of the Tribunal and in [6] of his letter he notes: If the Tribunal made findings in relation to the complaints and decided to impose conditions on her registration you ask what sort of conditions, if any, should be imposed to best manage any psychiatric problems she currently suffers. I am of the view that [the practitioner]l is totally and permanently disabled in terms of being able to work in any capacity. She should not be working as a nurse at all, because of the nature and severity of her psychiatric and psychological problems. 29He then concludes his report saying: The treatment and recommendations I have made above are for medical reasons and not for registration because, as indicated, I do not believe she should be registered as a nurse. It will be essential that [the practitioner] continues to maintain her relationship with her general practitioner as well as consult a psychiatrist, as earlier noted. Discussion and conclusions 30I have given very considerable weight to, and accept, the opinions expressed by Dr Westmore. They are cogent and relevant to this application. 31In balancing the relevant factors I have taken into account s 3A of the National Law. That is a New South Wales provision and it is in the following terms: In exercising a function under a New South Wales provision the protection of health and safety of the public must be the paramount consideration. 32In this case I am completely satisfied that the public are protected by reason of two factors. First, Ms BQB has, of her own volition, surrendered her registration and secondly she has signed a statutory declaration in which she deposes that she does not intend to seek to be registered again. I have also taken into account Dr Westmore's opinion that, sadly, by reason of her mental illness for which she has much sympathy from me, she is unlikely to be able to work again in the capacity of a registered nurse. 33Matters that one would normally take into account in proceeding with a complaint include, the deterrent impact of any orders made by the Tribunal on other members of the profession and the protection of the public. Those matters, ultimately, in this case, could only lead to orders that the practitioner's registration be cancelled. As that has already occurred. there would be no deterrent value or public safety served by a hearing of the complaint. 34I accept that there is a deterrent value in publication of the Tribunal's proceedings to avoid other practitioners committing similar transgressions which could lead to a complaint. I am satisfied the publication of these reasons, to the extent that they demonstrate the tragic circumstances, and consequences of Ms BQB's illness, will in fact provide sufficient evidence to satisfy the deterrent factor. Costs Issues 35I then finally turn to the issues relating to legal costs of the conduct of the proceedings 36If this matter proceeded before the Tribunal I am satisfied it would probably involve approximately four hearing days. It is almost inevitable, in those circumstances, that a costs order would be sought by the HCCC against Ms BQB at the end of the hearing. Ultimately, those costs are likely to be unrecoverable given Ms BQB's present financial situation. I am very well aware from her Centrelink application that her income is limited to Centrelink benefits. Ultimately, I am satisfied that the cost to the public of New South Wales does not justify these proceedings continuing. 37For all the reasons discussed I am satisfied it is proper for the complaint to be withdrawn. 38The orders of the Tribunal are as follows: Orders (1)Leave granted to the Health Care Complaints Commission (HCCC) to make an oral application to withdraw the complaint and an application for disciplinary findings and orders filed 17 February 2014. (2)The Tribunal consents to the complaint in respect of Ms BQB referred to Tribunal by the HCCC on 17 February 2014 being withdrawn under cl 12 of Sch 5D of the Health Practitioner Regulation National Law. (3)The application for disciplinary orders filed by the HCCC on 17 February 2014 is dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (4)No order as to costs ********** 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: 23 December 2014