Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ferguson [2015] NSWCATOD 14 Hearing dates: 2, 3 and 4 February 2015 Decision date: 11 March 2015 Jurisdiction: Occupational Division Before: N O'Neill, Principal Member S Schulz-Robinson, Professional Member M Kettle, Professional Member A Johnston, Lay Member Decision: The Tribunal found that Mr Ferguson had an impairment. It was satisfied that the subject-matter of both particulars to complaint one were proved and that the complaint itself was proved. The Tribunal found complaint two not proved. As a result the Tribunal made the following orders: 1. The Tribunal reprimanded Mr Ferguson for his failure to take action personally to come to terms with his alcohol dependence or abuse. 2. The Tribunal ordered that Mr Ferguson pay the HCCC's costs of these proceedings, as agreed or assessed. 3. The Tribunal ordered that the decisions and orders set out in these reasons for decision not take effect until the 15th day after these reasons for decision are published. However, if the HCCC wishes to make relevant submissions, it must make application to the Registry to do so within 14 days of the publication of these reasons for decision and the coming into effect of these reasons for decision will be delayed until the proceedings in this matter are completed. If no such application is made, these reasons for decision and the orders therein will come into effect on the 15th day after these reasons for decision are published. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal (NSW) – Occupational division – health practitioner list – Complaint against a nurse – impairment – alcohol dependence or abuse – not competent to practise nursing not proven – reprimand - costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Palmer v Dolman [2005] NSWCA 361 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Health Care Complaints Commission v Cieslak [2013] NSWNMT 5 Health Care Complaints Commission v Parsons [2014] NSWCATOD 97 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Andrew Ferguson (Respondent) Representation: Counsel: B Tronson (Complainant) Solicitors: Health Care Complaints Commission (Complainant) A Ferguson (Respondent in person) File Number(s): 1420147 REASONS FOR DECISION What the Tribunal decided 1. We found that Mr Ferguson had an impairment. We are satisfied that the subject-matter of both particulars to complaint one were proved and that the complaint itself was proved. However we found complaint two not proved. 2. We reprimanded Mr Ferguson for his failure to take action personally to come to terms with his alcohol dependence or abuse. 3. We ordered that Mr Ferguson pay the HCCC's costs of these proceedings, as agreed or assessed. 4. We ordered that the decisions and orders set out in these reasons for decision not take effect until the 15th day after these reasons for decision are published. However, if the HCCC wishes to make relevant submissions, it must make application to the Registry to do so within 14 days of the publication of these reasons for decision and the coming into effect of these reasons for decision will be delayed until the proceedings in this matter are completed. If no such application is made, these reasons for decision and the orders therein will come into effect on the 15th day after these reasons for decision are published. Background to this application 1. Mr Ferguson is a 45-year-old man who was first registered as an enrolled nurse in Queensland in 2002. In May 2009 he was registered as an enrolled nurse in New South Wales. He has also been registered, at different times, in Western Australia and the Northern Territory. He was registered as an enrolled nurse on the National Register for Health Practitioners from 1 July 2010 until his registration was suspended on 3 May 2013 as a result of a decision to do so made by delegates of the Nursing and Midwifery Council of New South Wales (Council) under ss 150 and 150C of the Health Practitioner Regulation National Law (NSW) (National Law). 2. On 7 April 2007, the Queensland Nursing Council (QNC), determined that his full enrolment be cancelled and it issued him with a notice of limited enrolment with conditions. The conditions imposed included that he not consume alcohol within 24 hours of a nursing shift; and have breathalyser tests, alcohol tests and counselling. 3. On 4 December 2009, the QNC removed the conditions on his registration and replaced them with an undertaking from him, signed on 15 December 2009, which included that he would continue counselling and provide urine samples. 4. Between July and December 2010, while Mr Ferguson was employed by Dunedoo Hospital, its Health Service Manager made a notification to the Australian Health Practitioner Regulation Agency (AHPRA), in relation to him. 5. AHPRA notified the New South Wales Council on 7 October 2010 and transferred his undertaking to the QNC to NSW. 6. On 11 January 2011, the Council sent a letter to Mr Ferguson reminding him of his undertaking to the QNC. 7. In January 2013, Mr Ferguson was employed by the Murrumbidgee Local Health District (MLHD) and based at the Hay Hospital. On 14 January 2013, MLHD made a notification to AHPRA that, on 18 December 2012, Mr Ferguson presented for work in an intoxicated state which was manifested by slurred speech, unsteadiness and bloodshot eyes. 8. The Council issued a written notice, dated 12 February 2013, under s 145E of the National Law requiring Mr Ferguson to attend a Health Assessment with Dr Anthony Samuels, a consultant psychiatrist. Mr Ferguson did not attend that appointment. 9. After conducting proceedings under s 150 of the National Law, delegates of the Council imposed conditions on Mr Ferguson's registration as an enrolled nurse. However, on 2 May 2013 other delegates of the Council conducted a review under s 150C of the National Law and formed the view that it was no longer satisfied that conditions on his registration were sufficient and that suspension of Mr Ferguson's registration as a nurse was necessary to minimise the risk to public safety. As a consequence the delegates were satisfied that it was appropriate to suspend Mr Ferguson's registration as an enrolled nurse for an indefinite period. The s 150 Review Committee formally suspended Mr Ferguson's registration. 10. As required by s 150D of the National Law, the Council referred the matter to the Health Care Complaints Commission (HCCC) for investigation. At the completion of its investigation, the HCCC applied to the NSW Civil and Administrative Tribunal (NCAT) for disciplinary findings and orders based on the HCCC's Complaint dated 28 March 2014. 11. That Complaint contained 2 complaints; the first that Mr Ferguson suffered from an impairment namely alcohol dependence or abuse and the second that he was not competent to practise nursing in that he did not have sufficient physical or mental capacity, knowledge or skill to do so. 12. The matter came on for hearing before the Occupational Division of NCAT on 2 February 2015. Issues arising at the commencement of the hearing 1. Mr Ferguson was not present nor was he represented 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. We note that the bundle of documents tendered to us by Ms Tronson on behalf of the Health Care Complaints Commission (HCCC) satisfied us that Mr Ferguson was served personally with all the documents, except the amended Complaint, that the HCCC intended to rely upon in this case by a process server on 20 August and that he had plenty of time to prepare his case, if he had wished to. 2. That bundle of documents also showed that, on 8 December 2014, Mr Ferguson was personally served by a process server with a letter dated 1 December 2014 from the Council advising him of the appointment he was made for him by the Council to attend the rooms in Sydney of Dr Anthony Samuels on 19 December 2014 for an examination by him. That letter advised the purpose of the examination, the fact that the Council would pay the full cost of the consultation if he attended it and that arrangements would be made by the Council for his travel once he had confirmed his intention to attend the appointment. The letter also set out the section of the National Law (s 152B) requiring Mr Ferguson to attend the appointment with Dr Samuels and the consequences relating to him if he did not attend the hearing without reasonable excuse. We also note that the report from the process serving company whose agent served the documents on Mr Ferguson on 8 December 2014 that Mr Ferguson advised that he was no longer interested in the nursing industry and said that he would not be attending the appointment (with Dr Samuels) or calling the Council. The company noted that Mr Ferguson was polite but ripped up the documents served on him and threw them into the bins in front of the unit complex in which he lived. 3. The bundle of documents also shows that on 23 December 2014, of Mr Ferguson was personally served by a process server with a letter from the HCCC advising him of the exact amendments that the HCCC intended to make to the Complaint against him and of the material upon which it intended to rely to prove the new matters it was alleging. Finally, further documents tendered to us showed that on 19 January 2015 a copy of the amended Complaint, together with 15 documents relating to the matter that gave rise to the amendments to complaint two, namely Mr Ferguson's failure to attend the appointment with Dr Samuels and relating to the service of other material referred to above, were served on Mr Ferguson. 4. We were satisfied that Mr Ferguson not only had plenty of time to prepare for the broader allegations against him in complaint one but also had sufficient time to prepare for the expansions of both complaints set out in the amendments, because those expansions related to matters that were either very or relatively recent and in both of which he was the central figure He also had had plenty of notice of the date, time and place in which the hearing would be held. Consequently we decided to conduct the inquiry into the Complaint against Mr Ferguson in his absence. 5. Ms Tronson sought our leave to amend the original Complaint and that leave was given. We were satisfied that the matters covered by the amendments to the particulars to both complaints were well covered in the material served on Mr Ferguson either on 20 August 2014 or subsequently, in the manner and at the times referred to above. The Complaint and what has to be proved 1. The amended Complaint, amended in the way described above, still contains 2 complaints; the first that Mr Ferguson suffered from an impairment namely alcohol dependence or abuse and the second that he was not competent to practise nursing in that he did not have sufficient physical or mental capacity, knowledge or skill to do so. 2. Our role is to consider the evidence put before us as it relates to the subject-matter of each of the complaints. We have to be satisfied, on the balance of probabilities, by that evidence as to which, if any, of the 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 1. A volume of documentary material relied upon by the HCCC in this case was tendered by Ms Tronson. That material was marked Complainant's Exhibits (CE) 1- 85. Other documents were tendered. They were marked CE 86, 86A, 87 and 88. The Following witnesses gave evidence to us, in all cases over the telephone: Dr Anthony Samuels, consultant psychiatrist, Mark Massey, a senior nurse manager, Jeffrey Newman, a deputy nurse manager, Janice Laurence, an Endorsed Enrolled Nurse and Dr Gemma Edwards-Smith, consultant psychiatrist. 2. As Mr Ferguson did not attend the hearing, and was not represented at it, no material was tendered to us on his behalf. The evidence 1. As already noted, the allegations against Mr Ferguson are first that he has an impairment, namely, alcohol dependence of abuse and that that impairment, currently, either detrimentally affects or was likely to detrimentally affect his capacity to practise nursing. The second allegation is that he does not have sufficient physical or mental capacity, knowledge or skill to practise nursing. Consequently we must consider the evidence relevant to those allegations. 2. The first indications that Mr Ferguson may have an alcohol problem available to us are in a letter dated 21 November 2005 from the Director of Nursing (DON) at Longreach Hospital to the Executive Officer of the QNC. In that letter the DON noted one occasion when Mr Ferguson rang in sick at 11.30pm in relation to a shift commencing the next morning at 8.30am. The DON noted that Mr Ferguson confirmed that he had been drinking alcohol. The DON also noted a second occasion when Mr Ferguson was reported to be smelling of alcohol while on a 2.30pm to 11pm shift. Mr Ferguson admitted to having had a heavy night on alcohol, up until 3am the night before. The DON noted a third occasion, which she said was a few weeks later, when Mr Ferguson contacted her at home to advise he would be sick for the next day. He admitted he had been drinking when asked by the DON. 3. In an undated letter to the QNC which appears to be, at least in part, in relation to the matters raised by the DON at Longreach, Mr Ferguson admitted to the 3 occasions referred to by the DON. He admitted to having "a few beers" on 2 of these occasions. In relation to the occasion on which he stayed up until 3am and was reported to have had alcohol on his breath, he stated that he had 8 stubbies of midstrength beer and one can of rum and cola over a period of approximately 71/2 hours. However, he went on to state that; "there has been no impairment of my nursing care as letters [from Dr Tshibangu and the DON state]". 4. Indeed in her letter to the QNC the DON at Longreach stated: "There have been no issues with Mr Ferguson's clinical practice. He has been punctual for work, well presented. Completes the duties allocated to him. He reports any abnormalities to the Registered Nurse in charge. Mr Ferguson works within his scope of practice". Writing from Longreach on 22 November 2005, Dr Tshibangu stated: "I do observe him [Mr Ferguson] working in wards; he seems to do work like any other nurse in the ward. In my opinion he is fit for work". 5. It seems that these and other matters arising in Winton Hospital led to the QNC seeking a report from Dr Nigel Prior regarding Mr Ferguson's fitness to practise nursing. Certainly Dr Prior had both the DON's letter and Mr Ferguson's letter when he interviewed Mr Ferguson in person on 25 January and by telephone on 7 February 2006. In his report dated 8 February 2006 to the Executive Officer of the QNC, Dr Prior referred first to an incident at Winton Hospital that appears to have occurred in the first half of 2005. In relation to that matter, Dr Prior reported that Mr Ferguson acknowledged that he drank alcohol with other nursing staff, in a social context and mostly on his days off. He reported that he consumed 6 to 8 units of alcohol at a time, but denied usually drinking during working days. However, Mr Ferguson acknowledged to Dr Prior that, on the day of the incident, he had had 'a couple of beers at lunchtime' before commencing a shift at the hospital. He admitted this to the DON at the hospital and was advised by his employing agency the next day that his contract had been cancelled. He left the hospital, stayed with a friend for 'a couple of weeks' and then got a job at Longreach Hospital. 6. He reported to Dr Prior that he took up a position there, on 8 June 2005, on the condition that he did not drink prior to shifts. In September 2005 he had an evening out with some work colleagues. He reported having 10 units of alcohol that evening and went to work the following afternoon and was reported to be smelling of alcohol. He was interviewed by the DON and when he admitted to drinking the night before, she sent him off duty. 7. A few weeks later he reported being upset and drinking heavily, consuming 10 units of alcohol, after an incident in which another person crashed his car and refused to pay in full for the damage done. 8. We note that Dr Prior reported only 2 incidents of drinking at Longreach on the part of Mr Ferguson, not the 3 referred to by the DON in her letter to the QNC and in Mr Ferguson's undated letter. We note also that Dr Prior reported an explanation by Mr Ferguson for his night of heavy drinking, an explanation that he did not offer either to the DON or in his undated letter to the QNC. 9. Dr Prior reported Mr Ferguson acknowledging his increase in alcohol abuse over the 8 months prior to his consultation with Dr Prior and to intermittent binge-drinking which resulted in referrals to the directors of nursing of two hospitals and a number of occasions in which he called in sick due to the after effects of an alcohol binge. Dr Prior concluded that Mr Ferguson had alcohol abuse in early remission together with adjustment disorder and depressed mood (in remission). He also stated that Mr Ferguson was cognitively intact and that his intelligence was average as judged by his vocabulary. 10. While Dr Prior did not consider Mr Ferguson unfit to practice nursing, nor that it was necessary to suspend his registration, he did consider that it would be advisable that Mr Ferguson not drink alcohol on any day on which he was working on within 24 hours of working a shift. He stated that it would be appropriate for Mr Ferguson to be monitored over a 12 month period with breath testing prior to the commencement of each shift to detect the presence of alcohol and three monthly blood tests of CDT, MCV, LFTs, to monitor longer term progress. 11. Whether as a result of Dr Prior's report or otherwise, on 7 April 2007, the QNC determined that Mr Ferguson's full enrolment be cancelled and issued him with a notice of limited enrolment with conditions. The first condition was that Mr Ferguson could practise nursing only if his breathalyser test at the beginning of each shift was negative to alcohol. He was required to undergo breathalyser testing at the commencement of each shift. The second condition was that he could only provide care under the supervision of a registered nurse nominated by his employer. Other conditions included that he not consume alcohol within 24 hours of a nursing shift; and have 3 monthly blood tests of CDT, MCV and NFT's performed through his general practitioner. He was to have counselling and continue treatment with a treating general practitioner. He was to authorise his employers, counsellors and general practitioners to report to the QNC if they had concerns about competence and fitness to practise nursing. Mr Ferguson's limited enrolment was to remain in effect for 2 years from 7 April 2006. However the QNC noted in these conditions that it proposed to review the limited enrolment within 12 months of the receipt of a satisfactory report first from Mr Ferguson's employer detailing his fitness and competence to nurse and second from his counsellor. Such a report was received from Mr Ferguson's employer on 28 February 2007 and from his counsellor on 13 March 2007. However, it was also required that all his breathalyser and blood tests must be negative. 12. Mr Ferguson commenced working at Mt Isa Hospital on 6 March 2006. Before 1am on the morning of 12 December 2006, a Nurse Manager at Mt Isa Hospital received 2 telephone calls from Mr Ferguson about his attempt to give up smoking by going 'cold turkey', how that was not working and was there anything she could do to help. She suggested that if he needed medical treatment, he should go to the Emergency Department to be seen by a doctor. Mr Ferguson took her advice. The Nurse Manager went to the Emergency Department at 1.25am to await his arrival. She reported to the Assistant Director of Nursing for the Mt Isa District that Mr Ferguson arrived at the Emergency Department very unsteady on his feet with his speech slurred and stated that he had had '3 wines'. He made demands about being admitted to hospital and it took until 5am to get him back to his room. The Nurse Manager noted that she had had frequent phone calls from Mr Ferguson and while she was supportive, she felt that she did not have the skills required to counsel him. Nevertheless, she stated that she was very concerned about his wellbeing and changes in his behaviour in the 'past few months'. However, she went on to state: "While at work [Mr Ferguson] is always on the ball and does his job very well. I have never received any complaints from other staff members". 13. The employer's report dated 28 February 2007 referred to above was written by the District Director of Nursing. She noted that since the limitation had been imposed on Mr Ferguson's registration, all his breathalyser tests had been negative [to alcohol] and his supervisors had reported that his clinical practice was generally competent and that he related very well to his patients. She went on to state that while those statements indicated that Mr Ferguson was competent to practise without limitation, she advised caution. She then went on to state that because of some incidents in the hospital's staff quarters, which she did not elaborate upon, they indicated that Mr Ferguson; "still had some issues with alcohol". She then noted that, at times, he had little consideration for others, kept people awake and had been abusive; further that he had little insight into his behaviour. She also noted that Mr Ferguson was aware of not presenting to work when he had been drinking, that he had had a significant amount of sick leave, although less in the last few months before she wrote her report. She also referred to an incident when a patient was very anxious because, in the view of the patient, Mr Ferguson's hands were, "shaking uncontrollably". She noted however that Mr Ferguson had stated that he was coming down with flu at the time. Nevertheless, she expressed the view that Mr Ferguson was not fully in control of his condition and that she would feel more confident in patient safety if the breathalyser testing; "were continued for some time yet". She then continued: "Without this incentive, I believe that he would not be able to limit his alcohol intake to ensure that he would be fully competent and safe for himself, other staff and patients". 14. In her submissions Ms Tronson urged us on a number of occasions to draw inferences from the evidence as part of the process of being satisfied that the subject-matter of the complaints had been proved. To assist us to understand the legal requirements for doing this, she referred us to Ipp JA's decision in Palmer v Dolman [2005] NSWCA 361 at [41] in which are set out what Ipp JA called the well-established principles for determining, in civil cases, whether circumstantial evidence leads to an inference, in this case, that helps prove one or either of the complaints against Mr Ferguson. One of the principles is that an inference drawn from proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful. 15. In relation to the District Director of Nursing's letter she refers to the fact that Mr Ferguson has had breathalyser testing prior to all the shifts that he has worked and that all those tests had been negative to alcohol and she reports no fault in relation to his nursing practice. Nevertheless she appears to be suggesting that alcohol is the basis for his disruptive behaviour in the hospital's staff quarters and his lack of insight into his behaviour and his significant but reducing amount of sick leave. However, his behaviour in the staff quarters could be because he has an aggressive personality and he may have taken sick leave because he was sick and his reduced use of sick leave may be because he was recovering. The explanation given by Mr Ferguson for his shaking hands, namely that he was coming down with the flu is far from fanciful in the absence of any other evidence including whether or not he then took sick leave. 16. By a letter dated 6 March 2007, received at the QNC on 13 March 2007, Mr Ferguson's QNC approved drug and alcohol counsellor reported that he presented for mandatory counselling and monitoring in April 2006 and that he had been seen for counselling approximately once a week for the last 10 months. The counsellor reported significant progress, but continued: "It is my understanding that with the exception of one 'binge drinking' episode on his birthday in December, [Mr Ferguson] has been free of alcohol related problems during the past year". In the report the counsellor noted that Mr Ferguson had stated that he was committed to not drinking alcohol on any day he was working or for 24 hours prior to a shift. The counsellor's opinion was that Mr Ferguson was fit to practise nursing, but the he needed to find another counsellor as she had left Mt Isa. The new counsellor appears to have been Dr O'Rourke, who first saw Mr Ferguson in that capacity on 18 June 2007, as will be seen below. 17. Dr Prior saw Mr Ferguson in his rooms again on 11 May 2007. At that consultation, Mr Ferguson admitted to 3 bouts of binge-drinking. The first 2 were while he was on holidays in Woy Woy visiting his family when he drank 12 units of alcohol on each occasion. Dr Prior noted that Mr Ferguson's liver functions tests and CDT were elevated into the significant range during that time. Dr Prior noted that Mr Ferguson had returned to work in mid-February and that his most recent blood tests, on 31 March 2007 of full blood count, liver function and CDT were all in the normal range as were the blood tests performed on 11 May 2007. The third occasion was in early May about a week before his consultation with Dr Prior. Dr Prior reported Mr Ferguson as stating that he had 7 units of alcohol. 18. Dr Warren, who was Mr Ferguson's general practitioner for blood tests reported, in a letter dated 23 March 2007, that Mr Ferguson contacted him on 12 December 2006 requesting him to suppress the results an adverse liver function test. Mr Ferguson denied this vehemently Dr Prior noted the Dr Warren had indicated that there were some concerns that Mr Ferguson had been intoxicated in the work place. However, Dr Prior noted that, to date, all Mr Ferguson's breathalyser tests had been negative to alcohol. 19. Later in his report, Dr Prior stated that Mr Ferguson had continued to abuse alcohol intermittently since he saw him in early 2006, noting the blood tests that were elevated during Mr Ferguson's holidays in early 2007 but in the normal range later. This led him to confirm his diagnosis that Mr Ferguson's alcohol abuse was in early remission. Dr Prior also noted that Mr Ferguson continued to see his general practitioner and his drug and alcohol counsellor regularly. He also noted that Mr Ferguson had been referred to the Alcohol, Tobacco, and Other Drugs Services (ATODS). In fact the Assistant Director of Nursing at Mt Isa Hospital had directed him to do so by a letter dated 13 December 2006. 20. Dr Prior continued his report by noting that while Mr Ferguson reported that he had, "backed right off alcohol", he continued to drink excessive amounts intermittently. While Dr Prior considered Mr Ferguson's intake at these times to be in the hazardous level, he was of the opinion that Mr Ferguson did not show any evidence of an alcohol dependence syndrome. In Dr Prior's opinion, Mr Ferguson was not unfit to practise nursing and did not need his registration to be suspended. However, Dr Prior took into account what he described as Mr Ferguson's ongoing, intermittent abuse of alcohol, the complaint of a patient and complaints of nursing colleagues residing in the staff quarters, he considered that what he called Mr Ferguson's alcohol abuse disorder continued to have a negative impact on his overall level of functioning. It was for this reason that he considered it appropriate to continue the conditions on Mr Ferguson's registration for a further 12 months. 21. In the final paragraph of his report, Dr Prior expressed the view that ideally it would be best if Mr Ferguson was completely abstinent of alcohol and attended Alcoholics Anonymous. He continued: "Although he does not have an alcohol dependence syndrome, he clearly does not benefit from alcohol intake generally [and this appears] to impact negatively upon his professional and personal functioning". 22. In a letter received at the QNC on 30 March 2007 Mr Ferguson replying to a letter from QNC received in relation to the review of the limits and conditions imposed on his registration as an enrolled nurse, took issue with the complaints about his conduct at the nurses quarters and suggested that there was a clash of personality between the complainant and himself. His explanation of his periods of elevated blood tests is consistent with Dr Prior's report on that question. In relation to the allegation that he had a hand tremor that worried a patient, he reiterated that he had what he described as a slight cold and noted that no staff member had raised any concern about a hand tremor and that he had been allocated the concerned patient again on the following day. He also noted that his nursing practice had been reported as competent, that he had always been compliant with the conditions, including attending counselling and for blood tests. 23. The report dated 26 March 2007 signed by both the Senior Project Officer and Acting Coordinator of ATODS noted the Mr Ferguson attended on the day he was referred there in December 2006 and once in February, presumably after he returned from the leave that took him to Woy Woy, and 3 times in March 2007. Their report advises that it was not possible for ATODs staff to comment on Mr Ferguson's fitness to practise as an enrolled nurse. It was clear from that report that Mr Ferguson was complying with the direction to attend the service and taking part in its processes in good faith. 24. It appears that some if not all of the reports referred to above were considered. However, on 6 July 2007, the QNC decided to continue Mr Ferguson's limited registration as an enrolled nurse, presumably for another year. 25. By a letter dated 4 June 2008, the Nurse Unit Manager (NUM) of the Medical Ward at the Mt Isa Hospital provided a report to the QNC in relation to a review of the restrictions on Mr Ferguson's registration. This was an adverse report which referred to Mr Ferguson breaching the scope of his practice as an enrolled nurse. This allegation, which doesn't necessarily go to the issues that we have to determine, does have some support in what are at least second hand reports provided to the QNC under cover of a letter from the NUM dated 13 June 2008. The NUM's report refers a number of matters that are not supported by any reports or other evidence and at least 3 of the reports, including the only eye-witness report were dated 2006 and deal with matters alleged to have occurred in that year. The only eye-witness report sent by the NUM was the report dated 12 December 2006 which has been referred to above. Another report referred to a matter alleged to have occurred on 29 March 2007, before the last review was completed. 26. The NUM's report referred to significant absenteeism on the part of Mr Ferguson, namely 18 days in a 5 month period. It was supported by leave records, but there was no information about the claimed reasons for the sick leave. There were claims that Mr Ferguson repeatedly rang a ward in the early hours of the morning with slurred speech. However none of the reports provided appear to support that allegation in the NUM's report. We have difficulty placing weight on evidence of this quality. 27. Dr O'Rourke, a consultant psychiatrist and the Director of Mental Health at the Mount Isa Mental Health Service provided a report dated 15 July 2008 to the QNC at its request, presumably in relation to a review of the restrictions on Mr Ferguson's registration. Dr O'Rourke was asked to comment, among other things, on Mr Ferguson's fitness to practise as an enrolled nurse. Dr O'Rourke pointed out early in his report that Mr Ferguson approached him to be a counsellor as required under the conditions of his limited registration and that he had agreed to provide that role. Both early and late in his report Dr O'Rourke referred to his own observations of Mr Ferguson performing nursing duties in the medical ward of Mt Isa Hospital. He said he did this when reviewing his patients who happened to be in the medical ward. Dr O'Rourke noted that Mr Ferguson's performance was professional and gave no cause for concern. Further, Dr O'Rourke said that Mr Ferguson's assessments of patients and the care that he provided were professionally sound. 28. We note however that this eye-witness report, albeit based on limited periods of observation, is in stark contrast with the NUM's report, which states in part: "[Mr Ferguson] has undergone performance management and appears to need constant supervision and direction to be able to complete daily tasks". However, we note that the conditions on his practice require him to be supervised by a registered nurse at all times that he is providing nursing care. Further on in the same paragraph, the NUM states: "Despite extensive support by the ward and [Mr Ferguson's] attendance of support services, his behaviour still appears to be degenerating". The NUM's report refers to some of the training given to Mr Ferguson. 29. Dr O'Rourke noted, under the heading of Mr Ferguson's current health status, that he had been physically unwell contributed to by an acute shortage on the medical ward and long periods of rostered shifts and unplanned overtime resulting in physical exhaustion. 30. Dr O'Rourke noted that his first meeting with Mr Ferguson as his counsellor was on 18 June 2007. First fortnightly meetings were arranged and then monthly meetings, "on account of [Mr Ferguson's] stability". There were 15 face to face meetings between them up to 28 May 2008. Dr O'Rourke reported that the sessions involved discussion of Mr Ferguson's use of alcohol, strategies used to limit intake, refusal skills and relapse prevention strategies. He stated that Mr Ferguson's self-reported use of alcohol was in neither the harmful nor the abuse category. He also noted other self-reports by Mr Ferguson namely of not using alcohol to excess and not using alcohol in the 24 hour period before a shift. 31. Dr O'Rourke's final sentence was: "On my observations and assessment I believe that [Mr Ferguson] is fit to practise as an enrolled nurse". 32. The material before us indicates that Mr Ferguson was working in a retirement community in Longreach in November and December 2008 when the Business Services Manager of that community wrote both to him and to the QNC, on 4 December 2008, bringing to notice, among other matters, that he had taken sick leave on 3 days in a period of 4 in late November without providing a medical certificate and that the Acting Care Coordinator was concerned with his behaviour on shifts on 1 and 2 December 2008 when he appeared agitated, tired and had not completed tasks. Mr Ferguson was asked to attend a meeting that could involve disciplinary action it the alleged matters were substantiated. 33. It appears Mr Ferguson ceased employment in Queensland in either late 2008 or in January 2009 because he began employment as an assistant in nursing (AIN) in Griffith, NSW. The general manager of the organisation he worked for him there wrote the following reference for him on 10 February 2009: "Andrew Ferguson has been employed at this facility since January 2009 in the capacity of an AIN. I have no issues with his fitness, and he has reported to work in a sober and proper manner. His competency is excellent and he has adhered to the limitations of an AIN although he has the knowledge of an EEN. I have no hesitation in recommending Andrew for any post and would like to employ him as an EEN at this facility". 34. It appears he continued to have the blood tests required by his Queensland registration at least until February 2009 as Dr Shahid Abbas reviewed the results of a February blood test noting that while his CDT result was above the range seen in abstainers and light social drinkers, it was not high enough to be considered to be indicative of probable recent or on-going excessive alcohol use. We note that Mr Ferguson's GGT, which we were advised by Dr Samuels, was a more reliable guide to heavy use of alcohol over a period than the CDT test was in the normal range. 35. By a letter dated 1 May 2009 a team manager of the Murrumbidgee Mental Health Drug & Alcohol Service of NSW Health advised the QNC that Mr Ferguson was having monthly contact with the Service for counselling in relation to his conditions of registration. The team manager noted that the reports from clinicians who had contact with Mr Ferguson had been favourable with no concerns raised as to his wellbeing or fitness to practise and that the Service would continue to provide counselling and support to Mr Ferguson on a monthly basis. 36. Mr Ferguson was registered as an enrolled nurse in NSW on 25 May 2009, based on his Queensland registration. However on 19 June 2009, the Nurses and Midwives Board of NSW effectively amended his registration in NSW by imposing on that registration what were described as the same conditions/undertakings as were imposed on his Queensland registration by the QNC on 7 April 2006. 37. He appears to have begun work as an endorsed enrolled nurse (EEN) for Bupa Griffith, an organisation providing, usually residential, care to aged clients in July 2009. On 11 July the general manager of Bupa, the same person as the one who wrote a reference for him dated 10 February 2009, wrote another statement on 11 July 2009 describing him as extremely competent in all clinical areas, open to direction and new practises, with good rapport with residents. She reported that he took extreme care in his dealings with residents, especially residents in need of palliative care. Mr Ferguson was reported as being flexible and willing to take on extra duties if required. He was reported as being open and forthright and that he always spoke his mind. 38. Although he was registered in NSW, Mr Ferguson appears to have continued to attend counselling as required by his Queensland registration. 39. By a letter dated 22 September 2009, a community mental health practitioner of the Greater Southern Area Health Service of NSW Health contacted the QNC to advise that Mr Ferguson had advised on the day before that he had ceased employment in Griffith and had returned to his family in Woy Woy. The practitioner reiterated the information contained in the letter to the QNC dated 1 May 2009. 40. On 15 December 2009, Mr Ferguson, from an address in Woy Woy, signed an undertaking to the QNC to the effect that he would continue counselling at an ATODS and to authorise his employers to provide the QNC with reports addressing his fitness and competence to practise as an enrolled nurse as well as to advise the QNC of any new employer. He also agreed to undertake random urine testing. On 15 January 2010, the Nurses and Midwives Board of NSW resolved to remove the then current conditions on Mr Ferguson's registration and impose the same conditions/undertakings that had been imposed by the QNC and were then currently in effect. 41. It seems however that Mr Ferguson continued to consult a counsellor as had been required by the QNC's conditions which had been superseded by Mr Ferguson's undertakings. In any event, by a letter dated 12 May 2010, a clinical psychologist from the central coast of NSW reported to the QNC that, since early April 2010, Mr Ferguson had had 3 appointments with him. The final paragraph of that report states: "Mr Ferguson always presents well, is articulate and non-defensive. There is no obvious indication that he drinks excessively or often. On 18 August 2010 that clinical psychologist, noting that Mr Ferguson lived about 6 or 7 hours' drive from his practice, reported that his final consultation with Mr Ferguson had been on 7 July 2010. He noted that Mr Ferguson was then working at Mudgee and Dunedoo Base Hospitals and that he worked in the area of accident and emergency and acute care, but also managed long term elderly patients at Dunedoo Base Hospital. The clinical psychologist stated that he had no concerns about Mr Ferguson's attitudes or behaviour or about his fitness to practise as an enrolled nurse, but suggested that the QNC contact Mr Ferguson's nursing manager at Dunedoo Hospital; "for an update on [Mr Ferguson's] day to day behaviour". 42. On 1 July 2010, the national registration and regulation system for health professionals began. A key component of the system is the Australian Health Practitioner Regulation Agency (AHPRA), which operates in all the States and Territories. On 23 July 2010, a senior health and performance officer from AHPRA's Brisbane office rang Mr Ferguson's nursing manager who told her of 2 incidents, 1 on 25 June 2010 and 1 on 16 July 2010 which the nursing manager put down to Mr Ferguson coming to work intoxicated after 'a big night out'. 43. Between July and December 2010, while Mr Ferguson was employed by Dunedoo Hospital, his nursing manager, who by then had become the Health Service Manager made a notification to AHPRA, in relation to him. 44. AHPRA notified the NSW Council on 7 October 2010 and transferred his undertaking to the QNC to NSW. 45. Following up on the notification, an officer of the Council contacted the Dunedoo Health Service Manager, by telephone, on 7 December 2010. Among the matters recorded by the officer that were personally experienced by the nursing manger were Mr Ferguson's over-familiarity towards her and his numerous phone calls and text messages to her. The nursing manager also noted that she worked with Mr Ferguson 1 night and believed he was, "quite rough". Nevertheless she also reported that there had been no complaints from patients in relation to Mr Ferguson. The nursing manager was recorded as stating that there had been at least 1 report of Mr Ferguson being drunk on night duty, but not sent off duty. Also noted was that Mr Ferguson had undertaken his last shift in Dunedoo on 8 September 2010. 46. In a file note in the material tendered to us, there is a report that Mr Ferguson was employed as an agency nurse at Corowa Hospital between 14 October and 2 November 2010. There were no clinical concerns reported. A nurse colleague saw beer bottles on the table of his unit and a female work colleague sharing his unit was "freaking her out". However he did not disclose the conditions on his practise while at Corowa Hospital. 47. It appears that Mr Ferguson was asked to attend for a urine drug screen test on 7 December 2010. The NSW Notifications Committee, meeting on 15 December 2010 decided to await the results of that test but nevertheless require Mr Ferguson to attend for a medical assessment with by a Council approved psychiatrist, under s 145E of the National Law. The Committee intended to decide, in the light of the psychiatrists report, whether it would refer Mr Ferguson to the Impaired Registrants Panel or whether some other action was required. 48. By 16 December 2010, information had been received that Mr Ferguson's urine drug screen test was clear. But by 11 January 2011, the Committee was aware that Mr Ferguson and his girlfriend were intending to travel by car to Perth to seek work and settle in Western Australia. While it appears that Mr Ferguson went to Western Australia in early 2011, nevertheless he attended consultant psychiatrist Dr Anthony Samuels in Sydney on 14 September 2011, apparently in compliance with the provisions of s 145E of the National Law. 49. In his report of his consultation with Mr Ferguson, Dr Samuels noted that Mr Ferguson had moved to Western Australia. He noted also that Mr Ferguson told him that he was not depressed or anxious generally and denied psychotic symptoms. He told Dr Samuels that he had never been in a psychiatric hospital and never self-harmed, but that he had once been on anti-psychotics for 6 months when he was having some problems at the Longreach Hospital, "many years ago". He also told Dr Samuels that he drank no more than once a week and had no more than 5 or 6 standard drinks at time. However, he told Dr Samuels that the Sunday before his appointment he had had 6 stubbies and 3 glasses of wine and that on the night before his appointment, because his sister called in, he had had 5 glasses of wine and 2 beers. 50. Dr Samuels noted that Mr Ferguson denied that he had any problems with alcohol abuse but acknowledged that he would drink 5 or 6 standard drinks in one sitting. Dr Samuels expressed the view that, "this could be regarded as a binge drinking type pattern". 51. In the 'opinion' part of his report, Dr Samuels referred to what he described as a long history of behavioural problems in hospital settings dating back to 2005-2006. He stated that there were some suggestions from his history that, in the past, Mr Ferguson had had some problems with alcohol abuse. Later he noted that there were suggestions that there were ongoing problems with alcohol abuse which led him to state that it was reasonable for some form of oversight and monitoring to occur. He also noted that it was unclear how long Mr Ferguson would remain in Western Australia and whether the NSW Council or its WA equivalent should take primary responsibility for drafting conditions or undertakings and monitoring them. 52. In the event, the WA office of AHPRA became involved with Mr Ferguson's case and on 20 April 2012, Dr Edwards-Smith saw Mr Ferguson and wrote a report of that consultation to APHRA WA on that day. At that consultation Mr Ferguson advised that his most recent period of employment had been a 3 month contract as an enrolled nurse in Alice Springs and that there had been no complaints about him during that period of employment. Mr Ferguson worked at Alice Springs from 12 December 2011 until 12 March 2012. It appears that he did not work as a nurse again until he began at Hay Hospital on 15 October 2012. 53. Dealing with specific questions asked of her by AHPRA WA, Dr Edwards-Smith noted that Mr Ferguson's previous history suggested alcohol abuse. However she continued: "Mr Ferguson's history is not concordant with a present history of alcohol abuse or substance dependence disorder. As to the reliability of Mr Ferguson's history, I suspect that he does tend to under report his history of alcohol use hence my referral for blood testing as a measure of objective examination". 54. As to those tests, the urinary screen was negative [presumably to alcohol], FBP was in the normal range, LFT – Gamma GGT was in the elevated range of 98 u/l while the CDT percentage was 1.6%. 55. Dr Edwards-Smith's opinion in relation to impairment was as follows: "At this stage I cannot find that there is evidence that Mr Ferguson is suffering from an impairment. I therefore cannot find evidence at this stage that he cannot practise as an Enrolled Nurse or that conditions are required". 56. As already noted, Mr Ferguson began working at Hay Hospital, NSW on 15 October 2012. A situation developed there on the morning of 12 December 2012 which is best put in context and then described by the registered nurse who was present and observed what occurred. Between October and December 2012 she a nursing colleague of Mr Ferguson and his immediate supervisor. Her first impression of Mr Ferguson was that he presented well and was well groomed. At the commencement of his first night nursing shift they worked together and she took him through the basic life support with a mannequin and he seemed to understand this. She did this because she wanted to be sure he was competent to resuscitate. However she reported that one of the first things she noticed about him, in his hands, was an obvious and worrying fine motor tremor. 57. On 18 December 2012, she was working a morning shift and was in charge of the hospital. Mr Ferguson was due in at 8.30am, but was late for work that day. His supervisor was standing outside certain rooms with the drug trolley when she saw him enter through the ward doors at 8.40am. She noticed from a distance that he appeared well groomed, but as he walked closer, she saw he was unsteady on his feet and flushed in the face with a ruddy complexion. He had a stethoscope around his neck. He walked up to the drug trolley and she asked him: "Should you be here"? He said, "No, can I speak-to you in private". They went to an office and he told her that he had been drinking late into the night and early morning. In her statement she noted that he was very emotional and crying and had a tremor. He spoke long windedly about his nursing career and she thought he was out of control. She said to him; "I wish you had not come here. I wish you had called in sick, now I have no choice but to send you home". She reported that, without any argument, he left the office and walked home. 58. Another enrolled nurse who, before and after 18 December 2012, was in a relationship with Mr Ferguson both made a statement and gave evidence over the telephone to us. In her written statement she noted that she had gone to the nurses' quarters, apparently after the incident and saw Mr Ferguson who told her that he had been accused of coming to work drunk. He said that it was not true that he was hung over from the day before but that he was sick. However, in her verbal evidence to us, she expressed the view that he was agitated and obviously drunk and she could smell alcohol on his breath. In her verbal evidence to us, she said she hadn't seen him drunk before that day, nor had she seen him hung over. When asked about his tremors, she had obviously noticed them because she asked him about them and he told her that they were because of his involvement in the Iraq war. She also stated that she had seen him drinking at her place, but not to excess. However stated that she saw him drinking up to 6 drinks at a time. 59. We understand that 18 December 2012 was the last day that Mr Ferguson was employed at Hay Hospital and, indeed, the last day he has presented to work as a nurse. However Mr Ferguson stayed in Hay for a period living with the female enrolled nurse. 60. On 19 December 2012, the agency employing Mr Ferguson was contacted to end his contract with Hay Hospital. Mr Ferguson requested a meeting with the Senior Nurse Manager who reported Mr Ferguson as being intoxicated during that meeting, manifested by being very unsteady on his feet, having bloodshot eyes and slurred speech, repeating himself and smelling of alcohol. He was also reported as being emotional and aggressive during that meeting. The Senior Nurse Manager also noted that it was reported to him that the next morning, 20 December 2012, Mr Ferguson came to the hospital where he appeared aggressive and intoxicated and that at approximately 1pm on that day, Mr Ferguson had phoned the Senior Nurse Manager and sounded intoxicated but was also agitated and aggressive. 61. Despite this conduct on the part of Mr Ferguson, the Deputy Nurse Manager, in his statement dated 28 August 2013, stated that he was Mr Ferguson's manager for the 6 weeks he was at Hay Hospital and found him a good worker and competent. He had no problem with Mr Ferguson's nursing work. He stated that when he was on duty, Mr Ferguson was well presented and articulate and always seemed quite keen. In his verbal evidence to us, the Senior Nurse Manager stated that while he had not observed Mr Ferguson's work as a nurse directly, he had seen him interacting with patients and described him as; "a very likeable guy who got on with patients and staff". 62. However, it wasn't until 14 January 2013 that the Murrumbidgee Local Health District made a notification to AHPRA about Mr Ferguson presented for work in an intoxicated state on 18 December 2012. 63. As already noted, the Council issued a written notice, dated 12 February 2013, under s 145E of the National Law requiring Mr Ferguson to attend a Health Assessment with Dr Anthony Samuels, a consultant psychiatrist. Mr Ferguson did not attend that appointment. 64. Also as already noted, after conducting proceedings under s 150 of the National Law, delegates of the Council imposed conditions on Mr Ferguson's registration as an enrolled nurse. However, on 2 May 2013 other delegates of the Council conducted a review under s 150C of the National Law and formed the view that it was no longer satisfied that conditions on his registration were sufficient and that suspension of Mr Ferguson's registration as a nurse was necessary to minimise the risk to public safety. As a consequence the delegates were satisfied that it was appropriate to suspend Mr Ferguson's registration as an enrolled nurse for an indefinite period. The s 150 Review Committee formally suspended Mr Ferguson's registration. 65. Again as already noted, the Council referred the matter to the HCCC for investigation and, at the completion of its investigation, the HCCC brought its Complaint to NCAT. The complaints and our findings in relation to them 1. The first complaint was that Mr Ferguson suffered from an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affected or was likely to detrimentally affect his capacity to practice the profession of nursing. 2. There were 2 particulars to this complaint. The first was that Mr Ferguson suffered from alcohol dependence or abuse. The second was that: On 18 December 2012, presented for work at the Hay Hospital in an intoxicated state: he was unsteady on his feet; had red bloodshot eyes; slurred speech and kept repeating himself 1. Taking the second particular first, the elements of this particular was clearly established by the eye witness evidence of his immediate supervisor, corroborated by eye witness evidence of his intoxicated state on the next day and the way he sounded to an experienced nurse in a phone call between them on the day after that. Mr Ferguson's claim that he was sick rather than drunk when he was sent home was inconsistent with the evidence of his friend herself an experienced enrolled nurse. As noted above, she saw him as agitated and obviously drunk. 2. Consequently we find the subject-matter of particular two proved 3. Although the allegations in particular one are stated briefly, they need more evidence to be set out and considered before they, and the complaint itself, can be resolved. As Dr Samuels put very gently in his report dated 14 September 2011 that there were some suggestions from Mr Ferguson's history that, in the past, Mr Ferguson had had some problems with alcohol abuse. The evidence set out above shows evidence of binge-drinking by Mr Ferguson from his time at Winton and then Longreach in 2005. Dr Prior's first report in 2006 shows this and leads him to note Mr Ferguson acknowledging his increase in alcohol abuse over the 8 months prior to his consultation with Dr Prior and to intermittent binge-drinking which resulted in referrals to the directors of nursing of two hospitals and a number of occasions on which he called in sick due to the after effects of an alcohol binge. Although Dr Prior concluded that Mr Ferguson had alcohol abuse in early remission together with adjustment disorder and depressed mood also in remission and he noted that Mr Ferguson was cognitively intact and that his intelligence was average as judged by his vocabulary and did not consider Mr Ferguson unfit to practice nursing, he did consider that it would be advisable that Mr Ferguson drink alcohol on any day on which he was working on within 24 hours of working a shift. He also stated that it would be appropriate for Mr Ferguson to be monitored over a 12 month period with breath testing prior to the commencement of each shift to detect the presence of alcohol and to have three monthly blood tests of CDT, MCV, LFTs, to monitor longer term progress. 4. Dr Prior saw Mr Ferguson again in May 2007. Later in the report of that appointment, Dr Prior stated that Mr Ferguson had continued to abuse alcohol intermittently since he had seen him in early 2006, noting the blood tests that were elevated during Mr Ferguson's holidays in early 2007 but in the normal range later. This led him to confirm his diagnosis that Mr Ferguson's alcohol abuse was in early remission. Dr Prior also noted that Mr Ferguson continued to see his general practitioner and his drug and alcohol counsellor regularly. He also noted that Mr Ferguson had been referred to the Alcohol, Tobacco, and Other Drugs Services (ATODS). 5. Dr Prior continued his report by noting that while Mr Ferguson reported that he had, "backed right off alcohol", he continued to drink excessive amounts intermittently. While Dr Prior considered Mr Ferguson's intake at these times to be in the hazardous level, he was of the opinion that Mr Ferguson did not show any evidence of an alcohol dependence syndrome. In Dr Prior's opinion, Mr Ferguson was not unfit to practise nursing and did not need his registration to be suspended. However, Dr Prior took into account what he described as Mr Ferguson's ongoing, intermittent abuse of alcohol, the complaint of a patient and complaints of nursing colleagues residing in the staff quarters, he considered that what he called Mr Ferguson's alcohol abuse disorder continued to have a negative impact on his overall level of functioning. It was for this reason that he considered it appropriate to continue the conditions on Mr Ferguson's registration for a further 12 months. 6. In the final paragraph of his report, Dr Prior expressed the view that ideally it would be best if Mr Ferguson was completely abstinent of alcohol and attended Alcoholics Anonymous. He continued: "Although he does not have an alcohol dependence syndrome, he clearly does not benefit from alcohol intake generally [and this appears] to impact negatively upon his professional and personal functioning". 7. As is set out above, Dr O'Rourke, a consultant psychiatrist, agreed to be a counsellor for Mr Ferguson and acted in that role from June 2007 until the end of May 2008. He reported that the counselling sessions involved discussion of Mr Ferguson's use of alcohol, strategies used to limit intake, refusal skills and relapse prevention strategies. We do not believe that a consultant psychiatrist would spend time on these issues if he did not believe that there was a need to do so because Mr Ferguson had serious problems with alcohol overuse. 8. We also consider that by mid 2007 there was substantial evidence of Mr Ferguson binge-drinking. The evidence from 2008 relating to Mr Ferguson working in a retirement community in Longreach is either indirect, for example sick leave taken without a certificate to support it or at at least one remove from the eye witnesses for example allegations about matters arising while on duty. They require us to draw inferences which lack a proper foundation, particularly in a context in which Mr Ferguson's breathalyser tests continued to be negative to alcohol and nearly every blood test was also negative to the matters being tested. Also urine screen testing, when carried out, also appeared to be negative as well. 9. The next piece of useful evidence is that of Dr Samuels' report of 14 September 2011 in which he noted that Mr Ferguson denied that he had any problems with alcohol abuse but acknowledged that he would drink 5 or 6 standard drinks in one sitting. Dr Samuels saw this as a binge-drinking type pattern. He noted that there were some suggestions from his history that, in the past, Mr Ferguson had had some problems with alcohol abuse and further that there were suggestions that there were ongoing problems with of alcohol abuse. This led Dr Samuels to state that it was reasonable for some form of oversight and monitoring of Mr Ferguson to occur. 10. In his verbal evidence to us, Dr Samuels indicated that he considered that the nature of Mr Ferguson's alcohol abuse was that of periods of remission and occasions of relapse. While Dr Prior did not use the same words as Dr Samuels, comments in his 2 reports show that he saw the same pattern developing. While Dr Edwards-Smith did not find Mr Ferguson suffering from an impairment based on alcohol abuse in when she saw him on 16 April 2012, she had suspicions about his under-reporting and so had tests done, including a GGT test which was elevated, later she changed her mind in the light of 2 matters in particular. The first was the episode on 18 December 2012 which led her to accept that there had been a pattern of behaviour between 2005 and 2012 and the second was her acceptance of Dr Samuel's view that the GGT test was a clear marker of a pattern of drinking alcohol, as it both tested the first enzyme to rise with alcohol use and showed the effect of alcohol for a longer period than the CDT test. 11. In her verbal evidence to us, Dr Edwards-Smith stated that the CDT test was a marker of chronic alcohol abuse and that if a person did not drink within the last 4 days before having the test, the CDT would not be elevated. As to the GGT test, she noted that the reading of 98 on the test she had run on Mr Ferguson was nearly double the normal range and showed liver damage, usually caused by alcohol. This last point about the GGT test in particular led her no longer to accept Mr Ferguson's statements about his alcohol use in 2012 and to take the view that he had an alcohol overuse problem at that time. She also concurred with Dr Samuels' view that, particularly in the light of the episode on 18 December 2012, Mr Ferguson's problems with alcohol overuse were ongoing and, in the absence of any further information, she concluded that there was an ongoing impairment. We accepted the evidence of Drs Samuels and Edwards-Smith about the on-going nature of the impairment and were satisfied that Mr Ferguson's impairment of alcohol dependence or abuse was current at the time of the hearing. 12. Having considered the whole of the evidence in relation to Mr Ferguson's alcohol overuse since 2005, we accept the thrust of Ms Tronson's submission that the evidence of alcohol abuse together with the evidence of aggressive behaviour connected to the alcohol abuse over a substantial period, and very clear demonstrated in December 2012, establish that Mr Ferguson has the impairment alleged, namely alcohol dependence or abuse. We are satisfied that the impairment continues in that the evidence shows periods of remission interspersed with episodes of binge-drinking bringing the impairment and its impacts to the fore. 13. We were also satisfied there has been some evidence that demonstrates that Mr Ferguson's alcohol dependence or abuse manifested in his episodes of binge-drinking sometimes includes aggressive behaviour. Again the best example of this are the events of 18, 19 and 20 December 2012 set out above. During those episodes of binge-drinking, Mr Ferguson's capacity to practise nursing has been detrimentally affected. Further episodes would be likely to have the same effect namely that. Mr Ferguson would have to ring in sick and not attend work or, if he did come to work, would have to be sent home, as he was on 18 December 2012. 14. While we are satisfied that the subject-matter of both particulars to complaint one are proved and that the complaint itself is proved, the basis of our finding is that, based on Dr Samuels' verbal evidence and supported by Dr Edwards-Smith in her verbal evidence to us and also accepting Ms Tronson's submission on this point, Mr Ferguson's impairment is based on his binge-drinking which is intermittent, manifested by a pattern of remission followed by relapse followed by remission again. This means that his capacity to practise nursing is adversely affected intermittently, but unpredictably. An example of this is his last placement at Hay Hospital where he worked satisfactorily for 9 weeks before his alcohol problem emerged. This point does not affect our finding in relation to complaint one, but is relevant to our findings in relation to complaint two. 15. Complaint two alleges that Mr Ferguson is not competent to practise nursing in that he does not have sufficient physical or mental capacity, knowledge or skill to practise nursing. 16. The 2 particulars to complaint one are restated as the first particular to complaint two. The second, third, fourth and fifth particulars are incorporated into the following narrative namely that Mr Ferguson, without reasonable excuse, failed to comply with a written notice dated 12 February 2013 requiring his attendance at a health assessment, with Dr Anthony Samuels, psychiatrist on 24 April 2012, in accordance with section 145E(1) of the National Law. This was because on 8 December 2014, on receipt of a letter from the Council, dated 1 December 2014, which was served on Mr Ferguson personally by a process server, he stated to the process server that: 1. he was no longer involved in the nursing industry; and that 2. he would not be attending the appointment with Dr Samuels; or 3. call the Council. 1. After reading the letter, Mr Ferguson tore it up and put it into a bin. Consequently he, without reasonable excuse, failed to comply with a written notice dated 1 December 2014 requiring his attendance at a health assessment with Dr Anthony Samuels, psychiatrist on 19 December 2014, in accordance with section145E(1) of the National Law. 2. We accept Ms Tronson's submission that there is a close relationship between a finding of impairment as defined in the National Law and a finding of lack of capacity to practise a health profession. The point was concisely made by Sackville AJA in Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168] and applied in the health professions protective/disciplinary jurisdiction in the cases of Health Care Complaints Commission v Cieslak [2013] NSWNMT 5 and Health Care Complaints Commission v Parsons [2014] NSWCATOD 97 at [52] to [55] at least. However, that does not mean that that close relationship will exist in every case. The particular facts of each case will determine that question. 3. In this case, we have found that it was Mr Ferguson's taking of sick leave or of turning up to work intoxicated and being sent home that was the basis for our finding that his impairment was likely to adversely affect his capacity to practise his profession because it had the effect of causing him to be absent from work on more occasions than was normal and on occasions that were not predictable in advance. Put another way, it was his binge-drinking that caused him to become unavailable to do his scheduled shifts as a nurse. While the binge-drinking was episodic, it was also unpredictable and it was likely that it would continue because Mr Ferguson has taken no steps to deal with his alcohol problem other than comply with conditions or undertakings that were imposed on his registration as a nurse by others. 4. All through this case there have been positive statements about his capacity as a nurse and only one statement indicating concerns about his competence. The positive comments start in 2005 with DON at Longreach stating in her letter to the QNC that there have been no issues with Mr Ferguson's clinical practice, that he had been punctual for work and well presented. He completed the duties allocated to him, reported any abnormalities to the Registered Nurse in charge and worked within his scope of practice. On 22 November 2005, Dr Tshibangu wrote from Longreach: "I do observe him [Mr Ferguson] working in wards; he seems to do work like any other nurse in the ward. In my opinion he is fit for work". The Nurse Manager at Mount Isa Hospital, writing about his drinking problem in 2006 also stated: "While at work [Mr Ferguson] is always on the ball and does his job very well. I have never received any complaints from other staff members". 5. In his report to the QNC dated 15 July 2008, Dr O'Rourke, a consultant psychiatrist and the Director of Mental Health at the Mount Isa Mental Health Service, who acted as Mr Ferguson's counsellor for more than a year, referred to his own observations of Mr Ferguson performing nursing duties in the medical ward of Mt Isa Hospital. Dr O'Rourke said he did this when reviewing his patients who happened to be in the medical ward and noted that Mr Ferguson's performance was professional and gave no cause for concern. Further, Dr O'Rourke said that Mr Ferguson's assessments of patients and the care that he provided were professionally sound. However, as we noted earlier, Dr O'Rourke's observations were in stark contrast to the comments of the Nursing Unit Manager at Mt Isa Hospital. She stated: "[Mr Ferguson] has undergone performance management and appears to need constant supervision and direction to be able to complete daily tasks". Further on in the same paragraph, she stated: "Despite extensive support by the ward and [Mr Ferguson's] attendance of support services, his behaviour still appears to be degenerating". Her report refers to some of the training given to Mr Ferguson. 6. In February 2009, there was the very positive report of the person in Griffith who employed him as an AIN. That person gave him a further positive report after he had become an EEN at Bupa Griffith. She described him, as extremely competent in all clinical areas, open to direction and new practises, and with good rapport with residents. She reported that he took extreme care in his dealings with residents, especially residents in need of palliative care. Mr Ferguson was reported as being flexible and willing to take on extra duties if required. He was reported as being open and forthright and that he always spoke his mind. As also noted earlier, the nursing manager at Dunedoo reported to an officer of the Council in December 2010 that she worked with Mr Ferguson 1 night and believed he was, "quite rough". Nevertheless she also reported that there had been no complaints about him from patients. Finally, even in Hay, after the episode on 18 December 2012 and the following 2 days, the Deputy Nurse Manager, who had been Mr Ferguson's manager for the 6 weeks of the 9 weeks he (Mr Ferguson) was at Hay Hospital found him a good worker and competent. He had no problem with Mr Ferguson's nursing work. He stated that when he was on duty, Mr Ferguson was well presented and articulate and always seemed quite keen. Also in his verbal evidence to us, the Senior Nurse Manager stated that while he had not observed Mr Ferguson's work as a nurse directly, he had seen him interacting with patients and described him as; "a very likeable guy who got on with patients and staff". 7. Ms Tronson submitted that Mr Ferguson's hand tremor was an indication of Mr Ferguson not having the physical capacity to practise nursing. We note however that there is little evidence to show, beyond one incident when a patient complained about his tremor, that it had any impact on his capacity to carry out nursing functions. The Registered Nurse who was his immediate supervisor when he began at Hay Hospital described it in her statement as; "an obvious and worrying fine motor tremor" She went on to state that on one occasion she asked him to draw up normal saline to mix with an antibiotic and he seemed to have trouble with his coordination. She thought at first it might be nerves, but noted that: "The second time he managed to do it right". Later she stated that the tremor did make her wonder if he had an alcohol addiction. However, that view, which could not be tested because she was not available as a witness to give verbal evidence to us, is not relevant to the question of competence as it is directed to the question of Mr Ferguson's alcohol dependence or abuse and not to his physical or mental capacity or skill to practise nursing. 8. We accepted Mr Tronson's submission that as well as the expert evidence relied upon by the HCCC, we may refer to the expertise of our members in assessing competence, and did so. We also took into account the evidence we have set out above in relation to complaint one in determining whether or not complaint two was proved. 9. While Ms Tronson submitted to us that we could be satisfied, on the basis of the pattern of behaviour exhibited by Mr Ferguson, we did do that, but came to a different conclusion to the one pressed on us by Ms Tronson. We did note there appeared to be 3 kinds of behaviour reported in relation to Mr Ferguson. The first kind were the regular reports from 2005 through to 2012 December 2012 of his competence as a nurse and his ability to get on with patients. The second was his behaviour when binge-drinking. The most reliable report of which came from the Senior Nurse Manager and related to incidents on the 19th and 20th of December 2012 and abusive phone calls in 2013 after Mr Ferguson had stopped nursing. A third type of behaviour was unwanted and indeed inappropriate attention on the part of Mr Ferguson towards a female supervisor. There were other examples of behaviour reported by females in nurses' quarters, but these could have been because of incompatibility of personality. We had no chance of assessing those matters in the third category, and did not consider it fair to give weight to them when Mr Ferguson resisted the allegations on incompatibility grounds. We note other evidence to the effect that Mr Ferguson got on well with staff at other times. While Mr Ferguson may have shown poor judgment in relation to interpersonal relationships when not at work, he has had other relationships and we are not sure that these matters go to his competence as a nurse. 10. We did take into account the assessments of Drs Prior, Samuels and Edwards-Smith, none of whom were Mr Ferguson's treating practitioners over a long period of time, as was suggested as by Ms Tronson in her submissions to us. Their evidence went to the question of Mr Ferguson's impairment, as already noted. However in his verbal evidence, Dr Samuels stated that while knowledge and skill may exist, he did have concerns about the physical or mental consequences to Mr Ferguson of his alcohol problem; but he did not go further than that in his evidence. We did not consider that these matters should lead us to discount the evidence of Mr Ferguson's competence as a nurse over the time covered by the evidence and lead us to be satisfied that Mr Ferguson lacked the competence to practise nursing. 11. As already noted, none of the 3 psychiatrists just referred to treated Mr Ferguson. While Dr O'Rourke did not assess him formally as a psychiatrist, he was Mr Ferguson's counselor for more than a year and, he had much more contact with him than the assessing psychiatrists. He had 15 face to face sessions with Mr Ferguson and in those sessions counseled him as to his alcohol problems. He was also asked by the QNC to comment on whether he believed that Mr Ferguson was fit to practise as an enrolled nurse. He completed his report to the QNC with the following sentence: "On my observations and assessment I believe that he is fit to practise as an enrolled nurse". 12. The facts of particulars 2 to 5 of complaint two are amply demonstrated in the documentary evidence provided to us. That evidence includes material from the process servers and file notes made by officers of the Council recording their communications with Mr Ferguson and do not need repeating. 13. We are satisfied that the subject-matter of particulars 2 to 5 is proved. At the time Mr Ferguson received the notice to attend the appointment with Dr Samuels his registration as an enrolled nurse was suspended, so he had a professional obligation to attend the appointment. The evidence before us shows that his travel and necessary accommodation would be paid for; hence he had no reasonable excuse for not attending. As a result of his failure to attend, the fact of his failure is evidence that he does not have sufficient physical and mental capacity to practise nursing by operation of s 145F of the National Law. However, there is a question as to what weight we should give to that evidence in this case. 14. We have already noted our satisfaction that the following allegation against Mr Ferguson was proved namely that: on 8 December 2014, he stated to the process server who served him with a letter and documents on that day that he was no longer involved in the nursing industry, that he would not be attending the appointment with Dr Samuels and would not be calling the Council. We have also noted that the process server reported that Mr Ferguson was polite but ripped up the documents and threw them in the bins at the front of the unit complex in which he lived. 15. We also note that during the hearing of this matter, a solicitor from the HCCC rang Mr Ferguson, at the request of the Principal Member, to ask whether Mr Ferguson was willing to speak to us during the hearing. In her affidavit, the solicitor reported that, among other comments, Mr Ferguson said words to the effect that: "I'm currently doing a mechanic apprenticeship" and "I'm having a day off". He went on to say: "I'm not interested any more" and went on to state that he was; "not interested in the bullshit of the whole nursing process anymore". He continued that there had: "been a lot of innuendos and lies" and that he had been sent; "a folder full of innuendos and lies going back over 10 years". 16. He then continued with a number of remarks which included: "There's been no complaints about my work ethic"; "Youse can do what you want. I'm not even a nurse anymore"; "I'm happy with the job I have now. I work hard" and; "I just don't want it in my life anymore". 17. We note Ms Tronson's submission in relation to Mr Ferguson's appointment to see Dr Samuels that Mr Ferguson's advice to the process server that he did not intend to practise as a nurse and would not call the Council raised a strong inference that Mr Ferguson had chosen not to attend the appointment. We agree with her view of that evidence but, we did not accept her submission that Mr Ferguson's failure to attend the appointment with Dr Samuels was evidence that he currently lacks competence to practise as a nurse. We took 3 points out of Mr Ferguson's statements reported by the process server and the solicitor. First that Mr Ferguson had read at least some of the documentary material served on him, second that he has wished, at least since December 2014 and continued to wish to have no part in the protective/disciplinary processes of the nursing profession in relation to him being administered by the Council, the HCCC and NCAT and third that he no longer saw himself as a nurse. In other words he appears to have moved on from nursing and is doing an apprenticeship in order to become a motor mechanic. 18. Because of these factors we considered that Mr Ferguson's refusal to attend the appointment with Dr Samuels as directed by the Council did not, in the particular circumstances of this case, assist in proving that, currently, he does not have sufficient physical or mental capacity to practise nursing. We considered that his comments reported by the process server and the solicitor show that he does not consider himself to be a nurse anymore and has moved on to becoming a motor mechanic. 19. We considered that the positive evidence about Mr Ferguson's nursing skills and abilities was not outweighed by the more limited negative evidence about that. Also we did not consider it appropriate to draw inferences from other evidence to create a basis for finding complaint two proved. Consequently, we were not satisfied that complaint two was proved. The consequences of our findings 1. Having found complaint one proved and complaint two not proved what do we do next? Other relevant aspects of the matter are that Mr Ferguson's registration as an enrolled nurse has been suspended by the Council. Prior to his suspension his registration was subject to conditions imposed by the Council. Mr Ferguson was suspended from nursing when his registration was still current. When we dispose of the Complaint about him by making protective orders, dismissing the Complaint or taking some other action that may be open to us under the National Law, the suspension imposed by the Council ceases to have effect. The same applies in relation to any conditions imposed by the Council under s 150 of the National Law. These matters are set out in ss 150(2)(a) and 150H(2)(a) of the National Law. However, in this case Mr Ferguson's registration which would have expired during the period of suspension will be treated as expired, unless we make an order inconsistent with such expiry such as order that his registration be subject to conditions. 2. Having found complaint one proved against Mr Ferguson but not complaint two, our discretion to make protective orders in relation him is limited to those set out in s 149A(1) of the National Law. These include; cautioning or reprimanding Mr Ferguson, imposing conditions on his registration, ordering him to seek and undergo medical or psychiatric treatment or counselling and ordering him to complete an educational course specified by us. 3. We note the written supplementary submissions, dated 9 February 2015, made by Ms Tronson on behalf of the HCCC and with our leave. These submissions were made on the assumption that we would find Mr Ferguson not competent to practise nursing and so complaint two proved. However as we did not find complaint two proved, we do not have the power under the National Law to either suspend or cancel Mr Ferguson's registration in this case, so we did not give consideration to those submissions. 4. We note, as we have commented earlier, that Mr Ferguson has taken no steps to deal with his alcohol problem other than comply with conditions or undertakings that were imposed on his registration as a nurse by others. We also note that Mr Ferguson is on record, when contacted to see if he was willing to speak to us, as saying: "Ten years ago, that was the rule of nursing. You could go out, have a few drinks and you didn't screw anything up the next day. Nursing these days is a load of shit." 5. We doubt that what Mr Ferguson said was ever the case, but if it was, then those days have long gone. The Nursing and Midwifery Board of Australia's Code of Professional Conduct in Australia states, at conduct statement 1.5, that nurses practise in a safe and competent manner that is not compromised by personal health limitations, including the use of alcohol or other substances that may alter a nurses capacity to practise safely at all times. The code of conduct, which is a policy directive applicable to all persons employed by NSW Health is even more direct. It states at 4.3.1 that staff must not be under the influence of alcohol or drugs when commencing work and while at work and continues, at 4.3.2, and be in a fit and proper condition to carry out their duties when commencing work and while at work. 6. We note also however, that Mr Ferguson has stated at least twice that he was no longer involved in the nursing profession and that he has stated that he is happy with his current job as an apprentice motor mechanic. In other words, he has moved on from nursing. 7. These views were stated some months apart and corroborated to some extent by the fact that he has not sought to take any part in these proceedings. They indicate that Mr Ferguson considers his nursing career to be over. Nevertheless, in the circumstances of this case, we considered it appropriate to reprimand Mr Ferguson for his failure to take action personally to come to terms with his alcohol dependence or abuse in order to ensure that his practise of nursing was not interrupted by occasional bouts of binge-drinking which rendered him unable to carry out his scheduled shifts as a nurse. Costs 1. Ms Tronson sought an order that Mr Ferguson pay the costs of the HCCC in this matter. As there was no reason in the way the HCCC conducted this case for it not to be entitled to have the order sought on its behalf, we ordered that Mr Ferguson pay the cost of the HCCC in this matter. Delay in the time the order comes into effect 1. During her submissions to us in this matter, Ms Tronson asked us that if we did not find complaint two proved and were considering orders involving conditions that the HCCC be heard on the matter. Procedural fairness would require such a course of action in any event. In this case we have found complaint two not proven, but do not intend to make any orders imposing conditions on Mr Ferguson's registration. However we intend to reprimand him, as indicated above. This will be recorded on his National Board file kept by AHPRA. Nevertheless, we consider in necessary, in order to be fair to the HCCC, to give its representatives an opportunity to make submissions to us as to whether we should impose some conditions in case Mr Ferguson changed his mind and sought reregistration. However, in that regard we note that if Mr Ferguson did change his mind and applied to the National Board through the agency of AHPRA to be reregistered, the National Board could or would put its mind to ss 82 and 55 of the National Law to determine whether it would reregister him, and if so, on what conditions and subject to what other requirements. 2. In order to allow the HCCC time to decide whether or not it wanted to seek to make submissions to us prior to the form of order we propose above comes into effect, in the exercise of our powers under s 165E of the National Law, we order the decisions and orders set out in these reasons for decision not take effect until the 15th day after these reasons for decision are published. 3. If the HCCC wishes to make relevant submissions, it should advise the Registry of NCAT and seek a directions hearing before the Principal Member in this matter to make arrangements for the receipt and consideration of those submissions. If the HCCC seeks such a directions hearing within 14 days after these reasons for decision are published, the coming into effect of these reasons for decision will be delayed until the proceedings in this matter are completed at which time the orders and reasons for decision in this matter, with such changes and additions, if any, as we shall make will take effect. If no such application is made, these reasons for decision and the orders therein will come into effect on the 15th day after these reasons for decision are published. 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: 11 March 2015