Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ashford [2015] NSWCATOD 15 Hearing dates: 8, 9 and 10 February 2015 Decision date: 18 March 2015 Jurisdiction: Occupational Division Before: N O'Neill, Principal Member J Curtis, Professional Member J Currie, Professional Member A Johnston, Lay Member Decision: As the Tribunal was satisfied that the complaints that John Michael Patrick Ashford was guilty of both unsatisfactory professional conduct and professional misconduct, has an impairment and is otherwise not a suitable person to hold registration as a nurse were proved, it made the following orders namely that: 1. As John Michael Patrick Ashford was no longer registered as a nurse on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia (the National Board) and maintained by the Australian Health Practitioner Regulation Agency (AHPRA), Mr Ashford be disqualified from being registered as a nurse for a period of two years from the date this order takes effect. 2. Having decided that if Mr Ashford had still been registered at the time it heard and determined this matter, it would have cancelled his registration, the Tribunal requires the National Board to record the fact that the Tribunal would have cancelled Mr Ashford's registration on the register kept by the National Board. 3. A Non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of all persons identified as patients. 4. The orders set out in (1) and (2) above take effect on the 15th day after these reasons for decision are published unless the events described in (5) and (6) below occur. The order set out in (3) above, shall come into effect on the day these reasons for decision are published. 5. If the HCCC wishes to continue to seek a prohibition order in relation to Mr Ashford, it must, within 14 days after these reasons for decision are published, advise the Registry of NCAT, that it wishes to do so, so that a directions hearing can be conducted by the Principal Member in this matter to make the arrangements for dealing with the HCCC's request and the request itself to be heard and determined. 6. Should the events set out in (5) above occur, the orders set out above, except for order (3), together with any further orders the Tribunal shall make in relation to the HCCC's request for a prohibition order in relation to Mr Ashford shall take effect as subsequently ordered by the Tribunal. Legislation Cited: Poisons and Therapeutic Goods Act 1961 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Cases Cited: Health Care Complaints Commission v Parsons [2014] NSWCATOD 97 Texts Cited: Health Care Complaints Commission (Complainant) John Michael Patrick Ashford (Respondent) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) John Michael Patrick Ashford (Respondent) Representation: Counsel: S Talbert (Complainant) Solicitors: Health Care Complaints Commission (Complainant) J Ashford (Respondent in person) File Number(s): 1420280 Publication restriction: A Non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of all persons identified as patients. REASONS FOR DECISION Introduction 1. This matter, before the Occupational Division, is an inquiry into a Complaint lodged with NCAT by the Health Care Complaints Commission (HCCC) against John Michael Patrick Ashford, a former registered nurse who surrendered his registration on 5 November 2014. The panel of NCAT conducting the inquiry comprised a presiding member who is an Australian lawyer, 2 registered nurse members, and lay member who is not a nurse. Below we set out the decisions of the tribunal, our reasons for those decisions and the orders made by the tribunal. What the Tribunal decided 1. As the Tribunal was satisfied that the complaints that John Michael Patrick Ashford was guilty of both unsatisfactory professional conduct and professional misconduct, has an impairment and is otherwise not a suitable person to hold registration as a nurse were proved, it made the following orders namely that: 1. As John Michael Patrick Ashford was no longer registered as a nurse on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia (the National Board) and maintained by the Australian Health Practitioner Regulation Agency (AHPRA), Mr Ashford be disqualified from being registered as a nurse for a period of two years from the date this order takes effect. 2. Having decided that if Mr Ashford had still been registered at the time it heard and determined this matter, it would have cancelled his registration, the Tribunal requires the National Board to record the fact that the Tribunal would have cancelled Mr Ashford's registration on the register kept by the National Board. 3. A Non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of all persons identified as patients. 4. The orders set out in (1) and (2) above take effect on the 15th day after these reasons for decision are published unless the events described in (5) and (6) below occur. The order set out in (3) above, shall come into effect on the day these reasons for decision are published. 5. If the HCCC wishes to continue to seek a prohibition order in relation to Mr Ashford, it must, within 14 days after these reasons for decision are published, advise the Registry of NCAT, that it wishes to do so, so that a directions hearing can be conducted by the Principal Member in this matter to make the arrangements for dealing with the HCCC's request and the request itself be heard and determined. 6. Should the events set out in (5) above occur, the orders set out above, except for order (3), together with any further orders the Tribunal shall make in relation to the HCCC's request for a prohibition order in relation to Mr Ashford shall take effect as subsequently ordered by the Tribunal. Issues arising at the commencement of the hearing 1. At the commencement of the hearing, we had before us a letter, dated 28 January 2015 received at the Tribunal on the same day, from the New South Wales Nurses and Midwives' Association (the Association) advising that Mr Ashford would not be attending the hearing and confirming that the Association had no instructions to appear on Mr Ashford's behalf. Enclosed with that letter were copies of Mr Ashford's brief but important response to the Complaint in this matter. Ms Talbert, the barrister appearing for the Complainant in this matter, the Health Care Complaints Commission (HCCC), had no objection to this material being before us. 2. As Mr Ashford's intentions were clear in relation to attendance at this hearing, we decided to conduct our inquiry in his absence. 3. The next matter was Ms Talbert's application for leave to further amend the Complaint in this matter by deleting the original particulars to complaint four and replacing them with new particulars numbered 1.1 to 1.6. In the documents tendered to us on behalf of the HCCC, was a letter dated 4 February 2015 from the Association acknowledging receipt of the further amended Complaint (and an additional report from Dr Samuels dated 2 February 2015). That letter noted, somewhat delphically in the circumstances, that Mr Ashford had previously admitted complaint four, and also that he gave no further instructions in relation to these proceedings. In these circumstances we gave leave for the amendments to the fourth complaint to be made. The Complaint and what has to be proved 1. The HCCC's Complaint contained 4 complaints. The first was unsatisfactory conduct, the second professional misconduct, the third impairment and the fourth otherwise not a suitable person to hold registration as a registered nurse. 2. Our role is to consider the evidence put before us as it relates to the subject-matter of each of the 4 complaints. We have to be satisfied, on the balance of probabilities, by that evidence as to which, if any, of the 4 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. However in this case, the different roles of both the HCCC and us have been made easier by Mr Ashford admitting most of the allegations against him. We will return to his admissions soon. The sources of the evidence 1. The two volumes of documentary material relied upon by the HCCC in this case were tendered by Ms Talbert. That material was marked Complainant's Exhibits (CE) 1, 1A, 1B, 1C – 87, 87A, 88-91 and 91A. The 3 documents from the Association on behalf of Mr Ashford were treated as tendered by us and we marked them Respondent's Exhibits, RE 1-3. Dr Samuels was the only witness called to give verbal evidence to us. He gave his evidence by telephone. The evidence and our findings 1. Mr Ashford, who was born in 1976, was first registered as a registered nurse in NSW on 3 October 2006 on the basis of his university degree level qualifications and his experience as a registered nurse in the United Kingdom. 2. In February 2013 he worked as a registered nurse through the Australian Nursing Network agency at the St George Hospital Emergency Department. 3. On 12 February 2013, he misappropriated nine Oxycontin tablets (a drug of addiction subject to the provisions of the Poisons and Therapeutic Goods Act 1961(NSW) and commonly called an s 8 drug) from St George Hospital for his own use. 4. During an internal investigation by St George Hospital into the incident he provided false and misleading information to hospital staff about his actions on 12 February 2013 in the Emergency Department and falsely denied misappropriating the Oxycontin tablets for his own use. 5. In a submission to the NSW Nursing and Midwifery Council (Council) dated 26 March 2013 he provided false and misleading information in that; he denied misappropriating the Oxycontin and stated, that he had a significant allergy to Oxycontin. 6. On 4 April 2013 he provided false and misleading information in an email to Council in that he denied he had misappropriated Oxycontin and denied that he had ever had an issue with any form of drug. 7. On 5 April 2013 he provided the Council with a medical certificate dated 4 April 2013 which stated that he was allergic to medications including Oxycontin, in circumstances where he knew that the medical certificate was based on false and/or misleading information which he had provided to his medical practitioner, who wrote the certificate. 8. On 11 June 2013 at an interview with Pharmaceutical Services Unit (PSU) of the NSW Ministry of Health he provided false and misleading information in that; first, he denied he had taken the Oxycontin tablets for his own use, second, he stated he was allergic to Oxycontin and third, he provided PSU with the medical certificate which is referred to above. 9. On 23 July 2013 during the night shift Mr Ashford misappropriated Fentanyl (a drug of addiction subject to the provisions of the Poisons and Therapeutic Goods Act 1961(NSW) and commonly called an s 8 drug) from Westmead Hospital for his own use. 10. In an AIMS Incident Detail he entered onto the system at Westmead Hospital on 23 July 2013, he provided false and/or misleading information to account for the disposal of the Fentanyl he had misappropriated. 11. During the night shift on 23 July 2013 he did not follow the NSW Health Western Sydney Local Health District policy, "Medication administration procedure for nurses and midwives" in relation to the Fentanyl in that he did not take a second registered nurse to the bedside to administer the medication to the patient. 12. At an interview conducted by Westmead Hospital staff on 9 August 2013 he provided false and misleading information in that he did not tell the staff that he had misappropriated the Fentanyl for his own use and gave a false version of events to account for the disposal of the Fentanyl he had misappropriated. 13. In his statement dated 14 January 2015, Mr Ashford admitted that he had misappropriated the 9 Oxycontin tablets to his own use on 12 February 2013. He also admitted that he had denied misappropriating the tablets and that he had provided false and misleading information about his misappropriation in each of the sets of circumstances set out above. 14. In the same statement Mr Ashford admitted that he had misappropriated the Fentanyl to his own use on 23 July 2013 and that had committed all the acts and omissions arising from that misappropriation set out above. 15. Furthermore by admitting complaint one, he was admitting that his conduct amounted to unsatisfactory professional conduct. We were satisfied that the conduct set out in the particulars to complaint one amounted to unsatisfactory professional conduct. The 9 Oxycontin tablets were the property of a patient in the hospital and his theft of the tablets had the potential to leave that patient without appropriate pain relief. Also his denial of his actions and his making up the story that he was allergic to Oxycontin and his further steps to bolster that false story together with all the other matters set out above in relation to his misappropriation of both the Oxycontin tablets and the Fentanyl showed ongoing unethical behaviour extending from 12 February 2013 until 9 August 2013 at least. 16. The factual matters set out in the particulars were all amply demonstrated by the evidence tendered to us in this matter. Because of Mr Ashford's admissions, we did not consider it necessary to set out that evidence. 17. We accepted the submission of Ms Talbert that the actions of Mr Ashford, we have set out above, breach the NSW Health Code of Conduct issued March 2012. As Ms Talbert noted, that code requires that nurses demonstrate honesty and integrity, including that their actions and decisions are not influenced by self-interest or considerations of personal gain or other improper motives. The Code requires that nurses act professionally and ethically, including not being under the influence of alcohol or drugs, avoid conduct that could bring disrepute and act in a way that protects and promotes the interests of NSW Health. 18. As a consequence of those decisions, we were satisfied that the evidence did demonstrate that the judgment Mr Ashford exercised in the practise of nursing was significantly below the standard reasonably expected of a registered nurse of equivalent training or experience. We were also satisfied that his proven conduct showed that he had engaged in improper and unethical conduct when practising nursing. Consequently we found both the subject-matter of the particulars and the complaint itself proved. 19. The HCCC also alleged that Mr Ashford was guilty of professional misconduct within the meaning of s 139E of the National Law in that he had engaged in unsatisfactory professional conduct of a sufficiently serious nature as to justify suspension or cancellation of his registration or engaged in more than one instances of unsatisfactory professional conduct and that when those instances were considered together, they amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. The HCCC relied on the same series incidents that are set out above to prove unsatisfactory professional conduct to also prove professional misconduct. 20. We were assisted in making our finding in relation to complaint two by the submissions of Ms Talbert directing us to relevant considerations arising from the case law. She noted that it was held by the NSW Court of Appeal in HCCC v Litchfield (1997) 41 NSWLR 630 at 638 that; "gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards". 21. She also submitted citing the Medical Tribunal case of HCCC v Saedlounia [2013] NSWMT 13 at [43]-[50], that, while there had been no comprehensive exploration in the case law as to when unsatisfactory professional conduct would amount to professional misconduct, the concept contained in s 139E should be given a purposive interpretation. This, she submitted, required us not only to consider the object of the protection of the public but also to recognise that object also includes deterring the particular nurse, and other nurses from repeating the same misconduct. 22. While she noted that dishonesty on the part of a nurse was not a requirement for professional misconduct, it was obviously present in this case. Later she continued: "In relation to Mr Ashford, it is submitted that his conduct, when taken together, is of a very serious nature and demonstrates a deliberate, repeated dishonesty and disregard for his professional ethical obligations over a reasonably lengthy period of time". We agree with that submission. It was not only the taking of the drugs of addiction for his own use that could have resulted in patients not receiving the pain relief prescribed for them, but the deliberate, calculated and repeated dishonesty over a period of at least 6 months that made this a serious example of professional misconduct, as defined in the National Law, in the practise of nursing. 23. Consequently we had no difficulty in finding that the complaint of professional misconduct was proved against Mr Ashford. 24. The third complaint against him was Mr Ashford suffers from an impairment currently. In the first particular to the complaint, the HCCC alleged that Mr Ashford has a physical and/or mental impairment or disorder, namely Post Traumatic Stress Disorder (PTSD) and/or substance abuse or dependence that detrimentally affects or is likely to detrimentally affect his capacity to practise nursing. 25. In the second particular the HCCC alleged that, in addition to the allegations the misappropriation of Oxycontin and Fentanyl referred to in complaints one and two, Mr Ashford's history of substance abuse included the misappropriation and self-administration of supplies of Schedule 4 and/or Schedule 8 medications during 2009 whilst employed as a registered nurse at Royal North Shore Hospital. 26. Taking the second particular first, we note that Mr Ashford admits to this particular in its entirety. The evidence available to us shows us that he was employed in the Intensive Care Unit of the Royal North Shore Hospital (ICU) at the relevant time when drugs had been disappearing from that Unit. Further Mr Ashford had in his possession an ampoule of Fentanyl that he had not signed for. It was in this context that on 12 December 2009 he misappropriated an ampoule of Propofol from the ICU. Two days later on 14 December, he saw a psychiatrist, Dr McKay, and admitted the misappropriation of the Propofol to her. He also told her that he had collapsed at work with what was diagnosed as a viral illness 10 weeks earlier, but that when he returned to work and there had been an investigation about the missing ampoule of Fentanyl, he was put on day shifts only to allow more supervision of his work. He reported what he felt was an atmosphere of mistrust had developed and that people were suspecting his collapse was due to drug misuse. In a report dated 8 February 2010, consultant psychiatrist Dr Young wrote a report in relation to a workers compensation claim in relation to Mr Ashford and in it he took up the story from there. He noted Mr Ashford's report that this led him to become depressed and anxious. He had difficulty sleeping, his motivation decreased as did his enjoyment of usual activities. These symptoms continued to escalate until he experienced acute suicidal thoughts on 12 December 2009 when he impulsively took the ampoule of Profonol from the ICU, "with the poorly formed intent of committing suicide". However, he quickly re-evaluated his position, destroyed the ampoule and returned to work. 27. The documentary evidence before us however, casts a different light on the situation that led to him being placed on day shift with other restrictions on his practice in the ICU. On 23 October 2009, there were inaccuracies in the recording and inconsistencies in the administration of a Fentanyl infusion for analgesia for a patient with a severe burns injury. Also the incident involved Mr Ashford requesting and obtaining 1000mcg of Fentanyl from the key holder of the controlled drugs cabinet. When questioned by the key holder, he said that he was going to use 1 vial of single strength infusion and the other vial for "dressing changes". Later in the shift he went to the staff toilet and did not return for 45 minutes. When he did return, he was seen to be pale, diaphoretic and drowsy. He required medical intervention and was taken to the Emergency Department. Mr Ashford was suspended on full pay and asked to attend a fact finding meeting on 28 October 2009 to discuss the administration inaccuracies and to explain his behaviour. There was a '1st Stage Disciplinary' meeting on 3 November 2009, after which his suspension was lifted and he was allowed to return to work with conditions placed on his working arrangement including, working only day shifts for a month, only giving medications under supervision and not being a designated key holder for the month. 28. Mr Ashford gave a similar description of his conduct on 12 December 2009, as he did to the 2 psychiatrists, at a formal interview on 25 January 2010. At that interview he also gave an internally inconsistent version of his alcohol and drug use in the following terms: "I do not have any physical health conditions. I smoke cigarettes and nothing else. I had stopped on nicotine gum but started smoking again in the new year. I had some ecstasy at a friend's partly in August 2009. Before that I can't remember the last time. It was probably about a year before that. I think that I smoked pot. Now I might have a beer with my wife. I have about 6 drinks a week. This has increased but I would have three or four weeks when I would not have anything and now may be I have a beer or two a day, I smoked cannabis at Middlesex University 1996 to 2000, I have never used medicinal drugs for recreation". 29. However, Mr Ashford's unqualified admission of particular 2 of complaint three in his statement dated 14 January 2015 was much more consistent with his earlier admissions to Drs McKay and Young and with the evidence gathered in the investigations of the disappearance of drugs from the ICU than with the last sentence of his statement made on 25 January 2010. 30. Consequently we were satisfied that the subject-matter of particular 2 was proved. 31. As to particular 1, Mr Ashford admitted that his substance abuse or dependence detrimentally affected or was likely to detrimentally affect his capacity to practise nursing in his 25 January 2015 statement. However he denies that he suffers from post-traumatic stress disorder. We will return to the question of post-traumatic stress disorder, but there is ample evidence to support the allegation that Mr Ashford has the impairment of substance abuse or dependence, including the matters set out in particular 2 that we have found proven. 32. As noted by Dr Samuels in his report dated 2 February 2015, in a letter received at the HCCC on 19 December 2013 Mr Ashford acknowledged that he had had a problem with drug use since 2009. He admitted that he did misappropriate Oxycontin on 12 February 2013. He also stated in that letter: "I am aware of the web of lies I have created and just wish to seek a correct and appropriate way through this for the good of myself, my family, my profession and my future career". In this letter, he also introduced the idea that in 2009 he was traumatised by the death of a patient "Bruce" at Royal North Shore Hospital. He also stated that he was aware that his drug use was a problem that had to be addressed and that he had been attending Narcotics Anonymous (NA) for four months and had been "clean throughout". He said he couldn't afford psychiatric help but he thought he could come to an arrangement with his psychologist. He concluded his letter with the following: "I'm so terribly ashamed of my actions and my deceitful nature but I've not been able to bear the pain of what happened to Bruce". 33. The letter that Mr Ashford was replying to was from the HCCC advising that it was proposing to refer the complaint against him that it was investigating to the Director of Proceedings for determination whether to prosecute a complaint before a professional disciplinary body [including NCAT].The letter explained that its purpose was to inform him of the substance of the grounds for the proposed action and to provide him with the opportunity to make submissions. This kind of letter is described as a 'section 40 letter'. It is provided by the HCCC under s 40 of the Health Care Complaints Act 1993 (NSW). 34. That letter referred to the fact that Mr Ashford was prescribed Oxycontin by a Dr Anell in May 2012, that he was also prescribed Endone (a fast acting version of oxycodone whilst Oxycontin is the controlled release version) two weeks after the incident at St George Hospital, on 27 February 2013 by Dr Anell. Also, another doctor prescribed him Endone on 24 February 2013. While the HCCC raised these prescriptions in relation to Mr Ashford's now admitted lie that he was allergic to Oxycontin, Mr Ashford's response was; "I did misappropriate medication on the dates described". This opens up the issue raised by Dr Samuels of, "ongoing iatrogenic opioid dependence" on the part of Mr Ashford. We will return to this issue. 35. In a letter dated 17 January 2014 to the HCCC from the Association, the Association advised that Mr Ashford had reconsidered his previous response to the HCCC, but nevertheless continued to reiterate a number of the matters Mr Ashford set out in his undated letter received at the HCCC on 19 December 2013. However the Association's letter did state that Mr Ashford had not taken any unprescribed medications/drugs since 21 February 2013. This represented a denial of an allegation that he subsequently admitted to namely that on 23 July 2013, during the night shift at Westmead Hospital, he misappropriated Fentanyl to his own use. However in a letter dated 17 March 2014, he admitted to being impaired during his nursing practise. 36. The consultant psychiatrist Dr Samuels saw Mr Ashford on 8 September 2010 and reported on the same day that on the history Mr Ashford gave him, he could find no significant problem of substance abuse. Specifically, he could find no evidence that he had abused drugs like Fentanyl. Dr Samuels saw Mr Ashford again on 1 August 2012. In his report of the same date, Dr Samuels noted Mr Ashford's denial of any history of drug abuse. Giving his opinion, Dr Samuels stated that Mr Ashford seemed quite stable from a mood point of view, that he had had no further episodes of depression or suicidal ideation and that there was no evidence to suggest any substance misuse issues. 37. Dr Samuels did not see Mr Ashford again, but the HCCC supplied him with most if not all of the material that the HCCC tendered to us. That material showed Mr Ashford being prescribed opioids. Dr Samuels reviewed the material sent to him, wrote a report dated 2 February 2015 and gave verbal evidence to us during the hearing. 38. In his 2 February report, Dr Samuels commented on Mr Ashford's statement to us that had been made available to him by the HCCC. His first comment was: "It seems clear from Mr Ashford's statement and admissions that he has minimised what is clearly a longstanding history of opioid abuse and possible dependence. There is also evidence of depressive and anxiety symptoms which are quite longstanding in nature. He denies taking the Tramadol yet in his correspondence to [the HCCC] it seems that he admitted to all of the allegations in relation to drug use. His past history suggests that he does have the capacity to deny, minimise or lie about his substance misuse therefore it is difficult to be confident in regard to what he is currently saying". 39. Dr Samuels came back to this matter later in the same section of his report as follows: "My overall impression is that Mr Ashford is not an entirely reliable historian and that he has a tendency to put weight on the significance of certain events in an expedient manner". We think that his comment to the HCCC in his letter it received on 19 December 2013; "I am aware of the web of lies I have created…" is closer to the mark. 40. Dr Samuels completed his report with the following 2 paragraphs: I also note from his records the fact that Mr Ashford has been on prescribed opioid medications as well as benzodiazepines. The benzodiazepines were supposedly prescribed because of sleep problems related to post traumatic stress, and the Endone for problems with his knee and problems with his neck. Given his past history of opioid abuse, in my view, prescription of opioids is inadvisable and may, in fact, be a marker of ongoing iatrogenic opioid dependence. I think it is highly likely that his opioid use and his mood and anxiety disorders have the potential to impact upon his capacity to practise as a nurse into the future. If Mr Ashford is planning on returning to nursing a comprehensive review of his current mental state and drug use (including prescription drug use) will be required. It may also be necessary for him to see a pain specialist to have any pain medications that he is currently using rationalised. I think if he were to return to nursing it would be imperative that conditions were placed on his registration and there was a capacity for ongoing monitoring and oversight and, at a minimum, urine drug testing would be a prerequisite. 1. We accept Ms Talbert's submission that Mr Ashford continues to be opioid dependant and that the drug dependency issues are current for Mr Ashford. 2. Our view about the alleged PTSD is somewhat different. We note that the issue of Mr Ashford's alleged military service and the PTSD that was said to have arisen from it was not brought to light until December 2012, more than 6 years after he became a registered nurse in Australia based on his nursing degree completed on 2000 and his experience as a registered nurse in the United Kingdom. We note that Mr Ashford is being treated with benzodiazepines which are used in the treatment for PTSD. As an example of this, Mr Ashford's medical records for 27 February 2013 show that he is recorded as having PTSD after being in the forces and takes Valium for flashbacks. Mr Ashford's psychologist first noted PTSD on the part of Mr Ashford's self-report and Mr Ashford's general practitioners are acting on the psychologist's report of that self-report. Dr Samuels was faced with the same problems as Mr Ashford's psychologist and general practitioners. While he noted in his 2015 report that: "There certainly is evidence from his records of an Adjustment Disorder with Mixed Anxiety and Depressed Mood and most likely some post traumatic type symptoms which may relate to military experiences or perhaps some early developmental experiences". However, Dr Samuels acknowledged in his verbal evidence to us that it was difficult to say that Mr Ashford has PTSD, and he had some concerns about its late emergence. As Mr Ashford is the author of the idea that he has PTSD and that there does not appear to have been any independent assessment of whether or not he has PTSD, we are not satisfied that he has the condition, particularly now that the author of the idea has recanted. 3. Nevertheless, we are satisfied that, because of his ongoing drug use or dependence and the likelihood that would it detrimentally affect his capacity to practise nursing, as he has admitted, we find particular 2 of complaint three proved, even without the PTSD element. 4. Given the finding in the last paragraph and our finding as to particular 2, we are satisfied that complaint three is proved 5. Complaint four alleges that Mr Ashford is otherwise not a suitable person to hold registration as a registered nurse because. 1. He acted dishonestly in misappropriating medications as set out in particulars 1 and 7 of complaint one for his own use. 2. He acted dishonestly in providing false and misleading information to hospital staff as set out in particulars 2, 8 and 12 of complaint one. 3. Of his dishonesty in providing false and misleading information to the Council as set out in particulars 3, 4 and 5 of complaint one. 4. Of his dishonesty in providing false and misleading information to the PSU as set out in particular 6 of complaint one. 5. His history of substance abuse as set out in complaint three. 6. He failed to inform his employers or colleagues of his substance abuse problem. The practitioner continued to practise as a nurse whilst he had a substance abuse problem. 1. We had difficulty with particulars 1.1 to 1.4 of complaint four because we did not see them alleging anything new from that which was alleged in complaints one ant two. As noted in Health Care Complaints Commission v Parsons [2014] NSWCATOD 97 at [73] and [74], s144 of the National Law sets out five forms of complaint that can be made about a registered health practitioner. After the complaints based on criminal conviction, conduct, lack of competence and impairment comes the final ground of complaint "otherwise not a suitable person". The panel of NCAT that heard the Parsons Case noted that the word "otherwise" may suggest that the suitable person complaint is intended to apply to circumstances not covered by the other four complaints. However, it did not consider that it had to form a view about that matter, because the panel dealt with the relevant complaint in another way. 2. We note in this case that the further amendments to the Complaint by replacing the original particular to complaint four with particulars 1.1 to 1.6 reflects, at least in part, an attempt to deal with that concern. That attempt is appreciated, but the concern remains. It is this: complaint one alleges unsatisfactory professional conduct and complaint two professional misconduct. They both rely on the same 2 incidents and the same episodes of false and misleading conduct that followed those 2 incidents. Particulars 1.1 to 1.4 of complaint four simply redescribe misappropriating the medications as acting dishonestly in misappropriating the medications and provided false and misleading information as dishonesty in in providing false and misleading information. Ms Talbert submitted that there was a difference between the particulars to complaints one and two and complaint three in that the particulars to complaints one and two required an inquiry into the fact of the misappropriations and the fact of each alleged example of the falsity and misleadingness of the information given by Mr Ashford in the circumstances particularised while particulars 1.1 to 1.6 of complaint 4 required an inquiry into the dishonesty of the misappropriations and the dishonesty of the false and misleading information given by Mr Ashford. 3. We consider that Ms Talbert offers us a distinction without a difference. We note that the Macquarie Dictionary, 3rd edition, records as a meaning of 'misappropriate'; "to apply wrongfully or dishonestly to one's own use". The word 'false' has many meanings, but one fits the use of that word in the current context. That meaning is; "deceptive; used to deceive or mislead". The added word, 'misleading' is used in the term 'false and misleading' to indicate the kind of falsity intended. We consider that the idea that dishonest, false and misleading statements are in some way different from and require a different kind of inquiry from an inquiry into false and misleading statements too subtle, in the context in which we are asked to make the distinction, to carry a different meaning. 4. In coming to that conclusion we note also that the degree of dishonesty displayed by Mr Ashford as an integral part of his misappropriations and false and misleading conduct is relevant to both the question on whether his undoubtedly unsatisfactory professional conduct amounted to professional conduct and to the question of what protective orders to impose. Consequently we did not consider those particulars as they did not convey any grounds upon which we could consider Mr Ashford was; "otherwise not a suitable person to practise nursing". 5. We considered that particular 1.6 which alleged, in its first sentence, that Mr Ashford failed to inform his employers or colleagues of his substance abuse problem and in its second sentence that he continued to practise as a nurse whilst he had a substance abuse problem raised sufficiently different issues from those covered by complaints one, two and three as to meet the 'otherwise' requirement of complaint four. We note that it was not until December 2013, in a letter received at the HCCC on 19 December 2013, that Mr Ashford acknowledged that he had had a problem with drug use since 2009. Dr Samuels stated in his report of the first occasion on which he saw Mr Ashford, on 8 September 2010, that on the basis of the history Mr Ashford had given him, he could; "find no evidence that [Mr Ashford] abused drugs like Fentanyl". When he saw Dr Samuels again on 1 August 2012, Dr Samuels reported that Mr Ashford specifically denied any history of substance abuse. 6. We note that the Code of Professional Conduct for Nurses In Australia (Code), states in 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 nurse's capacity to practise safely at all times. Nurses whose health threatens their capacity to practise safely and competently have a responsibility to seek assistance to redress their health needs. This may include making a confidential report to an appropriate authority". We accepted Ms Talbert's submission that Mr Ashford breached this and a number of other aspects of the Code which requires that nurses practice not only in a safe and competent manner, but also practice in accordance with the standards of the profession and the broader health system, maintain and build on the community's trust and confidence in the nursing profession and practice nursing reflectively and ethically. 7. Particular 1.5 is not as clearly differentiated from the other complaints as particular 1.6 is. It refers to Mr Ashford's: "history of substance abuse as set out in complaint three". However, complaint three alleges that Mr Ashford had an impairment that detrimentally affects or is likely to detrimentally affect his capacity to practise nursing. That complaint was directed to 2 questions, first whether Mr Ashford had an impairment that was current and second that that impairment adversely affected or was likely to adversely affect his capacity to practise nursing. Taking up Ms Talbert's submission about different kinds of inquiry, what is required of us in relation to particular 1.6 of complaint four is an inquiry into Mr Ashford's history of substance abuse to decide whether the allegation is proved and if so whether it demonstrates that he is; "otherwise not a suitable person to hold registration as a nurse". We considered that the inquiry required by particular 1.5 is sufficiently different from the inquiry required by complaint three so as to be an inquiry we were required to carry out. 8. Mr Ashford admitted that he had had a drug problem since 2009 in December 2013 and arguably again as a result of the letter dated 4 February 2015 from the Association in which it was noted that Mr Ashford had previously admitted complaint four. The evidence before us showed his opioid use and his use of benzodiazepines and as Ms Talbert submitted to us there was no evidence that he had sought to deal with this issue. 9. We were satisfied that the subject-matter of particulars 1.5 and 1.6 of complaint four were proved and on the basis of those findings complaint four was proved. The next question for us what protective orders could we make in the particular circumstances of this case and then what protective orders should we make? What protective orders could we make in the circumstances of this case? 1. By a letter dated 29 October 2014, the Association advised the HCCC that Mr Ashford would not be participating further in these proceedings before NCAT. Enclosed with the letter was a statutory declaration made by him on 29 October 2014. In that statutory declaration, Mr Ashford asked AHPRA to remove his name from the register of nurses immediately. He also undertook not to seek registration as a nurse in Australia again and also not to practise nursing in Australia again. AHPRA reported that Mr Ashford's registration was surrendered on 5 November 2014. 2. As Mr Ashford was not registered as a nurse at the time we made our findings in relation to the Complaint brought by the HCCC against him, our powers to make protective orders are limited to those set out in ss 149A(3) and 149C(4) of the National Law. Under s 149A(3) we can make an order or direction, but it will have effect only to prevent the practitioner being registered unless the order is complied with; or to require the conditions concerned to be imposed on the practitioner's registration when the practitioner was registered. Under s 149C(4) we may decide that if Mr Ashford were still registered we would have suspended or cancelled his registration, and if we would have cancelled his registration, decide that he is disqualified from being registered as a nurse for a specified period or until specified conditions have been complied with. Furthermore, we have the power to require the Nursing and Midwifery Board of Australia (National Board) to record the fact that NCAT would have suspended or cancelled his registration in the National Register kept by the National Board. 3. If we decide, under s. 149C(4) of the National Law that Mr Ashford is disqualified from being registered as a nurse for a specified period that would be a 'relevant order' under s 163A of the National Law and Mr Ashford would be able to be apply to the appropriate review body for a reinstatement order when the disqualification period had expired. Section 163B(3)provides that an appropriate review body may make a reinstatement order the effect that the applicant for the order may be re-registered, with the conditions the review body imposed on the applicant's re-registration, if the applicant applies for re-registration to the National Board and that Board decides to re-register them person 4. If we decide that we would have suspended or cancelled Mr Ashford's registration if he had still been registered, by operation of s 149C(5A) of the National Law, we have the power to make a prohibition order even though Mr Ashford is not currently registered. However, before we may do so, we must be satisfied that Mr Ashford poses a substantial risk to members of the public. What protective orders should we make? 1. We have found all complaints proved. In our view the first two complaints of unsatisfactory professional conduct and professional misconduct coalesce into, as we have already pointed out, a very serious example of professional misconduct. The impairment complaint is proved, but in the circumstances of this case, as it cannot lead to either suspension or cancellation of registration, is not the most significant finding. Ms Talbert made submissions to us to deal with the possibility that we might see Mr Ashford's impairment as providing some reason for taking a more benign approach to his misconduct. We did not take that approach. We did not see any "mitigating factors" in Mr Ashford's drug dependence. Although Dr Samuels referred to Mr Ashford's "ongoing iatrogenic opioid dependence", we considered that Mr Ashford was at least a willing participant in his treatment if not the initiator of it by well-placed pieces of self-reporting like his reporting of PTSD to the psychologist in 2012 or his view of the trauma caused to him by his nursing of the severely burned patient "Bruce" in 2009, which became for him the beginning of his drug problem. We note, as Ms Talbert submitted, that Mr Ashford did not refer to this as the cause of his drug dependency from 2009 to 2013. 2. Ms Talbert addressed a number of her submissions about Mr Ashford's conduct to complaint four and, in particular to the 4 particulars of that complaint that we considered dealt matters already covered by the other 3 complaints and so were not matters that showed that Mr Ashford was otherwise not a suitable person to hold registration as a registered nurse. We considered that the central matter in this case was Mr Ashford's professional misconduct made up primarily by misappropriating drugs for his own use and then lying about those misappropriations and making up further lies as the need arose, until it all got too much for him and he admitted, in December 2013, to the "web of lies" he had created. We consider that we can take the matters that arose from his proven misconduct and his proven impairment as matters relevant to the protective orders we make in relation to Mr Ashford. 3. Ms Talbert referred us to the regularly quoted statement of Basten JA the important indirect effects of protective orders. In NSW Bar Association v Meakes [2006] NSWCA 340 at [113] and [114] Basten JA said: The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose. That being said, it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services. 1. With these considerations in mind, we found that that Mr Ashford's professional misconduct particularly the dishonesty he embarked on in a misguided attempt to hide his underlying drug problem when linked to any real lack of remorse or any real effort to seek to overcome his drug problems and save his nursing career, very serious. We note that despite his statement in December 2013 that he was terribly ashamed of his actions and deceitful nature, that he was ready to leave that behind and not only start atoning but also moving on so he continue with his life, there was nothing before us to show any progress in that regard. Even his statutory declaration made on 29 November 2014 and containing his undertakings not to practise nursing in Australia, had an ulterior motive set out in paragraph 6 namely an attempt to avoid the Complaint against him being proceeded with. 2. Consequently, as submitted that we should do so by Ms Talbert, we decided that if Mr Ashford had still been registered at the time of this hearing, we would have cancelled his registration. It was clear to us that, not only was Mr Ashford's proven misconduct of a sufficiently serious nature as to justify cancellation of his registration, but also that it we would have cancelled his registration if he not surrendered it before we conducted our inquiry into the Complaint against him. 3. Further as an indication of the seriousness of his professional misconduct and the need for our view about that to be apparent on the record of Mr Ashford's nursing career in Australia, and to deal with the indirect effects of a protective order referred to by Basten JA and set out above, we also required the National Board to record the fact that NCAT would have cancelled Mr Ashford's registration in the National Register kept by the National Board. Given the fact that Mr Ashford has been registered as a registered nurse in the United Kingdom, we suggest to AHPRA and the National Board that they advise the relevant registration authority or authorities there of the orders we have made in this case. 4. We also ordered that he be disqualified for a period of 2 years from the date of this order from making an application, under s 163A(1) to the appropriate review body for a reinstatement order under s 163B(3) of the National Law. We made this disqualification order despite Mr Ashford's undertaking not to seek registration as a nurse in Australia again as we wanted to be sure that he could not simply change his mind and seek an early review of our order. Our view was that if Mr Ashford did change his mind, he would need at least 2 years to overcome his drug dependence and his personality problems manifested by his self-acknowledged deceitful nature and show himself to be a changed person. 5. While we realise that we cannot bind those who have authority to decide under s 163 of the National Law who the appropriate body is to conduct the review, we note from our perspective in early 2015, that the appropriate body should be NCAT. We say this because Mr Ashford should be required to satisfy the Occupational Decision as to why, in the first place, it should accept his breaking of his undertaking neither to seek registration as a nurse in Australia again and nor to practise nursing in this country again. Then it would be necessary for him to prove to NCAT that he has overcome not only his drug dependence and his personality dysfunction that makes him an inveterate liar, but also has gained insight into need for, and the actual development of, the qualities of reliability and capacity to be trusted that are required before, he should be allowed to return to nursing. Costs 1. We note that the parties have agreed to pay their own costs in this matter. Consequently, we made no order as to costs. Request for a prohibition order 1. We note the HCCC's request for a prohibition order. We also note that while the HCCC did mention a prohibition order in its application, among a number of orders that it in fact did not seek. We do not consider such a mention, in such circumstances, to be sufficient notice to Mr Ashford that it was seeking a prohibition order in relation to him. Also the HCCC has not yet put before us the material it intends to rely on in order to prove that Mr Ashford currently poses a substantial risk to the health of members of the public. Nor has it provided that material to Mr Ashford. 2. In order to allow the HCCC time to decide whether or not it wishes to continue to seek a prohibition order in relation to Mr Ashford, 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 come into effect until the 15th day after these reasons for decision have been published. 3. If the HCCC wishes to continue to seek a prohibition order in relation to Mr Ashford, it will need to advise the Registry of NCAT, prior to the orders in this matter coming into effect, so that a directions hearing can be conducted by the Principal Member in this matter to make the arrangements for dealing with the HCCC's application. Should the HCCC take this course of action the non-publication order will take effect but not the other orders. Those orders, together with any further orders the Tribunal shall make in relation to the HCCC's request for a prohibition order in relation to Mr Ashford, shall take effect as subsequently ordered by us. These matters are dealt with in the orders set out below. The orders made in this matter 1. As the Tribunal was satisfied that the complaints that John Michael Patrick Ashford was guilty of both unsatisfactory professional conduct and professional misconduct, has an impairment and is otherwise not a suitable person to hold registration as a nurse were proved, it made the following orders namely that: 1. As John Michael Patrick Ashford was no longer registered as a nurse on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia (the National Board) and maintained by the Australian Health Practitioner Regulation Agency (AHPRA), Mr Ashford be disqualified from being registered as a nurse for a period of two years from the date this order takes effect.Having decided that if Mr Ashford had still been registered at the time it heard and determined this matter, it would have cancelled his registration, the Tribunal requires the National Board to record the fact that the Tribunal would have cancelled Mr Ashford's registration on the register kept by the National Board. 2. A Non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of all persons identified as patients. 3. The orders set out in (1) and (2) above take effect on the 15th day after these reasons for decision are published unless the events described in (5) and (6) below occur. The order set out in (3) above, shall come into effect on the day these reasons for decision are published. 4. If the HCCC wishes to continue to seek a prohibition order in relation to Mr Ashford, it must, within 14 days after these reasons for decision are published, advise the Registry of NCAT, that it wishes to do so, so that a directions hearing can be conducted by the Principal Member in this matter to make the arrangements for dealing with the HCCC's request and the request itself be heard and determined. 5. Should the events set out in (5) above occur, the orders set out above, except for order (3), together with any further orders the Tribunal shall make in relation to the HCCC's request for a prohibition order in relation to Mr Ashford shall take effect as subsequently ordered by the Tribunal. 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: 18 March 2015