Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Bialowas [2015] NSWCATOD 16 Hearing dates: 20, 21 and 22 October 2014 and 13 February 2015 Decision date: 18 March 2015 Jurisdiction: Occupational Division Before: N O'Neill, Principal Member S Kennedy, Professional Member R Kerr, Professional Member M Turner, Lay Member Decision: 1. Having found complaints one and two not proved, but complaint three proved, the Tribunal: 1. cancelled the registration of Halina Christina Bialowas on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia and maintained by the Australian Health Practitioner Regulation Agency (AHPRA); 2. ordered that at least 6 months elapse, from the date of the order in this matter, before Ms Bialowas may apply (make an application for a review under s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law) for a reinstatement order; 3. ordered that Ms Bialowas pay 50% of the HCCC's costs of proceedings, as agreed or assessed; and 4. made a Non-publication Order under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of all persons identified as patients in the material tendered as evidence in this matter. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) – Occupational division – health practitioner list – Complaint against a nurse – unsatisfactory professional conduct not proved – impairment not proved –– not competent to practise nursing proved –costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: In re a Medical Practitioner and the Medical Practice Act (unreported, Medical Tribunal, 3 September 2007) Grant v HCCC [2003] NSWCA 73 HCCC v Wingate (2007) 70 NSWLR 323 Texts Cited: Health Care Complaints Commission (Complainant) Halina Christina Bialowas (Respondent) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Halina Christina Bialowas (Respondent) Representation: Counsel: L Thomas (20-22 Oct 2014) and K Richardson, l Thomas (13 Feb 2015) (Complainant) Solicitor: Health Care Complaints Commission (Complainant) NSW Nurses and Midwives' Association (Respondent) File Number(s): 1420193 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. 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 Halina Christina Bialowas, a Registered Nurse. The panel of NCAT conducting the inquiry comprised a presiding member who is an Australian lawyer, two registered nurse members and lay member who is not a nurse. Below we set out the decisions of the tribunal, our reasons for those decisions and the orders made by the tribunal. 2. What the tribunal decided 3. We found the subject-matter of complaint one and the complaint itself not proved. 4. We were not satisfied that complaint two was proved. 5. We were satisfied that complaint three was proved. 6. We cancelled the registration of Halina Christina Bialowas on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia and maintained by the Australian Health Practitioner Regulation Agency (AHPRA). 7. We ordered that at least 6 months elapse, from the date of the order in this matter, before Ms Bialowas may apply (make an application for a review under s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law) for a reinstatement order. 8. We ordered that Ms Bialowas pay 50% of the HCCC's costs of proceedings, as agreed or assessed. 9. We made a Non-publication Order under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of all persons identified as patients in the material tendered as evidence in this matter. The Complaint and what has to be proved 1. In this matter the HCCC's Complaint contained three separate complaints. The first dealt with unsatisfactory professional conduct. It stated that Ms Bialowas was guilty of unsatisfactory professional conduct within the meaning of s 139B(a) and (l) of the National Law in that she had engaged in conduct that demonstrated that the judgment she possessed or the care she exercised in the practice of nursing was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. And further, that she engaged in improper or unethical conduct relating to the practice of nursing. The particulars of the complaint (the facts upon which the HCCC relied to prove the complaint) were that on 29 June 2011 while conducting a clinic at a community health clinic, in her role as Child and Family Health Nurse, she hit a three year old child on the arm. 2. The second complaint alleged that Ms Bialowas suffered from an impairment. It stated that she had physical or mental impairments or disorders or both kinds of impairments that detrimentally affected or were likely to detrimentally affect her capacity to practise nursing. The particulars set out 4 different factual matters. First that Ms Bialowas suffered a cerebral vascular accident (CVA) in 2004 resulting in right hemiparesis affecting her gait and her right hand fine motor skills. The CVA also caused selective cognitive impairments and executive dysfunction. Second that she suffered from a drug induced psychotic illness in August and September 2011 requiring hospital admission. Third that she suffered a manic episode in July 2012. Fourth that since about August 2011 she had, from time to time, been psychiatrically unwell and had been diagnosed as suffering from bipolar disorder, schizoaffective disorder, depression and anxiety, cannabis abuse and a relapsing psychosis. 3. The third complaint alleged that Ms Bialowas was not competent to practise nursing under s 139 of the National Law in that she did not have sufficient physical or mental capacity, or both, to practise nursing. The factual matters set out in the particulars of complaint two were stated to apply to prove complaint three. There was a further particular stating that Ms Bialowas's impairments were of a sufficient nature and degree that they did detrimentally affect or were likely to detrimentally affect her mental and physical capacity to practise nursing. 4. 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 those complaints has been proved. It is only after we have found that the subject-matter of a complaint has been proved that we may take action in relation to it and consider whether or not to make a protective order. The responsibility for proving the subject-matter of a complaint lies with the party alleging it – in this case the HCCC. 5. In her written statement admitted in evidence, Ms Bialowas made admissions which were somewhat unclear when all of the language in the paragraph relating to each admission was considered. Also, at the hearing other advice in relation to what was admitted cast doubt on the extent of the admissions in the statement. Given that in any event we have to be satisfied that the subject-matter of a complaint has been proved before we may consider whether or not to make a protective order in relation to that complaint, we conducted its inquiry on the following basis. First we had to make a finding of the actual facts of complaint one and then decide whether or not those facts amounted to professional conduct. Second, while the CVA and some of its effects were admitted to, we had to consider the evidence about the effect of that impairment in order to make findings as to whether or not Ms Bialowas's physical impairments detrimentally affected or were likely to detrimentally affect her capacity to practise nursing. In dealing with that question we also considered we had to take some account of the obligations of employers to make reasonable adjustments for people with disabilities to be employed or return to work. We also had to consider the evidence about Ms Bialowas's drug induced psychosis and the differential diagnosis that she had schizoaffective disorder and make findings as to whether any of the alleged impairments detrimentally affected or were likely to detrimentally affect her capacity to practise nursing. Third we were unclear about the admissions as to complaint three. But, in any event, we had to be satisfied as to whether or not that complaint was proved; so we proceeded on that basis. The sources of the evidence 1. The 2 volumes of documentary material relied upon by the HCCC in this case were tendered by Ms Thomas without objection and were marked. Complainant's Exhibits (CE) 1- 47. Ms Alexander tendered without objection a folder of documents on behalf of Ms Bialowas. These documents were marked Respondents Exhibits (RE) 1-8. The following attended the hearing to give oral evidence to us: Registered Nurse Dalgleish, Registered Nurse Baby, Registered Nurse Prats, Registered Nurse Donaldson, Clinical Psychologist Langeluddeke and Ms Bialowas. Psychiatrists Samuels and Jovanova and Clinical Psychologist Occelli gave evidence to us over the telephone. The evidence 1. Ms Bialowas was born in 1975. After completing her Bachelor of Nursing degree, she was first registered as a Registered Nurse in NSW in January 1997. She has been registered as a nurse continuously since then. Her registration was current at the time of our hearing. 2. After a year on a Beginning Practitioner Program, she worked for another year in a surgical and orthopaedic ward and for 18 months in an intensive care ward. From December 2000 to June 2007, she worked at a community health centre. All these positions were full-time. 3. Most unfortunately on 15 August 2004, at the age of 29, she had a CVA. She was off work for 3 months. The CVA affected her gait, leaving her with a limp. It also affected her right hand fine motor skills. However, she returned to work in November 2004. With the assistance of the Commonwealth Rehabilitation Service (CRS), she returned to work on a suitable duties plan and "was successful in gradually upgrading to her pre-injuries in January 2005". The report dated 29 March 2005, which dealt with Ms Bialowas's return to work noted that she had a mild word finding difficulty and some anxiety relating to her ability to return to work. However, the report also noted that both Ms Bialowas and her employer considered that she was managing well in her pre-injury duties. The CRS recommended that she continue her then current employment as a Community Nurse. 4. Ms Bialowas and her partner went overseas in April or May 2005, but returned in November of that year and Ms Bialowas returned to work. However she was pregnant and went on maternity leave from April 2006 to May 2007. She had a child in May 2006. 5. Ms Bialowas returned to her Generalist Community Nurse position but in July 2007, apparently as a result of her generalist nurse position being abolished in a restructure, she transferred to a position of Chronic Aged and Complex Care Nurse. There was a "clinical issue" in either late November or early December 2007 in which Ms Bialowas's difficulties with and anxieties about putting on sterile gloves prior to a home visit were raised, but nothing seems to have come of it until it is referred to in a letter dated 9 April 2008 when Ms Bialowas was referred to a general practitioner who is a WorkCover approved injury management consultant and saw him on 28 April 2008. 6. He reported her as "an anxious lady" but that she was; "orientated in time, place and person". He continued that her cognitive function was normal with normal memory, attention, concentration and visual spatial recognition. He also noted that she had a full range of movement of the cervical, thoracic and lumber spines and full range and normal movements in her upper extremities. However he noted the clawing of her fingers causing difficulty with fine motor tasks and that, as a result, she was clumsy in her attempts to put on gloves, open a dressing pack and when demonstrating the application of wound dressing. 7. He expressed the opinion that Ms Bialowas was capable of continuing to perform her normal duties as a community nurse provided she did a lighter workload. He said that she should manage only 2 to 4 patients a day, depending on the complexity of their problems. He considered that; "in the longer term" she should "probably" be redeployed to alternative nursing duties that did not require working in a sterile environment or the need for hand dexterity. He also noted that her goal was to work in in early childhood nursing. 8. On 20 August 2008, a clinical nurse consultant (CNC) in child and family health assessed Ms Bialowas's competency to function in the role of a child and family health nurse. The CNC noted that, at the time of the assessment, Ms Bialowas was completing a Graduate Certificate in Child and Family Health through the College of Nursing. The CNC noted that Ms Bialowas completed 3 home visits in 5 hours to her satisfaction and she recommended that Ms Bialowas be considered for any child and family health position she applies for if she meets the essential requirements and if due process for employment identifies her as a suitable applicant. 9. Ms Bialowas completed a Graduate Certificate in Child and Family Health while working at the same community health centre she had been working at since December 2000. She was a Child and Family Health Nurse there from June 2008 to February 2009 when she transferred to the same position at another community health centre. 10. Ms Bialowas had her first consultation with the clinical psychologist Ms Occelli on 5 April 2011 soon after she had begun working full-time at the second community health centre. She told Ms Occelli that the week before she began work at that centre, her supervisor had counselled her about her work performance and in particular she had not been doing enough home visits and commented that she may not be cut out for the work. 11. She was at that second community health centre until July 2011, but it was there on Wednesday 29 June 2011 that the incident that gave rise to complaint one occurred. We will return to that complaint later in these reasons for decision. 12. Ms Bialowas did not tell anyone about the matter until Friday 1 July, the second working day after the day on which the incident occurred. She said she was away from the centre after the incident and all the next day and that she wanted to talk to someone she; "could be frank with". The matter was reported to the Nursing and Midwifery Council of NSW (Council) by a letter dated 7 July 2011 from the Senior Nursing Manager – Community Health. The letter began with a reference to Ms Bialowas and was then headed; "Allegation of Child Assault". The source of the allegation was the Co-ordinator of the refuge for women and children which then housed the child and his mother. The letter to the Council also advised that Ms Bialowas would be stood down from the day she returned from leave, namely 11 July 2011. Enclosed with the letter was a report of the risk assessment conducted as a result of the phone call from the co-ordinator. This letter and risk assessment report will be returned to later in these reasons for decision. 13. Ms Bialowas sought an urgent appointment with Ms Occelli on 14 July 2011 and advised Ms Occelli that she had been accused of striking a child and had been suspended from work. Ms Occelli reported on Ms Bialowas's consultations with her on 5 April and 14 July 2011 in her report dated 17 April 2013. This report of Ms Occelli and other reports and oral evidence given to us by her will be returned to later in these reasons for decision. 14. It appears from Dr Samuels' report dated 30 November 2011, that the Council's Notification Committee, operating under delegation and probably treating the Senior Nursing Manager's letter dated 7 July 2011 as a notification resolved that Ms Bialowas be required to undergo a psychiatric examination under s 145E of the National Law to be conducted by Dr Samuels. Nevertheless, in the interim, Ms Bialowas had had a psychotic episode. Dr Samuels reported that Ms Bialowas; "adamantly denies assaulting the child" but since the allegation that she had done so, had become extremely distressed and started smoking marijuana (something she had done only occasionally before) and as a result had appeared to have developed a psychosis. His view then was that this episode may have been related to an emerging psychotic illness. He noted that Ms Bialowas had had 2 admissions to psychiatric hospitals, each lasting approximately a week. Dr Samuels noted that Ms Bialowas had had a range of florid symptoms including visual hallucinations, ideas of reference, persecutory ideas and, perhaps, some affective instability in the form of money spending but no clear evidence of disinhibition. He noted that she also had symptoms of anxiety and depressed mood. 15. Dr Samuels continued that Ms Bialowas's symptoms had resolved, but that she still had some depression and anxiety in relation to her uncertain nursing future. He completed his opinion by stating that, at that time, he; "would regard her as suffering from an impairment within the meaning of" the National Law. This was because she had experienced a psychotic episode followed by 2 hospital admissions. He noted that Ms Bialowas continued to be under the care of a psychiatrist and to take medication. Her symptoms were well controlled and her treating psychiatrist seemed to feel that she was ready to go back to work. 16. Dr Samuels' recommendation was that Ms Bialowas should enter the Impairment Program and that there should be conditions on her registration as a nurse. 17. On 14 December 2011, Ms Bialowas's treating psychiatrist wrote; "to whom it may concern" that Ms Bialowas remained under his continuing outpatient care following her 2 admissions for a psychotic episode and that she was then currently symptom free, compliant with treatment and functioning well in all personal spheres. He then recommended that she be returned to full duties in her normal work from 19 December 2011. 18. Following the notification in relation to Ms Bialowas by the Senior Nurse Manager and Ms Bialowas's own notification that she was an involuntary patient in a mental health facility, the Impaired Registrants Panel convened on 6 June 2012. The panel's report notes that Ms Bialowas denied hitting the child on 27 June 2011. The panel also considered Dr Samuels' recommendation that certain conditions relating to treatment be imposed on Ms Bialowas's registration, but that, because she had been symptom free and compliant with treatment and medical appointments for almost a year, she could not be considered to be impaired at that time. The panel's recommendation was that Ms Bialowas did not have an impairment at the time of its interview with her. 19. After the Panel meeting, but before she was advised of its outcome, Ms Bialowas had a manic episode in early July 2012. The written material before us reveals a discharge summary which is very sparse. The admission date is 6 July 2012 and the transfer/discharge date is 27 July 2012. On admission on this occasion Ms Bialowas was described as manic and psychotic. Her principal diagnosis was noted as bipolar with an additional diagnosis of schizoaffective [disorder]. Her medications were noted as sodium valproate and Risperidone. The recommended follow up was medication and a case manager. Ms Bialowas told Dr Samuels about this episode during her consultation with him on 5 June 2013. It was a time when she was having difficulties with her partner and her family. It is unclear whether the Community Health Team had contact with her, but Dr Samuels reported on 5 June 2013 that: "She is not on medications". 20. By a letter dated 29 August 2012, Mr Bialowas was advised that at its meeting on 5 July 2012, the Council had noted the panel's report and had discharged Ms Bialowas from the Health Program. It had also cautioned her against drug use and in relation to her behaviour towards a child on 29 June 2011. Also it had closed the complaints in relation to Ms Bialowas. This is a reference to the notification by the Senior Nurse Manage and Ms Bialowas's self-notification. 21. The incident on 27 June 2011 was referred to the NSW Police who decided not to press charges. 22. Nevertheless, by a letter dated 14 January 2013, the Senior Nurse Manager – Community Health revived the allegation of child assault noting that this allegation had been substantiated in an; "investigatory interview" of Ms Bialowas conducted on 3 July 2012 . The letter advised that Ms Bialowas was interviewed about 3 matters. First assaulting a vulnerable child, second failing to document a clinical examination and third failing to notify her employers that the police investigation had been concluded and that she was available to be interviewed (by officials of NSW Health). 23. The Senior Nurse Manager continued his letter by stating that he considered himself duty bound to advise that, due to her neurological deficits following her CVA plus prior documented events, which have resulted in aggressive outbursts toward other staff members, a risk assessment showed that if Ms Bialowas was returned to the workplace, she was highly likely to reoffend, putting the public and staff at risk. He also advised that it was not intended to allow Ms Bialowas to return to her workplace; "at this time". The letter concluded with a request to the Council again to conduct; "the necessary investigations to assess her suitability to remain on the register, including consideration of referral to the [Impaired Registrants Panel] to assess her cognitive state and ability as well as physical". The investigation report was enclosed with this letter. 24. The Acting Nurse Manager- Community Health at the community health centre at which Ms Bialowas worked made a statement dated 19 February 2013 which was sent directly to a named officer at the Council. That statement dealt with a number of alleged incidents arising in the workplace. The first one was in 2009 when Ms Bialowas was reported to have become angry over access to a disabled parking space at the community health centre at which she worked. She was told it was for clients only. However, since her CVA, Ms Bialowas has walking problems and has a disabled parking sticker. The second was in 2011 when it was stated that Ms Bialowas made inappropriate remarks in a conversation with other nursing staff in an open reception area in which she was alleged to have raised matters of a sexual nature that discomforted her colleagues. The third was in 2011 when on two related occasions it was alleged that Ms Bialowas made inappropriate and judgmental remarks to a pregnant member of the centre's administrative staff causing her "great distress". The next allegation was other nursing staff had reported overhearing conversations in which they considered that Ms Bialowas was overstepping the boundaries of her role as a child and family health nurse. In her oral evidence to us, Ms Bialowas denied ever doing this. The final allegation was about the event on 29 June 2011. 25. The Acting Manager admitted during her oral evidence to us that she had not seen or heard any of these alleged incidents and that they were reported to her by others. Nevertheless, she expressed the view that there was; "an accumulating body of evidence to suggest that [Ms Bialowas] has anger management issues, become quite volatile when challenged and is not able to separate the personal from the professional". She went on to state that she had a duty to her clients and staff and that, based on past experience, Ms Bialowas's; "return to the workplace could prove to be a major risk". She also stated that, as a result of Ms Bialowas's volatility and in the absence of reports from her specialist physician and psychologist, she was not prepared to risk the safety of clients or staff in supporting Ms Bialowas's return to her previous role as a child and family health nurse. 26. In her oral evidence to us, the Acting Nurse Manager advised that she had obtained the address to which she sent her statement from the Senior Nurse Manager, but that she did not know that he had sent his notification letter to the Council. When asked if any patients had complained against Ms Bialowas, she answered; "No". 27. By a letter dated 26 March 2013, Ms Bialowas was advised of the Senior Nurse Manager's second notification and of the Acting Nurse Manager's signed statement and was provided with copies of them. The letter advised that the Council was seeking to identify the nature of the underlying issue and to implement whatever intervention (if any) that was necessary to protect the public while placing the least restriction on the registrants practice required to ensure public safety. The letter also pointed out, in measured terms, that where there were concerns about the performance or health of a nurse, the Council may direct the nurse to have a medical assessment and that the Council may refer the nurse to its health program, for assessment of professional performance or the matter may be referred for as a complaint for investigation. 28. The letter also asked for a response within 21 days and directed Ms Bialowas to specific matters to deal with in her response. In an email dated 26 March 2013, the NSW Nurses and Midwives' Association advised that it had been instructed by Mr Bialowas to assist her in the matter. That email noted some of the history related to the first notification in relation to Ms Bialowas and set out above. It also noted that some of the matters raised were issues between Ms Bialowas and her employer and were not professional conduct issues. 29. In a letter dated 17 April 2013 directed to, "To whom it may concern", Clinical Psychologist Occelli referred to Ms Bialowas's request for an urgent appointment on 14 July 2011 subsequent to the incident on 29 June 2011. In that letter, Ms Occelli set out what Ms Bialowas told her about the incident. She advised that Ms Bialowas had continued to consult her since her first visit in April 2011 and then expressed the following opinion in her capacity as Ms Bialowas's clinical psychologist: Her psychiatric symptoms have been largely triggered by work including bullying she was subjected to and other stresses mentioned [in this letter], culminating in the event discussed above. In my opinion, Ms Bialowas is not an aggressive individual and the incident discussed above was provoked by special and extreme circumstances and are not typical of her behaviour. Ms Bialowas is an individual who has a high level of compassion for others and in particular for children. She prides herself in her dedication to her work and in her ability to make a positive difference in the lives of mothers and their babies. Whilst she may need training and supervision in order to expertly to deal with children with challenging behaviours, I do not believe that she presents a risk of harm to her clients should she be reinstated in her position. 1. This letter was part of the documentary material before the Council's proceedings under s 150 set out below. 2. In May 2013, Ms Bialowas was referred to clinical psychologist Dr Langeluddeke who saw her on 23 May and reported on her assessment of Ms Bialowas on 24 May 2013. At the consultation on 23 May 2013, Dr Langeluddeke administered a range of psychometric tests to Ms Bialowas. An analysis of these results was set out in Dr Langeluddeke's report together with her "Summary and Report". In that part of her overall report, Dr Langeluddeke noted that; "There were no overt signs of psychosis. Ms Bialowas was verbose, tangential and somewhat lacking in social intuition and insight". 3. She was aware of Ms Bialowas's drug-induced (cannabis-related) psychosis in August-September 2011 which, she noted, resolved over a period of around 6 months. There was no direct reference to the July 2012 episode in Dr Langeluddeke's report however, she continued that; "Ms Bialowas reported no further psychotic episodes, although there did appear to have been further psychotic issues, the nature of which is unclear to me". She also noted that Ms Bialowas was subject to regular psychiatric review but was no longer taking anti-psychotic/mood stabilising medications as recommended because of adverse side effects and that her drug use was limited to very infrequent cannabis use. 4. Dr Langeluddeke then went on to state: Ms Bialowas was very cooperative with cognitive testing and the results obtained were thought to provide a valid measure of her current functioning. Testing indicated general intellectual capacity to be well preserved at an average level. Performance was within normal limits on tests tapping basic attentional, intermediate – short-term memory, and problem solving abilities. There were mild weaknesses in relation to higher order verbal and visual memory abilities and deficits in selective executive functions (ie verbal-fluency; visiospatial planning and self-monitoring). Psychomotor and mental processing speed was very slow. Speed and dexterity in relation to her right hand were severely impaired. 1. Dr Langeluddeke also noted that Ms Bialowas presented with impairment in fine motor skills and went on to state: "Neurological impairment with frontal network involvement associated with her stroke in 2004 is likely to be the primary cause of these neuropsychological deficits". However, she noted that she was not able to; "totally exclude low grade psychosis given Ms Bialowas's psychiatric history". 2. Dr Langeluddeke was of the opinion that Ms Bialowas suffered from an impairment "within the meaning of the National Law". She continued: "Executive dysfunction and a right hemiparesis are likely to impact significantly on Ms Bialowas's ability to fulfil the competencies expected of an RN by virtue of their effects on her clinical and social judgment, communication skills and ability to perform writing and other fine motor tasks". 3. Ms Bialowas was also directed by the Council, in the exercise of its powers under s 145E of the National Law, to see Dr Samuels again. That consultation took place on 5 May 2013 and Dr Samuels wrote his report on the same day. He noted in his report that he had been provided, among other documents, with the Senior Nurse Manager's notification letter dated 14 January 2013 and the Acting Nurse Manager's statement dated 19 February 2013. 4. He reported that Ms Bialowas had stated on 6 May 2013 that she was sick of the "whole fiasco" and that; "it was a minor incident that they are trying to blow up into a whole big thing ... making mountains out of a molehill". 5. She also told Dr Samuels that she was admitted to Blacktown Hospital in July 2012. That matter has been referred to above. 6. In his opinion given on 5 May 2013, Dr Samuels noted that there was some evidence suggesting that Ms Bialowas was suffering from some mental health impairment. He stated that he was; "left with some uncertainty in regard to what was occurring in terms of her current mental state". He noted that Ms Bialowas presented as somewhat disinhibited and that he was uncertain whether that reflected the emergence of an underlying functional psychotic illness or was a marker of some frontal lobe dysfunction secondary to an organic mental disorder. He thought it would be helpful to have access to the notes about Ms Bialowas's July 2012 admission and also to have a copy of Dr Langeluddeke's assessment when it became available. 7. He concluded his opinion with the statement that the concerns raised by the Senior Nurse Manager; "certainly do have some basis and I do have concerns in regard to her current fitness to practise as a Registered Nurse". In the final part of his report he stated that he would like to review Ms Bialowas again when the documents he requested above were available as this might place him in a better position to make some diagnostic determinations in regard to Ms Bialowas's mental state and make some recommendations in regard to; "possible conditions that might allow her to safely return to nursing practice". 8. On 19 June 2013, Dr Samuels reported that he had Dr Langeluddeke's report, but not the discharge summary in relation to Ms Bialowas's July 2012 admission. Under the heading "Preliminary Review", he reported that he found Dr Langeluddeke's report most helpful and that it supplemented his clinical opinion that Ms Bialowas was demonstrating evidence of frontal lobe dysfunction. He concurred with Ms Langeluddeke's opinion that it was difficult to know what part, if any, a relapsing psychosis was playing in terms of Ms Bialowas's current mental state. He noted that he wanted the discharge summary in order to formulate a clearer diagnostic formulation in regard to Ms Bialowas's underlying psychotic issues and hoped that it would place him; "in a better position to give a final diagnostic opinion and to make some more definitive recommendations". 9. On 15 July 2013, delegates of the Council conducted proceedings under s 150 of the National Law to determine whether it was satisfied that it was appropriate for the protection of the health or safety of any person or persons or otherwise in the public interest to take action under the section. We note that if the Council is satisfied that it is appropriate to take action, then it must take the action or actions that it considers appropriate that are available to it under s 150(1)(a) or (b) of the National Law. The 2 notifications of the Senior Nurse Manager, the statement of the Acting Nurse Manager, the 3 reports of Dr Samuels, and the reports of Dr Langeluddeke and Clinical Psychologist Occelli referred to above, among other documents, were before the delegates. 10. The delegates considered the material before them, were satisfied as to the relevant matters and imposed conditions on Ms Bialowas's registration, with effect from 18 July 2013. The first condition was that Ms Bialowas may only provide clinical care to patients under the direct supervision of a registered nurse who did not have restrictions on their practice. It also required that the supervisor must be present at all times to observe, work with guide and direct Ms Bialowas. The second condition was that Ms Bialowas provide nursing care only to adult patients or clients and must not assess, treat or provide nursing care to children in any nursing setting. The third condition was that Ms Bialowas must not engage an agency for the purpose of nursing. The fourth condition was that Ms Bialowas must not be the nurse in charge of any shift, ward or unit, have any supervisory responsibilities for any other nurse and must not work as a sole practitioner on any shift, ward or unit. Conditions 5, 6 and 7 were the usual conditions requiring a practitioner to inform all current and future employers of the conditions, to agree to any employer informing the Council of any breach of conditions or unsafe practice and related matters. Also these conditions were to apply to Ms Bialowas's practice as a nurse anywhere in Australia. 11. Those were the public conditions on her registration. The private conditions required Ms Bialowas to establish and maintain a therapeutic relationship with a psychiatrist and at a frequency established by the psychiatrist. This relationship was to continue until the psychiatrist verified to the Council was no longer required and the condition was removed. Then followed the usual conditions about the Council being provided with the contact details of health practitioners treating Ms Bialowas, Ms Bialowas's obligation to inform them of the conditions, and authorise her treating practitioners to advise the Council of any immediate concerns about her fitness to practise or related matters. 12. As there were no allegations that Ms Bialowas breached the conditions on her registration and no evidence that she did so, it is not necessary to set out the conditions in precise detail in this case. What is important to note are some of the significant effects of the imposition of those conditions. Ms Bialowas had been working in community nursing since December 2000, more than 12 ½ years, and her preferred area of practice was assessing babies and young children in a community nursing context. The conditions imposed precluded her, as a matter of practicality, from practising nursing in relation to anyone under the age of 18 years and of carrying out any nursing practice in the form of home visits or other aspects of community nursing carried out by a nurse acting alone. She was effectively limited to practising nursing in a hospital ward or where other registered nurses worked in numbers sufficient to allow registered nurses to be present to supervise her in the sense of observing her, working with her and guiding and directing her. 13. By a letter dated 18 July 2013, the Council informed the HCCC that it had completed proceedings under s 150 of the National Law and imposed conditions on Ms Bialowas's registration as a nurse. That letter also advised that the Council was concerned about Ms Bialowas's performance, conduct and health and made other comments. We understood this letter to be a referral of the notification in relation to Ms Bialowas to the HCCC for investigation under s 150D(1) of the National Law. Such a referral requires the HCCC to treat the referral as a complaint and investigate it as such as soon as practicable (s 150D(3) and (4) of the National Law). 14. On 25 September 2013, Ms Bialowas's psychiatrist, Dr Jovanova provided a report to the HCCC. Her report stated that she had seen Ms Bialowas 4 times in the prior 2 months. She stated for the then current time, which she described as August – September 2013, that Ms Bialowas had a diagnosis of schizoaffective disorder (in remission) and cannabis abuse (in remission) as well as brain damage caused by her CVA in 2004. 15. It appears from the statement of a Nurse Educator, now retired, who also gave verbal evidence to us that there was a "plan" for Ms Bialowas to return to work in a medical ward of a particular hospital in July 2013, but the start date was postponed. Consequently the Nurse Educator, in "around" September 2013, was asked to prepare a formal Educational Support Plan for Ms Bialowas the purpose of which was to help her transition into the proposed medical ward and to ensure that she was supported during the transition period. Although the Nurse Educator had no involvement in the review, she understood that a performance review of Ms Bialowas was the responsibility of the Nursing Unit Manager of the relevant medical ward. We did not have any evidence before us as to whether that performance review happened or what the outcome of it was. 16. The Nurse Educator also noted that Ms Bialowas was moved from that ward to a palliative care unit in another hospital. Again the Nurse Educator had no involvement in the process and no knowledge of the reasons for the move. However, on 5 February 2014, she conducted a competency assessment of Ms Bialowas in that palliative care unit. As will be seen below, this was 7 days after her last shift in that unit. The Nurse Educator stated that competencies she assessed Ms Bialowas on were; "all core competencies applicable to an RN in a public hospital setting". She continued that some of these competencies were the same as she had provided to Ms Bialowas prior to her initial return to work in early to mid 2013 and again in September 2013. She further stated that every new graduate would be expected to achieve these competencies within their first 3 months of employment. The Nurse Educator also took Ms Bialowas through the checklists and pointed out the areas in which she hadn't achieved the competencies. She also told Ms Bialowas that she hadn't succeeded in the competency assessment as 100% had to be achieved. Ms Bialowas's response was that she knew that she was slow. 17. When giving oral evidence to us, the Nurse Educator acknowledged that she was unaware of Ms Bialowas's disabilities until she saw her. Nor was she aware of the conditions on her registration. It was clear to us as a result of hearing her evidence that the Nurse Educator made no adjustments in relation to Ms Bialowas's disabilities or because of the limitations on her practice because of the conditions on her registration. As one example, the Nurse Educator noted that Ms Bialowas took 2 ½ hours to administer medications, a task which, in her view, should not have taken more than 45 minutes. The Nurse Educator noticed that Ms Bialowas had trouble opening bottles. She stated that Ms Bialowas, "seemed to really struggle with this". This problem was caused by the effects of the stroke on Ms Bialowas's right hand. Also the conditions imposed on her created difficulties in a palliative care ward as Ms Bialowas could not be involved in the processes of administering s 8 drugs which require the presence of and the interaction between 2 nurses in the administration of such drugs in a hospital setting. 18. The Nursing Unit Manager (NUM) of the Palliative Care Unit Ms Bialowas was moved to was clear that Ms Bialowas was a very caring and compassionate nurse, but also that she was unable to perform the duties required of an RN. Ms Bialowas was in that palliative care unit from 14 October 2013 until 29 January 2014. The NUM agreed to take her because she was short-handed. However, she was not advised about Ms Bialowas's disabilities nor was she advised of the conditions on her registration. Both these factors contributed to the difficulties Ms Bialowas had in doing the work required in this unit. One example was the impact her CVA had on her articulation which contributed to the difficulties she had in communicating with patients and their families in relation to the difficult and emotional issues that arise in palliative care units. Another was the NUM's view that, because of the conditions on her registration, Ms Bialowas could not, "hold the S 8 drug keys", limiting her role in giving morphine and similar drugs that had to be given very often in the unit. In the view of the NUM, given during her verbal evidence to us, Ms Bialowas should have been a supernumerary on the unit. 19. According to the evidence of the NUM, Ms Bialowas's final shift on her palliative care unit was on 29 January 2014 and, as already noted, a competency assessment was carried out on her in that unit on 5 February 2014. Nevertheless, a Clinical Nurse Educator was asked to conduct a competency assessment of Ms Bialowas in the unit and did so on 13 February 2014, more than a fortnight after Ms Bialowas's last shift on the ward but only 8 days after the earlier assessment. In her statement dated 29 July 2014, the Clinical Nurse Educator noted that Ms Bialowas was allocated a light load of 4 patients and that the competency assessment was conducted over a 3 hour period. The Clinical Nurse Educator noted that it took Ms Bialowas 1 hour and 20 minutes to carry out a medication round that should, in the view of the Clinical Nurse Educator, have taken less than half an hour. She reported in her statement that Ms Bialowas was very careful when administering medication and, "was closely following all the correct procedures". The Clinical Nurse Educator noted Ms Bialowas's lack of dexterity in having to cut pills. She also noted her focus on the administration of medications and her apparent inability to multi-task as well as her failure to sign off one of the injections she administered and her failure to handover her patients to the team leader or another registered nurse before going on her break. 20. The Nurse Educator who assessed Ms Bialowas on 5 February 2014 was asked during her oral evidence to us whether Ms Bialowas was nervous during her assessment. Her reply was; "Not really", and words to the effect that if so she didn't see it. On the other hand, and unsurprisingly, when Ms Bialowas was assessed again 8 days later, the Clinical Nurse Educator noted in her statement that, at the time she introduced herself to Ms Bialowas; "I could see that she was really nervous, she was shaking." Again, in her verbal evidence to us, she advised, like the NUM and the Nurse Educator, that she did not know that Ms Bialowas had physical disabilities and that her registration was subject to conditions. 21. There are other parts of the evidence, however, that in the circumstances of this inquiry, are more appropriately dealt with in our consideration of the three complaints against Ms Bialowas. Complaint one – unsatisfactory professional conduct contrary to s 139B(1)(a) and (l) of the National Law 1. For the subject–matter of complaint one to be proved, we have to be satisfied, on the balance of probabilities, as to what happened on 29 June 2011 at the clinic involving the 3 year old boy and whether the actual conduct of Ms Bialowas towards the boy demonstrated that the judgment she possessed or the care she exercised in the practice of nursing was significantly below the standard reasonably expected of a registered nurse of an equivalent level of training or experience to that of Ms Bialowas. We also had to consider whether Ms Bialowas's behaviour was improper or unethical in the practice of nursing. 2. So first we had to determine what actually happened. There were various descriptions applied to the conduct by persons who did not witness what happened. These included "child assault", "assaulting a vulnerable child", "hitting a child back" and "the boy was stunned by the hit". In this case there was evidence from only one of the persons present when the incident occurred, namely Ms Bialowas. 3. Ms Bialowas gave the most detailed description of her version of what happened in a recorded and transcribed interview. She said that she had begun work at 8.30am and had seen 5 mothers and their children by about 1.15pm, but had had no break or lunch. However, at that time a woman arrived with a baby and a 3 year old boy. The woman also had a support person with her and she came from a domestic violence refuge for women with mental health issues and their families, although Ms Bialowas was unaware of this at the time. Ms Bialowas decided to see the woman and her baby, and all 5 of them, the woman and her 2 children, the support person and Ms Bialowas went into a small interview room. Ms Bialowas began to conduct the interview at about 1.20pm. However, soon the 3 year old boy was playing by running around with a model car, throwing it in the air and catching it. At one stage early in the interview, the boy threw the car in the air so that it came close to Ms Bialowas's face. Neither the mother nor the support person took any action in relation to the boy. Very soon after, the boy either lunged at Ms Bialowas from behind but just within her line of vision or she suddenly felt a hard strike on her left shoulder and a sharp pain. She immediately turned to the left with her left arm extended and the fingers of her left hand came in contact with the boy's right forearm. He was wearing a thick long-sleeved jumper at the time. Ms Bialowas then said words to the effect of; "No don't you hurt me". The boy did not respond but walked away, but began throwing the car in the air again. The interview continued until its conclusion and the mother, her children and the support person departed at about 2.30pm. 4. Ms Bialowas said that she apologised immediately to the mother and on the Friday after the incident told a work colleague she trusted. The phone call about the matter from the refuge was received at the centre the next Monday. 5. This version of the incident was consistent with Ms Occelli's report, in her letter dated 17 April 2013, of what Ms Bialowas told and with the version of the incident she gave to us both in her written statement and during her verbal evidence. Ms Thomas, counsel for the HCCC asked Ms Bialowas a few questions about her version of the evidence, but did not seek to challenge Ms Bialowas's version. The incident was not examined in any detail by the delegates of the Council when they took evidence from Ms Bialowas at the s 150 proceedings. The version that was included in the notification to the Council was the Senior Nurse Manager's version of what the Co-ordinator of the refuge told him the support person who was present when the incident occurred told her. 6. The Senior Nurse Manager's version, which is hearsay upon hearsay, was the version Dr Samuels received and which alleged a much more serious version of the event than Ms Bialowas experienced occurring. In these circumstances, we are not surprised by her adamant or even vehement denial to him. Nor do we consider that her denial in these circumstances casts doubt on the credibility of the version she gave us and during the recorded and transcribed interview. 7. Noting these matters and the fact that the HCCC alleged only that the boy was hit on the arm, we accepted Ms Bialowas's version of the incident. 8. The next matter for us to decide was what did this conduct amount to? Before doing that however, we wish to make clear that in most cases in which a nurse hits a child in the course of their practice of nursing the incident would amount to some form of unsatisfactory professional conduct. We are also in no doubt that Ms Bialowas's conduct was, in this case, below the standard reasonably expected of a nurse of an equivalent level of training or experience. What we are not satisfied about is that it is "significantly" below that standard in order to be unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law. Freeman DCJ considered this matter when sitting as a Deputy Chairperson of the Medical Tribunal, now incorporated into NCAT. In the case In re a Medical Practitioner and the Medical Practice Act (unreported, Medical Tribunal, 3 September 2007) at paragraph 12, Judge Freeman noted that : As a general principle, the use of the term "significant" may in law be taken to mean not trivial, of importance, or substantial." We did not consider the incident "trivial", nor did we consider it, "of importance or substantial". The key factor for us, as a result of having the opportunity to consider the versions of the incident documented and having had the opportunity to see and hear Ms Bialowas in person, was that this incident had a strong element of instinctive reaction for personal protection against an unexpected touching or closeness. It is because of this element that we were not satisfied that Ms Bialowas's instinctive reaction in these circumstances made it "substantially" below the required standard. We do not consider that every making contact with a child in the instinctive way Ms Bialowas did amounts to unsatisfactory professional conduct as suggested by Ms Thomas in her submissions to us. 9. We do not consider there is an evidential basis for finding that Ms Bialowas's action was improper or unethical conduct relating to her practice of nursing. Consequently we find the subject-matter of complaint one and the complaint itself not proved. Complaint two - impairment 1. There are 2 limbs to the definition of impairment in s 5 as to what is an impairment for the purposes of the National Law. The first is the existence of the physical or mental impairment, disability, condition or disorder, which does not necessarily require precise identification by diagnosis. The second is that the impairment, disability, condition or disorder detrimentally affects or is likely to detrimentally affect the health practitioner's capacity to practise their profession. 2. In this case the first limb of that definition appears to have been admitted by Ms Bialowas in her statement dated 25 August 2014, and in any event is proved by the evidence already set out above in relation to particular a), namely the fact that she suffered a CVA in 2004 resulting in right hemiparesis affecting her gait and her right hand fine motor skills and that the CVA also caused selective cognitive impairments and executive dysfunction. In relation to particular b) that she suffered from a drug induced psychotic illness in August and September 2011 requiring hospital admission. In relation to particular c) that she suffered a manic episode in July 2012. However, particular d) presents more difficulties and will be dealt with in relation to both limbs of the definition. 3. It should also be noted that, in order to succeed in proving complaint two, the HCCC must prove that some or all of the impairments alleged to exist in relation to Ms Bialowas existed at the time of our hearing. 4. What is the current situation in relation to Ms Bialowas's identified physical and mental conditions? Ms Bialowas has consulted Clinical Psychologist Occelli over 30 times between 5 April 2011 and 25 August 2014. In her most recent report, dated 25 August 2014, Ms Occelli noted that she did not see Ms Bialowas between September 2011 and August 2012 when she resumed consultations. However she was of the opinion that Ms Bialowas's psychotic disorder had been in remission for over 2 years. 5. As already noted, in August – September 2013 Ms Bialowas's psychiatrist, Dr Jovanova, reported that her client had a diagnosis of schizoaffective disorder (in remission) and cannabis abuse (in remission). However, on 8 September 2014, Dr Jovanova wrote a report for these proceedings. In that report she noted that she had had 9 appointments with Ms Bialowas over the last 12 months and she had always presented as pleasant, cooperative and punctual. During those appointments Ms Bialowas presented with euthymic, reactive, appropriate affect, denied affective symptoms and had no psychotic symptoms. She noted that Ms Bialowas had not been on psychotropic medication since December 2012 and stated, based on that and other information she had received, that she was under the impression that Ms Bialowas did not have psychotic symptoms. 6. Dr Jovanova went on to state that she was of the opinion that, "Ms Bialowas's current presentation (August 2013 – July 2014) could best be understood under the diagnosis of brain damage caused by [her] CVA in 2004 and cannabis abuse (in remission)". She continued that over the last 12 months, Ms Bialowas had reported past mood and psychotic symptoms were in remission and that during her appointments with Ms Bialowas she found no evidence of those symptoms. Further Ms Bialowas's family, her GP and her psychologist had not reported to her (Dr Jovanova) any concerns that Ms Bialowas could be mentally unwell. She was also of the opinion that Ms Bialowas's past symptoms of mood disorder and substance induced psychotic symptoms – induced by cannabis or schizoaffective disorder had been in remission over the last 12 months. 7. Dr Jovanova noted also that from her first consultation with Ms Bialowas in August 2013 until her last appointment in July 2014, she had discussed with Ms Bialowas pharmacological options for the management of mood and psychotic symptoms. But that over the last 12 months Ms Bialowas had denied mood and psychotic symptoms so that she (Dr Jovanova) had not prescribed any medication for her. 8. It emerged during the hearing that there was something of a contest between Dr Samuels and Dr Jovanova as to which was the more likely of the two currently favoured diagnoses in relation to Ms Bialowas, namely that the prime cause of her past psychotic problems was either drug induced psychosis or schizoaffective disorder. Dr Samuels preferred the view that schizoaffective disorder was the better leading diagnosis over drug induced psychosis because he would have expected a quicker recovery than occurred in the past if the psychosis was drug (cannabis) induced. Dr Jovanova preferred the opposite view stating that those with brain damage, like Ms Bialowas, as a result of her CVA, often take longer to recover than those suffering drug induced psychosis without pre-existing brain damage. However, Dr Jovanova had no trouble accepting that schizoaffective disorder was an entirely appropriate differential or alternative diagnosis. 9. What we do note however is that this matter was run on the basis that it was the diagnoses of drug (cannabis) induced psychosis and schizoaffective disorder that were in contention for the lead diagnosis and that the psychosis, however caused, was a relapsing one. There was no evidence before us directed to the currency of the conditions of bipolar disorder, depression and anxiety referred to in particular 1d). We also note that Dr Samuels was unable to assist a more up to date diagnostic formulation. As he stated, in slightly different ways in his reports dated 5 May and 19 June 2013, he wanted the discharge summary from Ms Bialowas's admission in July 2012 in order to in a better position to formulate a clearer diagnostic formulation in regard to her and give a final diagnostic opinion and to make some more definitive recommendations as to her underlying psychotic issues. 10. We considered that we did not have to come to a conclusion on which was the lead diagnosis. And because we had no evidence before us about the currency of the conditions of bipolar disorder, depression and anxiety, we did not make a finding in relation to them. For us the evidence raised as a real question is whether Ms Bialowas's impairments currently met the second limb of the definition, given the views of Dr Jovanova and Clinical Psychologist Occelli that Ms Bialowas's psychotic symptoms were in remission and had been so for at least a year. 11. The debate then became one of the likelihood of relapse. As there was no evidence of current psychotic symptoms based on any of the diagnoses referred to by Dr Jovanova and because Dr Langeluddeke was of the view that Ms Bialowas's cognitive disabilities were mild but pervasive, there was no basis for finding that Ms Bialowas's symptoms detrimentally affected her capacity to practise nursing when the obligation to make reasonable adjustments is taken into account in relation to Ms Bialowas's physical impairments at least. So the only way to prove the second limb was to show that the risk of relapse could ground a finding of the likelihood of Ms Bialowas's impairments detrimentally affecting her capacity to practice nursing. 12. Dr Samuels addressed this matter in his verbal evidence to us. Dr Samuels has seen Ms Bialowas on two occasions, namely 30 November 2011 and 5 June 2013 and he noted in his evidence to us that he could not comment on Ms Bialowas's current state. This confirmed his comments in his 2 reports in 2013 referred to above. However, when Ms Thomas asked him about the risk of relapse, he listed considerations relevant to that matter in Ms Bialowas's case. These included her underlying brain damage, her history of substance abuse and her psychiatric diagnoses. He suggested that, the fact that she had been the subject of domestic violence in the recent past and had been involved in conflict in the workplace and had used marijuana, these matters could be triggers. He suggested that she may not be able to resist, "using substances". He also noted that she was not taking psychotropic medication. Relevant to this matter we note that Dr Langeluddeke, stated in her verbal evidence to us that she considered that because Ms Bialowas's brain injuries were now 10 years old that they were not likely to improve. 13. In her verbal evidence to us Dr Jovanova explained to us Ms Bialowas's reasons for stopping medication in 2012. This was because of their serious side effects and Ms Bialowas's desire to have another child. The thrust of Dr Jovanova's written and verbal evidence was that she accepted Ms Bialowas's reasons for not taking psychotropic medication in a context in which Ms Bialowas had no psychotic symptoms. She noted in relation to relapse risk that a person who had had a psychotic episode was at risk of relapse and that those with brain damage have a higher risk than those without brain damage of having another psychotic episode. 14. In her verbal evidence, Dr Jovanova told us when she saw Ms Bialowas on 17 March 2014, she presented as coping reasonably well. She had reasonable insight into her condition. She revised that view to limited insight when advised that Ms Bialowas had used cannabis on 1 occasion in February 2014, but not since. She noted that Ms Bialowas knows that cannabis use is bad for her health. At the end of her verbal evidence she noted that Ms Bialowas's risk of relapse was moderate to high. 15. Ms Thomas began her submissions to us in relation to impairment noting that there was overlap between the question of whether a person suffered from an impairment and whether they were competent to practise their health profession and continued by dealing with complaints two and three together. During her detailed analysis of the evidence set out in her written submissions to us, Ms Thomas submitted that we would be satisfied that Ms Bialowas suffers from physical and cognitive defects that detrimentally affect her capacity to practise nursing and thus suffers from an impairment within the meaning of s 5 of the National Law. At the end of her analysis she submitted that we would be satisfied that Ms Bialowas has a psychiatric impairment because she suffers from a psychiatric illness that is currently in remission and that there is a moderate to high risk that she will suffer a relapse of psychiatric symptoms in the future. Further that this impairment may have contributed to what was submitted to be her unacceptable workplace behaviour in the past and further was reasonably likely to affect her behaviour in the workplace in the future, particularly given what was submitted to be her lack of insight and non-adherence to treatment. 16. We had some difficulty in relation to the evidence about Ms Bialowas's physical impairment meeting the requirements of the definition of impairment in the National Law. First, in 2009 after her CVA, Ms Bialowas was assessed by a CNC in child and family health in relation to her competency to function in the role of a child and family health nurse. The CNC recommended that Ms Bialowas be considered for any child and family health position she applied for if she met the essential requirements and if due process for employment identified her as a suitable applicant. The evidence before us showed that, in the work situations Ms Bialowas was placed in, reasonable adjustments were not made in relation to her post-CVA physical limitations. Also, the competency assessments conducted in relation to her were conducted by assessors who were not advised about her disabilities and the conditions on her registration. Further the competency assessments were made in speciality areas of nursing Ms Bialowas had not practised in for a considerable time. The conditions imposed on her registration precluded her from practising in the area of nursing she had chosen to practise in and had been practising in for more than 12 years before the conditions were imposed. 17. We also had some difficulty with at least some of the material relied upon to provide examples of Dr Langeluddeke's assessment that Ms Bialowas had impaired cognitive function affecting social intuition and self-monitoring. We found that the incident on 29 June 2011involving a child was an instinctive reaction by Ms Bialowas. We had difficulty with second hand or more distant reports of events spread over a period of years and denied by Ms Bialowas, as a basis for demonstrating matters adverse to her. We note the Acting Nurse Manger's evidence that there have not been any complaints from patients about Ms Bialowas. Putting aside the incident of 29 June 2011, none of the factual matters raised against Ms Bialowas in relation to the effects of her CVA detrimentally affecting or being likely to detrimentally affect her capacity to practise nursing and insofar any of those matters occurred or occurred in the ways they were reported by those who did not witness or experience them, none of them directly involved patients or were matters seen or heard by patients. 18. We are also of the view that, in a case like this, in which a health professional has developed physical disabilities as a result of a CVA, the need for reasonable adjustments has to be taken into account in dealing with the actuality or likelihood of disabilities affecting the practitioner 's capacity to practise their profession. We note that Ms Bialowas was able to practise as a child and family nurse until she was precluded from doing so by the conditions imposed on her registration. In that area of nursing she did not have to administer medication, a matter that is now difficult for her because of the injury to her right hand. We note also that she had confined her practise of nursing to community nursing since the year 2000 where the practise of nursing is very different from that in public hospitals. 19. Also when dealing with the actuality or likelihood of disabilities affecting the practitioner's capacity to practise their profession, the test cannot be set at the level of the expectations of a high quality practitioner, but rather at the level of an adequate practitioner who may lack the abilities that are highly prized but who has the capacity to practise the profession at a lower but acceptable level. 20. With these considerations in mind, we were not satisfied that Ms Bialowas's disabilities revealed by Dr Langeluddeke through her psychological testing, while real, but nevertheless described by her as mild and pervasive, met the test of actually or likely to detrimentally affect her capacity to practise nursing. In this regard we note that Ms Bialowas completed a Graduate Certificate in Child and Family Health after her CVA. While Dr Langeluddeke was somewhat dismissive of this achievement when it was put to her, Ms Bialowas has demonstrated that she has the capacity to undertake and graduate in tertiary studies and build her nursing knowledge. 21. We also had difficulty with the submission that we should be satisfied that Ms Bialowas suffers from a psychiatric illness that is currently in remission and in relation to which there is a moderate to high risk that Ms Bialowas will suffer a relapse of psychiatric symptoms in the future. Further that this impairment may have contributed to what was submitted to be her unacceptable workplace behaviour in the past and was reasonably likely to affect her behaviour in the workplace in the future, particularly given what was submitted to be her lack of insight and non-adherence to treatment. Taking the last matters first, we have already noted that Ms Bialowas's treating psychiatrist, Dr Jovanova, accepted her not using psychotropic medications in the absence of symptoms. We consider the evidence demonstrates, at worst, limited insight on the part of Ms Bialowas rather than lack of insight as submitted. We have already noted our concerns about at least some of the evidence about workplace behaviour. However we have a greater concern about being asked to find that a person who has a diagnosis of drug induced psychosis but no episode of such a psychosis since July 2012 and a diagnosis of psychoaffective disorder but with no symptoms of such a disorder again since July 2012, has such an impairment in October 2014 and further that the risk of relapse renders that condition in that person likely to detrimentally affect their capacity to practise their health profession. Such an interpretation of the definition of impairment in the National Law would put at risk the careers of the many health professionals who have psychiatric conditions that they are able to keep under control by medication or other means. There are health practitioners who have depression, bipolar disorder and other mental health conditions who practise their profession and who monitor themselves and have informal safeguards and arrangements in place which allow them to practise their profession and avoid relapses or who take time off or other steps when they are becoming unwell and who return to work when the symptoms or the episode have passed or who continue at work with the condition being treated more actively or aggressively. 22. In this case the evidence allows for Ms Thomas's submission that there is a moderate to high risk that Ms Bialowas will have a relapse, but there is no evidence to show the likelihood of that relapse detrimentally affecting Ms Bialowas's capacity to practise nursing. In the particulars to complaint two, the HCCC alleged a drug induced psychotic episode in 2011, a manic episode in 2012. Ms Bialowas self-reported cannabis use in 2012 and February 2014. As already noted, the evidence about the 2014 episode is scanty and it is not alleged that she had a psychotic episode during that time. Her use of cannabis in February 2014, which was on 1 occasion only, did not lead to a new psychosis. She like many other health practitioners, may well be able to take or will be encouraged or assisted to take appropriate steps to deal with their condition and return to work when well again. Her past psychotic episodes have not affected her capacity to practise nursing. In these circumstances, we cannot be satisfied that Ms Bialowas currently has a psychiatric impairment as defined in s 5 of the National Law. As a consequence, we were not satisfied that complaint two was proved. Complaint three – Not competent to practise nursing 1. Complaint three alleges that Ms Bialowas is not competent to practise nursing under s 139 of the National Law in that she does not have sufficient physical and/or mental capacity to practise nursing. The section puts the matter around the other way and states that a person is competent to practise [nursing] only if they have sufficient physical capacity, mental capacity, knowledge and skill to practise [nursing]. The particulars of this complaint are the same as those of complaint two which means that the same evidence of physical and mental impairments is relied upon to prove a complaint of impairment is relied upon to prove that Ms Bialowas is not competent to practise nursing. 2. The circumstances of this case are different from other cases in that there is evidence before us that on the 5th and 13th of February this year competency assessments were conducted in relation to Ms Bialowas. The Nurse Educator who assessed Ms Bialowas on 5 February 2014 noted that the competencies she assessed Ms Bialowas on were, "all core competencies applicable to any RN in a public hospital setting". The Clinical Nurse Educator who assessed her on 13 February 2014 stated that the tasks Ms Bialowas was doing were, "just routine tasks for an RN". 3. As has already been noted, the conditions on Ms Bialowas's registration seriously limit the locations in which she can practise nursing. The evidence of her 2 competency assessments in the palliative care unit and the evidence of the NUM of the unit to the effect that while Ms Bialowas is a caring and compassionate nurse, she cannot do the work of an RN, requires us to find that in the circumstances she is currently in, Ms Bialowas is not competent to practise nursing. We find that her lack of competence to practise nursing is current because she has not been practising nursing since she was stood down from work in February 2014 and has either not tried or not been able to take steps to improve her nursing skills. However, Ms Bialowas did claim in her written statement dated 25 August 2014 that she had been diligent in maintaining her continuing professional development. Consequently we were satisfied that complaint three was proved. Protective orders 1. We were satisfied that only complaint three was proved. Ms Thomas submitted to us that having found Ms Bialowas not competent to practise nursing, while s 149C(1) of the National Law provided that we may suspend or cancel her registration, we must suspend or cancel her registration for the period during which we consider she is likely to remain incompetent (italics added). She had 2 reasons for that submission. First that the scheme of the National Law required us, if satisfied that Ms Bialowas was not competent in terms of s 139(a), to suspend or cancel her registration for that period. Second that if we did not do so then we, as an administrative decision-making body, would be exercising our power in a manner that was not rational [in the administrative law sense]. In support of her submission she referred us to Meagher JA's statement in Grant v HCCC [2003] NSWCA 73 at [16], in relation to the then Medical Tribunal which is now part of NCAT, that: If, for example, the Tribunal comes to a conclusion of fact justified by the evidence that the doctor will not be fit to commence practice for a given space of time it has the power and one would have thought the duty to make an order that he or she does not practice until that space of time has elapsed. That is what the Tribunal did in the present case. (Italics added) 1. The Grant Case was in fact an unsuccessful appeal against, a decision of the Medical Tribunal that the doctor in question, whose name had already been removed from the register, was not a fit and proper person to be restored to the register. The Tribunal could see no prospect that the doctor would be fit to practise in the foreseeable future. Beazley and Santow JJA concurred. 2. The facts and circumstances of the Grant Case were very different from those facing us and, in a formal sense the case, is distinguishable from our case. 3. In her written and verbal submissions to us on 13 February 2015, Ms Richardson appearing with Ms Thomas supported Ms Thomas's submission; but also addressed the issue of us imposing conditions, first from a general point of view. She referred us to Basten JA's statement in HCCC v Wingate (2007) 70 NSWLR 323 at [62]: "Conditions may be imposed in varying circumstances and for various purposes. The circumstances and purposes will always be important, in part because of the need for the Tribunal to be satisfied that the condition will be effective". Ms Richardson went on to state that the conditions must achieve the purpose of the registration scheme, which is to protect the public by ensuring that only competent practitioners are registered and cited s 3 (2)(a) of the National Law in support of her submission. We note that s 3 of the National Law sets out the objectives and guiding principles of the National Law and that s 3(2)(a) states one of those objectives in full as: "to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered". We note also that the guiding principle in s 3(3)(c) states: to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered". 4. While in most cases a finding of' "not competent to practise" would be followed by an order suspending or cancelling the health practitioner's registration, as it would be required in order to meet the tribunal's obligation, under s 3A of the National Law, to give paramount consideration to the health and safety of the public. Nevertheless, we consider that not every fact situation in which a not competent to practise finding was made would require a protective order suspending of cancelling the practitioner's registration. Neither Basten JA's statement set out above nor the provisions of ss 3 and 3A of the National Law preclude the possibility of NCAT imposing a condition on a practitioner's registration or making an order under s 149A(1), albeit in unusual, but not unforeseeable, circumstances. 5. The National Law provides for this by giving NCAT a discretion to make another kind of order by using the word "may" and not the word "must" in s 149C(1). While not competent to practise is referred to in s149C(1)(a), the existence of this discretion which applies to findings of professional misconduct referred to in s149C(1)(b) is well established despite the fact that what turns unsatisfactory professional conduct into professional misconduct is a finding by NCAT that the unsatisfactory professional conduct proved is conduct, "of a sufficiently serious nature to justify suspension or cancellation of the[health] practitioner's registration" (s 139E). 6. It was for these reasons, which we have elaborated further in the light of Ms Richardson's submissions that we considered that we had available in this case, after our finding of not competent to practise, a discretion to consider the full array of relevant protective orders found in ss 149A and 149C of the National Law; in particular to impose conditions on Ms Bialowas's registration, as provided for in s 149A(1) or to make orders under s 149A(1). 7. In this case we considered the possibility of imposing such conditions or making such orders was a live issue because, while we found Ms Bialowas not competent to practise based on her competency assessments in 2014, which were in areas of nursing practise she had not worked in for more than 13 years, we knew that she had been assessed as competent to be a child and family nurse in August 2008, 4 years after her CVA. This led us to the view that, subject to further submission from the parties, and further evidence if the parties wish to present it, it may be appropriate, consistent with our obligations under s 3A of the National Law, to make protective orders that do not destroy her nursing career by the suspension or cancellation of her registration. 8. As a result, the Principal Member called a further directions hearing to give effect to Ms Thomas's request for arrangements to be made for her to make submissions on behalf of the HCCC (and Ms Alexander on behalf of Ms Bialowas) in relation to appropriate conditions and/or orders under s 149A of the National Law and to deal with other related matters arising out of our then draft findings. 9. At the directions hearing, after the matter was raised, appropriately, by Ms Thomas, Ms Alexander advised that the matters upon which we had based our findings that Ms Bialowas was currently not competent to practise nursing had been fully canvassed at the hearing and that her client did not wish for any further clarification or any further time to make submissions on the issue of the finding. Ms Thomas referred the Principal Member to s 176C(1)(a) of the National Law and advised that the HCCC would contact the relevant part of NSW Health about this hearing and the possible effect on that part of the Department if we conditions on Ms Bialowas's registration different from those currently on her registration. At the further directions hearing the time, date and place for further hearing of this matter to deal with submissions on protective orders and costs were settled and leave was given for both parties to provide and file further evidence should they wish to do so. 10. As is apparent, the further hearing took place on 13 February 2015. Ms Richardson for the HCCC and Ms Alexander for Ms Bialowas addressed us on the evidence and the law they considered relevant to our making protective orders appropriate to this case. 11. Before we set out our protective orders and our relevant findings and our reasons, we need to go back to some of the circumstances which worried us and led us to the view that there was in this case some unfairness, unintended by many who played a role in it, towards Ms Bialowas that had very serious consequences for her. 12. Before the incident on 29 June 2011, Ms Bialowas had been working in the field of child and family health nursing. The incident was reported and investigated and the complaint was closed in August 2012. However, the matter was revived by the original complainer in early 2013. This led to an inquiry under s 150 of the National Law in which a decision based on the incident on 29 June 2011, which we found not to amount to unsatisfactory professional conduct, to impose conditions on Ms Bialowas's registration which effectively precluded her from practising nursing in the area of child and family health, an area she had chosen to work in and had been working in for more than a decade and had obtained post-graduate qualifications in, after she had had her CVA. Work was found for her in hospital wards, but while she was seen to be, by the NUM of the palliative care unit to which she was moved, a very caring and compassionate nurse, she was also seen to be unable to perform the duties required of a registered nurse. The NUM agreed to take her on to the staff of the palliative care ward because she was short-handed; but the NUM was not advised about Ms Bialowas's disabilities nor was she advised of the conditions on her registration. What followed were the 2 competency assessments carried out on Ms Bialowas in early 2014, which led us to find that she was not competent to practise nursing. There was more than 2 years between the incident and the imposition of conditions on Ms Bialowas's registration and another 14 months before the Complaint came on for hearing before us. 13. We appreciated that these matters, while they raised our sympathies, were not relevant to the question of what protective orders we should make in the circumstances of this case. However, we did have the benefit of the written and oral submissions of Ms Richardson and Ms Alexander's verbal submissions. These submissions canvassed the evidence relevant to the question of whether it was appropriate in this case to make orders other than an order cancelling Ms Bialowas's registration as a registered nurse. 14. As pointed out by Ms Richardson, the Clinical Nurse Educator, who assessed Ms Bialowas on 13 February 2014, noted that she did not do an initial comprehensive patient assessment, she was not competent in relation to medications, time management and documentation of observations and documentation in clinical notes. While we accepted Ms Alexander's submission that these competencies have different content in the different areas of nursing, and that there was no evidence that Ms Bialowas was incompetent in the area of child and family health. However, we were unable to accept her submission that appropriate conditions could be imposed on Ms Bialowas's registration, because we were satisfied that the competency assessment carried out on Ms Bialowas on 13 February 2014 at least was so basic that we considered that an order cancelling Ms Bialowas's registration was required. 15. While Ms Bialowas claimed in her written statement dated 25 August 2014 that she had been diligent in maintaining her continuing professional development, we note Ms Richardson's submission that Ms Bialowas presented no evidence to indicate that she has taken any action in relation to professional competency since we provided our draft findings to the parties 3 months ago. 16. While Ms Richardson submitted that 12 months was an appropriate non-review period, under s 149C(7) of the National Law, we gave her the opportunity to comment on whether a shorter period would be sufficient. We consider that Ms Bialowas would need at least 6 months to deal with her need to demonstrate that she is competent to practise nursing and may need a longer period. However, we consider that there was no need to preclude her from making an application for a longer time as she will need to demonstrate to the appropriate review body that, in the exercise of its powers under s 163C of the National Law that the cancellation order we have made is no longer appropriate and that a reinstatement order should be made in its place. 17. As to the appropriate review body, Ms Alexander submitted that the Council would be the appropriate body to carry out the review. The unusual circumstances of this case provided the grounds for this submission. However, s149E of the National Law, which was inserted by the Health Practitioner Regulation Legislation Amendment Act 2014 (NSW), provides that despite any other provision of the National Law, a person whose registration as a health practitioner has been cancelled by NCAT under the National Law cannot make an application for reregistration unless NCAT has made a reinstatement order under s 163B with respect to that person. This provision has removed the discretion of the Occupation Division of NCAT to nominate the Council as the appropriate review body to review an order to cancel a health practitioner's registration (or disqualify a former practitioner whose registration had ceased for some reason from seeking reregistration until a certain period of time had elapsed). Section 149E also removes the List Manager's discretion, on application to nominate either the Council or the National Board as the appropriate review body where NCAT has either cancelled a practitioner's registration or made a disqualification order in relation to them. 18. Since we have cancelled Ms Bialowas's registration, we have no discretion to suggest any body other than NCAT to deal with any application by Ms Bialowas for a review of our cancellation order. We note however, that this limitation on the discretion of NCAT and the List Manager applies only in relation to cancellation and disqualification orders and not in relation to other orders that NCAT may wish to make as a result of hearing and determining a Complaint brought to it under the provisions of the National Law. Costs 1. Ms Richardson submitted that in light of the HCCC's ultimate success in its prosecution of Ms Bialowas, but taking into account our draft reasons, she submitted that Ms Bialowas should pay 50% of the HCCC's costs. On the other hand, Ms Alexander submitted that this matter could have been referred to the Performance Review Panel for nurses and midwives and that consequently the parties should bear their own costs. 2. As the course of action followed by the Council in this matter was one that was clearly open to it and as the s 150 inquiry in relation to Ms Bialowas covered health matters as well as other matters, we could not accept Ms Alexander's submission. We considered the HCCC's submission appropriate in the circumstances of this case and ordered that Ms Bialowas pay 50% of the HCCC's costs of these proceedings, as agreed or assessed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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