Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brown v Health Care Complaints Commission [2015] NSWCATOD 40 Hearing dates: 17, 18 November 2014 and16 April 2015 Decision date: 28 April 2015 Jurisdiction: Occupational Division Before: J Millbank, Senior Member I McQualter, Professional Member K Sherwood, Professional Member P Hooker, Lay Member Decision: 1.Pursuant to s163B(1)(c) of the Health Practitioner Regulation National Law, Kelda Brown shall be re-instated to the register of nurses maintained by Australian Health Practitioner Regulation Agency in conjunction with the Nursing and Midwifery Board of Australia. 2. Pursuant to s 163B(4), conditions are imposed on Kelda Brown's registration (as set out in the Orders of the Tribunal). 3. A non-publication order under clause 7 of Schedule 5D to the National Law prohibiting the publication of the name of the patient. 4. No order as to costs. Catchwords: Reinstatement; Costs. Legislation Cited: Health Practitioner Regulation National Law (NSW) 2009 ('The National Law') s 163A; s 163B; Sch 5D cl 7; Sch 5D cl 13 Cases Cited: HCCC v Brown [2013] NSWNMT 8 Re Lenehan (1948) HCA 45 Dawson v Law Society of NSW [1989] NSWCA 58 Zaidi v HCCC [1998] NSWSC 335 Bahramy v Medical Council of NSW [2014] NSWCATOD 116 Scully v HCCC [2013] NSWNMT 7 Shah v HCCC [2014] NSWCATOD 94 Briginshaw v Briginshaw [1938] HCA 34 In Re Jason Martin [2010] NSWMT 13 Donnelly v HCCC [2014] NSWCATOD 155 Category: Principal judgment Parties: Kelda Brown (Applicant) Health Care Complaints Commission (Respondent) Representation: Solicitors: NSW Nurses and Midwives Association (Applicant) B Butt, Health Care Complaints commission (Respondent) File Number(s): 1420231 Publication restriction: A non-publication order under clause 7 of Schedule 5D to the National Law prohibiting the publication of the name of the patient. Judgment Introduction 1. This was an application by Ms Brown under s 163A of the Health Practitioner Regulation National Law for reinstatement to the register of Nurses with the Australian Health Practitioner Agency. 2. Ms Brown had her registration cancelled by reason of unsatisfactory professional conduct and professional misconduct pursuant to s 149C(1)(a) of the National law including an order made that she not apply for reinstatement for a period of 12 months: HCCC v Brown [2013] NSWNMT 8 (20 June 2013). 3. The application for reinstatement was heard on 17 and 18 November 2014 and the Tribunal's decision was reserved. That Tribunal was aborted by reason of the appointment of the principal member as a judge of the Federal Circuit Court of Australia. 4. On 25 February 2015 ADCJ Boland made orders providing that the application under s 163A should be heard by a freshly constituted Tribunal on the papers. The transcripts of the hearing from 17 and 18 November 2014, CDs of the hearing and documents relied on by the parties together with exhibits tendered before the previous Tribunal formed the evidence for the new hearing. Her Honour also ordered that at the written request of either party if further evidence was sought to be adduced or on the Tribunal's own motion the matter could be listed for a further oral hearing at a date and time to be notified by the Registrar. No such request was made. The Tribunal, consisting of a new senior member and the original Nurse and Lay members convened on 16 April 2015 to make a decision on the papers. The application and relevant law 1. Ms Brown applies for reinstatement in order to be allowed to return to practice as a registered nurse. 2. The task for this Tribunal under s 163C of the National Law is to determine whether the order for cancellation remains appropriate at the present time, not to review the original decision or any findings made in connection with the decision. 3. The general principles applicable to reinstatement matters are well established from appellate level decisions concerning professional misconduct arising in various professional contexts: Re Lenehan (1948) HCA 45; Dawson v Law Society of NSW [1989] NSWCA 58; Zaidi v HCCC [1998] NSWSC 335. 4. The guiding principle and objective of the National Law in s 3A is that 'the protection of the health and safety of the public must be the paramount consideration'. 5. The application of reinstatement principles under the National Law has been clearly laid out in recent tribunal decisions such as Bahramy v Medical Council of NSW [2014] NSWCATOD 116; Scully v HCCC [2013] NSWNMT 7 and Shah v HCCC NSWCATOD 94. The approach to reinstatement is succinctly summarised in Shah at [34] as follows: * the applicant bears the onus of proving that he is a fit and proper person to be engaged in the profession of nursing as an endorsed enrolled nurse (see Scully [41] and the authorities there referred to); * the standard of proof to be applied by the Tribunal is the civil standard of proof, the balance of probabilities, tempered by the requirements of Briginshaw v Briginshaw (1938) 60 CLR 336); (see Scully [41] and the authorities there referred to; see too In Re Jason Martin [2010] NSWMT 13 at [41]) * the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction is exercised is for the protection of the public (see Scully [47] and the authority there referred to); * the power to reinstate should "be exercised with great caution and only upon solid and substantial grounds" (see Scully [48] and the authority there referred to); * there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance (see Scully [49] and the authority there referred to); * in making an assessment of the applicant's worthiness and reliability for the future the Tribunal may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register. At [50] the Tribunal [in Scully] referred to In Re Jason Martin [2010] NSWMT 13 where the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner would behave in the future and remarked that "the decision in the particular case is to a greater or lesser extent dependant upon the Tribunal's assessment of the applicant". The issues 1. Ms Brown bears the onus of establishing on the balance of probabilities and to the reasonable satisfaction of the Tribunal that the previous order no longer remains appropriate. 2. The previous order was made as a result of Ms Brown engaging in an improper relationship, including a sexual relationship, with an inmate of a correctional centre where she was employed as a Nurse Unit Manager. The relationship commenced while the young man was her patient, and continued for a period shortly after his release on parole. Patient A was in a particularly vulnerable position as an incarcerated 19 year old Aboriginal man with a history of self-harm and a serious mental illness. The particulars of the complaints appear in the first Tribunal's reasons at [13]-[15] and were conceded by Ms Brown in their entirety shortly before the original hearing. The complaints were held to be established. 3. Ms Brown asserted the relationship occurred at a time in her life when she was vulnerable by reason of her brother's recent suicide, death of a friend in a motor vehicle accident, marital problems, and unhappiness in her employment. Her position was that she was not at risk of re-offending. 4. The original Tribunal accepted the nurse's candour and the mitigating factors that she submitted, but concluded that the very serious nature of the misconduct and her lack of insight into her conduct or taking of responsibility for remedial action weighed against a suspension order and required cancellation. The Tribunal stated: The nurse has conceded she knowingly breached fundamental rules applicable to Justice Health employees and the relevant codes of conduct. She deliberately sought to conceal her identity from her employer by giving Patient A a false name to use to contact her, and improperly accessed Justice Health records. Further, when on her own evidence, Patient A was drunk on his release from BCC, she went to a hotel with him and engaged in sexual intercourse. Each of these matters reveal serious, deliberate and knowing conduct by this highly educated, experienced nurse. The Tribunal finds the conduct, notwithstanding the mitigating factors we have recorded above, constitutes professional misconduct of a most serious nature. … First, whilst the nurse expressed remorse before us in respect of her conduct, we found that her oral evidence disclosed her remorse was directed principally to the devastation the revelation of her conduct wrought on her, and her family with the temporary breakdown of her marriage, and the loss of her job rather than any deeply considered remorse for the effect her conduct had on Patient A, his health and well-being. The Tribunal found a lack of any real insight by the nurse into the affect of her conduct on Patient A. Second, while the nurse had engaged in some counselling it was principally directed to issues relating to her marriage, rather than addressing her emotional vulnerabilities. The nurse's prior history of drug dependence, and her alcohol consumption at the time of her admission to St John of God Hospital, revealed her inability to cope with stress. This reliance raises a cause for concern that the nurse may relapse into inappropriate conduct unless her emotional vulnerability is properly addressed. This comment is not to be construed as critical of the nurse, but rather is directed to an element of risk to be balanced by the Tribunal in its task of protecting the public. Third, the nurse's response to why use of illicit drugs by a nurse was improper was, in our view, less than satisfactory. Whilst she was able to quickly identify the criminality of such behaviour, her generalised response about "breach of professional responsibility" in re-examination by Ms Alexander did not convince the Tribunal that she fully appreciated the potential seriousness of a drug affected professional caring for a patient. Fourth, the Tribunal was not satisfied that the nurse had taken any independent steps to address her breaches of the codes of conduct by sourcing or endeavouring to source an appropriate ethics course. Rather, her use of the personal pronoun "we've" been looking for a course, indicated the impetus for seeking the course was not her independent action, but rather that of the Association.[95]-[100] … Without in any way wishing to constrain another Tribunal hearing a review, this Tribunal is of the view that a period of twelve months will enable the nurse to complete an ethics course, obtain appropriate assistance for her own emotional problems, as distinct from problems with her marital relationship, and to reflect on these reasons. This Tribunal does not, by its findings, "rule out" forever a return of this obviously talented nurse, with well recognised emergency room skills, to practice in the future if the matters we have identified are addressed.[109] 1. The HCCC took a neutral position in responding to the application and neither supported nor opposed reinstatement. The HCCC drew on Scully in its written submissions to pose the following as matters that the Applicant had to address to the satisfaction of the Tribunal: * Does the Applicant demonstrate genuine and sincere remorse for her actions in respect of her relationship with Patient A; * Does the Applicant understand the basis on which the findings of professional misconduct and unsatisfactory professional conduct were founded; * What has the Applicant done to demonstrate she has learnt from the findings of the earlier Tribunal; * Is the Applicant likely to breach any ethical requirements found in the relevant codes of conduct in the future, or does she now fully appreciate the purpose and relevance of the ethical requirements in the relevant codes of conduct; * Does the Applicant acknowledge and appreciate the harm she has, or may have, caused to Patient A, his family, her nursing colleagues and the general public; * Having regard to the serious findings of the earlier Tribunal should any reinstatement order be subject to conditions; and * In the event the Tribunal determines conditions should be imposed, what conditions would be appropriate. The evidence 1. The Applicant relied upon a bundle of documents comprising her statement of 27 August 2014, her CV, a record of her continuing nursing education, a statement from the Australian Catholic University confirming her completion of a Healthcare Ethics course, three personal and professional references and a medical report of Dr Farzaan Mehta (Exhibit AE, 1-10). 2. The HCCC submitted a volume comprising the original decision (Exhibit RE1) and transcript of the hearing which resulted in cancellation of the registration (Exhibit RE2) as well as the material tendered by both complainant and respondent nurse in that matter (Exhibit RE3, Tab 1-30 inclusive). All of this evidence was admitted without objection. 3. In her written statement of 27 August 2014 the applicant says: 1. She now resides in Mudgee. 2. She is currently employed as an Administration Manager for a wine company. She has been working in this position since April 2014. 3. Over the past year she has been able to reflect on a number of things, in particular the potential or actual harm that her actions could have caused Patient A. 4. She acknowledged that, at the time of her misconduct, "deep down" she knew her behaviour with Patient A was wrong. 5. She acknowledged breaches of the Code of Conduct for nursing. 6. She has completed an online Ethics Course through the Australian Catholic University. She read publications in relation to ethics during completion of this course. 7. She has sought the assistance of a psychiatrist. The main focus of the consultations was with her grief and guilt associated with her brother's death, examining reasons for her behaviour in 2010 and her feelings for Patient A, and coping mechanisms to deal with stress. 8. She understands that nursing is a profession, and that she needs to maintain boundaries and be mindful of why those boundaries are in place. 9. She still has access to a psychologist in Mudgee and her sessions with this psychologist have assisted her in dealing with stress. She practices yoga and maintains a fitness program to assist her in managing stress. 10. Her 20 hours of continuing professional development points are currently up-to-date. 11. She is aware of the Code of Conduct for nursing which states "Staff must not be under the influence of alcohol or drugs when commencing work or while at work". 12. She has not used any illicit drugs since October 2010. She has also cut down on her alcohol consumption. 13. She accepts the former Tribunal's findings; her actions were inexcusable and she accepts responsibility for not considering the balance of power that she had and abused. 14. She has total and genuine remorse for her actions. She believes that she can show that she is emotionally stable and supported by a strong marriage and good local support network, long-term friends and family, psychiatric and psychological care, and alternative stress mechanisms. Her resilience has been strengthened by the ethics course and reading the NSW Health Code of Conduct and the Nurses and Midwifery Board of Australia Code of Ethics. 1. The Applicant gave oral evidence and was cross examined. 2. The Applicant stated in her evidence that she had not ingested any illicit drugs since October 2010. Ms Brown stated that she would never work as a nurse whilst under the influence of alcohol or drugs. 3. The Applicant stated that she had mentioned to Dr Mehta returning to nursing work in a part-time capacity but believed that she would have no problem performing full-time work within nursing. She believed that she would have adequate support working as a nurse in an emergency department, both clinically and emotionally. She would have access to counselling services. She stated that she did not believe that she required supervision in the nursing workplace. She confirmed that she is not permitted to return to nursing work with Justice Health by reason of her past misconduct. 4. Ms Brown stated that the working hours of a part-time nurse in Mudgee are five shifts each fortnight with each shift being eight hours. She stated that if she did want to return to nursing, that she would do part-time nursing work at first. She would not want to return to a senior nursing role, at least initially. 5. Ms Brown noted that a newspaper report of her misconduct was published. Despite this considerable stress she did not relapse into any misuse of alcohol or drugs. 6. The Applicant indicated her willingness to comply with conditions such as mentoring if she were to be reinstated. 7. Dr Mehta stated in her written report that she undertook five treatment sessions with Ms Brown from October 2013 to May 2014. After the initial intake meeting in October 2013 she had planned to review Ms Brown 1-2 weeks later to complete the assessment, however Ms Brown did not return until February 2014. Three further sessions took place in February, March and May 2014. Dr Mehta did not diagnose any major mood disturbance or psychosis. She found some signs in keeping with a subclinical generalised anxiety and discussed some anxiety management strategies with Ms Brown. She monitored Ms Brown's mental state and provided some supportive psychotherapy. She noted Ms Brown's genuine and sincere remorse for her misconduct. She believed that Ms Brown understands the reasons for the decision of the former Tribunal. She noted that Ms Brown has reflected on how she can prevent repeating her past misconduct. She explored Ms Brown's state at the time she entered the relationship with the patient and noted that Ms Brown had spent time reflecting about the trigger factors, including her brother's death. She stated her belief that the Tribunal could consider allowing Ms Brown to return to work with adequate support and supervision and under specific conditions. 8. Dr Mehta appeared by telephone and addressed questions relating to her report. She considered that a return to work for Ms Brown in a part time capacity, at least initially, might be appropriate, to see if Ms Brown coped with stress in the workplace. She noted the previous nursing job of Ms Brown in the prison system was very stressful for her. She noted that Ms Brown was comfortable working in the emergency departments of hospitals. Dr Mehta noted that monthly follow ups had been planned but no further appointments were made by Ms Brown. Dr Mehta did not follow up as she had no concerns about Ms Brown's mental health. 9. The HCCC submitted that little weight should be accorded to Dr Mehta's evidence because it was based upon only five sessions over videolink conducted over a seven month period. The HCCC noted that the report was not a medico-legal report or a detailed psychiatric assessment. Rather it was, in Dr Mehta's words, 'more in the capacity of I guess supporting her'. 10. The three written references provided by the Applicant all make it clear that they are aware of the findings of the previous Tribunal, that they believe Ms Brown to be an excellent nurse, genuinely remorseful, and to have adequate support mechanisms in place. None of the referees were required to give oral evidence. Submissions 1. The Applicant's representative submitted that the Applicant's statement and oral evidence was truthful and should be sufficient to satisfy the Tribunal that she was remorseful, understood the basis of the findings of misconduct, had undertaking professional development in ethics, was unlikely to ever commit such an ethical breach again and had acknowledged the harm she had caused. The Applicant's representative submitted that reinstatement should occur and should not be subject to conditions, although if such conditions were contemplated submitted that they be limited to a period of mentoring subject to the review of the Nursing and Midwifery Council. 2. The HCCC submitted that the Applicant had been frank and candid in her evidence to the Tribunal and did not consider that supervision would be necessary if Ms Brown were reinstated. The HCCC proposed conditions on her registration comprising (1) a period of mentoring with a mentioning plan and (2) the obligation to provide a copy of the original Tribunal decision to any employer prior to commencement of work for them. Reasons for decision 1. Having conducted the inquiry under section 163B of the National Law, in relation to Ms Brown's application for reinstatement as a nurse, the Tribunal is comfortably satisfied that Ms Brown has established that she is a fit and proper person to be engaged in the profession of nursing. The order of the former Tribunal cancelling Ms Brown's registration as a nurse is no longer appropriate. 2. The evidence presented to the Tribunal indicates that the matters of concern to the former Tribunal have been addressed by Ms Brown. Conditional reinstatement, comprising a period of mentoring over 12 months from the time that Ms Brown recommences nursing work, will assist Ms Brown with any difficulties she might encounter on her return to nursing, particularly relating to patient-nurse issues and relationships, any anxiety and stress related issues arising during her work as a nurse, and the impact of personal challenges (for example health or relationships) on her nursing practice and decision-making. This mentoring plan should provide appropriate protection to the public. The precise terms are set out in the Orders below. Costs 1. The statutory authority for NCAT to make costs orders in health professions cases is found in Sch 5D, cl 13 of the National Law. That clause gives NCAT a discretion to order any party or person entitled to appear in any inquiry or appeal to pay costs to another person. 2. The HCCC submitted that it should be entitled to its costs against the Applicant whether or not she was successful in her application on the basis that it had carried out its neutral role as contradictor properly and in the public interest. 3. In Donnelly v HCCC [2014] NSWCATOD 155 the Tribunal noted that the compensatory principle 'is not necessarily apposite to reinstatement cases' at [56]-[58]: In those cases it has been the prior criminal actions, professional misconduct, professional incompetence or other actions rendering them not a suitable person to be registered to practise a particular health profession that has caused the need for the application for a reinstatement order. It is appropriate that at the inquiry triggered by the application for a reinstatement order that there be a contradictor to test the applicant's evidence, bring evidence itself in cases where that is appropriate or is effectively required by s 163C(3) of the National Law and to assist NCAT with submissions about relevant matters. This provides procedural fairness to the applicant first by ensuring that he or she knows what matters they have to deal with beyond those that they wish to put in support of their application. It also avoids NCAT having to pursue relevant matters unwelcome to the applicant directly with the applicant leading to possible apprehensions of bias on the part of the applicant and ensures transparency during the inquiry process. These considerations, and possibly others, give the basis for not awarding costs to an applicant and against the contradictor where the applicant succeeds in obtaining a reinstatement order from NCAT. On the other hand it does not necessarily follow that in addition to bearing his or her own costs an applicant should also pay the costs of the contradictor as another expense to be incurred in the process of seeking to return to a health profession from which they have been ejected by cancellation of their registration. … 1. An extensive review of the case law in Donnelly led to the conclusion that the applicable costs principles are flexible and that 'the unfettered nature of the discretion is perhaps the primary principle' (at [65]). In that matter, involving a successful application for reinstatement, the Tribunal declined to make a costs order on the basis that: In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour. We also note that Dr Donnelly had no choice but to make the application to NCAT that he did make if he wished to obtain reregistration as a psychologist. Similarly such an application generates a role as contradictor for the HCCC. To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case. [66] 1. Although we note that every reinstatement case occurs as a consequence of the earlier proven, and serious, misconduct of the practitioner, which may in some circumstances tip the balance in favour of costs to the contradictor, we concur with the reasoning in Donnelly to make no order as to costs in this instance. Orders 1. Pursuant to s163B(1)(c) of the Health Practitioner Regulation National Law, Kelda Brown shall be re-instated to the register of nurses maintained by Australian Health Practitioner Regulation Agency in conjunction with the Nursing and Midwifery Board of Australia. 2. Pursuant to s 163B(4), conditions are imposed on Kelda Brown's registration as follows: * The registrant, Ms Kelda Brown, must engage in a mentoring relationship for a period of at least 12 months, from the date that she recommences work as a registered nurse, with a registered nurse (Division 1) who does not have conditions on his/her practice. The registered nurse mentor must be approved by the Nursing and Midwifery Council of NSW. * The registrant must 1. provide the Nursing and Midwifery Council of NSW with the name, contact details and resume of the registered nurse who has agreed to act as a mentor; and as specified in the conditions: 2. Authorise the mentor: 1. To notify the Council of any breach of the conditions including repeated failure to attend mentoring meetings; and 2. To exchange information with the Council in relation to the registrant's compliance with the conditions. 1. Provide to the Council a copy of the conditions signed by the registrant and by the mentor indicating awareness of the conditions and authorisation. * The registrant must submit a mentoring plan developed in consultation with the mentor within 8 weeks of the mentor being approved by the Nursing and Midwifery Council of NSW. The plan must detail: 1. Specific objectives/outcomes of the mentoring relationship. The objectives/outcomes must relate to, but are not limited to, the following areas: professional boundaries and responsibilities, patient-nurse issues and relationships, any anxiety and stress related issues arising during her work as a nurse, and the impact of personal challenges (for example health or relationships) on her nursing practice and decision-making. 2. Evidence which will demonstrate objectives/outcomes have been met; 3. Schedule of meetings with the mentor comprising a minimum of one meeting per month. 4. The registrant must provide to the Nursing and Midwifery Council of NSW a mentoring report which is co-signed by the approved mentor addressing: - Progress towards or achievement of specified objectives/outcomes; - Any challenges/issues affecting progress and a plan to deal with these; and - Any changes to practice resulting from mentoring/associated learning. * The mentoring report must be provided to the Nursing and Midwifery Council of NSW every 4 months during the currency of the mentoring relationship. * During the currency of the mentoring relationship, the registrant must: 1. Provide the Nursing and Midwifery Council of NSW with the name and contact details of all nursing employers (including agency placements) prior to commencing work. 2. Authorise each such nursing employer in writing 1. to notify the Nursing and Midwifery Council of NSW of any breach of the conditions or unsafe practice 2. to exchange information with the Council related to compliance with the conditions 1. Provide to any employers a copy of this Tribunal decision and that of the previous Tribunal. 2. Provide to the Nursing and Midwifery Council of NSW a copy of the conditions signed by the registrant and by, and on behalf of, each employer indicating their awareness of the conditions and authorisation within one week of commencing work with such employer. * The appropriate review body for the purpose of a review of these conditions under sections 163-163C of the National Law is the Nursing and Midwifery Council of NSW when the registrant has a principal place of practice in NSW. In the event that the registrant's principal place of practice is anywhere in Australia other than in NSW the appropriate review body shall in those circumstances be the relevant National Board. 1. A non-publication order under clause 7 of Schedule 5D to the National Law prohibiting the publication of the name of the patient. 2. No order as to costs. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2015