Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Fisher [2016] NSWCATOD 62 Hearing dates: 9 December 2015 and by written submissions received 17 December 2015 and 11 February 2016 Date of orders: 16 May 2016 Decision date: 16 May 2016 Jurisdiction: Occupational Division Before: S McIllhatton, Senior Member K Dixon, Professional Member D Armitage, Professional Member D Bell, Lay Member Decision: 1. Pursuant to s.149C(1) of the Health Practitioner Regulation National Law (NSW) ("the National Law") the Respondent's registration as a nurse is cancelled from the date of this order. 2. Pursuant to s.149C(7) of the National Law, the Respondent is disqualified from being registered in the health profession for a period of 2 years from the date of this order. 3. The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1 and 2 above as soon as practicable. 4. The Respondent is to pay the Applicant's costs. Catchwords: Unsatisfactory Professional Conduct, Professional Misconduct. Impairment and Competency to practice nursing. Where practitioner does not attend the hearing. Legislation Cited: Sections 5, 139, 139B(1)(a) and (l) and 139E of the Health Practitioner Regulation National Law Cases Cited: R. v Byrne (1995) 193 CLR 501 HCCC v Perroux [2011] NSWDC 99 HCCC v Phung (No. 1) [2012] 1 NSWDT Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 HCCC v Saedlounia [2013] NSWMT 13 at 43-50 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Reimers v Health Care Complaints Commission [2012] NSWCA 317 HCCC v XC [2015] NSWCATOD 9 Lee v HCCC [2012] NSWCA 80 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Keiran Fisher (Respondent) Representation: Counsel: Ms A Petrie (Applicant) Solicitors: Health Care Complaints Commission (Applicant in person) NewLaw Solicitors (Respondent) File Number(s): 1520138 reasons for decision Background 1. Mr Fisher, the Respondent, is 31 years old. He completed his Certificate IV in Nursing (Enrolled Nurse) in 2004 and in 2006 was registered as an enrolled Nurse. In 2010, he completed a Bachelor of Nursing at the University of Technology Sydney and in January 2011 was registered as a registered nurse. In January 2011 he was employed as a full time registered nurse at Royal North Shore Hospital (RNSH) where he remained until his resignation in May 2012. In January 2013 he was employed as a full time registered nurse at Prince of Wales Private Hospital (POWPH) in the Intensive Care Unit until his resignation in July 2013. Between July 2013 and January 2014 Mr Fisher worked casually at Royal Prince Alfred Hospital. Mr Fisher has not worked as a nurse since January 2014. 2. In 2002 Mr Fisher suffered a serious head and knee injury resulting in an ongoing neurological condition. In addition he underwent a number of bone graft surgeries. 3. In January 2011, Mr Fisher reported that he had been seriously assaulted. A prosecution of the matter involved two trials, both of which resulted in hung juries. It is clear from the material available to the Tribunal that this incident and the consequential legal proceedings have been very traumatic events for Mr Fisher. 4. In December 2012 Mr Fisher had a permanent ventriculo-peritoneal shunt inserted. 5. From 2010 to 2014, Mr Fisher consulted with 47 medical practitioners and was being prescribed pain medication, including Oxycontinin in increasing doses. 6. From 20 March 2013 to 25 July 2014, Mr Fisher presented to St Vincent's Emergency Department on 15 occasions, mostly due to intoxication, epileptic seizures, serious falls or headaches. 7. On 21 March 2013, Mr Fisher was admitted under Schedule 1 of the Mental Health Act 2007 (NSW) resulting in a mandatory notification under section 141 of the National Law to the Nursing and Midwifery Council of NSW (the Council). 8. On 27 March 2013, Dr Michael Murphy at St Vincent's Hospital notified the Council that he had treated and sedated Mr Fisher in the Emergency Department. He described Mr Fisher's presentation as "mentally disordered" and "in a highly intoxicated state (alcohol and benzodiazepines)". Mr Fisher was employed at Prince of Wales Private Hospital at the time of the notification. 9. On 28 March 2013, Mr Fisher's drug and rehabilitation specialist found he was not fit to work in an acute clinical setting. 10. It is common ground that Mr Fisher suffers from a range of complex and longstanding significant physical and psychological health issues. The application before the Tribunal 1. This is an application for disciplinary findings and orders against Mr Fisher brought under the Health Practitioners National Law NSW (Nursing). The application is made by the Health Care Complaints Commission (the Applicant). The application attaches a Complaint dated 24 July 2015 ("the Complaint"). The Complaint makes four individual Complaints against Mr Fisher. Each individual Complaint is supported by a set of particulars. In addition there was some overlap of and reliance on particulars between Complaints. 2. The first complaint alleges that Mr Fisher has been guilty of unsatisfactory professional conduct within the meaning of s139B(1)(a) and/or (l) of the Health Practitioner Regulation National Law ("the National Law"). 3. Section 139B of the National law defines unsatisfactory professional conduct. For present purposes the relevant provisions are contained in s.139B(1)(a) and (l) and are as follows: (a) Conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. The second complaint alleges that Mr Fisher has been guilty of professional misconduct within the meaning of s139E of the National Law. 2. Section 139E of the National Law provides: Meaning of professional misconduct [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration, or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 1. The third complaint alleges that Mr Fisher is impaired within the meaning of section 5 of the National Law. Section 5 defines impairment as being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects the registered health practitioner's capacity to practise. 2. The fourth complaint alleges that Mr Fisher is not competent to practice nursing within the meaning of section 139 of the National Law. For present purposes section 139 provides that a person is competent to practise only if the person has sufficient physical capacity, mental capacity knowledge and skill to practise their profession. The Applicant alleges Mr Fisher lacks the mental or physical capacity to practise as a nurse. 3. If the complaints are found proven by the Tribunal, the Applicant requests the Tribunal to exercise its power to make disciplinary orders, specifically to cancel Mr Fisher's registration and disqualify him from being registered for a period of at least two years. It also seeks and order for costs. The Hearing 1. The Applicant submitted documents on which it intended to rely at the hearing. Mr Fisher did not provide any documents in reply. By letter dated 4 December 2015 Ms Kava, solicitor, NewLaw representing Mr Fisher, wrote to the Tribunal indicating that neither Mr Fisher nor a legal representative would be attending the hearing. Ms Kava also indicated that she would seek access to the recording of the hearing and would then provide submissions. The hearing proceeded in Mr Fisher's absence. Procedural directions were made at the hearing for the provision of post hearing submissions by both parties. 2. The Applicant surveyed the evidence in support of the complaints. In addition oral evidence was taken from Dr Samuels, Psychiatrist. Dr Samuels has completed three reports in respect of Mr Fisher the most recent being completed in December 2015. These reports were in evidence and relied upon by the Applicant. 3. After the hearing submissions were received from both parties. The submissions made on behalf of Mr Fisher dealt with the orders proposed by the Applicant, costs and non-publication of the reasons for decision. The submissions did not respond to the complaints or the particulars nor did they dispute any of the evidence relied upon by the Applicant. 4. The net position is that although Mr Fisher did not participate in the hearing, he has not indicated to the Tribunal that he concedes the factual matrix underpinning the complaints. Equally, he has not denied the conduct alleged. Nor has he presented any evidence which contests the particulars of the complaints or contradicts the evidence relied upon by the Applicant. Particulars of the Complaints Complaint One: Unsatisfactory Professional conduct 1. The particulars of this compliant refer to three incidents in which Mr Fisher either falsely obtained or attempted to obtain Tramadol 50 mg tablets (an opioid pain medication) from his workplace for his personal use. 2. On 22 July 2011, whilst employed at RNSH, Mr Fisher requested and obtained 20 Tramadol 50mg tablets from the Severe Burns Unit. He falsely stated that the Tramadol was for use in the ICU but he intended it for his own personal use. 3. On 1 August 2011 Mr Fisher again requested and attempted to obtain Tramadol 50mg tablets from the Severe Burns Unit at RNSH. On this occasion he was not rostered on for duty. As part of the ruse he attended RNSH in his nurse's uniform. He falsely stated that the Tramadol was for use in the ICU but he intended it for his own use. Suspicions were aroused by the staff on duty and Mr Fisher was not successful in obtaining the Tramadol. 4. The evidence replied upon by the Applicant in respect of these two incidents includes a letter written by Mr Fisher dated 5 October 2011 to the Australian Health Practitioner Regulation Agency (AHPRA) in which he admitted the incidents on 22 July 2011 and 1 August 2011. 5. The third incident occurred on 4 July 2013 when Mr Fisher took without permission or authority Tramadol 50mg tablets from the drug cupboard at POWPH for personal use. The evidence in support of this incident includes witness statements. Complaint Two – Professional Misconduct 1. To support this complaint the Applicant relied on the particulars contained in the first complaint individually and cumulatively. It submitted that Mr Fisher's conduct on 22 July 2011, 1 August 2011 and 4 July 2013 was of a sufficiently serious nature that it amounted to professional misconduct. Complaints Three and Four – Impairment and Competence 1. The Applicant contends that Mr Fisher is impaired and is not competent to practise as a nurse in that he lacks the mental or physical capacity to do so. Mr Fisher's health issues were particularised as follows: (a) Opioid dependence/abuse; (b) Alcohol dependence/abuse; (c) Tramadol dependence/abuse (d) Cognitive deficits including deficits in: (i) memory; (ii) verbal fluency; (iii) working memory; (iv) processing speed; (e) personality dysfunction; (f) a propensity to fall; (g) left arm spasticity. 1. Extensive medical records were provided in support of these contentions. In addition the Applicant relied on the particulars set out in Complaint One to support its contention of opioid dependence/abuse. 2. From 20 March 2013 to 25 July 2014, Mr Fisher presented to St Vincent's Emergency Department on 15 occasions, mostly due to intoxication, epileptic seizures, serious falls or headaches. On one of those occasions, Mr Fisher was admitted under Schedule 1 of the Mental Health Act 2007 (NSW) resulting in a mandatory notification under s141 of the National Law to the Council. 3. On 27 March 2013 whilst working as Prince of Wales Private Hospital Mr Fisher was, treated and sedated in the Emergency Department in a highly intoxicated state (alcohol and benzodiazepines). On 28 March 2013, Mr Fisher's drug and rehabilitation specialist found he was not fit to work in an acute clinical setting. 4. From 2010 to 2014, the Respondent consulted with 47 medical practitioners and was being prescribed increasing doses of pain medication, including Oxycontin. 5. On 23 August 2013, Mr Fisher attended an appointment with a Council Appointed Psychiatrist, Dr Deepinder Miller pursuant to the direction under s145E of the National Law from the Council. In a report dated 1 October 2013 Dr Miller gave the opinion that Mr Fisher suffers from a disorder, namely opioid dependence; which detrimentally affected his capacity to remain in his current employment without supervision. On 12 December 2013, after review of Dr Miller's report, the Council held an Impaired Registrants Panel ("IRP"). The IRP determined that Mr Fisher was impaired and recommended a number of health conditions. Mr Fisher did not agree to the recommended conditions being imposed on his registration under s152J of the National Law. Accordingly, proceedings under s150 of the National Law were held on 13 January 2014. 6. On 13 January 2014, health and practice conditions were imposed on Mr Fisher's registration. 7. Mr Fisher attended a review pursuant to his conditions of registration with Council appointed Psychiatrist, Dr Anthony Samuels on 7 April 2014 and on or around 14 November 2014. Between July and September 2014, Mr Fisher was assessed at the Brain Injury Clinic at St Vincent's Hospital. On 12 January 2015 further section 150 proceedings were held and Mr Fisher's registration was suspended. 8. Dr Samuels has prepared three reports in respect of Mr Fisher. 9. Dr Samuels first report dated 7 April 2014 initially concluded that from a psychiatric and psychological point of view he could find no evidence that Mr Fisher was suffering from impairment within the meaning of the Act. However, Dr Samuels subsequently altered this view when he was provided with further material about Mr Fisher's medical history by the Applicant. 10. Dr Samuels was provided with Medicare and medical records which showed that between 2010 and 2014 Mr Fisher consulted approximately 47 doctors and medical specialists. This was in addition to doctors seen through various hospitals. Over the past 3 years Mr Fisher's pain medication had increased to the current daily level of 200mg of Oxycodone and 30mg Endone and is currently prescribed by his GP Dr Tony Nigro. 11. Hospital records and discharge summaries indicated that during 2013 and 2014 Mr Fisher was taken to Emergency Departments on at least 17 occasions. Most presentations took place between 2200hrs and 0500hrs. On a number of occasions it was documented that Mr Fisher was intoxicated from alcohol or alcohol and medication. These medical and hospital records formed part of the evidence to the Tribunal. 12. After reviewing the additional information Dr Samuels provided a subsequent report dated 14 November 2014. In this report he stated that since seeing Mr Fisher on 7 April 2014 there have been large increases in his medication. When seen in April of 2014 Mr Fisher said he was on Oxycodone 60mg twice a day. By May of 2014 this was increased to 200mg a day plus Endone 30mg per day. On 19 May 2014 Mr Fisher had a VP shunt inserted. By June 2014 his Oxycodone had gone to 240mg per day. He then had a number of presentations to St Vincent's Hospital; presenting in intoxicated states, falling and suffering haematomas, and having pseudo seizures. Mr Fisher was seen at a Brain Injury Clinic on 1 July 2014 and again in September of that year. It was noted that he had deficits in memory, verbal fluency, working memory and problems with processing speed. 13. Dr Samuel's expressed the view that Mr Fisher suffered a severe impairment; namely an iatrogenic dependence on opioid medication, abuse of the same medications and probably alcohol; and quite significant cognitive deficits. 14. Dr Samuels concluded that Mr Fisher has not responded to the support and treatment provided to him and the periods where he has managed to contain his behaviours and his psychological distress have been short lived. He concluded that Mr Fisher's prognosis was very poor. He stated that even if Mr Fisher were able to contain his opioid dependence and to undergo detoxification and ultimate withdrawal, it is likely that he will still be left with a significant underlying neuropsychological impairment. Dr Samuels stated it was unclear as to whether these cognitive deficits relate to drug use, his shunt or an underlying medical condition. 15. A third and updated report dated 4 December 2015 was provided by Dr Samuels. In preparing this report Dr Samuels was provided with additional material, including hospital admission and medical records including notes from Dr Nigro (Mr Fisher's GP), which were not available to him at the time of the earlier reports. 16. Dr Samuels stated that the additional material added further weight to his opinion expressed on 14 November 2014. He observed that the material from Prince of Wales Hospital, St Vincent's Hospital and Dr Nigro's notes revealed very severe physical health problems. In addition, clear evidence of emotional instability, a reluctance to accept psychological and psychiatric treatment, strong evidence of misuse of opioid medication and a pattern of significant alcohol abuse. He stated that there is also evidence of a rather chaotic lifestyle. 17. Dr Samuels referred to his report of 14 November 2014 where he raised the issue of personality dysfunction. He added that the additional material supported this assertion. Dr Samuels had no doubt that Mr Fisher has severe physical and mental health impairments which would impact upon his professional ability to practice as a Registered Nurse. 18. As to how long Mr Fisher may be impaired, Dr Samuels concluded that he has cognitive problems secondary to the stroke and has been left with neurological deficits. He believed Mr Fisher's physical health was extremely unstable and referred to multiple admissions to hospital throughout 2014 and 2015. He stated that Mr Fisher's substance abuse is a major problem which has been difficult to address. At the present time he saw Mr Fisher's prognosis as being quite poor. He understood Mr Fisher had undertaken not to return to work for at least two years and he thought it highly unlikely that he would be fit to return to a nursing role before this time. He stated that Mr Fisher's current physical and mental health status raises questions as to whether he will ever be able to return to a nursing role. 19. As to whether or not Mr Fisher will remain impaired, even if he is receiving, or will in future receive, ongoing mental health support and treatment, Dr Samuels concluded that this was difficult to say but certainly until his opioid and alcohol use is under control it will be very difficult for any successful intervention to occur in relation to his mental health and psychological issues. Aspects of Mr Fisher's medical conditions appeared to be well controlled although he has had quite significant health problems and there have been issues in relation to compliance. Dr Samuels believed that should a specific medical condition which Mr Fisher has deteriorate, this would also compound and complicate the situation. Although his cognitive problems seem to stem mainly from the stroke and problems associated with the shunt, there may also be a contribution from his existing medical condition and its treatment. 20. In relation to Mr Fisher's competence to practise as a nurse, Dr Samuels concluded that he did not believe that he has the physical or mental capacity to practise nursing. 21. Dr Samuels gave oral evidence to the Tribunal. Dr Samuels traversed the reasons as to why he believed Mr Fisher was impaired and was not competent to practice nursing. He referred to the clear evidence of opioid and alcohol abuse, probable evidence of illicit drug use, cognitive impairment, evidence as to his personality disorder and physical ailments such as seizures and existing medical conditions. He stated that the seizures Mr Fisher suffered deprived his brain of oxygen which was further damaging the brain and its cognitive functioning. The assessment conducted at the Brain Injury Clinic set out Mr Fisher's difficulties with memory including working memory, verbal fluency and cognitive processing. Dr Samuels stated these deficits suggested brain injury but added that specific medication Mr Fisher takes also has implications for cognitive impairment. Findings Complaint One: Unsatisfactory Professional Conduct sections 139B(1)(a)and (l) 1. In relation to the first two incidents pertaining to the obtaining of Tramadol on 22 July 2011 and the attempt to obtain Tramadol on 1 August 2011, the evidence indicates that Mr Fisher admitted both of these incidences in a self-notification letter to AHPRA, dated 5 October 2011. 2. The third incident on 4 July 2013 is supported by evidence from witnesses who directly observed Mr Fisher's conduct. Mr Fisher has not adduced any evidence disputing the allegation. 3. The Tribunal is satisfied that the particulars of the first Complaint have been established in light of the evidence and the admissions of Mr Fisher. 4. Section 139B(1)(a) of the National Law requires the determination by the Tribunal as to whether Mr Fisher has been guilty of unsatisfactory professional conduct. It involves an objective assessment of Mr Fisher's conduct against the standard of conduct reasonably expected of an equivalent practitioner. 5. Section 139B(1)(l) of the National Law requires a determination by the Tribunal of whether Mr Fisher's conduct demonstrates improper or unethical conduct relating to the practice or purported practice of nursing and is therefore unsatisfactory professional conduct. 6. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral; 2. in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law. 7. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R. v Byrne (1995) 193 CLR 501 at 514-515: see HCCC v Phung (No. 1) [2012] 1 NSWDT at [68]. If conduct, is not in conformity with standards of professional conduct and practice it can be seen as improper. 8. In the Tribunal's view Mr Fisher's conduct in relation to the actual and attempted misappropriation of Tramadol on three separate occasions at two different workplaces over a period of almost 2 years is of a serious nature and amounts to conduct significantly below the reasonable standard expected of a practitioner in Mr Fisher's position. Further it was not in conformity with standards of professional conduct and practice and as such was improper and unethical in relation to each of the occasions. 9. The Tribunal finds that Mr Fisher's conduct in relation to the three incidents amounts to unsatisfactory conduct pursuant to s139B(1)(a) and (l) of the National Law. Complaint Two: Professional Misconduct section 139E of the National Law 1. In determining whether a finding can be made of professional misconduct the Tribunal must determine whether as outlined in HCCC v Perroux [2011] NSWDC 99 at [18] "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration". 2. It has been held that the "gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards": see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. 3. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s.139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: HCCC v Saedlounia [2013] NSWMT 13 at 43-50 4. In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 the Court of Appeal (referring to the earlier statutory test) described professional misconduct as including: "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson [v General Council of Medical Education and Registration [1894] 1 QB 755] (at 760-761)." (per Kirby P at 200). 1. The evidence is to the effect that over a period of two years and on three separate occasions Mr Fisher falsely requested and obtained or attempted to obtain Tramadol tablets for personal use. 2. In relation to the first two incidents Mr Fisher made deliberate false statements to fellow health practitioners in his pursuit of obtaining the drug. 3. Significantly, in respect of the second incident on 1 August 2011, Mr Fisher undertook considerable subterfuge by dressing in his nurse's uniform on a day that he was not rostered for duty and deceptively attempted to obtain the drug. In the Tribunal's view this reflects a degree of planning by Mr Fisher to obtain the drug by deception. 4. The third incident occurred after Mr Fisher had self-notified AHPRA about the previous two incidents and after he was admitted under Schedule 1 of the Mental Health Act 2007, resulting in a mandatory notification under s141 of the National Law to the Council in March 2013. On this occasion he took advantage of an opportunity to self-administer Tramadol when he had access to the drug cupboard at POWPH whilst on duty. In addition he breached standard practise in accessing the drug cupboard alone. 5. On each occasion Mr Fisher used his position of authority as a nurse in his pursuit to deceptively obtain the drug. Mr Fisher's conduct when taken together is of a very serious nature. 6. In the Tribunal's view the unsatisfactory professional conduct displayed by Mr Fisher is of a sufficient nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law. The Tribunal finds that when considered as a whole Mr Fisher's conduct constitutes professional misconduct. Complaint Three and Four: Impairment and Competence section 5 and section 139 of the National Law 1. It is apparent from the updated medical evidence available to the Tribunal and produced by way of Summons that Mr Fisher continues to have significant issues in relation to his health, including multiple hospital admissions. Such hospital admissions relate to mental health issues together with abuse of alcohol, opioids and other illicit substances. Further, Mr Fisher has had a number of uncontrolled seizures requiring repeated hospital admissions and investigations. The Assessment from the Brain Injury Clinic and the reports from Dr Samuels set out the nature and extent of Mr Fisher's cognitive deficits and impairment. 2. There is no evidence before the Tribunal as to Mr Fisher's current recovery or remission from drug addiction. There is no evidence before the Tribunal that Mr Fisher's drug dependence issues have ceased. The evidence demonstrates that he has a propensity to relapse as indicated by numerous hospital admissions and consultations with various medical practitioners. The totality of the material indicates that Mr Fisher's drug dependency issues are continuing and there has been no significant improvement in this regard. 3. The Tribunal is satisfied that Mr Fisher is impaired and this impairment includes substance abuse and opioid dependence. 4. The Tribunal is also satisfied that Mr Fisher's conduct which gave rise to the complaints of unsatisfactory conduct and professional misconduct arose from such impairment, namely his substance abuse and drug dependence. As held in Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [11] - [14] the conduct the subject of the complaints may be the basis of both a finding of misconduct as well as impairment. 5. The totality of the evidence and specifically the reports from Dr Samuels indicate that Mr Fisher is not competent to practice. The Tribunal is satisfied that this lack of competence is a continuing one and detrimentally affects Mr Fisher's capacity to practice as a nurse. Submissions 1. Both parties provided detailed submissions. The submissions made on behalf of Mr Fisher canvassed protective orders, costs and non-publication orders. 2. On behalf of Mr Fisher it was submitted in the event that findings were made against him and an order for cancellation of his registration was imposed, a period of 18 months prior to which he could reapply for registration was suggested. In relation to costs reference was made to Mr Fisher's written advice to the Commission after the service of the brief of evidence that he did not intend to appear at the hearing and defend the complaint. This fact had led to a much shorter hearing this reducing costs for both parties. It was also submitted that the Applicant Commission had issued several Summonses and obtained a further report from Dr Samuels in December 2015 which were superfluous and added unnecessary expense. It argued that this material did not provide any new or additional evidence. It was said that an earlier report from Dr Samuels was clear in articulating severe impairment and was sufficient to assist the Tribunal. It submitted that the costs incurred by the Applicant Commission after the service of the brief of evidence should not be borne by Mr Fisher. 3. A non-publication order of the reasons for decision was also sought on behalf of Mr Fisher. In the alternative an order was sought that his name be anonymised. The submission argued that the conduct as set out in the particulars is inextricably linked with Mr Fisher's highly personal and sensitive health problems. The discussion of his personal health issues in reasons would be publicly available and could be searched on line. It was submitted that Mr Fisher was psychologically and physically vulnerable. His health issues were complex and involved sensitive personal information. The severity of his condition and his fragility were evident in the material. 4. It was further submitted that this was a matter about impairment and on that basis there was no deterrence value in publication. In contrast the potential harm to Mr Fisher of publication was arguably punitive and would adversely impact on his already fragile health. It was said that the need to protect the public is achieved through the orders the Tribunal could make regarding cancellation of his registration. It was submitted that these were matters where special circumstances existed warranting a departure from the principles of open justice. 5. Reference was made to the decision of HCCC v XC [2015] NSWCATOD 9 which was said to raise similar issues. It was stated that the medical practitioner in that case was found to have vulnerabilities which put her already fragile state of health at risk of further deterioration should the matters be made public. By analogy it was submitted that the likely emotional distress will almost certainly adversely impact on Mr Fisher's already fragile health. It should be noted that in HCCC v XC the Respondent in that case provided specific and unchallenged medical evidence to the Tribunal as to the impact on her health and safety if a non-publication order were not made. Based on this evidence the Tribunal found that there were special circumstances warranting the departure from the principles of open justice. 6. In reply to these submissions the Applicant submitted that the material obtained under Summons and the further report from Dr Samuels was necessary to provide the Tribunal with current evidence at the time of the hearing in relation to Mr Fisher's health issues and his efforts to address these issues. In addition Mr Fisher had not admitted the particulars of the complaint in relation to either impairment or lack of competence prior to the hearing. Further it had only become aware of Mr Fisher's more recent hospital admissions since the commencement of the present proceedings as a result of the documents produced under the Summons. 7. The additional material also disclosed that Mr Fisher continues to have ongoing substance abuse issues and has not obtained appropriate treatment in relation to his mental health issues. The Applicant submitted that if the Respondent had attended the hearing, these matters could have been addressed in his evidence without the need to issue a Summons. 8. The Applicant submitted that a period of not less than 2 years before Mr Fisher could apply for re-instatement was appropriate given the gravity of the conduct alleged, the complexity of his health issues, the lack of any evidence from Mr Fisher as the steps he has taken to address his issues and his lack of insight. 9. The Applicant opposes the suppression of the Respondent's name or a non-publication order. It submitted that the need for open justice is an essential component to maintaining public confidence in the role of the Tribunal and the profession of nursing as a whole. It canvassed a number of authorities which supported this submission. Principles regarding protective orders 1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see ss149A, 149B and 149C. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. Since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v HCCC [2012] NSWCA 80 at 34. 2. It has also been held that, in addition to the protection of the public being the paramount consideration, other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184. 3. The Applicant seeks that the Tribunal make an order that Mr Fisher's registration as a nurse is cancelled for a period of at least two years: see s149C(1) of the National Law. On behalf of Mr Fisher a lesser period of 18 months is suggested. 4. In the Tribunal's view the use by Mr Fisher of his position of authority and trust as a nurse in his pursuit to deceptively obtain drugs is very serious. Having regard to the need to maintain the standards of the profession, to deter others from engaging in like conduct, and given the gravity, duration and subterfuge of the misconduct in the Tribunal's view the most appropriate order which reflects the paramount consideration of the protection of the public is the cancellation of Mr Fisher's registration as a nurse for a period of two years. Non publication Order 1. Contrary to the contentions contained in the Respondent's submission this is not a matter confined to impairment and accordingly there is no deterrence value in publication. This matter involves serious professional misconduct. 2. The Tribunal accepts the position put forward by the Applicant that the need for open justice is an essential component to maintaining public confidence in the role of the Tribunal and the profession of nursing as a whole. The Tribunal is not satisfied that circumstances exist to warrant a non-publication order of the reasons for the decision or the health practitioner's name. In the Tribunal's view to make an order that supresses the name of the Respondent when publishing the reasons for decision and in making the orders that flow from determination would be inconsistent with the protective function of the proceedings. It is inherent in the protection of the public that information about a practitioner be available should a potential patient wish to enquire as to whether the practitioner has been the subject of an order under the Act. 3. There is extensive medical evidence before the Tribunal as to the Respondent's health issues. The Tribunal accepts that the publication of this decision may bring unwanted and distressing public scrutiny to the Respondent. However the Respondent has not adduced any evidence in relation to the proceedings or to support the contention of the need for a non-publication order. The Respondent's actions, which have been found to constitute professional misconduct, were wilful and deceptive. They are of a sufficiently serious nature not to displace the need for open justice. Costs 1. The Applicant seeks an order that the Respondent pay its costs. The Respondent seeks to limit those costs by excluding those incurred after the serving of the brief of evidence. 2. The Complaints have been wholly proved. The Tribunal does not accept the proposition that the material obtained under Summons and the additional report from Dr Samuels dated 4 December 2015 was unnecessary or superfluous. The additional material was relevant to the determination as to Mr Fisher's current fitness to practice. At the time of the hearing the second report from Dr Samuels was some 12 months old. Equally, evidence relevant to Mr Fisher's current medical conditions at the time of hearing was relevant to the determination of impairment. The Applicant is entitled to an award for costs in its favour incidental to the proceedings in their entirety and such costs should not be limited to those costs incurred prior to the serving of the brief of evidence. ORDERS 1. Pursuant to s.149C(1) of the Health Practitioner Regulation National Law (NSW) ("the National Law") the Respondent's registration as a nurse is cancelled from the date of this order. 2. Pursuant to s.149C(7) of the National Law, the Respondent is disqualified from being registered in the health profession for a period of 2 years from the date of this order. 3. The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1 and 2 above as soon as practicable. 4. The Respondent is to pay the Applicant's 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: 16 May 2016