Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 Hearing dates: 4 April 2016 Date of orders: 05 July 2016 Decision date: 05 July 2016 Jurisdiction: Occupational Division Before: S McIllhatton, Senior Member J Kitschke, Professional Member D Beaumont, Professional Member A Johnston, General Member Decision: 1. The Tribunal notes that had the Respondent (Ms MacGregor) been registered at the date of these orders it would have cancelled her registration. 2. The Respondent is disqualified from applying to be re-registered as a midwife or nurse for 3 years from the date of this order. 3. Unless and until the Respondent is re-registered as a midwife, she is prohibited from working: (a) as a doula; (b) as a birth attendant; (c) as a lactation consultant; (d) in any pregnancy related role; (e) in any birth related role; and (f) any other ante or post -natal role. 4. 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. 5. An order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of Patient A appearing in the Schedule to the Complaint. 6. The Respondent is to pay the Applicant's costs. Catchwords: Midwife, Unsatisfactory Professional Conduct, Professional Misconduct, Death of Infant Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) s. 139B(1)(a) and (l);s. 139E; s. 149(b) and s.149C(4)(a)and (b) Cases Cited: Health Care Complaints Commission v Phung (No. 1) [2012] 1 NSWDT Health Care Complaints Commission v Perroux [2011] NSWDC 99 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 Health Care Complaints Commission v Saedlounia [2013] NSWMT 13 at 43-50 Pillai v Messiter (No 2) [1989] 16 NSWLR 197 Lee v Health Care Complaints Commission [2012] NSWCA 80 Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 Arian v Nguyen [2001] NSWCA 5 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Sonja MacGregor (Respondent) Representation: Counsel: A Britt (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Sonja MacGregor (Respondent in person) File Number(s): 1520239 Publication restriction: A non-publication order prohibiting the disclosure of the name of Patient A appearing in the Schedule to the Complaint Reasons for decision Background 1. Ms MacGregor, the Respondent, completed a Bachelor of Nursing in 2000 and a Graduate Diploma in Midwifery in 2002. She was first registered as a Nurse in 2000 and as a Midwife in 2002. Commencing in 2006 Ms MacGregor worked full time as an independent Midwife. 2. On 19 June 2014 proceedings under section 150 of the Health Practitioner Regulation National Law ("the National Law") were held and a number of conditions were imposed on Ms MacGregor's registration. On 17 April 2015 Ms MacGregor surrendered her midwifery and nursing registration: see Confirmation of Registration Status, Australian Health Practitioner Regulation Agency (AHPRA) dated 1 April 2016. 3. From about 27 November 2013 until 19 May 2014, Ms MacGregor provided care and treatment as a midwife to Patient A in respect of her third child. It is that care and treatment which is the subject of this matter. Patient A had a past obstetric history of two pregnancies with two births. Significantly both pregnancies required Caesarean sections in hospital due to a failure to induce labour at 41 weeks of gestation. In the light of this history there were real and substantial questions as to the safety of Patient A having a home birth. 4. On 19 May 2014 Patient A presented at St George Hospital with a history of irregular but ongoing painful uterine contractions for two weeks and then regular painful uterine contractions every 6 minutes for the 12 hours prior to presentation. She had not felt any foetal movements for 12 hours from the time regular contractions commenced. On arrival at the Hospital no foetal heart rate was detected. Patient A was attended by Dr Amanda Henry, Obstetrician and Dr Zhuoran Chen, Obstetric Registrar. It was confirmed that the baby had died in utero. That same day a Lower Uterine Segment Caesarean Section was performed on Patient A and a deceased female infant was delivered. The application before the Tribunal 1. This is an application for disciplinary findings and orders against Ms MacGregor 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 20 November 2015 ("the Complaint"). The Complaint makes two individual Complaints against Ms MacGregor. The first Complaint is supported by an extensive set of particulars. The second Complaint relies on the particulars contained in Complaint One. 2. The first Complaint alleges that Ms MacGregor 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 Ms Macgregor has been guilty of professional misconduct within the meaning of s139E of the National Law. 2. Section 139E of the National Law provides: 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. 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 Ms MacGregor's registration as a nurse and midwife and disqualify her from being registered for a period of at least three years. In addition the Applicant seeks orders which contemplate that unless and until Ms MacGregor is re-registered as a midwife, she is prohibited from working: as a doula, birth attendant or lactation consultant; or in any pregnancy, birth related or any other post or ante-natal role. It also seeks an order for costs. The Hearing 1. Both parties attended the hearing. The Applicant submitted documents on which it intended to rely at the hearing. These documents had been provided to Ms MacGregor prior to the hearing. 2. Amongst these documents was a letter dated 18 January 2016 from Ms MacGregor to the Applicant, a copy of which was also sent to the Nursing and Midwifery Council of NSW (the Council), in which she admitted all the factual components detailed in the particulars forming the Complaint. In addition she admitted that her conduct amounted to unsatisfactory professional conduct and professional misconduct. She referred to surrendering her registration as both a Midwife and Nurse on 17 April 2015. She enclosed a statutory declaration that she had no intention of practising any form of midwifery or pregnancy, birth or postnatal roles. 3. In response to correspondence from the Applicant about these admissions, Ms MacGregor wrote again to the Applicant (a copy of which was received by the Tribunal on 29 February 2016) indicating that she agreed with protective orders being placed on her registration. She also sought that a costs order not be made against her as she did not wish to defend the Complaints and did not have funds available to pay for costs. She again added that she had no intention of working in the pregnancy, birth or postnatal area nor did she intend to apply for re-registration at any time. 4. Where a Complaint is admitted to the Tribunal in writing the Tribunal may not need to conduct an inquiry into the particulars of the complaint and can limit its inquiry to determining the appropriate orders to be made: see Section 149 (b) of the National Law. 5. Although Ms MacGregor has made written admissions to the Applicant about the Complaints, the particulars relied on in support of the Complaints and the protective orders sought; she has not actually made written admissions to the Tribunal. The Tribunal makes no criticism of Ms MacGregor in this regard. At the hearing she explained that she did not know to do this. 6. Although the Complaints are not contested, in the circumstances and to avoid any doubt, the Tribunal has conducted an inquiry into the factual matters underpinning the Complaints. The Tribunal has had regard to the evidence in support submitted by the Applicant and to Ms MacGregor's admissions. Particulars of the Complaints Complaint One: Unsatisfactory Professional conduct 1. The Applicant detailed 21 particulars in support of Complaint One. These traversed areas which were critical of the care and skill exercised by Ms MacGregor as follows: 1. inadequate advice given to Patient A 2. a failure to obtain an adequate history and health reports in respect of Patient A 3. a lack of consultation with medical and professional health staff about Patient A and to appropriately refer her to other health professionals 4. a failure to document advice given to Patient A about consent in relation to a home birth, its safety and the risks involved 5. giving incorrect advice to patient A and failing to inform patient A about changes to the health and well-being of her and her baby 6. a failure to provide an adequate collaborative care plan for Patient A with either a medical practitioner or midwife in circumstances when Patient A had a history of two prior caesarean sections following unsuccessful induction at labour at close to 42 weeks gestation. 7. a failure on 18 May 2014 to advise Patient A that her care should be transferred to a medical practitioner, to consult with an obstetrician and to arrange for Patient A to give birth in a hospital 8. a failure to have a management plan for Patient A's home birth and a plan for management of an emergency 9. a failure to subsequently provide health professionals with information 1. Ms MacGregor admits that she failed to advise Patient A that given her history of two previous caesarean sections the safety of a planned home birth was not supported and she should have strongly advised Patient A to transfer to hospital for the birth: see letter dated 18 January 2016 from Ms MacGregor to the Applicant. 2. Ms Robyn Rudner, Registered Nurse and Midwife, prepared an expert's report dated 20 March 2015 in which she examined Ms MacGregor's documentation and treatment plan in respect of Patient A. The documentation examined by Ms Rudner included a Record of Understanding between Ms MacGregor and Patient A and patient records created by Ms MacGregor. 3. Ms Rudner's report concluded that the adequacy of information provided by Ms MacGregor to Patient A about the risks and benefits of Vaginal Birth After Caesarean (VBAC) at home after two prior caesareans was "below what is reasonably expected of a practitioner of an equivalent level and experience". In particular, the written material maintained by Ms MacGregor lacked detail over the range of options and the lack of benefits to Patient A. There was no documentary evidence from the notes made available by Ms MacGregor that the high-risk nature of a planned home birth after 2 prior Caesareans was discussed with Patient A, or that alternatives such as seeking VBAC after 2 prior Caesareans in a hospital setting, were discussed. Ms Rudner referred to the Australian College of Midwifery Guidelines and NSW MOH Maternity Guideline Supporting Women in their Next Birth after Caesarean Section (NBAC) as requiring a high standard of documentation demonstrating regard to both planning and risks. 4. In the light of Patient A's obstetric history Ms Rudner believed that a collaborative approach with other health professional should have formed an integral part of antenatal care for Patient A. Ms Rudner also concluded that Ms MacGregor fell significantly below expected standards in managing potential risks and developing contingency plans in case of emergency. 5. In relation to patient records Ms MacGregor obtained a basic history that included obstetric, medical, family, surgical and drug allergies information from Patient A. However, for the purposes of Patient A's pregnancy record, Ms Macgregor did not sight and obtain copies of any test results from Patient A's General Practitioner including ultrasound and blood test results. Nor did she obtain medical records pertaining to Patient A's two previous caesarean sections. Ms Rudner expressed the view that the adequacy of the history obtained and documented in Patient A's records was significantly below expected standards 6. The evidence demonstrated that Patient A had a history of iron deficiency anaemia and was taking iron supplements during pregnancy. Anaemia is a contraindication for a planned birth at home. Ms MacGregor used a self-calibrated tool to assess Patient A's haemoglobin levels and found Patient A to be anaemic. In pregnancy records maintained by Ms MacGregor she recorded three occasions namely; 3 February 2014, 15 April 2014 and 6 May 2014, where Patient A's haemoglobin levels fell below 90g/l. However, Ms MacGregor did not obtain blood tests to confirm the results. 7. The Australian College of Midwives Guidelines indicate that a haemoglobin level of less than 90g/l unresponsive to iron therapy requires a medical consultation. The Australian Government Clinical Practice Guidelines Antenatal Care Module 1 2012 also recommends routine screening in the form of blood tests at 28 and 36 weeks gestation. In this context of these Guidelines, Ms Rudner was critical of Ms MacGregor's clinical practice in not arranging a medical consultation or full blood work. In addition a statement by Dr Henry to the Applicant dated 5 September 2014 sets out the risks of low iron levels in Patient A's case. 8. In her notes Ms MacGregor documented the estimated date of confinement for Patient A as being 15 May 2014 by reference to Patient A's last menstrual period. However this date did not accord with ultrasounds dated 23 September 2013, 17 October 2013, and 5 December 2013 which variously placed the estimated date of confinement to be 30 April 2014, 2 May 2014 and 27 April 2014 respectively. This resulted in Patient A wrongly believing that she was only just past her due date at the time her baby died. 9. Dr Henry was of the view that Patient A was beyond 42 weeks of gestation and under acceptable standards of care should have been warned of the risks and offered a birth prior to the 42 completed weeks of gestation: see Notification (Complaint) to AHPRA from Dr Amanda Henry dated 28 May 2014 attaching "Summary of Events". 10. On 14 May 2014 a further ultrasound report was commissioned by Patient A's General Practitioner. Ms MacGregor recorded this ultrasound as "perfect". However, the ultrasound revealed that the estimated foetal weight was larger than either of Patient A's other children at birth and mild polyhydramnios (a medical condition describing an excess of amniotic fluid) was present. In the light of these matters Ms Rudner believed that Ms MacGregor ought to have discussed the report with a medical practitioner. 11. Prior to Patient A's admission to hospital on 19 May 2014 she went through two weeks of pre-labour and irregular but ongoing contractions. During this time she was mostly in phone contact with Ms MacGregor. The last documented review in person prior to 19 May 2014 was on 13 May 2014. The particulars set out in some detail that during Patient A's pre-labour period, Ms MacGregor did not provide adequate clinical care, in that; she allowed irregular contractions to continue for 13 days without escalating care, did not consult with an obstetrician to increase foetal monitoring and did not arrange a care plan in relation to the pro-longed pre-labour. Nor did she advise Patient A to monitor her baby's movements and contact her if she detected any alteration from normal movements. 12. On 18 May 2014 Ms MacGregor spoke with Patient A by telephone. Patient A reported ongoing contractions whereupon Ms MacGregor reassured her that labour would occur soon. However at this point in time there were several accumulating risk factors in Patient A's condition. There was the pre-existing history of two previous caesarean sections close to 42 weeks as a result of failure to induce labour at 41 weeks of gestation and prolonged pregnancy beyond 42 weeks. Additionally there was a prolonged latent phase of 13 days, anaemia unresponsive to therapy and a haemoglobin level of 88g/l requiring a medical consultation. 13. In the light of these factors Ms Rudner expressed the view that Ms MacGregor should have advised Patient A that her care needed to be transferred to a medical practitioner. Moreover, she should have arranged for Patient A to have an obstetric consultation and transfer to hospital for the birth. Given the patient's risk factors outlined above, Ms Rudner concluded Ms MacGregor's conduct was significantly below reasonably expected standards. 14. The written records kept by Ms MacGregor during this period did not reflect details of foetal movement, the regularity and intensity of contractions, general maternal observations or plans for coping with a pro-longed pre-labour. Ms Rudner was critical of these notes which she described as "scant" and "reflected poor care." 15. On 19 May 2014, and in response to a phone conversation with Patient A in which she advised she had not felt the baby move for some eight and half hours, Ms MacGregor attended Patient A. She could not detect a heartbeat. It is unclear at this point whether Ms MacGregor advised an urgent ambulance transfer but Patient A went to St George Hospital by car. Ms Rudner was critical of Ms McGregor's failure to call for an ambulance immediately when she was notified by Patient A that she had not felt her baby move. This was particularly so in the light of numerous risk factors which by then included pro-longed pregnancy, pro-longed latent phase, anaemia and significant obstetric history. 16. On Patient A's admission to St George Hospital on 19 May 2014 Ms MacGregor attended and provided 4 pages of handwritten notes (only 1 page appears annotated) to health staff. The first three pages contained standardised information about Patient A such as name and address, blood group but was otherwise scant on detail about Patient A's pregnancy. Statements provided by Dr Henry, Dr Chen and Ms Zofia Karluk, registered midwife, all refer to the lack of meaningful written and verbal information about Patient A's pregnancy provided by Ms MacGregor at this time. 17. In these notes Ms MacGregor documented the estimated date of confinement (EDC) as being 15 May 2014, however as noted above this did not accord with ultrasounds dated 23 September 2013, 17 October 2013, and 5 December 2013. The EDC provided by Ms MacGregor in these notes was incorrect and ultrasounds were not provided to hospital staff at this time. In effect at the time Patient A presented to Hospital on 19 May 2014 she was over 42 weeks her due date: see statement Dr Amanda Henry, 5 September 2014. 18. Ms Rudner commented that information sharing in a professional and timely manner is integral in the transfer of patient care, particularly when the transfer is urgent and distressing for the patient. She noted that midwives should facilitate as smooth a transfer of care as possible by communicating effectively with other health professionals so that they are well informed and can give appropriate medical treatment. Ms Rudner concluded that the adequacy of information and records provided by Ms MacGregor to St George Hospital was significantly below what is reasonably expected of a practitioner. Findings 1. For the reasons that follow the Tribunal is satisfied that the particulars relied upon by the Applicant are established and Complaints One and Two are proved. Complaint One: Unsatisfactory Professional Conduct sections 139B(1)(a)and (l) 1. In broad terms the particulars of the first Complaint traverse the areas of the advice given by Ms MacGregor to Patient A, record keeping and patient care. 2. In the light of the evidence and the admissions made by Ms MacGregor the Tribunal is satisfied that the particulars of the first Complaint have been established. 3. Section 139B(1)(a) of the National Law requires the determination by the Tribunal as to whether Ms MacGregor has been guilty of unsatisfactory professional conduct. It involves an objective assessment of Ms MacGregor's conduct against the standard of conduct reasonably expected of an equivalent practitioner. 4. Section 139B(1)(l) of the National Law requires a determination by the Tribunal of whether Ms MacGregor's conduct demonstrates improper or unethical conduct relating to the practice or purported practice of nursing/midwifery and is therefore unsatisfactory professional conduct. 5. 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. 6. 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 Health Care Complaints Commission 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. 7. The evidence demonstrates that Ms MacGregor failed to advise Patient A that given her history of two previous caesarean sections the safety of a planned home birth was not supported. Ms MacGregor should have strongly advised Patient A to transfer to hospital for the birth. This conduct was below the standard reasonably expected of an equivalent practitioner. 8. The records maintained by Ms MacGregor about Patient's A's pregnancy were inadequate. There was no reference to ultrasounds or blood results and the progress notes with each specific visit were scant on detail. In the circumstances of a complex pregnancy given Patient A's past obstetric history, the records did not contain sufficient detail as to the care and management provided by Ms MacGregor for Patient A and her baby. Nor did the Record of Understanding between Patient A and Ms MacGregor adequately reflect the discussions between them and decision making processes in respect of Patient A's pregnancy. The Australian College of Midwifery Guidelines and NSW MOH Maternity Guideline Supporting Women in their Next Birth after Caesarean Section (NBAC) 14 March 2014 require a high standard of documentation demonstrating planning and the risks, both of which were lacking in the records maintained by Ms MacGregor. 9. The evidence clearly shows that Ms MacGregor failed to obtain and review health reports. She did not sight and obtain copies of any test results from Patient A's General Practitioner including ultrasound results and blood test results. She did not obtain medical records pertaining to Patient A's two previous caesarean sections. She incorrectly determined and documented the estimated date of confinement as being 15 May 2014. 10. There was a complete lack of consultation by Ms MacGregor with other health professionals at any stage of Patient A's pregnancy. She failed to appropriately monitor Patient A's iron levels by seeking blood tests. She did not arrange a medical consultation when those iron levels were low. She failed to act in respect of two weeks of irregular contractions/pre-labour that potentially constituted a greater risk to Patient A. There was no management plan and no contingency plans for an emergency. These matters all demonstrate a failure to provide adequate care to Patient A. 11. The Tribunal finds that the particulars of Complaint One are established and that the conduct amounts to unsatisfactory professional conduct. 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 Health Care Complaints Commission 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: see Health Care Complaints Commission 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. Taken as a whole Ms MacGregor's conduct amounts to a serious breach of the standards the public have a right to expect of a practitioner. She departed from accepted standards in relation to the advice provided to Patient A about the safety of a home birth. In circumstances when Patient A had a history of two prior caesarean sections following unsuccessful induction at labour at close to 42 weeks gestation she failed to provide proper care to Patient A by involving other medical professionals in her subsequent care. She had no management plan for Patient A's home birth and no plan for management of an emergency. 2. On 18 May 2014 when it was clear that all was not well for Patient A and her baby, Ms MacGregor failed to advise Patient A that her care should be transferred to a medical practitioner and to consult with an obstetrician. She failed to arrange for Patient A to give birth in a hospital. 3. The notes Ms MacGregor maintained throughout Patient A's pregnancy were scant and in the case of the estimated date of confinement inaccurate. This is a significant error because at the time Patient A presented urgently to hospital on 19 May 2014 she was over 42 weeks her due date which was a matter not known to Patient A or to treating Doctors at the time. 4. Further, at the time Patient A presented to St George Hospital Ms MacGregor did not provide patient information which would reasonably be expected of a professional. This necessitated the hospital staff having to obtain a verbal history from Patient A during this tragic time. As a result Ms MacGregor did not effectively communicate with other health professionals to enable optimal patient care. 5. In the Tribunal's view the totality of the unsatisfactory professional conduct displayed by Ms MacGregor is of a sufficiently serious 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 Ms MacGregor's conduct constitutes professional misconduct. 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 Health Care Complaints Commission [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 Ms MacGregor's registration as a nurse and midwife is cancelled for a period of at least three years. It also seeks orders prohibiting Ms MacGregor from working in the pre and ante natal area unless and until she is re-registered. Ms MacGregor agrees with the orders as proposed by the Applicant. 4. As previously noted Ms MacGregor has voluntarily surrendered her registration and is no longer registered. As to the form of the orders, if Ms MacGregor had still been registered the Tribunal would have cancelled her registration. In those circumstances our focus is on the appropriate period of disqualification: see section 149C(4)(a)and (b) of the National Law. 5. Having regard to the need to maintain the standards of the profession, to deter others from engaging in like conduct, to maintain public confidence in the profession and given the gravity of the misconduct in the Tribunal's view the most appropriate order which reflects the paramount consideration of the protection of the public is a three year period of disqualification in respect of Ms MacGregor's registration as a nurse and midwife. Costs 1. The Applicant seeks an order for costs. Ms MacGregor seeks that no order for costs be made against her. She refers to the fact that she did not defend the Complaints, has no funds to pay for costs and surrendered her registration as a nurse and midwife. She adds that has no intention of working in the pregnancy, birth or postnatal area and does not intend to apply for re-registration at any time. 2. The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: see Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at 22. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at 36. 3. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at 42-46, with Emmett JA (Meagher JA and Beech-Jones J agreeing) stating: "As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made". 1. The Complaints have been wholly proved. Although Ms MacGregor did not defend the Complaints and surrendered her registration, the proceedings were necessitated by the nature of the care and treatment she provided to Patient A. That conduct has been found to amount both to unsatisfactory professional conduct and professional misconduct. The Complaint was properly brought. The Applicant is entitled to an award for costs in its favour incidental to the proceedings. The matters to which Ms MacGregor refers are not sufficient to displace the Applicant's entitlement to an order for costs. ORDERS 1. The Tribunal notes that had the Respondent (Ms MacGregor) been registered at the date of these orders it would have cancelled her registration. 2. The Respondent is disqualified from applying to be re-registered as a midwife or nurse for 3 years from the date of this order. 3. Unless and until the Respondent is re-registered as a midwife, she is prohibited from working: 1. as a doula; 2. as a birth attendant; 3. as a lactation consultant; 4. in any pregnancy related role; 5. in any birth related role; and 6. any other ante or post -natal role. 1. 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. 2. An order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of Patient A appearing in the Schedule to the Complaint. 3. 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: 05 July 2016