Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Simonsen v Health Care Complaints Commission [2016] NSWCATOD 87 Hearing dates: 8 June 2016 Date of orders: 06 July 2016 Decision date: 06 July 2016 Jurisdiction: Occupational Division Before: Marks ADCJ, Principal Member A Walsh, Professional Member V Gibson, Professional Member Prof D Anderson, Community Member Decision: (1) Application for registration is dismissed (2) The applicant is to pay the respondent's costs Catchwords: Registered nurse - cancellation of registration- drug abuse related professional misconduct - application for re-registration dismissed - failure to demonstrate no longer a risk to the public Legislation Cited: Health Practitioner Regulation National Law Cases Cited: Health Care Complaints Commission (HCCC) v Simonsen [2013] NSWNMT 21 Health Care Complaints Commission (HCCC) v Simonsen (No 2) [2013] NSWNMT 26 Category: Principal judgment Parties: Andrew Simonsen (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: H Bennett (Respondent) Solicitors: Andrew Simonsen (Applicant in person) Health Care Complaints Commission (Respondent) File Number(s): 1620015 REASONS FOR DECISION 1. This is an application brought by Andrew Simonsen ("the applicant") to have his name added to the Register of Health Practitioners as a Registered Nurse. The applicant had his name removed from the Register by the Nursing and Midwifery Tribunal on 23 December 2013 following the hearing of a Complaint brought by the Health Care Complaints Commission ("the respondent"). Background 1. The essence of the circumstances which gave rise to the complaint proceedings, which resulted in removal of the applicant's registration, may be gleaned from the following extract from the decision of the Tribunal in Health Care Complaints Commission (HCCC) v Simonsen [2013] NSWNMT 21. At [4]-[13] the Tribunal said: The catalyst for these proceedings was the practitioner's conduct at Chesalon Aged Care, Richmond ("Chesalon") on the evening of 3 July 2011 and in the early hours of the following morning. The practitioner was the registered nurse in charge of that facility on those days. On 3 July 2011 the practitioner was a relatively recent nursing graduate, although he had worked for the previous nine years initially as an Assistant in Nursing, and then as an Endorsed Enrolled Nurse. He had a troubled youth, spending significant periods of time in juvenile justice facilities, and in his early adult years was incarcerated for a number of criminal offences. During his time in gaol the practitioner says he used heroin, but denies he was, or is, addicted to that or any other drug. He admits he has used illicit drugs recreationally, including in 2013, and has obtained prescriptions for other drugs by "doctor shopping" but says the drugs obtained were not for him. On the evening of 3 July 2011, whilst in charge at Chesalon, the practitioner permitted his friend, Mr TA (Person A) entry to that aged care facility. The practitioner knew Person A was addicted to heroin, and described him as "a junkie". The practitioner said he allowed Person A entry so that he could provide him with clean syringes to "shoot up". Other significant events occurred on that night, or in the early hours of the morning. The events surround the practitioner's proposed administration of morphine to a Chesalon patient, Patient B. The practitioner says that he proposed to administer morphine to Patient B based on oral advice given to him at handover by another registered nurse. But after checking the patient's records, and discovering no current order for morphine, he discarded the drugs he had earlier drawn up, both from Chesalon stock, by mistake, and subsequently the patient's own stock. He made entries reflecting the discarding of the drug in two drug registers. Mr Tonderai Mutasa ("Mr Mutasa") an Assistant in Nursing witnessed the practitioner's signature. However, Mr Mutasa states he did not see the drug discarded. Early the following day Mr Mutasa's concerns about the practitioner's conduct on the evening shift were reported to the Director of Nursing. Further, during the evening, Mr Mutasa and the other Assistant in Nursing on duty, Ms Joanne Worrell ("Ms Worrell"), observed the practitioner's behaviour to be unusual. The practitioner left a patient unattended on the toilet, and then denied he had taken the patient to the toilet. He later questioned the patient and the patient's neighbour asserting they were mistaken in their belief (that he had taken the patient, who was unable to walk unassisted, to the toilet and had forgotten to return to assist her to return to her bed). Ms Worrell said, shortly after the toilet incident, she saw the practitioner in the medication room and he appeared "spaced out". Mr Mutasa described him appearing "weird", that he was shaking "and appeared to be confused". Later, in the early morning hours on the shift, Ms Worrell found a broken vial of morphine on the toilet floor. She also found smashed glass on the floor and blood on the toilet seat and cistern as well as on the sink in the toilet. The HCCC allege that practitioner self-administered morphine on 3-4 July 2011 ("the shift"). After the events which occurred during the shift the practitioner's employment at Chesalon was terminated. A hearing before the Nursing and Midwifery Council ("the Council") resulted in conditions being placed on the practitioner's registration in September 2011. The practitioner obtained employment at Sir Moses Montefiore Jewish Home, Hunters Hill ("Montefiore") commencing on 5 September 2011. He was aware of the conditions placed on his registration by at least 27 September 2011. However, he did not tell his new employers about his conditions until 22 December 2011, nor did he comply with conditions imposed in respect of his handling of Schedule 8 drugs (" S8") whilst employed at Montefiore. These events led to the HCCC instituting proceedings by way of a Complaint dated 11 January 2013 in the Tribunal. The Complaint was amended prior to the hearing to add a further particular of impairment, namely that the practitioner suffers depression. 1. The Tribunal found that the applicant had been guilty of professional misconduct. In reaching this conclusion, the Tribunal said at [163]-[-165]: While a finding that a practitioner suffers an impairment does not automatically lead to a conclusion that a practitioner lacks the competency to practise, we are satisfied on the evidence before us that the practitioner's long standing use, and misuse, of prescription and illicit drugs is likely to affect his physical and mental capacity to practise nursing. It is a tragedy that the practitioner became involved with drugs and the criminal justice system at such a young age, and despite his very commendable behaviour in obtaining his tertiary qualifications, that he has been unable to distance himself from his early peers and friends such as Person A and involvement with drugs. The effect of his substance abuse disorder on his capacity to practise is clearly demonstrated by his conduct at Chesalon. Thus the Tribunal is satisfied that Complaints Seven and Eight are established. 1. A stage 2 hearing was conducted to determine what protective orders should be made consequent upon the finding of professional misconduct. In the course of its decision in Health Care Complaints Commission (HCCC) v Simonsen (No 2) [2013] NSWNMT 26, the Tribunal quoted its earlier decision at [23]: 148. However, our findings in respect of Complaints Four and Five are findings of serious misconduct relating to patient safety, (admission of an authorised person to Chesalon failing to check and document Patient B's medication, failure to give appropriate medication to Patient B, self administering morphine to the potential detriment of all patients at Chesalon, improper conduct in relation to a fellow professional, and lack candour with the HCCC, the Council and this Tribunal). These are substantial matters. They are compounded by the practitioner's conduct in failing to tell management at Montefiore of the conditions on his registration on and from at least 27 September 2011, and acting in complete disregard of the conditions either because he thought they were "unfair" (as set out in his correspondence to the Council), or would make it difficult to obtain/retain his employment. Such conduct is consistent with the practitioner's conduct in knowingly lying to the HCCC in November 2011 about his employment at Montefiore where he was working not less than five shifts per week at the relevant time. 149. The matters referred to in Complaint Four as established individually are of such a serious nature as to constitute professional misconduct. But when considered with the matters found established in Complaint Five, the Tribunal has no hesitation in finding the practitioner's conduct is of a sufficiently serious nature to justify suspension or cancellation of his registration and constitutes professional misconduct. 1. The Tribunal also said (in an unnumbered paragraph): It is also relevant we again highlight our findings in respect of Complaints Seven and Eight which alleged a lack of competence to practice and impairment. The practitioner conceded he had "doctor shopped" to obtain Oxycontin, although he said the drugs were not prescribed for him. The Tribunal also found, [at 62] based on the criteria in the DSM V that the "pattern of behaviours exhibited by the practitioner involving both prescription and illicit drugs over many years" fulfilled the criteria of a substance abuse disorder. 1. Later in its reasons for decision, the Tribunal said at [45]-[47]: By reference to the criteria we identified in paragraph 19 of these reasons we find: * the incidents which occurred on the evening shift at Chesalon although a "one off" were of a very serious nature; * the self injection of morphine was vigorously denied by the practitioner at the Stage 1 hearing, but he now tells his parish priest he took drugs and fell asleep that night; * the practitioner expresses no contrition for his lack of care of Patient B, or his behaviour in accusing Mr Mutafa, the Enrolled Nurse under his supervision, of lying; * the practitioner wilfully lied to the HCCC and was dishonest in obtaining his employment at Montefiore without disclosing the conditions on his registration; * while the practitioner now acknowledges it is inappropriate to separate his behaviour as a health professional, and his private behaviour so that he can use drugs recreationally he did not demonstrate any insight into his conduct on the evening shift during the Stage 1 hearing or in his submissions in respect of Stage 2; and * sadly, his medical records indicate a person needing significant help with anxiety and appropriate use of medication particularly Oxycontin. The Tribunal is satisfied the practitioner remains impaired. The matters we have identified do not comfortably lead to a finding that the principles to be observed in making a protective order would be fulfilled if the practitioner remained registered, but subject to conditions. The factors which demonstrate rehabilitation that were present in Townsend are, unfortunately, absent in this matter. Rather, we take into account in assessing the seriousness of the practitioner's conduct some of the issues discussed by the Tribunal in HCCC v Davies (No. 2) [2013] NSWNMT 25. Of critical importance is the role of a registered nurse working in aged care to have the care and safety of these vulnerable patients as his/her paramount consideration and also in being a role model for those he or she supervises. The practitioner's work history is with aged, vulnerable patients, including the patients whose safety he placed at risk at Chesalon during the evening shift. Further, we are not satisfied the practitioner appreciates the importance of his role as a registered nurse as a supervisor and role model those for whom he had direct supervision responsibilities. These serious matters alone may justify cancellation of his registration. 1. We regard as most significant the following observations made in the stage 2 decision at [48], namely: However, and of equal concern to us is the practitioner's impairment for which he needs professional assistance if wishes to return, with the requisite physical and mental capacity, to practise nursing. Although there is only one incident of compromised patient safety as a direct result of the practitioner's addiction, there is a real risk if the practitioner's substance abuse and the underlying reason for it is not addressed, to any other patient who may be under the care of the practitioner. The impairment, which we are satisfied on the evidence before us, including the recently summoned documents, currently exists must be addressed to enable the practitioner to be able to practise safely. The applicant's evidence 1. The applicant filed documentary material and gave oral evidence. An account of his activities following the decision to remove him from the register is of significance for the determination of these proceedings. The applicant said that he had been unable to secure work since he lost his last nursing position in December 2011. He endeavoured to commence an apprenticeship in plumbing but this did not work out due to the personality of the plumber to whom he was apprenticed. He said that he sold his home in around June 2014 because he could not keep up the mortgage repayments. He then left Australia to live in the Philippines with his wife's family. He said that his time in the Philippines was "life changing" because he was able to live simply and cheaply. He made several trips back to Australia to see his family and appears to have returned to Australia to live indefinitely on 13 November 2015. 2. The applicant said that on the basis of advice given to him he was under the impression that at the end of the two-year period set by the Tribunal he was entitled as of right to seek reregistration. At some stage between lodging his application on 14 January 2016 and the hearing he realised that he would need to justify to the Tribunal an entitlement to reregistration. 3. In a statement dated 13 April 2016 under the heading "drug rehabilitation", the applicant said that he had attended 17 sessions at the Centre for Addiction Medicine ("CAM") at Mount Druitt as part of a Relapse Prevention Group. He tendered a letter from Ms E. Dening, who is a drug and alcohol counsellor at CAM, which corroborated his attendance on 16 occasions in an 8 week education group. The applicant had attended more than the necessary number of his own volition. There was a notation that the applicant "engages well in group and stated that it is his intention" to keep attending. A letter from the Group Facilitator at CAM described the program as "an 8 week skills-based program that aims to empower the individual to make informed choices in regard to their substance use and be able to manage and prevent relapse to substance or alcohol use." 4. Ms Dening gave evidence in the proceedings. Ms Dening described the group which the applicant had attended as one which essentially was focused on the contribution of each individual participant. CAM did not perform any individual assessment of any participant, no records were kept concerning participants and there was no follow-up as to their progress. No data is kept is on whether a participant relapses. Participation does not involve any individual counselling. 5. The applicant tendered a letter of 10 April 2016 from Mr Joseph Lien a psychologist. The applicant saw him on two occasions namely 17 March and 7 April 2016 to be assessed as to whether he was suffering from "Major Depression" for the purpose of his application for reregistration as a nurse. Mr Lien was unable to detect any symptoms of depression, but he recommended that the applicant meet with a psychiatrist on whom he had previously attended for further assessment. 6. In oral evidence, Mr Lien said that he did not assess the applicant in any way with respect to drug dependency or drug substance abuse, because he was only asked to consult with him concerning any depression condition. 7. The applicant tendered into evidence the results of five urine drug screening tests performed on 7, 9, 14 and 24 March 2016 and 2 April 2016. All, except for one, were negative. There was a positive test for opiates on 14 March 2016, but this was said to be a presumptive result only. In oral evidence, the applicant said that he thought this resulted from having taken an analgesic containing codeine. 8. In oral evidence, the applicant said that he had not used illegal drugs for two years. He was asked in cross-examination why he had not undertaken more drug testing. He said that he could not have done this earlier because he had no money to pay for the tests. 9. The applicant has had an opportunity to talk with a friend whom he met at university in 2010 and who is now a registered nurse about his problems and he regards this as constituting an informal mentoring arrangement. 10. In response to questions from the Tribunal concerning his urine drug testing, the applicant confirmed that these were not chain of custody tests and were undertaken randomly at times that he had chosen. Some concern was expressed by the referring general practitioner about claiming the cost of urine testing on Medicare. He no longer has a therapeutic relationship with a doctor. 11. The applicant said that he had not sought psychological help because he was looking for relapse prevention only. 12. The applicant conceded that he had not kept up-to-date with any educational requirements since he had left Australia to spend time in the Philippines. He said that he was now very aware that he would have to undertake continuing education and a refresher course. 13. The applicant was questioned by the Tribunal concerning his aspirations, should be reregistered as a nurse. He said that he would prefer to go into aged care because this is the area which he knows best. He would also consider an opportunity to teach nursing or to work in an emergency department. 14. The applicant said that he was sorry for what he had done and was conscious that his conduct had impacted adversely on the nursing profession. He asserted that he no longer suffered from depression, that he was no longer dependent upon drugs, he did not have any craving for drugs and that he avoided exposure to illegal drugs and mixing with persons who took drugs. He said that he had learned the triggers for drug use and how to deal with them. He wanted to start urine testing as soon as possible. The respondent's submissions 1. Put shortly, the respondent submitted that, on the basis of the material put before the Tribunal, we should decline to reinstate the registration of the applicant. As we have concluded that this is the appropriate course to follow, it is not necessary that we refer to the extensive submissions put by the respondent in any detail, and will incorporate reference to them in the reasons which follow. Consideration 1. In order to determine these proceedings we must have regard to the circumstances of the applicant as at the date of our decision. Our approach is necessitated by the provisions of the Health Practitioner Regulation National Law ("the National Law") which, as is well known, includes the primary object of protection of the public. 2. The applicant bears the onus of demonstrating that he is now a fit and proper person to be reinstated as a registered nurse, albeit with suitable practice conditions. It is well-established that we must be appropriately satisfied that the applicant no longer suffers from any of the detriments which led to his deregistration. This involves an examination of the reasons given by the Tribunal. Accordingly, we have set these out in some detail. In essence, the applicant's problems centred around his drug abuse, his denial and other conduct signifying a lack of insight, his serious neglect of patients and his acts of dishonesty which were probably associated with his substance abuse. 3. We stressed to the applicant that if a health professional was susceptible to drug abuse, that this would pose an unacceptable risk to the safety of the public. He readily agreed. Indeed, this proposition is so fundamental that it does not require any further elaboration. In the circumstances, we need to be appropriately satisfied that the applicant has been successfully rehabilitated from his drug addiction. We cannot be so satisfied because: 1. The applicant has not provided any opinion from someone with expertise that he has, in fact, been rehabilitated. 2. The applicant has not provided evidence of clear urine drug tests for an appropriate period, which would be much longer than the period covered by the tests undertaken by the applicant. Furthermore, there are well-known protocols for the conducting of urine drug testing to ensure that the samples are not susceptible to tampering and that the samples have been given by the person concerned. Those protocols have clearly not been followed, and we are unable to give much weight to them. 3. The applicant was found to be suffering from anxiety. Appropriate professional opinion will be required so that the Tribunal might be satisfied that the applicant is no longer impaired by reason of this matter. 4. The applicant has not provided any evidence of participation in an appropriate therapeutic program designed to deal with substance abuse and preventative measures against relapse 1. We note that the earlier Tribunal took some trouble in its two decisions to give some guidance to the applicant about what he needed to do in order to demonstrate that he was appropriately rehabilitated, had insight into his problems, was no longer impaired, and could be reinstated to registration without posing any undue risk to the safety of the public. The applicant has not followed that guidance, and is therefore not in a position to have his application accepted. In stating this, we are not critical of the applicant. Perhaps it was necessary for him to escape to the Philippines so that he could "find himself" by experiencing a different lifestyle. Certainly, it will be virtually impossible for the applicant to establish the necessary therapeutic relationship with a psychiatrist or psychologist, a medical practitioner and to undertake a regime of secure urine drug testing without the necessary financial resources. To date, the applicant has been unable to secure worthwhile employment to gain the necessary funds. He indicated to us during the course of the hearing that he would now pursue employment as a first step in funding his rehabilitation process. 2. It will also be necessary for the applicant to demonstrate insight into his past misconduct, and to demonstrate whether, and to what extent, that misconduct will influence him in terms of his future conduct and behaviour. Although the applicant did express contrition and remorse for what had occurred, it was not clear to the extent that this expression was tinged by regret for the impact on his own personal circumstances, rather than the impact on the patients involved, his fellow employee, his employer and the nursing profession. We did not pursue these matters with the applicant in detail because it was clear that the applicant was not otherwise able to satisfy us that he should be reinstated by reference to his past drug addiction and anxiety condition. Conclusion 1. For the reasons given, we are not satisfied that the applicant has established that he should be reinstated as a registered nurse and, accordingly, his application is dismissed. Costs 1. This is a costs jurisdiction. The respondent sought an order for costs. No reason was advanced by the applicant why costs should not follow the event, save for his impecuniosity. It is well-established on authority that impecuniosity is not a reason to deny a successful party in proceedings the recovery of costs. We propose to order that the applicant pay the costs of the respondent. Orders 1. The application is dismissed 2. The applicant is to pay the costs of the respondent assessed in default of agreement. 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: 06 July 2016