Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hollamby [2016] NSWCATOD 91 Hearing dates: 11 April 2016 and by written submission received 21 April 2016 Date of orders: 13 July 2016 Decision date: 13 July 2016 Jurisdiction: Occupational Division Before: S McIllhatton, Senior Member V Gibson, Professional Member S Smiltnieks, Professional Member B Davis, General Member Decision: (1) The Tribunal notes that had the Respondent (Ms Hollamby) 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 an enrolled nurse for a period of 12 months from the date of these orders. (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 provide a copy of the Tribunal's decision to her course provider, Bachelor of Nursing at the Australian Catholic University. Should she leave the Australian Catholic University, she must provide a copy of the Tribunal's decision to any other educational institution(s) to which she applies to enrol in any other nursing course. (5) The Respondent must provide a copy of the Tribunal's decision to any future employer if she seeks employment as an Assistant in Nursing. (6) The Respondent is to pay the Applicant's costs Catchwords: Enrolled Nurse, Impairment, Competence, Surrender of Registration Legislation Cited: Health Practitioners National Law NSW (the National Law) Cases Cited: Lee v Health Care Complaints Commission [2012] NSWCA 80 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34 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) Michelle Hollamby (Respondent) Representation: Counsel: S Talbert (Applicant) Solicitors: Health Care Complaints Commission (Applicant) NSW Nurses and Midwives' Association (Respondent) File Number(s): 1520221 reasons for decision Background 1. Ms Hollamby is 44 years old. She was first registered in Queensland as an Endorsed Enrolled Nurse (EEN) on 28 July 2008. She has suffered from genetic generalised epilepsy since she was 10 months old. Her schooling has been interrupted due to epilepsy. She has experienced seizures whilst driving and her driver's licence is currently suspended. 2. On 12 March 2010, the Sunshine Coast and Gympie Health Services made a notification to the Queensland Nursing Council regarding Ms Hollamby's employment as a temporary EEN at Nambour Hospital in which concerns were raised about: 1. Medication administration and associated knowledge and competencies required; 2. General patient care; and 3. Time management issues 1. On 2 July 2010, following this notification, Ms Hollamby signed an undertaking to enter into a period of supportive monitoring. 2. On 13 May 2011, Ms Hollamby advised the Queensland Office of the Australian Health Practitioner Regulation Authority (AHPRA) that she suffered from epilepsy which was controlled by medication. 3. From November 2012 Ms Hollamby commenced working as an EEN in NSW. 4. On 22 February 2013, a notification was made to the NSW office of AHPRA in relation to Ms Hollamby's epilepsy. 5. On 26 February 2013 following a number of complaints in relation to Ms Hollamby's poor work performance at various hospitals in NSW, a work progress report was completed in respect of her and sent to the Queensland Board of the Nursing and Midwifery Board of Australia. 6. On 10 May 2013 the Council resolved that Ms Hollamby be required to undergo a theoretical and practical Performance Assessment. On 27 May 2013, following a notification made regarding the health and competence of Ms Hollamby, the Council held proceedings under s.150 of the Health Practitioners National Law NSW (the National Law) and suspended her registration as an EEN from 27 May 2013. 7. On 6 August 2013 Ms Hollamby was assessed by Dr Sharon Harding, Consultant Psychiatrist, following a referral from her general practitioner. In a report dated 4 September 2013 Dr Harding suggested that Ms Hollamby undertake neuropsychological testing to assess the extent of any cognitive deficits. 8. On 17 January 2014, the Nursing and Midwifery Council of NSW (the Council) resolved that Ms Hollamby be required to attend a health neurological assessment under section 145E of the National Law. 9. On 26 February 2014, Ms Hollamby attended Dr Wayne Reid a Council appointed neuropsychologist for assessment. 10. Ms Hollamby was referred to the Council's Impaired Registrant's Panel (IRP) on 12 June 2014. The IRP recommended that under section 152J of the National Law, conditions be imposed on Ms Hollamby's registration as a nurse. One of these conditions was that she undertake another EEN course conducted by TAFE or equivalent provider. Ms Hollamby indicated that she would not agree to this condition and the suspension on her registration remained until 19 March 2015. 11. At the request of Ms Hollamby, on 19 March 2015 the Council held proceedings under section 150A of the National Law and removed her suspension. It imposed a revised set of conditions on her registration as an Enrolled Nurse. The application before the Tribunal 1. This is an application for disciplinary findings and orders against Ms Hollamby 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 26 October 2015 ("the Complaint"). The Complaint makes two individual complaints against Ms Hollamby. Each individual complaint is supported by a set of particulars. 2. The first complaint alleges that Ms Hollamby 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. 3. The second complaint alleges that Ms Hollamby is not competent to practice nursing under 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 Ms Hollamby lacks the mental capacity, knowledge and skill to practise as a nurse. 4. The application sought orders in respect of Ms Hollamby's registration as a nurse. The Hearing 1. Shortly before the scheduled hearing the Tribunal received correspondence from the New South Wales Nurses and Midwives' Association indicating that they acted for Ms Hollamby. In addition a copy of correspondence sent to the Applicant which set out Ms Hollamby's position in relation to the application was provided. This correspondence was to the effect that Ms Hollamby admitted both complaints together with the particulars contained within each complaint as detailed in the application to the Tribunal. In addition the letter referred to discussions between the parties about proposed protective orders sought by the Applicant. It was indicated that Ms Hollamby consented to the orders sought. 2. The orders sought by the Applicant and agreed to by Ms Hollamby were: cancellation of her registration with a 12 month preclusion period before she could reapply for registration; and that she provide copies of the Tribunal's decision to her current or any future nursing course provider, and if she sought employment as an Assistant in Nursing to any future employer. 3. On the day of the hearing, Ms Hollamby took steps to surrender her registration as an Enrolled Nurse. On 13 April 2016 AHPRA recorded that Ms Hollamby had surrendered her registration as an Enrolled Nurse: see Evidentiary Certificate AHPRA dated 19 April 2016. 4. The legal representatives of both parties attended the hearing along with Ms Hollamby. The Applicant submitted a bundle of documents upon which it relied. These documents had previously been provided to Ms Hollamby. Ms Hollamby provided academic and course records, a consultation note from her General Practitioner, Dr Holloway dated 23 March 2016, a curriculum vitae and a reference from a workplace supervisor, Dr R Daskein, Registered Nurse. This reference attested to Ms Hollamby's diligence as a personal care worker in an aged care facility. 5. Ms Hollamby's legal representative, Mr Byrne, confirmed that the particulars relied upon by the Applicant were admitted. Both parties made submissions about aspects of the evidence before the Tribunal and the issue of costs. 6. As our reasons disclose, we were independently satisfied that the Complaints as particularised were established and that Ms Hollamby should be disqualified from being an Enrolled Nurse for a period of 12 months. Particulars of the Complaints Complaint One: Impairment 1. On 20 February 2013 Ms Hollamby experienced a tonic-clonic seizure at approximately 6 am at the conclusion of her nursing shift at Hornsby Hospital. Later that same day Ms Hollamby experienced two further tonic-clonic seizures in the Emergency Department of the Hospital. 2. On 17 July 2013 Ms Hollamby underwent a CT scan that showed signs of mild cerebral atrophy. 3. On 23 August 2015 Ms Hollamby experienced five generalised tonic-clonic seizures and was admitted to the Royal Prince Alfred Hospital in Camperdown. 4. The Applicant contended that Ms Hollamby lacked insight into the impact of epilepsy on her behaviour. Moreover that she suffered from cognitive impairments in relation to: 1. Non-verbal reasoning; 2. Working memory; 3. High- level frontal executive skills which affect: 1. Her capacity to form concepts; 2. Her ability to adapt and regulate behaviour after being given feedback 3. Her ability to think quickly and flexibly 1. Both these contentions were admitted by Ms Hollamby. 2. Evidence to support these contentions is contained in the reports of Dr Reid, Clinical Neuropsychologist dated 27 February 2014 and 22 December 2015. 3. In his first report Dr Reid referred to Ms Hollamby being vague as to the reasons for the notification to the Council and her belief that she had no cognitive impairment. A number of tests were administered by Dr Reid in which he detailed the results in relation to attention and information processing, intellectual functioning, memory and executive/adaptive functioning. 4. In his second report Dr Reid had available to him a report prepared by Dr McLaughlin, Neurologist, dated 9 September 2015 which referred to the seizures Ms Hollamby experienced in August 2015 and her subsequent admission to Royal Prince Alfred Hospital. In this report Dr Reid noted that on re-examination Ms Hollamby showed no significant changes in her intellectual abilities. Dr Reid expressed the opinion that Ms Hollamby continued to show evidence of impairment in her cognition. He referred to impairment in her capacity for quick decision making as evident in her deterioration in working memory, speed and flexibility of thinking, reasoning and problem solving. He observed that these areas of impairment together with a degree of lack of insight into her seizure disorder and self-monitoring would affect her ability to function as an Enrolled Nurse without supervision. 5. A report from Dr McCusker, Consultant Neurologist, dated 19 November 2015, described Ms Hollamby as having a long standing seizure disorder which at times has been difficult to control. There is no warning of the seizures. Dr McCusker observed that the medication taken by Ms Hollamby, in particular topiramate (Topamax) can have an impact on cognition. Dr McCusker referred to the evidence of cognitive impairment on Neuropsychological testing which she stated could result from the chronic effects of the seizure disorder, possible medication effect and the post ictal state (the altered state of consciousness after an epileptic seizure). Dr McCusker added that Ms Hollamby had poor insight into the situation and noted she appeared unconcerned about the effect of her condition on her nursing practice. Dr McCusker's ultimate opinion was that Ms Hollamby was unfit to pursue a career as a Registered Nurse and was currently unfit to work as an Enrolled Nurse without supervision. 6. In a subsequent report dated 2 February 2016 Dr McCusker remained of the view that Ms Hollamby should only work as an Enrolled Nurse with supervision and she should not be endorsed to administer medications. Complaint Two: Competency 1. The particulars detailed in Complaint One above are relied upon by the Applicant to support Complaint Two. Additionally the following particulars are relied upon. 2. On 7 January 2009, an assessment was conducted by the Sunshine Coast-Wide Bay Health Service District of Ms Hollamby's performance as an Enrolled Nurse using the Australian Nursing and Midwifery Council Competency Standards for Enrolled Nurses (Competency Standards). Ms Hollamby was assessed as not safe in her delivery of patient care and ability to problem-solve situations. 3. On 25 January 2010 an assessment was conducted by the Sunshine Coast-Wide Bay Health Service District of Ms Hollamby's administration of medication to four patients within an acute care context. Ms Hollamby was assessed as not competent to safely administer medications using the Medication Administration Competency Assessment Tool. 4. On 21 October 2013 Ms Hollamby completed a written medication examination administered by the Australian College of Nursing (ACN) in which she failed to obtain the requisite marks to be deemed competent in that particular examination. On the same day Ms Hollamby completed a written drug calculation examination also administered by ACN in which she was deemed to be not competent. 5. On 10 December 2013 Ms Hollamby completed a clinical assessment administered by ACN and was assessed as demonstrating major deficits in applied nursing skills across the following areas: 1. Safe storage and administration of medications 2. The management of intravenous therapy 3. Wound care 4. Pain management 5. Protocol understanding in the surgical setting 6. Accuracy in reporting, handover and documentation including admission, assessment charts and progress notes 1. Ms Hollamby admitted the particulars detailed above. In addition evidence was before the Tribunal which substantiated the specific concerns held about Ms Hollamby's work performance issues which prompted the examinations and assessments conducted on 21 October 2013 and 10 December 2013. The examinations, assessments, results and statements by the examiners and assessors were all available to the Tribunal. 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. 2. The uncontested evidence before the Tribunal demonstrates that Ms Hollamby has a long standing seizure disorder which at times has been difficult to control. There is no warning of the seizures. 3. The reports from Dr Reid, which the Tribunal accepts, set out the nature and extent of Ms Hollamby's impairment. This includes her capacity for quick decision making, speed and flexibility of thinking, reasoning and problem solving. Dr Reid observed that these areas of impairment together with a degree of lack of insight into her seizure disorder and self-monitoring would affect her ability to function as an Enrolled Nurse without supervision. 4. The first report from Dr McCusker, Consultant Neurologist, which the Tribunal also accepts, observed that the medication taken by Ms Hollamby, in particular topiramate (Topamax) can have an impact on cognition. Dr McCusker believed Ms Hollamby's cognitive impairment could result from the chronic effects of the seizure disorder, possible medication effect and the post ictal state. Dr McCusker's ultimate opinion was that Ms Hollamby was unfit to pursue a career as an RN and was currently unfit to work as an EN without supervision. 5. The evidence also discloses that Ms Hollamby has had work performance issues which are consistent with her impairment. 6. The Tribunal is satisfied from the totality of the evidence before it that Ms Hollamby has a cognitive impairment that detrimentally affects her capacity to practise as an Enrolled Nurse. 7. There is substantial evidence before the Tribunal as to the outcomes of examinations and assessments undertaken by Ms Hollamby in relation to the calculation and administration of medication, and patient clinical care. She did not pass these tests to the requisite level. The results demonstrate that she does not possess the competencies and skills required in a number of areas which directly involve patient care. The Tribunal is satisfied that Ms Hollamby is not competent to practice nursing, in that she lacks the mental capacity, knowledge and skill to practise as an Enrolled Nurse. Protective Orders 1. On 21 April 2016 (after the hearing) the Tribunal received correspondence from the Applicant setting out the form of the orders it sought in the light of the surrender by Ms Hollamby of her registration. The correspondence also enclosed an updated Evidentiary Certificate from AHPRA dated 19 April 2016. Specifically the Applicant sought orders that if Ms Hollamby had still been registered the Tribunal would have cancelled her registration, that Ms Hollamby be disqualified from applying to be registered as an Enrolled Nurse for a period of 12 months and that the Nursing and Midwifery Council of NSW record the fact that the Tribunal would have cancelled Ms Hollamby's registration. There is nothing before the Tribunal to suggest that Ms Hollamby opposes the form of these orders. 2. 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. 3. It has also been held that in addition to the protection of the public being the paramount consideration, other relevant purposes include the need to maintain the standards of the relevant profession: see, for example, Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 637. 4. The reports from Dr Reid and Dr McCusker indicate that due to the nature of Ms Hollamby's impairment she should not work as an Enrolled Nurse without supervision. Ms Hollamby's knowledge and skills have been examined and assessed. She did not pass these tests to the requisite level and does not possess the competencies required for nursing. In the Tribunal's view having regard to the need to maintain the standards of the profession, and to maintain public confidence in the profession the most appropriate order which reflects the paramount consideration of the protection of the public is a twelve month period of disqualification in respect of Ms Hollamby's registration as an Enrolled Nurse together with orders that she provide a copy of the Tribunal's decision to her current or any future course provider in nursing, and to any future employer if she seeks employment as an Assistant in Nursing. Costs 1. The Applicant seeks an order for costs. The Applicant contended that although admissions had been made by Ms Hollamby shortly before the hearing date this was not enough to displace the normal rule that costs should follow the event. Reference was made to relevant case law and the principles that costs were to compensate an Applicant in bringing proceedings. In this instance it was submitted that the proceedings were brought in the public interest. 2. On behalf of Ms Hollamby, Mr Byrne seeks that each party bear their own costs. He refers to Ms Hollamby obtaining legal advice and once she had the benefit of that advice she admitted the particulars and complaints. She does not contest the orders sought by the Applicant. She has agreed to surrender her registration. These decisions had been taken to reduce costs. He submitted that the nature of the proceedings against Ms Hollamby were not disciplinary in the strict sense. He pointed to Ms Hollamby's limited financial means and contended that her employment prospects would not be enhanced by the current proceedings. 3. As submitted by the Applicant 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. 4. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at 42-44, 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. Although Ms Hollamby did not defend the Complaints, made admissions and surrendered her registration; this all occurred well after the Applicant had commenced the proceedings and undertaken the work involved including preparation of the matter for hearing. The Tribunal is satisfied that Ms Hollamby has an impairment within the meaning of Section 5 of the National Law. The Tribunal is also satisfied that she is not competent to practice within the meaning contemplated by section 139 of the National Law. Both Complaints have been wholly proved. In the light of these matters the Application was properly brought and was made in the public interest. The Applicant is entitled to an award for costs in its favour incidental to the proceedings. The matters to which Ms Hollamby 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 Hollamby) 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 an enrolled nurse for a period of 12 months from the date of these orders. 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 provide a copy of the Tribunal's decision to her course provider, Bachelor of Nursing at the Australian Catholic University. Should she leave the Australian Catholic University, she must provide a copy of the Tribunal's decision to any other educational institution(s) to which she applies to enrol in any other nursing course. 5. The Respondent must provide a copy of the Tribunal's decision to any future employer if she seeks employment as an Assistant in Nursing. 6. 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: 13 July 2016