Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ovchinnikov [2017] NSWCATOD 62 Hearing dates: 13, 14 February 2017 Date of orders: 27 April 2017 Decision date: 27 April 2017 Jurisdiction: Occupational Division Before: A Britton, Principal Member J Flood, Professional Member S Dawson, Professional Member J Houen, General Member Decision: (1) If Ms Ovchinnikov were still registered the Tribunal would have cancelled her registration pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW). (2) Pursuant to s 149C(4) of the Health Practitioner Regulation National Law (NSW) the National Board is required to record the fact that the Tribunal would have cancelled Ms Ovchinnikov's registration in the National Register kept by the Board. (3) Ms Ovchinnikov must pay the Commission's costs as agreed or assessed. Catchwords: PROFESSIONS AND TRADES — health practitioner — whether practitioner guilty practitioner guilty of professional misconduct — whether practitioner has an impairment — whether practitioner is "a suitable person to hold registration" — appropriate protective orders where findings of professional misconduct and impairment made Legislation Cited: Crimes Act 1900 (NSW) Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Medical Practice Act 1992 (NSW). Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Caladine v HCCC [2007] NSWCA 362 DPP v El Mawas [2006] NSWCA 154 (2006); 66 NSWLR 93 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Jamieson [2014] NSWCATOD 56 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lindsay v Health Care Complaints Commission [2010] NSWCA 19 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 Ohn v Walton (1995) 36 NSWLR 77 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Tung v Health Care Complaints Commission & Anor [2011] NSWCA 219 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Nadejda Ovchinnikov (Respondent) Representation: Counsel: A Petrie (Applicant) Solicitor: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 1620149 Publication restriction: Nil REASONS FOR DECISION 1. Nadejda Ovchinnikov has a Substance Abuse Disorder (Opioids). In August 2014, she was charged with, among other things, stealing and attempting to steal Schedule 8 drugs from two aged care facilities while employed as a registered nurse. In February 2015, the NSW Local Court dismissed those charges under the Mental Health (Forensic Provisions) Act 1990 (NSW) on the condition that Ms Ovchinnikov consult with her general practitioner, and receive psychiatric and psychological treatment. Section 32 of that Act permits the presiding magistrate to dismiss charges if it appears that the person charged is (or was at the time of the alleged commission of the offence), suffering from a mental illness. 2. The Health Care Complaints Commission (the Commission) has referred for determination, five complaints about Ms Ovchinnikov (the Complaints) to the New South Wales Civil and Administrative Tribunal (NCAT). The Complaints include allegations of impairment and misconduct, namely stealing and consuming opioids while employed as a nurse. In addition, the Commission alleges that on account of a depressive disorder and Opioid dependence or abuse (aka "Substance Abuse Disorder (Opioids)"), Ms Ovchinnikov has an "impairment" within the meaning of s 5 of the Health Practitioner Regulation National Law (NSW) (the National Law) and is not competent to practise nursing within the meaning of s 139(a) of the National Law. 3. Ms Ovchinnikov concedes that between 2011 and 2014 she suffered an "impairment", namely Substance Abuse Disorder (Opioids), which detrimentally affected her capacity to practise the profession of nursing. She claims she has not consumed Opioids since being stood down from employment in August 2014, her condition is now in remission and it no longer detrimentally affects her capacity to practise as a nurse. 4. For the reasons that follow, we find the Complaints established in part. We have decided that had Ms Ovchinnikov still been registered as a nurse (she failed to renew her registration in May 2015), we would have cancelled her registration. In addition, we have decided to disqualify Ms Ovchinnikov from being registered as a nurse for a period of nine months. Amended Complaint 1. At the hearing we granted approval to the Commission to amend the original Complaint by narrowing the period referred to in Particulars 2 to 7 of Complaint 1, from 12 October 2013 to 14 August 2014 to 10 June 2014 to 14 August 2014. For convenience we refer to the amended complaint as "the Complaint". Issues for determination 1. Complaint 1 lists seven particulars relating to Ms Ovchinnikov's actions in abusing and stealing Opioids, while employed at aged care facilities on 31 March 2013 and during the period, 10 June 2014 to 14 August 2014. Ms Ovchinnikov admits to each particular. Each particular is supported by ample evidence and we find all proven. 2. The key issues that remain to be determined are: 1. Whether the conduct particularised in Complaint 1 constitutes "unsatisfactory professional conduct". 2. If so, whether some or all of that conduct constitutes "professional misconduct". 3. Whether Ms Ovchinnikov's condition of Substance Abuse Disorder and recurrent Depressive Disorder, separately or in combination, detrimentally affects or is likely to detrimentally affect, her capacity to practise nursing. 4. Whether Ms Ovchinnikov is not competent to practise nursing in that she lacks the mental capacity to practise. 5. Whether Ms Ovchinnikov is "otherwise not a suitable person to hold registration" in the profession of nursing. 6. If any of the above are established, whether protective orders should be made and, if so, what orders should be made. 7. Whether Ms Ovchinnikov should pay some or all of the Commission's costs. 1. The Commission bears the burden of proving the matters particularised in the Complaint on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities. 2. The authorities have cautioned against the use of the term "comfortably satisfied" (a phrased adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1]. Background to the Complaints 1. Ms Ovchinnikov registered as a nurse in 2002 after completing a Bachelor of Nursing at the University of Sydney. 2. Between September 2012 and March 2013, Ms Ovchinnikov worked on a casual basis at an aged care facility in Dural. She resigned on 31 March 2013 after a colleague witnessed her attempting to substitute Aspirin for a tablet of OxyContin, an opioid used to treat moderate to severe pain (Particular 1 of Complaint 1). The incident was reported to NSW Police but no action was taken until the following year. 3. On 12 August 2014, the Director of Care at the North Parramatta aged care facility where Ms Ovchinnikov was then employed, notified Pharmaceutical Services, a unit of NSW Health that Webster packs containing Schedule 8 medication (drugs of addiction) had been tampered with and medication stolen. The Director suspended Ms Ovchinnikov's employment. 4. The allegations were also reported to NSW Police. On 7 am on 14 August 2014, NSW Police executed a search warrant on Ms Ovchinnikov's home. She was found to be intoxicated. She told Police she was addicted to OxyContin, an opioid used to treat moderate to severe pain. 5. Ms Ovchinnikov was interviewed by Police the following day and admitted to, while at work "over the past few months": * Stealing Endone and OxyNorm (opioids used for pain relief) and morphine injections (discards) (Particular 2 of Complaint 1). * Tampering with blister packs by taking capsules containing Endone and OxyNorm for her own use and replacing them with empty capsules (Particular 4 of Complaint 1). * Being aware that the empty capsules would have no effect on the patients they would be given to, who had been prescribed Opioid medication for pain relief. * Consuming stolen drugs while at work to "feed my addiction" (Particular 5 of Complaint 1). * Being affected but "not high" after consuming drugs at work. * Injecting herself intramuscularly with powder taken from OxyNorrm capsules mixed with water, on average twice during each shift (Particular 6 of Complaint 1). * Taking medical supplies from work without permission (Particular 6 of Complaint 1). * Taking and consuming drugs from the Facility's locked drug cabinet, where Schedule 8 medication was kept. * Being a chronic alcoholic and in an "acute stage right now". * Giving patients paracetamol tablets instead of prescribed PRN medication (Particular 5 of Complaint 1). 1. Ms Ovchinnikov was subsequently charged with (i) attempting to steal 1 x 20 mg OxyContin from the Dural Aged Care facility on 31 March 2013: s 156 of the Crimes Act 1900 (NSW); (ii) stealing 15 OxyNorm capsules and 29 Endone tablets on 11 August 2014 from the North Parramatta Aged Care facility: s 156 of the Crimes Act; (ii) having at her home certain property on 14 August 2014 property, including 13 packets of Skin Shield surgical gloves, 10 x 10mls water for injecting, 1 x 3 ml hypodermic syringe and 5 vomit bags reasonably suspected of being stolen or otherwise unlawfully obtained: s 527C(1) of the Crimes Act. 2. In February 2015, the presiding magistrate dismissed the above charges under s 32(3)(b) of the Mental Health (Forensic Provisions) Act on condition: 1. That Ms Ovchinnikov consult with [GP] Dr Chowdhury at least once per fortnight for monitoring and treatment for her mental health for as long as Dr Chowdhury considers necessary. 2. That Ms Ovchinnikov continue to take the medications prescribed for her by Dr Chowdhury or otherwise prescribed by a treating mental health practitioner for as long as is considered necessary. 3. That Ms Ovchinnikov consult with Dr Sharma, Psychiatrist, as often and for as long as Dr Sharma considers necessary. 4. That Ms Ovchinnikov consult with a psychologist as referred by either Dr Sharma or Dr Chowdhury for as long as Dr Chowdhury considers necessary. 1. On 20 October 2014, the Nursing and Midwifery Council of NSW conducted proceedings under s 150 of the National Law. Ms Ovchinnikov did not participate in the proceedings. The Council ordered that Ms Ovchinnikov not work as a Registered Nurse until reviewed by the Council and the condition removed. Does the conduct particularised in Complaint 1 constitute unsatisfactory professional conduct? 1. Section 139B(1)(a) of the National Law defines "unsatisfactory professional conduct": (a) Conduct that demonstrates the knowledge, skill or judgment 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. 1. Ms Ovchinnikov concedes that the conduct described in each of particulars of Complaint 1 constitutes "unsatisfactory professional conduct" within the meaning of s 139B(1)(a) of the National Law. The concession made by Ms Ovchinnikov is consistent with the opinion given by the Commission's expert, Registered Nurse, Rebbekah Middleton (see report of Ms Middelton, 14 July 2015 and 14 August 2015, Exhibit A 1, Tab 8). We find the admitted conduct demonstrates that the judgment possessed, and care exercised, by Ms Ovchinnikov in the practice of her profession, fell "significantly below" the standard reasonably expected of a practitioner of an equivalent level of training or experience to Ms Ovchinnikov. . 2. Given this finding, it is not necessary to consider whether as alleged by the Commission, that conduct also amounts to "improper or unethical conduct" under s 139B(1)(l). Does the conduct particularised in Complaint 1 also constitute professional misconduct? 1. The Commission asserts that the conduct in each of the particulars of Complaint 1, amounts to professional misconduct within the meaning of ss 139E(a) and 139E(b) of the National Law. 2. "Professional misconduct", is defined by s 139E of the National Law to mean: 139E 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 practitioner's 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 suspension or cancellation of the practitioner's registration. 1. In evaluating whether the conduct found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at [638]. 2. As a consequence of consuming and being affected by Opioids while at work, Ms Ovchinnikov put at risk the 40 elderly patients in her care. Relevantly, Ms Ovchinnikov was working alone and had the sole care of those patients. Although no evidence that any patient was harmed or not properly cared while in Ms Ovchinnikov's care, the potential for that to occur while she was affected by Opioids is self-evident. Her actions showed a reckless indifference to their health and well-being. 3. More troubling, was Ms Ovchinnikov's deliberate conduct in stealing Opioid medication and replacing it with empty capsules knowing they would be given to patients in need of pain relief. The progress notes produced by the North Parramatta Aged Care Facility reveal that many of the patients in Ms Ovchinnikov's care were extremely unwell, some in the final stages of their life. To knowingly deprive pain relief to vulnerable patients in these circumstances was inhumane and fell grossly short of the proper standards of the profession. 4. The conduct described in Complaint 1 in aggregate was sufficiently serious to justify suspension or cancellation of Ms Ovchinnikov's registration. 5. Given this finding, it is not necessary to determine whether the conduct described in each particular, of itself constitutes professional misconduct within the meaning of s 139E(a) of the National Law. Does Ms Ovchinnikov have an impairment? 1. The Commission alleges in Complaint 3 that Ms Ovchinnikov has an impairment within the meaning of s 5 of the National Law. The Particulars of Complaint 3 read: 1 The Respondent suffers from: (a) a physical and/or mental impairment and disorder; namely mood disorders including a recurrent depressive disorder; (b) opioid abuse or dependence. 2 The particulars of Complaint 1 above are relied upon and repeated, both individually and cumulatively. 1. Section 5 of the National Law states: 5 Definitions … "impairment", in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect– (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or 1. It is agreed that Ms Ovchinnikov has a Substance Abuse Disorder (Opioids) and a recurrent Depressive Disorder and that both conditions are now in remission. (We use the terms "opioid abuse or dependence" and "Substance Abuse Disorder (Opioid)" interchangeably.) The issue in dispute between the parties is whether those conditions detrimentally affect, or are likely to detrimentally affect, Ms Ovchinnikov's capacity to practise the profession of nursing. History of conditions 1. Ms Ovchinnikov was assessed by psychiatrist, Dr Kipling Walker, at the request of the Nursing and Midwifery Council of NSW in December 2014. The following summary is taken from the history recorded in Dr Walker's report of 27 December 2014. Ms Ovchinnikov does not challenge the accuracy of that history. 2. In 2011, Ms Ovchinnikov began using Panadeine Forte, which she had been prescribed three years earlier for an undiagnosed stomach complaint. In about mid to late 2011, Ms Ovchinnikov began using discarded opioids (Oxycodone) stolen from the Dural Aged Care facility where she was then employed. She continued to take opioids, orally and injected intramuscularly, stolen from work. In April and May 2013, she saw a psychologist who specialised in drug addiction and unsuccessfully tried to be admitted to a drug rehabilitation centre. In her opinion, the reason she recommenced Opioid use was because of symptoms of depression. From June 2014 until she was stood down from work on 14 August 2014, Ms Ovchinnikov was consuming Opioids on a regular basis. She denied taking drugs intravenously but admitted to injecting herself intramuscularly. She denied purchasing or being prescribed opioids and claims the only Opioids she consumed were those stolen from work. 3. With respect to her depression, Ms Ovchinnikov told Dr Waker that she has been depressed since her father died in July 2011. 4. In these proceedings, Ms Ovchinnikov stated that she was drinking heavily, sometimes up to half a bottle of whisky a day prior to being stood down from her employment in August 2014. Treatment received since August 2014 1. Ms Ovchinnikov commenced the Magistrates Early Referral Into Treatment (MERIT) program in November 2014. The MERIT program is a program designed to assist adult defendants with substance abuse problems to rehabilitate. In a report dated 21 February 2015, forensic psychologist, Peter Zabilka, wrote that Ms Ovchinnikov had successfully completed the MERIT program and engaged well in relapse prevention counselling and individual counselling for mood management. Mr Zabilka wrote that Ms Ovchinnikov's reported motivation for maintaining abstinence was to remain healthy and to be a role model for her children (then aged ten and seven). He recorded that while on the MERIT program (19 November 2014 to 11 February 2015), Ms Ovchinnikov denied any illicit drug use and this was supported by "clinical indicators". 2. Ms Ovchinnikov conceded that she has not fully complied with the conditions imposed by the sentencing magistrate under s 32 of the Mental Health (Forensic Provisions) Act. Specifically, she has had limited contact with her GP, Dr Chowdhury, (whom she commenced seeing for addiction problems in November 2014), and she saw psychiatrist, Dr Sharma, for only a few sessions. 3. In a letter to Dr Chowdhury dated 28 April 2015, Dr Sharma wrote that despite her recommendation, Ms Ovchinnikov had not participated in drug and alcohol group therapy or Narcotics Anonymous meetings and apparently did not see the point in "mixing with other addicts". She expressed concern that "I am the only port of call for her recovery". She wrote that he strongly recommended that Ms Ovchinnikov participate in the Drug and Alcohol day program offered by Northside West and be regularly reviewed by her. Dr Sharma's clinical notes reveal that Ms Ovchinnikov consulted heron three occasions, the last being in April 2015, and that Ms Ovchinnikov had cancelled an appointment scheduled for late May 2015. 4. Ms Ovchinnikov stated that she had been unaware of Dr Sharma's letter of 28 April 2015 prior to these proceedings, and she was fairly confident that she saw Dr Sharma in the latter half of 2015. She was unable to provide any evidence to support this claim. She claimed that she stopped seeing Dr Sharma for financial reasons. On her account she and her husband had always been financially independent of the other and she was reluctant to request financial support from her husband. 5. Ms Ovchinnikov stated that in her opinion she no longer suffers from depression and had not done so since discontinuing anti-depressant medication in October 2014. In January 2015, Ms Ovchinnikov commenced anti-depressant medication, following a referral under the MERIT program to the Centre for Addiction Medicine. She claimed the reason she discontinued anti-depressant medication, was because in her view her mood had stabilised and she no longer suffered from the symptoms of depression. She made that decision without consulting either Dr Chowdhury, or Dr Sharma. 6. In these proceedings, Ms Ovchinnikov stated that through the MERIT program and discussions with Dr Sharma she had learnt how to identify when she needed to seek out help. She described herself as a "very private person" and as being uncomfortable in group therapy. She stated that she now acknowledges that the decision to stop seeing Dr Sharma and discontinue anti-depressant was misguided. She stated that she intends to return to see a psychiatrist and is prepared to submit to a condition to that effect. 7. In April 2013, Ms Ovchinnikov was prescribed anti-depressants which she discontinued after a couple of months. She stated that around that time she attended a drug rehabilitation counsellor and tried without success to be admitted to a drug rehabilitation centre. She stated that in her opinion the reason she resumed drug use in June 2014 after an extended period of abstinence was because she was "deeply depressed". In these proceedings, she stated it "escapes me why I didn't seek treatment". Medical opinion about impairment 1. Psychiatrists, Drs Walker and Bruce Westmore, have each assessed Ms Ovchinnikov and provided an opinion about the nature of her condition(s) and whether it/they affects her capacity to practise as a nurse. 2. As noted above, Dr Walker assessed Ms Ovchinnikov in early December 2014, about two weeks after she commenced the MERIT program. He has not seen her since that assessment. In a report dated 27 December 2014, he made a diagnosis of "mental and behavioural disorder due to use of opioids" and "recurrent depressive disorder, current episode moderate". In his opinion, as a consequence of both conditions, Ms Ovchinnikov had an impairment within the meaning of s 5 of the National Law. He recommended that if Ms Ovchinnikov's registration was reinstated, that it be subject to conditions, including that she not work without supervision or on night shift, abstain from opioids and attend a psychiatrist and Narcotics Anonymous. 3. Dr Westmore assessed Ms Ovchinnikov in December 2014 and more recently in November 2016. He prepared written reports of each assessment and, in addition, gave oral evidence. 4. In an initial report dated 7 December 2014, prepared at the request of the solicitor who represented Ms Ovchinnikov in the criminal proceedings, Dr Westmore wrote that Ms Ovchinnikov suffered a Substance Abuse Disorder (Opioids), a chronic major depression disorder, which was in partial remission and bereavement and a "protracted/complicated grief reaction" and had been suffering from those conditions, when the conduct the subject of the criminal charges occurred (March 2013 and August 2014). He recommended that Ms Ovchinnikov continue to attend her GP and consult a psychologist and psychiatrist. He noted that the offending behaviours were clearly unexpected and uncharacteristic when her "longitudinal life profile is considered". In his opinion, her prognosis both from a forensic and a psychiatric perspective is good, although it is "essential that she receives appropriate medical treatment for her Major Depressive illness". 5. At the request of the Commission, Dr Westmore reviewed Ms Ovchinnikov in November 2016. In a report dated 21 November 2016, Dr Westmore wrote that Ms Ovchinnikov told him that: * Her mood was stable. On the day of her assessment, she rated her mood as "8 - 9/10", on a scale of 1 (low mood) to 10 (normal mood). At its worst, her mood was 4 - 5, and over the past 18 months it had never been that low. * She believes she had fully recovered from her depression. * She slept well, her weight and appetite were stable and energy levels were in the normal range. * As a result of psychiatric treatment she was now able to deal with the "grief and loss in my life". She had discussed her father's death with Dr Sharma. * Her husband was "very supportive and understanding" and their two children were happy and healthy and progressing well at school. * She was keen to return to nursing and willing to submit to conditions, including regular urine drug screening and not handling Schedule 8 drugs "until I'm proved trustworthy". * "I don't take drugs. I don't crave drugs. I've dealt with drug addiction". 1. Dr Westmore confirmed that he stood by his original diagnosis of a significant Substance Abuse and Major Depressive disorder. In his opinion, both conditions were currently in remission. He wrote that Ms Ovchinnikov has achieved full remission from her Major Depressive Disorder. He noted that Substance Abuse Disorders are "potentially lifelong disorders with a propensity for relapse". 2. He wrote that as a result of these conditions Ms Ovchinnikov had an "impairment", however, because each were currently in remission "from a functional perspective at this time she is not impaired". He went on to write "the obvious concern from a psychiatric perspective is whether or not she redevelops her psychiatric problems". 3. Dr Westmore recommended that if Ms Ovchinnikov were to return to nursing she undergo regular drug testing, and that, at least initially, there be supports in place. 4. In oral evidence, Dr Westmore confirmed his opinion that while Ms Ovchinnikov's Substance Abuse Disorder was in remission, nonetheless there was a risk of relapse. He agreed with the proposition that the treatment received to date by Ms Ovchinnikov had been "sub-optimal" but stated it is difficult to predict whether as a consequence she is at greater risk of relapse. With respect to the Depressive Disorder, he agreed there was a risk of relapse, but stated it was his understanding that it was primarily the result of bereavement following the death of Ms Ovchinnikov's father. With respect to Substance Abuse he stated that Ms Ovchinnikov's reported history of abstaining for over 12 months before relapsing in June 2013 was the "usual pattern" and most people maintain abstinence on the first attempt. 5. Dr Westmore identified the following factors as protective of relapse of Substance Abuse: the absence of a depressive illness; the evidence of Ms Ovchinnikov having completed the MERIT program and having re-engaged with health professionals; her report of an extended period of abstinence from both Opioids and alcohol, Ms Ovchinnikov's reported recovery from bereavement, and her stable family life. He identified the stress of returning to work together with the ready access to Opioids as risk factors for relapse. 6. He stated that a good prognostic indicator of a Substance Abuse Disorder being in full remission was if the sufferer remained drug-free for three years. He described the risk of relapse during the first three years of abstinence as "high". Does Ms Ovchinnikov have an impairment? 1. The Commission contends that the subject disorders detrimentally affect, or are likely to detrimentally affect, Ms Ovchinnikov's capacity to practise the profession of nursing. Ms Ovchinnikov concedes that in the past those conditions detrimentally affected her capacity to practise but argues they no longer do so. 2. The Commission contends that in evaluating whether the subject conditions detrimentally affect, or are likely to detrimentally affect, Ms Ovchinnikov's capacity to practise nursing, it is highly relevant that not only did Ms Ovchinnikov delay seeking treatment after being stood down on 14 August 2014 but she did the "bare minimum". In addition, the Commission points out that Ms Ovchinnikov's self-report is the only evidence to support her claim that she no longer suffers depression and has used neither alcohol nor Opioids since August 2014. 3. Ms Ovchinnikov concedes that her treatment has been inadequate but claims that over the past 18 months she has made a concerted effort to abstain from drugs and change her lifestyle. She states that a powerful driver to remain drug-free has been her desire to be a role model for her children and not to repeat the humiliating experience of being arrested in front of them for stealing to feed her addiction. She undertook to submit to any condition the Tribunal considered necessary. Consideration 1. It falls to the Commission to establish that Ms Ovchinnikov's Substance Abuse Disorder (Opioid) and recurrent Depressive Disorder detrimentally affect, or are likely to detrimentally affect, her capacity to practise nursing. While the legal onus of proving that the practitioner is impaired at all times lies with the Commission, in our view, once reasonable evidence has been adduced of impairment, an evidentiary onus then falls on the practitioner to meet that evidence. Usually this will be done by adducing evidence to the effect that, at the time of the hearing, he or she is no longer impaired, or is not substantially impaired, or is not impaired in the same way as he or she was previously. In practical terms, for two reasons, the Tribunal will deal with unsupported claims of remission of Substance Abuse Disorder with some caution: first, in most cases any recent or contemporary evidence of remission or cure of the underlying condition is more likely (as in this case) to be available to the practitioner rather than to the Commission, and, secondly, it is common knowledge that such disorders can be difficult to overcome and that progress can be slow due to the intractability of the habits and psychological dependency that is formed in course of developing a physical addiction. Hence caution is required. 2. That said, while it is a relevant factor, evidence of a past disorder does not, as the Commission in effect submits, create a rebuttable presumption that the practitioner continues to have an impairment. 3. Whether a condition has, or is likely to have, a detrimental effect on a practitioner's capacity requires consideration to be given to the nature of the relevant condition; whether the symptoms or manifestations of that condition have, or are likely to have, a detrimental impact on the practitioner's capacity to practice; whether the condition is being, or is able to be, treated; the effectiveness of any prescribed or proposed treatment and, the likelihood that the practitioner will comply with any treatment regime. In addition, the nature of the tasks and responsibilities of, and the skills and expertise required to undertake the role, must be taken into account. 4. Apart from those that are the subject of these proceedings, Ms Ovchinnikov has not been the subject of complaint or allegation in respect of her professional conduct. 5. To find that Ms Ovchinnikov has an impairment we must be satisfied that she has a current impairment: Tung v Health Care Complaints Commission [2011] NSWCA 219 at [58], [60], Caladine v HCCC [2007] NSWCA 362 at [11]. 6. Critical to the question of whether Ms Ovchinnikov currently has an impairment is the reliability of her claim that she no longer suffers from the symptoms of depression, and, since August 2014, has abstained from both Opioids and alcohol. While it is unsupported, that claim is nonetheless uncontradicted. The available evidence is primarily Dr Westmore's report, which in turn was based on Ms Ovchinnikov's self-report, and her own evidence. Although it would be preferable to have more evidence, we have no particular reason to reject this evidence. Although Dr Westmore was relying largely on the history given by Ms Ovchinnikov, he was applying his significant experience and independent clinical judgment in reaching his opinion that her Depressive and Substance Abuse Disorders are now likely to be in remission. It follows that we could not be satisfied, either individually or in combination, that those conditions currently detrimentally affect her capacity to practise nursing. 7. The more difficult question is whether either or both conditions are likely to detrimentally affect Ms Ovchinnikov's capacity to practise. It is not enough that there be a remote chance or possibility that one or both of the conditions will detrimentally affect Ms Ovchinnikov's capacity to practise nursing. The Commission must establish it is likely or probable that the condition(s) will have that effect. 8. As Dr Westmore points out, there are a number of positive factors, which are protective against the risk of Ms Ovchinnikov relapsing into opioid abuse. Nonetheless, there is a risk, especially given the evidence of the treatment received for both disorders being inadequate. While as Dr Westmore points out, inadequate treatment does not make relapse inevitable, nonetheless it increases the risk. Coupled with the evidence that the period of reported abstinence falls within what Dr Westmore coined the "high risk period" for relapse, Ms Ovchinnikov's likely easy access to Opioids on her return to work and the paucity of evidence to support her claims of being drug-free, we find at this stage, Ms Ovchinnikov's Substance Abuse Disorder is likely to detrimentally affect her capacity to practice. 9. While it is possible that Ms Ovchinnikov's Depressive Disorder will return, Dr Westmore's opinion is that the condition is now in "'full remission". Its effect was limited to predisposing Ms Ovchinnikov to consume Opioids. We are not satisfied that, alone or in combination with the Substance Abuse disorder, the Depressive Disorder is likely to detrimentally affect her capacity to practise. 10. Complaint 3 is established in part. Is Ms Ovchinnikov competent to practice? 1. Complaints 4 reads: [Ms Ovchinnikov] is not competent to practise professional nursing under s139 of the National Law as [Ms Ovchinnikov] does not have sufficient mental capacity, knowledge and/or skill to practise a profession. Particulars of Complaint 4 The particulars of Complaint 3 are relied upon and repeated, both individually and cumulatively. 1. The Commission contends that Ms Ovchinnikov is not competent to practise because she does not have "sufficient mental capacity". 2. The Complainant submits that if we find the impairment complaint established, we should also find that Ms Ovchinnikov is not competent to practise. 3. As the Commission points out, a finding of impairment may also support a finding that the practitioner is not competent to practise, citing in support Lindsay v Health Care Complaints Commission [2010] NSWCA 194 per Sackville AJA at [168]-[169] (Young, Giles JJA agreeing). However, as Sackville AJA commented at [170], it would be incorrect to assume the existence of an impairment necessarily means that the practitioner lacks the mental capacity to practise their profession: [E]ven a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances. 1. In Tung v Health Care Complaints Commission & Anor the Court of Appeal (Giles JA, with whom Campbell and Tobias JJA agreed), considered the interrelationship between "impairment" and "competence to practise" under the now repealed Medical Practice Act 1992 (NSW). The provisions of that Act, which dealt with "impairment" and "competence to practise", while not identical are broadly similar to the corresponding provisions in the National Law. Giles JA characterised the Tribunal's finding of impairment — that the appellant practitioner's disorder was "of a nature that it will affect her capacity to practise medicine" as a "statement of futurity — reflecting "is likely to" in the definition of impairment". His Honour wrote at [62]: [G]iven the futurity in the Tribunal's finding in my view it was not open to the Tribunal to find that she was not competent to practice medicine. No doubt there is room for some futurity in the definition of competence to practice medicine. It is in terms of present capacity, but practice of medicine is a continuum and a practitioner whose physical or mental deterioration will inevitably and soon make him or her incapable could be said to lack sufficient physical or mental capacity to practice medicine. That is not the present case. The finding, understood in the light of the reasons as a whole, was one of likelihood at an indefinite future time. It could not properly be found that the appellant did not presently have sufficient mental capacity or other competence to practice medicine. 1. Similar considerations arise in this matter. While it is likely that without further treatment at some point in the future, Ms Ovchinnikov's Substance Abuse Disorder will detrimentally affect her capacity to practise nursing, assuming she had access to Opiods, that is not inevitable. Therefore, we are not satisfied that she does not presently have a capacity to practise nursing. 2. Complaint 4 is not established. Is Ms Ovchinnikov a person who is "otherwise not a suitable person to hold registration"? 1. Complaint 5 alleges that pursuant to s 144(e) of the National Law, Ms Ovchinnikov is "otherwise not a suitable person to hold registration as a nurse". The Particulars of Complaint 5 read: 1 (a) In August 2014, the Respondent was charged by NSW Police in relation to 3 offences under the NSW Crimes Act 1900, being: (i) attempting to steal property on 31 March 2013 at Dural, 1 x 20 mg Oxycontin tablet, the property of Bupa Care Facility when she was a clerk (Registered Nurse) to the Bupa Aged Care Facility (s 156 Crimes Act 1900); (ii) stealing certain property on 11 August 2014, to wit, 15 Oxynorm capsules and 29 Endone tablets, the property of Northcourt Aged Care Facility, North Parramatta, when she was a clerk (Registered Nurse) the said Northcourt Aged Care Facility, North Parramatta (s 156 Crimes Act 1900); (iii) having at her home premises on 14 August 2014 at 12 Doyle Place, Baulkham Hills certain property including 13 packets of Skin Shield surgical gloves, 10 x 10mls water for injecting, 1 x 3 ml hypodermic syringe and 5 vomit bags which may reasonably be suspected of being stolen or otherwise unlawfully obtained (s 527C(1)(c) Crimes Act 1900). 2 On 11 February 2015 the criminal charges were heard before the Magistrate at Parramatta Local Court and were dismissed under s 32(3)(b) of the Mental Health (Forensic Provisions) Act 1990 on condition that the Respondent consult with her General Practitioner and comply with a treatment plan, and consult with a psychiatrist and psychologist. 3 The particulars of Complaint 1 are repeated and relied upon. 1. For the following reasons, Complaint 5 is not established. 2. As formulated, Particular 1(a) requires that we be satisfied that Ms Ovchinnikov is "otherwise not a suitable person to hold registration as a nurse" on account of being charged with the subject criminal offences. 3. Particular 2 requires that we be satisfied that on account of the criminal charges referred to in Particular 1(b) being dismissed under s 32(3)(b) of the Mental Health (Forensic Provisions) Act that Ms Ovchinnikov is "otherwise not a suitable person to hold registration as a nurse". 4. In DPP v El Mawas [2006] NSWCA 154 (2006); 66 NSWLR 93 McColl JA considered the operation of s 32, and explained that it permitted the Magistrate, if appropriate, to divert a defendant from being exposed to sentence, with his or her mental condition being taken into account: [72]. Her Honour explained that dealing with an application made under s 32 requires three decisions to be made. First, whether the defendant was eligible to be dealt with under the section, which involves a finding of fact that is to say, what is the relevant mental condition: [75]. Secondly, whether having regard to the facts alleged in the proceedings or such evidence as the magistrate may consider relevant, it would be more appropriate to deal with the defendant pursuant to s 32 rather than in accordance with the law: [76]. Thirdly, if it is more appropriate to deal with the defendant pursuant to s 32, which of the actions set out in s 32(2) or (3) should be taken: [80]. 5. Notably, the power to dismiss a charge under s 32 does not require the Magistrate to decide whether the elements of the offence, for which the defendant has been charged, are or are likely to be established, if the matter proceeds to trial. 6. While Ms Ovchinnikov's admits to the conduct which are the subject of the charges, as drafted, Particulars 1(a) and 1(b) require findings to be made that she is not a suitable person to hold registration — not on the basis that the conduct occurred but on account of being charged with offences under the Crimes Act and/or being the subject of a dismissal order made under s 32 of the Mental Health (Forensic Provisions) Act. The fact that a person is charged with an offence or is the subject of a dismissal order under s 32, does not establish that the alleged conduct occurred. 7. We are not persuaded that Ms Ovchinnikov is "otherwise not a suitable person to hold registration as a nurse" on account of Particulars 1 and 2 of Complaint 5. 8. Particular 3 of Complaint 5 requires us to find that Ms Ovchinnikov is "otherwise not a suitable person to hold registration as a nurse" on account of the conduct particularised in Complaint 1. We understand the Commission to submit that this conduct demonstrates that Ms Ovchinnikov is not a suitable person in the sense that she is not a fit and proper person to practise nursing or is not of "good character". 9. The subject conduct occurred over a relatively short period of time. As Dr Westmore noted in his original report, when Ms Ovchinnikov's "longitudinal life profile is considered" that conduct was unexpected and uncharacteristic. The conduct was the result of an addiction to Opioids. While this does not excuse the conduct, it nonetheless provides an explanation for it. 10. We note that the Magistrate who dealt with the s 32 application took the view that it was appropriate in the circumstances not to deal with the conduct "according to law" – that is, by application of the criminal law – but, due to the circumstances of the case, including Ms Ovchinnikov's addiction, that she be treated for her addiction to which her alleged offences were directly related. In short, the Magistrate took account of the fact that this was a person who could be treated otherwise than as a criminal. We agree with that assessment. These were not offences motivated by greed or contempt for the law per se but were driven by addiction and mental illness. 11. A person who is not a "fit and proper person" is a person who, by conduct, has demonstrated such a failure of character that his or her profession, and the general public, must be protected from that person. Such a person has little scope for return to the profession. On the other hand, an illness or impairment, does not permanently flaw character. It may be possible for such a person suffering such a condition, to return to their profession at an appropriate time. 12. We are not satisfied that Ms Ovchinnikov is not a suitable person to practise nursing. What, if any, protective orders should be made? 1. Part 8, Division 3, Sub Division 6 of the National Law sets out the protective powers available to the Tribunal where a complaint(s) is found proven. They include the power to caution, reprimand and counsel a practitioner and to impose conditions on the practitioner's registration. Where, as in this case, the practitioner is found guilty of professional misconduct and to have an impairment, the Tribunal may decide that it would have cancelled the practitioner's registration had they been registered: s 149C(4). 2. In exercising our functions under the National Law, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. 3. The Commission urges the Tribunal to make an order under s 149C(4) of the National Law that if Ms Ovchinnikov were still registered, it would have cancelled her registration. In addition, the Commission seeks an order that Ms Ovchinnikov be disqualified from being registered for a period of nine months. 4. Ms Ovchinnikov, on the other hand, submits that the more appropriate order is the imposition of conditions on her registration. She stated that she is prepared to submit to any conditions which the Tribunal considered necessary including those recommended by Dr Westmore, including undertaking regular urine screening and not working alone, unsupervised or on night shift. Consideration 1. It does not follow that because a finding is made that the admitted conduct is sufficiently serious to justify the suspension or cancellation of Ms Ovchinnikov's registration that an order under s 149C(4) must be made: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; at [67]. Health Care Complaints Commission v Dr Jamieson [2014] NSWCATOD 56 at [100]. Nor does it follow that because Ms Ovchinnikov has an impairment, an order under s 149C(4) must be made. 2. In exercising our power to make protective orders under the National Law, the paramount consideration is the protection of the health and safety of the public: s 3A. This requires, among other things, consideration to be given to the probability of the recurrence of the conduct found proven and of the nature and extent of any justifiably apprehended harm. 3. Had there been reliable evidence that Ms Ovchinnikov had taken steps to resume treatment for her Substance Abuse Disorder, as she advised was her intention in these proceedings, her argument that the imposition of conditions is the more appropriate order would have greater force. However, in the absence of such evidence and Ms Ovchinnikov's history of having failed to comply with the conditions imposed by the Local Court in February 2015, taken together with the public interest in signalling to the profession the serious consequences for engaging in conduct, of the type particularised in Complaint 1, we have decided that the more appropriate decision is to order that if she were still registered we would have cancelled Ms Ovchinnikov's registration. 4. We have decided not to make an order as urged by the Commission to disqualify Ms Ovchinnikov from being registered for a period of nine months. We are of the view that, when or if, Ms Ovchinnikov is able to provide clear and cogent evidence to support her self-report of abstinence and of having undertaken appropriate treatment, she should be permitted to apply for re-registration. This might include, for example, receiving treatment from a psychiatrist or engaging with Narcotics Anonymous or some other support organisation. Should an order for costs be made? 1. The Commission seeks an order that Ms Ovchinnikov pay its costs in these proceedings. Ms Ovchinnikov opposed that application and contends that she does not have the capacity to pay the Commission's costs. 2. In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. 3. The presumption that the successful party is entitled to receive their costs is generally only displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. There is no suggestion of any disentitling conduct by the Commission in these proceedings. 4. For these reasons we order that Ms Ovchinnikov pay the Commission's costs, as agreed or assessed. Orders 1. If Ms Ovchinnikov were still registered the Tribunal would have cancelled her registration pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW). 2. Pursuant to s 149C(4) of the Health Practitioner Regulation National Law (NSW), the National Board is required to record the fact that the Tribunal would have cancelled Ms Ovchinnikov's registration in the National Register kept by the Board. 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: 27 April 2017