Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Cain (No. 2) [2017] NSWCATOD 171 Hearing dates: On the papers Date of orders: 30 November 2017 Decision date: 30 November 2017 Jurisdiction: Occupational Division Before: A Britton, Principal Member D Beaumont, Senior Member V Gibson, Senior Member A Glass, General Member Decision: (1) Mr Cain is reprimanded. (2) The following conditions are imposed on Mr Cain's registration: (a) Mr Cain is not to engage in solo practice for a period of 12 months or for any further period determined as appropriate by the Council of the Nursing and Midwifery Council (the Council). This condition comes into effect in three months from the date of this decision. (b) The following supervisory conditions will come into effect in three months from the date of this decision or such earlier date as determined by Mr Cain. (c) Mr Cain may only practise as a registered nurse under the supervision of a registered nurse (Division 1) who does not have conditions on his/her practice and is approved by the Council (the Supervisor). Supervision may be remote, that is, where the Supervisor is: (i) On site, but not working in close proximity to Mr Cain; or (ii) Off site or working remotely from Mr Cain. At all times the Supervisor must be accessible to Mr Cain to provide advice either in person or by telephone. (d) Mr Cain must provide the name and contact details of the proposed Supervisor to the Nursing and Midwifery Council for approval. (e) Mr Cain is to be responsible for all costs associated with the supervision arrangement. (f) Mr Cain is to ensure that: (i) The Supervisor is given a copy of Health Care Complaints Commission v Cain [2017] NSWCATOD 131; Health Care Complaints Commission v Cain (No 2) [2017] NSWCATOD 171 (the Tribunal decisions). (ii) He and the Supervisor meet on a monthly basis for at least one hour, the first meeting to occur within one month of being advised by the Council that the nominated supervisor has been approved. (iii) Each meeting is to include (but is not limited to): an inspection of records kept in the course of his practice; discussion of the various legislative and regulatory requirements concerning medical record-keeping standards and attendant on proper medical practice; and a review of work progress over the previous month with a focus on the various concerns raised by the Tribunal decisions. (iv) At each meeting, the Supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council. (v) The Supervisor forwards to the Council, on a monthly basis a Supervision Report in a format prescribed or approved by the Council. (vi) The Supervisor is authorised to inform the Council immediately if there is any concern in relation to Mr Cain's compliance with the supervision requirements, any other matters of concern, or if the supervisor relationship ceases. (vii) In the event that the Supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship. (3) Whilst Mr Cain's principal place of practice is New South Wales, the Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). (4) Whilst Mr Cain's principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply, and accordingly in those circumstances a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia. (5) Mr Cain must pay 75% of the costs of the Health Care Complaints Commission, as agreed or assessed. Catchwords: PROFESSIONS AND TRADES — health practitioner — whether registration of practitioner should be suspended COSTS — principles governing awarding costs under Health Practitioner Regulation National Law (NSW) Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Arian v Nguyen [2001] NSWCA 5 Health Care Complaints Commission v Cain NSWCATOD 131 [2017] Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 NSW Bar Association v Meakes [2006] NSWCA 340 NSW v Stanley [2007] NSWCA 330 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Category: Consequential orders (other than Costs) Parties: Health Care Complaints Commission (Applicant) David Cain (Respondent) Representation: Counsel: S Maybury (Applicant) P Robertson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) NSW Nurses Association (Respondent) File Number(s): 2016/00378804 Publication restriction: Non publication order applies in respect of Patient A and Medical Practioner A. REASONS FOR DECISION 1. Registered nurse David Cain has been found guilty of unsatisfactory and professional misconduct: Health Care Complaints Commission v Cain NSWCATOD 131 [2017]. These reasons address whether protective orders should be made in respect of Mr Cain and, if so, the appropriate order(s). They should be read in conjunction with our previous decision. 2. The parties agree that as a consequence of the finding of unsatisfactory and professional misconduct, the discretion to make protective orders in respect of Mr Cain should be exercised. The issue in dispute is the form of orders. The Health Care Complaints Commission (the Commission) urges the Tribunal to suspend Mr Cain's registration, issue a reprimand, and impose conditions on his registration, including that he work under supervision and not work in solo practice. Mr Cain opposes the making of a suspension order but agrees that a reprimand and a condition requiring that he work under supervision are appropriate orders. 3. After conducting a "first stage hearing", we invited the parties to comment on whether it is appropriate to determine the outstanding issues, namely, the form of protective orders and costs, without an oral hearing, as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). Both parties agreed with that proposed course. Given that each party was represented and a narrow range of issues remain to be determined, we concluded that the issue of the form of protective orders can be adequately determined without an oral hearing and on the basis of the submissions and material provided by the parties. In exercising the power to dispense with an oral hearing, we took into account the obligation imposed by s 36 (1) of the Act to seek to give effect to the guiding principle: the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. 4. For the reasons that follow, we have decided not to suspend Mr Cain's registration but to issue a reprimand, and impose conditions on his registration. Power to make protective orders 1. Where a complaint made under the Health Practitioner Regulation National Law (NSW) (the National Law) is proven or admitted, the Tribunal may exercise any of the powers in Subdiv 6 of Pt 8 of the National Law. They include the powers to caution, reprimand, impose conditions on a practitioner's registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course. In addition, if satisfied that the practitioner is guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration: s 149C(1)(b) of the National Law. 2. The National Law directs that, in exercising the power conferred by Subdiv 6 of Pt 8, the paramount consideration is the protection of the health and safety of the public: s 3A. While the health and safety of the public is the paramount consideration, the jurisdiction exercised by the Tribunal is protective not punitive. Any order designed to protect the public from a repetition of the proven or the admitted conduct the subject of the complaint, requires an assessment of the seriousness of that conduct, the likelihood that it will be repeated, and the nature and extent of any justifiably apprehended harm that might be caused if it were to be repeated. 3. A decision about whether the power conferred by Subdiv 6 of Pt 8 should be exercised 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: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34]. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]. 4. The authorities have consistently emphasised that the object of the protection of the public extends beyond the protection of the public from the apprehended harm that might be caused by the subject practitioner and extends to other public interest considerations. These include general deterrence and the maintenance of public confidence in the profession. See Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA (with whom Basten and Emmett JJA agreed); Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] per Basten JA. Nature of Mr Cain's practice 1. Before considering the submissions made by the parties, it is necessary to examine the available material about Mr Cain's practice at the time of and following the conduct that we found constituted professional misconduct. 2. Mr Cain has held registration as a nurse since 1973. He is a credentialed mental health nurse with the Australian College of Mental Health Nurses. He holds a Master of Arts (Psychoanalytical Studies) from Deakin University. For over two decades he has held senior nursing roles in the private and public sector, primarily in the field of mental health. Since 2010 he has worked exclusively in private practice in a solo capacity. The conduct the subject of the complaint referred by the Commission to the NCAT occurred between May 2009 and August 2011. 3. The conduct found to constitute professional misconduct related to Mr Cain's role in the care and treatment of Patient A, who died in August 2011 as result of "multiple drug toxicity". The conduct found to amount to professional misconduct included: 1. Keeping "demonstrably inadequate" records in respect of Patient A. 2. Failing to provide adequate care and treatment by providing the drug Stilnox to Patient A on numerous occasions without assessing her condition. 3. Failing to report to and consult with Patient A's GP about her progress, including the fact that she had consumed a full box of Stilnox in a 24-hour period on two occasions. 4. Failing to create and implement a treatment plan for Patient A. 1. We concluded at [142]: This is not a case of an occasional transgression or failure to comply with technical or procedural rules. Cumulatively, the established particulars were objectively serious and repeated over an extended period. 1. Throughout the period Patient A was in his care, Mr Cain consulted with a credentialed mental health nurse and psychotherapist, Mr Stephen Carroll, and a psychiatrist, Dr Hany Samir. Mr Cain described the nature of that arrangement as "patient review and supervision", whereby he would seek views and guidance from Dr Samir and Mr Carroll, about individual patients. Each provided references in support of Mr Cain. 2. Dr Samir wrote that Mr Cain was a good and decent person who was dedicated to his patients. In his opinion, Mr Cain's skill as a therapist is of a high standard. 3. Mr Carroll echoed Dr Samir's opinion. He stated that Mr Cain was clinically "very competent", always put his work and patients first and was known for his preparedness to take on challenging and complex patients. He wrote that during their supervision sessions Mr Cain had often discussed Patient A, who he recalled as being a "highly complex" patient. He wrote that Mr Cain was deeply affected by Patient A's death and had discussed with him the shortcomings in his treatment plan and record keeping "omissions". Mr Carroll wrote that after reviewing Mr Cain's case notes kept in relation to Patient A, he made a number of recommendations about his record keeping practices and reliance on SMS as a means of communicating with Patient A . In his opinion, the arrangement whereby Mr Cain held and provided Stilnox to Patient A was an error and "will not continue". He wrote that if Mr Cain were to be deregistered it would be "huge loss" to the nursing profession and his patients. 4. In these proceedings Mr Cain explained that the supervision provided by Dr Samir and Mr Carroll throughout the period Patient A was in his care, was in the nature of general guidance about individuals patients and was not direct supervision of his practice. He conceded that over the period Patient A was in his care, he lost objectivity, notwithstanding that one of the reasons for undertaking supervision was to assist him to maintain objectivity. 5. He stated that since Patient A's death he has taken a number of steps to improve his practice, including inviting constructive criticism and submitting his clinical notes to Mr Carroll for feedback. Should Mr Cain's registration be suspended? 1. A central issue in dispute is whether, as the Commission urges, an order suspending Mr Cain's registration should be made. The Commission contends that a period of three months suspension is appropriate. 2. As the Commission points out, a suspension order sends a powerful message to the health profession of the dangers of transgressing proper professional standards. While the considerations are finely balanced we have nonetheless decided not to suspend Mr Cain's registration but instead to issue a reprimand and to impose strict conditions on Mr Cain's registration. In our view, these orders in combination serve the objective of protecting the public and deterring other practitioners from departing from the proper standards of practice. At the same time, in our view they are measured and proportionate. Should a condition be imposed prohibiting Mr Cain from working in solo practice? 1. The Commission seeks the imposition of a number of conditions on Mr Cain's registration, including that he be prohibited from working in solo practice. The Commission contends that working in isolation with a limited support network contributed to the difficulties Mr Cain confronted with respect to the care and management of Patient A. 2. Mr Cain opposes the proposed prohibition and contends it will result in the closure of his practice in which he cares for 30, mostly long term patients. Citing NSW Bar Association v Meakes at [113], Mr Cain argues that the proposed order would have more serious consequences than is reasonably necessary to protect the public. He points out, as acknowledged by Ms Ford, the Commission's expert, that he is remorseful, has accepted responsibility for his conduct and taken measures to address the shortcomings in his practice. In addition, he points out that despite being in private practice as a psychotherapist since 1996, he has not previously been the subject of complaints. 3. Poor record keeping and the lack of a treatment plan contributed in no small measure to Mr Cain's failure to recognise that Patient A's Stilnox use had spiralled out of control in the six months before her death. We accept that Mr Cain is contrite and accepts responsibility for the admitted or proven conduct the subject of the Complaint. Nonetheless, despite acknowledging that his record keeping and other aspects of his practice were inadequate, Mr Cain has failed to provide any firm evidence to indicate that these issues have been addressed and adequate safeguards are now in place. 4. For these reasons, despite his obvious dedication to his patients together with the absence of any other complaints, we have decided that the protection of the public necessitates the imposition of a condition on Mr Cain's registration that he not in work in solo practice for a period of 12 months or for any further period determined as appropriate by the Council of the Nursing and Midwifery Council (the Council). To allow arrangements to be made in respect of his patients, this condition will not come into effect until three months from the date of this decision, or an earlier date as determined by Mr Cain. Should conditions be imposed prohibiting Mr Cain from working as an agency nurse or the nurse in charge? 1. The Commission seeks the following additional conditions on Mr Cain's registration, namely, that Mr Cain not: 1. engage with an agency for the purpose of nursing; 2. be in charge, have supervisory or delegation responsibilities; or 3. work as a sole practitioner on any shift, ward or unit. 1. There is no evidence to suggest that in the many years Mr Cain worked in health care facilities in the public and private sectors, he was, or was suspected of, engaging in conduct of the type that was the subject of the Complaint. We think it likely that a significant contributing factor to that conduct was Mr Cain's failure to develop and implement proper record keeping systems that were suited to solo practice. There is no evidence to suggest that while working in an institutional environment Mr Cain failed to comply with the institution's record keeping systems and protocols. We are not satisfied that the protection of the public requires Mr Cain to be prohibited from working as an agency nurse or nurse in charge. Should a condition be imposed requiring Mr Cain to submit to supervision? 1. The parties agree that a condition requiring that Mr Cain to work under supervision but propose different formulations of a supervision condition. The only material difference between their respective proposals, is that the Commission proposes an additional level of supervisory oversight. (See, Commission's submissions, 11 September 2017, Annexure A, proposed order 7.) The Commission did not explain the basis for this proposal. We consider it to be cumbersome and unwarranted. 2. With some minor amendments, we adopt the form of orders proposed by Mr Cain. To allow the necessary arrangements to be put in place to implement this condition, this condition will not come into effect until three months from the date of this decision, or such earlier date as determined by Mr Cain. Should the remainder of the conditions proposed by the Commission be imposed? 1. Mr Cain does not object to the balance of the orders sought by the Commission. (See, Commission's submissions 11 September 2017, Annexure A, proposed orders 8, 9, 10, 11, 12). We consider the proposed orders to be measured and appropriate. Orders 1. Mr Cain is reprimanded. 2. The following conditions are imposed on Mr Cain's registration: 1. Mr Cain is not to engage in solo practice for a period of 12 months or for any further period determined as appropriate by the Council of the Nursing and Midwifery Council (the Council). This condition comes into effect in three months from the date of this decision. 2. The following supervisory conditions will come into effect in three months from the date of this decision or such earlier date as determined by Mr Cain. 3. Mr Cain may only practise as a registered nurse under the supervision of a registered nurse (Division 1) who does not have conditions on his/her practice and is approved by the Council (the Supervisor). Supervision may be remote, that is, where the Supervisor is: 1. On site, but not working in close proximity to Mr Cain; or 2. Off site or working remotely from Mr Cain. At all times the Supervisor must be accessible to Mr Cain to provide advice either in person or by telephone. 1. Mr Cain must provide the name and contact details of the proposed Supervisor to the Nursing and Midwifery Council for approval. 2. Mr Cain is to be responsible for all costs associated with the supervision arrangement. 3. (f) Mr Cain is to ensure that: 1. The Supervisor is given a copy of Health Care Complaints Commission v Cain [2017] NSWCATOD 131; Health Care Complaints Commission v Cain (No 2) [2017] NSWCATOD 171 (the Tribunal decisions). 2. He and the Supervisor meet on a monthly basis for at least one hour, the first meeting to occur within one month of being advised by the Council that the nominated supervisor has been approved. 3. Each meeting is to include (but is not limited to): an inspection of records kept in the course of his practice; discussion of the various legislative and regulatory requirements concerning medical record-keeping standards and attendant on proper medical practice; and a review of work progress over the previous month with a focus on the various concerns raised by the Tribunal decisions. 4. At each meeting, the Supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council. 5. The Supervisor forwards to the Council, on a monthly basis a Supervision Report in a format prescribed or approved by the Council. 6. The Supervisor is authorised to inform the Council immediately if there is any concern in relation to Mr Cain's compliance with the supervision requirements, any other matters of concern, or if the supervisor relationship ceases. 7. In the event that the Supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship. 1. Whilst Mr Cain's principal place of practice is New South Wales, the Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 2. Whilst Mr Cain's principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply, and accordingly in those circumstances a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia. Should Mr Cain be required to pay the Commission's costs? 1. The Commission seeks an order that Mr Cain pay its costs of the proceedings and submits that there is no basis to depart from the general "rule" that costs follow the event. 2. Mr Cain opposes the Commission's application and argues that the preferable order is to require each party to bear their own costs. In support he points to: (i) his actions in admitting prior to the hearing many of the subjects of the Complaint, namely Particulars 2, 4, 6(a), 6(b), 6(c) and 7 of Complaint 1, and (ii) the Commission's failure to establish a significant proportion of the Complaint, namely Particulars 1, 3, 5 and 6(d) of Complaint 1. 3. The Commission disputes Mr Cain's claim that he admitted to much of the conduct the subject of the Complaint, pointing out that many "admissions" were qualified and unclear. Consideration 1. 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]. The presumption that the successful party is entitled to receive their costs will generally only be 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]; Arian v Nguyen [2001] NSWCA 5 at [36]. It is for the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]. 2. In Philipiah the Court of Appeal considered the factors that "might militate against the recovery by the Commission of all of its costs" and listed at [42] the following examples: [O]ne 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. 1. While Mr Cain was ultimately found guilty of professional misconduct, a not insignificant proportion of the conduct particularised in the Complaint was not found proven. This is hardly surprising given that the Complaint rested on conduct which occurred over six years ago, a key witness was deceased and there was a dearth of documentary material. While there is no suggestion that the Commission engaged in any disentitling conduct, given its failure to establish a significant number of the disputed particulars we have decided that this is an appropriate case to exercise the discretion to depart from the usual "rule". We have decided that Mr Cain should be required to pay only 75 per cent of the Commission'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 Amendments 09 March 2018 - Obvious error corrected in order (2)(a) 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: 09 March 2018