Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Chester [2018] NSWCATOD 68 Hearing dates: On the Papers Date of orders: 11 May 2018 Decision date: 11 May 2018 Jurisdiction: Occupational Division Before: O Shub, Principal member V Gibson, Senior Member A Currie, Senior Member P Macniell, General Member Decision: Leave is granted to the Applicant to withdraw the complaint against the respondent. Catchwords: Registered Nurse, improper or unethical conduct, failure to maintain ethical boundaries, notifiable conduct, surrender of registration, withdrawal of complaint Legislation Cited: Health Care Complaints Act 1993; Health Practitioner Regulation National Law (NSW). Cases Cited: Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street [2008] HCA 36; Health Care Complaints Commission v BQB [2014] NSWCATOD 157. Category: Principal judgment Parties: Health Care Complaints Commission (HCCC) (Applicant) Ms Juliet Sarah Chester (Respondent) File Number(s): 2017/0043555 Publication restriction: The name and details of Patient A are suppressed. Reasons for decision Background/History 1. The matter consists of a complaint brought by the Applicant having consulted with the Nursing and Midwifery Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and Section 145A of the Health Practitioner Regulation National Law (NSW) (The National Law) pursuant to which the Applicant complains that the respondent being a nurse registered under the National Law is guilty of unsatisfactory professional conduct under section 139B(1)(a) and or 139B(1)(l) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgement possessed or care exercised by her in the practice of nursing is significantly below the standard reasonably expected of an equivalent level of training or experience. 2. Engaged in improper or unethical conduct relating to the practise or purported practise of nursing. 3. The Applicant states that each of the particulars 1(a)-(h) of the complaint set out below in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together a finding of unsatisfactory professional conduct is justified. Background to Complaint 1 1. Complaint 1 concerns Ms Chester's failure to maintain personal boundaries with Patient A, in that she entered into a friendship with Patient A after her discharge from hospital, and engaged in a lengthy and personal correspondence with her, visited Patient A when she was re-admitted to the facility in 2014 (at a time the practitioner no longer worked there), and made a number of highly personal and inappropriate disclosures to Patient A. Background to Complaint 2 1. Complaint 2 concerns the Respondent's failure to notify the National Agency either on or any time after the 27 August 2014, after forming a reasonable belief that Nurse Practitioner A had engaged in notifiable conduct by engaging in a personal relationship with Patient A, contrary to section 141(2) of the National Law. Evidence in Respect of the Complaint 1. The tribunal was put in possession of two volumes of documents marked volume 1 of 2 and volume 2 of 2 with tabs numbered from 1 - 29. In addition, the tribunal was put in possession of the Statement and attachments to the statement of the respondent dated 16 March 2015, an application for disciplinary findings and orders filed on 10 February 2017, a reply to application for disciplinary findings dated 29 March 2017, an application for stay or interim order addressed to the tribunal dated 1 May 2017, a reply of the Applicant dated 14 September 2017, Affidavit of the Applicant dated 1 February 2018, and a draft consent order. Background to Complaint 3 1. Complaint 3 is based on the particulars of Complaints 1 and 2 and alleges Professional Misconduct. Issue for Determination 1. The issue for determination by the Tribunal is whether to grant an application by the Applicant to withdraw the complaint against the Respondent. 2. The Tribunal considered an earlier application for stay of interim order made by the ADCJ Boland in the matter when the Appellant (the Respondent in this matter) sought an order against the Respondent (Complainant in this matter) as follows: 1. The filing of a complaint in the Tribunal by the Health Care Complaints Commission is invalid or in the alternative that the matter be referred to the Supreme Court of New South Wales on a matter of law. 2. Leave granted to the Health Care Complaints Commission (HCCC) to make an oral application to withdraw the complaint and application for disciplinary findings and orders filed 20 February 2017. 3. The Tribunal consents to the Complaint in respect of Ms JSC referred to the Tribunal by the HCCC on 10th February 2017 being withdrawn under clause 12 of Schedule 5D of the Health Practitioner Regulations National Law. 4. The application for disciplinary order filed by the HCCC on 10th February 2017 is dismissed under section 55 of the Civil and Administrative Tribunal Act 2013 (NSW). 5. That there be no order for costs. 1. The grounds for the application were the following: 1. Ms Juliet Chester ("Ms Chester") admits that she made available her details to Patient A (who is identified elsewhere in these proceedings but whose identity is for the purpose of these proceedings suppressed). 2. The purpose of making the information available was to assist patient A with her studies so there was no other motivation. 3. Between September 2013 and September 2014 there is no evidence submitted by the HCCC in respect of its allegations of inappropriate contact during this period. All that there was by way of communication was in respect of the course which Patient A was undertaking. Ms Chester realised that having reviewed a number of on line courses on ethics, it was not correct to have maintained this contact and would not repeat this as there is always the possibility of some harm occurring. She has not renewed her registration as a nurse and has no intention of so doing. 1. It is only after the intervention of a third party (Practitioner A) whom the tribunal has found guilty of professional misconduct in other proceedings, does the HCCC draw attention to the complaints now before the Tribunal. 2. Ms Chester was requested to make a statement as to her knowledge of the involvement between Patient A and Practitioner A. 3. She was also asked to agree to release the e-mails between her and Patient A as part of the investigation or process of discovery. The HCCC was able to subpoena these documents as part of its investigation and therefore to have refused to release these would have brought about the same end result; ie that the e-mails and statement (either in written or oral form) would be in the hands of the tribunal under a subpoena. 4. Maria Carmona-Dawes wrote to Ms Chester on 17th December 2015. Ms Dawes quoted from the HEALTH CARE COMPLAINTS ACT 1993 – SECT 20A falls under the heading Duty of Commission to review assessment of complaint. The clause stated: At any time while dealing with a complaint (including during or at the end of the investigation of a complaint) and after consultation with the appropriate professional council, the Commission may revise its assessment of the complaint. Ms Chester was not the subject of the complaint by Patient A and no statement has been produced to date by Patient A making a complaint against Ms Chester. It is very clear that the clause refers to the investigation of the complaint by Patient A against Practitioner A. It is not intended to bring about another complaint as a result of evidence supplied to the HCCC. If this were to be the case then the clause would clearly indicate this to be the case. 1. Ms Carmona-Dawes clearly misled herself on the point of law, in addition to choosing to ignore the principles established in Harman v Secretary of State for the Home Department [1983] 1 AC 280. 2. The Harman undertaking states Information that is not in the public domain and was obtained by discovery or Subpoena cannot be used for a collateral or ulterior purpose unrelated to the proceedings in which the information was obtained, it is a substantive legal obligation owed to the party who produces the documents and to the court. 3. Lord Diplock said at paragraph 300 "The use of discovery involves an inroad, in the interest of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides … through its rules about abuse of process and contempt of court." 4. This is confirmed by the High Court of Australia in Hearne v Street [2008] HCA 36 in the judgement of Gleeson CJ at paragraph 90 "Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than for which it was given unless it is received into evidence". 5. Ms Carmona Dawes, in breach of the rule, disclosed to the Nursing and Midwifery Council details of the e-mails and the statement. 6. There has been moreover excessive delay in bringing the matter before the Tribunal. HEALTH CARE COMPLAINTS ACT 1993 – SECT 22 states Time for completion of assessment The Commission must carry out its assessment of a complaint: (a) Within 60 days after receiving the complaint, or (b) If, under section 21, the Commission has required the complainant to provide further particulars of the complaint, within 60 days after the date by which the Commission specified that those particulars were to be provided. The complaint against Ms Chester has come to the Tribunal some fourteen months after the initial letter from Ms Carmona Dawes. Proceedings were filed on 10th February 2017 very shortly after the conviction of Practitioner A on 3rd February 2017. 1. It may be inferred by the Tribunal that the last part of Gleeson CJ's judgement quoted above "unless it is received into evidence" will be relied upon by the HCCC to obviate the Harman principle, as the HCCC anticipated Ms Chester's statement being used in the Tribunal Hearing against Practitioner A along with the e-mails; however the breach of the principle had already occurred when the information was passed to the Nurses and Midwifery Council. The HCCC should provide authority for this to be done either under the terms of the Health Care Complaints Act or the National Law. The HCCC has shown no cause to the Tribunal as to the cause of the delay in breaking its own rules. 2. It is submitted therefore that its prosecution is invalid for the reasons stated above and in the alternative that it should be referred to the Supreme Court at the Health Care Complaint Commission's own cost. 3. It is also contended that the Health Care Complaints Commission misled itself with regards to the duty to report. The guidelines state that "As a practitioner during the course of practising your health profession or as an employer you reasonably believe that a practitioner has placed the public at risk of harm". It is clearly the case that Ms Chester did not obtain the information during the course of practising her health profession but meeting someone as a private person to discuss another person's academic progress. The interpretation placed by the HCCC on this prohibition if correct would permit an impossibly wide interpretation of the law. 1. The application by the Appellant was dismissed by order of J Milbank, Senior Member, on 23 June 2017 for reasons which are not relevant to this application. Consideration and Decision 1. The matter was set down for hearing on 7 and 8 December but, on 19 September 2017, an application filed by the Respondent seeking that the complaint be struck out was listed before the Tribunal. The Application for strike out was withdrawn however; a further oral application was made by the Respondent for the hearing dates to be vacated. The basis for the application was the poor health of the respondent and the application was supported by a letter of Dr Cornelia Szenczy dated 15 September 2017. In light of the information contained in the letter of Dr Szenczy, the application to vacate the dates was granted and the matter was listed for a further directions hearing on 13 February 2018. 2. By letter received 19 December 2017 from Mr Peter Anderson, the Respondent's legal representative, the Respondent made representations to the Commission for the withdrawal of the complaint on the basis of the Respondent's medical conditions. The basis of the request by the Respondent's solicitor is the following: 1. A request was made for the withdrawal on medical grounds and an application for an order that the complaint be terminated under clause 12 schedule 5D of the National Law or dismissed under section 55 of the CAT Act Clause 12 provides as follows: Certain complaints may not be heard [NSW] (1) A committee or the Tribunal may decide not to conduct an enquiry, or at any time to terminate an inquiry or appeal, if— (a) Any of the following circumstances apply— (i) A complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) The person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) The complaint before the Committee or the Tribunal is withdrawn; and (b) In the opinion of the Committee or the Tribunal it is not in the public interest for the injury or appeal to continue. (2) A committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies. 1. The representations continued by referring to the case of Health Care Complaints Commission v BQB [2014] NSWCATOD 157 and the judgement of ADCJ Boland with reference to the following statement in the decision: 28 Dr Westmore then canvasses the consequences that may follow a finding of the Tribunal and in [6] of his letter he notes "If the Tribunal made finding in relation to the complaints and decided to impose conditions on her registration you ask what sort of conditions, if any, should be imposed to best manage any psychiatric problems she currently suffers. I am of the view that [the practitioner] is totally and permanently disabled in terms of being able to work in any capacity. She should not be working as a nurse at all, because of the nature and severity of her psychiatric and psychological problems. 1. It is evident from Dr Cornella Szenczy's medical opinion that Ms Chester has no prospects of any sort of work let alone working as a nurse or in any form of health care. 2. ADCJ Boland went on to say 30 I have given very considerable weight to, and accept, the opinions expressed by Dr Westmore. They are cogent and relevant to this application. 31 In balancing the relevant factors I have taken into account s 3A of the National Law. That is a New South Wales provision and is in the following terms: In exercising a function under a New South Wales provision the protection of health and safety of the public must be the paramount consideration. 32 In this case I am completely satisfied that the public are protected by reason of two factors. First, Ms BQB has, of her own volition, surrendered her registration and secondly she has signed a statutory declaration in which she deposes that she does not intend to seek to be registered again. I have also taken into account Dr Westmore's opinion that, sadly, by reason of her mental illness for which she has much sympathy from me, she is unlikely to be able to work again in the capacity of a registered nurse. 1. The Tribunal was provided with a letter from Dr Cornelia Szenczy dated 8 December 2017 setting out the health condition of the respondent. It is clear from the report of Dr Szenczy that the Respondent's health is extremely poor, and that she has no real prospect of being able to work. 2. The tribunal was also provided with a statutory declaration signed by the Respondent in terms of which she confirms that she voluntarily gave up her nursing registration in May 2016 owing to ongoing progressively deteriorating health problems. She stated in her statutory declaration that she has no intention of re-applying to be registered as a nurse in the future or to seek employment in any healthcare capacity in any healthcare setting whether it be paid, unpaid as a volunteer, or as a self-employed practitioner. She also undertook not to re-apply for any nursing registration or to seek employment in any health care capacity in any healthcare setting whether it be paid, as an unpaid volunteer or as a self-employed health practitioner. 3. The parties have sought that the matter be dealt with on the papers instead of being dealt with at a hearing and the Tribunal was comfortably satisfied that it was in order to do so. 4. The applicant seeks leave to withdraw the complaint against the respondent. The Tribunal is comfortably satisfied in all the circumstances based on the medical condition of the respondent, her age, the statutory declaration pursuant to which she undertakes not to re-apply for registration or to seek employment in any health care related capacity and the fact that she is currently not registered that it is appropriate to allow the applicant to withdraw the application against the respondent. 5. No orders for costs having been sought, the Tribunal makes the following order: Orders 1. Leave is granted to the Applicant to withdraw the complaint against the respondent. ******** 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: 11 May 2018