Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169 Hearing dates: 5, 6 September 2018 Date of orders: 12 October 2018 Decision date: 12 October 2018 Jurisdiction: Occupational Division Before: J Millbank, Senior Member A Bizzotto, Senior Member L Gregory, Senior Member P Hooker, General Member Decision: (1) Pursuant to findings of professional misconduct and current lack of competence to practise, the practitioner's registration as a nurse is cancelled under s 149C(1)(a) and (b) of the National Law. (2) Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). (3) Pursuant to cl 7(1)(iv) Sch 5D, the file of this matter to be sealed by the Registry and only disclosed for the purpose of these or related legal proceedings. The Tribunal directs that no evidence of either party relied on in these proceedings is to be published to any entity or person. Catchwords: TRADES AND PROFESSIONS ─ nursing ─ impairment ─ opiate dependence ─ repeated breach of conditions Legislation Cited: Health Practitioner Regulation National Law NSW 2009 (NSW) ('The National Law') ss 5; 139; 139B(1)(c); 139E; Sch 5D cl 7, 13 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 Caladine v HCCC [2007] NSWCA 362 Grant v HCCC [2003] NSWCA 73 HCCC v Astor-Finn [2016] NSWCATOD 73 HCCC v BXD (No 1) [2015] NSWCATOD 134 HCCC v BXD (No 2) [2015] NSWCATOD 135 HCCC v Do [2014] NSWCA 307 HCCC v Fraser [2014] NSWCATOD 29 HCCC v Karalasingham [2007] NSWCA 267 HCCC v Litchfield (1997) 41 NSWLR 630 HCCC v McHue (NSMT, unreported, 14 December 2007) HCCC v Perroux [2011] NSWDC 99 HCCC v Philipiah [2013] NSWCA 342 Lindsay v HCCC [2010] NSWCA 194 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Re Tan Than Le (NSWMT, unreported, 20 September 2001) Sabag v HCCC [2001] NSWCA 411 Texts Cited: Nursing and Midwifery Council of NSW, Urine and Drug Testing Policy (2011, 2017) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Rachael Bainbridge (Respondent) Representation: Counsel: J Neal, Solicitor Advocate (Applicant) Respondent Self-Represented Solicitors: Health Care Complaints Commission (Applicant) File Number(s): 2018/00125739 Publication restriction: Pursuant to Cl 7(1)(b) (iv) the tribunal directs the file of this matter is to be sealed by the Registry and only disclosed to the parties for the purpose of these or related legal proceedings. The Tribunal directs that no evidence of either party relied on in these proceedings is to be published to any entity or person. REASONS FOR DECISION Background 1. Ms Bainbridge has been a registered nurse since 1996. In 2012, following a series of personal stressors, Ms Bainbridge began to misuse Endone (oxycodone), a prescription opiate. She was ultimately detected in this use in late 2013, leading to termination of her employment in March 2014, and a criminal charge which was diverted with no conviction recorded by virtue of s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) in September 2015. 2. On 26 November 2013 the practitioner self-notified the Nursing and Midwifery Council ('the Council') in relation to her dependence upon and misuse of opiates. On 7 April 2014 conditions were first imposed upon the practitioner's registration following her referral to an impaired registrant's panel, requiring among other things, a regime of random urine drug testing ('UDT'), that she not possess or handle Schedule 8 and 4D drugs, nor self-administer any such drugs except under medical direction, that she establish and maintain therapeutic relationships with treating practitioners, and engage in a mentoring relationship with an approved mentor. 3. This matter has a long history thereafter, in which the practitioner struggled to comply with the above conditions, including a series of both inadvertent and overt breaches. In total four impaired registrant panels have been held from March 2014 to June 2016, and five s 150 proceedings held between 2015 and 2017. 4. On 18 April 2016 s 150 proceedings were held as a result of Ms Bainbridge returning a positive UDT result for oxycodone, resulting in the condition requiring UDT being made a critical impairment condition. 5. On 12 January 2017 s 150 proceedings were held as a result of a positive UDT result for codeine. This resulted in referral of a complaint to the HCCC. 6. On 18 April 2017 further s 150 proceedings were held as a result of a positive UDT result for oxycodone, and Ms Bainbridge was suspended from practice. 7. On 20 April 2018 an application was made by the HCCC to the Tribunal pursuant to ss 5, 139B(1)(c), and s 139 of the National Law. 8. Complaint 1 is of unsatisfactory professional conduct by virtue of contravention of registration conditions. This Complaint comprises eight particulars concerning: (1) the self-administration of Sch 8 substances on two occasions in February 2016 and March 2017 as evidenced by positive UDT results and (2) hair testing results; (3) the use of Sch 4D drugs in 2014; (4) failure to notify the Council and/or failing to provide an explanation in writing of a missed test on 12 occasions from July 2014 to June 2015; (5) late payment for UDT test results on 14 occasions between August 2014 and January 2016; (6) late payment in breach of a critical impairment condition on 11 occasions between July and November 2016; (7) failing to submit a mentoring plan that met Council standards between September 2014 and June 2015 and (8) failing to engage in a mentoring relationship with an approved mentor between September 2016 and April 2017. Much of this complaint was conceded by the practitioner. 9. Complaint 2 is of professional misconduct, in that the conduct in Complaint 1 is sufficiently serious to meet such standard. 10. Complaint 3 is that the practitioner has an impairment within the meaning of the National Law in that she suffers from an opiate dependency. 11. Complaint 4 is that by virtue of her opiate dependency the practitioner is not competent to practise within the meaning of s 139 of the National Law. 12. Prior to the hearing, Ms Bainbridge sought an order that her name be supressed. At directions on 11 May 2018 and again on 27 August 2018 the Tribunal made interim orders prohibiting disclosure or publication of the respondent's name, with the final issue to be determined at the hearing. 13. The main issues requiring resolution are: * whether the proved conduct amounts to professional misconduct; * whether the practitioner suffers from an impairment and relatedly, lacks capacity to practice, and, once findings are made on the above; * the appropriate protective orders; and * whether the practitioner's application for non-disclosure orders suppressing her name should be granted. Relevant Law 1. The Tribunal must be independently satisfied that the complaints are made out to the civil standard in Briginshaw before then proceeding to determine the appropriate protective orders. 2. The Tribunal is required to make findings for each particular if they are not conceded in writing: s 165H National Law. 3. The professional members of the Tribunal are entitled to apply their own specialist expertise to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: HCCC v Fraser [2014] NSWCATOD 29 at [238]. 4. 'Unsatisfactory professional conduct' is defined in s 139B(1) of the National Law as including: (c) A contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. 1. 'Professional misconduct' is defined in section 139E of the National Law as: (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 determining the question of professional misconduct, the Tribunal must assess whether 'when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration': HCCC v Perroux [2011] NSWDC 99 at [18]. This level of seriousness requires more than 'mere incompetence', and can include a deliberate departure from accepted standards, indifference to them, or serious negligence: HCCC v BXD (No 1) [2015] NSWCATOD 134 at [37], quoting Kirby J in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200. 2. The Tribunal has a wide discretion relating to disposition of a complaint establishing professional misconduct. The circumstances of the particular case will determine the appropriate disposition: HCCC v Karalasingham [2007] NSWCA 267 at [67] (Basten JA). Whether the offence(s) are sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment: Sabag v HCCC [2001] NSWCA 411 at [82]. 3. Section 5 of the National Law defines impairment as 'a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect…the person's capacity to practise the profession'. 4. In determining whether a practitioner has an impairment within the meaning of s 5 it is necessary to consider whether she is currently impaired: Caladine v HCCC [2007] NSWCA 362 at [11] per Beazley JA. Currency of impairment may be demonstrated by evidence of deficiency at a particular time combined with the absence of evidence of any improvement since that time: HCCC v Astor-Finn [2016] NSWCATOD 73 at [43]. 5. There is no requirement that the Tribunal make findings as to a particular diagnosis; the inquiry is directed towards whether the evidence demonstrates that a practitioner is afflicted by a condition that is detrimental or prejudicial to the orderly conduct of his or her mental or physical duties as a health practitioner: Grant v HCCC [2003] NSWCA 73 per Meagher JA [12]. 6. Under s 139 of the National Law a person is 'competent' to practise a health profession only if the person '(a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession.' 7. There is a close relationship between 'impairment' and 'competence', such that a finding of impairment may well lead to a finding of lack of competence, but whether it does so depends upon the factual context, including such considerations as the nature and likely duration of the impairment and the kind of practice carried on by the practitioner: Lindsay v HCCC [2010] NSWCA 194. 8. Section 149C(1) of the National law provides that, the Tribunal may suspend or cancel a practitioner's registration if it is satisfied that : (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or … 1. The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: HCCC v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. 2. The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions: HCCC v Do [2014] NSWCA 307 [35]. 3. As a general rule, costs of proceedings before the Tribunal follow the event: HCCC v Philipiah [2013] NSWCA 342 at [42]. 4. Schedule 5D, clause 7(1) of the National Law provides the Tribunal may (b) direct that all or any of the following matter are not to be published - (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence. 1. The power to suppress the name of a practitioner is one that has been exercised very sparingly by the Tribunal. In HCCC v BXD (No 2) [2015] NSWCATOD 135, A/DJ O'Connor stated at [25]: Disciplinary proceedings and disciplinary orders have as their ultimate purpose the protection of the public. The public has an interest in knowing whether a practitioner has been charged with a disciplinary offence, and of the outcome especially where it is adverse. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons. Publicity also serves that end. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence. Decisions also provide a marker of what is unacceptable to other members of the profession. Hearing and Evidence 1. The HCCC submitted two volumes of materials comprising a voluminous history of the various s 150 proceedings, and three further volumes of summonsed medical documentation from Ms Bainbridge's treating practitioners: Dr Manhood the practitioner's GP, Jason Scott her drug and alcohol counsellor and Taryn Stubbs her former psychologist. All three treating practitioners gave oral evidence by telephone. 2. Dr Russel Davies, a Council appointed psychiatrist who assessed and reviewed the practitioner on seven occasions between 2014 and 2018 as part of the Council processes, also gave evidence by telephone. 3. Ms Bainbridge gave evidence on her own behalf and represented herself at the hearing. 4. On the first day of the hearing the HCCC sought leave to amend the Complaint to add further particulars to the complaint of impairment, based upon the opinion of Dr Davies expressed in his most recent report. The practitioner objected on the basis that she had not been given notice of the additional matters and on the basis of relevance. 5. The Tribunal refused leave on the basis of both relevance and fairness. The additional particulars did not form part of the original factual matrix, nor did they arise from the practitioner's earlier or recent practise in health settings, or from the history of her compliance with the UDT process and conditions. Moreover, the Tribunal determined that the introduction of further particulars on the first day of the hearing involving an unrepresented respondent would be a breach of procedural fairness, as the practitioner had no time to prepare evidence in response to the new particulars nor seek advice on how to address them. 6. As will be explained further below it transpired after the conclusion of the hearing that the practitioner had not in fact been given notice of the additional matters raised in the opinion of Dr Davies at all, as the HCCC had served her with an incomplete draft of his report which did not include them. 7. Although Ms Bainbridge did not file a formal reply to the complaint, by email of 3 September 2018 sent to the HCCC, she made admissions to Complaint One particulars 1, 2, 3, 5-8, with some provisos concerning 7 and 8 discussed below. 8. At the hearing Ms Bainbridge frankly admitted that her conduct was unsatisfactory professional conduct. Specifically, she acknowledged taking Sch 8 and Sch 4 drugs on a number of occasions, failing UDT tests and paying for tests late. 9. The practitioner strenuously denied particular 4, concerning failure to notify and explain in writing missed UDT tests, on the basis that she had been assured by the relevant Council personnel that she could notify them by phone and that on occasions she had been granted an extension of time to provide documentation. Ms Bainbridge stated that 'there were a lot of hiccups with compliance in the beginning' and that she was in 'constant contact' with the Council in trying to ensure that she was complying. 10. The practitioner also denied sub-particular (f) of Complaint One, particular 4, concerning a test in February 2015 on the basis that the lab had issued documentation that mis-dated that test, and she had actually undertaken the test on the required day. 11. The Council Urine and Drug Testing Policy (2017 version in evidence) provides: 3.3 Absence from testing (a) Participants are required to advise the Council, in writing, at least five (5) business days before any anticipated absence (fax … or email … notifications are acceptable). Only under extraordinary circumstances will permission be given to abstain from testing on certain days on a routine basis. In those situations, participants may be required to undertake urine drug testing on the required days when the participant is available and also undergo an additional monthly hair drug test. b) Participants are required to provide evidence of absence within 10 working days (e.g, copies of boarding passes, hotel receipts or some other evidence). (c) Participants are not required to provide a urine sample on a public holiday. 3.4 Missed tests If a participant is aware that a test has been missed, the participant must immediately notify the Council and provide an explanation in writing. Explanations may be considered by the Council which may view the matter as a breach of conditions and recommend disciplinary action. 1. The practitioner was extensively questioned by the solicitor for the HCCC, and the Tribunal was taken to detailed files notes and records made by the Council concerning these various communications. The records indicate that the practitioner made contact by phone on the majority of occasions either on the same day or day following a missed test, and on the last two occasions sent a fax within a day or two. The dates of these tests all fall within the first year in which the practitioner was undertaking UDT. 2. The Council records indicate that Ms Bainbridge claimed to the Council in 2015 that the test in sub-particular (f) was mis-dated, and that she pursued the relevant laboratory for documentation in order to confirm this for a considerable period. 3. Ms Bainbridge's evidence was that that once the Council made it clear that compliance had to be strictly in accordance with the policy, ie in writing every time, then she did so. 4. Ms Bainbridge also gave evidence that she sought to comply with the mentoring conditions but had faced some difficulty first (particular 7) when her mentor's CV was not approved, and then later when an agreed mentor outside of her workplace setting was not approved (particular 8). 5. The Tribunal accepts Ms Bainbridge's account of the above incidents as truthful. 6. The evidence of all three treating practitioners was that Ms Bainbridge had sustained periods in which she was absent from treatment, and that she not infrequently cancelled and rebooked appointments. All attested that they had always experienced Ms Bainbridge as restrained and sober in their presence, had never seen her intoxicated and had never received reports from her that she had been affected by drugs while working as a nurse. 7. On the issue of impairment, the evidence of Dr Manhood and Dr Davies was that Ms Bainbridge has a current opiate dependency. 8. Dr Manhood has been the practitioner's GP for over 15 years. She characterised Ms Bainbridge as an excellent nurse and 'responsible practitioner' who is coping with considerable personal difficulties and stressors, including serious illness and death within her close family and attendant caring responsibilities, and extreme financial strain. 9. In answer to a question from the HCCC as to whether Ms Bainbridge was capable of practising safety, Dr Manhood opined that the practitioner needs some 'time out' currently, and that she would support a review and return to practise in 12 months or so. 10. Ms Stubbs, a private psychologist, saw the practitioner from 2013 to 2017, but ultimately terminated the therapeutic relationship because of a high number of missed appointments. The focus of Ms Stubbs' work with Ms Bainbridge was not around Ms Bainbridge's drug use, and Ms Stubbs had not treated Ms Bainbridge recently, so her evidence was of limited relevance. 11. Mr Scott is a registered nurse and drug and alcohol counsellor who has seen the practitioner since 2014. In July 2018 the practitioner disclosed to Mr Scott that she had recently used Endone on more than one occasion (Mr Scott subsequently reported this to Dr Manhood). 12. Mr Scott characterised the practitioner as 'misusing' opiates rather than 'dependent', because she had lengthy periods of abstinence interspersed with periodic relapses and did not exhibit physical withdrawal symptoms. Mr Scott stated, 'I honestly believe she doesn't want to use and is trying very hard and doing all the things she needs to do.' 13. Dr Manhood and Mr Scott both expressed the opinion that Ms Bainbridge was insightful, had made significant steps in her recovery and that she was, on the whole, improving in her health over the time that they had seen her. 14. Dr Davies, the Council appointed psychiatrist, characterised Ms Bainbridge's drug use as a 'maladaptive coping strategy'. His opinion was in accord with the treating practitioners in that he believed Ms Bainbridge to have insight and to have made progress in the time he had seen her. In his view the practitioner's pattern of periodic relapses at times of stress meant that the risk of relapse in periods of stress or conflict remained 'quite high'. Dr Davies' most recent report of 17 July 2018 indicated support for Ms Bainbridge to return to practise with conditions. 15. When the HCCC drew Dr Davies' attention to a relapse that had occurred since his recent report, Dr Davies stated that he would need to meet with Ms Bainbridge to understand the context of that incident before making any definitive revision to his view. In his opinion, the practitioner would need to maintain a period of abstinence for 12 months before he would feel 'confident' of her capacity to practise. 16. Ms Bainbridge stated that she was actively pursuing her own recovery. Ms Bainbridge admitted in response to a question from the Tribunal that she may have overstated the frequency and regularity of her contact with her treating practitioners to s 150 inquiries in 2016 and 2017. In her words, she had reported on her intention to engage in regular treatment, whereas the reality was that she 'didn't always get there'. She had, however, recently re-commenced seeing a former psychologist, and had an on-going plan for treatment with Mr Scott and Dr Manhood. 17. The practitioner gave evidence that she had never been under the influence of drugs while working and that her high tolerance for Endone meant that she could effectively function with no outward indication of use the following day. 18. Ms Bainbridge acknowledged that she had an ongoing dependence in the sense that she experienced periodic relapses, and candidly acknowledged that her longest period of abstinence was 10 months, with most periods around 6 months. Her recent use of Endone was a reaction to the stress of the forthcoming Tribunal process, but she was improving overall and had disclosed this recent use to Jason Scott. 19. At present Ms Bainbridge is the full-time caregiver of her mother and she stated that she is not seeking to return to nursing currently. She candidly acknowledged not feeling fit to practise at the present time. Submissions 1. The HCCC sought orders that the practitioner's registration be cancelled and that she not be permitted to apply for review of that order for a period of at least 12 months. The HCCC also sought its costs. 2. At the conclusion of the hearing, Ms Bainbridge's position was that she should be suspended from practice for 12 months, followed by continued UDT and/or hair testing conditions. 3. The practitioner also sought permanent non-publication orders supressing her name. Both the HCCC and the Tribunal sought to elicit the reasons for this application. In response, the practitioner stated that she was very concerned about so many matters that had been part of a confidential process for the past four years 'suddenly becoming public'. In several impaired registrant's panels and s 150 hearings the practitioner had disclosed highly personal family and health details that related to her Endone use as well as missed appointments. This was information which she had never anticipated becoming public. The practitioner was also concerned that the matter would affect her employment prospects and her ability to work with conditions, if 'everyone knew' and her privacy was invaded. 4. When asked by the solicitor for the HCCC whether publication posed a threat to her physical or mental health the practitioner replied yes, on the basis that it put her back in a mental health state of 'feeling persecuted'. 5. The parties were granted leave at the conclusion of the hearing to file supplementary written submissions. 6. The HCCC submitted that both individually and cumulatively, the particulars of Complaints One demonstrate that the Respondent engaged in sufficiently serious conduct to justify the suspension or cancellation of the Respondent's registration. The need to comply with conditions is self-evident and the restrictions were aimed at protecting the public by ensuring that the Respondent was not using opiates. The failure to comply with these conditions, particularly the gravity of returning positive results for oxycodone and alprazolam, and the number of additional occurrences of missed tests and withheld results amounts to professional misconduct. 7. In support of this argument, the HCCC cited Re Tan Than Le (NSWMT, unreported, 20 September 2001, a statement subsequently approved by the NSW CA in Prakash v Health Care Complaints Commission [2006] NSWCA 153): Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, containing as it does a grave criticism of the standard of the practitioner's conduct. 1. In HCCC v McHue (NSW Medical Tribunal, 14 December 2007), a case involving impairment, the Medical Tribunal held at [45]: Concern for the protection of the public includes consideration of the need to ensure that practitioners whose practice of medicine has been constrained by conditions, comply with those conditions and are honest with the panel, expert assessors and others whose task it is to make an assessment of the practitioner's compliance. The conditions and the monitoring are imposed in order to ensure that the public are protected whilst allowing practitioners whose conduct has come under scrutiny to continue in practice. Without honest dealing by such practitioners, the entire system developed to benefit both public and practitioner will be imperilled. Practitioners whose conduct of medicine is called into question must appreciate that this tribunal may treat dishonest statements and explanations to the Board, to Panels and to experts appointed by the Board and to this Tribunal as justifying suspension or deregistration even where the original conduct may well not have, of itself, led to such a result. 1. The HCCC characterised the duration and repetition of the condition breaches as tantamount to flagrant breaches. Ms Neal argued that the Respondent's positive results for Oxycodone in March 2017 represent serious misconduct given her history of non-compliance and representations to the Council and that this was exacerbated by the Respondent's initially dishonest explanation for the positive result. In an email to the Council on 7 April 2017 Ms Bainbridge denied consumed any such substance, however at the s150 proceedings on 18 April 2017 she admitted that she had consumed Endone. 2. Further, the HCCC submitted that the failures to attend testing and to pay for tests demonstrate that the Respondent had a lack of insight into the need to prioritise compliance with those conditions in order to ensure that the public was protected. This should be taken into account in weighing against protective orders involving the imposition of further conditions. 3. The HCCC opposed the practitioner's application for an order suppressing her name on the basis of the general principle of open justice and the significance of that principle in a protective jurisdiction of this kind. The HCCC submitted that the practitioner had not established the publication of her identity would have a detrimental effect, beyond the shame and embarrassment that is often the unavoidable effect of court proceedings. Specifically, the HCCC drew attention to the fact that none of the treating practitioners who gave evidence had been of the opinion that Ms Bainbridge's physical or mental health was placed at risk by publication of the proceedings. 4. The HCCC did not oppose an order sealing the Tribunal file in order to protect private information concerning the practitioner within the file. 5. The practitioner did not contest that the proved and admitted matters were very serious. She submitted that, despite the relapses, she was progressing in her recovery in that she was taking active steps to seek assistance, and that when she did relapse it was brief and involved far smaller quantities than previously. 6. The practitioner submitted that a 12 month suspension would give her the time out that she required, and that she could return to practise safely with conditions thereafter. 7. On the day that her written submissions were due the Respondent sought an extension of time, which was consented to by the Applicant and granted by the Tribunal. On the day after the further date upon which her submissions were due the Respondent sent a set of documents to the Registry via email and filed further documents by post. Inasmuch as that material contained new evidence concerning the Complaints not tendered at the hearing, it was disregarded by the Tribunal. 8. The material from the practitioner included a letter from Mr Scott which stated his belief that suppressing the practitioner's name would be 'beneficial to her on-going recovery.' 9. The practitioner submitted that she had in fact received a different version of Dr Davies final report and not the version of the report which was tendered in evidence by the HCCC. This error was conceded by the HCCC in supplementary submissions. The additional matters raised in that final report were the subject of the HCCC's application for leave to add particulars to Complaint 3 of impairment. As the Tribunal did not grant that leave and did not have any regard to those additional matters in making findings on impairment, this error did not prejudice the practitioner in these proceedings. Findings and Reasons 1. The bulk of Complaint 1 is conceded by the Respondent. Those breaches presumptively amount to unsatisfactory conduct under the National Law. 2. The Tribunal accepts the practitioner's account of her conduct concerning particulars 4, 7 and 8. Thus although breaches of those particulars are established, with the exception of 4(f) which we find not proved to the requisite standard, the Tribunal would not be strongly critical of the practitioner's conduct if those particulars were to be taken alone. We accept that the breaches were at the outset of the process and were largely inadvertent, and in some cases may have been contributed to through the accommodations or conflicting advice offered by the Council. Professional Misconduct 1. The complaints in this case arise as a direct result of the practitioner's dependence upon, and periodic misuse of, opioids. While findings of unprofessional conduct and impairment are distinct as a matter of law, they can rest upon the same factual basis. 2. The Tribunal accepts that the practitioner sincerely attempted to comply with the conditions over a period of over four years, but nevertheless periodically failed tests with positive results for drug use, initially missed several tests without proper explanation in writing, and repeatedly paid late for tests. This pattern of non-compliance resulted in a total of four impaired registrants panels, five s 150 hearings and now these proceedings. 3. In this case the most serious conduct, that of failing UDT and hair tests, flows directly from the impairment, which we accept is strongly related to the practitioner's personal circumstances. In this context it is inappropriate to characterise the conduct as wilful, dishonest or flagrant as the HCCC seeks to do. Nor can late payments for the tests be characterised in such manner, when the unchallenged evidence of the practitioner was that she was under severe financial strain. 4. This is not a case in which a finding of misconduct flows from a finding of unethical conduct, moral turpitude or other form of denunciation of the practitioner. Nonetheless, the Tribunal determines that the proved and admitted unprofessional conduct must cumulatively amount to professional misconduct by reason of both its repetition and inherent seriousness. 5. The practitioner consumed opiates and other drugs that were not prescribed for medical use while registered as a nurse and practising under conditions. While Ms Bainbridge may believe herself to be unaffected by such drugs, and there is no report that she appeared affected in her practise, the public is placed at real risk when drug dependent or otherwise impaired health practitioners do not strictly comply with protective conditions. Particulars 1-3 of Complaint One are sufficiently serious as to amount to professional misconduct. 6. Complaints 4-8 represent dozens of breaches, many of which were inadvertent or understandable in the circumstances, and which individually may appear relatively insignificant. Cumulatively however these breaches amount to a significant imposition on regulators which, taken along with the other more inherently serious proved matters, are of such repetition as to amount to misconduct. 7. The ability of the Council to support and monitor impaired practitioners to ensure that they practise safely is severely strained in a case such as this, which has extended for over four years. The Council has committed very substantial resources to trying to ensure that the practitioner could continue to practise safely, and has in effect, offered more than one 'second chance' based upon the practitioner's assurance of future compliance. Impairment and Competence to Practise 1. The evidence demonstrates that the practitioner's opiate dependency is longstanding and continuing, with a number of periodic relapses; the most recent being a week before the hearing. 2. The Tribunal finds that the practitioner suffers from opiate dependency as per Complaint 3 based upon the evidence of her psychological dependence, including repeated relapses, and the opinions of Dr Davies and Dr Manhood, which are preferred to that of Mr Scott. 3. The practitioner acknowledged that she had not been able to maintain abstinence in the face of external stresses, and that she had not sought assistance from her treating practitioners when she felt at risk of relapse. The practitioner acknowledged that she is not currently in a position to be able to cope with a nursing practice in addition to the other stresses and considerable pressures that she is facing in the short and medium term future. 4. A finding that the practitioner is not competent to practise at the present time as required by s 139 follows inevitably from the above findings related to impairment and the practitioner's own assessment of her current capacity to practise. Protective Orders 1. The Tribunal gave consideration to the entire range of available protective orders. We concluded that the safety of the public could not be adequately protected through an order of suspension followed by continued, or more stringent, conditions, as sought by the practitioner. 2. The passage of time alone is insufficient to render the practitioner more likely to comply with conditions which she has been unable to comply with over a long period to date. A period of suspension followed by conditions would in effect continue a regime that has failed to date to produce lasting change in the practitioner's conduct. Based upon all of the evidence, the Tribunal cannot have any confidence that such conditions would be complied with in the future without a contemporaneous assessment of the practitioner's capacity to practise. 3. Ultimately we conclude that the practitioner requires, and will hopefully benefit from, a period of deregistration in which she can focus upon her recovery and can deal with the pressing personal and family matters that require her commitment. 4. The Tribunal has not set any period which must pass before which the practitioner can reapply for a review of these orders as we do not think that any pre-determined period would be of assistance to her, nor commensurate with our assessment of what is required for the safety of the public. 5. We encourage the practitioner to take this opportunity to take care of herself and to re-build her professional capacities without the imposition of any external time-frame. It is for the practitioner to return, when she is ready, to demonstrate to a differently composed Tribunal that she has regained her capacity to practise. We suggest that evidence of a substantial and continued period of abstinence, along with on-going engagement with treating health practitioners, would be relevant to such an application. Non-Disclosure 1. The starting point of disciplinary proceedings in this Tribunal is that they are public. The protection of the health and safety of the public is the paramount consideration under the National Law, and the approach of this Tribunal has consistently been that making proceedings available to the public enhances such protection. 2. Although we are concerned that publication of these proceedings poses a risk in terms of being an external stressor in circumstances where stress has been associated with relapse for the practitioner, this risk must be weighed against the public interest in having access to information about practitioners who have faced disciplinary sanctions or been found to have been impaired. 3. There was no evidence before the Tribunal to establish a heightened or specific risk to the practitioner from publication of these proceedings beyond that which would ordinarily follow from publication of a decision in which a practitioner is found to be impaired or have committed a disciplinary offence. 4. However, the Tribunal considers that the practitioner has a legitimate claim to protect private material which forms part of the evidence in the history of these proceedings, being personal and health information which she made available to impaired registrant's panels and s 150 panels at a time when those proceedings were held in private. There is no public interest in such personal information being made available. This decision has been written in such a way as to not disclose such information where possible. We further order that the file of these proceedings be sealed and not accessible to the public. Orders 1. Pursuant to findings of professional misconduct and current lack of competence to practise, the practitioner's registration as a nurse is cancelled under s 149C(1)(a) and (b) of the National Law. 2. Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 3. Pursuant to cl 7(1)(iv) Sch 5D, the file of this matter to be sealed by the Registry and only disclosed for the purpose of these or related legal proceedings. The tribunal directs that no evidence of either party relied on in these proceedings is to be published to any entity or person. ********** 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 17 October 2018 - Non publication order 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: 17 October 2018