Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hollamby v Health Care Complaints Commission [2018] NSWCATOD 176 Hearing dates: 2 August 2018 (14 September, final submissions) Date of orders: 30 October 2018 Decision date: 30 October 2018 Jurisdiction: Occupational Division Before: A Britton, Principal Member K Eyre, Senior Member C Anderson, Senior Member B Seth, General Member Decision: (1) The application for review is dismissed. (2) The respondent is to pay the costs of the respondent as agreed or assessed. Catchwords: TRADES AND PROFESSION –– reinstatement of health practitioner under Health Practitioner Regulation National Law Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Hollamby [2016] NSWCATOD 91 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lindsay v Health Care Complaints Commission [2010] NSWCA 19 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: I. Jáuregui-Lobera, Iron deficiency and cognitive functions in Neuropsychiatric Disease and Treatment, Volume 10, 2014 Category: Principal judgment Parties: Michelle Hollamby (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: Applicant Self Represented N Evans (Respondent) Solicitors: Health Care Complaints Commission (Respondent) File Number(s): 2018/00105845 Publication restriction: Nil REASONS FOR DECISION Introduction 1. In July 2016, following the determination of a complaint brought by the Health Care Complaints Commission (the Commission), the Tribunal (differently constituted) found that Michelle Hollamby had an "impairment" and was not "competent to practice" as an Enrolled Nurse. The Tribunal decided that had Ms Hollamby not surrendered her registration, it would have exercised the power under s 149C(4) of the Health Practitioner Regulation National Law (NSW) (the National Law) to cancel her registration as an Enrolled Nurse (the cancellation order): Health Care Complaints Commission v Hollamby [2016] NSWCATOD 91. In addition, the Tribunal decided to disqualify Ms Hollamby from applying to be re-registered as an enrolled nurse for a period of 12 months. 2. The 12-months disqualification period having elapsed, Ms Hollamby now exercises the right given by s 163A of the National Law to seek review of the cancellation order. She urges the Tribunal to reinstate her registration and states that she is willing to submit to any conditions on her registration considered appropriate by the Tribunal. The Commission opposes the reinstatement of Ms Hollamby's registration. 3. The central issue in this review is whether Ms Hollamby has proven on the balance of probabilities that she does not currently have an impairment and is now competent to practice. She bears the onus of proof on these questions. Background 1. The following background facts taken from the reasons given by the original Tribunal are not in dispute. 2. Ms Hollamby was first registered as an Enrolled Nurse in July 2008. In March 2010, the Queensland Nursing Council was notified of concerns about Ms Hollamby's employment at Nambour Hospital. The reported concerns related to, among other things, medication administration and general patient care. The following month, Ms Hollamby gave an undertaking to the Council to enter into a period of "supportive mentoring". 3. In February 2013, three months after Ms Hollamby commenced employment as an Enrolled Nurse in NSW, the Queensland Board of the Nursing and Midwifery Board of Australia received a "work progress report" detailing concerns about Ms Hollamby's work performance. 4. In May 2013, following receipt of further complaints relating to Ms Hollamby's work performance, the Queensland Nursing Council exercised its powers under s 150 of the National Law to suspend Ms Hollamby's registration as an Enrolled Nurse. 5. In June 2014, following a referral from the Queensland Nursing Council, an Impaired Registrant Panel recommended that conditions be imposed on Ms Hollamby's registration, including that she undertake another course in Enrolled Nursing. Ms Hollamby refused and the suspension of her registration remained in place. 6. In March 2015, following a request made by Ms Hollamby for a review of the decision to suspend her registration, the Queensland Nursing Council lifted the suspension and imposed revised conditions on her registration. 7. On 11 April 2016, the first day of hearing of the complaint lodged by the Commission with the NSW Civil and Administrative Tribunal, Ms Hollamby surrendered her registration as an Enrolled Nurse. The principles governing review of a cancellation order 1. On receipt of an application for review of a cancellation order, the appropriate review body, in this case the Tribunal, must conduct an inquiry: s 163B. In conducting an inquiry into an application for review of a cancellation order, the Tribunal cannot review the original decision or any findings of fact made in connection with that decision: s 163C(2). Rather, the task of the Tribunal is "to determine the appropriateness, at the time of the review, of the order concerned": s 163C(1). 2. Having conducted an inquiry into the application for review, the Tribunal has discretion to exercise a number of powers including the power to dismiss the application, to make a reinstatement order and to impose conditions on the person's registration: s 163B. 3. The approach to be adopted in determining an application for a reinstatement order under the National Law has been considered in several decisions of NCAT and its predecessor Tribunals. In Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [29], the Tribunal summarised the applicable principles in the following terms: (a) The purpose of the jurisdiction is to protect the public. (b) The question is whether the applicant is a fit and proper person to be held out as a person worthy of their confidence to the rest of the profession, to patients and to whole of the community. (c) The applicant is in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made. (d) The ultimate issue is whether the Tribunal can conclude on the basis of all the material that the applicant is now a fit and proper person to re-join profession. (e) It is not a question of what the applicant may have suffered in the past but rather what is his worthiness and reliability for the future, in particular whether the applicant will act in accordance with the high standards and responsibilities of the profession. (f) The Tribunal may draw inferences from what has happened in the past and in particular what led to his or her being removed from the Register. Statutory framework 1. In NSW, the grounds for complaint about a registered health practitioner include that the practitioner is not competent to practice their profession and that the practitioner has an impairment: ss 144(c), 144(d). 2. Section 5 of the National Law defines "impairment" to mean: [T]he 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. Section 139(a) of the National Law states that a person is competent to practise a health profession only if the person has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession. Key issues 1. It falls to Ms Hollamby to establish: 1. That epilepsy is unlikely to detrimentally affect her capacity to practise as an Enrolled Nurse. 2. That she no longer has a cognitive impairment, or if she does, it is unlikely to detrimentally affect her capacity to practise as an Enrolled Nurse. 3. That she has sufficient mental capacity to practise as an Enrolled Nurse. Epilepsy 1. Ms Hollamby has suffered from epilepsy since infancy. The seizures occur without warning. After being seizure free for 13 years, in February 2013, Ms Hollamby suffered a series of seizures after working as an Enrolled Nurse over seven consecutive nights and accidentally missing a dose of antiepileptic medication. Ms Hollamby suffered further seizure in July 2015 and July 2018. 2. Ms Hollamby attends the Royal Prince Alfred Hospital Epilepsy clinic. A neurologist with the clinic, Dr Kaitlyn Parratt, in a report dated 11 December 2017, wrote that provided Ms Hollamby remained compliant with her medication (then twice daily, Topamax 75mg and Lamictal 100 mg), she remained at low risk of seizures. In oral evidence, Dr Parratt stated that she remained of that opinion, notwithstanding that after preparing that report Ms Hollamby had suffered a further seizure (on 2 July 2018). Following that seizure, Dr Parratt increased Ms Hollamby's dosage of Lamictal from 100 mg to 150 mg, twice daily. Dr Parratt testified that while she could not say that Ms Hollamby will never have another seizure, given that at the time of the last seizure Ms Hollamby had been seizure free for several years, has a history of responding well to and being complaint with antiepileptic medication, and is in good health, the prognosis is positive. 3. Dr Parratt wrote that Ms Hollamby is fit to return to work as an Enrolled Nurse providing that she avoids working night shift, explaining that sleep deprivation could significantly reduce her "seizure threshold". 4. In reports dated 26 July 2017 and 30 April 2018, Dr Peter Holloway, Ms Hollamby's GP since June 2013, wrote that in his opinion Ms Hollamby is fit to work as an Enrolled Nurse. He described Ms Hollamby as a "stable epileptic". In oral evidence he stated that notwithstanding Ms Hollamby's recent seizure, he stood by that opinion, pointing out that her medication has now been adjusted. 5. When questioned, Dr Holloway disagreed with the proposition that a possible cause of the July 2018 seizure was that Ms Hollamby had become tolerant of antiepileptic medication. Cognitive impairment 1. In the proceedings before the original Tribunal, the Commission contended, and Ms Hollamby admitted, that Ms Hollamby: 1. Lacks insight into the impact of epilepsy on her behaviour. 2. Suffers from cognitive impairments in relation to: (a) Non-verbal reasoning; (b) Working memory; (c) High- level frontal executive skills which affect: (i) Her capacity to form concepts; (ii) Her ability to adapt and regulate behaviour after being given feedback (iii) Her ability to think quickly and flexibly. 1. Those contentions were largely based on the opinion expressed by clinical neuropsychologist, Dr Wayne Reid who assessed Ms Hollamby at the request of the Nursing and Midwifery Council in February 2014 and again in December 2015. 2. In a report dated 22 December 2015, Dr Reid wrote that on re-examination of Ms Hollamby, he found no evidence of any significant change in her intellectual abilities, which he characterised as "low average", since the first assessment conducted in February 2014. He reported that testing in December 2015 revealed that: * Ms Hollamby's verbal and visual memory abilities were within the "normal range" * Ms Hollamby demonstrated deficits in non-verbal reasoning and some aspects of executive functioning * Ms Hollamby demonstrated significant improvement in adaptability and concept formation. 1. In his opinion, the reported areas of impairment, together with a degree of lack of insight into her seizure disorder and self-monitoring, would affect her ability to function as an Enrolled Nurse without supervision. 2017 neuropsychological assessment 1. In July 2017, clinical neuropsychologist Dr Zoe Thayer assessed Ms Hollamby. Dr Thayer shared Dr Reid's opinion that Ms Hollamby's intellectual ability was in the "low average range". On testing of attention and information processing speed, memory, visuo-construction, language and executive function, Dr Tahyer found the majority of Ms Hollamby's test scores to be "within or slightly above the low to average range". 2. Dr Thayer noted that on testing Ms Hollamby showed some "mild variability" on attentional tasks, mild weakness on some measures of verbal fluency, and that Ms Hollamby had difficulty inhibiting automatic verbal responses. Dr Thayer opined that this variability might be long-standing, related to Ms Hollamby's seizure disorder, or the result of taking Topamax for an extended period. She noted noting that Topamax is "well known to have significant negative effects on aspects of cognition in some people, in particular on working memory and verbal fluency". 3. Commenting on Dr Thayer's assessment, in her report of 11 December 2017, Dr Parratt wrote that from "a cognitive performance perspective, it was our neuropsychologist's opinion that [Ms Hollamby] would be fit to return to work as an enrolled nurse with the condition that she not work night shift". Dr Holloway shared that opinion. Work history 1. Since surrendering her registration as an Enrolled Nurse in 2016, Ms Hollamby has worked in the aged care sector. While the evidence is not entirely clear, it appears that Ms Hollamby worked part-time until mid-2017 and thereafter on an occasional basis through a nursing agency. 2. In a reference dated 21 January 2015, Registered Nurse Dr Robyn Daskine wrote that she had been working closely with Ms Hollamby since the opening of aged care facility St Brigid's Green in August 2014. Dr Daskine wrote that in her role as a "care support employee", Ms Hollamby approaches her duties in a planned and professional manner, is a team player who demonstrates an ability to work autonomously, and is very adaptable to changes within her environment. She recommended Ms Hollamby for a position as Enrolled Nurse (Medication Endorsed). 3. In an email to Ms Hollamby sent in May 2018, Assistant in Nursing, Phisami Thipasabsaprang wrote that she had worked with Ms Hollamby for "one to two years". She wrote that at work Ms Hollamby was organised and able to manage her time; demonstrated empathy for residents and colleagues; was positive and encouraged others; and followed instructions in safe manual handling. Education 1. Ms Hollamby is currently enrolled in a Bachelor of Nursing at the Australian Catholic University. An unofficial version of her academic transcript certifies that the University awarded Ms Hollamby: * credit for 13 units of study undertaken at another educational institution * a credit grade for four units of study * a pass grade for six units of study * a fail grade for three units of study, and * a "withdrawn/fail" for three units of study. 1. In addition, the transcript records that Ms Hollamby is currently enrolled in eight units of study. According to Ms Hollamby of those eight units, four were undertaken in the first half of 2018 and four will be undertaken in the second half of the year. Since the issue of the transcript, Ms Hollamby has been awarded a pass grade for two of the units undertaken in the first half of 2018: Evidence for Practice and Partnerships in Chronicity. Ms Hollamby completed the theoretical but not the practical component of the other two units undertaken in the first half of 2018. According to Ms Hollamby the University has not given her the opportunity to undertake the clinical practice component because she is not registered as an Enrolled Nurse. 2. In March 2018, Ms Hollamby successfully completed an on-line program on medication calculation, endorsed by the Australian College of Nursing. Competence to practice 1. The original Tribunal found that Ms Hollamby was not competent to practise as an Enrolled Nurse. That finding was based on the results of four assessments conducted between January 2009 and December 2013. The following summary of those assessments is taken from Health Care Complaints Commission v Hollamby at [35] – [38]. 2. In the first assessment conducted in January 2009, the Sunshine Coast-Wide Bay Health Service District assessed Ms Hollamby as being "not safe in the delivery of patient care and ability to problem-solve". In undertaking that assessment, the Service District applied the Australian Nursing and Midwifery Council Competency Standards for Enrolled Nurses. 3. In the second assessment conducted in January 2010, the Sunshine Coast-Wide Bay Health Service District assessed Ms Hollamby's ability to administer medication. The Service assessed Ms Hollamby as not being competent to administer medication. 4. In October 2013, Ms Hollamby failed to achieve the requisite mark in two written examinations administered by the Australian College of Nursing. One of the tests involved drug calculation. 5. In a clinical assessment conducted in December 2013 by the Australian College of Nursing, Ms Hollamby was found to demonstrate "major deficits" in applied nursing skills across the following areas: (i) Safe storage and administration of medications (ii) The management of intravenous therapy (iii) Wound care (iv) Pain management (v) Protocol understanding in the surgical setting (vi) Accuracy in reporting, handover and documentation including admission, assessment charts and progress notes. Iron deficiency 1. In July 2013, testing revealed that Ms Hollamby had a "severe iron deficiency". The condition was treated and has been monitored on a regular basis. Ms Hollamby contends that low iron levels, among other things, can cause cognitive impairment, citing in support a number of academic studies, including Ignacio Jáuregui-Lobera, Iron deficiency and cognitive functions in Neuropsychiatric Disease and Treatment, Volume 10, 2014. She asserts that low iron levels, low blood pressure together with the emotional stress caused by a relationship breakdown contributed to her poor results in the assessments conducted by the Australian College of Nursing in October 2013 and December 2013. 2. Blood tests conducted on 4 September 2013, 21 November 2013, 21 November 2013 and 5 June 2018, reveal Ms Hollamby's iron levels to be normal. Has Ms Hollamby demonstrated that she is no impaired and is now competent to practice as an Enrolled Nurse? 1. The original Tribunal made no express findings about whether Ms Hollamby's seizure disorder affected her capacity to practice as an Enrolled Nurse: at [45]. 2. The opinion of Drs Parrat and Holloway that Ms Hollamby's seizure disorder is now well controlled and is unlikely to detrimentally affect her capacity to practise as an Enrolled Nurse, notwithstanding the evidence of a recent seizure, is unchallenged. 3. Prior to the July 2018 seizure, Ms Hollamby had been seizure-free for several years. She complies with treatment recommendations, is fastidious in taking her antiepileptic medication, is in good health, and, is aware of and avoids stressors which might reduce her seizure threshold, such as alcohol, illicit drugs and sleep deprivation. We are satisfied that for the foreseeable future, Ms Hollamby's seizure disorder is unlikely to detrimentally affect her capacity to practise as an Enrolled Nurse. 4. The more difficult question is whether Ms Hollamby has a cognitive impairment and, if so, whether it is likely to detrimentally affect her capacity to practice as an Enrolled Nurse. 5. Ms Hollamby submits that the 2017 neuropsychological assessment undertaken by Dr Thayer, the opinions of Drs Parrott and Holloway, together with the partial completion of a bachelor degree in nursing, demonstrate that any cognitive impairment she has is mild, and more to the point, is unlikely to detrimentally affect her capacity to practice as an Enrolled Nurse. 6. The Commission on the other hand contends that Ms Hollamby has failed to demonstrate that she no longer has a cognitive impairment which is likely to detrimentally affect her capacity to practice as an Enrolled Nurse. The Commission argues that the improvement in cognitive function identified by Dr Thayer in the July 2017 assessment, could be, as Dr Thayer opined, the result of Ms Hollamby being on a reducing dose of Topamax. The Commission submits therefore that the 2017 assessment may no longer be a reliable guide to Ms Hollamby's level of cognitive function, given that it was conducted over 12 months ago and before the recent adjustments made to her anti-epileptic medication. 7. The questions whether Ms Hollamby has sufficient mental capacity to practise as an Enrolled Nurse, and whether her cognitive impairment is likely to detrimentally affect her capacity to practice, raise similar but not identical considerations: see Lindsay v Health Care Complaints Commission [2010] NSWCA 19 at [2], [168], [169], [170]. Each question requires consideration to be given to the nature, severity and variability of Ms Hollamby's cognitive impairment, together with the type of work required to be undertaken by an Enrolled Nurse, the type of skills required to undertake that work, the environment in which that work will be undertaken, whether the work will be subject to supervision, and, if so, the nature of the supervision. None of the experts whose opinions are before us disclosed the assumptions they made about the nature of the work of an Enrolled Nurse. A cautious approach must therefore be taken to their evidence. 8. Ms Hollamby is faced with the difficult task of establishing that she has sufficient mental capacity to practise as an Enrolled Nurse, in circumstances where she has a long history of reported poor performance and two independent bodies on four separate occasions found that she did not meet key competency standards. She is now in a Catch-22 situation. Because she has not been registered as an Enrolled Nurse since 2016, she cannot point to recent work history to support her claim that those assessments are no longer a reliable indicator of her capacity to practice. Nor is she able to cite in support the results of a recent capacity assessment. According to Ms Hollamby, the Australian College of Nursing will not give her the opportunity to undertake a further assessment unless and until her registration as an Enrolled Nurse is restored. Apparently, there is no equivalent body able to undertake these type of assessments. Nor can Ms Hollamby rely on to the successful completion of clinical components in her tertiary studies, because she is barred from undertaking them on account of her registration status. 9. Nonetheless, it could not be said that there is no evidence to support Ms Hollamby's contention that she now has sufficient mental capacity to practise as an Enrolled Nurse and any cognitive impairment is both mild and unlikely to detrimentally affect her capacity to practice. First, Ms Hollamby's academic results, while uneven, nonetheless are consistent with her claim to have sufficient mental capacity to practise. Second, the unchallenged opinions of former work colleagues, in particular, registered nurse Dr Daskine, attest to Ms Hollamby's demonstrated capacity to work as a care support employee. Third, neuropsychological testing conducted in 2017 revealed an improvement in her cognitive function. 10. Had the evidence on which the original Tribunal based its finding of lack of competence to practise been less powerful, the evidence on which Ms Hollamby now relies might arguably be sufficient to displace the finding of lack of competence. However, the evidence before the Tribunal was not of a single failed capacity assessment or an isolated report of poor performance, but rather a long history of reported poor performance and repeated failure to demonstrate competency on testing. The evidentiary hurdle faced by Ms Hollamby is significant. 11. With respect to impairment, given that the improvement in cognition revealed by the 2017 neuropsychological assessment might be attributable to a reducing dose of Topamax, in circumstances where that assessment was conducted over 12 months ago and changes have subsequently been made to Ms Hollamby's medication regime, without an updated assessment, we could not be positively satisfied that it continues to provide a reliable guide to Ms Hollamby mental capacity to practice as an enrolled nurse. Nor, in our view, is the contention that Ms Hollamby is no longer impaired assisted by the low iron level hypothesis. While plausible, that hypothesis fails to take into account that the marked iron deficiency revealed on testing in July 2013 had been corrected by December 2013 when the Australian Nursing College assessed Ms Hollamby and identified "major deficits" in six key practice area. 12. We have considerable sympathy for Ms Hollamby. She is deeply committed to returning to the nursing profession and has worked hard to maintain good health and succeed in her studies. Nonetheless, she bears the onus of displacing the findings made by the original Tribunal. Regrettably the available evidence does not positively establish that she has the mental capacity to practise and that her cognitive impairment is unlikely to detrimentally affect her capacity to practise. We are not satisfied that our concerns could be addressed by the imposition of conditions. Accordingly the application for reinstatement must be dismissed. 13. We have decided not to make an order under s 163B(5) that the cancellation order is not to be reviewed until after a specified time. If Ms Hollamby is able to obtain better evidence about her cognitive function and mental capacity to practice, she ought not be denied the opportunity to make a further application for review. Should an order for costs be made? 1. The Commission seeks an order that Ms Hollamby pay its costs in these proceedings. Ms Hollamby opposes that application and submits that she does not have the capacity to pay the Commission's costs. She points out that she has not been in regular employment for several years. 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 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. While we have considerable sympathy for Ms Hollamby's position, the authorities have consistently stated that mere impecuniosity of the losing party is not a justifiable reason for departing from the presumption that the successful party is entitled to receive their costs: Health Care Complaints Commission v Philipiah at [42]. That presumption will generally be displaced only 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 have decided to exercise the power to order Ms Hollamby to pay the Commission's costs, as agreed or assessed. Orders 1. The application for review is dismissed. 2. The respondent is to pay the costs of the respondent as agreed or assessed. ********** 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: 30 October 2018