Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Kurzveil [2019] NSWCATOD 42 Hearing dates: 5 March 2019 Date of orders: 27 March 2019 Decision date: 27 March 2019 Jurisdiction: Occupational Division Before: The Honourable F Marks, Principal Member V Gibson, Senior Member D Armitage, Senior Member Dr J Griffin, General Member Decision: (1) Pursuant to s 149C(4)(a) of the National Law order that if the respondent were still registered his registration would have been cancelled; (2) Pursuant to s 149C(4)(b) of the National Law order that the respondent is disqualified from being a registered nurse for 36 months; (3) Pursuant to s 149C(4)(c) of the National Law require the National Board to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board; (4) Pursuant to s 149C (7) of the National Law order that the respondent cannot seek a review of the orders made by the Tribunal for 33 months. (5) Pursuant to s 163 of the National Law, that the Tribunal is the appropriate review body for any review of these orders. (6) That pursuant to Sch 5D, cl 13(3A) of the National Law the applicant is awarded its costs in the amount of $17,000.00. Catchwords: Nurse-allegations of professional misconduct-admissions by respondent-impairment by reason of polysubstance abuse disorder-finding of professional misconduct and impairment-order for cancellation of registration if the respondent had remained registered-consequential orders – costs order made. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Cody Jerry Kurzveil (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) C Kurzveil (Self Represented)(Respondent) File Number(s): 2018/00304524 Publication restriction: Non-publication order with respect to any person who was an inpatient in any hospital in which the Respondent was employed at the time the conduct which is the subject of these proceedings occurred and any information which might tend to identify such person REASONS FOR DECISION Background 1. These proceedings are constituted by an Amended Complaint initiated by the applicant Health Care Complaints Commission which alleges that the respondent Cody Jerry Kurzveil is guilty of professional misconduct pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The respondent was formerly registered as a nurse. 2. The Amended Complaint is in the following terms; The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, 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") HEREBY COMPLAINS THAT Mr Cody Kurzveil of (Sydney NSW) ("the practitioner") being a registered nurse formerly registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; ii. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. BACKGROUND TO COMPLAINT ONE The practitioner was first registered as a registered nurse (Div 1) on 7 January 2014 following the completion of his nursing degree in Sydney in 2013. While completing his university studies the practitioner also worked as an Assistant In Nursing. The practitioner commenced working at Royal Prince Alfred Hospital (RPAH) in 2014 in the New Graduate program. The practitioner was terminated from his employment at RPAH in January 2017. The practitioner commenced working at Shellharbour Hospital on 1 February 2016 on a casual basis while also working at RPAH. The practitioner's employment at Shellharbour Hospital ended on or about 10 October 2016. PARTICULARS OF COMPLAINT ONE 1. On 14 September 2016, after completing his shift at RPAH the practitioner inappropriately opened and accessed Patient A's patient controlled analgesia (PCA) machine and attempted to misappropriate fentanyl from the PCA machine for his personal use in the following circumstances, namely that the practitioner: a. was not and had not cared for Patient A at RPAH; b. had no clinical reason to access Patient A's PCA machine; c. was not aware of Patient A's clinical status; d. disconnected a syringe in the PCA machine containing fentanyl causing approximately 10mls of it to spill on the floor; e. by his actions above put Patient A at risk from receiving inadequate pain relief and potentially caused an infection control risk. 2. When questioned by Patient A's nurse about the events the subject of particular 1 the practitioner inappropriately mislead a nurse about the practitioner's actions in and reason for accessing the PCA machine. 3. After the events the subject of particular 2 the practitioner inappropriately left Patient A while the PCA machine had a large bubble in the syringe compartment and without making any attempt to remedy this including notifying Patient A's nurse. 4. On 19 June 2016, during his shift at RPAH the practitioner misappropriated five ampoules of fentanyl 500mcg/10ml for his personal use in the following circumstances: a. only five ampoules had been approved for transfer from Ward 6 East 2 to Ward 9 West 1 by the practitioner; b. the practitioner took possession of and then brought 10 ampoules of the fentanyl to Ward 9 West 1; c. the practitioner handed over only five of the ten ampoules to Ward 9 West 1. 5. At about 0600 hours on 23 June 2016 during his shift at Shellharbour Hospital the practitioner misappropriated five methadone 10mg tablets for his personal use. 6. While working at RPAH and Shellharbour Hospital on approximately six to twelve occasions the practitioner misappropriated medications including methadone and fentanyl including the incidents set out in particulars 1, 4, and 5 . 7. While working at RPAH and/or Shellharbour Hospital the practitioner inappropriately self-administered Valium and/or Endone from the hospitals without a prescription or other authority to self-administer, contrary to: a. section 12 of the Drugs Misuse and Trafficking Act 1966 (Endone); b. clause 59 of the Poisons and Therapeutic Goods Regulation 2008 (Valium). 8. The conduct in each of particulars (1), (2), (3), (4), (5), (6) and/or (7) is repeated and relied upon in combination as a course of conduct concerning the practitioner's overall misuse and misappropriation of medications in hospitals. 9. The practitioner gave false or misleading information to the Council by email on 19 September 2016 in that: a. his account of the incident the subject of Complaint One, particular (1) misrepresented how and why he attempted to misappropriate Patient A's fentanyl; b. he stated that he does not use opioids of any kind recreationally; c. he stated that he did not misappropriate methadone from Shellharbour Hospital on 23 June 2016. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in 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 the suspension or cancellation of the practitioner's registration BACKGROUND TO COMPLAINT TWO As for Complaint One. PARTICULARS OF COMPLAINT TWO 1. Complaint One and the particulars thereof are repeated and relied upon both individually and cumulatively. COMPLAINT THREE has been convicted of a criminal offence(s) in the state of New South Wales. BACKGROUND TO COMPLAINT THREE As for Complaint One. PARTICULARS OF COMPLAINT THREE 1. On 19 January 2017 the practitioner plead guilty to and was convicted in the Local Court of NSW (Newtown) of one count of larceny as a public servant pursuant to section 159 of the Crimes Act 1900 (NSW) in relation to the conduct the subject of Complaint One, particular 1. 2. On 19 January 2017 the practitioner plead guilty to and was convicted in the Local Court of NSW (Newtown) of one count of destroy or damage property pursuant to section 195(1)(a) of the Crimes Act 1900 (NSW) in relation to the conduct the subject of Complaint One, particular 1. 3. On 19 January 2017 the practitioner plead guilty to and was convicted in the Local Court of NSW (Newtown) of one count of having in his possession a prohibited drug pursuant to section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) in relation to the conduct the subject of Complaint One, particular 1. 4. In relation to the convictions in particulars (1), (2) and (3) of Complaint Three, the practitioner was directed to perform 100 hours of community service and to enter into a 2 year good behaviour bond pursuant to section 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 5. On 10 September 2015 the practitioner was convicted of driving with a low range of alcohol and directed to enter into a 12 month good behaviour bond under s10 Crimes (Sentencing Procedure) Act 1999 (NSW). 6. On 19 January 2017 the practitioner was convicted in the Local Court of NSW (Newtown) of breaching the conditions of the 12 month good behaviour bond ordered on 10 September 2015. The practitioner was fined $400.00. COMPLAINT FOUR Has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of nursing. BACKGROUND TO COMPLAINT FOUR As for Complaint One. 1. The applicant asked that the Tribunal make the following orders and protective orders; 1. Pursuant to s 149C(4)(a) of the National Law order that if the respondent were still registered his registration would have been cancelled; 2. Pursuant to s 149C(4)(b) of the National Law order that the respondent is disqualified from being a registered nurse for (24-36) months; 3. Pursuant to s 149C(4)(c) of the National Law require the National Board to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board; 4. Pursuant to s 149C(7) of the National Law order that the respondent cannot seek a review of the orders made by the Tribunal for (24-36) months. 5. Pursuant to s 163 of the National Law, that the Tribunal is the appropriate review body for any review of these orders. 6. That pursuant to Sch 5D, cl 13(3A) of the National Law the Commission is awarded its costs in the amount of $19,095.42. 1. We conducted a hearing on 5 March 2019 at which the respondent was self- represented. The respondent admitted that he was guilty of professional misconduct and admitted all of the factual matters asserted in the Amended Complaint. He admitted that he was guilty of each of the Complaints numbered 1 to 3 and the particulars thereof but denied that he suffered from an impairment which is the subject of Complaint 4. Factual background 1. The narration which follows is based upon documentation filed by the applicant in these proceedings, a written statement prepared by the respondent, oral evidence given by the respondent and the evidence of Dr Anthony Samuels a consultant psychiatrist who gave evidence on the question of impairment 2. The applicant's documentary evidence consists of hundreds of pages covering clinical and other records from both hospitals, including relevant drug register extracts, investigations conducted at both hospitals, an expert nursing report of Michelle Parker who was retained by the applicant for that purpose and attest to the criminal convictions which are the subject of Complaint Three. 3. In a written statement, and in oral evidence before us, the respondent demonstrated insight into the nature and extent of his misconduct and expressed the "deep regret and remorse I feel for not upholding my own high ethical standards and those of my chosen profession." He also expressed regret and concern for the compromised health and safety to patients at the hospitals where his misconduct caused. 4. The respondent is aged 30. He graduated with a Bachelor Degree in Nursing in 2013 and commenced employment at Royal Prince Alfred Hospital as a graduate nurse after working in an Assistant in Nursing program since 2008. During 2016 the respondent was working concurrently at both Royal Prince Alfred Hospital and Shellharbour hospital. 5. On 20 September, 2016 following the incidents which gave rise to Complaint One a condition was imposed on the respondent's registration precluding him from working as a registered nurse and requiring him to attend for hair drug testing. Evidence made available to us is that the results of hair tests conducted in 2016 and 2017 showed positive results for drugtaking. The medical evidence 1. There is scant medical evidence concerning the respondent and the nature and extent of any medical or other condition which might explain or assist in understanding his conduct. 2. In the course of 2016, the respondent attended on a number of occasions on Marcia Tsimboukis, a psychologist. Brief clinical notes made available to us indicate that the respondent has engaged in social use of illicit substances for some time, but denied that he was addicted. He was found by her to be suffering from depression. She provided a report for the purpose of the respondent's criminal proceedings dated 17 January, 2017. In that report Ms Tsimboukis said that she has been seeing the respondent since October 2016 on a fortnightly basis. She said that he had restricted mood and cognitive functioning. He was developing insight into his mental health status and was adhering to a cognitive behavioural regime. She described him as having "limited" speech content and spontaneity and "poor" motivation. She thought that he had been suffering from an untreated depressive disorder for at least 12 months. Ms Tsimboukis advocated that the respondent continue to adhere to his current treatment plan. 3. The respondent was referred by the applicant for assessment to Dr Anthony Samuels who has provided two detailed reports dated 29 June 2017 and 29 November, 2018. Dr Samuels examined the respondent on 29 June, 2017. In his report following that examination Dr Samuels said that the respondent had "a significant Polysubstance Abuse problem." He noted that the respondent's first exposure to opioids was to Endone in 2006 which was prescribed in hospital following an ankle fracture. He commenced using cocaine at university and also consumed marijuana and alcohol. Dr Samuels noted that on the basis of the history taken the respondent "has not been open about his drug-taking behaviour and has lied in a number of settings and the veracity of his history is obviously questionable." After noting that the respondent had continued to consume illicit substances until at least May 2017 Dr Samuels stated that the respondent suffered from an impairment constituted by his Polysubstance Misuse problem which involved alcohol, benzodiazepines, opioids and illicit substances including cocaine and marijuana. 4. Significantly, Dr Samuels advised the respondent to find a regular GP, to consult with a drug and alcohol specialist, to attend a drug and alcohol support group, to subject himself to urine drug screening, to undertake Carbohydrate Deficiency Transferring testing and seek a psychiatric review if his then current mood symptoms did not remit. He concluded his report by stating that only when the respondent's mood symptoms and substance misuse issues were in a "clearly established remission and he is well engaged in a number of therapeutic relationships" would he be considered ready to return to a nursing role. 5. Dr Samuel's second report followed from a consultation on 29 November, 2018. In that consultation the respondent informed Dr Samuels that he had not used marijuana since March 2017, and had not used cocaine since Christmas 2017. He had not used any other illicit substances. Furthermore he had not intentionally used opioids since September 2016, but had been given opiates for a medical condition. The respondent informed Dr Samuels that he sometimes felt depressed and demotivated. 6. Significantly, the respondent had not sought treatment or undertaken any of the other steps as advised by Dr Samuels in June 2017. He was unable to explain why he had not taken these rehabilitative steps other than that he believed that he would never get back his registration. Dr Samuels informed him that if he was motivated to take those steps and that he was committed to return to nursing it was possible that in the future he might achieve this. 7. Dr Samuels thought that as the respondent presented to him that day that he was "quite depressed" and despondent about his future. He also thought that the respondent suffered from an underlying mood disorder. He thought that the respondent's substance use disorder was in remission but he had no objective evidence to support this. Dr Samuels thought that the respondent's depression and despondency have precluded him from undertaking the rehabilitative steps which he had recommended. The respondent told him that "he would reflect on these matters and perhaps discuss them further with his general practitioner and possibly put some such steps in place in the future." 8. In oral evidence Dr Samuels said that his diagnosis has remained the same in the intervening 18 months since he had first examined the respondent because of the long-standing history of substance abuse. He was unable to say whether the respondent was truly dependent but the fact that he had taken risks whilst employed at the hospitals in order to gain access to the substances was indicative of a degree of dependence. The respondent kept repeating this behaviour even though it was not in his best personal interests. Dr Samuels also noted that the respondent had not explained in his own terms the reasons for his disorder, such as emotional stress associated with relationship problems and the like. Accordingly, the respondent had not demonstrated insight into the cause of his conduct. He said that the respondent needs to acknowledge that he has a problem and must then do something about it. 9. Dr Samuels thought that there was also an element of depression in the respondent's condition and that he should seek treatment for this. The fact that the respondent has admitted during the course of his evidence in these proceedings that he had used cocaine in December 2018 as a result of current peer pressure was indicative of a continuing problem and that the respondent was, based on his history, at risk of relapse. The respondent's evidence 1. The written and oral evidence of the respondent is indicative that initially he sought to evade responsibility for his conduct. However, the respondent has latterly indicated in his evidence that he is guilty of the misconduct alleged in the Complaints and the particulars thereof brought against him. He has recognised that he has previously misled the hospitals and the Nursing and Midwifery Council concerning the nature and extent of his misconduct, and that he had continued to consume illicit substances which caused him to fail the several drug tests which had been arranged for him. 2. The respondent conceded that when he had consulted Dr Samuels in November 2018 he had not done anything to rehabilitate himself. However, since then he has moved away from a shared house and thereby removed himself from "the wrong people" so as to reduce any opportunity to be exposed to illicit substances. Furthermore in recent times he has not taken illicit substances other than on one occasion during Christmas 2018 when he succumbed to "peer pressure." 3. The respondent told us that he had commenced seeing a general practitioner in mid- February 2019 and intended to continue to consult with her with a view to rehabilitating himself completely from any drug problem. He has been referred to a psychologist by that general practitioner and intends to use those services as "someone to talk to." 4. We are of the general impression that the respondent now has insight into the nature and extent of his problem and the fact that he needs to do something about it. It may be said, on this basis, that the respondent has started on the road to recovery mapped out for him by Dr Samuels. Findings with respect to Complaints One and Three 1. On the basis of the documentary evidence tendered by the applicant and having regard to the admissions made by the respondent, we are comfortably satisfied to the Briginshaw standard that each and every particular of Complaints One and Three has been made out. Professional misconduct 1. The respondent conceded, properly in our view, that by reason of the matters referred to in Complaints One and Three he was guilty of professional misconduct as defined in the National Law. The relevant definition is contained within section 139E as informed by section 139B. These sections are in the following terms; 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. ............................................................................. (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. (The remainder is not reproduced) 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. It is not necessary that we examine in any detail the misconduct of the respondent which he has readily conceded and which we have found has been proven. It is also not necessary that we consider in any detail whether that misconduct constitutes professional misconduct as defined. 2. We observe in general terms that nursing is an honourable profession and that any person who practices that profession must do so in an honourable fashion. A nurse is required to put the interests of his or her patients above his or her own personal interests. A nurse practices for the sole purpose of affording the best possible health care to his or her patients. Such obligations are inconsistent with the conduct of the respondent in tampering with the equipment as conceded by him, and are inconsistent with the failure to enable patients to be afforded medication prescribed for them. His conduct arguably impacted adversely on the well-being of the patients at both hospitals. 3. Because nursing is an honourable profession, nurses are expected by the public to behave themselves in an honourable fashion. The conduct described above was clearly dishonourable. So was the consumption of illicit drugs, especially when consumed whilst in the course of working as a nurse. Furthermore, taking illicit drugs even in a nurse's own time and in social circumstances also constitutes dishonourable conduct because it is unlawful. The public is entitled to expect that persons who practice the profession of nursing will at all times conduct themselves according to law. 4. We have no hesitation in describing the conduct of the respondent to which he has pleaded guilty as constituting professional misconduct. Because it is incompatible with the standards expected of nurses by the community, it justifies cancellation of registration. Impairment 1. By section 144 of the National Law a Complaint may be made against a health practitioner that he or she is suffering from an impairment. 2. By Complaint Four the applicant alleged that the respondent was impaired as defined in section 5 of the National Law, which is in the following terms; impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; 1. The respondent conceded that he has been impaired as defined by reason of his substance abuse and dependence but asserted that he was no longer impaired. 2. Such evidence as is available to us concerning this matter is provided in the reports and evidence of Dr Samuels. This is clearly to the effect that the respondent remains vulnerable to a relapse of his polysubstance abuse disorder and has not yet demonstrated that he is unlikely to relapse. On the basis of this evidence we are comfortably satisfied that the respondent has suffered and continues to suffer from a disorder as diagnosed by Dr Samuels including substance abuse and dependence that is likely to detrimentally affect his capacity to practice as a nurse. We are satisfied, accordingly, that the respondent suffers from an impairment and that Complaint Four has been made out. Protective orders following a finding of professional misconduct and impairment 1. Once a finding has been made of professional misconduct and impairment, it is necessary to determine whether and what consequential protective orders should be made. For present purposes the provisions of section 149C of the National Law are relevant; 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied— (a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order— (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. The purpose of protective orders is essentially to protect the public from persons whose misconduct is such that they should not be permitted to continue to practice in the nursing profession. In doing so, the high standards of the profession are maintained. Accordingly, it is well-established that there are four elements to be considered when framing appropriate protective orders. These are; 1. the protection of the public from the misconduct of a particular practitioner, and the risk that he or she may engage in further conduct of this kind 2. a positive deterrent to the particular practitioner in the event that he or she may again practice the profession of nursing 3. a deterrent to other nurses from engaging in the same, or similar or indeed any other conduct which might be described as misconduct whether unsatisfactory professional conduct or professional misconduct 4. the maintenance of the high standards and integrity of the nursing profession in the eyes of the public and the enhancement of public confidence in the professional conduct of nurses 1. Having regard to the basis for the finding of professional misconduct, and by reference to the circumstances pertaining to the respondent's criminal conviction we are comfortably satisfied that that cancellation of registration is an appropriate protective order, consistent with the principles summarised above. 2. As we have previously observed, the respondent has surrendered his registration and at the current time is no longer registered as a nurse. However, pursuant to section 149C(4)(a) of the National Law set out above we are empowered to order cancellation of registration as if the respondent was still registered as a nurse. We shall so order. 3. The applicant asked that we set a period of disqualification pursuant to section 149C (4) (b) of between 24 and 36 months. This was sought on the basis that this would be an appropriate period to allow the respondent to embark upon a process of rehabilitation and to engage in such educational processes as would allow him to seek reregistration. 4. We think it is appropriate to set a period of disqualification by reference to a period during which the respondent will be able to seek to rehabilitate himself and to undertake such educational courses as will ensure that he has maintained his ability to again practice as a nurse. The fact that the respondent has only recently engaged with a general practitioner to commence this process, and has not yet undertaken any recent psychological treatment makes it very difficult to assess what is an appropriate period during which he should be disqualified from registration. Given the fact that the respondent has unsuccessfully attempted to wean himself off drugs in the past and that a period of time will necessarily be involved in demonstrating that he is no longer drug dependent or desirous of taking illicit substances and having regard to the necessity to engage in some process of re-education we propose to fix a period of 3 years during which the respondent is disqualified from being a registered nurse. 5. The applicant also sought an order under section 149C (7) that the respondent not be entitled to apply for a review of our Orders for the same period. On one view, if we set the same period under section 149C (7) as set under 149C (4) (b) we would be imposing an additional period of disqualification on the respondent because he would not be entitled to seek a review of his cancellation for a minimum period of 3 years, and this would not allow for any time during which his application for review would be processed and heard. Accordingly, we propose to set a period under section 149C (7) of 2 years and 9 months. 6. The applicant asked that we appoint this Tribunal as the appropriate review body under section 163 of the National Law, and the respondent indicated that he had no objection to such an order. Given the circumstances of these proceedings and the nature and extent of the orders that we have made we propose to make an order as asked. Costs 1. This is a costs jurisdiction and the applicant sought a costs order in its favour, which was not opposed by the respondent. 2. Prior to the hearing the applicant had provided the respondent with a detailed costs assessment and the respondent has had an opportunity of considering this. Whilst it must be said that the respondent was concerned at the level of costs sought, he conceded that it was appropriate that costs in a not inconsequential amount were payable by him. Both parties were cognisant of the benefits of reaching agreement on the quantum of costs rather than being exposed to the further cost and delays associated with the assessment process. After discussion the respondent agreed that he would be made subject to a costs order in favour of the applicant in the sum of $17,000, which represented a concession on the part of the applicant. In proposing to so order we note that the applicant will engage in discussions with the respondent to enable him to come to some appropriate compromise concerning the manner in which those costs will be paid and, perhaps also their quantum, having regard to the respondent's financial circumstances. Orders 1. Pursuant to the findings which we have made that the respondent is guilty of professional misconduct and that the respondent suffers from an impairment we make the following orders; 1. Pursuant to s 149C(4)(a) of the National Law order that if the respondent were still registered his registration would have been cancelled; 2. Pursuant to s 149C(4)(b) of the National Law order that the respondent is disqualified from being a registered nurse for 36 months; 3. Pursuant to s 149C(4)(c) of the National Law require the National Board to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board; 4. Pursuant to s 149C (7) of the National Law order that the respondent cannot seek a review of the orders made by the Tribunal for 33 months. 5. Pursuant to s 163 of the National Law, that the Tribunal is the appropriate review body for any review of these orders. 6. That pursuant to Sch 5D, cl 13(3A) of the National Law the applicant is awarded its costs in the amount of $17,000.00. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2019