Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Wardhaugh [2020] NSWCATOD 3 Hearing dates: 25 November 2019 Date of orders: 10 January 2020 Decision date: 10 January 2020 Jurisdiction: Occupational Division Before: L Pearson, Principal Member D Armitage, Senior Member D Beaumont, Senior Member B Seth, General Member Decision: (1) The Respondent is reprimanded. (2) For a period of at least 12 months, or a period of time longer as determined by the Nursing and Midwifery Council: A. The Respondent is to attend for treatment by a psychologist, a psychiatrist and a general practitioner of her choice, at a frequency to be determined by the treating practitioner. The Respondent: (i) Is to authorise the treating practitioners to inform the Nursing and Midwifery Council of NSW of any of the following: (a) failure to attend for treatment; (b) termination of treatment; or (c) a significant change in health status, including a significant temporary change. (ii) Must provide the Council with the professional details of the treating practitioners; (iii) Must provide evidence to the Council of her attendance (frequency and compliance) with the treating practitioners every three months or as determined by the Council. B. The Respondent is to abstain from drug and alcohol use. C. The Respondent to attend for hair drug/ ETG testing as directed by the Council: (i) The Respondent to comply with any instructions provided by the Council in relation to hair testing. (ii) The hair drug test will require head hair with a minimum length of 3cm. D. The Respondent is to practice under "indirect" supervision in accordance with the Council Regulatory Supervision Policy and as subsequently determined by the appropriate review body, and is to: (i) nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council; (ii) authorise the approved supervisor to provide written reports to the Council at quarterly intervals, or as specified by the Council; and (iii) authorise the Council to provide nominated and approved supervisors with a copy of relevant decisions. E. The Respondent is not to undertake agency nursing/ midwifery. F. The Respondent is not to be the rostered nurse or otherwise placed in charge of any shift, ward or unit. G. The Respondent is not to have supervisory responsibility for any other health practitioner or student whether registered or not. H. The Respondent, within 7 days of a change in the nature or place of her practice, is to forward evidence to the Council that she has provided a copy of the full conditions to the nursing employer. I. The Respondent is to authorise the Council to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. J. The Respondent is responsible for the costs associated with complying with the conditions unless otherwise specified. (3) The Nursing and Midwifery Council of NSW is the appropriate review body. (4) The Respondent is to pay the costs of the Health Care Complaints Commission as agreed or assessed. Catchwords: PROFESSIONS AND TRADES – health practitioner – nurse – conviction of criminal offences – failure to notify charge and conviction – impairment – appropriate protective orders Legislation Cited: Crimes Act 1900 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Forster v Hunter New England Area Health Service [2010] NSWCA 106 Health Care Complaints Commission v Hinde [2013] NSWPHT 5 Health Care Complaints Commission v Litchfield (1997) NSWLR 630 Health Care Complaints Commission v Perera [2018] NSWCATOD 112 Lee v Health Care Complaints Commission [2012] NSWCA 80 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Brooke Elise Wardhaugh (Respondent) Representation: Counsel: L Thomas (Applicant) Solicitors: Health Care Complaints Commission (Applicant) New Law (Respondent) File Number(s): 2019/00198212 Publication restriction: Nil REASONS FOR DECISION 1. Ms Brooke Wardhaugh was registered as a nurse in February 2014. After completing a new graduate Registered Nurse program at the Forensic Hospital at Long Bay Correctional Centre with Justice Health & Forensic Mental Health Network she was employed permanently at the Forensic Hospital, until 24 August 2016. 2. On 7 June 2015 she drove while intoxicated and collided with another vehicle. The two victims of the other vehicle were seriously injured and one subsequently died. Ms Wardhaugh was charged, pleaded guilty, and on 21 July 2016 was convicted for dangerous driving occasioning grievous bodily harm while driving under the influence and dangerous driving occasioning death while driving under the influence. She was sentenced to five years imprisonment with a non-parole period of 2 ½ years. She is disqualified from driving for 5 years from 7 June 2015. On 21 July 2018 Ms Wardhaugh was released from custody on a Reintegration Home Detention Order, initially being required to have electronic monitoring, and required to present for random drug testing. The non-parole period expired on 20 January 2019. 3. On 13 July 2015 Ms Wardhaugh was admitted to hospital as an involuntary patient, and psychiatrist Dr Matthew Large made a mandatory notification to the NSW Nursing and Midwifery Council (the NMC). At an Impaired Registrant's Panel at the NMC on 9 February 2016 Ms Wardhaugh agreed to conditions on her registration under s 152J of the Health Practitioner Regulation National Law (the National Law). 4. On 16 August 2019 Ms Wardhaugh's application for general registration as a Registered Nurse was granted. 5. The Health Care Complaints Commission (HCCC) brings this application under the the National Law, on three grounds: 1. Complaint 1 is brought pursuant to s 144(a) of the National Law, and is that the practitioner has been convicted of criminal offences in NSW, being Dangerous driving occasioning death – drive under the influence contrary to s 52A(1)(a) of the Crimes Act 1900 (NSW); and Dangerous driving occasioning grievous bodily harm – drive under the influence, contrary to s 52A(3)(a) Crimes Act; 2. Complaint 2 is that she is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that she contravened s 130(1) of the National Law by failing to notify the National Board that she had been charged on 18 November 2015 with offences punishable by 12 months imprisonment or more within 7 days of becoming aware of the fact, and had failed to notify the National Board that she had been convicted on 21 July 2016 of offences punishable by 12 months imprisonment or more within 7 days of becoming aware of the fact; 3. Complaint 3 is that the practitioner has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability, condition or disorder, which detrimentally affects or is likely to detrimentally affect her capacity to practise nursing. As amended, the three particulars to this complaint are: 1. Particular 1: The practitioner suffers from an impairment, namely, a chronic low-grade mood disorder; 2. Particular 2: The practitioner has a history of anxiety, depression and occasional substance abuse; 3. Particular 3: The practitioner has been treated at hospital for episodes of self-harm. 1. The practitioner admitted Complaints 1 and 2 in her written statement of 24 September 2019. In response to Complaint 3, the practitioner admitted in oral evidence particular (1) and amended particular (3); and as to amended particular (2), admitted that she has a history of anxiety, depression and occasional substance use. The Tribunal hearing 1. The HCCC documents, including reports by Dr Anthony Samuels who assessed Ms Wardhaugh at the request of the HCCC in October 2015 and August 2019, are exhibit A1. The practitioner provided a written statement dated 23 September 2019, reports by her general practitioner Dr Stephen Lyon dated 4 February 2016 and 1 May 2019, and several character references (ex R1). 2. Dr Samuels gave oral evidence by telephone. Ms Wardhaugh gave oral evidence in person. The orders sought 1. The HCCC seeks a reprimand; that conditions be placed on Ms Wardhaugh's registration; that the NMC be the review body; and an order that Ms Wardhaugh pay its costs. 2. The practitioner does not contest that a reprimand is the appropriate protective order or that conditions should be placed on her registration, and does not contest an order that she pay the HCCC's costs. The issue in these proceedings is what conditions should be placed on her registration. Discussion and findings 1. Ms Wardhaugh has admitted Complaints 1 and 2 and particulars 1 and 3 of the amended Complaint 3. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). Due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, the standard of proof is the civil standard on the balance of probabilities. In making its findings the Tribunal is required to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order: Forster v Hunter New England Area Health Service [2010] NSWCA 106; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170. Complaint 1 1. The Certificate of Conviction dated 7 July 2017 (ex A1, tab 14) confirms that on 15 March 2016 Ms Wardhaugh pleaded guilty to, and on 20 July 2016 was sentenced, on the two counts under s 52A(1)(a) and s 52(3)(a) of the Crimes Act. Ms Wardhaugh states that she accepts full responsibility for the crimes she has committed, and she has served a custodial sentence for those crimes. Complaint 1 is admitted, and established on the evidence. 2. The conduct that led to the offences was serious, and the female occupant of the other vehicle died in hospital as a result of her injuries and the male occupant was seriously injured and required extensive and multiple surgeries. Ms Wardhaugh accepts full responsibility for the accident and states that she will always struggle with the loss and devastation she caused as a result of her actions. The sentencing remarks (ex A1 tab 18) acknowledge that Ms Wardhaugh had not planned to drive home after a work function and had got a taxi home, however decided to drive to her parents' home more than an hour's drive away when she got home and felt alone; and that the decision to drive was affected by her mental state at the time which was consistent with her longstanding psychological issues. Ms Wardhaugh spent part of her custodial sentence in protective custody as a consequence of her former employment with Justice Health. Complaint 2 1. Ms Wardhaugh has admitted to Complaint 2. The HCCC documents include confirmation that on 16 July 2015 Ms Wardhaugh contacted AHPRA's customer service line to notify the Board of certain events and a form was emailed to her. On 13 August 2015 Ms Wardhaugh's mother forwarded to AHPRA by email the completed notification form signed by Ms Wardhaugh on 10 August 2015. Ms Wardhaugh stated in that notification that she had been involved in a car accident on 7 June 2015 and had been charged with mid-range PCA and was awaiting a court hearing on 24 September 2015. 2. Ms Wardhaugh states that she was not aware that a separate notification was required after she was charged on 18 November 2015 with the offences under the Crimes Act. The charges were brought on 18 November 2015 (ex A1, tab 15). Ms Wardhaugh states that she was unaware that a separate notification was required after her conviction on 21 July 2016. Immediately after her conviction she was taken into custody, and was acutely distressed and frightened as she was placed in protective custody and transported to Silverwater Correctional Centre. 3. Ms Wardhaugh states that her failure to notify was not intentional or deliberate, and she was unaware of her reporting obligations and had already engaged with the NMC as part of the Impaired Registrants Program at the time she was charged. At the time of her conviction she was coming to terms with the conviction and immediate incarceration. Ms Wardhaugh apologises for not notifying the National Board within 7 days of having been charged with the additional offences under the Crimes Act on 18 November 2015, and following her conviction on 21 July 2016. 4. Ms Wardhaugh accepts, and the Tribunal finds, that she did not as required by s 130 of the National Law notify the National Board within 7 days of being charged and on being convicted of the offences under the Crimes Act. That was unsatisfactory professional conduct as defined in s139B(1)(b) of the National Law. Complaint 2 is admitted, and established on the evidence. Complaint 3 1. Complaint 3 is brought pursuant to s 144(d), that is, that the practitioner has an "impairment" as defined in s 5 of the National Law: 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— (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or (b) for a student, the student's capacity to undertake clinical training— (i) as part of the approved program of study in which the student is enrolled; or (ii) arranged by an education provider. 1. Ms Wardhaugh acknowledges in her written statement that she has a history of depression and anxiety which has been previously managed with anti-depressant medication. She states that she has had one admission to hospital for self-harm when aged 19; she saw a psychiatrist and was discharged home. On another occasion she presented to hospital having taken 8 antihistamine tablets and 10 panadol tablets, was seen by an on-call psychiatrist, but not admitted to hospital. She denies that she has a history of substance abuse. Her use of cannabis in the past was occasional, and she stopped all occasional use of cannabis following the car accident and has not used it since 2015. She does not drink alcohol or take illicit substances: the car accident changed her life and she will carry the grief of having caused immense devastation forever, and does not wish to put herself in a position where she could make a similar mistake again through use of mind altering substances. 2. Ms Wardhaugh's general practitioner, Dr Stephen Lyon, stated in a report dated 1 May 2019 (ex R1 tab19) that she has been under his care for 6 years. He reports a diagnosis of depression and anxiety from age 14. Dr Lyon notes that for the majority of Ms Wardhaugh's adolescent and adult life, she has actively sought and complied with treatment for her condition. He states that before the accident Ms Wardhaugh developed an exacerbation of her anxiety with depressed mood and he increased her medication, and that after the accident she suffered a significant exacerbation of her symptoms and developed post traumatic stress disorder. She presented to Prince of Wales psychiatric emergency care on 13 July 2015 where she was reviewed by psychiatrist Dr Matthew Large. 3. Dr Lyon noted in his report of 1 May 2019 that Ms Wardhaugh was at that time not currently participating in formal mental health treatment; he did not think it necessary given her current mental health status and high level of functioning. She was managing her mental health well with regular aerobic and anaerobic exercise, diet and regular social activities; there was no illicit drug use; and she reported light alcohol use occasionally. As a result, her anxiety and depression were essentially in remission. Dr Lyon stated that based on his understanding of Ms Wardhaugh, her medical history and high level of functioning in her then current full time position, he had no doubt that she is fit to perform nursing duties; and if she continues to manage her depression well she has a very good likelihood of success in future as a mental health nurse. 4. Dr Anthony Samuels, psychiatrist, has provided two reports. His first report (ex A1, tab 20) dated 16 October 2015 was provided in relation to his assessment of Ms Wardhaugh at the request of the NMC on 9 October 2015. Dr Samuels confirmed a history of low grade chronic depression, and concluded that Ms Wardhaugh suffers from an impairment within the meaning of the Act, namely a chronic low-grade mood disorder which has been present since she was 16 for which she was then receiving appropriate treatment including counselling and anti-depressants. He stated that Ms Wardhaugh had not used marijuana since April and although she had used it intermittently there was no evidence she was ever dependent on it or used it in large quantities. She had a history of drinking slightly outside WHO and Australia drinking guidelines over the years, would generally have up to four standard drinks on a single occasion perhaps once a week, with many weeks when she would not drink at all. He could find no clear evidence that Ms Wardhaugh met DSM-V criteria for an alcohol use disorder or marijuana abuse or dependence. 5. In Dr Samuels' second report dated 14 August 2019 (ex A1, tab 20(B)) he notes that Ms Wardhaugh was then on parole and having random drug screening. In his opinion Ms Wardhaugh had matured considerably since he saw her in 2015, her mood state was reasonably stable although she had periods of depression and anxiety; there was no evidence of substance misuse. Her mood state was reasonably stable however there was potential for deterioration in the future, and he had strongly urged Ms Wardhaugh to go back into some form of therapy. Dr Samuels considered that she is competent to practise nursing and has sufficient mental capacity, knowledge and skills to practise; she should be regularly engaged with treating mental health professionals. Dr Samuels recommended that if Ms Wardhaugh returns to practice there were a number of health conditions, including requiring regular contact with her general practitioner and a psychologist and that she see a psychiatrist at a mutually agreed frequency; that she abstain from drugs and alcohol entirely and be subject to random urine testing and Carbohydrate Deficient Transferrin testing; that when she returns to practice she will need close oversight and supervision by a senior nurse providing regular reports to the Council; and she should not engage in agency nursing. 6. Dr Samuels gave oral evidence. He stated that while Ms Wardhaugh has over time matured and shows more insight, there are issues in the past and real day to day problems to confront, and it will not be easy. He considers Ms Wardhaugh should see a psychologist and a psychiatrist at reasonable frequency, on a fortnight to monthly basis for one to two years. He agrees there is no current problem with or dependency on drugs or alcohol, however he recommends random testing given the gravity of the offence and the consequences, the possibility of alcohol use if she is not coping, and that she is likely to confront challenging situations. While Ms Wardhaugh is subject to random testing while on parole, the frequency is not known, and random testing would be a safeguard and a reminder for Ms Wardhaugh that there is oversight and monitoring. He would recommend CDT testing which provides an overview of the previous month, whereas ETG testing shows the previous 12-24 hours before the test. 7. In oral evidence Ms Wardhaugh stated that she has recently moved and will need to find a new general practitioner. She is not working and plans to go back to study psychology. She has a lot more awareness now and if unwell she has learned to talk herself down. She would usually contact her mother or her sister or friends if she needs to. She knows when she needs help as she gets moody and can tell if she is not coping. She would see a psychologist, to learn how to cope better. The drug and alcohol testing while she is on parole is that they come to her, and test her saliva and urine. She has a drink perhaps at Christmas or for a birthday. 8. The Tribunal finds that, as admitted in oral evidence, particulars 1 and 3 of Complaint 3 are established. 9. In considering particular 2, the evidence before the Tribunal confirms that Ms Wardhaugh has, as acknowledged, a history of anxiety and depression, Dr Samuels concluding that she has a chronic low-grade mood disorder. Ms Wardhaugh did not admit to having a history of substance "abuse". The Tribunal finds that Ms Wardhaugh has used cannabis in the past, the last recorded instance being the day before the car accident in June 2015. Contrary to what she told Dr Samuels at the assessment of 14 August 2019 that she does not use alcohol, on the evidence before the Tribunal she acknowledges occasional use of alcohol. While Dr Samuels had noted in 2015 that Ms Wardhaugh was drinking outside recommended guidelines, he did not consider that Ms Wardhaugh meets the DSM-V criteria for an alcohol use disorder or marijuana use or dependence, and there is no evidence in the more recent medical reports that she does. Having regard to that evidence the Tribunal finds that Ms Wardhaugh has a history of use of both legal and illicit substances. Ms Wardhaugh is subject to drug and alcohol testing as part of her parole conditions, and the report by the Community Corrections Officer of Wollongong Community Corrections dated 4 December 2018 (ex A1, tab 26) noted that the testing completed during supervision had produced negative results. The Tribunal finds that Ms Wardhaugh does not use or abuse illicit substances, and that her occasional use of alcohol could not be described as "abuse". Particular 2 of Complaint 3 is established in part, the Tribunal finding that Ms Wardhaugh has a history of anxiety and depression, and occasional substance use. Protective orders 1. The complaints against Ms Wardhaugh have been admitted, and established on the evidence. The Tribunal may, under s 149A(1) of the National Law: (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 1. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a), to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s 3A. 2. In considering what protective orders are appropriate, the relevant principles are as stated in Lee v Health Care Complaints Commission [2012] NSWCA 80, where the Court of Appeal held: 20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards. 1. The protective effect of an order can operate either in its direct effect on the practitioner, or by acting as a deterrent to repetition, both by the practitioner and as a deterrent to others: Health Care Complaints Commission v Litchfield (1997) NSWLR 630. 2. The HCCC seeks a reprimand, and Ms Wardhaugh accepts that that is an appropriate order. A reprimand demonstrates that the practitioner is sanctioned for failing to meet expected professional standards, and acts as a deterrent to other practitioners; and further, upholds and reinforces the standards of the profession: Health Care Complaints Commission v Perera [2018] NSWCATOD 112 at [99]. 3. The convictions the subject of Complaint 1 are extremely serious, and resulted from Ms Wardhaugh's decision to drive when she knew it was unsafe for her to do so, a factor the sentencing judge noted would be enough for him to find she had effectively abandoned her responsibility. The Tribunal accepts Ms Wardhaugh's evidence that her failure to notify that she had been charged and when she was convicted was not deliberate or intentional: it is still a failure to comply with her obligations. Both are incompatible with the high expectations as to lawful and ethical conduct both in the personal and professional life of a registered health practitioner. Ms Wardhaugh has consistently stated her remorse and sorrow for the loss she caused through her decision to drive while intoxicated. She has already been punished and paid her debt to society for her conduct the subject of the convictions, and any order the Tribunal makes must be protective of the public interest. The Tribunal agrees that a reprimand is appropriate to reinforce the need for practitioners to comply with their obligations to the regulatory authorities, and to reflect the seriousness of the conduct that led to the charges and convictions. 4. While the Tribunal has found that Ms Wardhaugh has an impairment as defined in s 5 of the National Law, the Tribunal is satisfied that her longstanding and chronic low grade mood disorder is not such as to preclude her from safely practising her profession. The Impaired Registrants Panel of the NMC concluded in February 2016 that Ms Wardhaugh could continue to practise, while requiring her to maintain a therapeutic relationship with a psychiatrist, psychologist and general practitioner and that her progress in relation to health and compliance with conditions be monitored to establish any progress or relapse in her health disorder. Ms Wardhaugh has recently been re-registered, and there is no issue as to her competence and skills, acknowledging that she is a relatively inexperienced practitioner. The Tribunal considers that Ms Wardhaugh can still be permitted to practise, but with conditions on her registration: Health Care Complaints Commission v Hinde [2013] NSWPHT 5. 5. The conditions proposed by the HCCC are as follows: 1. For a period of at least 12 months, or a period of time longer as determined by the Council: A. The Respondent to attend for treatment by a psychologist, a psychiatrist and a general practitioner of her choice, at a frequency to be determined by the treating practitioner. The Respondent: i. Is to authorise the treating practitioners to inform the Nursing and Midwifery Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status, including a significant temporary change. ii. Must provide the Council with the professional details of the treating practitioners; iii. Must provide evidence to the Council of her attendance (frequency and compliance) with the treating practitioners every three months or as determined by the Council. B. The Respondent to abstain from drug and alcohol use. C. The Respondent to attend for hair drug/ ETG testing as directed by the Council. i. The Respondent to comply with any instructions provided by the Council in relation to hair testing. ii. The hair drug test will require head hair with a minimum length of 3cm. iii. The Respondent to commence on Screening Group 2. D. The Respondent to practice under 'indirect close' supervision in accordance with the Council regulatory supervision policy and as subsequently determined by the appropriate review body. i. to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council; ii. to authorise the approved supervisor to provide written reports to the Council at quarterly intervals, or as specified by the Council; and iii. to authorise the Council to provide nominated and approved supervisors with a copy of relevant decisions. E. The Respondent not to undertake agency nursing/ midwifery. F. The Respondent not to be the nurse in charge of any shift, ward or unit. G. The Respondent not to have supervisory responsibility for any other health practitioner or student whether registered or not. H. The Respondent, within 7 days of a change in the nature or place of her practice, is to forward evidence to the Council that she has provided a copy of the full conditions to the nursing employer. I. The Respondent, to authorise the Council to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. J. The Respondent is responsible for the costs associated with complying with the conditions unless otherwise specified. 1. Ms Wardhaugh agrees with conditions A, B, E, G, H, I and J, with C(i) and (ii), with D while taking issue with the extent of supervision of practice, and takes issue with the wording of condition F. 2. The HCCC proposes under Condition C that Ms Wardhaugh commence screening on Screening Group 2, the details of which are specified in the NMC document Participant Procedure: drug screening, noting that the reference to timing can be removed if Ms Wardhaugh is content for the Council to make the determination; alternatively, it can be left in and the commencement point determined by the Tribunal. Ms Wardhaugh submits that Group 2 screening would require urine screening (on average) four times per month and hair analysis quarterly, which is unnecessary given that quarterly hair analysis would reveal any breaches in relation to compliance. The cost of screening is also a relevant factor. Ms Wardhaugh proposes that Group 4 screening would be appropriate, requiring 5 to 10 urine screens on average each year and hair analysis quarterly, or in the alternative Group 3 requiring one urine screen on average per month and quarterly hair screening. 3. The HCCC proposes "indirect close supervision" in Condition D, which it submits reflects the usual practice of health facilities where nurses work in a team and where the practitioner is an early career nurse. Ms Wardhaugh submits that "indirect supervision" is a more appropriate level of supervision, and a more than adequate protection to be put in place. 4. In relation to condition F, Ms Wardhaugh submits it would be preferable, as a matter of practicality, to qualify the condition with the words "appointed or nominated", to accommodate situations where the registered nurse rostered in charge is suddenly or temporarily unavailable. The HCCC submits that the wording should not be changed as the condition comes from the Council's handbook and ensures that the employer places a protective boundary around Ms Wardhaugh; and that both Condition F and G address the risk of Ms Wardhaugh being placed in a position to be the nurse in charge or have supervisory responsibility by default. 5. In considering what conditions are appropriate, the Tribunal notes that Ms Wardhaugh is now aged 27. Since her initial registration in 2014, in November 2018 she completed a Graduate Certificate in Mental Health Nursing. While in custody she completed the Corrective Services Young Adult Offenders Program, and Enough is Enough Program; and before her incarceration she completed the Traffic Offenders Intervention program. Since release she has been employed on a temporary full-time contract at the NSW Nurses & Midwives Association. She plans to resume studies, in psychology, and perhaps eventually work in mental health nursing. 6. The proposed conditions are generally consistent with the recommendations made by Dr Samuels. Dr Samuels' concern was that although her mood state is reasonably stable, Ms Wardhaugh should have a continuing therapeutic relationship with a psychologist and a psychiatrist in addition to the support she receives from her family and her general practitioner, to assist her to manage her condition and to cope with what Dr Samuels described as the inevitable obstacles that lie ahead. The Tribunal agrees, having considered Ms Wardhaugh's evidence, that that concern is warranted and that condition A is appropriate. 7. In relation to condition C, the Tribunal agrees with Ms Wardhaugh that Group 2 screening is not warranted. Ms Wardhaugh intends on studying rather than resuming work as a nurse in the immediate future. She is subject to random urine and drug screening while on probation. The Tribunal considers that the frequency of testing should be determined by the NMC once Ms Wardhaugh is no longer subject to that monitoring, taking into account what is then understood about her circumstances including the progress of her continuing treatment in accordance with Condition A, and whether she is working at that time. 8. While there is no issue with Ms Wardhaugh's competence as a practitioner, she is relatively inexperienced, and has not practised for some time. Supervision would allow her to work, and thus maintain the nursing and midwifery workforce, while ensuring public safety. The NMC Regulatory Supervision Policy defines "indirect close" supervision as requiring the supervisor to be on site and working in close proximity within a ward or unit with the practitioner; "indirect" supervision would require the supervisor to be in the same facility or organisation, available for reasonable access if required, and able to "check in" on the practitioner occasionally during the shift. The Tribunal is of the view that "indirect" supervision would meet the goals of the NMC Regulatory Supervision Policy, which include allowing a practitioner to continue practising by providing an appropriate level of monitoring and oversight to reassure that public safety is being preserved. That level of supervision would require the supervisor to be available for reasonable access if required, provide advice, and check in on Ms Wardhaugh occasionally during a shift to ensure that the responsibilities delegated to her are being met. 9. The Tribunal accepts the concern of the HCCC that Ms Wardhaugh is an early career nurse and should not be placed in a position of responsibility in charge of a shift or ward. The Tribunal also accepts the submission of Ms Wardhaugh, which is based on practicalities of the working environment. The Tribunal considers that an appropriate response is to qualify the condition by the word "rostered", to make clear to an employer that arrangements need to be made to ensure that Ms Wardhaugh does not take on unnecessary and inappropriate responsibility, and that the employer makes provisions to ensure that she is neither rostered on nor left in charge. Costs 1. The HCCC seeks, and Ms Wardhaugh does not dispute, an order that Ms Wardhaugh pay its costs of the proceedings. Clause 13 of Sch 5D of the National Law enables the Tribunal to make an order for payment of costs. The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, being that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. The Tribunal is satisfied that it is appropriate to order that Ms Wardhaugh pay the costs of the HCCC. Orders 1. The Tribunal orders: 1. The Respondent is reprimanded. 2. For a period of at least 12 months, or a period of time longer as determined by the Nursing and Midwifery Council: A. The Respondent is to attend for treatment by a psychologist, a psychiatrist and a general practitioner of her choice, at a frequency to be determined by the treating practitioner. The Respondent: (i) Is to authorise the treating practitioners to inform the Nursing and Midwifery Council of NSW of any of the following: (a) failure to attend for treatment; (b) termination of treatment; or (c) a significant change in health status, including a significant temporary change. (ii) Must provide the Council with the professional details of the treating practitioners; (iii) Must provide evidence to the Council of her attendance (frequency and compliance) with the treating practitioners every three months or as determined by the Council. B. The Respondent is to abstain from drug and alcohol use. C. The Respondent to attend for hair drug/ ETG testing as directed by the Council: (i) The Respondent to comply with any instructions provided by the Council in relation to hair testing. (ii) The hair drug test will require head hair with a minimum length of 3cm. D. The Respondent is to practice under "indirect" supervision in accordance with the Council Regulatory Supervision Policy and as subsequently determined by the appropriate review body, and is to: (i) nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council; (ii) authorise the approved supervisor to provide written reports to the Council at quarterly intervals, or as specified by the Council; and (iii) authorise the Council to provide nominated and approved supervisors with a copy of relevant decisions. E. The Respondent is not to undertake agency nursing/ midwifery. F. The Respondent is not to be the rostered nurse or otherwise placed in charge of any shift, ward or unit. G. The Respondent is not to have supervisory responsibility for any other health practitioner or student whether registered or not. H. The Respondent, within 7 days of a change in the nature or place of her practice, is to forward evidence to the Council that she has provided a copy of the full conditions to the nursing employer. I. The Respondent is to authorise the Council to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. J. The Respondent is responsible for the costs associated with complying with the conditions unless otherwise specified. 1. The Nursing and Midwifery Council of NSW is the appropriate review body. 2. The Respondent is to pay the costs of the Health Care Complaints Commission 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: 10 January 2020