Re Medical Practitioners Act (1966) 67 SR (NSW) 448
[1967] 1 NSWR 357
Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495
Source
Original judgment source is linked above.
Catchwords
Re Medical Practitioners Act (1966) 67 SR (NSW) 448[1967] 1 NSWR 357
Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495
Judgment (14 paragraphs)
[1]
REASONS FOR DECISION
On 2 August 2022, Tanya Bechara ("Ms Bechara", "the Applicant" or "the practitioner") applied to the Tribunal under s 163B of the Health Practitioner Regulation National Law (NSW) ("the National Law") for review, seeking a reinstatement order so she could apply for re-registration as a student nurse. In her application to the Tribunal, Ms Bechara stated as grounds for the application, that it was over 18 months from the date of the decision made in 2020 preventing her from making an application for review of the cancellation of her registration as an enrolled nurse. She is now wishing to re-apply for nursing registration.
[2]
Background
On 2 December 2020, in proceedings brought by the Health Care Complaints Commission (the "HCCC"), the Tribunal made findings that Complaints 1 and 2 of unsatisfactory professional conduct were made out, and a finding that the complaints cumulatively amounted to professional misconduct: Health Care Complaints Commission v Bechara [2020] NSWCATOD 140 ("the 2020 Decision"). Ms Bechara was represented by counsel in those proceedings. As set out below, she admitted the particulars of the two complaints.
On 2 December 2020, the Tribunal cancelled Ms Bechara's registration and made orders that she not apply for return to the register for 18 months, an order under s 149C(5) of the National Law prohibiting her from providing any "health services" including offering cosmetic or other forms of injectable treatments, other than as authorised by and in accordance with the requirements of her registration as a student nurse undertaking the Bachelor of Nursing course, for the period until she obtains a reinstatement order under Div 8 of Part 8 of the National Law or its equivalent, or is re-registered as a nurse until such time as a reinstatement order is made, and an order that she pay the costs of the HCCC.
The background to those proceedings was summarised in the 2020 Decision at [4]-[28] as follows:
"4. These disciplinary proceedings relate to the practitioner's work at Radiance Cosmetics, a clinic in Canterbury NSW owned by the practitioner, primarily performing cosmetic injections. There are three Complaints:
(1) Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c)(i) of the National Law, in that between 19 October 2017 to 26 January 2018 she breached condition 3 on her registration by practising without the on-site supervision of a registered nurse;
(2) Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law, in that she:
(i) Provided false information to the Council committee members hearing proceedings under s 150 of the National Law on 7 June 2018 by stating that she had [Registered Nurse A] supervising her from October 2017 to January 2018, that RN A 'came to the practice a couple of times', 'probably less than 5 times', for 'a couple of hours' and once 'spent half a day', in circumstances where RN A had never attended the practice and had not performed supervisory duties;
(ii) Continued to provide treatment to patients by performing cosmetic injections between 17 March 2018 to 3 February 2019 when her registration as an enrolled nurse had been suspended on 28 February 2018;
(iii) On 29 May 2018 held herself out as being entitled to practice as an enrolled nurse including by displaying business cards at her practice with the title "cosmetic nurse"; and
(iv) Between around May 2018 to August 2018 held herself out as being a registered nurse by stating to RN B that she was a registered nurse.
(3) Complaint Three is that the practitioner is guilty of professional misconduct under s 139E of the National Law, relying on the particulars of Complaints One and Two cumulatively; and relying on particular 2 of Complaint Two, or in the alternative, when two or more of the particulars are taken together.
5. In a statement dated 24 April 2020 the practitioner admits to the underlying conduct as particularised with respect to Complaints One and Two. The practitioner makes no submission opposed to the Tribunal finding as to whether her conduct was unsatisfactory professional conduct or professional misconduct.
6. The HCCC seeks orders that the practitioner's registration be cancelled with a non-review period of 18 months, a prohibition order, and its costs.
7. The practitioner makes no submission in opposition to an order cancelling her registration, or an order for costs. The length of a non-review period and whether a prohibition order should be made are in issue.
History of disciplinary proceedings
8. The practitioner's disciplinary history is relevant to an understanding of the context of the allegations made in Complaints One and Two, and in considering what protective orders are appropriate.
9. In an affidavit sworn 2 August 2018 the practitioner summarised her employment history as a beauty therapist from 1999 before she completed a Diploma of Nursing as a full time 12 month course, and was registered as an enrolled nurse in August 2014. She had six months employment as a nurse in a Macquarie Street surgery in 2014, and opened her clinic, Radiance Non-Surgical Cosmetics, in April 2016.
10. In March and June 2016 three complaints were made against the practitioner, that she was providing cosmetic injections from home and selling S4 medications without authorisation, was not covered by insurance, and was claiming to be a registered nurse; that she was uploading photographs of patients on social media without permission from the clients or her then employer; and that she was falsely advertising that she was a clinical nurse specialist.
11. A Counselling Committee of the Council held a counselling interview on 7 September 2016 (ex A1, tab 17). The practitioner advised that she worked as a sole trader as a cosmetic nurse, working remotely with Dr Albert Ho and other medical practitioners employed by Dr Ho's company "Renaissance". The practitioner said that she undertook an assessment of the clients and would consult with the client and a doctor from the Renaissance team via Skype, the doctor would consent for the patient to undergo the treatment and complete a prescription for the Botox or filler and email it to her. The practitioner stated that she kept the S4 medications in a locked cupboard or refrigerator; she did not administer S8 medications, which would have to be done by a registered nurse. The Committee noted limitations as to the practitioner's CPD reporting. The practitioner advised the Committee that she was unaware of the protected titles "Registered Nurse" and "Clinical Nurse Specialist" until she had received documentation from the Council about her use of titles. The Committee recommended to the Council that the matter be referred to the Australian Health Practitioner Regulation Agency ("AHPRA") to undertake a CPD audit.
12. A further three complaints were received by the Council, from patients unhappy with the treatment provided by the practitioner. On 7 March 2017 the Health Professionals Council Authority ("HPCA") undertook an inspection of the practitioner's premises, and a Performance Assessment was conducted on 24 March 2017. The Inspection Report (ex A1, tab 17) noted issues with the practitioner's compliance with infection control procedures, and the absence of documented policies and procedures, including for infection prevention and control and medication administration. The Performance Assessment Report (ex A1 tab 17) noted a number of deficiencies in the practitioner's practice as an enrolled nurse.
13. The assessors recorded concerns about the practitioner's ability to safely calculate and administer a medication dose, that she was not able to clearly articulate the signs and symptoms of a patient having a severe anaphylactic reaction to a dermal filler, or to explain the use, action and side effects of a particular drug before embarking on cosmetic procedures, and that she was unfamiliar with common drugs and unable to identify possible side effects of the use of a commonly used lip filler. The assessors concluded that the practitioner had not demonstrated that she could fulfil the duty of care in the undertaking of practice as an enrolled nurse, practice within legislation and standards, undertake a comprehensive health assessment, document findings, respond and provide care to a deteriorating client, administer medications safely and attend to hand hygiene. The assessors concluded that the practitioner required direct supervision by a registered nurse in addition to further education.
14. The assessors recommended that the practitioner undertake and complete a number of programs before returning to nursing practice and that she be subject to direct supervision for a period and then mentoring.
15. On 28 March 2017 interim conditions were imposed on the practitioner's registration under s 150 of the National Law (ex A1, tab 17) until reviewed by the Council. The conditions included a condition that the practitioner not work as an enrolled nurse, and not check or administer any medication.
16. The practitioner requested a review of the s 150 decision, and s 150C proceedings were held on 6 April 2017 (ex A1, tab 17) where the conditions remained unchanged. The Council committee recommended that the practitioner attend a Performance Review Panel to consider the full report of the Performance Assessment.
17. A Performance Review Panel constituted by the Council conducted a hearing on 14 June 2017 (ex A1, tab 17), and concluded that it had not been demonstrated that the practitioner was practising at, or had the required knowledge at the level expected for a nurse with similar years of experience and training. The panel recommended a number of education courses, and completion of a further performance assessment. Conditions were imposed on the practitioner's registration, including condition 3 which was in the following terms:
'3. The registrant must practise under the indirect or direct supervision of a registered nurse (Division 1) who does not have any conditions on his/her practice. The supervisor must be:
(a) not directly employed or managed by the registrant;
(b) on-site and working in close proximity within a ward or unit with the registrant; and
(c) able to oversee and provide advice about the registrant's practice when necessary.'
18. There were three further notifications received by the Council, two in May 2017 that the practitioner was working contrary to the condition imposed on 28 March 2017 that she not work as an enrolled nurse until reviewed, and one in June 2017. At a s 150 hearing on 14 July 2017 the practitioner advised that she was not currently practising as a nurse but running her business and overseeing her staff's performance, and had submitted the name of a supervisor. The conditions on her registration remained unchanged.
19. On 20 October 2017 the Council advised the practitioner that it had approved RN A as the practitioner's supervisor "as outlined in your conditions and with the understanding that you will strictly adhere to your supervision plan". The supervision plan provided by the practitioner and RN A (ex A1, tab 7) stated:
'Full days every Monday and Tuesday in which I can attend her clinics and provide direct supervision
On the other days I work morning shift (7.30am-3.30pm), however I can be available to supervise directly after 3.30pm or via phone/video consult.'
20. An inspection was conducted under s 164A(2) of the National Law on 12 December 2017 (ex A1, tab 13). The practitioner was recorded as saying to the inspectors that her approved supervisor called in on Mondays and Tuesdays; there was no pre-set arrangement other than that RN A calls and lets the practitioner know when she is coming in. The inspectors recorded that the practitioner had not heard from RN A for the duration of the inspection completed on a Tuesday (9.45am-10.33am). The inspectors called in again at 12.30pm and were told by the receptionist that the approved supervisor had not called to advise when she would be in; she checked with the practitioner who advised that the supervisor "will probably come in after lunch". The inspectors noted that there were no other practitioners present during the inspection.
21. The comments of the inspectors were that the practitioner was working alone; there were no policy documents or information, no formal drug register, prescription chart or documentation about the procurement of drugs. The inspectors could not verify that the approved supervisor had attended at any time since the supervision plan had been approved, and concluded that the practitioner was non-compliant with her supervision conditions.
22. On 25 January 2018 RN A wrote to the Council (tab 9) stating that she was unable to provide a performance report by the due date of 13 January 2018 because between October to January she had barely seen the practitioner for two weeks, and she had advised the practitioner that she could not sign the supervision report as she had never supervised her work, and requested that another supervisor working in the same cosmetic area be assigned.
23. A further s 150 hearing was held on 26 February 2018. The practitioner did not attend, advising the Council that she had had cosmetic surgery some days before. The practitioner provided a letter to the panel (ex A1, tab 18), in which she stated that her lawyers had explained that "direct" and "indirect" meant "onsite" and "offsite"; and that in January 2018 she was made aware she required a supervisor on site. The practitioner listed the steps she had taken, including completing education courses, and hiring a full time RN, and stated that her breach of the supervision condition was inadvertent.
24. The delegates noted that the practitioner had advised that she had misunderstood the conditions and was unaware that she required on site supervision. The delegates noted that the practitioner had attended a counselling session, three s 150 hearings and a Performance Review Panel, and on each occasion had assured decision makers she would make changes to her practice to adhere to her conditions and the standards of practice of enrolled nurses; there was no evidence that she had implemented the changes. The delegates suspended the practitioner's registration. The practitioner was advised by telephone and by letter that she was to cease practising immediately (ex A1, tab 14).
25. In May 2018 the practitioner sought a review of the suspension of her registration under s 150A of the National Law. A further inspection of her premises was conducted under s 164A(2) of the National Law on 29 May 2018 (ex A1, tab 20). The inspectors were informed by the receptionist that the practitioner was currently seeing a client. The receptionist left the reception area to inform the practitioner of the arrival of the inspectors, and informed them that the practitioner had left the building and would return for the next appointment at 12.30pm. The inspectors went into the practitioner's consulting room, and while they were inspecting the room the practitioner returned through the back door. The inspectors asked for the patient records for the client she had seen earlier, and the practitioner said she had not seen any clients that day and did not see any clients except for follow up appointments. The inspectors asked the practitioner to produce a printout from the appointments diary for the previous and current weeks, copies of patient records from the previous and current weeks and copies of patient records for the patients seen and to be seen that day. The practitioner refused and said if the inspectors wanted records they should request them by email and make an appointment. The inspectors requested a copy of the diary printout for that day. The practitioner provided a printout for the previous day which indicated that there were two other persons on-site. The inspectors sighted Radiance Cosmetics business cards which were displayed on the reception desk which contained the name "Tanya" and under that name "Cosmetic Nurse".
26. The hearing of the review under s 150A of the National Law was conducted on 7 June 2018. During that hearing (ex A1, tab 21) the practitioner stated that the supervision provided by RN A was both indirect and direct and consisted of "ongoing conversations over the phone and she came to the practice a couple of times" (Transcript p2). The practitioner stated it was less than five times, and said that RN A spent "a couple of hours" with her, and once spent half a day (Transcript p 3). The decision to suspend the practitioner's registration was affirmed on 6 July 2018.
27. The practitioner appealed to the Tribunal under s 159 of the National Law against the suspension of her registration. In a decision published on 7 November 2018 the practitioner's appeal to the Tribunal (differently constituted) was dismissed: Bechara v Nursing and Midwifery Council of New South Wales [2018] NSWCATOD 181. The Tribunal considered the practitioner's understanding of and compliance with the supervision condition on her registration, commenting that compliance with practice conditions is an essential requirement of registration as a health practitioner. The Tribunal also considered the practice condition imposed on the practitioner's registration requiring her to complete a number of educational courses selected to assist her in overcoming deficiencies identified in the course of performance assessments, and concluded that with one minor exception she had failed to complete those courses. The Tribunal concluded that it was appropriate that the practitioner's registration be suspended pending the outcome of the complaints against her that were at that time being considered, commenting:
'70. It is obviously in the public interest that registered health practitioners comply with conditions validly imposed upon their registration, and that they be in a position to practice their profession in a competent and safe manner. A failure to be able to do so justifies suspension of registration pending such improvements as are necessary to comply with such conditions and to put the health practitioner in a position in which he or she is able to practice competently and safely.
71. In addition, the appellant's poor appraisal at her initial performance assessment, and her failure to totally satisfy the assessors at the subsequent assessment is indicative that she presents as a person who potentially may pose a risk to the health and safety of her clients and future clients.'
28. As noted in the Tribunal reasons at [73], the operation of beauty salons in which treatment occurs using injectable substances is unregulated, at least in New South Wales, and there is no regulation of who may administer an injection. The Tribunal in those proceedings commented that it regarded it as essential that such treatment be given in a sterile environment with procedures and equipment on hand to deal with emergencies such as anaphylaxis. The Tribunal notes that in those proceedings under s 159 of the National Law, and in the several disciplinary interventions of the Council from 2016 to 2018, the practitioner's conduct has been considered in the context of the application of skills and knowledge of an enrolled nurse."
Ms Bechara made no submissions at the 2020 hearing about whether her registration should be cancelled, nor if any prohibition order should be made.
Since the 2020 decision, the practitioner was charged with, and on 22 February 2021 pleaded guilty to, holding herself out as being registered under the Health Practitioner Regulation National Law (Victoria) in breach of s 116(1)(c) of the Health Practitioner Regulation National Law (Victoria) Act 2009. The facts included the practitioner injecting patients with dermal fillers on 17 November 2018 after her registration in NSW had been suspended. She was ordered to pay compensation in the amount of $2,650 and was fined $5,000 without conviction (the "Victorian proceedings").
[3]
Relevant legislation
The powers of the Tribunal on a review under s 163B of the National Law are as follows:
163B Powers on review [NSW]
(1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following -
(a) dismiss the application;
(b) make an order ending or shortening the period of the suspension concerned;
(c) make a reinstatement order;
(d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions;
(e) make an order -
(i) ending or shortening the period of a prohibition order; or
(ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions.
(2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise.
(3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if -
(a) the person makes an application for registration to the National Board; and
(b) the relevant National Board decides to register the person.
(3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4).
(4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order.
(5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.
These proceedings are not a re-hearing of the 2020 decision to cancel Ms Bechara's registration as a nurse, or the prohibition order, or the order that she not seek re-registration for a period of 18 months. In conducting this review, the Tribunal cannot review the original decision, or any findings made in connection with the making of that decision: National Law, s 163C(2). The task of this Tribunal is to determine the appropriateness, at the time of the review, of the order concerned: s 163C(1).
The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16, the Tribunal stated (at [12]) the principles in the following terms:
"We accept as correct the Commission's submissions as to the relevant principles to be applied. These include:
(1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of 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 (s 3(2)(a));
(2) The paramount consideration is the protection of the health and safety of the public: see s 3A;
(3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24];
(4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42][;] Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13].
(5) There is no public interest in denying forever the chance of redemption and rehabilitation to [a] former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance[:] Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23].
(6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, 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': [Ameisen] at [24].
(7) It is not 'a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future'. The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]."
In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 ("Ng"), the Tribunal stated at [30]-[31]:
"In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that:
'[A]n applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness.'
In that case, the Medical Tribunal also stated at [42]:
'[T]he ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession.'"
We note that the fixing of the non-review period of 18 months by the Tribunal in 2020 does not necessarily mean that the Tribunal had at that time formed a fixed view that things would have changed by the end of that period. The purpose of such an order is to indicate the minimum period within which the Tribunal considers the person should not be able to practise his or her profession, while holding open the possibility that an application for re-registration thereafter will at least be considered: Chen v Health Care Complaints Commission [2017] NSWCA 186.
As noted in Ng at [29], 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) 77 NSWLR 495; [2010] NSWCA 106; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66.
The role of the HCCC in these proceedings is to act as contradictor to test the evidence, to bring evidence itself where appropriate, and to assist the Tribunal with submissions: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155. The HCCC opposes this application. The HCCC submits that the application is premature. Based on the material filed by Ms Bechara, it submitted that there is not sufficient evidence available for the Tribunal to be satisfied that Ms Bechara demonstrates protection of the public, reformation, any education and treatment to satisfy the Tribunal that she has made a serious attempt to rehabilitate herself, all of which are required should reinstatement be appropriate. The HCCC submits that Ms Bechara has limited insight and she has failed to demonstrate genuine insight and a proper appreciation of the role of an enrolled nurse. The HCCC contends that a further two to three year non-review period is needed to protect the public and allow Ms Bechara sufficient time to complete relevant education, demonstrate insight and fully appreciate that a registered nurse must demonstrate professional values including respect, trustworthiness, and integrity. For the reasons set out below, we agree, except as to the duration of the non-review period, which we have fixed at a further 18 months.
[4]
Tribunal proceedings
The hearing of Ms Bechara's application was listed on 9 December 2022 for one day. Ms Bechara was represented by a solicitor. The HCCC was represented by a solicitor advocate.
Ms Bechara relied upon a bundle of documents consisting of 17 pages, which was filed on 1 November 2022 (A1). The initiating application with annexures filed on 2 August 2022, consisting of 13 double sided pages was also relied upon (A2).
The HCCC filed and served its documents on 27 October 2022 (R1), including documents relating to the original proceedings in the Tribunal, and the applicable registration standards and Code of Conduct. A further three bundles were filed on 23 November, 8 and 9 December 2022 (R2, R3 and R4 respectively).
Ms Bechara and her solicitor appeared by audio visual link. The HCCC, represented by Ms Bayley appeared in person at the Tribunal's hearing rooms at Sydney.
[5]
Ms Bechara's evidence
In her statement of 16 September 2022, which Ms Bechara adopted under oath at the hearing, she says that she admits the complaints in the 2020 proceedings. She said the resulting cancellation of her registration has led to "heavy consequences that I now face which are loss of employment, loss of future carer, loss of reputation, loss of opportunity to practise as a nurse and loss of five years in life".
Ms Bechara sets out that prior to being suspended in 2018 she was a valuable employee of reputable operating theatres and medical clinics, being a well-trained and experienced cosmetic nurse. After her cancellation the practitioner enrolled in a bachelor's degree in nursing at Charles Sturt University. She says that she had to discontinue her studies because she is unable to register with AHPRA and graduate.
During the COVID-19 pandemic, the practitioner volunteered at COVID-19 testing sites. She felt she could be of some assistance during that period given she had prior experience as a scrub/scout enrolled nurse working in operating theatres.
She said that five years have now passed. She understands the serious consequences of performing work while suspended. She says she understands the importance of "integrity, honesty and safety in the nursing profession".
Apart from her studies at Charles Sturt University, the practitioner has not undertaken any other education relating to her profession. The cross examination explored whether Ms Bechara had been working as a cosmetic nurse since the 2020 proceedings. She denied doing so and we are unable to make a positive finding that she had been, on the evidence before us.
The practitioner said in her statement that she received "excellent feedback" from clients concerning her work as a cosmetic nurse. She was asked, "Do you think you are safe to work as a nurse", to which she replied, "Yes, I made mistakes and put the public at risk. I have learnt a big deal. I have gone back to uni. I completed second year, I was going to do the third year and the university said we cannot register you in the unit because you are not registered with AHPRA. I have emails. AHPRA said I could continue. The university said I could not enrol until the registration is reinstated and then I can start third semester. I am very excited to come back as a nurse, eager and passionate".
The practitioner said she did not want to return to cosmetic surgery and would prefer working in operating theatres as a scout nurse, as she had done some years ago.
[6]
Evidence of Nawaar Mouhajer
A character reference of Ms Nawaar Mouhajer dated 23 August 2022 is relied upon by the practitioner. Ms Mouhajer adopted the statement and was cross examined. Ms Mouhajer is a registered nurse and a close friend of the practitioner. She attests to the practitioner being a person of integrity and sincerity who wishes to return to nursing. In cross examination, Ms Mouhajer said she only found out about the conditions placed on the practitioner's registration in the media. She recalled being asked to write a reference for the Victorian proceedings, but provided little other detail.
We have placed little weight on Ms Mouhajer's evidence. While she attests to the practitioner's integrity, the witness provided very little detail about the nature of the practitioner's history of being de-registered as a nurse and the criminal offences in Victoria to which she entered a plea of guilty. Ms Mouhajer's evidence does little to assist the practitioner in this application.
[7]
Evidence of Christala Savvides
Ms Christala Savvides also prepared a witness statement dated 23 August 2022. She adopted that statement and was cross examined. She attests to the practitioner as being a dedicated and driven person. The witness was aware of the Victorian proceedings and agreed that the statement was prepared for the Victorian Magistrates Court. We placed little weight on the evidence of Ms Savvides. This is because she does not reference the nature of the practitioner's offending in Victoria and the impact, if any, it may have on her integrity as a nurse. The reference is of little assistance to the practitioner in these proceedings.
[8]
Character References
The practitioner relies on character references of Elizabeth Colig and Havva Memis also of 23 August 222. The statements are unsigned. The witnesses were not available for cross examination and their evidence could not be tested. No reference is made to the reasons for the practitioner's registration being cancelled. They were references used in the Victorian criminal proceedings. We place little weight on them for similar reasons as set out above.
[9]
The 2020 findings
As noted above, this review is not a rehearing of the decisions made in 2020 or the findings made in connection with the making of those decisions. However, in order to determine whether Ms Bechara has discharged the onus of demonstrating the reformation of character referred to in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448; [1967] 1 NSWR 357, so that the Tribunal can be satisfied that she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, the Tribunal notes the following findings from the 2020 Decision at [59]-[61]:
"The practitioner has admitted that she continued to treat clients after her registration was suspended on 26 February 2018. The Tribunal is satisfied that the practitioner was aware that her registration was suspended, having been told by telephone on 26 February 2018 of the decision, and that she was to cease practising immediately. The Tribunal is satisfied that the practitioner attempted to conceal the fact that she was continuing to treat patients, in her response to the request for documents at the inspection on 29 May 2018. Her statement to the delegates at the s 150 hearing on 7 June 2018 that the inspectors had asked for a copy of the day before was not supported by either the record of the inspection, or Ms Tankard's affidavit of 17 August 2018. Her response in cross examination at the Tribunal hearing to the proposition that she had not provided the daily appointment diary because it would show that she was treating clients was to shift responsibility to the inspectors, stating that they had accepted the document they took on the day.
In addition to continuing to treat patients notwithstanding that her registration had been suspended, the practitioner continued to hold herself out to patients that she was a registered health practitioner, by using business cards in May 2018 stating that she was a "cosmetic nurse".
That conduct was in breach of her obligations to comply with the requirements of the National Law, and more fundamentally, to ensure that safe and quality care was provided to her patients, and was both improper and unethical. The practitioner put her business interests over her obligations as a health practitioner."
The Tribunal went on to find at [67]:
"The Tribunal is satisfied that the practitioner's conduct in continuing to treat patients in her clinic after her registration was suspended, and in providing false information to the Council delegates at the s 150 hearing on 7 June 2018 as to the supervision arrangements, was conduct of a sufficiently serious nature to justify suspension or cancellation of her registration. That conduct could not be described as an inadvertent or careless lapse, but was deliberate, and put her business interests ahead of the safety and care of her patients. The conduct continued notwithstanding the several interventions by the Council to supervise her practice and assist the practitioner to improve, and to ensure the protection of the health and safety of her patients. The practitioner has identified in her statement of 24 April 2020 that there were extenuating circumstances to explain her behaviour, however those circumstances occurred in the period from late 2018, and do not explain her behaviour in breaching the conditions of her registration in 2017. The practitioner's conduct in persistently and deliberately breaching the conditions on her registration and making false representations to the Council was conduct which, in the terms used by Basten JA in Chen, revealed a fundamental defect of character."
We find the practitioner has not established that her character is reformed. Honesty is fundamental to nursing which is set out in the ICN Code of Ethics for nurses, requiring that nurses demonstrate professional values such as respect, trustworthiness and integrity. We are not satisfied that the practitioner has demonstrated that she is reformed, particularly where the Tribunal made significant findings against her in the 2020 proceedings. The practitioner made no mention of her dishonesty and how her character has been reformed. As set out above, little weight is given to the character references. We find that the cancellation decision remains appropriate to reinforce high professional standards and maintain public confidence in the profession.
Similarly, there is no evidence of rehabilitation. The Tribunal in the 2020 proceedings fixed an 18-month non-review period and said (at [86]) the practitioner "may, with demonstrated rehabilitation and reformation, be able to return to the profession at some time". There is no evidence that the practitioner has completed relevant ethical or professional education. Similarly, there is no evidence the practitioner has attended any psychological counselling, mentoring, or psychiatric treatment to understand her ethical and professional obligations. Cancellation remains appropriate. This is because we are not satisfied that the practitioner has taken sufficient steps to improve her knowledge to ensure she is suitable to return to nursing practice.
In relation to Ms Bechara's insight into her conduct, the Tribunal noted at [75]:
"The practitioner submits that she has gained insight into the shortcomings in her practice, and that in her evidence to the Tribunal she has acknowledged the potential impacts of her conduct on public safety. She has acknowledged that she provided misleading and false information to the Council delegates. She acknowledges that she has in the past put her financial interests above her obligations to her patients and the profession, and she intends not going back into running a business. The practitioner has acknowledged that her past conduct was stupid. She is currently enrolled in an educational course, and continuation of her education is essential to demonstrating her rehabilitation."
The Tribunal concluded at [86]:
"The practitioner maintained in oral evidence that she acknowledges she has made mistakes and is confident she will comply in future. However, having regard to her evasive responses to questions concerning the printing of the daily appointment diary, and to her understanding of the supervision condition, the Tribunal has reservations as to the genuineness of her reflection or insight."
The practitioner's evidence admits liability for the conduct complained of, but does not mention the impact on patients or the profession. Instead, it focuses on her career, loss of income, and loss of her business. While she made broad statements that she let the profession down, we find that her attitude is similar to the findings made by the Tribunal in the 2020 decision, that is, they lack genuineness or insight.
[10]
Applicant's submissions
Ms Bechara submitted that she has admitted her errors and apologised. She has shown contrition, remorse, and insight. We agree she has made those admissions and apologised. However, for the reasons set out above, we find that she has not demonstrated with adequate sufficiency that she is truly remorseful or that she has genuine insight into her conduct.
The practitioner's solicitor noted that the 2020 decision did not contemplate the Victorian offences to which the practitioner pleaded guilty. He said the Tribunal might draw an inference that the practitioner undertook more work while suspended and possibly the non-review period may have been longer. This is because the offences in Victoria were not before the Tribunal when the 2020 decision was made. We draw such an inference.
We accept the practitioner's submissions that the remaining complaints in 2019 onwards, those being outlined in R3, are very generalised, they are not substantiated or corroborated and no weight should be attached to them. We also note the HCCC must put those before the Tribunal but little, if any weight, should attach to them.
[11]
Submissions of the HCCC
The HCCC does not suggest that Ms Bechara can never be reinstated. However, as at the date of the hearing, Ms Bechara has not satisfied the onus that she should be re-registered. We agree.
The HCCC submits that the application should be dismissed because the Applicant's evidence does not sufficiently address the following concerns:
"(a) Protection - Given the seriousness of the proven conduct in relation to a vulnerable patient, the cancellation order remains appropriate to protect the public;
(b) Reformation - Given available evidence, the Tribunal cannot be confident that the practitioner's character is reformed;
(c) Rehabilitation - Given the applicant has not taken the opportunity to complete relevant rehabilitation, the Tribunal cannot be confident that she would comply with his professional obligations in future;
(d) Insight - Given the practitioner's limited insight, the Tribunal cannot be satisfied that she has demonstrated genuine insight and gained a proper appreciation of the importance of the role as an enrolled nurse."
The HCCC submits the practitioner cannot be trusted to comply with conditions, which renders her a substantial risk in working in health services in the future until she can prove otherwise. Despite the practitioner admitting her conduct that was part of the findings made by the Tribunal in the 2020 decision in her written evidence, she failed to mention the conduct to which she entered a guilty plea in Victoria. She also has failed to address what steps she has taken to accept responsibility for her clinical deficits and minimise future risk to the public.
The HCCC contends that there is insufficient evidence of reformation, rehabilitation and demonstrated insight. The HCCC submits that the application be dismissed with a further period of two years before Ms Bechara can make a further application for re-instatement.
The HCCC, correctly, brought to our attention another complaint concerning Ms Bechara in 2022 which was reported to the HCCC pursuant to s 163C(3). For the reasons set out above, we have attributed no weight to those complaints.
[12]
Whether the cancellation order is now the appropriate order
The central question for the Tribunal is whether Ms Bechara has demonstrated that she can be trusted now to practise in a way that conforms to the professional standards expected of a health practitioner. That would require both recognition of appropriate professional obligations and standards and avoidance of any breach of those standards in her work with patients, and compliance with any conditions on her registration.
The Tribunal acknowledges that Ms Bechara has expressed remorse for her conduct. However, she placed more focus on subjective features such as the loss of her business, loss of income, and loss of her career, rather than demonstrating true reformation of her character and how the public can be confident in her practice as a nurse, should she be successful in this application. The Tribunal made serious findings against the practitioner in the 2020 decision about her lack of candour and inability to be trusted to comply with conditions. The Tribunal also found that the practitioner placed her business interests over her obligations as a health practitioner. The Tribunal further found that the practitioner failed to address the fundamental shortcomings in her practice. The practitioner's evidence establishes little has changed since the 2020 decision.
The Tribunal was not provided with any expert evidence from a psychiatrist or psychologist with respect to Ms Bechara developing a good level of insight into her conduct. There is no evidence which establishes that she has gained genuine insight into her prior conduct, apart from general self-serving statements by her. The practitioner did not address her prior dishonesty and that her character is reformed. These are all matters of concern to the Tribunal.
The non-review period imposed in 2020 was not an indication that the Tribunal had formed a view that things would have changed by the end of that period. The Tribunal accepts that with the appropriate psychotherapy and education, Ms Bechara has the potential to be re-registered at some time in the future. However, for the reasons given above, we are not satisfied that she has discharged her burden of proof at this review. The application for a reinstatement order should be dismissed.
We are not satisfied Ms Bechara has demonstrated a significantly different position in terms of her level of insight and reformation since the 2020 hearing. In those circumstances, the Tribunal has decided that any further review application should not be made for a further 18 months. Hopefully, within this time Ms Bechara will undertake satisfactory psychotherapy or other treatment and appropriate professional education in order to discharge her burden of proof.
[13]
Costs
The HCCC seeks an order that Ms Bechara pay its costs of these proceedings. Ms Bechara made no submission as to costs. The Tribunal's power to order costs, as conferred by Sch 5D cl 13 of the National Law, in the context of an application for a reinstatement order and given the role of the HCCC in such proceedings, was discussed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. At [87] of that decision, the Tribunal concluded:
"… A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused."
As was the case in Ristevski, in this application the HCCC proceeded in an appropriate way. The Tribunal concludes that an order that Ms Bechara pay the costs of the HCCC should be made.
[14]
Orders
The orders of the Tribunal are:
1. The application is dismissed.
2. Pursuant to s 163B(5) of the Health Practitioner Regulation National Law (NSW), the Applicant is not to make any application for review of the cancellation of her registration for a period of 18 months from the date of this decision.
3. The Applicant is to pay the Health Care Complaints Commission's costs of and incidental to the proceedings as agreed or assessed.
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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: 16 May 2023
Parties
Applicant/Plaintiff:
Bechara
Respondent/Defendant:
Health Care Complaints Commission
Legislation Cited (1)
Health Practitioner Regulation National Law (Victoria) Health Practitioner Regulation National Law (Victoria) Act 2009(Vic)