Bechara v Nursing and Midwifery Council of New South Wales

NCAT Occupational|2018-09-21

Introduction

In these appeal proceedings brought under section 159 of the Health Practitioner Regulation National Law (NSW) ("the National Law"), the appellant, Tanya Bechara brings an appeal from Reasons for Decision of Delegates of the Nursing and Midwifery Council of NSW dated 11 April 2018 which determined to suspend her registration as an enrolled nurse. That determination was made pursuant to the provisions of section 150 of the National Law. We set out hereunder the relevant provisions; 150 SUSPENSION OR CONDITIONS OF REGISTRATION TO PROTECT PUBLIC [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest-- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens-- (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must-- (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section-- (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who-- (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 159 RIGHT OF APPEAL [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession-- (a1) against a reprimand by the Council for the health profession under Division 3; (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note : An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 . (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.

Factual background

The following factual material is based on evidence and information filed and given by the parties for the purpose of these proceedings, as described by us in these reasons for decision.
The appellant was born on 17 June, 1979. After completing high school in 1997 the appellant worked principally in the cosmetic industry having completed a Beauty Therapy course. In January 2005 the appellant opened her own beauty salon which she operated for three years, after which she again chose to be employed in that industry. Whilst undertaking a Diploma of Nursing at TAFE NSW the appellant commenced employment with a medical practitioner. After she completed that Diploma in August 2014 the appellant commenced employment with a medical practitioner as a scout nurse in the operating theatre. She became registered as an enrolled nurse (Division 2) on 20 August, 2014. Following this the appellant became employed by Juvae Non-Surgical Cosmetics undertaking cosmetic injections and continued in this employment until March 2016. In April 2016 the appellant opened a clinic known as Radiance Non - Surgical Cosmetics in conjunction with Dr Albert Ho where she performed cosmetic injections of Botox and dermal fillers which were administered by her to the facial areas of patients. This is the same work that she had been performing whilst employed at Juvae.
The appellant has never worked as an enrolled nurse in any environment other than the cosmetic industry performing cosmetic injections as described above.
Following complaints made by her former employer, Juvae, and some patients she had treated while so employed, the appellant underwent a counselling interview with a Counselling Committee of the Nursing and Midwifery Council ("the Council") on 7 September, 2016. The complaints covered matters including the provision of cosmetic injections from her home, selling S4 medications without authorisation, that the appellant had claimed that she was a registered nurse rather than an enrolled nurse, that she had uploaded photographs of patients on social media without consent, and that she advertised herself as being a clinical nurse specialist. During the course of her interview with members of the Committee, the appellant informed them that she worked on her own as a cosmetic nurse, and received support from Dr Albert Ho and medical practitioners employed by him remotely by Skype through his organisation known as Renaissance, which was based in Perth, Western Australia.
The appellant conducted that business in a room which was part of a medical centre, however there were no registered nurses working in that facility. When asked whether she was supervised by a registered nurse, the appellant said that she contacted nurses employed at Renaissance frequently to discuss matters with them. The appellant was advised by the Committee to commence documenting details of her communications with any registered nurse as part of her practice.
The appellant advised the Committee that she had a busy practice working up to 6 days a week, sometimes 60 hours a week and in a normal day she could see up to 20 clients for cosmetic treatments. She described taking a detailed history from her clients, including an assessment of their medical conditions, obtaining a signed consent from them, discussing proposed procedures with them and then arranging a Skype consultation with a doctor from the Renaissance organisation. After discussing the matter with the patient, the doctor would then complete a prescription for the material to be injected, as required by law, and forwarded by email to the appellant. The appellant would then complete the treatment. No medical practitioner or registered nurse was present during the procedure. The appellant also informed the Committee how she acquired the medication to be injected once a prescription had been forwarded by email. She said that she brought the medication from Dr Ho who provided it to her in bulk. She informed the Committee that because this was a S 4 medication, she was aware that she had to keep the medication either in a locked cupboard or a refrigerator which was secured.
During the course of the interview the Committee became aware that the appellant had not complied with her CPD requirements and advised her that she should do so. The appellant was also counselled about the use of business cards which suggested that she had any qualifications or status other than that of enrolled nurse. There was also discussion concerning the complaints made by the appellant's former employer and patients.
Significantly, the Committee counselled the appellant that she was required to conduct herself in her capacity as an enrolled nurse, taking a holistic view of the needs of her clients and that she should have regard to her clients beyond the administration of beauty treatments. The committee said that the appellant "had demonstrated insight into the issues discussed, and was aware of the changes needed in her practice to provide safe patient care." Nevertheless, the Committee recommended that a CPT audit be undertaken.
On 7 March, 2017 authorised representatives of the Health Professional Councils Authority inspected the appellant's premises for the purpose of ascertaining whether there was compliance with appropriate infection control practices. In their report they noted that there was no water resistant cover on the treatment bed that could be cleaned and disinfected when required, and that disposable gowns and aprons were not used. They noted that the gown being used by the appellant appeared to be unclean, and that the gowns were washed by her in a domestic washing machine together with towels used in the practice once a week. Importantly, the appellant had no appropriate documented policies and procedures concerning infection prevention and control, medication administration, privacy and confidentiality and complaints handling. She said that some of these policies were available on her email.
A Performance Assessment of the appellant was carried out by two assessors on 24 March, 2017. As will be seen, the assessment disclosed a number of fundamental deficiencies in the appellant's practice and her knowledge and it is therefore important to summarise the report issued by the assessors in some little detail. The assessment had been carried out as a result of the receipt by the Council of a number of complaints concerning the appellant's treatment of her clients, although some of them had been resolved. In their report the assessors noted that the appellant nominated Dr Ho as her supervisor when providing cosmetic injectable medications. She confirmed however that he was never physically present on the premises during any procedure nor was he able to view the procedure through a remote device. She was then asked about other supervision which she was required to have as an enrolled nurse, and in particular the requirement to work under direct or indirect supervision of a registered nurse. She said that if she had any questions or concerns, she would "go to them." However, the assessors were unable to determine how direct supervision could be provided when no medical practitioner or registered nurse was available on the appellant's premises.
This assessment was carried out on the basis that the appellant was an enrolled nurse, and was expected to demonstrate her competency as such, rather than necessarily being confined to her work carried out in the beauty salon. Nevertheless, as the assessors observed, it was necessary for the appellant to demonstrate knowledge concerning the general medical condition of clients and their medication to minimise the complications of any injections administered by her. The assessors concluded that the ability of the appellant to maintain her capability to practice as an enrolled nurse was compromised by her lack of broader nursing education and a limited commitment to professional development. They recommended that the appellant "would benefit from direct supervision by a registered nurse for a minimum of six months to assist her…. (and) to enable her to provide care safely in any setting." Furthermore, a written assessment indicated that there were "serious concerns" about the capability and capacity of the appellant "to safely calculate a medication dose and administer without error in any setting." The appellant was unable to "clearly articulate the signs and symptoms of a client who is having a severe anaphylactic reaction to a dermal filler…", was unable to identify the potential need to withhold Aspirin medication prior to injecting lip fillers, was unable to explain the use, action and side-effects of a particular drug before embarking on cosmetic procedures, was unable to identify that Ibobrufen has anticoagulant properties, was inappropriately unfamiliar with other common drugs and was "unable to identify that cellulitis and pruritus were possible side-effects" of the use of a commonly used lip filler. The assessors concluded that the appellant demonstrated "a significant deficit in her knowledge and skills in medication administration as an enrolled nurse."
The assessors also required the appellant to participate in a simulated clinical assessment of a client seeking advice and information concerning treatment using fillers. In summary, the assessors noted that the knowledge and conduct of the appellant was deficient in a number of significant areas. For example, the appellant failed to inform the potential client that healing following the injection of a filler would be impaired if she was diabetic, failed to discuss some possible complications of injectable fillers including "allergic/anaphylactic reactions, discolouration, filler migration, autoimmune reactions, damage to deeper structures, granulomas, pimples or skin damage." In discussing with the potential client, the use of ice for bruising, the appellant omitted to identify that extreme cold can affect the results of injectable fillers. We emphasise that this is a summary only of some of the deficiencies in the knowledge of the appellant identified by the assessors. In addition, the assessors noted that the appellant did not clean a trolley on which equipment was situated with an antiseptic which created a risk of infection to the client, applied a numbing cream to the lips of the client "without a valid medication order available" and used non-sterile gloves "despite sterile gloves being available for this invasive procedure." At no stage during the treatment being assessed did the appellant "refer or collaborate with the registered nurse via Skype or in person." The assessors also noted deficiencies in the post-treatment care administered by the appellant.
Although the assessors assessed the appellant overall by reference to her status as an enrolled nurse, the simulated performance assessment was conducted to reflect "general and cosmetic procedure client environments". The assessors recommended that the appellant undertake and complete a number of programs before returning to nursing practice and that she be subject to direct supervision for a period of six months upon returning to practice, together with a period of 12 months mentoring by a registered nurse.
On 28 March, 2017 interim conditions were imposed on the appellant's registration. She was precluded from working as an enrolled nurse until reviewed by the Council and was precluded from checking or administering any medication. A Performance Review Panel constituted by the Council conducted a hearing on 14 June, 2017. In its reasons for decision published on 19 June, 2017 the Panel noted that since the imposition of these conditions the appellant continued to operate her business utilising the services of registered nurses to perform cosmetic procedures. The members of the Panel had available to them background information concerning the appellant and in particular the Performance Assessment which we have summarised above. In addition, the members of the Panel engaged in discussion with the appellant. At the conclusion of the hearing the Panel removed the then existing practice conditions and imposed a number of conditions on the appellant's registration, including, relevantly for our purposes, the following; 1. a requirement that the appellant inform all current and future nursing employees of the imposition of the conditions 2. the appellant must only be employed as a nurse where the employer has agreed to notify the Council "of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions." 3. "The registrant must practice 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: 1. not directly employed or managed by the registrant; 2. on-site and working in close proximity within a ward or unit with the registrant; and 3. able to oversee and provide advice about the registrant's practice when necessary" 1. the appellant was required to commence supervision by a nurse manager (or equivalent) approved by the Council who has agreed to oversee supervision within two weeks. Ancillary conditions were imposed requiring notification of relevant details to the Council. 2. A requirement to complete within 12 months certain courses covering medication knowledge and administration, intermediate life support and infection control principles and practices. There was also provision for a further performance assessment following the completion of these courses.
It will be noted that the effect of this decision was that the appellant was permitted to continue to practice, but subject, significantly for our purposes to a requirement that she work under supervision. As will be seen, the meaning and application of these supervision conditions will assume critical significance for the determination of these proceedings.
By letter dated 4 July, 2017 a representative of the Council informed the appellant of what action she must take to comply with the practice conditions imposed on her registration. She was asked to take immediate action to let certain persons know about these conditions and, significantly, to find a registered practitioner to act as her supervisor and return certain forms completed by the supervisor. She was also asked to provide details of the courses which she was required to complete. Attached to that letter were a number of documents including one setting out information concerning "regulatory supervision." Within that document there was set out a number of definitions including direct supervision and indirect supervision. These definitions were in the following terms; Direct supervision is when the supervisor is actually present and personally observes, works with, guides and directs the person who is being supervised. Direct supervision may be limited to a specific area of practice, such as, the administration of medications or, it may be specified that direct supervision is required for all practice as a nurse in which case it would be expected that the supervised practitioner be "bloodied" and work with the supervisor for all practise Indirect supervision is when the supervisor works in the same facility or organisation as the supervised person, but does not constantly observe their activities. The supervisor must be available for reasonable access if required by the practitioner to provide advice and should "check-in" on the practitioner occasionally during the shift to ensure the responsibilities delegated to the practitioner are being met.
There is also contained within that document a definition of remote supervision which is in the following terms; Remote supervision is when the supervisor is off-site or working remotely from the practitioner. The supervisor must be accessible to the practitioner to provide advice either in person or by telephone.
We shall return to a consideration of these definitions later in these reasons for decision.
After the determination of the Panel on 19 June 2017, the Council received three further notifications concerning the appellant. Two of these alleged non-compliance with the previous condition imposed on her registration precluding her from working as an enrolled nurse and a third alleged a failure to conduct a thorough consultation, explain potential side-effects prior to administering injectable fillers, a failure to use a local anaesthetic requested by the client, and a failure to arrange a consultation with a medical practitioner as required in connection with the prescription of the relevant medication. The Council convened proceedings under section 150 of the National Law and Delegates of the Council issued written reasons for decision on 29 August, 2017. The Delegates were not satisfied that the appellant had breached this previous condition and determined not to change the then existing practice conditions.
At 10:18 AM on 19 September, 2017 a representative of the Council forwarded an email to the appellant seeking a discussion concerning her practice conditions and in particular "numerous issues with your supervision nominations." The appellant replied at 8:36 PM that day gratuitously commencing her email with the words "Good morning Joanne." She said that she had spoken to her supervising Registered Nurse, whom she named as Mei Ling Kan "to coordinate a schedule for my supervision" and indicating that the supervisor was available "Full days every Monday and Tuesday in which she can attend my clinics and provide direct supervision" and "On the other days she works the morning shift (7:30 AM - 3:30 PM), however she can be available to supervise me directly after 3:30 PM or via phone/video consult." The appellant noted that her supervisor worked in two part-time positions. The email concluded "I also always have the support of my prescribing Doctor and his team of registered nurses on hand every day during and after business hours via video consult."
On 20 October, 2017 the Council wrote to the appellant indicating that it had approved Ms Kan as her supervisor "as outlined in your conditions and with the understanding that you will strictly adhere to your supervision plan." The letter enclosed copies of documents forwarded to the supervisor and noted that quarterly reports were required in January, April, July and October 2018 and beyond unless the Council advised in writing that they were no longer required. The appellant was asked to notify any changes to the person acting as supervisor and noted that this required the approval of the Council.
At all relevant times there existed a document entitled "Standards for Practice: Enrolled Nurses" issued by the Nursing and Midwifery Board of Australia. A copy of that document dated 1 January, 2016 was before us for the purpose of these proceedings and it was uncontroversial that that document applied to the registration of the appellant as an enrolled nurse. That document makes clear that at all times an enrolled nurse is to work under the direct or indirect supervision of a registered nurse. Significantly, the document defines supervision as either direct or indirect in the following manner; Direct supervision is when the supervisor is actually present and personally observes, works with, guides and directs the person who is being supervised. Indirect supervision is when the supervisor works in the same facility or organisation as the supervised person, but does not constantly observe their activities. The supervisor must be available for reasonable access. What is reasonable will depend on the context, the needs of the person receiving care and the needs of the person who is being supervised. For the purpose of this document, supervision is defined as access, in all contexts of care, at all times, either directly or indirectly to professional supervision to a named and accessible RN for support and guidance of the practice of an EN.
On 12 December 2017, persons authorised by the Council conducted an inspection of the appellant's premises. There were a number of deficiencies noted in the subsequent inspection report, the details of which it is not necessary to discuss. However, the inspection revealed that there were no other health practitioners present. When asked whether she practised under the supervision of a registered nurse the appellant said that her approved supervisor was a person known as "Mei". The inspectors recorded the appellant telling them that Mei "calls in on Mondays and Tuesdays." There was apparently no specific arrangement other than that the supervisor would call the appellant and let her know when she was coming in when she had time. The inspectors noted that no contact had been made by this supervisor during the inspection which occurred on a Tuesday between 9:45 AM and 10:33 AM and later that day at 12:30 PM.
Significantly, for an ancillary matter that we shall refer to later, the appellant told the inspectors that she herself determined the injection sites for each of her clients.
On 25 January, 2018 the nominated supervisor, Ms Kan communicated in writing with a representative of the Council in what appears to have been by way of email. That communication indicated that she was unable to provide the first performance report by the due date of 13 January, 2018. She said that due to a "misalignment of work periods" she had "barely seen" the appellant for two weeks. Furthermore, Ms Kan had not read the approval letter forwarded by the Council until the end of November 2017, when she reminded the appellant that she was due to be overseas in early December until 24 December, 2017. She indicated that "No arrangements for supervision was made at that time." Accordingly, Ms Kan was unable to sign the supervision report. In addition, Ms Kan said that she worked in "completely different areas" and was "quite unfamiliar with the cosmetic area…." She doubted her ability to supervise the appellant.
Following receipt of this information and the report of the inspection on 12 December, 2017 the Council determined to institute proceedings under section 150 of the National Law. Delegates conducted a hearing on 26 February, 2018. The appellant did not attend that hearing but furnished a letter to the Council by email dated that day. She indicated that as a result of having had cosmetic surgery on 12 February 2018 she was unable to attend the hearing. That letter raised a number of issues, but it is only necessary that we deal with that concerning the compliance by the appellant of the supervision condition imposed upon her registration. In her letter the appellant said that she had received advice from lawyers then acting for her about the meaning of the supervision condition, and in particular what was meant by direct and indirect. She said that she understood that direct supervision meant being "on-site" and that indirect supervision could be conducted "off-site." She said that throughout the three month period she had had "regular phone conversations" with Ms Kan during which she discussed her practice as a nurse and any issues with patients. She said; "Whilst I always contacted her; however, I concede that she often did not come into the clinic because she had a child and other personal commitments." The appellant said that if she had known that her supervisor was required to be on-site "I would not have treated patients on that day or any other day that she was not present." The appellant then indicated that a Ms Munjeri, a Nurse Manager had agreed to act as her supervisor. The appellant asserted that the manner in which she conducted her practice did not pose any risk to the health or safety of the public.
We note that the information furnished by the appellant concerning the nature and extent of the supervision by Ms Kan is inconsistent with the information provided by Ms Kan to the Council in her communication of 25 January, 2018.
After considering the available information the delegates determined to suspend the applicant's registration in the interests of the protection of the health and safety of the public and in the public interest. In so determining the delegates noted the non-compliance by the appellant with her practice conditions, particularly concerning supervision, the fact that the appellant had had numerous opportunities to interact with the Council and its representatives, that she must have been in no doubt concerning the nature and extent of her responsibilities, that there were other features of her practice which were unsatisfactory, and that overall suspension of registration was appropriate.
By letter dated 26 February, 2018 a representative of the Council wrote to the appellant informing her that her registration had been suspended effective from that day. The letter said, in part; "You must immediately stop practising whether in a paid or voluntary capacity." The appellant was advised that suspension of her registration would remain in place until a complaint, unspecified, had been dealt with. She was informed of certain rights of appeal and review.
In May 2018 the appellant sought a review of the suspension of her registration under section 150 A of the National Law. Prior to the hearing of that review the Council arranged for a further inspection of the appellant's premises to be conducted on 29 May, 2018. An inspection report dated 30 May, 2018 was attached to an affidavit of one of the duly authorised inspectors, Alison Tankard, which became evidence in these proceedings. Ms Tankard was not required for cross-examination by the appellant. The inspectors noted in their report that when they approached the receptionist at 10:45 AM they were informed that the appellant was currently seeing a client and would be unavailable for 10 to 15 minutes. The receptionist then left the area to inform the appellant of the presence of the inspectors. When she returned the receptionist advised the inspectors that the appellant had stepped out of the building using a back entrance and would not return until her next appointment at 12:30 PM. Under questioning from the inspectors, the receptionist informed them that she had been engaged to work at the practice for the past week, and she estimated that 8 to 10 patients had been seen during that period. She confirmed that the appellant had been on-site at the practice during that week. She informed the inspectors that she thought that the appellant was probably giving Botox injections to clients. The inspectors then entered the appellant's consulting room as they were entitled to do, and noted that one of the two computers displayed an image of the front door and the reception area. The appellant then entered the consulting room through the back door and was observed to be wearing her "Radiance Cosmetics Practice uniform scrubs."
The inspectors asked the appellant to produce a number of records including the records of the clients that she had seen that day. The appellant asserted that she had not seen any clients, and that anyone that she did see was a friend not a patient or had attended for follow-up appointments. The appellant refused to provide recent appointment diary printouts but did provide a printout for the previous day, a Monday, which indicated that there were two other persons on-site who the appellant said were registered nurses.
The inspectors sighted Radiance Cosmetics business cards which were displayed on the reception desk which contained the name "Tanya", and under that name the words "Cosmetic Nurse." Neither of the two other persons who had been named by the appellant as registered nurses bore the name "Tanya". We are comfortably satisfied that the business card displayed in the reception area was that of the appellant. As will be seen, the appellant gave evidence in these proceedings and did not deny that her name appeared on the front of the business card. However, she said that the card was only used for the purpose of providing details of the next appointment for a client, and for no other purpose. Notwithstanding this explanation, it is clear from photographic evidence that the business cards were displayed so that the name of the business and the reference to the appellant as a Cosmetic Nurse were the only portion of the cards which was visible to persons in the reception area.
The hearing of the review was conducted by delegates of the Council on 7 June, 2018 and the appellant appeared and gave evidence. In that evidence the appellant referred to the supervision which had been provided by Ms Kan, during the period October 2017 to January 2018. She said that the supervision was both indirect and direct and consisted of "ongoing conversations over the phone and she came to the practice a couple of times." When asked to nominate how many times, she said that it would have been less than five. Furthermore, the appellant said that Ms Kan spent a "couple of hours" with her and once she spent half a day.
In the course of giving evidence before the delegates for the purpose of that hearing the appellant again revisited what she said was her misunderstanding of the difference between direct and indirect supervision and that she did not appreciate the need for a supervisor to be on-site.
The appellant was also asked to explain the circumstances which applied at her business at the time of the inspection conducted on 29 May, 2018. She asserted that when the inspectors attended the business she was talking to a friend and interviewing a candidate for potential employment as a receptionist. She then said that "Also, I did have a couple of girls coming in just for a check-up, for a follow-up….. They were concerned about a few lumps in their lips or bruising so I just advise they come in and I just checked them." The appellant asserted that these check-ups did not constitute practising whilst suspended. She said that she understood that her suspension precluded her from administering medication but that otherwise she could continue to practice as an enrolled nurse. She said that her interchange with the delegates on that occasion was the first time that she had been confronted with the proposition that suspension precluded her from any involvement with a client in connection with any aspect of treatment.
By decision published on 6 July, 2018 the delegates affirmed the previous decision of the Council to suspend the appellant's registration. Despite evidence having been given by the appellant that she had attended some professional development courses, and that she had enhanced her practice in a number of areas such as the use of a drug register, the delegates were not persuaded that the appellant no longer presented a risk to the health and safety of the public.

The evidence of the appellant in these proceedings

The appellant gave evidence in these proceedings by way of an affidavit filed on her behalf and by oral evidence. In her affidavit the appellant addressed specifically the allegations that she had not complied with her supervision condition when she retained Ms Kan. The appellant referred to an email communication which she had forwarded to the Council on 19 September, 2017 and to a communication addressed to the Australian Health Practitioner Regulation Agency ("AHPRA") dated 22 September, 2017 signed by both Ms Kan and the appellant. Both these documents referred to a supervision plan which was described as covering "full days every Monday and Tuesday" in which Ms Kan can attend the appellant's clinic and provide direct supervision. The plan said that on other days Ms Kan worked a morning shift from 7:30 AM to 3:30 PM but that she could be available "to supervise directly after 3:30 PM or via phone/video consult." By letter dated 20 October, 2017 a representative of the Council informed the appellant that "The Council has approved Ms Kan as your supervisor as outlined in your conditions and with the understanding that you will strictly adhere to your supervision plan." Based on this letter the appellant asserted in her affidavit that the Council had approved the supervision plan which included supervision by phone or video consultation. She said that this justified her in assuming that all of the supervision provided by Ms Kan could be undertaken remotely and off-site. Furthermore, the appellant said that she believed that indirect supervision did not require on-site supervision at all times. It will be necessary to address this assertion later in these reasons for decision.
In her affidavit the appellant also addressed her failure to complete the specified educational courses. She indicated that she had, in fact, completed seven specified courses, only one of which appears to have been required by the practice conditions.
In her oral evidence the appellant conceded that Ms Kan did not often attend the business premises. She said that she had communication with her by phone or video link but was unable to produce copies of any text messages to support this. The appellant was cross examined in some detail concerning her understanding of the supervisory conditions. She conceded that she was aware as early as 4 July, 2017 that the Council had told her that the supervisor should work in the same facility or organisation as she did, and further conceded that this did not happen. She then said that in October 2017 she was told verbally by her then lawyer that supervision could occur off-site. On further questioning the appellant conceded that whatever legal advice she had obtained she should have known that supervision must occur on-site.
When taken in cross-examination to the agreement by the Council for the appointment of Ms Kan as supervisor and her argument that this agreement incorporated off-site supervision, the appellant conceded nevertheless that the arrangement was that there would be on-site supervision each Monday and Tuesday. At first the appellant said that Ms Kan did attend every Monday and Tuesday, except for the one Tuesday when the inspectors attended her premises on 12 December, 2017. The appellant said that she did not keep any records concerning the attendance of Ms Kan and was therefore unable to substantiate her evidence. When confronted with the letter from Ms Kan stating that she had barely supervised the appellant, the appellant said that it was her word against that of Ms Kan. The appellant did concede that during the period of approximately three months when she had asserted that Ms Kan had supervised her, Ms Kan had physically attended the premises on less than five occasions.
The appellant also gave evidence concerning the requirement that the supervisor must be not directly employed or managed by her. She said that Ms Kan was not paid by her, and declined any payment. She also declined an offer of free beauty treatment. On this basis the appellant asserted that the supervisor was not directly employed or managed by her, even though she was the owner of the business and on that basis the supervisor must have been subject to some form of control.
The appellant was cross examined about the information which she had given to the inspectors on 29 May, 2018 concerning her interaction with a number of clients whom she had seen that day. The appellant had said that these persons had attended for follow-up appointments only and that she had not treated them. In cross-examination she said that they had come in just to show her their lips "because they were happy with them." This evidence is clearly inconsistent with the information which the appellant had given to the delegates of the Council on 7 June, 2018 during the course of the section 150A hearing as recorded in the transcript. At that hearing the appellant said that there had been "a couple of girls coming in just for a check-up, for a follow-up." When asked what that involved the appellant responded; "They were concerned about a few lumps in their lips or bruising so I just advise they come in and I just checked them." It was put to her that she was performing work even though her registration had been suspended. She denied that she was working because she had not been giving injections. It was put to her that in dealing with these clients the appellant was in reality consulting with them and thereby performing work while suspended. There then followed a lengthy discussion by the appellant with the delegates when she continued to maintain that her suspension from practice as an enrolled nurse merely precluded her from administering medication including, presumably, giving injections. It is quite clear from that discussion that the appellant was unable to distinguish between the work that she performed as an owner of the business and the work that she performed in her capacity as an enrolled nurse treating clients.
When further pressed, the appellant said to the delegates that the only occasion on which she had seen two clients for follow-up just happened to be the day upon which the inspectors attended her premises. This was said by her in the context where she had declined to produce to the inspectors and failed to produce to the delegates the diary entries and other records which would have referred to persons seen in the course of the operation of the business.
When put to her in cross examination in these proceedings that overall her conduct had showed a lack of insight concerning the nature and effect of the conditions imposed on her registration, the appellant responded; "I did the best I could."

Cosmetic injections - a general description and dangers

In order to provide some context for these proceedings it is necessary to consider in some little detail the work that the appellant performed in treating clients of her business. There is in evidence before us a Protocol and Policy Manual Version 1.3 dated October 2016 issued by Renaissance Cosmetic Clinics. We were informed by the appellant that this document was applied by her and used in connection with the treatments given by her to clients of her beauty salon. Renaissance Cosmetic Clinics was said to have been established by Dr Ho and incorporated "a network of around 40 injectors in 35 locations across Australia. Around 80% of the services offered are cosmetic injectables, making this the focus and specialty of the company." The business was said to specialise in "anti-wrinkle and dermal filler injections."
The Manual emphasises the need for compliance with high standards of infection control and preparation for "the unlikely event of serious medical events." There is a detailed list of facilities applying to injecting premises. In describing the protocol for nurse injector consultations, there is a constant reference to the administration of cosmetic injections by registered nurses. Whether and to what extent it is intended that registered nurses include enrolled nurses is not known. Certainly, in evidence, the appellant regarded herself as being a registered nurse in the sense, as she said in evidence, that she was a "registered enrolled nurse". It seems to us that as a matter of common sense the distinction between a registered nurse and an enrolled nurse is so widely understood that it is more likely than not that the reference to a registered nurse administering cosmetic injections included within the Manual is a reference to a registered nurse as distinct from an enrolled nurse.
Significantly, the protocol refers to "a requirement that the administration of S 4 medications for cosmetic purposes be carried out by a nurse only after a consultation and a written treatment plan has been formulated by a prescribing Doctor." After referring to the contents of the treatment plan the protocol continues "If no doctor is on-site when your initial consultation is to take place, ensure that a Skype consult is booked into the Medi App Skype roster with one of the available Doctors. They will formulate a written prescription with the above requirements and upload it to the patient's file. The nurse must then record the patient's treatment details in the patient's file."
We note that it was the evidence of the appellant that she alone selected the injection sites for her clients. We infer from this evidence that she did not actively seek supervised advice from Dr Ho, and that Dr Ho did not take steps to supervise the selection of the injection sites.
The protocols then set out details of the equipment, pre-procedure, preparation and injections to be given. There is further reference to post treatment. Different protocols apply to the treatment of different facial areas and different conditions such as crows' feet and frown.
The next section of the Manual refers to "levels and risks of hyaluronic acid dermal fillers." There is a notation that the risks involved in the injection of dermal fillers "can be potentially devastating in the hands of an injector with no knowledge of critical facial anatomy or injection techniques." There is said to be a risk of "vascular occlusion or compression" which can lead to "serious complications such as blindness, ulceration and necrosis of tissue." After referring to the need to receive appropriate and adequate training the Manual continues "All high risk areas require a doctor's consultation and prescription every time they are performed. Other areas are adequately covered with the yearly prescription. Areas medial to the mid-pupillary line must be injected with cannula unless pre-authorised by the supervising doctor." A number of facial areas are described as high risk including glabellar lines, tear trough, nose-midline and temples. Again, there is emphasis that the protocols are for "standard treatments" for patients with no contraindications for treatment and the necessity for the use of the Manual under the direction of Dr Ho and the necessity for training by him and by the trainer of the drug company providing the dermal filler.
The Manual also provides a protocol for the use of injectable anaesthesia. It was the evidence of the appellant that some of the injections given by her did contain an anaesthetic.
The Manual contains protocols for the management of acute anaphylaxis, needlestick injury, infection control waste management and the like.
We emphasise that the above material consists of a brief summary only of a document which extends over 77 pages.

The nature of these appeal proceedings

This appeal is brought under section 159 of the National Law from the decision of the delegates of the Council dated 26 February, 2018 to suspend the registration of the appellant. The amended grounds of appeal are confined to two matters namely; 1. Failure to give Natural Justice The Council failed to take account of the submissions made by the applicant in the section 150 hearing. The applicant provided a written submission and supporting documentation. The Council referred to receiving the material, but made no mention in its decision on how that material was considered and/or taken into account. 2. Failure to Consider the Applicant's educational progress The Council failed to give adequate weight the evidence of the applicant's completion of Educational courses in circumstances where the condition requiring supervision came into existence following the outcome of a performance assessment.
The reference to the "applicant" may be taken to be a reference to the appellant.
The applicable statutory provisions concerning this appeal and the in-principle approach to be adopted is, relevantly for the purpose of these proceedings, well-established. It is only necessary to refer to the recent decision of this Tribunal in Karima v Medical Council [2017] NSWCATOD 180. At [121] and following the Tribunal said; Nature of the present external appeal We now turn to consider the nature of present appeal and the task of the Tribunal. As the National Law is the applicable enabling legislation it establishes the "basis or grounds" on which an external appeal may be made: s 79(1) of the NCAT Act. Section 159(3) of the National Law provides that an external appeal to the Tribunal under that section: "is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given." Further, s 79(2)(a) of the NCAT Act provides that, in the case of enabling legislation that specifies the orders that may be made by the Tribunal on an external appeal, the Tribunal may make any of those orders in determining the external appeal. As has already been noted, s 159C of the National Law is such a provision in the enabling legislation in that it specifies the orders that the Tribunal may make on an appeal under s 159. For the reasons already given, in the present case the Tribunal has in effect to decide whether the period of suspension of Dr Karimi's registration ordered by the Council should be terminated, varied or confirmed. Hanna v Medical Council of NSW [2017] NSWCATOD 27 and Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 provide useful guidance as to the nature of an external appeal under s 159 of the National Law against a decision of the Council to suspend a medical practitioner's registration under s 150. The applicable principles derived from the relevant provisions of the National Law, as discussed in Crickitt and Hanna, may be summarised as follows: (1) Nature of the appeal. The Tribunal is to conduct the appeal by way of a new hearing and may consider evidence that was not before the Council as the original decision-maker. The Tribunal's task is not to review the decision of the Council and determine whether its decision was reasonably open in the circumstances. The Tribunal is called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it. (s 159(3) of the National Law and Hanna at [17]-[18]) (2) Protective jurisdiction The jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47]) (3) Consequences of suspension. The exercise of the power to suspend can be described as "draconian" and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law) (4) No need for a detailed enquiry. The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76]) (5) Not required to make any conclusive findings. Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19]) (6) Pre-conditions on power to suspend. The Tribunal must assess whether "it is appropriate for the protection of the health and safety of any person or persons" or "is otherwise in the public interest" to make such orders as are permitted by s 159C. The Tribunal's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. (ss 150, 159 and 159C of the National Law and Hanna at [20]) (a) Scope of "protection of the health and safety of person or persons". The "protection of the health and safety of any person or persons" does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48]) (b) Scope of "public interest". The "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (ss 150 of the National Law, Hanna at [18] and Crickitt at [56]) (7) No need to determine whether conduct is "professional misconduct" or "unsatisfactory professional conduct". Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice constitutes "professional misconduct" or "unsatisfactory professional conduct" or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22]) (8) Nature of suspension power under s 150. An order made under s 150, including a suspension order, is in the nature of an interlocutory order and often must be made on the basis of limited information. (s 150 of the National Law and Crickitt at [51] and the authorities cited there; Lindsay at [79]) (9) Council's separate power to reconsider suspension. A practitioner may also apply directly to the Council for a review of a s 150 decision to suspend a practitioner's registration. If satisfied there has been a sufficient change in the practitioner's circumstances, the Council can affirm or vary the decision or set it aside and take any action it has power to take under s 150. (s 150A(2)(b) and (3) of the National Law).
In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56] the Tribunal said; We make the following observations concerning the underlying principles which we perceive to apply in the circumstances of these proceedings: (1) The exercise of the power to suspend will have grave consequences for a medical practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. The grave consequences are accommodated within the need to ensure that we are satisfied to the Briginshaw standard that we can safely make the conclusions necessary to make a determination that section 150 is enlivened including a consideration of the nature and status of the material upon which any such conclusions are made. (2) The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that those exercising it need not embark upon a detailed enquiry, and may base their reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (See the cases cited in R and Medical Board of Australia [2013] WASAT 28 at [24] and following). (3) Section 150(6) arguably requires that notice be given to the practitioner before any order of suspension, or any other order under that section has been made. The practitioner will always have an opportunity of addressing the decision-makers prior to any determination being made. (4) Nevertheless, the "draconian" nature of the power is such that great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination and consideration of the nature and extent of any misconduct alleged against the practitioner. The decision-maker "must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach" (R and Medical Board at [28]). (5) It will also require the formation of a "reasonable belief... That because of the health practitioner's conduct (or) performance...., the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety" (R v Medical Board at [28]), or to do so otherwise in the public interest. This quotation needs to be qualified to the extent that "necessary" is not the test contained in the Act. (6) Any conclusions which are made in the course of determining that section 150 is enlivened are made for the purpose only of that determination, by reason of the ability to rely on information and material which may not otherwise be strictly admissible in administrative or judicial proceedings. (7) It is also necessary to consider the nature of the section 150 proceedings from which this appeal is brought. The provisions of section 150 have been set out above. We make the following observations about these provisions: (a) There are two requirements to be satisfied when determining whether the section is enlivened, namely the protection of the health or safety of any person or persons, and the public interest. (b) These requirements are expressed to be in the alternative. (c) The manner in which the introductory words of subsection (1) are expressed arguably creates some difficulty in interpretation, or perhaps some ambiguity. This is caused by the use of the word "otherwise" and the context in which it appears. On one view, it is possible to argue that the health or safety of a person or persons is "otherwise in the public interest", in the sense that health or safety are matters within the public interest. That is, public health and safety are within public interest, but in a different manner, or in other respects. The other view is that health or safety of persons is in the public interest in circumstances which are apart from or in a different or contrasting way from the public interest so that one does not include the other. The difference, in general terms, is between health and safety being subsumed generally within public interest, or health and safety being exclusive of public interest. If the former is correct, then arguably, it would not matter if either the delegates or this Tribunal determines the matter on either basis. If the latter is correct, then a decision based on public interest alone may not have been validly made if, in reality, the findings should more properly had been directed to the protection of the health or safety of any person or persons. It does not appear that this matter has arisen for consideration in any other reported proceedings. The respondent submitted that the provision operated so that "otherwise" would mean "in some other way". Therefore, the health and safety element is subsumed within the public interest. We do not understand the appellant to have made a contrary submission. As this approach to construction appears to us to reflect the overall intention of the section, we shall apply it for the purpose of these proceedings. (d) In any event, if either of the health or safety or public interest ground is made out, then it is mandatory that the Council either suspend or impose practice conditions, subject to the Council being satisfied that it is appropriate to do so for the stated reasons. (e) By subsection (4), action may be taken by the Council under section 150 whether or not a complaint has been made or referred to the Council about the medical practitioner. Accordingly, if information comes to the attention of the Council in whatever manner, the provisions of section 150 are enlivened. Of course, having regard to the nature and extent of the powers under section 150 it is a trite observation that the Council must observe the strictures imposed by section 150 (1), and must do so in a responsible and appropriate manner. It would be a rare situation if the Council determined to take action to suspend or otherwise impose practice conditions without having first notified the practitioner and given him or her some opportunity to explain his or her circumstances. Of course, one might envisage urgent situations arising where there might be no time or opportunity to notify the practitioner. The urgency and apparent gravity of the situation may dictate the nature and extent of the information relied upon in dealing with a matter. (f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits. (g) Section 150 empowers the Council to either suspend or impose conditions on the registration of the medical practitioner if circumstances warrant either of these steps. These powers are also available in circumstances where complaints have been initiated against a medical practitioner under the Act. The exercise of those powers by the Medical Tribunal is conditional upon findings of unsatisfactory professional conduct or professional misconduct. The process which we are undertaking is removed from any consideration of whether the medical practitioner might, at some stage, be found guilty of either unsatisfactory professional conduct or professional misconduct on the basis of some complaint which to date has not been initiated. We agree with the observations of Beech-Jones J in Berger previously set out, and we adopt the following from his Honour's judgement at [17] - [18]: .... to attempt at this point to predict what the Tribunal might decide at some indefinite point in the future risks distracting the Court from ascertaining what presently is necessary in the public interest. No doubt there are cases where professional misconduct is demonstrated against a solicitor but the Tribunal determines not to remove them from the roll or completely prevent them from practising because aspects of their conduct since the complaint may demonstrate that that step is not warranted. There is very little scope to consider such possibilities in this type of application.... In my view the appropriate approach is one that requires that the Law Society at first instance, and this Court on appeal, to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by them pending its determination presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended. (h) There is very little consideration within the provisions of the Act as to the manner in which the Council or its delegates are to conduct themselves in determining whether the necessary preconditions to the use of the available powers under section 150 are satisfied. For present purposes, it is sufficient that we observe that the principles of natural justice, including procedural fairness, should apply to the extent reasonably necessary.

Consideration

We commence our consideration of this matter by reference to the statutory provisions which we have earlier set out informed by the principles extracted above. Because these proceedings do not constitute an appeal in a strict sense and we are engaged in a rehearing of the application brought under section 150 of the National Law we are not essentially concerned with the reasons for decision of the delegates who determined to suspend the registration of the appellant. Accordingly, the grounds of appeal advanced by the appellant which we have earlier extracted do not need to be considered.
We start from the premise that the appellant has had practice conditions imposed upon her registration. The imposition of these conditions has not been challenged by the appellant in these proceedings, nor could she validly do so. Given then, the existence of those practice conditions and the other circumstances known about the appellant, does her continued ability to practice as an enrolled nurse pose a risk to the health or safety of any person or is it otherwise in the public interest that her registration be suspended pending the resolution of the complaints brought against her? In posing the matter for consideration in this way, we do not need to focus on the nature and extent of the complaints. It is more appropriate to have regard to any known circumstances which manifest a risk to the health or safety of any person or otherwise attract the public interest. And in so considering these circumstances we have regard to the necessity to found our assessment in the manner described in paragraphs (4) and (5) in the extract from Crickitt above.
A convenient starting point for our consideration is the practice condition requiring that the appellant work under supervision. The manner in which that condition was framed, and all of the information provided to the appellant by the Council at the time that the suspension occurred is to the effect that the supervisor must work, at the least, in the same location as the appellant. As is obvious, the practice condition requiring supervision applies much more readily to the circumstances of a hospital or other health care institution rather than the circumstances of a beauty salon. This is particularly so when one considers the requirement that the supervisor must be not directly employed or managed by the appellant, and by reference to the supervisor being "on-site and working in close proximity within a ward or unit" with the appellant. However, whatever the pragmatic difficulties in application of the supervision condition, there is no evidence that the appellant endeavoured to engage in any meaningful discussion with the Council concerning these difficulties. Furthermore, it is quite clear on the evidence before us in these proceedings that the appellant failed to arrange for supervision in accordance with the relevant condition. It is not necessary to repeat the consideration of the limited interaction between the appellant and Ms Kan.
We have endeavoured to comprehend the appellant's thought processes when she attempted to comply with the supervision condition. We found this an enigmatic exercise. As best we can understand her thinking, the appellant read the approval of the Council to the appointment of Ms Kan as supervisor as indicating that because she was available by telephone or other contact remotely on days other than Mondays and Tuesdays, there was no need for Ms Kan to be in physical attendance at any time. This depends, of course, on reading the approval of the Council in this way. In an ideal world it would have been preferable for the Council to have responded to the supervision plan by pointing out specifically that anything other than on-site attendance was not acceptable. However, even though this did not occur, it is clear from the wording of the letter of approval that what was approved was supervision in accordance with the terms of the condition, and not in terms of the proposal submitted by the appellant and the supervisor. Even if we are incorrect in this assessment, there can be no possible basis for construing the approval letter from the Council other than by reference to the fact that the supervisor would as a minimum, be physically in attendance at the premises each Monday and Tuesday. As we know, this rarely occurred.
We should add for completeness in this regard that we do not accept the evidence of the appellant to the effect that there was frequent contact between her and the supervisor, albeit by telephone and text messages. We prefer the evidence of Ms Kan set out in her letter to the Council that there was barely any supervision, which we understand to comprehend communications of any kind. Indeed, there are aspects of the evidence of the appellant which must call into question the veracity of the evidence and information provided to us by her. This includes her initial assertion that the persons who attended the beauty salon on 29 May, 2018 were there to show her how pleased they were with the results of her treatment when compared with evidence given to the delegates of the Council that they had presented with problems including lumps and bruising. We also reject the attempt by the appellant to depict the display of business cards describing her as a Cosmetic Nurse during a period when she was suspended from practice previously referred to. Our assessment of the appellant is that she was prepared to colour her evidence in a manner which she thought best supported her case.
We return to our consideration of the thought processes of the appellant when she determined to persist with the supervision arrangements which she had made with Ms Kan. On the one hand, it is possible that the appellant genuinely misunderstood the nature and extent of the supervision condition and the manner in which it should be applied. If so, this would indicate a lack of intellectual capacity inconsistent with that which is required by an enrolled nurse to practice safely. Hopefully it is not necessary to cite authority for the proposition that an enrolled nurse works under supervision and is required to receive, understand and apply directions given to him or her in a wide range of scenarios. The inability to be able to comprehend and comply with directions of this kind would indicate unsuitability to practice as an enrolled nurse. Another possibility is that the appellant was careless in the manner that she applied herself in endeavouring to comprehend and apply the supervision condition. Carelessness also indicates unsuitability to practice as an enrolled nurse. We are not here discussing a one-off, isolated incident but a course of conduct which persisted over some months, and was only discovered as a result of action taken by the Council, and never willingly disclosed by the appellant. A third possibility is that the appellant proceeded to give token regard to the provisions of the supervision condition and proceeded with reckless indifference as to the consequences of her actions. Again, disregard for directions validly given as to the manner in which she should conduct itself is incompatible with suitability to practise as an enrolled nurse. On the basis of any of these scenarios, we would have no confidence in the ability of the appellant to be able to safely practice as an enrolled nurse in circumstances where she had failed to comply with the form of supervision comprehended by the practice condition.
Furthermore, compliance with practice conditions is an essential requirement of registration as a health practitioner. Registration is provided for under the National Law. That legislation is designed to provide for and enhance the health and safety of the public at the hands of health practitioners. So much is clear from the provisions of section 3A, which are as follows; 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
Once the appellant became registered as an enrolled nurse, her registration was regulated by the provisions of the National Law, and anything which she did in her capacity as an enrolled nurse was so regulated. The appellant in her communications with the Council seemed to adopt the attitude that the scope of her work was confined to giving injections and other treatments within her beauty salon business, and was therefore much narrower in scope than the work of an enrolled nurse undertaken in a hospital or other health care institution. However, once registered as an enrolled nurse a health practitioner is required to conduct himself or herself consistent with applicable standards of practice, and is required to have and to be able to apply required knowledge and competencies. The appellant complained that she was expected to have competency in a range of activities which were not relevant to her work in a beauty salon. Nevertheless, she conceded that it would be necessary for her to have an understanding of and to be able to deal with reactions such as anaphylactic shock. We shall return to this aspect when considering the concerns expressed by the Council about her failure to comply with the practice condition requiring that she undertake further educational courses.
The ability to impose practice conditions and their imposition on the registration of a health practitioner is an integral part of the regulation of health practitioners provided for by the National Law. They are serious matters which must be taken seriously. The failure to comply with a practice condition will always create potential adverse consequences. This is particularly where a condition requires supervision to enable a health practitioner to practice safely. Breach of that condition will, in many cases, create a risk to the health and safety of patients and potential patients.
We have previously set out extracts from the Manual adopted by the appellant in the context of her practice formulated by Renaissance Cosmetic Clinics. These extracts and that manual highlight the potentially dangerous complications of the inappropriate injection of substances as part of the injection treatments given by the appellant in the course of operating her beauty salon. We include the reference to anaphylaxis and vascular occlusion. We refer also to the need for infection control and the like. Our references to the risk to the health and safety of clients and potential clients is informed by the potential dangers described in the Manual.
The practice conditions imposed on the registration of the appellant also required her to complete a number of educational courses deliberately selected to assist her in overcoming a number of deficiencies identified during the course of performance assessments. With minor exception, the appellant has failed to complete these courses. Again, her reasons for failing to do so are not clearly explained. We detect that the appellant has not made any serious or concerted effort to complete these courses, probably because she regarded many of them as irrelevant to her work in her beauty salon. Whatever the reasons, registration as an enrolled nurse comprehends all of the skills and competencies required of that profession, whether practised at the time or not. Her failure to undertake those courses will result in a lack of skills which potentially creates a risk to the health and safety of the public.
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.
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.
In all the circumstances, we conclude that it is appropriate within the provisions of section 150 of the National Law that the registration of the appellant be suspended pending the outcome of the complaints against her currently being considered. To this extent the appellant's appeal must fail.

Ancillary matters

We were informed during the course of the hearing by counsel for the Council that the operation of beauty salons in which treatment occurs using injectable substances is unregulated, at least in New South Wales. We were also advised that there is no regulation of who may administer an injection. We find this surprising given the essential requirements that treatment of this kind be given in a sterile environment and that there be on hand procedures and equipment necessary to deal with emergencies of the kind described in the Manual of Renaissance Cosmetic Clinics which we have earlier referred to. Some of the possible emergency circumstances, involving matters such as anaphylaxis and vascular occlusion are obviously potentially life-threatening. Furthermore, it is essential that those performing such treatments be adequately and appropriately trained and, if not a medical practitioner, supervised.
On the basis of the information conveyed to us during the course of the hearing it would seem essential that a medical practitioner be involved in the circumstances of each of the clients of beauty salons providing this type of treatment, particularly as we understand that the injectable substances are Schedule 4 drugs so specified by the Therapeutic and Goods Administration Act. If these drugs can only be prescribed by a medical practitioner, then it follows that a medical practitioner must, consistent with his or her duty of care ensure that the drugs are only prescribed to a person who is a patient of the medical practitioner who has been appropriately assessed by way of physical examination and the taking of an appropriate history. It must also follow that the medical practitioner must ensure that the treatments are administered by someone competent to do so with adequate and proper supervision, including the ability to monitor and supervise the patient during the course of and subsequent to the administration of the treatment including any necessary follow-up. The evidence given to us in these proceedings calls into question whether these essential and basic requirements have been fulfilled.
There is evidence that the appellant ordered bulk supplies of medication through Dr Ho, who arranged for it to be delivered to her where it was stored on her premises. This medication was then used from time to time for clients of the beauty salon against prescriptions which were later issued through Dr Ho's practice consequent upon consultations either with Dr Ho or someone else in his practice conducted by Skype, given that Dr Ho practices from Western Australia. As we understand the situation, each of the clients of the appellant would thereby become a patient of Dr Ho's practice, and come under his care with respect to all of the treatments afforded to them by the appellant. The evidence in the proceedings is that if there was any supervision by Dr Ho or persons in his practice of the treatment afforded by the appellant consistent with what we understand to be a commercial arrangement between her and Dr Ho, such supervision was minimal. In the same way, our understanding of the evidence of the appellant is that she rarely communicated with Dr Ho or others in his practice concerning the circumstances of any of her clients. It was her specific evidence that she alone determined the injection sites for her clients.
We must emphasise that we are not suggesting that Dr Ho or anyone in his practice has engaged in any inappropriate conduct. We raise these matters because the circumstances as described by the appellant in her evidence are capable of suggesting that there might exist, in the aggregate, a situation which may call for investigation of all of the circumstances in which the appellant operated her beauty salon practice as part of a commercial relationship with Dr Ho. We take the view that it is appropriate that we draw these matters to the attention of the relevant authorities lest we be seen to have condoned circumstances which might potentially call for investigation.
Accordingly, we ask the Nursing and Midwifery Council of New South Wales to refer a copy of these reasons for decision to the Health Care Complaints Commission, to the Medical Board of Australia and the relevant Departments of Health in New South Wales and Western Australia.

Costs

This is a costs jurisdiction. However, the question of costs has not been argued before us, and we shall reserve costs accordingly with liberty to apply.

Orders

We make the following orders; 1. The appeal is dismissed 2. Costs are reserved with liberty to apply which must be exercised within one month of this date.

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: 07 November 2018

Medical Practice Act 1992(NSW)

At a glance

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Decision date

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Judgment (10 paragraphs)

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Legislation Cited (1)

Cases Cited (5)

Cited By (2)