Cammarata (nee Payne) v Health Care Complaints Commission

The disciplinary proceedings

1. The earlier Tribunal succinctly summarised the complaints brought against the applicant in [1]-[3] of its reasons as follows: Between January 2019 and August 2019, while working in the intensive care unit (ICU) of John Hunter Hospital (the Hospital), on multiple occasions Registered Nurse, Ms Cody Payne, accessed her own health records and the health records of 34 other people without authority. The records were held on an electronic data base maintained by the Hunter New England Health District (the Health District). Access to those records was password protected. Of the 34 people whose records Ms Payne accessed, six were related to or associated with Ms Payne's then partner, now husband (the husband). In August 2019, the Health District received complaints that alleged that Ms Payne had accessed the health records of several people without authorisation. The Health District investigated those allegations and found that Ms Payne had accessed health records "for use and personal gain in external family court legal proceedings". The Health District terminated Ms Payne's employment and notified NSW Police and the Independent Commission Against Corruption of its findings.
2. The reasons record at [11] that, in December 2019, the applicant was charged with "11 sequences" of offences of "unauthorised access" under s 308H (1) of the Crimes Act 1900 (NSW) in relation to the family members. On 8 March 2020 the applicant pleaded guilty to what are described by the Tribunal as "rolled up charges". She received a conditional release order under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The reasons further note that the applicant appealed against the sentence to the District Court of New South Wales. That Court quashed the applicant's conviction and made a conditional release order under s 10 of the Crimes (Sentencing Procedure) Act for a period of twelve months.
3. The reasons explain that, at a hearing conducted under s 150 of the National Law, the applicant acknowledged there was no justification for her conduct in accessing health records without authorisation and in so doing that she was "breaking the law". She also denied that she had accessed material for use in Family Court proceedings between her husband and his former spouse concerning their children, but explained the access had been "a spur of the moment thing", because she has been pushed to do so when one of the children failed to arrive for an access visit.
4. The reasons record that the applicant said she had reflected and now understood the inappropriate nature of her actions and that she had apologised to the mother of the children. At [27] the Tribunal recorded: When taken to the evidence that she had accessed the health records of the mother on multiple occasions, Ms Payne could not offer an explanation for doing so. Nor could she offer an explanation for looking at parts of those records which related to the treatment the mother had received.
5. The reasons refer to the applicant's behaviour in accessing, over an eight-month period in 2019, health records of 27 persons "none of whom were patients of the ICU or in the care of Ms Payne when she accessed their records".
6. At [33]-[34] the Tribunal set out the relevant provisions of the NSW Health Code of Conduct and the Code of Conduct for Nurses issued by the Nursing and Midwifery Board of Australia.
7. The reasons explain that the applicant sought before the Tribunal to rely on the sentencing remarks of Ellis DCJ in the District Court, but note that the HCCC submitted that reliance should not be placed on his Honour's remarks because of additional material before the Tribunal, which was not before the District Court on the appeal from the Local Court.
8. At [52]-[53] the Tribunal recorded its findings in respect of the applicant's action in accessing records of family members as follows: In these proceedings, Ms Payne failed to provide a plausible explanation for accessing the records of the mother of the children. It may be that, as alleged by the Health District, that the reason she accessed the health records of family members was to discredit the mother and cast doubt on her suitability as a parent. That allegation was not put to Ms Payne in these proceedings and on the available material is not established. Nonetheless, it is apparent that Ms Payne accessed the health records of family members for the purpose of providing information contained in those records to her husband in the knowledge that it would be used by him in the Family Law proceedings. In addition, she admitted accessing information contained in her husband's health records for use by him in a compensation claim. Whether, as the Commission contends, this can be characterised as being for "personal gain" is beside the point. Her actions were "well meaning" in the sense that at the time she considered it was necessary and appropriate to support her husband. However, her actions in accessing the information for a purpose unrelated to her duties as a nurse were nonetheless, as Ms Payne properly concedes, both improper and unethical.
9. The Tribunal recorded that, at the time the applicant accessed family member's records, she was young and inexperienced. The reasons explain "She was undoubtably caught up in the acrimonious dispute between her husband and his former partner which apparently clouded her judgment". The Tribunal concluded at [60] that the applicant's conduct in respect of the accessing of records of six family members was unlikely to be repeated.
10. The gravamen of the Tribunal's reasons for determining that cancellation was the appropriate protective order are found at [61]. There the Tribunal explained: Nonetheless, in large part because of the absence of any plausible explanation for Ms Payne's actions in accessing the health records of non-family members, we are left with a sense of unease about whether the offending conduct might be repeated. Even if we accept that Ms Payne accessed the records of those non-family members who were patients of the Hospital because she wanted to prepare for their possible admission to ICU, this does not explain why Ms Payne accessed the records of those non-family members who were not patients at the Hospital when she accessed their records. Any number of reasons may explain Ms Payne's actions, including idle curiosity. However, on the available material we simply do not know why Ms Payne accessed those records. Unless and until some explanation is available, we think that there is an appreciable risk that Ms Payne might again abuse her position as a nurse and access health records without authorisation.

Relevant statutory provisions and principles

1. This application is brought under s 163A of the National Law.
2. Section 163A provides that an applicant may bring an application to the appropriate review body (in this instance, the Tribunal) for an order reviewing the cancellation of the heath practitioner's registration. Such a review may not be instituted during any non-review period. There is no dispute in this matter that the six months non-review period imposed by the earlier Tribunal has elapsed and the review now sought is competent.
3. Section s 163B sets out the powers to be exercised on a review application. It provides 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.
4. Section 163C sets out how the review is to be conducted. Section 163C provides: 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division.
5. Also relevant to our consideration is s 3 of the National Law in particular s 3 (2) and (3). Those provisions are as follows: (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; …. (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
6. As with all matters conducted in NSW under the National Law the provisions of s 3A are of paramount importance. Section 3A provides 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.
7. The principles to be considered in determining a review application are well established. The relevant principles are referred to by N Adams J in Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85]. There Adams J cited with approval the principles espoused in Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 16 at [7]-[9].
8. Adams J stated: The relevant principles guiding an application for reinstatement at [7]-[8] were correctly stated in the decision of NCAT as follows: "[7] 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 the principles in the following terms: 12. 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 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": Amieson 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]; [8] In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated: 30. 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. 31. 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."
9. See also Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 at [53]-[65]; Chen v Medical Council of New South Wales [2021] NSWCATOD 33 at [50]-[51] and Shah v Health Care Complaints Commission [2014] NSWCATOD 94.

The applicant's evidence and submissions

1. We commence our summary of the applicant's evidence (both written and oral) by noting that the practitioner was self-represented, and it appears, had not had the benefit of legal advice. She requested to appear by audio visual link (AVL) on the morning of the hearing on the basis that she was unwell and that she did not wish to risk infecting anyone at the Tribunal. Leave was granted for her to appear by AVL.
2. The applicant relied on the following in support of her application: 1. Her General Application form, including her grounds for application and a letter addressed to the Executive Officer, Nursing and Midwifery Council dated 24 May 2022. 2. A statement dated 2 August 2022 addressed "To whom it may concern" 3. Supervision reports of Ms Katie Lynch dated 26 July 2021 4. The applicant's curriculum vitae.
3. The applicant was crossed examined by counsel for the HCCC and answered questions posed by the Tribunal.
4. In the grounds for her application, the applicant states: During this period of my Nursing registration being cancelled I have been using this time to reflect on my previous nursing practice and doing journal reflections and recounts to work through my previous poor actions and to be able to move forward with my life. I have also during this time worked casually as an AIN doing COVID swabbing to assist still with the pandemic. ….. I feel I was and can still be a significant asset to my workforce where I previously have worked due to my critical care knowledge and experience.
5. The applicant set out similar information in her letter addressed to the Nursing and Midwifery Council including the following: I have used this time to do a lot of self-reflection on both a personal and professional level. I have also taken to mindfulness and journal reflections regarding my previous actions to be able to move forward.
6. In her statement addressed "To whom it may concern", the applicant refers to her training and skills. She states "I would strive to at least make a decent and positive impact and effect on at least one person each day, and each time it would remind me just why I became a nurse and that it was so worth it"
7. In addressing the cancellation of her registration and the reason for that order the applicant refers to "working through reflective journal writing for me to gain perspective to this". In her oral evidence in answer to questions posed by the Tribunal, the applicant explained she had initially made journal entries on a weekly basis, then a fortnightly basis, and since her current employment, monthly.
8. The applicant states: I have touched base and even read a journal article on areas of judgement and professional judgement and ethics which I found to be a good source of explanation and clarity for me. I have gone over the decision made and cancellation order and the ramification my decision making could or has had on people, the responsibility and professional boundaries I have as a Nurse in protecting peoples' personal and private information. I have also spent some time of this going over the National Governance Associations document for Code of Conduct, as well as some recent policies from my previous workplace at Maitland Private Hospital. I would like to gain re-instatement to prove that I have changed, I am able to work professionally and within the correct ethical boundaries as a Registered Nurse.
9. The applicant goes on to state that she would continue to work in a well-supported environment, engage in further education and "would never do anything like this again too [sic] and I am beyond embarrassed thinking on reflecting on the whole situation".
10. The statement concludes noting that the applicant has attached three supervision reports (we pause to note that these reports were before the earlier Tribunal). The applicant states she was unable to obtain a reference (presumably from her current employer) prior to the due date for service of her material in support of her application.
11. In her oral evidence in response to questions posed to her, the practitioner identified the NSW Health document was a 2012 document (since replaced) which had been provided to her by Ms Lynch at the time of the disciplinary proceedings. She also gave evidence that she had approached her general practitioner for referral to an appropriate mental health professional and had been referred to a counsellor, as her general practitioner did not assess her has requiring psychological assistance.

The HCCC's submissions

1. Immediately after the hearing the Tribunal received updated and helpful written submissions from Ms McCarthy of counsel who appeared for the HCCC. We acknowledge our appreciation of those submissions.
2. We also note that during the hearing Ms McCarthy obtained instructions to the effect that if the Tribunal determined it was appropriate to make a re-instatement order, subject to a "Not to practise" condition unless the applicant successfully completed, at her own expense, an undergraduate unit in Law and Ethics in the Faculty of Nursing at a university, that the HCCC would not oppose such an order.
3. The submissions summarise, by reference to authority, the relevant principles to be applied in determining whether or not to make a re-instatement order. The submissions also seek that the Tribunal makes an order that the practitioner pay the HCCC's costs of this re-instatement application and refers to relevant principles on costs of such applications. We address that submission and principles later in these reasons.

Consideration

1. We commence our consideration of this application by noting that the onus of proof rests with the applicant.
2. In many respects the applicant's material (or lack thereof) caused us concern as to whether she had adequately met the high hurdle necessary to obtain a re-instatement order. While we accepted the practitioner's evidence that she is remorseful and has been embarrassed by the disciplinary proceedings, she did not provide any up-to-date corroborative evidence of the steps she has taken by way of rehabilitation or to gain insight into her conduct. While we did not find the applicant was dishonest in her evidence about her reflections in a journal, no journal entries were provided that would have enabled us to assess her reflections and insight.
3. Similarly, we did not doubt the accuracy of the applicant's evidence that she engaged in services as an AIN conducting swabbing for a period during the pandemic. No corroborative evidence was provided by way of reference or pay slips. Again, we accept that the applicant is currently working as a NDIS support worker and has been since June 2022, but no corroborative evidence was provided of this employment or any reference from her employer.
4. While we accept that the applicant did have access to the NSW Health document provided to her by Ms Lynch, it was a 2012 document which has been replaced by a more up to date document (which we note was served in the material relied on by the HCCC).
5. We also note that no reference or statement from Ms Lynch was provided. The practitioner gave sworn evidence that Ms Lynch was on sick leave as a reason for a lack of statement from her in support of the re-instatement application.
6. The applicant was cross-examined about the non-payment of costs of the disciplinary proceedings. We have already noted we did not have the benefit of any costs' decision before us. Further, the applicant explained that she was awaiting an invoice from the HCCC. No evidence was adduced by the HCCC about costs. Accordingly, we have not given any weight to this matter.
7. We have, however, taken into account the following matters. First, the applicant did not have the benefit of legal advice and did not appear to appreciate the importance of corroborative evidence to support her application. Secondly, like the previous Tribunal, we find that it is highly unlikely that she would again improperly access family medical records. Thirdly, at the time of the offending conduct we accept and concur with the earlier Tribunal that the applicant was young and relatively immature. Fourthly, we accept the applicant's evidence that she apologised to her husband's former spouse for her conduct. Fifthly, the applicant did provide some explanation of her conduct in accessing the records of non-family members saying she did so because of idle curiosity including accessing records on night shifts. Sixthly, we accept that the cancellation of the applicant's registration has caused her embarrassment and financial hardship. Those latter two matters are not determinative of this application. Rather, we are focussed on whether the practitioner would again engage in any improper or unethical conduct, but we do not ignore the impact of those factors.
8. We also take into account the comments of Kirby P (as his Honour then was) in Peter Harcourt Dawson v Law Society of NSW [1989] NSWSC 335 that "there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance".
9. The nub of this application is whether we can be satisfied that the practitioner is now a fit and proper person to be restored to the registrar and importantly that her registration will not pose a risk to the health and safety of the public.
10. We had no cause to doubt the applicant's evidence about her clinical skills, nor her acknowledgement of the stressful conditions many of her nursing colleagues are presently experiencing, and her desire to resume practice. However, we were concerned about what we perceive to be a lack of nuanced understanding of relevant professional, legal and ethical issues regarding patients and the public generally by the applicant.
11. We found factors both for and against her re-instatement (principally the lack of corroborative evidence of her position) to be finely balanced. We ultimately determined that a re-instatement order, subject to a "Not to practise" condition unless and until the applicant successfully completes an undergraduate unit in a Faculty of Nursing at a university of her choice on Law and Ethics, should ensure she has relevant and up to date information about her professional, legal and ethical obligations to patients and the public generally.

Costs

1. The HCCC seeks an order for costs of this application pursuant to Cl 13 of Schedule 5D of the National Law.
2. Clause 13 provides as follows: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
3. The HCCC's submissions note that the "general rule" is that costs follow the event. At para 2.10 (b) and (c) it is submitted: Reinstatement proceedings arise because of the prior misconduct of the applicant and can be seen as ancillary to the original proceedings which resulted in the cancellation of the applicant's registration, so it is open to the Tribunal to order the applicant to pay the Commission's costs. 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 Commission conducts its case appropriately, it should be compensated, regardless of whether the order is granted or refused. [footnotes omitted]
4. The rationale for making a costs order in favour of a respondent is carefully explained in the reasons in Ristevski v Medical Council of New South Wales [2016] NSWCATOD 16. Of resonance in this case are the Tribunal's comments at [85]-[88]. There the Tribunal explained: An applicant who seeks relatively early reinstatement would, we think, recognise that key regulators would take a close interest in the application and be likely to seek and be granted leave to appear. Quite properly, the applicant did not oppose the grant of leave in this case. It remains open to an applicant who does not oppose the grant of leave, nevertheless to raise the question of any limits being placed on possible costs, though this is not commonly done. We accept that the Tribunal should be vigilant and not compensate by a costs order a respondent who proves in the preparation and conduct of their role to be unconstructive, unduly hostile or whose participation proves to be token. In our view the basic point made in the passage quoted from Ameisen stands. 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. The power to award costs is discretionary. Each of the recent cases to which our attention was drawn, where no order to costs was made, had exceptional features. We accept equally there may be reinstatement cases where the genesis is not a finding of professional misconduct, but perhaps impairment and consequent incompetence to practise. It may well be that the question of costs of respondent in reinstatement applications of that kind warrants a different approach.
5. We have also taken into account the reasoning in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. We particularly note that impecuniosity is not a factor to be taken into account in making a costs order.
6. We are satisfied in this case that a costs order should be made in favour of the HCCC. This re-instatement application was necessitated by the applicant's conduct in inappropriately accessing private health records. The HCCC assisted the Tribunal with the documents which became Exhibit "A" before us and in the provision of helpful written submissions and by counsel's cross-examination of the applicant.

ORDERS 1. Pursuant to s 163B of the Health Practitioner Regulation National Law (the National Law) a reinstatement order is made in respect of Cody Cammarata (nee Payne) (the practitioner) subject to the following conditions: 1. the practitioner is not to practise nursing until she successfully completes, at her expense, an undergraduate unit in Law and Ethics in the School of Nursing at the University of her choice (the course) and 2. provides evidence to the Nursing and Midwifery Council of New South Wales of her satisfactory completion of the course. 1. The Nursing and Midwifery Council of New South Wales is the appropriate review body in respect of Order 1 of these orders. 2. In the event that the practitioner resides other than in New South Wales then s 125-127A of the National Law shall apply. 3. The practitioner shall pay the costs of and incidental to the application of the Health Care Complaints Commission as agreed and failing agreement as assessment under the Legal Profession Uniform Law Application Act 2014 (NSW).

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: 15 November 2022