Clarke v Nursing and Midwifery Council

NCAT Occupational|2017-10-04

Solicitors Ms Clarke (Appellant self-represented). Nursing and Midwifery Council (Applicant) File Number(s): 2017/000232642

The s150C proceedings

On 13 July 2017 the Council held further proceedings under s150C of the National Law and made a determination that the conditions imposed on the appellant's registration were to be varied. It made the following Orders: Pursuant to section 150C of the National Law we vary the conditions imposed on Sharmain Daisy Clarke's registration as follows: The following condition is to be placed on the public register 1 The registrant must not work as a registered nurse until reviewed by the Nursing and Midwifery Council of New South Wales and this condition is removed. The following condition is private, not to be placed on the public register: 2 The registrant must attend for a health assessment by a Psychiatrist appointed by the Nursing and Midwifery Council of New South Wales. The cost of this assessment will be at the Council's expense.
It was not explicit in the s150C orders that the earlier orders remained in force. This was the source of some understandable confusion for Ms Clarke, as she did not see why she was still receiving correspondence from the Council about undertaking the performance assessment (condition 5 of the s150 orders) while she was in the process of appealing their s150C decision.
A careful reading of the s150C decision indicates that the s150 conditions are not rescinded, and in particular, that condition 5, remains operative. The July 2017 s150C decision varied, but did not replace, the September 2015 s150 decision as there was no order removing the prior conditions (even though the 2017 order 1 in effect rendered the 2015 orders 1-4 inoperative). In reasons for the s150C decision, it is clear that Council envisaged that a satisfactory health assessment was a necessary precondition to the performance assessment when it stated: [46] We believe that the priority at this time is to obtain a current assessment of Ms Clarke's health and wellbeing. This information will be vital to the Council's consideration of the next steps. In our view, the next steps must include obtaining a current assessment of Ms Clarke's professional practice as a nurse.
In relation to the health assessment, the Council stated: [38] We believe that a health assessment will provide the Council with helpful information and an expert opinion about Ms Clarke's current health and wellbeing and recommendation about managing any health-related issues which may impact upon her nursing practice.
The Council noted that almost two years after the initial complaint, assessment processes were still incomplete that would have enabled them to confirm Ms Clarke's performance and safety as a nurse, and that they did not have access to current information on her health or its potential impact on her practice.
In relation to the condition preventing Ms Clarke from practicing Council's reasons were as follows: [54] We are in a position where concerns have been raised about Ms Clarke's performance as well her health and wellbeing and where the Council does not have sufficient reliable information to confirm that Ms Clarke could practise safely if she were well enough to do so. [55] We believe it is vitally important for the Council to be able to complete its assessment processes to determine what, if any, risk would arise if Ms Clarke were to return to nursing practice. [56] We do not believe the current conditions are adequate to minimise potential risk to the public. [57] We have decided it is necessary to impose further restrictions on Ms Clarke's registration as an interim action, restricting her from practicing as a nurse until the matter is reviewed by the Council. We have also decided to impose a condition requiring that Ms Clarke attend the health assessment that is crucial to the Council's ongoing management of issues relating to Mr Clarke's nursing practice.

The Appeal grounds

On 31 July 2017 the appellant filed an appeal with this Tribunal against the s150C Decision. The appellant listed the following Grounds for Appeal: [1] Annexure "G" attached [Two pages of submissions dated 20 July 2017]; [2] I have complied with 2 Forensic Clinical Psychiatric Assessments. Outcomes of which was not representative of a Psychiatric Disease; [3] New South Wales Nurses and Midwifery Council have liability in my matter before the Supreme Court / District Court.
In a letter to the Tribunal dated 8 September 2017 the appellant stated: My appeal before the Principal Tribunal Member and other members on the panel is to convince the court why the New South Wales Nursing and Midwifery Council (NWC) must not be the Body requesting for a Health Assessment or any assessment at this point of time. … 3 The Appellant is prepared to undergo an independent heath assessment as per the requirements of the Health Practitioner Regulation Law 86a, however, an appeal is for this assessment to be assigned to AHPRA and not the NMC.

The nature of the appeal

This appeal is made under s159(1)(b) of the National Law which provides that a person may appeal to the Tribunal against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council.
Section 150 of the National Law relevantly provides for the Council to order suspension or impose conditions on registration in order to protect the public as follows: (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) … (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; …
Section 150C of the National Law relevantly provides the Council the power to remove or alter conditions or end suspension as follows: (1) A Council may, at any time - (a) end a period of suspension imposed by the Council under this Subdivision; or (b) alter or remove conditions imposed under this Subdivision. (2) A Council may, at any time after taking action under section 150 with respect to a registered health practitioner or student (the original action), take any other action it could have taken under that section at the time of taking the original action.
Section 159 provides: (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - (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 Division 3 or 4 or the alteration of the conditions by the Council; …] (2) … (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.
Section 159C provides the Tribunal's powers on appeal as follows: (1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
In Hanna v Medical Council of NSW [2017] NSWCATOD 27 at [17] - [19] and [22], the Tribunal recently summarised the scope of this power: [17] The jurisdiction is a protective one, directed to the immediate action that might need to be taken in the public interest. The Tribunal is engaged in a reconsideration of the decision under appeal, and may have regard to evidence beyond that which was available to the original decision-maker. See further, Bova v Pharmacy Council of NSW [2014] NSWCATOD 40 at [14] ff; and Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115. [18] We are exercising afresh the administrative discretion found in s 150(1), having regard to the material now before us. We do not merely review the committee's decision and decide, for example, that it was one that was open to it to be made in the circumstances. We must assess separately and independently whether 'it is appropriate for the protection of the health and safety of any persons or persons' or 'is otherwise in the public interest' for action to be taken against a practitioner to suspend the practitioner's registration or permit the practitioner to remain in practice subject to conditions. [19] The Tribunal, like the Council was, is called on to deal with conduct of concern in circumstances where there may be continuing dispute as to precisely what occurred, and at a time when investigations by complaint bodies such as the Health Care Complaints Commission may have not commenced, or be uncompleted. In proceedings of this kind, we are not required to make formal findings of fact on the material before us. … [22] Nor is it relevant to these proceedings to undertake assessment as to whether the conduct under notice might constitute 'professional misconduct' or 'unsatisfactory professional conduct', or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. These are all matters that may fall to be addressed at a later stage, if and when disciplinary action is taken against the appellant by the relevant authority, the Health Care Complaints Commission in this instance.
Accordingly, the Tribunal must consider and determine afresh whether the imposition of the two conditions set out in the s150C Decision is "appropriate for the protection of [the public] … or … is otherwise in the public interest".
Section 3A of the National Law provides that "in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration."
As this Tribunal stated in BCS v Dental Council of NSW [2015] NSWCATOD 157 at [42]: Section 150 imposes a heavy duty upon a Council, or the Tribunal on reconsideration to take action, by suspending or imposing conditions upon a practitioner, for the protection of members of the public, or the public interest more generally, "if at any time it is satisfied it is appropriate to do so ... or if satisfied the action is otherwise in the public interest". The protection of members of the public trumps other interests and the threshold for the exercise of the discretion to suspend or impose conditions is, for that reason, relatively low.
In determining whether to take action under ss 150 and 150C, it is not the role of the Council or Tribunal to make findings of fact or make a determination of the merits of any complaint: Lindsay v NSW Medical Board [2008] NSWSC 40 at [79]; Ord v Nursing and Midwifery Board of Australia [2014] QCAT 688 at [8]; Shahinper v Psychology Board of Australia [2013] QCAT 593 at [14]; Liddell v Medical Board of Australia [2012] WASAT 120 at [21]; I v Medical Board of Australia [2011] SAHPT 18 at [31], [36], [38] and [43]; Colquhoun v Psychology Council of NSW [2011] NSWPST 3 at [9]; Hanna v Medical Council of NSW [2017] NSWCATOD 27 at [17][-[22].
In Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53 at [169] this Tribunal said of s 150: The purpose is protection of the public. In cases such as this where serious allegations have been made which, if true, could require suspension or cancellation of the appellant's registration, but the evidence is incomplete and further investigation is needed, the issue is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring imposition of a condition for protection of the public.
The standard set out in Briginshaw v Briginshaw (1938) 60 CLR 336, which requires the Tribunal to determine the occurrence or existence of the relevant facts on the balance of probabilities, does not apply in proceedings such as those under s 150: R v Medical Board of Australia [2013] WASAT 28 at [105] - [106]; Shahinper v Psychology Board of Australia [2013] QCAT 593; Colquhoun v Psychology Council of NSW [2011] NSWPST 3 at [13]. Thus the Council, or Tribunal in the case of appeal, does not determine whether the alleged conduct in fact took place, but rather, whether there is a basis for satisfaction under s150 (and s150C) that it is "appropriate" to impose conditions for the protection of the health or safety of any person or persons, or because the imposition of conditions is otherwise in the public interest.

The hearing and evidence

Ms Clarke was self-represented at the hearing. The Tribunal was mindful of the difficulties faced by Ms Clarke in this regard and our duties under s 38(5) of the Civil and Administrative Tribunal Act 2013 (NSW).
In addition to taking care to explain and assist in procedural matters, the Tribunal also explained on a number of occasions the scope of what was under appeal. In particular the presiding member explained that the Tribunal did not have the ability to make findings of fact concerning the original notifications concerning the appellant (nor her notifications concerning others) and was restricted to the determining the central question of whether the s150C orders were appropriate for the protection of the public or are otherwise in the public interest.
The Tribunal allowed Ms Clarke considerable latitude in the presentation of her case, for example, in accepting submission of a large volume of documents via USB on the day of the hearing without notice, in allowing the appellant to give oral submissions at length, which at times included a variety of evidentiary matters, and in offering her the opportunity to provide further submissions in writing following the hearing. Counsel for the NMC took an accommodating and flexible approach which was of considerable assistance.
It was clear from the evidentiary material and from Ms Clarke's oral evidence and submissions that she has a deep sense of grief and injustice concerning the circumstances of her termination of employment in 2015. Ms Clarke is actively pursuing litigation and complaints in multiple jurisdictions as a result of the termination and events surrounding it. It appears that Ms Clarke has sought to join the NMC as a defendant in at least one of those proceedings.
Ms Clarke presented a number of medical certificates and reports concerning her physical and mental health, as did the Council. In addition to those already referred to, these included: a medical certificate from general practitioner Dr Mervyn Garber dated 9 December 2016 which indicated that Ms Clarke was unfit to work between 2 May and 2 August 2016 due to acute anxiety, depression and stress and a medical certificate from general practitioner Dr Andrew Adams dated 11 July 2016 which indicated that Ms Clarke had symptoms of severe anxiety and depression related to her dismissal from work.
Three other reports were also in evidence. These were: a report dated 22 October 2014 by forensic psychiatrist Dr Samson Roberts; a report dated 30 November 2014 by clinical psychologist Serena Cauchi and a report dated 16 October 2015 by forensic psychiatrist Dr Anthony Samuels.
The report by Dr Roberts was an assessment within the context of a worker's compensation claim by Ms Clarke. The report contains a detailed history of Ms Clarke's workplace disputes and indicates that Ms Clarke's state of distress and grievance is a 'normal healthy response' to a 'perception of injustice in the workplace'. Dr Roberts concluded that Ms Clarke 'did not present as impaired from a psychiatric perspective.'
The report by Ms Cauchi was in response to a referral from Ms Clarke's GP. The report states that Ms Clarke's anxiety, depression and stress are 'most likely a normal response to her perception of being subject to discrimination and workplace bullying' and that it is highly likely that her 'symptoms will abate once she is reinstated to her profession.'
The report by Dr Samuels arose as a result of Ms Clarke making a disclosure about a health condition to AHPRA, in the course of her application to re-register in May 2015. AHPRA required a health assessment under s 80(1)(e) of the National Law. The report gives a detailed history of Ms Clarke's workplace disputes and issues. Dr Samuels noted that, 'Her thought form was extremely circumstantial' and that 'She is quite pressured in her speech and hard to interrupt'. Dr Samuels stated that there was a possibility of 'an underlying mood disorder of a bipolar type' but that there was insufficient evidence to give a 'definitive opinion'. He concluded that there was no clear evidence that Ms Clarke was suffering from an impairment within the meaning of the National Law.
As Ms Clarke referred to the materials that she provided on USB in her final submissions the Tribunal reviewed those materials following the hearing. The documents included run to over 2,500 pages, with no index, no consecutive numbering, and no indication of which material is relevant to what appeal point.
The appellant's USB materials include voluminous correspondence between Ms Clarke and her former employer, Ms Clarke and her professional association, Ms Clarke and the Council, and Ms Clarke and AHPRA. These materials are largely from 2014, and concern the practitioner's termination from RHW, a wrongful dismissal claim and a worker's compensation claim.

Submissions

Ms Clarke's case was that she did not suffer from a mental health disorder, nor any 'psychiatric deficit', and that the three reports in evidence demonstrated this.
It was also Ms Clarke's belief that the Judge in the District Court litigation she was conducting had suggested, or directed, that she not undertake a health assessment; although there was no documentary evidence of this.
Ms Clarke did not accept that the NMC should administer a health assessment, nor that any practitioner within the South Eastern Health District should conduct such an assessment, on the basis that she was pursuing litigation against both entities.
The Council submitted that the s150C conditions were appropriate, with particular regard to: 1. the seriousness of the complaint made against the appellant that her clinical practice was unsafe; 2. the delay and ongoing unfitness to undertake a Performance assessment; 3. the delay and ongoing resistance to undertake a Health assessment; 4. the evidence of ongoing anxiety and depression which at times has rendered the appellant unfit to work.
Counsel for the NMC submitted that in the context of s150C proceedings, only the Council has the statutory power to impose the condition that the appellant undertake a health assessment, and this could not be delegated or otherwise assigned to another agency such as AHPRA.
However, the position of the Council was that it sought to use its best endeavours to facilitate the health assessment in a manner that would allay the concerns of the appellant in her dealings with them. As such the Council undertook to proceed in the following way in relation to administrative arrangements for the health assessment, should the Tribunal dismiss the appeal: a) Request that AHPRA make all relevant arrangements for Ms Clarke's health assessment by a registered medical practitioner including: choosing and briefing the medical practitioner and all communications and correspondence to Ms Clarke regarding the appointment time and place, and b) Supply to AHPRA a copy of all material currently before this Tribunal including the material relied upon by Ms Clarke in these proceedings for the purposes of briefing the medical practitioner referred to in a) above, and c) Pay the costs of the assessment upon submission of a taxable invoice if Ms Clarke attends the scheduled assessment. If Ms Clarke does not attend the scheduled assessment, she is to pay any cancellation fees charged by the medical practitioner.
The appellant gave evidence that she would undertake a health assessment if the Tribunal so ordered, but then appeared to resile from this when it was explained that the outcome of the assessment would still have to be provided to the NMC.
In final written submission filed after the hearing, Ms Clarke, in a series of dot points, drew attention to the USB of material which she had tendered at hearing, and some additional correspondence with AHPRA as the basis of her submission, but with no indication of the manner in which it was relied upon.

Findings and reasons

The Tribunal is not required to make factual findings, but rather, to decide whether there is a basis for satisfaction that it is "appropriate" to impose the two conditions upon the registration of the appellant for the protection of the health or safety of any person or persons or because they are otherwise in the public interest. We find that the s 150C conditions are appropriate, and dismiss the appeal, for the following reasons.
The Council was faced with a serious complaint concerning Ms Clarke's performance. It had a duty to investigate and concluded that the only appropriate way to protect the public was to require a performance assessment. That decision is not under appeal.
In attempting to assess Ms Clarke's performance the NMC was provided with a number of medical certificates by Ms Clarke. As a consequence the NMC requested that Ms Clarke undertake a health assessment. The material provided by Ms Clarke gave rise to reasonable cause for concern and merited further inquiry such that the request for a health assessment was justified in the circumstances. When the health assessment was not undertaken, the Council reconvened and imposed the health assessment as an order rather than a request.
Over two years have now passed since the NMC processes commenced, and neither a performance assessment nor a health assessment has been completed as required or requested by the Council. In order to properly protect the health and safety of the public, both the original concerns and those that have arisen in the course of the process must be addressed and allayed, before Ms Clarke can return to practice.
While the three reports concerning Ms Clarke's mental health do not conclude that she has any psychiatric disorder, only one of those reports was actually directed to the relevant standard: which is whether the practitioner has an impairment within the meaning of s 5 of the National Law. That report, by Dr Samuels, was written over two years ago. Given the passage of time, it is appropriate that an assessment be made of Ms Clarke's current state of health.
Ms Clarke's committed intransigence in relation to Council processes means that the s150C conditions are also 'otherwise in the public interest'. The reluctance of the appellant over a long period to comply with the requirements of her professional governing body give cause for concern in terms of her ability to comply with and uphold professional standards. Health practitioners must work with regulators, and within regulation, including for example appreciating the necessity of co-operating with investigations or assessments undertaken to protect the health and safety of the public, even if the practitioner may believe that the originating concern or complaint is unfounded.
While the Tribunal accepts that Ms Clarke has a deep sense of grievance and injustice concerning her past dismissal and the circumstances surrounding the making of the original complaint, we urge her to look to the future if she wishes to re-establish herself in her professional practice. To do this she must participate in the assessment processes set down in the s 150 and s 150C conditions.
Ms Clarke's disputation with the relevant body, the NMC, cannot alter the Council's statutory function and responsibilities. The National Law does not provide for the delegation of the Council's responsibilities under s 150. The NMC has made an undertaking to pursue its responsibilities in the most accommodating manner possible, with the assistance of APHRA to administer the process, and we urge Ms Clarke to accept this undertaking.
Ms Clarke spoke passionately of her love of, and deep desire to return to, nursing. We emphasise that these conditions are interim conditions only: they allow for the relevant information to be gathered and assessed by the statutory body responsible.

Costs

The NMC did not seek its costs if successful in these proceedings, therefore no order concerning costs is made.

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 2017

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