Clarke v Nursing and Midwifery Council of New South Wales

Grounds of appeal

1. In an amended notice of appeal, Ms Clarke listed four grounds of appeal. The first and second (numbered [2] and [3]) relate to decisions made by the Council in 2017 and 2018 and are therefore outside the scope of this appeal which relates only to the April 2020 Council decision. The third alleges fraud and misconduct on the part of the Impaired Registrants Panel and a "less than appropriate" recommendation which was then accepted by Council. The fourth alleges, in effect, that the Council misconducted the review process and relied on an assessment of a Council-appointed practitioner (Dr Samuels) rather than the Impaired Registrants Panel in making its decision. Ms Clarke also alleges in this ground that she was taken advantage of by staff of the Council who intentionally caused her "mental harm". In this ground, Ms Clarke denied that she suffered from mental illness.
2. In essence, these grounds of appeal amount to a claim that, in 2020, the Impaired Registrants Panel and the Council erred in determining that Ms Clarke is impaired, and the Council erred in confirming an order made in 2018 prohibiting Ms Clarke from practising as a registered nurse.
3. As this is an appeal de novo, to succeed in the appeal Ms Clarke is not required to establish that the Council's decision was affected by an error of law or some procedural defect. Rather, the central issue for determination is whether, having regard to the protective principles governing this jurisdiction (see s 3A of the National Law and Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]), the May 2018 condition should remain in place, or be altered or removed. The determination of that issue turns on whether Ms Clarke has an impairment, and, if so, whether the May 2018 condition is reasonably necessary for the protection of members of the public.

The medical evidence

1. Ms Clarke denies that she is mentally ill or suffers from a mental condition that impairs her capacity to work as a nurse. She has maintained that position for several years. Her treating psychiatrist, Dr Dinnen, supports her in this view. Ms Clarke claims that the only health condition for which she is currently being treated is a speech impediment caused by a neurological condition.

Opinion of Dr Samuels

1. Dr Samuels assessed Ms Clarke at the request of the Council on four occasions: October 2015, March 2018, April 2019 and, most recently, in February 2020.

2015 assessment

1. In a report dated 15 October 2015, Dr Samuels noted that Ms Clarke "was quite pressured, hard to interrupt, excitable, emotional, and tearful". He concluded that there was a possibility that Ms Clarke may have an underlying mood disorder of a bipolar-type disorder but was unable to give a definitive opinion. Dr Samuels concluded that Ms Clarke probably did not have an "impairment" within the meaning of the National Law.

2018 assessment

1. In the report of his second assessment, dated 29 March 2018, Dr Samuels noted that Ms Clarke reported that she was seeing a GP intermittently and was not under the care of a psychiatrist or psychologist or taking any medication.
2. Dr Samuels noted the history given by Ms Clarke of everything being fine and then suffering "nervous shock and dissociation" between 27 October 2015 and 16 March 2016. She attributed this to a "false and baseless claim that I was psychiatric, I was dependent and had health issues, discredited me, they dismembered me, serious defamation" made by a manager at the Royal Hospital for Women, where she was employed until 2015. Ms Clarke reported that when the Council placed conditions on her registration requiring that she work under supervision she had "a total breakdown" and when she subsequently lost her job the "world came crashing down on me". She claimed she reported to the Council that she was not psychiatric but rather suffered from "PTSD, major depression, reactive stress disorder, anxiety and panic, myocardial spasms, nervous shock".
3. Dr Samuels stated that in his assessment, he found Ms Clarke to be "difficult to follow, pressured in speech, thought disordered, mildly disinhibited, quite disorganised and grandiose". He stated that Ms Clarke presented as "quite insightless", repeatedly saying that she is not, "psychiatric" but then listing a range of disorders and conditions she says she is suffering from.
4. Dr Samuels concluded that Ms Clarke's "current clinical picture is in keeping with a bipolar type disorder with hypomanic features". On this occasion he found that she was not fit to work as a nurse, as she had an "impairment". He recommended that Ms Clarke be under the care of a psychiatrist, general practitioner, and possibly a psychologist.

2019 assessment

1. Dr Samuels reassessed Ms Clarke in April 2019.
2. In a report of that assessment dated 2 April 2019, Dr Samuels stated that on this occasion he found Ms Clarke's presentation: "[W]as different today and she was certainly less agitated and intense, but she remained pressured in speech, quite hard to follow and mildly thought disordered. She denied any mood or anxiety problems, she denied any form of mental illness, she assured me she had "capacity" and was of sound mind."
3. He noted, however, that Ms Clarke used "quite stilted formal language, interspersed with a lot of legal jargon not always in the correct context". In his opinion, Ms Clarke "was mildly grandiose and at times frankly thought disordered and demonstrated considerable loss of insight".
4. Referring to the positive reports provided by Dr Dinnen and Ms Clarke's GP, Dr Samuels noted that "it is often difficult as a treating practitioner to be frank about a patient's mental state because of the risk of alienating them therapeutically and in addition she is highly litigious". He stated that it was "fairly evident" when talking to Ms Clarke, particularly when she gets emotional about the injustices that she perceives, that "her thinking becomes disorganised, there is a grandiosity and whilst she has some grasp of legal concept, there is a conflation of ideas and a lot of what she says is not all that comprehensible".
5. Referring to the assessment he conducted in March 2018, Dr Samuels stated that his "impression remains unchanged and it is my view that she is not well enough to work as a Registered Nurse". He stated that Ms Clarke's mental state is not likely to improve without "assertive psychiatric treatment", which given her lack of insight is not likely to occur unless her "mental state decompensates to the point that treatment can be enforced under the Mental Health Act".

2020 assessment

1. Dr Samuels re-assessed Ms Clarke in February 2020. In a report dated 25 February 2020, Dr Samuels found Ms Clarke to be "well presented" and "very pleasant". He thought that she was "mildly thought-disordered". Her replies to his questions were "tangential" and her manner was "quite detached". He described her responses as "quite stilted" and his impression was that she remains "mired in numerous legal disputes", which she is pursuing in the hope of returning to her career. In Dr Samuels' view, she remained "quite insightless".
2. During the assessment, Ms Clarke denied having a mental illness but asserted that she had received a "psychological injury" which had been exacerbated by her experience of litigation. She also claimed that she was suffering the after-effects of having been treated with sodium valproate, a medication used in the treatment of bipolar disorder.
3. In Dr Samuels' view, Ms Clarke's quite brief treatment with psychotropic medications had improved her mental state and he was concerned that, after her admission to the Royal North Shore Hospital (28 November 2019 to 16 December 2019) where she was given this treatment, Dr Dinnen had stopped it. (In fairness to Dr Dinnen, it appears that Ms Clarke stopped her own medication.)
4. Dr Samuels' opinion was that Ms Clarke suffers from a mental illness and was not fit to practise and would not become so until she developed greater insight and had been treated for an adequate length of time. He was uncertain whether her insight would improve with treatment with psychotropic medications but thought that her response during her admission suggested she might. He also thought that she needed more assertive psychiatric and psychological interventions, otherwise her prospects of returning to nursing were poor. Dr Samuels considered that the litigation Ms Clarke is pursuing is having adverse effects both on her finances and her personal well-being and was detrimental to her prospects of recovery.
5. Dr Samuels' diagnosis is that Ms Clarke has a Mood Disorder with psychotic features and likely paranoid personality features and, as a result, suffers from an impairment within the meaning of the National Law because the illness detrimentally affects her capacity to function in a professional fashion.

Opinion of Dr Dinnen

1. Ms Clarke was referred by her GP to Dr Dinnen in July 2018. From the available material it appears that Ms Clarke saw Dr Dinnen for "counselling", initially on a reasonably regular basis. Following a six-month hiatus, in January 2020 she returned to see Dr Dinnen, following her discharge from Royal North Shore Hospital. Apparently, she last saw Dr Dinnen in August 2020. In these proceedings Ms Clarke tendered a series of letters and medical certificates prepared by Dr Dinnen, the most recent dated 13 January 2020. After the hearing, Ms Clarke filed a certificate prepared by Dr Dinnen dated 4 November 2020, which we discuss below.
2. In a letter dated 16 August 2018 addressed to her GP, Dr Dinnen wrote admiringly of Ms Clarke's "extraordinary level of persistence, determination and ability" in managing her litigation. He wrote that he did not think that she should seek to return to work because she was "so much consumed" by the litigation but that when the litigation was resolved, he anticipated she would be fit to return to work. In a follow up letter to the GP dated 15 October 2018, Dr Dinnen clarified that he did not consider that Ms Clarke's preoccupation with litigation signified a mental illness but that he had meant it was using up her time and energy.
3. In a letter dated 26 February 2019, Dr Dinnen wrote that since July 2018, Ms Clarke had been attending regularly for counselling every month or two for support, discussion and guidance with regard to her various litigated matters arising from her employment. He stated that he found her "intelligent, well-balanced emotionally without any evidence of psychiatric illness". He stated that Ms Clarke is "perfectly well mentally and is fit to resume any part or full-time nursing she desires that is made available to her". Dr Dinnen concluded: "In my view there is no evidence from any time that I have consulted Miss Clarke that she suffers from any form of mental illness or psychiatric or psychological disorder."
4. In a letter to the Council dated 27 May 2019, apparently prepared in response to Dr Samuels' report of 2 April 2019, Dr Dinnen wrote that he took exception to the comment that he may not have been "frank" in his opinion that Ms Clarke did not suffer a mental illness: "I would certainly say if I thought she was paranoid or psychotic or suffering from any other form of psychiatric illness. My statement, after fifty years of consultant practice as a psychiatrist, that I do not consider she has any psychiatric illness is to be taken at face value and is not to be interpreted in this way, as it was by Dr Samuels."
5. On 13 January 2020, Dr Dinnen saw Ms Clarke and apparently assessed her. How that assessment was conducted he did not explain. In a two-sentence medical certificate, he merely stated that he considered her "fully fit to work in her usual occupation". He elaborated somewhat on this opinion in a letter to Ms Clarke's GP of the same day. He stated that he had seen her and "have not considered her to be formally diagnosable with psychiatric disorder". He noted, however, that others had diagnosed her with bipolar disorder and also that she had been admitted as an involuntary patient in November 2019 for approximately 3 weeks. He noted, with apparent approval, that she had ceased taking the medication she had been prescribed as an in-patient and expressed no concerns about her mental health.
6. After the hearing in this appeal, Ms Clarke filed and served a medical certificate prepared by Dr Dinnen dated 4 November 2020, stating: This is to certify that Charmaine had a telephone consultation on 24 August 2020. I consider she is fit to work in her usual occupation.
7. Despite being filed out of time and without leave, we have decided to take this certificate into account.

Impaired Registrants Panel March 2020 inquiry

1. In February 2020, the Council convened an Impaired Registrants Panel (Ms Deborah Armitage and Dr Karen Arnold) to consider a request made by Ms Clarke to review the May 2018 condition. The Panel conducted a hearing on 24 March 2020. Ms Clarke and a support person attended.
2. In a report dated 1 April 2020, the Panel noted that in some respects Ms Clarke's mental health appeared to be better than when they last saw her in June 2019. In particular, the Panel noted that Ms Clarke appeared to be "less driven, less intense, less thought-disordered" and was better able cope with the process. Nevertheless, the Panel's impression was that Ms Clarke remained "preoccupied with certain topics", especially the way the Council and others had treated her. In the Panel's view, Ms Clarke described events in a "generally paranoid, persecutory" fashion. They thought she remained thought-disordered and disorganised in her responses to questions. Her explanations were "difficult to follow" and did not address the issues. They found that Ms Clarke lacked insight into the fact that she has a mental illness and requires treatment if she is to recover and return to nursing.
3. In addition to the medical opinions referred to above, the Panel had before it two discharge summaries from the Royal North Shore Hospital. The summary dated 16 December 2019 noted that, on admission, Ms Clarke was observed "to voice persecutory ideations about home intrusion, cameras on the ceiling and was concerned for her safety." She was found to be thought-disordered. It was noted that she had suffered significant psychological stressors due to workplace problems and subsequent litigation. She was diagnosed with a first episode of psychosis and treated with Aripiprazole (an anti-psychotic medication) before being discharged to the care of her GP and Dr Dinnen. On 21 December 2019, she re-presented to Royal North Shore Hospital anxious about side-effects of Aripiprazole but was discharged after a short consultation with a psychiatrist who sought to reassure her that swelling of the lips was unlikely to have been caused by the medication.
4. The Panel was not able to reconcile the opinion of Dr Dinnen with Dr Samuels' comprehensive and rigorous report, nor with its own independent observations of Ms Clarke's demeanour during its inquiry. The Panel's impressions of Ms Clarke's presentation at the hearing were similar to those of Dr Samuels. Those impressions, when taken together with the careful and very detailed account of his assessment given by Dr Samuels, are inherently compelling evidence and their persuasiveness is bolstered when compared with the bare opinion of Dr Dinnen.

Submissions

1. In written submissions, Ms Clarke alleged unfairness, misconduct, bias and other forms of discrimination on the part of the Council, resulting in her emotional distress, panic attacks, fear, apprehension, loss of livelihood and income and general psychological harm. She submitted that the "intense grief" that "engulfed" her was directly caused by the Council refusing to permit her to return to work as a nurse. She stated that although at no time was she "subject of psychiatric deficits", during the period 2015 to 2020 she was suffering "severe helplessness", a condition she attributes to the HCCC, the Council, her union, the Nurses and Midwives Association (the nurses' trade union), and AHPRA. She contended that she had been taken advantage of by the Council and "a third party" (not identified) who attempted "to literally bury" her.
2. In oral submissions, Ms Clarke concedes that when she was dismissed from the Royal Hospital for Women, she was under a great deal of "emotional distress" and that this and the subsequent actions taken by the Council to restrict her right to practise, triggered "reactive stress disorder and acute panic attacks and anxiety". She claims that she is no longer in fear. She claims that she was dismissed based on false claims made by colleagues. She asserts that there is no proper basis for the allegations that her work was sub-standard or that she compromised the safety of patients.
3. In addition to the reports and letters prepared by Dr Dinnen outlined above, in support of her claim that she is fit to work , Ms Clarke pointed to, among other things: 1. an affidavit sworn 10 April 2019 filed in proceedings in the Federal Circuit Court of Australia, in which Ms Clarke stated that she is "of a sound mind"; 2. a report dated 24 November 2014, prepared by psychiatrist, Dr Samson Roberts, following a medico-legal assessment. Commenting on the symptoms reported by Ms Clarke - "distress, a depressed mood and anxiety" - Dr Roberts stated in the "circumstances described by [Ms Clarke], it is expected that a normal healthy person would experience serious emotional effects at the prospect that their employment, career and indeed professional registration was threatened". Dr Roberts concluded that Ms Clarke's emotional response did not constitute a "psychiatric illness"; 3. a medical certificate issued in May 2017 by GP, Dr Belinda Sherry, stating that she is unfit for work on account of a shoulder condition; 4. a reference dated 18 September 2015 provided by the (then) acting Director of Nursing, Bankstown Day Surgery, Mr Garry Cadwallender, in which he described Ms Clarke as an "amazing recruit" and a "highly educated competent nurse and patient care is her highest priority"; 5. a character reference dated 18 February 2018 provided by two members of Ms Clarke's local church who describe Ms Clarke as "a warm and outgoing person … [who] is both sensitive and thoughtful". They state that in the two years they have known Ms Clarke "there have been no concerns about the stability of her mental health".
4. The Council submitted, in summary, that the weight of evidence supported the opinions of Dr Samuels and the Impaired Registrants Panel and the Council's decision not to alter the current condition.

Conclusions

1. The central question to be determined is whether Ms Clarke currently has an impairment. Central to that question is the reliability of the opinions expressed by Dr Dinnen.
2. In the series of letters and medical certificates referred to above, Dr Dinnen stated that Ms Clarke is not mentally ill but did not describe or explain her mental state by reference to anything except Ms Clarke's unusually "consuming" trail of litigation. Although he was given Dr Samuels' report of 2 April 2019, he did not address the fundamental issue addressed in that report, namely Dr Samuels' diagnosis of mental illness and opinion that Ms Clarke lacked insight, required assertive treatment and had an impairment, except to deny the premise on which that opinion rested. He provided little insight into Ms Clarke's history except to relate it to her struggles in South Africa (under apartheid as a person of mixed race) and in Australia following her dismissal by the Royal Hospital for Women in 2015. Dr Dinnen's letters convey a great deal of creditable sympathy for Ms Clarke but very little analysis of her mental state and her capacity to work as a registered nurse without endangering others. Presumably because he does not accept that Ms Clarke is either mentally ill or impaired, Dr Dinnen's letters provide no plan for Ms Clarke's recovery beyond the occasional counselling session. His letter dated 13 January 2020, the most recent document prepared by Dr Dinnen apart from the two-line medical certificate issued in November 2020, does not engage with Ms Clarke's presenting symptoms on admission to hospital as an involuntary patient in November 2019, nor seek to resolve the apparent conflict between his opinion and the opinions of those practitioners responsible for her "incarceration". He did not directly challenge the observations made by the treating team at Royal North Shore Hospital but the tone of his letter of 13 January 2020 seems sceptical and even, perhaps, a little contemptuous. This is suggested by his contention that, despite his advice to the psychiatric registrar that Ms Clarke was not mentally ill, she had been "incarcerated" for nearly three weeks. Dr Dinnen's most recent opinion about Ms Clarke's fitness for work and mental health was given in November 2020 following a phone consultation held three months earlier. It suffers from the same problem as the certificate issued in January 2020 and accompanying report, in that it does not set out the basis for that opinion.
3. The reason for the conflicting opinions expressed by Drs Dinnen and Samuels may be the result of Ms Clarke presenting differently on the occasions each assessed her. Alternatively, it may be the result of Dr Dinnen being largely reliant on Ms Clarke's self-report and not having the benefit of the extensive material, including contemporaneous material from multiple sources, which was available to Dr Samuels.
4. The Panel's most recent report is careful, fair and even sympathetic to Ms Clarke. Dr Samuels' assessment report was rigorous, well-documented, cautious and provided a strong basis and reasoning for his diagnosis and opinion. On the other hand, Dr Dinnen's correspondence provided little reason for the Panel or the Council to disturb the previous findings and the condition which Ms Clarke seeks to have lifted. Those impressions, when taken together with the careful and very detailed account of his assessment given by Dr Samuels, are compelling evidence and their persuasiveness is bolstered when compared with the bare opinion of Dr Dinnen. In reaching that conclusion we note that Dr Dinnen is not alone in expressing the opinion that Ms Clarke does not have a mental condition which impairs her mental ability to work as a registered nurse. For example, in a medico-legal report prepared for the purpose of a workers compensation claim, Dr Roberts expressed the opinion that Ms Clarke's reported symptoms - distress, depressed mood and anxiety - were not representative of a psychiatric illness. However, given that seven years have passed since that report was prepared, and the evidence of ongoing problems, as evidenced by Dr Samuels' observation and Ms Clarke's recent hospital admission, that report provides little assistance in determining whether Ms Clarke is fit to work as a nurse in 2021.
5. In our view, the weight of evidence suggests that Ms Clarke currently has an impairment. Although there is no diagnosis from her time at the Royal Hospital for Women, her history suggests that she may have been suffering from a Mood Disorder or some other form of mental illness before her dismissal. Her fixation on litigation, which to date has been entirely unsuccessful, is troubling. Her admission as an involuntary patient in late 2019 with a diagnosis of a psychotic illness and Dr Samuels' diagnosis all point in one direction. In 2017, she failed to comply with conditions that she undergo a health assessment and have her performance assessed. Shortly after being discharged from inpatient care in late 2019, she stopped taking the medication that appeared to improve her mental state. Even her notice of appeal is difficult to understand, is disorganised and expresses persecutory ideas. Her refusal to consider the possibility that she is ill and needs treatment demonstrates a lack of insight.
6. A nurse who is thought-disordered or may become so without warning, or who suffers from a serious Mood Disorder, cannot be given responsibility for caring for patients in the capacity of a registered nurse. It is unsafe for the patient and unfair for the nurse to bear such responsibility. The inescapable conclusion is that Ms Clarke currently has an impairment within the meaning of the National Law.
7. For Ms Clarke, who is clearly very determined to resume her career as a nurse, this is very unfortunate. Dr Samuels' report suggests both that Ms Clarke needs treatment, and that assertive treatment may result in her recovery. If she does not receive that treatment, her prospects of recovery and a return to nursing do not appear bright.
8. For all these reasons, the Council's decision must be confirmed.

Orders 1. Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) the time to lodge the appeal is extended to 20 July 2020. 2. The decision made by the Nursing and Midwifery Council of New South Wales to refuse to remove the condition on Ms Clarke's registration, imposed in May 2018, that she not work as a nurse until that condition is removed by the Council, is confirmed.

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: 25 March 2021