OCCUPATIONS - reinstatement application - whether Applicant has discharged onus of proof
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Catchwords
OCCUPATIONS - reinstatement application - whether Applicant has discharged onus of proof
Judgment (23 paragraphs)
[1]
The Applicant accepted these conditions. The Applicant further indicated that he did not wish to work as a nurse for mental health nor work night shifts. He indicated that he wished to work in aged care.
[2]
The Applicant has the onus of proof in these proceedings. The onus is a heavy one. The Applicant must demonstrate to the Tribunal that, having engaged in the conduct in issue which was serious, he can now be trusted to return to practise in a way that presents no risk to the safety of the public and their confidence in the profession.
The Tribunal is to exercise the power to reinstate with great caution, only on solid and substantial grounds, and is to approach its task with a "healthy scepticism". The paramount consideration is the protection of the public safety.
The Applicant must show that he has the required level of competence and holds to the required ethical standards. Clear proof is also required that he has gained insight and that he will not behave in future in a way that causes risk to patients or may bring the profession into disrepute.
The question before the Tribunal is whether cancellation of the Applicant's registration remains appropriate at the time of review, as opposed to the time of the 2024 Review or earlier.
The Applicant submitted that;
[3]
(1) he was a fit and proper person to practise and be registered as a nurse.
(2) he was someone who had gained insight sufficient to overcome any defect in his conduct which led to his de-registration.
(3) he would not otherwise be a risk to public safety if his registration was renewed.
[4]
The Applicant's evidence firstly included evidence of the training he had undertaken over the course of the period of his deregistration with the intention of keeping up to date in terms of his professional development. They included further courses undertaken after the time of the 2024 Review. These courses undertaken after that time were 11 in number and took place over 18 hours in total. They included:
[5]
(1) Nursing CPD documentation in nursing and midwifery (1 hour).
(2) A course on professional development and industry standards (1 hour).
(3) Suicide prevention training - Aged care Staff/Worker (1 hour).
(4) Remembering lives lost to suicide (6 hours).
[6]
The substantial training that the Applicant has undertaken to keep up his skills in nursing and to work towards addressing his past failings are relevant to the determination of whether he has the competence to resume work in nursing. That training included courses undertaken after the 2024 Review on suicide and maintaining proper documentation.
Records concerning the Applicant's supervision in and after 2017 were not in evidence in the 2024 Review. These records were in evidence in the present proceedings.
A report dated 18 May 2018, said that the Applicant needed more experience in reporting notifiable conduct of other health workers. A report dated 18 July 2018 referred to a need for "more experience using an ethical framework when making decisions". A report dated 18 August 2018 said that the Applicant "needed more confidence to seek review". Later reports do not raise concerns of this kind. The last report in evidence dated 19 August 2020 raised no issues of concern concerning the Applicant's competence or performance.
Specific questions arise as to whether or not the Applicant will maintain the standards required for documentation in the carrying out of the duties of a nurse. The 2024 Review found that the Applicant's documentation practice was "inattentive and haphazardly routine". No issues of this kind were identified in the supervision reports in 2019 or 2020.
The Respondent said that there were certain errors in the Applicant's curriculum vitae before the Tribunal and raised questions as to whether this was evidence of the Applicant's inability to comply with the required standards of record keeping. The Applicant, however, said that these errors were a result of inadvertent errors and omissions, as opposed to any deliberate attempts to mislead or otherwise conduct himself dishonestly.
We do not think that the errors in the Applicant's curriculum vitae in evidence themselves raise sufficient doubt about the ability of the Applicant to maintain accurate records in the discharge of his duties as a nurse. They involve minor errors as to the dates of employment and are not material.
His supervisory reports from 2019 and 2020 raised no issues as to the standards of documentation of the Applicant. Furthermore, the Applicant has undertaken a course, since the 2024 Review, on proper documentation.
Having considered the evidence set out in the supervisory reports and the evidence of the training that the Applicant has undertaken, including his training after the 2024 Review, we are satisfied, on the balance of probabilities, that the Applicant shows that he has the required competence to practise as a nurse, including an understanding of the required standards for documentation.
The Tribunal must be satisfied that the Applicant will work in an ethical manner. Both his failure to make half-hourly observations of Patient A as required and his making of false records concerning his observations failed the test of working in an ethical manner. That failing was serious. An early supervision report from 18 July 2019 referred to the need for "more experience using an ethical framework when making decisions".
There was evidence of a "bad culture" at the unit in which the events described above concerning Patient A had occurred. That culture involved practices of not observing patients at the intervals required and poor record keeping practices. The Applicant accepted that he had been part of that culture and did not have the "courage" to challenge the culture. The Applicant in his evidence said that he understood his ethical failings in not speaking up. He accepted that he should have advocated for Patient A and stated that he would "stand up" and report any unethical nursing practices in the future and would take such matters "very seriously".
The Applicant has undertaken training concerning relevant matters, including compliance with policies and documentation requirements as set out at [54] above. Among the things the Applicant had done was to attend an event at the Sydney Opera House on 6 September 2024 through his employer, organised as a memorial service for persons who have committed suicide. He spoke emotionally of the importance and significance of attending this event in order to help him better understand the impact of his actions and the importance of the role of a nurse to attempt to help and to care for patient's properly.
Later supervisory reports from 2019 and 2020 do not raise concerns about ethical matters concerning the Applicant. To the extent that his ethical failings involved a failure to stand up where required, there is evidence of greater confidence on the part of the Applicant in his interactions with people. During the COVID-19 Pandemic, he was described as being "diligent in making sure that the relatives visiting the facility are compliant in using PPE". He received recognition as "employee of the month" in July 2020.
The Applicant under cross-examination at the hearing showed remorse for the consequences of his failures. We are satisfied from what he said and his demeanour that his remorse was genuine.
We accept that the Applicant understands his ethical failings in 2017 and has shown that he is able to work as a nurse within the ethical framework required of nurses. In so finding, we rely on the supervisory reports in evidence for 2019 and 2020 and the evidence of the training the Applicant has undertaken.
The 2024 Review found that the Applicant did not understand the role of a nurse practising in mental health, in believing that the allocated nurse was "just for the documentation". He accepted he failed his duties in not making the half hourly checks as required and preparation of the required documents recording his observations. The Applicant's acceptance of his failings without qualification is a matter going to determination of whether or not he has developed adequate insight.
We are satisfied that the Applicant in understanding the seriousness of his failings, shows necessary insight. His acceptance of the conditions proposed by the Respondent without qualification and his willingness to accept supervision are also matters that assist the Tribunal in concluding that the Applicant has the required degree of maturity and insight for him to resume work as a nurse.
There was evidence of stressors that potentially affected the Applicant's ability to resume work as a nurse. His evidence showed that he had an understanding of these stressors and their impact, in circumstances where he had not practised as a nurse since 2021.
The paramount consideration in determining whether or not an order for reinstatement should be made is the protection of the health and safety of the public. It is for the Applicant to show that he 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. We are of the opinion that the Applicant has shown, on the balance of probabilities, the matters of fact necessary to allow his reinstatement. They include the matters set out above as to his competence, understanding of the ethics applicable to a nurse and insight gained.
The evidence set out in his supervision reports were not in evidence at the 2024 Review. Further, since the time of the 2024 Review, the Applicant has undertaken substantial further training as described at [54] above. Additionally, conditions of practice were also not placed before the Tribunal in the 2024 Review. These are matters that are before the Tribunal in these proceedings and assist the Tribunal in its determination of the matter.
The Respondent said that reformation of character of the kind required to allow re-instatement "can doubtless occur, but their occurrence is not the usual, but the exceptional thing". The Respondent also said that one cannot assume that change has occurred merely because some years have gone by and it is not proved that anything of a discernible kind has occurred.
We accept the Respondent's general submission. However, we do not rely on the passage of time to come to the conclusions we have reached. The determination of this matter turns on the evidence before the Tribunal, including the supervisory reports between 2017 and 2020, the training undertaken by the Applicant and his oral evidence.
The Respondent says that it neither supports nor opposes the Applicant's application for reinstatement as a nurse. The Respondent, has however, proposed conditions, which it submitted should be imposed if the Tribunal made an order for reinstatement.
We accept that the conditions the Respondent proposed are appropriate to manage the Applicant's ability to handle stress and will assist the Applicant's return to work as a nurse, including the conditions going to the level of supervision to which he will be subject and preventing him from working in sole practice and on night shifts.
The evidence before the Tribunal included a letter from the director of the aged care facility at which the Applicant had worked in 2017. The director said that she was aware of the Applicant's conduct and breach of mental health observation policy and the consequences. She expressed her view that the Applicant had "deep insight" into the seriousness of his past actions and regret. However, the director was not available to give evidence. We take note of her evidence but in the absence of her presence at the hearing to give oral evidence and be cross-examined, we do not place significant weight on her evidence.
There was other evidence as to the Applicant's skills and character but none of the witnesses gave oral evidence at the hearing. In these circumstances, we place limited weight on this evidence.
For the reasons set out above, including at [62], [68] and [70], the reinstatement order sought by the Applicant should be made, subject to the conditions proposed by the Respondent as set out in Annexure A.
The Respondent sought an order that the Applicant pay its costs.
In Ameisen v Medical Council of New South Wales[2015] NSWCATOD 49, the Tribunal ordered the reinstatement of the applicant practitioner. The Tribunal considered it a misnomer to describe an applicant who is reinstated following an inquiry to review a "relevant order" as having been "successful". Reasoning that this characterisation "misunderstands the nature of the Respondent's involvement in the proceedings", the Tribunal pointed out at [90] that reinstatement proceedings "arise because of the prior misconduct of the applicant [practitioner], and can be seen as ancillary [to the original proceedings which resulted in the cancellation of the practitioner's registration]".
A similar approach was taken in Ristevski v Medical Council of NSW[2016] NSWCATOD 18, where the Tribunal concluded, at [87]:
[7]
"Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused".
[8]
(1) A reinstatement order in respect of the Applicant.
(2) An order that the conditions set out in Annexure A apply from the point of registration.
(3) An order that the Applicant is to pay the costs of the Health Care Complaints Commission in relation to these proceedings, as agreed or assessed.
[9]
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.
[10]
AnNEXURE A - THE RESPONDENT's Proposed CONDITIONS
[11]
(4) The practitioner is to practice under indirect supervision in accordance with the Nursing and Midwifery Council of New South Wales ("the Council") Regulatory Supervision Policy (as varied from time to time) and as subsequently determined by the Council and must do the following in writing:
[12]
(a) nominate a supervisor for approval by the Council within 14 days of commencing work or as specified by the Council.
(b) authorise the approved supervisor to provide written reports to the Council at quarterly intervals, or as specified by the Council.
(c) authorise the Council to provide nominated and approved supervisors with a copy of the decision which imposed this condition.
[13]
(5) The practitioner must authorise the Council to notify current and future persons or organisations at any places where they work as a health practitioner in Australia of any issues arising in relation to compliance with these conditions. The practitioner must only be employed as a health practitioner in circumstances 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.
[14]
(6) The practitioner must not practice as the sole practitioner of any shift, ward, unit or facility.
[15]
(7) The practitioner must not practice as the practitioner in charge of any shift, ward, unit or facility.
[16]
(8) The practitioner must not have supervisory responsibility for any other health practitioner or student whether registered or not.
[17]
(9) The practitioner must not perform night duty (between 11:00pm and 6:00am) at any facility.
[18]
(10) The practitioner must not undertake agency nursing.
[19]
(11) The Council is the appropriate review body to review these conditions.
[20]
(12) Sections 125 to 127A of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia.
[21]
(13) The practitioner is responsible for the costs associated with complying with these conditions unless otherwise specified.
[22]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
[23]
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.
Parties
Applicant/Plaintiff:
Dudhela
Respondent/Defendant:
Health Care Complaints Commission [2025] NSWCATOD 81
Cases Cited (10)
This is an application by the Applicant for review of an order made by the Tribunal on 11 May 2021 cancelling his registration as a nurse. He seeks a reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) ("National Law").
The Applicant completed a Bachelor of Nursing on 21 December 2011. He was registered as a nurse on 11 April 2012.
From January 2013 to June 2016, he worked as a registered nurse (mental health) at a hospital in the Sydney area. In July 2016, he began working as a registered nurse (mental health) at another hospital.
During 2016, the Applicant completed postgraduate studies, obtaining qualifications in clinical practice and mental health care.
On 26 May 2017, the Applicant commenced a night shift in an Acute Mental Health Unit. He was allocated to 8 patients. He was specifically allocated to Patient A. Patient A had a history of suicidal ideation.
At about 11:00 PM on 26 May 2017, he attended an observation round. He opened Patient A's door but did not go into the room. He shone a torch into the room. He said that Patient A moved and was half asleep.
Patient A required half-hourly checks. Between about 11:00 PM on 26 May 2017 and about 7:30 AM on 27 May 2017, the Applicant failed to conduct sufficient observation of Patient A.
The Applicant made records indicating that he had sighted Patient A after 11:00 PM but he had not.
Patient A passed away during that period of insufficient observation due to self-harm.
On 30 August 2017, the Applicant's employment was terminated and his name placed on the NSW Health Service Check Register.
The Applicant started working in a new position at a nursing home in late 2017.
On 11 May 2021, the Tribunal reviewed the conduct of the Applicant that occurred in May 2017. It found that complaints of unsatisfactory professional conduct against the Applicant were made out and that his conduct amounted to professional misconduct.
The Tribunal cancelled the Applicant's registration and made an order that he could not apply for a review of the cancellation order for a period of 18 months from the date of its orders.
After his deregistration as a nurse, the Applicant commenced work at a training college. He has worked as a trainer and teacher following his deregistration. As at the time of the hearing, the Applicant was employed as a regional manager in a disability service provider company. He also volunteers to provide support services for vulnerable and at needs people within the community.
The Applicant applied for review of the order made by the Tribunal on 11 May 2021 cancelling his registration as a nurse. On 22 February 2024, the Tribunal made orders dismissing his application ([2024] NSWCATOD 35) ("2024 Review").
The Applicant provided evidence of courses he had undertaken to keep up his skills in nursing since his deregistration. In addition, following the 2024 Review, the Applicant had undertaken further courses including a course in suicide and a course that dealt with accuracy in clinical note taking and record keeping, compliance with policies and ensuring appropriate conduct and safeguards for patient care. He had also undertaken a course in the general requirements for nursing, including a course taken in November 2024.
The Applicant commenced further proceedings applying for reinstatement of his registration as a nurse. This was his second application for review. This is the application currently before the Tribunal.
The Health Care Complaints Commission (Respondent) appeared as a contradictor in these proceedings. The Respondent neither opposed nor consented to the Applicant's application.
The Applicant gave oral evidence at the hearing of these proceedings and was cross-examined by the Respondent's legal representative. No other witnesses gave oral evidence.
The review is not a review of the original decision to cancel the practitioner's registration but is a review to determine the appropriateness of the cancellation order as at the date of the hearing of the application. Brereton JA, with whom Bell P (as His Honour then was) agreed, stated in Qasim v Medical Council of New South Wales[2021] NSWCA 173, at [17], that:
The approach to be taken in considering an application for a reinstatement order under the National Law has been set out in numerous decisions of the Tribunal including recently in Mayr v Health Care Complaints Commission[2023] NSWCATOD 148, at [9]-[12]. The Tribunal observed in Mayr, in Vito Zepinic v Health Care Complaints Commission[2020] NSWSC 13 that Adams J said that the general principles to be followed had been correctly identified by the Tribunal in Zepinic v Health Care Complaints Commission (No 2)[2018] NSWCATOD 166, at [78. The Tribunal said:
"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:
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. ; at .
In Mooney v Medical Council of NSW[2024] NSWCATOD 24, the Tribunal explained, at [18]:
"Several formulations have been put forward as ways of predicting how a person will behave in future. Have they gained insight? Have they proved that they have overcome a defect in character? Are they now a 'fit and proper person' to be registered? Essentially the question is whether Mr Mooney has proved that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and 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]".
In Donnelly v Health Care Complaints Commission[2014] NSWCATOD 155, at [13] the Tribunal said:
"We must approach the matter of reinstatement with a healthy scepticism - see Ex parte Tziniolis, Re the Medical Practitioner Act (1966) 84 WN (Pt 2) (NSW) 275 at 286 (Walsh J). As was noted by the High Court a long time ago in Re Lenehan[1948] HCA 45 at [27] (Latham CJ, Dixon and Williams JJ) when a lawyer applies for reinstatement to the relevant roll of practitioners, they are in a more disadvantageous position than an original applicant because they must displace the decision as to probable permanent unfitness which was the basis of their removal. While they may be restored to the roll after they have been struck off, the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds. This approach has been adopted in New South Wales and is appropriate to health practitioners seeking to be reregistered as practitioners - see Dawson v The Law Society of New South Wales[1989] NSWCA 58 at [12] (Mahoney JA).. ..."
The standard of proof is the civil standard of proof, that is, on the balance of probabilities to the level of satisfaction described by the High Court in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336. Given that the National Law is directed at the protection of the public, the Tribunal must be satisfied to a robust level (Mnyandu v Health Care Complaints Commission[2015] NSWCATOD 43 at [35] and the cases referred to there).
(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];
In Ng v Health Care Complaints Commission[2018] NSWCATOD 105 the Tribunal stated:
In Re Mansoor Haider Zaidi[2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that:
[A]n applicant for reinstatement ... is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness.
In that case, the Medical Tribunal also stated at [42]:
[T]he ultimate issue ... is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession".