Haber v Health Care Complaints Commission

Jurisdiction - Powers on review

1. The present application falls to be considered pursuant to the provisions of Part 8 Division 8 of the Health Practitioner Regulation National Law NSW (National Law). This Tribunal is the appropriate review body (as no other body was provided for in the original 2002 decision (s 163)).
2. The orders made by the Nurses Tribunal in 2002 were made under the now repealed Nurse and Midwives Act 1991. Although the reasons for decision do not explicitly state the provisions under which the various orders were made, it appears from the material that the period of suspension was imposed under s 64(1)(g) along with conditions pursuant to s 64(1)(c) of that Act.
3. However, the available material makes it appear likely the applicant was not registered at that time, and therefore the Tribunal may not have had the power to suspend her. Even if that were the case, the Commission submits that if part of a decision is invalid, but appears to be a power under which other parts of the decision could stand, the entire decision is not invalid: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 335. Therefore, the Commission submits that the 2002 conditions, which could have been imposed under s 64(2) of the Nurse and Midwives Act 1991, which deals with unregistered practitioners, could be taken to be validly in place.
4. Accordingly, the conditions are "a relevant order" within the meaning of s163A(4) National Law which enlivens the right of review (s 163A(1)).
5. The conditions that were imposed by the Nurses Tribunal in 2002 continue in force as if made under the National Law as a consequence of the transitional provision found in Part 12 Division 13 of the National Law (s 292).
6. The review to be undertaken by the Tribunal is to determine the appropriateness, at the time of the review, of the order concerned (s 163C(1)). The review is not to review the decision to make the order, or any findings made in connection with the making of that decision (s 163C(2)).

Principles to be applied

1. 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];

Consideration

1. The applicant was first enrolled as a nurse in Australia in 1982, and subsequently became registered on 23 December 1987. In or about 2002, five complaints were made about her, including complaints of professional misconduct, alternatively unsatisfactory professional conduct; being convicted of a total of 60 offences under the Drug Misuse and Trafficking Act 1985 relating to altering of prescriptions and obtaining a prohibited drug by false representation; impairment, and not being of good character.
2. The Tribunal found that the complaints of impairment, unsatisfactory professional conduct and her conviction proved. The Tribunal did not find lack of good character established. Given the extremity of the applicant's actions and the complexity of her impairment, the Tribunal suspended her for a period of two years.
3. The applicant says that the events that led her to the proceedings in 2002 were a complete aberration of her character. She had suffered from migraines and became addicted to Endone. Circumstances escalated. Her then husband was an orthopaedic surgeon and she started forging his prescriptions to obtain medication. Notwithstanding her arrest, her behaviour continued. She says that in fact she had stopped working as a nurse in the period 1992 to 2012, when she was a stay at home mother to four children. In 2012, she made enquiries about returning to work, but was told that, because of the passing of time, she would not be able to return to work as a nurse. She started working as an Assistant in Nursing at the Lawrence Hargrave Hospital, and while working on a casual basis enrolled in the Diploma of Nursing at Shellharbour TAFE to become an Endorsed Enrolled Nurse (EEN).
4. She did not realise that the conditions on her practice prevented her from practising. She completed the course and was granted provisional registration, but then AHPRA repealed her registration pending review by the Council.
5. The applicant says that since 2002 she has had no further problems with medication abuse, although she remains on a maintenance dose of Methadone under the supervision of her doctor, Dr Baker. Dr Baker says that her condition is stable, there are no indications of drug abuse and she continues to be treated with Methadone at a currently daily rate of 75 mg. Dr Baker also states that the applicant expresses a strong desire to return to nursing. He considers her to be ideally suited to working as an enrolled nurse with suitable conditions.
6. As to conditions, the applicant states in her letter of 2 February 2017 that if the Tribunal does decide to impose conditions she would comply with conditions or restrictions this Tribunal deems necessary. She notes however that as an EEN she does not ever hold the keys to the drug cupboard and always works under the supervision of a registered nurse. The applicant has explained her history to the Lawrence Hargrave Private Hospital. We note that the Chief Executive Officer of Lawrence Hargrave Private Hospital, Ms Robyn Ashe, has provided a very positive work reference for the applicant. Ms Ashe has no hesitation in recommending that the applicant be permitted to register and start practising as an EEN. Ms Ashe would recommend the applicant to any health care facility.
7. A similarly positive appraisal is given by Ms Caroline Armitage, the Senior Nurse Manager and Infection Control Co-Ordinator at the Hospital. Ms Armitage was required for cross-examination by the Commission. Her positive assessment of the applicant was confirmed, and she said that she would reemploy the applicant without hesitation. Ms Armitage continued to hold this view notwithstanding that the applicant had not told her that she was participating in a Methadone maintenance program, or had not informed her of the extent of her criminal convictions. To use her words, she was "not one bit" concerned about these matters and they would not have affected her decision to offer the employment in the past or in the future. In summary, Ms Armitage said that the applicant had been trustworthy and honest in her employment.
8. The Health Care Complaints Commission asked that the applicant undertake a psychiatric examination. This was conducted by Dr Bruce Westmore, Forensic Psychiatrist, on 6 December 2017. He considered that the applicant suffers from a Substance Use Disorder, being prescription medication concurrently controlled by regularly prescribed Methadone. While there was no clear evidence to support the presence of a Personality Disorder, he considered that some personality vulnerabilities are likely. He stated that there was no evidence indicating that the applicant suffers from any depressive illness, a psychotic illness, an organic illness or any type of significant or sustained personality disorder.
9. In relation to practising nursing, Dr Westmore states: . . . [P]rovided that measures can be taken to continue to manage the Substance Use Disorder and provided there are sufficiently supervisions and safe guards in place, then Ms Haber is probably currently fit from a psychiatric perspective, to practice the profession of nursing. . . . In cases such as this one, there is always a degree of risk and that is probably the case with many clinicians who are currently working. The critical issue is, can the risk be managed.
10. Dr Westmore concluded that it was unlikely that Ms Haber would ever be able to stop using prescribed Methadone. However, having regard to the applicant's:

• recent history;
• positive collateral histories;
• essentially normal mental state; and
• longstanding abstinence from misusing other prescribed medication, he considers that the condition preventing Ms Haber from as enrolled nurse while she continues to use Methadone should be lifted.

1. Ms Haber relied on three short reports of her long term treating general practitioner, Dr Baker. In summary, Dr Baker says that the applicant is ideally suited to working as an enrolled nurse with suitable conditions. Dr Baker was cross-examined by Ms Neal and asked questions by the Tribunal. Far from being concerned that participation in a Methadone treatment program would or should prevent Ms Haber from working as a nurse, Dr Baker was positively satisfied that it was Methadone that allowed her to participate in the workforce. His view was that Methadone was a "good form of protection", and Methadone maintenance helps people like the applicant return to work. He considered that it was unrealistic to expect the applicant to cease taking Methadone when she had been prescribed a moderate dose for over 20 years, and that it was reasonable to anticipate that the applicant would remain on Methadone indefinitely.

Consideration

1. At the beginning of the hearing, the Commission had a neutral position to the applicant's application. However, by the end of the hearing, after testing her insight and having heard from the professional and other witnesses, the Commission moved to a position whereby it consented to the application.
2. There were a number of issues which concerned us. The first, naturally, was whether or not Ms Haber was telling the truth, and what was her level of insight. By and large she impressed as a believable witness. However, she did not accurately complete her application for registration in 2015, in that, when asked, she did not state that she had a criminal conviction or that her registration had been previously suspended. This might be thought to demonstrate a lack of insight. Nevertheless, she gave a detailed explanation in a letter to the Australian Health Professional Regulation Agency dated 10 February 2016. We note that she says that her sense of shame and remorse, and a desire to rebuild her life, prompted her to not complete the application for registration accurately.
3. Another matter was that, although we accept that Ms Haber informed Lawrence Hargrave about her convictions and their nature, she had not told her the number of convictions or that, at the time she sought employment, she was participating in a Methadone maintenance program, and had participated in that program for many years.
4. Be that as it may, Ms Haber was critical of herself, and gave a number of responses which were not in her interest to do so. We accept her genuineness in wanting to re-engage in nursing.

Conclusion

1. It has been over 15 years since the applicant was suspended from practising her profession. Since that time she has successfully retrained as an enrolled nurse, and worked successfully with a private hospital. Both Dr Westmore (qualified by the Commission) and Dr Baker consider that she should be allowed to practise subject to conditions, and the Commission itself does not oppose her doing so. In those circumstances, we propose to remove the present conditions on the applicant's registration, and to impose conditions substantially in the form proposed by the Commission. The only conditions we have not imposed are the conditions requiring that the applicant to attend for review with a psychologist a psychiatrist. We do not consider that the protection of the public requires the imposition of those conditions, particularly given her longstanding and ongoing care by Dr Baker.

Costs

1. The Commission seeks an order that the applicant pay its costs. Alternatively, it seeks what it describes as "a limited costs order" relating to the Commission's disbursements associated with the evidence of Dr Westmore. This is an amount of $6,000.
2. It is well-established that this is a costs jurisdiction, and the ordinary rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342: Qasim v Health Care Complaints Commission [2015] NSWCA 282; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182.
3. The Commission's submits that, generally, the presumption that the usual rule applies will only be displaced if there has been "some sort of" disentitling conduct on the part of the successful party. The Commission claims that the applicant's failure to adduce expert evidence should be considered as disentitling conduct which would justify a costs order against her in relation to the Commission's costs associated with Dr Westmore.
4. We reject that submission. As was noted by McHugh J in a minority judgment in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97-98: "Misconduct" in this context means misconduct relating to the litigation, or in circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.
5. We do not regard the applicant as having conducted herself at the hearing in any way that could be regarded as constituting disentitling conduct.
6. The Commission submits that the following matters favour an award of costs in its favour: 1. In its role as a neutral contradictor, the Commission assisted the Tribunal in testing the applicant's evidence, in particular by extensively cross-examining the applicant; 2. By arranging for Dr Westmore to provide a comprehensive medico-legal report, and additional oral evidence at the hearing. The Commission submits that the Tribunal was greatly assisted by Dr Westmore's evidence.
7. The Commission also submits that it has acted properly and responsibly in the public interest in adopting its position in relation to the application for review. It is further submitted that, regardless of the outcome of the application, the Tribunal ought to make an order that the applicant pay the Commission's costs. The Commission submits that this position is supported by cases such as Holbrook v Health Care Complaints Commission [2014] NSWCATOD 86; Shah v Health Care Complaints Commission [2014] NSWCATOD 94; Reimers v Medical Council of NSW [2015] NSWCATOD 38; Ameisen v Medical Council of NSW [2015] NSWCATOD 49; Ristevski v Medical Council of NSW [2016] NSWCATOD 18.
8. Holbook, Shah and Reimers do not assist the Commission. In each of those decisions the applicant was unsuccessful.
9. We note that in Ristevski the Tribunal said that the power to award costs was discretionary, and that whilst the Tribunal had been taken to cases where no order for costs had been made, the Tribunal found that each of those cases had "exceptional features" and therefore went on to make the costs order in favour of the Medical Council respondent. Those cases were Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43, Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 and Roberts v Medical Council of New South Wales [2015] NSWCATOD 35.
10. We do not accept that Mnyandu involved exceptional circumstances. The Tribunal's conclusion (at [145]) was that: This Tribunal prefers to not rest on a particular rule with respect to costs in review applications, which are something of an anomaly. That is, the Tribunal does not decide costs on the basis of the compensatory principle, whereby a successful party would be entitled to have their costs paid by the unsuccessful party. Nor does the Tribunal find useful any purported rule that because the applicant seeks the review it is likely to be responsible for the costs of both parties. Further, we decline to decide the matter on the basis that the volunteer contradictor [Commission] always stands to risk a costs order against it if the applicant is successful in their reinstatement application. Rather, we prefer to acknowledge that costs orders are discretionary, and that the discretion should be triggered in such cases if the circumstances and conduct of the case warrant [that the discretion] be exercised.
11. Nor would we describe Donnelly as a matter involving exceptional circumstances. After an extremely thorough review of the authorities (see pars [54 ] to [64], the Tribunal concluded at [66]: In determining what to do about costs in this case, we note that neither the [Commission] nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour. We also note that Dr Donnelly had no choice but to make the application to NCAT that he did make if he wished to obtain reregistration as a psychologist. Similarly such an application generates a role as contradictor for the [Commission]. To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case. Consequently we declined to exercise our discretion to make a costs order under cl 13 of Sch 5D of the National Law. As a result the parties will bear their own costs in relation to this application.
12. As to Roberts, this decision might be thought to favour the applicant rather than support the Commission's position. The Tribunal concluded: 68. The jurisdiction to award costs in applications similar to this were considered recently in some detail by the Tribunal in Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155. The Tribunal identified three possible approaches to the question of costs including the compensatory principle whereby the successful party would be awarded costs. The Tribunal, however, observed that this approach may not always be appropriate in re-registration cases. Ultimately the Tribunal decided that neither party had conducted themselves in the proceedings such as to warrant a reduction in any costs ordered in their favour - to award costs to one of the participants would be either to favour the compensatory principle over acknowledging the fact that costs are involved in acting as a contradictor or vice versa. No basis had been established for adopting either option and so no order was made regarding costs resulting in each party paying their own costs. 69. In the present case the report of Dr Wright did not call into question any of the medical opinions tended on behalf of Mr Roberts. Counsel for the Medical Council acknowledged that Mr Roberts had taken time before applying for registration and had taken steps to keep himself up-to-date with medical practice. He had shown remorse. It was only the absence of a provision permitting the respondent to consent to the application for re-registration that prevented that course being adopted. In a formal sense the application was not opposed. Having regard to the discussion in Donnelly and the particular circumstances of this case the Tribunal is satisfied that no costs order should be made with both parties therefore bearing their own costs.
13. Accordingly, we do not accept that any of those decisions support the Commission's position.
14. In particular, the Commission relies on Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49, at where the Tribunal held: 90. "Proceedings of the present kind arise because of the prior misconduct of the applicant, and can be seen as ancillary. While it might be said that the applicant has been 'successful', and thereby should, at the least, not be exposed to the respondent Council's costs, that misunderstands the nature of the respondent's involvement at the inquiry. As noted by the Tribunal in Kazmierczak at [54] (and set out at [76] in Parajuli): '[A]lthough the applicant has been successful, the fact is that it was entirely appropriate for the Medical Board to oppose his application. The Medical Board in such applications plays a highly significant part on behalf of the public and the medical profession in putting applicants to the test and in ensuring that their background or at least their character is properly ventilated: that no applicant is re-registered without a sufficient investigation into what they have done since the deregistration.'" 91. Parajuli was a case where the respondent had actively opposed the application, but the applicant had prevailed. The Tribunal continued: 'Because it was entirely appropriate for the application to have been opposed and because it was in effect the applicant's conduct which has brought about this application in any event, he should pay the costs of the application.' 92. Here the ultimate position of the respondent was one that was not opposed to re-registration, though the ultimate decision is always that of the Tribunal. The same rule should apply." . . . 106. It was necessary that the Respondent act as a contradictor in these proceedings. Despite the protestations of the Applicant that he is impecunious, that is no good reason why a costs order should not be made in favour of the Respondent. We order that the Applicant pay the costs of the Respondent incurred in respect of these proceedings.
15. Amiensen was carefully considered by the Tribunal in Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102 (Shah No 2). After noting that, were it not for Mr Shah's impugned conduct, the Commission would not find itself in the position of having to participate in these reinstatement proceedings and to incur costs. The Tribunal stated: 24. While this is a powerful argument weighing against the exercise of the discretion to award costs to Mr Shah, we are unable to accept the principle adopted in Ristevski and Ameisen, that absent some disentitling conduct, as a matter of course the discretion to award costs should be exercised in favour of the public interest respondent. Nor are we able to accept the proposition that where the Tribunal is assisted by the participation of the public interest respondent this will give rise to the presumption that the applicant practitioner will pay their costs, irrespective of the outcome of the proceedings. 25. In this case neither party could properly be described as having been "successful" or "unsuccessful". Neither engaged in any disentitling conduct. Both assisted us in reaching in our task of reaching the most appropriate decision having regards to the objects of the National Law. In these circumstances we have decided that the discretion to award costs in favour of the Commission should not be exercised and we make no order as to costs.
16. We consider those conclusions to be persuasive and apposite to this application.
17. We note that in Ristevski the Tribunal concluded: 87. 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. 88. 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. 89. 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.
18. The Nurses Tribunal did not find the complaint of professional misconduct proved. It did find the alternative complaint, unsatisfactory professional conduct proved, together (relevantly) with impairment. We consider that this is sufficiently analogous to the observations made by the Tribunal in Ristevski at [89]. Consistent with the approach taken by the Tribunal in Shah No 2 at [25], our view is that there should be no order as to costs.
19. In Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 the Tribunal observed at [131]: . . . the well-worn phrase that "costs follow the event" is somewhat difficult to fit in a matter such as this, as a review is not analogous to the hearing of a complaint. Further, if the applicant is successful in obtaining an order for reinstatement, and the respondent is successful in obtaining orders for conditions on registration, at a simple level we might ask which event the costs are following.
20. Again, we find those sentiments are apposite. The Commission did not oppose, and indeed consented, to the applicant's application, which in substance was that her registration not be subject to the condition that she not practice until she had ceased use of Methadone. And the applicant did not oppose the Commission's request that a suite of other conditions be placed on her registration. In those circumstances, we are not persuaded that the Commission is entitled to its costs; we are persuaded that there should be no order as to costs. It is not necessary to consider the Commission's alternative submission that the applicant pay its disbursements being Dr Westmore's fees.

Orders

1. The Tribunal orders that: 1. The following conditions be placed on the respondent's registration in substitution for the existing conditions: the respondent is: 1. To obtain Nursing and Midwifery Council of NSW (the Council) approval prior to changing the nature or place of her practice. 2. To inform all current nursing employers of the conditions immediately and provide the Council with each employer's name and contact details. 3. To practise under Indirect Close supervision (in accordance with the Council's Conditions and Orders Bank). 4. To only administer medications under the direct supervision of a registered nurse who does not have any conditions on his/her practice. 5. To nominate a nurse manager (or equivalent) who has agreed to oversee supervision and designate supervisors. The respondent must: 1. provide the Council with the name, contact details and resume of the nominated nurse manager within two weeks of commencing work; 2. authorise the nurse manager 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; and * provide the Council with a copy of the conditions signed by the practitioner and by the nominated nurse manager indicating awareness of the conditions and authorisation; 1. authorise the nurse manager to provide a written report about the registrant's performance against the standards for practice for an enrolled nurse approved by the Council at three monthly intervals. 1. To attend for treatment with Dr David Barker, general practitioner, at a frequency to be determined by the treating practitioner. 2. To provide the Council with the name and contact details of all treating health practitioners; 3. To inform all current and any future treating health practitioners of the conditions; 4. To authorise the Council to provide each treating health practitioner with a copy of the conditions and Council appointed psychiatrist reports; 5. To authorise each treating practitioner to inform the Council of termination of treatment, serious/immediate concerns about fitness to practise or changes in health status and repeated failure to attend appointments; 6. To take any medication prescribed by her treating practitioners; 7. To attend random urine drug testing in strict accordance with the policy of the Council. Results must be forwarded to the Council and treating medical practitioners; 1. The practitioner is responsible for the cost associated with complying with the conditions; 2. The Review Body be the Nursing and Midwifery Council of NSW; 3. There be no order as to costs.

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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: 16 February 2018