Health Care Complaints Commission v Akhurst

Health Care Complaints Commission v Akhurst - [2016] NSWCATOD 70 - NSWCATOD 2016 case summary — Zoe

[8]

Admissions of the respondent

On 26 November 2015, the respondent filed a statement with the Tribunal. The statement was apparently signed by the respondent (who did not appear at the hearing) and is dated 22 October 2015. In that statement, the respondent relevantly states that: 1. In answer to Complaint One: 1. He admits particulars 1, 2, 3, 4 and 6; 2. He admits particular 5 in so far as he obtained fentanyl whilst on duty. He denies self-administering fentanyl whilst on duty. He says he took the fentanyl home for possible self administration 1. In answer to Complaint Two: 1. He admits particular 1. 2. He denies particular 2 in so far as he provided false and/or misleading information in a submission to delegates of the Council dated 16 May 2014. However, he admits to taking the fentanyl from RNSH to take it home for possible self-administration. 3. He denies particular 3 in so far as he provided false and/or misleading information to delegates of the Council during proceedings conducted under s 150 of the National Law on 19 May 2014. He also denies self administration of fentanyl on 19 April 2014 at RNSH. However, he admits to taking the fentanyl from RNSH for the purpose of taking it home for possible self-administration. 1. In answer to Complaint Three, he admits and denies Complaint Three, as he has admitted and denied the particulars of Complaints One and Two. 2. In answer to Complaint Four: 1. he admits Particulars 1(a) and (b); 2. he admits and denies Particular 2 as he has admitted and denied the Particulars of Complaint One. 1. In answer to Complaint Five, as he admits and denies the particulars of Complaint Five as he has admitted and denied the particulars of Complaint Four.
The Tribunal notes that, on 26 November 2015, the respondent filed a statutory declaration dated 23 December 2014. In this statutory declaration, the respondent states that he undertakes not to seek registration as a nurse again in Australia, or practice nursing again in Australia. He acknowledges that if he attempts to seek registration as a nurse again the Commission may proceed with disciplinary action against him.

[10]

The Investigation

On 22 April 2014, Ms Rebecca Riordan, the Nurse Manager of RNSH ICU wrote to the respondent. She advised him that allegations had been made against him relating to 4 separate incidents of misusing fentanyl whilst on duty on 19 April 2014, and that he was required to attend a meeting. The meeting was to be held on 24 April 2014 and would investigate the allegation and consider the information relating to it.
On 23 April 2014, the respondent resigned, by letter in writing, from his employment at RNSH. The resignation was effective immediately.
A Report of Fact Finding Investigation dated 28 April 2014 regarding the respondent was prepared for Mr Justin Gardner, the Acting Director of Nursing and Midwifery at RNSH by Ms Susan Henderson and Ms Rebecca Riordan. Ms Henderson is the Divisional Nurse Manager at RNSH, and Ms Rebecca Riordan, a Nurse Manager of RNSH ICU. The allegation investigated was stated as: it is alleged that on 19th April between 2345 and 0700hrs RN Akhurst did breached the NSW Code of Conduct, the Code of Professional Conduct for Nurses in Australia and the NSW Health Policy [for] Medication handling in NSW Public Hospitals in that RN Akhurst removed fentanyl from infusions that were intended for the patient, for his own use, and put additional saline/water for injection back into the syringe so that the volume in the infusion was unchanged.
The report was provided to Mr Gardner on 28 April 2014 and its recommendations accepted on 8 May 2014. The report states: 9.1 Findings The investigation found sufficient evidence (on the balance of probability) to support the allegation (sustained). The reasons for this were as follows: RN Akhurst did work on the night of 19 April Two RNs (RN Garner and RN Lymnan) witnessed RN Akhurst remove the fentanyl syringe from the syringe driver for no valid clinical reason RN Liu also believes that the fentanyl syringe had been removed from the driver, what she was on her break, due to the fact that the syringe was placed differently in the syringe driver when she returned RN Lyman witnessed RN Akhurst removing the fentanyl syringe from the driver, disconnecting the syringe from the infusion line, place fentanyl into an empty vial, draw up saline into the syringe and replace the syringe into the driver. RN Garner saw RN Akhurst remove fentanyl syringe from the driver and then she saw him drawing up clear fluid from a 10 ml plastic vial (either normal saline or water for injection) into the fentanyl syringe and then replaced the syringe back into the driver. All four of the witnesses commented on odd behaviour from RN Akhurst (manic, buzzing pinpoint pupils, slurred speech, inappropriate kissing et cetera) . . . 9.3 Recommendation APHRA be advised of the outcome of the investigation.
On 13 May 2014, Mr Gardiner filed a Notification (complaint) with the Australian Health Practitioner Regulation Agency (AHPRA).
Shortly after 16 May 2014, the respondent replied to the letter to him from the Council dated 16 May 2014. The letter from the Council notified the respondent of the allegations made against him. The respondent relevantly states: On the evening of the 19th April I removed small amounts of Fentonyl [sic] from the syringes of 3 patients in my care and collected the fentanyl [sic] with the purpose of taking this at home to help me cope with my anxiety and paranoia brought on by myself. . . . During the shift I didn't' feel good at all, negitive [sic] thoughts came in my head, why I had to have diabetes and suffer for all these things all the time. I thought collecting fentanyl which I could take home and used to ease my pain would be the answer. I went to 3 patients fentanyl syringe and collected small amounts of fentanyl and saved them to take home. . . . I deny using any fentanyl at work.
On 19 May 2014, the Council held proceedings under s 150 of the National Law. In its reasons for decision, the Council were concerned that the respondent may have a drug misuse disorder, and were of the view that he continued to have depression and anxiety with some level of mood disorder. The Council was also concerned that the respondent may not be engaged in an appropriate range of therapies and treatment.
The Council was satisfied that action was appropriate for the protection of the health or safety of the public and was otherwise in the public interest. Relevantly, the Council ordered that the respondent must not work as a registered nurse until further review by the Council.

[18]

Failure to appear at the hearing

The Commission submitted that the Tribunal was entitled to draw inferences from the failure of the respondent to attend the hearing and from his "silence": Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 at [42] - [50]; Lucire v Health Care Complaints Commission v Health Care Complaints Commission [2011] NSWCA 99 at [124] - [141]; Meakes v NSW Bar Association [2006] NSWCA 340 at [70] - [78].
The Tribunal received submissions from the respondent on this issue. The respondent accepts that the authorities relied on by the Commission, to the effect that the Tribunal has the power to draw inferences in disciplinary proceedings adverse to a practitioner where the practitioner does not provide evidence, may be correct as a general submission. However, he submits that the principle is not correct and should not be applied in his circumstances.
The respondent submits that the Tribunal should not draw an adverse inference from respondent's decision not to appear at the hearing and to give evidence because: 1. On 23 December 2014, he signed a statutory declaration undertaking never to work as a nurse again, and acknowledging that if he attempted to again seek registration as a nurse he could be subject to disciplinary proceedings. 2. Since approximately December 2014, he has not worked in health-related employment so there has been no potential risk to the public since that time. 3. On or about 22 October 2015, he provided a statement in response to the Complaint in which he admitted that he misappropriated fentanyl and that he was impaired. He also admitted that as a result of that impairment he was not competent to practice nursing. 4. Correspondence took place between the parties resulting in a draft agreed statement of facts and issues in dispute in order to assist the Tribunal. 5. It is not the case that the respondent did not provide a satisfactory explanation to assist the Tribunal.
In Wingate, referred to above, the NSW Court of Appeal, per Basten JA, with whom McColl JA and Harrison AJA agreed, stated at [47]: In Bowen-James [Bowen-James v Walton (NSWCA, 5 August 1991, unrep)], after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued: "In our opinion there is no right to silence or any privilege against self-incrimination upon which a medical practitioner, answering a complaint before the Tribunal, is entitled to rely. Indeed, we would endorse the observations made by Hope AJA in Ibrahim. There is a public interest in the proper discharge by medical practitioners of the privileges which the community accords to them, and in the due accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients. They are not, of course, officers of the Supreme Court and, accordingly, the precise force of the decision in In Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Pt 1) 136, particularly of what was said at 141-2, cannot apply. Nevertheless, we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts." (emphasis added)
The respondent submits, in essence, that the authorities referred to above, are not, in the respondent's circumstances, applicable because amongst other matters, the respondent signed a statutory declaration undertaking never to work as a nurse again; he has not subsequently worked in the provision of health services; he provided a statement to the Commission admitting the complaints; he and his legal advisers participated in agreeing to an agreed statement of facts.
The Tribunal does not accept that, because of the respondent's particular circumstances (including filing a statutory declaration undertaking never to work as a nurse again; not subsequently working in the provision of health services; providing a statement to the Commission admitting the complaints; and participating in the preparation of an agreed statement of facts) an adverse inference may not be drawn against the respondent. As the Court Appeal noted in Lucire at [140], the Tribunal may draw adverse inferences from a practitioner's silence "peculiarly within" the knowledge of the practitioner. The Tribunal considers that it may draw an inference against the respondent in circumstances where he files a statement and otherwise co-operates with the Commission, but is not prepared to be cross-examined as to the statement's contents.

[24]

2014

In April 2014, the respondent worked as a registered nurse at the Royal North Shore Hospital Intensive Care Unit ("RNSH ICU").
The respondent was on night shift at RNSH ICU as the access nurse on 19 April 2014 (continuing into 20 April 2014). This meant that his role was to help all nurses, take the first admission and provide contingency and support for the ICU.
At the start of the respondent's shift, RN Johnstone noted that the respondent was flushed and had a bruise on his face. The respondent told her he had fallen out of bed that morning.
At 11:45pm the respondent went into bedspace 9 occupied by Patient A. The nurse in that room was away from the bedside.
The respondent walked to the bedside trolley and approached the IV pole where the syringe drivers were located. The top syringe driver contained the fentanyl syringe that was running at 1ml/h. The respondent walked to the bedside trolley and handled a cup and a 10ml syringe. At this time, the infusion of fentanyl for Patient A was at 1ml/h.
The respondent left the room and a pump alarmed from the room signalling that the fentanyl infusion had been paused. The respondent heard the alarm and told RN Garner that he would address the issue. He then re-started the fentanyl infusion and left the room.
At approximately midnight, the respondent encouraged RN Liu to take a short break and told her that he would observe her patient, Patient B, at bedspace 11 while she was gone. At the time that RN Liu left there was approximately 30ml of fentanyl remaining in the syringe at bedspace 11.
Shortly after RN Liu left, the respondent entered bedspace 11 and took the fentanyl syringe out of the driver, disconnected it from the infusion line and turned his back so that view of what he was doing was temporarily obstructed.
The respondent put something in his pocket when RN Lyman entered the room and appeared flustered and stuttering his words. The respondent took the fentanyl syringe off the patient's bed and replaced it into the driver.
The fentanyl syringe at that stage did not need changing or altering in any way. When she returned from her break approximately ten minutes later the fentanyl syringe was not how she had left it.
At 3:06am the respondent returned to Patient A at bedspace 9 whilst the nurse was away on her break. He took out the fentanyl syringe. He drew out clear fluid from a small plastic 10ml vial into the 60ml fentanyl syringe and put it back into the driver. However, the observations were already charted for 0300hrs at that point. RN Garner observed at 0015 hours that his mood was "manic" to what she witnessed the following night when he was also on shift.
At 4am fresh blood was observed on the surface of the sharps container in the staff toilet. RN Akhurst had told RN Liu at about 3am that he needed to use the toilet. It was also the toilet that he had been using during his shift.
The respondent was observed to be unable to create a coherent sentence, to be swaying, to be slurring his words and his eyes as "withdrawn" with size 2 pupils.
At about 6:00am Patient B started a new fentanyl infusion.
At 6:30am the respondent again entered bedspace 11, said he was re-stocking and encouraged RN Liu to take a break. RN Liu refused but the respondent was insistent. When RN Liu left the area of bedspace 11, the respondent went to the fentanyl syringe in the room, removed it and placed the fentanyl into an empty vial. He drew the liquid into a syringe and replaced the syringe into the driver.
When RN Liu returned she observed that the respondent's behaviour was observed to be "totally different" to what she had seen when he had worked with him previous, that he appeared pressured and that he looked "like someone sleeping but awake."
RN Johnstone spoke to the respondent about what she perceived to be his odd behaviour throughout his shift. The respondent told RN Johnstone that he had fallen out of bed that morning, that his anti-depressant medication had been altered, that he had suffered a seizure and was post-ictal.
RN Johnstone asked the respondent directly whether he had been stealing fentanyl and he said, "Why would I do that, do you want to see my arms?"

[25]

Did the respondent administer the fentanyl to himself while at work?

This issue is relevant to Complaint One, particular 5, and Complaint Two, particulars 2 and 3, which refer to the respondent self-administering the fentanyl while on duty, and then providing false and misleading information to the Council in the letter of 16 May 2014 and in the Council proceedings conducted on 19 May 2014 about this issue.
This is the one allegation that is been denied by the respondent. The Tribunal notes that he has consistently made this denial on the day of the incident, throughout the investigation, and in the documents tendered at the hearing.
There are a number of matters referred to in contemporaneous accounts of the respondent's appearance and behaviour at work which may point towards a finding that the respondent that did consume the fentanyl at work. These matters include:

the respondent's "pinpoint pupils" (witness Lyman);
the respondent was talking nonsense, and unable to create a coherent sentence (witness Lyman);
the respondent looked dozy, sleepy and smiley (witness Lyman);
the respondent's words were slurred, and he was swaying/swaggering (witnesses Lyman, Johnstone);
"he kissed my cheek and told me how beautiful I was" (witness Lyman)
his face looked strange "like someone sleeping but awake" (witness Liu);
there was a bloodstain on the surface of the sharps container (witness Liu);
his behaviour deteriorated during the course of the shift (witness Garner);
he was sweaty, shaky, jittery, manic and his behaviour was extremely over the top; while always flamboyant, he suddenly appeared to be an exaggerated version of himself (witness Garner);
he looked "very spaced"(witness Johnstone).

The Tribunal notes that some witnesses described the respondent's conduct as "dozy, sleepy and smiley", while others described his behaviour as "sweaty, shaky, jittery, manic". There is no explanation before the Tribunal, either lay or expert, explaining this difference in observed behaviour. Nor is there any expert evidence which explains whether the "dozy, sleepy and smiley" behaviour, on the one hand, and/or the "sweaty, shaky, jittery, manic" appearance and behaviour, on the other hand, was consistent with the respondent having recently administered fentanyl.
As: 1. There was no expert evidence explaining the effects of fentanyl. 2. There was no eye witness of the respondent consuming the drug while at work. 3. The respondent is a diabetic, which may otherwise explain his behaviour on shift. 4. The respondent suffers from epilepsy, which may also otherwise explain his behaviour on shift, the Tribunal is not comfortably satisfied that the respondent consumed the fentanyl at work. Given the matters referred to above, the Tribunal does not consider it appropriate to draw an adverse inference against the respondent, because of his failure to attend the hearing, in relation to this issue.

[26]

Steps taken in the investigation

On 16 May 2014, the respondent consented to conditions being placed on his registration, including a condition that he must not work as a registered nurse until reviewed by the Council and the condition is removed.
In an undated letter to the Council, the respondent responded to the allegations made against him in a letter dated 16 May 2014. He referred to the following: 1. He referred to his self-admission to the Hills Rehabilitation Clinic for treatment of clinical depression in March 2014. 2. At the conclusion of that treatment he returned to work. 3. On the morning of April 19, he woke in a disoriented state as he had suffered a hypoglycaemic seizure and had injured himself falling out of bed. 4. He admitted removing small amounts of fentanyl from the syringes of 3 patients with the purpose of taking it at home. 5. He acknowledged that he had an issue with depression and should not be working as a registered nurse at the present time.
The Council held proceedings under s 150 of the National Law on 19 May 2014. During those proceedings: 1. The respondent claimed that he took the fentanyl home with the intention of self-administration but that he did not self-administer the medication and instead disposed of it. He stated that he had been feeling "flat and anxious" at work. 2. The respondent stated that he had been previously admitted to the Hills Clinic in March 2014 and that they had focused on his depression. He stated that he was currently seeing a psychologist and was on medication for his depression and anxiety. He denied having a history of drug use aside from a previous misappropriation of fentanyl. 3. In relation to the events on 19/20 April 2014, the respondent stated that he was exhausted, had a hypo seizure due to his sugar levels, woke up delirious but needed the money. He was "not right" and "not 100%" when he got to work.
As a result of the s 150 proceedings, conditions were placed on the respondent's registration, which he agreed to.
On 13 August 2014, the NSW Nurses and Midwives Association wrote to the Commission on behalf of the respondent to assist in its inquiries in relation to the investigation. In that letter, it was stated: 1. The respondent was receiving treatment from Mr Peter Casbolt, Psychologist; Dr Usman Malik, Psychiatrist; and Dr Mina Maklah, GP for depression, anxiety and drug misuse. 2. The respondent was currently working as a companion/carer of the elderly and did not intend to return to hospital based clinical nursing in the near future.
On 9 November 2014, the Commission wrote to the respondent under s 40 of the Health Care Complaints Act 1993 advising him of his proposal to refer him to the Director of Proceedings under s 39(1)(a) of that Act and giving him the opportunity to make submissions.
On 23 December 2014, the respondent made a statutory declaration that he would not seek registration as a nurse in Australia again, would not practice nursing in Australia and requested his name be immediately removed from the Register of Nurses.

[28]

Relevant Law

It is appropriate to set out the relevant provisions of the National Law. These are as follows.
Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and (b) the registration of students undertaking-- (i) programs of study that provide a qualification for registration in a health profession; (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. A "NSW provision" is defined in s5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note: This definition is an additional New South Wales provision.
Section 139B of the National Law (which is an additional provision for NSW), which relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. . . . (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E of the National Law (which is an additional provision for NSW), which provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

[29]

Relevant principles

The relevant principles to be applied include the following: 1. The disciplinary powers of the Tribunal are set out in s 149 of the National Law. The Tribunal has a range of powers which appear in ss 149A and 149B. 2. The paramount consideration in proceedings such as this is to protect the public: s 3A of the National Law; Re Dr Parajuli [2010] NSWMT 3 at [31]. 3. The jurisdiction of the Tribunal is protective in nature, and not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. 4. In the exercise of protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the chiropractic profession, the preservation of public confidence in the chiropractic profession and the protection of the community: Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113]. 5. The purpose of the proceedings include the need to deter others from engaging in similar conduct: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]: . . . it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services.

[32]

Complaint Three

The Commission alleges that the respondent is guilty of professional misconduct. Two particulars are given, being the particulars for Complaints One and Two, which are relied on both individually and cumulatively.
Section 139E of the National Law refers to conduct that is of a sufficiently serious nature to justify suspension or cancellation of the respondent registration; it concerns itself with the measure of the seriousness of that conduct. The determination of whether conduct amounts to professional misconduct therefore has it as its starting point, an objective assessment of the respondent's conduct against the standard "reasonably expected of an equivalent practitioner". When coming to a decision about whether conduct is quite sufficiently serious" to justify the sanction of de-registration, circumstances which be on that objective assessment of the conduct may properly be taken into account: Health Care Complaints Commission v Gow [2013] NSWMT 2 at [67].
In making a finding of professional misconduct, the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": HCCC v Perroux [2011] NSWDC 99 at [18].
The Tribunal's findings in relation to Complaint One are set out above. The conduct the subject of Complaint One is, in the view of the Tribunal, sufficiently serious by itself as to warrant a finding of professional misconduct.
In Health Care Complaints Commission v Vega (No 2) [2016] NSWCATOD 38 the Tribunal described the conduct of a nurse in assaulting a particularly vulnerable elderly woman, an assault that were sexual in nature, as "disgraceful". The conduct of the respondent, while different in nature, is equally disgraceful. The respondent removed an opiate prescribed for pain relief to two patients in ICU, replaced the opiate with saline, with the intention of administering the drug to himself. That conduct clearly offends a nurse's obligations to practise in a safe and competent manner, and to practise in accordance with the standards of the profession and the broader health system: Code of Professional Conduct for Nurses in Australia in Australia.
The conduct the subject of Complaint Two is not of itself sufficiently serious to warrant a finding of professional misconduct, but in combination with Complaint One, the Tribunal is satisfied that the established conduct the subject of Complaints One and Two warrants a finding that the respondent is guilty of professional misconduct.

[36]

The Commission's submissions

The Commission submits that the respondent's registration should be cancelled and that he be ordered not to make any application for a review of that cancellation for a minimum period of two years from the date of these reasons.
In summary, the Commission submits that cancellation of the respondent's registration is required for the following reasons. 1. The gravity of the respondent's conduct; 2. The need to protect the public. 3. The need to maintain high standards in the profession. 4. The need for specific and general deterrence. 5. The risk that the respondent poses to the health of members of the public.
Whether the degree of seriousness of conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. Where there is a finding of professional misconduct the Tribunal has a wide discretion, and the gravity of the impugned conduct is not to be measured by reference to the worst cases, but by reference to the extent it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.
The order sought by the Commission is entirely justified. The Tribunal notes that fentanyl is a potent, synthetic opioid analgesic with a rapid onset and short duration of action. It is used to treat breakthrough pain and is commonly used in pre-procedures as a pain reliever as well as an anesthetic in combination with a benzodiazepine. It is said to be approximately 80 to 100 times more potent than morphine and roughly 40 to 50 times more potent than pharmaceutical grade (that is 100% pure) heroin. The Tribunal finds it difficult to conceive of conduct more potentially harmful to patients in an intensive care unit, and more selfish in nature, than the conduct of the respondent, a registered nurse responsible for the care of those patients, in removing the opiate required for pain relief, and replacing it with saline, with the intention of administering the fentanyl to himself.
For this conduct alone, the Tribunal reprimands the respondent in the strongest possible terms.
The Tribunal accepts the Commission's submission and considers, and orders, that the registration of the respondent be cancelled, and that there be a period of two years before he be permitted to seek-reregistration.

[37]

Costs

The Commissions seeks its costs of the proceedings. As a general rule, costs of proceedings before the Tribunal should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [45].
However, the respondent submits that the following matters militate against an order that he pay the Commission's costs: 1. In his statutory declaration of 23 December 2014, the respondent under took not to: 1. seek registration as a nurse again in Australia; or 2. practise nursing again in Australia 1. In his statement of 22 October 2015, the respondent admitted the substantive conduct that he had misappropriate fentanyl, was impaired, and lacked competence. (The Tribunal notes that the Application for Disciplinary Findings and Orders had been filed on 10 July 2015). 2. On 23 November 2015, the respondent in his statement (filed in the proceedings) made admissions with respect to each complaint (save for not admitting that he consumed fentanyl at work, or provided false and/or misleading information to the Council on 16 May 2014). 3. A statement of agreed facts was agreed to in order to confine the issues and reduce the costs. 4. The respondent did not dispute the findings in the expert's report. 5. The respondent did not contest the protective orders sought.
The respondent relies on the authorities of Health Care Complaints Commission v Rolleston [2013] NSWMT 12 and Health Care Complaints Commission v Bard [2013] NSWMT 15. In both decisions the Commission was successful.
In Rolleston the respondent made admissions and undertook never to practise as a medical practitioner again. He did not attend the hearing. The Tribunal considered that those matters warranted a decision that each party bear their own costs.
In Bard, the Tribunal noted at [172] that the facts were distinguishable in some respects to those in Rolleston. While initially the practitioner, through the Association, did all she could do at that stage to bring the proceedings to an end, she did not ultimately concede all or any of the complaints made against her in the complaint notwithstanding this issue was highlighted in correspondence to her from the Commission. In those circumstances, the Tribunal ordered the respondent to pay fifty per cent of the Commission's costs.
The Commission relies on the decision of the Tribunal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342. This was decided after both Bard and Rolleston. In the primary proceedings, the practitioner was "an active participant", and accepted that conditions should be imposed on his registration. In addition, impairment and unsatisfactory professional conduct were admitted, albeit it at a late stage. The Tribunal found that there should be no order as to costs.
This decision was set aside on appeal. The Court of Appeal (per Emmett JA, Meagher JA and Becch-Jones J concurring) stated: 42. As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. 43. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). 44. It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. 45. The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner.
Here, the respondent admitted to all of the Commission's complaints, and all of the particulars alleged, save for those particulars relating to the issue of self-administration of fentanyl on duty. The Court of Appeal notes in Philipiah at [45] that the normal price to be paid for a practitioner disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. Here, the respondent successfully disputed this particular.
The Tribunal found assistance in the decision of Health Care Complaints Commission v Talmadge [2016] NSWCATOD 16. In that decision, the Tribunal rejected an application that the matter proceed on the papers, and held an oral hearing. The Tribunal stated: 134. The HCCC was largely successful in making out its case, which was properly conducted. In this matter only one disputed particular was not established to the required standard, that of the deliberate destruction of the patient file. Very little time was spent on this issue in the hearing. The time addressing the credit of the practitioner in the hearing was considerable, but it was relevant to other aspects of the case concerning disputed particulars and the context of the improper relationship. As noted previously, this latter issue was critical both in relation to the gravity of the past misconduct and to the practitioner's present candour and insight in the consideration of the protective orders. 135. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182, Basten JA, with whom the other members of the Court of Appeal agreed, stated of the Commission's failure to establish a particular, at [50]: This aspect is not to be assessed by a numerical calculation of the number of paragraphs of the particulars which were upheld and the number which were rejected. Nor would failure to establish some particulars necessarily result in any diminution in the costs payable to the Commission.
In the circumstances, where the Commission was successful overall, the respondent should pay the Commission's costs.

[39]

ANNEXURE A The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dammen Alan Akhurst ("the practitioner") of Unit 1101, 6 Lachlan Street, Waterloo NSW 2017 being a nurse formerly registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B (1)(a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Background In April 2014 the practitioner worked as a registered nurse at the Royal North Shore Hospital ("RNSH") Intensive Care Unit. PARTICULARS OF COMPLAINT ONE

Between 19 and 20 April 2014 the practitioner acted inappropriately in his care and treatment of Patient A when he, a) tampered with an infusion to Patient A of a drug of addiction, namely Fentanyl; b) diverted and replaced the Fentanyl with saline.
Between 19 and 20 April 2014 the practitioner took a drug of addiction, namely Fentanyl, without permission or authority, for his own use in circumstances where it was intended for the care and treatment of Patient A.
On 20 April 2014 the practitioner acted inappropriately in his care and treatment of Patient B when he, a) tampered with an infusion to Patient B of a drug of addiction, namely Fentanyl; b) diverted and replaced the Fentanyl with saline.
On 20 April 2014 the practitioner took a drug of addiction, namely Fentanyl, without permission or authority, for his own use in circumstances where it was intended for the care and treatment of Patient B.
Between 19 and 20 April 2014 whilst on duty as a registered nurse at RNSH the practitioner self-administered a drug of addiction, namely Fentanyl.
Between 19 and 20 April 2014 the practitioner failed to dispose of the Fentanyl in his possession in breach of the Code of Professional Conduct for Nurses in Australia 2010 and NSW Health Guideline - Medication Handling in NSW Public Hospitals 2013. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B (1)(l) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. PARTICULARS OF COMPLAINT TWO
The practitioner provided false and/or misleading information to hospital staff when he denied misappropriating the Fentanyl between 19 and 20 April 2014.
The practitioner provided false and/or misleading information in a submission (undated) to the Nursing and Midwifery Council ("the Council"), in response to a letter from the Council dated 16 May 2014, when he stated that the purpose for misappropriating the Fentanyl between 19 and 20 April 2014 at RNSH was to take it home for possible self-administration.
The practitioner provided false and/or misleading information to delegates of the Council during proceedings conducted on 19 May 2014 under s 150 of the National Law when he, a) denied self-administration of the Fentanyl on 19 April 2014 at RNSH; b) stated that the purpose for misappropriating the Fentanyl on 19 April 2014 at RNSH was to take it home for possible self-administration. COMPLAINT THREE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT THREE The particulars for Complaint One and Two above are relied upon and repeated, both individually and cumulatively. COMPLAINT FOUR Has an impairment within the meaning of section 5 of the National Law in that the practitioner has a mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect his capacity to practice nursing. PARTICULARS OF COMPLAINT FOUR
The Practitioner suffers from, a physical and/or mental impairment and disorder; namely mood disorders including depression and anxiety; substance abuse or dependence.
The particulars for Complaint One above are relied upon and repeated, both individually and cumulatively. COMPLAINT FIVE Is not competent to practice the profession of nursing under section 139 of the National Law as the practitioner does not have sufficient mental capacity, knowledge and/or skill to practice the profession. PARTICULARS OF COMPLAINT FIVE The particulars for Complaint Four above are relied upon and repeated, both individually and cumulatively. 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: 30 May 2016

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