Health Care Complaints Commission v Allen

NCAT Occupational|2023-05-23

The publication of the health conditions imposed by the Tribunal on the Respondent's registration as a nurse is prohibited pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW).

reasons for decision

By application dated 15 November 2022 for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) ("the National Law") against Kim Leanne Allen (a.k.a. O'Leary) ("the Respondent"), the Health Care Complaints Commission ("the Commission") sought the following orders: 1. Cancellation of the Respondent's registration pursuant to s 149C(1)(b) of the National Law, with a non-review period of 1-2 years. 2. An order that the Respondent pay the Commission's costs as agreed or assessed under clause 13 of Schedule 5D of the National Law.
The Director of Proceedings of the Commission had determined to prosecute the complaint against the Respondent pursuant to s 90B(1) of the Health Care Complaints Act 1993 (NSW) alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(c) and/or professional misconduct within the meaning of s 139E of the National Law, and that the Respondent has an impairment under s 144(d) of the National Law.
The matter was listed for hearing on 22 and 23 May 2023. On 22 May, the Commission sought and obtained leave to amend a number of particulars to the complaints. The Commission also informed the Tribunal that it no longer sought cancellation of the Respondent's registration, but advocated for a reprimand if the complaints against the Respondent were made out.

Complaints

The complaints as amended are set out as follows (omitting the Particulars): 1. That the Respondent being a nurse registered under the National Law is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law in that the Respondent contravened conditions to which her registration was subject (Complaint 1); 2. The Respondent is guilty of professional misconduct under s 139E of the National Law in that the Respondent has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, and/or 2. 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 her registration (Complaint 2); 1. That pursuant to s 144(d) of the National Law, the Respondent has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of nursing (Complaint 3).

Brief Background

The Respondent was first registered as a nurse in March 1982 after obtaining a Certificate of General Nursing. She received a Graduate Certificate in Intensive Care in 1995.
The Respondent has worked in numerous clinical senior nursing roles during her career.
Since 2018, the Respondent has been a casual university lecturer teaching undergraduate nursing students, principally in critical care.

Relevant Conditions

The relevant conditions imposed on the Respondent's registration on 5 June 2019 by the Nursing and Midwifery Council of New South Wales ("the Council") the subject of the Complaints are the following: "Condition 6 To comply with the Nursing and Midwifery Council of NSW's Alcohol Screening Policy and Participant Procedure: Breath testing for alcohol (as varied from time to time). Condition 11 To attend for review by a Council-appointed psychiatrist on a six monthly basis or as otherwise directed by the Nursing and Midwifery Council of NSW."
Condition 6 was made a "critical impairment condition" by the Council under s 150FA of the National Law on 20 November 2020.
The Respondent has also been the subject of Council convened proceedings under s 150 of the National Law on 8 November 2021, and in 2022 her conduct was referred to the Commission for investigation under s 150D of the National Law.

Particulars

The particulars relied upon by the Commission, as amended, are as follows: "PARTICULARS OF COMPLAINT ONE 1. From 7 October to 1 November 2019, the practitioner breached condition 6 in that she did not, within 7 days of the start of October 2019, send the Council her September 2019 ABT log, contrary to Clause 4.2 Circumstance (k) of the Alcohol Screening Policy and Clause 8.2 of the Participant Procedure. 2. From 7 November to 12 December 2019, the practitioner breached condition 6 in that she did not, within 7 days of the start of November 2019, send the Council her October 2019 ABT log and evidence of practice, contrary to Clause 4.2 Circumstance (k) of the Alcohol Screening Policy and Clause 8.2 of the Participant Procedure. 3. From 7 to 16 December 2019, the practitioner breached condition 6 in that she did not: a. within 7 days of the start of December 2019, send the Council her November 2019 ABT log and evidence of practice, contrary to Clause 4.2 circumstance (k) of the Alcohol Screening Policy and Clause 8.2 of the Participant Procedure; and b. undertake ABT after finishing work on 18 November 2019, contrary to Clause 4.2 circumstance (c) of the Alcohol Screening Policy and Clause 6.2 of the Participant Procedure. 4. From 7 to 14 April 2020, the practitioner breached Condition 6 in that she did not: a. within 7 days of the start of April 2020, send the Council her March 2020 ABT log and evidence of practice, contrary to Clause 4.2 circumstance (k) of the Alcohol Screening Policy and Clause 8.2 of the Participant Procedure; b. attend for screening when required and/or provide supporting information about her absence for screening within the required timeframe, contrary to Clause 4.2 circumstances (c) and/or (g) of the Alcohol Screening Policy and Clause 9.1 of the Participant Procedure. 5. From 7 to 12 October 2020, the practitioner breached condition 6 in that she did not, within 7 days of the start of October 2020, send the Council her September 2020 ABT log and evidence of practice, contrary to Clause 4.2 circumstance (k) of the Alcohol Screening Policy, and Clause 8.2 of the Participant Procedure. 6. From 7 November 2020, the practitioner breached condition 6 in that she did not, within 7 days of the start of November 2020, or at any time, send the Council her October 2020 ABT log and evidence of practice, contrary to Clause 4.2 circumstance (k) of the Alcohol Screening Policy and Clause 8.2 of the Participant Procedure. 7. From 5 June 2019 to 7 July 2022, the practitioner breached condition 6 in that she failed to have her ABT device serviced or calibrated every six months, contrary to Clause 4.2 circumstance (l) of the Alcohol Screening Policy and Clause 6.1 of the Participant Procedure. 8. [Withdrawn] 9. From 7 to 13 April 2021, the practitioner breached critical impairment condition 6 in that she: a. did not, within 7 days of the start of April 2021, send the Council her March 2021 ABT log and evidence of practice, contrary to Clause 4.2 circumstance (k) of the Alcohol Screening Policy and Clause 8.2 of the Participant Procedure; b. [Withdrawn] 10. [Withdrawn] 11. From 7 to 16 July 2021, the practitioner breached critical impairment condition 6 in that she did not: a. within 7 days of the start of July 2021, send the Council her June 2021 ABT log, contrary to Clause 4.2 circumstance (k) of the Alcohol Screening Policy and Clause 8.2 of the Participant Procedure; b. send the Council any evidence of her June 2021 practice hours, contrary to Clause 8.2 of the Participant Procedure. 12. From 7 to 8 August 2021, the practitioner breached critical impairment condition 6 in that she did not, within 7 days of the start of August 2021, send the Council her July 2021 ABT log and evidence of practice, contrary to Clause 4.2 circumstance (k) of the Alcohol Screening Policy and Clause 8.2 of the Participant Procedure. 13. From 7 to 24 September 2021, the practitioner breached critical impairment condition 6 in that she did not, within 7 days of the start of September 2021, send the Council her August 2021 ABT log and evidence of practice, contrary to Clause 4.2 circumstance (k) of the Alcohol Screening Policy and Clause 8.2 of the Participant Procedure. 14. From 7 October 2021, the practitioner breached critical impairment condition 6 in that she did not send to the Council her September 2021 breath testing log, contrary to Clause 4.2 circumstance (k) of the Alcohol Screening Policy. 15. From 7 to 9 December 2021, the practitioner breached critical impairment condition 6 in that, contrary to Clause 4.2 circumstance (k) of the Alcohol Screening Policy and Clause 8.2 of the Participant Procedure: a. she did not, within 7 days of the start of December 2021, send the Council her November 2021 ABT log; b. she failed to submit evidence of her practice in November 2021. 16. [Withdrawn] 17. [Withdrawn] 18. From 3 September 2021 to 19 January 2022 the practitioner breached condition 11 in that she: a. did not attend for reviews by a Council-appointed psychiatrist as directed by the Nursing and Midwifery Council of NSW on 3 September and 28 October 2021; b. engaged inconsistently with her monitoring officer regarding the rescheduling of appointments by a Council-appointed psychiatrist. The conduct in any of the particulars in Complaint One are relied upon individually and cumulatively as amounting to unsatisfactory professional conduct." (emphasis omitted)

Alcohol Screening Policy

It will be seen that the majority of particulars concerning Complaint 1 (and by implication Complaint 2) concern alleged breaches of Condition 6 on the basis that the conduct of the Respondent was contrary to Clause 4.2 Circumstance (k) of the Alcohol Screening Policy and Clause 8.2 of what is described as the "Participant Procedure" of the Council.
Clause 4.2 of the Alcohol Screening Policy relevantly provides that non-compliance with alcohol screening is any failure to follow the requirements of the policy, the Council's breath-testing for alcohol procedures, and any alcohol screening conditions on a participant's registration.
Non-compliance with alcohol screening is stated to include, but is not limited to, the "circumstances" listed below, namely: "(k) The participant fails to provide their breath testing log to the Council. (l) The participant fails to service their breath testing device as required."
Clause 8.2 of the Council's Participant Procedure provides that the Respondent must send to the Council within seven days of the start of each calendar month, or as directed by the Council, a copy of the testing log for the previous month and "evidence of your practi[c]e such as your work roster or copy of your appointment book … verified and signed by your employer or accreditor."

Relevant Legislation

The relevant provisions of the National Law relied upon are as follows: 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-- … (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of- (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. 139E Meaning of "professional misconduct" 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. 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner -- (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; … (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - … (d) Impairment A complaint the practitioner has an impairment.

Evidence

The evidence provided by the Commission consisted of the following: 1. A bundle of documents filed and served on 11 May 2023 consisting of 1,188 pages, admitted subject to relevance and subject to the original complaint at pp 5-14 being amended. 2. Evidentiary certificates from regulatory authorities. 3. Summonses directed at third parties for the production of documents and the documents as produced.
It was tendered on behalf of the Respondent, without objection, the following: 1. A statement of the Respondent of 3 May 2023; 2. A document described as "Response by respondent" to the Commission's original complaint particulars (undated); 3. A medical report from Dr F McLeod dated 30 April 2023; 4. A medical report of Dr Glenys Dore dated 27 March 2023.

Complaint 1

The Respondent has admitted Particulars 3b, 4a, 5, 9, 11a, 11b, 12, 13, 14, 15a and 15b (in effect) of Complaint 1. Those admissions were accompanied by brief explanations as to the omissions or failures in respect of Particulars 3b, 4a, 9, 12 and 13.
The thrust of the complaint, as so particularised and admitted, is that the Respondent was either late in submitting to the Council her ABT log for a relevant month, or failed to provide "evidence of practi[c]e" for that month.
The failures, therefore, concerned the failure on the part of the Respondent to provide proof to the Council of her compliance with Condition 6.
The Respondent states in her evidence, which was not challenged and which we accept, that the breaches of the conditions raised against her were inadvertent. She testified that she attempted to comply with the provisions of the Alcohol Screening Policies and did not fully appreciate the necessity for strict compliance.
On the evidence, and we find, the Respondent did attempt to comply with the onerous obligations of testing and reporting but did not do so in a thorough, timely or meticulous manner. So, for example, she submitted a log a day or days late, or submitted evidence to the wrong email address which, after correction, resulted in a much greater delay.
We also accept the Respondent's own categorisation of her conduct that she did not display a full appreciation of the necessity for strict compliance even after Condition 6 became a critical impairment condition under s 150FA of the National Law.

Disputed Non-Compliance with Conditions

In respect of Particular 1, the Respondent's answer is that, in effect, the non-compliance was only by one day. As a result, we find this particular proven but note that it cannot be said that the one day's delay in any way undermined the purpose of the testing regime.
The Respondent has denied Particular 2 and Particular 3a on the basis that on 7 November 2019 and 5 December 2019 she had forwarded to the Council by email the relevant ABT log and payslips but had done so to the wrong address, namely, to "newsletter@nursingandmidwiferycouncil.nsw.gov.au", which, once corrected, inevitably caused quite significant delay in the relevant material reaching the proper destination. We do, however, conclude that there was a failure on the part of the Respondent to comply with Condition 6 and accordingly, these particulars are proven. However, the Respondent was clearly attempting to comply with the condition.
In respect of Particular 3b, namely, the failure to undertake an ABT after finishing work on 18 November 2019, the only day upon which the Respondent worked at the university in that month, she states that her shift for the day was extended to do practical exams and that then there was no one available to do her breath testing, one of the requisites of the regime. That appears to indicate that the Respondent was not able to carry out the necessary testing and, in the circumstances, we are not prepared to find a breach of Particular 3b by reason of the unavailability of a verifier.
In respect of Particular 4, the Respondent explains that on 7 April 2020 she forwarded to the Council an email to which she believed she had attached her March 2020 ABT log and payslip, but was subsequently advised by the Council that there were apparently no attachments to the email. The Respondent then resent the documents under cover of another email dated 14 April 2020. The Respondent had been reminded by email of 19 March 2020 and letter from the Council to the effect that it was essential that she demonstrated strict compliance with all aspects of the Alcohol Screening Policy and Participant Procedure at all times and that her monthly log was due on the seventh day of each month.
The email of 7 April 2020 from the Respondent to the monitoring authority stated, amongst other things, "I am attaching the file for NMC and it contains: log for March ABT, timesheet for March from University and information regarding online tutoring from UOW."
The Commission argues that those attachments did not accompany the email at the time and it was only after the practitioner received a reminder on 9 April 2020 to that effect that she emailed the Council on 14 April 2020 with the March ABT log and timesheet.
Although, on a strict view, the Commission has established non-compliance with the seven-day requirement in the policies in respect of the March 2020 log, this appears to be very much a technical breach, an oversight by failing to attach the relevant documents to an email. In our view, the weight will we attach to this contravention in the overall broad evaluation of the seriousness of the non-compliance by the Respondent of her obligations takes into account the particular circumstances of this breach.
In relation to Particular 6 concerning the missing October 2020 log and payslip, the Respondent stated in her evidence that in October 2020 she did not do any lecturing. She was required to mark some examination papers at home and was, she stated, unaware that by doing so she was required to undertake ABT for marking examination papers at home. She stated that it was a matter later clarified by the Council.
The Commission points to evidence in support of this complaint to the effect that, on 16 October 2020, the Respondent received an email from the Council reminding her about the ABT process. That email dealt with what was said to be "discrepancies" in the August and September 2020 ABT.
On 26 October 2020, the Respondent called the representative of the Council to discuss a plan to reduce further issues with the ABT logs which appear to us to be attempts by the Respondent to ensure that she was complying with her responsibilities under the conditions.
It is important in this regard, in our view, to turn to the wording of the Participant Procedure and its terms in respect of when a practitioner needed to have a breath test. Clause 6.2 relevantly provides as follows: "You must breath-test before you start practice or attend clinical training at each of the following times: No more than 30 minutes before you start for the day; If you have taken a break of more than 30 minutes; No more than 30 minutes before you end the day …."
The Participant Procedure further notes that: "You must breath-test every time you practise or, in the case of a student, attending for training, including weekends and public holidays".
Neither the Alcohol Screening Policy, nor the Participant Procedure define "practice" or "practise".
It could not have been immediately apparent to the Respondent from this information that marking papers at home required breath testing. The Commission does not point to any evidence that she was squarely put on notice of this requirement prior to the exchange of emails with the Council's representative at the end of October 2020 when she was informed by email that, "If you are using your skills as a nurse to mark assignments, then ABT is still required."
The Respondent on 5 November 2020 advised the Council that she did not think she needed to do ABT when marking assignments as she was doing it at random times often in the evening.
The difficulties associated with the interpretation and application of the Council's policies were acknowledged by the Council's programme monitoring officer in an email of 27 November 2020 to the Respondent in which she stated: "I do acknowledge that the requirements for ABT when in non-clinical roles do not seem straightforward. I am in hopes that the definition used by the NMBA clarifies this. As you know, I am not a decision maker. I convey the registration requirements to you to ensure that you have the information to comply with your conditions. Any paid or unpaid work using your nursing qualifications requires ABT under the current policy."
In the circumstances, and absent clearer prior indication of precisely what was required when marking assignments, we are not prepared to find a breach in respect of Particular 6 for the October 2020 ABT log and supporting evidence. We also address the practical difficulties associated with this condition below.
Although the Respondent has not admitted Particular 7, we are satisfied on the evidence and find that there was a failure on her part to ensure that the ABT device that she was using, and required to use, was calibrated within the requisite six-monthly period as set out in the various policies.
In respect of the admitted non-compliance with Particular 9, the Respondent testified that, at the relevant time, her brother-in-law had been diagnosed with a serious medical condition and none of the other members of her family had any medical experience, so she and her husband travelled to where her brother-in-law was living to organise required care. She stated that unfortunately that was the reason for the six-day delay in submitting the March 2021 information to the Council.
Prior to this, the Respondent had, again, been reminded by the Council of the requirement to submit her log and "roster" by the seventh of the month. In this instance, Dr McLeod, on 18 March 2021, submitted the March 2021 ABT log in respect of his overseeing of the testing which had occurred.
In the end, in respect of the March 2021 material which was due on 7 April 2021, the Respondent submitted the relevant material on 13 April 2021 .
The Respondent admitted Particulars 11a and 11b, and was unable to provide any explanation for not providing the necessary evidence of her practice hours for June 2021.
In respect of Particular 12, the Respondent was not challenged in cross-examination, or otherwise, about her explanations about the circumstances giving rise to the 2-day delay as she was having trouble with her internet and, in the circumstances, we accept that there were reasonable exculpatory circumstances which diminish the Respondent's culpabilities in respect of this delay.
There is no evidence before us that there was any detriment to anyone as a result of this delay. The Respondent was not challenged as to the genuineness of the explanation, which we accept.
In our view, it cannot be reasonably argued that this breach in any material way undermined the efficacy of the testing programme which had been imposed on the Respondent.
In respect of the Respondent's explanation for her non-compliance with the submission of the August 2021 ABT log and evidence of practice, the subject of Particular 13, which was to the effect that she believed she had sent the documents earlier and had been unwell, but could not provide any corroborative evidence, the Respondent was not challenged in cross-examination about this explanation. The explanation is, however, of a very generalised kind and a 17-day delay appears to us not to have been acceptable.
The Respondent admits the complaint in respect of the September 2021 ABT log the subject of Particular 14. In evidence, the Respondent said that she believed she had not worked in September 2021 but conceded she was mistaken.
The Respondent also admits that she submitted her November 2021 ABT log two days late. The Respondent was not able to explain the reason in failing to submit to the Council evidence of practice for November 2021 at any time. Accordingly, Particulars 15a and 15b have been proven.
Dealing then with Particular 18, we note that there are two elements to this particular: non-attendance for reviews by the Council-appointed psychiatrist on two dates, and engaging "inconsistently" with her Council monitoring officer regarding rescheduling of appointments. The Commission points to the evidence that shows that from 3 September 2021, the first scheduled date for an assessment with Dr Dore who was appointed by the Council, to 19 January 2022, when the Respondent ultimately attended an assessment with Dr Dore, she did not attend two appointments and, it was said, engaged "inconsistently" with her monitoring officer.
On the evidence before us, the Council booked an appointment for a health review for the Respondent on 3 September 2021. The Respondent responded immediately to advise that the time nominated was when she was teaching.
As a result, on 30 September 2021, the appointment was rebooked by the Council for a new time, namely 28 October 2021. The Respondent replied on 7 October 2021 to advise that she was doing practical exams on that date. As a result, the Council requested her availability, which the Respondent provided on 24 October 2021, and also indicated that she had been very unwell.
As a result, each of the dates nominated were on days that the Respondent was required to perform work.
The Council appears to have accepted that these were legitimate reasons for not attending on booked appointments and did not insist that the Respondent attend on those days but made arrangements for a review by Dr Dore on 19 January 2022.
The Respondent did attend for a health review with Dr Dore on 19 January 2022 during semester break.
In our view, the evidence also does not establish that the Respondent engaged "inconsistently" with her monitoring officer regarding the rescheduling of appointments and there is no basis for a finding to that effect as alleged in Particular 18b.
In our view, the evidence which we have outlined above does not establish a "direction" by the Council to the Respondent to attend on any of the proposed dates but went no further than indicating that appointments had been made on the nominated dates, 3 September and 28 October 2021, and when the Respondent indicated her unavailability to attend because of work-related matters, the Council accommodated a change for the appointment dates.
In addition, a fair reading of Condition 11 indicates a flexible regime whereby the Council could "otherwise direct" the attendance at a review. In our view, the sequence of events outlined above falls more readily into the latter qualification in Condition 11, but no such direction was issued. Had a direction been issued and the Respondent failed to attend, the matter would be different.
In the circumstances, we are not satisfied that the Commission has met its onus in establishing a breach of Condition 11.
The question then is whether Complaint 1 has been established. In our view for the reasons set out above, including the admissions made, we find that Complaint 1 has been made out.
A breach of conditions is unsatisfactory professional conduct by reason of s 139B(1)(c) of the National Law. The Tribunal does not have a discretion to find otherwise: Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [22]-[27].
The complaint states that, "The conduct in any of the particulars in Complaint 1 are relied upon individually and cumulatively as amounting to unprofessional conduct". This allows a finding that the conduct as described in any one or more of the particulars may support a conclusion that Complaint 1 has been made out.
We accept that, cumulatively, the particulars that have been made out support a finding that the Respondent failed to comply with Condition 6 and, as a result, and as we point out above, that constitutes unsatisfactory professional conduct.

Professional Misconduct - Complaint 2

The Commission alleges in Complaint 2 that the Respondent is guilty of professional misconduct under s 139E of the National Law and relies in support of that complaint on "the evidence" for Complaint 1.
The Commission acknowledges that in order to support a finding of professional misconduct, which is merely a category of "unsatisfactory professional conduct", the conduct must be sufficiently serious to justify the suspension or cancellation of the practitioner's registration: Chen v Health Care Complaints Commission (2017) 95 NSWLR 335; [2017] NSWCA 186 at [10].
In support of Complaint 2, the Commission argues that: 1. Conditions must be scrupulously observed and it is essential to the smooth operation of the system of regulation and discipline that practitioners comply with conditions placed on their registration: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [74]. 2. The Respondent was well aware of the rationale for monitoring her alcohol use. 3. The Respondent was well aware of her obligation to submit her ABT log and payslip by the seventh of the month but did not do so 4. The oversight or failures as particularised were not of an isolated kind but occurred over a period of some three years. 5. The Respondent had only calibrated the relevant equipment 2-3 times and as result the Council could not verify whether it was functioning accurately all the time. 6. The Respondent did not treat her conditions seriously as evidenced by the multiple contraventions regarding late logs and late payslips. 7. The repeated contraventions regarding late or missing logs and payslips became more serious from 20 November 2020 (Particulars 9, 11, 12, 13, 14, and 15) because that is when Condition 6 became a critical impairment condition and that had been made clear to the Respondent by the Council. 8. The Respondent's conduct demonstrated a lack of insight into the need to act scrupulously. 9. The Commission further argued that the practical effect of the failures identified in Particular 6 was that the Respondent worked "without doing ABT". In response, the Respondent's counsel pointed to the fact that the only work done by the Respondent in October 2020 was marking some examination papers at home and at the time the Respondent did not understand that this required her to undertake testing, the matter only being clarified at a later stage, a matter we have dealt with above. Accordingly, we do not accept the Commission's submissions in this regard.
The submission by the Commission concerning the failures on the part of the Respondent in the face of the imposition of Condition 6 as a critical impairment condition does, in our view, point towards a finding of professional misconduct on the part of the Respondent. We have dealt with the circumstances or explanations in respect of some of those breaches above. Some explanation and mitigating factors were established in the evidence. Were it not for the fact that the Respondent made attempts to comply with her obligations, the Commission's submissions would have had greater force.
In our view, for the reasons set out concerning the particularised breaches, the evidence does not establish conduct which is sufficiently serious to justify suspension or cancellation.
As is apparent from our analysis above, a number of the failures were minor. The Commission accepted that to be the case, but emphasised the need to look at the cumulative effect of the failures. We have done so, but recognise that a large number of the particulars are concerned with omissions or failures in the course of attempting to meet the obligations within the seven-day time-frame provided for in Condition 6.
Further, this is not a case where the Respondent was simply ignoring the conditions but, and we find, was attempting to meet the obligations in Condition 6, albeit in a less than satisfactory, and in some circumstances, a casual way.
It is also relevant that the failures did not occur in respect of every month and that there are periods in which no complaint is made about the Respondent's complying with the testing regime.
The evidence also does not satisfy us that there were any adverse consequences for anyone as a result of the failures. In the majority of cases, the late provision of the material simply delayed the opportunity for the Council to verify the absence of alcohol use whilst the Respondent was lecturing or performing work for the university.
We accept that the Respondent's conduct demonstrated a lack of insight into the need to act scrupulously with regard to her professional obligations and to show proper respect for the requirements of the Council as contended for by the Commission. We also accept that the public has a right to expect that a registered nurse will strictly comply with any practice conditions imposed on his or her registration to ensure that they can practise safely.
However, the degree of non-compliance, in the circumstances, does not in our view justify a conclusion that the unsatisfactory professional conduct was sufficiently serious to justify suspension or cancellation.
In our view, the unsatisfactory professional conduct on the part of the Respondent as established in contravention of Condition 6 warrants the imposition of a reprimand.
In coming to this view, a much lesser penalty than was initially sought by the Commission, and now endorsed by the Tribunal, the Respondent should not take the view that conduct of the kind the subject of these proceedings is acceptable. The Respondent should also appreciate that further breaches of the conditions imposed on her registration are likely to have far more significant consequences for her in the future, both in respect of her registration as a practitioner, and in her work environment.
In our view, the Respondent should adopt a very strict approach to proper reporting and testing and if there is any omission, she should immediately contact the Council with a view to explaining the circumstances of the omission and making good and correcting the position.

Complaint 3

The Respondent has admitted that she has an impairment within the meaning of s 5 of the National Law that detrimentally affects or is likely to detrimentally affect her capacity to practise the profession of nursing.
The impairment (alcohol use disorder) has afflicted the Respondent for a number of years. Currently, the Respondent's condition is in remission. We note, however, that she continues to consume alcohol socially which may put her at risk of a relapse.
Notwithstanding the condition, Dr McLeod, who from early 2021 was authorised to supervise the Respondent's ABT testing, testified that he never saw any ABT levels other than 0.000gms/100ml. He also indicated he was more than happy to continue in his counselling role to assist the Respondent. That was the case notwithstanding the fact the Respondent disappointingly "disengaged" from him for periods between 2019 and 2021.
It is necessary for us to consider whether, and be satisfied, that the Respondent is currently impaired: see Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362 at [11].
The Respondent has admitted Complaint 3 and both Dr Dore and Dr McLeod, whose evidence on the issue we accept, have formed the professional opinion that the Respondent is currently impaired. We are satisfied that the Respondent is currently impaired within the meaning of s 5 of the National Law.

Protective Orders

The Commission is empowered under s 149A(1)(b) of the National Law to impose conditions that the Tribunal considers appropriate on the practitioner's registration.
Any conditions which the Tribunal regards as appropriate should be directed at the protective nature of the jurisdiction that the Tribunal now exercises.
Given the Respondent's failures in respect of complying with the conditions imposed on her registration, ongoing alcohol use and periods of not engaging in treatment, Dr Dore recommends the continued application of conditions.
The conditions which the Commission proposed by way of protective orders to the Tribunal to impose are as follows (Exhibit A8): "Practice Conditions Under section 149A(1)(b) of the Health Practitioner Regulation National Law, the Tribunal directs that the following Conditions be imposed on the Respondent's registration: 1. To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of conditions imposed, that the practitioner has provided a copy of full conditions to her nursing employer/s. 2. Within seven (7) days of a change in the nature or place of practice, the practitioner is to forward evidence to the Nursing and Midwifery Council of NSW that she has provided a copy of full conditions to the nursing employer/s. 3. To authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. She must only be employed as a nurse 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. 4. The practitioner is responsible for the costs associated with complying with the conditions unless otherwise specified. 5. Sections 125 to 127 of the Health Practitioner Regulation 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. 6. The appropriate review body for the purpose of a review under section 163 - 163C of the Health Practitioner Regulation National Law is the Nursing and Midwifery Council of NSW when the Respondent has a principal place of practice in NSW. 7. To comply with the Nursing and Midwifery Council of NSW's Alcohol Screening Policy and Participant Procedure: breath testing for alcohol (as varied from time to time). 8. The practitioner must undertake ABT in accordance with clause 6.2 of the Nursing and Midwifery Council of NSW - Participant Procedure: Breath Testing for alcohol when working in a capacity as a lecturer, including: a) teaching students whether in-person or online; b) undertaking work associated with teaching students whether that be on campus or off-campus. 9. Condition 8 is a critical compliance condition. 10. The practitioner must ensure strict compliance with clause 8.2 of the Nursing and Midwifery Council of NSW - Participate Procedure: Breath Testing for alcohol, with the following change: a) the practitioner must report to the Nursing and Midwifery Council within 7 days of the start of each calendar month, or upon receipt of her pay slip, whichever is first. 11. Condition 10 is a critical compliance condition. 12. To attend for treatment by a general practitioner of her choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any of the following: (i) failure to attend for treatment; (ii) termination of treatment; or (iii) a significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating practitioner/s. c. must provide evidence to the Council of her attendance with the treating practitioner, as specified by the Council. 13. To attend for treatment by a drug and alcohol specialist of her choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any of the following: (i) failure to attend for treatment; (ii) termination of treatment; or (iii) a significant change in health status (including a significant temporary change). (b) must provide the Council with the professional details of the treating practitioner/s. (c) must provide evidence to the Council of her attendance with the treating practitioner, as specified by the Council. 14. To attend for treatment by a psychologist of her choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a) is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any of the following: (i) failure to attend for treatment; (ii) termination of treatment; or (iii) a significant change in health status (including a significant temporary change). b) must provide the Council with the professional details of the treating practitioner/s. c) must provide evidence to the Council of her attendance with the treating practitioner, as specified by the Council." (original emphasis)
We are satisfied that it is appropriate to impose conditions on the Respondent's registration in this case.
Conditions must be clear and must be such as to operate in a practical and effective way. They should be such as to avoid, where possible, unintended breaches. Conditions should also, in our view, be such that they avoid a situation where non-compliance will almost certainly occur because of the particular nature of the practitioner's work, or the manner in which the conditions operate on the practitioner's work.
In that regard, Proposed Conditions 7 to 11 raised significant issues for our consideration.
On the evidence, the Respondent is a casual employee of the university and work is semester-based with breaks between semesters.
By its very nature, some of the work is off-campus and out of ordinary office hours. An amount of preparation must be carried out which does not necessarily occur on campus and, as the Respondent indicated in her evidence, marking assignments occur, from time to time, in the evening and during the Respondent's own time.
The evidence brought before the Tribunal in support of the alleged breach by reference to the conduct in Particular 6 illustrates the difficulties arising from the practitioner's working arrangements.
The Commission points to evidence that the Council took the view that ABT testing is required on the days the Respondent marks assignments. The Council seemed to support that interpretation of the policy by stating that its view of "practice" is in line with the Nursing and Midwifery Board of Australia definition (which we note, is not included in the Alcohol Testing Policy).
The effect of this approach appears to be that if the Respondent marks assignments on a weekday evening, or over a weekend when she is off-campus and not teaching, that for every period during which the marking occurs an ABT needs to be performed pre and post, and then verified by someone else who may, or may not be, available at those times. The same applies for any period that a practitioner prepares for teaching even though that preparation may not necessarily be paid for, or is paid for in a global sense and not for a particular hour on any particular day.
The practitioner is also under the policy required to provide proof for each period of marking.
As pointed out above, clause 8.2 of the Participant Procedure then requires evidence of those times that must be "verified and signed by your employer or accreditor". It is very difficult to see how such verification can be obtained for the type of off-campus work which a casual employee may perform from time to time in the situations outlined above.
We note that, despite these difficulties, the Respondent has sought to comply with the testing requirements since the demands of the Council were drawn to her attention, a matter which is to her credit.
It is also clear on the evidence that in respect of the ABT, there is no evidence that at any stage the Respondent was cognitively impaired as a result of the consumption of alcohol whilst attending for work on campus, a matter also recognised by Dr Dore, or for work performed off campus.
In September 2022 when Dr Dore conducted a further health assessment of the Respondent, she noted in her report that notwithstanding the difficulties in providing the relevant documentary evidence, the Respondent had not had a positive ABT result and there had been no concerns raised about her health and performance in the workplace. Dr Dore noted that whilst the Respondent met the definition of impairment as outlined in the National Law in the form of an alcohol use disorder, that disorder was in long-term remission and her practice was unlikely to be detrimentally affected unless she has a significant relapse to heavy drinking, of which there is currently no evidence before the Tribunal.
There is also no evidence which can satisfy us, or establish, that if the practitioner were to consume some alcohol before or during the marking of assignments, or preparing lectures or doing research, that there is a risk to students or the public at large.
We are of the view that Proposed Condition 8 deriving from an Alcohol Screening Policy of the Council appears to by a condition which is not suitable or appropriately tailored for the circumstances of the Respondent.
We are of the view that it is not appropriate to impose conditions which create the inevitable difficulties we identify above, and may result in inadvertent breaches.
In considering what is appropriate, we are also cognisant of the fact that the evidence before us, including evidence from Dr McLeod, is that others contributed to quite some degree to the non-compliance with some of the documentation and recording that was required under the policies.
Accordingly, we do not think it is appropriate to impose Proposed Conditions 8 or 10 and are not prepared to make any critical compliance conditions applicable.
Apart from the issues identified above concerning the application of the conditions to the type of work and working arrangements of the Respondent, the drastic effect of non-compliance with this testing regime, namely the cancellation of registration (National Law, s 149A(4)) for even a minor technical breach such as one days' delay, militate against the making of a critical compliance condition sought by the Commission.
Such an outcome is not warranted, in our view, in circumstances where the Respondent is not engaged in clinical work with patients and there is no evidence to establish that she has at any stage been cognitively impaired by reason of the consumption of alcohol in her current role.
That leaves Proposed Condition 7 which in our view gives rise to the same shortcomings that we have outlined above. It appears that this condition seeks to ensure compliance with the clauses of the Participant Procedure which do not take into account the specific circumstances of an academic practitioner at a university with a non-clinical teaching role. As we point out above, the imposition of a "standard" clause in the Participant Procedure is not appropriate for such a role.
In our view, it would be appropriate to impose Condition 7 in the following terms: "To comply with the Nursing and Midwifery Council of NSW's Alcohol Screening Policy and Participant Procedure (breath testing for alcohol) applicable at the time of these reasons with the qualification that whilst employed by a university they apply only in respect of work undertaken by the practitioner on campus of the university for which she is remunerated and that work associated with teaching students off-campus, not face to face or in a clinical setting, is excluded from the operation of the policy and procedure."

Costs

The Commission seeks an order that the Respondent pay the Commission's costs as agreed or assessed. In our view, that is an appropriate order following the general rule that costs of proceedings before the Tribunal should follow the event, and there was no disentitling conduct by the Commission to warrant, in our view, a departure from the general rule.

Orders 1. The Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the Health Practitioner Regulation National Law (NSW) in that the Respondent contravened the condition to which the practitioner's registration was subject. 2. Pursuant to s 149A(1) of the Health Practitioner Regulation National Law (NSW), the Respondent is reprimanded for the unsatisfactory professional conduct referred to in Order 1. 3. The Tribunal imposes the conditions set out in Schedule A to these reasons pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW). 4. The Respondent is to pay the Commission's costs as agreed or assessed. 5. The publication or broadcast of the medical reports of Dr F McLeod dated 30 April 2023, of Dr G Dore dated 27 March 2023, and all evidence concerning the contents of those reports is prohibited pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW). 6. The publication of the health conditions imposed by the Tribunal on the Respondent's registration as a nurse is prohibited pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW).

Schedule A Conditions Under section 149A(1)(b) of the Health Practitioner Regulation National Law (NSW), the Tribunal directs that the following Conditions be imposed on the Respondent's registration: (1) To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of conditions imposed, that the practitioner has provided a copy of full conditions to her nursing employer/s. (2) Within seven (7) days of a change in the nature or place of practice, the practitioner is to forward evidence to the Nursing and Midwifery Council of NSW that she has provided a copy of full conditions to the nursing employer/s. (3) To authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. She must only be employed as a nurse 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. (4) The practitioner is responsible for the costs associated with complying with the conditions unless otherwise specified. (5) Sections 125 to 127 of the Health Practitioner Regulation 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. (6) The appropriate review body for the purpose of a review under section 163 - 163C of the Health Practitioner Regulation National Law is the Nursing and Midwifery Council of NSW when the Respondent has a principal place of practice in NSW. (7) To comply with the Nursing and Midwifery Council of NSW's Alcohol Screening Policy and Participant Procedure (breath testing for alcohol) applicable at the time of these reasons with the qualification that whilst employed by a university they apply only in respect of work undertaken by the practitioner on campus of the university for which she is remunerated and that work associated with teaching students off-campus, not face to face or in a clinical setting, is excluded from the operation of the policy and procedure. (8) [NOT FOR PUBLICATION] (9) [NOT FOR PUBLICATION] (10) [NOT FOR PUBLICATION] 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: 24 July 2023

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)