Health Care Complaints Commission v Borg [2020] NSWCATOD 141 | Case summary

NCAT Occupational|2020-10-30

l judgment Parties: Health Care Complaints Commission (Applicant) Susan Mary Borg (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Self-Represented (Respondent) File Number(s): 2020/00142233 Publication restriction: Nil

REASONS FOR DECISION

The reasons for the complaint brought by the Applicant appear from the Complaint lodged with the Tribunal under Case No. 2020/00142233 which appears from an Amended Complaint lodged with the Tribunal and dated 24 July 2020.

COMPLAINT COMPLAINT ONE A The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the National Law in that the practitioner has contravened condition/s to which the practitioner's registration was subject. BACKGROUND TO COMPLAINT ONE A The practitioner completed a Certificate IV in Nursing in 2004 and a Bachelor of Nursing in 2008. The practitioner was first registered as an enrolled nurse in 2005 and was first registered as a registered nurse in 2008. Between 22 November 2017 and 29 May 2018, the practitioner's registration was subject to conditions imposed under the National Law including: Condition 6 When the registrant's principal place of practice is in New South Wales the registrant must not self‑administer the following substances, except as provided for in clause (c) and (d) below ...: (b) any substance detailed in Schedule 1 of the Drug Misuse Trafficking Act 1985 ... Between 30 May 2018 and 2 June 2019, the practitioner's registration was subject to conditions imposed under the National Law including: Condition 9 When the registrant's principal place of practice is in New South Wales the registrant must not self-administer the following substances, except as provided for in clause (c) and (d) below ...: (b) any substance detailed in Schedule 1 of the Drug Misuse Trafficking Act 1985 ... Condition 10 The registrant must attend random urine drug testing when practising as a nurse. The drug testing is to be in strict accordance with the policy of the Nursing and Midwifery Council of New South Wales. Results must be forwarded to the Council and treating medical practitioner/s. PARTICULARS OF COMPLAINT ONE A 1. On about 25 November 2017, the practitioner contravened condition 6 in that she self-administered methamphetamine, which is a drug of addiction listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985; 2. On 23 April 2019, the practitioner contravened condition 10 in that she failed to attend for urine drug testing; 3. On about 26 April 2019, the practitioner contravened condition 9 in that she self-administered amphetamine and/or methamphetamine, which are each drugs of addiction listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985; 4. On 9 May 2019, the practitioner contravened condition 10 in that she failed to attend for urine drug testing; 5. On about 10 May 2019, the practitioner contravened condition 9 in that she self-administered amphetamine and/or methamphetamine, which are each drugs of addiction listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985. COMPLAINT ONE B The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the National Law in that the practitioner has contravened condition/s to which the practitioner's registration was subject. BACKGROUND TO COMPLAINT ONE B The practitioner completed a Certificate IV in Nursing in 2004 and a Bachelor of Nursing in 2008. The practitioner was first registered as an enrolled nurse in 2005 and was first registered as a registered nurse in 2008. Between 2 June 2019 and 12 August 2019, the practitioner's registration was subject to the following critical impairment conditions imposed under section 150FA of the National Law: Condition 12 Not to self-administer any drug of addiction/restricted substances or any substance listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) unless on the prescription of a registered health practitioner who is authorised to prescribe that substance. Within seven (7) days of being prescribed such substance or drug by her treating practitioner, the practitioner must: (a) notify the Nursing and Midwifery Council of NSW; and (b) provide written confirmation to the Council of such treatment including, the relevant copy prescription or direction from the treating practitioner. Condition 13 To comply with the Nursing and Midwifery Council of NSW's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: (a) urine drug screening commencing at Group Two; and (b) hair drug screening at a quarterly frequency, or as directed by the Council. PARTICULARS OF COMPLAINT ONE B 1. On 8 July 2019, the practitioner contravened critical impairment condition 13 in that she failed to attend for urine drug testing; 2. On 29 July 2019, the practitioner contravened critical impairment condition 13 in that she failed to attend for urine drug testing; 3. On about 30 July 2019, the practitioner contravened critical impairment condition 12 in that she self-administered amphetamine and/or self-administered methamphetamine, which are each drugs of addiction listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985; 4. On about 1 August 2019, the practitioner contravened critical impairment condition 12 in that she self-administered amphetamine, which is a drug of addiction listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985; 5. On about 6 August 2019, the practitioner contravened critical impairment condition 12 in that she self-administered amphetamine and/or self-administered methamphetamine, which are each drugs of addiction listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has engaged in improper and/or unethical conduct relating to the practice of nursing. BACKGROUND TO COMPLAINT TWO As for Complaints One A and B. PARTICULARS OF COMPLAINT TWO 1. At about 4:34pm on 29 July 2019, the practitioner provided false and/or misleading information to the Nursing and Midwifery Council of NSW (Council) regarding the reason for her failure to attend urine drug testing that morning in circumstances where: (a) The practitioner said words to the effect that she did attend testing that morning because her car broke down and she had to get a taxi to work; (b) The practitioner said words to the effect that she did not attend testing at lunch time because the distance was too far; (c) The practitioner said words to the effect that she did not make a phone call to the Council earlier due to her work environment; (d) The above statements were false and/or misleading in that the practitioner failed to attend urine drug testing that morning and failed to make a phone call to the Council earlier because she had previously self-administered amphetamine and/or methamphetamine and suspected that a urine drug result would be positive. COMPLAINT THREE The practitioner 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, and/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 BACKGROUND TO COMPLAINT THREE As for Complaints One A and B. PARTICULAR OF COMPLAINT THREE 1. Complaints One A, One B and Two, and the particulars thereof, are relied upon individually and cumulatively. COMPLAINT FOUR Pursuant to section 144(d) of the National Law, the practitioner has an impairment within the meaning of section 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. PARTICULAR OF COMPLAINT FOUR 1. The practitioner suffers from: a. anxiety; b. a depressive condition; and/or c. a problem with stimulant misuse or similar condition. COMPLAINT FIVE Pursuant to section 144(c) of the National Law, the practitioner is not competent within the meaning of section 139(a) of the National Law in that she lacks the mental or physical capacity to practise as a nurse. PARTICULARS OF COMPLAINT FIVE 1. The practitioner has the impairment/s particularised in Complaint Four above; and 2. The practitioner's impairment/s are of a sufficient nature and degree to impair the practitioner's physical and mental capacity to practise nursing.

NATURE OF THE JURISDICTION

The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and to maintain proper standards in the profession of nursing and midwifery.
In Clyne v NSW Bar Association [1960] HCA 40 at 201‑202, the High Court said: "Although it is sometimes referred to as the penalty of disbarment it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view for the protection of those who require protection and from the professional point of view in order that abuse of privilege may not lead to loss of privilege."
As observed by Beston JA in Prakash v Health Care Complaints Commission [2006] NSW CA 153 at [91]: "The purpose of any order consequent upon a finding that a complaint has been proved is said to be protected [sic] of the interests of the public at large but more particularly patients or potential patients of the Practitioner concerned. However, the public interests include indirectly the standing of the medical profession and the maintenance of public confidence in the high standards … of Practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other Practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards, be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s3AS of the National Law."

THE ISSUES

In essence, therefore, the issues which arise relate to whether or not the Respondent: 1. self‑administered methamphetamine drugs; 2. breached conditions imposed on her by the Nursing and Midwifery Council of New South Wales; and 3. provided false and/or misleading information to the Nursing and Midwifery Council of New South Wales.
The Respondent has an impairment within the meaning of s5 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. The Tribunal was provided with a bundle of documents containing Tab 1 to Tab 46 ("Exhibit 1") and a bundle of documents provided by the Applicant marked #2, 3, 4 and 5.
In addition, the Applicant handed to the Tribunal an Agreed Statement of Facts which was agreed to by the Respondent and which is set out below.
Having regard to the admissions made by the Respondent as set out above, the only real issue for determination by the Tribunal is whether the Respondent has an impairment which prevents her from working as a registered nurse and whether her past breaches of the National Law in respect of self‑administration of scheduled drugs constitutes unsatisfactory professional conduct and professional misconduct.

EVIDENCE OF THE APPLICANT

The Applicant in Exhibit 1 provided a series of reports by Dr Anthony Samuels, a consultant psychiatrist, relating to the assessment which he conducted at the request of the Applicant into the mental capacity or impairment of the Respondent. Exhibit 1 contains a series of responses over a long period of time. The report of significance to the Tribunal is a report dated 2 September 2020 provided to the Tribunal and the Respondent and relating to a health assessment conducted on the Respondent on 2 September 2020.
In this report, Dr Samuels states the following: 81. I saw Miss Borg today via Skype. There was good audio and video quality. 82. I explained to Miss Borg that I would be preparing a report for the Health Care Complaints Commission in regard to her application for re-registration and the hearing at NCAT. She indicated she understood this and gave me verbal permission to proceed with a psychiatric assessment and preparation of a report. HISTORY FROM SUSAN MARY BORG 97 Miss Borg and I discussed that I had last seen her in September 2019. She had been suspended the month before. She said she had not practised since and she is not doing any kind of work. She is on Centrelink benefits. She is trying to find various jobs. Psychosocial Situation 98. Miss Borg was born on 29 September 1984. She is 35 years of age. 99. Miss Borg is living in Horsley, in a new place with a friend. She split up from her partner, David, in November or December. She said she just was not happy and felt it was better for her. They are now more amicable and see each other from time to time. 100. Miss Borg's parents are in Port Stephens, her brother is in Sydney and her sister in Canberra. Both siblings are older than she and they have regular contact. Miss Borg's father has kidney failure and is on the transplant list. Her mother is in good health and will come to visit next month. 101. The person Miss Borg is staying with she met through rehabilitation and she has another good friend, Brett, who is a support. She has some other contacts through Kedesh. She is not in a relationship. Her mood has been quite low so she has not been doing much. Drug and Alcohol Issues 102. Miss Borg said she is abstinent now but it has been on and off since she left Kedesh. She said that the Tribunal has made things "disheartening". She said she last used in August 2020 and then later she said her last use was in July 2020. She said she did not use when she was in Kedesh and she found it helpful. I asked Miss Borg what was good about Kedesh and she said, "You learn strategies to cope and understand why you use. They're good supports, the staff are caring." 103. I asked Miss Borg if she was committed to going back to nursing and pointed out that getting on top of her substance misuse issues was critical, and she seemed to be ambivalent about this. She said, "I do, but at times I feel like I can't. I'm just trying to be honest." 104. Miss Borg said she is not drinking alcohol. She smokes 10 cigarettes per day. She is not using marijuana and she denied any prescription drug use. 105. She said she was receiving some follow up from a counsellor at Kedesh but because of the coronavirus that stopped, but the group has restarted and Miss Borg said she will re‑engage. She is no longer under Illawarra Drug & Alcohol Service because the counsellor said she can only see one person. She has not seen Dr Sinclair since last year because she cannot afford to. General Health Issues 106. Miss Borg said her general health is good. She is on the Pill. She sees Dr Clarkson but not often. She said she is not on Valdoxan. Occupational Issues 107. Miss Borg said the job at Wollongong Hospital is still open to her. She liked the ward and they were supportive. She would like to go back there, it was a general medical ward, but she is not sure whether they will take her back or not. Current Symptoms 108. She said her mood is a bit low and that it usually is in winter. Her sleep is fine, her appetite is fine and her weight is stable. She denied suicidal ideation. She said she does have some anxiety generalised in nature. There are no panic attacks. She denied mood elevation and she denied psychotic symptoms. 109. I asked Miss Borg what she did when she had a craving and she said she can call the staff at Kedesh or use music, phone other supports or go for a walk. 110. I asked her when she does lapse, what goes wrong. She said, "It's mainly due to the Tribunal. I feel like I'll never get back there again." 111. I pointed out to Miss Borg that I had reviewed my reports and in almost all of them she had agreed with me that if she had future lapses, this could lead to deregistration, yet she continually seemed to undermine any progress she made. At this point Miss Borg became quite tearful and left the interview for a few moments. When she returned, I asked her if she had any thoughts about what went wrong and she was unable to say anything. I pointed out to her that if she was going to convince the Tribunal that she was safe to practise, she would need to think more deeply about this. 112. I asked Miss Borg about other stressors. She said she is looking at work and trying to figure out what she will do if she does not do nursing. I asked her if there were any positive things happening and she said she is much happier where she lives. Forensic History 113. As noted above, there have been at least three alcohol or drug driving offences in recent years. Mental Status Examination 114. Miss Borg was well presented, her affect was flat, she was tearful and her mood was dysthymic. She denied sleep or appetite disturbance. She acknowledged anxiety. She denied psychotic symptoms. 115. I asked Miss Borg about treatment plans and she said she will try to re-engage with Kedesh but she cannot afford to see a psychiatrist. Current Functioning 116. Miss Borg said she is not doing much because her mood has been low. She does some housework, she goes for a walk daily and she is trying to look for work. She will re-engage with a support group. She said her housemate has been busy and they have not seen much of each other. Miss Borg does socialise with someone called Brett and she occasionally sees her ex-partner and things are more amicable now. She talks to her family and her mother is going to visit in the next month. OPINION Psychiatric Issues 117. Susan Borg is a 35 year old Registered Nurse who has had conditions imposed under the impairment provisions of the Councils' health program since 24 July 2017. These were modified and became more stringent over time because of lapses and missed testing. Following further lapses on 12 August 2019, a condition was placed on Miss Borg's registration not to work as a Registered Nurse until reviewed by the Nursing and Midwifery Council of NSW. 118. Since that time, Miss Borg has not engaged in any form of work. She has been in a rehabilitation program at Kedesh House between December 2019 and March 2020. There was use of methylamphetamine from September 2019 until she entered Kedesh House where, according to her self-report and it seems confirmation from urine testing, there was a period of abstinence. Since leaving Kedesh House, Miss Borg is vague about her drug use but acknowledged having further lapses into methylamphetamine use in the context of stress which she attributes to the Tribunal proceedings. Miss Borg told me that she had last used methylamphetamine in August this year but later in the interview said that she had not used methylamphetamine at all during the month of August. 119. When I last saw Miss Borg in September 2019, she was quite flat and depressed in the context of having her nursing registration suspended. Her mood state remains very low, it seems she is not doing very much with her day and this may be in part due to the COVID-19 restrictions. She said that she has been seeking work but it seems not very actively and she still would like to return to her previous role at Wollongong Hospital in a general medical ward. 120. Unfortunately, since leaving the Kedesh program, Miss Borg has had very limited follow up in terms of Drug & Alcohol services. She has occasional contact with her GP. She has been off antidepressant medication. A letter written by Dr Clarkson on 10 November 2019 does not confirm whether or not Miss Borg was still on Valdoxan at that time. 121. Miss Borg has not been attending any support groups but says that now the Kedesh support group has started again, she will start attending. She is unable to give a very clear explanation for her relapses, which she essentially attributes to the stress put upon her by the Tribunal and the Nursing Council. 122. In the assessment today, I attempted to explore with Miss Borg why, despite acknowledging in all of the assessments that I have conducted with her further positive urine drug tests would jeopardise her registration and that remaining abstinent was critical, she really demonstrates very little understanding or insight into why these relapses continue to occur and have ultimately led to her suspension. 123. It is very positive that Miss Borg has been through the Kedesh program, although the fact that she has continued to use methylamphetamine intermittently is concerning and the fact that she is really not engaged in any regular or formal treatment further adds to these concerns. 124. Her mood state is low and in my view she should be receiving more assertive psychiatric and psychological treatment and she probably should be back on some form of antidepressant-type medication. 125. Miss Borg continues to suffer from an impairment within the meaning of the National Law; namely a Mood Disorder and a relapsing substance misuse problem involving methylamphetamine. These conditions do have the potential to impact upon her professional functioning. 126. In the absence of better engagement with treating practitioners, more insight into her substance misuse issues, more evidence of commitment to abstinence, support from her treating practitioners that she is ready to return to work, and improvement in her mood symptoms, I would not see her as being ready to return to a nursing role even with conditions. 127. In terms of Miss Borg's drug offending history, she was pulled over for random drug tests on 1 January 2017 and on 8 April 2017 and there was a third offence on 25 November 2017. Answers to questions posed. 1. What drug use, if any, has Miss Borg engaged in since 17 September 2019, including the nature and extent of any use of illicit drugs, prescription drugs and alcohol and the length of any periods of abstinence? 128. Miss Borg said that between September and December 2019 she cannot remember how much she was using but perhaps a couple of times per week. She said she was using ICE (she is not sure of the dollar amount). She denied use of alcohol or any other illicit substances or prescription drugs. 129. She said she did not use between December 2019 and March 2020 whilst in Kedesh at all. She said between March and August there were, "a couple of lapses but not as much as before". It was hard to get her to be specific. 130. Miss Borg told me her last use was the end of July which contradicted what she said earlier but she reiterated she had now not used ICE for a month. 2. What drug and alcohol treatment, if any has Miss Borg engaged in since 17 September 2019, including any support groups, rehabilitation programs, residential programs, psychological support and drug and alcohol counselling? 131. She did attend Kedesh Inpatient Rehabilitation Program between December 2019 and March 2020. She had some brief follow up with them but then because of the coronavirus that stopped. She has not re-engaged with Illawarra Drug & Alcohol Service and she has not seen Dr Sinclair, her Drug & Alcohol psychiatrist. She said she will re-engage with Kedesh because they are starting their programs again and she will attend a weekly support group. 3. What medical treatment, if any, has Miss Borg received since 17 September 2019, including any current medication/s and any current treating doctors and psychiatrists. 132. She was vague about when she stopped Valdoxan but it seems she has not been on Valdoxan since at least the beginning of this year. 4. Does Miss Borg currently suffer from any physical or mental condition and, if so, please explain the symptoms, diagnosis and prognosis. 133. Miss Borg does seem to be quite depressed at the present time and I would regard her as meeting criteria for Major Depression and she has an ongoing problem of stimulant misuse involving methylamphetamine. She says she has not used for the last month. Miss Borg has a very long history of a relapsing mood disorder and stimulant abuse problem and her prognosis is guarded. 5. Does Miss Borg currently suffer any impairment within the meaning of the National Law (a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect her capacity to practise nursing) and, if so, please explain the nature of the impairment and how the impairment affects or is likely to affect her capacity to practise nursing? 134. Miss Borg does suffer from an impairment within the meaning of the National Law; namely a Mood Disorder with features of Major Depression and a problem of Stimulant Abuse involving methylamphetamine. She currently presents as quite depressed, she says she has not used any methylamphetamine for a month. These conditions do have the potential to impact upon her professional functioning. 6. What employment, if any, has Miss Borg undertaken since 17 September 2019 and what are the responsibilities for her role/s? 135. She has not worked since then. 7. Is Miss Borg currently competent to practise nursing and if not, explain why. 136. In my view Miss Borg is not currently competent to practise nursing. Whilst it is commendable that she has been through a drug rehabilitation program, I remain concerned that she seems to have little insight into the factors that lead to relapses and there is no clear plan in place to prevent this happening in the future. She is not currently engaged with Drug & Alcohol Services, she is not on any medication for her depression, she is currently quite significantly depressed and the fact that she blames her ongoing relapses on the stress of having to appear before the Tribunal seems to underscore that she does not really have a good understanding of why she is in her current position. Until Miss Borg's mood state is improved, until she is well engaged with treating practitioners, until her treating practitioners are satisfied that she is ready to return to a nursing role, and until there is clear evidence of a sustained remission from methylamphetamine, I do not consider her competent to practise as a nurse. 8. What plans, if any, does Miss Borg have for working as a nurse or in a nursing-related role in the future, including any plans to apply for certain roles or undertake certain training and/or education? 137. Miss Borg is quite uncertain about this. She thinks she would like to go back to the general medical ward where she was working at Wollongong Hospital if they will have her back. 9. What conditions, if any, should be imposed on Miss Borg's registration, including any conditions to limit certain nursing roles/responsibilities, restrict access to certain medications, undergo certain medical/psychiatric treatment/counselling, be subject to mentoring/supervision, complete certain education/training and/or be subject to hair/urine drug/alcohol testing? 138. At this stage I think it is premature to consider what conditions would be appropriate. Her mental health needs to stabilise, her substance misuse needs to be in a sustained remission and she needs to have clear support from treating practitioners, regular engagement with them, she should attend support groups, and she should have consistently negative urine and hair tests for at least a 6 month period. Miss Borg should have a clearly defined nursing role to which she intends to return to and the capacity for well organised supervision, oversight and monitoring in the workplace, and if she does return to work it should be on a part-time basis and she should probably initially work during the day where the shifts are better staffed and there is better capacity for monitoring.
In evidence before the Tribunal, Dr Samuels confirmed the opinion which he expressed in the report of 2 September 2020. He stated that he didn't believe that the Respondent has insight and that she was taking responsibility for her actions. He also expressed concern that as at September, the Respondent had not been having any treatment, that she has an impairment and is not being treated for it. He confirmed that in his view at this time the Respondent is not ready to return to nursing. On cross‑examination, the Respondent asked Dr Samuels what factors he considers in deciding the frequency of testing to which he replied that any number of factors are taken into account and it depends on relapses etc. to decide.
He was asked whether the fact the panel did not make a decision to increase the level of testing particularly as she was happy to increase the level of testing, he indicated that he could not possibly say that because the responsibility is hers and not the panel's. In re‑examination by the Applicant, the Respondent advised that the program at Kedesh was going to resume and that she would be going to Kedesh but in response to a question about attending a psychologist, the Respondent indicated that she cannot afford a psychologist. The Respondent indicated that she had tried to get to see a psychiatrist in the public system but that was not possible unless what she needed was medication. Dr Samuels did indicate that there are a number of avenues to access psychological and psychiatric assistance through the public system and that that should be available to the Respondent.
The Tribunal put various questions to Dr Samuels. Dr Samuels indicated that in order to demonstrate competence to work as a nurse, the Respondent needs to take responsibility for why she has had lapses and how she is managing her impairment.
There needs to be clear evidence that she is getting treatment, that she gets positive results from her treating professionals, negative test results etc. before Dr Samuels thinks that she has the capacity to work as a nurse.
In response to questions by the Tribunal as to the significant discussions about mental health status, Dr Samuels indicated that all of the mental health issues that the Respondent has go hand in hand. She has significant mental health and substance abuse problems. Dr Samuels believes that she has a dual problem and she requires a comprehensive approach to treatment.
Finally, the Respondent put to Dr Samuels a question as to whether he thinks that her anxiety and depression could be substantially contributed to by the fact that she is not working. She stated that she has been better when working. Dr Samuels indicated that he understands the stress that arises from not working and the Tribunal etc. but until one treats the underlying problems it is not possible to believe that she is competent to be working. He pointed out that the Respondent has had quite significant emotional and substance abuse issues over many years. It should be a trigger for "what am I going to do about it". Finally, Dr Samuels indicated that he believes that there will be a time when the Respondent is able to return to work but it will take a lot of hard work to resolve the underlying problems and to overcome the substance abuse.
That completed the evidence of Dr Samuels. He was released and the Applicant closed its case.

EVIDENCE OF THE RESPONDENT

The Respondent opened her case and, the difference between her giving evidence from the bar table or under oath or affirmation having been explained to the Respondent, the Respondent indicated that she was happy to affirm and did so. The Respondent provided the response to the complaint and indicated that the only addition she needed to make to her response was to point out that the suspension by Kedesh of the weekly meetings due to COVID was a contributing factor to her relapses.
The Respondent's response to the complaint is set out below. I admit that my behaviour at times has been unsatisfactory and I am truly sorry for this. I have detailed my response to each part of the complaint and any action I have taken to address my issues. Particulars of complaint 1 A On the 26 April 2019 I breached my conditions by testing positive after using methamphetamine on the 25 April 2019. There were multiple factors which led to this including my father being diagnosed with kidney failure and likely to need dialysis/transplant, impaired judgement after consuming some alcohol, and running into an old contact while out. It was not a planned or premeditated event, it was a momentary lapse in judgement due to unforeseen circumstances, and I am truly sorry that it occurred. Prior to this I had been doing extremely well, having been clean for 16 months. Following the lapse on 25 April 2019, an onset of cravings began that I was not expecting, nor was I prepared for. This led to a second lapse on the 6 May 2019 and subsequently testing positive on 10 May 2019, and the particulars of complaint 1B. Particulars 2 and 4 were both notified absences and were not a breach of my conditions at the time. Particulars of complaint 1 B In respect to the particulars of 1B, I admit them to be the truth. All I can say is that I am sorry and am deeply regretful of my behaviour at the time. And while I can only take full responsibility for my actions I feel that had my offer to attend urine drug testing more frequently been put in place by the Impaired Registrants Panel that I attended on the 21 May 2019, that I would not be facing this tribunal. I stated that I was prepared to attend urine testing on set days at least twice weekly, as I think this added level of support being in place in a time when I was vulnerable in the early days post two lapses after a long period of abstinence would have been extremely beneficial to my ability to maintain ongoing sobriety. The IRP however deemed that an increase in testing frequency was not necessary, and felt the randomised regime I had been on up to that point was adequate. My response to the breaches detailed in 1B was to enter into a residential rehabilitation program, at Kedesh in Berkeley, and I have provided a copy of the completion certificate. Attending cognitive behavioural therapy and dialectical behavioural therapy groups at Kedesh has greatly increased my knowledge and insight into drug taking behaviours. I learnt about the use of alternative coping strategies to regulate emotions. Whilst at Kedesh I also began attending Narcotics Anonymous meetings. I found these beneficial in that I had an increased sense of connection and support. Unfortunately, in my final week at Kedesh they were stopped due to the management of COVID with restrictions on public gatherings of people, as was Aftercare at Kedesh. Since this time Aftercare has restarted a few months ago and I now attend weekly. Aftercare is a support group for people currently at Kedesh for rehabilitation, and those who are back in the community. Here we discuss our week and challenges we have faced and how they have been managed, and generally give each other support and encouragement. When the group is finished everyone has lunch together, and then I see counsellor for a one to one check in and further support. As I have previously discussed with Dr Samuels I have been unable to afford to see a psychiatrist with my current limited financial standings. In an attempt to work within my means to put something in place of this my GP has written me a mental health care plan so that I can access 6 free sessions with a psychologist. I am attaching a copy of this for your reference. Complaint 2 I admit to deliberately delaying notifying the Council in a desperate attempt to avoid testing positive. I voluntarily disclosed this information to the HCCC when I was making my submissions for them to consider when they were deciding what action to take as an outcome of the Councils complaint that I had breached critical impairment conditions. The reason I gave this information is because I wanted to take responsibility and be accountable for my behaviour, by being honest with myself, and others. Complaint 3 I started nursing 17 years ago, when I enrolled in the Certificate IV of nursing. After finishing high school, I had no idea what I wanted to do. My mother, who was also a Registered Nurse, suggested that I try Enrolled Nursing. After completing my training, I began working on a general surgical ward in Westmead Private hospital. Although I enjoyed the work, I often found myself frustrated in situations where due to the limitations of my scope of practice as an Enrolled Nurse, I was unable to respond to an individual's needs independently. This is the reason I decided to become a Registered Nurse, and I flourished in the role. For the first time in my life I was able to be confident in myself and that I was great at doing my job. I have always worked to deliver the highest standard of care possible in respect to my clinical skills and knowledge and am very passionate about nursing. After entering the Nursing Councils monitoring and compliance program, and with ongoing engagement in treatment I was clean for 16 months before having a lapse on 25 April 2019. Following this were further instances of use over the next three and a half months, leading to the suspension of my registration in August 2019. Whilst in the monitoring program I provided 29 urine drug specimens and 24 of those were clean with no drugs detected. Complaint 4 While it is true that I have previously suffered anxiety and depressive condition, they are normal reactive emotions to situations I have encountered such as finding out that my complaint was going to be referred to go before a tribunal, with the proposed action of deregistering me. Along with stimulant misuse, they are all conditions which are treatable and can be managed to minimise any possible risk that it could detrimentally affect a person's capacity to practice nursing. I have been able to successfully complete my certificate IV in nursing and a Bachelor of Nursing with credit. Nor have these conditions ever impacted my ability to safely practice as a nurse. I am aware that if left untreated stimulant misuse could have the potential to affect my ability to practice, but again with treatment and monitoring, I believe that I can make a full recovery. I understand that I have had some significant setbacks in my progress with the events from the end of April 2019 to August 2019, but unfortunately that is the nature of addiction. There are ups and down, and there is no simple procedure to follow for a cure. It is very rare for an individual with an addiction to achieve recovery on the first attempt, and with each attempt comes a better knowledge of how this can be achieved successfully next time. Recovery is a long journey, different for every individual. I understand that as a nurse, I am going to be held to a higher level of accountability, but apart from being a nurse I am a human being, and I still make mistakes sometimes. I am more than prepared to commit to doing whatever it takes and engage in any treatment necessary for me to make my recovery so that I may one day practise as a Registered Nurse again. Complaint 5 My response to this complaint is that there is no evidence to indicate that I lack the mental capacity to be a competent nurse. There have never been any concerns around my clinical practice as a Registered Nurse, as supported by numerous exhibits in the HCCC's brief. It is noted in "s150 reasons for decisions" 24 July 2017 on page 4 that the Council asked Leanne Mills if there had ever been any reports or concerns around my clinical practice, to which she replied no. Additionally, there are four supervisor reports assessing my clinical practice as a Registered Nurse while I was in the Monitoring Program and had the impairments detailed in complaint 4. All these reports are positive, with nil performance or clinical practice issues. In every report I have independently and consistently met the 7 standards of clinical practice for a Registered Nurse, and I have been noted to demonstrate extended knowledge and skills. The report dated 21 June 2019 is in tab 12, exhibit 13. Reports dated 17 December 2018 and 3 May 2019 are in tab 31, and report dated 13 September 2018 is in tab 46. I understand that this does not mean my behaviour in using drugs was acceptable, and I accept that I need ongoing treatment. I do however believe that it demonstrates that anxiety, depression and stimulant misuse have not detrimentally affected my capacity to practice nursing competently.
The Respondent was then cross‑examined. The Respondent was referred to the first incident where she was pulled over for failing to wear a seatbelt while driving which led to her being referred to Merit and advised Merit that she started use of meth at about age 30. She indicated that she told them that she had started using daily about two years before the referral to Merit. She was asked whether she had not sought any treatment before that and she indicated that that was the case. Questioning about whether she advised the Council at the s150 hearing of the fact that she had been using drugs and that that had been ongoing for some time, she indicated that she had. She was referred to the fact that she saw Dr Samuels about that time and was asked whether she knew why. She indicated that she knew it was for a health assessment because she had been suspended. She was asked whether she told Dr Samuels the truth and indicated that she did. She advised Dr Samuels that she did not want to jeopardise her job by keeping on doing that.
The cross‑examination continued to reflect on the fact that within two days of conditions being imposed on her registration that she not self‑administer any drugs, she used drugs on 25 November 2017. She agreed with this. It was put to her that there was nothing to show that her taking of drugs had ended, she answered that it was her understanding that as her registration had been suspended and that as she wasn't practising at the time it was OK for her to continue. A large part of the cross‑examination centred around her interviews and examinations with Dr Samuels and, in particular, reference was made to an attendance on 4 April 2018 when she told Dr Samuels that she had not used ICE for four months and it was put to her that that wasn't correct. She responded that she had had two lapses and that was then corrected in November 2018. The Respondent was then referred to multiple instances of where she failed to comply with conditions and where she failed to be totally truthful about her then current use of drugs.
The cross‑examination then continued to the time when the Respondent had had her conditions changed to being critical conditions and the fact that she had still not complied with those conditions when they were critical conditions. The Respondent was asked whether when she used drugs in August of 2019 and did she know that she was breaking critical conditions. She admitted that she did know that and was asked whether she tried to control the urge and not use. She stated that she did to some extent.
The cross‑examination turned to efforts made by the Respondent to seek and obtain the appropriate treatment which had been advised for her. The appropriate treatment was extensive involving psychiatrists, psychologists, GP and attendance at various aiding institutions. In particular, it was pointed out to the Respondent that she had not seen Dr Clarkson since 2019 and only saw her two days before the hearing. She agreed that that was possible and it was put to her that it is fair to say that she hasn't engaged fully with her treatment for anxiety. She tried to explain that the COVID restrictions came along and made it more difficult to do the various things that needed to be done. She indicated that after she left Kedesh her support network collapsed during COVID. She was asked whether she could have done more, to which she responded that it is difficult because you cannot just talk to anyone. She stated that it makes her stressed to talk about her addiction. Kedesh indicated that they were going to try to set up telephone consultations but could only see one counsellor at a time. She indicated that she finds it difficult to deal with and she didn't want to talk about it. She indicated that she did not know many addicts who succeeded on the first go and stated that it is really difficult, the situation is very stressful.
When put to her that going back to work after such a long period of time would in itself be stressful, she indicated that she had asked to move away from oncology which is very stressful and that she would want to go to a general medical ward which is less stressful. Dr Samuels indicated that he had the impression that she was ambivalent about going back to nursing, to which she responded that she really enjoys nursing and is good at her work. It is just not knowing what is going to happen to her that is causing some ambivalence about going back to work but rather the uncertainty of the outcome of this hearing.
On re‑examination, the Respondent stated that in regard to 25 November 2017, when her registration was suspended, she was not allowed to go back to work and that she had to engage in treatment. She understood that she was not registered and that she could not go to work. When she was told that, she got really stressed and that is when she took ICE. She stated that the reality of addiction is that it is not black and white, there are no rules. It is different for every person. Often people can talk themselves into addiction. She indicated that she had not been going to rehab when she did that and has learnt a lot since going to rehab and even though she has had a few lapses, she believes that she has learnt. She indicated that she did not want to be deregistered, she knows that it would need time and treatment before she can go back to work.
The Respondent was asked various questions by the Tribunal. She was asked to explain whether she had an understanding of the seriousness of her predicament to which she responded that she realises that she may not be able to get back to nursing but the staff at Kedesh helped her to accept her predicament. She is now able to tell people who ask her why she is not working and she is able to say that she failed a drug test. She states that she learnt that at Kedesh. She states that the reason she wanted fixed testing times was because she believes it would work better if she had fixed testing.
The Tribunal concentrated most of its questioning on the insight of the Respondent into her behaviour and the seriousness of that behaviour. It also addressed the approach demonstrated by the Respondent in regard to the necessary treatment and reference was made to the need for her to take medication for her anxiety. She indicated that she prefers other treatment but feels that she has no alternative but to take the medication. She indicated that she has had bad reaction to some of the medications and with some of them she could not cope. She informed the Tribunal that she is currently not using the necessary medication to deal with anxiety and stress. In response, she indicated that she can deal with anxiety unless everything comes together as a stress then it is difficult.
The Tribunal was interested to understand what efforts the Respondent had made when COVID lockdowns arose and when the meetings at Kedesh would be restarted. Kedesh had restarted for some months and in that timeframe the Respondent had only been to meetings four times in total. She was asked why she did not go every week and explained various reasons in regard to her failure to go every week. Questions were put to her as to her understanding of the word "insight". She stated that it means that she cannot use drugs, that if committed to something and she does not do it, then that is a lack of insight. Understanding how addiction works and how to adjust one's behaviour to stop doing it. She stated that she has been in denial but now she thinks that she has learnt that if this happened it is her own fault.
In response to a question as to how she proposed to go forward, she indicated that she had spoken to some people who she met at rehab and that Kedesh might be able to help. She proposed to talk to them and will have to take multiple steps to try and get all the treatment that she requires. She will also try to find a bulk billing psychiatrist and will try to establish counselling with a Kedesh person. She indicated that she can talk to her GP and ask for alternative treatment for depression.
The Respondent did not intend and did not call any further witnesses and the case was closed.

AGREED FACTS

The parties provided the Tribunal with Agreed Facts as follows: 1. On 4 April 2005, Susan Mary Borg ("the respondent") was first registered as an enrolled nurse. 2. On 11 January 2008, the respondent was first registered as a registered nurse. 3. On 26 June 2017, the respondent was assessed for the Magistrates Early Referral into Treatment program to treat her drug use. Her entry into the program was self‑initiated. 4. On 13 July 2017, the respondent informed the Nursing and Midwifery Council of NSW ("the Council") that she had been charged with driving with the presence of an illicit substance in her system, that being methamphetamine. 5. On 24 July 2017, the Council conducted a hearing under section 150 of the National Law. 6. On 24 July 2017, conditions were imposed on the respondent's registration, including that she must attend for hair drug testing as directed and scheduled by the Council. 7. Hair testing revealed the presence of tramadol, amphetamine and methamphetamine for the approximate period 1 June 2017 to 1 September 2017. The presence of tramadol was due to the fact that the respondent had been given a prescription by a doctor to treat severe nerve pain caused by impacted wisdom teeth. 8. On 12 October 2017, the respondent attended an assessment with Dr Samuels. The respondent told Dr Samuels that she would go a number of days without using ICE and was probably using "half a point" once per week. 9. On 22 November 2017, conditions were imposed on the respondent's registration, including condition 6: When the registrant's principal place of practice is in New South Wales the registrant must not self‑administer the following substances, except as provided for in clause (c) and (d) below...: (b) any substance detailed in Schedule 1 of the Drug Misuse Trafficking Act 1985 10. On 25 November 2017, the respondent was pulled over by police for a random breath test and tested positive for methylamphetamine (complaint 1A, particular 1). At the time the respondent had conditions on her registration including that she was not able to work as a Registered Nurse. The respondent self‑administered methylamphetamine on or about that date. 11. On 4 April 2018, the respondent attended an assessment with Dr Samuels. The respondent told Dr Samuels that she had not used ICE for four months 12. On 30 May 2018, conditions were imposed on the respondent's registration, including conditions 9 and 10: 9. When the registrant's principal place of practice is in New South Wales the registrant must not self‑administer the following substances, except as provided for in clause (c) and (d) below ...: (b) any substance detailed in Schedule 1 of the Drug Misuse Trafficking Act 1985 ... 10. The registrant must attend random urine drug testing when practising as a nurse. The drug testing is to be in strict accordance with the policy of the Nursing and Midwifery Council of New South Wales. Results must be forwarded to the Council and treating medical practitioner/s. 13. On 1 November 2018, the respondent attended an assessment with Dr Samuels. The respondent told Dr Samuels that she had used ICE in February 2018 and April 2018 but none since then. 14. On 11 April 2019, the respondent did not attend urinalysis. 15. On 26 April 2019, the respondent tested positive to Amphetamine, Methamphetamine Drugs, Amphetamine Type Substances (complaint 1A, particular 3). The respondent self-administered ICE on 25 April 2019 (Anzac Day), explanation provided. 16. On 10 May 2019, the respondent tested positive to Amphetamine, Methamphetamine Drugs, Amphetamine Type Substances (complaint 1A, particular 5). The respondent self-administered ICE on the 6 May. The respondent worked at Wollongong Hospital on the 10 May. 17. On 3 June 2019, conditions were imposed on the respondent's registration, including conditions 12 and 13: 12. Not to self-administer any drug of addiction/restricted substances or any substance listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) unless on the prescription of a registered health practitioner who is authorised to prescribe that substance. Within seven (7) days of being prescribed such substance or drug by her treating practitioner, the practitioner must: a. notify the Nursing and Midwifery Council of NSW, and b. provide written confirmation to the Council of such treatment including, the relevant copy prescription or direction from the treating practitioner. 13. To comply with the Nursing and Midwifery Council of NSW's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: a. urine drug screening commencing at Group Two b. hair drug screening at a quarterly frequency, or as directed by the Council. 18. On 19, 20 and 21 June 2019, the respondent did not attend urinalysis. On the 19 June the respondent advised that her pay had not gone into her account on time and therefore had been unable to pay for testing that day. On the 20 June the respondent was unwell with abdominal pain and frequent bowel motions and provided a medical certificate as evidence. On the 21 June the respondent attended for testing but was unable to pass enough urine to provide an adequate sample, supporting evidence provided by collector from Laverty pathology. The respondent attended for make-up testing on Monday 24 June. 19. On 21 June 2019, the Council emailed the respondent to remind her that urine drug testing is a Critical Compliance condition. 20. On 8 July 2019, the respondent did not attend urinalysis (Complaint 1B, particular 1). The respondent stated she had worked an evening shift the day before finishing 10pm and then a morning shift that day start 7am, she had slept in and was running late for work and forgot to call the testing line that day. Explanation provided by email. 21. On 26 July 2019, the respondent self-administered ICE. 22. On 29 July 2019, the respondent did not attend urinalysis (Complaint 1B, particular 2). The respondent deliberately delayed notifying the Council on that day as she knew that the test would be positive given that she had consumed some ICE on 26 July 2019 and she was hoping to avoid being tested. 23. On 30 July 2019, the respondent tested positive to amphetamine, methamphetamine and amphetamine type substances (Complaint 1B, particular 3). She attended for testing that day knowing that the test would still be positive due to using on the 26 July. The respondent worked at Wollongong Hospital on the 30 July. 24. On 1 August 2019, the respondent tested positive to amphetamine (Complaint 1B, particular 4). The respondent self-administered amphetamine on or about that date. 25. On 6 August 2019, the respondent tested positive to amphetamine, methamphetamine and amphetamine type substances (Complaint 1B, particular 5). The respondent self-administered amphetamine and/or methamphetamine on or about that date. 26. On 12 August 2019, the Council conducted a hearing under section 150 of the National Law. The respondent told the delegates that she last used ICE on 26 July 2019. 27. On 12 August 2019, conditions were imposed on the respondent's registration including that she must not work as a registered nurse until reviewed by the Council. 28. On 17 September 2019, the respondent attended an assessment with Dr Samuels. The respondent told Dr Samuels that she had used ICE three weeks ago. 29. On 2 September 2020, the respondent attended an assessment with Dr Samuels. The respondent told Dr Samuels that she had used ICE in July or August 2020.

RESPONDENT'S SUBMISSIONS

The Respondent was given time to provide written submissions which are set out below: Complaint One A - breach of conditions Particular 1: Contravening condition 6 by self-administering methamphetamine on or about the 25 November 2017 1. I admit to self-administering methamphetamine on or about the 25 November 2017. 2. I ask the tribunal to consider two factors in relation to this evidence. The first condition in place on my registration at the time was that I was not to work as a Registered nurse, nor is this listed as a breach of my conditions by the Nursing Council. As I was not allowed to work at the time, there was no risk to the public. Secondly, this occurred at the onset of my entry into the monitoring program, and at this point I was not yet fully engaged in treatment. 3. It is true that I signed the conditions and therefore was aware of them. I would think that an Impaired Registrants Panel, one of whom specialises in addiction, puts such conditions as one and six simultaneously on a practitioner's registration because they understand that it takes time and ongoing treatment for a practitioner to achieve. I do not think they expect that someone with substance misuse is able to immediately stop using because it is written down on paper. They put other conditions which served the purpose of ensuring that I would engage in comprehensive treatment for my stimulant misuse and enable me to get well enough to return to work. 4. I would like to address the comments made by Ms Bayley on the 30 October 2020 in regard to the oral evidence given by me on the day prior, that being the 29 October. She stated that I "appeared to blame the solicitor" and that her direction that I should resign "caused me to relapse", and further submits that this shows my lack of insight. This is not what I meant at all and I submit that the Commission is twisting my words to support their case. The reason why I stated what I had been told by my solicitor at the time, was to put the situation around my use on or about the 25 November 2017 into context for the benefit of the tribunal. I also spoke about how strong emotional responses can be a trigger, as was the case here. I understand that I am responsible for managing these triggers using healthy coping strategies. For example, at Kedesh I learnt that when I find myself in extreme emotional situations, or "flipping the lid", once my emotions go above 8 out of 10 I will not be able to think rationally or logically. In order to decide not to use, I must first bring my emotional response level down to 7 or less. An example of a technique I can use to do this is paced breathing, whereby you take slow deep breaths, breathing out more slowly than you breathe in, such as 5 seconds in and 7 seconds out. This stimulates the vegas nerve, which activates the parasympathetic nervous system, and enables the body to return to a more relaxed and restful state. I will then be in a position where I can consider the situation and think logically and use healthy coping strategies such as making a pros and cons list or consequential thinking. Particular 2: Contravening condition 10 by failing to attend urinalysis on 23 April 2019 5. I would like the tribunal to dismiss particular 2, as it was not a breach of conditions. The evidence that supports this is that I did notify the Council that I had not attended testing that day as I was unwell. 6. The evidence relied upon by Ms Bayley here is a letter sent to me by the Council stating that there was a breach of my conditions due to missing uds results from the 23 April 2019, asking me to provide a written explanation. When I received this letter I called Alison Tankard and advised her that I had spoken to her colleague that day and told her that I had not attended. Alison stated that she had no documentation about this, but would have a look. She called me back shortly to say she had located the missing documentation. I make note of this in my written response to the Council addressing the missing results from the 23 April 2019, in the first paragraph. 7. The Council file note dated 23 April 2019 is the record made by the staff member I spoke to when I called to advise I hadn't attended testing. The staff member states she asked me to send an email to the monitoring unit advising them of the situation when I felt better, which I did. 8. Based on the above facts and evidence I ask the tribunal to dismiss particular 2 of complaint 1A, being that it was not a breach in my conditions at the time and was resolved as such by the Council. Particular 3: Contravening condition 9 by self-administering methamphetamine on 25 April 2019 9. I admit to taking methamphetamine on 25 April 2019. 10. On 25 April 2019 I had my first lapse after returning to work under the supervision of the monitoring program, and prior to this I had been abstinent from drugs for more than one year. The event that triggered me to use on this occasion was finding out that my father was seriously ill with kidney failure and was being prepared for dialysis and assessed if suitable to be placed on the transplant list. At the time I received the phone call with this news I was at the club and had consumed a few alcoholic drinks. I found myself in a highly emotional state and was not able to modify my habitual behaviour activated in response to these situations, and I lapsed. Other factors that contributed to this occurring was that my judgement was impaired by alcohol and I ran into a person that I associated with drug taking behaviour. Particular 4: Contravening condition 10 by failing to attend urinalysis on 9 May 2019 11. I ask the tribunal to dismiss particular 4 as I did attend Dapto Laverty on the 9 May 2019 as per testing requirements. 12. On this day, after collecting the sample I accidently dropped it in the toilet. I stayed at the facility until 6pm when it closed and had two further attempts to provide a second sample but was unable. 13. At this time, it was too late to call Alison to notify her. As I had already paid for testing, I arranged with the collector to return the next day to complete the sample collection. 14. When I spoke to the Council the next day they asked me to get a letter from the pathology collector to confirm the events, which I provided. 15. In regard to Ms Bayley's speculation that I may have dropped the sample on purpose, it is not true and there is no evidence to support it. 16. Based on the facts and evidence above I ask the tribunal to dismiss particular 4 as it was not a breach of my conditions. By the time I realised that I was unable to provide a sample on the 9 May it was not possible to notify the Council due to the fact they were no longer at work. There were no reasonable steps or actions I could have taken at the time to change the outcome, and I followed the policy. Particular 5: Contravening condition 9 by self-administering methamphetamine around the 10 May 2019 17. I admit to taking a small amount of methamphetamine on the 6 May 2019. This was my second lapse after being abstinent for over a year. 18. After the initial lapse on Anzac Day I began to experience cravings and urges that I was unprepared for. This led to further lapses and resultant breaching in conditions over the next few months, and ultimately the suspension of my registration in August 2019. Complaint One B - breach of critical compliance conditions 19. I admit to contravening critical compliance conditions by failing to attend for testing on 8 and 29 July 2019, and by self‑administering methamphetamine around 30 July 2019, and 1 and 6 August 2019. 20. I am sincerely sorry that I self-administered ice on the dates detailed in complaint 1A and 1B, and that I did not attend testing on the 8 July 2019 and 29 July 2019. Unfortunately, I cannot change what has been, so I am doing the only thing I can, learning from my mistakes and taking action to stop it from happening in the future. Attending Kedesh rehabilitation has given me the skills and knowledge so that I can be prepared to manage high risk situations without lapsing. 21. In rehabilitation I learnt a number of techniques that I can use to be prepared to deal with high risk situations. I now have a written list that details the pros and cons of acting on versus resisting crisis urges and have identified the pros and cons that are short-term (just for today) or long-term (beyond today). I put this list in my wallet and take it with me at all times. When I find myself in a high-risk situation, I get the list out and read it. I then imagine the positive consequences of resisting the urge, such as keeping myself well and giving myself the opportunity to work as a nurse again. I then think of the negative consequences of giving in to crisis behaviours, such as I will be breaching the conditions on my registration and l will not be able to work as a nurse. Finally, I ask myself would I rather have a good day or a good life? It helps me to remember past consequences of acting on crisis urges and puts things into perspective so that I can manage the situation without substance use. After this I call one of my support people, who include my parents and brother or sister, and Collene for extra support. If I am not able to get in touch with any of them, or if it is late at night, then I know I am able to contact and talk to any of the staff at Kedesh who are available 24/7. 22. In my initial response to the complaint by the HCCC I stated that had my offer to attend urine testing on set days at least twice weekly to the panel been put in place that it may prevented my having further lapses and thus breaching the critical compliance conditions. I also provided some oral submissions in response to Ms Bayley's cross examination of this on the 29 October 2020. 23. My oral submissions included a statement to the effect of I knew that it would not work out favourably if I was to continue randomised testing, I knew to myself I should have been more assertive and spoken up, maybe it could have changed the whole outcome for me. Ms Bayley addressed these comments on the 30 October 2020 and her interpretation put to the tribunal was that I meant the panel had made a mistake, and that this showed a lack of insight as the complaint was about breaches in my condition. This is a completely inaccurate representation of my evidence and the manner in which it was intended. I would like to explain to the tribunal the context of these statements and submit that it actually demonstrates that I possess insight, rather than lack it. The particulars of 1B, as I am aware are about my breaches of critical compliance conditions. In my initial response to the complaint I admitted that the breaches detailed in 1B had occurred. I then talked about my offer to attend increased testing at least twice weekly on fixed days, and how I felt that if implemented could have changed the outcome for me and prevented the further instances of breaches in complaint 1B. This was my thoughts on reflection of the matter, and what I could have done differently to achieve a better outcome. Ms Bayley asserts that I meant the panel made a mistake, but this is not correct. The context of this evidence is that I knew to myself at the time that continuing randomised urine drug testing would lead to self-sabotage in thinking that I could use at certain times and avoid detection. My proposal to increase the frequency of testing to fixed days twice weekly was to ensure that there was no opportunity provided to escape detection by testing every third or fourth day. I strongly believe that this added support would have been beneficial to me and prevented further lapses. However, at the time of the IRP in May 2019 I failed to effectively communicate this reasoning to the panel. I believe that had I been more assertive by clearly stating my reasons for wanting a twice weekly fixed testing regime, that it would have led the panel to a different decision about the testing frequency I required at the time, and given me the support that I needed for an ongoing abstinence from drug use. 24. To clarify Ms Bayley's confusion as to why this point was included in my response to complaint 1B, it demonstrates my insight into the situation. It shows that I can now look back and identify what went wrong, and how I could have handled it differently to achieve the desired outcome, that being no further episodes of drug use. I then proceeded to detail my response and management of the breaches, those being increasing my knowledge of addiction and learning healthy coping strategies to use when I am confronted with triggers. Attending Kedesh rehabilitation has significantly developed my level of self-awareness, and knowledge of distress tolerance and relapse prevention, mood management, self-identity, and relationships. These are further steps that I have taken so that I can manage triggering events in a healthy manner rather than using drugs. This was to demonstrate that I recognise that breaches of my conditions are not acceptable and that I needed to look at what changes I could make to my management to facilitate this. 25. I will now address Ms Bayley's observations around the questions I asked Dr Samuels about the panel's decision in relation to the frequency of urine testing. I was attempting to establish support around my statement that an increased testing frequency of at least twice weekly fixed day testing would have made a difference, by showing the factors that determine the decision making process and why they are important. Understandably at the time I felt quite stressed following Ms Bayley's examination of Dr Samuels and due to representing myself. As a result, I became flustered and lost direction as to the purposes of my line of questioning. I can only hope that the tribunal makes allowances for this and imagine it would not be an uncommon occurrence with many practitioners choosing to self-represent in matters being dealt with before a tribunal. Complaint Two: false/misleading information 26. I admit to misleading the council on the 29 July 2019. It was true that my car had broken down and I caught a taxi to work that day, and had I been required to catch a taxi to Laverty from the hospital and back it would have been an expense I could not have afforded. However, I left it till late in the afternoon to inform the Council as I was hoping to avoid being tested as I knew it would be positive. 27. I freely gave this information to the HCCC because I realised that misleading the Council by delaying notification had been an error in judgement, and it is behaviour that is out of character for me. I ask that the tribunal take this into consideration when determining if this makes me guilty of unsatisfactory professional conduct. 28. I note the several examples listed by Ms Bayley in paragraph 21 of her submissions of the Health Care Complaints Commission, to support a finding of improper/unethical conduct in the case against me. These references list cases where there was an established pattern of dishonest behaviour on multiple occasions. For example, HCCC vs Cakan [2018] NSWCATOD 5 at [136], there are 9 occasions of providing untruthful information and 21 instances of improper and unethical conduct. In HCCC vs Ashford [2015] NSWCATOD 15 at [26], the complainant lied to the Council and hospital about misappropriating S8 medications, and falsely stated it had been disposed of, as well as providing medical certificate based on false information. I ask the tribunal to find that they are not comparable to my case and therefore should not be used as a reference point to determine if I am guilty. Complaint Three: Professional Misconduct 29. I understand that this complaint relies cumulatively on the particulars of complaints 1a and 1b, and 2. 30. In complaint 1a, the first particular is about a breach of my conditions on 25 November 2017, this is at the outset of process and I had not yet fully engaged in treatment and was not able to practice at the time. 31. Particulars 2 and 4 of complaint 1a are not breaches. 32. Particular 3 and 5 are about breaching my conditions on the 25 April and 10 May 2019, which I admit to. 33. I admit to the particulars of complaint 1b. I would ask that the Tribunal consider that four of the particulars in 1b occurred within a period of one week, and as such would ask, they be considered collectively as one occasion. 34. I ask the Tribunal to realise that these breaches were not examples of wilful behaviour. These stemmed from stimulant misuse and I did not have the skills to put plans in place to stop them from happening. I am deeply regretful of my behaviour at that time and I understand that it cannot continue. I have now learnt skills and tools with which I can effectively plan and manage high risk situations in the future to stop any further breaches occurring. 35. Complaint 2, that I misled the Council by delaying notification I admit to. I ask the Tribunal to see that it was a one-time occurrence that was out of character for me, and that I realised it to be an error in judgement and provided this information freely to the HCCC because of this. 36. I ask that the Tribunal also consider that I achieved a period of more than one year abstinent from drugs and was compliant with the conditions on my registration from the period of December 2017 until the 25 April 2019. 37. Given the factors and evidence in my final submissions for complaint 3, I would ask the Tribunal to find that I am not guilty of professional misconduct. Complaint 4: Impairment 38. I admit that I have an impairment, that being stimulant misuse. Complaint 5: Competency 39. Literature documents a close relationship between impairment and competence, in that a finding of impairment may lead to a finding of lack of competence, but this is not necessarily the case, particularly where the impairment is of such a nature that it is likely to detrimentally affect a practitioner's capacity to practise. (See Tung v HCCC [2011] NSWCA 219 at [23]; HCCC v Bainbridge [2018] NSWCATOD 169 at [25]; HCCC v Bousfield [2014] NSWCATOD 57 at [216].) In the report written by Dr Samuels; I draw the Tribunals attention to his response to question 5 asked by the HCCC at 134. When asked to explain how my impairment affects or is likely to affect my capacity to practise nursing, he states these conditions do have the potential to impact on her functioning. This is a statement of futurity, reflecting 'is likely to' in the definition of impairment. 40. HCCC v Bousfield [2014] NSWCATOD 57 at [217] states whether or not impairment will lead to a lack of competence depends on such considerations as the nature and likely duration of the impairment, kind of practise carried out by practitioner, the degree to which the impairment interferes with a practitioner's judgement, communication skills and clinical ability. Tung v HCCC [2011] also makes a statement to this effect at [56]. 41. As previously stated in my initial response to the complaint against me by the HCCC, there are no concerns about my clinical skills, abilities or practice in general, and I have consistently met the 7 standards of practice for a Registered Nurse as per the supervision reports from Wollongong Hospital. 42. Ms Bayley lists a number of examples that she submits are evidence that I failed to effectively engage in treatment, a few of which I would like to address. She states that although I completed MERIT voluntarily, I was still using methamphetamine after completion. While this may be true it should not be used as a measure of my engagement in treatment. I achieved a significant reduction in my drug use by the end of MERIT, and this is reflected in the final MERIT report. 43. Ms Bayley in her cross examination of myself on the 29 October 2020, drew attention to the fact that some of my appointments had been cancelled or rescheduled around a date that I had seen the Impaired Registrant Panel. She inferred that this my doing, which is not true. After this I called the Illawarra Drug and Alcohol service and asked them about printed attendance reports and whether a record of cancellation or rescheduled appointments was due to myself or the service, to which they replied both. The service cancels appointments when the counsellor is sick or has other engagements. 44. Paragraphs 39 and 40 of Ms Bayley's submissions propose that my stimulant misuse and anxiety was prompted by stressors from my work as a nurse, however all of the evidence referred to here is from around 2016, at which time I worked on the haematology/oncology ward. It is true that my working there often left me stressed and burnt out, but when I returned to work in August 2018, Wollongong hospital ensured that I was placed in a very supportive environment, and this was on a general medical, gastrointestinal ward. The ward was much less acute than haematology and I was rarely confronted with death or grieving families. I found the workload far more manageable and was no longer taking stress from work home with me, and I am sure that I regularly conveyed this information to Dr Samuels when I attended my health assessments with him. The hospital supported me and effectively eliminated the stressors I had previously encountered. As a result, I was punctual to shifts, did not have excessive sick leave, and there were no panic attacks. 45. In Dr Samuels report of my health in September 2020, in preparation for this tribunal, the HCCC has asked if I am currently competent to practise nursing and if not why, at paragraph 136. He identifies concerns that I seemed to have little insight into the factors that lead to relapses and that there was no clear plan in place to prevent this from happening in the future. I submit to the tribunal that on the day of the assessment I became highly distressed, and was unable to think clearly enough to provide much information in the way of answers, and therefore this is not an accurate assessment of these concerns. I am confident that the information contained in this document will serve to demonstrate that I do in fact have a great deal of insight into the factors that lead to relapse, and as detailed in paragraph 21 of this document, I also have a clear plan in place to prevent this from happening in the future. 46. I understand and accept that if I am going to practice as a Registered Nurse that ongoing stimulant misuse would not be acceptable, and I feel that I now possess the tools and skills to achieve ongoing abstinence. 47. During my cross examination of Dr Samuels on the 29 October 2020, I asked his opinion as to whether I could be assessed as competent to practice after a period of six months, provided that during this time I engaged in treatment with a counsellor in the Stimulant Treatment Program, my GP, and a psychiatrist, and was abstinent from drug use, evidenced by clean uds results and hair testing. Dr Samuels' oral evidence in response to this was that he that I would be assessed as competent at this time if I met these conditions. Based on this expert witness testimony I would say to the Tribunal that this meets the basis for a period of suspension to be ordered as I would be fit to practise after the expiration of a six month period. It also demonstrates that there is an alternate action to my deregistration, which applies to the situation. Findings 48. I submit that having regard to the evidence, the Tribunal should find that of complaint 1a, particular two and four are not breaches and are therefore disproven. The breaches in complaint 1a of particular three and five, and those in complaint 1b, I concede to, and understand that they are instances of unsatisfactory professional conduct. I ask the Tribunal to consider complaint 2 as out of character and find that the breaches together do not amount to a finding of professional misconduct. I trust that the Tribunal will exert its disciplinary powers in a decision that will be relative to the facts and evidence before it. I understand that with my admission there will be a finding of impairment. In consideration of my insight, remorse and actions taken to address the substance misuse from which the breaches arose, and the lack of any clearly defined evidence, or specific examples, of a lack of competence to practice other than by basis of impairment, I submit that the Tribunal should not make a finding of lack of competence. Protective Orders The proposed action that I would like the Tribunal to consider is an order of suspension of my registration for six months, during which time: a. I will attend for regular urine drug screening tests as directed, the results of which will be confirmed by hair testing at the end of the period. I will submit a financial hardship application with the Nursing Council to help me pay for the costs of this. b. I will engage in treatment with a GP, psychiatrist, and counsellor in the Stimulant Treatment Program, and attend appointments at frequency dictated by the treating practitioners. In working towards this I have made an appointment with my GP Dr Clarkson for Friday 13 November 2020 at 1030hrs. I have also re-established contact with the Stimulant Treatment Program, and have had an intake assessment attended, and booked an appointment with a counsellor Lisa on Monday 23 November, 2020 at 1500hrs. Unfortunately I will not be able to see my previous counsellor Samantha Stipjevic as she is currently on maternity leave. During my counsellor appointment I will follow the advice of Dr Samuels and request a review by a doctor specialising in addiction and ask if they are able to see me on an ongoing basis, or failing this facilitate referral to a psychiatrist that could bulk bill my appointments. If this is unsuccessful, I will arrange referral to a psychiatrist through Kedesh and pay a gap of $50 per appointment. In the meantime, I will see the psychologist via the mental health care plan as referred by my GP. I spoke to them on the phone and they advised me that they will contact me to make the first appointment and this would be within a fortnight of them receiving my referral. c. Have a clear plan in place for prevention of lapses. I have detailed this plan in paragraph 21 of this document. d. Attend NA meetings weekly. I have now found a location in Unanderra that is still facilitating meetings in person at the Community Centre, and I attended on Monday 9 November 2020. e. Attend aftercare groups at Kedesh weekly. f. At the end of the 6 month period attend health assessment with Dr Samuels to assess my readiness to return to practise. g. When assessed as ready to return to work, have strict conditions on my registration and attend urine drug testing at 3x per week initially to ensure continued abstinence, and protection of the public. The relevant principles here include: • Dr Samuels expert testimony as explained in paragraph 47 of this document, that gives a specific time frame of six months that, provided I remain committed to treatment and am abstinent, at its expiration I would be fit to practice. I am committed to doing whatever it takes to return to nursing and I have a clear management plan in place to prevent further lapses. I have attended rehabilitation and now have the knowledge and skills to enable me to be successful in managing high-risk situations without stimulant misuse. I ask that the Tribunal consider the remorse and insight demonstrated by me, and I submit that an order of suspension for a six-month period is indicated as being appropriate to the situation (Lindsay v HCCC [2010] NSWCA 194 at [144]). Costs I would like to ask the Tribunal to determine that each party be liable for covering their own costs, particularly in view of the fact that any instances of unsatisfactory conduct by myself were not wilful or calculated behaviour, and stemmed from an impairment of stimulant misuse. Given my current financials, it will be difficult although possible to engage with treating practitioners, and I would be unable to cover costs of the commission. In the event that the Tribunal finds that I should be responsible for the costs, I will discuss with Ms Bayley and try to reach an amount that we both agreed to prior to her deadline for submitting her final responses, and will ask that she would include it in her documents to be submitted on the 17 November 2020.

APPLICANT'S SUBMISSIONS IN REPLY

The Applicant provided submissions in reply which are set out in full below. Introduction 1. The Commission relies on the submissions filed on 30 October 2020. The Commission makes the following submissions in reply to the practitioner's submissions filed on 11 November 2020. 2. In response to paragraph 4, the Commission submits that there is evidence that the practitioner attempted to shift blame to her former solicitor: a. "I am writing this letter to address my conduct in November 2017, which has brought me before the court. ...On 16/11/2017, I attended a meeting with the IRP ...When I left the meeting my lawyer with the union who was present for my support advised me that it was in my best interests to hand in my resignation at work as I would be better off resigning than getting fired. At this point I truly did feel as though I had lost everything and would never be a nurse again. ...The next couple of weeks I was a mess and found myself using methamphetamine on a few occasions, as I struggled to deal with everything going wrong." b. "My union representative advised me that it would be in my best interests to hand in my resignation." c. "She advised me best course was to resign before I got fired. I thought I was never going to be a nurse again when I left that day. That caused me to lapse." 3. In response to paragraph 6, the practitioner did not attend urinalysis on 23 April 2019 and provided late notice (she telephoned the Council at about 3:32pm on 23 April 2019 then sent an email at about 9:22pm on 23 April 2019). 4. In response to paragraph 23, the Commission submits that there is evidence that the practitioner attempted to shift blame to the Panel: a. "... I feel that had my offer to attend urine drug testing more frequently been put in place by the Impaired Registrants Panel that I attended on the 21 May 2019, that I would not be facing this tribunal." b. "Did the Panel make a mistake by not increasing the frequency of the testing despite the fact that I was prepared to do that?" 5. In response to paragraph 28, the Commission submits that the provision of false and/or misleading information to the Council, on one occasion on 29 July 2019, is improper and/or unethical conduct. There is no requirement to prove a pattern of dishonest behaviour. 6. In response to paragraph 36, there is some evidence that the practitioner relapsed during her alleged period of abstinence between December 2017 and 25 April 2019 because she told Dr Samuels that she had used ICE in February/April 2018 and January/February 2018. 7. In response to paragraph 47, the Commission invites the Tribunal to consider the entirety of Dr Samuels' evidence, including all reports at tabs 16-20B and all his oral evidence on 29 October 2020. Dr Samuels maintained the opinion in his report at tab 20B and his oral evidence included that the practitioner has not achieved full insight, has not fully taken responsibility, is not having active treatment, her impairment is largely untreated, her condition is unstable, she presented as depressed, she is not ready to return to nursing and her impairment is not yet resolved or addressed. Although Dr Samuels was prepared to accept that the practitioner's proposition that she could be competent if she were to engage in treatment to Council's satisfaction and remain drug free for six months, he also emphasised that "part of being competent is managing your health problems. That is the issue. Once you are managing your substance and mood issues, you could return to practice with conditions." When asked in re-examination to assume that the practitioner attends weekly aftercare at Kedesh, Dr Samuels maintained his opinion "I still don't think that she is competent. She is not at the point of established remission." 8. In response to the paragraph titled Protective Orders, the Commission submits that suspension would be inadequate. The Commission seeks cancellation for the reasons set out in the Commission's submissions filed on 30 October 2020. Costs 9. In response to the paragraph titled Costs, the Commission opposes an order that each party pay its own costs. The Tribunal has the power to order the practitioner to pay costs under clause 13(1) of Schedule 5D of the National Law. The Tribunal may fix the amount of costs itself or order that the amount of costs be as agreed or assessed: clause 13(3A). The Commission seeks a fixed costs order in the amount in the costs schedule filed on 30 October 2020. The Commission has served the costs schedule and Dr Samuels' invoices supporting the disbursements. The costs sought are reasonable. 10. The Commission submits that it is entitled to recover its costs. The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party (Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]; applied by the Tribunal in several decisions including Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [98] and Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 at [9]). There was no disentitling conduct by the Commission to warrant a departure from the general rule. The Commission took a number of appropriate steps to progress the matter, including serving the Commission's material on time, serving the amended complaint on 24 July 2020 (with ample time for the practitioner to respond), arranging the Skype assessment with Dr Samuels and re-listing the matter for directions (to address the practitioner's outstanding material) to ensure the hearing was ready to proceed as listed. The Commission also took steps to minimise costs, including not briefing counsel. 11. The Commission submits that costs should not be reduced due to the practitioner's "current financials". The practitioner has not provided any evidence regarding her financial circumstances. In any event, 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 (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]). 12. The Commission submits that costs should not be reduced due to the practitioner's admissions of some particulars. As the successful party, the Commission has a reasonable expectation of receiving its costs (Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [134]; at [13]). Cooperating in the proceedings does not, of itself, provide a proper basis to depart from the general rule (Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [99]). Although the practitioner made some admissions, her efforts to reduce costs were a benefit to her as well as to the Commission in that she did not incur the costs of a fully contested hearing (Health Care Complaints Commission v Spruce (No.2) [2015] NSWCATOD 153 at [13]). Although it is commendable that the practitioner made some admissions, the Commission's evidence is compelling and, as a matter of principle, litigants are obliged to make genuine efforts to run their litigation efficiently (Health Care Complaints Commission v Spruce (No.2) [2015] NSWCATOD 153 at [14]). 13. The Commission submits that costs should not be reduced if particulars 2 and 4 of Complaint One A are not proven (which submitted by the practitioner but not conceded by the Commission). There is evidence to establish particulars 2 and 4, outlined in the Commissions submissions filed on 30 October 2020. Even if those particulars are not proven, the Commission will have substantial success if findings of unsatisfactory professional conduct, professional misconduct, impairment and lack of competence are ultimately made. Failure to establish some particulars does not necessarily result in any diminution in the costs payable to the Commission (Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [50]). Costs are 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 (Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [50]). Where there is a discrete unproven allegation which involved a relatively small proportion of time, that does not provide a basis to decide to reduce the costs payable to the Commission (Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 at [12]). Where there is an unproven complaint which does not extend the length of a hearing, the Commission is still entitled to an award for costs in its favour (Health Care Complaints Commission v Ngo [2015] NSWCATOD 143 at [130]). There are several examples where the Tribunal, although not all particulars were found proven, exercised its discretion to order the practitioner to pay the Commission's costs (Health Care Complaints Commission v Khalsa (No2) [2014] NSWCATOD 47 at [68]-[69]; Health Care Complaints Commission v Woods (No 2) [2016] NSWCATOD 99 at [17]; Health Care Complaints Commission v Noor (No 2) [2020] NSWCATOD 9 at [4]; Health Care Complaints Commission v Laws [2020] NSWCATOD 98 at [81]). 14. The Commission submits that costs should not be reduced due to the practitioner's admitted impairment. The Tribunal has frequently ordered impaired health practitioners to pay costs, consistent with established authority that, without some disentitling conduct on the part of the Commission, the practitioner ought to be required to pay the Commission's costs. In a recent reinstatement decision, the Tribunal accepted that the reason for a cancellation order was that the nurse suffered an impairment as the result of matters which were outside her control but the Tribunal was nevertheless reluctant to depart from that established authority (Mew v Health Care Complaints Commission [2020] NSWCATOD 129 at [45]-[46]). 15. The Commission seeks an order that the practitioner pay costs in a fixed amount or, in lieu of a fixed costs order, an order that the practitioner pay the Commission's costs as agreed or assessed.

DECISION AND REASONS

Having read the evidence contained in the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and given by the Respondent, having considered the psychiatric reports of Dr Samuels and having taken account of the Applicant's submissions and the Respondent's submissions, the Tribunal is comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct.
The Tribunal is satisfied that this leads to a decision as to whether the Respondent should be entitled to continue practising as a registered nurse and what disciplinary action would be appropriate in the particular circumstances of the matter. In considering appropriate disciplinary findings, the Tribunal had regard to a number of factors. These included the transcript the s150 examinations, the transcript of the proceedings in the Magistrate's Court, the evidence of Dr Samuels in respect to the Respondent's behaviour including her actions and behaviour since the transgressions were identified and she was brought to the Magistrate's Court. In coming to its conclusion, the Tribunal was satisfied with the fact that a series of breaches were made by the Respondent knowingly, she having been fully aware of the reasons for her being brought before the Magistrate, namely misuse of methamphetamine and ICE and having lied in respect of significant issues relating to the investigation of the matter by the Nursing and Midwifery Council and to Dr Samuels who was undertaking an assessment of the alleged impairment of the Respondent.
In addition, paragraph 7.1(e) of the Code of Conduct requires nurses to take action including a mandatory or voluntary notification to AHPRA if a nurse knows or reasonably suspects that they or a colleague have a health condition or impairment that could adversely affect their ability to practice or put people at risk. The Tribunal was particularly concerned by the fact that the Respondent has had numerous conditions placed upon her initially allowing her to continue working as a registered nurse and thereafter suspending her on conditions for purposes of recovery from her drug addiction. In addition, various conditions were made critical conditions. Despite the Respondent's awareness of the conditions placed upon her registration and despite her awareness that various of those conditions were critical, the Respondent had several lapses in relation to self‑administration of drugs whether in the period before the imposition of critical conditions or even after the imposition of those critical conditions.
The Tribunal noted in the submissions made by the Respondent that she believes that she has now dealt with her problems and learned from them and that she seeks a suspension of six months during which she would undertake to undergo bi‑weekly urine tests and provided that she was found to be drug free during the entire six month period, that she should be allowed to return to work as a registered nurse. In addition, in her submissions, she undertook to ensure that she undertakes all of the medical and health treatments that are said by Dr Samuels to be necessary for her to deal with her anxiety and depression and enable her to go forward drug‑free.
While the Tribunal has considerable sympathy for the position in which the Respondent finds herself having regard to the attempts over the past years which the Respondent has made to desist from the use of drugs and that there have on occasions even been periods approaching one year when the Respondent was drug‑free, the Tribunal cannot be satisfied that a six month abstention period is indicative of an effective healing of the Respondent's drug addiction. While the Respondent also sought to convince the Tribunal that she has insight into the problems which she faces and which cause her to revert to drug use, the Tribunal is satisfied that the Respondent still looks to shift blame for her condition onto others and to avoid facing the fact that her problems need to be dealt with and it is her professional responsibility to engage in appropriate treatment and therapy and not to revert to drug use.
In the circumstances, the Tribunal is comfortably satisfied that the Respondent's registration should be cancelled and provide for a non‑review period of two years (which the Tribunal believes is appropriate and necessary to send a message to the profession and the public that the protection of the public and the standing of the profession are significant). It also allows the Respondent to do whatever may be necessary including all of the medical and health related treatments recommended by Dr Samuels, to achieve a result that on expiry of her non‑review period she will be in a position to make an application to continue to practise as a registered nurse should she decide to do so.
In coming to this view, the Tribunal had regard to the decision in HCCC v Do (2014) NSWCA 307: The Court of Appeal held that the Tribunal had fallen into appealable error by focussing only upon the risk of reoccurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct nor the full implication of the finding that the practitioner's skill and judgment had fallen significantly below the standard reasonably expected. In so doing, the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by s3A and s4 of the National Law.
In respect of costs, the Applicant has provided a schedule of costs and disbursements totalling an amount of $23,721.18 and has requested the Tribunal to order that this amount be paid by the Respondent.
The Respondent, on the other hand, has sought that each party should bear its own costs having regard to the fact that the Respondent believes that there are several aspects of the complaint which were not proven by the Applicant. The Applicant denies that this is the case.
The Tribunal is satisfied, even if it were to accept the Respondent's argument that some aspects of the complaint were not proven, the Tribunal believes that those aspects of the complaint which are said by the Respondent not to have been proven, did not add significantly to the overall cost of the handling of this matter.
In the matter of HCCC v Philipiah [2013] NSWCA 342, the NSW Court of Appeal affirmed that costs are awarded to compensate the successful party and accepted that as a general rule costs of proceedings before the Tribunal should follow the event.
The Applicant has provided the Tribunal with a schedule of costs and disbursements totalling $23,721.18 and requested that the court exercise its discretion to makes a fixed costs order. While the Tribunal accepts that a large amount of time effort went into the conduct of this matter, it does not believe that it is appropriate for it to make a fixed order in that amount but believes that it is appropriate for it to order the Respondent to pay the Applicant's costs as agreed or assessed.
Accordingly, the Tribunal makes the following orders:

ORDERS 1. The Respondent is guilty of unsatisfactory professional conduct and professional misconduct in respect of her behaviour while working as a registered nurse and while under suspension on conditions imposed by the Nursing and Midwifery Council and suffers from an impairment. 2. The registration of the Respondent is cancelled with immediate effect. 3. The Respondent shall not be entitled to apply for registration as a nurse for a period of two years from the date of this order. 4. The Respondent be subject to a prohibition order which will prevent her from providing the following health services on a public, private or volunteer basis until she is registered as a nurse: 1. medical, hospital, nursing or midwifery services; 2. mental community health services; 3. health education services; 4. any services in respect of which she will be exposed to patients or people in a health care facility. 1. The Respondent shall pay the costs of the Applicant as agreed or assessed.

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

Amendments 11 January 2021 - Subheading prior to para 31 changed to 'Agreed Facts'. 14 January 2021 - Order 1 amended to include the words "and suffers from an impairment". 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: 14 January 2021

Health Care Complaints Commission v Borg

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Judgment (14 paragraphs)

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Cases Cited (19)