Health Care Complaints Commission v Canham

The HCCC's Application

1. The HCCC Application is contained in exhibit A7. In that document the HCCC seeks an order pursuant to s. 149C (4)(a) of the National Law, namely, "that if the practitioner were still registered the Tribunal would have cancelled his registration." That order is necessary as the HCCC has provided evidence from Australian Health Practitioner Registration Agency (Ahpra) that on 1 July 2023 the Respondents registration as a "Nurse, enrolled Nurse (Division 2)-General", lapsed.
2. In a document produced to the HCCC under summons, there is a document which reports that on 18 July 2023 the Respondent had let his registration lapse and is working as a wardsman.
3. The Amended Application (exhibit A7) also seeks the following orders: 1. An order under s.149C(4)(b) of the National Law that the practitioner be disqualified from being registered in the health profession for 1 - 2 years from the date of the decision. 2. An order under s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the practitioner was still registered the Tribunal would have cancelled his registration in the National Register kept by the Board. 3. An order that the Respondent pay the Commission's costs, as agreed or assessed, under clause 13 of Schedule 5D of the National Law as agreed or assessed.
4. The detail of the complaints made against the Respondent are found in exhibit A1 and appear in pages 6 and 7. The "Background to All Complaints" is set out on page 6 and includes: "In 2021, the practitioner obtained a Diploma of Nursing from Think Education. The practitioner was first registered as an enrolled nurse on 1 July 2021. In July 2021, the practitioner commenced working as an enrolled nurse". "A condition not to work as a registered nurse until reviewed by the Nursing and Midwifery Council of NSW pursuant to s.150 of the National Law, was made on 27 May 2022".
5. Complaint One seeks a finding pursuant to s.144(d) that the Respondent has an impairment within the meaning of s.5 of the National Law. The Particulars supporting that Complaint are as follows: 1. The practitioner suffers from a Delusional Disorder. 2. The practitioner suffers from ongoing substance misuse, characterised by: (a) methamphetamine (ICE) use, and (b) alcohol dependence.
6. Complaint Two seeks a finding that the Respondent is not competent within the meaning of s.139(a) of the National Law in that he lacks the mental or physical capacity to practise as a nurse. The Particulars supporting that complaint are: 1. The practitioner suffers from an impairment as particularised in Complaint One. 2. The practitioner's impairment is of sufficient nature to impair his mental and physical capacity as a nurse.
7. As will be seen the facts which support the HCCC case highlight the tragic circumstances of a former soldier who has sought to find himself a civilian vocation while having to deal with the impact of his military service, on his mental health, at the same time.
8. Exhibit A1 contains details of a complaint made to the Australian Health Practitioner Registration Authority ("Ahpra") about the Respondent. The complaint to Ahpra, which commences on page 15 of exhibit A1, details a tragic spiralling of conduct and events for the Respondent since May 2021. The evidence contained in the documents tendered before the Tribunal establishes that since that time, there have been multiple events, involving the Respondent, which have been recorded by either the police, mental health services or hospital emergency departments. The Respondent has been diagnosed with persistent delusional disorder and post traumatic stress disorder. He was hospitalised for three days in May 2021 with worsening psychosis under the influence of ICE. Police have been called to his residence on multiple occasions and he has had multiple hospital attendances since May 2021. He has homicidal thoughts and has been prescribed anti-psychotic medication. He saw a drug and alcohol counsellor on 6 August 2021 and stated he now only has three cars following him rather than the whole of the street, who he said had been following him earlier. He walks around with a hammer or knuckle duster for his protection. He said he had purchased two weapons from the dark web and each has 1000 rounds of ammunition. He does not hold a gun licence. He was assessed by his counsellor, at that time, as being of "no immediate risk to anyone". He has been working, as a nurse, through an agency, which provides him with placements in aged care facilities. He lacks insight into his current mental health status.
9. On 31 January 2022 a mental health assessment was conducted in relation to the Respondent. The assessment diagnosed the Respondent with acute and transient psychotic disorders; mental and behavioural disorders due to the use of other stimulants including caffeine and methylamphetamine. The assessment also stated the Respondent has been working as an enrolled nurse, that he has a partner who is also a health professional. He and his partner have two children aged seven and one month old. He has a history of "CMA induced psychosis" and PTSD following his service in the armed forces. Following his hospitalisation in May 2021 he has had further presentations in the community which identified persecutory delusions. He reported as being 49 years of age.
10. On page 31 of exhibit A1 there is a report of a phone call between a case manager with the Nursing and Midwifery Council of NSW ("the Council") and the Respondent on 16 August 2021. In that telephone call the Respondent provided detail including that he has PTSD due to a violent past where he was in an elite military unit and killed people. He no longer wants to kill people but rather help them and that is why he started nursing. He is taking anti-psychotic medication and is to see a psychiatrist within days.
11. On 23 August 2021 the Council conducted a hearing with the Respondent under s.150 of the National Law. We note the following from the transcript of that hearing which commences at page 37 of exhibit A1. 1. During that hearing the Respondent, in an open and apparently honest manner, set out detail of symptoms he had suffered, following his experiences as a soldier in an armed conflict. He described "flashback memories" of actions in which he fought. He said he had been prescribed medication for a diagnosis of PTSD. He described how he had worked in the construction industry and had leaned heavily on alcohol during that time. Part of that alcohol use was associated with a family culture. That had occurred in his country of origin, UK. He immigrated to Australia and had been alcohol free for three years. 2. The Respondent spoke of his very close relationship with his seven year old son. He described his social isolation since moving to the Shoalhaven area of NSW. He described sleep difficulty and coping with odd working hours. He said he would retreat to the bush. He said he had been followed. He acknowledged that his behaviour of "going to the bush" probably looked like unusual behaviour. He came into conflict with his neighbours and the police became involved. 3. The Respondent told the Council that whilst speaking with his psychologist, in a situation where he believed he was having a confidential conversation, he told her he had "acquired some weapons" and he was considering "going Schwarzenegger" on his neighbourhood. He said he understood his psychologist had to report the matter. He told her recently that if he ever was to commit an action in the nature of "going Schwarzenegger" he would not tell anyone beforehand. He said that any action like that would destroy his life and that is not what he wanted. 4. The Respondent said he was consulting a psychiatrist who had prescribed medication for him. He was prescribed antipsychotic medication. 5. When he was withdrawing from alcohol, a man had introduced him to ICE and told him it would help with alcohol withdrawal. The Respondent had tried ICE about five times. On the last two occasions he had used ICE he had found himself "out of control" and he did not like that. He had last used two months before the s.150 hearing. When his wife, also a health professional, found out he was using ICE, she was very condemning of him. He realised his marriage was under threat at that time. 6. At the time of the s.150 hearing the Respondent had been employed as a nurse through an agency which was based in Melbourne. His work was located in the Shoalhaven area. He said he was almost 50 years of age and he was working in a profession where he was helping people and that is what he wanted to do. 7. Although he was working at placements arranged through the agency, he was also applying for full time jobs at hospitals in his local area. 8. The Respondent was questioned about the weapons he had said he acquired. He was asked if he had hidden the weapons. He said that he did do that and then he "got rid of them". 9. The Respondent described a horrendous circumstance he found himself in where he "felt alone and just completely surrounded at one point where he felt the whole estate", where he lived, didn't like him and were "gaslighting" him and that made him very "triggered". He said he was in "a very low place" and he thought "If this is what they want me to do then I will give them what they want."
12. Following the hearing before the delegates of the Nursing and Midwifery Council, a judgment was delivered. The Council delegates considered a suspension order being made, however, they opted for the imposition of conditions on his registration. In reaching that decision the delegates considered, his presentation at the hearing, including, that he had engaged very well and freely answered questions, including giving answers contrary to his interests. They also found he appeared very open and honest and quite spontaneous in his responses. He had also demonstrated, they said, recognition and understanding of the triggers and vulnerabilities and his professional obligations.
13. The conditions imposed by the Council, included the following: 1. Not to work a "night duty". 2. Not to work weekends or public holidays. 3. To practice under direct supervision. 4. To undertake "hair drug and ETG testing" as directed by the Council. 5. To attend for treatment by a GP of his choice. 6. To attend for treatment by a psychiatrist of his choice. 7. To attend for treatment by a psychologist of his choice.
14. On 27 May 2022 the Council convened a second s.150 hearing following the receipt of further notifications and complaints about the Respondent. In the decision published (page 122 and following exhibit A1) we note the following. 1. The Respondent had been required by the Council to attend upon Dr Anthony Samuels (psychiatrist) for a health assessment. Dr Samuels provided a report which is set out at page 139 of exhibit A1. 2. On 7 February 2022 the Council received a second notification. That had been made by an officer at Wollongong Hospital and was dated 31 January 2022 (see page 165 in exhibit A1). It described a presentation by the Respondent to the emergency department of the Hospital. The Respondent was delivered to the Hospital by police, who were concerned about his mental health. It had been alleged he was seen "pacing with a hammer" in his hand in a local supermarket car park. He denied that was the case although he did have a hammer in his car. He admitted to recent use of methamphetamine. He had ceased taking his medication. 3. The Respondent had been contacted following an Impaired Registrants Panel (IRP) decision to impose further conditions on his registration. The Respondent told the Council he did not agree with the IRP decision.
15. In the decision of the Council, following the 27 May 2022 s.150 hearing, the delegates had regard to the report of Dr Samuels dated 25 January 2022. In that report (page 139 of exhibit A1) Dr Samuels opined the Respondent did have an impairment within the meaning ascribed to those words in the National Law. He diagnosed the Respondent as suffering from a Delusional Disorder.
16. The delegates concluded that the Respondent did have an impairment. An order was made pursuant to s.150(1)(b) of the National Law, that the Respondent was not to work as a registered nurse/enrolled nurse/registered midwife until reviewed by the Council.
17. On 7 April 2022 the Impaired Registrants Panel conducted a hearing "on the papers" and determined the Respondent was impaired. It imposed further conditions requiring the Respondent does not work as an enrolled nurse until reviewed by the Council (p.145 exhibit A1).
18. On 18 August 2022 an officer with the HCCC made a record of a conversation held with the Respondent on that day (see p150 Exhibit A1). The telephone call to the Respondent was made as part of an investigation following information received that the Respondent was working as a nurse, contrary to the conditions imposed upon his registration, following a determination by the Council that he was an impaired practitioner. In that conversation the Respondent denied he was impaired. He questioned the opinion of Dr Samuels, the expert psychiatrist engaged by the Council. He said he was not seeing a psychiatrist. He said "I'm not seeing a psychiatrist I don't believe in them."
19. Included at page 152 of exhibit A1 is a copy of a police report relating to the Respondent and his conduct on 31 January 2022. The narrative in the report contains details of the interaction between the Police and the Respondent and includes. Inter alia, the following: 1. The police received a report from a member of the public that the Respondent had been seen at midday on 31 January 2022 outside a supermarket store, pacing and holding a hammer. The police attended the area and did not find the Respondent there. They did find him shortly thereafter at another shopping centre. They spoke to the Respondent. He denied he had been pacing with a hammer in his hand. The police searched the Respondent and did not find any item of concern. The Respondent then admitted he had been at the supermarket and he did have a hammer in his hand. He said it was for his protection as he was withdrawing cash from an ATM and was concerned because he was "on the lookout" for people who were following him. He said certain members of the community were spying on him. 2. The Police called an ambulance and had the Respondent was transported to hospital. They informed him he was being detained under s.22 of the Mental Health Act.
20. The HCCC relied on the evidence contained in exhibit A2. We note in particular the report of Dr Samuels, psychiatrist, (report date 13 July 2023) who was retained by the HCCC as an expert witness for the purpose of this proceeding. In that report we noted the following: 1. Dr Samuels agreed to be bound by the provisions relating to the evidence of expert witnesses. 2. This report was the third report provided by Dr Samuels in relation to the Respondent. (earlier reports 2021 and January 2022). 3. Although the HCCC had arranged for Dr Samuels to see the Respondent on 13 July 2023, for assessment, the Respondent had advised he would not attend. Dr Samuels was asked to provide an updated opinion in relation to the Respondent's mental health and his competence to practice as a registered nurse. He was provided with further documents including responses by the nursing and midwifery council to complaints received about the Respondents' conduct and possible impairment to practicing as a nurse. 4. Under the heading of "Opinion" Dr Samuels set out his opinion on the mental health of the Respondent. He opined that the Respondent, when last seen by him, satisfied the diagnosis for Delusional Disorder. He had underlying paranoid personality traits. Dr Samuels concluded: "My impression is that he has very limited insight into his serious mental health and substance misuse issues and has not, as yet, taken any steps to seek appropriate treatment and care." 5. Dr Samuels opined that the Respondent continues to suffer from an impairment within the meaning of the National Law. 6. In relation to the treatment of which the Respondent should avail himself, Dr Samuels said he should be under the care of a psychiatrist to manage his PTSD and Paranoid Disorder. He should also be under the care of a Drug & Alcohol specialist. He would also benefit from seeing a psychologist.
21. The HCCC relied upon an "evidentiary certificate" provided by Ahpra (Exhibit A3). That document showed that the Respondent was first registered on 1 July 2021. It set out details of the conditions which have been placed upon his registration, since that date.
22. Also contained in exhibit A3 are documents, provided under summons by Services Australia, and which principally address matters relating to the Respondent receiving treatment and/or involvement with, the Local Health District he has attended in relation to Drug and alcohol use/misuse. There are also documents produced by NSW Police setting out detail of involvement with the Respondent and the outcome of charges brought by the Police against the Respondent.
23. The HCCC called Dr Samuels to give oral evidence so that the Tribunal might have an opportunity to ask him any questions. In his oral evidence Dr Samuels confirmed he had prepared a report for the HCCC dated 25 January 2022, a second report on 25 February 2022 and an updated report dated 13 July 2023. All those reports were true and correct to the best of his knowledge.
24. Dr Samuels was asked questions by the members of the Tribunal. We noted his evidence as follows: 1. Dr Samuels was asked how long he would anticipate it would take for a recovery in the Respondent's mental health assuming he subjected himself to appropriate and available treatment. Dr Samuels said the Respondent was suffering from a concerning cluster of illness. Markers which stand out with these disorders include an increased a risk of violence. There is evidence of associated drug use/misuse. There are also risks associated with the Respondent's diagnosis of PTSD. Treatment requires a very long period of time. He is suffering from a very severe psychotic illness and if he remains untreated there is a real risk to people around him. The prospect of his returning to clinical practice is a long way off. Even if he was to show improvement in his health it would be necessary to see that it was likely to last and therefore, a substantial period of remission would need to be observed.

The submission of the HCCC

1. The HCCC helpfully provided a written submission which was marked for identification as MFI1. In that document, some of which we set out below, (omitting the footnotes), the HCCC set out the findings and protective orders it seeks as follows: (a) an order under section 149C(4)(a) of the National Law that if the practitioner were still registered the Tribunal would have cancelled his registration; (b) an order under section 149C (4) (b) of the National Law that the practitioner is disqualified from being registered in the health profession for 1-2 years from the date of the decision; (c) an order under section 149C(4)(c) of the National Law that the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board; (d) an order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed.
2. In relation to Complaint One the HCCC submitted, in part: "Complaint 1 is that the practitioner suffers from an impairment, namely a Delusional Disorder and ongoing substance misuse.
3. The relevant principles include: a. impairment means that a person: "has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect …the person's capacity to practise the profession". b. It is necessary to consider whether the practitioner is currently impaired; c. Current impairment may be demonstrated by evidence of deficiency at a particular time combined with the absence of any evidence of any improvement since that time; d. There is no requirement to make findings as to a particular diagnosis, the question is whether the evidence demonstrates that a practitioner is afflicted by a condition that is detrimental or prejudicial to the orderly conduct of his or her mental or physical duties as a health practitioner; e. There is no requirement to make findings as to a mental condition or disorder in accordance with the DSM.
4. The evidence includes: a. Dr Samuels' opinion (in his first report) is that the practitioner "does have an impairment within the meaning of the Health Practitioner Regulation National Law … namely a Delusional Disorder which seems to be significantly improved at the present time, and it is likely that he has underlying paranoid personality traits. There are previous substance misuse issues involving a history of alcohol dependence and this seems to be in remission. He acknowledges previous use of ICE and other recreational drugs but states that he has not used any substances for six months and this is confirmed by the hair testing results. These impairments do have the potential to impact upon his professional functioning." b. Dr Samuels' opinion (in his second report) is that "it seems clear that Mr Canham has a moderately severe impairment within the meaning of the Health Practitioner Regulation National Law - namely a Delusional Disorder, and it seems that there is clear evidence of ongoing substance misuse. These impairments have the potential to impact upon his professional functioning." c. Dr Samuels' opinion (in his third report) "The material that I have reviewed suggests that he has not really engaged in any regular treatment and that he is not regularly taking anti-psychotic medications. There are suggestions that the substance misuse has continued. He made it clear … that he was not interested in seeing a psychiatrist. He was upset by the opinions expressed in my two reports and did not accept them. My impression is that he has very limited insight into his serious mental health and substance misuse issues and has not, as yet, taken any steps to seek appropriate treatment or care. … In my two prior reports I was of the view that he did suffer from an impairment within the meaning of the Health Practitioner Regulation National Law, namely a Delusional Disorder and Substance Misuse Disorder. I have not seen any information causing me to revise this opinion…. I have not seen Mr Canham recently but his paranoid disorder and untreated substance misuse issues are very likely to detrimentally effect his capacity to practice as a [sic] medical practitioner…. Whilst his mental health disorder and substance use disorder is untreated, I would not regard him as competent to practice the profession of nursing…. Given his response to [HCCC]… and his indication that he would not see a psychiatrist, the fact that he has not regularly attended Drug & Alcohol appointments and that he has not taken medication as prescribed, I think he is unlikely to comply with future treatment. [Diagnosis] Mr Canham does appear to have longstanding PTSD relating to his military experiences. He appears to suffer from a Delusional Disorder and a Substance Misuse Disorder involving alcohol and illicit stimulants."
5. In relation to Complaint Two the HCCC submits as follows: "12. Complaint 2 is that the practitioner is not competent in that he lacks the physical and mental capacity to practice as a nurse.
6. The relevant principles include: a. a person is competent to practise a health profession only if the person has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; b. a finding of impairment may support a finding that a practitioner is not competent to practise; c. whether an impairment leads to the conclusion that the practitioner lacks competence will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances.
7. In support of Complaint Two the HCCC relies on the evidence of Dr Samuels.
8. The HCCC submits: "The Commission submits that the practitioner is currently not competent because he lacks the physical and mental capacity to practice as an enrolled nurse in circumstances where: a. the practitioner's delusional disorder is longstanding. b. The practitioner's substance misuse is longstanding. c. The nature of the practitioner's impairment is prone to relapse (ongoing substance misuse of a highly addictive stimulant); d. The practitioner's impairment is likely to impact on his type of practice (enrolled nursing with vulnerable elderly patients with potential access to stimulant medication); e. the practitioner's impairment has been accompanied by violent thoughts, violent gestures and violent threats when he has perceived himself to be watched or followed. f. The practitioner's impairment poses a risk of threatened or actual violence if he perceives his colleagues or patients are watching or following him in future. (in June 2021 he described an aversion to the COVID vaccinations because he perceived the government was tracking him, in 2022 he worked as a covid testing nurse, in July 2023 re described the COVID vaccine as government intrusion into people's lives); g. The practitioner's impairment is likely to jeopardise the good standing of the nursing as a caring profession (for example, in January 2022 he wore his nursing scrubs while allegedly pacing back and forth holding a hammer in a supermarket carpark, in August 2021 he reported purchasing two unlicensed rifles on the dark web with 1000 rounds of ammunition and burying them in the bush and in November 2022 he drove his vehicle then tested positive for methylamphetamine).
9. The HCCC submitted that the practitioner's impairment is likely to interfere with his professional judgment and is also likely to jeopardise the good standing of nursing as a caring profession.
10. In relation to the circumstance where the Respondent is not registered as a health practitioner at the date of the hearing before us the HCCC submits: "18. The Commission seeks an order that the Tribunal would have cancelled the practitioner's registration in that he is not competent to practice nursing for the reasons expressed above.
11. The relevant principles include: a. the Tribunal has the power to set a disqualification period; b. setting a disqualification period is to protect the health and safety of the public; c. the Court of Appeal has cautioned against relying on the "range" of orders made in previous disciplinary proceedings and emphasised that the predominant consideration is the protection of the public; d. the fixing of a period of non-review period (where a practitioner is still registered) or a disqualification period (where a practitioner is no longer registered) provides for the safety of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, e. in the context of a complaint regarding impairment and lack of competency, the fixing of a non-review period or a disqualification period attempts to predict the time in which a practitioner may reasonably take steps to rehabilitate, indicates the minimum period within which the Tribunal considers the person should not be able to practise their profession and holds open to the practitioner the possibility of return to the profession at a later time."
12. The HCCC submitted that the Respondent has not yet demonstrated insight into how his impairment can impact his registration. He has not yet sufficiently engaged in treatment. He declined psychiatrist review in February 2022. The Respondent is at risk of relapse. He elected not to provide any Reply or material to the Tribunal so there is no evidence that he has completed any relevant training.
13. The HCCC further submits that until the practitioner is able to recognise his risk factors for relapse, address his underlying issues and demonstrate sustained remission, professional confidence cannot be reposed in him to uphold the high professional and ethical standards required of an enrolled nurse and ensure the safety of patients.
14. The HCCC seeks an order that its' costs be paid.

Determination

1. Although the Respondent did not enter an appearance or participate in any manner in the hearing, the Tribunal is still required to be satisfied the HCCC has established its' case and if so, then determine what protective order is appropriate.
2. In HCCC v Y Yildirim [2021] NSWCATOD 146 (17 September 2021) the Tribunal set out the requirements which govern the application of the onus and standard of proof to be applied to a hearing, of this nature, in the Tribunal. We adopt the following words and apply same to the hearing before us. "Onus and standard of proof 9 The Commission bears the burden of proving, on the balance of probabilities, the matters particularised in the Complaint: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [3] (Leeming JA). 10 The Tribunal is not bound by the rules of evidence and, strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act [1995 (NSW)] applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127], (Leeming JA, Gleeson JA agreeing); Ng v Health Care Complaints Commission [2017] NSWSC 53 at [56]. (cf Gautam v Health Care Complaints Commission at [89] (Payne JA, Leeming JA and Simpson AJA agreeing)). Nonetheless, given the gravity of the allegations made against Mr Yildirim in deciding whether the particulars alleged are proven, we have adopted the approach set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. See Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 at [3]. 11 Dixon J explained in Briginshaw (at 362) that when the law requires proof of any fact, "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences, the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities. 12 The authorities have cautioned against the use of the term "comfortably satisfied" (a phrase adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1].
3. We are satisfied the HCCC has made out its' case. We accept the evidence relied upon by the HCCC in this matter. We accept the submission of the HCCC, as set out herein. We find, pursuant to s.144(d) of the National Law, the Respondent has an impairment within the meaning of s.5 of the National Law, being a mental impairment, including substance abuse or dependence, that detrimentally affects the practitioner's capacity to practice the profession of nursing. We are satisfied the Respondent suffers from a Delusional Disorder and from ongoing misuse of methamphetamine and/or alcohol dependence or misuse.
4. We are satisfied the Respondent is impaired at the date of this determination.
5. We are satisfied that a practitioner is afflicted by a condition that is detrimental or prejudicial to the orderly conduct of his mental and/or physical duties as a health practitioner.
6. We are also satisfied the Respondent is not competent within the meaning of s.139(a) of the National Law in that he lacks the mental capacity to practise as a nurse. We are satisfied that incapacity arises from our finding that the Respondent suffers from an impairment as set out above, and that impairment is of sufficient nature and degree to impair his mental and physical capacity to practise as a nurse.
7. We have considered the question of an appropriate protective order to impose in this case. In so doing we considered the period of disqualification as sought by the HCCC. The period set out in the Amended Application is stated as 1 to 2 years. We have relied upon the evidence of Dr Samuels in determining that the period of disqualification should be 2 years. We have been satisfied by that evidence that it will be at least 2 years of concerted effort on the part of the Respondent, to achieve a state of health which might enable an expert medical practitioner, such as Dr Samuels, to be able to provide an opinion as to the ability of the Respondent to be accepted as competent practitioner and suitable person to again be registered as a nurse.
8. The HCCC seeks an order that the Respondent pay its costs of the proceeding. It relies on clause 13 of Schedule 5D of the National Law for the power available to the Tribunal to make such an order. The provision of clause 13 of Schedule 5D is as follows: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013 .
9. In the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[46] the Court set out: "42. As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. 43. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). 44. It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. 45. The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. 46. The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. In all of the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside."
10. The Court of Appeal decisions in Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51] also address the awarding of costs in proceedings under the National Law. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [50], per Meagher JA (with whom Basten and Emmett JJA agreed), His Honour observed that s. 175B is a provision having national operation and should not be subject to local rules. "It should, therefore, be treated as conferring an unfettered discretion on the Tribunal."
11. The Respondent has not made a submission on costs, however, even where such an order is consented to, the Tribunal has an obligation to ensure such an order is appropriate.
12. The HCCC has been wholly successful in the proceeding. Given the circumstances of the case the HCCC had to proceed with this action notwithstanding the Respondent had failed to renew his registration. Had it not done so the Respondent could have applied to renew his registration at any time thereafter. That may, or may not, have been successful.
13. There was nothing about the conduct of the proceeding by the HCCC which would warrant interfering with an order that the Respondent should pay the costs of the HCCC and we will so order. The fact that the Respondent may well be impecunious and thereby unable to pay any costs order made, is a matter which will rest with the HCCC and its' decision to seek to enforce its' costs order or not do so.
14. Although limited by a different worded provision as to the power to make a costs order in proceedings under the Legal Profession Uniform Law (NSW) (NSW) 2015, some assistance in relation to the circumstance here being determined, can be found in Council of the New South Wales Bar Association v Miller (No 2) [2012] NSWADT 129 (Miller (No 2)) at [43]-[44], the Tribunal stated: "43. Under section 566(1) of the [Legal Profession Act 2004 (NSW)], the Tribunal is required to order that a respondent in disciplinary proceedings who has been found guilty of professional misconduct must pay the costs of the applicant unless 'exceptional circumstances' exist.
15. We agree with a submission by Ms Williams that neither the Respondent's bankruptcy nor the deferral of his discharge on account of objections by his trustee (see [24] above) constitutes 'exceptional circumstances' within this provision. As she submitted, an order for costs should be made and the Bar Association should be free to take such steps as it may be advised to recover its costs."
16. In this case the financial circumstances of the Respondent arise only inferentially from the evidence provided by the HCCC. Ultimately it will be a matter for the HCCC to decide whether it is cost effective to try and enforce the order for costs which will be made in this matter.
17. The order will be framed as requiring a payment in a sum as agreed, or as assessed.
18. The orders of the Tribunal will be:
19. Pursuant to section 149C (4) (a) of the National Law, had the Respondent been registered the Tribunal would have cancelled his registration.
20. Pursuant to section 149C (4) (b) of the National Law, the Respondent is disqualified from being registered in the health profession for 2 years from the date hereof.
21. Pursuant to section 149C (4) (c) of the National Law the National Board is required to record the fact that if the practitioner were still registered at the date hereof the Tribunal would have cancelled his registration in the National Register kept by the Board.
22. The Respondent is to pay the costs of the Health Care Complaints Commission, 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 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: 28 September 2023