Health Care Complaints Commission v Cele

Nature of the Jurisdiction

1. 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 pharmacy.
2. In Clyne v NSW Bar Association (1960) 104 CLR 186 at 201 - 202; [1960] HCA 40 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."
3. Section 3A of the Health Practitioner Regulation National Law (NSW) ("the National Law") provides that "[i]n the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration". The interests of the public include patients or potential patients of the Practitioner concerned.
4. As observed by Beston JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order made upon a finding that a complaint has been proved is said to be protective 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 medical 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."

The Issues

1. The Tribunal was not called upon to determine the competency or otherwise of the Respondent which led to conditions being placed upon the registration of the Respondent.
2. In essence, therefore, the issue for determination by the Tribunal is whether or not the Respondent has without reasonable explanation breached conditions placed on her registration as set out in the Background and Particulars to Complaint One, the Background and Particulars to Complaint Two and whether in the circumstances the Respondent is guilty of unsatisfactory professional conduct and professional misconduct under the National Law.

Applicant's Evidence

1. The Applicant's evidence was contained in a volume of documents with tab numbers 1 to 36 the details of which are contained in the submissions for the Health Care Complaints Commission which are set out below. "THE ALLEGATIONS 1 The Health Care Complaints Commission (the Commission) alleges that Ms Cynthia Cele (the respondent) is guilty of unsatisfactory professional conduct (UPC) because: a. The respondent contravened her conditions of registration which is a ground of UPC under s. 139B(1)(c) of the Health Practitioner Regulation National Law (the National Law) - complaint one; and b. The respondent made false/misleading statements to her employers, Arcadia Pittwater Private Hospital (Arcadia) and Achieve Australia, Summer Hill House (Achieve) which was improper/unethical conduct under s. 139B(1)(I) of the National Law and to the Nurses and Midwifery Council (the Council) - complaint two. 2 The Commission alleges that when the complaints are considered cumulatively the respondent is guilty of professional misconduct under s. 139E - complaint three. 3 The respondent denies or does not accept the basis of the allegations. In the reply document the respondent states that she was supervised and that her non-disclosure was due to an "oversight" as she thought it only applied to her giving medication. In relation to the false/misleading statements, the reply states: a. For the allegation relating to her application form to Arcadia, "there was nowhere on the application forms that asked me to provide any information in regard to restrictions that may have applied to my EN registration." [Emphasis added because the wording of the application form for Arcadia specifically asked if there were any "restrictions" on her registration. A similar allegation was provided by the respondent in relation to her non-disclosure of her conditions to Achieve; b. For the employment declaration to the Council on 22 June 2019, that "at the time I was a casual employee with no firm commitment of employment that is why I advised not employed"; and c. For the statement to the Council that she was employed as an Assistant in Nursing (AIN) and worked under the direct supervision of a Registered Nurse during her employment with Arcadia, "The role I was doing was that of an AIN at the time of filling in the form". In the hearing the respondent had a different explanation and blamed her lawyer for the misrepresentation. THE EVIDENCE 4 The Commission's evidence includes the HCCC bundle and two unchallenged statements of Ms Ruth Ryburn of Arcadia and Ms Johannah Flynn of Achieve. Contained within Exhibit one is the statement of Ms Casey Hailes of Achieve, and Ms Amanda Palmer of Arcadia. That evidence speaks to Complaint one. Evidence regarding Complaint one, particulars 1 to 4 and Complaint two, particular 1 5 The respondent's conditions of registration can be seen from the AHPRA certificate, tab 2 or are otherwise set out in Tab 8, Annexure D of Exhibit 1 (see [69] of the reasons for decision in respect of the December 2017 s. 150 proceedings). 6 The respondent commenced employment with Arcadia on 11 June 2018. Her employment agreement records that she was hired as an Enrolled Nurse (EN) working casually. The respondent signed the agreement (dated 25 June 2018) and also signed a document confirming she had read and understood the position description of an EN (dated 25 June 2018). 7 The oral evidence from the respondent was that she signed, scanned and emailed the document back to Arcadia, including scanning a copy of her registration card. It is also noted that the respondent provided her CV: a. These were all opportunities for the respondent to have disclosed the conditions of her registration. In cross-examination the respondent denied that these were opportunities claiming that she did not disclose them because it was her opinion she did not need to. 8 The application form signed and dated 18 June 2018 specifically asked the respondent whether there were any restrictions imposed on her registration. The respondent wrote "N". This was false (Complaint 2, particular 1 is proven). 9 The respondent in her oral evidence claimed that she was always "supervised", not directly, but had someone with her so she never thought she was in breach of her conditions. 10 When it was put to her how the condition that her supervisor provide medical reports to the Council could be met if there was no disclosure of her conditions, the respondent never answered that question. 11 Ms Ryburn's statement states that: a. The respondent approached Arcadia; b. The senior registered nurse provided indirect supervision to the respondent and any other staff that shift; c. There was no supervision of the respondent's interaction with patients; d. The respondent administered medication and was never supervised; e. The respondent never disclosed her conditions of registration; and f. In September 2019, during a routine audit of registrations, Arcadia learnt of the respondent's conditions of registration. 12 The complaint of Amanda Palmer at Arcadia also confirms that the respondent did not disclose any conditions on her registration and was not supervised during administration of medication. 13 On 27 September 2019 Arcadia issued a show cause letter to the respondent. That letter set out the respondent's conditions of registration. The letter specifically expressed the conditions of concern to them, which were, inter alia, requirements that the respondent notify employers immediately of her conditions of registration and inform future employers of the conditions before commencing work. 14 The letter of termination records that the respondent attended a meeting with Arcadia staff on 10 October 2019 and provided a response to the show cause letter dated 8 October 2019. The letter states: a. That "During the recruitment process you were invited to provide proof of your enrolled nurse status and failed to disclose mandatory conditions attached to your professional registration" - this refutes the respondent's contention she was just asked to provide documents and is consistent with the Commission's position that when the respondent sent her AHPRA registration card to her employer that was the opportunity to disclose her conditions. The absence of that disclosure conveyed to Arcadia that there were no conditions on her registration; b. That "At no stage during your employment did you make [Arcadia] aware of these conditions attached to your engagement as an enrolled nurse" - this corroborates the Commission's allegation of non‑disclosure to anyone at Arcadia; and c. That in the meeting on 10 October 2019 the respondent claimed that the conditions of her registration were the result of a conflict with previous employers and not an indication of competence but the respondent failed to explain why she did not adhere to her conditions: The same position was largely taken by the respondent in her oral evidence before the Tribunal. This shows that there has been no reflection by the respondent on her impropriety. 15 The respondent was terminated from Arcadia on 21 October 2019. 16 The evidence shows to the required standard (and above it) that when working for Arcadia, the respondent breached conditions one, two, three and four (Complaint one, particulars 1 to 4 are proven). 17 Consequent to Ms Palmer's complaint, s. 150 proceedings were held on 2 March 2020 and the respondent was present at those proceedings. The respondent gave oral evidence and claimed that she did not declare her conditions because there was no formal interview process. In her oral evidence before the Tribunal a similar position was maintained. 18 The reasons for decisions relevantly state that: "If Ms Cele regains employment as a nurse, she will be required to be supervised in her practice by a Council approved supervisor with the provision of monthly supervision reports and she will be required to administer medications under the direct supervision of a Registered Nurse as per conditions 1 and 2 on her registration. We noted that while Ms Cele was not being formally supervised as required by her PRP conditions whilst working at Arcadia, she was working under the supervision of an RN and she was being supervised by the RN on duty while they were administering medications. Ms Cele has advised that she is aware of her conditions and has stated that she understands the ramifications of her actions in regard to non-compliance with conditions. Ms Cele has been strongly advised in regard to ramifications of any potential future non-compliance with conditions." [Emphasis added] 19 The words emphasised above were also false/misleading because both Ms Ryburn and Ms Palmer state that the respondent was not supervised during her administration of medication. 20 Ms Palmer expressed her concern that the respondent practised unsupervised and stated that "patients have been at risk as she has not followed the correct supervision procedures for medication administration". 21 The show cause letter, the meeting with Arcadia, the termination letter and the hearing before the Council evidence the number of times that the respondent was placed on notice that she was terminated and a complaint made about her because she did not disclose her conditions of registration to her employer. 22 Despite that notice, and the respondent telling the Council she understood what was required of her and understood there would be consequences if she breached her conditions, the respondent failed to tell her next employer, Achieve, the conditions of her registration and practised in breach of her conditions. Complaint one, particular 3b and Complaint two, particulars 2 and 4 23 The respondent failed to inform the Council of her employment with Arcadia. The reasons for decision dated 13 February 2020 in relation to the hearing on 13 January 2020 set out that the Council was not notified by the respondent of her working at Arcadia. The respondent admitted this in cross‑examination (Complaint one, particular 3b is proven). 24 On 22 June 2019 the respondent signed a declaration form purporting to the Council that she was not employed when, in fact, she was working for Arcadia. Her declaration was false (Complaint two, particular 2 is proven). 25 The respondent stated in oral evidence she did not disclose her employment because she was only a casual employee. The respondent conceded in cross-examination that the form asked for "all" employers and did not limit disclosure to only full-time employment. 26 The respondent's explanation should be rejected as untrue. The Commission submits the respondent deliberately withheld the information from the Council. There was a clear lack of honesty. The respondent ought to have chosen a more cautious path of being candid. Instead she concealed the fact of her employment with Arcadia. There is an available inference that the respondent did this because she was concerned that, if she did disclose her employment, the Council would either contact Arcadia or she would have to disclose to Arcadia her conditions of registration (which she knew she had withheld). 27 It is also noted that on 5 September 2018 the respondent emailed the Council that she was unemployed. Also, the respondent accepted that she did not tell her recruitment consultant she was employed with Arcadia and on 26 November 2018 he confirmed with the Council she was not employed. 28 The respondent consistently conveyed (and deliberately so) to the Council that she was not working. 29 In a letter dated 2 December 2019 provided to the Council for the s 150 proceedings on January 2020, the respondent's lawyer told the Council that the respondent was employed as an AIN and worked under the direct supervision of a registered nurse at Arcadia. This was false. The respondent accepted in her oral evidence that she was an EN at Arcadia and the evidence shows she was not under direct supervision of any registered nurse. 30 The respondent's reply explained that she told the Council that because the role she was doing was that of an AIN. In her oral evidence the respondent blamed her lawyer stating she told him she was an EN. 31 Even if the lawyer made a mistake, there was still opportunity for the respondent to correct the false statement purported to the Council: she did not. The respondent accepted in her oral evidence that she saw the letter at the time it was given to the Council. The misleading impression was maintained. 32 That said, the Commission submits the Tribunal can reject the respondent's explanation. The respondent lacks credibility and reliability. There is no reason to doubt that the lawyer wrote what he did because he acted on instruction. If the respondent wished to blame the lawyer she ought to have adduced evidence through the lawyer that he did not act on instructions. The respondent in her own oral evidence stated she emailed the lawyer her instructions. The Tribunal is entitled to find the lawyer was acting on her behalf, within his authority and the words he provided to the Council represented the respondent. The Tribunal can find that the respondent instructed her lawyer to tell the Council she worked as an AIN under direct supervision (Complaint two, particular four is proven). Complaint one, particulars 5 to 7 and Complaint two, particular 3 33 The respondent commenced employment as an EN with Achieve on 30 September 2019. 34 Johannah Flynn stated that she had a telephone discussion with the respondent (and the respondent agreed) prior to commencing employment to discuss her experience. This was an ideal opportunity for the respondent to have candidly disclosed her conditions on her registration: she did not. 35 The letter of appointment was another opportunity for the respondent to have disclosed to Achieve the conditions of her registration. Her failure to do so gave a false/misleading impression that she could practice without restrictions (Complaint two, particular 2 is proven). 36 Ms Flynn's statement also evidences: a. That she was the respondent's line manager but otherwise there was no direct supervision of the respondent; b. That the respondent did not disclose her conditions to Ms Flynn; c. Only on 6 October 2020, after Achieve provided training to the respondent and other EN staff about administering medication, did the respondent disclose condition one. The other conditions were not disclosed; d. Only on 1 December 2020, did the respondent approach Ms Flynn (after she was suspended) and had still not disclosed the full extent of her conditions to Ms Flynn; and e. That Ms Flynn never saw the letters between the respondent and the Commission (in November 2020). 37 Ms Hailes confirms Ms Flynn's evidence regarding lack of supervision and no knowledge of the respondent's conditions. 38 The respondent accepted in her oral evidence that she did not tell Achieve the conditions of her registration until 6 October 2020 and that when she did, the respondent only disclosed the condition regarding being supervised when administering medications. 39 In circumstances where the respondent had been terminated from Arcadia and faced Council in relation to her practising in breach of conditions, the Commission submits the respondent working at Achieve in breach of her conditions shows her deliberate disregard for them. 40 The Tribunal can find that the respondent breached conditions two, three and four while employed with Arcadia (Complaint one, particulars 5 to 7 are proven). Complaint one, particular 6b 41 The respondent has not challenged the Commission's evidence that she did not disclose her employment with Achieve to the Council. The reasons for decision dated 23 December 2020, relating to the s 150 proceedings heard on 30 November 2020, state that the Council was not notified of the respondent's employment with Achieve (Complaint one, particular 6b is proven). 42 It is submitted that the above evidence proves to the required standard that the respondent is guilty of the UPC alleged in Complaints one and two. STANDARD OF PROOF AND COMMISSION'S SUBMISSIONS AS TO FINDINGS 43 The Commission carries the onus of proof and must satisfy the Tribunal to the required standard. The strength of the evidence necessary to meet that standard will vary according to the fact or facts to be stablished: Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 (Leeming J, with whom Basten and Gleeson JJ agreed) applying Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171. 44 In the present case, the evidence is cogent and largely unrefuted even though the respondent denies them. PROFESSIONAL MISCONDUCT 45 Professional misconduct in s. 139E is: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 46 The definitions are focused on the nature of the conduct, which must have the capacity to justify such an order, distinct from any questions as to whether such an order should be made: HCCC v Karalasingham [2007] NSWCA 267 at [67] per Basten JA. 47 The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards: HCCC v Litchfield (1997) 41 NSWLR 630 at 638; HCCC v Do [2014] NSWCA 307 Meagher JA. 48 In HCCC v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s. 139B(1)(I) stating at [47] to [49]: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited. 49 In Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [26] the Tribunal held that conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. 50 The Council considered that the respondent required supervision because otherwise patient's safety may be compromised. The respondent repeatedly gave evidence that the conditions were based on a complaint she disputed. However the evidence shows that the respondent failed several performance review assessments as well. Her risk to the public was the reason for her conditions. There has been no demonstration by the respondent of an understanding of the reasons for the conditions and the need to adhere to them. 51 The respondent held a view that the conditions were not relevant because she thought she was competent. That speaks highly of her lack of insight of her risk to the safety of patients. This is significant in a protective jurisdiction. 52 The respondent practised without complying with her conditions from 11 June 2018 to 1 December 2020. This is a significant period of time and is sufficiently serious to warrant cancellation of her registration. 53 Ms Palmer and Ms Flynn both evidence their concern for their patients because the respondent practised without supervision. In particular, Ms Flynn commented that the respondent performed tracheostomy management which is vital to a patient's survival and requires the highest of clinical care. There is a significant concern that this was carried out without supervision. 54 As regards complaint two, the Tribunal can find the respondent deliberately withheld her conditions from Arcadia in her application form dated 18 June 2018. There was little room to misunderstand the question. Furthermore, the respondent had attended proceedings in December 2017 regarding her conditions and would have received the reasons for decision only weeks before her employment (noting the reasons are dated 31 May 2018). 55 Her motivation was, as stated in her reply, "because in the previous application companies were not employing a person with conditions". 56 The Commission submits that the respondent deliberately withheld her employment at Arcadia from the Council. The declaration left little room for misunderstanding and as earlier submitted the respondent ought to have erred on the side of caution. 57 As for her not disclosing conditions to Achieve, the Commission submits that the only available inference is that this was deliberate, given the circumstances of her termination from Arcadia, that the Council reminded her of her conditions in March 2020 and the respondent told the Council she understood them. 58 Finally, for Complaint two, particular 4, again it is submitted that the only available inference on the evidence is that the letter from the lawyer stated that the respondent was practising as an AIN under direct supervision because she told him to say that. 59 When the respondent's conduct in complaints one and two are considered cumulatively, it shows a serious departure of conduct expected of an EN and is of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration. … PROTECTIVE ORDERS SOUGHT 62 The Commission seeks the following orders: a. That, pursuant to s. 149C(1) of the National Law the respondent's registration be cancelled from the date of publication of the decision (cancellation order); b. That, pursuant to s. 149C(7) of the National Law, the respondent is not permitted to apply for a review of the cancellation order for a period of 2 years (non-review period); and c. Costs. 63 Disciplinary proceedings are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession [Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; Health Care Complaints Commission v Do [2014] NSWCA 307]. 64 The public interests served by protective orders include, indirectly, the standing of the health profession and the maintenance of public confidence in the high standards of practitioners [Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]]. 65 Judgements in this jurisdiction have a protective purpose because they reinforce to practitioners like the respondent that the conduct is unacceptable [Health Care Complaints Commission v Piper [2014] NSWCATOD 6; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]]. The corollary to this is that judgments which do not denounce such conduct inadvertently suggest that the conduct is appropriate. 66 The Commission accepts that a finding of UPC and professional misconduct does not necessarily mean that cancellation follows: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. Whether conduct is "sufficiently serious" to justify an order for suspension or cancellation "will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct" [Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20] per Basten JA]. 67 The length of the respondent's suspension is not a consideration for determining the appropriate protective order [Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [72]]. 68 In this matter, cancellation is justified and appropriate having considered: a. The need to protect the general public against further misconduct by the respondent; b. The need to protect the public through general deterrence of other practitioners - practitioners must understand the importance of adhering to their conditions for otherwise it undermines, if not negates, their protective purpose; and c. The need to protect the public by reinforcing high professional standards and denouncing transgressions. 69 The respondent has not shown any evidence to give the Tribunal confidence that she would adhere to conditions on her registration. 70 The respondent has shown she does not agree to the conditions. 71 There has been no evidence of her insight or understanding of the reasons for the conditions (which relate not simply to the St George complaint but also includes failing performance review assessments). 72 There is no evidence of any understanding of the risk to public safety because of the way she practised. In fact the respondent told the Tribunal she "did nothing wrong". 73 The respondent's conduct with Achieve was particularly egregious because she understood the reasons she was terminated from Arcadia and showed she did not care to learn from that lesson. 74 The evidence suggests a course of conduct chosen by the respondent to deliberately withhold conditions of her registration to better her chances of employment. She put her needs above her patients. 75 In Prakash v HCCC [2006] NSWCA 153, Santow JA at [74] stated: "When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed, as observed in Re Dr Than Le (supra). It is even more serious when dishonesty supervenes..." 76 The Commission submits that cancellation and a 2 year period of non‑review is appropriate and justified: a. Each order is directly relevant to the protective arms of the National Law; and b. Each order maintains public confidence by "signalling [to the profession and members of the public) that those whose conduct does not meet the required standards will not be permitted to practice"[applying Health Care Complaints Commission v Do [2014] NSWCA 307 per Meagher JA at [35)]. 77 In a different context (relating to reporting obligations) in HCCC v Amalakumar (supra) the Tribunal per Cole DO at [34] stated: "It is important for the maintenance of the integrity of the system for the disciplining of health practitioners set up by the that practitioners comply with the reporting obligations which form part of the system. In cases where the omission to report is deliberate or careless, a protective order would almost invariably be appropriate, both to reinforce the importance of reporting to the practitioner in question, and also to provide a general deterrence to other health practitioners". [Emphasis added] 78 The system of health regulation cannot achieve the paramount objective of protecting the health and safety of the public without the co‑operative and candid involvement of health practitioners [HCCC v Luque [2019]) NSWCATOD 129 at [71]]. 79 The ability to acknowledge errors in judgment and clinical treatment is particularly crucial for health professionals as it shows not just professional growth but an understanding of the protective purpose of the profession [HCCC v Picones [2018] NSWCATOD 56 at [104]]. 80 For the above reasons the Commission submits that cancellation with non-review is appropriate and justified. The period of non-review is a reasonable period by which the respondent can gain some insight into the reasons for her condition and is a necessary general deterrent message. Should the Council wish to impose conditions of registration, it needs to be confident that those conditions will not be breached. A period of 2 years may enable the respondent time to reflect and realise the purpose and importance of adhering to conditions of registration and to gather the required evidence to give the Council confidence that, should she be reinstated with conditions, then the respondent would abide by them. COSTS 81 The Commission seeks a costs order. The Tribunal has power to order costs pursuant to Schedule SD, cl. 13 of the National Law. 82 It is settled law that the "usual rule" of costs following the event applies to this jurisdiction: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. 83 The purpose of the order is compensatory not punitive. The usual rule assumes that where an applicant succeeds it will have incurred costs because the respondent's conduct made it necessary for the applicant to bring the proceedings: Latoudis v Casey (1990) 170 CLR 534. 84 The Tribunal can have regard to the particular circumstances of the case, including the evidence adduced, the conduct of the parties, the lead up to the commencement of proceedings and the ultimate result. There was one admission but otherwise no other admissions by the respondent in the face of cogent and reliable evidence presented by the Commission. There was no disentitling conduct attributable to the Commission. 85 In Philipiah (supra) the Court of Appeal per Emmett JA (Beech-Jones J and Meagher JA agreeing) noted at [45] on the question of costs: "The [respondent] 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." 86 The fact that the respondent lacks the financial capacity to meet a costs order is not relevant to whether the power to order costs should be exercised: Philipiah at [42]. 87 The Commission seeks costs as agreed or assessed." (Some original footnotes incorporated.)

Respondent's Evidence

1. The Respondent's evidence was essentially contained in the Respondent's reply to the Application for Disciplinary Findings and is set out below. 1. In reply to particulars of Complaint One she stated that she was under supervision at the time when working for Arcadia when giving medications and that there was supervision provided by Arcadia. 2. She stated that she thought her conditions were to be discussed if she was not being supervised and that this was an oversight on her part as she thought this only applied if she was giving medication unsupervised. 3. She believed her conditions to be only reportable if she had breached safe practices or failed to comply with her Enrolled Nurse (EN) registration. 4. She stated that she was supervised at Achieve and never administered medication during that period. She gave the same explanation as set out in paragraphs 2 and 3 above. 5. In reply to particulars of Complaint Two she stated that there was nowhere on the application forms that asked her to provide any information in regard to restrictions that may have applied to her EN registration therefore she had not provided false or misleading information. 6. At the time she was a casual employee with no firm commitment of employment and that is why she advised "not employed". She also stated that there was nowhere on the application forms that asked her to provide any information in regard to restrictions that may have applied to her EN registration therefore she had not provided false or misleading information. The role she was doing was that of an Assistant In Nursing (AIN) at the time of filling in the form. 7. In reply to particulars of Complaint Three she stated that Complaints 1 & 2 are unfounded so Complaints 1 & 2 cannot be relied upon individually nor cumulatively. "Supporting supervision documentation to certify an EN according to the standards. What are the key features of the standards? The standards provide clarity about supervision, delegation and role relationships, including: The EN needs to work under the direct or indirect supervision of a registered nurse (RN) What does direct and indirect supervision mean? Direct supervision is when the supervisor is actually present and personally observes, works with, guides and directs the person who is being supervised. Indirect supervision is when the supervisor works in the same facility or organisation as the supervised person but does not constantly observe their activities. The supervisor must be available for reasonable access. What is reasonable will depend on the context, the needs of the person receiving care and the needs of the person who is being supervised." 1. In regard to Pittwater Hospital she stated that she was not employed at day surgery at Pittwater Hospital. She was employed by Arcadia Pittwater Private Hospital. This is a Rehabilitation hospital where no surgeries ever take place. She was approached by the manager to join the hospital because she saw her performance at work while she was working under the agency. She never went through any interview except to be asked to bring relevant documents which she did. She never mentioned anything regarding her registration because in the previous application companies were not employing a person with conditions. She thought they would ask her because she didn't hide her details from them. She has responsibilities at home such as kids to take care of, not to stay at home without working due to false allegations. This was very hard. She did not have a choice except to accept the employment. 2. In regard to St George Hospital the Respondent gave a lengthy explanation largely going to the question of competence and an assessment of her competencies. 3. When she was working at Achieve, she told her manager regarding the conditions on her registration. She told her when the company was about to commence assessment and Inservice training for ENs to administer medication. She did the theory and the exam including the practical as well. She also mentioned her conditions to the board during a zoom meeting. She sent all the documents to them, and the board decided to suspend her registration. To her understanding she thought she was doing the right thing to tell them because they wanted her to do those assessments. At Achieve she was not giving any medication. At Arcadia she was giving medication, she had never had any issues regarding medication.
2. There was considerable cross-examination of the Respondent by the Applicant dealing with the knowledge and awareness of the Respondent and her obligations in respect of notification to any prospective employer of conditions placed on her licence and notification to the Nursing and Midwifery Council of any employment which she undertook.
3. In summary, the main thrust of the Respondent's defence to the Complaint was to the effect that she was not aware that she had to disclose all of the conditions imposed on her licence unless she would be working in an unsupervised environment. There was significant cross-examination of the Respondent to that end. In addition, the Respondent advised the Tribunal that in her view she did not believe that the conditions should be applied or that she did her job inappropriately.

Applicant's Oral Submissions

1. In oral submissions the Applicant stated that the Respondent has given no evidence of insight by her. A number of times she stated that she did nothing wrong.
2. She did not think that the conditions should be applied and she thought that she did her job appropriately.
3. In respect of protective orders, the Applicant stated that the Tribunal could have no confidence that any conditions imposed upon the Respondent to allow her to practice as an EN would be complied with. The fact that she stated in evidence that she would notify is not sufficient and therefore the Applicant submitted that suspension is not enough. The end of a suspension is automatic and there can be no confidence that the conditions would have been complied with.
4. The Applicant also submitted that the Respondent's ability to acknowledge errors in judgment is crucial and there is no evidence of that.
5. The Applicant sought an order for costs to be agreed or assessed.

Respondent's Submissions

1. The Respondent's submissions were brief and were as follows.
2. She stated that she would appreciate the Tribunal taking this matter into consideration. It was alleged in 2012 that she had been beating a patient yet on the date alleged she was not on duty at that time. Then the allegations changed to medication, yet from the first allegation, there is nothing that ever happened regarding medication. The assessor changed the topic because he was aware that medication is something tangible that will give everybody something to write and destroy her name.
3. All these allegations of being suspended remained for months and months without income. She has kids and has responsibilities to be a human being, also as a parent. She has never worked comfortably in Australia due to the allegations.
4. She stated that the Health Care Complaints Commission wants to cancel her registration not considering all the years she has not been working.
5. She accepted work at Arcadia because she was not working and did not have accommodation.
6. Despite having conditions on her registration, she has never had any issues with medication.
7. To accept the position for work at Achieve she was not giving any medication. As soon as she did an assessment, she informed the Board. To her knowledge she thought she was doing the right thing. After suspension, she organised a place that would help her to work under supervision but that was before her case was handed to the Health Care Complaints Commission. By organising all that "is to show that I want to work like any other person".
8. She stated that a person by the name of Michael forwarded her details about Maxi Life to the Health Care Complaints Commission. This company is happy to do monitoring and communicate with the Board. This is the proof that she would follow the instructions which are contained in her conditions. She told them her situation when she was doing the interview and also mentioned to them that currently her registration is still suspended.
9. She asked the Tribunal to consider that as well. She stated that she is a human being but the treatment that she has had in Australia is unexplainable. She has been bullied, humiliated and discriminated against.
10. In the Respondent's own words, she stated that "the second issue is through all these allegations I have been to assessment total different from what I have seen in NSW. It is not my first time to do assessment but in NSW is 2 against one because those facilitators are invading your space. This is not assessment it's a destruction. I have been to the hospital but you are treated like you are in prison some body in front you and behind you very close its difficult to turn to do anything. They do not allow any support person to enter because they know their intention. I have been to assessment before. This is an evidence as attachment. A member from APHRA was present, my support person was present. The facilitator was sitting down asking questions not invading my space like NSW. I was free to move around do what I suppose to do".
11. Save for stating there had been no correspondence with or from Maxi Life, the Respondent does not otherwise provide any further submissions.

Decision and Reasons

1. The Tribunal, having read the evidence contained in all of the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and the evidence given by the Respondent, having reviewed the various additional documents which were tendered and having considered the submissions made by the Applicant and the Respondent, is satisfied that the complaint made by the Applicant against the Respondent as set out in the Complaint is proven and that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. In considering the statements referred to by the Applicant in its submissions, the Tribunal sets out the statements of Ms Hailes, Ms Flynn and Ms Ryburn in detail in finding their evidence compelling.
2. The first statement was one of Casey Hailes who stated that she is employed as a General Manager of Services with Achieve Australia and has been employed there since 20 January 2020. She indicated that she did not work with the Respondent, however, she received a notice to produce from the Health Care Complaints Commission on 3 March 2021 and responded via email on 8 March providing the requested information.
3. In response to the requests by the Applicant, she stated that the Respondent only notified Achieve regarding the full conditions of her registration after she was confronted during an allegations meeting on 4 December 2020. Achieve became aware of the Respondent's registration conditions on 1 December 2020. She indicated that the Respondent held the job title of Medical Endorsed Nurse and remained in the same role during her entire tenure with Achieve. In that respect she worked 256 shifts between 30 September 2018 and 18 December 2020. In respect of supervision she stated Achieve provided little to no supervision whilst the Respondent was on shift as they were not aware of any restrictions on her licence.
4. The Applicant provided a statement of Ms Flynn dated 29 October 2021. She stated that she is aware that the Respondent was an applicant who was provided through the recruitment agency Randstad Australia. Randstad put forward the Respondent as an appropriate applicant for the position as EN. Following the recommendation from Randstad, Achieve HR team emailed her the details of the Respondent. She telephoned the Respondent and had a discussion on the phone about her experience and her availability. After this conversation, she was happy to progress with her and notified her HR team to prepare the necessary paperwork to commence her site induction on 30 September 2019. To her knowledge, at no time during the recruitment process did the Respondent advise Achieve Australia HR team or her that she had any conditions on her registration. She stated that during the recruitment process she would have expected that they were told by the Respondent in the event that she did have conditions on her registration. She stated that at all relevant times she was the Respondent's line manager. This involved the day‑to‑day management including roster management and organising training etc. She was not responsible for providing direct supervision to the Respondent while she undertook her duties as an EN as it is an expectation of the job that an EN would be trained in the relevant skills to do the job safely and all skills are competency assessed by the Clinical Nurse Educator.
5. She then indicated the circumstances in which she became aware that there were conditions on the Respondent's registration as a result of which she was particularly concerned as the Respondent had been involved in tracheostomy management for their high needs patients. She performed tracheostomy management unsupervised as part of her duties as an EN. Tracheostomy management is vital to the survival to some of their patients and requires the highest level of clinical care. She also carried out gastrostomy care or enteral feeds on a day‑to‑day basis unsupervised. She stated that if she was aware of her conditions the Respondent would not have been given the same responsibilities as she was.
6. The Applicant also provided a statement of Ruth Ryburn who stated that she is the Director of Nursing at Arcadia Pittwater Private Hospital. She has been the Director of Nursing at Arcadia since April 2020.
7. In her statement she informed the Tribunal that she was the Nursing Unit Manager at Arcadia for the entire time that the Respondent was employed by Arcadia.
8. She was made aware that the Respondent did not disclose conditions on her registration to anyone at Arcadia. Her records show that the Respondent worked for Arcadia from 11 June 2018 until she was terminated on 21 October 2019. The Respondent first worked at Arcadia as an agency nurse through HCA Nursing Agency. She then approached Arcadia and indicated that she wanted to be formally employed by Arcadia. She was employed as a casual employee for the entire period of her employment with Arcadia and was employed as an EN performing the duties expected of an EN without limitations on her registration. While employed by Arcadia the Respondent worked day shifts, seldom morning and sometime afternoon and night shifts weekdays and weekends. While the Respondent was working she would have been supervised by a senior registered nurse who would have been the team leader. The senior registered nurse would have provided indirect supervision to the Respondent and any other staff working on that particular shift. She stated that she did not monitor nor cause any staff member to monitor the Respondent directly while she administered medication to patients.
9. This was the first time Arcadia were made aware of the Respondent's conditions. As soon as Arcadia learnt that the Respondent had conditions on her registration her shifts were immediately cancelled and the Respondent was requested to attend a meeting to provide a response.
10. In September 2019 when she confronted the Respondent about the conditions on her registration, the Respondent stated words to the effect of "It's nothing, it's about something that happened at St George". Following an investigation into her conditions, the Respondent's employment was terminated with Arcadia.
11. She advised the Tribunal that an essential role of the Respondent at Arcadia was to administer medication to the patients. She stated that she personally saw the Respondent administering medication to patients but was not responsible for the supervision of the administration of medications. She indicated that the practice and custom of Arcadia was at the time of the Respondent's employment for ENs to administer medication to patients which she would have done on a daily basis. She advised the Tribunal that it is almost impossible for the Respondent to have worked as an EN for that period of time and not to have administered medication.
12. Contained in the documents provided to the Tribunal was the application form completed by the Respondent for employment at Arcadia dated 18 June 2018.
13. At page 3 of her application form, the Respondent was asked to complete a question which read as follows: "Registered/Enrolled Nurses Only. Has your registration been withdrawn, suspended or restrictions imposed? Y/N. If yes, details."
14. In answer to that question the Respondent stated "No".
15. The basis on which the Tribunal has come to that conclusion is that the evidence of the Applicant confirms that the Respondent did undertake work at a time when she had conditions placed on her registration without notifying the prospective employer of conditions which had been placed on her registration. In addition, she failed at the time of commencing employment with any of the employers to notify the Nursing and Midwifery Council of NSW or the Australian Health Practitioner Regulation Agency (AHPRA) of the fact that she was accepting and undertaking employment without notifying the employers.
16. The Respondent sought to explain that away on the basis that she would not have been able to get employment if she had disclosed conditions on her registration to a prospective employer. In addition, she sought to explain her conduct by advising the Tribunal that in her mind the only time that she would need to advise a prospective employer or the Nursing and Midwifery Council or AHPRA would be if she was required to administer medication unsupervised in the course of her employment. The Tribunal does not accept that this explanation is in any way reasonable. In all respects, the Respondent has at all times been advised of the conditions on her registration. Those conditions are clear and unambiguous. The Respondent completed application forms, had interviews and commenced employment with employers knowing what conditions were placed on her registration and in the view of the Tribunal she failed intentionally to notify those relevant bodies of the conditions on her registration. In fact she even admitted that she would not get employment if she had notified of the conditions on her registration. Her explanation that she thought she only needed to explain in the very limited circumstances of her administering medication is not accepted and indicates a lack of judgment and insight.
17. In any event, the Tribunal had available to it evidence that part of the Respondent's job description was the administration of medication and that she must have administered medication unsupervised on numerous occasions.
18. The Tribunal is concerned that this behaviour was not a one‑off situation. The fact of taking employment which she lost when the employer became aware of the conditions on her registration and thereafter seeking and accepting employment, again, without notifying the next employer of the conditions on her registration, is a serious breach of the Code of Conduct for Nurses and as such the Tribunal is satisfied that the only decision that it can make is to cancel the registration of the Respondent.
19. In coming to its conclusion, the Tribunal is fully aware and agrees with the submissions of the Applicant as to the purpose and role of the Tribunal in complaints of this nature against a practitioner and is aware that its obligation is to ensure the safety of the public while at the same time also protecting the good name of the profession.
20. In addition, the Tribunal has regard to the fact that its role is protective and not punitive, but should also operate as a deterrent for other members of the profession.
21. In this respect, the Tribunal considered the various cases referred to by the Applicant which deal with these issues and was comfortably satisfied that an order for cancellation is appropriate. In considering the question of registration, it is important to note that in the view of the Tribunal each of the alleged breaches by the Respondent in the Complaint and the particulars thereof would be sufficient for the Respondent's registration to be cancelled. Taken together, the Tribunal believes that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. The Tribunal is of the view that the breaches are extremely significant and that the only conclusion for the conduct of the practitioner is that it constitutes a flagrant disregard for the obligations of the Respondent and a serious risk to the public. In the circumstances, the Tribunal believes that it is appropriate to provide for a non‑review period of two years to enable the Respondent to undertake serious ethical training and reflection on her behaviour and to realise that while she may, as she alleges, have been to some extent confused at the time, her confusion and explanation was and is groundless. It is necessary for her to accept responsibility for that behaviour. It is also an opportunity for her to remedy the shortcomings found on her assessment, whether she accepts those shortcomings or not.

Orders

1. The Tribunal makes the following orders. 1. Pursuant to s 149C(1) of the National Law the Respondent's registration is cancelled from the date of publication of this decision. 2. Pursuant to s 149C(7) of the National Law the Respondent is not permitted to apply for a review of the cancellation order for a period of two years from the date of this decision. 3. The Respondent is ordered to pay the costs of the Applicant as assessed or agreed by negotiation.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 December 2021