Health Care Complaints Commission v Clarke

The Complaint

1. The Complaint filed with the Amended Application raises two complaints:

Complaint One :

• pursuant to s 144(d) of the National Law, the practitioner has an impairment within the meaning of s5 of the National Law being a physical or mental impairment, disability or condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of nursing.

Particulars: the particulars allege: 1. The practitioner suffers from a physical and/or mental condition or disorder namely bipolar disorder; 2. Since at least 2 April 2019 the practitioner has exhibited psychotic and likely paranoid personality features; 3. For the period 28 November 2019 to 16 December 2019, the practitioner was involuntarily admitted to Royal North Shore Hospital (RNSH) for psychiatric medical services; 4. Upon presentation to RNSH, the practitioner voiced persecutory ideations including references to home intrusion and surveillance cameras watching her from the ceiling; 5. The practitioner exhibits a lack of insight in relation to her impairment, in that she: 1. Denies she suffers from mental illness; 2. Has not complied with prescribed mental health treatment regimens; 3. Failed to attend and complete a performance assessment as required by the Nursing and Midwifery Council.

Complaint Two:

• the practitioner is not competent within the meaning of s 139(a) of the National Law in that she lacks the mental or physical capacity to practise as a nurse.

Reply

1. The respondent has filed a reply claiming that the application made by the applicant is frivolous and vexatious and should be dismissed. The applicant denies and contests complaint one.
2. Complaint two is denied and contested.
3. The respondent has filed a large amount of documentation including affidavits relied upon in her previous litigation in the Supreme Court of New South Wales. The respondent also stated in her Reply:

• I submit that the Applicant's application for any and all orders sought be dismissed.
• The application constitutes complicity involvement with others in an unlawful activity in its capacity as a co-regulator.
• I seek orders that Trade Practices, civil penalty provisions and fines are called into question, because of a potential breach under Sec.71 False or Misleading Statements Civil and Administrative Tribunal Act 2013 (CATA)
• I press orders referred to in a miscellaneous application filed on 13 December 2021 is heard on evidence if any, regarding public safety concerns as to the issue/s.
• I will submit further orders and application of the applicant be dismissed on grounds of a misconceived application.

Section 150 proceedings:

1. On 21 September 2015 a hearing took place under s 150 of the National Law at the instigation of the Nursing and Midwifery Council of NSW ("the Council"). On 23 November 2015 the Council delivered its Reasons for Decision. By its decision, the Council determined to impose conditions upon the respondent's registration for the protection of the health or safety of the public. The reasons for placing restrictions were stated to include the fact that the allegations concerning the respondent's performance as a nurse were very serious and, if true, represented a serious departure from the expected standards and potentially unsafe practice; an independent assessment was required of the respondent's level of performance; the respondent appeared to have a limited ability to critically reflect on her own clinical performance; and the respondent appeared to remain very stressed regarding the incidents/issues at Royal Women's Hospital and the Council would need to consider a report of the independent health assessment by Dr Samuels in considering further assessment; the respondent did not appear to accept that she was impaired in anyway; rather she considered that she had been victimised. The Council required independent information for the progression of the proceedings.

Prior Tribunal Proceedings

1. The respondent challenged the interim conditions imposed on her registration before the Civil and Administrative Tribunal ("the Tribunal"). On 15 November 2017, the Tribunal delivered its decision dismissing her appeal: see Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163.
2. The respondent filed proceedings in the Tribunal seeking to appeal the conditions imposed upon her by the Council. Such proceedings were summarily dismissed on the basis that they were misconceived: see Clarke v Midwifery Council of New South Wales [2020] NSWCATOD 58.
3. The respondent instituted proceedings in the Tribunal appealing against the imposition of the conditions by the Council on her registration as a nurse. A hearing took place on 12 March 2021. On 25 March 2021 the Tribunal made the following orders in proceedings Clarke v Nursing and Midwifery Council of New South Wales [2021] NSWCATOD 32( "the 2021 Tribunal proceedings"): 1. Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) the time to lodge the appeal is extended to 20 July 2020. 2. The decision made by the Nursing and Midwifery Council of New South Wales to refuse to remove the condition on (the respondent's) registration, imposed in May 2018, that she not work as a nurse until that condition is removed by the Council, is confirmed.

Applicant's Medical Evidence

1. The applicant relied upon the evidence of Dr Samuels and Dr Wright. The respondent relied upon the evidence of Dr Roberts and of Dr Dinnen. The Tribunal will refer to the relevant portions their evidence. Also referred to hereunder is the proceedings before the Impaired Registrants Panel.

Dr Anthony Samuels

1. An independent health assessment was prepared by Dr Anthony Samuels, psychiatrist, dated 16 October 2015. In such report Dr Samuels found that the respondent had a period of emotional distress following a work termination; that her self-report suggested that she was not currently experiencing any emotional distress; there was no clinical evidence that she was suffering from a major depression or anxiety disorder nor of any substance misuse disorder. Dr Samuels concluded: "… On the basis of my assessment today, I can find no clear evidence that [the respondent] is suffering from impairment within the meaning of the Law."

Further assessments

1. Further assessments by Dr Samuels took place as follows: 29 March 2018 : such report includes the following: 37. In my report of 15 October 2015 I noted that she was quite pressured, hard to interrupt, excitable, emotional and tearful. I thought there was a possibility that she had an underlying mood disorder of a bi-polar type but I was unable to give a definitive opinion at the time. I did not find clear evidence that she was suffering from an impairment within the meaning of the law. Today (the respondent) was difficult to follow, she was pressured in speech, thought disordered, mildly disinhibited, quite disorganised and grandiose. It was difficult to get a coherent history from her. 38. She presents as quite insightless continually stating that she is not, "psychiatric" but then listing a range of disorders and conditions she says she is suffering from. She feels she is doing well and does not need to be on any medication. She is now only seeing her GP intermittently and she is not under the care of any psychiatrist or psychologist. 39. Her current clinical picture is in keeping with a bipolar type disorder with hypomanic features. 40. She does in my view have an impairment within the meaning of the law and appears to have a prominent mood disorder with bipolar type features. This condition has the potential to impact upon her professional responsibilities. 41. She has not worked since 2015 and I certainly would not see her as being fit to undertake a nursing role at the present time. There are additional concerns in regard to her competency. 42. It is my view that [the respondent] should enter the impairment program I would not currently see her as being fit to return to a nursing role. She should be under the care of a psychiatrist, general practitioner, and possibly psychologist. She should be taking medications as directed and should only return to a nursing role when she is cleared to do so by her treating professionals. At that point it would be appropriate for her to be further reviewed by the Council appointed psychiatrist and more definitive recommendations could be made in regard to the questions posed.
2. 2 April 2019: Dr Samuels noted that since 29 March 2018 the respondent had been consulting Dr Anthony Dinnen, psychiatrist, and her general practitioner. She had not been on any medication.
3. Dr Samuels stated in his recommendations: My impression remains unchanged and it is my view that she is not well enough to work as a Registered Nurse. In my opinion (the respondent's] mental state is not likely to improve without assertive psychiatric treatment. Given her lack of insight this is not likely to occur unless her mental state decompensates to the point that treatment can be enforced under the Mental Health Act.
4. 25 February 2020: Dr Samuels relevantly concluded: 44. My opinion is fundamentally unchanged. I note that (the respondent) was admitted to Royal North Shore Hospital over the Christmas period and placed on mood stabilising antipsychotic medication and this brief period of treatment seems to have made some difference. [The respondent] certainly is more settled in terms of her mental state, less pressured and perhaps slightly less disorganised. I note Dr Dinnen's continued stance that [the respondent) does not suffer from a mental illness. I understand he stopped her medication because she was having side effects but the fact that [the respondent] is now off all antipsychotic and mood stabilising medications is concerning. 46. It remains my view that [the respondent] suffers from an impairment within the meaning of the National Law and has a Mood Disorder with psychotic features and likely paranoid personality features. 47. These impairments do have the potential to impact upon her professional functioning.

Recommendations 48. It remains my view that (the respondent) is not fit to practise as a nurse until she develops more insight into her mental illness, is accepting of appropriate treatment, and remains on prescribed treatment for an adequate length of time. Whether or not her insight would improve with longer term treatment with psychotropics is uncertain, but the brief period in hospital seemed to lead to some improvement in her mental state. Without more assertive psychiatric and psychological treatment interventions, the prospects of her returning to a nursing role are quite low at this time. It seems evident that ongoing litigation, at significant cost financially and to her personal well-being, is very unlikely to achieve the resolution she is hoping for and is likely to be detrimental to her psychological and psychiatric well-being and overall prospects for recovery.

Expert report: Dr Murray Wright

1. Dr Murray Wright, Consultant Psychiatrist, has provided an expert report dated 26 July 2022. The report records that the respondent was asked to attend an assessment interview in early 2022. The respondent did not agree to attend the interview and accordingly the report has been prepared in the absence of a face-to-face interview. Instead, Dr Wright was reliant upon reviewing the assessments and reports from other health practitioners for the past eight or more years. Dr Wright stated he was also assisted in his understanding of how the respondent responded to stress and adversity, and how such matters were understood and interpreted by the respondent by reading the documents relating to her interactions and correspondence with the regulatory authorities and courts.

Summary of History Relied upon by Dr Wright

1. Dr Wright observed that following the imposition of conditions on the respondent's registration on 21 September 2015 following the s150 hearing, the respondent attended a performance assessment in simulation at Notre Dame University on 2 December 2015. The respondent withdrew part way through the assessment stating that, as is referred to in Dr Wright's report, that the clinical area she was being assessed in was not appropriate for her clinical experience of operating rooms. Thereafter the respondent subsequently provided medical certificates which stated that she was unfit for work.
2. A further performance assessment was scheduled for 17 January 2017. The respondent confirmed she would attend, but on 16 January 2017 she advised that she would not attend the performance assessment and provided a medical certificate.
3. On 27 January 2017 the Council considered the respondent's failure to attend a performance assessment and determined to refer her for a health assessment. The respondent failed to attend on three scheduled health assessments on 2 March 2017, 9 March 2017 and 2 June 2017. Thereafter the Council considered it was necessary to refer the respondent for urgent action proceedings under s150C of the National Law. On 13 July 2017the respondent attended the s 150C proceedings: as a result, new conditions were then imposed on her registration which included a condition that she not work as a nurse and that she should be required to attend a health assessment.
4. On 29 March 2018 the respondent attended a health assessment followed by an Impaired Registrants Panel held on 22 May 2018. The respondent entered the Council's health program on 30 May 2018 when a condition not to work as nurse was imposed on her registration under s 152J of the National Law.
5. The respondent attended a health assessment with Dr Samuels on 2 April 2019. On 11 June 2019 an Impaired Registrants Panel concluded that the respondent had a health condition which would detrimentally affect her capacity to safely practise, as stated earlier in this decision.
6. On 25 February 2020 the respondent attended a Council Directed Health Assessment with Dr Samuels. On 24 March 2020 the Respondent attended an Impaired Registrants Panel which, as stated above, concurred with Dr Samuels' opinion.

Opinion of Dr Wright

1. Dr Wright provided the following opinions in answer to the following questions asked of him: 1. What is the current mental health status of Ms Clarke? Dr Wright stated that he had insufficient information to comment on the current status of her bipolar disorder but stated that he was of the view that "the paranoid personality disorder continues to influence the behaviour and interactions with regulatory authorities, the courts and health professionals". 2. Does Ms Clarke currently suffer from an impairment within the meaning of the National Law: Dr Wright opined that the respondent does currently suffer from such impairment on the basis that her conditions of bipolar disorder with psychotic features and paranoid personality disorder have detrimentally affected and are likely to continue to detrimentally affect the respondent's capacity to practise the profession. 3. If Ms Clarke does currently suffer from an impairment is at impairment likely to detrimentally affect her capacity to practice as a nurse? Dr Wright responded stating that he believed that the impairment which the respondent currently suffers from is likely to detrimentally affect her capacity to practice as a nurse. 4. Do you think Ms Clarke is competent to practice the profession of nursing and has the sufficient mental capacity to practice the profession? Dr Wright considered that on the information available the respondent was not currently competent to practice the profession of nursing and does not currently have sufficient mental capacity to practice the profession. He noted the respondent's complete rejection of any suggestion that she was suffering from a treatable psychiatric disorder would continue to impair her interaction with her colleagues and authorities. Dr Wright also stated he believed this would impact on her ability to work effectively as part of a team in a clinical health environment. He continued: Her absolute refusal to accept that she might benefit from some form of medication treatment for her condition or that she has contributed in any way to the problems she has experienced over many years leads me to the view that she would not be competent to practice the profession of nursing. 5. What is Ms Clarke's prognosis? Dr Wright considered that the respondent's lack of insight and complete refusal to engage in any appropriate treatment led him to a very guarded prognosis. He referred to her admission as an involuntary patient to North Shore Hospital in late 2019 when she was required to take psychotropic medication which resulted in an improvement to her mental state that was still present in February 2020 when she was assessed by Dr Samuels, even though she had ceased medication by that time. He stated that this indicated her mental state was likely to respond to appropriate medication and he held some hope that the respondent may accept medication treatment in the future. Dr Wright agreed with Dr Samuels' opinion that this was most likely to happen if there were a period of involuntary treatment under the Mental Health Act 2007 (NSW). He concluded: Unfortunately, without such treatment Ms Clarke's prognosis is poor. She will remain insightless, preoccupied with persecutory themes which occupy her time and energies, and subject to periodic relapses of bipolar affective disorder. 6. What ongoing treatment, if any, would you recommend for Ms Clarke? Dr Wright responded that based upon the documents provided to him, he could find evidence that the treatment with a mood stabiliser and an anti-psychotic medication could provide significant benefit, together with ongoing review from a psychiatrist, and possibly with the additional support of a psychologist. 7. What is your opinion of the likelihood of Ms Clarke's compliance with any future treatment? Dr Wright stated that he formed the view that the respondent was unlikely to comply with a treatment regime that included medication unless such treatment was given under a degree of compulsion such as during an involuntary admission or under a Community Treatment Order. The documentation revealed several attempts by treating clinicians to encourage her to initiate treatment but she rejected such treatments and "in most cases incorporated the doctors who suggested these treatments into her conspiratorial world view". 8. If Ms Clarke were permitted to return to practice what restrictions, if any, should be placed on her registration, such as supervision? Dr Wright stated that the respondent should not return to practice until an independent health assessment by a psychiatrist confirmed that she has engaged in appropriate treatment and that the conditions of bipolar disorder with psychotic features and paranoid personality disorder were being managed to the extent that she could practise. Any return to practice under those circumstances should include a requirement that she continues to see a treating psychiatrist and adhere to treatment prescribed by that psychiatrist; that she be reviewed by an Impaired Registrants Panel on a regular basis and that she undergo a performance assessment in her chosen area of expertise.

Dr Samson Roberts (No oral evidence)

1. Dr Samson F. Roberts, consultant forensic psychiatrist, dated 22 October 2014, prepared a medical report in relation to a Workers Compensation Claim. Dr Roberts was required to assess whether the respondent had suffered a compensable psychiatric injury arising from her workplace. He has not consulted with the respondent since 2014.
2. Dr Roberts noted that the respondent self-reported as being unwell between 7 August 2014 and 19 September 2014 and that she experienced pacing between 2am and 4am and, when this resolved, subsequently waking at 4.30am; "flashbacks" about her former workplace; a propensity to ruminate; restlessness; an inability to clean the house or prepare meals for a period of three weeks; alterations to her concentration, memory, confidence and self-esteem; disorganisation; persisting pessimism; suicidal thoughts that had resolved by the time of the assessment; and feelings of depression and anxiety in relation to her former workplace. Dr Roberts stated that he considered the respondent's account of her circumstances as similar to the serious emotional response a normal, healthy person would experience if their employment, career and professional registration were threatened.
3. Dr Roberts noted that the respondent had taken an antidepressant medication (venlafaxine) between August and November 2014 but was taking a lower dose than had been prescribed, a multivitamin and medication to manage insomnia (temazepam). Dr Roberts noted that he did not consider this medication as relevant to the respondent's emotional state.
4. Dr Roberts considered that the respondent had not suffered a psychiatric condition consequent upon circumstances in the workplace; and that the respondent did not present as impaired from a psychiatric perspective. He also did not find any material to suggest the presence of a pre-existing psychological condition. He identified no psychiatric illness.

Dr Andrew Adams (no oral evidence)

1. On 19 January 2018 the respondent consulted with a general practitioner, Dr Andrew Adams.
2. Dr Adams did not provide oral evidence. His notes on 19 January 2018 record that the respondent was in receipt of a drug known as valproate, prescribed as a mood stabiliser. It is not known how long the respondent had been in receipt of such medication, nor who prescribed it. However Dr Adams noticed that the respondent then had "persisting pressure speech plus flight ideas"
3. The next consultation was on 27 January 2018 when Dr Adams discussed the dose of valproate and noted that the respondent declined to have an increasing dose. The reason for the visit was recorded as: BIPOLAR.
4. On 11 February 2018 the respondent consulted Dr Adams and his note records that she wished to "wean off valproate, advised against".
5. On 17 February 2018 Dr Adams recorded relevantly: has been alienated by 2 children has lost job taking hospital to Court I tried repeatedly to make her understand that she had bipolar disorder No insight, refuses to accept diagnosis
6. On 28 February 2018 the notes record that the respondent had ceased valproate and denies any psychiatric deficit. On a further visit on 9 April 2018, Dr Adams again recorded the reason for the visit as: Bipolar.
7. The notes of 24 April 2018 relevantly record that the report of Dr Anthony Samuels was discussed in depth; "long counselling session re mood disorder; no insight, refuses to believe diagnosis of bipolar type disorder; refusing psychiatric referral". The reason for the visit was again recorded as: Bipolar .
8. On 26 May 2018 the notes record: "still refusing to believe diagnosis bipolar". A similar entry was made on 16 June 2018 when Dr Adams recorded relevantly: "pressure of speech; still refusing to consider that she may be bipolar".
9. Thereafter the consultations continued. On 27 January 2019 Dr Adams recorded: Persisting pressure of speech, flight ideas and some persecutory delusory ideas. Advised I believe she may have an ongoing psychiatric condition, possible hypomania…Advised that if she provides a report from Dr Dinnen psychiatrist and Serena Cauchi psychologist, both of whom reviewed her recently, that I will review my opinion.
10. The last face-to-face consultation was on 24 July 2019.

Dr Patrick Toohey (no oral evidence)

1. Dr Patrick Toohey, psychiatrist, provided a report dated 6 November 2017 to Dr Adams. Dr Toohey records that he had received letters from the respondent's treating psychiatrist, Dr Andrew MacPherson, and a treating psychologist, Anne Lucas. His report relevantly states: I agree with both Andrew and Anne that Ms Clarke exhibits signs and symptoms of a bipolar disorder. Her conversation was initially non-stop with flight of ideas and some pressure of speech. I even wondered if she should be admitted to hospital… I prescribed Seroquel tablets and asked her to take one when she got home and email me her evaluation. It did have a tranquillising effect but Ms Clark didn't like the effect and refused to take any more.… I worry that without treatment, Ms Clarke won't be able to attend to her legal issues.

Reports of Dr Anthony Dinnen, Consultant Psychiatrist

1. Dr Dinnen has provided several reports commencing on 16 July 2018. His reports of the following dates relevantly contain the following opinions:
2. 16th of August 2018: Dr Dinnen advised the respondent that he did not think she should seek a fitness certificate so she could return to work. He stated: I think that is because she is so much consumed by these legal matters in the ongoing litigation where she is trying to establish justice and recompense. When these are resolved I believe she would certainly be fit to return to full-time work as a nurse in her profession, and I discussed this with her.
3. 15 October 2018: Dr Dinnen clarifies his earlier report when he used the words "consumed" by litigation stating: I did not mean it could cause any psychiatric illness. She is fully well. The litigation is "consuming" so much time and effort I do not think she should try to work at this time.
4. 14 January 2019: Having referred to the litigation in which the respondent was involved, Dr Dinnen stated: I have found her on all occasions she has been with me to be without evidence of any severe mental illness.… However, I am agreeable at this stage now that the number of cases have been coming to court for her to apply to AHPRA to be reassessed as to her fitness for work. This would be by psychiatrist Dr Anthony Samuels who has previously assessed her in that regard. In my view she would be capable of doing some part-time work, but I will leave this decision to APHRA and Dr Samuels.
5. 26 February 2019: This report confirmed that the respondent had been attending regularly for counselling since July 2018 every month or two for support, discussion and guidance. The report states: At all times I found her to be intelligent, well-balanced emotionally, and without any evidence of psychiatric illness. In my view she is perfectly well mentally, and is fit to resume any form of part or full-time nursing as she desires and is made available to her… In my view there is no evidence from any time that I have consulted with [the respondent] that she suffers any form of mental illness or psychiatric or psychological disorder.
6. 27 May 2019: this report focused on an observation by Dr Samuels in his report of 2 April 2019 which noted the report of Dr Dinnen and made the observation that it was "often difficult as a treating practitioner to be frank about the patient's mental state because of the risk of alienating them therapeutically and in addition she is highly litigious". Dr Dinnen took exception to such remark, stating: I would certainly say if I thought she was paranoid or psychotic or suffering from any other form of psychiatric illness. My statement, after 50 years of consulting practice as a psychiatrist, that I do not consider she has any psychiatric illness is to be taken at face value and is not to be interpreted in this way, as it was by Dr Samuels.
7. 13 January 2020: the report states: This is to certify that Sharmain attended today for an assessment. I consider she is fully fit to work in her usual occupation.
8. 13 January 2020: this report to Dr Hilton Shapiro (the respondent's extant general practitioner) relevantly states: I first saw this patient in July last year on referral from Dr Andrew Adams of Randwick.… Sharmain has continued to attend on a regular basis for counselling, but I have not considered her to be formally diagnosable with psychiatric disorder… Dr Sam Roberts saw her in October 2014 and considered she had no psychiatric condition. Others have diagnosed her as suffering from bipolar disorder I have not seen her since June last year apart from a brief visit to my office in August, but I was informed that she had been hospitalised at Royal North Shore Hospital when I received a phone call from the psychiatric registrar on 28 November. Sharmain had presented because of chest pain and a psychiatric assessment was then carried out. I advised the registrar that in my view she did not have a psychiatric illness but others were of a different view. That apparently was sufficient for her to be incarcerated until she was eventually released on 16 December. Appropriately she has now ceased medication and she attended for review and discussion on 13 January with your referral.
9. 4 November 2020: this report states only: This is to certify that Sharmain had a telephone consultation on 24 August 2020. I consider she is fit to work in her usual occupation.

Prior Tribunal proceedings

1. The decision in the 2021 Tribunal proceedings (referred to above) records relevantly that the Tribunal at [64] compared the opinions of Dr Samuels and of another psychiatrist, Dr Dinnen, and for the reasons stated in such paragraph, found that Dr Samuels' opinion should prevail "compared to the bare opinion of Dr Dinnen". The decision continues: [65]. In our view, the weight of evidence suggests that [the respondent] currently has an impairment. Although there is no diagnosis from a time at the Royal Hospital for Women, her history suggests that she may have been suffering from a Mood Disorder or some other form of mental illness before her dismissal. Her fixation on litigation, which to date has been entirely unsuccessful, is troubling. Her admission as an involuntary patient in late 2019 with a diagnosis of psychotic illness and Dr Samuels' diagnosis all point in one direction. In 2017, she failed to comply with conditions that she undergo a health assessment and have her performance assessed. Shortly after being discharged from inpatient care in late 2019, she stopped taking the medication that appeared to improve her mental state. Even her notice of appeal is difficult to understand, is disorganised and expresses persecutory ideas. Her refusal to consider the possibility that she is ill and needs treatment demonstrates a lack of insight. [66]. A nurse who is thought-disordered or may become so without warning, or who suffers from a serious Mood Disorder, cannot be given responsibility for caring for patients in the capacity of a registered nurse. It is unsafe for the patient and unfair for the nurse to bear such responsibility. The inescapable conclusion is that (the respondent] currently has an impairment within the meaning of the National Law. [67]. For (the respondent), who is clearly very determined to resume her career as a nurse, this is very unfortunate. Dr Samuels' report suggests both that (the respondent) needs treatment, and that assertive treatment may result in her recovery. If she does not receive the treatment, her prospects of recovery and a return to nursing do not appear bright.

Court proceedings

1. The respondent has also instituted numerous proceedings, in the District Court of New South Wales; in the Supreme Court of New South Wales; in the Federal Circuit Court of Australia; in the Federal Court of Australia and in the High Court of Australia. Those proceedings are conveniently summarised in the decision of the Supreme Court of New South Wales in proceedings South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63 in which the plaintiff sought an order against the respondent under the Vexatious Proceedings Act 2008. In her decision, Schmidt J at [69] said: I am thus well satisfied there can be no question that [the respondent) has frequently instituted and conducted vexatious proceedings in Australia. The Court's power to make the orders sought is thus enlivened and must be exercised.
2. As a consequence, proceedings against various parties were stayed.
3. The respondent commenced other proceedings thereafter in the Supreme Court of New South Wales but in each case the summonses were dismissed: see for example Clarke v Adams [2021] NSWSC 1665; Clarke v Nursing and Midwifery Council of New South Wales [2022] NSWSC 15; Clarke v New South Wales Nurses and Midwives Association (The Union) [2022] NSWSC 349.

Reports of Impaired Registrants Panel

1. The Impaired Registrants Panel have provided reports as follows:
2. 22 May 2018: this Report made the following recommendation: The Panel recommends that (the respondent) must be well engaged with a GP, psychiatrist and psychologist, with regular reviews and compliance with treatment. Once her treating practitioners form an opinion that she is fit to work as a nurse, and they provide their opinion in writing to the Council, the Panel recommends a further health assessment, ideally by the same Council appointed psychiatrist, as continuity will be valuable.
3. 11 June 2019: this report relevantly stated The Panel concludes that (the respondent) has a health condition that would detrimentally affect her capacity and safety to practise, due to her disorganisation, thought disorder, intense preoccupation with rigid themes (including paranoid, persecutory ones), and lack of insight. We note that she does not have a clear diagnosis and is not receiving assertive treatment. She has found the counselling and support from her psychiatrist and (past) GP of benefit. Due to the combination of concerns about her performance and concerns about her health we believe (the respondent) would pose a risk to the safety of the public, especially in her preferred context of practice, being perioperative nursing. The Panel acknowledged to (the respondent) that she had improved since the last IRP. We believe (the respondent) could benefit with further support and intervention. We recommend to the Council that it set a time period within which (the respondent) is unable to request a further review under section 152k (5) and recommends that this be six months from the date of this Panel.
4. 24 March 2020: This report referred to the opinion of Dr Dinnen that the respondent was fully fit to work in her usual occupation. The Panel observed: We note that he does not note the occupation, nor provide any further information to assist the Council, such as his diagnosis or formulation, assessment of the mental state, his management plan, his opinion in regard to her prognosis, or his response to the concerns outlined in the reports from the CAP and the Council. We note that we are again unable to reconcile the differences of opinion between Dr Samuels and Dr Dinnen, but note that Dr Samuels' account of her presentation and his concerns about her fitness to practise are consistent with the observations made and the conclusions reached by the Panel. We note that we as a Panel have seen some improvement in (the respondents) presentation, but she remains without a clear diagnosis or treatment plan, and she does not acknowledge or demonstrate any understanding of her mental health issues or the need to have active treatment. We note this is despite an involuntary admission to hospital only five months ago, at which time she was advised of the diagnosis and need for ongoing treatment. We are therefore of the opinion that (the respondent) remains a risk to the public should she work as a nurse. We have no evidence before us today the current condition should be changed or removed. We have no confidence that there are other conditions that would allow sufficient protection to the public and agree with Dr Samuels that (the respondent) is not fit to practise as a nurse. We recommend: That the current conditions remain unchanged.

The Tribunal Hearing

1. The first day the hearing, namely on 31 October 2022, was utilised by the tender of documentary evidence from each party, and discussion concerning objections to various portions of the evidence. The Tribunal also raised for the parties consideration whether there could be an agreement pursuant to which the respondent submitted to an independent psychiatric assessment and any testing such assessment may require. The respondent declined to agree to such a proposal.
2. The respondent had informed the Tribunal that she wished to call Dr Roberts, a psychiatrist who in 2014 had provided an expert report for a workers compensation claim, and a summons had been issued by the respondent seeking his attendance. Accordingly, Dr Roberts' evidence was to be taken at 2 pm on that day. However, at 1 pm on the first day of the hearing, the respondent indicated that she no longer wished to ask any questions of Dr Roberts.
3. On the second hearing day, Drs Samuels, Dinnen and Wright provided evidence and each witness was extensively questioned by the respondent. On the third day the respondent did not offer herself for cross examination and accordingly this day and the fourth day of the hearing, were confined to submissions.

Respondent's oral Submissions

1. At the outset of the fourth day of hearing, the respondent sought leave to issue a subpoena to the acting director of the applicant. She did so on the basis that the proceedings had been incorrectly commenced, and asserted that there were irregularities to the extent that she did not know what she was answering. It was pointed out to the respondent that the issues in the application were plain and had been discussed with her on the first day of the hearing. Further, in view of the prior interlocutory application, no purpose would be served by the issue of the summons. Accordingly leave to issue the summons was refused.
2. The respondent made extensive oral submissions. Many of the submissions dealt with procedural issues which had either already been considered by the Tribunal at its hearing on 26 May 2022 or were not relevant. For example, the respondent raised issues concerning the adequacy of the amended application and the fact that the complaint referred to s 149C (1)(b), whereas the amended complaint referred to s 149C (1)(a). Having explained to the respondent that the issue of the amendment had been dealt with, the respondent then asserted that the proceedings had been wrongly commenced by the Nurses and Midwifery Council. It was explained to the respondent that the application before the Tribunal was initiated by the applicant and that the applicant was not associated with such Council. Thereafter the respondent made the submission that there had been a breach of s 40 (3) (a) of the Health Care Complaints Act because she had not received notification of the claims made against her by the Council. It was then pointed out to her that the submission she relied upon did not create any breach, since the applicant had provided her with full notification of the issues raised against her.
3. The respondent then reiterated: "I don't believe I suffer from any psychiatric condition". The applicant then referred to the fact that she had at all times maintained her continuing professional development with a focus on maintaining her registration as a registered nurse.
4. The respondent then helpfully provided some details of her employment as a registered nurse which may be summarised as follows:

• Prince of Wales Hospital 2003 - October 2008: perioperative
• Eastern Suburbs Private Hospital: 2008 - 2009 team leader
• North Shore Private Hospital: 2009 - 2011
• Royal Hospital for Women: October 2011 - 5 May 2015: night manager in operating theatre
• Concord Private Hospital: May 2015 - June 2015.

1. The engagement of the respondent was as a registered nurse specialising in the perioperative environment, including working as a recovery nurse. The records reveal that she was dismissed from the Royal Hospital for Women in 2015 on the basis that her clinical practice was unsafe and presented an unacceptable risk to patients, and that she was unable to fulfil the requirements of the role of registered nurse.
2. The respondent referred the Tribunal to numerous references provided by persons engaged in the provision of medical services. Several of the medical practitioners who provided references spoke very highly of her performance. For example Dr Peter Isert provided a reference dated 11 October 2017 which stated inter alia: I have at all times found Sharmain's performance in clinical work be of the highest order. She impressed me with her attention to clinical detail, preparedness and safe work practices. I observed her to be an excellent team player, commanding the respect and trust of her medical & nursing colleagues alike. Sharmain always seemed to me to approach her work both professionally and passionately.
3. Two other medical practitioners have provided reports referring to the respondent's competency. It is noted that those reports were each dated October 2015. The head of day surgery for Sydney Day Surgery which conducts surgeries in three locations in the Sydney metropolitan area provided a reference dated 18 September 2015 in which he referred to the respondent's excellent performance.
4. Numerous other references have been provided which speak of the excellent qualities displayed by the respondent. Some of such references were provided by registered nurses, and others from persons who have come to know the respondent. The dates of such references extend from 2017 to 2021.
5. The respondent has also provided certificates verifying her graduation from Graduate Certificate in Clinical Nursing (perioperative) from the Australian Catholic University dated 31st of March 2005; details of her registration and employment and her experience as a registered nurse. The Tribunal accepts that the respondent has attained the requisite educational qualifications for her to be registered as a nurse.
6. In her closing submissions, the respondent claimed that there were irregularities in the fact that the proceedings were commenced five years after the s 150 Hearing; that the applicant was in a conflict of interest position with other agencies; that the applicant had engaged in fraudulent conduct and it had denied her procedural fairness concerning the s 150 Hearing.
7. Each of these allegations was denied by the applicant, which denied any conflict of interest. With respect to procedural unfairness, the confusion had arisen because the applicant had requested a copy of the transcript of the s 150 Hearings and accordingly its name appeared on the transcript page. However, the applicant never participated in those proceedings and accordingly there was no basis for any claim of procedural unfairness by the applicant.

Dr Dinnen

1. Dr Dinnen testified that he issued a certificate on 13 January 2020 certifying that the respondent was fit to work. He had not seen the respondent for six months prior: the last face-to-face consultation was on 24 July 2019. He also had no telephone consultations in that period.
2. Dr Dinnen was asked whether the applicant who had rapid speech and confused thought processes suffered from a bipolar condition. However he said that such symptoms were "not sufficient in my view for a diagnosis". He saw his role as providing counselling and assistance to help with the respondent's registration as a nurse. He never made a formal psychiatric assessment of the respondent. He assessed her based upon the conversation he had with her during his consultations. He never diagnosed the respondent with having a psychiatric condition. He stated that had he considered she had such a condition he would have referred her.
3. Dr Dinnen became aware that his patient had been admitted as an involuntary patient to Royal North Shore Hospital on 28 November 2019 when he was telephoned by the Registrar during her period of admission. However Dr Dinnen never viewed the discharge summary following the respondent's discharge from hospital on 16 December 2019. The next consultation was on 13 January 2020 when the respondent attended at Dr Dinnen's consultation room without an appointment. As a result of that appointment, Dr Dinnen wrote his letter stating that the respondent was fit to return to work. He did so in ignorance of the discharge summary. When questioned whether he considered the hospitalisation was warranted Dr Dinnen replied words to the effect: "I was not convinced she had a psychiatric diagnosis. I was focused on what I saw when she came to see me".
4. Dr Dinnen, in oral evidence, indicated that he had a lack of confidence in the public mental health system because it had misdiagnosed his patients in the past.
5. When asked whether he should have obtained the discharge summary from the Royal North Shore Hospital, he replied words to the effect: "What for? I would not have changed my view". Later he added "I would have taken it with a grain of salt".
6. Dr Dinnen said: words to the effect: "If I was formally diagnosing her, the discharge summary would have been vital. But it would not be helpful".
7. Dr Dinnen reiterated that he was providing counselling and therapy for her distress and concern about her condition, namely to be restored to a position (as a nurse) and his role was supportive. He considered that her court actions were not a manifestation of a mental illness. He acknowledged that he did not realise the extent of the litigation in which the respondent was involved but indicated that had he known the full extent of it, he would have been concerned. However, he again stated that he never made a diagnosis of the applicant and did not prescribe any medication for her. He understood, as per his letter dated 14 January 2019, that Dr Samuels was to undertake the formal assessment of the respondent. Significantly, the Tribunal notes that Dr Dinnen never required the respondent to undergo a mental health assessment, and he readily acknowledged that he never performed a mental health assessment of the respondent.

Dr Samuels' oral evidence

1. Dr Samuels did not alter his previous opinion expressed in his reports that the respondent is suffering from an impairment.
2. He observed that the clinical presentation of the respondent was the most significant consideration when making his assessment. Dr Samuels was extensively cross-examined by the respondent but he steadfastly maintained his opinion.

Dr Wright's oral evidence

1. The respondent cross-examined Dr Murray Wright. The respondent suggested that, because the expert had relied upon records provided to him by the applicant and that he had not interviewed the respondent, Dr Wright was biased or otherwise not impartial. Such propositions were rejected by Dr Wright. It was also put to Dr Wright that the criteria for impairment was not satisfied. Dr Wright responded that the records indicated a bipolar condition with paranoid character traits and that this had been diagnosed. He stated that as such it was a chronic condition which was known for the risk of relapse. He described the symptoms of mania, namely hallucinations, delusions, disturbed sleep, grandiose thoughts, irrationality and reckless behaviour; and depression (depressed mood, bad sleep patterns, reduced level of sleep and concentration, and tiredness). Dr Wright stated that bipolar disorder typically fluctuates between mania and depression and the person in between such symptoms can return to a normal level of functioning.
2. Dr Wright considered that the discharge summary provided a detailed account of her presentation when the respondent was experiencing acute mental illness and that this summary, supplemented by the reports of Dr Samuels who had consulted with the respondent on more than one occasion, provided a basis for his view that the respondent is suffering from an impairment.
3. The Tribunal reiterates that at no time did Dr Dinnen ever perform a formal psychiatric assessment of the respondent: rather, his role was, as he stated, to provide counselling and assistance to the respondent. He did not read the Royal North Shore Hospital discharge summary; he made no prescription of any medications which may have provided the same benefit that she had gained whilst an involuntary patient in hospital, that Dr Dinnen wrote his letter of 13 January 2020 recommending a return to work in circumstances which are concerning, taking into consideration the fact that he had not consulted with her face-to-face for a period of six months.
4. Although Dr Wright did not consult with the respondent because she refused to attend two consultations arranged by the applicant, the Tribunal notes that Dr Wright formed the same opinion as Dr Samuels, based upon the records which he had seen. The Tribunal acknowledges that Dr Wright's report would have been more valuable had the respondent attended the consultation but she declined on more than two occasions to do so. Irrespective, the Tribunal notes that Dr Wright's report confirms the opinion of Dr Samuels, namely that the respondent is suffering from an impairment.
5. In the circumstances, the Tribunal finds that the evidence of the discharge summary; and the evidence of Dr Samuels, Dr Adams and Dr Toohey satisfies it to the requisite standard, that the respondent is suffering from an impairment. Such conclusion is supported by the expert report of Dr Wright.

Principles

1. The object of the National Law is contained in s 3A thereof, namely that the paramount consideration must be the protection of the health and safety of the public. Where a person seeks to practise as a health professional, the ultimate test is whether the practitioner is a fit and proper person to be so registered.
2. The term impairment is defined in s 5 of the National Law, relevantly as follows: impairment, in relation to a person, means the 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 - (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or…
3. In determining whether a person is suffering from an impairment, the Tribunal must be satisfied to a high degree that the evidence establishes that the person is so afflicted. It has been accepted that the appropriate test is that contained in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; see also the observations of the Court of Appeal of New South Wales in BronzeWing International Pty Ltd v Safework NSW [2017] NSWCA 41.

Findings of the 2015 Tribunal

1. The Tribunal determined in 2015 that the applicant was suffering from an impairment. In the deliberations, the Tribunal considered the evidence of Dr Samuels and of Dr Dinnen. The Tribunal preferred the evidence of Dr Samuels and rejected the opinion of Dr Dinnen, on the basis that his opinion was inadequately supported.
2. The evidence clearly established that the respondent has been suffering from mental health issues which have been diagnosed by several practitioners.

Specific findings : Present application

1. The amended complaint particularises the claimed impairment as follows: 1. The practitioner suffers a physical and/or mental condition or disorder namely bipolar disorder. Finding: the diagnosis of Dr Toohey, Dr Samuels and Dr Wright establishes that the applicant is suffering from a bipolar disorder. Dr Dinnen made no formal mental assessment of the respondent and deferred such matter to Dr Samuels. 1. Since at least 2 April 2019 the practitioner has exhibited psychotic and likely paranoid personality features: Finding: this particular is established by the report of Dr Samuels dated 2 April 2019. 1. For the period 28 November 2019 to 16 December 2019 the practitioner was admitted, initially involuntarily, to Royal North Shore Hospital (RNSH) for psychiatric medical services: Finding: this particular is proved by the discharge summary of RNSH; 1. Upon presentation to RNSH, the practitioner voiced persecutory ideations including references to home intrusion and surveillance cameras on the ceiling: Finding: the Discharge Summary of the RNSH records that the respondent engaged in conduct referred to in the above particular. 1. The practitioner exhibits a lack of insight in relation to her impairment, in that she: 1. Denies she suffers from mental illness: Finding: in her Reply the respondent denies she suffers from a mental illness; stated she never suffered from such illness; denies she has not complied with prescribed mental health treatment regimen and denies that she failed to attend and complete a performance assessment as required by the Nursing and Midwifery Council. Before this Tribunal the respondent repeated her denial that she was suffering from any impairment. 1. Has not complied with prescribed mental health treatment regimen: Finding: 1. the medical report of Dr Patrick Toohey dated 6 November 2017 records that the respondent exhibited signs and symptoms of a bipolar disorder and questioned whether she should be admitted to hospital. Dr Toohey explain the use of Seroquel and prescribed Seroquel tablets and asked her to take one when she got home and thereafter contact him. The report states: "It did have a tranquilizing effect but Ms Clark didn't like the effect and refused to take any more". 1. Dr Adams (general practitioner) recorded that the respondent was prescribed Valproate on 20 November 2017 but ceased using Valproate on 28 February 2018. His subsequent report recorded on 9 April 2018 that the respondent refused to restart Epilim (Valproate). 2. the Discharge Summary of RNSH records that the respondent was prescribed Aripiprazole and was given 7 days' supply on discharge from hospital on 16 December 2019 and told to consult with her psychiatrist or general practitioner. 3. on 20 December 2019 Dr Shapiro provided a prescription for Aripiprazole 15mg. However by 13 January 2020 Dr Dinnen records that the respondent had ceased the medication because she was concerned about side-effects. Also on 13 January 2020 the respondent consulted her general practitioner Dr Shapiro who referred to the Discharge Summary and whilst noticing that the respondent's lips were darker and more swollen than usual, reassured her that such symptoms were unlikely to be drug-related and that she should continue the medication In view of the above, the Tribunal finds the respondent has failed to comply with the prescribed mental health treatment regimen. 1. failed to attend and complete a performance assessment as required by the Nursing and Midwifery Council: Finding: this particular is established by the decision of the Council which records on 16 August 2017 that the respondent had not completed a performance assessment nor attended a health assessment as required by the Council. There is no evidence that the respondent has submitted herself to an assessment at any time thereafter.
2. This Tribunal notes the findings of the proceedings in the Tribunal in Clarke v Nursing and Midwifery Council of New South Wales [2021] NSWCATOD 32 at [66] where the Tribunal, having considered the risk of registering a nurse who suffers from thought disorders or mood disorders made its conclusions at [66] and [67] of its decision (set out at [56] above). This Tribunal considers that no circumstances have changed, and concurs with those findings.
3. The respondent indicated that she wished to teach nursing. The applicant opposes such course, and in view of the respondent's history and her lack of treatment, considers that such activity would constitute a risk to the health and safety of the public. The Tribunal has been referred to the decision in Health Care Complaints Commission v Spirziola [2022] NSWCATOD 118 at [63], in which the Tribunal considered circumstances where a prohibition order should be made. The applicant emphasises that the prohibition sought against the respondent includes a prohibition against the respondent teaching nurses during the period when she is prohibited from practising as a nurse, since by definition educational services is included in the definition of "health service". The application is based upon the fact that s 4 of the National Law which includes in the definition of 'health service' the following: (g) health education services
4. Section 149C(5) enables the Tribunal to make a prohibition order prohibiting a person from providing health services for the period specified in the order or permanently or place conditions on the provision of such services.
5. In view of the fact that the respondent has not accepted any treatment for her mental condition, an order will be made to incorporate teaching of nursing in the prohibition.

Conclusion

1. In the circumstances, the Tribunal finds that the evidence of Dr Samuels, and of Dr Wright and the respondent's medical history provided by Dr Adams and Dr Toohey satisfies it, to the requisite standard, that the respondent is suffering from an impairment. The Tribunal arrives at such a conclusion, noting that whilst Dr Wright did not consult with the respondent, his report is the latest report to be considered. Specifically, the Tribunal does not accept the opinion of Dr Dinnen in view of the fact that he has never undertaken a formal mental health assessment of the respondent and deferred such assessment to Dr Samuels' opinion. The report of Dr Roberts also did not suggest that such practitioner was required to perform a full mental health assessment; rather he was required to provide an opinion for a compensation claim. The Tribunal also notes that Dr Roberts has not seen the respondent since 2014.
2. Complaint One is established. That is, pursuant to s 149C(1)(a) the Tribunal is satisfied that the respondent is not competent to practise her profession.
3. As a result of such finding the Tribunal finds that Complaint Two is also established, that is that the respondent is not competent within the meaning of s 139(a) of the National Law in that she lacks the mental or physical capacity to practise as a nurse, as such the respondent would constitute a significant risk to the health and safety of the public if she were permitted to provide a health service as defined in the National Law; see Health Care Complaints Commission v Spirziola [2022] NSWCATOD 118.
4. The applicant seeks a non-review period of 6 years. The Tribunal notes the reasons, namely that the respondent has refused treatment. However, the Tribunal considers that an internal review period of three years is sufficient to enable the respondent to seek appropriate treatment with a view to her possible reinstatement as a practising registered nurse.

Costs

1. On 29 October 2022 the respondent made an unsuccessful application to adjourn the hearing. The tribunal dismissed such application and directed that the question of costs be considered with the cost of these proceedings. The Tribunal considers that the costs incurred by the applicant in opposing the application constituted part of the costs of the whole proceedings and that these should be included in the order for costs to be made against the respondent.
2. The applicant seeks an order that its costs be paid by the respondent. Under Schedule 5D, clause 13 of the National Law, the Tribunal has power to require a party appearing before it to pay the cost of another party. The New South Wales Court of Appeal in Health Care Complaints Commission v Philipia [2013] NSWA 342 at (42) confirms that as a general rule the cost of proceedings before the Tribunal should follow the result. See also NSW Medical Board v Dinaker (2009) NSWMT 8; Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67];and the discussion contained in Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. However it should be noted that costs are not ordered by way of punishment but are purely compensatory for the successful party: see Latoudis v Casey (1990) 170 CLR 534 at [543] per Mason CJ; Ohn v Walton (1995) 36 NSWLR 77; Qasim v HCCC [2015] NSW CA 282 at [85].
3. The respondent opposes the order for costs but has made no specific submissions for why an order should not be made.
4. The Tribunal considers that the usual rule as to cost prevails namely that the unsuccessful party namely the respondent should pay the costs of the applicant. There is no basis for apportioning the amount of costs or for directing that the applicant pay the whole or part of its costs. Whilst the Tribunal accepts that the respondent is impecunious, this fact is not a reason to justify declining to make a costs order; see Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25.

Orders

1. The Tribunal orders that: 1. The respondent's registration as a nurse be cancelled pursuant to s 149C(1)(a) of the National Law with a non-review period of 3 years. 2. The respondent be prohibited from providing a health service, as defined in s4 of the Health Care Complaints Act 1993, including the provision of teaching of nursing, for the same period as the non-review period imposed; 3. The respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law, and of the reserved costs in respect of the application before the Tribunal on 26 May 2022.

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: 17 November 2022