Health Care Complaints Commission v Collins

Background

1. Until October 2019 Ms Collins was known by her former married name, Marscham. In these reasons we have referred to her by the name she prefers, Collins.
2. Ms Collins was registered as an Enrolled Nurse on 7 September 1987 after completing a Certificate in Enrolled Nursing. On 22 July 1993 Ms Collins was registered as a Registered Nurse (RN) after completing a degree in Nursing.
3. On 25 March 2008 Ms Collins' registration was cancelled, following a notification from the A/Deputy Director of Nursing (DON) at Sydney West Area Health Service advising that a three month order under the Mental Health Act 2007 had been made.
4. In May 2008 Ms Collins applied to have her registration restored. Dr Anthony Samuels, consultant psychiatrist, assessed her on 16 July 2008. An inquiry was conducted in August 2008 and on 18 August 2008 conditions were imposed on Ms Collins' registration, including that she continue a therapeutic relationship with a treating GP and psychiatrist, and not be employed through a nursing agency.
5. On 25 February 2009 Dr Samuels assessed Ms Collins. On 1 September 2011 the conditions on her registration were amended, continuing the conditions that she continue a therapeutic relationship with a treating GP and psychiatrist, and not be employed through a nursing agency.
6. In January 2012 Ms Collins requested a review of the conditions on her registration and on 2 February 2012 the conditions were removed.
7. On 24 August 2018 Ms Collins was admitted to Westmead Hospital. She became an involuntary patient on 27 August 2018 and was transferred to Cumberland Hospital. She was discharged from Cumberland Hospital on 27 March 2019 on a Community Treatment Order (CTO).
8. On 26 March 2019 Dr Kim Ngoc Ngo, a member of the treating team at Cumberland Hospital, made a notification to AHPRA. On 24 April 2019 the Nursing and Midwifery Council of NSW (the Council) conducted a hearing under s 150 of the National Law, and a condition was imposed on Ms Collins' registration that she was "Not to work as a registered nurse until reviewed by the Nursing and Midwifery Council of NSW". Reasons for that decision were published on 17 June 2019.
9. On 15 August 2019 Dr Samuels assessed Ms Collins. On 19 September 2019 an Impaired Registrants Panel hearing was conducted. The Panel recommended that Ms Collins not work as a registered nurse until reviewed by the Council. On 19 September 2019 Ms Collins signed an "Agreement to Conditions on Registration" (the Agreement), stating that she agreed to the conditions detailed in that agreement being placed on her registration as a nurse. Those conditions included "Not to work as a registered nurse until reviewed by the Nursing and Midwifery Council of NSW".
10. Ms Collins worked a 4 ½ hour shift at Archbold House on 23 November 2019. Two persons known to Ms Collins made a complaint to AHPRA on 27 November 2019 that Ms Collins had worked. On 2 December 2019 Dr Theresa Kanaan, Ms Collins' GP, made a notification to AHPRA that she had been informed by Ms Collins that she had worked through an agency in a nursing home.
11. A second s 150 hearing was conducted on 9 December 2019, and Ms Collins' registration was suspended. The Council referred the matter to the HCCC for investigation.
12. Since her registration as a RN Ms Collins has, other than a six month period working part time at Concord Hospital in 1995, been employed through agencies at a number of hospitals and nursing homes. In a curriculum vitae provided to the HCCC on 2 September 2019 Ms Collins stated that she had worked between August 2017 to August 2019 through NSA/Nurses Around the Clock, and had just resigned.

Evidence

1. The HCCC relied on the following documents: 1. Bundle of documents (ex A1) including: 1. Notifications to AHPRA: 1. Dr Kim Ngoc Ngo, Cumberland Hospital, dated 26 March 2019; 2. Two notifications dated 27 November 2019; 3. Dr Theresa Kanaan dated 2 December 2019; 1. Reasons for decision: 1. s 150 hearing 24 April 2019; 2. Impaired Registrants Panel 19 September 2019; 3. s 150 hearing 9 December 2019; 1. Neuropsychology report by Christopher Hoon, Cumberland Hospital, dated 27 February 2019 based on assessments 30 January 2019, 4 February 2019, 5 February 2019; 2. Driving Program Medical Referral Form, St Joseph's Hospital, 12 March 2019; 3. Independent Health Assessment by Dr Anthony Samuels, 15 August 2019; 4. Written submissions provided by Ms Collins for s 150 hearing, 5 December 2019; 5. Transcript of s 150 hearing 9 December 2019; 1. Expert report provided by Dr Anthony Samuels, dated 9 February 2021 (ex A2).
2. Dr Samuels gave oral evidence and was cross examined.
3. Ms Collins relied on a written statement dated 26 February 2021 (ex R1) and 9 character references (ex R2). Ms Collins gave oral evidence and was cross examined.
4. The HCCC bears the onus of proving the complaints against Ms Collins, on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). The approach to be adopted by the Tribunal in making findings of fact in respect of matters in dispute was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 in the following terms: 52. In medical disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]). 53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations.

Ms Collins' evidence

1. Ms Collins does not dispute that she worked a 4 ½ hour shift at Archbold House through NSA on 23 November 2019. In oral evidence to the Tribunal she acknowledged that she knew of the condition imposed on her registration that she not work as a RN until reviewed. She wanted to get back to nursing and do something useful. Later in the hearing Ms Collins stated that she had forgotten about the condition. Asked about a file note of a conversation with an AHPRA Professional Officer on 29 November 2019 in which she is recorded as saying that she worked on 23 November 2019 and wants to continue to work at least one shift a fortnight, Ms Collins said that she had probably said that, she wanted to continue but probably did not realise that she was not supposed to.
2. Ms Collins told the Tribunal that she did not tell NSA about the condition on her registration, it escaped her at the time. She did not speak to anyone at the Council. She realises she should not have done it. During the shift at Archbold House she wrote reports, did medications, and settled a new resident. Some other staff helped her to make sure things were done properly. She believed she was the only RN on the shift, however some of the staff were almost RNs.
3. Ms Collins did not dispute that she signed the Agreement on 19 September 2019. She said she forgot she had signed it.
4. Ms Collins was asked about her hospitalisation in 2018, and said that she had not slept for a week. She should have gone to a private hospital but because her ex-husband took her to Westmead, she was sent to Cumberland Hospital as an involuntary patient. Seven months was too long, and extraordinary. The admission for that length of time was because she had been sent to Westmead, and not because of her behaviour while she was in hospital.
5. In response to questions from the Tribunal as to her current treatment, Ms Collins stated that she sees her GP Dr Kanaan. Dr Kanaan does not have her best interests at heart. She was seeing a psychologist but stopped because she could not afford it. She does not see a psychiatrist, she is looking for a new one. Ms Collins said she was subject to a Community Treatment Order (CTO) for 12 months when discharged from hospital in April 2019, and there is a further 6 month CTO until October 2021. She is seeing the mental health team, and her caseworker Alex is lovely. Ms Collins said she takes medication for blood pressure and sugars, Ryzodeg once daily, Metformin, Lithium 450mg twice a day, and Zuclopenthixol (clopixol) depot fortnightly by injection at the GP. She started on Zuclopenthixol in hospital in 2018, it was 300mg but reduced to 200mg as she started shaking. It makes her shake.
6. Ms Collins was asked about the neuropsychology report provided by Mr Hoon, neuropsychologist, dated 27 February 2019, in which he stated that from the referral, Ms Collins has a primary diagnosis of Bipolar Affective Disorder with a longstanding history of mental illness since the age of 15. She questioned how he could remember everything in the report, having seen her only three times while she was in Cumberland Hospital. Asked about whether the diagnosis of Bipolar Affective Disorder or schizo-affective disorder was correct, Ms Collins stated that it was irrelevant, he is not God and it's his opinion only.
7. Ms Collins was asked about the April 2019 s 150 hearing, held in response to Dr Ngo's mandatory notification, in which she is recorded as having said that she was not well enough to return to work as a nurse yet, and had no plans to work as a nurse for six months after her discharge from hospital. Ms Collins said that the number was a number at the back of her head, because it would take six months for her to become a normal person. By August 2019 she was living by herself. She only worked for 4 ½ hours in November 2019, and there was no detriment.
8. Ms Collins was asked about the Impaired Registrants Panel hearing on 19 September 2019. Asked if she had said to the Panel that she had ceased taking Lithium a month earlier and planned to come off the depot medication, Ms Collins said probably not. Asked whether she had stopped taking Lithium, she responded that it was probably unfortunate that she did stop it. She takes it now. She has been taking it for a long time and it makes her shake. Lithium will not keep her out of hospital. Ms Collins denied that she had told the Impaired Registrants Panel that she had stopped taking her oral medications, or that she was using her knowledge as a registered nurse: she had not stopped her medications. She denied that she had said that her psychiatrist did not know she had ceased taking her oral medication. She hopes one day to be able to cease the injections. She is still taking Lithium now.
9. Asked about the s 150 hearing on 9 December 2019, Ms Collins stated that the transcript is not reliable because she was on the phone, as she was with her family in South Australia.
10. Ms Collins told the Tribunal that she is mentally well now, she eats healthily, cooks all her meals, sleeps well, walks, and has a healthy lifestyle. She becomes unwell if she is not sleeping. Asked what kind of nursing she would like to do, she said it is difficult because she has not worked for some time, the agency people were good to her and maybe she would start as a casual with an agency but not 7 days a week. The last time she worked in nursing was July or August 2018. She last went to a CPD seminar in 2019. She is reasonably well now, but not sure she is up to an 8 hour shift. Aged care would be good.
11. The Tribunal asked Ms Collins if she thought she was competent to practise as a nurse now. Ms Collins said perhaps she would need more knowledge; she thinks she is mentally able to, but others differ.

Complaint One

1. Complaints One and Two relate to Ms Collins' work on 23 November 2019 at Archbold House for a 4 ½ hour shift for her employer NSA.
2. On 24 April 2019 the Council imposed on Ms Collins' registration as a nurse that she was "Not to work as a registered nurse until reviewed by the Nursing and Midwifery Council of NSW". That condition was continued after the Impaired Registrants Panel hearing, confirmed by the Council under s 152J of the National Law on 30 September 2019.
3. Ms Collins does not dispute that she worked the shift, which is confirmed by her timesheet and in an email from NSA (ex A1, tabs 25, 27).
4. The Tribunal finds that Ms Collins breached the condition on her registration. That is unsatisfactory professional conduct, as defined in s 139B(1)(c) of the National Law: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board.
5. Complaint One is proven.

Complaint Two

1. The HCCC alleges in Complaint Two that Ms Collins' conduct in working the shift while her registration was subject to the condition imposed on 24 April 2019 amounts to professional misconduct, as defined in s 139E of the National Law: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
2. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. At [20] his Honour continued: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
3. In deciding whether conduct found to constitute unsatisfactory professional conduct is sufficiently serious to justify suspension or cancellation of a practitioner's registration, the circumstances that bear on the objective assessment of that conduct must be taken into account. The circumstances may include the nature and duration of the conduct, the existence of any mitigating factors, and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct: Health Care Complaints Commission v Attia [2016] NSWCATOD 167. The definition of "professional misconduct" is focused on the nature of the conduct, which must have the capacity to justify an order to suspend or cancel a practitioner's registration, whether or not such an order should be made in the particular circumstances: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], Basten JA. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99].
4. The HCCC submits that Ms Collins' conduct amounts to professional misconduct, because the condition was imposed under s 150 of the National Law to protect the public. The Council delegates were concerned that Ms Collins' lack of insight into her impairment would impact on her ability to provide safe nursing care within the Registered Nurse Standards for Practice. Ms Collins knew why the condition was being imposed as she acknowledged that she was not well enough to return to work as a nurse; she was well aware of the condition as the delegates spoke to her about it in the s 150 hearing on 24 April 2019, and she signed her agreement to it on 19 September 2019; she did not tell her employer NSA about the condition; and when advised to inform the Council and her employer about the breach, she refused.
5. Ms Collins' explanation to the Tribunal as to why she worked the shift in November 2019 were inconsistent, stating first in oral evidence that she had worked because she wanted to do something useful, and later that she had forgotten about the condition. She had told the s 150 hearing in April 2019 that she had no plans to work for six months following her discharge from hospital in March 2019, and her oral evidence to the Tribunal was that that was about the period of time she thought she would need to be a normal person.
6. The reasons for decision for the s 150 hearing on 24 April 2019 (ex A1 tab 11) confirm that the possible imposition of the condition, and review by a Council Appointed Psychiatrist and then the Impaired Registrants Panel, were discussed with Ms Collins; and that Ms Collins was upset at the possibility, saying "it doesn't work for me". Those reasons confirm that at that hearing Ms Collins also acknowledged that she was not well enough to return to work as a nurse yet.
7. The condition that Ms Collins not practise as a nurse until reviewed was imposed by the Council delegates based on their conclusion that Ms Collins posed a risk to public health and safety which required them to take action, because of four risk factors: Ms Collins was still recovering; she acknowledged that she was not well enough to work for at least six months following her discharge; her treatment arrangements were not stable; and she required an independent health assessment once she had had time to recover. The delegates referred the matter to the Impaired Registrants Panel, which at its hearing on 19 September 2019 reached a similar view, recommending that Ms Collins not work as a registered nurse until reviewed by the Council, because she was not engaged with her treating practitioners; she had ceased taking her antipsychotic and mood stabiliser medications without oversight from her treating practitioners; she profoundly lacked insight into the severity of her illness; and was at high risk of relapse due to recent stressors such as separation from her husband.
8. Compliance with conditions imposed on a practitioner's registration is essential to the proper operation of the system of regulation. As noted by the Tribunal in Health Care Complaints Commission v Perera [2018] NSWCATOD 112 at [89], the authorities on the necessity to comply with conditions are clear and unambiguous. A registered health practitioner is required to comply scrupulously with conditions imposed on his or her registration: Re Dr Than Le (Medical Tribunal decision, 20 September 2001); Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [74].
9. The Tribunal is satisfied that in the context of the serious health concerns identified by the Council delegates both at the s 150 hearing in April and the Impaired Registrants Panel hearing in October 2019, and Ms Collins' acknowledgement at the time the condition was imposed that she was not well enough to be working as a RN, for Ms Collins to decide that she would work, only shortly after she signed the acknowledgement that she agreed not to work until reviewed, demonstrates a fundamental failure to comply with her obligations as a registered nurse, and a serious breach of the standards expected of a registered health practitioner. The Tribunal concludes that that conduct was of a sufficiently serious nature to justify suspension or cancellation of her registration, and accordingly was professional misconduct.
10. Complaint Two is proven.

Complaint Three

1. Complaint Three is that Ms Collins has an impairment as defined in s 5 of the National Law: 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 …
2. In determining whether Ms Collins has an impairment within the meaning of s 5 it is necessary to consider whether she is currently impaired: Caladine v Health Care Complaints Commission [2007] NSWCA 362 at [11] per Beazley JA. That may be demonstrated by evidence of deficiency at a particular time combined with the absence of any evidence of any improvement since that time: Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 at [43]. To make a finding of impairment does not require the Tribunal to make findings as to a particular diagnosis. The question is whether the evidence demonstrates that a practitioner is afflicted by a condition that is detrimental or prejudicial to the orderly conduct of his or her mental or physical duties as a health practitioner: Grant v Health Care Complaints Commission [2003] NSWCA 73 at [12] per Meagher JA.
3. There are two issues to determine: 1. Whether Ms Collins suffers from a current mental impairment, condition, disability or disorder; and 2. Whether the mental impairment, condition, disability or disorder does or is likely to detrimentally affect her capacity to practise the profession of nursing.
4. The most recent assessment of Ms Collins' mental condition was that made by Dr Samuels on 9 February 2021. As noted in his report, Dr Samuels had previously assessed Ms Collins in his role as Council appointed psychiatrist and had provided a report dated 15 August 2019 to the Council for the Impaired Registrants Panel hearing. In his report of 9 February 2021 (ex A2) Dr Samuels stated that Ms Collins has a long history of Bipolar Affective Disorder. His opinion as expressed in his previous assessment was unchanged, which was that she has an impairment within the meaning of the National Law, namely a partially treated BPAD, which has the potential to impact on her professional functioning.
5. Dr Samuels noted in relation to medical issues that Ms Collins said she was bullied into seeing a doctor, she sees Dr Kanaan and a Dr Laksmi whom she does not see very often, and that she said "Doctors claim to be gods, they don't change my medication when it needs to be. I've done mental health, I shake so much, I shouldn't have to." Ms Collins said that she was on Zuclopenthixol 300mg three weekly and Lithium 250mg twice a day, and that she said that she is taking the medication. In relation to current symptoms, Ms Collins said that she does not have a mental illness and does not have Bipolar Disorder.
6. Dr Samuels described Ms Collins' current mental health status in the following terms: As noted above, she continues to suffer from a partially treated Bipolar Affective Disorder and remains currently hypomanic with affective lability, disinhibition and mild thought disorder. She is denying active psychotic symptoms. She is denying feeling depressed or anxious but her mood state is clearly mildly elevated.
7. Dr Samuels was of the opinion that Ms Collins suffers from an impairment within the meaning of the National Law, being a mental impairment in the form of a Bipolar Affective Disorder that is currently not well controlled, and in his opinion she may require a lengthy admission to achieve a degree of stabilisation. In his view that impairment is likely to detrimentally affect her capacity to practise as a nurse and she is currently not well enough to do so.
8. Dr Samuels noted that there was evidence in the course of Ms Collins' previous hospital admission of underlying cognitive impairment. He had not formally assessed Ms Collins' cognitive functioning in either of his recent assessments. When he last saw her, he thought her mood state was too elevated for such an assessment to be meaningful, and on 9 February 2021 she was irritable and labile, and he thought it appropriate to keep the assessment as brief as possible.
9. Dr Samuels stated that of most concern was Ms Collins' lack of insight into the fact that she has a mental illness, she is not accepting the diagnosis and is not fully adherent to treatment, and that as a consequence she remains in an elevated labile mood state. Dr Samuels thought it highly unlikely that she would comply with future treatment, as she is insightless, she has a very negative view about psychiatrists, and unless her mood state deteriorates to the point where she is scheduled again and has a prolonged period of enforced treatment, he could not see her mental state improving in the future. Dr Samuels stated that in his opinion Ms Collins is not competent to practise her profession at the present time.
10. In oral evidence at the Tribunal hearing Dr Samuels confirmed his opinion that due to her elevated mood, and lack of insight, Ms Collins would not be competent to practise now, and she is unwilling to accept that she needs treatment. Dr Samuels said it was difficult to say whether the diagnosis was of Bipolar Affective Disorder or a schizo affective disorder: Ms Collins had a long history of Bipolar Affective Disorder and was well for a significant period, but is possibly developing schizo affective disorder. There are issues with her compliance with treatment, but until her condition is stabilised Bipolar Disorder remains his diagnosis.
11. In crossexamination Dr Samuels acknowledged that Ms Collins had been stable between 2008 and 2018 which he agreed is a good sign, and indicates her condition is manageable. In his opinion she has not been well since her last hospital admission and remains unwell.
12. In his earlier report dated 15 August 2019 (ex A1, tab 16) Dr Samuels had noted that Ms Collins had spent a prolonged period in Cumberland Hospital and was discharged in March 2019 on a CTO. Her current medication at that time was Quilonum, with Flupenthixol depot 250mg fortnightly. He noted on examination that she was emotionally labile and irritable, and her mood was elevated, at times being chatty, mildly disinhibited and thought disordered. Dr Samuels noted at that time that Ms Collins had limited insight into her mental state and remained focussed on returning to work saying she had agreed to take 6 months off and now wanted to return to nursing. Dr Samuels' opinion was that Ms Collins remained in a hypomanic state, and suffered from Bipolar Affective Disorder - hypomanic phase - partially treated.
13. Other evidence before the Tribunal as to whether Ms Collins suffers from a current mental impairment, condition, disability or disorder is in the neuropsychological assessment of Mr Christopher Hoon, and Dr Kim Ngoc Ngo's notification to AHPRA, both made shortly before her discharge from Cumberland Hospital on 27 March 2019.
14. Ms Collins had been admitted to Cumberland Hospital on 28 August 2018 following her presentation to Westmead ED on 24 August 2018 with her then husband, who reported that she was experiencing poor sleep, elevated mood and energy, and unusual erratic behaviour. After brief periods at Blacktown Hospital, she was an inpatient at Cumberland Hospital from 19 December 2018.
15. Mr Christopher Hoon's neuropsychological assessment dated 27 February 2019 was based on his assessments of Ms Collins on 30 January 2019, 4 February 2019 and 5 February 2019. Mr Hoon outlined the assessment of Ms Collins' current cognitive status he had undertaken. Based on those assessments her current nonverbal intellectual functioning was commensurate with her premorbid estimate within the average range, while her verbal intellectual abilities, working memory and processing speed were weaker in the low average range but still within normal limits for her age. On a qualitative basis, Mr Hoon commented that Ms Collins demonstrated some reduced insight into her cognitive shortcomings, and little appreciation for her current health care needs, and there was some evidence of impulsiveness and perseverative tendencies on interview as well as concrete and inflexible learning style. Mr Hoon commented with regard to her returning to work that on the basis of her cognitive test results she was likely to have significant difficulty learning lengthy verbal material and putting it to practical use in order to carry out her work duties, and poor self-monitoring impacted on her memory. Mr Hoon concluded that Ms Collins would need to demonstrate marked improvement in her level of insight before she could be considered ready to return to work.
16. Dr Ngo recorded details of Ms Collins' earlier admission to Cumberland Hospital in 2008 when she required a two month stay to fully stabilise, and was discharged on two mood stabilisers as well as fortnightly Clopixol depot 200mg. She had remained reasonably stable until her admission in 2018, as an involuntary patient from 27 August 2018 when she presented as highly irritable and hostile towards staff. Dr Ngo provided details of changes in medication and fluctuations in Ms Collins' mental state, and her behaviour, while in hospital. Dr Ngo noted concerns of the treating team about her ability to return to work following such an extensive hospital admission and given concerns as to her lack of insight.
17. In her mandatory notification on 6 December 2019 to AHPRA reporting that Ms Collins had worked in a nursing home, Dr Kanaan, Ms Collins' GP, reported that Ms Collins was "currently mentally unstable".
18. In addition to those assessments, the evidence before the Tribunal includes the reports of the Council's s 150 and Impaired Registrants Panel hearings, the former on 24 April 2019 and 9 December 2019, and the latter on 19 September 2019. The reasons provided for the decision on 24 April 2019 to impose the condition that Ms Collins not work until reviewed (ex A1, tab 11) note that the Council was unaware of Ms Collins' current treating health practitioners as she had provided only one page of the Information Declaration form; and that Ms Collins said during that hearing that she had started seeing Dr Kanaan, and that she had an appointment with a psychiatrist at Granville Community Centre when she returned from South Australia. In concluding that Ms Collins posed a risk to public health and safety which required taking action, the Council identified as risk factors that Ms Collins was still recovering, had acknowledged that she was not well enough for work for at least 6 months, that her treatment arrangements were not stable, and that she required an independent health assessment once she had had a chance to recover.
19. The Impaired Registrants Panel on 19 September 2019 (ex A1, tab 17) noted the following: Throughout the interview Ms Marscham was emotionally labile and irritable. Her responses to questions were tangential, and as a consequence it was difficult to gather meaningful or relevant information. Ms Marscham was repeatedly redirected to answer questions. When asked a question about personal circumstances on a number of occasions she said that she preferred not to say, and at other times would laugh inappropriately and disclose personal information. In response to a question about her health she said that her husband was a postman and a doctor. She later clarified that he was not a doctor, but a postman.
20. The report noted: We asked Ms Marscham about her health, to which she responded "health is fine". Ms Marscham became irritated when we attempted to clarify the names and number of times she has seen treating practitioners. On further questioning Ms Marscham said that she is seeing a private psychiatrist for a first visit shortly, however could not provide us with this doctor's name. Ms Marscham stated that she is seeing a psychologist in approximately two weeks (second visit).
21. The Impaired Registrants Panel noted the medication prescribed on Ms Collins' discharge from Cumberland Hospital, which included two mood stabilisers (Lithium SR 450mg twice daily, Lamotrigine 250mg at night), three anti-psychotic medications including Zuclopenthixol injections, an antihypertensive, and other medications including for diabetes. Asked to clarify what medications she was then currently taking and the dose, Ms Collins said "Well I'm not on them now Doctor", and when asked why she had stopped all (or some) oral medications stated she was using her knowledge as a registered nurse. Later in the report Ms Collins stated that she had ceased taking Lithium a month ago.
22. In its assessment of the risk to the health and safety of the public, the Impaired Registrants Panel concluded: We agreed with Dr Samuels' assessment that Ms Marscham is impaired due to her Bipolar Affective Disorder. When he assessed her Dr Samuels was of the opinion that her bipolar disorder was only partially treated, and we were of the view that she remained unwell when we saw her. She was irritable, distractable, and her thinking processes were disorganised. She was unable to answer questions coherently and could not give a clear account of herself. Ms Marscham poses a significant risk to the health and safety of the public. We are of the view that she profoundly lacks insight into the severity of her impairment. Ms Marscham is not engaged in any wellness plans and has ceased, without medical oversight, her oral medications such as her mood stabilisers and antipsychotic medications. Ms Marscham's Bipolar Affective Disorder is at a high risk of relapse.
23. The s 150 hearing on 9 December 2019 was conducted with Ms Collins by telephone, and in parts the transcript is unclear. Ms Collins is recorded as stating in response to a question about the breach of condition that she is "quite capable of determining whether I'm well enough to work or not". Ms Collins stated that she was seeing her GP on a fortnightly basis, a psychiatrist twice in the next six months, and a psychologist on a six weekly basis.
24. The Tribunal is satisfied, for the following reasons, that Ms Collins has a mental condition, being Bipolar Affective Disorder partially treated. While Ms Collins disputed that she had a history of mental illness since the age of 15, she has had a history of hospital admissions, most recently for seven months from August 2018 to March 2019, and before that admission, for two weeks in 2008 at Cumberland Hospital as an involuntary patient. She has been assessed on three occasions by Dr Anthony Samuels, consultant forensic psychiatrist, most recently on 15 August 2019 and on 9 February 2021. Dr Samuels' two reports in evidence are thorough and well-documented, based both on his own observations and assessments of Ms Collins and the previous assessments, and provide the basis for the conclusions reached. Those conclusions are consistent with the detailed reports provided by Mr Hoon and Dr Ngo shortly before Ms Collins' discharge from Cumberland Hospital in March 2019.
25. There is no expert medical or other evidence to counter those assessments, and no indication of any change in Ms Collins' mental condition since the assessment made in February 2021.
26. The issue is whether that mental impairment, condition, disability or disorder detrimentally affects or is likely to detrimentally affect her capacity to practice her profession of nursing. The Tribunal is satisfied that it does, for the following reasons.
27. The Tribunal was unable to obtain a clear understanding from Ms Collins as to her current medications, or her present engagement with treating health practitioners. The uncertainty as to the extent to which she is actually engaged with treatment other than that formally required under the CTO is consistent with the picture that emerges from the Council's considerations through the s 150 and Impaired Registrants Panel processes in 2019. Ms Collins is currently on a CTO, and has been since March 2019 when she was discharged from Cumberland Hospital after an extended admission as an involuntary patient. Apart from the regular depot injections, it is not clear what oral medication Ms Collins has been prescribed or the extent to which she is compliant with the treatment regime considered necessary by the treating health practitioners which whom she is or has been engaged since her discharge from hospital in early 2019.
28. The Tribunal agrees with Dr Samuels' assessment that Ms Collins lacks insight into her impairment, both on the basis of her lack of engagement with any treatment regime, and her distrust of psychiatrists whom she described in her statement to the Tribunal as trying "to play God". She maintained in her written statement to the Tribunal that she was quite capable of working out when she was ready to go back to work, consistent with her statement to the Council delegates at the s 150 hearing on 9 December 2019.
29. Dr Samuels' assessment of Ms Collins was that she was hypomanic with evidence of affective lability, disinhibition and mild thought disorder. That is consistent with her presentation at the Impaired Registrants Panel hearing in September 2019, described at [66] above. That description is consistent with her presentation at the Tribunal hearing, when she was at times unable to answer questions clearly or consistently, and was distractable and disorganised. That was evident in particular in her responses to questions from the Tribunal about her current medication regime.
30. A nurse who suffers from a mood disorder that is not effectively treated or managed cannot safely be given responsibility for caring for patients in her capacity as a registered nurse. The Tribunal is satisfied that Ms Collins' impairment is likely to detrimentally affect her capacity to practice her profession, and that Ms Collins has an impairment as defined in s 5 of the National Law.
31. Complaint Three is established.

Complaint Four

1. Complaint Four is that Ms Collins is not competent within the meaning of s 139(a) of the National Law, which provides: 139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person - (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and …
2. A finding of impairment may support a finding that a practitioner is not competent to practise: Lindsay v Health Care Complaints Commission [2010] NSWCA 194 per Sackville AJA at [168]-[169] (Young, Giles JJA agreeing). However, as Sackville AJA commented at [170], it would be incorrect to assume the existence of an impairment necessarily means that the practitioner lacks the mental capacity to practise their profession: [E]ven a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances.
3. Dr Samuels was of the opinion in his assessment of 9 February 2021 that Ms Collins was not competent to practise her profession at that time, having regard to her lack of insight into the fact that she has a mental illness, is not accepting of the diagnosis, and is not fully adherent to treatment. He thought it highly unlikely that she would comply with future treatment, as she lacks insight, and has a very negative view about psychiatrists; he could not see her mental state improving in the near future, and he considered the prospects of her returning to nursing practice were very low. Dr Samuels in oral evidence confirmed his opinion that Ms Collins was not competent to practice now. She is unwilling to accept that she needs treatment, and in his opinion has not been well since her last hospital admission.
4. The Tribunal accepts and agrees with that opinion, which is consistent with the earlier medical and psychological assessments and with Ms Collins' evidence and the Tribunal's observations of her at the hearing. The Tribunal finds that Ms Collins does not have sufficient mental capacity to practise the profession of nursing, and is not competent within the meaning of s 139(a) of the National Law. Complaint Four is proven.

Protective Orders

1. Having found that the subject matter of the complaints against Ms Collins has been proved, the Tribunal may exercise any of the powers listed in Subdiv 6 of Pt 8 of the National Law. Those powers include the powers conferred by s 149A of the National Law to caution, reprimand, impose conditions on a practitioner's registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course. Section 149C(1) of the National Law confers power to suspend or cancel a practitioner's registration if the Tribunal is satisfied, relevantly, that (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct.
2. It does not follow that because the Tribunal has found that Ms Collins' conduct in breaching the condition on her registration is sufficiently serious to justify the suspension or cancellation of registration that an order under s 149C(1) must be made: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, at [67]. Nor does it follow that because the Tribunal has found that Ms Collins has an impairment, and is not competent to practise her profession, that an order under s 149C(1) must be made.
3. The HCCC seeks an order for cancellation of Ms Collins' registration. Additional protective orders sought by the HCCC are those under s 149C(5) and (7): (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.
4. The HCCC submits that cancellation is appropriate because the breach of condition was a serious breach of the standards expected of a registered health practitioner, particularly one who has considerable experience and therefore must have known the importance of her professional obligations, and who has previously been subject to conditions on her registration. Ms Collins lacks insight, having chosen to work, without telling her employer about the condition, and in circumstances where she was the only RN in the facility. Cancellation on the basis of a finding that Ms Collins is not competent to practise nursing is also appropriate and required to protect the public, because Ms Collins lacks insight into her illness, and is confident she knows when she is ready to return to work.
5. The HCCC submits that a non-review period of 2 years should be imposed because time is needed for Ms Collins to engage in lengthy psychiatric treatment, demonstrate prolonged compliance with medication, achieve solid rehabilitation and gain genuine insight into her conduct and full understanding of her mental condition. Time is also needed to censure Ms Collins' conduct and send a message to other practitioners that working while subject to a condition not to work cannot be condoned.
6. The HCCC submits that a prohibition order should be made because it is necessary to protect the public: there is a concern that Ms Collins' health may impact on her ability to provide safe nursing care, she has disregarded the condition that she not work, she lacks insight into her mental condition and expressed a willingness to return to nursing, and she has previously mentioned seeking work as an Assistant in Nursing (AIN).
7. Ms Collins has apologised for working the shift in November 2019. She states that she wants to resume her nursing career, and maintains she is physically, mentally and spiritually well and is worthy to be a registered nurse. The references provided by Ms Collins to the Tribunal by personal friends attest to her dedication to study and hard work, her good character, and her love of her nursing career.

Consideration

1. The power to make any of the orders specified in s 149C of the National Law is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held: 20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
2. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s3. The most directly relevant of those principles is that in s 3(2)(a), to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s3A.
3. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
4. The Tribunal is of the view that in circumstances where Ms Collins lacks insight into her condition, is not accepting of the diagnosis, and is not fully adherent to treatment, and where the most recent psychiatric assessment concluded that her mental state is unlikely to improve in the near future, continuation of the current suspension of Ms Collins' registration for a specified period is not appropriate. In circumstances where Ms Collins has previously failed to comply with a condition on her registration imposed in response to a risk to public health and safety, imposition of any further conditions would not be appropriate. The Tribunal is satisfied that the appropriate protective order to ensure protection of the public is to cancel Ms Collins' registration, so that should she apply for reinstatement there can be an assessment of whether she is then competent to practise, and whether at that time she can be relied upon to comply with her professional obligations and maintain standards expected by the public of a registered health practitioner.
5. The HCCC seeks a non-review period of two years. The fixing of a period within which re-registration may not be sought has a twofold operation: it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession, while holding open the possibility that an application for re-registration thereafter will at least be considered: Chen v Health Care Complaints Commission [2017] NSWCA 186. A time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of that period. At the end of any non review period imposed under s 149C(7) of the National Law the appropriate review body would, if Ms Collins decides to apply for reinstatement, be in a position to assess whether the issues that have led the Tribunal to conclude that by reason of her impairment she is not competent to practise have been resolved.
6. In circumstances where Ms Collins' mental illness is longstanding, and she lacks insight and is resistant to treatment, the Tribunal considers that a period of 2 years is required before she can apply for reinstatement.
7. The HCCC seeks an order under s 149C(5) to prohibit Ms Collins from providing health services as an AIN or in aged care, until such time as she is re-registered as a nurse. The National Law defines "health services": health service includes the following services, whether provided as public or private services - (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services.
8. The Tribunal must be satisfied that Ms Collins poses "a substantial risk to the health of members of the public" before it can consider whether a prohibition order should be made. That is a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75].
9. The Tribunal considers that Ms Collins poses a substantial risk to the health of members of the public. Her conduct in working the shift at Archbold House while subject to a condition that she not work, at a time when she considered, and still considers, that she is able to determine for herself when she is able to go back to work, and her lack of insight into her illness, mean that she poses a risk to the safety of persons in particular vulnerable persons such as those in aged care should she seek work other than in her capacity as a nurse. The Tribunal concludes that a prohibition order in the terms sought by the HCCC should be made.

Costs

1. The HCCC seeks an order that Ms Collins pay its costs of the proceedings.
2. Ms Collins made no submission in response.
3. Clause 13 of Sch 5D of the National Law enables the Tribunal to make an order for payment of costs. The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282: 85. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".)
4. The HCCC has established all the grounds of the complaint, and there was nothing about the way in which it conducted the matter that might properly disentitle it from a costs order in its favour. The HCCC submitted that it would seek a chance to negotiate an appropriate amount with Ms Collins.
5. The Tribunal concludes that a costs order should be made, in the usual form, that is for costs to be as agreed or failing agreement, as assessed.

Orders

1. The Tribunal orders: 1. Ms Collins is guilty of professional misconduct; 2. Ms Collins has an impairment within the meaning of s 5 of the Health Practitioner Regulation National Law (NSW); 3. Ms Collins is not competent to practise within the meaning of s 139(a) of the Health Practitioner Regulation National Law (NSW); 4. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) the registration of Ms Collins is cancelled; 5. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW) Ms Collins cannot seek review of the order to cancel her registration for a period of two years; 6. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW) Ms Collins is prohibited from providing health services as an assistant in nursing or in aged care until such time as she is re-registered as a nurse; 7. Ms Collins shall pay the Health Care Complaints Commission's costs of, and incidental to, these proceedings as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2021