Health Care Complaints Commission v CWY

Employment history

1. CWY is in her late thirties. In 1999, after graduating from the University of Sydney with a bachelor degree in nursing she was registered as a nurse practitioner. She worked continuously as a nurse practitioner on a full-time basis, primarily in clinical roles until 2013. In January 2013 she commenced with a nursing agency, undertaking a range of clinical and managerial roles. She has not worked as a registered nurse since conditions were imposed on her registration in June 2014.
2. Shortly after her registration was suspended, CWY returned to live with her parents in Cooma. Apart from January 2015 to late May 2015, which she spent in the United Kingdom, CWY remained living with her parents. In the UK she was employed by CareFusion in a non-clinical role to coordinate technical personal and provide helpdesk support. She was dismissed for poor performance at the end of a three-month probationary period.
3. CWY has undertaken post-graduate studies in commerce/finance since about 2013. She was not enrolled in studies in 2015. On her account, she completed but did not pass five subjects in the first half of 2016. She did not undertake any studies in the second half of 2016.

Medical history

1. Tendered in these proceedings were medical records produced by CWY's treating health practitioners. They reveal a history of anxiety and depression, dating back to 2008, for which CWY periodically sought treatment.
2. The records indicate that in the 18 months before her admission to Goulburn Hospital in May 2016 CWY's mental health deteriorated significantly.

Assessment by Dr Messner

1. In mid-2015 the Council requested consultant psychiatrist, Susan Messner, to provide an opinion about whether CWY had an "impairment" within the meaning of the National Law. The Council provided Dr Messner with CWY's available clinical records dating back to 2009, together with the report prepared by Dr Samuels dated 1 August 2014.
2. In a report dated 4 August 2015, following an interview with CWY, Dr Messner recorded that CWY told her that, while she was anxious as a result of her dealings with the Council about her registration, she was otherwise well. Dr Messner recorded that CWY stated that she had consulted her GP who gave her a mental health plan so she could consult with a psychologist to help with the management of a "mood disorder". Dr Messner wrote that throughout the assessment CWY contradicted herself, her thoughts were disorganised and it was difficult to get an ordered history. In her opinion, despite CWY's denial of having paranoid ideas, a "paranoid theme" was evident throughout the history given.
3. Dr Messner concluded that CWY's clinical and employment records revealed a history of anxiety and depression, non-compliance with medication and a reluctance to be referred to a psychiatrist. She noted that CWY had been described as psychotic by various treating practitioners in 2009, 2013 (possibly) and 2014.
4. Dr Messner wrote that in her opinion at the time of the assessment, CWY presented as thought disordered with vague paranoia. She considered it likely that the termination of CWY's employment in the UK was related to her thought disorder. In Dr Messner's opinion CWY had partial insight into her disorder as evidenced by her evasive and guarded answers to questions but had very limited insight into the nature of her symptoms or that she is unwell. She concurred with Dr Samuels' opinion that CWY probably suffers from some form of psychotic illness and is currently unfit to work as a nurse.
5. Dr Messner conlcuded: I would have to be conservative in opining on [CWY's] prognosis. Psychotic illnesses that are not treated have a poorer prognosis. [CWY], however, may respond well to antipsychotic medication, if she can establish a therapeutic relationship with a psychiatrist and work with them. Her limited insight is preventing her from receiving the treatment she requires. I would recommend [CWY] engage with a treating psychiatrist who could prescribe an appropriate antipsychotic and monitor her mental state.

Admission to Chisholm Ross Centre

1. In May 2016 CWY was taken by police to Cooma Hospital following an acute psychotic episode. University staff reported to police that, while on campus, CWY was seen banging her head with a calculator and yelling at others to stop interfering with her. Staff also reported that CWY stated that she was unable to hear at close range; that she was hearing broadcasts at longer distances; that she was being monitored by "Wi-Fi" and had been hearing broadcasts of a "black box coroner" case. On admission to Cooma Hospital, CWY described, among other things, a six-month history of receiving transmissions through her car radio and being part of a clinical trial for mental health, which was a conspiracy.
2. On 5 May 2016, CWY was transferred from Cooma Hospital to the Chisholm Ross Centre (Chisholm Ross), an acute psychiatric services unit at Goulburn Base Hospital. On admission to Chisholm Ross, CWY denied any psychotic symptoms. After commencing on anti-psychotic medication her symptoms reportedly eased.

MHRT makes a community treatment order

1. In a report dated 8 June 2016, prepared at the request of the Mental Health Review Tribunal (MHRT), Chisholm Ross psychiatric registrar, Dr Kheung Chan, wrote that a mental state examination of CWY conducted on 7 June 2016 revealed no evidence of formal thought disorder or any "ongoing abnormal thought possession". He wrote that CWY is no longer pre-occupied by persecutory beliefs and is now more accepting of her medication, although she remains ambivalent about the diagnosis of a mental illness.
2. Dr Chan wrote that, based on the longitudinal history of ongoing psychiatric symptoms, characterised by persecutory delusion and perceptual disturbance, in his opinion CWY suffers from Schizophrenia. He wrote that CWY no longer requires inpatient treatment and can be adequately managed in the community under a community treatment order (CTO).
3. On 10 June 2016, the MHRT made a six months' CTO under s 51 of the Mental Health Act 2007 (NSW). The order requires that CWY receive fortnightly intramuscular injections of Risperidone Consta 25mg, be reviewed by her psychiatrist, or their nominee, at least three times per month, and meet with her case manager at least once every two weeks.
4. When the hearing the subject of these proceedings was held, CWY had been under the CTO for about three months. Her claim of having complied with all conditions of the CTO was confirmed by her case manager, mental health clinician, Alexandra Chandler, in a letter dated 7 September 2016.

Supplementary opinion provided by Dr Messner

1. At the request of the Commission, Dr Messner prepared a supplementary report dated 21 July 2016. In addition, Dr Messner gave oral evidence in these proceedings.
2. For the purpose of preparing the supplementary report, Dr Messner reviewed additional medical records obtained by the Commission, including those produced by Chisholm Ross. She did not re-interview CWY.
3. Dr Messner noted that the records provided by Chisholm Ross revealed that CWY had responded well to antipsychotic medication, her thought disorder had significantly improved, and she was less preoccupied with persecutory beliefs. However, she noted that, while the records indicated that CWY was accepting of medication, she remained ambivalent about the diagnosis of mental illness.
4. In Dr Messner's opinion, the diagnosis made at Chisholm Ross of Paranoid Schizophrenia was the most likely diagnosis. In her opinion, there had been a "grumbling history" of that condition since 2009.
5. Noting that CWY was in the early stages of treatment for a major psychiatric condition, Dr Messner wrote that, in her opinion, CWY suffers from an impairment as defined by the National Law and is currently not fit to work as a registered nurse: [W]hile a diagnosis of Schizophrenia would not preclude an individual working as a registered nurse their ability to be fit to function in that role would be dependent on a number of factors such as compliance with medication, engagement in an ongoing treating relationship with a psychiatrist and general practitioner, resolution of symptoms and insight as to the presence of illness and symptoms of relapse.

Opinion of Dr Chan

1. Dr Chan has not seen CWY since her discharge from Chisholm Ross in June 2016. In oral evidence given in these proceedings, he stated that CWY had responded well to anti-psychotic medication and, by the time she was discharged, her symptoms had improved significantly. He stated that when he prepared his report 8 June 2016, CWY no longer held persecutory beliefs and possibly had a mild thought disorder. He stated that it can be difficult to determine if a person has a thought disorder and sometimes patients "tell us what we want to hear".
2. Dr Chan stated that the Chisholm Ross treating team were of the opinion that CWY may have been unwell since 2009. He stated that, given the length of time she was untreated, it would probably take her a little longer to "fully recover".
3. In his view, while at the Chisholm Ross CWY demonstrated little insight. He explained that he used the term insight to describe a person's ability: (i) to acknowledge their illness, and (ii) to accept treatment. He stated that generally a person with insight will acknowledge their past delusional thoughts.
4. He stated that many people with serious mental illness are able to work successfully in the health profession. In his opinion, because CWY's condition was at the early stages of treatment and because of the unpredictable nature of Schizophrenia, at the time of discharge, in his opinion, she was unable to work in nurse.
5. In his opinion, CWY's high level of pre-morbid functioning favoured recovery and the likelihood of CWY being able to return to work as a nurse.

Opinion of Professor Owen

1. Professor Cathy Owen reviewed CWY in July 2016. At the time Professor Owen was acting as locum for CWY's treating psychiatrist. This is the sole occasion Professor Owen had any dealings with CWY.
2. In a report dated 21 July 2016, Professor Owen wrote that CWY claimed she had been well prior to her admission to Chisholm Ross and the whole thing had been precipitated "by an unfortunate incident". She wrote that during the consultation CWY was focussed on her exams and financial stress and denied having "any particular concerns". She wrote that CWY had no ability to identify the "warning signs of Schizophrenia" and was focused on ceasing the CTO. Professor Owen wrote that she had explained to CWY that whether she were to work as an accountant or a nurse, good mental health was necessary.
3. At CWY's request, Professor Owen gave evidence in these proceedings. Professor Owen said she had only a "sketchy recollection" of the review and had not had an opportunity to review her notes of that consultation or CWY's clinical records.
4. Professor Owen stated that, as far as she recalled, the main issue discussed during the consultation was CWY's desire to end the CTO. In her view, this demonstrated "insightlessness", given that at the time the CTO had been in place for just over a month.
5. She stated that prognosis is always difficult in relation to psychiatric conditions especially where, as in this case, the patient has limited insight. In her opinion, given the long period CWY had apparently been untreated, the prognosis for full recovery is guarded.

Is particular 1 of Complaint 1 established?

1. Particular 1 of Complaint 1 reads: 1. The practitioner suffers from a psychotic illness or illnesses on a background of anxiety and depression since 2009, including: a. thought disorder; b. vague paranoia; c. persecutory and/or delusional ideas; d. schizophrenia.
2. CWY does not dispute that she suffers from Schizophrenia although she disputes the label "Paranoid Schizophrenia".
3. A review of the medical records obtained by the Commission indicates that since 2009, CWY's treating practitioners have periodically reported that CWY displayed thought disorder, paranoia, persecutory and/or delusional ideas.
4. In a reply filed in these proceedings, CWY challenged the assertion that she has or had a thought disorder, vague paranoia, persecutory and/or delusional ideas. She pointed out that she had been in continuous employment, almost without complaint, until mid-2014 when conditions were imposed on her registration. She also pointed out that in the three years before her admission to the Chisholm Ross she had been undertaking post-graduate studies.
5. CWY contended that many of the reported comments attributed to her said to evidence delusional fears or beliefs were either not said or misinterpreted. She denied, for example, saying that her brother was Jesus Christ or having a transmitter in her head.
6. In addition, she contended that in relation to some comments said to indicate "odd behaviour", there was a rational basis for the underlying belief. For example, in relation to the reports of hearing voices through the car radio, she stated there had been a problem with the speaker transmission in her car, which had been reported to the manufacturer. With respect to the comment made on admission to Chisholm Ross of hearing a "noisy server", she claimed to have a hearing impairment, pointing in support to the report dated 16 August 2016 prepared by audiologist, Andrew Myles, which stated that testing revealed "asymmetrical hearing thresholds which suggest bilateral middle ear involvement".
7. It is possible some of the comments attributed to CWY that are said to evidence thought disorder, vague paranoia and/or persecutory and/or delusional ideas do not accurately reflect, or misinterpret, comments made by CWY. However, we think it improbable that all of the reported comments were either not made or were misinterpreted. In reaching that conclusion, we note the consistent themes running through the reported comments together with the fact that many were reported by unrelated parties. We agree with Dr Messner's opinion that that throughout the six years before her admission to Chisholm Ross there probably was a grumbling history of symptoms and, from time to time, CWY manifested symptoms of the type described in paragraphs (a), (b) and (c) of Particular 1.
8. Particular 1 is expressed in the present tense as indicated by the use of the word "suffers". Accordingly, it falls to the Commission to establish that CWY now suffers from a psychotic illness or illnesses … including at least one of the illnesses (or more correctly, manifestations of the illness or illnesses) listed in paragraphs (a) to (d).
9. The evidence establishes that CWY now suffers from Schizophrenia. While the evidence also establishes that at various times since 2009, CWY suffered (or displayed) manifestations of that condition, including those listed in paragraphs (a) to (c), we are not satisfied that she currently manifests those symptoms. That view is consistent with the opinion expressed by Drs Chan and Messner who concluded that, following treatment, CWY probably no longer manifests symptoms of that type. While it is possible, as conceded by Dr Chan, that CWY continues to have a thought disorder and is masking that disorder, on the available evidence we could not be satisfied that she does.
10. We are satisfied that particular 1 (d) of Complaint 1 is established. We are not satisfied that the balance of particular 1 of Complaint 1 is established.

Is particular 2 of Complaint 1 established?

1. Particular 2 of Complaint 1 reads: 2. The practitioner holds beliefs which are likely to detrimentally affect her mental capacity to practise nursing safely and competently, including delusional beliefs and fears concerning: a. Infections, contamination and exposure to harmful substances from patients at work and the public; b. exposure to medication, drugs and harmful or foul smelling agents at her place of work; c. paranoid and/or delusional thoughts relating to her working environment, her colleagues and patients.
2. Clinical records produced in these proceedings are replete with references to CWY reporting beliefs and fears of the type described in para (a), (b) and (c) of particular 2. Throughout 2013 and 2014 there are numerous references to CWY's apparent preoccupation with germs and diseases. These include a note made by her GP in October 2013 that she reported concerns about workplace exposure to anaesthetic gases and methadone being spilt onto her arm; a report written two months later by psychiatrist, Prem Naidoo, who recorded that CWY had a lot of "health related concerns regarding contamination"; and a report to CWY's GP dated 13 November 2013 from psychologist, Dr Catherine Liu, that CWY had reported that work had become stressful because of her fears that handling strong medication such as Endone® would contaminate her and others. In early 2014, CWY reported to Healthcare Australia that a pimple on her face, which she feared had been caused by Methicillin-resistant Staphylococcus aureus (MRSA), contracted from a patient, was not healing. She apparently took little comfort when assured that MRSA could not be contracted through air borne viruses. Dr Bell, it will be recalled, referred to CWY's concern about the pimple in the report made to APHRA. In addition, he referred to reports made by CWY of being infected by airborne BETA Blockers, anti-psychotics and lithium spread by people on the street.
3. Self-evidently, delusional beliefs and fears of the type described in particular 2 are likely to detrimentally effect a person's mental capacity to practise nursing safely and competently. There can be little argument that in the 18 months before Dr Bell's notification to APHRA, CWY held beliefs and fears of the type described in particular 2. The more difficult question is whether, while receiving psychiatric care of the type mandated under the CTO, CWY continues to hold such beliefs.
4. In answering that question, a cautious approach must be taken to CWY's denial of currently holding delusional beliefs and fears which might affect her capacity to practise nursing.
5. It will be recalled that in his report of 8 June 2016 report, Dr Chan wrote that CWY was "no longer as preoccupied by her persecutory beliefs". A discharge report prepared two days later was to the same effect.
6. Since being discharged from Chisholm Ross, there have been no records of CWY expressing delusional reports and fears. None of the medical practitioners who gave evidence in these proceedings expressed the opinion that CWY currently holds delusional beliefs and fears. There is no direct evidence that CWY continues to holds beliefs of the type described in particular 2 of Complaint 1. In addition, the evidence taken as a whole, in our opinion, is insufficient to support the drawing of that inference.
7. Particular 2 of Complaint 1 is not established.

Is particular 3 of Complaint 1 established?

1. Particular 3 reads: The practitioner has [a] history of being non-compliant or being reluctant to comply with the advice of her treating health practitioners.
2. Since 2009, CWY has periodically sought treatment for feelings of anxiety and depression and related symptoms. Throughout this period she was largely reluctant to take medication recommended by various health practitioners. In October 2009, despite the recommendation of her GP, she refused to return to see psychiatrist, Jayne Puttman, after a single consultation. Dr Puttman wrote that CWY was "most reluctant to take medication" and refused to take an anti-psychotic. More recently, in November 2015, despite being referred by police and the emergency department of Cooma Hospital, after presenting with "odd beliefs", including claims of experiencing radiation burns from the television, CWY refused to engage with Cooma Mental Health.
3. Since being discharged from Chisholm Ross, CWY has followed the recommendations of her treating practitioners in respect to her mental health. However, the same could not be said for the five years before her admission. No doubt her reluctance was attributable to lack of insight, a feature of her condition. There is ample evidence to support the claim that throughout that period, CWY had a history of being reluctant to comply with the advice of her treating health practitioners.
4. Particular 3 of Complaint 1 is established.

Summary

1. Particulars 1(d) and 3 of Complaint 1 are established. The balance of Complaint 1 is not established.

Does CWY have an impairment?

1. The Commission submits that CWY has an impairment as defined by the National Law. While CWY acknowledges she suffers from Schizophrenia, she points out that the condition is treatable and that since her admission to Chisholm Ross she has complied with all treatment recommendations.
2. Section 5 of the National Law defines impairment to include: [A] … mental impairment, disability, condition or disorder … that detrimentally affects or is likely to detrimentally affect … a registered health practitioner['s] … capacity to practise the profession…
3. In Lindsay v Health Care Complaints Commission [2010] NSWCA 19 (Lindsay), Sackville AJA observed at [169] that the Tribunal "asserted without further reasons, that by reason of his impairment [a delusional disorder with persecutory and paranoid traits]", the appellant medical practitioner was not competent to practise medicine: The absence of further reasons supporting the finding of lack of competence perhaps suggests that the Tribunal assumed that the existence of an impairment, at least of the kind attributed to the appellant, necessarily meant that he lacked the mental capacity or communication skills to practise medicine. Such an assumption would be incorrect. Even 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.
4. It falls to the Commission to establish that CWY's condition of Schizophrenia is likely to detrimentally her capacity to practise the profession of nursing.
5. In support of the submission that her psychiatric condition is unlikely to detrimentally affect her capacity to practise nursing, CWY argues, first, that there have been no reported instances of her failing to deliver appropriate nursing care, even while untreated. Second, she has first class clinical skills as evidenced by the range of senior roles she has held in diverse fields of nursing. Third, she has successfully undertaken post-graduate studies for a number of years while untreated. Fourth, she is currently receiving treatment and no longer has symptoms of Schizophrenia. Fifth, she now recognises the importance of treatment and is committed to continuing to accept treatment after the CTO expires
6. The Commission points to the expert opinion that CWY is currently unfit to work as a nurse. In Dr Chan's opinion, while there are positive signs, nonetheless, CWY is in the early stages of recovery. The Commission submits that the evidence suggests that CWY may lack insight into her condition, which, as the experts point out, is a key indicator of whether a person with Schizophrenia is likely to accept treatment. In support, the Commission points to the evidence of CWY, within a month of it being made, urging Professor Owen to assist her to seek to have the CTO set aside.
7. There can be no argument that in a relatively short period, CWY has made significant progress in recovering from a serious psychiatric condition. The experts agree that Schizophrenia does not necessarily render a person unfit to work as a nurse providing appropriate treatment is received. Dr Chan was at pains to emphasise that many people with serious mental illness, including Schizophrenia are able to maintain successful careers as respected health practitioners.
8. While there are many positive signs, given the early stage of treatment, together with the unpredictable nature of Schizophrenia, we are of the opinion that CWY's condition is likely to detrimentally affect her capacity to practise nursing, specifically her ability to make rational and reasoned decisions about patient care and treatment and to be able to communicate with patients. In reaching that opinion, we have taken into account the absence of any adverse report about the nursing care provided by CWY, even while untreated. Nonetheless, in our opinion, it is premature to determine whether the condition has stabilised. Until that assessment can be made, CWY's condition is likely to detrimentally affect her capacity to practise nursing.
9. We are satisfied that CWY currently has an impairment as defined by the National Law.

Is CWY competent to practice nursing?

1. The Commission contends that CWY is not competent to practise nursing within the meaning of s 139(a) of the National Law. Section 139(a) relevantly states: 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. Sackville AJA in Lindsay, commented that there is "clearly a close relationship" between: [A] finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine.
3. While there is no suggestion that CWY lacks the technical skills or knowledge to practise nursing, in our opinion, until such time as her condition is stabilised and treated, she probably lacks the mental capacity to practise nursing.
4. We therefore find on the balance of probabilities that CWY is not currently competent to practise nursing within the meaning of s 139(a) of the National Law.

What, if any, protective orders should be made?

1. Part 8, Division 3, Sub Division 6 of the National Law sets out the powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and to impose conditions on the practitioner's registration. Where, as in this case, the practitioner is found to be not competent to practise their profession, the Tribunal may also suspend or cancel their registration: s 149C(1)(a) of the National Law.
2. In exercising its functions under the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration: s 3A of the National Law.

Orders sought by the parties

1. The Commission urges the Tribunal to: 1. Cancel CWY's registration 2. Order that CWY be disqualified from being registered for a period of 18 months to two years: s 149C(4)(b) 3. Order that CWY be prohibited from providing "health services" for a period of one to two years: s 149C(5).
2. CWY submits that the appropriate order is for conditions to be imposed on her registration. She stated that she is prepared to submit to, and comply with, any conditions the Tribunal considers appropriate.

Consideration

1. Notwithstanding our finding that CWY is not competent to practise nursing, it does not follow that an order for cancellation or suspension must be made. While the safety of the public is the paramount consideration, any protective order must nonetheless be reasoned and commensurate with any apprehended risk CWY might pose to patients.
2. Where a practitioner is found not competent to practise on account of lacking sufficient mental capacity, in determining whether an order for cancellation or suspension is appropriate, we consider it relevant to explore whether appropriate conditions could be formulated so as to reduce any potential risk the practitioner might pose to patients on account of lacking sufficient mental capacity, to one that is not real and material. In our opinion, in this case appropriate conditions could be formulated, providing CWY is able to demonstrate that her condition has been treated and stabilised for a reasonable period. A formal diagnosis was made and treatment commenced only a few months ago. While we accept that CWY has complied with all conditions of the CTO and is genuinely committed to continuing to receive treatment, it is yet to be tested whether she will do so when she is no longer subject to a CTO.
3. For these reasons we have decided that cancellation rather than the imposition of conditions is the appropriate order.

Should CWY be disqualified for a period from applying for re-instatement?

1. The Commission seeks an order that CWY be disqualified from applying for review of the cancellation order for a period of two years. The Commission points to the weight of expert opinion that at this stage prognosis is unclear. It also points to Dr Chan's comment that generally the recovery period for Schizophrenia corresponds to the length of time over which the condition has been untreated.
2. CWY is a relatively young woman. She is clearly intelligent, energetic and diligent. If she is able to overcome her illness she will undoubtedly have much to offer to the public as a health practitioner. As her referees attest, she is regarded by her peers as a caring and supportive person.
3. While the experts have expressed caution about offering an opinion about the length of time it will take CWY to recover from her condition, they have identified factors which favour recovery, including her high level of pre-morbid functioning and the dramatic improvement in her treatment once appropriate treatment was commenced.
4. It is notoriously difficult to predict whether an individual will recover from a serious psychiatric condition and, if so, the likely recovery period. While the long period CWY was untreated is a factor that might impede recovery, this is not a forgone conclusion.
5. We think CWY should be given the opportunity to seek review six months after the expiration of the CTO, or any extension of the CTO. To satisfy the review body that she should be reinstated to the register, CWY will need to provide cogent evidence that she has continued to receive appropriate treatment and has complied with the recommendations of her treating practitioners.

Should a prohibition order be made?

1. Section 149C(5) of the National Law gives the Tribunal power to make a prohibition order: (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.
2. Section 5 of the National Law defines "health service" to include 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.
3. As noted, the Commission seeks orders under s 149C(5) that CWY be prohibited from providing health services.
4. The power to make an order under s 149C(5) can only be exercised if we are satisfied that CWY poses a "substantial risk to the health of members of the public". It is implicit in the terms of s 149C(5) that the question of whether the practitioner whose registration has been cancelled or suspended poses a relevant risk must be assessed against the type and nature of health services likely to be provided. As is apparent, the term "health services" is broad in scope and potentially catches a wide range of services. Arguably, CWY may currently pose some risk to members of the public if, for example, she were to undertake work as a cleaner in a hospital, which could fall within the scope of hospital services. However, the available evidence does not establish that if she were to do so, she would pose a "substantial risk to the health of members of the public". Similarly, while she might be unable to provide, say, health education services, on the available evidence we could not be satisfied that she would pose a relevant risk if she were to do so.
5. It falls to the Commission to establish that CWY poses a "substantial risk to the health of members of the public" if she were to provide health services. The order sought by the Commission is for health services at large and not specific health services. While CWY may pose a relevant risk if she were to provide particular types of health services, the Commission has not identified those health services. It is, therefore, not possible to assess whether the pre-condition to the exercise of the power conferred by s 149C(5) is satisfied. It follows that the power to make a prohibition order cannot be exercised.

Should CWY be ordered to pay the Commission's costs?

1. The Commission seeks an order that CWY pay its costs in these proceedings. While CWY stated she was prepared to submit to any order made by the Tribunal, the impression gained from her submissions was that she did fully understand the nature and implication of the order sought by the Commission.
2. The power to award costs in proceedings where a complaint has been referred to NCAT for determination under the National Law is contained in cl 13 of Schedule 5D to the National Law: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner ... at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. ...
3. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) the Court of Appeal considered the exercise of the discretion to award costs and accepted at [42] that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event". See also Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]; and in relation to a similar but not identical costs provision, Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 (Lucire) and Ohn v Walton (1995) 36 NSWLR 77 at p 79. While, as a general rule, costs follow the event, factors may exist that militate against the recovery of costs by the successful party: Philipiah at [42]; Lucire at [48]-[52].
4. In Philipiah the Court of Appeal at [42] gave examples of the factors that might militate against the recovery by the successful party of all of its costs in particular proceedings: [O]ne factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52
5. In this matter, while the complaints of impairment and incapacity to practice were established, the Commission failed to establish all of the particulars relied upon to establish those complaints. On the first day of the hearing the Commission was granted leave to make significant amendments to the Complaints. It is puzzling that leave was not also sought to delete particulars 1 (a) - (c) and particular 2 in circumstances where there was no expert evidence or recent clinical records to support those particulars. Persevering with those particulars added to the time taken to complete the hearing. Relevantly, by that stage CWY had conceded she had a psychotic illness, specifically, Schizophrenia.
6. In addition, the Commission did not obtain all of the protective orders it sought.
7. We think it also relevant that the proceedings were not disciplinary proceedings. No allegation of professional misconduct or unprofessional conduct was made against CWY. Rather, the proceedings were brought against her as a protective measure. There is, and can be, no suggestion of fault or some form of liability where the sole basis of proceedings is, in essence, a question of capacity due to mental illness or impairment. It is not CWY's fault, or due to any decision she made, that she suffers the condition which has resulted in her impairment.
8. While the Commission was largely successful in these proceedings, in our view the factors discussed above, in combination, militate against the exercise of the discretion to award costs. Each party must therefore bear their own costs.

Should a non-publication order be made?

1. In these reasons, we have referred to the respondent by the pseudonym, CWY. We did so to allow the parties the opportunity to comment on whether it is appropriate in the particular circumstances of this case to make a non-publication order in relation to CWY.
2. Our preliminary view is that, notwithstanding the presumption of open justice enshrined in the National Law and the Civil and Administrative Tribunal Act 2013 (NSW), it may be appropriate to exercise the power to prohibit the publication of CWY's name. We note that CWY is in the early stages of recovery from a major psychiatric illness and that these reasons refer to delusional fears and beliefs expressed during the period she was untreated, which is likely to cause significant distress to CWY and her family.
3. The parties are invited to make submissions on this issue. In our view this issue can be adequately dealt with on the basis of written submissions without holding a hearing, as permitted by s 50(3) of the NCAT Act. The parties are invited to comment on this view. In the interim, until this question is determined we have made an order prohibiting the disclosure of CWY's name in relation to these proceedings.

Orders 1. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) CWY's registration as a registered health practitioner, is cancelled. 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), CWY must not apply for review of Order 1, within six months of the date of the expiration of the community treatment order made by the Mental Health Review Tribunal on 10 June 2016, or any extension of that order. 3. Each party is to bear their own costs. 4. Unless otherwise ordered, pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, the disclosure of CWY's name is restricted to the parties and their representatives and to any other persons or bodies where disclosure is necessary for the effective implementation and administration of the orders made in these proceedings. 5. Any party wishing to comment on whether the order prohibiting the publication of CWY's name should be continued must file and serve submissions within 14 days of the date of this decision. Any submission must address whether the issue can be adequately determined on the basis of written submissions and without holding a further hearing. 6. Any party wishing to reply to any submission received from the other party about whether the order prohibiting the publication of CWY's name should be continued, must file and serve submissions in reply within 14 days of receipt of the other party's submissions. Any submission must address whether the issue can be adequately determined on the basis of written submissions and without holding a further hearing. 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: 13 January 2017