Health Care Complaints Commission v Emery

Evidence filed at or prior to the hearing

1. The hearing was held over three days. Ms Petrie of counsel represented the Commission. The respondent represented himself.
2. Prior to the hearing, the Commission had filed a bundle of more than 72 documents including but not limited to nine witness statements, the expert report of Ms Marrianne McGhee dated 12 October 2015 and related correspondence and articles; the expert report of Dr Kipling Walker dated 13 September 2014; correspondence from the respondent to the Commission in relation to the Commission's investigations; personnel and disciplinary records of the Hospital for the respondent for 2013 and 2014; extracts from the Hospital's Register of Drugs of Addiction; clinical records of the respondent; the Reasons for Decision, relevant correspondence another relevant documents relating to the s 150 proceedings held by the Commission on 28 July 2014; the patient clinical records of Patient A, and Guidelines and Policies of the Hospital.
3. The respondent filed a bundle of documents including but not limited to his response to each of the three complaints; submissions and comments relating to the statements of the Commission's witnesses; letters of support and references. Various witnesses were required for cross-examination.

Factual Background

1. There are various relevant matters which are not in dispute and the Tribunal makes the following findings. 1. The respondent was born in 1973, and is 34 years old. 2. In May 2000, the respondent commenced employment at the Hospital, initially in a transitional support programme. 3. In May 2001, the respondent gained full registration as a nurse. 4. On 25 March 2008, a patient alleged that the respondent had degraded him, used foul language and was aggressive towards him when that patient was an inpatient at the Hospital. The respondent denied the allegations and apologised. On 19 September 2008, the matter was closed with no further action. 5. On 12 November 2008, the respondent advised the (then) Nurses and Midwives Board that on 23 October 2008 he had been convicted of common assault and placed under a 12 month bond. 6. In May 2012, the respondent received a warning for a Schedule 8 medication breach. 7. In April 2013, the respondent received a final formal warning for a Schedule 8 medication breach. 8. On 5 August 2013, the Hospital wrote to the respondent advising him that he was required to attend an investigation meeting in relation to an incident on 2 August 2013 where he provided a notification in relation to missing discharge medications, including Schedule 8 drugs Oxycontin and Endone. 9. On 9 August 2013, the Hospital advised the respondent that this was the third time that he had been involved in a formal process within 15 months with regard to Schedule 8 medications. 10. On 17 September 2013, the Hospital wrote to the respondent inviting him to show cause as to why the Hospital should not terminate his employment. 11. On 19 September 2013, a show cause meeting between the Hospital and the respondent was held. 12. On 25 September 2013, the respondent was issued with a final formal warning with respect to his failure to comply with the administration of Schedule 8 medications, and the Hospital placed various conditions on the respondent's employment relevantly including:

• the removal of the respondent's CNS status.
• the respondent was not to perform any Team Leader or In Charge shifts.
• the removal of the respondent's delegation to hold the Schedule 8 and Schedule 4D drug keys. 1. On 8 January 2014, the Hospital wrote to the respondent advising that the Hospital had received information alleging some further recent and serious breaches of the Hospital's Medicines - Ordering, Supply and Storage of Medicines: Schedule 8 and Schedule 4D Protocol. As a result of such allegations, the respondent's employment was suspended on full pay pending the outcome of an investigation. The respondent was restrained from entering the Hospital grounds other than for arranged meetings. 2. On 13 January 2014, the Hospital wrote to the respondent advising that it had been alleged that he had: ● taken sharps bins from the medication room at times when they did not require changing, or at inappropriate times and took the bins to areas other than the sluice room where full containers were kept. ● not followed appropriate procedure in the drawing up and changing of PCA syringes. ● not remained transparent when dispensing Schedule 8 and Schedule 4D medication from the medication cupboard, and swapped these medications for others not prescribed to patients. ● asked to carry the 4D keys, when he was aware he was not permitted to do this. 1. On 15 January and 23 January 2014, the respondent attended interviews conducted by the Hospital. 2. On 24 January 2014, the Hospital wrote to the respondent advising that, subject to random drug tests, he would be permitted to return to duty on 28 January 2014 and that during the first few weeks his drug administration would be monitored. The conditions of his previous final warning remained in effect. 3. On 3 March 2014, the respondent received a positive drug test for the first random urine sample he provided under the agreed random drug testing regime in relation to morphine. 4. On 12 March 2014, the Hospital wrote to the respondent: 1. confirming the previous investigation and that the allegations set out in the letter of 13 January 2014 were found to be unsubstantiated; 2. indicating that a positive drug test had been returned following the respondent's urine test on 3 March 2014 and that as a result he was suspended on full pay pending the outcome of an investigation into the matter. 1. On 12 March 2014, the respondent submitted for a further random drug test and the result was negative. 2. On 24 March 2014, the Hospital interviewed the respondent. When the respondent was asked why he thought the test had come back positive for Morphine he responded as follows: I have no idea, I did have a big weekend where I partied with friends. I did take a pill, don't know what it was, could have been ecstasy and had some ts and had lots of alcohol. On Sunday I took four Panadol extra tablets which contained codeine in the morning and then maybe two more to help with my hangover. This could be why the results came back positive." 1. When asked why he took drugs when he knew he could be tested the respondent replied: I wasn't thinking and it was bad judgement on my part. I had a false sense of security as I hadn't been tested yet. 1. On 27 March 2014, the Hospital wrote to the respondent advising that his period of suspension was to end and he was to return to work on the evening shift on 29 March 2014. The conditions of his previous final warning remained in effect. The respondent was also advised that the random drug testing would continue for a further two months. 2. On 23 April 2014, the Hospital wrote to the respondent advising that "Despite restrictions placed on your nursing practice, there are still concerns that you continue to act outside the agreed guidelines and conditions around your return to work." The respondent was advised that he was required to attend a meeting on 24 April 2014 to discuss these issues. 3. On 1 July 2014, the respondent's random drug test results indicated the presence of Morphine, Temazepam, Codeine and Oxazepam. 4. On 5 July 2014, the events subject of Complaints One and Two are alleged to have taken place. 5. On 8 July 2014, the respondent was advised that he was suspended on full pay pending the outcome of the investigation. 6. On 21 July 2014, the AHPRA received a Notification (Complaint) from Mr Steven Bernardi, an employer of the respondent, alleging that the respondent placed the public at risk of harm because the respondent had practiced the profession of nursing in a way that constitutes a significant departure from accepted professional standards. The Notification (Complaint) stated: On the morning of 5 July 2014 a patient witnessed a staff member opening the chamber containing his PCA morphine syringe, syphoning liquid from the syringe, and then replacing this fluid with another syringe. Patient informed the in charge nurse, who decided to discard the current syringe and replace it. Nursing Unit Manager then informed on the 7 July 2014 and investigation commenced. 1. On 28 July 2014, the Nursing and Midwifery Council of New South Wales (the Council) held proceedings pursuant to s 150 of the National Law. The Council stated in its subsequent decision that, while there was currently a lack of clarity and evidence around any health issues that the respondent may have, it was clear that he had not complied with accepted policy or adhered to appropriate workplace restrictions in relation to Schedule medication administration. The Council stated that it held concerns that there was a risk to the public safety should the respondent practice nursing. It considered that the allegations made required investigation. The Council was satisfied that conditions on the respondent's registration were necessary to decrease the risk to patient safety. The following relevant conditions were placed in the respondent's registration:
• the respondent must not work as a Registered Nurse until reviewed by the Council and this condition removed.
• the respondent must attend for a health assessment by a psychiatrist. 1. On 4 August 2014, the Hospital terminated the respondent's employment. The Hospital wrote to the respondent relevantly as follows: Based on our investigation, and your history with regards to Scheduled Drug breaches, we believe that you have drained the patient's PCA of Morphine and replaced it with some other liquid, most probably saline. We believe, based on your most recent urine analysis results and your history of scheduled drug breaches, that you have been using morphine and other opiates yourself for reasons unknown. Based on these findings, and taking into account your history with the organisation, we believe that you are a risk to patient safety, your colleagues, yourself and the hospital generally. Therefore effective 4 August 2014, your employment is to be terminated for serious misconduct. 1. On 2 September 2014, the Commission wrote to the respondent seeking a response from him in relation to the incident on 5 July 2014. 2. On 17 September 2014, the Commission received a response from the respondent which relevantly stated: . . . My attention was brought to an Alaris Intravenous Infusion Device, located at the head of the patient's bed as the warning alarm was sounding indicating infusion pump problems requiring rectification or adjustment. On arrival at the patients bedside the patient addressed me in a challenging manner, and to the best of my recollection I explained that I was going to have to investigate the intravenous pump and see why it was sounding an alarm. I sorted out the intravenous lines and separated them to clearly establish the correct chamber connections. I recall the pump was alerting me to the fact that air had been detected in the maintenance line that supplies the normal saline fluid to the patient. This runs alongside, and in conjunction with, the patient controlled analgesia (PCA). I untangled the patient's IV lines thus allowing enough length in the tubing to prevent any pulling or tension and comfortably allow the patient to attend to the meal. I then addressed the task of removing air bubbles from with the IV maintenance line connected to the patient. To remove the bubbles I used a sealed syringe that had been left on the patient's bedside along with several plastic vials of normal saline neatly stored in a green kidney dish. This is normal practice as the Alaris intravenous pumps are very sensitive and accurate to air detection and by anticipating this it saves time to have necessary items on hand to allow a simple flush of the IV lines and enable the infusion to resume as soon as possible. As I recall I simply used an empty syringe to suck the air from the line. Whilst withdrawing an amount of fluid containing the air bubbles from the lower end of the tubing the above drip chamber may have partially emptied allowing more air bubbles to enter the line from the top of the line at the drip chamber. As the lower bubbles in the tubing were now removed I needed to force fluid with another syringe in the opposite direction and displace any air that was now at the very top of the IV system. Access was through the external fluid inlet. As the inlet is at the lower end of the tubing this action would easily give the appearance that fluid is being replaced back into the infusion system due to it travelling back up the line to fill the drip chambers. Discarding the syringe used to suck out the first lot of bubbles closest to the inlet I used a second syringe with 10mls of normal saline forcing it into the line to clear any air trapped at the top of the drip chamber. As I have performed this technique of removing air bubbles from IV systems from many years the process on average takes no more than one minute to complete. Satisfied that I had fixed the situation I collected up the used syringes and other wrappings and carried them as conveniently as I could and took them to the nearest waste receptacle on the wall opposite the patient's bedside and then exited the room. At no time was I able to access the fluid from within the patient's PCA as it is a sealed system that prevents any syphoning or flushing within the PCA machine itself. The PCA delivery syringe is sealed and locked into place and only dispenses its contents with the aid of a motorised clamp attached to the syringe plunger. I did not at any time interfere with or open the PCA chamber as mentioned by Mr Steven Bernadi in his complaint … I believe I accurately identified the correct IV line and cleared all air from the maintenance line only and could not have drawn fluid from any other infusion chambers in the ensemble. Once the maintenance line was restored no further alarm was emitted from the Alaris infusion pump for the duration of that shift. In hindsight I should have spent more time explaining to the patient the procedure to remove air from the maintenance line. I do sincerely regret any distress caused to the patient. 1. The response of the respondent also stated that: I have never had a reason or occasion to be referred to any inpatient or outpatient facility for treatment of alcohol or drug issues. I have never had an issue with alcohol or drugs therefore I have never received treatment. 1. On 13 September 2014, Dr Kipling Walker, Forensic Psychiatrist, prepared a report for the Council. Dr Walker concluded that the respondent probably had a substance use disorder, and was impaired, as defined by s 5 of the National Law

The events of 5 July 2014

1. The principal issue for determination of the Tribunal is whether or not, as alleged by the Commission, on 5 July 2014, the respondent:

• attended to the PCA device of Patient A when there was no clinical indication to do so;
• obtained the ward key to the PCA device (in circumstances where the respondent had been directed by St Vincent's Hospital (the Hospital) not to handle the drug keys), or by other unauthorised means, opened Patient A's PCA device;
• inappropriately obtained, or attempted to obtain, a supply of morphine from Patient A's PCA device;
• inappropriately replaced, or attempted to replace, the fluid in Patient A's PCA device with clear fluid in the contents of the syringe in his pocket;
• was in sole position of the syringe containing morphine in circumstances where a syringe containing an opioid solution is to be attended by two registered nurses who should witness the discard of the remaining solution, record the volume discarded and the names on the PCA chart;
• misappropriated the morphine he obtained from Patient A's PCA device; and failed to make an entry in Patient A's medical record about his attendance on Patient A including making a record of the amount of morphine he obtained or, in the alternative, his checking or adjustment of Patient A's PCA device.

1. The primary evidence relating to these matters is to be found in the four witness statements of Patient A, respectively dated 5 July 2014, 2 February 2015, 14 September 2015 and 20 June 2016. Patient A had been admitted to the Hospital on 26 June 2014, following a work related accident where his pelvis was crushed when he was trapped between two forklifts.
2. We summarise the contents of the statements as follows.

Patient A, Statement of 5 July 2014

1. This statement, the first statement of Patient A, is handwritten, and said to be dated "7.5.14" (that is, 7 May 2014). However, as will be seen, the statement itself refers to events occurring on "5.7.14", that is, the day of the events in question. However, it is tolerably clear that the statement was prepared on 5 July 2014. The entirety of the hand written statement is as follows: "I [Patient A] in bed 27/7 South saw something different on Saturday. The 5.7.14 around lunchtime, I was half asleep when I saw someone near my pump so I said to him oh, are you halfing my pain dose and he said no mate just straighting everything up he called it observing your pumps then I seen him take some liquid out of the morefen chamber and then pull out another seringe and put some liquid back in to make it the same level, then put back the other seringe back into his pocket it just looked weired." (spelling in original)

Patient A, Statement of 2 February 2015

1. In this statement, Patient A relevantly states: 3 ... To manage my pain I was put on morphine which is given to me by a machine that I would push the button on to release the morphine. 4 By the 5 July 2014 I was still getting my morphine from the same machine. During this time nurses would regularly check machine and make sure I was getting enough pain relief and that the machine was working properly. I'm in the machine was all locked up in the nurses could not get into the machine unless they had a key to it. I remember that the nurses had to go through some procedures to fill up the machine. Basically, I remember that when the morphine in my machine was low, nurses would have to wait for a doctor to write up some more morphine for me, and then to nurses would have to go and get the morphine, come back and watch each other while one was putting the morphine into the machine. 5 Until the 5 July 2014 whenever anything had to be done to my morphine machine, there would always be two nurses present. This was only one time that I saw a single person come and do anything with or to my morphine machine by themselves. 6 The incident I was concerned about happened about lunchtime on 5 July 2014 and I wrote out a one page letter setting out what I saw for some Vincent's Hospital. Copy of this letter is attached to my statement and marked as Annexure A. 7 It was probably about lunchtime on 5 July 2014 and I had been half asleep when I saw a man come up to my morphine machine. He was fiddling with it. I wondered why anybody else needed to do anything to my morphine machine because it had not been more than half an hour since two other nurses had checked the morphine machine and I was getting plenty of pain relief. 8 When this male person was at my morphine machine I asked him "what are you doing". He said something like "it's just a routine check". I remember seeing this man had two syringes in his hand, one looked empty to me and one had a clear liquid in it. I did not see this man inserted anything into the morphine machine, but I do remember the machine was open. It was like a lapse that you had to lift up to open still. I do not know how he opened machine and did not see him open it. Just before this male person left my bedside, I remember seeing him put the syringes into his pocket and walk away. I was half asleep, so I don't remember whether this person was wearing a name tag or wearing a uniform. I do remember that the morphine machine was not making any sort of noise or doing anything out of the ordinary and this male person was near my morphine machine. Until this male person and started to fiddle with my morphine machine, I have been getting plenty of pain relief. 9 After the male person with my bedside I didn't think anything much of what I had seen. I stayed in my bed and push the button to get some pain relief, but it did not feel that my pain went down. I waited several minutes, because you have to wait at least five minutes between doses and tried pushing the button again to release the morphine. Nothing happened the second time I pressed the button on the morphine machine, I pressed the call but as a nurse as there was a nurse who had been near the desk in the hallway. I don't remember the name of the nurse, but it was a woman. I told her that open pressing the button on the morphine machine but nothing was happening. I then told this nurse about the man I had seen fiddling with my morphine machine.

Patient A, Statement of 14 September 2015

1. In this statement, Patient A relevantly states: 3 To the best of my recollection when I opened my eyes on 5 July 2014 there was a male person standing next to my morphine machine. The chamber where the morphine was kept was open, the male nurse had two syringes, as I have already described on 7 July 2014 and 10 December 2014. I did not see the male person actually open the morphine chamber, but I know that before I fell asleep the morphine chamber had been locked by the two nurses who had checked the morphine machine for me. I also remember that the morphine chamber was full. 4 I do not know how the male person opened the morphine chamber. I did not see him open it with a key but, as far as I'm aware, other nursing staff always used a key to open the chamber. 5 When I said that before that I saw this man take some fluid out of the morphine chamber and pull out another syringe to put fluid in, what I meant was that I saw the male person remove a syringe in the morphine chamber and replace this syringe with a syringe he removed from a pocket in his clothing. It was like exchanging one syringe for another. This was when and why I questioned the male person about what he was doing. It was just very odd given that the nurses had [not] long before attended to my morphine machine because it had been getting low. 6 I did not mention the actual swapping of the syringes in July 2014 or December 2014 because it was probably an oversight. I was more concerned about the male person's behaviour because it was a bit weird as was the fact that the male person was by himself at the morphine machine when there is usually two people together at the machine.

Patient A, Statement of 20 June 2016

1. In this statement, Patient A relevantly states: 7 Concerning paragraph 6 of my Statement dated 10 December 2014 [sic - 2 February 2015] and paragraph 3 of my Statement dated 3 September 2015 [sic - 14 September 2015] I say as follows: (a) on 5 July 2014 I was woken up by the sound of a nurse, who I now know to be [the respondent], doing something to my PCA machine. I was not woken up by any alarm from the PCA machine or any other machine attached to the metal pole and I recall that there was no alarm noise when I woke up." . . . 9 Concerning paragraph 8 of my Statement dated 10 December 2014 [sic - 2 February 2015] and paragraph 5 of my Statement dated 3 September 2015 [sic - 14 September 2015], I say as follows: (a) I was half asleep at the time of the incident on 5 July 2014, but I clearly recall seeing [the respondent] working on my PCA machine. I had been using this machine from 3 July 2014. (b) … I saw [the respondent] working on the PCA machine - I am sure about this. At no stage did [the respondent] use the other machines like the machines in the centre and left photograph marked "B". (c) When I saw [the respondent] working on my PCA machine, the cover was open just like in the photograph marked "A". (d) At the time of the incident on 5 July 2014, I was surprised that [the respondent] was working on my PCA machine on his own as previously there had always been two nurses who did this. (e) I was surprised that [the respondent] was changing the morphine in my PCA machine as in the past it was changed when the amount of morphine was almost empty. I am not sure how much was in the syringe at the time but it was definitely over half full. (f) When I first woke up and saw [the respondent] next to my PCA machine, I tried to observe what [the respondent] was doing to the PCA machine briefly before asking him what he was doing. (g) [the respondent] would not look at me when I asked him "What are you doing?" He had his back to me and did not turn around after I questioned him. (h) I distinctly recall that when I spoke to [the respondent] he was rushing. His movements quickened. [The respondent] was in and out without anything other than a response that "What I'm doing is routine." (i) After asking [the respondent] what he was doing, I noticed that in his pocket was a syringe and the plunger part of the syringe was almost completely withdrawn from the shaft and the handle of the plunger was sticking out of his pocket. The syringe looked like the photograph annexed and marked "C". The syringe had clear fluid inside it. 10 Concerning paragraph 9 of my Statement dated 10 December 2014 [sic - 2 February 2015], I say as follows: (a) I do not recall seeing [the respondent] locking my PCA machine with a key, but I do recall that the clear cover in the photograph marked "A" was closed after he left. I also recall that after [the respondent] left, the amount of morphine in the syringe in my PCA machine was much less than full. I was not expecting, but wondered, if he might have been told by my doctors to halve my dose of morphine. (b) I was surprised because when [the respondent] left, the amount of morphine in the syringe in the PCA machine was well under full but as noted in paragraph 7 of my 10 December 2014 Statement, it had not been long since the nurses had checked my PCA machine. When the nurses changed my morphine syringe in my PCA machine shortly prior to the incident on 5 July 2014 with [the respondent], the morphine syringe was full and I was getting enough pain relief. (c) After [the respondent] left my bedside, I was in and out of sleep. I was not getting pain relief shortly after [the respondent] left and this prompted me to think that [the respondent] might have fiddled with my PCA machine in some way. 11 Concerning paragraph 10 of my Statement dated 10 December 2014 [sic - 2 February 2015], I say as follows: (a) I recall that when the female nurse arrived, I looked at the PCA machine again and the plastic cover was still closed. When she came back with another nurse, they had to use a key to open the machine."
2. Further evidence about the events of 5 July 2015 appears in the statements of other employees of the Hospital.

Statements of Maike Dwyer, 2 April 2015 and 2 September 2015

1. Registered Nurse Dwyer was rostered on duty in the surgical ward of the Hospital on 5 July 2014. Her first statement is dated 2 April 2015, that is, some nine months after the events of 5 July 2014. Relevantly, she states: On 5 July 2014 I was rostered on duty in the surgical ward of St Vincent's Hospital as a nurse in charge. On this date I recall a patient complaining to me that while he was resting in bed, he opened his eyes and saw a man, wearing a blue jumper and glasses with some syringes in his hand. The patient told me this man had either syringed something out of or into the patient controlled analgesia device (PCA). I do not recall the name of the patient. The only other thing the patient said to me was that when he opened his eyes and caught this man at the PCA the man's eyes looked frightened. When the patient complained to me about someone having tampered with the PCA, I replaced the syringe with a new one so I could be sure there would be no problems with the patient's medication. . . . I do remember that at the time the patient complained about his PCA being tampered with, I checked the sticker that is always placed on the syringe stating what medication is being administered. I remember the sticker was quite wet and this is not normal if the device has not been tampered with or is not faulty.
2. Ms Dwyer also states that if there was air in the maintenance line of the PCA, you would normally "take this line out of the chamber, click it to remove the air bubbles and then reconnect the maintenance line to the chamber. In my experience you would not use a syringe to remove air bubbles from an Alaris device".
3. Ms Dwyer states that she did not have any conversations with the respondent about Patient A's allegations on 5 July 2014, as she was aware that "an allegation about someone tampering with a PCA device is a serious allegation". She rang her "boss", Ms Heustis, the Nurse Unit Manager, on 7 July 2014, and made a report to her.
4. In her statement of 2 September 2015, Ms Dwyer states: In relation to the PCA key there is only one key on the ward. This is a master key and it opens all of the PCAs on the ward. The master key for the PCAs is kept with the S8 drug cupboard key. . . . I am not aware of any incidents where the drug cupboard has been left unlocked. … You do not flush the intravenous lines with normal saline to remove air when a patient has a Schedule 8 drug in the PCA device. The only time you would flush an intravenous line with a syringe and normal saline is when you are giving intravenous antibiotics.

Statement of Katherine Helsham, 7 September 2015

1. Registered Nurse Helsham relevantly states: I have no particular recall of the 5 July 2014. I do remember that sometime after 5 July 2014 I was asked by management, I don't recall who now, whether I had given [the respondent] access to the drug key. On 5 July 2014 I was one of the assigned drug holders. Just recently I was told by Ms Phoebe Heustis, the Nursing Unit Manager, that I would be receiving a telephone from the [Commission] regarding [the respondent's] access to the drug keys. I advised then, that I do not recall giving [the respondent] the drug key that I was responsible for on 5 July 2014. The other assigned drug key holder on 5 July 2014 was RN Maike Dwyer." In terms of accessing the drug chamber on PCAs, the chambers can only be opened with a key. There is only one master key on the ward that will unlock all the PCAs on the ward."

Statement of Ms Kirsty McLeod

1. Ms McLeod is the Acting Acute Program manager at the Hospital, and has been acting in that position for two years. Her substantive position is Nurse Unit Manager. In her statement of 22 December 2014, she relevantly states that she was contacted by Ms Heustis on 7 July 2014. Ms Heustis informed her that there had been a complaint about the respondent's handling of a patient's PCA. Ms McLeod states that she does not recall the patient's name. She says that she was aware that because of previous investigations conducted by the Hospital, the respondent was not to be rostered on as the nurse in charge of shifts and was not to hold the keys to the drug cupboard. As the respondent was not permitted to hold the drug keys, he was not permitted to attend to any PCA device. Finally, she says that she is not able to comment on how a registered nurse would manage a suspected air bubble in a maintenance line, she knows that the Hospital does not have a specific policy on the issue. She states that she would expect any alarm related to a PCA device, other than a battery alarm, to be documented in the nursing notes by the clinician who attended to the alarm in order to get the infusion flowing again."

Statement of Ms Phoebe Huestis

1. Ms Heustis is a Nursing Unit Manager at the Hospital. She was not working at the Hospital on 5 July 2014. In her statement of 14 June 2016, she relevantly states that the Hospital only has one model of PCA machine for surgical patients, being the Alaris PCA model 8120. Annexed to her statement are 13 photographs of the machine. Ms Heustis explains how the machine operates, including how the machine makes an alarm sound once the amount of analgesia is reduced to a certain level, the alarm does not cease until a nurse presses the "pause" or "silence" button.
2. Ms Heustis states that a key is required to lock the PCA machine; and that if the machine is "on" and the front plastic panel left open, "it would alarm". She says that the alarm "is the same sound regardless of the problem detected" by the PCA machine.
3. Ms Heustis states that there is one set of keys which contains the key to all PCA machines in the Hospital and the keys to the Schedule 8 drug cupboard. Those keys are kept by only two nurses on a shift, and it is mandatory protocol that two nurses must be present when opening a PCA machine, closing the machine and accessing drugs from the drug cupboard. Finally, she states that on 5 July 2014 the respondent was not authorised to hold the keys to open the PCA machine.

Consideration

1. The Commission submits that the respondent has failed to adduce any evidence other than in relation to his character contesting the evidence relied upon by the Complainant. This is not strictly correct. The respondent has given his own evidence of the events in question, both during the Hospital's investigation and at the hearing, and was cross-examined by the Commission's counsel for almost two days.
2. The Commission submits that the respondent was an unreliable witness who showed limited to no insight under cross examination. The Commission submits that any concessions made by the respondent should be given little weight, and that his evidence was motivated by a desire to gain a forensic advantage in the proceedings as opposed to any genuine contrition.
3. The Commission further submits, correctly, that the respondent has not conceded any of the Complaints, and that the Tribunal is obliged to make a finding on every particular and then determine whether the complaints are made out.
4. Before doing so, the Tribunal will make some observations about the applicable legal principles. 1. The Tribunal is not bound by the rules of evidence: see Sch 5D of cl 2 of the National Law and s 38(2) of the Civil and Administrative Tribunal Act 2013. 2. While the Tribunal may inform itself in any way "it thinks fit", it should base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined: Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [75]. See too Smith v the Nursing and Midwifery Board of Australia [2013] NSWNMT 10 NSW at [18] and [19]. 3. The onus of proof is the civil standard, as explained in Briginshaw v Briginshaw (1983) 6 CLR 336 and other authorities including Forster v Hunter New England Area Health Service [2010] NSWCA 106.
5. Also see the discussion of the authorities on this issue in Health Care Complaints Commission v Ng [2015] NSWCATOD 85 at [131] to [134] where the Tribunal stated: 131 In Forster the Court of Appeal stated: 22 In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid). 23 Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2). 133 In Rejfek, the High Court stated: 10. . . . The "clarity" of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved: see Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 , per Dixon J. (1938) 60 CLR, at p 362 . . . 11. But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691 per Dixon, Evatt and McTiernan JJ. (1940) 63 CLR, at p 714. 134 In Campbell, Sackar J at [72] also referred to Evans and Braddock [2015] NSWSC 249 at [70] - [77], a decision of Hallen J. Hallen J had noted that Emmett J (as his Honour then was) stated in Warner v Hung, In the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48] that: When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2).

Consideration of Complaints One and Two

1. Having summarised the evidence given by its witnesses the Commission relevantly submitted: Complaint 1 193 The Tribunal can be reasonably satisfied that the particulars of the first Complaint have been established in light of the evidence. 194 S[ection] 139B(1)(l) of the National Law requires a determination by the Tribunal of whether the respondent's conduct demonstrates improper or unethical conduct relating to the practice or purported practice of nursing and is therefore unsatisfactory professional conduct. 195 The National Law does not define the words "improper" and "unethical". Complaint 2 196 The Complainant relies on the above submissions in relation to Complaint 1 in relation to Complaint 2.
2. A statement that the particulars have been established "in light of the evidence" is of little assistance to the Tribunal in determining whether or not or not a specific particular has been established. To take particular (b) as one example. This particular has two limbs. The first is that the respondent obtained the ward key to the PCA and opened Patient A's PCA device. The second (alternative) limb is that the respondent did so by "other unauthorised means". There is no evidence to support the allegation that the respondent obtained the ward key. In fact, the evidence positively does not support that particular: Patient A says that he did not see the respondent opening the PCA; Ms Helsham, who had responsibility for the drug keys on the night in question, does not say she lent the keys to the respondent, and she says that she would only have given the key to the other nurse allocated as the second drug key holder for the shift, Ms Dwyer. She does not recall giving the drugs keys to the respondent. Nor was Ms Helsham aware of the drug cupboard being unlocked.
3. We note that the Commission has submitted that the respondent was an unreliable witness, and where there is a discrepancy between the evidence of the respondent and Patient A, the Tribunal should prefer the evidence of Patient A. While this submission, if accepted, may be of assistance with, for instance, particular (d) (namely that the respondent inappropriately replaced or attempted to replace the fluid in Patient A's PCA device with clear fluid from the contents of a syringe from his pocket, a matter which is referred to in some of Patient A's statements), it is of little assistance with particulars which are outside the observations of the Commission's witnesses.
4. The Tribunal notes that there was no direct witness of the respondent doing anything to Patient A's PCA device, save for Patient A himself. His evidence went through three iterations after his first handwritten statement, the salient aspects which can be summarised as follows: ● Statement of 5 July 2014: "around lunchtime, I was half asleep when I saw someone near my pump . . . then I seen him take some liquid out of the morefen chamber and then pull out another seringe and put some liquid back in to make it the same level, then put back the other seringe back into his pocket"; (spelling as in original) ● Statement of 2 February 2015: "It was probably about lunchtime on 5 July 2014 and I had been half asleep when I saw a man come up to my morphine machine. He was fiddling with it. . . . I do not know how he opened the machine and did not see him open it. Just before this male person left my bedside, I remember seeing him put the syringes into his pocket and walk away. I was half asleep"; ● Statement of 14 September 2015: "when I opened my eyes on 5 July 2014 there was a male person standing next to my morphine machine. The chamber where the morphine was kept was open, the male nurse had two syringes, . . . When I said that before that I saw this man take some fluid out of the morphine chamber and pull out another syringe to put fluid in, what I meant was that I saw the male person remove a syringe in the morphine chamber and replace this syringe with a syringe he removed from a pocket in his clothing. It was like exchanging one syringe for another. . . . I did not mention the actual swapping of the syringes in July 2014 or December 2014 because it was probably an oversight; ● Statement of 20 June 2016: "on 5 July 2014 I was woken up by the sound of a nurse, who I now know to be [the respondent], doing something to my PCA machine. I was not woken up by any alarm from the PCA machine or any other machine attached to the metal pole and I recall that there was no alarm noise when I woke up. . . . I was half asleep at the time of the incident on 5 July 2014, but I clearly recall seeing [the respondent] working on my PCA machine. . . . After asking [the respondent] what he was doing, I noticed that in his pocket was a syringe and the plunger part of the syringe was almost completely withdrawn from the shaft and the handle of the plunger was sticking out of his pocket.
5. The Tribunal observes that there are critical differences between these accounts. For instance, in his first and third statements, Patient A states that he sees the respondent at the PCA machine, [1] while in his second statement he states that he saw the respondent "come up" to the PCA machine. In his fourth statement, Patient A states that he was woken by "the sound of a nurse", whom he now knows to be the respondent, doing something to his PCA machine, but no reference is made to this in any previous statement. Importantly, in his first statement, Patient A states that the respondent took some liquid out of the "Morefen chamber" and then "pull[ed] out another seringe and put some liquid in to make it the same level". This allegation is not repeated in any of the later three statements, and is contradicted in the third statement when Patient A explains that what he meant was the replacement of one syringe with another.
6. Patient A was cross examined by the respondent about his statements. In relation to his first statement, Patient A said that the event occurred at lunchtime, although he could not really be sure as he was in and out of sleep, in continual pain, and having morphine every five minutes.
7. In relation to his second statement, Patient A was not sure about its date (and here the Tribunal notes that it appears to have been prepared on 10 December 2014, but not signed by the respondent until 2 February 2015), and said that he did not write it. When asked why the second statement was made, he said that "this is just another version of my statement", and that he had "no idea" who wrote it. When asked whether it was a true reflection of what occurred, Patient A explained that "what I saw is someone fiddling with my machine, that's pretty much it, it was pretty quick, when you're on morphine, if you don't get pain relief there must be something wrong with the machine, when you've had a serious accident.
8. In relation to the third statement, Patient A again said that he did not write the statement, and signed it because he was asked to. He stated that the only reason he was at the hearing was because he was not getting enough pain relief. He said to the respondent that "I didn't actually see you put liquid in and liquid out, I meant exchange".
9. When asked by the respondent about the differences between his first statement and his third statement ("you've changed the allegation completely - why did you change your statement?") Patient A responded "I had an accident, operation and pain relief, and when you left, I was getting no pain relief, seeing you change the liquid and all that, it was just like you exchanged the syringe . . . I'm just telling you what I seen . . . I'm here today because something happened. The only reason I am here today is that on the day I was not getting pain relief".
10. In relation to his fourth statement, Patient A again confirmed that he did not write or prepare the statement. He said he did not know who prepared it. He confirmed in his cross examination that he saw the morphine chamber open, but says that he heard no alarm. He had no explanation when the respondent put to him that an alarm is activated if the chamber is opened.
11. The respondent submits that Patient A is an unreliable witness, as his evidence "dramatically changed overtime". The respondent submits that and that taking morphine out of one syringe and replacing the missing morphine with another liquid into a syringe is vastly different to exchanging one syringe for another.

Conclusion as to reliability of the evidence of Patient A

1. As Sackar J noted in Campbell, when proof of any fact is required, the Court (here the Tribunal) must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court, and should not be produced by inexact proofs, indefinite testimony or indirect inferences. It was clear that there were unexplained discrepancies between the various versions of events set out in the four statements of Patient A on which the Commission relies. The Tribunal has no reason to believe that Patient A was anything other than an honest witness who was trying to assist the Tribunal. However, no explanation was offered by the Commission as to how Patient A's varying accounts of the events of 5 July 2014, given over some two years, could be read together, or be accepted by the Tribunal to enable it to make findings in terms of the alleged particulars. Given that: 1. Patient A's own evidence was that at the time of these events he was "half asleep", or "in and out of sleep"; 2. Patient A was receiving morphine for post-operative pain at the time of the alleged events; 3. Patient A's second, third and fourth statements were signed approximately seven, sixteen and twenty four months after the events in question; 4. Patient A did not actually see the respondent open the morphine chamber, and does not know how he could have done so; 5. there is no independent corroboration of the events as described by Patient A; 6. the respondent over time has been consistent in his denials of the conduct alleged, and consistent in his own explanation of the events in question, the Tribunal is not satisfied that Patient A's evidence should be accepted to support findings establishing either of Complaints One and Two. The matters referred to above, including the inconsistencies of the events alleged in the various statements, and Patient A's own level of consciousness of the time of the events ("in and out of sleep", consistent with taking morphine;) militate against the Tribunal accepting his evidence to establish either complaint, save for where it is corroborated.
2. We turn now to each consider each alleged particular.

Particular (a): The respondent attended to Patient A's PCA device when there was no clinical indication to do so

1. The respondent has consistently stated that he attended to the PCA device because a warning alarm was sounding, indicating that there were infusion pump problems which he attended to. There is no evidence of any Hospital witness that he attended on the device for any other reason, or where there was no clinical indication to do so.
2. We note that Ms McLeod stated in her statement that, as the respondent was not permitted to hold the drug keys, he was not permitted to attend to any PCA device. However, the Hospital's independent expert, Ms McGhee, was relevantly asked to comment, assuming the respondent's version of events was correct, on the respondent's conduct in attending to Patient A's PCA, Patient A being in a bed not allocated to him. Ms McGhee states that the respondent's version of events and conduct on attending to a patient not directly assigned to him was consistent with what would reasonably be expected of a practitioner during a lapse of available nursing staff as a result of lunch time breaks. Ms McGhee was of the opinion that if the respondent's version of events was correct then the care provided by the respondent to Patient A does not invite strong criticism and was consistent with what reasonably was to be expected of a practitioner.
3. The Tribunal also notes that Ms McGhee considered the respondent's statement that he was clearing an intravenous maintenance line. She considers that the respondent provided a reasonable standard of care, and that it was not considered to be standard nursing practice to document the removal of air bubbles.
4. In the circumstances, the Tribunal is not comfortably satisfied that this particular is established.

Particular (b): The respondent obtained the ward key to the PCA in circumstances where he had been directed by the Hospital since 25 September 2013 not to handle the drug keys and opened Patient A's PCA device or, by other unauthorised means, opened Patient A's PCA device

1. There is no evidence before the Tribunal to establish the allegation that the respondent obtained the ward key and opened Patient A's PCA device. Indeed, the evidence before the Tribunal, including that of Ms Dwyer ("I did not leave the drug keys unattended . . . The only person I would have given the drug keys to would have been the other nurse allocated as the second drug key holder for the shift") and Ms Helsham ("I do not recall giving [the respondent] the drug key that I was responsible for on 5 July 2014") points positively to an opposite conclusion. The Tribunal is not comfortably satisfied that this particular is established.
2. As to the allegation that the respondent opened the device by "other unauthorised means", no submission was made as to what these means were, and there was no evidence, save for the evidence of Patient A, that the chamber had been opened by the respondent. But Patient A candidly conceded that he did not see Patient A open the PCA device. The Tribunal is not comfortably satisfied that this particular is established either.

Particular (c): The respondent inappropriately obtained or attempted to obtain a supply of morphine from Patient A's PCA device

1. There are two limbs to this particular. The first is that the respondent inappropriately obtained a supply of morphine from Patient A's PCA device. The second limb is that the respondent attempted to do so. There is no direct evidence of either allegation. The only evidence to support either allegation appears in the first statement of Patient A, which appears to be contradicted, if not eschewed, by Patent A in his later statements. These are extremely serious allegations and the Tribunal is not comfortably satisfied that either limb of this particular is established.

Particular (d): The respondent inappropriately replaced or attempted to replace the fluid in Patient A's PCA device with clear fluid from the contents of a syringe from his pocket

1. The only evidence to support the allegation appears in the first statement of Patient A, and appears to be contradicted, if not eschewed, by Patent A in his later statements. Again, this is an extremely serious allegation, and the Tribunal is not comfortably satisfied that this particular is established.

Particular (e): The respondent was in sole possession of a syringe containing morphine in circumstances where a syringe containing an opioid solution is to be attended by 2 (two) registered nurses who should witness the discard of the remaining solution, record the volume discarded and sign their names on the PCA chart

1. Save for the evidence in the first statement of Patient A, which the Tribunal does not accept, there is no evidence that the respondent was in sole position of a syringe containing morphine as alleged. The Tribunal is not comfortably satisfied that this particular is established.

Particular (f): The respondent misappropriated the morphine he obtained from Patient A's PCA machine

1. Again, there is no evidence whatsoever to establish this serious allegation. Accordingly, the Tribunal is not comfortably satisfied that this particular is established.

Particular (g): The respondent failed to make an entry in Patient A's medical record about his attendance on Patient A including making a record of the amount of morphine he obtained or in the alternative, his checking or adjustment of Patient A's PCA machine

1. As there was no evidence to establish either of particulars (e) or (f), particular (g) too must fail.
2. The particulars for each of Complaint One and Complaint Two are identical. It follows that the Tribunal is not satisfied that either Complaint One or Complaint is established.

Consideration of Complaint Three: Impairment

1. Complaint Three alleges that the respondent has an impairment within the meaning of s 5 of the National Law. Section 5 provides that: 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.
2. Dr Walker's opinion of 13 September 2014 was that the respondent "probably" had a substance abuse disorder, and therefore had an impairment for the purposes of s 5 of the National Law is noted above. Dr Kipling stated: PSYCHIATRIC DIAGNOSIS Mental and behavioural disorder due to use of substances. SUMMARY AND OPINION [The respondent] probably has a substance use disorder. He has used non-prescribed opioid medications. Urine drug tests from 3 March and 1 July 2014 contained morphine. His account for the first positive test was that over the preceding weekend he took a Schedule 8 medication [Oxycontin (Oxycodone)] from a friend, to relax and to get intoxicated. His account for the second positive test was that he took over the counter medication (Panadeine Extra) that contained Codeine, but that he might have taken a Schedule 8 drug (MS Contin (Morphine)) that he might have obtained from friends or from Thailand. He could not explain the presence of Oxazepam in the second positive test. His account of these positive urine drug tests was not consistent with what he told the Section 150 proceedings on 28 July 2014. He was intoxicated with alcohol when he broke into a school when 18, and assaulted his partner in 2006 or 2007. He reported he stopped smoking marijuana 2 years ago. He denied other drug use." . . . Given that [the respondent] probably has a substance use disorder, he is impaired as defined by section 5 of the Law. Drug use could affect his capacity to practice as a nurse.
3. In correspondence to the Commission dated 1 October 2015, the respondent stated: I acknowledge that Dr Kipling Walker's assessment is probable and correct in its conclusion. I may have had a substance use disorder around that time due to occasional use of "party drugs" which could have contained opiates. This was not a regular thing nor do I consider myself addicted to drugs or alcohol. I never presented to work in a state of drug or alcohol influence as can be attested by my co-workers and peers. During my consultation with Dr Kipling Walker I was extremely open and honest, but am disappointed that he has presented a grim and damning assessment of my character. "My lifestyle has changed dramatically since I have removed myself from the Sydney City area. I have been living with my parents under their constant observation for over 12 months and will continue to do so. They have a zero tolerance to drug and alcohol abuse. Their home is in country NSW and I have procured a responsible fulltime position here and have no access to any form of drugs. My leisure time is taken up with helping my parents maintain their home, camping, fishing, 4 wheel driving and having weekly golf lessons. I enjoy a glass of white wine with my parents most nights at dinner and only the very occasional spirit with my Dad during our regular Chess tournaments. I would be more than willing to undergo random and frequent drug and alcohol testing at any time in the future.
4. Dr Walker was examined by Ms Petrie at the hearing. Relevantly, he said that he was concerned that the respondent's evidence did not acknowledge previous problems with drug or alcohol, showed limited insight into his conduct and demonstrated a tendency to minimise the seriousness of his conduct. Dr Walker agreed that while the respondent may have turned his life around by moving back to the country to live with his parents, he would be concerned if the respondent moved away from his parent's environment. Dr Walker was concerned that the respondent had sought no ongoing counselling or other treatment since he had prepared his report, and did not attend a GP regularly. Dr Walker agreed that the failure to seek treatment, when combined with the respondent's lack of insight, increased the risk of the respondent relapsing and taking drugs in the future.
5. The Tribunal asked Dr Walker about the use of the word "probably" appearing in his report (and set out above). Dr Walker confirmed that it was his opinion at the time he prepared his report that the respondent had a substance use disorder.
6. After hearing Dr Walker's evidence and still under cross-examination, the respondent agreed with the Commission that Dr Walker's oral evidence was of concern and responded "I will have to seek counselling, regular visits to a GP". When the Commission suggested to the respondent, that if he were to return to working as a nurse, counselling would not be a priority given his financial situation, the respondent agreed. When questioned by the Tribunal, the respondent conceded "I now believe I should have been pursing some counselling … I may have a substance abuse problem … I should pursue counselling so I can prove to them …".
7. When asked by the Tribunal why he denied he had a problem before but now says he does, the respondent responded "Moving away from Sydney, changing my lifestyle. As an impaired person, I can't help but be tempted there".
8. The Commission submits that, throughout his cross-examination, the respondent failed to make any meaningful concessions in relation to his conduct in regard to any issue in the proceedings, and sought to downplay his conduct in every respect possible, including but not limited to his evidence that the drugs detected in his system in March and July 2014 were "minimal".
9. The Commission submits that the respondent's evidence under cross-examination demonstrated that he has limited insight in relation to his conduct, and that he failed to make any proper concessions or acknowledge in any meaningful way that he could have approached issues more effectively, including in relation to his prior conduct regarding Schedule 8 medications which had resulted in significant conditions being imposed on the respondent's employment by the Hospital as well as a number of suspensions and interviews by the Hospital.
10. The Commission further submits that the respondent's limited insight is also evidenced by his written evidence before the Tribunal. In relation to the drug tests, he gave evidence that the test results "only state the presence of traces of the drugs listed and do not confirm that I was in any way impaired to the extent that I could not practice as a nurse".
11. The Commission submits that is apparent from the evidence that the respondent fails to acknowledge in his own mind the inappropriateness of a nurse taking illicit substances whilst practicing as a nurse. The Commission submits that the respondent has taken no steps to undergo counselling or treatment or to even attend a general practitioner on a regular basis to assist in his recovery. In these circumstances, the Commission submits that the Tribunal cannot be confident that, in the event that the respondent takes illicit substances in the future that he would seek appropriate professional help and abide by any advice given.

Conclusion

1. The Tribunal finds, on the basis of Dr Walker's evidence, that the respondent had an impairment at the time he prepared his report (that is, September 2014) namely a mental and behavioural disorder due to use of substances amounting to a substance use disorder.
2. Dr Walker stated at the hearing that the respondent's lack of insight, and his conduct in not seeking treatment of counselling, increased his risk of drug taking in the future, particularly if he moved away from his parents' care.
3. The Tribunal acknowledges the various character references provided by the respondent, including the statements of his very supportive parents. However, there was no medical evidence before the Tribunal demonstrating that the respondent had recovered from or was in remission from any substance use disorder or drug addiction. This is not surprising, given that the respondent's own evidence was that he had not attended any counselling or treatment.
4. Although the evidence from Dr Walker is almost two and a half years old, there is no reason to believe that the respondent's condition has materially changed. There is no independent evidence before the Tribunal that the respondent's drug use, be it occasional or more regular, has ceased or that he has been seeking any counselling or other treatment, save for an occasional attendance on his general practitioner.
5. On the basis of the evidence before it, the Tribunal's view is that the respondent's mental health and drug dependence difficulties continue. The Tribunal finds that the respondent is impaired and that this impairment includes drug dependence. The Tribunal further finds that the respondent's impairment may detrimentally affect his capacity to practise.
6. Given Dr Walker's evidence, and the respondent's lack of insight into his conduct, the Tribunal finds that the respondent has an impairment, within the meaning of s 5 of the National Law, and has a physical or mental impairment, disability, condition or disorder (namely a substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession of nursing.
7. The Tribunal proposes to place the conditions set out in Attachment B to these Reasons on the respondent's registration. These are the conditions set out in the Commission's written submissions.

Costs

1. The Commission seeks an order that the respondent pay its costs. This is a costs jurisdiction, with the usual rule that costs follow the event: Health Care Complaints Commission v Phlipiah [2013] NSWCA 342. The Commission has been unsuccessful in relation to Complaints One and Two and successful in relation to Complaint Three. The written evidence and the hearing time was overwhelmingly concerned with Complaints One and Two, although a substantial part of the cross examination did concern the respondent's drug taking and attitude to drugs.
2. In the circumstances, the Tribunal proposes to order: 1. the respondent to pay 33% of the Commission's costs of the proceedings. 2. The Commission to pay 67% of the respondent's costs of the proceedings.
3. For the benefit of the respondent, the Tribunal notes that costs are defined in s 60(5) of the Civil and Administrative Tribunal Act 2013 as: (5) In this section: "costs" includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
4. The Appeal Panel explained in Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 that: 107 Under s 60(5)(b), "costs" includes the costs of, or incidental to, proceedings in the Tribunal and the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. Otherwise, "costs" is not defined in the Act. Given the general prohibition on the awarding of costs in s 60(1) and the absence of any definition, apart from the inclusive illustrations in s 60(5) which refer to "costs" without elaborating upon that term, we are of the view that the word "costs" in s 60 refers to the types of costs recoverable in legal proceedings and that the legal principles relating to what "costs" may be ordered to be paid by a Court apply in relation to the Tribunal, except to the extent that they are modified by the Act or other applicable legislation. As we understand it, there is no applicable statutory modification in this case. Accordingly, "costs" that the Tribunal can order to be paid under s 60(2) will not include compensation for time spent by a litigant who is not a lawyer in preparing and conducting his or her case: Cachia v Hanes (1994)179 CLR 403 at 409. In Cachia, the High Court explained the position as follows at 410-411: This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester ((30) 6 Edw.I c.1.) introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, "but not to the costs and expences of his travell and losse of time" ((31) Coke, Second part of the Institutes of the Laws of England at 288. See also Howes v. Barber [1852] EngR 15; (1852) 18 QB 588 at 592 [1852] EngR 15; (118 ER 222 at 224); Dowdell v. The Australian Royal Mail Co. 1854) 3 El and Bl 902 at 906 [1854] EngR 604; (118 ER 1379 at 1381).). 108 A similar approach is apparently taken in the Victorian Civil and Administrative Tribunal and the Queensland Civil and Administrative Tribunal in relation to what "costs" are recoverable, where the word "costs" is not given a specific definition in the legislation applicable in either of those Tribunals: Ractliffe v VOCAT (Review and Regulation) [2015] VCAT 205 at [35] and Northpine (Aust) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 579 at [9] and [18].
5. The respondent was not represented at the hearing, and therefore has incurred no costs in the sense described above. However, it may be that during the course of the proceedings the respondent sought legal advice, about which the Commission in unaware.
6. Each party has 14 days from the publication of these reasons to file submissions if they seek some other costs order. The other party has a further 14 days in which to respond. The costs decision will be made on the papers, without a further hearing.

Orders

1. The Tribunal orders: 1. Complaint One is not proven and the complaint is dismissed. 2. Complaint Two is not proven and the complaint is dismissed. 3. Complaint Three is proven. 4. The conditions set out in Attachment B to these reasons are imposed on the respondent's registration.
2. The Tribunal directs each party to provide any submissions on the proposed costs order within 14 days, with each party having the right to respond to the other's submissions within a further 14 days. 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 ATTACHMENT A THE COMPLAINT The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Daniel Travis Emery of XXXXX being a nurse registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. BACKGROUND TO COMPLAINT ONE The practitioner was employed as a registered nurse at St Vincent's Hospital ('the Hospital') from May 2001. Between May 2012 and March 2014 the practitioner was issued with 3 (three) formal warnings from the Hospital relating to breaches of the St Vincent's Hospital Medicines-Ordering, Supply and Storage of Medicines: Schedule 8 and Schedule 4D Protocol ('Protocol'). On 19 September 2013 the practitioner was provided with an opportunity to show cause arising from concerns from colleagues that the practitioner was inappropriately handling Patient Controlled Analgesia ('PCA') devices, swapping patient medication and inappropriately moving sharp bins. From 25 September 2013 the Hospital placed a number of conditions on the practitioner's employment including revocation of his status as a clinical nurse specialist, that he was not to be a team leader or in charge of shifts and that he was not to handle the S8/S4D drug keys. On 8 January 2014 following further breaches of the Protocol, the practitioner was suspended. The practitioner returned to work on 28 January 2014 subject to the previous conditions on his employment. He agreed to participate in random urine drug testing ('UDT'). On 3 March 2014 the practitioner was subject to a random UDT which returned a positive result for morphine. The Hospital suspended the practitioner. The practitioner returned to work on 29 March 2014 subject to the previous conditions on his employment, including random UDT. On 2 July 2014 the practitioner was subject to a further random UDT which returned a positive result for morphine, codeine, oxazepam and temazepam. On 7 July 2014 the Hospital suspended the practitioner. PARTICULARS OF COMPLAINT ONE
3. On 26 June 2014 Patient A was admitted to the Hospital with a crushed pelvis following an incident at work where he was trapped between two forklifts. On 27 June 2014 Patient A was transferred from the Intensive Care Unit to an orthopaedic/surgical ward with a PCA device to administer morphine, a S8 drug. At around midday on 5 July 2014 the practitioner: a) attended to Patient A's PCA device when there was no clinical indication to do so; b) obtained the ward key to the PCA in circumstances where he had been directed by the Hospital since 25 September 2013 not to handle the drug keys and opened Patient A's PCA device or, by other unauthorised means opened Patient A's PCA device; c) inappropriately obtained or attempted to obtain a supply of morphine from Patient A's PCA device; d) inappropriately replaced or attempted to replace the fluid in Patient A's PCA device with clear fluid from the contents of a syringe from his pocket; e) was in sole possession of a syringe containing morphine in circumstances where a syringe containing an opioid solution is to be attended by 2 (two) registered nurses who should witness the discard of the remaining solution, record the volume discarded and sign their names on the PCA chart; f) misappropriated the morphine he obtained from Patient A's PCA machine; g) failed to make an entry in Patient A's medical record about his attendance on Patient A including making a record of the amount of morphine he obtained or in the alternative, his checking or adjustment of Patient A's PCA machine. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in 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 the suspension or cancellation of the practitioner's registration BACKGROUND TO COMPLAINT TWO The background for Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT TWO
4. The particulars for Complaint One above are relied upon and repeated, both individually and cumulatively. COMPLAINT THREE Has an impairment within the meaning of section 5 of the National Law in that the practitioner has a condition or disorder which detrimentally affects or it likely to detrimentally affect his capacity to practice nursing. BACKGROUND TO COMPLAINT THREE The background for Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT THREE
5. The practitioner suffers from a substance abuse disorder characterised by misuse of medications including morphine, oxycontin and benzodiazepines. ATTACHMENT B PROPOSED CONDITIONS ON THE RESPONDENT'S REGISTRATION Employment
6. The respondent must not possess, supply, check, administer or handle any Schedule 8 drugs for a minimum period of 12 months, from the date of the order imposing these conditions, and for such further period as the Nursing and Midwifery Council of New South Wales (the Council) specifies. This is a critical compliance condition.
7. The respondent may only possess, supply, check, administer or handle Schedule 4D medications under the direct supervision of another registered nurse (Division 1) who does not have conditions on his/her practice. At all times the supervisor must be present to observe, work with, guide and direct the respondent.
8. The respondent should not engage in agency work during the time any of the conditions imposed on the respondent's registration.
9. The respondent is not to work any night shifts.
10. The respondent must not: a. be the nurse in charge of any shift, ward or unit; b. have supervisory responsibilities for any other nurse; c. work as the sole practitioner on any shift, ward or unit.
11. The respondent is to not to change employment without first obtaining approval from the Council in writing.
12. The respondent may only practise as a registered nurse under the supervision (direct or indirect) of another registered nurse (Division 1) who does not have conditions on his/her practice. The supervisor must be: a. on site and working in close proximity within a ward or unit with the respondent; and b. able to oversee the respondent's practice.
13. The respondent must nominate a nurse manager (or equivalent) who has agreed to oversee supervision for approval by the Council. The respondent must: a. Provide the Council with the name, contact details and resume of the nominated nurse manager. b. Authorise the nurse manager to provide a written report about the respondent's performance against the relevant competency standards approved by the Nursing and Midwifery Board of Australia at 2 monthly intervals. c. Authorise the nurse manager to; i. notify the Council of any breach of the conditions or unsafe practice; and ii. exchange information with the Council related to compliance with the conditions. d. Provide to the Council a copy of the conditions signed by the respondent and by the nominated nurse manager indicating awareness of the conditions and authorisation.
14. The respondent is to give any nurse manager a copy of the Tribunal's decision and orders, and a copy of these conditions, within three days of the appointment of the nurse manager or any new nurse manager.
15. The respondent must: a. Provide the Council with the name and contact details of all nursing employers prior to commencing work. b. Authorise each nursing employer to: i. notify the Council of any breach of the conditions or unsafe practice; and ii. to exchange information with the Council related to compliance with the conditions. c. Inform all current and any future employers of the conditions before commencing work/employment as a registered nurse. d. Provide to the Council a copy of the conditions signed by the respondent and by, or on behalf of, each employer indicating awareness of the conditions and authorisation within one week of commencing work.
16. The respondent is to give any new employer a copy of the Tribunal's decision and orders, and a copy of these conditions, before starting such employment. Education
17. The respondent is to provide written evidence the Council of his completion of the 20 hours of Continuing Professional Development (CPD) hours required by the Nursing and Midwifery Board of Australia's Registration Standard before the end of each CPD year. Health Conditions
18. The respondent is not to self-administer: a. any substance detailed in Schedule 4D or 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act b. any narcotic derivative, non-prescription compound analgesic or cold medication. Such medications must only be prescribed and taken at the direction of his treating practitioner. This is a critical compliance condition.
19. Should the respondent be prescribed or directed to take the above substances he must notify the NSW Nursing and Midwifery Council (the Council) within seven (7) days. Within seven (7) days for the date of commencement of treatment he must provide the Council with written confirmation of such a treatment from the treating health practitioner.
20. The respondent must establish and maintain a therapeutic relationship with a Drug and Alcohol Specialist, General Practitioner and Psychologist or Counsellor at a frequency to be determined by the practitioners.
21. The respondent must: a. Provide the Council with the name and contact details of all treating health practitioners. b. Inform all current and any future treating health practitioners of the conditions. c. Authorise each treating practitioner to inform the Council of termination of treatment, serious or immediate concerns about fitness to practise or repeated failure to attend appointments. d. Provide to the Council a copy of the conditions signed by the respondent and by each of the treating health practitioners indicating awareness of the conditions and authorisation. e. Notify the Council of any change of any of his treating medical practitioners, psychologist or counsellor, within two weeks of the change.
22. Whether in employment as a nurse or not, the respondent is to undergo random Urine Drug Testing (including testing for morphine) in strict accordance with the Council's protocol on the basis of at least one random Urine Drug Test per fortnight. If the respondent regains employment as a nurse, he must undergo Urine Drug Testing according to the above requirements but on the basis of at least one random Urine Drug Test per week for the first two months of his employment as a nurse. Results of the Urine Drug Testing are to be forwarded to the Council-nominated and treating practitioners. Such Urine Drug Testing will be at his expense. The testing, is to occur for a minimum period of 12 months after the respondent has recommenced nursing practice. General conditions
23. The respondent is to be responsible for any costs associated with the compliance of these conditions, unless otherwise specified.
24. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) (the Law) are to apply should the respondent's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the Nursing and Midwifery Board of Australia.
25. While the respondent's principal place of practice is in New South Wales, the appropriate review body for the purpose of a review under sections 163 -163C of the Law is the Council.

Endnote

1. The Tribunal notes that while these statements do not refer to the respondent himself, it was common ground at the hearing that the person that Patient A observed at the PCA was in fact the respondent. 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

Amendments 15 February 2017 - Paragraph 82: Added (4) Coversheet: Amended order 4 and added Order 5 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: 15 February 2017