Solicitors:
Health Care Complaints Commission (Complainant)
No appearance (Respondent)
File Number(s): 1420147
[2]
What these reasons for decision are about
These reasons for decision set out the conditions we have imposed on Mr Ferguson's registration as an enrolled nurse should he seek to renew his registration within the month available for him to do so after the publication of these reasons for decision and related orders. These reasons for decision also set out why we have taken this course of action.
[3]
Background
On 11 March 2015 we found that Mr Ferguson had an impairment. We were satisfied that the subject-matter of both particulars to complaint one, relating to his impairment, was proved and that the complaint itself was proved. However, we found that complaint two alleging that he was not competent to practise nursing was not proved.
We noted in our reasons for decision dated 11 March 2015 that Mr Ferguson had stated at least twice that he was no longer involved in the nursing profession and that he had stated that he was happy with his current job as an apprentice motor mechanic. In other words, he had moved on from nursing.
As these views had been stated some months apart and were corroborated to some extent by the fact that he took no part in these proceedings, we considered that they indicated that Mr Ferguson considered his nursing career to be over As we accepted that this was his position, we thought it not necessary to impose conditions on his registration as he would not seek to renew it. Nevertheless, we considered in necessary, in order to be fair to the Health Care Complaints Commission (HCCC), to give its representatives an opportunity to make submissions to us as to whether we should impose some conditions in case Mr Ferguson changed his mind and sought renewal of his registration. In that regard we did note that if Mr Ferguson did change his mind and applied to the Nursing and Midwifery Board of Australia (National Board) through the agency of the Australian Health Practitioner Regulation Agency (AHPRA) to renew his registration, the National Board could or would put its mind to ss 82 and 55 of the Health Practitioner Regulation National Law (NSW) (National Law) to determine whether it would renew his registration, and if so, on what conditions and subject to what other requirements - see Health Care Complaints commission v Ferguson [2015] NSWCATOD 14, [133,134 and 136].
The HCCC advised of its wish to make such submissions, and a further directions hearing was held on 27 April 2015. On 26 March 2015, Mr Ferguson was served, on behalf of the HCCC, with notice of its intention to seek a directions hearing. On 11 April 2015 he was served with the date, time and place of the directions hearing. The report of the service on Mr Ferguson on 11 April noted that he; "again tore up the documents in front of our agent and put them in the bin". Principal Member O'Neill set down the further (stage 2) hearing of this matter for 25 May 2015 and ordered that the HCCC serve Mr Ferguson with notice of the time, date and place of this further hearing and also with a copy of the conditions it proposed for imposition on Mr Ferguson's registration by NCAT and its submissions in relation to that matter. Service of the relevant documents was to be effected at an appropriate time before the hearing day. Principal Member O'Neill also ordered that if Mr Ferguson wished to take part in this hearing, he was to advise the HCCC and NCAT at least 2 working days prior to the hearing day.
[4]
The hearing of the HCCC's submissions
Mr Ferguson did not advise either NCAT or the HCCC of his wish to take part in these proceedings. Ms Tronson tendered evidence to the us showing that Mr Ferguson was served with notice of the time, date and place of this hearing and with a copy of the HCCC's written submissions relating to its request to us to settle conditions which would be imposed on Mr Ferguson's registration should he seek to renew his registration during the one month period of grace after these reasons for decision were published marking the end of NCAT's dealing with this complaint.
Mr Ferguson did not attend the hearing in person and did not comply with the direction about what he should do if he wished to take part in this hearing. As we were satisfied that he had been provided with notice of this hearing and with a copy of the HCCC's written submissions in plenty of time for him to prepare a response to them, we decided to proceed with this stage of the hearing in his absence.
[5]
Why the conditions were necessary
On 2 April 2013 the Nursing and Midwifery Council of NSW (Council) imposed conditions on Mr Ferguson's registration as an enrolled nurse in the exercise of its powers under s 150 of the National Law. However, on 2 May 2013 the Council, through delegates, conducted a review under s 150C of the National Law. The delegates formed the view that they were no longer satisfied that conditions on his registration were sufficient and that suspension of Mr Ferguson's registration as a nurse was necessary to minimise the risk to public safety. The s 150 Review Committee formally suspended Mr Ferguson's registration.
Section 150(2)(a) of the National Law provides that a suspension imposed by the Council in the exercise of its powers under 150(1)(a) has effect until the complaint about the suspended practitioner is disposed of. That means that, in this case, the suspension of Mr Ferguson's registration made on 2 May 2013 will come to an end when this set of our reasons for decision is published. However, the Council imposed conditions on Mr Ferguson's registration on 2 April 2013. Even if those conditions were not formally removed by the Council when it suspended Mr Ferguson's registration on 2 May 2013, the effect of s 150H(2)(a) is that those conditions will cease to have effect when this set of our reasons for decision is published.
Consequently, when this set of our reasons for decision is published, Mr Ferguson's registration will be free of conditions. In addition because s 150G provides that when a suspension of registration, imposed under s 150 ends, Mr Ferguson's rights and privileges as a registered health practitioner will be revived unless we make orders in relation to the complaint referred to NCAT by the HCCC. Ms Tronson submitted to us, and we accept her submission, that the only way to give appropriate effect to arguably conflicting provisions of the National Law is to treat s 107(2) of the National Law which states: "An application for renewal of a registered health practitioner's registration must be made no later than one month after the practitioner's period of registration ends" as providing Mr Ferguson with a one month period of grace in which to lodge his application for renewal of his registration. That period of grace would commence at the time our reasons for decision were published and would end one month later.
The possibly conflicting provisions are s 56(1) which provides that a health practitioner cannot be granted a period of general registration lasting more than 12 months and s 176D which provides that if a person's registration is suspended, then for the time that their registration is suspended, they are to be taken as not registered. The key right or privilege of a registered health practitioner is to practise the health profession for which they hold registration. If they are not given the one month period of grace to apply for renewal of their registration under s 107(2) when their suspension ends and their rights and privileges as a practitioner revive, then a suspension for longer than the period remaining of their registration current when it was suspended, plus one month would have the effect of cancelling the person's registration not just suspending it. By providing the one month period of grace, s 107(2) provides a resolution of the conflict between ss 56(1) and 176D.
We also note, as pointed out to us by Ms Tronson, that if a registered health practitioner applies for renewal of their registration within the month of grace, they may continue to practise their profession until, under s 108(1) of the National Law, the National Board (renews their registration or) refuses to renew it. This means that a reasonable period of time could pass with Mr Ferguson being able to practise with an unconditioned registration.
As implied in in Ms Tronson's submissions to us this was not our intention. Indeed, as we have already noted, our understanding was that Mr Ferguson had given up his nursing career. Our opinion could be seen as confirmed by his reported recent ripping up of material relevant to these proceedings and his continuing non-participation in these proceedings.
We appreciate that it is possible, despite all current indications to the contrary, that Mr Ferguson may seek renewal of his registration during the period of grace. Consquently, we accept that we must impose some conditions on his registration relevant to protecting the health and safety of the public from possible risks caused by Mr Ferguson, that have not eventuated so far, should he seek to renew his registration in the time available.
We note that we were satisfied that the evidence of alcohol abuse together with the evidence of aggressive behaviour connected to the alcohol abuse over a substantial period established that Mr Ferguson has the impairment alleged, namely alcohol dependence or abuse. We also note that we were satisfied that the impairment continues in that the evidence showed that periods of remission are interspersed with episodes of binge-drinking which bring the impairment and its impacts to the fore. However, we also note that we considered that the positive evidence about Mr Ferguson's nursing skills and abilities was not outweighed by the more limited negative evidence about his impairment. Nor did we consider it appropriate to draw inferences from other evidence to create a basis for finding complaint two, namely that Mr Ferguson was not competent to practise nursing, proved.
Bearing in mind that we found only that Mr Ferguson had an impairment as defined in the National Law, the protective orders we may make are confined to the exercise of those powers set out in s 149A of the National Law. While we acknowledge that the HCCC is seeking no more than that a number of conditions be imposed on Mr Ferguson's registration, should he seek to renew his registration in the time period allowed, we note that we should limit the conditions we impose on his registration to conditions that are protective of the health and safety of members of the public and help maintain confidence in the nursing profession, but are directed to dealing with the issue of his impairment and not directed to matters not proven against him.
[6]
The proposed conditions
The conditions proposed by the HCCC are discussed briefly below. We accepted most of them, but explain, again briefly, why we didn't accept one of them and amended others of them.
The conditions that we impose will apply to Mr Ferguson's registration that is revived, if he applies to renew his previously suspended registration during that period of revival. Should the National Board renew his registration and not impose its own conditions on his renewed registration, these conditions will remain in force until amended, removed or replaced by the processes set out below or by the operation of any other law. The relevant conditions are:
1. The registrant may only practise as an enrolled nurse (Division 2) under the supervision (either indirect or direct) of a registered nurse (Division 1) who does not have conditions on his or her practice. The supervisor must be:
1. On site and working in close proximity within a ward or unit with the registrant; and
2. Able to monitor the registrant's practice.
We consider that it is sufficient that the supervising nurse monitor Mr Ferguson's nursing practice, particularly for the effects of alcohol use, rather than oversee his practice. The word "oversee" implies a greater degree of supervision than appears necessary from the evidence in relation to his nursing practice.
1. The registrant must not:
1. Be in charge, or have supervisory or delegation responsibilities; or
2. Work as sole practitioner on any shift, ward or unit.
Given that many nursing jobs are available only through agencies that supply nurses to employers, we considered that to preclude him from obtaining employment through nursing agencies would be too restrictive of Mr Ferguson's employment opportunities to be justified in the particular circumstances of this case. We considered that condition (1) above was sufficient to deal with issues arising should Mr Ferguson attend work as a nurse when not fit to do so. Consequently we did not include condition (3) proposed by the HCCC. We note that in discussion between us and representatives of the HCCC, this outcome was not strongly opposed and was seen as a compromise.
1. The registrant must:
1. Provide the Nursing and Midwifery Council of NSW with the name and contact details of all nursing employers (including agency placements) prior to commencing work;
2. Authorise each nursing employer:
1. To notify the Nursing and Midwifery Council of NSW of any breach of these conditions or unsafe practice; and
2. To exchange information with the Council related to compliance with these conditions;
1. Inform all current and any future employers of these conditions before commencing work/employment as an enrolled nurse; and
2. Provide to the Nursing and Midwifery Council of NSW a copy of these conditions signed by the registrant and by, or on behalf of, each employer, indicating awareness of these conditions and of the authorisation pursuant to (b) above within one (1) week of commencing work.
1. Sections 125 to 127 of the Health Practitioner Regulation National Law 2009 are to apply should the practitioner'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 relevant National Board.
2. The registrant is responsible for the costs associated with complying with these conditions unless otherwise specified.
The following conditions are private, not be to be placed on the public register:
1. The registrant must undergo alcohol breath testing at any time that his employer considers that such a test is necessary.
2. The registrant must attend for treatment for his alcohol dependence or abuse by a general practitioner of his choice, at a frequency to be determined by the registrant and the treating practitioner. The registrant must authorise his treating practitioner to inform the Nursing and Midwifery Council of NSW of failure to attend for treatment or termination of treatment. This condition is to commence on the date one month after the registrant applies for renewal of his registration.
3. The registrant must attend for treatment of his alcohol dependence or abuse by a psychologist of his choice, at a frequency to be determined by the registrant and the treating practitioner. If there is no psychologist reasonably available, then the registrant may consult an appropriate practitioner such as a social worker or a counsellor approved by the Council. The registrant must authorise his treating practitioner to inform the Nursing and Midwifery Council of NSW of failure to attend for treatment or termination of treatment. This condition is to commence on the date one month after the registrant applies for renewal of his registration.
We considered that it was appropriate for Mr Ferguson's treating general practitioner and psychologist to know what kind of treatment they should be reporting to the Council about and not be required to report on other matters unless they considered them relevant to Mr Ferguson's alcohol dependence or abuse. We also consider that Mr Ferguson must be given sufficient time to put these arrangements in place. Given that Mr Ferguson has tended to work in rural areas, he may not have reasonable access to an appropriate psychologist near his place of residence or work. If that were to be the case, then we consider that another kind of practitioner, approved by the Council, may have to be substituted or this condition would become impossible to be complied with.
1. The registrant must attend for measurement of Carbohydrate Deficient Transferrin (CDT) Testing, Gamma-Giutamy! Transpeptidase (GGT) Testing and liver function tests at monthly intervals. The testing is to be in strict accordance with the protocol of the Nursing and Midwifery Council of NSW. Results must be forwarded to the Council and to the treating general practitioner referred to in condition (7). This condition is to commence on the date one month after the registrant applies for renewal of his registration.
2. The registrant must attend for assessment by a psychiatrist appointed by the Nursing and Midwifery Council of NSW. The cost of this assessment will be at the Council's expense. This condition is to commence on the date one month after the registrant applies for renewal of his registration.
3. We removed the word "medical" before "assessment" so there was no confusion between the role of Mr Ferguson's general practitioner and his psychiatrist.
4. These conditions are to be monitored by the Council unless Mr Ferguson moves out of New South Wales when the body that is appropriate within the national regulation and accreditation scheme in that State or Territory would take over the monitoring.
We order that the appropriate review body for these conditions is the Council unless and until Mr Ferguson commences to have his principal place of practice anywhere in Australia other than in New South Wales, in which case we order that the provisions of condition (4) take effect.
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
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Decision last updated: 04 June 2015