Health Care Complaints Commission v Flett

The issues and relevant law

1. The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: HCCC v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.
2. The standard of proof is the civil standard as stated in Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3. However, by reason of the seriousness of the allegations and the gravity of the consequences the Tribunal must be comfortably satisfied that the matters in the complaint have been established. The Court of Criminal Appeal has cautioned against the use of 'comfortably satisfied' as implying that matters must be proved according to a higher standard than that of the balance of probabilities: Gianoutsos v Glykis (2006) NSWLR 539 at 547-9, applied by the Medical Tribunal In re Suman Sood [2006] NSWMT 1 at 10. At common law there are only two standards of proof, the civil standard of proof upon a balance of probabilities, and the criminal standard of proof beyond reasonable doubt: see Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [110] per French and Jacobson JJ. The Briginshaw standard is not a third standard or proof. Rather, it is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard.
3. 'Impairment' is defined in s 5 of the National Law as a 'physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect … the person's capacity to practise the profession'.
4. A finding of impairment alone cannot be the basis for a suspension or deregistration order. Rather, such orders must be based upon a finding that the practitioner is not competent to practise under s 149C(1)(a).
5. Section 139 of the National Law defines 'competence' as requiring 'sufficient physical capacity, mental capacity, knowledge and skill to practise the profession.' The inclusion of 'capacity' in the definition of 'competence' provides a clear statutory connection between a complaint of impairment and a complaint of lack of competence.
6. In Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Sackville AJA drew attention to the connection between 'impairment' and 'competence to practise medicine' in the (since repealed) Medical Practice Act 1992: There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act. [168]
7. The determination of competence must address the practitioner's current state: Tung v HCCC [2011] NSWCA 219 at [59], [61].
8. The predominant consideration is the protection of the public. Protective orders must be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v HCCC [2012] NSWCA 80 at [34].
9. If the Tribunal either suspends or cancels a practitioner's registration under s 149C(1) or (3) or if the Tribunal makes a disqualification order under s 149C(4) of the National Law, it is then open to the Tribunal to consider imposing a prohibition order. The National Law requires that the Tribunal must be satisfied that a person 'poses a substantial risk to the health of members of the public' prior to making a prohibition order under s 149C(5).

The evidence

1. The HCCC filed four volumes of evidence, comprising over 2000 pages of documents, covering Ms Flett's history of mental health issues from 1999 to October 2016, including clinical records, s 150 proceedings in March 2015 and IRPs in 2011, 2012, 2013 and 2014. The bulk of the material addressed the period from 2011 to date.
2. The Commission relied principally on the expert opinion expressed in the report of Dr Anthony Samuels dated 24 October 2016 ("Dr Samuels' Report"). That opinion was provided by Dr Samuels with reference to his own previous assessments of the practitioner and by reference to the documentary evidence.
3. Dr Samuels assessed and evaluated Ms Flett on nine occasions since 2001 for IRP proceedings; the most recent being October 2013. Dr Samuels also had regard to a Council appointed psychiatric report obtained from Dr Susan Messner of 9 September 2014. Dr Messner assessed Ms Flett on 26 August 2014.
4. Ms Flett withdrew her agreement to be assessed by Dr Messner or Dr Samuels for the purposes of these proceedings.
5. Dr Messner noted in her 2014 report that at the time that she saw Ms Flett, Ms Flett had poor insight regarding her hospital admissions and the reasoning behind them. Dr Messner's opinion was that Ms Flett suffered from an impairment being a chronic psychotic disorder with paranoid delusions, most likely paranoid schizophrenia in partial remission and that she would require ongoing re-assessment.
6. Dr Samuels noted a number of medical records through 2015 which indicated that Ms Flett had ceased seeing a psychologist who had been treating her for several years, had ceased taking medication, and disputed her diagnosis of schizophrenia. Indeed in his own 2013 assessment of Ms Flett, Dr Samuels had noted, I have ongoing concerns about her insight. She seems to acknowledge that there is a possibility that she might have had schizophrenia in the past but she very much sees it as being in remission. She doesn't seem to be entirely clear in regard to why she is taking antipsychotic medication. The Tribunal notes that these themes are recurrent through Ms Flett's clinical records.
7. Dr Samuels also commented upon the continuing fixation of Ms Flett that she was falsely imprisoned and unfairly treated in 2011 by medical, legal, court and police personnel. This fixation was described as bordering on delusional in its intensity, and was also noted repeatedly by others in the course of the clinical and IRP documentation in evidence before the Tribunal.
8. Dr Samuels' opinion was that Ms Flett continues to be impaired at the time of the hearing, even though she is currently complying with treatment and her illness is apparently stable. Judging by her medical records which extend right up until February of this year, there is extensive evidence of impairment and suggestions that her mental state has, in fact, been deteriorating, that her compliance has worsened, that her overt aggression towards others and suicidal behaviour has increased.
9. Dr Samuels gave the opinion that At this point I would not regard Ms Flett as being competent to practise nursing. She has not been compliant with the Impaired Registrants Program, she has been reluctant to see Council appointed psychiatrists, she has been non-compliant with her treating psychiatrists and she has not followed their direction and advice in regard to taking medication. Her mental state has clearly deteriorated. She poses an aggression risk to herself and others. There is evidence of disordered thinking, paranoia and probable hallucinations.
10. Dr Samuels also gave oral evidence in which he made clear that his opinion was based upon the long history of Ms Flett's illness in which she was not fully adherent to medication regimes and had a long standing resistance to treatment and to supervision through the IRP. In this context the current period of stability and adherence - from February to October 2016 - was in his opinion too brief to conclude that Ms Flett was fully recovered. In Dr Samuel's opinion the risk of relapse was less likely if Ms Flett was adherent to medication but was still present.
11. Dr Samuel's opinion was that the more recent episodes of violence and aggression as well as the episode of self-harm distinguished Ms Flett's current state of impairment from that of 2013 when he had previously considered her fit to practise with conditions.
12. Dr Samuels also gave the opinion that competence to practise requires a professional to understand and accept their own limitations (be they of knowledge or capacity) and in his view, even when stable, Ms Flett had demonstrated that she could not appreciate the limits that her illness placed on her capacity. In his view, therefore, Ms Flett lacked the competence to practise. Dr Samuels expressed particular concern about Ms Flett working in any setting without supervision and monitoring.
13. Ms Flett provided two letters from treating practitioners and gave oral evidence.
14. A letter from a Psychiatry Registrar, Dr James Jewell, dated 22 June 2016, indicated that Ms Flett had been under the care of the Acute Outreach Team (AOT) at Manly Hospital for the last six months. It was noted that she was compliant with medication, and that a 'level of stability in her life' had returned with the current treatment regime. Ms Flett had re-obtained her driver's licence and was attending TAFE. The letter also noted Ms Flett had been transferred to Queenscliff Mental Health Team as a sign of progress and concluded that 'The Treating team support her application for license renewal'.
15. A second letter of 17 October 2016 from the Clinical Nurse Specialist and Consultant Psychiatrist at the Queenscliff Community Health Centre notes that 'Erika's mental state has been stable since discharge from Manly hospital February 2016.'
16. In her oral evidence, Ms Flett was orderly and clear. The practitioner did acknowledge that she had a mental illness, however she did so with some hedging and reluctance, saying in response to questions on this point, 'Historically I suppose I have experienced some paranoid ideation', 'My diagnosis has varied over the years. I guess it's a form of schizophrenia.'
17. Ms Flett's oral evidence was that she was currently taking her medication and had been non-compliant 'A long time ago'. She stated, 'I have a long history of compliance and am quite insightful.'
18. Ms Flett did not accept that her mental illness led to the 2011 hospitalisation, and maintained that many of the records of that time are false.
19. The Tribunal asked the practitioner how she would avoid a repeat of the incidents that led to AVOs being imposed on her, and she responded that she had been treated unfairly.
20. Ms Flett gave evidence that she does not intend to return to nursing and does not currently provide any nursing services. She works approximately 15 hours per fortnight providing domestic assistance via an agency.
21. The practitioner has been on an anti-psychotic medication since January 2016. A further mood stabilising medication was dropped by her treating doctor in August 2016.
22. Clinical notes from 4 October 2016 indicate that the dose of the anti-psychotic is 'quite low' and Dr Samuels agreed that this was a dose at the lower end of the scale. The clinical notes of 4 October 2016 indicate that Ms Flett 'complained bitterly of tiredness' which she attributed to the current medication and 'would like [it] to be lowered'. In oral evidence Ms Flett stated that it was the doctor's idea to lower the dose and that she had just been following up on his suggestion. The Tribunal does not accept this evidence, which is inconsistent with the clinical notes.
23. The Tribunal asked Ms Flett what her plan was for treatment once the current CTO concludes in December 2016. She replied that she might continue seeing the current psychiatrist through the Queenscliff Community Health Centre, or switch to someone else, but, 'Hadn't really thought about it.'

Findings and Reasons

1. The Tribunal finds on the balance of probabilities that the practitioner suffers from an impairment within the meaning of the National Law that is likely to detrimentally affect her ability to practise the profession of nursing.
2. It is not the existence of Ms Flett's illness per se, but rather the long-standing chronic nature of the illness, combined with her established reluctance to comply with medication and maintain a regular relationship with a mental health care provider, that means this impairment poses a substantial risk to her ability to practice as a professional. Moreover the relapses in 2013 and 2015 feature elements that are distinct from the earlier years of impairment; including a very serious suicide attempt, a number of acts of violence, threats of harm to others, and breach of treatment and court orders.
3. The practitioner is currently on medication and undertaking treatment, both of which reduce but do not eliminate the chance of a relapse of psychosis.
4. The Tribunal does not have confidence that the practitioner will continue to take medication and undertake treatment following the cessation of the CTO. The records demonstrate that the practitioner has contested her illness over many years. The records indicate that the practitioner has abruptly ceased a number of treating relationships, has either ceased or lowered medication against advice, and indeed her medical records of 4 October 2016 indicate that she wants her dose to be lowered. The practitioner has no clear plan to continue treatment once the CTO expires.
5. While we accept Ms Flett's evidence that she is currently stable, the Tribunal finds that, at the time of the hearing, the practitioner's acceptance of her illness continues to be reluctant and partial. Ms Flett believed that she had experienced some symptoms 'historically', rather than seeing her illness as a major and chronic form of impairment that requires on-going management and vigilance to prevent recurrence.
6. While the Tribunal was not privy to the events of 2011 we were concerned that Ms Flett was still so fixed on a sense of grievance concerning her treatment at that time. In addition the practitioner took no responsibility at all for the criminal matters she was involved in, denied making any threats in the past, and saw herself as victimised by the medical and judicial processes. We find that the evidence indicates that, even when stable, some of the practitioner's paranoid symptomology persists.
7. In our view the Council and the IRP provided Ms Flett with multiple opportunities to continue to practise her profession safely, with conditions designed to support her and to protect the public, but since 2014 Ms Flett has rejected those conditions.
8. The Tribunal accepts the evidence of Dr Samuels that The clinical picture does appear to be one of deterioration but this seems to be predominantly related to Ms Flett's lack of insight and lack of adherence to her treatment. It seems when she takes her medication as directed, her condition is quite stable and reasonably easy to control. The deterioration and the current problems and frequent re-admissions are likely to be ongoing, not necessarily because of a neuropsychiatric worsening of the condition but rather because of the factors noted above. Of course her lack of insight and consequent non-adherence can be seen to be components of the illness itself.
9. In Ms Flett's circumstances competence to practise requires genuine recognition that she has a serious relapsing illness that needs to be closely managed. We find that Ms Flett does not possess such insight and is therefore unable to practice competently. As such Ms Flett's impairment, whether she is in partial remission or not, is of such a nature as to negate her competence to practise as a nurse and disqualification is the only appropriate order.
10. Based on these findings, the risk posed to the public, while not necessarily immediate, is very significant. The higher threshold of 'a substantial risk to the health of members of the public' is met and a prohibition order is required to prevent Ms Flett from working in health services. We note that, based on her evidence, Ms Flett's current work does not appear to fall within the definition of health services covered by our orders.
11. The HCCC sought orders that the practitioner be prevented from applying for a reinstatement order for a period of 12 months from the date of these orders. The Tribunal declines to make such orders on the basis that Ms Flett's competence is a matter intrinsic to her health, which she may be able to re-establish at a later point based on clinical and expert evidence and a period of stable functioning. Any set period is inappropriate in such circumstances.

Costs

1. The HCCC submitted in writing that it should be entitled to its costs if successful in the application, but did not address the issue in oral submissions. Perhaps as a consequence, Ms Flett did not make any submission relating to costs. However Ms Flett's oral submissions emphasised that she did not believe that the proceedings should have been undertaken given that she had recently surrendered her registration and did not intend to practise again.
2. The HCCC pursued orders for disqualification and prohibition on the basis that this was required to protect public safety given the severe and long-standing nature of the practitioner's illness. In making these orders it is clear that the Tribunal agrees that this was the appropriate course.
3. The statutory authority for NCAT to make costs orders in health professions cases is found in Sch 5D, cl 13 of the National Law. That clause gives NCAT broad discretion to order any party or person entitled to appear in any inquiry or appeal to pay costs to another person.
4. The Tribunal's discretion to make a costs order in respect of proceedings before it must be guided by the relevant legal principles. The NSW Court of Appeal in HCCC v Philipiah [2013] NSWCA 342 [43] stated that: However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95).
5. In a number of cases the NSW Court of Appeal has noted that ordinarily costs in this jurisdiction should follow the event unless there are reasons to conclude otherwise: Qasim v HCCC [2015] NSWCA 282 [85]; HCCC v Philipiah [2013] NSWCA 342 [42]-[44].
6. The Court has noted that factors that might mitigate the successful party recovering all of its costs include: achieving only partial success in the orders sought, or particulars established, or oppressive or inefficient conduct of proceedings: HCCC v Philipiah [2013] NSWCA 342 [42]-[44]. These factors have not been expressed as exhaustive, although in that case the Court determined that 'It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made'.
7. Costs are intended to compensate a successful party not to penalise an unsuccessful party: HCCC v Philipiah [2013] NSWCA 342 [44]; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 [46]-[48]; Qasim v HCCC [2015] NSWCA 282 [85].
8. In the context of disciplinary proceedings the link between the wrongdoing of the practitioner and award of costs does not arise through punitive intent, but is still present as a necessary function of the jurisdiction, in which the successful party has amassed such costs as a direct consequence of the practitioner's failure to meet professional standards (and also to concede such failure at an earlier juncture: HCCC v Philipiah [2013] NSWCA 342 [45]).
9. In instances of impairment where the very nature of the impairment deprives the professional of mental capacity, particular considerations arise which may justify a departure from the usual approach to costs.
10. The practitioner suffers a chronic mental illness which we find is an impairment that renders her not competent to practise presently, and for the foreseeable future. The Tribunal accepted the expert evidence that the nature of Ms Flett's illness itself renders her unable to have insight into her condition and to manage it properly with the assistance of the IRP. We find that the lack of insight that arises as a consequence of her illness also renders Ms Flett unable to make concessions in professional and disciplinary proceedings concerning impairment, including this one.
11. In the conduct of the hearing, Ms Flett was timely and efficient. While the practitioner was able to understand the nature and effect of the proceedings, her impairment deprived her of the ability to meet the appropriate professional standard in the first instance, and to avoid or reduce the costs of these proceedings as they progressed, for example through timely admissions.
12. The practitioner has not been found to have committed any unprofessional conduct or misconduct in the course of her professional activities. The unlawful acts that Ms Flett did commit were a direct result of severe psychotic episodes, and we note that she was most recently excused from criminal proceedings for assault on the basis of her illness.
13. The practitioner is, in a very real sense, here through no fault of her own. We find that an order for costs against the practitioner is not justified in these particular circumstances.

Orders 1. The Tribunal determines that the practitioner is not competent to practise her profession by reason of chronic impairment, pursuant to s 149C(1)(a) of the National Law; 2. Pursuant to s 149C(4)(a) the Tribunal would have cancelled the practitioner's registration if the practitioner was still registered at the time of hearing; 3. The Nursing and Midwifery Board of Australia in conjunction with AHPRA to record that the practitioner's registration would have been cancelled pursuant to s 149C(4)(c) of the National Law; 4. A prohibition order pursuant to s 149C(5),(5A) preventing the practitioner from providing any 'health services' as defined by s 5 of the National Law until a reinstatement order is made under s 163B. 5. No order as to costs. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2016