Health Care Complaints Commission v FLX

NCAT Occupational|2022-07-11

Background

The practitioner was first registered as an Enrolled Nurse on 22 September 2006 and has over 14 years' hospital and practice nurse experience. She was employed on a full-time basis as an Enrolled Nurse at the hospital from April 2019. The practitioner had been deployed in the children's ward to special nursery care since June 2020. An infant in her care, Patient A, was born with both male and female genitalia. It is alleged that on 23 June 2020, the practitioner took photographs (with her personal mobile telephone) of photos of Patient A's genitalia from the patient's medical records file. A complaint was made to the hospital about the practitioner taking the photos and also concerning the practitioner showing to, and discussing them with other staff members within the children's ward and with members of the public at a club within the local community.
Pending investigation of the complaint, the practitioner was given alternative duties.
Proceedings under s 150 of the National Law were conducted by the Nursing and Midwifery Council of NSW (the Council) on 20 July 2020. The hearing took place on the papers. The practitioner was assisted by the Nurses and Midwives Association of NSW ("NSWNMA"). The practitioner denied that she took "photos of a baby born with both male and female genitalia, from the medical records file, with my personal mobile or any other device" and "did not discuss or show photos with the general public" or at a club. The practitioner submitted she "googled" the condition and showed the picture from google to her colleagues at the hospital. The practitioner also described an event at a local club ("the club") where a man approached her and told her that his wife was a nurse at the hospital and worked in the Neonatal Intensive Care Unit ("NICU"). The man allegedly told the practitioner that he had heard a lot of stories about what goes on in hospital and referred to the infant. The practitioner submitted that she did not make any further comment about the infant. She denied that she discussed Patient A with the man.

The Complaints

There are four complaints. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she has: 1. Between 1pm and 6.15pm on 23 June 2020, the practitioner inappropriately took a photograph or photographs on her personal mobile phone of Patient A's medical records, specifically, a photograph or photographs of Patient A's genitalia. 2. Between 7am and 12pm on 25 June 2020, the practitioner inappropriately disclosed to two colleagues confidential information relating to Patient A, namely: 1. that Patient A was a patient in the NICU; and 2. the reason for Patient A's admission to the NICU. 1. Between 7am and 12pm on 25 June 2020, the practitioner inappropriately showed two colleagues the photograph or photographs she had taken at Particular 1 of Complaint One. 2. On 27 or 28 June 2020, the practitioner inappropriately disclosed confidential information to two members of the public at [the club], namely: 1. That Patient A was a patient at the hospital; and 2. The reason for Patient A's admission to the NICU. 1. Between 1pm on 23 June 2020 and 27 or 28 June 2020, the practitioner inappropriately disclosed confidential information to her partner, namely: 1. that Patient A was a patient at the hospital; and 2. the reason for Patient A's admission to the NICU. 1. By her conduct Particulars 1 to 5, the practitioner acted contrary to Standard 2 of the Nursing and Midwifery Board of Australia's Enrolled Nurses Standards for Practice.
Complaint Two is that the practitioner is guilty of professional misconduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. The particulars are: 1. The practitioner provided false and/or misleading information to the Council in her 'Current Employment Declaration Form' signed on 14 January 2021, namely that she was not employed in practice as a nurse using her registration.
Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(c), of the National Law in that the practitioner has contravened a condition to which her registration was subject. The particulars are: 1. The practitioner breached Condition 2 on her registration in that she failed to provide evidence to the Council, within 7 days of commencing employment with Practitioner B, that she had provided a copy of her full conditions to Practitioner B.
Complaint Four is that the practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 2. 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. The particulars are: 1. Complaints One, Two and Three and the particulars therein are relied upon and repeated, both individually and in cumulation.
The HCCC seeks the following orders: 1. the practitioner's registration as an enrolled nurse is cancelled pursuant to s 149C(1)(b) of the National Law; 2. a non-review period of twelve months is imposed upon the practitioner pursuant to s 149C(7) of the National Law; 3. an order that pursuant to Schedule 5D, cl 7(1)(b)(i) of the National Law that publication of the names of Patient A and Practitioner B set out in the schedule to the Complaint is prohibited; 4. an order that pursuant Schedule 5D, cl 7(1)(b)(iii) of the National Law that the disclosure of the practitioner's name (including any other identifying information as provided in cl 7(1)(iv)) and the practitioner's address be restricted to the parties and to any other person or bodies where disclosure is necessary for the effective implementation and administration of the orders made in a proceeding.

Evidence

The following summary is based on the unchallenged statements and bundle of documents relied upon by the HCCC.

Complaint One

Registered Nurse (RN1) provided a statement to the HCCC dated 16 October 2020. RN1 worked in the children's ward at the hospital. RN1 had worked with the practitioner since April 2019. On 25 June 2020, whilst on shift at the hospital, RN1 had a conversation with the practitioner and states: '[The practitioner mentioned that she had looked after a particularly interesting baby over at the Special Care Nursery. I asked [the practitioner] what was so interesting about the baby and she told me that the baby had been born with both male and female genitalia. I did agree with [the practitioner] that the case was very interesting. [The practitioner] then told me she had taken a photograph of it. I then asked [the practitioner] if she took a photograph of the baby itself or in some other way. [The practitioner] told me that she had taken a photograph of pictures that were already taken for medical documentation and made a comment, words to the effect of, 'The doctors had been taking it, so I took one too. [The practitioner] took out her mobile phone and asked me if I wanted to see the photograph.'
RN1 was shown a photograph of Patient A's genitalia only. RN1 sent an email to the Acting Nurse Unit Manager outlining the conversation that RN1 had with the practitioner.
On 5 November 2020, a Registered Nurse (RN2) provided a statement to the HCCC. RN2 states that she was working with the practitioner on 24 and 25 June 2020 at the hospital. RN2 had a conversation with the practitioner who told her about a baby currently on the ward that had male and female genitalia. The practitioner then showed to RN2 a photograph on her mobile telephone. RN2 said the practitioner indicated that she had taken the photographs from the medical photographs in the patient's file. [The practitioner] made a statement to RN2 that "it being ok they were not direct photos of the baby but she had only taken the pictures from photographs in the medical file". RN2 said she recalls that the photograph depicted a baby's penis and scrotum and then situated below what looked like a vagina. RN2 described specific characteristics relating to the colour of the skin and ethnicity of the infant depicted in the photograph which was shown to her. RN2 described the photograph "possibly" having a small white boarder as if the photograph had been printed onto a piece of paper. However, RN2 did not pay a great detail of attention to the detail about the origin of the photograph at the time. An undated copy of a statement provided by RN2 is contained behind [Tab 36].
On 7 July 2020, a Trainee Ward Clerk provided a signed statement to the Clinical Nursing Unit Manager of the Special Care Nursery at the hospital. The Trainee Ward Clerk states that she was working in that unit on 24 and 25 June 2020. The Ward Clerk said she overheard a conversation between a nurse, whom she believes to be the practitioner and two other nurses on the ward. The conversation related to a patient who had been born that "day/week with both sets of genitalia".
The person who the Trainee Ward Clerk identifies as the practitioner told the two other nurses that she "had a photo of the baby which was taken with consent of parents for research purposes". The Trainee Ward Clerk witnessed the practitioner show a photograph of a baby to the nurses. The Trainee Ward Clerk was able to see that photo from where she was sitting. The practitioner and the nurses had a conversation about the baby and whether or not the parents would decide to raise the child as male or female. It is alleged the practitioner also said that the parents of Patient A had named the child 'X'. The Trainee Ward Clerk said that she cannot be certain of the nurse's name in question but believed it to be the name of the practitioner.
On 7 July 2020, a Ward Clerk at the hospital said she had a conversation with the Trainee Ward Clerk, in late June Early July 2022, about babies in the NICU and that one of them had gender deformity: Trainee Ward Clerk: "Yes, didn't you have a baby in here with both genitalia? I said: "How do you know about the baby". Trainee Ward Clerk: "A nurse on the children's ward was talking about it and had a photo and was showing another nurse. Wasn't its name 'X' or something?"
The Trainee Ward Clerk told the Ward Clerk that the conversation took place close to the Ward Clerk's desk in the children's ward.
In a statement provided to the Council by the practitioner on 16 July 2020, she states: "I did not take photos of a baby born with both male and female genitalia, from the medical records file, with my personal mobile or any other device." The practitioner had not admitted to the particulars of the complaint and appears to maintain her denial that she took the photograph(s) of Patient A.
She further said: 'I admit speaking with other staff members at the nurses' station in the children's ward about the baby who I cared for in the special care nursery. I admit I used my mobile phone to google the baby's condition so I and other staff members could better understand the baby's condition. I do not have photos of the baby as I have not taken any photos from the baby's medical records file. The photo shown to the other staff members were what I had downloaded from Google. I do not have a clear recollection of the conversation but it is possible that it was discussed whether or not the parents would raise the baby as a male or a female. I deny mentioning the baby's mother's name was X.'
Based on the statements of RN1 and RN2 alone, together with the clinical records of Patient A which include the subject photographs of the infant, we find the practitioner did take photographs of Patient A's genitalia from the medical records. This is because RN1 and RN2 give unchallenged evidence that they were told by the practitioner she did so. The description of the infant depicted in the photograph shown to RN2 is reasonably accurate and similar to the photograph of the infant depicted in Patient A's medical file. That includes the skin colour and unique and rare genitalia of the infant. Also, the description of a white border around the photograph is consistent with it being taken from the medical file.
We find the description of the incident set out by the Trainee Ward Clerk is also consistent with RN1's and RN2's evidence about seeing a photograph of an infant with ambiguous genitalia. We are reasonably satisfied that the conversation that was said to have involved a person likely to be the practitioner, in the circumstances, was more likely than not the practitioner.
We do not accept the practitioner's statement that she took photographs from Patient A's medical file. Her statement is inconsistent with the statements from RN1 and RN2, where both RN1 and RN2 said the practitioner told them she took the photograph from Patient A's medical file. We do not accept the practitioner's explanation that she googled gender ambiguity and showed a picture from that search to her colleagues. This is because the description provided by RN2 about the infant depicted in the photograph shown to her is so similar to, and consistent with, the photographs contained in Patient A's medical file. We find particulars 1, 2 and 3 of Complaint One proved.
On 28 October 2020, the Clinical Nurse Unit Manager (Clinical NUM), gave a statement to the HCCC. The Clinical NUM states that when she was working at the hospital she had a conversation in early July 2020 with a Ward Clerk. The Ward Clerk said to the Clinical NUM: "My fiancé was on a night out recently and a nurse had spoken to him and discussed a baby that had recently been an inpatient at the Special Care Nursery that had male and female genitalia and had mentioned the name of the mother to her fiancé and his friend."
The Ward Clerk said that her fiancé and his friend were out at a local club on a boy's night out. The Ward Clerk's fiancé told her fiancé that she worked at the hospital. The Ward Clerk believed that person to have the same name as the practitioner. The Ward Clerk told the Clinical NUM that the practitioner had told her fiancé that the mother's name was 'X'.
The Clinical NUM recalls that an Enrolled Nurse by the same name as the practitioner had been assigned to look after the infant about whom the conversation between the Ward Clerk's fiancé and the person at the club that evening took place. The Clinical NUM recalls that a person with the same name as the practitioner was assigned to the infant's care, which involved documenting vital signs, feeding the infant and changing the infant if the infant's parents were not in attendance.
A statement which is dated 30 June 2021 has been obtained by the HCCC from the fiancé of the Ward Clerk. The Ward Clerk's fiancé states that he recalls speaking with a lady at the club who worked in the same unit, the NICU, with his fiancé. The person had the following conversation with the Ward Clerk's fiancé: She said: "Where does your partner work?" I said: "In the NIC unit. She said: "So your partner would have told you about the baby?" I said: "nah". She said: "Really there is a baby at the unit with two genitalia. They don't know if it is a boy or a girl.''
The fiancé of the Ward Clerk said that the lady said she had a photograph of the infant but did not show it to him.
The Ward Clerk provided a statement to the HCCC dated 5 November 2020. In her statement she recalls the conversation with her fiancé on the way home from the club and him saying he had a conversation with a person whom he believed had the same name as the practitioner. That person worked in the NICU. The Ward Clerk said her fiancé told her that the lady said the baby's name was baby or 'X'. It is alleged that the person with the lady (the practitioner) interrupted the conversation and said: "Isn't the mother's name X?"
The practitioner, in a reply to the Council on 28 August 2020, states: "The only man I recall at the [club] was on a bucks night and approached me to engage in conversation whilst my husband was not present. … it is my belief that my husband is the male referred to in the allegation and until the male mentioned the child in question, he was unaware of anything in relation to the child. Statutory Declaration attached."
In a Statutory Declaration of the practitioner's husband, which is dated 27 August 2020, he states: "I was the male mentioned with my wife [the practitioner], at the [club] on the weekend of allegation 2. At no time did I state the name 'X'. I was totally unaware of the child or events in relation to my wife prior to an unknown person raising them at that time."
In the practitioner's statement dated 16 July 2020 she records the following: 'I attended the [club] with my husband. When my husband left to get drinks I was approached by a man who, as it turns out had obviously been listening to our conversations among some nurses sitting nearby and which I had joined briefly. The man told me his wife was also a nurse and worked in the NICU at the [hospital]. He said he had heard a lot of stories about what goes on in hospitals, and he referred to the baby. It was obvious from his comments that he knew of the case. I did not wish to be drawn into the conversation and did not volunteer any information only that I was also aware of it. I made no further comment.'
In a further statement dated 20 July 2020 to the HR business partner at the Local Health District the practitioner recorded the following: 'I admit that around the weekend of 27/28 June 2020 I had a conversation with some nurses who were patrons at the [club] and I told them I too was a nurse at [the hospital]. The group of nurses were all female. When my husband left our table to get drinks, a male person who was sitting at a nearby table approached me and told me his partner (not fiancée) was also a nurse. I understood from this that he had overheard my earlier conversation with the nurses. This man told me his partner worked at [the hospital] in the special care nursery. I told him I worked there on a previous shift. This was the extent of our conversation. I deny saying there was a baby in the special care nursery born with male and female genitalia. I deny stating to the man who approached me 'she (meaning his partner) must have told you about this baby how could she not with something so weird'.'
The practitioner has given two inconsistent statements about the club incident. On one version the extent of the conversation was only in relation to the man's fiancée working at the same hospital as the practitioner, on the other, the conversation extended to referring to the infant. We place little weight on the practitioner's statements in this regard.
We accept the evidence of the Trainee Ward Clerk's fiancé which is corroborated by the Ward Clerk. In accepting and preferring that evidence we are satisfied that particular 4 is proven.
We accept the Statutory Declaration of the practitioner's husband as set out in paragraph [44] above. The practitioner's husband's evidence is corroborated by the practitioner in her statement to the Council. In doing so we find that particular 5 of Complaint One is not proven.
Included in the bundle from the HCCC is the Enrolled Nurse Standards for Practice dated 1 January 2016. That part of the standard reads as follows: 'Standards to: Practises nursing in a way that ensures the rights, confidentiality, dignity and respect of people are upheld. Indicators: … 2.3 Demonstrates respect for others to whom care is provided regardless of ethnicity, culture, religion, age, gender, sexual preference, physical or mental state, differing values and beliefs. … 2.7 Ensures privacy, dignity and confidentiality when providing care. … 2.9 Reports incidents of unethical behaviour immediately to the person in authority and, where appropriate, explores ways to prevent reoccurrence. …'
Given our findings in relation to particulars 1, 2, 3 and 4 of Complaint One, we find that particular 6 is also proved. This is because the conduct of the practitioner contravenes the standards of practice, being standard 2. The gender of Patient A has been inappropriately disclosed and made the subject of discussion, which in our view is contrary to 2.3 of standard 2.
Likewise, the privacy, dignity and confidentiality of Patient A has been breached and compromised by the conduct of the practitioner in her taking photographs of Patient A's medical file, showing those photographs to others and discussing the confidential nature of Patient A's medical history and diagnosis.
The practitioner's failure to report her misconduct is, in our view, a breach of 2.9 of standard 2. Particular 6 of Complaint One is proven.

Complaint Two

It is uncontroversial that on 21 July 2020 the practitioner signed a notice acknowledging conditions placed on her registration. Those conditions are set out at paragraph 16 above. A complaint was received in relation to the practitioner working for an Orthopaedic Surgeon as a practice administrator/nurse from 16 September 2020.
The Orthopaedic Surgeon in a statement dated 9 June 2021 included a copy of the advertisement to which the practitioner replied. The following information is apposite: 'The role This is a full-time role. The role involves providing nursing and administrative duties. Responsibilities Nursing care of patients including wound care, follow up phone calls after surgery and preoperative planning. … Organising patients for surgical procedures. … Candidate requirements Previous experience working in nursing and medical practice desirable. Practice specific training will be provided.'
The Orthopaedic Surgeon states that approximately 75 percent of the role in which the practitioner was employed related to administrative duties, including 'chasing bills and booking surgeries and post-operative appointments'. The other 25 percent of the role is 'nursing in nature and completing tasks such as changing dressings and follow upon on post-operative patients including nursing advice'.
The Orthopaedic Surgeon included a copy of the practitioner's resumé and covering letter with her application. The application letter included a statement that the practitioner was 'an enrolled nurse in the casual pool at [the hospital]'. The application sets out that the practitioner has the knowledge, skill and ability to fulfil the duties required and as set out in the advertisement.
On 14 January 2021, the practitioner submitted to the Council a current employment declaration form which indicated that her employment status was 'not employed'. This appears contrary to the evidence of the Orthopaedic Surgeon whereby he states that the practitioner was employed in his practice from 16 September 2020 to 17 February 2021, when the practitioner's employment was terminated.
We have also taken into consideration the letter of offer from the Orthopaedic Surgeon to the practitioner dated 14 September, which defines the role as being practice admin/nurse. In the attached position description the duties and responsibilities include wound care, review, post-op patient phone call, change of dressings and plaster and removal of sutures. The letter of offer has been signed by the practitioner.
On 4 February 2021, in answer to the Council's correspondence requesting a response from the practitioner concerning her employment, she stated as follows:
There was no need to inform the Council about her change of workplace location as the practitioner was not practising under the registration.
It was not a condition of her employment that AHPRA registration was a condition or requirement.
The practitioner was not compelled to disclose that she had a registration to her employer or conditions pertaining to it.
The practitioner had never been asked or advised that holding a registration was a condition of her employment.
We reject the brief submissions made by the practitioner to the Council that her role was not a role in 'nursing' and, therefore, need not to have been disclosed to the Council in compliance with the conditions on her registration. We find that, based on the evidence of the Orthopaedic Surgeon, the job advertisement and the offer of employment, each disclose that it was part of the duties and responsibilities of the practitioner that she be employed to undertake some nursing activities. This is because the role included her attending to patients' wound care, review, post-operative patient phone calls, changing of dressings and plasters, removal of sutures and other nursing activities.
There is no evidence that the practitioner provided to the Orthopaedic Surgeon a copy of the conditions attached to her registration as a nurse. To the contrary, we accept that the Orthopaedic Surgeon did not become aware of the conditions placed on the practitioner's registration until 2 February 2021. This is at a time when the practitioner informed the Orthopaedic Surgeon of the same. In relation to the condition 2, there is also no evidence that the practitioner complied with that condition and notified the Council of her employment as required.
We find that the practitioner was employed as a practice administrator and nurse. This is evidenced by the letter of employment and the duties and responsibilities set out in that offer, together with the practitioner's reply to the job advertisement and her acknowledgement of her employment. The practitioner, most likely than not inadvertently, did not comply with condition 2. We find that the particulars of Complaint Two and Complaint Three are proved.

HCCC submissions

The HCCC presses all four complaints. The HCCC submits that the practitioner must have been well aware of her ethical obligations because she had worked at the hospital as an Enrolled Nurse since 2015 and the Standards for Practice for Enrolled Nurses requires nurses to ensure privacy, dignity and confidentiality when providing care.
The HCCC submits that the practitioner's conduct was both improper and unethical, however, it is not necessary for the HCCC to establish that the conduct was both improper and unethical; either is sufficient to establish Complaints One and Two.
The conduct of the practitioner is a gross violation of trust of the parents, the infant patient and the public. The HCCC submits that the complaint sets out a pattern of events which occurred over several days which indicates misconduct. Such conduct is not in accordance with the standards expected of the nursing profession and the Code of Conduct for nurses.
The HCCC submits that the public interest is served in keeping patient information confidential and that patients must be able to trust that the private health information which they provide to health professionals, and which is generated in the course of provision of health care, will be securely held and accessed only lawfully and properly. The conduct of the practitioner demonstrates a significant and serious breach of this expectation.
When considering Complaint 3, the HCCC submits that it is open to the Tribunal to find the practitioner did not intentionally breach this condition, but was reckless in doing so. However, noting the detail in the job advertisement and the matters canvassed by the practitioner in her written application, the HCCC submits that it is evident that the role required administrative and nursing skills. In that regard it would have been prudent in the circumstances for the practitioner to make a general enquiry with the Council to ensure adherence with the condition. The HCCC submits that the practitioner demonstrated an element of disregard in her failure to notify the Council of her employment with the Orthopaedic Surgeon.
Complaint Four alleges the practitioner is guilty of professional misconduct under s 139E of the National Law as she has engaged in unsatisfactory professional conduct of a significantly serious nature to justify suspension or cancellation of her registration, or, engaged in more than one instance of unsatisfactory professional conduct which, when considered together, amounted to conduct of a sufficiently serious nature to justify suspension or cancellation.

Protective Orders

In circumstances where the Tribunal makes a positive finding of professional misconduct (as is sought by the HCCC), it is submitted the Tribunal may suspend the practitioner's registration for a specified period or cancel the registration entirely. In considering these matters the paramount consideration of the Tribunal must be the protection of the health and safety of the public.
The HCCC submits that given the gravamen of the allegations against the practitioner; the need to protect the public through general deterrence (of other practitioners); the need to protect the public by reinforcing high professional standards and denouncing transgressions; and the maintenance of public confidence in the profession there is need for action by way of orders under the National Law. The HCCC submits that the practitioner has not provided any evidence as to her level of acceptance, insight or remediation into her conduct. To ensure a means of censuring the practitioner's conduct and sending a strong message, both specifically to the practitioner but also other practitioners more broadly, the orders in paragraph [23] are sought.

The practitioner's submissions

As indicated above, there were no submissions put forward by the practitioner, either in writing or orally during the hearing. However, we have taken into consideration the practitioner's various denials concerning her conduct which are set out above.

Discussion and findings

In considering the particulars of Complaint One, the Tribunal notes that under s 149 of the National Law, the important aspect of the complaint is its "subject-matter", which "provides the jurisdictional gateway for the Tribunal to exercise its disciplinary powers": Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315, at [34]. Wilson J held: 36. It is clear that the subject matter of the complaint may or will be broader than individual particulars of it, and include those matters of fact advanced in support of it. That must be so having regard to the overall aims and objectives of the National Law, and the wide procedural powers given to the Tribunal. In particular, the Tribunal's power to inform itself in any way it sees fit, and to determine any complaint it considers should be determined, regardless of the complaint advanced, is inconsistent with a narrow reading of the Tribunal's power to range beyond the particulars of a complaint. 37. The role of the Tribunal is to conduct an inquiry into a complaint made against a health practitioner, informed as it thinks necessary, and determining any complaint it considers arises on the material before it. There can be no basis in such circumstances to consider the Tribunal bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced.
For the reasons in [34]-[36], Particular 1 of Complaint One is established.
For the reasons in [34]-[36], Particular 2 of Complaint One is established.
For the reasons in [34]-[36], Particular 3 of Complaint One is established.
For the reasons in [37]-[47], Particular 4 of Complaint One is established.
For the reasons in [49], Particular 5 of Complaint One is not established.
For the reasons in [51]-[53], Particular 6 of Complaint One is established.
For the reasons in [61]-[63], Particular 1 of Complaint Two is established.
For the reasons in [61]-[63], Particular 1 of Complaint Three is established.

Whether unsatisfactory professional conduct Complaints One and Two

The HCCC alleges that the conduct as particularised in Complaints One and Two constitutes unsatisfactory professional conduct under s 139B(1)(l) of the National Law: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 (Amalakumar) the Tribunal described the evaluative task required by s 139B(1)(l) in the following terms: 26. In disciplinary proceedings in relation to s 139B(1)(l) of the National Law, the determination of the question as to whether "any other improper or unethical conduct relating to the practice … of the practitioner's profession" has occurred requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s 139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct.
The National Law does not define the words "improper" and "unethical", and those words, as used in s 139B(1)(l), have been construed in that context to have their ordinary and natural meaning. In Health Care Complaints Commission v Little [2016] NSWCATOD 146 (Little) at [68]-[69], the Tribunal said that "improper" means "not in accordance with propriety of behaviour, manners etc. or abnormal or irregular", and "unethical" means "contrary to moral precept; immoral …or …in contravention of some code of professional conduct". That is the approach adopted in other Tribunal decisions, most recently in Health Care Complaints Commission v Phuoc Loc Le [2022] NSWCATOD 85 at [54]. In Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 (Achurch) the Tribunal stated: 41. "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]).
Where the conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[60].
The Tribunal has found particulars 1 to 4 and 6 in Complaint One are established. Those particulars concern obtaining personal health records and information of Patient A and disclosing that information, either by showing photographs taken from the medical file, or disclosing it in conversation. In each instance, her misconduct is a gross violation of Patient A, Patient A's family and the public.
Breaches of confidentiality must be taken seriously and be denounced. In HCCC v Livermore [2021] NSWCATOD 48 the Tribunal made specific reference to the standards reflecting the public interest in keeping patient information confidential, referring to the findings in HCCC v Aref [2018] NSWCATOD 133 at [53]-[54]: '[53] The safekeeping and proper use of health information is vital to the protection of the health and safety of the public. As the peer expert noted, 'client confidentiality and privacy underpins all health care across Australia.' Patients must be able to trust that the private health information that they provide to health professionals, and which is generated in the course of provision of health care, will be securely held and only accessed lawfully and properly. [54] The duty of health care professionals is to use, and safeguard health information and to only access this information in the best interests of patients to serve their health needs, except in the very limited circumstances where there is an overriding consideration such as the health and safety of the public. Patients, and the health system as a whole, depend upon this professionalism.'
Not only is it in the public interest to keep patient information confidential, but the subjective factors concerning Patient A and Patient A's family, include gender ambiguity and the ethnicity of Patient A and Patient A's family. Disclosure of such information has significant consequences and implications for Patient A and Patient A's family given the sensitive nature of gender ambiguity, both now, and, probably more importantly, in the future as Patient A grows older, progresses through teenage years and becomes an adult. The repercussions of a disclosure of personal health information in these circumstances for Patient A and Patient A's family are real and significant. The breach of Patient A's personal health information, whether inadvertently, or intentionally used and disclosed, may be detrimental to Patient A in the future. This could be particularly so in a school playground, or, later in life.
The Tribunal finds, in regard to the conduct as found in relation to particulars 1 - 4 and 6 of Complaint One, that the judgment possessed and care exercised by the practitioner were both improper and unethical. The Tribunal finds, in regard to the conduct as found in relation to particular 1 of Complaint Two, albeit inadvertent, that the judgment possessed and care exercised by the practitioner was improper. Her conduct was unsatisfactory professional conduct under s 139B(1)(l) of the National Law. Complaints One and Two are established.

Whether unsatisfactory professional conduct Complaint Three

Complaint Three is that the practitioner is guilty of professional misconduct under s 139B(1)(c) of the National Law: '139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (c) a contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a national board. …'
For the reasons in [61]-[63], particulars 1 of Complaint Three are proved.
The Tribunal finds that the practitioner may have been under a misapprehension about whether her job description was in the nature of nursing given that it was at least 75 percent administrative. However, the practitioner acknowledged, and was aware, that her registration was subject to the stated conditions. Even where the practitioner inadvertently considered that her employment with the Orthopaedic Surgeon did not include nursing, she ought to have been aware that it did, particularly given that she had signed the offer of employment and disclosed that she was an Enrolled Nurse when applying for the position. It is clear on the face of the letter of employment, the duties and responsibilities of the position were, at least in part, nursing skills required to be applied in her employment.
The Tribunal finds that the practitioner breached condition 2 on her registration in failing to provide evidence to the Council, within 7 days of commencing employment with the Orthopaedic Surgeon and that she failed to provide a copy of her full conditions to that practitioner. Complaint Three is established.
It is well established that registration conditions must be scrupulously observed: see Prakash v Health Care Complaints Commission [2006] NSWCA 153 at 74, citing the then Medical Tribunal of New South Wales in Re Dr Tan Thanh Le [2001] NSWMT, 20 September 2001, at [95]: 'Conditions are imposed on the registration of medical practitioners in the public interest. As with disciplinary proceedings generally, such conditions are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession: cf. Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 637. The effect of such conditions may be to prohibit or regulate the conduct of a practitioner in various ways, commonly in relation to areas of practice, the prescription of certain types of drugs, the forms of permissible employment as a practitioner, requirements for supervision, training or notification, or by providing for the monitoring of aspects of the practitioner's life, such as conditions concerning the use of alcohol or drugs. Invariably they superimpose on the usual collection of responsibilities expected of all practitioners added burdens or restrictions. Moreover, those burdens or restrictions are imposed for reasons peculiar to the individual practitioner and create burdens or restrictions particular to that practitioner. Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly.'
As was set out by the Tribunal in Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103 at [37]: 'It is 'essential' to the smooth operation of the system of regulation and discipline that practitioners comply with conditions placed on their registrations: see Health Care Complaints Commission v Karalasingham [2019] NSWCATOD 23, Health Care Complaints Commission v Reid [2018] NSWCATOD 162. As observed by the former Medical Tribunal of New South Wales in Health Care Complaints Commission in Saeid Saedlounia [2013] NSWMT 13 at [121], in addition to satisfying the required theoretical and clinical acumen thresholds as necessary preconditions for the grant of a licence to practise medicine, practitioners so licensed are required to conduct themselves with the high standards of personal and professional probity expected of members of an honourable profession. Those expectations must necessarily be seen as extending to the requirement of scrupulously observing conditions of practise: s 139B(1).'
It matters not whether the practitioner intentionally, or by omission, breached a condition on her registration. In circumstances where we have found the particulars of Complaint 3 proven, we find that the practitioner is guilty of unsatisfactory professional conduct within the terms of s 139B(1)(c) of the National Law.

Whether the professional is guilty of professional misconduct

Complaint Four is that the practitioner is guilty of professional misconduct as defined under s 139E of the National Law: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19]. The characterisation exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. Basten JA at [20] explained: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. As held in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], the conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances". The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264. And as noted in Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35], the seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred.
In written and closing submissions the HCCC pressed the complaint of professional misconduct, submitting that when the practitioner's conduct as a whole is considered, that finding is appropriate.
The Tribunal has found three instances of unsatisfactory professional conduct. We are satisfied to the requisite standard that her conduct was such as to justify suspension or cancellation of her registration. Complaint Four is established.

The HCCC's submissions

The HCCC seeks an order that the Tribunal cancel the practitioner's registration in that she is guilty of professional misconduct because: 1. the conduct involved a substantial departure from fundamental obligations of a nurse; 2. the practitioner breached the privacy of Patient A and Patient A's family; 3. cancellation is required to protect the public due to the serious nature of the conduct and the practitioner's departure from acceptable standards; 4. protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession; 5. the practitioner has not demonstrated remorse and maintains her non-admission or denial of the alleged conduct; 6. there remains a need for general deterrence, and the need to indicate to the public the seriousness with which this type of conduct is viewed by the Tribunal; 7. any order short of cancellation would be an inadequate response to the objective seriousness of the conduct, because of the necessity to emphasise to other practitioners that such serious conduct is unacceptable and will not be tolerated and to maintain public confidence in the nursing profession.
The HCCC submits that the Tribunal should order that the practitioner not be permitted to apply for reinstatement of her registration for a period of 12 months.
The practitioner made no submission about the protective orders sought.

Consideration

The Tribunal stated in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106: 92. The public interest is served by protective orders which maintain the standing of the profession and the maintenance of public confidence in the high standards of practitioners: Prakash at [91]. 93. Protective orders also involve an element of encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]. 94. Nevertheless, although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Lee v Health Care Complaints [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. 95. As noted in Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69], there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include:

the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction;
the unacceptability of certain kinds of conduct; and
the maintenance of confidence in the high standards of the profession. 96. Whether the seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].

Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling the practitioner's registration. Objectively, her professional misconduct is of such a serious nature that the only appropriate disciplinary order is the cancellation of her registration. Any order short of deregistration would be an inadequate response to the seriousness of her misconduct.
We have come to that conclusion given the objective seriousness of the conduct, because of the necessity to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated, and to maintain public confidence in the profession.
At the time of the incident Patient A was a new-born infant. Patient A was born with ambiguous gender and that will follow Patient A for their lifetime. Disclosure of Patient A's personal health information may have a significant immediate effect on Patient A's family, and probably later in Patient A's life.
The fundamental issue for the Tribunal is that any patient attends hospital for treatment and care. That includes treatment and care from nurses who are obliged under the Enrolled Nurses Standards for Practice to:

Demonstrate respect for others to whom care is provided regardless of ethnicity, culture, religion, age, gender, sexual preference, physical or mental state, differing values and beliefs (cl 2.3);
Ensure privacy, dignity and confidentiality when providing care (cl 2.7); and
Report incidents of unethical behaviour immediately to the person in authority and, where appropriate, explores ways to prevent reoccurrence (cl 2.9).

By her actions between 18 - 28 June 2020, the practitioner fundamentally failed to fulfill these obligations. Far from having Patient A's privacy and medical information kept confidential and being treated with respect, Patient A's information was disclosed and discussed by the practitioner, in circumstances where Patient A was entitled to the protection of each of the factors in cl 2.3 and 2.7 of the standards, and, by having Patient A's private health information protected.
For these reasons we consider that it is appropriate to cancel the practitioner's registration.
Balancing all the matters put to us by the HCCC, we consider that it is appropriate to order that the practitioner may not apply for review of the cancellation order for a period of 12 months.

Costs

This is a costs jurisdiction, and ordinarily costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282.
The HCCC does not seek costs.

Orders

The Tribunal orders: 1. Complaint One, that FLX ("the practitioner") is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Health Practitioner Regulation Law (NSW), is proved. 2. Complaint One, that FLX ("the practitioner") is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Health Practitioner Regulation Law (NSW), is proved. 3. Complaint Two, that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Health Practitioner Regulation Law (NSW), is proved. 4. Complaint Three, that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Health Practitioner Regulation Law (NSW), is proved. 5. Complaint Four, that the practitioner is guilty of professional misconduct under s 139E of the National Health Practitioner Regulation Law (NSW), is proved. 6. Pursuant to s 149C(1) of the National Health Practitioner Regulation Law (NSW), the practitioner's registration as a nurse is cancelled. 7. Pursuant to s 149C(7) of the National Health Practitioner Regulation Law (NSW), the practitioner may not apply for review of the cancellation order for a period of twelve months from the date of these orders. 8. Each party is to pay its own 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: 22 December 2022

anh Le [2001] NSWMT, 20 September 2001 Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) FLX (Respondent) Representation: Health Care Complaints (Applicant) Respondent (No appearance) File Number(s): 2022/00084733 Publication restriction: Pursuant to Schedule 5D cl 7(1)(b)(i) of the Health Practitioner Regulation National Law (NSW), the disclosure and or publication of FLX's name (including any identifying information as provided in cl 7(1)(4)) and the practitioner's address and personal details is restricted to the parties and to any other persons or bodies where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings.

REASONS FOR DECISION

The Health Care Complaints Commission ("HCCC") has applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) ("the National Law") against FLX, an Enrolled Nurse ("the practitioner").
The Tribunal on 6 May 2022, ordered that the name of the practitioner not be published. That order was made pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"). FLX is the pseydonyum given to the practitioner.
The proceedings arise from complaints made pursuant to ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 145A of the National Law. The complaint alleges that the practitioner is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) and/or (c), and professional misconduct within the meaning of s 139E of the National Law.
The complaint relates to a breach of professional boundaries with an infant patient (Patient A) during the practitioner's employment at the children's ward at hospital in New South Wales (the "hospital").
At a Directions Hearing on 6 May 2022, the Tribunal ordered that the proceedings be set down for an undefended hearing to be conducted in one stage. That means the Tribunal is to determine whether the complaint is proven and what protective orders should be made as a consequence of the Tribunal's findings.
The hearing was listed as an in-person hearing. The panel included one Enrolled Nurse, one Registered Nurse, the presiding member and a general member.
The HCCC was represented by Ms B Butt, a solicitor within the Legal Services division of the HCCC. The practitioner did not file any material in reply to the complaint. She indicated to the Tribunal and the HCCC that she did not wish to be heard in respect of the complaints and did not participate in the hearing. The practitioner's husband observed the hearing by telephone. He did not participate in the hearing.
We are satisfied that the practitioner was given the requisite notice of the complaints made against her. She was provided an opportunity to reply and also to participate in the hearing. The practitioner was given notice of the protective orders sought by the HCCC. The affidavit of Ms B Butt, affirmed on 6 May 2022, attests to the service of the complaints and protective orders sought. Following the service of that material, the practitioner maintained her position in not wishing to file any reply or participate in the hearing. This was due to a decline in the practitioner's mental and physical health. She requested the HCCC's "speedy resolution of this matter…". Despite not defending the complaints, the practitioner does not admit the allegations. We were satisfied that we could proceed with the disposition of the complaints pursuant to s 165J(3) of the National Law (HCCC v Greenwood [2011] NSWNMT 13 at [14]; Health Care Complaints Commission v Marquinez [2014] NSWCATOD 125 at [7]-[9]; Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151 at [3]).
The HCCC did not call any witnesses. It relied upon a brief of evidence which was served on the practitioner on 29 June 2022 (electronically) and filed with the Tribunal on 30 June 2022. The bundle, which included a supplemented document at tab 1(a), being the evidentiary certificate of the practitioner's registration details extracted from the National Register of Health Practitioners, was marked (A1). The bundle consisted of 50 tabs. The 6 May 2022 affidavit of Ms Butt was marked (A2). An email received by the HCCC from the practitioner's husband dated 29 June 2022, acknowledging receipt of the HCCC's bundle A1, was marked (A3). We note that due to the impact of the proceedings on the practitioner's mental health, and at her request, correspondence was directed to her husband.
The Tribunal may exercise the disciplinary powers conferred by Subd 6, Div 6 of Part 8 of the National Law if (a) it finds the subject-matter of a complaint to have been proved, or (b) the practitioner admits to it in writing to the Tribunal: s 149 of the National Law.
The combined Stage 1 and 2 hearing and these reasons relate to the issue of whether the allegations in the complaints have been proven to the requisite standard, and whether any conduct found to have occurred constitutes unsatisfactory professional conduct or professional misconduct. If the complaints are proven and a finding of unsatisfactory professional conduct or professional misconduct is made against the practitioner, the Tribunal is then required to consider, and determine, what if any protective orders are appropriate.
The HCCC bears the onus of proving the complaints against the practitioner, on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). The approach to be adopted by the Tribunal in making findings of fact in respect of matters in dispute was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52]-[53] in the following terms: 52. In medical disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]). 53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations.

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