Health Care Complaints Commission v Fraser - [2014] NSWCATOD 84 - NSWCATOD 2014 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Fraser

[2014] NSWCATOD 84

NCAT Occupational|2014-07-04|Before: Boland AM

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Source facts

Court

NCAT Occupational

Decision date

2014-07-04

Before

Boland AM

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

What the Tribunal decided 1On 30 July 2014 the Tribunal determined, based of its findings made 4 April 2014 that Ms Nola Fraser ("the practitioner") is guilty of unsatisfactory professional conduct and professional misconduct, that her registration as a nurse and midwife should be cancelled and she should not be entitled to re-apply for re-instatement of her registration under s 163A of the Heath Practitioner (Regulation) National Law ("the National Law") for a period of one year. 2The Tribunal made an order that the practitioner pay fifty per cent of the costs of the Health Care Complaints Commission ("the HCCC") as agreed, and failing agreement, as assessed under Div 11 of Part 3.2 of the Legal Profession Act 2004 (NSW). 3The Tribunal ordered that the names of patients who provided references for the practitioner should not be published to any person other than the parties to these proceedings.

[2]

Introduction 4On 4 April 2014 the Tribunal published its reasons in respect of the Further Amended Complaint brought by the HCCC against the practitioner (see Health Care Complaints Commission v Fraser [2014] NSWCATOD 29.) ("the substantive reasons"). 5A summary of the Tribunal's findings in respect of the asserted unsatisfactory professional conduct are set out at [458] - [462] of our substantive reasons. The findings in respect of the complaint of professional misconduct are set out at [468]-[471]. 6The practitioner's counsel, at the commencement of the substantive hearing, requested that the matter should be heard in two stages so that after the parties were apprised of our findings they could make submissions about appropriate protective orders, if any, to be made. We agreed to that course. Accordingly, a time-table for filing submissions was included in our substantive reasons. The HCCC filed submissions ("the primary submissions") on 16 May 2014 and the practitioner filed submissions on 4 June 2014 together with an affidavit by her sworn 30 May 2014. The HCCC filed further submissions in response to the practitioner's material on 19 June 2014. 7The "stage 2" proceedings were listed for hearing before us on 4 July 2014. The HCCC gave notice it wished to cross-examine the practitioner and two doctors who provided references addressed to the Tribunal.

[3]

Protective orders sought 8The HCCC submitted, having regard to the findings of the Tribunal in its substantive reasons, that the practitioner's registration should be cancelled and a period of two years elapse before she may seek a review under s 163A of the National Law. 9In its written submissions the HCCC sought a further period of time to make submissions about conditions in the event that the Tribunal determined cancellation of the practitioner's registration should not be ordered. However, by the conclusion of the stage 2 hearing, counsel for the HCCC, Ms N Sharp ('Ms Sharp"), indicated that the HCCC did not wish to make any submissions, in addition to her oral submissions, about protective orders which included conditions. 10In written submissions filed on behalf of the practitioner prepared by her counsel, Mr A Cheshire ("Mr Cheshire"), it is submitted that the Tribunal should not order the cancellation of the practitioner's registration, but rather we could impose conditions on her registration that "could restrict the areas in which she is entitled to practise so as to ensure the safety of the public in the light of the Tribunal's findings". The submissions also note that the practitioner is willing to agree to such conditions "as the Tribunal deem fit". 11In an affidavit, sworn by the practitioner on 30 May 2014, at [23] she set out a number of areas she proposed she could work without risk to the safety of the public. The areas are midwifery in a hospital setting, doctors' surgeries in the physical presence of a doctor and "under their direction", as an immunisation nurse, as a nurse/educator facilitator, as a midwife in an early childhood clinic and in a phone triage setting. 12We infer from the practitioner's affidavit [12] that she does not propose she would work under supervision in a public hospital. We also infer from the reference provide by Dr Peter Dobie ("Dr Dobie") that the practitioner proposes she should be entitled to continue to practise in her present role in that doctor's practice.

[6]

The HCCC's submissions and evidence relied on 20In the written submissions filed on behalf of the HCCC Ms Sharp, at [16], set out the principal matters which the HCCC submit are relevant to the exercise of the Tribunal's discretion in making appropriate protective orders as follows: The HCCC submits that the cancellation of [the practitioner's] registration is necessary and appropriate in the circumstances of this case by reason of: (a)The objective seriousness of her misconduct (including the exposure of her patients to danger and harm); (b)The fact that her conduct occurred in relation to three patients over an extended period of time and was not an isolated instance; (c)The lack of remorse and contrition expressed by [the practitioner] and her failure to take responsibility for her actions; (d)[the practitioner's] lack of insight both into the limits of her own professional competencies and the risks to which she exposed her patients; (e)The risk of re-occurrence; (f)[the practitioner's] untruthful evidence to the Tribunal, which revealed a pattern of deliberate dishonesty and also a lack of candour; and (g)The need to maintain public confidence in the nursing and midwifery profession. 21We will shortly discuss the evidence by reference to the submissions made under the topics identified above by reference to our substantive reasons, the parties' submissions, and the practitioner's affidavit sworn 30 May 2014 in respect of this stage 2 hearing. 22The HCCC opposed the Tribunal making an order for suspension and stated: The onus should be on [the practitioner] to demonstrate that she has gained insight into her shortcomings and has the required judgment to be a nurse and/or midwife before she again obtains registration. 23Ms Sharp cited in support of this proposition the decision of the former Medical Tribunal in HCCC v King (unreported 6 February 2013) at [34]. 24The submissions filed on behalf of the HCCC argue that the imposition of conditions is not appropriate in this case. The submissions at [34]- [35] state: The evidence supports the conclusion that the imposition of conditions would not be sufficient to protect the public because [the practitioner] has repeatedly demonstrated her disregard for the safety of patients and has been prepared to act without appropriate supervision. No conditions on [the practitioner's] registration as either nurse or midwife could be fashioned to protect the public, the nursing and midwifery professions and their reputations and the public interest. In all the circumstances of this case, cancellation of both the nurse and midwifery registrations is the only appropriate order. 25 At the commencement of the stage 2 hearing the HCCC tendered a letter from Australian Medical Services Pty Ltd trading as AMS Nursing Agency ("the Nursing Agency") dated 17 June 2014 signed by Mr Stephen O'Donnell ("Mr O'Donnell"), Director. We admitted the letter as an exhibit in the proceedings. Mr O'Donnell was not required for cross-examination. It is not in dispute that the nursing agency is the agency through which the practitioner gained employment from time to time. However, her evidence is that the last time she worked for this agency was on 5 April 2014. 26In his letter Mr O'Donnell explained that he had acquired the Agency on 19 November 2013. He further stated: She [the practitioner] advised the Agency late last year that she was undertaking a course of study and would not be available for work until this course of study was completed later in 2014. She contacted the Agency late March this year stating that she was available to work again and was placed in two shifts on the 1st and 5th April this year. She has at no time informed any member the Agency management that she was the subject of a complaint regarding her nursing practices or has had any discussion with any member of the Agency management on the matter. Following the publication of findings of the Commission [sic], there has not been any communication between her and Agency management.

[7]

The practitioner's affidavit 27The practitioner relied on her affidavit sworn 30 May 2014. No objections were taken to any paragraphs of the affidavit although some paragraphs expressed the deponent's opinion, or contained hearsay material. Nor was any form objection taken in respect of 21 references annexed to the affidavit. 28The practitioner did not read the last sentence of [12] of her affidavit. At [2] she expressed regret at "ever becoming involved with Mr Chittoor Krishnan ["Mr K"]....and becoming involved with the administering of IPT and Vitamin C". She went on to depose in [3] "In retrospect I can see that my judgment was impaired by my desire to assist my brother ..." 29At [5] the practitioner deposed that she terminated her relationship with Mr K "sometime before his son [Mr RK] telephoned me". She concluded the paragraph as follows: With the benefit of hindsight, after plotting the sequence of events, I was able to see a pattern emerging which was not visible to me when I was in the middle of it. 30At [8], after referring to her belief in Mr K's story and his behaviour, the practitioner stated: Even in the absence of [Mr K's] history I should have been on guard and not excused the warning signs along the way which would have alerted me to his registration status. I apologise for this. 31At [10]-[11] the practitioner referred to events that occurred during her employment at Campbelltown Hospital, and explained how she had taken her concerns at that time to the then Minister for Health. The practitioner stated that all the complaints she had raised had been upheld. At [12] the practitioner deposed: My family and I have paid a high price for me speaking out about Campbelltown. As a consequence of telling the truth in 2003 I was no longer welcome to work in the public health system. 32In her oral evidence in answer to questions posed to her by Ms Sharp, the practitioner said she currently works approximately 8 hours per week for Dr Peter Dobie ("Dr Dobie") at his practice in Lilyfield, She said she had recently been asked to join the permanent part-time staff of Liverpool Hospital. We presume the practitioner is referring to Liverpool Private Hospital. It was at this hospital, the practitioner explained in her oral evidence at the substantive hearing, that she regularly worked. She also said at [16]: Since March 2010 I have not practised at all outside of a private hospital or the GP clinic of Dr Moore and Dr Dobie. 33The practitioner deposed that she had funded her legal fees in these proceedings herself "with no assistance from any professional body". She deposed to having paid out over $100,000 and explained "I have had neither support from the Nurses Union nor any family members..." 34The practitioner also stated her beauty business had suffered because of the time involved with the care of her brother, her father's terminal illness and "the demands of the legal process of the Tribunal". She said "In 2013 I had to close the doors, retrench my staff and I was left with a significant debt". 35Paragraph 22 of the practitioner's affidavit, although it is substantially in the nature of a submission, is relevant to our determination. The practitioner deposes: I have 30 years experience as nurse behind me and I believe I have a lot to contribute to the profession. There is still scope for me to contribute to nursing in NSW and I note, for instance, that none of the complaints brought before the Tribunal relate to my practice pursuant to my midwifery registration. 36At [24] and [25] the practitioner deposed: Nursing is my life, it's who I am, it defines me and it is all I know. I put my whole heart and soul into it. Apart from my failed beautician business, it is all that I have every [sic] known and all that I have to work in and from which to be able to support my family. Outside of nursing, I have very few transferrable skills. Most relevantly for the current market, my computer skills are almost non-existent. The decision has already affected my employment as I have not been offered any work through the agency Australian Medical Services since the decision was published and I notified the agency.

[9]

Dr Richard Moore 41Dr Moore provided two references in respect of the practitioner (6 June 2013 and 1 May 2014). In his first reference, by which date he had notice of the complaint against the practitioner, he explained that he employed the practitioner as "our practice nurse" at Levity Health, Bondi Junction for a two year period (unspecified). He explained that the practitioner worked as a team member, always within the confines of her nursing role, and that she followed medical orders. Dr Moore explained that the practitioner always cared for patients extremely well, that she was very popular with patients and "a great support to me as a medical practitioner". 42Dr Moore's second reference is dated 1 May 2014. He opined "[the practitioner's given name] integrity, honesty and professionalism has always been sound and impressive". He again referred to her excellent nursing knowledge and cannulation skills. Dr Moore stated that the practitioner's employment ceased when he downsized the practice. 43Dr Moore also stated that Patient A (the practitioner's brother) had also been his patient and that he, Patient A, had made his own decisions about treatment. 44Dr Moore concluded his reference with the following paragraph: After reading the judgement of the HCCC against [practitioner's given name] I find it very hard to believe from my observations of the relationship that [the practitioner's given name] was at all times able to influence [Patient A's] treatment decisions as [Patient A] was always his own person. 45When he was cross-examined by Ms Sharp, Dr Moore was asked whether he considered it was a serious lack of judgment on the practitioner's part if she was recklessly indifferent to whether or not Mr K was registered when IPT was administered. He replied "If that's truthful, then yes that is a problem". When asked to comment on the same scenario, but if the finding was the practitioner knew Mr K was not registered, Dr Moore responded "absolutely". 46Dr Moore agreed that, during the time the practitioner worked with him, she had asked about his registration status, and went on to explain that his registration certificates both as a general practitioner and an osteopath were prominently displayed on the walls in his rooms. We note the practitioner's curriculum vitae discloses she commenced work with Dr Moore at Levity Health in February 2010, prior to contact from Mr RK. It indicates the practitioner was careful to establish Dr Moore was a duly registered medical practitioner. This may be contrasted with her lack of enquiry about Mr K's registration. 47Dr Moore's oral evidence, while disclosing knowledge of the Tribunal's findings, did not appear to encompass any acceptance of our criticisms of the practitioner's conduct other than the concessions elicited from Ms Sharp's cross-examination. Those concessions were, in our view, properly made by Dr Moore.

[10]

Dr Peter Dobie 48Dr Dobie provided a reference for the practitioner dated 14 April 2014. He was cross-examined by Ms Sharp via telephone. Dr Dobie noted that the practitioner had worked for him for the previous two years. In his reference Dr Dobie stated he had "seen and read the verdict of unsatisfactory professional conduct and professional misconduct". He went on to say he "was surprised to see this verdict" noting the practitioner's skills. He explained the practitioner's aseptic technique is of the highest standard, and that she displays "great compassion when dealing with ill patients". 49Dr Dobie concluded his reference noting: I cannot find fault in her nursing skills and her professionalism and I am more than comfortable for her to continue to work under my supervision. 50In answer to questions posed to him in cross-examination by Mr Sharp, Dr Dobie said the practitioner had commenced working for him approximately two years ago at Edgecliff, that she presently worked in his clinic at Lilyfield where he undertakes intravenous vitamin therapy and ETA. The practitioner is said to currently work for three shifts each of four hours duration per week for Dr Dobie. 51Dr Dobie explained that he had previously worked with Mr Ameisen at the Vita Centre at Edgecliff, but not during the period the practitioner worked at that centre. He also agreed that he had met Dr Tendek, but said that he did not know her well. 52Dr Dobie explained that the practitioner had told him of the complaint against her several months ago, and that he was aware of the adverse findings of the Tribunal. He said he was fairly sure he had read the findings, and that he had spent a "few minutes" reading the findings. 53When Dr Dobie was asked about his knowledge of IPT he said that he knew little about it and had never been involved in it. When asked to assume that IPT was administered by the practitioner when she was not supervised by a registered medical practitioner, Dr Dobie responded to the effect that it was something no nurse should be doing without a doctor's order. He confirmed that the practitioner only administered intravenous vitamin therapy at his clinic in accordance with a written order. 54 We give little weight to the doctor's comments about our substantive reasons as it was clear from his oral evidence that he could not have read the reasons in any detail. We accept his experience of the practitioner is of a skilled, caring and compassionate nurse.

[11]

Other professional witnesses 55Ms Wilson, who did not disclose her address in her reference, reported seeing the complaint and "decision document". Ms Wilson referred to the practitioner acting as her mentor and that she had learnt valuable clinical skills from the practitioner. She explained that the Tribunal's substantive reasons "came as a shock" to her and that they were "totally unbelievable" and "inconsistent" with the practitioner she had come to know. 56Ms Pilarcik provided a reference dated 28 May 2014. She explained that she is a nurse and midwife of some 32 years standing. She has known the practitioner since 1998 when they met at Campbelltown Hospital. Ms Pilarcik stated that, in her opinion, the practitioner is "skilled, dedicated, and professional" in her profession as a registered nurse. She also explained that the findings had come as a shock to her and that she had never previously heard of the practitioner stepping outside her professional boundaries. 57However, Ms Pilarcik went on to comment that during the period of investigation the practitioner was under enormous stress because of the illness and death of her father, a cousin, and Patient A. 58Ms Pilarcik, opined: In retrospect, I know [the practitioner] is incredibly remorseful for any wrong doings, and now deeply regrets acting as a carer for a family member and committing any offence. I believe her actions were probably clouded by her overwhelming desire to help her brother and family. 59Later in her reference Ms Pilarcik, we would say insightfully, said: I have been in a very similar situation to [the practitioner] myself, being carer for my mother during her terminal illness in 2002, and understand how difficult and sometimes blury the boundaries between nurse, carer and family member can become. 60Ms Pilarcik concluded that she continued to hold the practitioner in high regard, and that she would be proud to continue to work alongside her. 61We note Ms Pilarcik did not refer to her meeting with Mr K, which she set out in her statement in the substantive proceedings. Notwithstanding this deficit, Ms Pilarcik does demonstrate some insight into the care a practitioner must exercise when involved in the care of a family member. 62Ms Pinney, who is the receptionist for Dr Dobie, also provided a reference for the practitioner. She referred to the practitioner's cannulation skills, and the rapport she establishes with patients.

[14]

The nursing agency correspondence 66The practitioner annexed two letters from Ms Cathy Szenes ("Ms Szenes") both on letterheads bearing the title "Australian Medical Services Pty Ltd" dated respectively 31 May 2013 and one dated 1 May 2014. Ms Szenes was not required for cross-examination. 67Ms Szenes' first reference on AMS letterhead (Australian Medical Services Pty Ltd Nursing Agency) discloses a post office box address (PO Box 2819 Taren Point NSW) and an ABN: 96 119 338 797. 68The second reference provided by Ms Szenes is also on letterhead which states "Australian Medical Services Pty Ltd". It discloses no postal or other address, but the same ABN as on the earlier reference. 69Exhibit A (the letter authored by Mr O'Donnell) is also on letterhead. It contains a mailing address (PO Box 92 Lindfield) and an ACN for Australian Medical Services Pty Ltd (ACN 166 121 713). 70In her first reference Ms Szenes notes that the practitioner had worked for "Australian Medical Services P/L" since 31 January 2012. In the concluding paragraph of the reference Ms Szenes states: I am fully aware that [the practitioner's given name] is under investigation by the HCCC. I have read the complaints made against [the practitioner's given name] by the HCCC. I have no knowledge of the matter under investigation but I have found Nola to be one of the better nurses that I have encountered in my 30+ years of my nursing practice. 71In the second reference, dated 1 May 2014, Ms Szenes explained that "[the practitioner's given name] used to work for Australian Medical Services as a registered nurse and Midwife in which I was the director." 72In the final paragraph of her reference Ms Szenes stated: All in all, I found [the practitioner] to be a very honest, knowledgeable and skilful RN/RM. I felt lucky to have her worked for me during the last 3 years or so. If I have the company, I would not hesitate to employ her again. 73It was unclear to us whether or not Ms Szenes continued to have any involvement with Australian Medical Services Pty Ltd after the sale of the business to Mr O'Donell on 19 November 2013, and the circumstances in which she provided a reference with the letterhead "Australian Medical Services Pty Ltd" dated 1 May 2014 if she is no longer associated with the company. 74In her oral evidence the practitioner was cross-examined about her disclosure to Australian Medical Services Pty Ltd of the complaint and/or the findings of the Tribunal and in particular her evidence in [25] of her affidavit which we have set out earlier in these reasons. Our reading of that paragraph indicates that the practitioner notified the nursing agency of our substantive reasons after their publication. 75The practitioner, in her oral evidence in an answer posed in cross-examination, said she had not notified the agency. When [25] of her affidavit was drawn to her attention she said "Well, I notified Nat, which is a member - a staff coordinator of the agency". The following exchange then occurred between the practitioner and Ms Sharp: Q. I suggest to you that that is a lie and that at no time since the Tribunal gave its findings have you made any effort to notify the agency of the findings made by the Tribunal? A. No. That's not correct. There was at times I think somewhere in November, that leading up to the Court case I think that there was a change of hands, but the owner and Nat, who ran the previous agency, continued on for a few months. Natalie is still with them, and she's the staff coordinator, and I notified her when we were talking. Q. You accept that it would be a very important matter for a nursing agency to know whether one of the nurses on its books had been found guilty of professional misconduct, don't you? A. Well, I notified. I notified Nat. 76When challenged about the information in Mr O'Donnell's letter the practitioner said words to the effect she did not know who the management is. She also said that she did not learn of the Tribunal's substantive reasons until 8 April 2014. She said she had not worked for the agency since the publication of the Tribunal's substantive reasons. 77We found the evidence on this topic confusing and the practitioner's evidence caused us some disquiet as to her truthfulness. It is unclear to us how Ms Szenes could provide a reference on the letterhead of Australian Medical Services Pty Ltd on 1 May 2014 when it appears she has not been a director of that company since the business was sold in October 2013. Further, the practitioner's oral evidence is that the person she notified at the agency of the complaint was Nat, not Ms Szenes. There was no evidence before us, other than the practitioner's oral evidence, about Nat or her position in the agency. From Mr O'Donnell's letter it does not appear "Nat" held a management position in the agency. However, we accept that Ms Szenes in her first reference does not refer to the practitioner personally advising her of the complaint. It is possible that Nat informed Ms Szenes of the complaint prior to Mr O'Donnell acquiring the agency, but that evidence is inconsistent with the practitioner's affidavit evidence. 78In these circumstances we find we can place little weight on Ms Szenes' references.

[16]

The objective seriousness of the conduct 80In her submissions Ms Sharp points out that the conduct in which the practitioner was involved put three very vulnerable patients, each suffering from cancer, at serious risk of harm. She drew our attention to the dangers inherent with the intravenous administration of any substance, and the necessity for such administration to take place under the supervision of a registered medical practitioner. She emphasised the risks to patients of an adverse drug reaction, side effects from the substance itself, and infection. 81In our substantive reasons, we found that the practitioner's conduct in administering intravenous vitamin therapy to Patient D was significantly below the standard expected of a practitioner of the equivalent level of training and experience [335]. We recorded the risks inherent in such treatment when the practitioner did not know the patient's medical history, what chemotherapy drugs she had received in Austria, or had considered the potential for the patient to suffer an adverse reaction particularly when the treatment occurred in a private home and was not supervised by a registered medical practitioner. 82In her evidence in these proceedings the practitioner stated "looking back I could do things better, like, I'd know the patient, I'd have some form of relationship with the doctor that I've worked for. So far as that goes I think I definitely put her at risk". 83Ms Sharp asked the practitioner to say how she put Patient D at risk. The practitioner responded: A. Well, because I didn't know her, I hadn't attended to her before. Even though that I knew that vitamin C was an unscheduled item, you know, there's no limitations to what you can do with it and who can use it, but as a registered Nurse I should have known better. 84We also found the practitioner's conduct in respect of the administration of vitamin therapy to her brother without adequate supervision was inappropriate [460], as was her conduct in collaborating with her brother to obtain Bleomycin in the knowledge that the administration of that drug would not be under the supervision of a registered medical practitioner. 85In the submissions filed on behalf of the practitioner Mr Cheshire referred to the fact that the practitioner did not deny "the factual basis of the vitamin therapy in relation to her brother and [patient D] and the IPT in relation to [Patient B]". We note that the practitioner's admissions were not as straight forward as asserted by Mr Cheshire. At all times throughout the hearing the practitioner disputed the central issue namely that either she knew or was recklessly indifferent to whether or not Mr K was registered at the time of the procedures in respect of Patients B and D. Further, she disputed the IPT took place at her clinic at Narellan, and gave false information about the venue used to administer vitamin C to Patient D, recording in her affidavit that she drove to Westmead where she found the vitamin C on a bench by the window (statement 19 June 2013). 86The practitioner did, in her answers to questions posed in cross-examination at this hearing, acknowledge she should not have administered IPT to Patient B because she did not have the history he [Mr K] had written down and did not know about it. While she continued to maintain she did not read Mr K's email of 11 February 2010 she accepted that was no excuse. She maintained her denial of involvement with her brother in the procurement of Bleomycin from Dr Tendek. 87The Tribunal notes and places some weight on the regret expressed by the practitioner in [2] of her affidavit both in respect of becoming involved with Mr K and in the administration of IPT and vitamin C. In [3] of her affidavit the practitioner refers to her judgment being impaired because of her desire to assist her brother. We accept that the practitioner was subject to considerable strain and emotional distress as a result of her brother's diagnosis and illness, and it goes some way to explaining her initial contact with Mr K. But the reality remains that the procedures in which the practitioner engaged, after ignoring the many warning signs about Mr K's lack of registration, were not only procedures involving her brother. They involved two persons completely unknown to the practitioner. 88We agree with the submissions of the HCCC that the administration of vitamin C, but particularly IPT, in the circumstances we have found exposed three vulnerable patients to serious risk of harm. The fact that a practitioner of this nurse and midwife's many years of experience, who strongly expressed concerns for patient safety in 2002, engaged in such conduct demonstrates a serious lack of judgment. It is a significant factor to be taken into account in the exercise of our discretion.

[18]

Lack of remorse and contrition expressed by the practitioner and her failure to take responsibility for her actions 92Mr Cheshire in his oral submissions on behalf of the practitioner drew our attention to [2], [3], [8] and [9] of the practitioner's affidavit. 93In his written submissions Mr Cheshire submitted at [14] as follows: [the practitioner] has recognised her error and lapse of judgment. Further, she has demonstrated this by altering her practices, in particular as to checking and being on her guard as to the registration status of doctors and avoiding treatment situations with family members where her judgment could become clouded; and those steps taken not in response to the Tribunal's findings, but rather much earlier when these matters first occurred. 94We accept that the practitioner has expressed regret in becoming involved with Mr K and becoming involved with the administration of IPT to Patient B and intravenous vitamin C to Patient D. While her brother's illness gives some background to her involvement with Mr K, it does not excuse her conduct in respect of Patient B and Patient D. 95We also accept she apologises for not having recognised the many warning signs that Mr K was not registered. She also expresses sorrow for her actions and says that it was never her intention to put anyone at risk. However, it was only when cross-examined by Ms Sharp at this hearing that the practitioner agreed her conduct in respect of Patient B and Patient D did put those patients at risk. 96The practitioner asserts, at [5] of her affidavit, that she ceased her relationship with Mr K "sometime before his son [Mr RK] telephoned me to inform me that [Mr K] was not a registered doctor". In answer to questions posed to her in cross examination by Ms Sharp the practitioner asserted that, so far as she could recall, she had ceased her relationship with Mr K a few weeks before receiving Mr RK's phone call on 1 March 2010. We are unable to accept this evidence. Mr K returned to Australia in February 2010. Patient B did not undergo IPT prior to 12 February 2010. He undertook three IPT treatments between that date and 26 February 2010. The practitioner in her statements filed in the substantive proceedings gave no evidence of terminating her relationship with Mr K. Rather she said at [140] that "I remained anxious to maintain an amicable relationship with him in case [Patient A] required his help in the future". In [147] of her statement the practitioner said she told Mr K that she would not be involved in future treatments with him until he set up his practice, and that she did not want to hear from him until he did so. This statement clearly implies the practitioner was prepared to be involved in future treatments involving other patients with Mr K if he established his own practice. By her statement we infer the practitioner was referring to Mr K obtaining his own rooms. 97We find the practitioner's evidence on this topic demonstrates a lack of frankness or an attempt to retrospectively minimise her involvement with Mr K. It causes concern to us that the practitioner really has demonstrated a desire to be candid in her evidence before the Tribunal. In reaching this finding we also consider that the practitioner's evidence about notification to the nursing agency lacked veracity.

[19]

The practitioner's insight into her professional competencies and the risks to which she exposed her patients 98The written submissions lodged on behalf of the HCCC assert, in relation to Patient A, Patient B and Patient D, that the practitioner usurped the role of the registered medical practitioner. The submissions also refer to the fact that the practitioner conceded in cross-examination in the substantive proceedings she had no specialist training in the administration of chemotherapy drugs, that she had never worked on an oncology ward, and that she had only administered chemotherapy infrequently during her periods of work in hospitals. 99The practitioner did not, in her affidavit, or in the submissions filed on her behalf, address the findings made in respect of her role in the administration of chemotherapy drugs, or IPT and that such administration was outside her scope of practice. In this respect we repeat our findings at [380]-[385] of our substantive reasons. That, in our view, is a substantial omission, and a matter to which we give significant weight. 100The majority of the practitioner's referees refer to the practitioner's excellent clinical skills in particular in respect of cannulation. We accept that in this area the practitioner is highly skilled. We also accept that she establishes an excellent rapport with patients and they express confidence in her. 101The practitioner wishes to remain registered and agrees she will abide by conditions imposed on her registration. If the practitioner had demonstrated to us an understanding that she had acted outside her scope of practice, and we could be confident she would not do so again, conditions which limited her practice to the types of roles she suggested may be sufficient to protect the public. But we are not satisfied she has demonstrated any genuine insight into her actions in respect of the administration of IPT and/or the procurement of Bleomycin knowing its administration would not be supervised by a registered medical practitioner. This is a serious and significant deficit and militates against continuation of the practitioner's registration even with conditions at this time.

[20]

The risk of re-occurrence 102The HCCC's submissions in respect of this topic are succinct. In summary, it is asserted that the practitioner's conduct was repeated on a number of occasions, and involved three patients. The HCCC submit "[the practitioner's] lack of insights into her professional abilities raises the real risk that [the practitioner] will re-offend in the future". 103Mr Cheshire in his written submissions addresses this issue at [8] to [10]. He points out the practitioner's long history of practice in positions of authority without any complaints prior to these proceedings. He submits: The importance, however, is that they do not demonstrate a course of conduct that is likely to be repeated. 104The likelihood of repeat conduct squarely focuses attention on the practitioner's level of insight into her conduct. Although made in the course of considering an appeal dealing with re-instatement of a medical practitioner the comments of the Court of Appeal in Zaidi v Health Care Complaints Commission [1998] NSWSC 355; (1998) 44 NSWLR 82 are relevant to this topic. There the Court said: It is not a question of what an applicant has suffered in the past. It is a question of his worthiness and reliability in the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. It is difficult to decide what a man will do in the future and the decision in a particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant. In making that assessment, it may draw inferences from what he has done in the past, and in particular, what led to his being removed from the Register. An understanding of that may assist the Tribunal to determine what are his standards and his understanding of a practitioner's responsibility, and from this, what he is apt to do in the future. 105We accept that the practitioner initially became involved with Mr K because of her brother's desire to have non mainstream cancer treatment, and in particular, IPT. 106The practitioner has acknowledged that in her career at Campbelltown Hospital where she held a senior position, she was alert to events which were disregarded by other practitioners. Her many years of nursing and management experience make her failure to ignore the many matters which should have alerted her to Mr K's registration status startling. 107We accept that the practitioner, if now engaged in practice with a person in unusual circumstances, such as environment outside a public or private hospital setting, is likely to check a medical practitioner's registration status. However, that is not the real issue to be considered here. What is relevant is the risk that the practitioner may act outside her scope of practice and put patient safety at risk because of an inflated view of her own competencies. We are not satisfied that the practitioner demonstrates any real insight into this aspect of her past behaviour.

[21]

The practitioner's untruthful evidence to the Tribunal, which revealed a pattern of dishonesty and also a lack of candour 108Ms Sharp drew attention to the Tribunal's adverse findings about the practitioner's credit at [267], [302], [303], [358], [363] and [456]. At [30] of her submissions Ms Sharp argues that the practitioner's "pattern of untruthful evidence means the Tribunal can have no confidence in any assurance she might offer to the Tribunal regarding her future conduct". 109In the submissions filed on behalf of the practitioner Mr Cheshire refers to the fact that the practitioner "did not deny from the outset the factual basis of the vitamin therapy in relation to her brother and Patient D, and IPT in relation to Patient B". However, that submission requires some comment. First, the practitioner denied, contrary to her evidence in the s 34A proceedings, that the IPT was administered at her beauty clinic. Secondly, she gave incorrect evidence about the venue of Patient D's treatment. Finally, and significantly, she did not concede she was recklessly indifferent to Mr K's status. We refer to and repeat our findings in our substantive reasons and referred to by Ms Sharp in her written submissions filed on behalf of the HCCC. 110Aspects of the practitioner's evidence in the stage 2 proceedings again raised issues of the practitioner's truthfulness. Before us in the substantive proceedings she said she closed her beauty salon some two years prior to the substantive hearing, but now asserts in her affidavit that this occurred in 2013. She relies on this evidence to demonstrate the punitive effect she will suffer if her registration is cancelled. We note the practitioner did not acknowledge her misleading evidence of the venue of Patient D's treatment in these proceedings given in the substantive proceedings. Our findings in our substantive reasons about her truthfulness, and some lack of candour in the stage 2 proceedings, impact on the weight we can give to the practitioner's statements of remorse. This affects the weight we can give to the assertion she will not offend again.

[23]

The effect of cancellation of the practitioner's registration on her 114Earlier in these reasons we noted while the primary purpose of protective orders is to protect the health and safety of the public, the punitive effect of such orders must be carefully considered and taken into account in weighing all the matters relevant to the discretion to be exercised. 115We accept that the majority of the practitioner's professional life has been in the practice of nursing and midwifery. We note she does have tertiary qualifications as a teacher obtained prior to her nursing qualifications. She has also operated a small business. While there was no cross-examination of the practitioner about her financial circumstances, we accept that it is likely that cancellation of her registration will involve hardship for the practitioner. 116While the circumstance which led to the practitioner personally incurring significant legal costs in these proceedings is unknown to us, we accept she has paid a significant sum for her legal representation, and has incurred costs not yet paid. 117We are satisfied that it would not be appropriate to impose a fine on the practitioner. Such an order would create a further financial burden, and not address the risk of issues of future patient safety we have identified. 118Mr Cheshire submitted that, if we were not satisfied that the imposition of conditions was a proper outcome, we should suspend the practitioner's registration for the shortest period possible. 119We do not find suspension to be a proper order in the circumstances of this case. While suspension could satisfy the deterrent aspect of protective orders, such an order does not address the fundamental issue in these stage 2 proceedings namely the question of the practitioner's insight, and the risk she may again act outside the scope of her practice. On the expiration of any suspension period, the practitioner's registration would automatically revive. This may be at a period of time when she may, or may not, have gained true insight into her behaviour. 120The imposition of conditions rather than cancellation of the practitioner's registration would have been appropriate if we had been satisfied that the practitioner:- (1) having read our substantive reasons, was able to acknowledge that significant aspects of her conduct, particularly in respect of the administration of IPT, and her independent role in providing care to her brother, were outside the scope of her practice; and (2)had been completely candid and honest in her evidence to the tribunal. 121 We have balanced the practitioner's previous exemplary record, her emotional difficulties associated with her brother's illness and father's death, her current financial circumstances, and some acknowledgement of remorse for her wrong doing against the seriousness of the offences, her lack of present insight, evinced by her failure to properly and adequately acknowledge her actions were outside her scope of practice, and the need to deter other practitioners from similar conduct. These last identified factors, in our view, outweigh matters advanced by the practitioner, and on her behalf by Mr Cheshire, to retain her registration, albeit with conditions. 122We conclude that the only appropriate protective order is the cancellation of the practitioner's registration. 123The HCCC seek a period of two years before the practitioner may again seek registration. The rationale for the period of two years is said to be the seriousness of the practitioner's conduct. While we do not underestimate the seriousness of the practitioner's conduct, we are not satisfied that a period of two years would be appropriate in the circumstances of this case. In reaching this finding we are very conscious of the high evidential burden the practitioner will need to satisfy to again become registered. We have also taken into account the practitioner's long standing history without complaint, her desire to remain in the profession, and her current financial circumstances. 124The practitioner should have a period of time in which she can quietly reflect on the Tribunal's substantial findings. She may gain benefit by engaging in an on-line program dealing with ethical obligations of a professional before seeking re-instatement to the register. We are satisfied that a period of one year properly takes into account the competing factors relevant to the period during which the practitioner is precluded from practising and reapplying for registration.

[25]

Relevant principles 127The relevant principles to be applied in respect of costs applications in disciplinary proceedings are subject of well established appellate authority including the decision of the NSW Court of Appeal in Ohn v Walton (1995) 36 NSWLR 77. The decisions emphasise the discretionary nature of a decision to award costs, and the fact that the discretion must be exercised judicially. 128The principles were summarised by reference to authority in Health Care Commission v Cieslak [2013] NSWNMT23 as follows: The principles to be applied in determining whether to award costs pursuant to a statutory power such as found in the National Law are well established. They are set out in a number of leading cases and are summarised comprehensively in the judgment of Kirby J in Oshlack v Richmond River Council (1998) 193 CLR 72 at [134]. In summary: a) normally in disciplinary proceedings, as in other civil litigation, costs should follow the event unless the circumstances of the case require, in the exercise of discretion, not to do so (see Ohn v Walton (1995) 36 NSWLR 77). This position is frequently referred to as "the usual rule" or "traditional rule" in respect of costs; b) an award of costs is to compensate, in the form of a partial indemnity, the person in whose favour it is made not to punish the person ordered to pay costs; c) the onus is normally on the "losing" or unsuccessful party to establish any departure from the "usual" rule; d) the discretion to depart from the "usual" rule is unfettered, but must be exercised judicially (see Oshlack; Williams v Lever (1974) 2 NSWLR 91 at 95); and e) generally the presumption the "usual" rule applies will only be displaced where there has been some sort of disentitling conduct on the part of the successful party (see Oshlack; Arian v Nguyen [2001] NSWCA 5 at 36). 129The recent decision of HCCC v Philipiah [2013] NSWCA 342 at [42-45] succinctly re-affirms the relevant principles as follows: The discretion to be exercised in the award of costs is one to be exercised judicially... As noted in the HCCC's submissions, unlike earlier legislation, the statutory provision in respect of costs in the National Law does not include a restriction on making a costs order unless there are special circumstances. Rather, the authorities now direct the Tribunal to generally order that costs should "follow the event" unless there are disqualifying circumstances from making an order in favour of the party seeking costs. Hardship of the losing party is not a relevant consideration. However, disqualifying factors may include matters such as the failure of the HCCC to establish professional misconduct if alleged in a complaint, to establish all the particulars of the complaint, or if the HCCC conducts proceedings in an oppressive manner, including taking procedural steps which unnecessarily increase the expense of the hearing. An early admission of a complaint may invoke the discretion (see Health Care Complaints Commission v Rolleston [2013] NSWMT 12).

Health Care Complaints Commission v Fraser

At a glance

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Judgment (29 paragraphs)

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Legislation Cited (1)

Cases Cited (12)

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