Health Care Complaints Commission v Gahan [2021] NSWCATOD 40 | Case summary

Health Care Complaints Commission v Gahan [2021] NSWCATOD 40 | Case summary | Zoe

Complaint

These proceedings concern a Complaint brought by the Director of Proceedings of the Health Care Complaints Commission against Ms Sarah Louise Gahan pursuant to s 90B(1) of the Health Care Complaints Act 1993 (NSW).
Ms Gahan is a registered nurse. Her registration is currently subject to a condition that she not work as a registered nurse until reviewed by the Nursing and Midwifery Council of New South Wales (the Council) (the Practice Condition).
The Complaint was filed on 25 September 2020 and was amended at the hearing.
While the amendments were minor, principally correcting dates and omitting some particulars, and even though Ms Gahan had admitted all the complaints (save for the complaint of impairment), we thought it appropriate to allow Ms Gahan a further period in which to make submissions and decide whether she wished to attend the hearing.
No submissions were received by Ms Gahan.
The Amended Complaint is attached to these reasons. In summary: 1. Complaint One is brought pursuant to s 144(a) of the National Law and alleges that Ms Gahan has been convicted of criminal offences. 2. Complaint Two is brought pursuant to s 144(b) of the National Law and alleges that Ms Gahan is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law, which includes: A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. 1. Complaint Three is brought pursuant to s 144(b) of the National Law and alleges that Ms Gahan is guilty of unsatisfactory professional conduct within the meaning s 139B(1)(l), namely "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession." 2. Complaint Four is also brought pursuant to s 144(b) but alleges that, by virtue of the conduct underlying Complaints Two and Three, Ms Gahan is also guilty of professional misconduct as defined in s 139E of National Law. 3. Complaint Five is brought pursuant to s 144(d) of the National Law and alleges that Ms Gahan has an impairment within the meaning of s 5 of the National Law, namely a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect her capacity to practise nursing.

[7]

General - education and employment

In 1988, Ms Gahan completed her Diploma of Applied Science - Nursing at the Australian Catholic College.
On 30 December 1988 Ms Gahan was first registered as a nurse and commenced working in 1989.
From 20 February 1989 until 18 December 1994, Ms Gahan worked as a registered nurse in the Central Coast Local Health District (CCLHD). During that employment, in 1993, Ms Gahan completed a traineeship in midwifery and obtained a Certificate in Midwifery.
Ms Gahan was married in November 1993. From about 1994, she worked as a practice manager in general medical practices she operated with her then husband, who was a medical practitioner. The role included receptionist duties, book-keeping, accounting, ante-natal and post-natal care, general nursing, triaging patients, and health assessments in the community.
In 2007, Ms Gahan's marriage broke down and she ceased working with her husband.
In 2007, after leaving her former role, Ms Gahan worked as a registered nurse at a medical practice in Umina.
From 2008 to 2010, Ms Gahan worked as a registered nurse for a recruitment agency at various locations in Sydney and on the Central Coast, including private hospitals and aged care facilities.
From November 2010 until 28 September 2012, Ms Gahan was employed as a registered nurse at Chamberlain Gardens, an aged care facility in Wyoming, NSW, operated by Christadelphian Aged Care (Christadelphian).
Ms Gahan subsequently resigned following allegations of misconduct, including that she had engaged in illicit drug use with a colleague and misappropriated Schedule 8 drugs for her own use. Ms Gahan denied those allegations.
From 15 April 2013 to 15 September 2017, Ms Gahan worked as a registered nurse at Gosford Hospital. Her employment was terminated following a notification received from the Office of the Children's Guardian that Ms Gahan did not have a valid Working with Children Check.
From 4 September 2018 to 17 January 2019, Ms Gahan was employed as a registered nurse at Bethshan Gardens, an aged care facility in Wyee that was, at the time, operated by Bethshan Ministries Limited (Bethshan).

[16]

Relevant law

It is appropriate to set out the relevant provisions of the National Law. These are as follows.
Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and (b) the registration of students undertaking - (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3A of the National Law (which is an additional provision for NSW) which provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note - This section is an additional New South Wales provision.
A "NSW provision" is defined in s 5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note - This definition is an additional New South Wales provision.
Section 139B of the National Law (which is an additional provision for NSW) which relevantly provides: 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 - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E of the National Law (which is an additional provision for NSW) which provides: 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.

[17]

Relevant principles

As the Tribunal stated in Health Care Complaints Commission v Akhurst [2016] NSWCATOD 70 at [101], the relevant principles to be applied include the following: "(1) The disciplinary powers of the Tribunal are set out in s 149 of the National Law. The Tribunal has a range of powers which appear in ss 149A and 149B; (2) The paramount consideration in proceedings such as this is to protect the public: s 3A of the National Law; Re Dr Parajuli [2010] NSWMT 3 at [31]; (3) The jurisdiction of the Tribunal is protective in nature, and not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; (4) In the exercise of protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the chiropractic profession, the preservation of public confidence in the chiropractic profession and the protection of the community: Gayed v Walton [1997] NSWSC 279 [sic]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113]. (5) The purpose of the proceedings include the need to deter others from engaging in similar conduct: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]: … it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services."

[19]

Complaint Two

In determining whether or not Complaint Two is established, there is a threshold question to consider. Quite properly, the Commission brought the following issue to the attention of the Tribunal.
In the Complaint as initially filed, the Commission pleaded that the failure of Ms Gahan to notify the Nursing and Midwifery Board of Australia (the Board) of her conviction in April 2010 (Particular 5) was a breach of the National Law. The Commission now considers that allegation to be erroneous because it has identified a legal issue concerning alleging a breach of the Nurses and Midwives Act 1991 (NSW) (repealed) as a breach of the National Law, as discussed below.
In Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151, the Tribunal held that breaches of reporting obligations under the Nurses and Midwives Act could be brought as contraventions of the National Law, by the application of cl 30 of the Health Practitioner Regulation National Law Regulation (NSW) (the Regulation), which clause has now expired.
That provision read as follows: 30 Notifications made to National Agency after commencement (1) This clause applies if - (a) the National Agency receives a notification about a registered health practitioner or student; and (b) the subject matter of the notification happened while the practitioner or student was registered in a health profession under a corresponding prior Act. (2) Proceedings may be taken under Part 8 of the Law in relation to the registered health practitioner's or student's behaviour while registered under the corresponding prior Act as if the person were registered under the Law by the National Board established for the health profession. (3) However, subclause (2) applies only to the extent - (a) a notification about the registered health practitioner's or student's behaviour could have been made under the corresponding prior Act; and (b) proceedings of that type could have been taken under the corresponding prior Act.
That clause was a savings and transitional provision within the meaning of s 305 of the National Law, which provides: 305 Savings and transitional regulations (1) The regulations may contain provisions (savings and transitional provisions) of a savings or transitional nature - (a) consequent on the enactment of this Law in a participating jurisdiction; or (b) to otherwise allow or facilitate the change from the operation of a law of the participating jurisdiction relating to health practitioners to the operation of this Law. (2) Savings and transitional provisions may have retrospective operation to a day not earlier than the participation day for that participating jurisdiction.
However, s 305 and any savings and transitional provisions (including cl 30 of the Regulation) expired on 30 June 2015: see s 305(3) of the National Law.
The Commission submits that as both s 305 and the Regulation no longer have effect, there appears to be a lacuna in the National Law regarding breaches of legislation in force before 1 July 2010.
To fill this lacuna, the Commission submits that it is open for the Tribunal to find that the conduct in Particulars 1 to 5 of Complaint Two can be brought as a breach of the National Law, on the basis of the following provisions of the National Law: 1. Clause 7 of Schedule 7 which provides: 7 Interpretation best achieving Law's purpose (1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation. (2) Subclause (1) applies whether or not the purpose is expressly stated in this Law. 1. Clause 34 of Schedule 7 which relevantly states: 34 Saving of operation of repealed Law provisions (1) The repeal, amendment or expiry of a provision of this Law does not - (a) revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or (b) affect the previous operation of the provision or anything suffered, done or begun under the provision; or (c) affect a right, privilege or liability acquired, accrued or incurred under the provision; or (d) affect a penalty incurred in relation to an offence arising under the provision; or (e) affect an investigation, proceeding or remedy in relation to such a right, privilege, liability or penalty. (2) Any such penalty may be imposed and enforced, and any such investigation, proceeding or remedy may be begun, continued or enforced, as if the provision had not been repealed or amended or had not expired.
The Commission submits that, if the Tribunal does not accept this interpretation and approach, the Commission also alleges that Ms Gahan's conduct was improper or unethical conduct and thus unsatisfactory professional conduct, within the meaning of s 139B(1)(l) of the National Law.
We do not think that cll 7 and 34, either individually or in combination, can work to give the effect sought by the Commission. Clause 7 is an aid to interpretation, but does not work, as it were, to revive the operation of an expired legislative provision or regulation. And we do not consider that cl 34 is applicable to this situation.
However, we accept the Commission's submission that Ms Gahan's conduct under this complaint could otherwise amount to improper or unethical conduct and therefore constitute unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law.
In Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 the Tribunal considered s 139B(1)(l) and confirmed at [31] that it applies to conduct not falling within s 139B(1)(a)-(k). The Tribunal considered the terms "improper" and "unethical" and stated at [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])."
Ms Gahan has admitted Complaint Two. Independently, the Tribunal is satisfied on its factual findings above that this Complaint is established, on the basis that the conduct under this complaint amounts to improper or unethical conduct.

[20]

Complaint Three

Complaint Three is that Ms Gahan is guilty of unsatisfactory professional conduct.
The definition of unsatisfactory professional conduct has been set out above. The Commission submits that the conduct underlying Complaints Two and Three both amount to unsatisfactory professional conduct.
The conduct underlying Complaint Two relates to the failure of Ms Gahan to notify the Board of her various convictions in the period from 2007 to 2010, her failure to declare "sex/violence criminal findings" in her annual return, and her failure to declare significant illnesses from 2007 to 2009.
The Commission submits, and the Tribunal accepts, that: 1. contraventions of reporting provisions amounts to unsatisfactory professional conduct and need only be proved in fact to be established: Health Care Complaints Commission v Kauser [2020] NSWCATOD 42; 2. conduct which breaches professional standards can be considered improper or unethical: R v Byrnes (1995) 183 CLR 501.
In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 the Tribunal stated at [26]: "… 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."
In the circumstances, the Commission submits that the Tribunal should find that Ms Gahan is guilty of unsatisfactory professional conduct by reason of the conduct particularised under Complaint Two.
The Tribunal is satisfied that Ms Gahan's conduct the subject of Complaint Two is a clear departure from relevant standards as: 1. the provision of the false Police Check to Christadelphian was in direct contravention of Conduct Statements 9 and 10 of the Board's "Code of Professional Conduct for Nurses in Australia" dated August 2008; and 2. providing misleading information and the false Police Check to Bethshan, was a contravention of both Principle 1.2 of the Board's "Code of conduct for nurses" effective 1 March 2018 and Element 2 of the International Council of Nurses' "Code of Ethics for Nurses"; and 3. withholding information from the Council was also a breach of Principle 4 of the Board's "Code of conduct for nurses", the underlying value of which is that "Nurses embody integrity, honesty, respect and compassion."
Similarly, the Commission also submits that the Tribunal should find that Ms Gahan is guilty of unsatisfactory professional conduct by reason of the conduct particularised under Complaint Three. This is in relation to Ms Gahan's conduct in obtaining employment at Christadelphian and Bethshan.
We agree and find that this conduct clearly amounts to unsatisfactory professional conduct.

[24]

Other evidence of Ms Gahan's impairment within the Commission documents

Here the Commission relies on various documents and information including: 1. Employment records from the Christadelphian personnel file revealing: 1. an allegation from colleagues that Ms Gahan called them at work while drunk on 6 April 2011; and 2. a notice from Christadelphian to attend a compulsory interview dated 21 September 2012, following allegations of misconduct, including that Ms Gahan engaged in illicit drug use with a colleague and misappropriated Schedule 8 drugs for her own use. (As this last matter has been specifically denied by Ms Gahan we place little weight on it). 1. Ms Gahan's CCLHD personnel file which contains the following relevant information: 1. an allegation from a colleague that Ms Gahan was drunk at work on 8 March 2015; 2. a letter from CCLHD to Ms Gahan on 22 April 2016, confirming that Ms Gahan had agreed to a reduced shift pattern to manage her health; and 3. a CCLHD recommendation for termination form dated 19 September 2017, outlining Ms Gahan's response to an allegation of misconduct regarding her lack of a valid Working With Children Check. Ms Gahan is said to have provided information regarding "health conditions (alcoholism, anxiety, depression and bipolar) and evidence that the health conditions were being managed"; 1. Medicare records: 1. Ms Gahan's prescription history indicates that she has had: 1. 96 prescriptions for sertraline (an anti-depressant) from 13 August 2008 to 7 February 2020; 2. 96 prescriptions for lamotrigine (a drug used to treat seizures and Bipolar Disorder) from 18 January 2013 to 7 February 2020; 3. 10 prescriptions for diazepam (a Schedule 4 drug which can be used to treat anxiety, seizures and alcohol withdrawal syndrome) from 1 September 2008 to 14 February 2019; and 4. prescriptions for naltrexone from 31 August 2009 to 23 December 2010, 18 to 25 October 2012 and 15 September 2014; 1. Ms Gahan's appointment history shows that Ms Gahan had 76 consultations for mental health plan purposes from 13 March 2008 to 22 August 2013. 1. Medical records. The Commission submits that Ms Gahan's medical records from her treating general practitioner and psychologist in the period 2007 to 2019 detail a long history of impairment. These are too lengthy to set out in these reasons, but are amply particularised in the Commission's submissions and are corroborated in the evidence before the Tribunal; 2. Court records. Here the Commission relies on the fact that Ms Gahan: 1. was subject to bonds requiring her to undergo counselling and also treatment for misuse of alcohol; 2. had charges in both 2008 and 2019 (related to the Bethshan Police Check) dismissed under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). During the latter proceedings, Ms Gahan's solicitor advised the Local Court that she had had naltrexone implants inserted on 14 February 2019.

[26]

Consideration of Dr Samuels' report

We think it appropriate to set out Dr Samuels' opinion in more detail, noting that that it is the only expert opinion before the Tribunal. Having extensively set out Ms Gahan's psychosocial history, developmental history, employment history, medical history, psychiatric and drug and alcohol history, Dr Samuels then stated his opinion as follows: "142. Ms Gahan is a 52 year old Registered Nurse with a history of anxiety, depression, probable personality instability as well as alcohol use. She became very depressed, anxious, over emotional, aggressive and engaged in acts of self-harm during the three years of her family law settlement. This resulted in a lot of contact with the police and in fact, a 3-week period in custody. Her behaviour seemed to settle after that, although she has continued to drink alcohol excessively and she has had ongoing issues with depression and anxiety. She has also had some physical health problems in terms of epilepsy and Crohn's disease. 143. Mrs Gahan started a new job towards the end of 2018 and did not want to bring up the issue of her criminal past or go through the events with her new employers, so she falsified a document which she now regrets. This led to Mrs Gahan being terminated, facing further criminal charges and being reported to AHPRA and having her nursing registration suspended. 144. The court matters were finalised a few months ago and Mrs Gahan was discharged on a Section 32 with the only condition being treatment with her treating psychologist. 145. Mrs Gahan was drinking alcohol until February this year but now has a Naltrexone implant and has stopped drinking but she is not under the care of a drug and alcohol specialist. She seems to have formed a good relationship with her psychologist, Renee Napier, who was involved with Mrs Gahan through all the family court matters. Mrs Gahan also has a very close relationship with her GP, Dr Janet Drewitt-Smith, whom she sees regularly. She is no longer seeing a psychiatrist. 146. Mrs Gahan seems to have repaired the relationships with her children, she has a good relationship with her parents and extended family. On mental status examination, she remains quite emotional, anxious and reports ongoing sleep disturbance with dreams about her ex-husband. She acknowledged that she becomes particularly anxious and emotional when thinking about these issues. My impression is that her mental state is reasonably well controlled on the current medication regime which is Sertraline 200 mg and Lamotrigine 150 mg twice a day."
As the Commission notes, Dr Samuels then states that Ms Gahan suffers from an impairment within the meaning of s 5 of the National Law, in that she has:

a mood and anxiety disorder;
a problem of alcohol abuse which seems to be in remission while Ms Gahan is on Naltrexone; and
underlying personality vulnerabilities with some borderline personality features.

On the basis that Ms Gahan does have an impairment, Dr Samuels is then asked to provide an opinion about the manner and extent to which the impairment detrimentally affects or is likely to detrimentally affect Ms Gahan's capacity to practise nursing safely. In response Dr Samuels states that: "If her mood or anxiety symptoms deteriorated or she became emotionally dysregulated, this certainly could have an impact on her abilities to practise nursing safely. In addition, if she had a relapse of her Alcohol Use Disorder, this could similarly impact upon her capacity to practise nursing safely."
Dr Samuels is then asked to comment on Ms Gahan's response to and compliance with her treatment as evidenced by the available clinical information. In response Dr Samuels states that: "She seems to be well engaged with her GP and treating psychologist. She is taking mood stabilising and antidepressant medication. She is also on a Naltrexone implant. I am concerned that she is not under the care of a Drug & Alcohol specialist. The Naltrexone implant with run out in time and a decision will need to be made in regard to maintenance treatment."
Dr Samuels then provides his opinion on Ms Gahan's competence to practise nursing as follows: "It is my view that RN Gahan does have sufficient mental capacity to practise nursing as long as she takes her medication as prescribed, remains engaged with her treating psychologist and general practitioner and as long as she remains abstinent from alcohol and compliant with drug and alcohol treatment. It is my view that RN Gahan should also be under the care of a Drug & Alcohol specialist, given that she is on a Naltrexone implant and some decisions will need to be made in the future about what other types of anti-craving medication may be required."

[29]

The Commission's submissions

The Commission submits that Ms Gahan's registration should be cancelled and that she should be ordered not to make any application for a review of that cancellation for a minimum period of one year from the date of these reasons.
In summary, the Commission submits that cancellation of Ms Gahan's registration is required for the following reasons: 1. the gravity of Ms Gahan's conduct; 2. the need to protect the public; 3. the need to maintain high standards in the profession; 4. the need for specific and general deterrence; and 5. the risk that Ms Gahan poses to the health of members of the public.
Whether the degree of 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], and requires an assessment of the conduct itself as well as any remorse or insight shown by the practitioner: Health Care Complaints Commission v King [2013] NSWMT 9.
Where there is a finding of professional misconduct the Tribunal has a wide discretion, and the gravity of the impugned conduct 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 at 638.
We accept the Commission's submission that the seriousness of conduct engaged in by Ms Gahan in Complaint Two has repeatedly been recognised by the Tribunal. In Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25, the Tribunal noted at [72] that: "[I]t is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at paragraph 81."
We accept the Commission's submission that the improper and unethical conduct in Complaint Three is also extremely serious - deliberately falsifying a legal document to mislead an employer is a complete departure from proper ethical standards of the profession but also undermines the important role that documents such as a Police Check play in ensuring public safety.
We consider the orders sought by the Commission are justified. While we accept Ms Gahan's remorse, the gravity of her conduct and the length of time during which it was carried out inevitably point to cancellation of her registration. While there may not be a particular need for specific deterrence in this case, there remains nonetheless 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.

[32]

ATTACHMENT "A" The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Ms Sarah Louise Gahan ("the practitioner"), being a nurse registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as a nurse on 30 December 1988. The practitioner was married in 1993 and remained in that domestic relationship until 2007. Between 3 July 2007 and 12 March 2013, the practitioner was charged with and/or convicted of a number of offences arising out of the misuse of alcohol and the breakdown of that domestic relationship. COMPLAINT ONE Pursuant to section 144(a) of the National Law, the practitioner was convicted of criminal offences in New South Wales. PARTICULARS OF COMPLAINT ONE

On 3 July 2007, in the Local Court of New South Wales at Gosford, the practitioner was convicted of the following offences: a. two offences of 'common assault' under section 61 of the Crimes Act 1900; b. one offence of 'knowingly contravene a prohibition or restriction specified in an order' (being an 'interim apprehended violence order') under section 562ZG(1) of the Crimes Act 1900.
On 17 July 2007, in the Local Court of New South Wales at Gosford, the practitioner was convicted of the offence of 'drive with mid-range prescribed concentration of alcohol' under section 9(3)(a) of the Road Transport (Safety and Traffic Management) Act 1999.
On 14 January 2008, in the Local Court of New South Wales at Gosford, the practitioner was convicted of the offence of 'knowingly contravene a prohibition or restriction in an apprehended domestic violence order' under section 562ZG(1) of the Crimes Act 1900.
On 15 June 2009, in the Local Court of New South Wales at Gosford, the practitioner was convicted of the offence of 'knowingly contravene a prohibition or restriction in an apprehended domestic violence order' under section 14(1) of the Crimes (Domestic and Personal Violence) Act 1900.
On 23 April 2010, in the Local Court of New South Wales at Gosford, the practitioner was convicted of the offence of 'knowingly contravene a prohibition or restriction in an apprehended domestic violence order' under section 14(1) of the Crimes (Domestic and Personal Violence) Act 1900.
On 12 March 2013, in the Local Court of New South Wales at Gosford, the practitioner was convicted of the following offences: a. 'knowingly contravene a prohibition or restriction in an apprehended domestic violence order' under section 14(1) of the Crimes (Domestic and Personal Violence) Act 1900; b. 'stalk or intimidate with the intention of causing a person to fear physical or mental harm' under section 13(1) of the Crimes (Domestic and Personal Violence) Act 1900. COMPLAINT TWO The practitioner contravened provisions of the Nursing and Midwives Act 1991 and National Law and/or acted improperly or unethically, and is guilty of unsatisfactory professional conduct pursuant to sections 139B(1)(b) and/or 139B(1)(l), and 144(b) of the National Law. BACKGROUND TO COMPLAINT TWO From 1995 to 2007, the practitioner worked as practice manager in medical practices owned by her former partner in Killcare and Ettalong, New South Wales. The practitioner's role also included general nursing duties. In 2007, after leaving her former role, the practitioner worked as a registered nurse at a medical practice in Umina, New South Wales. From 2008 to 2010, the practitioner worked as registered nurse for a recruitment agency at various locations in Sydney and on the Central Coast, including private hospitals and aged care facilities. From 2010 to 2012, the practitioner worked as a registered nurse at Chamberlain Gardens aged care facility ('Chamberlain Gardens') in Wyoming, New South Wales. From April 2013 to September 2017, the practitioner worked as a registered nurse at Gosford Hospital, New South Wales. From August 2018 to January 2019, the practitioner worked as a registered nurse at Bethsan Gardens aged care facility ('Bethsan Gardens') in Wyee, NSW. PARTICULARS OF COMPLAINT TWO Failure to notify of convictions from 2007 to 2010
Between 3 July 2007 and 23 April 2010, the practitioner contravened section 42B(1)(a) of the Nurses and Midwives Act 1991 in that she failed to notify the Nurses and Midwives Board ('the Board') in writing within 7 days after being convicted of the offences at Particulars 3, 4 and 5 of Complaint One. Failure to declare convictions from 2007 to 2009
The practitioner contravened section 42A(1)(a) of the Nurses and Midwives Act 1991 in that she failed to declare in her annual return to the Board details of relevant convictions and penalties for the offences at Particulars 1, 3 and 4 of Complaint One on the following dates: a. 18 September 2007; b. 17 November 2008; c. 18 November 2009. Failure to declare sex/violence criminal findings
On 18 September 2007, the practitioner contravened section 42A(1)(b) of the Nurses and Midwives Act 1991 in that she failed to declare in her annual return to the Board details of violence criminal findings made against her, being the convictions and penalties for the offences set out at Particular 1a of Complaint One. Failure to declare significant illness from 2007 to 2009
The practitioner contravened section 42A(1)(f) of the Nurses and Midwives Act 1991 in that she failed to declare details of a significant mental illness that may reasonably be thought likely to detrimentally affect her physical or mental capacity to practice nursing, namely Alcohol Use Disorder, on the following dates: a. 18 September 2007; b. 17 November 2008; c. 18 November 2009. Failure to notify under the National Law
The practitioner contravened section 130(1)(i) of the National Law in that she failed to notify the National Board in writing within 7 days of being charged with offences punishable by 12 months imprisonment or more, namely: a. the offence at Particular 6 of Complaint One; b. the offence of 'make false document to obtain financial advantage' under section 235(B)(Ii) of the Crimes Act 1900, for which she was charged on 2 February 2019.
The practitioner contravened section 130(1)(ii) of the National Law in that she failed to notify the National Board in writing within 7 days of being convicted of offences punishable by 12 months imprisonment or more on the date of conviction, namely: a. the offence at Particular 6 of Complaint One. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under s139B(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. BACKGROUND TO COMPLAINT THREE The background to Complaint Two is repeated. The practitioner first worked at Chamberlain Gardens at the beginning of November 2010 through an employment agency. The facility is run by Christadelphian Aged Care ('Christadelphian'). On 8 December 2010, the practitioner attended an interview for employment directly with Christadelphian and provided a National Police Certificate. The practitioner signed a formal offer of employment with Christadelphian on 20 December 2010 and resigned on 28 September 2012. The practitioner applied to work at Bethsan Gardens on 15 August 2018. The facility is run by Bethsan Ministries Limited ('Bethsan'). As part of the application process, the practitioner provided a National Police Certificate to Bethsan. The practitioner commenced work at Bethsan Gardens on 4 September 2018 and her employment was terminated on 17 January 2019 following the practitioner's admission that she had provided a false National Police Certificate to Bethsan. PARTICULARS OF COMPLAINT THREE Obtaining employment at Christadelphian
On 8 December 2010, the practitioner acted contrary to Conduct Statements 9 and 10 of the National Board's Code of Professional Conduct for Nurses dated August 2008, in that the practitioner provided a National Police Certificate, dated 7 May 2010 with reference number CRC-I-2008-15327, to Christadelphian for the purpose of obtaining employment as a registered nurse, in circumstances where the practitioner deliberately altered the information on the certificate to conceal details of criminal convictions. Obtaining employment at Bethsan
On 15 August 2018, the practitioner acted contrary to Principles 1.2 and 10 of the National Board's Code of Professional Conduct for Nurses effective 1 March 2018 and Element 2 of the International Council of Nurses' Code of Ethics for Nurses, in that the practitioner made a false and/or misleading statement to Bethsan Gardens for the purpose of obtaining employment as a registered nurse, namely that the practitioner signed a 'Staff Application Form' and answered "No" to a question that asked whether she had been the subject of criminal convictions or findings of guilt (other than pardoned, quashed or spent convictions).
Between 15 and 17 August 2018, the practitioner acted contrary to Principles 1.2 and 10 of the National Board's Code of Professional Conduct for Nurses effective 1 March 2018 and Element 2 of the International Council of Nurses' Code of Ethics for Nurses, in that the practitioner provided a National Police Certificate, with reference number CRC-I-2008-15327 and dated 22 June 2017, to Bethsan for the purpose of obtaining employment as a registered nurse, in circumstances where the practitioner deliberately altered the information on the certificate to conceal details of criminal convictions. Provision of information to the Council
Between 30 January 2019 and 14 February 2019, the practitioner failed to disclose to the Nursing and Midwifery Council of New South Wales ('the Council') prior to section 150 proceedings that she had provided a false National Police Certificate to Christadelphian on 8 December 2010. COMPLAINT FOUR The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration BACKGROUND TO COMPLAINT FOUR The background to Complaints Two and Three is relied upon and repeated. PARTICULARS OF COMPLAINT FOUR
Complaints Two and Three and the particulars thereof are repeated and relied upon cumulatively. COMPLAINT FIVE Pursuant to section 144(d) of the National Law, the practitioner has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of nursing. BACKGROUND TO COMPLAINT FIVE In October 2019, the practitioner was referred by the Council for assessment with Council Appointed Psychiatrist Dr Anthony Samuels. PARTICULARS OF COMPLAINT FIVE
The practitioner suffers from an impairment, namely: a. a mood and anxiety disorder; and b. Alcohol Use Disorder.

Health Care Complaints Commission v Gahan

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Judgment (34 paragraphs)

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Legislation Cited (7)

Cases Cited (23)