In a Stage 1 decision of this Tribunal Ms Gallard was found liable for professional misconduct in relation to complaints concerning her administration and handling of Schedule 8 drugs which occurred in a number of incidents in two different hospitals, over a three-year period. The facts and reasons are set out in Health Care Complaints Commission v Gallard [2017] NSWCATOD 169 and will not be repeated here.
The Tribunal also determined that Ms Gallard suffers from an impairment within the meaning of the Health Practitioner Regulation National Law ('National Law') by virtue of her long-standing use of Oxycontin under prescription for chronic pain.
The Tribunal must now determine the appropriate protective orders in this Stage 2 decision.
[2]
Relevant Law
The jurisdiction exercised in making orders is often referred to as 'protective', not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.
The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].
Having made a finding of professional misconduct, the powers available to the Tribunal include the power to suspend or cancel the registration of the practitioner: s149C(1)(b) of the National Law.
There is no requirement under the National Law that there must be a finding of 'probable permanent unfitness' to practise of a health practitioner in order to justify cancellation of registration: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [56]-[76].
Whether the gravity of the misconduct is such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
The predominant consideration is the protection of the public. Protective orders must be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34]. In determining the appropriate order the Tribunal is required to consider the whole of the practitioner's conduct: Gad v Health Care Complaints Commission [2002] NSWCA 111 at [55].
While the Tribunal has a discretion to make a costs order in respect to proceedings before it, that discretion is not unfettered and is to be guided by the relevant legal principles. Costs are for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85].
[3]
Submissions
The Health Care Complaints Commission ('HCCC') sought an order cancelling the practitioner's registration and a further order that Ms Gallard not be permitted to seek review of that order for a period of 18 months. The HCCC also sought costs.
Ms Tronson for the HCCC submitted that the orders sought were required by virtue of the gravity of the professional misconduct, which included an incident of misappropriation of OxyContin in addition to long-standing issues in Ms Gallard's handling and administration of Schedule 8 medications.
Ms Tronson also drew attention to the Tribunal's Stage 1 findings concerning Ms Gallard's impairment, her lack of insight into that impairment and the limited steps which she had taken at the time of the Stage 1 hearing to address it.
While the impairment cannot, as a matter of law, justify cancellation of the practitioner's registration, Ms Tronson argued that it was relevant to an assessment of the appropriate orders because of its interrelationship with the misconduct.
At Stage 1 the Tribunal held at [161]:
… Ms Gallard's dependence poses a risk to patients in two respects: through the physical effect of supressed responsivity and alertness in terms of clinical decision-making and functions; and through the psychological impact on her attitude to analgesia and in particular opioids, in patient care.
The HCCC submission was that the findings of the Tribunal must lead to the conclusion that Ms Gallard was, at the time of the conduct practising in a manner which gave rise to an unacceptable risk to public health and safety.
At Stage 1 Ms Gallard had demonstrated a slight and very recent reduction in her usage of OxyContin. In the absence of any more up to date evidence as to Ms Gallard's current usage or submissions or evidence as to her future treatment plans, the Tribunal could not be satisfied that she had taken any further steps to reduce her dependence upon OxyContin, or to reflect upon the impact that this dependence had upon her professional practise.
A period of suspension would be inappropriate. Suspension may be appropriate in a case where the Tribunal is of the view that any risk posed by the practitioner is likely to be resolved by within a fairly definitive period of time, for example, by completion of a course or a course of treatment. The Tribunal could not be so satisfied in this case because there is no evidence of any such course and due to Ms Gallard's lack of insight and remorse, and her demonstrated inability to effect change over a prolonged period prior to the Stage 1 hearing.
Cancellation is the appropriate order, and the onus will be upon Ms Gallard to demonstrate the relevant changes upon application for review. The Commission identified 18 months as the appropriate non-review period on the basis that it would allow Ms Gallard time to take steps in accordance with medical advice to wean herself off opioid medication and also allow her to take steps to demonstrate relevant changes in her attitude and approach to analgesia following the completion of the weaning process.
Conditions would also be insufficient. First, even combined with a reprimand, the imposition of conditions would not sufficiently denounce the conduct in question. Secondly, given the nature of the work of a midwife, conditions are likely to mean that Ms Gallard would find it difficult, and perhaps impossible, to find a job. Thus it is likely that, even if conditions could be crafted which would meet the Tribunal's protective obligations, the practical effect is that Ms Gallard could not work as a midwife, and possibly not as a nurse.
Although she did not appear and was not represented at Stage 2, Ms Gallard made brief written submission on her own behalf.
Ms Gallard drew attention to the fact that the February 2015 conditions which were placed upon her registration effectively precluded her from obtaining employment as either a nurse or midwife, such that at the time of the Stage 2 hearing she had not worked in her registered professions for over 3 years.
Ms Gallard submitted that evidence of her CPD activities tendered at Stage 1 demonstrated her continued and proactive commitment to professional development, including in the area of medication administration.
Ms Gallard objected to the HCCC submission that her lack of appearance at Stage 2 indicated a lack of remorse or insight.
Further, Ms Gallard drew attention to three character references which had also been tendered at Stage 1. These references, two from fellow midwives and one from her current employer, attest to her intelligence, professionalism and integrity. The references from the midwives in particular point to Ms Gallard's skills as a 'dedicated and caring' midwife and 'a great advocate and supporter of midwifery patients.'
Ms Gallard submitted that a shorter period of cancellation was warranted, taking into account the time she had already spent out of her profession, and she submitted 12 months as more appropriate.
In oral submissions Ms Tronson amended her approach in light of Ms Gallard's written submissions. Ms Tronson accepted that Ms Gallard's engagement in the Stage 2 process, albeit limited, and particularly her concession that some period of cancellation of registration was warranted, did indicate some acceptance of the seriousness of the conduct.
[4]
Reasons
The findings of unprofessional conduct and professional misconduct in this matter concern events that happened between three and five years ago.
The complaints in this case all arise as a direct result of the practitioner's dependence upon, and attitude to, opioids. While findings of unprofessional conduct and impairment are completely distinct as a matter of law, they can rest upon the same factual basis. In this case the conduct and the impairment are very closely linked: we find that the practitioner's impairment, a long-term physical and psychological dependence upon a prescription drug, materially contributed to all of complained of conduct. Protective orders must take this nexus into account.
In the Stage 1 decision the Tribunal held that Ms Gallard displayed very limited insight regarding her dependence on OxyContin, the impact this had upon her professional practise, or her long-standing resistance to medical advice on this issue.
Several months passed between the Stage 1 and Stage 2 hearings. Unfortunately, no further evidence was produced at Stage 2 to demonstrate that there has been any change in Ms Gallard's use of, and approach to, OxyContin. We must therefore assume that it remains unchanged.
Given the findings of this Tribunal at Stage 1 we are forced to conclude that the practitioner is not safe to practise as long as her current dependence upon, and attitude to, opioids continues unaltered. Cancellation of registration is the only order that offers the required protection of the public in these circumstances.
It is clear from the evidence that Ms Gallard is a highly capable and intelligent nurse and midwife, with a real desire to return to her profession.
There is no power in the National Law to set conditions when a registration is cancelled. Therefore we merely encourage the practitioner to consult with a wider range of treating professionals, on a more regular and committed basis, than she has done since the time of the complaint. The evidence indicates that such assistance is necessary to enable her to finally and comprehensively address the OxyContin dependence including finding an alternate method of pain management.
We have set a period during which the practitioner may not apply for review of the cancellation order to allow her to undertake steps to address the issue of dependence and to reflect upon and remedy the detrimental impact that it has had upon her practise.
[5]
Costs
The HCCC was successful in that it proved the complaints and most of the particulars therein, and it is entitled to its costs for these proceedings.
[6]
Orders
1. Cancellation of the practitioner's registration as both a nurse and a midwife under s 149C(1)(b) of the National Law;
2. The practitioner may not apply for review of the order for 10 months from the date of the order per s 149(7) of the National Law; and
3. Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).
[7]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 01 May 2018