Health Care Complaints Commission v Haines

The Practitioner

1. The evidence led by the HCCC establishes the Practitioner was first enrolled as an Enrolled Nurse (Division 2) on 14 February 2011. On 16 September 2019, the Nursing and Midwifery Council of New South Wales (the Council) conducted proceedings under s 150 of the National Law at which there was no appearance by the Practitioner. On that date, conditions were imposed upon the Practitioner's registration and an order was made that the Practitioner not work as an enrolled nurse until reviewed by the Council. Written Reasons for that determination were delivered on 22 September 2019 and the Tribunal finds were provided to the Practitioner. [10] Subsequent review proceedings pursuant to s 150A of the National Law were scheduled to be held on 16 April 2020 but did not proceed due to the Practitioner alleging she was hospitalised. [11] Thereafter, the matter was referred to the HCCC and proceeded in the manner set out earlier in these Reasons.

The evidence relied upon by the HCCC

1. In support of its application, the HCCC relied upon the following material: 1. A volume of evidence comprising 36 tabs which became HCCC Exhibit 1; 2. A volume of evidence comprising 13 tabs which became HCCC Exhibit 2; 3. Two affidavits sworn by Commission Officer, Ms Eugena Martinkus, which became respectively, HCCC Exhibits 3 and 4.

Orders sought by the HCCC

1. In his submissions presented to the Tribunal, counsel for the HCCC, Mr Pace, referred to the relief sought by his client at [40] in those submissions. [12] The Commission was noted as seeking the cancellation of the Practitioner's registration. That relief was expressed as being pursuant to ss 149C(1)(c) and 149C(7) of the National Law. In addition, an order for costs was sought on the Commission's behalf. However, the Evidentiary Certificate provided by Ahpra dated 31 January 2022, [13] noted that the Practitioner was presently unregistered.
2. The fact that the Practitioner was no longer registered does not deprive the Tribunal of the power to make orders, such power being contained in s 149C(4) of the National Law which provides as follows: If the person is no longer registered, the Tribunal may - (a) Decide that if the person was still registered the Tribunal would have suspended or cancelled the person's registration; and (b) If the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) Require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept the Board.
3. In his submissions, counsel for the HCCC at [22]-[28] details the extensive steps taken by the Commission to inform the Practitioner of the matters before the Tribunal and her rights to be heard and place evidence before the Tribunal should she wish to do so. Despite being afforded that opportunity, the Practitioner has not participated in the proceedings by either personally attending or by filing any material. The Tribunal therefore finds that there is no procedural unfairness to the Practitioner in proceeding to determine the Commission's application pursuant to the provisions of s 149C(4) set out above. The Tribunal will therefore proceed to determine whether it is appropriate to make orders pursuant to ss 149C(4)(a), (b) and (c).

The structure of the Proceedings

1. These are proceedings where the Tribunal is asked first to determine whether the complaints are made out and if established the protective orders to be made in a single hearing. There is ample authority to permit the Tribunal to adopt that course. [14] In the circumstances here, that course is appropriate because: 1. The Practitioner is on notice of the complaints against her; 2. The Practitioner is on notice of the possible consequences if those complaints are established; and 3. The Practitioner has not sought to take part in the proceedings despite having ample opportunity to do so.

Relevant Law

1. These are proceedings brought pursuant Part 8 of the National Law.
2. As with all proceedings conducted under the National Law, the objectives and guiding principles in s 3 and particularly s 3A are of relevance. Section 3A provides: Objectives and Guiding Principles [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.
3. The requirement placed upon the Tribunal in making protective orders has been described in the following terms: (1) The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. (2) That is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order. [15]
4. The HCCC bears the onus of proof of each of the complaints. The Tribunal must be satisfied that the complaints agitated by the HCCC are established to the appropriate standard of proof. That standard as explained in Briginshaw [16] is discussed in many authorities and has generally been accepted to be one which requires the Tribunal to be comfortably satisfied on the balance of probabilities a complaint is established. More recently, the application of the standard of proof there discussed as it applies in the Tribunal was the subject of consideration in the NSW Supreme Court, Court of Appeal in Gautam. [17] In those proceedings, Payne JA said at [85]-[87] as follows: [85] As to ground 2, in particular ground 2(c), that the Briginshaw principle applied, the Tribunal cited Briginshaw, and expressly noted that it had to be 'comfortably satisfied' that the complaint had been established on the balance of probabilities having regard to the potential seriousness of the consequences for the appellant. I do not accept, as was submitted, that the Tribunal merely gave 'lip service' to the Briginshaw standard. [86] In written submissions before the Tribunal counsel for the appellant himself asserted that 'comfortably satisfied' was an acceptable shorthand for the applicable test. He described the test in the following way: It is submitted that in order to uphold the complaints, the Tribunal must be convinced (or at the very least comfortably satisfied) that the alleged conduct actually occurred. [87] In any event, that phrase correctly encapsulates the test and is commonly used in the context of proceedings such as the present: Kumar v Legal Services Commissioner [2015] NSWCA 161 per Leeming JA at [60] (with whom Basten JA agreed).

Complaint One

1. Complaint One asserts that the Practitioner has been convicted of a criminal offence which pursuant to s 144(a) of the National Law is a ground in respect of which complaint may be made about a health practitioner. Tabs 11 and 12 in HCCC Exhibit 2 comprise copies of a bail report with respect to the Practitioner and Court Attendance Notice including a FACT sheet. These documents establish the fact that the Practitioner was convicted of common assault (DV) on 6 August 2018 and that by way of sentence on the same date, the Local Court, Albury imposed a 12-month s 9 bond. It follows that Complaint One is established.

Complaint Two

1. Complaint Two asserts that the Practitioner is guilty of unsatisfactory professional conduct contrary to s 139B(1)(b) of the National Law. Section 139B sets out the meaning of "unsatisfactory professional conduct". Section 139B(1)(b) of the National Law provides as follows: Contravention of this Law or Regulations A contravention by a 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.
2. Tab 10 in HCCC Exhibit 2, an email from Ahpra dated 21 June 2021, states that the Tribunal accepts that the Practitioner gave no notice as required by s 130(1) of the National Law. It follows that the fact underpinning Complaint Two is established.
3. Complaints Three, Four and Five allege a breach of s 139B(1)(l) of the National Law. That section provides as follows: (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

Complaint Three

1. The evidence brought by the HCCC with respect to Complaint Three and also Complaint Four is compelling. That evidence included statements by Mr Jonathan Clark and Ms Alyce Hefferman, respectively, being the pharmacist who served the Practitioner at The Blooms Chemist, West End, and another pharmacist who was on duty at the time and witnessed the incident. [18]
2. Mr Clark gives evidence at [5] and [7] to [10] of his Statement that the Practitioner was a person known to him and that she handed him "a folded piece of paper which … appeared to be a facsimile copy of a prescription for morphine RX for an Albury and District Nursing Home patient … dated 07/08/10". Mr Clark says that he informed the Practitioner that the prescription was for a nursing home patient which would in the normal course be dealt with by their other store to which the prescription would need to be taken. The Practitioner is reported to have said, "Oh, okay." The prescription was then handed back to her.
3. Ms Heffernan in her Statement confirms being present and the evidence of her colleague, Mr Clark. Ms Heffernan says at [12] and [13] of her Statement, that the attempted transaction aroused her suspicions because "… medication orders are always faxed directly to Blooms Albury and are normally on a Japara fax header. [19] It would be highly unusual for any staff member from the nursing home to be given a prescription, especially a photocopy of that prescription." Ms Heffernan saved the pharmacy CC-TV footage of the transaction which was made available as part of the HCCC's case and viewed by the Tribunal. The incident was reported to the Practitioner's employer by pharmacist, Mr Jason Holdstock, to whom the incident had been referred by Ms Heffernan and a statement by each of the home manager and deputy home manager regarding the terms of that notification were included in the HCCC evidence. [20]
4. On 28 August 2019, the Practitioner attended an interview with her employer in relation to the incident. Tab 11 in HCCC Exhibit 1 records that meeting. In substance, the Practitioner said by way of explanation as to her having the prescription that she did not photocopy it, that it was given to her by a carer she named and on receipt she had put it in her pocket. In answer to a query as to why the prescription had been given to the Practitioner at all she, the Practitioner, explained that it had been on the floor, that she had pocketed it and apparently inadvertently placed it in her bag when leaving the premises. She went on to say that she had attended the chemist to fill a prescription of her own and when handing the subject prescription to the pharmacist, Mr Clark, had not realised that it did not have her name on it. As to her own prescriptions, the Practitioner said she had had them filled at another chemist. When asked for confirmation, the Practitioner produced to Ms Angela Clement, the home manager, scripts dated 23 August 2019 which it is noted was a date two days after the date on which the prescription in question had been presented to be filled. The Commission also provided the Tribunal with a written statement provided to it by the Practitioner in response to a request pursuant to s 28(2) of the Act. [21] In that statement, the Practitioner repeats in essence what is recorded as her explanation in her employer's note of her interview with them again characterising the incident as a "misunderstanding".
5. The evidence of the two pharmacists and the nursing home employees is unchallenged before the Tribunal. The description by the pharmacists of the Practitioner's demeanour when she endeavoured to negotiate the subject prescription is entirely consistent with the CC-TV footage. In the absence of evidence from the Practitioner, the evidence of Mr Clark and the CC-TV footage, referred to is sufficient to enable the Tribunal to find that it is comfortably satisfied that the Practitioner on 21 August 2019 attempted fraudulently to fill a prescription for Morphine ampoule 10 mg/mL issued in the name of Patient A, a patient at the facility at which she was then employed. However, if more were necessary and in light of the sixth complaint raised by the HCCC, the following matters add further weight to the conclusion reached, namely: 1. The fact that if as the Practitioner claimed it was a misunderstanding in that she handed the subject prescription to Mr Clark rather than prescriptions of her own, she gives no explanation as to why she did not then have her own prescriptions filled; 2. As Ms Hegarty points out in her Statement, the photocopy of the prescription presented by the Practitioner was not in the form sent by the nursing facility in the normal course for filling; 3. That in relation to the subject prescription if handing it to Mr Clark was a mistake, the Practitioner said nothing at the time to indicate that this was the case even when it was explained to her where she would need to go to have it filled; 4. When asked to produce evidence of her own prescriptions, the prescriptions provided post-dated the date on which she sought to have the subject prescription filled; 5. The Practitioner failed to explain why, on a day she was rostered off, she was wearing her Japara work uniform when she presented the subject prescription to be filled. [22]

Complaint Four

1. The particulars underpinning Complaint Four assert that the Practitioner failed to give a full and truthful account to her employer in their meeting with her on 28 August 2019 when she described her attempt to fill the subject prescription as a "misunderstanding". Further, it is said that on 24 February 2020 in response to a Notice sent by the HCCC pursuant to s 28(2) of the Act, the Practitioner's response was also false and misleading.
2. Save for the HCCC's Notice pursuant to s 28(2) of the Act, [23] the other documentary evidence underpinning the HCCC case has already been referred to. [24] On the basis of that evidence, the Tribunal finds that the Practitioner did fail to give a full and truthful account to her employer when questioned about the circumstances in which she sought to fill the subject prescription. In particular, that her denial that she had in fact attempted to fill it was false.
3. In relation to her response to the HCCC's s 28(2) Notice, the Tribunal is satisfied that the particulars alleged are made out. In addition to her failure to take part in the proceedings, the evidence before the Tribunal establishes that the Practitioner's written explanation is inconsistent with evidence that the Tribunal has accepted.

Complaint Five

1. Complaint Five relates to the adjournment of these proceedings when they were first fixed for hearing on 7 April 2021.
2. The evidence supporting Complaint Five of unsatisfactory professional conduct is to be found at Tabs 3 and 7 of HCCC Exhibit 2. First, the Affidavit of Ms Monique Azzopardi sworn 6 April 2021 establishes that on 25 March 2021 she telephoned and spoke to the Practitioner in relation to the hearing then fixed for 7 April 2021. Ms Azzopardi's file note at Annexure 'G' to that Affidavit records the conversation in which relevantly the Practitioner advised that she was hospitalised for depression at Nolan House in Albury. Ms Azzopardi records that when asked if she were not in hospital would she like to be part of the hearing, the Practitioner replied, "No. [I] would just like the results."
3. Tab 7 records a response dated 20 April 2021 to a Summons filed 19 April 2021 in the following terms: Ms Haines has not been admitted or discharged into Albury Base Hospital (including Nolan House) for the period 15 January 2021 up to and including 15 April 2021.
4. The Tribunal finds the facts alleged underpinning Complaint Five are established.

Conclusion as to Complaints One to Five

1. The public is entitled to expect that healthcare professionals will act honestly and truthfully in the practice of their profession. That is not only where it relates to their relationship with and treatment of their patients and in their employment relationship with their employer. It is also fundamental that honesty and truthfulness also extend to their dealings with their professional bodies, the HCCC and this Tribunal.
2. The Tribunal has found the facts particularised with respect to each of Complaints One to Five to be established. In the Tribunal's opinion, each of those matters is a serious matter and the Tribunal finds amounts in each case to unsatisfactory professional conduct.

Complaint Six

1. Complaint Six seeks a finding that the combination of the instances of unsatisfactory professional conduct alleged in Complaints One to Five either separately or in combination amount to professional misconduct as defined in s 139E of the National Law. That section permits a finding of professional misconduct where the Tribunal is satisfied either that one incident of unsatisfactory conduct is of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration or 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 registration. [25]
2. In determining whether the Practitioner's conduct amounts to professional misconduct, however, a number of principles derive from authority apply, relevantly that: 1. There is no category of unsatisfactory misconduct which is not capable of forming professional misconduct; [26] 2. The traditional common law definition of "professional misconduct" is that "which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency"; [27] 3. Professional misconduct may be made out by deliberate departure from professional standards or "such serious negligence as, although not deliberate, to portray indifference or an abuse of the privileges which accompany registration"; [28] and 4. The gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from proper standards. [29]
3. The HCCC has satisfied us that Complaint One is made out and that in relation to Complaints Two, Three, Four and Five each has been made out and the Practitioner found in each case to be guilty of unsatisfactory professional conduct. Bearing in mind that the paramount consideration for the Tribunal is the health and safety of the public, the facts underpinning each of those complaints raise matters of concern.
4. First, in relation to Complaints One and Two. The conviction for assault occasioning actual bodily harm notwithstanding that it apparently happened in a domestic situation shows a lack of the Practitioner's capacity to control herself in challenging circumstances. Challenging circumstances can on occasion occur in hospital, special needs and aged care facilities where the Practitioner was qualified to work. In this case it is important to know whether the conviction arose as a consequence of a single fact specific incident or was reflective of broader anger management issues. The failure of the Practitioner to report the charge and conviction removed the opportunity for investigation and any potential public risk to be identified and dealt with.
5. The Tribunal considers the nature of the unsatisfactory professional conduct established in Complaints Three, Four and Five to be of particular concern. For example, the facts found in establishing Complaints Three and Four include the finding that the Practitioner endeavoured fraudulently to fill a prescription for Morphine, a Class 'A' drug. In these proceedings she has chosen to give no credible explanation for her conduct. The explanation given to her employer and in writing to the HCCC has been found to be untruthful.
6. The facts found to establish Complaint Five illustrate that the Practitioner was prepared to lie to a solicitor employed by the HCCC and it follows that it misled the Tribunal. The Practitioner by her actions and explanation of them has demonstrated a disturbing lack of honesty and truthfulness in the practice of her profession. Consequently, the Tribunal has little difficulty in finding that the Practitioner is guilty of professional misconduct. The Tribunal makes that finding separately with respect to each of Complaints Three, Four and Five, and in relation to Complaints One and Two those complaints considered together.

Appropriate Protective Orders

1. As the Tribunal has noted earlier, the purpose of protective orders is to safeguard and promote the health and safety of the public. The orders are not designed to be a punishment of a practitioner but it is well-recognised that in many cases legitimately they may have that effect. [30]
2. Counsel for the HCCC in his written submissions and orally touched upon the significance of the absence of an explanation from the Practitioner. He submitted that that weighed heavily against her and the Tribunal agrees. He referred to the seriousness of the attempt by the Practitioner to use her position as an enrolled nurse to assist in her attempt to obtain a drug of addiction. The Tribunal agrees with that submission.
3. The HCCC has asked that in the event that the Practitioner's registration is cancelled, no application for review be made for a period of one year from the date of the Tribunal's decision. These are proceedings where in the Tribunal's opinion a longer period for review may have been favourably considered had it been sought. However, that is not the case here and the Tribunal has no difficulty in finding that the appropriate review period should be one year as sought.

Costs

1. The HCCC seeks an order for costs as assessed or agreed.
2. The general rule in relation to costs pursuant to Clause 13, Schedule 5D of the National Law is that costs follow the event. There is nothing before the Tribunal that suggests that that is not an appropriate situation in these proceedings. [31] An order that the Practitioner pay the costs of the HCCC in the terms sought will be made.

Orders 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation Law (NSW) if Hellen Wasai Haines (the Practitioner) was still registered, the Tribunal would have cancelled her registration. 2. Pursuant to s 149C(4)(b) of the National Law, the Practitioner is disqualified from being registered as a nurse for a period of one year from the date of this Order. 3. Pursuant to s 149C(4)(c) of the National Law, the Nursing and Midwifery Board of Australia of the Nursing and Midwifery Council of New South Wales is requested to record on the national register maintained by the Australian Health Practitioner Regulation Agency the fact that the Tribunal would have cancelled the Practitioner's registration if she had been registered at the date of the hearing. 4. The Practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

            I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

Endnotes

1. HCCC Exhibit 1 at Tab 2.
2. HCCC Exhibit 2 at Tab 2.
3. HCCC Exhibit 2 at Tab 2.
4. HCCC Exhibit 3.
5. HCCC Exhibit 1.
6. HCCC Exhibit 2.
7. HCCC Exhibit 4.
8. HCCC Exhibit 3.
9. HCCC v Hutchison [2014] NSWCATOD 151 at 3.
10. HCCC Exhibit 1, Tab 4.
11. HCCC Exhibit 1, Tab 31.
12. The submissions were accepted by the Tribunal as an aide memoir and became HCCC Exhibit 5.
13. HCCC Exhibit 6.
14. Lucire v HCCC [2011] NSWCA 199 per Basten JA (McColl JA and Sackville AJA agreeing) at [60].
15. Lee v HCCC [2012] NSWCA 80 per Barrett JA at [21] adopting the description by Basten JA in Director-General, Department of Aging, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83].
16. Briginshaw v Briginshaw (1938) 60 CLR 336.
17. See Gautam v HCCC [2021] NSWCA 85 (Payne JA) at [86]-[87]; see also Kumar v Legal Services Commissioner [2015] NSWCA 161.
18. HCCC Exhibit 1, Tabs 5 and 7.
19. Copies of the subject prescription were included in HCCC Exhibit 1, Tab 12 and does not fit that description.
20. HCCC Exhibit 1, Tabs 6 and 8.
21. HCCC Exhibit 1, Tab 15.
22. HCCC Exhibit 1, Tab 35, CC-TV footage; and Tab 36, Japara rosters for the Practitioner between 19 August 2019 and 25 August 2019.
23. HCCC Exhibit 1, Tab 14.
24. HCCC Exhibit 1, Tabs 5, 6, 7, 8, 11, 13, 15, 35 and 36.
25. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA at [67].
26. Chen v HCCC [2017] NSWCA 186 at [18]-[21].
27. Allison v General-Counsel of Medical Education and Registration (1984) 1 QB 750.
28. Pilai v Messiter [No.2] (1989) 16 NSWLR 197.
29. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
30. Director-General, Department of Aging, Disability and Home Care v Lambert [2009] NSWCA 102 per Basten JA at [83].
31. See for example, Health Care Complaints Commission v Phillipiah [2013] NSWCA 34. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2022