Health Care Complaints Commission v Hall

NCAT Occupational|2020-11-12|Before: Centre J

ls and the names of Patient A and Ms Hall's daughter, is prohibited.

REASONS FOR DECISION

In 2018, while working as an Enrolled Nurse at the Frank Baxter Juvenile Justice Centre (Frank Baxter) on a casual basis, then 27-year-old Ms Zoe Hall met then 17-year-old detainee, Patient A. Shortly after they met, Ms Hall disclosed to Patient A details of her private life. A romantic, but not physical relationship developed between the two. After Ms Hall resigned from Frank Baxter the two communicated by Facebook and phone and declared their love for each other. Patient A turned 18 a month after meeting Ms Hall.

Determination of the Complaint

The parties requested us to determine the Complaint, without a hearing, as permitted by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). After reviewing the submissions and material filed by each party, we acceded to that request being satisfied that the issues required to be determined could be adequately determined by considering the parties' written material: s 50 of the NCAT Act.

Is Particular 4 of Complaint 1 established?

Particular 4 states: 4. Between about 1 and 5 October 2018, the practitioner failed to observe proper professional boundaries with Patient A in circumstances where: a. On about 3 or 4 October 2018, the Nursing Unit Manager told the practitioner to limit her contact with Patient A and the practitioner responded with words to the effect of "You must tell him that I didn't want this and that he hasn't done anything wrong. You have to tell him I didn't ask for this. This is so awkward"; b. On about 3 October 2018, the practitioner stood nearby while the Nursing Unit Manager treated Patient A for a superficial self-inflicted cut to his forearm and face.
Ms Hall disputes sub-particular 4(b). She claims to have no memory of the alleged conversation the subject of sub-particular 4(a).

The Nurse Unit Manager's account of the consultation with Patient A on 3 October 2018

In support of Particular 4, the Commission relies on a statement prepared by Nurse Unit Manager, Ms Chloe Prior, on 18 September 2019. In October 2018, while acting as Ms Hall's line manager, Ms Prior was informed by a Youth Officer that Patient A was infatuated with and was attempting to contact Ms Hall. Therefore, a decision was made to monitor his telephone calls. Ms Prior stated that after receiving that information, she directed Ms Hall to not have any contact with Patient A unless she was the only nurse on duty. Ms Prior stated that she was "confused" by Ms Hall's response: You must tell him that I did not want this and that he hasn't done anything wrong. You have to tell him I didn't ask for this. This is so awkward.
Ms Prior stated that later that afternoon Patient A cut his face and was taken to the Frank Baxter medical clinic. Ms Prior stated that notwithstanding the direction she issued that morning, Ms Hall stood in the waiting room while Patient A was waiting to be attended. Ms Prior claims that when he arrived, she promptly brought Patient A into the clinic and commenced attending to his wounds. On her account, throughout that consultation Ms Hall remained in the waiting room, staring into the clinic.

Ms Hall's account of the consultation with Patient A on 3 October 2018

Ms Hall does not dispute that when Patient A arrived on 3 October 2018, she was present at the clinic. However, she disputes as alleged in sub-particular 4(b) that she "stood nearby" while he was being treated.
Ms Hall described the clinic at Frank Baxter as "very small", consisting of two treatments rooms, a storeroom, a nurses' station and a waiting room/hall. On her account, when Patient A arrived at the clinic, she and Ms Prior were seated at the nurses' station behind a large glass window which looked out onto the waiting room/hall. On his arrival Ms Prior stood up and took Patient A to a treatment room, located diagonally across from the nurses' station.
According to Ms Hall after Patient A's arrival she remained seated at the nurses' station behind a computer. The door to the treatment room was closed. Feeling "upset, unsupported and frustrated", she decided it would be best to remove herself and left the clinic while Ms Prior was attending to Patient A.

Submissions

The Commission contends that in circumstances where Ms Hall neither required Ms Prior for cross-examination nor objected to her statement, it is not open to her to now challenge Ms Prior's claim that on 3 October 2018 she stood nearby while Ms Prior treated Patient A. In addition, the Commission contends that Ms Prior's account is corroborated by the clinical notes she made of that consultation and the transcript of two conversations between Patient A and his mother. Ms Hall disagrees.

Is Particular 4 proven?

The Commission bears the burden of proving, on the balance of probabilities, the sole issue in dispute: namely that Ms Hall stood nearby while Ms Prior treated Patient A on 3 October 2018. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the standard of evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at p 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at p 362). As Dixon J said in Briginshaw (at p.362), "The tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences, the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities.
The authorities have cautioned against the use of the term "comfortably satisfied" (a phrase adopted from Rich J in Briginshaw at p.350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1].

The Browne v Dunn contention

The Commission cited no authority for the proposition that in circumstances where she neither objected to Ms Prior's statement nor required her for cross-examination, it is not open to Ms Hall to now challenge Ms Prior's version of events. That objection appears to be based on the so-called "rule" in Browne v Dunn (1893) 6 R 67. In MWJ v The Queen [2005] HCA 74, (2005) 80 ALJR 329 at [38] Gummow, Kirby and Callinan JJ explained that the rule: [I]s essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit.
In Re Ruddock; Ex parte Applicant S154/2002.25 [2003] HCA 60, (2003) 75 ALD 1 ("S154/2002.25") Gleeson CJ, Gummow and Heydon JJ, at [57] firmly rejected the suggestion that in proceedings before the Refugee Review Tribunal, the testimony of witnesses must be contradicted by having the opposing case put in terms. In Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, [2014] FCAFC 93 ("Sullivan") Flick and Perry JJ held that the rule did not apply in proceedings before the Administrative Appeal Tribunal, rejecting at [151] the appellant's attempt to "rebadge" the rule as a "denial of procedural fairness". Observing that the "core function" of a tribunal such as the Administrative Appeals Tribunal is one of review, in a dissenting judgment Logan J stated that "where there are interested parties to the review with conflicting positions, there can be circumstances where it would be procedurally unfair for the Administrative Appeals Tribunal to base its decision on the acceptance of a particular witness called by one party without affording another party due notice of a differing version". At [48], Logan J stated that the "inherently flexible content of a procedural fairness obligation" can entail a requirement which "resembles that which would flow in a judicial proceeding from observance of the rule in Browne v Dunn".
S154/2002.25 and Sullivan concerned administrative review proceedings in Commonwealth Tribunals, the former Refugee Review Tribunal and the Administrative Appeals Tribunal. The procedural provisions governing those proceedings, share many common features with those governing proceedings in NCAT brought under the National Law. Notably, NCAT is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit subject to the rules of natural justice: s 38(2) of the NCAT Act.
Without considered argument this is not the occasion to determine whether the rule in Browne v Dunn applies in proceedings in NCAT brought under the National Law. However, for the following reasons even if the rule applies, the contention that it is not open to Ms Hall to challenge the evidence of Ms Prior must be rejected.
First, where it is readily apparent that the account of a witness is in question, the "rule" does not require a contrary proposition to be formally put to a witness: cf. Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 238; (1984) 3 FCR 168 at 179-181 per Toohey J.
Second, on being served with the Reply and Ms Hall's statement, the Commission was on notice of Ms Hall's conflicting account about the conduct the subject of sub-particular 4(b). The Statement of Agreed Facts filed 7 August 2020, squarely identified at [34] that factual contest. The Commission had the opportunity to challenge Ms Hall's account by obtaining a supplementary statement from Ms Prior: see Order 3 made by the Tribunal on 20 July 2020.
Third, if as the Commission contends, it was not open to Ms Hall to challenge Ms Prior's account, the converse must also be true. Notably, it chose to neither object to Ms Hall's statement nor to require her for cross-examination.
Fourth, having consented to the matter being dealt with "on the papers", which requires the Tribunal to be satisfied that "the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged…" (s 50(2) of the NCAT Act), in our view it was inappropriate for the Commission to then raise a Brown v Dunne point.
Fifth, the Commission did not suffer any "practical injustice" (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1) as a consequence of Ms Hall's failure to require Ms Prior for cross-examination.

Consideration

We have before us two conflicting accounts about whether Ms Hall was standing nearby while Patient A was being treated on 3 October 2018.
Ms Prior's claim that Ms Hall stood nearby is not, as the Commissioner asserts, supported by either the clinical note she made of the consultation with Patient A or the transcripts of phone conversations between Patient A and his mother on 4 October 2018 and 5 October 2018.
Ms Prior's notes of the consultation make no mention of Ms Hall.
During the conversation on 4 October 2018 between Patient A and his mother, the following exchange took place following the mother's question, "[H]as someone got your balls?": Patient A: Anyway, just turned up there and seen my ex-missus at the clinic and that like it's nothing major, mate. Mother: What she got the sack? Patient A: No she's-she's here, but she got interviewed by supervisor…
During the conversation on 5 October 2018, Patient A is recorded as saying: Patient A: Oye, I just seen that thing and she fucking looked at me and I said, "Don't fucking pull that shit with me, mate." Cos when I went up there yesterday and that, and my whole - my whole face was full of blood and that, my - my hands and that and it just - it looked at me and looked away and then left, you know what I mean, looked like I wasn't even there. (emphasis added)
The extract above of the transcript of the first conversation establishes that Ms Hall was present when Patient A attended the clinic for treatment - a fact not in dispute - but contains no mention of Ms Hall, less still her proximity to Patient A during that consultation. At its highest, the second conversation establishes that Ms Hall looked at Patient A. To the extent it is corroborative of either account, it is consistent with Ms Hall's claim that she left shortly after Patient A entered the treatment room.
Neither account was made contemporaneously. Ms Prior's statement was prepared 12 months after the incident. Ms Hall's account was prepared 20 months after the incident.
In these circumstances, where there are conflicting accounts and neither are contemporaneous, supported or inherently implausible, the Commission has failed to establish that Ms Hall stood nearby when Ms Prior was treating Patient A on 3 October 2018.
Given that sub-particular 4(b) is not established, it is not necessary to determine whether sub-particular 4(a) is established. This is because even if the latter is found proven - that on 3 October 2018, Ms Prior told Ms Hall to limit her contact with Patient A - that does not support the central allegation in Particular 4 - that Ms Hall "failed to observe proper professional boundaries with Patient A". Sub-particular 4(a) merely puts into context the conduct alleged in sub-particular 4(b).

Conclusion

Particular 4 is not proven. As noted, the balance of particulars of Complaint 1 are admitted.

Does the admitted conduct amount to unsatisfactory professional conduct?

The Commission contends and Ms Hall agrees, that the admitted conduct amounts to "unsatisfactory professional conduct" within the meaning of ss 139B(1)(a) and/or 139B(1)(l) of the National Law, which state: 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 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) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
When the admitted conduct occurred, Ms Hall was a young and relatively inexperienced Enrolled Nurse with some, albeit limited, experience in working in correctional centres. Her actions in permitting a relationship to develop with Patient A, a young, immature detainee with mental health issues, amounted to a clear transgression of the proper professional boundaries between health practitioners and their patients. That conduct demonstrated that the judgement possessed and care exercised by Ms Hall fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience to Ms Hall.
In addition, as properly conceded by Ms Hall, the admitted conduct - failing to observe professional boundaries and making a false statement to the Commission - is both "improper" and "unethical" for the purpose of s 139B(1)(l) of the National Law.
We find each admitted particular amounts to unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and 139B(1)(l) of the National Law.

Does the admitted conduct amount to professional misconduct?

The Commission contends and Ms Hall agrees that, taken together, the admitted conduct amounts to "professional misconduct".
"Professional misconduct" is defined by s 139E to mean: (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.
Whether the admitted conduct amounts to professional misconduct turns on whether it was of a "sufficiently serious nature" to justify an order for suspension or cancellation. That determination requires us to make an evaluative judgement: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [20]. As Basten JA emphasised in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, in referring to the definition of professional misconduct in the now repealed Medical Practice Act 1992 (NSW), which is in similar but not identical terms to the definition contained in the National Law, the definition of professional misconduct is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made: [67].
Whether the conduct is of a sufficiently serious nature to justify suspension or cancellation requires the circumstances that bear on the objective assessment of that conduct to be taken into account. These include the nature and duration of the conduct, any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct.
Ms Hall's failure to observe proper professional boundaries was conduct of a serious nature, not least because of Patient A's youth and vulnerability. The conduct the subject of the Complaint continued for about four months, including after Ms Hall had resigned from Frank Baxter. As we discuss below, Ms Hall's youth and difficult personal circumstances, while not excusing, go some way to explaining her conduct. Nonetheless, the admitted conduct represents a significant departure from the proper standards of the nursing profession. Taken together with the false statement she made through her solicitors to the Commission about her contact with Patient A (sub-particular 6B), we conclude that had Ms Hall been registered, the admitted conduct was sufficiently serious to justify an order for suspension or cancellation.
The concession made by Ms Hall that the admitted conduct amounted to professional misconduct was properly made.

Are the agreed disciplinary orders appropriate?

The parties consent to the Tribunal making the following orders under sub-div 6 of Pt 8 of the National Law: 1. that if Ms Hall were still registered as an Enrolled Nurse, the Tribunal would have cancelled her registration; 2. that Ms Hall is not permitted to seek re-registration for a period of 12 months; 3. that the fact that the Tribunal would have cancelled Ms Hall's registration be recorded in the National Register; 4. that Ms Hall be subject to a prohibition order.
Ms Hall surrendered her registration as an Enrolled Nurse on 7 February 2019. In a statutory declaration made on 16 December 2019, she undertook not to seek registration as a nurse.
In our view, given the serious nature of the admitted conduct the first three proposed orders are appropriate, proportionate and consistent with the principles which guide the exercise of the discretion to make disciplinary orders. (see, Health Care Complaints Commission v Hogg [2019] NSWCATOD 183 at [66]-[70].)
The more difficult question is whether the power to make a "prohibition order" should be exercised, and if so what form of order should be made.
Where, as here, the Tribunal makes an order under s 149C(4) of the National Law declaring that if the person were still registered it would have suspended or cancelled the person's registration, the power to make a "prohibition order" can be exercised: s 149C(5A). Section 149 of the National Law states if the Tribunal is satisfied that the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Section 5 of the National Law defines "health service" to include the following services, whether provided as public or private services- health service includes the following services, whether provided as public or private services - (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services.
The power to make a prohibition order can only be exercised if we are satisfied that Ms Hall poses a "substantial risk to the health of members of the public" (emphasis added). The question posed is whether Ms Hall is likely to pose a real and material risk to the health of the public if she were to be involved in the provision of health services: see Health Care Complaints Commission v Menz (No. 2) [2017] NSWCATOD 172 at [18].
The Commission contends that the following considerations are relevant to the assessment of the risk posed by Ms Hall if she were to engage in health services: 1. the serious nature of the admitted conduct; 2. Ms Hall's continued contact with Patient A, as recently as August 2019; 3. Ms Hall's failure to be forthright in her dealings with authorities, as evidenced by the false statement she made though her solicitors to the Commission in December 2019 (sub-particular 6B), and the claim made in her application to the Department of Corrective Services in September 2019 seeking review of her "visitor restriction", that she was unaware of the reason she was not permitted to visit Patient A. The Department notified Ms Hall in December 2018 that she had been "red flagged."
In these proceedings, Ms Hall stated that she is deeply remorseful and acknowledges that her conduct: 1. breached the Codes of Conduct issued by NSW Health and the Nursing and Midwifery Board of Australia; 2. "brought shame" on the nursing profession and herself; 3. was "completely unacceptable" given the power imbalance in the practitioner-patient relationship.
In addition, Ms Hall stated she should have had a "better understanding of her own vulnerabilities".
Ms Hall tendered in these proceedings, character references provided by a long-time friend and a former nursing colleague.
In a statement dated 27 July 2020, the former colleague described Ms Hall as being an "honest and trustworthy person" and in her role as a nurse "respectful, caring and compassionate who always takes her profession seriously". She stated that she has read and discussed the Complaint with Ms Hall, who "expressed great insight and reflection … and is fully aware she did the wrong thing". Referring to Ms Hall's experience of domestic violence, both as a child and an adult, she wrote she believes Ms Hall was "vulnerable" and "emotionally fragile". She stated that she has encouraged Ms Hall to undertake counselling.
Ms Hall's friend of 15 years, in a letter dated 23 July 2020 stated that Ms Hall is as an "amazing mother" and is "known to all as trustworthy and reliable". She wrote that Ms Hall is "immensely remorseful for her actions" and is now engaging in counselling.

Consideration

As we noted above, Ms Hall consented to the disciplinary orders proposed by the Commission, including the proposed prohibition order. However, as this is a protective and not a "consent" jurisdiction, we must be satisfied that any agreed order is appropriate, proportionate and consistent with the paramount consideration of the National Law, the protection of the health and safety of the public.
In our view, unless and until Ms Hall completes a course of counselling, to assist her to gain insight into the reason she transgressed proper professional boundaries and became involved with a young and vulnerable patient, she may pose a substantial risk to the health of members of the public. We have considerable sympathy for Ms Hall. The records of her interaction with Patient A suggest that she is somewhat immature and as stated by her former colleague, "emotionally fragile", probably as a result of her trying domestic circumstances.
We have concerns about the breadth of the proposed prohibition order. As formulated, it will operate to prevent Ms Hall working in any health service, including for example, aged care where the risk posed has not been articulated. Despite these misgivings and noting that Ms Hall has had the benefit of competent legal representation we have decided to make the order sought for a period of 12 months.

Costs

The parties consent to the Tribunal making a fixed costs order pursuant to cl 13(1) and (3A) of Sch 5D of the National Law that Ms Hall pay costs in the sum of $14,000 to the Commission.

Non-publication order

The parties consent to the non-publication order made on 24 April 2020 being extended to include Ms Hall's personal details and the name of her infant child. Accordingly, we order pursuant to s 64(1) of NCAT Act, the disclosure and or publication of Ms Hall's personal details and the names of Patient A and Ms Hall's daughter, is prohibited.

Orders 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), the Tribunal decides that if Ms Hall were still registered as an Enrolled Nurse, the Tribunal would have cancelled her registration. 2. Pursuant to s 149C(4)(b) of the National Law, Ms Hall is subject to a 12-month disqualification period commencing from the date of this decision. 3. Pursuant to s 149C(4)(c) of the National Law, the Nursing and Midwifery Board of Australia is required to record the fact that the Tribunal would have cancelled Ms Hall's registration in the National Register kept by the Board. 4. Pursuant to s 149C(5) of the National Law, Ms Hall is prohibited from providing health services, for a period of 12 months from the date of this decision. 5. Ms Hall must pay to the Health Care Complaints Commission costs in the sum of $14,000.

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: 12 November 2020

Medical Practice Act 1992(NSW)

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