Health Care Complaints Commission v Harley

Background 11In the decision of Health Care Complaints Commission v Harley [2008] NSWNMT 16, the Nursing and Midwifery Tribunal found the practitioner had engaged in unsatisfactory professional conduct due primarily to her non-compliance with professional standards in handling pethidine in her work at Sydney South West Private Hospital. That Tribunal ordered the practitioner be reprimanded and imposed conditions on her registration. 12In July 2007 the practitioner was employed at the Haldon Street Medical Centre in Lakemba and First Care Medical Centre in Busby. As a result of a complaint received from the practice manager of the Haldon Street Medical Centre, the Nursing and Midwifery Council conducted a hearing under section 150 of the National Law on 12 November 2012 and imposed conditions on the practitioner's registration. 13On 12 December 2013 a further hearing under section 150 of the National Law occurred. On this occasion the practitioner's registration was suspended. 14The complaint was filed with this Tribunal on 11 April 2014. The particulars of the complaint include that the practitioner accessed the computer of medical practitioner A at the Haldon Street Medical Centre and created a false electronic prescription in the name of a patient for five ampoules of pethidine. The HCCC also alleges that the practitioner made a false entry in the same patient's medical records detailing a medical consultation with medical practitioner A. It is further alleged that the practitioner presented the prescription at another pharmacy the next day, collected and paid for the medication dispensed and advised the pharmacist that the patient was waiting at the Haldon Street practice. 15It is fourthly alleged that the practitioner took, without authority, sixty ampoules of Tramadol from the First Care Medical Centre, Busby and thirty ampoules of Tramadol from the Haldon Street Medical Centre. Fifthly, the practitioner allegedly advised the practice manager of the Haldon Street Medical Centre that she had administered many ampoules of the Tramadol to numerous patients of the practice in circumstances where the patients had not received the medication. 16The HCCC also claims that 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 practise as a nurse. 17On 13 June 2014 the matter was set down for hearing. 18On 27 August 2014 the practitioner completed a notice to surrender registration as an enrolled nurse, registered nurse or midwife. On the same day, the New South Wales Nurses and Midwives' Association lodged the notice with AHPRA, accompanied by a statutory declaration from the practitioner undertaking not to seek registration as a nurse in Australia again. She also undertook not to practise nursing in Australia. Thirdly, the practitioner acknowledged that if she attempted to seek re-registration as a nurse the HCCC may proceed with disciplinary action against her alleging unsatisfactory professional conduct, professional misconduct and that she has an impairment. 19On 15 September 2014 the Director of Proceedings at the HCCC, Ms Karen Mobbs, wrote to the Nursing and Midwifery Council and opined that while there is sufficient evidence to prove the complaint against the practitioner before this Tribunal, she considers that the prosecution is not warranted as the practitioner is no longer registered. She further noted that if the matter proceeded to hearing and there was a finding of professional misconduct and/or a lack of competence, the protective orders available to the Tribunal are limited by the National Law. Ms Mobbs advised that in the event the practitioner applies for registration in the future, the conduct covered by the complaint could be taken into account by AHPRA. Alternatively, if in the future the practitioner became registered, consideration may be given to prosecuting the complaint at that time. 20On 26 September 2014 representatives of the Nursing and Midwifery Council met with representatives of the HCCC and reached an agreement that the complaint against the practitioner should be withdrawn on the basis that the respondent is no longer practising. 21The application seeking leave to withdraw the complaint was filed in the Occupational Division of the Tribunal on 1 October 2014. I heard an oral application made by Ms J Dinihan on behalf of the HCCC on 3 October 2014. The application was supported by Ms Toose, from the NSW Nurses and Midwives Association, on behalf of the practitioner.

The relevant legislative provisions 22The application is made under Sch 5D of cl 12 of the National Law. This clause provides: (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if-- (a) any of the following circumstances apply-- (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. (2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies. (3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal. 23The other relevant provision is s 55 of the NCAT Act. That section provides the Tribunal may dismiss an application, at any stage of any proceedings before it, in any of the circumstances there set out. Those circumstances include if the applicant withdraws the application to which the proceedings relates. 24Clause 12(3) of Sch 5D gives the power to decide whether to conduct or terminate an inquiry to the presiding Tribunal member. In the decision of Health Care Complaints Commission v Khan [2014] NSWCATOD 79, ADCJ Boland considered whether or not an application, similar to the current one before this Tribunal, could be determined by a single member prior to the hearing of the proceedings. Her Honour determined that it was possible, and may be appropriate, for such applications to be brought before a single member who would preside at the final hearing [48]. In conformity with that decision, I am satisfied that there is jurisdiction for me to deal with this application.

Evidence in support of the application 25The evidence filed with the application is unfortunately very limited. It consists of the practitioner's executed notice to surrender registration as an enrolled nurse, registered nurse or midwife, an accompanying statutory declaration, a covering letter from the New South Wales Nurses and Midwives' Association and two letters from Ms Mobbs to the Nursing and Midwifery Council of New South Wales. This material is described in the background section to this decision. 26It would have assisted the Tribunal if the medical evidence supportive of the allegation that the practitioner suffers from an impairment had been filed prior to the application being heard, as occurred in HCCC v Campbell [2014] NSWCATOD107. 27The Tribunal requested the HCCC file material in support of the application that the practitioner suffers an impairment and supporting the assumption that the medication allegedly obtained inappropriately by the practitioner was for her own use. On 7 October 2014 the HCCC filed volumes 1 and 2 of the material on which it relies which has been served on the practitioner. 28In a report to the Nursing and Midwifery Council, forensic psychiatrist, Dr Kipling Walker opined that the practitioner appeared to have a longstanding history of opiate abuse or dependence. He considered such a dependence or abuse would give rise to an impairment as defined in section 5 of the National Law. Clinical notes from the Haldon Street Medical Practice, attended by the practitioner, also included detailing her recurrent migraine and neck pain and that a pain clinic specialist would need to prescribe further pethidine for her.

Discretion not to conduct an inquiry under the National Law 29Pursuant to schedule 5D cl 12(ii) of the National Law when a practitioner ceases to be a registered health practitioner the Tribunal may decide not to conduct an inquiry or terminate an inquiry. 30Further, cl 12(iii) provides that the Tribunal may decide not to conduct an inquiry or to terminate an inquiry if the complaint is withdrawn and the Tribunal forms the view that it is not in the public interest for the inquiry to continue. 31In this case, particularly in view of the serious allegations made, I consider that it is not appropriate to refrain from conducting an inquiry simply because the practitioner is no longer registered. It concerns me that such a finding could lead to practitioners simply deregistering to avoid an inquiry. This seems to be contrary to the public interest.

The public interest in this case 32Turning to whether it is in the public interest that an inquiry is not conducted in this case, I note that the practitioner has not simply taken the step to remove herself from the Register. The practitioner has also undertaken not to reapply to be registered and advised that she will also refrain from nursing again in Australia. Further, she has acknowledged her understanding that if she seeks to reregister as a nurse that the HCCC may precede with disciplinary action against her to establish she had engaged in unsatisfactory professional conduct, professional misconduct and that she has an impairment. 33I also note the HCCC's Director of Proceedings' expressed view to the Nursing and Midwifery Council that if the practitioner reapplies for registration, contrary to her undertaking, that AHPRA has notice of the complaint in considering the registration application. Further, if the practitioner is registered, the HCCC will consider prosecuting the complaint again. Given the serious allegations made, coupled with the fact that there was a previous finding of unsatisfactory conduct in 2008, I would hope this action would be taken. 34As a result of removing herself from the Register, the undertakings given and the expressed approach of the HCCC, I am satisfied that there is no present or foreseeable future risk to the public. I also note s 3A of the National Law, which states that the primary objective in New South Wales is to ensure the health and safety of the public. 35In fact, in view of the Tribunal's powers when a practitioner is no longer registered, the public may be better protected in this case from an inquiry not proceeding than if this Tribunal makes orders after finding that the practitioner had engaged in unsatisfactory professional conduct, professional misconduct and/or suffers from an impairment. This is because section 149C of the Law provides: (4) If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the persons 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;... 36Hence, if the complaint is proven, the conduct of an inquiry in this matter would result in the practitioner being in a position to reapply for registration after any period of disqualification has run. This may mean the practitioner could recommence nursing practice. Under the current state of affairs, if the practitioner honours her undertaking, she will never be registered. If the undertaking is broken, it is a further factor that could be considered by the Tribunal, along with the allegations set out in the complaint filed, if the HCCC refiles the complaint. 37Numerous decisions involving health practitioners have also set out the importance of the Tribunal's role in maintaining public confidence in health professionals and the reputation of those professions. See for example, HCCC v O'Hagan [2010] NSWNMT 37 and HCCC v Yule [2010] NSWNMT 22. Previous cases have also focused on the importance of providing a deterrence to other members of the profession who may be tempted to engage in similar conduct. (HCCC v Gillies [2010 NSWMT 7) 38In the recent New South Wales Court of Appeal decision of Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA with whom Basten JA and Emmett JJ concurred, discussed both the value of deterrence and the importance of public confidence and noted: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining the standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." [35] 39Further, the Court of Appeal found that the Tribunal had erred in only focusing on the protection of the public from further misconduct of the respondent. It should have addressed the public interest "in having the respondent's conduct denounced as unacceptable." [39] 40As already noted, the conduct alleged in this case is extremely serious. If proven, it is likely that the practitioner would be disqualified from practice for a significant period of time. Stringent conditions on future registration would also be very probable. Clearly, if established, the conduct would bring the profession into serious disrepute. 41I also take into account the cost and time to the HCCC and indirectly, to the public of the cost of proceedings in the Tribunal. As noted in the Khan decision, the objects of the NCAT Act include that the Tribunal should resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. 42For all of these reasons I am satisfied it is appropriate for the complaint to be withdrawn and that the application be dismissed pursuant to the provisions of s 55 of the NCAT Act. 43Accordingly, my orders are:

1. Leave is granted to the Health Care Complaints Commission to make an oral application to withdraw the complaint and application for disciplinary findings and orders filed 11 April 2014.
2. The Tribunal consents to the complaint in respect of Ms Pauline Harley referred to by the Tribunal by the Health Complaints Commission being withdrawn under cl 12 of sch 5D of the Health Practitioner Regulation National Law No.86a.
3. The application by the Health Complaints Commission for disciplinary orders filed on 11 April 2014, is dismissed pursuant to s 55 of the Civil and Administrative Tribunal Act 2013 (NSW).inquiry
4. The hearing dates fixed for 13, 14 and 15 October 2014 are vacated.
5. No order as to costs.

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: 08 October 2014