Health Care Complaints Commission v King

Background

1. In 1991, the Respondent obtained an Associate of Applied Science in Nursing from the University of Technology Sydney. The Respondent was first registered as a nurse in New South Wales on 31 January 1991. In March 1991, the Respondent commenced working as a nurse. From about 1 July 2020 to 20 August 2020, the Respondent was employed as a registered nurse at Adventist Senior Living (also known as Avondale Residential Aged Care and Avondale House). From 7 September 2020 to 25 November 2020 the Respondent was employed as a registered nurse at the Orchards Aged Care.
2. In summary, the inquiry before us is about the conduct of the Respondent who is a 53 year old registered nurse who was convicted of stealing medication from an aged care facility in July/August 2020 (Morphine, Midazolam, Hydromorphone and Targin) and falsely writing her colleagues' names and signatures in the drug register, who misappropriated medication from another aged care facility in October/November 2020 (Targin and Morphine), who was affected by the medication she misappropriated while caring for patients at both facilities, who twice misled the authorities (falsely claimed she had cancer) and who has an impairment (substance use disorder) which impairs her mental capacity to practise nursing.

Complaints

1. In support of the application, the Commission raises five complaints against the Respondent.

Complaint 1

1. Complaint 1 relies on s 144(a) of the National Law which provides for a complaint that a practitioner has been convicted of criminal offences in New South Wales.
2. The particulars of that complaint are to the effect that on 15 February 2022 at the Local Court of New South Wales at Toronto, the Respondent was convicted of the following offences: 1. Larceny by clerks or servants contrary to s 156 of the Crimes Act 1900 (NSW), the basis of the conviction being that between 20 July 2020 and 20 August 2020, the Respondent misappropriated 7 Ampoules of morphine 10 mg, 16 Ampoules of Midazolam 5 mg, 8 Ampoules of Hydromorphone 2 mg and 29 tablets of Targin 5 mg from her then employer, Adventist Senior Living. 2. Dealing with identification information contrary to s 192J of the Crimes Act 1900 (NSW). The basis of the conviction was that between 24 July 2020 and 20 August 2022, the practitioner inappropriately wrote the name and signature of her colleagues (being Persons A, B, and C) on the drug register at Adventist Senior Living with the intention of creating false records in the drug register.

Complaint 2

1. The second complaint is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(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.
2. The particulars of Complaint 2 are as follows: 1. Between 20 July 2020 and 20 August 2020, the Respondent provided care and treatment to patients at Adventist Senior Living whilst affected by the medication she had misappropriated for her own personal use. 2. On 8 October 2020, the Respondent misappropriated 28 tablets of Targin 10mg/7.5mg from Orchards Aged Care for her own personal use. 3. On or about 23 November 2020, the Respondent misappropriated 28 tablets of Targin 15mg/7.5mg from Orchards Aged Care for her own personal use. 4. On or about 23 November 2020, the Respondent misappropriated 1 ampoule of morphine from Orchards Aged Care for her own personal use. 5. Between 7 September and 25 November 2020, whilst working at Orchards Aged Care, the Respondent inappropriately substituted Patient A's Targin 15mg for an alternate medication, and administered the alternate medication to Patient A. 6. On 23 November 2020, whilst working at Orchards Aged Care, the Respondent inappropriately substituted Patient B's Targin 10mg for an alternate medication, and administered the alternate medication to Patient B. 7. Between 8 October 2020 and 23 November 2020, the Respondent provided care and treatment to patients at Orchards Aged Care whilst affected by the medication she had misappropriated for her own personal use. 8. On 25 August 2020, the Respondent misled the Pharmaceutical Regulatory Unit when she told Person D that she was suffering from ovarian cancer and undergoing surgery in relation to her ovarian cancer, when she knew this to be untrue 9. On 27 November 2020, the Respondent misled the Pharmaceutical Regulatory Unit when she told Person E that she was diagnosed in May 2020 with stage II ovarian cancer, when she knew this to be untrue. 10. By her conduct in misappropriating medication as particularised in particulars 2, 3, 4, 5 and 6 above the Respondent contravened: 1. Clause 1.2 of the Nursing and Midwifery Board of Australia Code of Conduct for Nurses.

Complaint 3

1. Under this complaint, the Commission complains that the Respondent is guilty of professional misconduct under s 139E of the National Law in that she has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration; and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounted to conduct of a sufficiently serious nature to justify the suspension or cancellation of her registration.
2. The particulars to Complaint 3 are the same as those pleaded in respect of Complaint 2 and are relied upon individually and cumulatively in respect of this complaint.

Complaint 4

1. The Commission relies on s 144(d) of the National Law in this complaint that the practitioner has an impairment within the meaning of s 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 the profession of nursing.
2. The particulars of Complaint 4 are that the Respondent has a substance use disorder, (predominantly opioid medication in addition to Midazolam) and that the Respondent had a relapse in February 2022. Complaint 5
3. Complaint 5 is that the Respondent is not competent within the meaning of s 139(a) of the National Law in that she lacks the mental or physical capacity to practise as a nurse.
4. The particulars relied upon are that the Respondent suffers from an impairment as particularised in Complaint 4 and the impairment is of sufficient nature and degree to impair the Respondent's mental capacity to practise the profession of nursing.

Relevant Legislative Provisions

1. The relevant provisions of the National Law relied upon are as follows: 139 Competence to practise health profession [NSW] A person is "competent" to practise a health profession only if the person - (a) has sufficient physical capacity; mental capacity; knowledge and skill to practise the profession; … 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 -- … (l) Other improper of unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 139E Meaning of "professional misconduct" [NSW] For the purposes of the 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. 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. … (d) Impairment A complaint the practitioner has an impairment. 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied -- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.

Relevant Principles

1. In the exercise of the Tribunal's jurisdiction in respect of these complaints, the overarching objective and guiding principle of the National Law is that the Tribunal must ensure the protection of the health and safety of the public as its paramount consideration (s 3A(1)). The first stated objective of the national registration scheme is 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 (s 3(2)(a)). The Tribunal has the power to impose restrictions on the practice of a health practitioner but that may only occur under the scheme if it is necessary to ensure health services are provided safely and are of an appropriate quality (s 3A(2)(c)).
2. His Honour Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 stated: [35]."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 those 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."
3. Upholding public confidence is primarily connected to a practitioner's malpractice or incompetence and setting standards deterring others from such conduct. His Honour's comments also use the expression "or otherwise not fit to practise including those who are guilty of serious misconduct".

The Conviction

1. Based on the certificate of conviction and the transcript in the Local Court of New South Wales proceedings, we are satisfied that on 15 February 2022, after pleading guilty, the Respondent was convicted of the two offences particularised in Complaint 1. Those offences are punishable by more than 12 months imprisonment.
2. The Respondent was sentenced to two concurrent community correction orders for two years and also two fines totalling $1,600.00.
3. Complaint 1 is therefore made out.

The Circumstances of the Offences

1. Assessing the seriousness of these offences requires the Tribunal to take into account not only the offences but also the circumstances in which they were committed.
2. The offences committed by the Respondent are serious. They were potentially punishable by imprisonment of up to 10 years but limited to two years in the Local Court. The sentencing Magistrate noted that the Respondent had stolen various medications intended for patients in an aged care facility on six occasions, that the Respondent used her co-workers' signatures to cover her misconduct on four occasions, and that each offence involved a severe breach of trust, namely, the trust placed in her by her employer, and trust placed in the practitioner by the community by giving her a licence to practise as a nurse.
3. The Respondent's conduct also had a direct impact on the practice as a health professional. The Respondent falsified the signatures of her nursing colleagues in the drug register to steal medication from her nursing employer for her personal use which, as the Commission submitted, and we accept, is entirely inconsistent with the fundamental responsibility of any registered nurse to correctly administer and record medication.
4. The Respondent's offending also occurred over a reasonably lengthy period of time.
5. The sentencing Magistrate did however, regard the Respondent's offending as probably below the middle range of objective seriousness and also indicated that he thought the Respondent was entitled to findings of good prospects of rehabilitation and unlikelihood of re-offending. We recognise the observations by the Magistrate about rehabilitation and re-offending but have no evidence of the Respondent's current circumstances to come to an informed conclusion on that issue.

Complaint 2

1. We are satisfied on the evidence that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) in that the Respondent engaged in improper or unethical conduct relating to the practice or purported practice of nursing as alleged and particularised.
2. The conduct, the subject of Complaint 2, involved the Respondent providing treatment to patients at the aged care facilities while she was affected by medication which impaired her cognitive functions.
3. The Respondent has made admissions to delegates of the Nursing and Midwifery Council in a hearing under s 150 of the National Law that she was addicted, and also to a medical practitioner appointed by the Council that she had misappropriated and self-administered medication over about 6-8 weeks from July 2020 and that she would have been affected by these substances when she was working.
4. In respect of Particulars 5 and 6 of this Complaint, the substitution of medication prescribed or intended for two patients, the Respondent in an interview with the Pharmaceutical Regulatory Unit (PRU) challenged this claim and denied substituting patient medication.
5. In these proceedings the Commission contends that the Tribunal should on the evidence presented find Particulars 5 and 6 proven. The Commission submits that the Tribunal would accept the clear evidence of Person H, who is an experienced registered nurse, who promptly emailed her concerns to her manager, who made a detailed statement explaining what she saw and who was not required for cross-examination. Person H's evidence is corroborated by the evidence from two other registered nurses (Person F and Person G) who were concerned about whether the Respondent had properly administered Targin to Patient A on other occasions. The Respondent was apparently strongly motivated to obtain Targin during that time because she was addicted, she was obtaining multiple prescriptions for Targin from several GP's and she has admitted misappropriating Targin from Orchards Aged Care on other occasions.
6. In the absence of any challenge to the evidence we find that those particulars are established.
7. We also find that Particular 7 has been established.
8. In respect of Particular 8 we are satisfied that the evidence is established and, we find, that on 25 August 2020 and on 30 November the Respondent made the false representation about ovarian cancer as set out in the complaint.
9. The conduct, misappropriation of medication, also was contrary to the Nursing and Midwifery Board of Australia Code of Conduct for Nurses.
10. The words "improper" and "unethical" are not defined in the National Law. It is relevant to observe that in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160, the Tribunal observed: "86. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as "not in accordance with propriety of behaviour, manners etc." or "abnormal or irregular" and "unethical" as 1. "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." … 89. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid with their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings and those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at [81]."
11. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law is also considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 where the Tribunal stated at [25]-[26]: "25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances."
12. The conduct the subject of Complaint 2 was in our view improper and unethical conduct relating to the practice or purported practice of nursing.

Complaint 3 - Professional Misconduct

1. As pointed out above, the Commission relies on the particulars of Complaint 2 in support of its complaint that the Respondent engaged in professional misconduct.
2. Professional misconduct is merely a category of unsatisfactory professional conduct which is sufficiently serious to justify suspension or cancellation (Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19] per Basten, JA).
3. In our view, attending to patients in order to provide care and treatment whilst affected by medication misappropriated for her own personal use is serious misconduct.
4. In addition, misappropriating drugs for a practitioner's own personal use, drugs primarily to be used for the benefit of persons in aged care, is also serious misconduct.
5. The misconduct referred to in the particulars dealt with above in our view support the conclusion, which we arrive at, that the conduct of the Respondent as particularised was sufficiently serious to justify the suspension or cancellation of the Respondent's registration. It was professional misconduct within the meaning of s 139E of the National Law.

Complaint 4

1. In order to assess this complaint, the Tribunal must be satisfied that the Respondent is currently impaired.
2. In this context, impairment means that a person "has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect … the person's capacity to practise the relevant profession" - s 5 of the National Law.
3. The evidence before us relied upon, supports a conclusion that the Respondent has an impairment in the form of substance abuse or dependence, included the following: 1. From July 2022 to August 2022, while working as a registered nurse at Adventist/Avondale, the Respondent misappropriated medication and continue to have dispensed for her own use medications which are regarded as drugs of addiction. Similarly, from 7 September 2020 to 25 November 2020 whilst working as a registered nurse at Orchards Aged Care, the same issues arose. 2. Proceedings under s 150 of the National Law conducted by the Nursing and Midwifery Council of New South Wales on 17 December 2020 addressed the Respondent's drug use. During those proceedings, the Respondent made various admissions as to her addiction which developed following a period that started in 2014 where she suffered significant pain and was prescribed various drugs which ultimately escalated into her becoming more dependent on drugs of addiction. 3. There is also evidence that in February 2021, the Respondent attended Wallama Clinic as part of the opiate treatment programme. 4. On 28 October 2021, the Respondent acknowledged to New South Wales Police investigating the alleged offences which ultimately led to her conviction that she had a serious prescription drug addiction which she had started to address. 5. On 15 February 2023, the Respondent attended a health assessment with Dr Dore. Dr Dore is, in our view, an experienced health professional fully qualified to assess the question of a practitioner's impairment. 6. Dr Dore provided a written report dated 15 February 2023. In her report, Dr Dore concluded that the Respondent had made very positive progress with her recovery from drug use and that the Respondent was now in sustained remission from her substance use disorder. 7. Dr Dore also recorded that the Respondent's mental health at that time was very stable, with no significant anxiety or depressive symptoms. 8. In conclusion, Dr Dore stated that the Respondent met the statutory definition of impairment as defined in the National Law in the form of a substance use disorder. Dr Dore stated that the Respondent is in sustained remission from her substance use disorder and considered that the Respondent is safe to practise nursing while she remains in remission with appropriate conditions on her registration.
4. Accordingly, we are satisfied and find that the Respondent does have an impairment as defined within s 5 of the National Law and that Complaint 4 is made out.

Complaint 5

1. In respect of the complaint that the Respondent is not competent within the meaning of s 139(a) of the National Law to practise as a nurse as she lacks the mental or physical capacity to do so, we are not satisfied that the Commission has made out its case in that regard.
2. It is necessary for the Commission to prove that the Respondent is not competent to practise or she does not have sufficient physical capacity, mental capacity, knowledge and skill to practise the profession, although a finding of impairment may support a conclusion that a practitioner is not competent to practise.
3. During the hearing on 20 September 2023, we invited the Commission to take the Tribunal to the evidence supporting this complaint. Attention was drawn to Dr Dore's conclusion on 15 February 2023 that the Respondent meets the definition of impairment and is safe to practise nursing if she remains in remission. The Commission then sought to convince the Tribunal that there was sufficient evidence to suggest that the Respondent was currently not in remission. None of the matters pointed to, in our view, were sufficient to make out this complaint and we conclude that it has not been made out.

Protective Orders

1. Having found that Complaints 1 to 4 have been established, it is necessary for the Tribunal to consider what protective orders, if any, should be made.
2. In considering whether, in the exercise of the protective jurisdiction of the Tribunal, an order should be made suspending or cancelling the Respondent's registration, we have had particular regard for: 1. the nature of the offending leading to the conviction of the Respondent in the Local Court; 2. the seriousness of that conduct; 3. the circumstances in which those offences were committed as outlined in our analysis and findings concerning the complaints above; 4. the real risk to patients as a result of the Respondent's conduct; 5. the indirect risk to the public undermining of trust in the profession and the public's confidence to entrust their care to those health professionals who are not adversely affected by medications; 6. the need for specific deterrence, but also general deterrence, directed at the profession at large to ensure that professional standards are maintained and public confidence in health professions are not eroded.
3. Taking all those matters into account, we are satisfied that it is appropriate to cancel the Respondent's registration.

Non-Review Period

1. In considering whether to also impose a non-review period and if so, determining an appropriate period, we take into account not only the time it may take for the Respondent to address the underlying issues bringing her before the Tribunal, but also the need to denounce the conduct and thereby maintain the standards of the profession.
2. In considering this issue, the Tribunal notes that the Respondent did not provide any evidence that she is currently engaged in suitable treatment to avoid a relapse, that she has the assistance of therapists to continue her recovery, that she is in fact abstaining from the use of such drugs, particularly in light of the fact that historically there have been occasions when she has relapsed.
3. We also do not have evidence to conclude that the Respondent actually has sufficient insight into her behaviour or in respect of other mechanisms needed to avoid similar conduct occurring again.
4. We are conscious that the sentencing Magistrate was of the view that re-offending was not very likely. However, that does not answer the Tribunal's concern about protecting of the public generally from use of addictive drugs, even if it does not involve misappropriation of the drugs from a particular employer.
5. We are also not satisfied that the Respondent has taken any measures to deal with the unethical and improper behaviour concerning falsification of records and blaming fellow practitioners for her conduct.
6. It is to be anticipated that if the Respondent seriously seeks to return to the practice of nursing, these matters will be addressed.
7. In the circumstances, and in order for those matters to be addressed and in order to provide a sufficient signal to the profession that such conduct is unacceptable, we conclude that a non-review period of two years is appropriate. A period of that duration should deter other practitioners from engaging in conduct of the kind found against the Respondent and will maintain public confidence in the profession. It would also provide further opportunity for the Respondent to reflect and rehabilitate.

Costs

1. The Commission seeks an order that the Respondent pay the Commission's costs as agreed or assessed.
2. The general rule in respect of an award of costs of proceedings before the Tribunal is that they should follow the event - in other words, the successful party should have its costs paid by the unsuccessful party.
3. The Tribunal has an unfettered discretion in relation to the award of costs, noting however the general rule referred to above and the need for the outcome to be fair.
4. In our view, there was no disentitling conduct on the part of the Commission entitling it to an award of costs.
5. However, in the current case, there are particular circumstances which we need to address.
6. As set out above, proceedings on 8 June 2023 had to be adjourned without fault of either the Commission or the Respondent.
7. The Commission informed the Tribunal that it would seek its costs effectively thrown away as a result of that adjournment from the Respondent, those costs being the need to re-prepare for the hearing on 20 September 2023 and that the Respondent should pay those costs.
8. The Commission did, however, inform the Tribunal that it would not seek the costs of Dr Dore in respect of her services relating to the preparation for the hearing on 8 June 2023.
9. In the current circumstances, it appears to us to be very unfair that the Respondent should alone bear the additional costs by reason of an adjournment caused by no fault on her part.
10. The Commission, being a statutory body, also has a far greater ability to meet those costs.
11. In the circumstances, in our view and in the exercise of our general discretion, the Commission should not be entitled to recover the full costs thrown away for that adjournment which in effect amount to the costs for re-preparing for the hearing on 20 September 2023. Those costs should be reduced so that the parties share the costs equally. We will order accordingly.

Orders 1. Pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) the Respondent's registration is cancelled. 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), an application for review of Order (1) under Division 8 of the Health Practitioner Regulation National Law (NSW) may not be made until the expiry of a period of two years from the date of this decision. 3. Pursuant to Clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the Respondent is to pay the Applicant's costs as agreed or assessed except the costs of the adjournment of the matter on 8 June 2023, which costs are to be borne equally by the parties.

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: 14 November 2023