Health Care Complaints Commission v Laws

Tribunal proceedings

1. This matter has come before the Tribunal in the midst of COVID-19 pandemic restrictions. To reflect the public health measures deployed in response to the pandemic, the parties' views were sought as to whether the matter could be dealt with on the written material. On 27 April 2020 the Tribunal made an order that an oral hearing was to be dispensed with, and the matter would be considered by it on the papers. Directions were subsequently made for the filing and serving of material by both the Commission and Ms Laws.
2. The Commission has provided evidence in support of the Complaint to both the Tribunal and Ms Laws. The Commission has also provided written submissions to the Tribunal and Ms Laws in which it sets out the orders it asks the Tribunal to make and why. We are satisfied that Ms Laws is on notice of the proceedings, the evidence supporting the Complaint and the nature and extent of the orders the Commission seeks.
3. In addition to the directions that had been previously made; by letter, dated 24 June 2020, the Tribunal wrote to Ms Laws giving her the opportunity to comment on the Commission's material. No contact, material or any response to the Complaint has been received by the Tribunal from Ms Laws.
4. We are satisfied that Ms Laws is aware of the information on which the Commission relies to underpin the factual basis to the Complaint. We are also satisfied that Ms Laws has been given the opportunity to comment on the protective orders sought by the Commission. On that basis we are satisfied that it is appropriate to consider both the facts underpinning the Complaint and the appropriate protective orders.

Evidence

1. The material provided by the Commission to support the Complaint is extensive. It included but was not limited to: a notification to the Australian Health Practitioner Regulation Agency (AHPRA) by Ms Laws' employer in relation to her conduct at the Medical Centre; various witness statements from Medical Centre staff including Drs A and B; a Medical Centre prescription list for Ms Laws and Person C; Medical Centre clinical records for Ms Laws and Persons C and D; staff rosters and other material relevant to the Medical Centres workplace investigation; individual prescription history produced by the Department of Human Services for Ms Laws and Person C; medical and clinical records for Ms Laws from various other medical centres which she consulted; a Report of Dr Roytowski, Consultant Psychiatrist; an Expert Report of Dr Samuels, Consultant Psychiatrist, obtained by the Commission in respect of Ms Laws; and correspondence from the Commission to Ms Laws and her response.
2. On 8 November 2018 the Nursing and Midwifery Council of NSW (the Council) conducted section 150 proceedings under the National Law in respect of Ms Laws' conduct. Section 150 proceedings occur in the context of the Council's obligation under the National Law to take action at any time if it is satisfied it is appropriate to do so for the protection of the health and safety of the public or for reasons otherwise in the public interest.
3. Effective from 8 November 2018 conditions were imposed by the Council on the registration of Ms Laws. Relevantly these conditions provided that Ms Laws was only to administer medications under the direct supervision of a registered nurse who has no conditions on his or her registration. Ms Laws was also required to provide a copy of her conditions to any nursing employer or agency. On 3 December 2018 the Council held further proceedings under section 150 and altered its conditions so that Ms Laws could only practice under direct supervision.

Details of the Complaints

1. All of the details particularised in the first two individual complaints are demonstrated by the material provided by the Commission. There has been no counter to this material by Ms Laws, and she has not engaged with the Commission or the Tribunal.
2. We have no difficulty in finding that the matters particularised in the first two complaints are established.

Complaint One

1. Between 29 May 2018 and 23 September 2018, Ms Laws used the electronic username and password details of Doctor A on 22 occasions, on dates detailed in a Schedule to the Complaint, to access her own personal medical records.
2. On 15 September 2018 and 23 September 2018, Ms Laws used the electronic username and password details of Doctor B to access her own personal medical records.
3. Between 8 July and 9 September 2018, Ms Laws used Doctor A's login details on 11 occasions to access the medical records of Person C, on specific dates as outlined in a Schedule to the Complaint.
4. On 23 September 2018, Ms Laws used Doctor B's login details to access the medical records of Person C. On the same day, Ms Laws used Doctor B's login details to access the medical records of Person D.
5. On 23 September 2018, Ms Laws used the electronic username and password details of Doctor B to draft and print a letter for the benefit of Person D, addressed to Person D's school.
6. Between 29 May 2018 and 23 September 2018, Ms Laws used the electronic usernames and password details of Doctor A and Doctor B on multiple occasions to create and print prescriptions for Schedule 4 and Schedule 8 medications in the name of herself and Person C. A Schedule of the specific dates and medication is attached to the Complaint. The medications included Tramadol, Oxycodone, Pregabalin and Diazepam.
7. Tramadol is a synthetic opioid-like analgesic. It is a Schedule 4 drug. Under the Poisons and Therapeutic Goods Act 1966 (NSW) a Schedule 4 drug can only be supplied with a prescription. Accordingly, Tramadol is available as "prescription only medication" and as such is also known as a "restricted substance". Oxycodone is a narcotic like morphine and heroin. It is part of a group of drugs known as prescription opioids. It is a Schedule 8 drug. This reflects its significance as a drug of addiction. Diazepam was first marketed as Valium, and is a medicine of the benzodiazepine family that typically produces a calming effect. It has a moderate addiction liability. Pregabalin, known by its brand name Lyrica, is used to treat anxiety and nerve pain. Diazepam and Pregabalin are Schedule 4D drugs.
8. The evidence discloses that although Ms Laws had been prescribed medication by Doctor A and Doctor B in the past, the particular medications on the dates specified in the Schedule to the Complaint had not been prescribed to Ms Laws or Person C by Doctors A and B. It appeared that consultations were copied and pasted from previous consultations or created, and prescriptions were generated. Doctors A and B had never treated Person C as a patient. Further, Doctor B did not see Person D on 23 September 2018 and had not written a letter on their behalf.
9. A Patient Summary Report produced by the Department of Human Services showed a significant number of prescriptions from 1 July 2018 to 29 September 2018, including 500 Tramadol 200 mg tablets for Ms Laws and 360 Tramadol 200 mg tablets for Person C.

Complaint Two

1. It appears that in the context of the initial notification made to AHPRA, Ms Laws wrote a letter dated 6 November 2018 to AHPRA and the Commission. It was in this letter that Ms Laws made a number of statements which were misleading.
2. Specifically, Ms Laws admitted to accessing Person D's medical records on one occasion, but in fact she had accessed the records on multiple occasions. Further Ms Laws stated that she was required to 'give proof of a letter to [Person D's] school regarding mental health issues written by [Doctor B], when Doctor B did not write any letter for Person D. We note that there were two typographical errors in the Complaint filed by the Commission which erroneously referred at various points to Dr B as Dr A and Dr D.
3. Further, although Ms Laws admitted to printing prescriptions in her name on only one occasion and in error, she had in fact printed prescriptions in her own name on multiple occasions.
4. Finally, Ms Laws had stated: "I don't believe I am a prescription shopper as the prescriptions were given to me by the same doctor with knowledge of other scripts given to me" Ms Laws knew this was not the case. The clinical and other medical evidence presented by the Commission indicated that Ms Laws had seen multiple doctors at various medical centres whom did not appear to be aware of other medications which had been prescribed to her.

Complaint Three

1. The particulars of the first two complaints were repeated and relied upon by the Commission both individually and cumulatively to support a complaint of professional misconduct against Ms Laws under section 139E of the National Law.
2. It was said that the unsatisfactory professional conduct displayed by Ms Laws was of a sufficiently serious nature to justify suspension or cancellation of her registration, or that when the instances were considered together, amounted to conduct of a sufficiently serious nature to justify the suspension or cancellation of her registration. We will deal with professional misconduct later in this decision.

Complaint Four

1. The Commission alleges that Ms Laws has an impairment within the meaning of section 5 of the National Law in that she has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect her capacity to practice the profession of nursing.
2. It is said that Ms Laws: 1. is dependent on a range of analgesic medications including Endone, Tramadol, Oxycodone and Diazepam; 2. has an impairment of mood and anxiety which may reflect an adjustment disorder, a more severe depressive disorder or some underlying personality dysfunction.
3. Ms Laws was referred by a General Practitioner to Dr Roytowski, a consultant Psychiatrist. Dr Roytowski conducted an interview via video link with Ms Laws in December 2018. Dr Roytowski noted that she did not undertake a complete assessment due to technical issues and a difficulty in scheduling a follow up appointment. However, it was her intention and that of Ms Laws to continue with the assessment in what would have then been the New Year. There is no evidence before us as to whether this follow up appointment did or did not occur.
4. In a written report dated 12 December 2018, Dr Roytowski did not refer to any corroborative information and appeared to be reliant on Ms Laws' self-report. Dr Roytowski noted that Ms Laws' psychiatric history needed further exploration.
5. Dr Roytowski noted that Ms Laws presented with longstanding mood and anxiety issues as well as chronic pain from lumbar and sacral spinal pathology.
6. Dr Roytowski recorded current symptoms for Ms Laws as anxiety since leaving her job at a medical centre. She noted that Ms Laws was "currently being investigated by the Nursing Board" in relation to two significant complaints. Dr Roytowski reported that Ms Laws seemed to be struggling with an adjustment disorder with mixed anxiety and depressive symptoms in the context of this recent workplace complaint and investigation.
7. We note that the subject matter of the complaints as referenced in Dr Roytowski's report do not completely align with the subject matter in the initial complaint made to AHPRA, and the complaints made before us.
8. Specifically, Dr Roytowski refers to Ms Laws being given a painting as a farewell gift by the practice manager of the Medical Centre, but without the permission of the owners, and an anonymous report that Ms Laws had sold Schedule 8 medications. In contrast, the initial complaint to AHPRA as particularised in the Complaint before us, related to Ms Laws raising and printing prescriptions using the login details of the two doctors where she worked.
9. In this sense, it is hard to know how much weight to attach to Dr Roytowski's view that Ms Laws was struggling with an adjustment disorder, with mixed anxiety and depressive symptoms, sourced to the workplace complaint and investigation. This is because the report does not canvass, nor does it purport to deal with, why Ms Laws inappropriately created prescriptions for Schedule 8 medication for herself and a family member. The margins of the report are also limited because Dr Roytowski clearly indicated that Ms Laws' psychiatric history needed further exploration.
10. At the request of the Commission, Dr Samuels prepared a report dated 16 July 2019 in respect of Ms Laws. He did not see Ms Laws but reviewed an extensive amount of clinical and prescription history for Ms Laws. He reviewed Ms Laws' health records from five medical centres including where she was formerly employed. He had access to information about the prescriptions inappropriately generated by Ms Laws. He also had the report of Dr Roytowski available to him.
11. On the basis of the material Dr Samuels reviewed, it seemed to him that Ms Laws may have some current symptoms of depression and anxiety which may well be part of an adjustment response to the current situation, being the workplace complaint and investigation by the Commission, or represent a psychiatric condition secondary to problems with chronic pain and analgesic misuse.
12. Dr Samuels has extensive experience in the management of chronic pain based on his experience as a general hospital psychiatrist and working in pain clinics. In his view, Ms Laws' back problems had been poorly managed over the years and she has developed a dependence on analgesic medications including Endone, Tramadol, Oxycodone and Diazepam.
13. Dr Samuels expressed the view that the forging of prescriptions by Ms Laws in her name, and that of Person C, reflected the severity of her analgesic misuse problems and indicated significant dependence and abuse. However, these actions together with the forging of a letter for Person D also raised the possibility of underlying personality issues with antisocial features.
14. Dr Samuels expressed the view that until there was some evidence to demonstrate that Ms Laws' chronic pain problems are adequately managed, and that she is being closely monitored by appropriate specialists, her analgesic regime is rationalised and she is restricted to a single prescriber; he held serious concerns about her fitness to practise as an enrolled nurse. In addition, there appeared to be some moderate symptoms of depression and anxiety which may also be impacting upon her professional practice.
15. Dr Samuels expressed the view that Ms Laws had a serious impairment in that she appeared to have a problem of chronic pain and a dependence on a range of analgesic medications including Endone, Tramadol, Oxycodone and Diazepam. In addition, he identified an impairment of mood and anxiety which may reflect an adjustment disorder or a more severe depressive disorder. In his view, there was some suggestion that she may have some underlying personality dysfunction, although he noted that the evidence for this is less clear in the absence of a formal psychiatric evaluation.
16. Dr Samuels concluded his report by stating that all Ms Laws' impairments had "the capacity to impact on her capacity to practise" nursing. He noted his earlier concerns about her fitness to practise. In his view, it was important for her chronic pain, depressive and anxiety problems to be appropriately managed and that she ought to be referred to the Impairment Program.
17. Certainly the evidence discloses that Ms Laws has been prescribed a large amount of analgesic medication from a number of different prescribers, and for several months in the middle of 2018, she created prescriptions in her own name and in the name of Person C. The logical inference is that she was taking this medication, and we accept the view of Dr Samuels that she is dependent on a range of analgesic medications including Endone, Tramadol, Oxycodone and Diazepam.
18. Accordingly, the first part of the complaint is made out. We are satisfied that Ms Laws is dependent on a range of analgesic medications including Endone, Tramadol, Oxycodone and Diazepam. Accordingly, Ms Laws has an impairment within the meaning of section 5 of the National Law, namely substance abuse or dependence that potentially detrimentally affects, or is likely to detrimentally affect, her capacity to practise the profession of nursing.
19. However, in our view, the second part of the complaint that Ms Laws has an impairment characterised by mood and anxiety issues which may reflect an adjustment disorder, a more severe depressive disorder or some underlying personality dysfunction, is less clear from the material before us. In our view, in the absence of a formal and more complete psychiatric evaluation, we are unable to make a clear finding that Ms Laws is impaired on this basis.

Complaints One and Two: Unsatisfactory Professional Conduct sections 139B(1)(l)

1. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not 1. "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law.
2. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice, it can be seen as improper.
3. In HCCC v Nguyen [2018] NSWCATOD 168, the Tribunal considered the scope of "improper conduct" in s 139B(1)(l), stating at paragraphs [47] to [49]: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited.
4. Ms Laws inappropriately used the usernames and passwords of two general practitioners (Drs A and B) at the Medical Centre at which she worked, to access the medical records of herself and two family members. On multiple occasions Ms Laws forged prescriptions. Her conduct was calculated, repeated and dangerous.
5. The evidence demonstrates that Ms Laws' deception was multifaceted. She manipulated clinical records data. She created and forged prescriptions for Schedule 8 and Schedule 4 medications. Her conduct was deliberate and systematic. It shows a complete lack of moral compass and represents a significant departure from the standards that are expected of nurses. It was improper and unethical.
6. When these matters were put to Ms Laws by the Commission in the course of their investigations, she misled them. She admitted to accessing Person D's medical records on one occasion, but in fact she had accessed medical records on multiple occasions. She admitted to printing prescriptions in her name on only one occasion and in error, when in fact she had printed multiple prescriptions in her own name on multiple occasions. She stated that she was required to give proof of a letter to Person D's school regarding mental health issues written by Doctor B, when Doctor B did not write any letter for Person D. Finally, she implied that her prescriptions for Tramadol and Pregabalin were given to her by the same doctor with knowledge of the other prescriptions given to her, but was not candid as to the extent to which she had consulted multiple general practitioners.
7. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at paragraph [81].
8. It was Ms Laws' duty to be candid and honest with the Commission. This is an integral part of the proper functioning of the regulatory system. It was improper and unethical of her to provide misleading information to the Commission. By her actions, she demonstrated a disregard for the Commission and its role. Again, Ms Laws failed to identify the moral dimension to her conduct. Her conduct was not in conformity with standards of professional conduct and practice and, as such, was improper and unethical.
9. We are satisfied that complaints one and two are established. Ms Laws' conduct constitutes unsatisfactory professional conduct under s 139B(1)(l) of the National Law.

Complaint Three: Professional Misconduct section 139E of the National Law

1. The Commission submits that the conduct of Ms Laws, which we have found constitutes unsatisfactory professional conduct, when considered individually and cumulatively is of a sufficiently serious nature to amount to professional misconduct.
2. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation": see paragraph [19].
3. In our view, when the complaints are considered individually and together, there has been a significant departure from the standard of conduct to be expected of a nurse. It was improper and unethical for Ms Laws to systematically and duplicitously forge prescriptions for restricted substances. It represents a significant departure from the standards that are expected of nurses. It had the potential to bring the profession of nursing into disrepute and undermine the confidence the public holds in relation to the practice of nursing.
4. Ms Laws then compounded her conduct with her lack of candour with the Commission.
5. We find that the unsatisfactory professional conduct displayed by Ms Laws is of a sufficiently serious nature to constitute "professional misconduct" under s139E of the National Law.
6. We are satisfied that the complaint of professional misconduct, as detailed in complaint three, is proved.

Complaint Four: Impairment

1. The evidence demonstrates that Ms Laws is dependent on a range of analgesic medications including Endone, Tramadol, Oxycodone and Diazepam. On this basis, we have found that Ms Laws is impaired.
2. There is no evidence before us that this impairment has actually affected Ms Laws' practice. In its application and attached Complaint, the Commission did not seek ancillary findings that Ms Laws was not competent to practise nursing based on impairment. It simply sought a finding of impairment.
3. Dr Samuels expressed the view that he had concerns about Ms Laws' fitness to practise nursing. However, it was important for Ms Laws' chronic pain, depressive and anxiety problems, to be appropriately managed and, in his view; she ought to be referred to the Impairment Program.

Principles regarding protective orders

1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of Part 8 of the National Law in relation to proven claims against registered health practitioners: see sections 149A, 149B and 149C of the National Law.
2. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s 3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective: see s 3A National Law. Such restrictions are only to be imposed where necessary to ensure health services are provided safely and at an appropriate quality: see s 3(3)(c) of the National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34].
3. In Health Care Complaints Commission v Do [2014] NSWCA 307, Justice Meagher (with whom Justices Basten and Emmett agreed) referred at [35] to the importance of denunciation of misconduct, in the context of s 3 and s 3A of the National Law, as follows: 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.
4. As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.

Consideration of protective orders

1. The complaints of unsatisfactory professional conduct and professional misconduct have been proved.
2. Having found the complaint of professional misconduct proven against Ms Laws, we may exercise powers to suspend or cancel her registration: see s 149C(1) of the National Law.
3. In its submission, the Commission sought cancellation of Ms Laws' registration as a nurse for a period of 2 years. We note that the Commission's submissions appeared not to appreciate that Ms Laws was currently unregistered. However, we understood the Commission's position to be that Ms Laws should not be able to seek registration for a period of 2 years.
4. In our view, Ms Laws' conduct is very serious. She inappropriately used login details, manipulated data and forged prescriptions. Because of that conduct, she demonstrated an absence of propriety, honesty and integrity relating to the practice of nursing. Ms Laws was not candid and honest with the Commission. This is an integral part of the proper functioning of the regulatory system.
5. Ms Laws has made no submissions as to protective orders. As a result, we have somewhat limited measures by which we can assess the level of insight and remorse, if any, that Ms Laws holds into her conduct now.
6. Certainly Ms Laws had an opportunity to demonstrate insight and remorse when investigated by the Commission. She chose not provide any meaningful information in this regard. She has not provided any material to the Tribunal that would assure us that she has any insight or understanding into the standards of practice and morality required of her as a nurse.
7. Having regard to the seriousness of these matters, together with the findings made above, we are satisfied that if Ms Laws were still registered we would have cancelled her registration. In our view she ought to be disqualified from being registered as a nurse for a period of 2 years.

Costs

1. The Commission seeks an order for costs. The Commission has been successful on all but one of its sub particulars related to impairment. This did not have an impact on the outcome of the Complaint. It has been wholly successful on the complaints of unsatisfactory professional conduct and professional misconduct. Accordingly, an order for costs will be made in its favour.

Orders 1. Under s 149C(4)(a) of the National Law, if Ms Laws were still registered as a nurse, the Tribunal would have cancelled her registration. 2. Under s 149C(4)(b) of the National Law, Ms Laws is disqualified from being registered as a nurse for a period of 2 years from the date of this decision. 3. Under s 149C(4)(c) of the National Law, the Tribunal requires the Nursing and Midwifery Board to record the fact that had Ms Laws been registered, the Tribunal would have cancelled her registration for a period of 2 years from the date of this decision. 4. The Registrar is requested to notify the Nursing and Midwifery Council of NSW, and the Australian Health Practitioner Regulation Agency, of Orders 1, 2 and 3 above, as soon as practicable. 5. Ms Laws is to pay the costs of the Health Care Complaints Commission, to be agreed or assessed. 6. Under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure to any person or entity of the names, addresses or any other identifying information of Doctor A, Doctor B, Person C or Person D referred to in the evidence in the proceedings, is prohibited.

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: 31 August 2020