Health Care Complaints Commission v Liszt

1. The practitioner was self-represented and did not make written submissions. His opening oral submissions reiterated some of the arguments he had raised in the Stage 1 proceedings. The Senior Member presiding explained the purpose of the Stage 2 proceedings and asked the practitioner to address the Tribunal's discretion to make disciplinary orders and, in particular, the orders sought by the Commission.
2. During the hearing the practitioner did not advance arguments to address what disciplinary orders he considered may be appropriate, having regard to the Tribunal's findings in the Stage 1 Decision. He neither directly advocated for, nor opposed, a particular course of action. However, his views on supervision and his return to work options (not necessarily as a registered nurse) were to some extent disclosed during his cross-examination.
3. The Tribunal considered whether the orders sought by the Commission were appropriate in the interests of protecting the health and safety of the public, being the paramount consideration. Additionally, the Tribunal considered what orders would serve to maintain professional standards and uphold public confidence in the standards of the profession, as well as deter the practitioner and other practitioners from contravening conditions that may be imposed on their registrations in the future.
4. The Tribunal evaluated the seriousness of the practitioner's repeated refusal to have a neuropsychological assessment, and the risk posed to the public if he returned to nursing. In assessing the risk, the relevant evidence included his performance assessment results, his medical history, the opinion of Dr Anthony Samuels (Consultant Psychiatrist) and his failure to meet both the mandatory registration requirements of continuing professional development ("CPD") and recency of practice ("RoP").
5. We decided to cancel the practitioner's registration, with a non-review period of twelve months, and to make an order prohibiting him from providing a health service as defined in s 4 of the HCC Act for twelve months. We also ordered the practitioner to pay the Commission's costs, as agreed or assessed.

1. In support of its application for disciplinary orders filed on 8 May 2024, the Commission relied upon:

(1) the material and evidence before the Tribunal in the Stage 1 proceeding;

(2) disclosures made by the practitioner in relation to renewal of his registration in 2024 and 2025 (marked for identification as "A1");

(3) written submissions dated 28 August 2025 (not marked).

1. As noted above, the practitioner did not file any material for consideration in the Stage 2 hearing, but made short oral submissions. He also gave oral testimony and was cross-examined.

1. In the absence of written, and substantive oral, submissions from the practitioner, we rely heavily upon statements made by him during his cross-examination in order to understand his position on a number of matters.
2. The practitioner sought to ventilate some of the matters he had raised in the Stage 1 proceedings. In particular, he continued to criticise the Council for not referring him to an Impaired Registrants Panel ("IRP") before requiring him to attend a health assessment. It was evident that the practitioner refused to accept the Tribunal's findings in Stage 1, that the sequence of events for referring a matter to an IRP requires a practitioner to be medically assessed before the IRP is convened. We note the exchange between the Council and the practitioner during the s 150 hearing about the sequence of actions associated with referring him through the health pathway and enable him to get back to work, as referred to in the Stage 1 Decision at [358]-[359] and [361]-[362].
3. In any event, to be clear, the Commission's Complaint did not concern impairment. Indeed, Dr Samuels had concluded that he did not have sufficient information available to provide a definitive opinion on impairment. The Commission's Complaint was concerned solely with the issue as to whether the practitioner had a reasonable excuse for not attending (on two occasions) the health examination as directed under Condition 2 of his registration.
4. When asked whether he still maintained that he had a reasonable excuse for not attending the assessments, the practitioner said that at the time he did believe he had a reasonable excuse but, in light of the Stage 1 Decision, he acknowledged that his belief may have been misconceived. He added that he understood that it was still possible to appeal the Tribunal's decision and that he had not excluded this as an option.
5. When asked whether he thought there was something in the Stage 1 Decision that he believed is not right, the practitioner said that he believed he had a right to understand the precise nature of the conduct that led to the s150 hearing following the performance assessment. We address this under "Consideration" in these Reasons.
6. The practitioner was asked whether he agreed with paragraph 378 in the Stage 1 Decision (extracted below) and whether he believed he had a choice about complying with the conditions imposed under s 150:

"We are satisfied that the practitioner was fully aware of the conditions imposed on his registration, and the reasons given by the Council as to why they were imposed. We are also satisfied that he understood that contravention of conditions is a serious matter and could be regarded as professional misconduct. Finally, we are also satisfied that the practitioner was fully aware of the consequences of failing to comply with the conditions, which is why the Commission's application for disciplinary findings and orders is before the Tribunal."

1. His evidence was that he was not aware that failure to comply could amount to professional misconduct, and thought that it would be regarded as unsatisfactory professional conduct. However, he conceded that two occasions of failing to comply could be regarded as professional misconduct.
2. The practitioner was referred to the following paragraph (under a heading "Conclusion") on page 21 of the Performance Assessment Report dated 5 February 2021 and was asked whether he still had an issue with concentration or whether this had been resolved:

"The assessors were also concerned at Mr Liszt' lack of attention to detail, disorganisation, distractability, and poor short-term memory which were evident throughout the assessment. The assessors feel a duty of care to raise the possibility that an underlying health issue may be impacting Mr Liszt's ability to acquire, retain and apply new knowledge in order to consistently perform his duties to the required standard."

1. He agreed that they were serious concerns, but suggested that they were possibly due to his poor eyesight at the time which has since been surgically corrected. He said that he had not been given specific information about what the assessors' conclusion referred to. He could not recall whether he had discussed with the assessors his long-standing Attention-Deficit/Hyperactivity Disorder ("ADHD") and treatment, and asserted that if he had been referred to an IRP there would have been more information available, including about his vision. He said that he did not deny that he had the issues as described in the Performance Assessment Report, but denied that he had an impairment affecting his practice.
2. The practitioner was referred to the assessors' recommendations that he complete further education in the following areas of practice (as noted on page 22 of their report):
   • Medication administration
   • Pharmacology
   • Documentation and ISBAR framework
   • Nursing standards
   • Code of conduct
   • Reflective practice
   • General care of the deteriorating patient
   • Infection control
   • The national COVID 19 clinical evidence taskforce guidelines
   • Patient assessment, including mental state assessment, A-G assessment
   • Therapeutic engagement
   • Planning and evaluating care
   • Managing aggression/de-escalation
3. The practitioner acknowledged that it had been a long time since he had undertaken any CPD education and that he would need a large amount of time before he was ready to return to nursing. His last nursing shift was on 9 June 2019, more than six years ago. He said he thought he would need 300 hours of clinical practice, and that he had only undertaken one subject in 2023 in connection with his Diploma of Mental Health. He acknowledged that he had not done any CPD relating to the areas of practice identified in the assessors' report.
4. When asked whether he thought it was a good idea to look for information on the specified areas of practice for his further education, the practitioner said that it was obviously needed but that it had not been ordered.
5. Counsel for the Commission asked the practitioner whether he had looked into what was needed to satisfy RoP requirements. He said that he had not. He added that he would need his clinical hours updated and whilst he conceded he did not know the specific number of hours of clinical practice that were required, he understood that possibly 300 or 200 hours were necessary. He indicated that he deferred to the knowledge of the subject matter experts on the Tribunal panel for confirmation.
6. When asked whether his diagnosis of ADHD affects his capacity to practise, the practitioner denied having an impairment (as defined in the National Law), but acknowledged that he had a condition. He said that given the long-standing nature of the condition for more than 20 years, it has been managed with medication and he has only worked limited shifts which gave him control over his hours.
7. He agreed with a suggestion by Counsel for the Commission that an assessment by a psychiatrist would be helpful to determine his capacity to practise, and then lapsed into a somewhat confusing analysis that there needed to be a complaint for the matter to go to an IRP hearing. He again postulated that his eyesight could have been the cause for some of the concerns.
8. The practitioner was referred to the disclosures he made with respect to the renewal of his registration with the Australian Health Practitioner Regulation Agency ("Ahpra") on 19 March 2024 and 26 June 2025. In both renewals, he answered "yes" to the question: "Do you meet the NMBA's recency of practice requirements?". He also answered "Yes" to the question: "During your preceding period of registration, have you met the NMBA's continuing professional development (CPD) requirements?" He answered "No" to the question: "Do you have an impairment that detrimentally affects, or is likely to detrimentally affect, your capacity to practise the profession?"
9. The practitioner conceded that there may have been some errors in his renewal declarations. When asked whether he had talked with his treating doctors about the assessment of his performance before completing the declarations, the practitioner said that he did not believe he has an impairment that detrimentally affects his practice. He said that his treating psychiatrist was generally aware that there was some criticism of him in the performance assessment, and made no further comment.
10. When asked about his plans to return to nursing, the practitioner said that he had only ever worked in mental health, his area of expertise, and that he would not seek to return to general nursing.
11. When asked whether he would need a supervisor if he returned as a registered nurse, he said that he usually worked as part of a team on various wards in mental health, and that the nurses supervise each other on a day-to-day basis. He said that he would not need a one-on-one supervisor in mental health.
12. In terms of whether he would work in public or private health care, the practitioner said that he was not well regarded in the public environment and that he would not be able to obtain a reference from his previous employer.
13. The practitioner said that he had given some consideration to working as an Assistant in Nursing or support worker with a non-government organisation and possibly not technically in a nursing role. Several years ago, he had been offered a role working in an injecting centre and he has considered the possibility of working in a non-registered role, such as working with the homeless.
14. Counsel for the Commission asked the practitioner if he found it difficult to have trust in the Council. His response was that he had lost faith in the Council because it had received a wrong complaint which had been left unresolved for five years. It was suggested that he had lost faith in the Council and the Commission, to which he said that he had lost trust that the errors had occurred and he was frustrated that the original complaint was superseded by continuing complaints that had followed him through all the processes.
15. Counsel for the Commission noted that the practitioner had not made submissions for the Stage 2 hearing and asked whether he had lost trust in the Tribunal process. He answered that he would not be in the hearing if he had lost trust in the Tribunal process.
16. The practitioner was asked whether he disputed the transcript of the Council's s 150 proceedings. The audio recording had been provided to him, due to his statement at the Stage 1 proceedings that the transcript was incorrect. However, the practitioner said that he had not listened to it, asserting that it is not difficult to falsify audio recordings. The practitioner was asked whether he had satisfied himself that email correspondence between himself and the Council was accurate, to which he replied that they were incomplete and therefore inaccurate.
17. Asked if he would need help to return to work as a registered nurse, the practitioner said that he would need clinical supervision. Asked if he would find it difficult to deal with the Council regarding supervision, he said that it was a big organisation and asserted that he would not be concerned.
18. Asked if he was ready to go back as a registered nurse conditional upon a health assessment, the practitioner said that if the health assessment relates to a complaint, and an assessment was recommended, he would agree to that.

Relevant statutory provisions and legal principles governing the exercise of disciplinary powers

1. The Stage 1 Decision at [192]-[205] set out the powers of the Tribunal if a complaint is proved or admitted and the Tribunal's powers to suspend or cancel a practitioner's registration under s 149C(1) of the National Law. The Stage 1 Decision also set out the principles governing the Tribunal's exercise of its disciplinary powers. We therefore only briefly refer to those principles in these Stage 2 Reasons.
2. First and foremost, the Tribunal's exercise of its disciplinary powers is subject to the paramount consideration under s 3A of the National Law, namely, the protection of the health and safety of the public.
3. The Tribunal's discretion to make protective orders must be exercised in a way that achieves the protective purpose.
4. The Tribunal's jurisdiction is primarily protective, and not punitive: Health Care Complaints Commission v Litchfield (1997) NSWSC 30 at 637.
5. It is unavoidable that protective orders may be incidentally punitive: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31]. We acknowledge that the orders may have adverse consequences for the practitioner's financial circumstances because, if his registration is cancelled, he will be unable to work as a registered nurse. However, those consequences are a secondary consideration to the paramount consideration, being the health and safety of the public.
6. No order should be made which has more serious consequences for the practitioner than is reasonably necessary to promote the protective purpose: s 3A(c) of the National Law.
7. There is a well-established principle that compliance with conditions imposed on a practitioner's registration must be "scrupulously observed": Prakash v Health Care Complaints Commission [2006] NSWCA 153 at 74. Practitioners in many instances are able to retain their registration only because a Council is satisfied that conditions imposed ameliorate risk to the public and/or maintain a practitioner's health and well-being: Health Care Complaints Commission v Reid [2018] NSWCATOD 162 at [131]- [133].
8. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, "containing as it does a grave criticism of the standard of the practitioner's conduct": Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [45].
9. Protective orders serve to:

(1) maintain the standards of the profession;

(2) preserve public confidence in the profession;

(3) preserve public confidence in the protection of the public;

(4) prevent repeat behaviour by the practitioner;

(5) denounce the practitioner's conduct and deter others from engaging in similar conduct and encourage other practitioners to recognise the importance of complying with professional standards and complying with conditions imposed upon their registration.

Evaluative process to determine the outcome of each case

1. A number of comparable cases may be said to have achieved outcomes that assist the Tribunal in deciding what protective orders are appropriate. However, when determining the outcome for a health practitioner, each case before the Tribunal must be considered on its own merits and this involves an evaluative judgment to be made, having regard to the nature and seriousness of the conduct. This was confirmed by the Court of Appeal in Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) per Basten JA at [20] (with whom Leeming JA agreed):

"There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct."

Decision to cancel registration is not dependent upon finding the practitioner to be permanently unfit

1. It is not necessary for the Tribunal to make a finding that the practitioner is probably permanently unfit to practise before registration can be cancelled: Chen per Payne JA at [67]-[71]. In particular, we note the analysis at [71]:

"A requirement of probably permanent unfitness is also inconsistent with the statute's contemplation that a practitioner is able to re-apply for registration under s 149C(7). That sub-section contemplates that a practitioner may apply to have the question of whether he or she lacks fitness to practise re-visited. The emphasis in such an application is on the practitioner's current fitness to practise, rather than an assessment of "probable permanent unfitness"."

Deciding any non-review period if registration is cancelled

1. As explained in the Stage 1 Decision at [203]-[205], the Tribunal has discretion to cancel a practitioner's registration and decide the length of any non-review period: s 149C(7) of the National Law.
2. The non-review period is not determined through an arithmetical process, but through a process of instinctive synthesis using the specialised experience and knowledge of the Tribunal: Shelley v Nurses & Midwives Tribunal of NSW & Anor [2007] NSWSC 1240 at [37]- [38].

1. The Stage 1 Decision at [206]-[208] identified the relevant provisions in the National Law under which the Tribunal has power to order the practitioner to pay the Commission's costs of proceedings.
2. In Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 at [51], the Tribunal confirmed that, as a general rule, the successful party is entitled to receive payment for their costs and mere impecuniosity on the part of another party does not justify a departure from that rule. The rule is only displaced where there has been some disentitling conduct by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40] which has been applied by the Tribunal in several decisions (noted in the Stage 1 Decision at [208]).

1. In view of our findings in the Stage 1 Decision, we are satisfied that it is appropriate to exercise the Tribunal's disciplinary powers under Part 8, Division 3, Subdivision 6 of the Law.
2. Since the Tribunal found the practitioner guilty of professional misconduct, it has discretion to suspend or cancel his registration, with the protection of the health and safety of the public being the paramount consideration: s 3A of the National Law.
3. The issues to be determined are:

(1) whether to:

(a) do any one or more of the actions set out in s 149A of the National Law such as to caution or reprimand the practitioner, or impose conditions considered to be appropriate on his registration, or order him to complete educational courses; or

(b) impose a fine on the practitioner under s 149B of the National Law; or

(c) suspend his registration for a specified period or cancel his registration under s 149C(1) of the National Law; and/or

(d) make an order under s 149C(7) of the National Law to provide that an application for review of an order may not be made until after a specified date;

(e) make an order under s 149C(5) of the National Law prohibiting him from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW); and

(2) whether to order the practitioner to pay the Commission's costs pursuant to Sch 5D, cl 13 of the National Law.

Two important matters to consider: Risk and qualifications to practise

1. One of the key objectives of the national registration and accreditation scheme established under the National Law, is to ensure that only health practitioners who are "suitably trained and qualified to practise in a competent and ethical manner are registered": s 3(2)(a) of the National Law.
2. In light of s 3A (the paramount consideration) and s 3(2)(a) of the National Law (training and qualifications), there are two important matters to consider in this case. First, are there any risks to the public associated with Mr Liszt practising as a nurse? Second, is the practitioner currently suitably trained and qualified to practise, satisfying a key objective of the National Law?

Assessment of the practitioner's risk to the public and current qualifications to practise

1. As a result of the matters disclosed by the practitioner in his performance interview, the interviewers held concerns that he had not maintained contemporaneous practice during his 20 years of working on the basis of casual shifts (sometimes only one shift per week) and he had failed to complete the mandatory CPD requirements. Additionally, his performance had not been formally reviewed in 20 years. As a result, the interviewers recommended that the practitioner undertake a performance assessment in order to evaluate whether his clinical skills and decision-making abilities were at the standard expected of a registered nurse with his years of experience.
2. The practitioner's performance assessment demonstrated that he had deficits in communication, general patient assessment, medication administration, infection control, comprehensive mental health and risk assessment, and nursing documentation processes. He appeared to have trouble with concentration, focus, memory and organisation. The assessors expressed concern at the practitioner's lack of attention to detail, distractibility and poor short-term memory. They felt a duty of care to raise the possibility that an underlying health issue may be impacting the practitioner's ability to acquire, retain and apply new knowledge in order to consistently perform his duties to the required standard.
3. The assessors recommended that the practitioner attend an independent health assessment to determine whether any modifiable barriers existed to his acquisition, retention and application of new knowledge, to inform the level and type of support he may require in order to achieve independent practice. As we know, an appointment was made for the practitioner to attend an appointment with Dr Breen pursuant to s 152B(1) of the National Law (noting this was an appointment made prior to the Council convening a hearing under s 150 of the National Law). However, the practitioner failed to attend that appointment.
4. We address the practitioner's oral evidence in this Stage 2 proceeding that he did not understand the precise nature of the conduct that led to the Council's s150 hearing. At the time of convening the hearing, the Council had the performance assessment results and the practitioner had failed to attend the appointment with Dr Breen. Drawing from the Stage 1 Decision at paragraph [345]:

"As a consequence, under s 152B(4) of the National Law, his failure to comply with the notice to attend the examination was evidence that he did not have sufficient physical or mental capacity to practise and, accordingly, the Council was entitled to consider whether it was appropriate to exercise its power under s 150 for the protection of the public."

1. As the Stage 1 Decision explains, the Council imposed Condition 2 upon his registration, for the protection of the health and safety of the public, requiring him to have a health assessment. The practitioner failed to attend a health assessment on two occasions, in breach of Condition 2 (the subject of the Commission's Complaint). When subsequently referred to Dr Samuels, another assessment which he failed to attend (although this was not required pursuant to Condition 2 but in order to explore whether the practitioner had an impairment), Dr Samuels opined that the practitioner had limited insight into his performance and functioning. Indeed, the practitioner erroneously believed that he had complied with mandatory CPD requirements and that his performance assessment had gone well.
2. Dr Samuels said that he did not have sufficient information available to provide a definitive opinion as to whether the practitioner suffers from an impairment, but made the following assessment of his risk to the public:

"There clearly are serious concerns about Mr Liszt's clinical abilities and capacity to safely practise as a Registered Nurse. Until he is willing to undertake a neuropsychological assessment and is prepared to be reviewed by a Council appointed psychiatrist, it will be difficult to get a clear understanding of any mental health impairments that might be contributing to his performance difficulties. Until he is willing to comply with Council processes and a comprehensive evaluation can be completed, he should not, in my view, return to a nursing role as he may well represent a risk to the public."

1. The practitioner disclosed to the Council in the s 150 hearing that he had been diagnosed with ADHD for which he had been treated for 20 years. He maintains that he does not have an impairment as defined in the National Law, but that he has a condition which is managed and which does not negatively affect his performance.
2. Under the National Law, impairment with respect to a registered health practitioner is defined in s 5 as follows:

impairment, in relation to a person, means the 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 -

(a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession;

1. From the medical evidence available to the Tribunal, the practitioner's treating psychiatrist (Dr Michael O'Shea) noted in July 2018 the practitioner's ADHD symptoms including that he had "difficulty sustaining attention and concentration" as well as "organisation issues". In June 2019, the psychiatrist noted that the practitioner was easily distracted from his thoughts.
2. In September 2019, the psychiatrist provided a medical certificate (apparently to enable the practitioner to continue to receive benefits through Centrelink) that he was unfit for work for 3 months. The certificate noted ADHD as a condition which impacts upon the practitioner's capacity to work, as well as attention and concentration problems. The practitioner appears to have responded to the psychiatrist's issue of the certificate, by asking for a "report" to be given to Centrelink. In his correspondence with Dr O'Shea, the practitioner stated: "Your "report" could mention my deceased ability to work because of the medication trials in the last year or so." We have no further information on the "medication trials" but note the practitioner's own assessment of his ability to work as being "deceased" (or possibly meaning "decreased").

Whether to caution or reprimand or fine the practitioner

1. We acknowledge that cautioning or reprimanding or fining the practitioner may serve to deter him from repeating his conduct, although we have a concern that his pattern of non-compliant behaviour may indicate that this is an entrenched characteristic, which is unlikely to change without therapeutic intervention. It is more likely to have the effect of deterring other practitioners from breaching conditions that may be imposed on their registration. We hold the view that issuing a caution or a reprimand or a fine indirectly supports the protective purpose, but does little to ameliorate any risk to the health and safety of the public.

Whether to impose conditions on the practitioner's registration

1. The practitioner has demonstrated strong and consistent non-compliant behaviour. This is evidenced in his refusal to comply with directions to have a health assessment before Condition 2 was imposed, as well as his refusal to comply with Condition 2. He is also non-compliant with respect to CPD requirements. We accept the submissions put forward by the Commission that all health practitioners are expected to scrupulously comply with conditions placed on their registration and that the public is entitled to expect that registered nurses will comply with conditions imposed on their registration.
2. However, we have no confidence that this practitioner will comply with conditions if they were imposed in the future, particularly given his oral evidence that his willingness to have a health assessment was conditional upon there being a complaint, and in light of his expressed lack of trust in the Council processes. The practitioner appears to still be obsessed with what he believes is a requirement to be referred to an IRP before having an assessment. He appears to still have a confused misunderstanding about how the National Law operates and the processes associated with referring a practitioner through the health pathway.
3. We are mindful of Dr Samuels' assessment (at paragraphs 213 to 216 of his report) that the practitioner is oppositional and uncooperative, with rigid aspects to his personality:

"It is evident that he has an oppositional and conflictual personality style, instead of acceding to his employer's request for completion of mandatory training, he opted to litigate, he refused to conciliate in the hearings and ultimately the Commissioner dismissed the matter. Mr Liszt has interacted with the Council and the HCCC in much the same manner, he has refused to comply with the assessment process which led to a 'not to practise' condition being placed on his registration.

The tone of his interpersonal interactions with regulatory bodies, his communication style, suspiciousness, concerns about deceit, documents being tampered with and information being withheld from him suggests the possibility of a significant underlying Personality Disorder with paranoid features.

He is grandiose including as evidenced by his seemingly authoritative, legalistic communications. Despite his limited legal training he provides quasi-legal opinions to the regulatory authorities, outlining his interpretation of various Acts and what he believes they can and cannot do.

He exhibits a sense of entitlement and disregard for the processes of the Health regulatory authorities. These factors suggest the present of narcissistic personality traits.

There also appear to be quite rigid aspects to his personality characterised by his unwellness to back down, or to comply with regulatory processes, pursuing a legal rather than a conciliatory approach, appears to have led to a situation that has become unnecessarily complicated both with his employer and the health regulatory authorities. His ongoing unwillingness to comply with directives to have a health assessment including not attending to see me today seems to be further evidence of a significant Personality Disorder or possibly even an emerging psychotic illness..."

Whether to suspend the practitioner's registration

1. Unless suspension is made conditional, the practitioner's registration will occur automatically at the end of the period of suspension. In the case before us, it would clearly be necessary to impose a condition that Mr Liszt be examined by a Neuropsychologist, and that he demonstrates he has satisfied the mandatory CPD and RoP requirements before he could be re-registered. It may also be necessary to impose conditions for him to be supervised and/or mentored for an appropriate period of time upon re-registration, until he can demonstrate that he is capable of practising safely and independently. Clearly, these are necessary and practical considerations for the Tribunal. We find the comments in Chen per Basten JA at [21], which compare suspension with cancellation, to be particularly instructive:

**"**Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it."

1. Our concerns about the practitioner's health are supported by the performance assessors' stated observations, the Council's statements to the practitioner during the s 150 hearing and Dr Samuels' opinion, all of which we find to be very persuasive. We are not satisfied that the practitioner's underlying medical issues and treatment for a long-standing condition render him currently safe to practise. He acknowledged to his treating psychiatrist that concentration and his tendency to become easily distracted have been issues to deal with for a very long period of time.
2. We are not at all persuaded that his vision was entirely, or even partly, responsible for his poor performance in the simulated assessment exercises. It may have been a small contributing factor in reading and calculating the correct administration of medications. We say this because he did not raise his impaired vision at the time of the assessment, and only introduced it as a potential factor (without substantiating evidence) in his line of arguments during the Stage 1 hearing.
3. With respect to the second aspect concerning his qualifications to practise, his oral evidence in the Stage 2 hearing disclosed three matters that we regard as matters causing concern:

(1) First, he has not demonstrated any motivation to undertake, or even search for, courses to enable him to satisfy the recommended CPD requirements;

(2) Second, he appears to hold the view that he will only need to complete further education if ordered to do so. This demonstrates a lack of intrinsic motivation on his part to meet the mandatory qualifications. It also highlights the futility of making orders with which the practitioner may refuse to comply, having regard to his past behaviour and his current expressed disposition of losing faith in the Council processes. In the Stage 2 hearing, he continued to criticise the Council for not resolving the issue of the original anonymous complaint, a matter that had no relevance to the Commission's prosecution of its Complaint. He remains combative and oppositional about that irrelevant issue. His relationship with the Council, if supervision were to be a condition of his registration, would be fraught with difficulty because of the practitioner's tendency to be oppositional and to doubt the integrity and accuracy of documents and objective assessments;

(3) Third, he has a lack of insight into his level of knowledge/expertise and his practical performance, as demonstrated by his false declarations when renewing his registration with Ahpra in 2024 and 2025.

1. We note that, in order to satisfy the current RoP requirements, it is necessary to have a minimum of 450 hours of practice over the past five years. The practice hours include both clinical and non-clinical hours and they do not need to be continuous in that they can be accumulated over the five-year period. Mr Liszt has not worked as a registered nurse since June 2019, more than five years ago.
2. We accept the Commission's submissions that the practitioner's concentration difficulties may affect his practice as a registered nurse if he were permitted to return to practice after a suspension. Nurses have a responsibility to maintain their physical and mental health to practise safely and effectively: Principle 7 (Health and wellbeing) in the Code of Conduct for Nurses issued by the Nursing and Midwifery Board of Australia ("NMBA"), issued in March 2018 and updated in June 2022. Nurses are responsible and accountable for ensuring they are safe, and have the capability, to practise: Standard 3 (Maintains the capability for practice) in the Registered Nurse Standards for Practice issued by the NMBA and Ahpra in June 2016. Those Standards require nurses to complete tasks which require full concentration (such as accurately conducting comprehensive and systematic assessments, being responsible for the planning and communication of nursing practice and using a variety of thinking strategies and the best available evidence in making decisions and providing safe, quality nursing practice).
3. For the same reasons given above with respect to the futility of imposing conditions on the practitioner, we have no confidence that Mr Liszt will comply with conditions attaching to the consequences of suspension coming to an end. Therefore, we do not believe that suspending his registration for a specified period will address the fundamental underlying concerns we have about his underlying health and his current qualifications to practise. We do not believe that suspension, with such uncertainty as to the future, assists in ameliorating the fundamental and paramount consideration, namely, protection of the health and safety of the public. Suspension, in our view, would be inadequate to protect the public.

Whether to cancel the practitioner's registration

1. In light of the above concerns about the practitioner's concentration and distractability difficulties, the assessment of his performance, his CPD and RoP deficits, it is appropriate and proportionate to cancel his registration, in the interests of protecting the health and safety of the public.
2. We acknowledge that the consequences of cancellation impact upon his capacity to earn an income as a registered nurse and that he may require a formal re-entry program approved by the NMBA after not having practised after such a long period of time.
3. However, as already noted, the objectives of the national registration scheme 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) of the National Law. We have no confidence that the practitioner is currently competent to communicate with patients, colleagues, and patient's treating doctors. We have no confidence that he is currently competent to accurately calculate medications for administration to patients. These are simply two practical issues that we identify, arising from the assessors' evaluation of Mr Liszt's competency. Dr Samuels held serious concerns about Mr Liszt's clinical abilities and capacity to safely practise as a registered nurse.
4. We have no confidence that Mr Liszt understands the requirement to have his health assessed, in light of his long-standing ADHD diagnosis and the matters opined by Dr Samuels in his report and during the Stage 1 hearing. Accordingly, while Mr Liszt continues to refuse to attend a health assessment, we cannot be confident that he currently has the capacity to practise safely.

1. The Tribunal has the power and discretion to set a non-review period with respect to an order cancelling a practitioner's registration: s 149C(7) of the National Law. The purpose of setting a non-review period is to protect the health and safety of the public. The effect of setting a non-review period is that a practitioner may not make an application for review of the cancellation order during the non-review period: s 163A(3) of the National Law.
2. At the end of the non-review period, the practitioner will be entitled to make an application to the Tribunal for reinstatement: s 163A(1) of the National Law.
3. The duration of the non-review period indicates the minimum period within which the Tribunal considers the practitioner should not be able to practise his profession by sending a clear message of denouncement of the offending conduct to the practitioner, other practitioners, and the public about the importance of complying with registration conditions and professional standards to be maintained.
4. The practitioner acknowledged that it was a long time since he had undertaken any CPD and that he would need a large amount of time before he was ready to return to nursing. His last nursing shift was on 9 June 2019, more than six years ago.
5. We are of the view that the non-review period will allow the practitioner time to:

(1) complete further education on the topics identified by the performance assessors and regarding current nursing skills and practice;

(2) complete further reading regarding current applicable codes and standards;

(3) engage with a psychiatrist to have his current diagnosis and medication re-evaluated to understand any mental health issues that may be contributing to his performance difficulties;

(4) engage with an appropriately qualified neuropsychologist to assess whether he has any concentration difficulties or inability to think and function without being easily distracted, and to undergo therapy if necessary;

(5) reflect upon his oppositional and combative character traits with the assistance of a qualified neuropsychologist, with a view to demonstrating his willingness to comply with reasonable directions and his worthiness to hold registration in the event that he seeks to apply to be registered in the future.

1. On balance, for the reasons set out above, we consider that a non-review period of twelve months is appropriate in the circumstances of this case.

Whether to prohibit the practitioner from providing a health service

1. The Commission also sought a prohibition order against the practitioner under s 149C(5) of the National Law, arguing that he could seek to use his nursing training and experience to work as an unregistered health practitioner.
2. In circumstances when the Tribunal cancels a practitioner's registration, and is satisfied the person poses a substantial risk to the health of members of the public, it may exercise its discretion to make an order prohibiting the person from providing health services. The phrase "substantial risk to the health of members of the public" is not defined in the National Law. It has, however, been considered by the Tribunal to be a risk that is material and real or apparent on the evidence. It is not a risk that is without substance and is not merely speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96] and more recently in Health Care Complaints Commission v Collins [2021] NSWCATOD 132 at [97].
3. The question of whether a person poses a substantial risk to the health of the public is assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services: Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [19]; Health Care Complaints Commission v De Lore [2020] NSWCATOD 72 at [93].
4. In our view, if the practitioner was permitted to provide health services as an unregistered practitioner during the period when his registration is cancelled, it would undermine the protective purpose of the cancellation order. This is a matter of concern where we hold a concern about his concentration and distractability difficulties, which could pose a risk to patients and the general public. The performance assessors stated they held concerns about the practitioner's health and the possibility that an underlying health issue may be impacting his ability to acquire, retain and apply new knowledge in order to consistently perform his duties to the required standard. This holds true for the nature of work that the practitioner said he had contemplated, such as in an injecting centre, where vulnerable people who suffer drug addiction rely upon professional, accurate advice and supervision. On the evidence before us, the risk to patient health and safety is not speculative, but is material and real.
5. Accordingly, we consider that a prohibition order under s 149C(5) of the National Law, for a period of twelve months, is reasonable and appropriate in the circumstances.

1. We cannot see that there has been any disentitling conduct by the Commission to warrant a departure from the general rule regarding costs.
2. Accordingly, we have decided to order the practitioner to pay the Commission's costs as agreed or assessed in accordance with the applicable costs legislation.

(1) Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW), the practitioner's registration as a health practitioner is cancelled, with a non-review period of twelve months pursuant to s 149C(7) of the National Law.

(2) Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW), the practitioner is prohibited from providing health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for a period of twelve months.

(3) Pursuant to clause 13 of Schedule 5D to the Health Practitioner Regulation National Law (NSW), the practitioner is to pay the Commission's costs as agreed or assessed in accordance with the applicable costs legislation.

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.