Health Care Complaints Commission v Liszt [2025] NSWCATOD 99;

1. There are a number of matters to be considered in the history of this case that culminated in the application for disciplinary findings and orders. However, we note as a matter of some importance that the matters initially notified anonymously to the Commission about the practitioner are not the matters which were ultimately investigated and which became the subject of the Complaint being prosecuted.
2. The practitioner was working as a mental health nurse on a casual basis in 2019 with the Sydney Local Health District (SLHD), and had worked irregular shifts for around 20 years. In April 2020, an anonymous complaint was made to the Commission regarding the practitioner's attendance at a Violence Prevention & Management (VPM) Training Course in April 2019 and August 2019. The anonymous complaint alleged that the practitioner had been "dismissed" because of "misconduct relating to violence prevention and management" and that the administration of the hospital where he had been working thought the practitioner was "a danger to himself and others". Those allegations, and others made in the complaint, are not matters on which the Tribunal is required to make findings.
3. After consulting with the Nursing and Midwifery Council of NSW (the Council), the Commission referred the anonymous complaint to the Council to manage. In the circumstances, the Council was considered to be the most appropriate body to manage the matter.
4. The Council provided a copy of the anonymous complaint to the practitioner on 21 July 2020 and asked him to provide information relevant to the matters notified in the complaint, by 4 August 2020. The practitioner failed to provide all the requested information by the due date, which led to the Council deciding to conduct a performance interview on 15 October 2020 to discuss the issues raised in the complaint.
5. As a result of information disclosed by the practitioner in the interview, the interviewers were concerned that he had failed to complete the mandatory requirements for his practice as a registered nurse in the area of mental health, and that his performance had not been formally reviewed in some 20 years. They therefore recommended that he be required to 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 experience.
6. The performance assessment took place on 5 February 2021. Independent assessors concluded that the practitioner demonstrated deficits in communication, general patient assessment, medication administration, infection control, comprehensive mental health/risk assessment, and nursing documentation processes. The assessors observed that the practitioner appeared to have trouble with concentration, focus, memory and organisation. They expressed concern at his lack of attention to detail, distractibility and poor short-term memory. Their report stated that 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. They recommended that he attend an independent health assessment.
7. On the basis of the assessors' report and recommendation, the Council required the practitioner to attend an examination on 2 August 2021 with Dr Nora Breen, Neuropsychologist. The practitioner declined to attend, asserting that he had not been provided with prior notice. He subsequently also asserted that he did not understand the nature or purpose of the examination.
8. Under s 152B(1) of the National Law, failure to attend a health assessment without reasonable excuse is evidence that the practitioner does not have sufficient physical or mental capacity to practise. As a result, the Council decided to conduct a hearing under s 150 of the National Law to consider whether it was appropriate to suspend or place conditions on the practitioner's registration, in order to protect any person's health or safety, or in the public interest.
9. In the s 150 hearing, the Council advised the practitioner that their concerns were not the matters raised in the anonymous complaint but concerned significant deficits in his practice as a registered nurse (as disclosed in the performance assessment) and his failure to attend a health assessment as directed.
10. The Council imposed two conditions on his registration effective from 7 September 2021. First, he was not to work as a registered nurse until reviewed by the Council (Condition 1). Second, he was required to attend a health assessment by a neuropsychologist (Condition 2).
11. The Council's decision also contained a note that, given its conclusion that the practitioner had health concerns, the matter would be referred to an Impaired Registrants Panel (IRP), subject to consultation with the Commission.
12. Pursuant to Condition 2, arrangements were made for the practitioner to have a health assessment on 27 September 2021, again with Dr Breen. The practitioner foreshadowed to Dr Breen that he did not intend to attend the assessment until he had sought legal advice.
13. Subsequently (again, pursuant to Condition 2), the Council arranged for the practitioner to attend a health assessment on 12 January 2022, this time with Dr Wayne Reid. The practitioner again foreshadowed that he would not be attending the appointment (and the facts show that he did not, in fact, attend). At the time, he said that he had a reasonable excuse for not attending, but would only provide the reason to an IRP. He also objected to being required to have a medical examination before having the matter referred to an IRP.
14. In light of the practitioner's foreshadowed non-attendance with Dr Reid, the Council took the view that this would be a second breach of Condition 2. The Council also advised the practitioner that, after consultation with the Commission, it had been agreed the Council would deal with the matter under the impairment provisions in the National Law (as opposed to requiring the practitioner to be assessed pursuant to Condition 2). Arrangements were made for the practitioner to have a health assessment pursuant to s 152B(1), with Dr Anthony Samuels, Consultant Psychiatrist, on 24 January 2023. The practitioner failed to attend the examination.
15. Dr Samuels then provided his opinion 'on the papers'. Dr Samuels opined that the practitioner appeared to have a number of impairments, including cognitive disorder and personality dysfunction, but concluded that there was insufficient medical information to provide a definitive opinion on the issue of impairment.
16. On 28 January 2022, the Council advised the practitioner that, in the Council's view, he had not provided a reasonable excuse for his failure to attend three health assessments, and that the Council had resolved to make a complaint of unsatisfactory professional conduct to the Commission, for its investigation.
17. The Commission investigated the matters referred to it from the Council and decided, as noted above, to prosecute Complaint One and Complaint Two.
18. Under s 139B(1)(c) of the National Law, "unsatisfactory professional conduct" of a registered health practitioner includes a contravention of a condition to which the practitioner's registration is subject. Under s 139E of the National Law, "professional misconduct" means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or more than one instance of unsatisfactory professional conduct that when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation. These are the matters pleaded in the Commission's Complaint, and not the issue of impairment or the practitioner's failure to attend the health assessment with Dr Samuels.
19. By way of further background and context, the practitioner had initiated an unfair dismissal claim in the Industrial Relations Commission ("IRC") which was permanently stayed since the parties settled the issues between them. He had also initiated an anti-discrimination claim with Anti-Discrimination NSW against the Council and the Commission, alleging that he had suffered discrimination on the basis of a long-term medical diagnosis. That claim was not ultimately pursued. Whilst those matters form part of the general briefing information with respect to the application before us, we do not intend to distract our determination with a detailed analysis of those two matters.

1. On the key issue to be decided, the practitioner submitted that his various explanations for not attending the health assessments with Dr Breen and Dr Reid, pursuant to Condition 2, constituted a "reasonable excuse".
2. He also contended that the Council was biased against him because of the matters alleged against him in the anonymous complaint. He asserted that the Council's decision to impose Condition 2 was influenced by the matters alleged against him in the anonymous complaint and in documents which either described or referred to the anonymous complaint.
3. In a separate line of argument, the practitioner challenged the reasonableness of the Council's decision to require him to attend a health assessment in the first place (before Condition 2 was imposed). Additionally, he challenged whether the Council could be "satisfied" that it was "appropriate" under s 150(1) to impose Condition 2.
4. The practitioner also put forward a number of assertions in support of his argument that his explanation for not attending the examinations constituted a reasonable excuse for not complying with Condition 2. They included an assertion that his failure to attend health assessments was an exercise of his common law right to refuse any medical examination. He also argued that his registration was suspended after the first purported contravention by him of Condition 2, and that he could therefore no longer be subject to the imposition of Condition 2, and could not be prosecuted for the second purported contravention of Condition 2. Additionally, he vigorously (and erroneously) maintained an assertion that he could not be required to have a medical assessment until there had been a hearing before an IRP or a disciplinary body.

1. The Commission submitted that the practitioner's purported reasons for not having the health assessments did not justify his breach of Condition 2.

1. The Commission sought an order cancelling the practitioner's registration with a non-review period of twelve months and a prohibition order prohibiting the practitioner from providing a health service as defined in s 4 of the HCC Act for a period of 12 months. Additionally, the Commission sought an order for costs.

Distinction between Stage 1 and Stage 2 proceedings

1. Pursuant to s 149 of the National Law, the Tribunal may exercise disciplinary power if it finds the subject matter of the Complaint against the practitioner to have been proved, or he admits to it in writing to the Tribunal. Any exercise of the Tribunal's disciplinary powers to make protective orders depends on the outcome of the Stage 1 proceedings.
2. At the outset of the hearing, the Presiding Member explained the distinction between decision-making at Stage 1 (making findings after determining what conduct has occurred and whether unsatisfactory professional conduct or professional misconduct is established) and at Stage 2 (deciding whether, subject to findings, any consequential protective orders are appropriate). It was decided that the hearing would proceed on the basis of a Stage 1 hearing. Any decisions concerning disciplinary orders will be made following a Stage 2 hearing, and will include the issue of costs.

1. After hearing and considering all the relevant evidence, we find the subject matter of Complaints One and Two to be proven. We are satisfied that the practitioner failed to attend health assessments with Dr Breen and Dr Reid, amounting to unsatisfactory professional conduct under s 139B(1)(c) of the National Law. We are also satisfied that he deliberately and knowingly contravened Condition 2 on two occasions without reasonable excuse, in full knowledge of the seriousness and consequences of such contravention. We are thus satisfied that his conduct reached the threshold of professional misconduct under s 139E of the National Law.

1. On day 1 of the hearing, the practitioner sought an order prohibiting the publication of matters contained in the reports and file notes of his treating medical practitioners and in pharmaceutical records filed in relation to the proceedings. The practitioner argued that there was a stigma associated with his medical diagnosis of Attention Deficit/Hyperactivity Disorder (ADHD) and medications prescribed for his condition, which prejudiced his employment prospects.
2. The Commission objected to a non-publication order on three grounds:

(1) the diagnosis and medications were not so special as to carry a stigma;

(2) the terms of a non-publication order were unworkable in light of the many references to the diagnosis in oral evidence, written submissions and material filed in the proceedings that went beyond the information contained in the information from the practitioner's treating medical doctors;

(3) in the interests of open justice the proceedings should be conducted transparently to ensure public confidence in the administration of justice.

1. The source of the power to make a non-publication order is cl 7 of Sch 5D of the National Law which confers the power on the person presiding in the proceedings, and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. The principles as to the application of these provisions are set out in Health Care Complaints Commission v Thistlethwaite [2023] NSWCATOD 95 (Thistlethwaite) at [110] and [113];

"[110] The starting point is that disclosure of the name of a person who is the subject of disciplinary proceedings is expected to be made, consistent with the concept of open justice, unless there is a compelling reason for a non-publication order to be made in relation to that person's name. The risk of a negative emotional reaction to disclosure, such as embarrassment or humiliation, would not be an adequate reason for a non-publication order. The risk of reasonably foreseeable negative impacts upon the Respondent's family from disclosure, such as embarrassment and negative social impacts, would not, by themselves, be sufficient reason to make a non-disclosure order: Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [44]- [46]."

"[113] The public is entitled to know whether a practitioner has been the subject of disciplinary findings and orders. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and why. Decisions also provide a marker of what is unacceptable to other members of the profession."

1. The practitioner did not adduce evidence that he would suffer prejudice from the publication of the evidence in the proceedings concerning his medical diagnosis and prescribed medication that would negatively impact upon his future employment prospects.
2. Having regard to the principles in Thistlethwaite and in particular the principle of open justice that Court and Tribunal proceedings should be conducted transparently to ensure public confidence in the administration of justice, we are not satisfied that the diagnosis is so distinguishing or remarkable as to attract a negative attitude or prejudice towards the practitioner. We do not regard the practitioner's argument as providing a sufficient reason to make the requested non-publication order.
3. For those reasons, we did not make the order.

Filed on behalf of the Commission before and during the hearing

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

(1) a bundle of documents filed on 29 January 2025 in two volumes (marked for identification in the Registry file as "Exhibit A1 Volume 1" and "Exhibit A1 Volume 2");

(2) additional material filed on 13 February 2025 comprising an Evidentiary Certificate dated 7 February 2025 issued by the Australian Health Practitioner Regulation Agency (Ahpra) (marked for identification as "Exhibit A2");

(3) a Chronology filed on 28 February 2025 (marked for identification as "Exhibit A3");

(4) the CV of Dr Anthony Samuels, Consultant Psychiatrist, to be read in conjunction with Dr Samuels' expert opinion dated 24 January 2023 and email dated 3 February 2023 (both of which are contained in Exhibit A1 Volume 2). The CV was handed up during the hearing on 5 March 2025 (and was marked for identification as "Exhibit A4");

(5) written submissions dated 13 February 2025 (not marked).

Filed on behalf of the practitioner before the hearing

1. The following documents were filed on behalf of the practitioner:

(1) a 37-page document titled "Outline of Submissions", filed on 31 January 2025 (not marked);

(2) a bundle of documents titled "Outline of Submission (Documents)", also filed on 31 January 2025 (marked for identification as "Exhibit R1").

1. The practitioner gave oral evidence and was cross-examined.
2. Dr Samuels was cross-examined on his expert report.

1. After hearing evidence from the practitioner and Dr Samuels, the Tribunal directed the parties to file written closing submissions. The Commission was directed to file submissions by 14 March 2025. We note that these were duly filed. The practitioner was directed to file submissions in reply by 28 March 2028. We note that the practitioner did not file further submissions.
2. During his cross-examination, the practitioner challenged the authenticity, as well as the accuracy of content, of a number of emails filed in the proceedings by the Commission as having been written by him to the Commission and/or to the Council. As a result, the Commission offered to provide digital copies of those emails, and the Tribunal ordered that the digital documents be filed by 14 March 2025. Those documents were duly filed and comprise:

(1) an email sent from the practitioner's email address on 12 July 2021 at 9:58:10 AM [note discrepancy in time] to the Council, with the subject matter shown as "Request - from practitioner - Did you alter the Assessment Report - LISZT, Adam - 28 Jul 2021", apparently sent in response to an email from the Council sent on 6 July 2021 at 4:51PM to the practitioner enclosing correspondence regarding the outcome of the Council's internal meeting on 25 June 2021 (pp 1417-1419 of Exhibit A1 Volume 2);

(2) an email sent from the practitioner's email address on 27 July 2021 at 2:55:41 PM [note discrepancy in time] to the Council, with the subject matter shown as "Re: unidentified material sent requires authentication and contents authenticated", apparently sent in response to an email from the Council sent on 27 July 2021 at 2:59 PM reminding the practitioner of his health assessment with Dr Nora Breen on 2 August 2021 (pp 1495-1499 of Exhibit A1 Volume 2);

(3) an email sent from the practitioner's email address on 2 August 2021 at 7:27 AM to the Council, with the subject matter shown as "Health assessment - and further request you provide the particulars referred to the Council on 26 June 2020", apparently sent in response to an email from the Council on 28 July 2021 regarding the referral of the practitioner for a health assessment (pp 1559-1567 of Exhibit A1 Volume 2);

(4) an email sent from the practitioner's email address on 23 August 2022 at 2:26:18 PM to the Commission, with the subject matter shown as "RE: request for documents from email and 26 June 2021 Committee meeting", apparently sent in response to an email from the Commission on 17 August 2022 (pp 1752-1753 of Exhibit A1 Volume 2);

(5) an email from the Commission sent on 24 August 2022 at 5:06 PM to the practitioner, with the subject matter shown as "RE: Adam Liszt - Practitioner", responding to an email sent from the practitioner's email address on 24 August 2022 at 12:41 AM (pp 1755-1756 of Exhibit A1 Volume 2);

(6) an email sent from the practitioner's email address on 13 September 2022 at 3:33:30 PM to the Commission, with the subject matter shown as "RE: Adam Liszt - Practitioner", apparently responding to the email from the Commission on 24 August 2022 at 5:06 PM (pp 1757 of Exhibit A1 Volume 2).

1. The Complaint against the practitioner (comprising Complaint One and Complaint Two) is set out below:

"BACKGROUND TO ALL COMPLAINTS

The practitioner was first registered as a nurse on 13 April 1993. The respondent commenced casual employment as a registered nurse with the Mental Health Services (MHS) in the Sydney Local Health District (SLHD) in October 1997.

In April 2020, the Health Care Complaints Commission (the Commission) received an anonymous complaint regarding an alleged failure by the practitioner to complete Violence Prevention Management mandatory training. The matter was referred by the Commission to the Nursing and Midwifery Council of New South Wales (the Council). On 15 October 2020, the practitioner attended a performance interview. On 5 February 2021 the practitioner attended a performance assessment, following which the Council held concerns regarding the practitioner's health and his practice as a registered nurse.

On 6 July 2021, the Council wrote to the practitioner, requesting that he attend a health assessment with Dr Nora Breen, Neuropsychologist, on Monday 2 August 2021. The practitioner did not attend this assessment.

On 7 September 2021, the Council held proceedings under s 150 of the National Law and imposed the following conditions on the practitioner's registration:

1. Not to work as a registered nurse until reviewed by the Nursing and Midwifery Council of NSW.

2. To attend for review by a neuropsychologist as directed by the Nursing and Midwifery Council of NSW. The professional costs of this assessment to be met by the Council.

COMPLAINT ONE

The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the National Law in that the practitioner has contravened a condition of his registration.

PARTICULARS OF COMPLAINT ONE

1. On 27 September 2021, the practitioner failed to attend for assessment by Dr Nora Breen, Neuropsychologist, in breach of condition 2 on his registration.

2. On 12 January 2022, the practitioner failed to attend for assessment by Wayne Reid, Neuropsychologist, in breach of condition 2 on his registration.

COMPLAINT TWO

The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:

i. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or

ii. Engaged in 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 the suspension or cancellation of the practitioner's registration.

PARTICULARS OF COMPLAINT TWO

1. The particulars of Complaint One are repeated and relied upon both individually and cumulatively."

Issues for the Tribunal to consider and determine

1. The issues for the Tribunal to determine in Stage 1 are:

(1) whether the conduct as pleaded in Complaint One is proven or admitted in whole or in part such that the conduct constitutes "unsatisfactory professional conduct" under s 139B(1)(c) of the National Law;

(2) if the conduct in Complaint One is found to constitute "unsatisfactory professional conduct", whether the proven conduct is of a sufficiently serious nature to constitute "professional misconduct", or whether in circumstances where more than one instance of proven unsatisfactory professional conduct, considered together with other instances, amounts to "professional misconduct", under s 139E of the National Law, for the purpose of Complaint Two.

1. The practitioner is currently 54 years of age. He first registered as a nurse in Australia in April 1993, after completing a Bachelor of Nursing Degree from the University of Technology, Sydney in 1992. He maintained his registration from 1 July 2010 until 7 February 2025, apart from a brief period from 2 July 2019 to 2 August 2019 (which is of no significance to the facts in the case).
2. Approximately twelve months after completing his nursing degree, the practitioner starting working at Rozelle Hospital and remained there for 18 months. His subsequent work experience included working in a community crisis team, community mental health, one year overseas (India, London and Berlin) and nursing at Concord and Royal Prince Alfred (RPA) Hospitals.
3. He was employed on a casual basis with the SLHD on 3 October 1997 in the area of mental health. He joined the casual pool at Concord Hospital, and then worked casually 2-3 shifts per week for around 20 years. Occasionally, he worked one shift per week. He mainly worked afternoon and night shifts, and sometimes attended training during the day. His last casual shift with the SLHD was on 9 June 2019.
4. Whilst continuing to work casually as a registered nurse, the practitioner started studying legal subjects towards a Diploma in Law through the Legal Profession Admission Board from 2015 to 2019.
5. In March 2019, the practitioner's request to be allocated shifts was denied due to his then non-compliance with vaccinations, in particular, Hepatitis B. During April 2019 he commenced a course of Hepatitis B vaccinations to remedy his vaccination status, but appears to have not completed the entire vaccination course.
6. Also in March 2019, coincident with discussion concerning his vaccination status, the Staff Health Nurse Manager (Nursing Unit Manager) at Concord Hospital discussed the requirement for the practitioner to attend refresher training in VPM. The training is regarded by the NSW Department of Health as mandatory, such that NSW Health organisations must ensure that all staff have the knowledge and skills to prevent and respond to potential and actual aggression and violence.
7. From material filed in the proceedings, it is evident that registered nurses are classed as "Category 3" staff, having the potential to be involved in leading or undertaking the physical restraint of other individuals. In practice, nurses are required to complete a three-day VPM training program, in addition to Personal Safety training, and VPM refresher training (one day every two years). Participants are assessed on their application of physical skills, taking into account the knowledge and attitudes employed during both practical activities and theoretical discussions. Evaluation of a particular skill such as evasive techniques or restraint procedures, requires the actual demonstration of the particular skill.
8. On 12 April 2019, the practitioner attended the one day refresher VPM training. Participants in the training are assessed as being either "Satisfactory (S)" or "Not Yet Satisfactory (NYS)". A record of the practitioner's performance noted that he achieved "Satisfactory (S)" across all criteria, yet it was recommended that he engage in further training. The assessment record was signed by three trainers and contained a note that the recommendation was discussed with the practitioner. In the days immediately following the refresher training, the assessor who recommended further training confirmed in email correspondence with the Nursing Unit Manager that the practitioner and another staff member were able to perform technical moves but had displayed difficulty putting the moves together and in a way that would be considered an acceptable level of practice. He recommended that both staff members attend a 3-day restraint workshop again, with re-evaluation of their capabilities.
9. The practitioner disputed the records regarding assessment of his performance in the VPM training on 12 April 2019. He disputed that he had failed the training and disputed that it was necessary for him to pass the training.
10. In any event, arrangements were made for him to do further training on 26 June 2019. It appears the practitioner did not attend on that date for training. Then, in July 2019, he requested further shifts. However, this could not be accommodated until he completed VPM training and so arrangements were made for him to attend training on 12 August 2019.
11. The practitioner attended training on 12 August 2019. He was assessed as "Satisfactory (S)" in three criteria, and "Not Yet Satisfactory (NYS)" in six criteria, including the overall assessment. A recommendation was made that the practitioner do further training, and the assessment record noted that this was discussed with him.
12. On or around 19 August 2019, the Nursing Unit Manager received a telephone call from the practitioner requesting shifts. Her evidence, as contained in a statement prepared in connection with the practitioner's unfair dismissal application to the IRC, was that she told the practitioner she could only provide shifts if he passed the VPM training. Her evidence was that the practitioner asked repeatedly whether he had been dismissed, and that she did not say at any point during the call that he had been dismissed. The Nursing Unit Manager also said that she told the practitioner she was seeking advice from the human resources department on how to proceed in circumstances where a staff member had failed VPM training twice.
13. On 19 August 2019, the practitioner sent a letter to the Chief Executive of the SLHD, asking for clarification of his employment status. His letter both confirmed, and contradicted, some of the statements made by the Nursing Unit Manager. The practitioner asserted in his letter that he had been informed via telephone by the Nursing Unit Manager that he had been terminated on the basis that he had failed VPM training and that she had said "I cannot give you any more shifts because you failed the VPM course". He denied that he had been advised that he had failed the VPM training. He asserted that despite his engagement as a casual employee he was entitled to expect an ongoing employment relationship.
14. On 26 August 2019, the practitioner commenced unfair dismissal proceedings against the SLHD in the IRC. On 20-21 January 2020, the parties appeared before Commissioner Sloan in the IRC. On the second day of hearing, Commissioner Sloan was invited to assist the parties in an attempt to resolve the application through conciliation. The decision in Liszt v Health Secretary in respect of Sydney Local Health District [2020] NSWIRComm 1030 noted that the parties had reached a commercial resolution, on a confidential basis.
15. Subsequently, however, the practitioner advised the IRC that the settlement had not been capable of being finalised. The matter was therefore listed for directions on 28 February 2020, which resulted in the parties resolving their issues and confirming the terms of an agreed settlement.
16. However, that was not the end of the matter. On 26 March 2020, the practitioner advised the IRC that he would not be signing the deed of agreement, asserting that the SLHD had closed down discussions. As a result, the matter was listed for a further directions hearing on 6 April 2020. However, due to some form of error, the hearing did not proceed and the parties consented to the application being determined "on the papers".
17. The practitioner had submitted that he was required to participate in, but not pass, VPM training. The transcript of proceedings notes that Commissioner Sloan took the view that, contrary to his submission, he needed to not only participate, but demonstrate proficiency in the form of passing the training. The Commissioner also took the view that the practitioner fell short of the requirements of the course and, as a consequence, the hospital could not offer him casual work. The practitioner appears to have suggested in his submissions that he had been accused of being violent or having a propensity towards violence. In submissions, the SLHD refuted any suggestion that there was an allegation against the practitioner of misconduct:

"The Local Health District's position is ... that Mr Liszt has not met a requirement to continue to work and it's not because the Local Health District was at any point of the view that Mr Liszt was guilty of misconduct or implied misconduct."

1. The Commissioner said it was clear that the practitioner had not passed the course and that he could therefore not be given a shift. It had nothing to do with any assertion about the practitioner being violent. It was simply that he did not meet the requirements of the training.
2. The arrangements contemplated by the deed had anticipated the practitioner receiving refresher training and being assessed as to his competence in VPM. Commissioner Sloan found that the parties had entered into a binding agreement on 28 February 2020 and ordered that the proceedings be permanently stayed.
3. It would appear that the practitioner subsequently filed an Unfair Dismissal Appeal. The result of that appeal application is not known, and in any event would appear to have no relevance to the issues before this Tribunal.
4. A complaint against the practitioner was received by the Commission on 22 April 2020 (the day after Commissioner Sloan's decision), in the following terms (Note: Questions and answers (in italics) have been extracted from the complaint form used to notify the Commission):

"What are the issues you are complaining about?

[Answer]: 'Professional conduct'

Please select the specific issue under the selected category

[Answer]: 'Competence, Impairment'

Please provide a summary of your complaint ...

[Answer]: 'He was employed at Concord Hospital for NSW Health in the casual pool. He was dismissed from the job on 19th August 2019 because of misconduct relating to violence prevention and management. He talked about telling AHPRA or the Nursing Board about his failure but has not done it. He wants to continue working but the hospital thought he was a danger to himself and others so fired him. Shouldn't be working. He's tried to get unfair dismissal from the hospital but it didn't work. There are court documents with the Industrial relations Commission.'

What would you like to happen as a result?

[Answer]: 'Action to keep the public safe, Complaint Recorded.' "

1. The complaint was made anonymously to the Commission. The complainant's title was identified as "Dr". No other identifying information was provided. Remaining anonymous, the complainant could not be interviewed and no further information could be asked to test the veracity of the complainant or the accuracy of the allegations and the context in which they were made.
2. On 26 June 2020, following consultation between the Commission and the Council, it was decided that the Council would manage the notification.
3. On 8 July 2020, the Commission advised the practitioner that a notification had been received anonymously, asserting that the practitioner had been:

"... dismissed from your position at Concord Hospital and not reporting the reason for the dismissal to AHPRA and the Nursing and Midwives Council of NSW."

1. The Commission also advised that, since the anonymous complaint appeared to concern matters regarding the practitioner's professional performance and development (associated with his failure to satisfactorily complete VPM training), the Council was considered to be the most appropriate body to manage the notification:

"We were advised that the reason related to not satisfactorily completing training for Violence Prevention Management, a mandatory training course required for front line staff working in Mental Health Services."

1. The Commission's letter also explained the Council's role as a statutory body to protect the public by managing complaints across three core areas:

"The Councils are statutory bodies established to protect the public by managing complaints about the professional performance, conduct and/or health of registered practitioners..."

1. Having consulted with the Commission and accepted that it was the appropriate entity to manage the anonymous complaint, the Council then wrote to the practitioner on 21 July 2020, providing a copy of the complaint to him and requesting information by 4 August 2020. The Council asked the practitioner to provide a number of documents, including a copy of his Curriculum Vitae (CV), details of any Continuing Professional Development (CPD) undertaken, his annual performance review, and his reflection on the issues raised in the complaint.
2. The practitioner contacted the Council on 31 July 2020 and 3 August 2020. The Council's file note of those conversations record that the practitioner was focussed on his "unfair dismissal" and his assertion that there was no formal requirement for him to satisfactorily complete the VPM training and that there were no grounds for his employment to be terminated. On 5 August 2020, an officer of the Council telephoned the practitioner to follow up on its request for information. The Council's file note of that conversation recorded that the Council officer advised the practitioner that the Council does not deal with workplace disputes and attempted to bring the conversation to a discussion of the notification. The practitioner, however, remained focussed on his "unfair dismissal".
3. The practitioner provided his initial response in a letter dated 11 August 2020, saying that he would provide a substantial submission, but needed more time to provide a considered and complete response. He foreshadowed that his submission would address allegations by the Nursing Unit Manager that she believed his conduct at a training course indicated he was a risk to the public, incapable of performing his role, and indicative of an underlying medical impairment. We note, in passing, that in the last paragraph of his letter, the practitioner undertook to attend any assessment that the Council deemed necessary.
4. Subsequently, in a further lengthy response dated 20 August 2020, the practitioner asserted that the allegations were malicious, without foundation, and designed to smear his reputation. He referred to his case in the IRC and included a copy of a statement by the Nursing Unit Manager prepared for the IRC proceedings. At the time of providing his lengthy submission, his appeal in the IRC had not yet been heard. His submission asserted that he had been terminated in circumstances where there were no complaints from trainers or participants about his conduct or performance during the VPM training.
5. On 1 October 2020, the Council asked the practitioner to attend a performance interview with independent interviewers in order to "discuss the issues raised in the notification". He was again asked to provide his CV, evidence of his CPD and a copy of his annual performance review. In preparation for the interview, the Council provided him with a Fact Sheet explaining performance interview proceedings and possible outcomes. Further documents were provided to him on 7 October 2020.
6. The interview took place on 15 October 2020 and resulted in the interviewers recommending to the Council that the practitioner undertakes a performance assessment because of the information he disclosed in the interview about his CPD record and that he had not had a performance assessment in 20 years. A copy of the interview report was provided to the practitioner on 15 January 2021, along with a Fact Sheet on performance assessment.
7. On 25 January 2021, the practitioner responded to the Performance Interview Report. He asserted that any statement that he had failed the VPM training was unsubstantiated, and that the assessment of his performance in the VPM training course on 12 August 2019 had been fabricated. He asserted there was no evidence that he did not attend any appointment for immunisation and asserted that he had met all mandatory requirements in relation to immunisation. He also asserted that the Nursing Unit Manager had misrepresented the VPM training issue. He accused her of "misconduct that rises to the level of serious criminality and professional misconduct".
8. In a letter dated 30 January 2021, the practitioner pointed out that s 154B of the National Law prohibited the professional performance of a practitioner being assessed on the basis of an anonymous notification.
9. On 4 February 2021, the Council emailed the practitioner, explaining the performance assessment process and attaching the assessment documents. The Council's email explained that the interview on 15 October 2020 was the basis for the referral for the performance assessment, and not the original anonymous complaint.
10. On 5 February 2021, the practitioner attended the performance assessment. The results of the assessment were set out in a report dated 19 February 2021. In summary, the assessors concluded that the practitioner demonstrated deficits in a range of areas. He was found to be unable to implement and delegate some care in a timely and safe manner and unable to evaluate some care as expected of an experienced registered nurse. The assessors noted that he appeared to have trouble with concentration, focus, memory and organisation. They raised the possibility that "an underlying health issue may be impacting the practitioner's abiity to acquire, retain and apply new knowledge in order to consistently perform his duties to the required standard".
11. The assessors recommended that he attend an independent health assessment, as set out below:

"It is important that Mr Liszt attend an independent health assessment to determine whether any modifiable barriers exist to his acquisition, retention and application of new knowledge. This will inform the level and type of support Mr Liszt may require in order to achieve independent practice."

1. The Performance Assessment Report contained an erroneous statement that presumed the practitioner was subject to restrictions on his practice. At that point in time, the practitioner's registration was not subject to any conditions or restrictions.
2. A copy of the Performance Assessment Report was provided to the practitioner on 23 February 2021, and he was asked to provide a response by 8 March 2021.
3. In a number of email communications, the practitioner asserted that the Council processes were flawed, and that the Council's committees and assessors had placed unreasonable weight on the original anonymous complaint when making decisions. He also asserted that he had not been afforded due process in the management of the complaint as he had not been given an opportunity to respond to the allegations, or be heard.
4. On 24 February 2021, the practitioner emailed the Council, asserting that his submission had not been provided to the assessors and that he had not been provided with a copy of all of the Council's documentation. It is difficult to follow all of the practitioner's arguments. However, with reference to the VPM training, he asserted that there was no requirement for him to pass the training and that it was a "criminal offence" under the Work Health and Safety Act 2011 (NSW) (WHS Act) to characterise such training as a performance management measure. Further, he asserted that the anonymous complaint was in fact made by the SLHD and that the offer by the SLHD to settle his unfair dismissal case had been prompted by a concern about the potential to be found to have offended the provisions of the WHS Act.
5. In an email dated 25 February 2021, he argued that the anonymous complaint contained a serious allegation of misconduct that was not substantiated and was not investigated. He asserted that no findings were made by the SLHD but that the complaint had biased all processes that followed. He demanded a hearing so he could defend himself. He also asserted that the anonymous complaint was described inaccurately in Council documents, that some Council file notes and documents were fictitious, and that the anonymous complaint infected the Council's decision-making and the judgment of independent interviewers (both at performance interview and performance assessment).
6. In a teleconference meeting held on 5 March 2021, the Council acknowledged that the description of the complaint as "aggressive behaviour" in the Council's records was a coding error. The Council also acknowledged that there was an error in the Performance Assessment Report, specifically, that the reference to "current restrictions" on his registration was not accurate. During that meeting, the Council advised that the Council was not concerned with "conduct", but with "performance" issues. However, the Council clarified that the practitioner had not been referred to a Performance Review Panel.
7. On 29 March 2021 and 15 April 2021 the Council advised the practitioner by email that the outcome of the performance assessment had been paused, while his concerns about due process and documentation were being reviewed by the Health Professional Councils Authority (HPCA).
8. On 28 May 2021, the HPCA advised that a review of the practitioner's file had identified errors in the lists of documents in both the Performance Interview Report and the Performance Assessment Report, but that the documents that had been provided to the practitioner and the decision-makers were the same. The HPCA found no evidence to substantiate the practitioner's allegations of wilful deceit, misconduct and corruption by staff members involved in the administrative handling of his case.
9. In a letter dated 6 July 2021, the Council advised the practitioner that the performance assessors were concerned about his health and that the Council had resolved to refer him for a health assessment with a neuropsychologist. An appointment was made for him to attend an assessment with Dr Nora Breen, Neuropsychologist, on 2 August 2021. The Council's letter attached a health assessment Fact Sheet.
10. On 12 July 2021, the practitioner responded, asserting that the assessors had been provided with false and misleading information. He asserted that text or data were missing from the Performance Assessment Report, and that each document he had provided to the Council had been either tampered with, changed in form, or fabricated. Whilst his communication mentioned numerous matters, it did not refer to or acknowledge the health assessment arranged with Dr Breen.
11. On 27 July 2021, the Council reminded the practitioner of the scheduled appointment with Dr Breen.
12. On the same day, the practitioner emailed the Council, asserting that he had not been informed about the matter and advising that he would not be attending because he had not been given prior notice.
13. On 28 July 2021, the Council wrote again to the practitioner, referring to its previous correspondence on 6 July 2021 concerning referral for a health assessment and the appointment with Dr Breen on 2 August 2021.
14. On 2 August 2021, the practitioner emailed the Council about the health assessment, stating: "My own doctor whom I see regularly is monitoring my health, however if the Council require attendance at a (sic) examination the reasoning that a (sic) assessor had the passing thought that I may require assessment is not enough." Additionally, the practitioner asserted that the relevant provisions were s 155C of the National Law (performance assessment provisions) which only permits a "Performance Review Panel" option.
15. The practitioner did not attend the health assessment with Dr Breen on 2 August 2021. Dr Breen emailed the Council on that date, confirming that the practitioner had failed to attend and that he had foreshadowed this to Dr Breen's office on 30 July 2021.
16. The Council emailed the practitioner on 2 August 2021, advising him that his non-attendance at the health assessment would be considered by the Council. He was invited to provide a response regarding his non-attendance by 6 August 2021.
17. On 13 August 2021, the Council advised the practitioner that the factual error in the Performance Assessment Report had no consequential impact on the findings and recommendations outlined in the report.
18. On 31 August 2021, the Council notified the practitioner that, because failure to attend the health assessment without reasonable excuse is evidence that he does not have sufficient physical or mental capacity to practise, proceedings under s 150 of the National Law would be scheduled. The Council's letter enlosed a Fact Sheet explaining the s 150 process and copies of documents the Council would consider in making its decision.
19. On 1 September 2021, the Council sent a letter to the practitioner, asking him to attend a meeting under s 150 of the National Law by videoconference on 7 September 2021.
20. On 2 September 2021, the Council emailed the practitioner, advising who the panel members would be and who would be in attendance at the s 150 meeting, including the Council officer who would manage the audio recording of the meeting.
21. On 3 September 2021, the Council documents were personally served on the practitioner.
22. On 6 September 2021, the practitioner advised by email his availability to address the s 150 proceedings.
23. On 7 September 2021, the practitioner advised that he would be making his own audio recording of the proceedings for the purpose of protecting his legal interest and that he would keep the recording confidential.
24. On 7 September 2021, the Council convened the s 150 hearing. The practitioner attended. During the hearing, he confirmed he had received the documents personally served upon him on 3 September 2021, but said he had not read all of them.
25. After consideration of the matters addressed during the hearing, the following conditions were imposed on the practitioner's registration, effective from 7 September 2021:

"Public condition

1. Not to work as a registered nurse until reviewed by the Nursing and Midwifery Council of NSW.

Private condition

2. To attend for review by a neuropsychologist as directed by the Nursing and Midwifery Council of NSW. The professional costs of this assessment will be met by the Council."

1. The Council also made the following referral note:

"Given our conclusion that Mr Adam Mitchel Liszt has health concerns, we refer this matter to an Impaired Registrants Panel subject to the consultation provision of s 150F of the National Law (NSW)."

1. The matters discussed at the s 150 hearing which are relevant to the issue to be determined by this Tribunal are more fully examined under the heading "Consideration".
2. By letter dated 7 September 2021 (personally served on the practitioner on 13 September 2021), the Council confirmed the conditions imposed on his registration and enclosed a notice of the conditions. The notice contained a section that asked the practitioner to sign and date the document, for the purpose of acknowledging that he was aware of the conditions imposed on his registration. The Council's letter also enclosed a Fact Sheet titled "Review and Appeal s 150/s150A".
3. By letter dated 9 September 2021 (also personally served on the practitioner on 13 September 2021), the Council advised the practitioner that an appointment had been made for a health assessment with Dr Breen, on 27 September 2021. The letter also enclosed a Fact Sheet titled "Attending a Health Assessment - Health Pathway" (Health Pathway Fact Sheet) issued by the Council in September 2017, explaining the health assessment process.
4. The Council's s 150 decision dated 15 September 2021 was provided to the practitioner. The decision stated the consequence of the practitioner failing to attend the health assessment:

"Should Mr Liszt fail to attend the neuropsychologist appointment, the non-attendance is evidence of an impairment (s 152B(4) of the National Law), and is also a breach of the condition imposed today."

1. On 24 September 2021, the Council emailed the practitioner after learning that he had advised Dr Breen's rooms that he would not attend the appointment (on 27 September 2021) until he had sought legal advice. The Council asked him to advise the reason(s) for his non-attendance.
2. On 27 September 2021, the practitioner failed to attend the assessment.
3. By letter dated 27 September 2021 to the Council, the practitioner confirmed he would not attend the appointment as he wished to seek legal advice. He also asked whether the Council had consulted with the Commission about the Council's decision (in terms of referral to an IRP):

"I write regarding your communication with Dr Breen, who correctly relayed the information that I will not be able to attend the health assessment today as I wish to seek legal advice about the Councils (sic) actions in suspending my registration.

Has the Council consulted with the Commission about the Councils (sic) decision on the 7 September 2021 as I have not been informed about any outcome?"

1. On 11 October 2021, a solicitor informed the Council that he acted for the practitioner.
2. On 29 October 2021, the Council wrote to the practitioner's legal representative about the health assessment process enclosing the Fact Sheet ("Attending a health assessment"), the performance assessment report and the s 150 decision.
3. On 25 November 2021, the Council sent an email and a letter to the practitioner's legal representative, referring to the condition imposed on the practitioner's registration requiring him to attend a health assessment and included the details for the assessment with Dr Wayne Reid, Neuropsychologist, on 12 January 2022.
4. On 2 December 2021, the practitioner's solicitor emailed the Council, asking why a medical examination had not been arranged and why there had been no notification of referral to an IRP.
5. On 5 January 2022, the Council emailed the practitioner, to remind him of his appointment on 12 January 2022.
6. On 7 January 2022, the practitioner emailed the Council, advising that his solicitor no longer represented him. He also advised that he would not attend the assessment on 12 January 2022 because he had a reasonable excuse for not attending and that he would provide that information to an IRP or a fact-finding body. His correspondence is set out below:

"Unfortunately, I am not going to voluntarily attend the neuropsychological assessment scheduled for 12 Jan 2022 because I have reasonable excuse for not attending. I will provide this information to an Impaired Registrant Panel (IRP) or a fact-finding body. The second s 150 hearing concludes the Council intended to comply with s150F(7) but no notice of the proposed inquiry has been provided. A proceeding under s 150 is not a disciplinary proceeding (see Kirby v Dental Council [2020] NSWCA 91 [a 14]) (sic). The involuntary requirement to attend a health assessment is an order available only after a disciplinary body has proved a matter, and conducted a public hearing."

1. On 10 January 2022, the Council emailed the practitioner, noting his advice that he would not be attending the appointment with Dr Reid. The Council's letter stated that his non-attendance would be a breach of Condition 2 for the second time, and that the Council would consider the matter at a meeting on 28 January 2022. The Council's email also explained the sequence of events to occur in order to convene an IRP, as set out below:

"I will provide Dr Reid with notice that you will not attend. I note that non-attendance at the assessment is in breach of condition 2 on your registration and is the second breach of this condition. Following the health assessment with Dr Reid, an IRP would be organised and you are invited to attend the IRP, however, due to your ongoing non-compliance with condition 2 on your registration, the Council will review your correspondence regarding the non-attendance at the assessment at their meeting on Friday 28 January 2022."

1. On 12 January 2022, the practitioner failed to attend for assessment by Dr Reid.
2. In a letter dated 28 January 2022 to the practitioner, the Council advised that it had resolved:

(1) that the practitioner had not provided a reasonable excuse for non-attendance at three health assessments with a neuropsychologist; and

(2) to initiate a complaint of unsatisfactory professional conduct against the practitioner to the Commission.

1. The Council's letter of 28 January 2022 to the practitioner enclosed Fact Sheets explaining the Council's role and the complaint process.
2. The Council's complaint to the Commission advised that the Council's delegates had recommended the matter be dealt with under s 150F of the National Law (Special provisions - impairment [NSW]) and provided details of the two conditions on the practitioner's registration. The Council advised the Commission that there was no information available about the practitioner's current health.
3. On 7 April 2022, the Commission wrote to the practitioner, referring to the Council's resolution to initiate a complaint against him of unsatisfactory professional conduct. The Commission advised that it had determined the matter warranted investigation, the purpose of which was to obtain further information in order to determine what, if any, further action may be required.
4. The practitioner responded by email to the Commission on 20 April 2022, asking for a notice to be supplied under the HCC Act if information was required for the investigation.
5. In another email dated 8 August 2022 to the Commission, the practitioner noted that he had not received any notice under s 40(3) of the HCC Act, and generally criticised the Council's investigative processes, which he described as "Kafkaesque" concerning the "misconduct related to violence" allegation.
6. The Commission emailed the practitioner on 17 August 2022, summarising the events leading to the referral of a complaint by the Council to the Commission. The Commission identified the three occasions on which the practitioner had failed to attend health assessments without reasonable excuse, in which two of those failures appeared to be in violation of Condition 2 of his registration. The Commission asked the practitioner if he was willing to appear for an independent health assessment with a neuropsychologist.
7. On 23 August 2022, the practitioner wrote to the Commission, querying a number of matters and asking for copies of 26 documents listed in the Council agenda brief and a copy of the audio recording of the s 150 hearing, asserting that the Council's written decision was not reflective of the hearing.
8. On 24 August 2022 the practitioner wrote again to the Commission, asking about the proposed purpose for a neuropsychologist test. He asserted that the Commission's first task was to provide "precise particulars of your vague but clearly misconduct allegations, and allow for a (sic) oral hearing to test the Commissions. (sic)"
9. In response to the practitioner's two emails, the Commission emailed the practitioner on 24 August 2022. The Commission's email:

(1) clarified that the Council, and not the Commission, had directed the practitioner to undergo a neuropsychological test on three occasions, two of which were asserted to be in violation of Condition 2;

(2) explained that the reason why the practitioner had been asked to attend an independent neuropsychological assessment was because of concerns raised by the performance assessors during the performance assessment about his "lack of attention to detail, disorganisation, distractibility and poor short-term memory";

(3) explained that the Commission is under no duty whatsoever during the investigation stage to provide oral hearings.

(4) explained the process for convening an IRP, after an independent health assessment has been obtained:

"You have been advised that once you undertake an independent neuropsychological assessment you are invited to attend an Impaired Registrants Panel (IRP) in which you will have a full opportunity to present written and oral submissions to the independent panel members."

1. The Commission's email of 24 August 2022 again asked him to confirm his willingness to attend an independent neuropsychologist for assessment.
2. On 14 September 2022, the practitioner emailed the Commission, saying he was willing to consider attending a health assessment if an IRP recommended such a course of action. He attached a submission as to why a hearing to address the allegations of professional misconduct should be the Commission's priority, arguing (if we have understood his email correctly) that the IRP would be inhibited by those allegations remaining untested yet referred to in documents such as the Performance Assessment Report.
3. On 5 October 2022, the Commission replied to the practitioner, again explaining the IRP process and the role of the IRP:

"As has been previously communicated, an Impaired Registrants Panel (IRP) can only occur in circumstances where you have already completed an independent health assessment with an independent health assessor, as directed by the Council. An IRP will not occur prior to an independent health assessment, and it is not the role of the IRP to determine whether an independent health assessment is appropriate."

1. The Commission's email of 5 October 2022 said that the role of an independent health assessor, separate from the Council, is not to "attempt to influence the independence of an Impaired Panel", but to independently assess the practitioner's mental health and potentially make recommendations which can be taken into account by the IRP. The email said that the IRP will then provide the practitioner with a full hearing and ability to make fulsome written and oral submissions to the IRP. Finally, the email reiterated that the Commission does not hold oral hearings during an investigation.
2. On 7 October 2022, the practitioner emailed the Commission, advising that when the investigation is completed, he wished to make further submissions. He also said he would not attend a assessment unless the Commission supplied a "valid notice".
3. In an email dated 10 October 2022, the Commission noted the practitioner's continued refusal to attend a health assessment.
4. On 12 December 2022, the Commission advised the Council that the practitioner had continued to object to having an independent health assessment and asked the Council to arrange an assessment "on the papers" and in the practitioner's absence. The Commission asked that the examination focus on the following issues considered to be pertinent:

(1) the practitioner's purported distractibility, ability to focus, lack of attention to detail, disorganisation, and poor short-term memory;

(2) the practitioner's diagnosis of ADHD, his prescription for dexamphetamine and any impact such a diagnosis may have on his ability to perform his role as a nurse; and

(3) the practitioner's purported preoccupation with the originating anonymous complaint.

1. On 11 January 2023, the Council advised the practitioner that the Council and the Commission had decided to refer him to a psychiatrist as part of the investigation. The Council stated that it reasonably believed the practitioner had or may have an impairment and required an assessment under s 152B(1) of the National Law. The Council's letter advised that an assessment appointment had been made with Dr Anthony Samuels, Psychiatrist, on 24 January 2023. A copy of the Council's briefing letter to Dr Samuels and a Fact Sheet explaining the health assessment process was provided to him. The Council's letter also advised that if he did not attend the appointment, the assessment would proceed "on the papers".
2. On 24 January 2023, the practitioner did not attend the appointment with Dr Samuels, who then prepared his report "on the papers". Dr Samuels' opinion and report is discussed below.
3. On 4 February 2023, the practitioner wrote to the Council and the Commission, asking the Council to issue a signed formal notice of the proposed IRP, and advised that he wished to make written and oral submissions to the IRP. He argued that the Council should first use the "voluntary" IRP before seeking an "involuntary" health assessment, because (in his view) it is the "least restrictive alternative".
4. On 14 February 2023, the practitioner again emailed the Commission, asking to be served with notice of a proposed IRP. He also attached a copy of a letter alleging unlawful discrimination. The arguments relied upon are difficult to follow. In any event, the practitioner did not pursue the discrimination matter.
5. The Commission filed its application for disciplinary findings and orders in the Tribunal on 16 October 2024.

Expert psychiatrist's report and evidence given during the hearing

1. Dr Samuels' report dated 24 January 2023 is to be read in conjunction with his email dated 3 February 2023.
2. The practitioner did not challege Dr Samuels' credentials. The Tribunal accepted Dr Samuels as being well qualified to provide his opinion, and his report and email were admitted into evidence without objection. Dr Samuels had made himself available for cross-examination and the practitioner decided to ask a number of questions of him.
3. Dr Samuels undertook an extensive review of documentation commencing with the anonymous complaint and including the performance interview report, the performance assessment report, the Council's s 150 decision dated 7 September 2021, the Council-initiated complaint dated 28 January 2022, medical and pharmaceutical information and the practitioner's various responses and submissions to the Council. Dr Samuels made the following comment:

"I have reviewed this extensive list of documents and responses of Mr Liszt which are legalistic in nature, repetitive and quite grandiose. He provides his own interpretations of legal statutes. He constantly references minor errors in reports, correspondence, Council processes, corruption, cites procedural unfairness and repetitively demands certain materials and documents."

1. The inability to clinically examine Mr Liszt limited Dr Samuels' opinion in relation to the practitioner's mental state, specifically depression, anxiety, evidence of a psychotic illness and self-harm risk. Upon review of medical records, Dr Samuels noted that the practitioner appeared to have longstanding ADHD and thought that he may have an associated depressive, anxiety and cognitive disorder associated with the condition, noting that he had been on stimulant and antidepressant/anti-anxiety medications for a prolonged period of time.
2. In Dr Samuels' opinion, the practitioner had demonstrated a pattern of oppositional and uncooperative behaviour with various health authorities, adopting a conflictual personality style. In his report, Dr Samuels stated:

"[212] It is evident that he has an oppositional and conflictual personal style, instead of acceding to his employer's request for completion of mandatory training, he opted to litigate...

[213] 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.

[214] He is grandiose including as evidenced by his seemingly authoritative, legalistic communications...

[216] There also appear to be quite rigid aspects to his personality characterised by his unwillingness to back down, or to comply with regulatory processes, pursuing a legal rather than 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. He is not frankly thought disordered in his communications ...

...

[217] Mr Liszt appears to have limited insight into his performance and functioning, he continues to believe that he complied with his request for mandatory training, he thought the performance assessment had gone quite well and he continues to refute the findings of the assessors.

[218] In terms of possible DSM 5 diagnoses he does seem to have a personality disorder as evidenced by the fact that his personality traits are leading to severe interpersonal and occupational consequences for him. He has well documented ADHD and a likely associated cognitive disorder. There certainly is a possibility that he has an emerging psychotic illness.

[219] In regard to the definition of impairment within the meaning of the National Law he appears to have a uber of impairments namely ADHD, cognitive disorder and personality dysfunction. Further evaluation is likely to delineate further impairments.

[220] It is clear from the various notifications, performance assessment and unprofessional behaviour that these impairments have the potential to impact upon his professional functioning."

"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. When asked whether he considered the practitioner suffers from an impairment as defined under the National Law, Dr Samuels stated in an email dated 3 February 2023 that he did not have sufficient information available to provide a definitive opinion.
2. During the hearing, the practitioner asked Dr Samuels questions about the general timeframes for the emergence of personality disorders, cognitive disorders and psychosis. He also asked about Dr Samuels' role in providing an opinion to an IRP.
3. Before posing his questions, the practitioner took Dr Samuels to the Commission's letter of 8 July 2020 advising him (the practitioner) that the anonymous complaint was being referred to the Council. He also took Dr Samuels to the wording of the anonymous complaint itself, asserting that it implied violence on the part of the practitioner.
4. Dr Samuels said that he had not understood the complaint. He explained that in the ordinary course of providing an opinion, he does a document review which serves the purpose of being "a point of history" and that, ordinarily, he would meet with a practitioner to discuss the history. Dr Samuels said that he did not understand VPM and placed no weight on it other than noting that the practitioner had failed to complete the training and had been "fired" as a result. He further explained that when he has the opportunity to talk with a person, he has a different context in which to form an opinion.
5. Dr Samuels confirmed that he was aware that the practitioner had been diagnosed with ADHD for around 20 years and was receiving dexamphetamine medication, but otherwise he had very little information on the practitioner's mental health.
6. When asked about the timeframe when personality disorders emerge, Dr Samuels said that generally they are noticeable early in life. He added that the practitioner's refusal to do things, such as not complying with directions and his professional responsibilities, and his litigious approach suggested a degree of oppositionality. He noted that the practitioner had been difficult in a number of settings, such as the IRC. He further observed that most people would adhere to their professional obligations and do what they are asked to do. Whilst Dr Samuels said he could not make a determination that the practitioner had a personality disorder, he said that he thought the practitioner's behaviour was not what would be expected of a health professional.
7. When asked about the timeframe when cognitive disorders occur, Dr Samuels said they generally occur later in life. He said that problems with comprehension may suggest cognitive problems.
8. The practitioner referred Dr Samuels to the allegation (in the anonymous complaint) that the hospital thought he was a danger to himself and others. Dr Samuels said that the alleged risk was unexplained in the complaint, and he would have sought to address that risk in consultation with the practitioner.
9. When asked about psychosis as another potential risk factor, Dr Samuels said that risk factor was a matter to be excluded as part of his assessment of the practitioner had he attended the examination. In his opinion, a psychotic condition is less likely to occur late in life, but it depends on the type of psychosis as presented.
10. In response to a proposition by the practitioner that parts of one's life can look like narcissism, Dr Samuels commented that, objectively, there were a number of aspects to consider, including that the practitioner:

(1) had failed to comply with directions;

(2) entered into protracted legal disputes;

(3) did not attend examinations;

(4) is legalistic and confrontational, with an unusual communication style;

(5) is suspicious of recorded hearings, and made his own recording of the s 150 hearing;

(6) is suspicious that documents have been tampered with;

(7) exhibits behaviour that suggests he is paranoid.

1. Dr Samuels said that it was very clear that the practitioner has non-compliant behaviour, with ADHD. In his opinion, the practitioner's behaviour was not the normal behaviour of a health practitioner, and he could have an impairment.
2. Dr Samuels said to the practitioner that he had made his life difficult, to which the practitioner said "you're right".
3. On the subject of circumstances where an IRP is convened, Dr Samuels said that in his experience he gives his opinion as to whether there is an impairment that may impact upon a practitioner's professional function and the Panel makes its own decision.

Relevant statutory provisions and legal principles

1. The statutory provisions and legal principles that have relevance to the Tribunal's decision to make findings at Stage 1, are set out below.
2. We start with an examination of the objectives and paramount consideration that underpins the national registration and accreditation scheme for health practitioners. Those objectives guide the Tribunal's decision-making in both Stage 1 and Stage 2.
3. Additionally, to assist the parties, we identify a number of statutory provisions and legal principles that have application for the anticipated Stage 2 hearing.

1. The objectives of the National Law are clearly set out in s 3:

3 Objectives

(1) The object of this Law is to establish a national registration and accreditation scheme for -

(a) the regulation of health practitioners; and

(b) the registration of students undertaking -

(i) programs of study that provide a qualification for registration in a health profession; or

(ii) clinical training in a health profession.

(2) The objectives of the national registration and accreditation scheme are -

(a) 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; and

(b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and

(c) to facilitate the provision of high quality education and training of health practitioners; and

(ca) to build the capacity of the Australian health workforce to provide culturally safe health services to Aboriginal and Torres Strait Islander Peoples; and

(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and

(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and

(f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.

1. In all matters before it under the National Law, the Tribunal is guided by s 3A which states:

(1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration.

1. Accordingly, when assessing whether it is appropriate to make disciplinary findings (and orders) against a practitioner, the fundamental and paramount consideration for the Tribunal is the protection of the health and safety of the public.

Courses of action available to the Commission on complaint

1. Under s 145C in Division 3, Subdivision 2 of the National Law, the following courses of action are available to the Commission in respect of a complaint received:

145C Courses of action available to the Commission on complaint [NSW]

(1) The following courses of action are available to the Commission in respect of a complaint made to the Commission, or that the Commission has decided to make, about a registered health practitioner or student -

(a) the Commission may refer the complaint to the Council for the health profession in which the practitioner or student is registered or, after consultation with a Council, to a Committee or the Tribunal;

(b) the Commission may refer the complaint for conciliation or deal with the complaint under Division 9 of Part 2 of the Health Care Complaints Act 1993;

(c) the Commission may refer the complaint to another entity, including, for example, a National Board;

(d) the Commission may determine that no further action should be taken in respect of the complaint;

(e) the Commission may take any other action that it can take under the Health Care Complaints Act 1993.

(2) If the Commission refers a complaint to a Committee or the Tribunal, the Commission must inform the Council accordingly.

Courses of action available to the Council in respect of a complaint

1. The various courses of action available to the Council in respect of a complaint are set out in s 145B(1) in Division 3, Subdivision 2 of the National Law:

145B Courses of action available to Council on complaint [NSW]

(1) The following courses of action are available to a Council in respect of a complaint -

(a) the Council may make any inquiries about the complaint the Council thinks appropriate;

(b) the Council may refer the complaint to the Commission for investigation;

(c) the Council may refer the complaint to the Tribunal;

(d) the Council may refer the complaint to a Committee;

(e) for a complaint about a health practitioner or student who is registered in a health profession other than the medical or nursing and midwifery profession, the Council may deal with the complaint by inquiry at a meeting of the Council;

(f) the Council may -

(i) refer the practitioner or student for a health assessment; or

(ii) refer the matter to an Impaired Registrants Panel; or

(iii) refer the professional performance of the practitioner concerned for a performance assessment;

(g) the Council may direct the practitioner or student concerned to attend counselling;

(h) the Council may refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the Health Care Complaints Act 1993;

(i) the Council may refer the complaint to another entity, including, for example, a National Board;

(j) the Council may determine that no further action should be taken in respect of the complaint.

Council may require information about a complaint

1. Under s 164G in Division 9 of the National Law, the Council has power to request a registered health practitioner to give, within a reasonable period of time, further information about any complaint concerning the practitioner. The practitioner must not, without reasonable excuse, fail to comply with the request. The relevant provisions are set out below:

164G Council may require further information from practitioner or student [NSW]

(1) A Council for a health profession may, by written notice given to a registered health practitioner or student registered in the profession, require the practitioner or student to give to the Council, within a reasonable period specified in the notice, further information about any complaint or other matter concerning the practitioner or student.

(2) A registered health practitioner or student must not -

(a) without reasonable excuse, fail to comply with a requirement under this section; or

(b) in purported compliance with a requirement under this section, provide information knowing it to be false or misleading in a material particular.

Maximum penalty - 20 penalty units.

Complaint: Council may require health practitioner against whom a complaint has been made to undergo examination: s 145E(1)

1. More specifically, in connection with a complaint made against a registered health practitioner, the Council may direct the practitioner to undergo an examination by a specified registered health practitioner, pursuant to s 145E of the National Law. The direction must be reasonable, having regard to the nature of the complaint against the practitioner.

Result of failure to attend examination without reasonable excuse: s 145F

1. A failure by a registered health practitioner, without reasonable excuse, to comply with a direction under s 145E to undergo an examination is evidence that the practitioner does not have sufficient physical or mental capacity to practise:

145F Result of failure to attend counselling or examination [NSW]

A failure by a registered health practitioner or student, without reasonable excuse, to comply with a direction under section 145B to attend counselling or under section 145E to undergo an examination is, for the purposes of this Law and any inquiry or appeal under this Law, evidence that the practitioner or student -

(a) for a registered health practitioner, does not have sufficient physical or mental capacity to practise the health profession in which the practitioner is registered;

Impairment: Council may require a health practitioner who has, or is suspected of having, an impairment to undergo examination: s 152B(1)

1. Under s 152B(1) of the National Law, if the Council reasonably believes a registered health practitioner has or may have an impairment, it may require the practitioner to undergo an examination by another registered health practitioner:

152B Council may require registered health practitioner to undergo examination [NSW]

(1) If a Council reasonably believes a registered health practitioner has or may have an impairment, the Council may, by written notice given to the practitioner, require the practitioner to undergo an examination by another registered health practitioner.

(2) The notice must state -

(a) that the registered health practitioner is required to undergo an examination by a registered health practitioner; and

(b) the name of the registered health practitioner who is to conduct the examination; and

(c) if the examination is to be conducted at a particular time and place, the time and the place at which the examination is to be conducted; ...

Result of failure to attend examination: s 152B(4)

1. In similar terms to the provision in s 145F dealing with the failure of a practitioner to attend for examination in connection with a complaint, under s 152B(4), a failure by a registered health practitioner, who is reasonably considered to have an impairment and who, without reasonable excuse, fails to comply with a direction under s 152B(1), is evidence that the practitioner does not have sufficient physical or mental capacity to practise:

(4) If the registered health practitioner fails, without reasonable excuse, to comply with the notice, the failure is evidence the practitioner does not have sufficient physical or mental capacity to practise the practitioner's health profession.

Powers of a Council for protection of the public: s 150

1. Under s 150 of the National Law, the Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons, or if satisfied the action is otherwise in the public interest, suspend a health practitioner's registration or impose conditions on the practitioner's registration. Action taken under s 150 is interim in nature, pending further review.

150 Suspension or conditions of registration to protect public [NSW]

(1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest -

(a) by order suspend a registered health practitioner's or student's registration; or

(b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or

(c) by order impose on a student's registration the conditions the Council considers appropriate.

(2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens -

(a) the complaint about the practitioner or student is disposed of;

(b) the suspension is ended by the Council.

(3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must -

(a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and

(b) refer the matter to the Tribunal as a complaint.

(4) A Council for a health profession may take action under this section -

(a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and

(b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal.

(5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition.

(6) If a Council takes action under this section in relation to a registered health practitioner or student, the Council must give written notice of the following to the practitioner or student -

(a) the action taken under this section;

(b) the reasons for the action.

Grounds for complaint against registered health practitioners

1. Section 144 of the National Law sets out the grounds on which complaints may be made about a registered health practitioner. Relevantly, for the purpose of this proceeding, it includes "unsatisfactory professional conduct" and "professional misconduct". Section 144 also includes "impairment" as a ground for complaint. However that is outside the scope of the Commission's Complaint in these proceedings:

144 Grounds for complaint about registered health practitioner [NSW]

The following complaints may be made about a registered health practitioner -

(a) ...

(b) Unsatisfactory professional conduct or professional misconduct

A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.

(c) ...

(d) Impairment

A complaint the practitioner has an impairment.

(e) ...

1. Section 139B(1) of the National Law sets out the meaning of "unsatisfactory professional conduct" of registered health practitioners. It includes a range of conduct and, relevantly for this proceeding, includes in s 139B(1)(c) contravention of conditions of registration:

139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]

(1) Unsatisfactory professional conduct of a registered health pratitioner includes each of the following -

(a) ...

(b) ...

(c) Contravention of conditions of registration or undertaking

A contravention by the practitioner (whether by act or omission) of -

(i) a condition to which the practitioner's registration is subject;

Meaning of "professional misconduct" under the National Law

1. Under s 139E of the National Law, "professional misconduct" of a registered health practitioner means, for the purpose of this Law:

(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.

Caselaw - Evaluative judgment to determine whether conduct is "professional misconduct"

1. The terms "unsatisfactory professional conduct" and "professional misconduct" were considered by the NSW Court of Appeal in Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) per Basten JA at [19], along with a discussion of the evaluative judgment to be exercised by the Tribunal when determining whether conduct is "sufficiently serious" to justify suspension or cancellation of a practitioner's registration, at [19]-[20]:

"[19] The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The 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. The phrase 'unsatisfactory professional conduct' is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession."

1. Conditions are not imposed lightly on a practitioner's registration and are not to be treated lightly. Indeed, the NSW Court of Appeal has confirmed that conditions must be scrupulously observed: Prakash v Health Care Complaints Commission [2006] NSWCA 153 (Prakash) at [45] (quoting from the findings of a Medical Tribunal of NSW in Re Dr Than Le (Medical Tribunal decision, 20 September 2001 at 46, para 95):

"Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed."

Repeated, wilful breaches of conditions are regarded as a most serious finding

1. Repeated wilful breaches of conditions are regarded as a most serious finding against a practitioner and is a grave criticism of the standard of the practitioner's conduct: Prakash at [45]:

"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'."

The imposition of conditions ameliorates risk to the public and maintains a practitioner's health and well-being

1. The Tribunal has said that, in some instances, practitioners have been able to maintain their registration only because a Council is satisfied that, by imposing appropriate conditions, risk to the public is reduced and a practitioner's health and well-being is maintained: Health Care Complaints Commission v Reid [2018] NSWCATOD 162 at [131]:

"As has been frequently noted in decisions of this Tribunal, and the former Medical Tribunal of NSW, the compliance with conditions imposed by a Council is critical to the health and safety of the public. 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."

Measuring the conduct of the practitioner against reasonable standard

1. The conduct of the practitioner must be measured against what is reasonably expected of a practitioner of an equivalent level of training and experience and by the standard of the profession. The seriousness of the conduct is measured by the extent that it departs from proper standards, as explained in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 (Litchfield) at 638:

"The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal."

1. The burden of proof rests with the Commission: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [3].
2. The standard of proof required to establish a complaint is the civil standard, that is, on the balance of probabilities: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 (Liu) at [40]. Because of the seriousness of the allegations and the gravity of their consequences, the Tribunal must have "a reasonable satisfaction" that the particulars of a complaint have been proved, as per Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) at 362:

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."

1. Section 140 of the Evidence Act 1995 (NSW) (Evidence Act) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact. However, under s 38(2) of the NCAT Act, the Tribunal is not bound by the rules of evidence. Therefore, strictly speaking, neither the Briginshaw civil standard (having the particulars of a complaint proved to the reasonable satisfaction of the Tribunal) nor s 140 of the Evidence Act applies directly in decision-making by the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127].
2. However, as noted in Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 (Meneghetti) at [13]-[14], the generally accepted approach is that, when deciding whether the evidence is sufficient to meet the civil standard of proof, the Tribunal will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding.

Powers of the Tribunal if a complaint is proved or admitted

1. If a complaint is proved or admitted, the Tribunal may exercise its disciplinary powers as set out in s 149 of the National Law:

The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if -

(a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or

(b) the practitioner or student admits to it in writing to the Tribunal.

1. The Tribunal's general powers to suspend or cancel a practitioner's registration are found in s 149C(1) of the National Law as set out below:

(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; or

(d) the practitioner is not a suitable person for registration in the practitioner's profession.

Disciplinary orders are intended to be protective and not punitive

1. Disciplinary orders are made under the National Law for the protection of the public and not for the purpose of punishing the practitioner, as pointed out by the High Court of Australia in the context of the disbarment of a legal practitioner in Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186 (Clyne) at 201-202:

"Although it is sometimes referred to as the 'penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege."

1. The decision in Clyne has been adopted in a number of Tribunal decisions including Liu at [42] and Meneghetti at [97].
2. Although the specific purpose for which orders are made is to be protective of the health and safety of the public, it is acknowledged that such orders may be punitive in their effect, and that punitive effect may be relevant in formulating a protective order: Meneghetti at [98]; Lee v Health Care Complaints Commission [2012] NSWCA 80 (Lee) at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].
3. Indeed, under subs 2(c) of s 3A of the National Law, no order should be made which has more serious consequences for the practitioner than is reasonably necessary to promote the protective purpose:

3A Guiding principles [NSW]

...

(2) ...

...

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

1. Protection of the health and safety of the public is not confined to preventing repeat behaviour by the practitioner. Indeed, the protection sought applies more broadly, to protect against similar conduct or incompetence of other practitioners, and to uphold public confidence in the standards of the profession. Meagher JA, with whom Basten and Emmett JJA agreed, discussed these matters in Health Care Complaints Commission v Do [2014] NSWCA 307 at [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 conduct 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."

1. Protective orders arising from disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession: Meneghetti at [98] citing Litchfield at 637.

Maintaining public confidence in high standards of a profession

1. Protective orders serve to maintain public confidence in the high standards of the medical profession: Meneghetti at [98] citing Prakash at [91].

1. Protective orders also involve an element of deterrence, encouraging other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Meneghetti at [97] citing Prakash at [91].
2. In determining what protective orders are appropriate in each case, the Court of Appeal in Lee set out some of the applicable principles per Barrett JA (with whom Barrett JA agreed) at [34]:

"In cases of the present kind, therefore, this court should proceed on the basis that:

(a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern;

(b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is 'correct';

(c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers;

(d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle;

(e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection; and

(f) the Medical Tribunal, as a specialist tribunal, brings special skill and experience to the task of formulating protective orders."

Deciding any non-review period if registration is cancelled

1. When a finding of professional misconduct is made, the Tribunal has discretion to cancel a practitioner's registration and decide the length of any non-review period.
2. It is not necessary to make a finding that the practitioner is probably permanently unfit to practise before registration can be cancelled: Chen per Payne JA at [67]-[69].
3. The Supreme Court in Shelley v Nurses & Midwives Tribunal of NSW & Anor [2007] NSWSC 1240 at [37]- [38] found that in cases where a medical practitioner's registration is cancelled, the non-review period is not determined via an arithmetical process, but through a process of instinctive synthesis using the specialist experience and knowledge of the Tribunal:

"[37] The determination of the period before which the plaintiff will be permitted to reapply for registration involved the weighing by the Tribunal not only of the plaintiff's situation but the obligations to protect the safety of the public, to prevent the recurrence of professional misconduct, to act as a deterrent to other members of the profession and to maintain the profession's standards and public confidence therein. In determining this matter, the Tribunal had the advantage of observing the plaintiff and forming an opinion as to her attitude and demeanour.

[38] The Tribunal's ultimate conclusion is the product of the weighing by it, as a specialist tribunal, of the various factors identified by it in its written reasons. The nature of the weighing process does not lend itself to an arithmetical process. Rather, the process is one of instinctive synthesis in which relevant factors are identified and then weighed as a whole using the specialist experience and knowledge of the Tribunal."

1. Under cl 13(1) of Schedule 5D in the National Law, the Tribunal has the power to order the practitioner to pay the Commission's costs. Under cl 13(3A) of Schedule 5D, the Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the applicable legal costs legislation or on any other basis.
2. The Court of Appeal has affirmed that, as a general rule, costs of proceedings before the Tribunal should follow the event (that is, the successful party is entitled to receive their costs), and mere impecuniosity on the part of another party is not a justifiable reason for departing from that rule: Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 at [51].
3. The presumption that a successful party is entitled to receive their costs is generally 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] applied by the Tribunal in several decisions including Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [98] and Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 at [9].

1. The parties are in dispute as to whether the practitioner had a "reasonable excuse" for not attending the health examinations as directed under Condition 2. Resolution of this fundamental disagreement is critical to the Tribunal's consideration as to whether Complaint One and Complaint Two have been proved.
2. At first glance, the case appears to be deceptively simple, at least with respect to Complaint One (unsatisfactory professional conduct). After all, the facts are not in dispute that the practitioner failed to attend health assessments on 27 September 2021 and 12 January 2022, thereby contravening Condition 2 on two occasions. These contraventions equate to "unsatisfactory professional conduct" under s 139B(1)(c)(i) of the National Law, a provision that we note makes no mention of the availability of an argument as to whether a practitioner may have a "reasonable excuse" for contravening a condition on the practitioner's registration.
3. With respect to Complaint Two (professional misconduct), the analysis is more complex. The issue to consider is whether the practitioner's contravention of Condition 2 is of a sufficiently serious nature to justify suspension or cancellation of his registration, thus reaching the threshold of "misconduct". An evaluation of the nature and seriousness of the conduct requires examination of the nature of the conduct, the circumstances in which the conduct occurred and the reasons advanced by the practitioner for the conduct, in order to assess whether the explanation provided was reasonable in the circumstances such that the practitioner can establish that he had a reasonable excuse. It requires "evaluative judgment" to be exercised: Chen at [20].
4. Before anything else, we consider the provisions in the National Law that provide for a "reasonable excuse" argument, namely, s 145F and s 152B(4). It is important to clarify that s 150 of the National Law does not provide for a "reasonable excuse" argument in the same way that s 145F and s 152B(4) specifically provide. An important distinction to be appreciated is that conditions upon a practitioner's registration are imposed under s 150 in the interests of the protection of the health or safety of any person, or in the public interest. The guiding principle set out in s 3A of the National Law underpins and, indeed, mandates the imposition of conditions under s 150 if the Council is satisfied that it is appropriate to do so.
5. Also, the consequence of failing to comply with a condition imposed under s 150, is not the same as a consequence that may follow in the circumstances contemplated in s 145F and s 152B(4). If a practitioner fails without "reasonable excuse" to attend an examination (under either of those provisions), the failure is evidence that the practitioner does not have sufficient physical or mental capacity to practise.
6. Whilst s 139B(1)(c)(i) and s 150 do not specifically provide for a "reasonable excuse" argument, both parties have conducted themselves throughout the history of the case on the basis that a "reasonable excuse" was available with respect to compliance with a condition imposed upon the practitioner's registration. For instance, the information contained in the Council's Health Pathway Fact Sheet refers to the circumstance where a practitioner may have a "reasonable excuse" for not attending an assessment. The Fact Sheet explains how another appointment can be rescheduled by the Council (but not by the practitioner), and does not distinguish between s 150 and any other section of the National Law under which a practitioner can be directed to attend a health assessment. The facts demonstrate that, upon the practitioner failing to attend the first Condition 2 health assessment with Dr Breen, communications between the parties ensued regarding the reasons for his non-attendance. The Council was attempting to understand the practitioner's failure to attend upon Dr Breen, and then communicated with the practitioner to arrange the second Condition 2 health assessment with Dr Reid.
7. In our view, consideration of the "reasonable excuse" arguments is not inconsistent with, and does not compromise, the public health and safety platform underpinning s 150.

Practitioner's key submissions supporting "reasonable excuse" argument to excuse his non-attendance at medical assessments

1. The practitioner's submissions are multi-pronged, seeking to argue the application of various provisions in the National Law in support of his contention that he had a reasonable excuse for not attending the medical assessments.
2. The reasons advanced by the practitioner for not attending medical assessments are multiple. Three days before the medical assessment was to take place on 27 September 2021, the practitioner said he would not attend the assessment as he wished to seek legal advice. Three days before the medical assessment was to occur on 10 January 2022, the practitioner said his solicitor no longer represented him. He also said that he would not attend the assessment because he had a reasonable excuse. At that time, he also said that he would only divulge the "information" to an IRP or fact-finding body. He advanced a number of other arguments, including a contention that he had a common law right to refuse to be assessed and a contention that he could only be required to attend a health assessment after a disciplinary body has conducted a hearing and proved a matter. This contention appeared to be on the basis that the practitioner rejected the lawfulness of the Council's imposition of Condition 2 under s 150 of the National Law. We consider these and other contentions in more detail below.

Commission's submissions on "reasonable excuse"

1. The Commission argued that the practitioner had failed to attend the assessments without reasonable excuse and that his conduct amounts to professional misconduct because he did not advance an explanation that would justify failing to comply with Condition 2. The Commission argued that the practitioner knew and understood the potential consequence of not complying with Condition 2 and had acknowledged in his oral testimony that his own solicitor had advised him to attend the assessment. The Commission argued that the Council had lawfully imposed Condition 2 on the practitioner's registration and he had not sought to appeal the decision or seek a review of Condition 2. The Commission's further written submissions filed on 14 March 2025 provided comprehensive reasons for its arguments that the practitioner did not have a reasonable excuse for failing to attend the health assessments on both 27 September 2021 and 12 January 2022.

1. The practitioner has focused his attention on asserting that the various decisions of the Council have been biased against him because of the allegations in the anonymous complaint or because of misdescriptions of the complaint in Council documentation.
2. His contention was set out in his written submissions:

"The concern about the untested disciplinary allegations erroneously supplied by Ministry Staff have misled Council's Notifications Committee, performance assessors, health assessors and s 150 body. Importantly, the Director of Proceedings refuses to prosecute any matter other than non compliance with involuntary medical examinations."

1. His argument was that information contained in the anonymous complaint made against him in April 2022, and any rewording of that information in subsequent briefing documents and reports, misled the Council's Notification Committee, independent interviewers and assessors, and the Council's delegates in the s 150 proceedings.
2. We understood the essence of his argument to be one of bias, asserting that the anonymous complaint and subsequent documents were tainted with incorrect information that was prejudicial to his interests and that the Council, as well as the independent interviewers and assessors, were negatively influenced by the incorrect information. The practitioner's position was that the incorrect information ultimately negatively influenced the Council's decision to exercise its power under s 150 and impose conditions on his registration.
3. The Commission asserted that the issue of bias is not relevant. However, this case is complex, involving a number of decisions by the Council at various stages, commencing with the action taken in response to the anonymous complaint.
4. Bias exists if a decision-making is actually biased, or if an observer might reasonably apprehend that the decision-maker is biased. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the issues: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344-345 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
5. Our Reasons therefore contain a section that considers the facts at each recognisable stage of the case, to evaluate whether the Council's decisions at each of those stages were reasonable in the circumstances. At each stage, we assess whether the practitioner's arguments on bias, have any merit.

1. The Tribunal is not required to make findings on every argument or every submission advanced before it and to record those findings and submissions in the decision: Liang v University of Technology, Sydney [2018] NSWCATAP 285 at [31]- [32]. Having said that, the Tribunal is required to adequately address matters of relevance having regard to the applicable law and the facts and circumstances of the case, as discussed in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 per Mason P, Meagher JA and Sheller JA:

"On the one hand, the provision of inadequate reasons can lead to a sense of injustice and a reduced appreciation or understanding of legal rights and obligations. On the other hand, an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence in the judicial system."

The practitioner's contentions in support of his substantive argument

1. Before proceeding to an examination of each decision-making stage, we consider the practitioner's arguments that he relies upon to further justify his decisions to not attend the medical assessments.

Asserted "common law" right to refuse any medical examination

1. The practitioner asserted that his failure to attend health assessments was an exercise of his common law right to refuse any medical examination, implying that it overrides all else.

1. The practitioner's assertion suffers from one critical and fatal flaw and it is this. As a health practitioner, registered under the national scheme, his practice as a health practitioner is regulated by the National Law.
2. On the evidence before the Tribunal, the Australian Health Practitioner Regulation Agency (Ahpra) has certified that the practitioner was registered from 2 August 2019 to 7 February 2025. Therefore, at all relevant times, for the purposes of the imposition of Conditions 1 and 2 under s 150, and the referrals for assessment under s 152B of the National Law, the practitioner was registered as a health practitioner and was subject to regulation under the National Law.
3. Accordingly, he must comply with the Council's directions, notifications and referrals and his assertion of a common law right to refuse medical examinations within the context of his registration as a health practitioner under the National Law, fails.

Contention that the practitioner's registration was suspended in September 2021 and therefore the Complaint is limited to the asserted non-compliance with Condition 2 on only one occasion

1. The practitioner confirmed in his written submissions that he did not attend the scheduled assessment with Dr Breen on 27 September 2021. He asserted that his failure to attend that health assessment resulted in the Council being satisfied that he had contravened a condition of his registration and he was therefore, in effect, suspended from the date of that first contravention.
2. The practitioner's argument is advanced on the premise that, if his registration were suspended upon the first purported contravention of Condition 2, he was no longer taken to be registered as a health practitioner and could therefore no longer be subject to the imposition of Condition 2, and could not be prosecuted for the second purported contravention of Condition 2. Further, the practitioner asserted that since he was not registered in January 2023, he could not be required to attend a health assessment with Dr Samuels.

1. Firstly, we note as a technical point, that the evidence from Ahpra is that the practitioner was registered until 7 February 2025 and therefore was subject to regulation in January 2023.
2. The practitioner's argument appears to rely upon s 150(3) and s 176D of the National Law. Section 150(3) provides that contravention of a "critical compliance order or condition" must result in suspension of a practitioner's registration and referral of the matter to the Tribunal. Section 176D provides that if a person's registration as a health practitioner is suspended under the National Law, the person is taken during the period of suspension to be not registered.
3. The practitioner's argument is flawed for two reasons: Firstly, Condition 2 was not a "critical compliance order or condition" that, if contravened, meant the Council was required to suspend the practitioner's registration. Section 150(3) therefore has no application. Secondly, s 176D of the National Law is not enlivened. Further, and in any event, at no time did the Council, by order under s 150 of the National Law, suspend the practitioner's registration. The practitioner's argument therefore fails.
4. The practitioner's argument may have been constructed to seek to defeat an argument that more than one instance of unsatisfactory professional conduct, when considered together, amounts to misconduct, although we acknowledge this was not articulated by the practitioner.
5. However, the argument put forward by the practitioner demonstrates that he well understood the effect of being registered and therefore subject to the National Law, which defeats his asserted "common law right" to refuse medical examinations. His argument has the effect of conceding that, if he is registered, his asserted "common law right" has no application, and he is regulated by the National Law.
6. It also indicates that the practitioner well understood that a breach of a condition imposed upon his registration under s 150 of the National Law is a serious matter.
7. Finally, on the evidence before us provided by Ahpra, we note that the practitioner was registered until 7 February 2025.

Contention: The practitioner's first failure to attend medical assessment under Condition 2 obliged the Council to refer the matter to the Tribunal under s 150(3)(b) of the National Law

1. The practitioner also submitted that, consequent upon his first failure to attend the Condition 2 medical assessment, the Council was obliged to refer the matter to the Tribunal pursuant to s 150(3)(b), but had failed to do so.
2. Under s 150(3)(b), if Condition 2 had been made a critical compliance order or condition, then upon the practitioner's contravention, the Council would have been required to do two things:

(1) suspend the practitioner's registration until a complaint concerning the contravention is dealt with by the Tribunal; and

(2) refer the matter to the Tribunal as a complaint.

1. The s 150 orders did not include an order that Condition 2 was a "critical compliance order or condition". There is nothing in the transcript to indicate that the Council considered making, or intended to make, Condition 2 a critical compliance order or condition. Further, the Council's letter dated 9 September 2021 referring to the s 150 proceedings and the imposition of Condition 2, did not advise the practitioner that the condition was made a critical compliance order or condition.
2. We therefore find that the practitioner's criticism of the Council's asserted failure to act in accordance with s 150(3)(b) has no basis, and reject his submission on this point.

Practitioner's assertions that it was not reasonable for Council to direct him under ss 145E(1) and 152B(1)

1. The practitioner's "reasonable excuse" defence appears to be based on his underlying assertion that the Council had failed to objectively demonstrate, as required in s 145E(2), that it was reasonable to direct him to undergo a health examination under s 145E(1), given the nature of the complaint against the practitioner. His submission was made in the following terms:

"Section 145E(2) requires the nature of a complaint to be objectively established, and only then can involuntary health assessments be ordered by the Council if it is reasonable given the nature of the complaint."

1. He also challenged whether the Council satisfied the requirement to "reasonably believe" that the practitioner has or may have an impairment before requiring him under s 152B to undergo a health assessment. His submission is set out below:

"Section 152B requires a complaint addressed at a Council meeting producing a written decision stating the Council whom have addressed a complaint 'reasonably believe' the practitioner is impaired (152B(1))."

1. There is some confusion in the material as to whether the statutory basis for requiring the practitioner to have a health assessment on the first occasion (that is, before Condition 2 was imposed) was made clear to him. There were references to both s 145B(1) and s 152B in correspondence with the practitioner. To add to the confusion, the practitioner appears to have understood (we say, incorrectly) that the referral may also have been made pursuant to s 155C (Assessment of professional performance by assessor).

1. From our analysis of the evidence concerning the performance assessment and the assessors' recommendation that the practitioner have a medical assessment, it is clear that the practitioner was required to have an assessment on the basis of s 152B(1) and not s 145E(1). Our assessment of the reasonableness of the recommendation is set out in our discussion (below) of that stage of the case.

Practitioner's assertions that the Council could not be satisfied under s 150 that it was appropriate to impose conditions on his registration

1. The practitioner challenged whether the Council could be satisfied under s 150(1) that it was appropriate to impose Condition 2, requiring him to attend a health assessment, for the protection of the health and safety of any person or otherwise in the public interest.

1. Our assessment of this issue is set out in our analysis of the s 150 proceedings stage.

Contention that an oral hearing is required before requiring a health assessment

1. The practitioner contended that, as a precondition to requiring a practitioner to have a health assessment under s 145E or s 152B of the National Law, there must first be an oral hearing to address a particularised complaint.
2. He also objected to being required to attend a health assessment before an IRP could be convened. His email of 7 January 2022 argued that the requirement to attend a health assessment is an order available only after a disciplinary body has proved a matter, and conducted a public hearing.
3. The Council, on the other hand, argued that an IRP can only occur in circumstances where a practitioner has already completed an independent health assessment. The Council also argued that it was not the role of an IRP to determine whether an independent health assessment was appropriate.

1. It is important to untangle some of these arguments. We have already distinguished between requiring a practitioner to have a medical assessment under s 145E(1) or s 152B(1), as opposed to a practitioner being required to have an assessment because of a condition imposed on their registration under s 150.
2. On our analysis of the evidence, s 145E(1) has no application on the facts of this case. The practitioner was not required to have a medical assessment on the basis of the nature of the anonymous complaint. He was required to have the assessment on the basis of the assessor's recommendation, that is, that he has or may have an impairment (under s 152B(1)). The practitioner has not identified the statutory basis for his argument. There is no requirement for an oral hearing to occur before a Council can require a practitioner to undergo a health assessment under s 152B(1). All that is required, is for the Council to hold a reasonable belief that the practitioner has or may have an impairment.
3. We have also considered s 152D(1). If the Council considers a matter "indicates" a registered health practitioner has or may have an impairment, then, under s 152D(1), the Council may decide to refer the matter to an IRP. As the facts demonstrate (discussed below in relation to the s 150 hearing), the Council did not have any information or any independent medical opinion on the health of the practitioner, but reasonably believed, on the basis of the performance assessors' recommendation, that he may have an impairment.
4. We also consider the practitioner's argument that seeks to challenge the lawfulness of the Council's imposition of Condition 2. His argument appears to be based on his criticism that the s 150 proceeding was not a fact-finding or disciplinary proceeding. However, his argument fails to recognise the purpose of s 150 and the platform underpinning the provision, namely, the protection of the health and safety of the public.
5. As our analysis (below) on the s 150 hearing demonstrates, we are persuaded that the Council's delegates were satisfied on the evidence before them that it was appropriate for the protection of the health and safety of the public, and in the public interest, to impose Conditions 1 and 2 on the practitioner's registration. The conditions were therefore lawfully imposed, and the practitioner did not seek a review of the conditions and did not appeal the s 150 decision.
6. The practitioner's references to ss 173A(1) and 152G(2) have no relevance since no notice was issued concerning referral of the matter to an IRP.
7. In our view, the practitioner's understanding or interpretation of the legislation is misconceived.

Contention that the Council's Notice to the practitioner about the imposition of Condition 2 was not valid

1. The practitioner contended, in written submissions (and confirmed in his oral evidence), that the Council's Notice to him, advising him of the imposition of conditions on his registration was not signed by the Council and was therefore somehow not a valid notice.

1. The Council's Notice of Condition 2 was personally served upon the practitioner on 14 September 2025, along with a letter dated 7 September 2021, which was signed by a Council officer. The Notice did not require a signature on behalf of the Council. The Notice asked for the document to be signed by the practitioner, to acknowledge that he was aware of the conditions on his registration. The instructions on the Notice were that he sign and date the document, and keep a copy for his records.
2. The fact that the practitioner did not sign the document does not render the imposition of conditions invalid, and does not make the Notice to be null and void. The fact that he did not sign the document does not mean that he can argue that he was not aware of the conditions, or that he was not aware of the requirement to comply with them. These matters were discussed in the s 150 hearing that the practitioner attended. Additionally, the Council's letter of 7 September 2021 stated "You must comply with the conditions on your registration from 7 September 2021."
3. The practitioner's contention on this particular point has no merit.

Impairment and the practitioner's contentions that the matter was required to be referred to an IRP and without a prior health assessment

1. On the issue of referring the matter to an IRP, firstly, the practitioner argued repeatedly that it was a mandatory step for the Council to take. He was, clearly, aggrieved that this had not been done. He asserted that an IRP was ordered on 7 September 2021 (at the s 150 hearing), but was never implemented.
2. His submission relied upon the following paragraph in the s 150 decision:

"REFERRAL

Given our conclusion that Mr Adam Mitchel Liszt has health concerns, we refer this matter to an Impaired Registrants' Panel subject to the consultation provisions of s 150F of the National Law (NSW)."

1. Secondly, he asserted that he could not be required to have a medical examination before having an IRP hearing.
2. Thirdly, and this may be tied to his first assertion noted above, the practitioner asserted that the Council had "accused" him of having an impairment. We do not understand the purpose of this assertion, but we will address it nonetheless, for clarity and completeness.

1. As to his first assertion, the s 150 decision and the transcript of proceedings reflect the Council's imposition of Condition 1 and Condition 2, but no order was made concerning impairment. The "REFERRAL" was made subject to consultation with the Commission.
2. There is no statutory or evidentiary basis for his assertion that, on the strength of the "REFERRAL", the Council was mandated to refer the matter to an IRP.
3. As to the practitioner's second assertion, there is no statutory basis to support his contention.
4. On the evidence, however, the sequence of events was explained in the s 150 proceedings. It was also communicated to the practitioner in the Council's letter dated 9 September 2021 and in the Fact Sheet ("Attending a Health Assessment - Health Pathway"). It was again explained in various communications. In an email dated 5 October 2022, the Commission's Investigation Officer explained that an IRP can only be convened once an independent health assessment has occurred.
5. With respect to the practitioner's third assertion, it is important to note the distinction between the practitioner's assertion that he was "accused" of being impaired, and the wording of s 152B(4). As we have previously noted, under s 152B(4), the failure to attend a medical examination is "evidence" of the practitioner having insufficient physical or mental capacity to practise their health profession. However, that does not amount to an accusation of impairment, or a diagnosis of impairment.

Analysis of the evidence at various stages in the case

1. We now turn to a discussion of the various stages of the history of the case, to analyse the evidence and the basis on which the Council's decisions were made.

1. The practitioner has relentlessly argued that the matters alleged against him in the anonymous complaint must be tested and determined as a matter of priority.
2. Certainly, the anonymous complaint precipitated the events that followed. However, the matters alleged in the anonymous complaint are not the subject of the Complaint before this Tribunal.
3. Arguably, the starting point in the history of this case, could be said to be the VPM training issue and the practitioner's prosecution of his alleged unfair dismissal claim in the IRC. He disputed that the VPM course was mandatory and disputed that it was mandatory for staff to successfully complete the training. Further, he disputed the results of his own VPM training and argued that he had in fact successfully completed the training. The practitioner hypothesised that the anonymous complaint was made by his employer in response to his unfair dismissal claim. The practitioner did not substantiate his assertions with objective evidence, and in any event they are not matters on which this Tribunal has jurisdiction and are not relevant matters for our consideration.
4. In various documents, the practitioner asserted that the reference in the anonymous complaint to "misconduct related to violence" suggested he was guilty of a criminal act. He also referred to the complaint as accusing him of "common law assault". On the material before us, there is no basis for the complaint to be described in those terms. We regard the practitioner's interpretation of the wording in the complaint as an incorrect extrapolation since the expression used by the complainant was that the practitioner had been dismissed because of "misconduct related to violence prevention and management".
5. As already noted, the complainant remained anonymous, and therefore the substance of the allegations could not be clarified, let alone tested. Certainly, the complaint was difficult to understand or interpret, and Dr Samuels made such a comment when giving his oral testimony during the hearing.
6. Against the background of a training issue, the decision to refer the complaint to the Council as the most appropriate body to manage the matter, was sensible.
7. Based on the plain meaning of the words used in the anonymous complaint (namely "professional conduct", "competence" and "impairment"), it would be reasonable to interpret the complaint as having possible implications for each of the three pathways in Part 8 of the National Law under which the Council manages complaints, namely: (1) health; (2) performance; and (3) conduct.
8. The courses of action that were available to the Council in respect of a complaint are set out in s 145B(1) of the National Law. Firstly, under s 145B(1)(a), the Council was authorised to make any inquiries about the complaint that the Council thought was appropriate. Under s 145B(1)(f)(i), the Council could refer the practitioner for a health assessment. Under s 145B(1)(f)(ii), the Council could refer the matter to an IRP. Under s 145B(1)(f)(iii), the Council could refer the professional performance of the practitioner for a performance assessment.
9. A document prepared within the Council served as a briefing document for the Council's Notification Committee on 26 June 2020 to discuss the anonymous complaint. The briefing document noted that there were no previous complaints against the practitioner and that there were no restrictions imposed upon his registration. There is no suggestion or inference that the Notification Committee had accepted the allegations made in the anonymous complaint as having any merit. The Notification Committee recommended that the practitioner be asked, pursuant to s 164G of the National Law, to provide information about the complaint.
10. Although the practitioner contacted the Council to discuss the complaint, he focused on his alleged unfair dismissal. Despite being advised that the Council's role was not to consider workplace issues, his submissions generally concerned his dispute with SLHD over his alleged termination. After he failed to provide the information requested by the due date, the Council arranged for him to attend a performance interview to discuss the matters alleged against him.

1. It is clear that, by inviting the practitioner to attend an interview, the Council did not seek to invoke the performance assessment provisions in Division 5 of the National Law.
2. In our view, inviting the practitioner to an interview was a sensible and appropriate action as part of the Council's initial inquiry into the complaint, and within the Council's authority under s 145B(1)(a) of the National Law.

Stage 2: Performance interview on 15 October 2020

1. The interview was convened on 15 October 2020. The practitioner attended by videoconference, to discuss the issues raised in the anonymous complaint. He also phoned in, so that he could hear and speak with the interviewers. The Council had foreshadowed that discussion would focus on the Nursing and Midwifery Board of Australia (NMBA) Code of conduct for nurses, the NMBA Registered Nurse Standards for Practice 2016, and self-care.
2. In preparation for the interview, the Council had prepared a briefing document dated 6 October 2020, titled "Performance Interview Brief - 15 October 2020". It is clear from a note in the briefing document that the purpose of the performance interview was to gather information about the anonymous complaint. In our view, it is equally clear that the purpose of the interview was not for performance assessment, although that was noted to be a possible outcome of the interview.
3. The briefing document noted there had been no previous complaints against the practitioner and that there were no restrictions imposed on his registration. It contained the following description of the anonymous complaint under the heading "Current matter":

"On 23 April 2020 the council received an anonymous notification relating to conduct.

The notification alleges that Mr Liszt was dismissed from his role at Concord Hospital in August 2019 because of misconduct relating to violence prevention and management. (Ex 1)

The notification also alleges that the hospital thought Mr Liszt was a danger to himself and to others. (Ex 1)"

1. The practitioner annotated the briefing document, to the effect that the anonymous complaint amounted to "a criminal allegation of common law assault". He also made a note on the document that the Council's file note of his conversation with a Council officer on 31 July 2020 was a "lie/fabrication".
2. One of the exhibits to the briefing document (Exhibit 7) was a document referred to as a "Practitioner History". It contained a reference to the anonymous complaint which was incorrectly categorised as "Behaviour - Aggressive behaviour". We refer to this in more detail below, with respect to the performance assessment which took place on 5 February 2021.
3. The matters discussed with the practitioner were reported upon in a document dated 6 November 2020 (Performance Interview Report). The report noted the issues explored with the practitioner, including:

(1) an explanation in his own words of what had occurred in the lead up to the anonymous complaint;

(2) his unfair dismissal claim and whether there were any issues with his conduct and/or performance, in relation to which he said there was no documentation and that he had had a discussion with the Nursing Unit Manager who told him she couldn't offer more work to him because he had failed the VPM training on a second occasion (which he interpreted as a termination of his employment);

(3) his vaccination status;

(4) his employment history over the previous 20 years and future employment goals;

(5) whether he had ever completed a performance review with his employer and whether he had received verbal feedback on his performance, to which he said he could not recall any specific complaint about his practice and if there had been a problem he would have expected it to have been raised with him;

(6) his obligation to complete 20 hours of CPD training (including mandatory training) annually, noting that in order to re-register each year, he would have to declare that he had fulfilled the CPD requirements.

1. The report contained the following description of the anonymous complaint:

"The complaint against Mr Liszt, a Registered Nurse (RN), was that he was dismissed from the casual pool at Concord Hospital because of misconduct relating to a violence prevention and management Course. The complainant stated that the hospital thought Mr Liszt was a danger to himself and others. The complainant also thought Mr Liszt should not be working, and stated that Mr Liszt had claimed that he was unfairly dismissed by the hospital and that the matter was with the Industrial Relations Commission."

1. The practitioner challenged the content of the report, but did not provide objective evidence to support his assertions that the report was inaccurate.
2. When asked about his employment, the practitioner said that he was not working and that the Nurse Manager had told him she could not offer him more shifts because he had failed the VPM training. The practitioner interpreted this as a termination of his employment and was hopeful of a resolution of unfair dismissal proceedings he had initiated in the Industrial Relations Commission.
3. We note that the practitioner's initial response to the anonymous complaint (letter dated 11 August 2020) had asserted that the allegations against him involved fabrication of the assessment of his performance in the VPM training. In particular, his letter stated:

"The procedures relating to the allegations involve the fabrication of an assessment report that the nurse manager says she asked a CNC to provide advice to her about my performance and misrepresenting the documentation made on 12 April and 12 August 2019 by the trainers."

1. During the interview, the practitioner was asked about the competency assessment he had received for the VPM course. He said he had not received comment on how he performed the restraints. He also said he had not been told of any unsatisfactory conduct during the day. His understanding was that he was required to do the three-day course again as it had been four years since he had done it previously. He said that he had performed worse when completing the course on the second occasion in August 2019, as he was anticipating doing the three-day course.
2. The practitioner believed that he had failed because of the judgment of the participants and the "interpretation of the assessment" by the Nursing Unit Manager. As to the allegation that he was a danger to himself and others, the practitioner thought the Nursing Unit Manager considered he was more liable than others to be hurt. Despite conceding that he had failed the VPM course, he still believed that he had an overall satisfactory performance at the course and that there was no substance to the allegations.
3. The practitioner conceded that he had not completed the course of vaccinations, due to his interpreted dismissal.
4. He acknowledged that he had not fulfilled the mandatory requirements for CPD, such as CPR, manual handling and fire and safety. He conceded there had been gaps of several years where he had not completed mandatory education, although he had occasionally been involved in single day education activities. He said that he was aware of the need for ongoing professional development and that he had done some reading, but no formal courses.
5. It is significant that the practitioner acknowledged that he was not in a position to be offered employment:

"The Panel asked Mr Liszt if he believed the reasons he had not been given many shifts during the period April 2019 to August 2019 was because he was studying for his exams, he had not completed the required VPM course, he was for a period of time unregistered and he had not completed the required staff vaccination program. Mr Liszt agreed and acknowledged that this would prevent him from gaining further employment either at Concord Hospital or elsewhere."

1. With respect to a formal review of his performance, the practitioner explained that there had been a plan to do a review with the Nursing Unit Manager, but it had never occurred. He said that he had followed up by completing some paperwork, but the review had not been pursued.

1. It is clear that in the course of conducting the discussion, the interviewers became aware of the practitioner's failure to complete the mandatory 20 hours of CPD for annual registration, his conceded failure to complete vaccination requirements and that he had not had a performance assessment in his 20 years of practice. Under the heading "Interview Outcome", the interviewers expressed concern that the practitioner had not maintained contemporaneous practice during his 20 years of working in the casual pool, he had not had a performance review in those 20 years, and he had failed to complete the mandatory requirements for his role as a registered nurse in the area of mental health. The interviewers recommended that the practitioner be referred to a performance assessment.
2. The report stated that the interview panel discussed with the practitioner their recommendation that he be required to undertake a performance assessment in order to confirm his clinical skills and decision-making abilities were at the standard expected of a registered nurse with his experience.
3. The practitioner asserted that he was not informed during the interview of this recommendation. Under cross-examination in the proceedings before this Tribunal, he again disputed that the interviewers had foreshadowed their recommendation.
4. The practitioner has not advanced any information to support his assertion that this was not discussed with him. There is no evidence to suggest that this was not discussed with him. There is nothing in the report to suggest that the practitioner objected to having an assessment. Indeed, he acknowledged there was a policy that it should be done and he had completed paperwork in anticipation of that being done. In the absence of producing any evidence to the contrary, we reject his assertion and accept that the interview panel did discuss this matter with the practitioner. In any event, he agreed to attend a performance assessment and did so on 5 February 2021.
5. We acknowledge that the interview panel was not authorised to decide any matters concerning the anonymous complaint. However, the practitioner was given an opportunity to explain from his perspective the circumstances which appeared to provide the context for the complaint and his response to the matters alleged.
6. In our view, there is nothing in the report's description of the matters alleged in the anonymous complaint that suggests the interviewers were biased against the practitioner. The report is written in objective terms and there is nothing in the report to suggest that the interviewers held any particular view about the matters alleged.
7. The recommendation that the practitioner undergo a performance assessment was, in our view, sensible and entirely to be expected, having regard to the matters disclosed by him during the interview concerning his failure to complete the mandatory CPD requirements and the fact that he had not had his performance assessed in 20 years.

Stage 3: Performance assessment on 5 February 2021

1. The performance assessment was arranged to take place on 5 February 2021, at the clinical simulation laboratories at the University of Technology, Sydney.
2. The practitioner's submissions appear to have confused the basis on which he was referred for a performance assessment.
3. We agree with the practitioner's argument that, pursuant to s 154B(2), the Council could not have his professional performance assessed on the basis of a notification that was made anonymously. Section 154B is set out below:

154B Persons may notify Council of professional performance matters [NSW]

(1) A person may notify the Council for a health profession of a matter the person thinks indicates the professional performance of a health practitioner registered in the profession is unsatisfactory.

(2) The Council must not have the professional performance of the practitioner assessed on the basis of a notification if it is made anonymously.

1. The facts demonstrate that the Council did not progress its inquiries under the performance assessment provisions in Division 5 of the National Law on the basis of the anonymous complaint but because of the matters disclosed by the practitioner in the performance interview.
2. On 4 February 2021, following a telephone conversation with the practitioner, the Council sent an email to him, confirming what had been discussed with him about the basis for the assessment. In particular, the email explained that the performance interview was the basis for referral for the performance assessment, and not the anonymous complaint. The email stated that the original anonymous complaint would not form a basis for the assessment and would not be considered by the assessors. On the day before the performance assessment took place, the assessors were advised not to use the anonymous complaint for the purpose of the assessment.
3. Prior to attending, the practitioner received a letter advising that he would be assessed against the NMBA Registered Nurse Standards for Practice (2016). He also received a Fact Sheet explaining that the assessment would include theoretical as well as practical components. The Fact Sheet explained that the assessment would not evaluate past behaviour, although information on past behaviour may assist the assessors to identify specific areas to assess.
4. At the time of the assessment, the practitioner had not provided a copy of his CV or CPD. He did, however, provide his CV to the Council on 15 February 2021. In a Council file note dated 15 February 2021, a telephone conversation between a Council officer and the practitioner on that date recorded that the practitioner felt the assessment had been well organised and that he had done well, although he commented that there may be some issues with his medication knowledge and skill.
5. In a report dated 19 February 2021, two independent assessors described the nature of the assessment sessions and recorded the practitioner's performance results.
6. The assessment commenced with an introductory and reflective interview for an hour. It was followed by a simulation exercise in an adult mental health inpatient unit, involving a clinical handover of three patients, providing the practitioner with an opportunity to demonstrate his knowledge and skills in the areas of focus previously identified. There was then a written assessment, comprised of questions about professional nursing practice and medications involving drug calculations, medication management, medication procedures and terminology. The final session comprised a reflective interview and discussion based on a structured questionnaire.
7. During the introductory session, the practitioner explained his motivation for nursing and, in particular, mental health. He said that he preferred part time work and explained his interest in studying law, having completed 7 out of 17 subjects through the Legal Profession Admission Board at Sydney University from 2015 to 2019. He conceded that he had not done a lot of CPD. He also conceded that he had not prepared for the assessment, although he had glanced at the NMBA Registered Nurse Standards for Practice (2016). The assessors concluded that the practitioner had limited knowledge of the NMBA Registered Nurse Standards for Practice (2016), and that his CPD for the registration period 2020-2021 did not meet the requirements for ongoing registration.
8. In the second assessment (a simulated exercise), the practitioner's communication style was described as "formal". His manner of questioning was described as "interrogative" and not consistent with therapeutic engagement. His communication was said to be "disorganised and error prone", and he showed limited understanding of patient confidentiality. He was assessed as demonstrating poor critical thinking, poor clinical judgment and poor attention to detail when managing a patient who was becoming increasingly agitated. The assessors' concluding remarks were not favourable to the practitioner:

"In these sessions, Mr Liszt was required to assess, prioritise, and provide care for three patients. He was able to interact professionally with the health care team but was unable to implement and delegate some care in a timely and safe manner. He was not able to evaluate some care as expected of an experienced RN (Standards 1, 1.4, 1.6, 3.1, 4, 5, 6 & 7). Mr Liszt demonstrated deficits in communication, general patient assessment, medication administration, infection control, comprehensive mental health and risk assessment and nursing documentation processes. He requires further education in current policies and procedures, mental health and risk assessment to provide him with the knowledge and skills to enhance the safe provision of care.

The assessors noted that Mr Liszt appeared to have trouble with concentration, focus, memory and organisation."

1. In the third session, the practitioner was required to provide written answers to questions about professional nursing practice and medications including drug calculations, medication management, medication procedures and terminology. He achieved a score of 13/26 or 50%, indicating a significant deficit in mathematics for safe and accurate administration of medication. He did not answer a number of questions. He was assessed as having significant deficits in his knowledge of his professional responsibilities in relation to medications, calculations, medication management and terminology. The assessors' concluding remarks are set out below:

"Mr Liszt achieved an overall score of 44% for the medication knowledge written assessment and 50% for the medication calculation section, which could result in medication administration errors in practice. There are significant deficits in Mr Liszt's knowledge of his professional responsibilities in relation to medications, calculations, medication management and terminology...These results indicate that Mr Liszt is not currently safe to administer medications without constant direct supervision, and he will require further education and assessment in medication administration before he can be deemed competent to practice independently.

The assessors were concerned that Mr Liszt' (sic) written assessment results did not reflect his extended experience as a senior nurse."

1. In the fourth session, the practitioner was asked to reflect upon the performance assessment. He agreed the assessments were reflective of the scope of practice of a registered nurse and that there was nothing he had been assessed on that he had not previously encountered in clinical practice. He conceded that he should have prepared better for the medication exam and that his documentation skills were poor. He commented that he can go on a tangent quite easily and that concentration can be a challenge.
2. Using the Bondy rating scale (a well-established tool for assessing and reporting clinical competence), the practitioner was rated "dependent" or "marginal" against 7 nursing standards. The report concluded that the practitioner required further education in evidence-based nursing to ensure he practises using contemporary and proven nursing knowledge and skills.
3. The report recommended that the practitioner must not practise independently until he has successfully completed education approved by the Council and has been further assessed in relation to a number of areas of practice.
4. Of significance, the report also recommended that the practitioner attend an independent health assessment to determine whether any "modifiable barriers" exist to his acquisition, retention and application of new knowledge:

"It is important that Mr Liszt attend an independent health assessment to determine whether any modifiable barriers [Tribunal's emphasis] exist to his acquisition, retention and application of new knowledge. This will inform the level and type of support Mr Liszt may require in order to achieve independent practice."

1. The term "modifiable barriers" as expressed in the recommendation refers to the possibility of identifying any obstacles that may be capable of being changed or overcome through intervention or adjustments made, to help him achieve independent practice.
2. The report was provided to the practitioner on 23 February 2021. He was asked to provide a response by 8 March 2021.

Complaint as to procedural fairness referred to HPCA for investigation

1. The report contained an error by including the words: "The practitioner's current restrictions should remain in place". There were, at that point in time, no restrictions on the practitioner's registration.
2. The practitioner argued that the performance assessors were biased in their assessment because the information contained in the anonymous complaint was provided to them and they understood (incorrectly) that he had a restriction placed upon his registration and that he had been found to have engaged in misconduct.
3. He criticised the report for the error, asserting the Council's processes had not been transparent and were procedurally unfair. On 4 March 2021, the Council acknowledged that the statement was an error, that there were no restrictions on his registration, and that the report would be amended accordingly. Also, the Council acknowledged in a telephone conversation with the practitioner on 5 March 2021 that the categorisation of the anonymous complaint as "Behaviour - Aggressive behaviour" (discussed above) was also an error.
4. In an email dated 7 March 2021, the practitioner objected to any alteration of the Council's Performance Assessment Report and demanded that he attend a meeting of the Council to address his concerns. The Council did not agree to his request and reminded him to provide a written response to the assessment report.
5. The Council paused consideration of the Performance Assessment Report and the assessors' recommendation pending review of the practitioner's complaint that the Council's documents were inaccurate and its processes were unfair.
6. An Agenda Brief dated 25 March 2021 for a meeting of the Council's Notifications Committee on 9 April 2021 to consider referring his complaint about the Council's processes to the HPCA described the anonymous complaint as having made "exaggerated and incorrect claims". The Agenda Brief noted that the anonymous complaint had been incorrectly characterised as a conduct issue and incorrectly categorised as "Behaviour - Aggressive behaviour".
7. After investigating the complaint, the Council advised the practitioner on 13 August 2021 that the factual error in the Performance Assessment Report had no consequential impact on the findings and recommendations outlined in the report.
8. The Performance Assesment Report was not amended, and the recommendation that he be referred for an independent medical assessment remained undisturbed.

1. There is no objective evidence before the Tribunal to contradict the findings of the HPCA investigation. The description in the Agenda Brief that the anonymous complaint contained "exaggerated and incorrect claims" supports the Council's stated position that it was not focused on the matters in that complaint. We are satisfied that the performance assessors did not have regard to the anonymous complaint in their assessment of the practitioner and were not biased against him on the basis of the complaint in making their recommendation that he be referred for medical assessment.
2. In our view, the performance assessment was comprehensive, objectively relying upon a number of assessment tasks. The results in each of the sessions provide objective evidence of the practitioner's level of performance. The exercises and sessions were those used as a standard, objective measure of the practitioner's level of competence across a range of tasks that a registered nurse is expected to perform. Based on the assessors' observations of the practitioner's performance and demonstrated difficulty with concentration, focus and memory, their concern that there may be an underlying medical issue was reasonably derived. Their recommendation that the practitioner be referred for an independent medical examination was reasonable and not excessive in the circumstances.
3. The Performance Assessment Report was comprehensive and detailed. Any potential for bias, based on the incorrect reference to a restriction on his employment, is overwhelmed by the objectivity of the assessment regimen and the comprehensiveness of the matters discussed in the report.
4. Given the assessors' observations that the practitioner demonstrated difficulty with concentration, focus, memory and organisation, and their concern about the possibility of an underlying health issue impacting upon his ability to perform his duties, the recommendation that he be medically examined, was reasonable.

Interim Stage - Referral for medical assessment under s 152B(1)

1. Arrangements were made for the practitioner to be examined by Dr Breen, Neuropsychologist, on 2 August 2021, pursuant to s 152B(1).

1. On the basis of the practitioner's results as described in the Performance Assessment Report and, in particular, the assessors' recommendation that he be medically examined, we are satisfied that the Council had grounds to reasonably believe that the practitioner has or may have an impairment.
2. It was therefore reasonable for the Council to require the practitioner to be examined pursuant to s 152B(1).

Stage 4: Section 150 proceeding on 7 September 2021

1. The practitioner failed to attend the appointment with Dr Breen.
2. The reason he gave for not attending was that he was being monitored by his own doctor, and he dismissed the recommendation of the assessors as a "passing thought" which was "not enough" in his view to warrant the examination. In our view, that purported explanation does not constitute a "reasonable excuse".
3. As a consequence, under s 152B(4), 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.
4. As an aside, we note that the practitioner's assertions at the time, also referred to the requirement that there must be a "panel" option as per s 155C, demonstrating that he had mistakenly understood that the Council was progressing its inquiry through the performance pathway. After receiving the results of the performance assessment, and the assessors' recommendation that he be medically assessed, it is clear that the Council had decided to engage the health pathway for managing the case.
5. A hearing before delegates of the Council occurred on 7 September 2021 pursuant to s 150. Proceedings under s 150 are interim in nature. The Council does not have power to determine whether the practitioner has or may have an impairment, but conducts a hearing as an interlocutory or interim step in order to consider whether to take action for the protection of the health and safety of the public.
6. The practitioner attended by videoconference and by telephone. The proceedings were audio-recorded, as required under s 150B. As previously noted, the practitioner indicated he intended to audio record the proceedings, for his own use. When taken to various sections of the transcript of the s 150 hearing during proceedings before this Tribunal, he disputed that the transcript was an accurate record. However, he did not produce his own audio recording or transcript to his assertions and we have accepted the Council's transcript as an accurate record of the proceeding.
7. Early in the hearing, the practitioner said that he understood the purpose of the hearing, but he then focused on "a complaint that centres on not conduct or misconduct" and he said that the main issue for 15 months had been unclear. He then said that "unsatisfactory conduct" was the issue at hand, and not "misconduct". This was all rather confusing, and the Council's explanation at that point during the hearing was not clear or concise. A number of attempts were made to explain that the matters in the anonymous complaint were not the point of focus. The practitioner repeatedly expressed concern that the performance assessors had worked with inaccurate information which clouded and confused the process. He said he was concerned that the assessors may have been biased by the false allegation that he had been dismissed because of misconduct related to violence.
8. When asked about his reason for not attending the health assessment with Dr Breen, the practitioner said that he wasn't sure of the nature and purpose of the assessment. He also queried why, if it was a pressing matter, he wasn't referred six months previously when the recommendation that he be assessed was first made:

"I didn't attend a health assessment because I wasn't sure what the purpose of it was for. I understand that they recommended that I should attend, seven months ago. I think it was. Why didn't I attend? Because I wasn't sure of the nature and the purpose of the ...

I was unsure about the delay, as in, if it was a pressing matter, why couldn't have I been referred six months ago when the recommendation happened?"

1. We find the practitioner's comment about the delay to be disingenuous, since he knew that the matter had been paused to consider the allegations he had made that the Council's processes were procedurally unfair.
2. The s 150 panel (the panel) explained why the practitioner had been referred for health assessment following his performance assessment in which he was observed to be disorganised, and concern that he may have some cognitive impairment. When asked by the panel whether he was disorganised during the assessment, the practitioner described the clinical setting for mental health patients as being less structured than a general nursing setting, and acknowledged he could understand why the assessors would be concerned:

"Was I disorganised? Look, it' a very artificial circumstance. I am not generally - look, there was a sort of medical type - look, it's in a clinical setting, as you know, or a mock clinical setting at the university; or at least mine was. Look, it's not entirely sort of accurate in terms of the setup, but I guess that that (sic) varies. Look, I'm not a general nurse in the sense that when I deal with patients, I'm generally, as you know, I don't want to state the obvious but mental health clients are not sitting in bed nor are they - nor is there a structured approach to the way you interact with them. Often it's less structured than I guess a general nurse's interactions were. Possibly I could understand why they would be concerned."

1. The panel explained that the Council had no information about the practitioner's health (which the practitioner acknowledged), and that he was referred for a health assessment when concerns were expressed by the performance assessors. The practitioner disclosed to the panel that he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) twenty years previously and was prescribed medication on an ongoing basis by his treating psychiatrists.
2. The panel explained the need for a baseline assessment with a health assessor and that if there were to be a diagnosis of health impairment, the practitioner would then be referred to an IRP. The panel explained the urgency for the health assessment, to help the practitioner progress through the appropriate pathway and enable him to get back to work as quickly as possible. The panel informed the practitioner that conditions would be imposed on his registration, including that he not work as a registered nurse until reviewed and that he was required to attend a neuropsychologist as directed.
3. The practitioner's statements to the panel were inconsistent. He said he was not refusing to attend an appointment, but he wanted the appointment to be voluntary. If we have understood his submissions correctly, the practitioner wanted the matter to be referred to an IRP because, to his thinking, he would have control of whether to be medically assessed. However, the sequence of events for referring a matter to an IRP requires a practitioner to be medically assessed before the IRP is convened.
4. As noted at lines 9 and 10 of the s 150 Transcript, he said that he was not refusing to attend a medical assessment: "I'm not refusing to attend an appointment. I'm not refusing to."
5. He also said that he was well aware of what the law said about the need to have a "reasonable excuse", as noted at lines 16 and 17 of the Transcript:

"Fortunately, I'm very familiar with the text of the law, and without a reasonable excuse, and what I've I tried to ..."

1. The practitioner asked why the matter had not been referred to a health panel and was advised that the Council had no information about his health, to which he replied "that's true".
2. After deliberating on the information before them, the panel explained the imposition of Condition 2 (at lines 32 to 40):

"... in the health pathway, the first thing we do is to get a health assessment. We need it for a baseline and to understand basically what we're dealing with. The psychiatrist or the health assessor will make a diagnosis. We can't make. We certainly don't make that, if there is a diagnosis of health impairment, which is as defined in the National Law, you then go into the health pathway. Then we refer you to an IRP, which is the Impaired Registrants Panel, which again includes two peers, two registered nurses in your case, and a health practitioner. They then work with you in terms of ongoing treatment and management. Okay?"

1. The practitioner responded "Okay", and said that he intended to make a written submission, although acknowledging that the Council had made a decision.
2. The panel further explained the importance of having the practitioner assessed to enable him to be referred through the health pathway and enable him to get back to work:

"... I really want to emphasize (sic) the sooner we can get you off to a health assessment, as soon as we have the outcome of that, the sooner we can help move you through whatever pathway that you find yourself on...But this is about enabling you to or helping you to get back to work as quickly as possible. This is not punitive."

1. The practitioner responded by saying (at line 23): "I appreciate that".
2. The importance of compliance with the conditions was stressed by the panel (at lines 34 to 39):

"... It's important that you comply with the conditions on your registration.

Non-compliance may result in a review by Council, and possible further restrictions or suspensions being posed (sic) on your registration. The Council view non-compliance as a serious matter, which has a significant risk to patient safety."

1. The practitioner then asked that the condition to attend a health assessment be made "voluntary". He was advised that that was not an option.
2. The panel again stressed the importance of the practitioner's engagement with the process, and that non-engagement was regarded as misconduct (at lines 25 to 27):

"... Non-engagement is deemed quite serious, and deemed ... misconduct."

1. The practitioner acknowledged his understanding (at line 26): "Of course".

1. The requirement for the Council to be "satisfied" under s 150(1) of the National Law of the appropriateness of Condition 2 requires an evaluation of the evidence that was available to the Council at the time of the s 150 proceeding. That evidence included information concerning the anonymous complaint, the matters disclosed by the practitioner in the performance interview, the demonstrated levels of performance of the practitioner in a number of sessions as recorded in the Performance Assessment Report, the assessors' recommendation that he be medically assessed, the practitioner's failure to attend for health assessment as directed by the Council and his explanation for that non-attendance, and the matters disclosed by the practitioner in the s 150 hearing.
2. After considering all the evidence, the panel made the following remarks that clearly demonstrate the level of risk it sought to ameliorate by imposing Condition 1 and Condition 2:

"CONCLUSION

Having regard to our assessment of the information and evidence relevant to the above issues we conclude that Mr Liszt does pose a risk to public health and safety which requires us to take action, because of the following risk factors:

The performance assessment on 5 February 2021 reported significant deficits in Mr Liszt's practice as a registered nurse

Mr Liszt's health requires assessment by Council-appointed health assessor/s to determine if there are any health concerns which may impact his practice as a registered nurse

Mr Liszt failed to attend the Council-directed health assessment with a neuropsychologist on 2 August 2021 without a reasonable excuse..."

1. We are satisfied that, on the evidence available to the panel, the decision to impose Conditions 1 and 2 was reasonable and appropriate in the interests of protecting the health and safety of the public, and in the interests of protecting the health and well-being of the practitioner.
2. We therefore conclude that the conditions were lawfully imposed.
3. The practitioner had been advised that he could seek a review of the conditions at any time and seek an appeal of the s 150 decision in the Tribunal. We note that he did not seek a review or an appeal.

1. We have considered, at each stage in the history of this case, whether the Council's decisions were biased against the practitioner because of the allegations made in the anonymous complaint, or because of descriptions of the complaint or references to the complaint or classification of the complaint in various documents.
2. There is no objective evidence that the Council's decisions were biased against the practitioner because of the allegations in the anonymous complaint. Indeed, the Council's description of the anonymous claims as "exaggerated and incorrect" contradicts the practitioner's argument and suggests a bias against the claims.
3. For the reasons given in our consideration of the evidence at each stage, we are satisfied that:

(1) the Council's decision to require the practitioner to have a medical assessment before Condition 2 was imposed, was reliant upon the assessors' objective assessment of his performance and their recommendation to have him medically assessed, and not upon any allegation in the anonymous complaint;

(2) the Council's decision to hold a s 150 hearing was reliant upon the assessors' assessment of his performance and recommendation, as well as the practitioner's refusal, without having a "reasonable excuse", to attend the medical assessment, and not upon any allegation in the anonymous complaint;

(3) the Council's decision to impose Condition 2 was reliant upon the documentary evidence before the delegates as well as the practitioner's oral testimony in the s 150 hearing, and not upon any allegation in the anonymous complaint.

1. The particulars pleaded with respect to Complaint One assert that the practitioner failed to attend the medical assessment with Dr Breen, and then failed to attend the medical assessment with Dr Reid, in breach of Condition 2 on his registration.
2. We have considered whether the practitioner had a reasonable excuse for failing to attend the assessment with Dr Breen. At the time, the practitioner asserted that he did not attend because he wished to seek legal advice. We subsequently learned that his solicitor was no longer representing him and, in any event, his oral evidence before the Tribunal was that his legal representative had advised him to attend the assessment. We find that the practitioner's purported explanation does not constitute a reasonable excuse and did not justify his failure to comply with Condition 2 on that occasion.
3. We also considered whether the practitioner had a reasonable excuse for failing to attend the assessment with Dr Reid. His explanation at the time was that he would only divulge his reason to an IRP. We subsequently learned, through his correspondence with the Council and in his written submissions, that his reasons for not attending were various. In these Reasons, we have set out our analysis of the practitioner's multiple contentions, and concluded that they do not provide justification for his refusal to comply with Condition 2 on either the first or the second occasion.
4. 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.
5. Absent any "reasonable excuse" argument that might serve to justify the practitioner's breaches of Condition 2, and having regard to the well-established principle that compliance with conditions is to be scrupulously observed, we find that the particulars of Complaint One are proven.
6. We therefore find the practitioner guilty of unsatisfactory professional conduct, pursuant to s 139B(1)(c) of the National Law.

1. Complaint Two (constituted by the particulars of Complaint One) asserts that the practitioner is guilty of professional misconduct pursuant to s 139E of the National Law in that the practitioner engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounts to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
2. The particulars relied upon in support of Complaint Two are the same particulars relied upon in support of Complaint One and are relied upon both individually and cumulatively.
3. When evaluating whether the practitioner's conduct reaches the threshold for professional misconduct, we consider the nature and seriousness of the conduct.
4. Repeated, wilful breaches of conditions are treated as a most serious finding against a practitioner, containing a grave criticism of the standard of the practitioner's conduct: Reid at [133].
5. As already concluded, on the evidence before us, we are satisfied that the practitioner knew and understood the basis on which the Council required the imposition of Condition 2. He knew and understood the consequences of breaching Condition 2. He had been personally served with the Council's letter dated 9 September 2021 advising him of the appointment scheduled with Dr Breen, on 27 September 2021. That letter enclosed a Fact Sheet titled "Attending a Health Assessment Health Pathway" issued by the Council in September 2017 which explained the consequences of failing to comply with conditions imposed on a practitioner's registration.
6. Under cross-examination before this Tribunal, the practitioner confirmed that he knew that his non-attendance would be regarded poorly, but insisted that he had a right to refuse to attend a medical assessment, and that the onus was on the Council to have facts to rest upon in order to have a reasonable belief (that he has or may have an impairment).
7. It is thus very clear that the practitioner consciously and intentionally chose to ignore or disregard Condition 2, knowing that his conduct in so doing was a contravention of s 139B(1)(c) and constitutes unsatisfactory professional conduct, and knowing that his conduct would be regarded as conduct of a serious nature, capable of constituting professional misconduct. He did so on more than one occasion. We see this repeated, wilful conduct as a grave criticism of his standard of conduct.
8. Noting Dr Samuels' oral opinion, that the practitioner's conduct was not the normal behaviour of a health practitioner, we find that his deliberate and repeated conduct fell well below the standard expected of a health practitioner.
9. We find that the conduct found to be proven in Complaint One is of a sufficiently serious nature (because it was wilful and deliberate, and occurred on more than one occasion) to justify the suspension or cancellation of the practitioner's registration. We therefore find that the practitioner's conduct meets the threshold of "professional misconduct" under s 139E of the National Law.
10. Complaint Two is therefore established.

(1) The respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(c) of the Health Practitioner Regulation National Law (NSW) in that he contravened a condition imposed upon his registration as a health practitioner.

(2) The respondent is guilty of professional misconduct within the meaning of s 139E of the Health Practitioner Regulation National Law (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.