Health Care Complaints Commission v Livermore

NCAT Occupational|2021-04-07

Introduction

By Application for Disciplinary Findings and Orders filed 16 September 2020, the Health Care Complaints Commission (the Commission) pursuant to s 149C of the Health Practitioner Regulation National Law (NSW) (the National Law) seeks the following orders: 1. an order under s 149C(1)(b) and/or (c) of the National Law cancelling Mrs Livermore's registration; and 2. an order under s 149C(7) of the National Law that an application for review of the cancellation order may not be made until 12 months from the date of the Tribunal's decision.
For the reasons that follow, the Tribunal has decided to cancel Mrs Livermore's registration, and to order that any application for review of the cancellation order not be made until six months from the date of the Tribunal's decision.

The Commission's evidence

The Commission filed a folder of material consisting of some 22 documents. These documents include but are not limited to: correspondence between the Commission and Mrs Livermore; a complaint of Patient C dated 3 December 2019; a statement of Patient C dated 17 April 2020; a NSW Police COPS printout dated 5 June 2019; and investigation documents of the Western NSW Local Health District (LHD). This folder was marked as Exhibit A in the proceedings.
Patient C was not required for cross-examination.

Mrs Livermore's evidence

Mrs Livermore also filed a folder of materials (which was marked as Exhibit 1 in the proceedings). Her documents included but were not limited to her CV; her statement dated 23 December 2020; a report of consultant psychiatrist Dr Anthony Samuels dated 4 November 2020; a statement of a work colleague Mrs Glenda Gavin dated 20 January 2021, and a statement of a work supervisor Ms Amanda Hunter dated 21 January 2021.
Each of Mrs Gavin, Dr Samuels and Mrs Livermore was required for cross-examination.

Complaint

The Complaint relates to Mrs Livermore's conduct in inappropriately accessing: 1. the electronic health records of 13 persons on 154 occasions over a period from March 2017 to December 2019 in circumstances when she knew that she:

did not have authorisation to do so and did not attempt to seek authorisation from her employer;
did not have any patient's prior written consent and knowledge;
did not have a proper therapeutic or clinical reason to do so;
was not and had not been involved in the health care of the patients at the Orange Base Hospital; 1. her own electronic health records in circumstances where she knew she did not have authorisation and did not attempt to seek authorisation from her employer.

Mrs Livermore admits this conduct and that these actions amount to unsatisfactory professional conduct. She does not admit that the conduct amounts to professional misconduct, but left this up to the Tribunal to determine.
As will become apparent, we consider that this conduct does amount to professional misconduct for the purposes of the National Law.
We note, and this is an important matter, that none of the 13 persons described as a "Patient" in the Agreed Statement of Facts (that is Patients A to M) was a patient of Mrs Livermore. Rather:

Patient A was a friend of Mrs Livermore;
Patient B was the wife of a colleague, but Mrs Livermore did not actually know Patient B;
Patients C and D were work colleagues of Mrs Livermore;
Patients E, F, G, H, I, J and K are family relatives of Mrs Livermore;
Patients L and M had no connection to Mrs Livermore.

We note the following matters stated in Mrs Livermore's Reply.
First, Mrs Livermore explains her relationship with each of Patients A to L and the reason why she accessed their medical records. We summarise those comments as follows: 1. Patient A is a close friend of Mrs Livermore and lives on her own. Mrs Livermore became worried about Patient A when she learned that she was unwell. Mrs Livermore visited her frequently with meals; 2. Patient B is the wife of a work colleague of Mrs Livermore. Mrs Livermore was excited when she learned that Patient B had given birth to a child. (However, we note that in cross-examination Mrs Livermore stated that she did not know Patient B personally); 3. Patient C had been a work colleague of Mrs Livermore since February 2016. During that time they worked together frequently. The reason that Mrs Livermore obtained access to and viewed Patient C's records was "borne out of her concern for [his] health and welfare"; 4. Patient D was a late colleague of Mrs Livermore. She found him good to work with. He was an easy-go-lucky colleague whom Mrs Livermore felt comfortable working with. When his health deteriorated, Mrs Livermore was very affected by it; 5. Patient E is one of Mrs Livermore's family members who welcomed her when she migrated to Australia. She was extremely concerned for his welfare when she learned that he was sick; 6. Patient F is one of Mrs Livermore's family members who was very kind to her and accepted her as part of the outer circle of the family. Mrs Livermore was worried when he got sick; 7. Patient G is one of Mrs Livermore's family members whom she has not seen for a long time; 8. Patient H is Mrs Livermore's close family relative; 9. Patient I is a distant relative of Mrs Livermore. She had been nice to Mrs Livermore and Mrs Livermore wanted to check if she was okay; 10. Patient J is one of Mrs Livermore's family members and Mrs Livermore was worried about her condition when she got sick; 11. Patient K is a close family relative of Mrs Livermore's. She has not seen him for a long time due to family issues. He had been very nice to her and she was worried when he got sick, especially given she could not visit him at any time; 12. Patient L is not related to Mrs Livermore. Mrs Livermore thought she knew her personally but she did not.
It is convenient to note at this point that Mrs Livermore was cross-examined about her motive in accessing the medical records of these people. She agreed that while she was on speaking terms with all of them (with the exception of Patient C), she never once obtained their consent to her accessing their records, but agreed she could have. She said that she could not have told them afterwards, although she could not tell us why. It was put to her that she did not want to tell them because she wanted to conceal her conduct. She said she was not sure. She said her intention in accessing the medical records was just to check on them about their welfare and nothing else. She was questioned about her evidence that she did so out of compassion and care, but when asked, agreed that she could have shown such compassion and care without searching private medical records.
In relation to Patient A, Mrs Livermore accessed her records on 39 occasions. She agreed she could have asked Patient A for access when she visited with meals. She denied she accessed Patient A's records out of curiosity, rather she wanted to know the treatment she was getting. Counsel for the Commission put to her that she could have simply just asked Patient A what treatment she was getting. Mrs Livermore's response was Patient A did not understand the terminology that her doctors and nurses used. Counsel for the Commission asked Mrs Livermore whether she looked up Patient A's medical records so she could help Patient A, but Mrs Livermore said that she "just wanted to know the condition really".
In relation to Patient B, Mrs Livermore said that she knew Patient B's husband already had four sons and that he and his wife (whom she did not know) wanted to have a daughter. She said that "probably out of curiosity" she wanted to know the gender of the baby. When asked whether she could have just asked Patient B's husband (who was a work colleague), her response was that that he was not at work and that she chose to access the records in order to find out the information.
In relation to Patient C, Mrs Livermore agreed she had no specific reason for accessing his records, it was out of "general concern"; he was a transport driver and had health issues and she wanted to check his records to see why he had taken days off.
As for Patient D, whose records Mrs Livermore accessed on 31 occasions, she was concerned about his health as he was a smoker, which she thought could jeopardise the safety of patients. However, she agreed that it was "probably not" a reason to access his medical records. She agreed that perhaps curiosity was the main reason she accessed his records.
As for Patient K, Mrs Livermore accessed his records on 55 occasions. Mrs Livermore said that this relative had been estranged from her husband since 2014. She said accessing his medical records was the only way she could see how he was doing. Part of her wanted to see him but she did not want to compromise her relationship with her husband. She did not agree that this access was motivated by curiosity and did not accept that there could have been information in the records that the relative might not want her to see. She said that Patient K was a good man.
The Tribunal found each of these explanations to be unconvincing and unacceptable as Mrs Livermore:

did not need the information to show and provide care, assuming the positive relationships she said existed in these cases;
could have asked the individuals directly as part of her expression of regard and concern for them and accepted the extent of their disclosure;
provided no evidence that she acted on the information to improve care or better inform the patients of their options, pointing strongly either to mere curiosity or to her awareness that what she had done was not permitted.

Secondly, Mrs Livermore states in her Reply that she accessed her own medical records "as she want[ed] to check in which year she had previous surgery". This was not explored in cross-examination, but on its face that appears to be an unconvincing explanation.
Thirdly, Mrs Livermore admits that she viewed the records of Patients A to M but says she "did nothing else". She did not produce, copy, alter or otherwise deal with the records. She did not disclose to any person the contents of the records. She did not discuss the contents of the records with any person. That last statement is at odds with comments of Patient C in his statement. However, given this was not a particular of the Complaint it is not necessary to make any findings on this issue. That said, we note that it was an agreed fact that Mrs Livermore discussed information she had gleaned from clinical records, including the condition of Patient M and Patient C, with another colleague (see [35] below).
Fourthly, Mrs Livermore says that she unreservedly accepts that she conducted herself in an improper manner not in keeping with the high standards expected of health professionals in NSW. She says that such has been the impact upon her of the investigation and disciplinary process conducted by the LHD that she will never again look at or otherwise inspect or obtain access to records of patients whom she is not treating. She wants the Tribunal to know that she has learned a salutary lesson. She has had time to reflect on her conduct and it will not occur again.
Fifthly, she says that she has read the statement of Patient C and acknowledges the hurt and distress caused to him by her actions. She acknowledges that his feelings are genuine and real and she expresses extreme regret and extends an unreserved apology to him.

Evidence of Patient C

On 3 December 2019, Patient C made a complaint to the Commission about Mrs Livermore's conduct. He stated that: "It came to my attention that a nurse I worked with had quite a lot of information about co workers and patients who she never cared for, so it raised my suspicions as to why and how. I proceeded to enquire with a senior manager to voice my concerns about my own personal information, thus I spoke to a nurse supervisor [AA] out of curiosity if she would look into my medical records, [AA] did this request for me and together we had found that nelvi Livermore Een nurse had actually gone into my personal medical records while I was healing at home from my heart operation procedure. [AA] then contacted acting Matron of orange base hospital [BB] who then instructed [AA] to contact my manager [CC] at Dubbo base. Between calls to HSU and [CC] I have been extremely stressed about this situation, especially since I am due to return to work and they have contracted Mrs Livermore and myself to work side by side, I am not impressed or happy about this as I am still stressed about the breach of my privacy, however upon speaking to my manager [CC], her words were thats what we do when workers have conflict between them, we join them up to work out their issues. I told her it is not a conflict, however pairs up [sic] and it could be and I do not want to cross that line because of how stressed I feel about the situation, I have asked her can you pair me with someone else, unfortunately the roster is already out. I can not and will not work besides a person who has breached my trust and breach of confidentiality which I always thought was an illegal act since we sign that piece of paper upon joining our workplace."
In his statement of 12 March 2020 (signed 17 April 2020), Patient C relevantly states: "7. I started to have concerns about Nelvi not long after she started with us. She seemed to know a lot about the patients we were transporting. There were instances where she would talk to me about a patient we had transported some two to three weeks ago and she would know so much about them, such as whether they had died, needed further treatment or they were back in hospital. I did think this was really strange and wondered how she knew so much about the patients we had transported. 8. Another strange incident happened with Nelvi. About two years ago there was an accident that occurred at my house at … Orange. Some bloke drove through my back fence and the police later told me that he had a medical episode. I knew there was a man and the woman in the car at the time of the accident but was provided no further information. 9. Not long after the accident, I was at work one day and one of my colleagues asked me about the accident. He asked me what happened to the fellow who went through my fence. Nelvi was also in the room. She told my colleague particular detail about what happened to the driver of the car. My colleague said, "How the bloody hell do you know that?" Nelvi replied, "I know everything". I thought this was odd that Nelvi knew about the driver's condition as we had nothing to do with the accident or treatment of the driver. 10. I recall another time when there was a baby that was sick in Mudgee and was in a bad way. Nelvi and I had to take the baby to Orange. I recall being told by a colleague that Nelvi mentioned something on Facebook about the sick baby…"
Patient C then continues: "16. There came a time when I was concerned that as Nelvi had so much information about patients, that maybe she had accessed my records and would know about my medical history. I was so concerned that I raised it with [AA], the nursing supervisor at Orange. I asked [AA] to go through my records and see if she could see if Nelvi had accessed my records. 17. [AA] looked at my records and confirmed that Nelvi had accessed my records. I recall being so angry when I found out. There was absolutely no need whatsoever for Nelvi to have accessed my records. At no point had Nelvi been involved in my care. [AA] told me that she was going to inform my boss [CC] and the acting Director of Nursing, [BB]. 18. The following day I received a phone call from [CC] and I let her have it. I told her l don't want Nelvi near me and I don't want to work with her. I said to [CC] that as staff we constantly have it drummed into us how important confidentiality is. [CC] assured me that she will look into it and that the matter would be taken seriously. 19. This conversation took place three days before I needed to have an operation. I had the procedure done and the first shift that I was rostered back to work, I found out that l was rostered to work with Nelvi for that shift and the following three shifts. I couldn't deal with it. I handed the keys in for the vehicle and I walked out and didn't go back. 20. Nelvi having access to my medical information made me feel bloody violated. I was bloody humiliated as there is a lot of stuff in there l didn't want people to know about me. I felt physically sick and I was so angry. It made me start thinking more and more and shit started going through my head. It wasn't a good time of the year as it was the anniversary of the loss of my son and daughter. 21. My medical records contain information about a breakdown I had in 2009 when l spent two to three weeks in Lismore Hospital. The breakdown was due to a number of issues such as the passing of my daughter… in 1980 and my son… in 1983…"
At this point Patient C records distressing details about the death of his son which are unnecessary to record in these reasons. He concludes, understandably, with the following comments: "22. This is all information that I consider to be very private and it is something that l don't share with many people. The fact that a work colleague is aware of my personal life and issues causes me great distress. The fact that I have heard Nelvi talk so openly about patients' lives makes me deeply concerned that she will talk openly about my private issues. 23. As a result of this happening, I have been seeing a psychologist called… This thing with Nelvi has really set me back. I have had some really challenging times over the years and this job has kept me on the straight and narrow for over ten years. The fact that Nelvi is still working as a nurse at the hospital makes it very difficult for me to return to work. I am constantly anxious not knowing what Nelvi actually knows about my life as recorded in the medical notes and the possibility that she has or will share the information with others. I feel vulnerable and exposed."
Patient C's evidence, to which there was no challenge and which we therefore accept, starkly illustrates the potential consequences of not abiding by professional ethical obligations and standards regarding access to and confidentiality of patient records.

Mrs Livermore's evidence

Mrs Livermore provided a lengthy statement to the Tribunal in which she admits all the allegations made against her, in that she obtained access to and viewed the medical records of 13 individuals she was not caring for while working in the Orange Base Hospital Patient Transport Unit.
Mrs Livermore has read Patient C's statement and states that she: "acknowledge[s] the hurt and distress caused to him by my actions. I know I have caused him harm. I am ashamed of my actions. Reading his Statement makes me feel ashamed and embarrassed that I have acted poorly. I sincerely regret my conduct and if I had my time over I would not have behaved the way that I did."
In relation to her interview with Dr Samuels, she says "three things stood out" when she read his report that opened her mind to consider her conduct. She says that these "things" were not apparent to her when she was being interviewed but only afterwards, when she had the opportunity to sit down and reflect on her conduct.
The first matter was her comments about Patient C. She says that she did not mean to suggest that her difficulties with Patient C were an excuse for her conduct. She now knows, with the benefit of hindsight, that she should not have accessed his records or anybody else's records. She acknowledges that irrespective of any problem between her and Patient C, he did not deserve to have his privacy breached.
The second matter was that she did not fully comprehend the socio-cultural impact of her Filipino upbringing. She says that in the Philippines, family is incredibly important and "[w]e engage, not only with our immediate family, but our extended families and our communities. It is a culture where everyone knows everyone, their whereabouts, and what is happening with others. There are very few secrets." Mrs Livermore says that, on reflection, she now realises that privacy and confidentiality "is just not something that is important, or even considered in the Philippines" and "we [do] not think about observing privacy in relation to ourselves or others."
The third matter was that she accepted that ethics training was a good idea and would be beneficial to her. We note that by the time of the hearing, Mrs Livermore had completed My Health Learning courses in privacy and professional ethics, and that she is enrolled in an online ethics course at the University of Tasmania. Mrs Livermore indicated that she would be prepared to undertake any other course, and to be mentored.

Agreed facts

Mrs Livermore has admitted the underlying conduct the subject of the Complaint. The parties have reached an agreement on the relevant facts and consistent with document MFI 1 we make the following relevant findings which are based on those agreed facts: 1. In 2007 Mrs Livermore migrated to Australia from the Philippines and moved to Orange; 2. From 2011-2016, Mrs Livermore commenced part time work with the LHD in a non-health related role. In commencing work with the LHD she agreed to abide by the NSW Health Code of Conduct; 3. From 2014-2015, Mrs Livermore worked as a casual assistant in nursing with the LHD; 4. On 6 August 2014 Mrs Livermore had training through the LHD on the NSW Health Code of Conduct; 5. In 2015 Mrs Livermore completed a diploma of enrolled nursing. Patient confidentiality had been a topic of learning during her course; 6. On 5 February 2016 Mrs Livermore was first registered as an enrolled nurse (Division 2); 7. In 2016 Mrs Livermore worked as a casual enrolled nurse with the LHD; 8. In March 2016 Mrs Livermore had further training on the NSW Health Code of Conduct while working as a casual nurse with the LHD; 9. From about February 2017, Mrs Livermore commenced working with the LHD as an enrolled nurse in the non-emergency patient transport team. Her role involved access to the patient record on the day of a patient transfer but not on prior or subsequent days; 10. On 6 February 2017 Mrs Livermore again agreed, amongst other things, to abide by the policies and procedures of the LHD and that she had received the NSW Health Code of Conduct; 11. Mrs Livermore ceased working with the patient transport unit after 30 November 2020 and is currently employed in the Risk Management Unit of the LHD in a position in which she is able to access medical records; 12. The NSW Health Code of Conduct at all relevant times stated: 4.2.3 Ensure that their actions and decisions are not influenced by self-interest or considerations of personal gain or other improper motives … 4.3.9 Comply with all applicable NSW Health policies and procedures, and those of the NSW Health agency where they work … 4.3.11 Observe all laws, professional codes of conduct and ethics relating to their profession … 4.5.2 Not use or release official information or records without proper authority 4.5.3 Maintain the security of confidential and / or sensitive information, including that stored on communication devices 4.5.4 Not disclose, use or take advantage of information obtained in the course of official duties, including when they cease to work in NSW Health. 1. The NSW Health Privacy Manual for Health Information (March 2015) at all relevant times stated: It should be noted that NSW Health staff may only view, access, use and disclose personal health information when it is necessary for them to do so in order to carry out their work duties. If a staff member is in doubt as to whether they are permitted to access, use or disclose personal health information, they should seek advice from a senior manager, local Health Information Service or local Privacy Contact Officer. … Written consent should also be obtained where the information is proposed to be used or disclosed for a purpose unrelated to the reason for its collection… 1. The Nursing and Midwifery Board of Australia's Code of Conduct for nurses at all relevant times stated: 3.5 Confidentiality and privacy Nurses have ethical and legal obligations to protect the privacy of people. People have a right to expect that nurses will hold information about them in confidence, unless the release of information is needed by law, legally justifiable under public interest considerations or is required to facilitate emergency care. To protect privacy and confidentiality, nurses must: … d. access records only when professionally involved in the care of the person and authorised to do so 1. At the time of the conduct in the Complaint the electronic Medical Record at the hospital had a warning on authorised use of the record; 2. While working as an enrolled nurse at the LHD Mrs Livermore accessed the medical records of the following individuals named in the Complaint before the Tribunal: Name of patient Period of access Times accessed Relationship
Patient A 21/06/18-29/03/2019 39 Friend
Patient B 09/04/18-10/05/18 4 Wife of work colleague
Patient C 02/07/17-04/02/19 6 Work colleague
Patient D 02/07/17-24/01/19 31 Work colleague
Patient E 09/07/18-12/07/18 4 [family relative]
Patient F 14/02/19, 18/05/19, 14/06/19 3 [family relative]
Patient G 10/04/19 1 [family relative]
Patient H 18/12/19 1 [family relative]
Patient I 08/03/19 1 [family relative]
Patient J 20/03/17-22/05/19 6 [family relative]
Patient K 29/03/17-10/04/19 55 [family relative]
Patient L 04/07/19 1 No connection
Patient M 09/06/19 2 No connection 154

On each of the occasions above, before accessing the records, Mrs Livermore knew that she:

did not have permission or authorisation from the LHD to access and view the records;
had not obtained the patient's prior consent nor were the patients aware that she would be accessing and viewing their records;
had no clinical or therapeutic reason as part of her role at the LHD to access and view the records; and
had not been involved in the health care or treatment of the patients whose records she was going to access and view; 1. On 7 and 16 December 2017, Mrs Livermore accessed the clinical record kept by the LHD of her own care and treatment, knowing she did not have authorisation from the LHD to do so; 2. In 2018 Mrs Livermore was working with Patient C. Having accessed Patient C's clinical records beforehand, Mrs Livermore asked Patient C about a recent accident someone had had at Patient C's home. Mrs Livermore also accessed the clinical records of the driver involved in the accident, Patient M. Mrs Livermore subsequently discussed information she obtained from the clinical record, including the condition of Patient M and Patient C, with another colleague;

Mrs Livermore's current position 1. In Mrs Livermore's statement to the Tribunal dated 23 December 2020 she has stated she is willing to deliver a personal and unqualified apology to the patients in the Complaint, including Patient C; 2. Mrs Livermore undertakes never to look at or otherwise inspect or obtain access to records of patients whom Mrs Livermore is not treating or for which there is no valid clinical reason for inspection or access; 3. Mrs Livermore completed a My Health Learning course code COM938 in Privacy - Handling Personal Information and Personal Health Information on 8 January 2020; 4. Mrs Livermore completed a My Health Learning course code 97688463 in Professional Ethics on 28 January 2021; 5. Mrs Livermore has enrolled in a course at the University of Tasmania in Ethics, Social Responsibility and the Law which commenced on 22 February 2021.

Relevant law

It is appropriate to set out the relevant provisions of the National Law. These are as follows.
Section 3, which provides: 3 Objectives and guiding principles (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 (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. (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (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.
Section 3A of the National Law, which is an additional provision for NSW, provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note - This section is an additional New South Wales provision.
A "NSW provision" is defined in s 5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note - This definition is an additional New South Wales provision.
Section 139B of the National Law, which is an additional provision for NSW, relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E of the National Law, which is an additional provision for NSW, provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

Complaint One

The first complaint is that Mrs Livermore is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
As noted, Mrs Livermore has admitted the conduct and that this amounts to unsatisfactory professional conduct. Independently of Mrs Livermore's admission, we find this complaint proved. We consider that it is self-evident that a practitioner who breaches an ethical obligation on 154 occasions commits improper or unethical conduct relating to the practice or purported practice of nursing, which constitutes unsatisfactory professional conduct.

Complaint Two

The second complaint is that Mrs Livermore is guilty of professional misconduct under s 139E of the National Law in that she: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or 2. 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 suspension or cancellation of the practitioner's registration.
While the conduct is admitted, the complaint of professional misconduct is not. However, no submissions were made to the contrary and Mrs Livermore told us in evidence and her counsel confirmed that she would leave this in the hands of the Tribunal to determine.
We are of the view that a practitioner who breaches an ethical obligation on 154 occasions involving multiple patients engages in more than one instance of unsatisfactory professional conduct such that, when the instances are considered together, the conduct amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
In this respect, we accept the Commission's submissions that: 1. the admitted conduct took place - repeatedly - over a period of two years and five months; 2. the conduct occurred soon after Mrs Livermore was employed at Orange Base Hospital in her capacity as an enrolled nurse, when Mrs Livermore had the ability to access the medical records. Here we note that the first access event appears to have been within one month of Mrs Livermore commencing full-time employment as an enrolled nurse; 3. the time frame and extent of access demonstrates an entrenched pattern of behaviour (not an aberration of character); 4. it was an entrenched pattern of behaviour motivated by personal curiosity; 5. by intentionally accessing confidential medical records Mrs Livermore deliberately breached codes of conduct, policy directives and standards of practice; 6. the conduct undermines the foundations of the patient-health professional relationship which undermines, ultimately, the ability to properly treat a patient; and 7. the consequences are potentially damaging not just to the reputation of the profession but to a patient (evidenced by what Patient C endured).
We pause here to consider Mrs Livermore's explanation of her conduct. This is one of the curiosities of this matter, as even at the hearing Mrs Livermore was not able, at least in any satisfactory way, to explain why she accessed the records in question. Save for one instance we have described above, Mrs Livermore told us that it was not done out of curiosity. When asked by the Commission's counsel, in relation to Patient A, whether it was to assist her to understand Patient A's medical condition and treatment, she answered no. Even when asked directly by her own counsel "why did you access those records?" her response was "it had a big impact on my life, I failed myself, and I failed my family and loved ones"; in other words, Mrs Livermore did not answer the question.
Nor did Dr Samuels have any real explanation for the conduct. In his report, he stated that he could find no evidence that any of her behaviour was related to an underlying psychiatric condition or a frank personality disorder. He said it was likely that "socio-cultural factors" had contributed in some ways to a "different understanding of privacy, confidentiality and information sharing particularly in a medical context where friends and family are involved." He also said that "it was likely that in the cultural background Mrs Livermore grew up in [a reference to Mrs Livermore's Filipino heritage], issues of privacy, confidentiality and boundaries between family members were less rigid than they are in the Australian context."
Dr Samuels said that it seemed that Mrs Livermore's primary motivation was care and compassion for the people concerned and that once she learnt what was happening to them from a medical perspective she did visit them in hospital to provide them with food and, in some instances, support.
At the hearing, Dr Samuels said that he did not get very clear answers to why Mrs Livermore was doing these things and that "she did it because she could, and didn't think about it too deeply". Dr Samuels said that Mrs Livermore seemed to think that it was okay when there was a "peripheral relationship" and that it became a habitual way of behaving. He said that she acted out of naïveté and ignorance and that her conduct was not borne out of a personality disorder.
Dr Samuels said that curiosity was a major factor. He told the Tribunal in his oral evidence that he was not sure Mrs Livermore understood the seriousness of her behaviour, and that issues of care and concern for family and friends overrode ethical considerations. But he noted that was "not really" a psychiatric opinion.
Dr Samuels also told the Tribunal that Mrs Livermore's motivation "was not very sophisticated. I think it comes down to a lack of understanding of professional responsibility, ease of access and curiosity, but not driven by antisocial or malevolent motivation."

What is the appropriate protective order for the Tribunal to impose?

The Commission's submissions

The Commission seeks cancellation of Mrs Livermore's registration based on the repeated nature of the breaches, the number of patients whose privacy has been compromised, and Mrs Livermore's deliberate departure from key policy directives and known codes of conduct and standards of practice.
The Commission submits that an order of cancellation of registration and a non-review period will indicate to other health practitioners that these key codes of confidentiality and privacy principles must be upheld. The Commission also submits that cancellation and a non-review period have the consequence that Mrs Livermore must come before the Tribunal and provide material/evidence to give the Tribunal confidence that this conduct will not occur again and that Mrs Livermore has reformed and demonstrates insight into her behaviour. It is a protective measure in as much as it is a deterrent message.

Mrs Livermore's submissions

Mrs Livermore says that she has reflected deeply on the conduct that has led to these complaints and, in numerous forums, has expressed genuine regret and remorse. She submits that the material filed on her behalf demonstrates: 1. that her conduct was not motivated by greed or malice; 2. the absence of any previous complaint; 3. her good character, work ethic and standard of care; 4. her compliance with supervision conditions imposed as a result of the investigation into this complaint at the end of 2019; 5. her insight into the complaint; and 6. her willingness to comply with any conditions imposed on her going forward, including as to an appropriate ethics course.
Mrs Livermore then submits that: 1. there was no deliberate departure from acceptable standards; 2. although her conducted continued over several years, this is because she failed to appreciate the gravity of what she was doing in accessing the medical records; 3. she was motivated by genuine care and concern for the patients; 4. socio-cultural factors contributed to a different understanding of privacy, confidentiality and information sharing particularly in a medical context where friends and family members were involved; 5. she now has genuine insight and remorse; 6. she is a person of very good character; 7. she has complied with supervision requirements; 8. there is no risk of her reoffending; and 9. she is willing to comply with any conditions which may be imposed on her.
Finally, Mrs Livermore submits that any protective order may involve the imposition of conditions, but not suspension or cancellation. She also submits that any sanction indicating "deterrence" should not overwhelm the other features of the case, such as her remorse, insight, the absence of risk to the public and her willingness to comply with any conditions that the Tribunal might impose.

Consideration

We accept that Mrs Livermore has taken some steps to address her behaviour by undertaking two relevant courses. We further accept that she is willing to undertake such further courses or training as we may require and is prepared to be mentored or supervised.
However, we find the matters relied on by Mrs Livermore in submitting that her registration should not be cancelled or suspended to be unpersuasive.
We accept that Mrs Livermore is sorry for what she has done, but we are not persuaded that even at the time of the hearing she really understood why what she did was wrong. We have formed that view because of the unsatisfactory explanations she gave for accessing the records in the first place. She said on a number of occasions that "with the benefit of hindsight" she now knows it to be wrong. This is notwithstanding that the NSW Health Code of Conduct defines the standards of ethical and professional conduct that are required of everyone working in NSW Health in any capacity, the outcomes NSW Health is committed to and the behaviours which are unacceptable and not will not be tolerated. These include: 4.5 Maintain the security of confidential information and / or sensitive official information Staff must: 4.5.1 Keep confidential all personal information and records, including not discussing or providing information on social media they could identify patients or divulge patient information 4.5.2 Not use or release official information or records without proper authority 4.5.3 Maintain the security of confidential and / or sensitive information, including that stored on communication devices 4.5.4 Not disclose, use or take advantage of information obtained in the course of official duties, including when they cease to work in NSW Health.
These standards reflect the public interest in keeping patient information confidential. In Health Care Complaints Commission v Aref [2018] NSWCATOD 133 the Tribunal stated: "[53] The safekeeping and proper use of health information is vital to the protection of the health and safety of the public. As the peer expert noted, 'Client confidentiality and privacy underpins all health care across Australia.' Patients must be able to trust that the private health information that they provide to health professionals, and which is generated in the course of provision of health care, will be securely held and only accessed lawfully and properly. [54] The duty of health care professionals is to use, and safeguard health information and to only access this information in the best interests of patients to serve their health needs, except in the very limited circumstances where there is an overriding consideration such as the health and safety of the public. Patients, and the health system as a whole, depend upon this professionalism."
We are not persuaded that the "care and compassion" explanation of Mrs Livermore adequately explains her conduct in light of her professional ethical obligations under the NSW Health Code of Conduct which are summarised as above. In any event, some of the patients were not family or friends. As for the patients who were friends or family, we tend to the view that the accessing of records of people Mrs Livermore knew or was related to amplifies the seriousness of her conduct.
Mrs Livermore agreed in cross-examination that she never told any of these persons what she had done, despite having the opportunity to do so. It is possible that they may have had a similar reaction to Patient C on learning that their confidential medical records had been accessed by Mrs Livermore.
We found Mrs Livermore's explanation regarding accessing Patient C's records to be quite unsatisfactory.
Nor do we accept that "socio-cultural" factors are a satisfactory explanation of Mrs Livermore's conduct. First of all, we give the opinion evidence of Dr Samuels little weight on this issue. As Dr Samuels said, that was not a psychiatric opinion, and he is not an expert on the culture of the Philippines. And we decline Mrs Livermore's counsel's invitation to take judicial notice of these matters. But, even if we had, a person's cultural background or heritage is not a reason for failing to comply with the professional and ethical standards of the practice of nursing in Australia.
We accept the Commission's submissions that: 1. the public interest served by protective orders includes, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; 2. protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]; 3. although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83].
The test for cancellation of a practitioner's registration under the National Law was stated by the Tribunal in Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 at [278]-[281] as follows: "[278] In making a finding of professional misconduct the Tribunal must determine whether 'when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration': HCCC v Perroux [2011] NSWDC 99 at [18]. [279] The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. [280] Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. [281] Past cases referred to the determination of whether the practitioner is 'permanently unfit to practice' in making an order for de-registration: Stanoevski v Law Society of New South Wales [2008] NSWCA 93 at [52]-[54]. More recent consideration of these cases clarify that an undue focus on the word 'permanent' is a gloss. It is demonstrated current unfitness, not a prophesy of permanent unfitness, that is required to justify deregistration: Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [102]; Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31."
There are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction (Health Care Complaints Commission v Do [2014] NSWCA 307), the unacceptability of certain kinds of conduct and the maintenance of confidence in the high standards of the profession: NSW Bar Association v Meakes [2006] NSWCA 340.
Whether the seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling Mrs Livermore's registration. We have considered whether there is an alternative to cancellation of registration, such as suspension. In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA stated at [21] and [22]: "[21]… [I]n determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make..."
The Tribunal considers that, objectively, the professional misconduct of Mrs Livermore is of such a serious nature that the only disciplinary order appropriate is the cancellation of her registration. Any order short of deregistration, such as the alternative orders suggested by Mrs Livermore, would be an inadequate response to the seriousness of her misconduct: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408.
The Tribunal considers that Mrs Livermore's registration should be cancelled, and that she should not be permitted to apply for re-registration for a period of six months from the date of these reasons.

Costs

The Commission sought an order for costs, which order was not opposed by Mrs Livermore. There was some discussion at the conclusion of the hearing that a special costs order might be sought by the Commission, namely a gross lump sum costs order.
We propose to make an order that Mrs Livermore pay the Commission's costs as agreed or assessed. If either party seeks some other order, it should do so within seven days of these reasons, such submissions being limited to three pages in length. The other party may respond within a further seven days.
If it becomes necessary to consider whether or not to make some other costs order, the Tribunal proposes to do so "on the papers". If either party opposes that course, they should address that matter in their submissions.
However, we are confident that the common sense of the parties will lead to an agreed conclusion without any further intervention of the Tribunal.

Orders

The Tribunal orders that: 1. The registration of Mrs Nelvi Peregrino Livermore is cancelled. 2. Mrs Livermore may not make an application for review of Order 1 for a period of six months from the date of these orders.

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

Amendments 27 April 2021 - 27 April 2021 - Information that may tend to identify patients redacted at [12], [18] and [35] 27 April 2021 - Amendments made in paragraphs 10 and 12 to better protect the anonymity of the persons referred to as patients of Mrs Livermore consistent with s64 (1) of the Civil and Administrative Tribunal act 2013 (NSW) 27 April 2021 - Paragraph 12 27 April 2021 - Minor typographical error corrected at [12]; information that may tend to identify patients redacted at [18] and [35] 30 April 2021 - Amendments made to remove personal identifiers DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2021

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (1)

Cases Cited (16)

Cited By (11)