Health Care Complaints Commission v Lopez

The Tribunal's findings as to complaints one and two 49The particulars in both complaints are clearly established by the evidence set out above. Condition 11 required the relevant tribunal's Reasons for Decision dated 30 September 2008 in relation to Ms Lopez to be provided to UTS on 26 November 2009. Ms Lopez provided them of her own volition on 30 May 2011 - 18 months late. Thus proving particular 1 beyond question. 50The continuing breach of condition 11 is manifest from the evidence set out above showing the requests of the Council for Ms Lopez to obtain proof of notification of the Reasons for Decision to UTS and its efforts to assist her to comply. These efforts and the requests for proof of compliance were met by prevarication, delay and a continuously stated but irrelevant excuse for not complying. Particular 2 was clearly proved. 51As a contravention of a condition of registration is, of itself, unsatisfactory professional conduct, because of the terms of s 139B(1)(c) of the Law, complaint one in this matter is proved. The next question is whether this conduct is professional misconduct. The definition of professional misconduct relevant to the circumstances of this case is found in s 139E(a) of the Law. It is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 52The Tribunal considered that Ms Lopez's conduct, as alleged in this case, amounted to professional misconduct for at least two related reasons. The first reason has been well established within the health tribunals and adopted by the NSW Court of Appeal. It is summed up in the following brief passage: Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. 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.1 53In this case, the conditions, particularly those related to improving her competence in relation to medications and thus protecting the public from a recurrence of the matter that gave rise to her suspension followed by conditioned registration, were imposed for very good reason and needed to be scrupulously observed. The Nurses and Midwives Tribunal reasons for decision show in detail why Ms Lopez needed to redo her medications training before it would be safe for her to practise again as an EEN and administer medications to patients in hospitals and elsewhere. 54The second reason is that Ms Lopez chose to ignore the path back to full and unconditioned registration laid out for her by the relevant tribunal in 2008. It was clear that the tribunal, on the basis of the substantial material before it that the first step for Ms Lopez was to do, in its entirety, an accredited post enrolment medication course - a course designed to build on a person's experience as a nurse and to prepare them thoroughly for their endorsement as an enrolled nurse appropriately trained to administer medications in a hospital or other location where the exercise of knowledge, skill and judgment in the different ways of administering different kinds of medication was required and the "5 rights" of administration of medication stringently applied. If Ms Lopez had completed that course she could have regained her endorsement and would have been very well placed to go on to do further study and gain her bachelor's degree in nursing. Instead Ms Lopez chose a dishonest approach and mislead UTS into offering a place in one of their nursing degree courses and giving her advance standing that her previous actions indicated it would be unwise to give her. 55Her conduct was much more serious than the failure to give a document to the university and get someone there to sign that they had received it and to pass that information back to the relevant body in the administrative/regulatory sections of the nursing profession. It was conduct that allowed her to progress in her professional development in a way that avoided her improving her professional knowledge and skill in an area in which she was found to seriously and dangerously wanting. It was dishonest conduct which the Tribunal considered of a sufficiently serious nature to justify cancellation of her registration and so professional misconduct. 56There was another dimension to her conduct which also confirmed that it was professional misconduct. This arose from her delay first in providing the required Reasons for Decision to UTS and second from her prevarications in relation to herself informing the Council that she had provided that document and in obtaining, for the purposes of providing it to the Council, confirmation by the relevant Dean that the document had been provided to UTS. These requirements by the Council were appropriate for it to make to ensure that Ms Lopez, and other nurses or midwives, complied with conditions on their registration. 57As submitted to the Tribunal by Ms Tronson, taken all together, Ms Lopez's conduct amounts to a persistent course of obfuscation and disregard for the requirements of the nursing profession - if not outright deception. The Tribunal does not accept that Ms Lopez "overlooked", "forgot" or "misread" the requirement that she provide the relevant Reasons for Decision document when applying to a university to be admitted to a Bachelor of Nursing degree course. Instead she waited until she had obtained, either through being given credit for certain subjects or passing them as part of her academic study, more than 80% of the credit points required to complete the course before she took that action. 58Ms Lopez's failure to comply with the reporting and confirmation requirements imposed on her by the Council, her prevarication and disregard for the constant reminders from the Council to comply showed a persistent disregard for her obligations as a member of the nursing profession to meet the requirements imposed on her by those charged with different roles in regulating the profession. While this conduct did not directly threaten the health and safety of the public, it showed, over a long period, an unacceptable course of conduct. Consequently, the Tribunal found this element of Ms Lopez's conduct contributed to her breach of condition 11 being found to be professional conduct. Protective orders 59Ms Tronson, noting that Ms Lopez was not currently registered as a nurse, submitted on behalf of the HCCC, that the Tribunal should make three protective orders under s 149C(4) of the Law, namely that: 1. The Tribunal would have cancelled Ms Lopez's registration if she were still registered; 2. Ms Lopez is disqualified from being registered as a nurse for a period of two years from the date of the order in this matter; and 3. The Tribunal require the National Board to record the fact that the Tribunal would have cancelled Ms Lopez's registration in the National Register kept by the National Board. 60Ms Tronson submitted that these orders were appropriate for the protection of the public in the circumstances of this case because the Tribunal had no assurance that imposing conditions on Ms Lopez's registration would be sufficient because of her lack of insight displayed in the evidence, her attempts to proffer excuses and her reluctance to take responsibility for her conduct. She had already breached a condition of her registration. Furthermore, such orders were necessary to maintain the high standards of the profession. 61The Tribunal accepted Ms Tronson's submissions as to the orders it should make in this matter and the reasons why Ms Lopez had been given a clear pathway to return to nursing after undertaking retraining to overcome the deficits in her knowledge and skills in relation to medications that had been revealed in the last hearing in relation to her. Her breach of the condition was blatant and persistent and her conduct showed a disregard of her obligation to comply with conditions on her registration as a nurse. For the standards of the profession to be maintained and for the confidence of the public in the profession to be assured, both members of the profession and of the public have to see the outcome of such long term refusal to comply with conditions in the orders made by the Tribunal. 62The Tribunal made its orders accordingly. 63The Tribunal also noted should Ms Lopez seek to be reregistered as a nurse, she should be required to obtain a reinstatement order from NCAT, but should not be able to apply to NCAT for such an order until after the two year period of disqualification from registration had elapsed. This was because the Tribunal considered that the only way for all the issues that would need to be tested in relation to Ms Lopez's preparedness to return to nursing could only be undertaken in a public forum in which Ms Lopez's case could be tested (by the HCCC) before the Tribunal. 64The Tribunal considered Ms Lopez needed a period of at least two years to come to terms with the seriousness of what she had done by avoiding complying with a key condition on her registration to practice. That condition was imposed to deal with her incompetence in administering medications which was the reason for her suspension in 2008 and for her return to nursing practice to be subject to conditions. In addition, Ms Lopez appeared to have no insight into the need for her to retrain in order to show that she could be trusted to administer medications safely to patients. She also appeared to have no insight into her obligation to comply with the terms of the conditions imposed on her registration and to comply with the requests of the body responsible for monitoring compliance with those conditions, namely the Council. Costs 65Ms Tronson sought an order for costs against Ms Lopez as the HCCC had already advised Ms Lopez. In her email dated 17 February 2014 to the HCCC, Ms Lopez stated that she could not, "afford any further costs from the HCCC tribunal" and continued that she did not understand why she would be liable for such in the first place. Ms Tronson referred the Tribunal to Tribunal to HCCC v Gower [2011] NSWNMT 17 [65] to [76]. 66As the HCCC had proven its case and had not done anything to disentitle it from either some or all of its costs, the Tribunal make an order for costs in its favour. Orders 67The Tribunal made the following orders: As the Tribunal was satisfied that the complaints that Mavis Amarili Lopez was guilty of both unsatisfactory professional conduct and professional misconduct were proved, it made the following orders namely that: (1)As Mavis Amarili Lopez was no longer registered as a nurse on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia (the National Board) and maintained by the Australian Health Practitioner Regulation Agency (AHPRA), Ms Lopez be disqualified from being registered as a nurse for a period of two years from the date of this order. (2)Having decided that if Ms Lopez had still been registered at the time it heard and determined this matter, it would have cancelled her registration, the Tribunal requires the National Board to record the fact that the Tribunal would have cancelled Ms Lopez's registration on the register kept by the National Board. (3)Ms Lopez pay the costs of the Health Care Complaints Commission (HCCC) in this matter on the ordinary basis as defined in s 3 of the Civil Procedure Act 2005 (NSW) as agreed or assessed.

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