Health Care Complaints Commission v McCallum [2023] NSWCATOD 170 | Case summary

NCAT Occupational|2023-09-25

Introduction

This is an application to the Tribunal by the Health Care Complaints Commission (HCCC) for disciplinary findings and orders against the Respondent, Emma McCallum, following a determination by the Director of Proceedings of the HCCC to prosecute Complaints against Ms McCallum. Ms McCallum was registered under the Health Practitioner National Law (National Law) as a registered nurse from 8 December 2015 to 5 July 2022 when her registration lapsed.
The Complaints against Ms McCallum are that she inappropriately accessed health records of 8 persons as well as her own health records while she was employed by the Murrumbidgee Local Health District as a Project Lead in Aboriginal Health.
The HCCC bears the onus of proof of the Complaints. The standard of proof in disciplinary proceedings is on the balance of probabilities with a sufficient degree of certainty having regard to the seriousness of the allegations made, which is recognised as the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41; Gautam v Health Care Complaints Commission [2021] NSWCA 85; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 at [24].
If the Tribunal finds the Complaints against Ms McCallum to have been proved the HCCC seeks an order under s 149C(4)(a) of the National Law that if Ms McCallum were still registered the Tribunal would have cancelled her registration under s 149C(1)(b) and/or s 149C(1)(c) of the National Law and an order under s 149C(4)(b) of the National Law that she be disqualified from being registered in the health profession for a period of 6 - 12 months. It also seeks an order under s 149C(4)(c) of the National Law that the National Board is required to record the fact that if Ms McCallum were still registered, the Tribunal would have cancelled her registration.
In these reasons the Applicant is referred to as the Applicant or the HCCC and the Respondent is referred to as the Respondent or Ms McCallum.

Materials before the Tribunal

The HCCC relied upon a bundle of documents filed in the Tribunal on 15 September 2023 (Exhibit A1), an Additional Bundle of documents filed on 31 August 2023 (Exhibit A2) and a Further Additional Bundle of documents filed on 21 September 2023 (Exhibit A3). The fourth paragraph (including its heading) on page 139 of Exhibit A1 and page 20 of Exhibit A3 were not admitted into evidence. The HCCC also relied upon a Registration Standard: Criminal History dated 1 July 2015 issued by the Australian Health Practitioner Regulation Agency (AHPRA) (Exhibit A4) and the NSW Aboriginal Health Information Guidelines dated August 1998 (Exhibit A5).
The Respondent relied upon a bundle of documents which included a reply to the application for disciplinary findings, a statement by Ms McCallum and four letters of support (Exhibit R1).
Ms McCallum gave evidence by audio visual link and was cross examined. Dr Roger Blake and Nurse Practitioner Lesley Salem AM also gave evidence for the Respondent by telephone and were cross-examined.

Relevant Legislation

It is convenient to set out below those provisions of the National Law relevant to this application.
Section 3 of the National Law provides, relevantly: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; … (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; …
Section 3A of the National Law, which is an additional provision for NSW, relevantly provides: 3A Guiding principles [NSW] (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. (2) The other 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; … (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 3B of the National Law, which is also an additional provision for NSW, relevantly provides: 3B 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.
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.
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 - (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.
Section 144, which is an additional provision for NSW, sets out the grounds for complaint which may be made against health practitioners, including: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
Section 149, which is an additional provision for NSW, provides: 149 Powers may be exercised if complaint proved or admitted [NSW] 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.
Section 149A, which is an additional provision for NSW, (which is in the same Subdivision as s 149) provides, relevantly: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. .. (3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only - (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered.
Section 149C, which is an additional provision for NSW, (which is in the same Subdivision as s 149) provides, relevantly: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (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 - … (b) the practitioner is guilty of professional misconduct (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; … (4) If the person is no longer registered, the Tribunal may - (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.

Complaints

The Complaints against Ms McCallum are as follows.
Complaint One is that pursuant to s 144(a) of the National Law, Ms McCallum has been convicted of a criminal offence in NSW.
The Particulars of Complaint One are: 1. On 5 January 2022 NSW Police charged the practitioner with 17 counts of the offence of Access/modify restricted data held in computer under s308H(1) of the Crimes Act 1900 NSW. 2. On 17 October 2022 the practitioner pleaded guilty and was convicted at Wagga Wagga Local Court of four offences under s308H(1) of the Crimes Act 1900 NSW - Unauthorised access to or modification of restricted data held in computer.
Complaint Two is that Ms McCallum is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that she has engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
The Particulars of Complaint Two are: 1. On the dates set out in Annexure A while employed by the Murrumbidgee Local Health District, the practitioner inappropriately accessed the electronic health record of Persons A - F in circumstances where the practitioner knew she: a. did not have authorisation and did not attempt to seek authorisation from her employer; b. did not have the prior consent and knowledge of Persons A - F to do so; c. did not have a proper therapeutic or clinical reason to do so; d. was not and had not been involved in the health care of Persons A -F. 2. On the dates set out in Annexure A, while employed by the Murrumbidgee Local Health District, the practitioner inappropriately accessed the electronic health record of Persons G and H in circumstances where the practitioner knew she: a. did not have authorisation and did not attempt to seek authorisation from her employer; b. did not have a proper therapeutic or clinical reason to do so; c. was not and had not been involved in the health care of Persons G and H. 3. On the dates set out in Annexure A, while employed by the Murrumbidgee Local Health District, the practitioner inappropriately accessed her own electronic health record in circumstances where the practitioner knew she did not have authorisation and did not attempt to seek authorisation from her employer.
The dates set out in Annexure A were as follows: 1. Person A: 03/02/2021, 23/02/2021, 15/03/2021; 2. Person B: 03/02/2021; 3. Person C: 03/02/2021; 4. Person D: 23/02/2021; 5. Person E: 03/02/2021, 08/04/2021; 6. Person F: 02/02/2021; 7. Person G: 18/10/2020, 19/10/2020, 25/10/2020; 27/05/2021, 19/06/2021; 8. Person H: 30/06/2021; 9. Ms McCallum: 17/03/2021, 12/05/2021, 17/06/2021, 30/06/2021, 05/07/2021.
Complaint Three is that Ms McCallum is guilty of professional misconduct under s 139E of the National Law in that she has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration and/or 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 her registration.
In so far as the Particulars of Complaint Three are concerned, the HCCC relies on Particular One of Complaint Two individually and Particulars One to Three of Complaint Two cumulatively.
Ms McCallum's position is that: 1. She admits Complaint One and accepts Particulars One and Two of Complaint One; 2. She considers that it is a matter for the Tribunal to determine whether Complaints Two and Three are proved; 3. She accepts Particulars 1(a) and 1(b) of Complaint Two; 4. As to Particular 1(c) of Complaint Two, she says that in the context of her position as Project Lead Aboriginal Health, she was not on the floor providing direct clinical care to patients. Her role was self-directed, developing projects regarding Aboriginal patients in a small rural community and the therapeutic and clinical reasons to access records were broader than that of a registered nurse on the floor. The Particular is otherwise accepted. 5. As to Particular 1(d), she says that in the context of her position as Project Lead Aboriginal Health, she was not providing health care to any patients, however in a broader sense, she was developing projects to improve the provision of health care to the local Aboriginal community. The Particular is otherwise accepted. 6. She partially accepts Particulars 2 (a) and 2 (b) of Complaint Two. She says that, in relation to Person G, she neither accepts nor denies that she did not have authorisation or a proper clinical reason to access Person G's health records on 18/10/2020, 19/10/2020 and 25/10/2020. As that person was an inpatient at the time she believes their records may have been part of a data set sent to her for auditing in her role as Project Lead Aboriginal Health. The Particulars are otherwise accepted. 7. As to Particular 2(c), she says that in the context of her position as Project Lead Aboriginal Health, she was not providing health care to any patients, however in a broader sense, she was developing projects to improve the provision of health care to the local Aboriginal community. The Particular is otherwise accepted. 8. She accepts Particular 3 of Complaint Two.

Facts

The following facts are not in dispute.
Ms McCallum is a Wiradjuri woman who lives on Wiradjuri Country.
She was first registered as a registered nurse in 2015.
She worked as a registered nurse at Wagga Wagga Base Hospital for approximately 4 and a half years and then took the position of Project Lead Aboriginal Health in September 2020.
There is no Position Description available for her role as Project Lead Aboriginal Health. However, an Expression of Interest Form issued by Murrumbidgee Local Health District (MLHD) described the role as involving working collaboratively with the Minister responsible for Aboriginal health and key stakeholders to support MLHD policy implementation applicable to Aboriginal health outcomes. It noted the responsibilities of the role included seeking to ensure equity and access to health services to improve continuity of care for Aboriginal people and to develop high quality projects that align with Commonwealth, State, MLHD and Aboriginal health goals and strategic directions.
Ms McCallum said that in this role she helped write and file Aboriginal Health Impact Statements. She said part of her role involved reviewing data as to patient presentations or re-presentations and, where there were re-presentations, undertaking an audit to see, for example, if she could identify some gap in the service that had been provided to the patient or any patterns emerging in order to identify whether there may be ways to prevent further re-presentations occurring in future.
On 30 June 2021 a patient raised a complaint that Ms McCallum had accessed her medical records and MLHD then received a further five complaints raising a similar concern.
Ms McCallum resigned from MLHD on 16 July 2021. At that time she was approximately 30 weeks' pregnant expecting her third child.
MLHD undertook an investigation into the complaints. A review of access logs and audit reports revealed that Ms McCallum had accessed the records of persons A-F on the following dates: 1. Person A: 03/02/2021, 23/02/2021, 15/03/2021; 2. Person B: 03/02/2021; 3. Person C: 03/02/2021; 4. Person D: 23/02/2021; 5. Person E: 03/02/2021, 08/04/2021; 6. Person F: 02/02/2021;
Person A and Person D were acquaintances of Ms McCallum. Persons B, C and E were close relatives of Person A. Person F was a close relative of Ms McCallum.
It is not clear on the evidence whether each of Persons A to F identify as being Aboriginal, however, it is clear that at least some of those persons do so.
In an interview conducted as part of that investigation on 12 August 2021, Ms McCallum admitted that she accessed the health care records of Persons A - F as above. When asked why she accessed those records Ms McCallum said: It was kind of a lot of context… I guess that basically [Person A] and I once had a close relationship which has recently broken down and I guess it's the same story for all of them really… There was a lot of sort of interpersonal conflict … Yeah sorry so during that time I was receiving threatening and intimidating messages on all of my social media from [Person A] and [Person D], they were driving past my house which is on our home CCTV footage taking photos of my house and my kids were getting scared and what not …and yeah I guess the pressure of how I was feeling and what not at the time I yeah I accessed their records
When asked what she hoped to benefit from accessing those records Ms McCallum said: Yep I really don't know… I don't know what I was thinking I'm so ashamed that I even did it…I think just all of the conflict kind of got to me and I really don't know what I was hoping to achieve out of it to be perfectly honest. I know it was the wrong thing to do and I'm like I said I'm so ashamed.
In that interview she explained that she had also accessed Person G's records with that person's permission as she wanted to use one of their hospital presentations (de-identified) as a case study for a university assignment she was completing. Person G was a close relative of Ms McCallum who identifies as Aboriginal.
Ms McCallum also said that Person H, another close relative, had asked her to check what allergies were recorded in their medical records, as they were going into day surgery. She said she knew that it was wrong to look at Person H's records for that purpose and she shouldn't have done it. Person H does not identify as being Aboriginal.
As to her own records, Ms McCallum explained that she was pregnant, had had a number of investigations and complications with her pregnancy and had suffered a miscarriage prior to her current pregnancy. She said she had a lot of anxiety around her pregnancy so she looked up her results when they came in.
The investigator concluded that Ms McCallum accessed the records of Persons A to F for a purpose extraneous to the functions of MLHD as a health service. However, she concluded that it was not clear from the evidence available in the investigation whether Ms McCallum's access of other medical records was required in the course of her duties.
A hearing before the Nursing and Midwifery Council (Council) under s 150 of the National Law took place on 30 August 2021. Ms McCallum was not working at that time, was 37 weeks pregnant and not seeking work as a registered nurse. Accordingly, while noting their concerns as to her conduct, the Council noted that Ms McCallum did not pose any immediate threat and imposed a condition on her registration that she inform Council of any changes in her employment situation.
On 5 January 2022 Ms McCallum was charged with 17 counts of the offence Access/modify restricted data held in computer contrary to s 308H(1) of the Crimes Act.
On 17 October 2022 Ms McCallum pleaded guilty to and was convicted of four offences of Access/modify restricted data held in computer contrary to s 308H(1) of the Crimes Act and was sentenced to a Community Correction Order for a period of 12 months commencing 17 October 2022. Those convictions related to her accessing the records of Persons A, C, E and F. It was not alleged that Ms McCallum modified or used the data she accessed.
In her statement before the sentencing judge, Ms McCallum said: Throughout my professional career I was a successful applicant for a Ministry of Health Aboriginal Nursing Scholarship as well as two Murrumbidgee Local Heath District Excellence Awards for the categories of diversity and Aboriginal and Torres Strait Islander Leadership. I also took on extra responsibilities including the mentoring of Aboriginal university students to see them to the completion of their studies and integration to the workforce, a research project for recruitment and retention of Aboriginal staff and authored many strategies including the Murrumbidgee Local Health District Aboriginal Workforce Strategy. I did this as a proud Wiradjuri women who is passionate about closing the gap across all social determinants. … Leading up to my offence, I was receiving constant requests to access medical records to ensure things such as if they were listed as being of Aboriginal heritage. Following this, conflict arose and it was at this time I crossed a professional and ethical boundary and did so unlawfully. These ongoing requests combined with a decline in mental health and skewed decision making led to actions that I can genuinely say are not of my nature. I have taken responsibility and shown remorse for my actions throughout this entire process and have not tried to deflect any blame. I have instead taken proactive steps to ensure successful rehabilitation and prevent myself from making such mistakes in the future. … Months later I resigned from my position following the commencement of the investigation and have spent time focusing on raising my three children which includes the medical care of my one year old daughter who has been diagnosed with chronic health conditions. This requires her to be under the care of three different specialists. This combined with these proceedings and having not been able to work since July 2020 have resulted in my family experiencing extreme financial hardship. As previously mentioned, I have worked tirelessly in my career to ensure my local Aboriginal community have opportunities. In my personal life, I have dedicated my time to facilitating programs for at risk youth, ran cultural education programs in schools and have helped create culturally appropriate spaces in various organisations that provide services to my community including childcare centres and Aboriginal Community Controlled Health Services. I have worked hard on self improvement over the last 15 months. I feel as though I have felt the full force of the consequences of my actions including hurt to those involved, the loss of my career, loss of income, and damage to my reputation. The flow on effects of my actions have also been hurtful to others and for this I am very sorry for all of this…
In evidence before the sentencing Magistrate was a report dated 15 September 2022 from Dr Roger Blake, a registered psychologist since 1989, who had carried out an assessment of Ms McCallum at her solicitor's request in support of an application under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (Mental Health Act) for an order dismissing the charges and discharging Ms McCallum.
In that report Dr Blake noted that since 2019 Ms McCallum had experienced a number of major traumatic professional and personal events and psychological stressors including: 1. In 2019 while working as a nurse in the emergency department a friend and nurse colleague of Ms McCallum's was brought in from an intentional drug overdose. Ms McCallum had to perform resuscitation and the colleague died; 2. One day later a neonate was brought in by ambulance and required intubation and retrieval after severe abuse and neglect. She had no training in these procedures for a child of that age. Both incidences left Ms McCallum "broken" and she had never received any formal counselling from the health service; 3. After her friend's death Ms McCallum began suffering anxiety and panic attacks, was prescribed medication, but had to discontinue the medication due to its side effects; 4. Conflict had escalated with Person A who was attending the emergency department during Ms McCallum's work hours with no apparent medical emergency concerns which caused Ms McCallum distress. Person A had also made a number of false accusations about Ms McCallum which had caused a family estrangement to occur, which had left her "heart-broken".
Dr Blake said that, in his view, Ms McCallum's life seemed to have spiralled out of control since these events began and concluded that: I assess that her out of character actions have ensued from acute stress and trauma. Given the reported trauma/distress in her life, I accept Ms McCallum's account of how she made these poor decisions with highly adverse impacts upon her career and life.
Dr Blake included in his report the following quote from what Ms McCallum had told him: The anxiety from everything I have discussed had such an effect on me at the time of my offence that I could not sleep, constantly felt tight in the chest, was short of breath and was having frequent panic attacks, was working from home more and more as I found it hard to leave the house, was medicated for hypertension in my pregnancy and was having trouble managing my diabetes. These physical symptoms further fuelled my poor mental state following my miscarriage and I truly believe this is what led me to make such a poor choice.
Dr Blake said that: Ms McCallum presents with symptoms consistent with a clinical level depressive disorder, generalised anxiety disorder and an adjustment disorder with panic attacks. In my opinion, at the time of the alleged commission of the offences to which these proceedings relate, Ms McCallum was suffering from a mental health impairment as defined in section 4 of the [Mental Health Act]. It is also highly likely that Ms McCallum was experiencing an ongoing disturbance of thought, mood and volition during the commission of these alleged offences. In my expert opinion, her mental health conditions and crisis would dramatically impair Ms McCallum's judgement, so as to create poor consequential thought processes and impaired foresight of risk of harm to her professional reputation as a registered nurse… This mental health disturbance impaired her emotional wellbeing, judgment and behaviour.
Dr Blake concluded that Ms McCallum needed counselling intervention throughout 2022 and into 2023. He attached a proposed treatment plan. The treatment plan, to which Ms McCallum agreed, provided that she would attend Dr Blake for psychological therapy as directed (once per month) to address the "issues causal to her offences", commencing in October 2022 and also to attend on a Ms Painter of Collective Coaching for coaching support also to address the "issues causal to her offences".
In his sentencing remarks, Magistrate Halburd described Ms McCallum's offences as "anything but trivial, it's very serious". He said: [T]here is a very, very significant public interest in the health system being - or enjoying a reputation for protecting the data of people who provide that information to the system. If people think that that is going to be accessed, they will be less likely to be honest and forthright with healthcare professionals which undermines the entire system.
Magistrate Halburd also said: [Ms McCallum] is a person of excellent character. She has absolutely no antecedents and has made significant contributions to the community through her professional work and has a particular interest in assisting and has done for some years, members of the Aboriginal community, including things like mentoring Aboriginal university students and authoring strategies including the Murrumbidgee Local Health District Aboriginal workforce strategy. She has, I accept, worked as best she can towards closing the gaps that have been identified in the literature.

Ms McCallum's evidence

In her statement to this Tribunal dated 10 September 2023 Ms McCallum said: I accept that I accessed medical records when I should not have and I am very sorry for what I did. The past two years have been an incredibly challenging time. Whilst going through the criminal court process and the HCCC investigation I was also trying to care for my three children, one of which was a newborn (born Sep 13). Although challenging, this time really forced me to sit with myself and reflect on what has happened, how I found myself in this position and what damage it has done to those involved, the community, the health service, the profession and the village that supported me to achieve my dream of becoming a nurse. … I know that when patients seek and receive medical care that they are in a vulnerable situation and look to health care professionals and services for help and trust. "Privacy and dignity" are two words that I have found repeated and have stood out to me in learnings I have done since this occurred, and I believe wholeheartedly that this is what our patients are entitled to and deserve. My actions have gone against everything I believe in and for that I am deeply sorry. At the time I thought I had a good understanding of privacy principles and legislation and right from wrong, but I recognise I have a deeper and more nuanced understanding of professional boundaries and how the fine line can come to be crossed. … Nothing about my behaviour represents the nursing profession or the expectation of the community.
Ms McCallum also said she was focusing on rebuilding herself and repairing the damage she has caused. She said that she has been working with her psychologist and has, with the help of the Nursing and Midwives Association, sought out Lesley Salem AM, an Indigenous Nurse Practitioner, as a mentor.
She also set out the learnings about privacy, professional boundaries and legal and ethical obligations she has undertaken and the learning she plans to complete over the next year.
She said: Rebuilding trust within my Aboriginal community and with the broader community will take time and I am committed to personal growth and change.
In her evidence in chief Ms McCallum accepted that she accessed the patient records of Persons A - E without their knowledge and without any proper reason to do so. She again explained that she had asked Person G if she could use one of their presentations to hospital as a case study for a university assignment she was working on and that Person H had requested her to look at their records to check what allergies were recorded. She said that she looked up a covid result for Person F. However, under cross-examination when she was taken to the sentinel records which showed the records she had reviewed relating to Person F, she accepted that she looked at more than that person's covid test result.
In her evidence in chief Ms McCallum said that she has reflected extensively on her conduct and can only imagine how it made Persons A to F feel. The information she accessed was very personal information and they had an expectation that it would be cared for.
Under cross-examination Ms McCallum accepted that she knew as a result of her training to be a registered nurse that she was under an obligation to keep patient records confidential and that she should only view patient information when it was necessary to do so to carry out her work duties. However, she said she now has a more robust understanding of her obligations in this regard.
Initially when asked in cross-examination why she had accessed Person A to F's records, Ms McCallum said that she did not know. However, she later clarified that the distress she felt as a result of the conflict that had arisen between her and Person A and her feeling upset about Person A and D driving past her house had influenced her decision to access the records of Persons A to F, but did not in any way justify her accessing their records. Similarly, she accepted that her concern for the welfare of one of those persons potentially influenced her decision to access their records, but also did not justify her doing so. On many occasions Ms McCallum said her conduct was "not justifiable" and was wrong. She said she deviated from what she knew was right.
She confirmed that she did not look at Person A to F's records as part of her role as Aboriginal Project Lead. She also confirmed that it was not a concern she held about excluding those persons' data from a data set that she was reviewing as part of an audit she was undertaking which led to her reviewing those records.
As to Person G's 2020 records, it was put to her that if these records were amongst a data set she had been provided for the purposes of auditing she must have realised that she had a conflict and she should not have reviewed them. Ms McCallum said that she does not recall reviewing the 2020 records. In re-examination she confirmed that, even if there had been a conflict, there was no one else she could have referred the records to.
In terms of her accessing Person H's records at Person H's request, she said that she had understood at the time that if she had someone's permission it was permissible to access their records, but that she now knows that is wrong. In cross-examination she agreed that she did not feel under any cultural pressure from Person H to agree to review her records, as Person H does not identify as Aboriginal.
Ms McCallum confirmed that, although she had agreed to the treatment plan annexed to Dr Blake's September 2022 report, she did not in fact attend monthly counselling with Dr Blake until 2023. In re-examination, Ms McCallum explained that this was because she was seeing another counsellor for a different type of counselling and that Dr Blake agreed that the counselling she was receiving was more appropriate for her at that point because it was dealing with her immediate needs. She also said that she could not afford the counselling per the treatment plan as she had not realised how expensive it would become.
She confirmed that it is now her intention to continue to have psychological sessions with Dr Blake going forward.
In response to questions from the Panel, Ms McCallum said that in 2021 she should have recognised that, given her mental state, she should not have been working. She said she is now much more self aware and is in a much better place now in her life, She feels capable of pulling herself up. She is managing her anxiety and taking better care of herself. She said now she recognises when she is becoming anxious and is able to stop and reach out to people for help, which is something she was not good at doing in the past.
Ms McCallum explained that when her registration came up for renewal she was going through the criminal proceedings and she was looking after three children including a small baby. She said she did not feel she could commit to the CPD requirements to hold her registration at that time so she decided not to renew it.

Dr Blake's evidence

Dr Blake provided a letter in support of Ms McCallum dated 4 September 2023.
In that letter Dr Blake said that he had seen Ms McCallum recently for counselling support.
He said: I have formed the view that Ms McCallum is a genuine person who values her indigenous heritage. She clearly cares for others and she wants to continue to utilise her nursing skills to support the community of Wagga, which includes indigenous patients. I can see that Ms McCallum deeply regrets her actions. Ms McCallum is basically an honest person and she feels shame-based about the HCC complaints process she finds herself in. She was under severe psychological duress at the time of these matters. … I consider Ms McCallum as a fit and proper person to be held out to patients and the whole community. In my opinion, Ms McCallum is a person worthy of the confidence of the community. Counselling has assisted her to have insight and reflection on her actions. She now has firm strategies in place to deal with distress and make better choices.
Under cross-examination and questioning by the Tribunal, Dr Blake said that, although the original treatment plan was that Ms McCallum would start sessions with him in October 2022, between October 2022 and February 2023 Ms McCallum had sessions with another counsellor under his general oversight, and Ms McCallum started further counselling with him in February 2023. He has had five sessions with her since that time.
In his opinion, Ms McCallum no longer suffers from adjustment disorder or depressive disorder but still has symptoms of general anxiety disorder.
Dr Blake said that he would propose to continue to work with Ms McCallum who he described as a motivated client he would be happy to continue to support.
In answer to a question as to how the Tribunal could trust Ms McCallum not to access records inappropriately again, he said that she is committed to therapy and he expects that she will maintain her level of insight, manage her anxiety and will be more resilient and able to make better life choices.
Dr Blake said that it was his view that Ms McCallum should continue to engage regularly with him "well into mid 2024" on a monthly basis.

Nurse Salem's evidence

Lesley Salem, AM, an Aboriginal Nurse Practitioner, also provided a letter of support for Ms McCallum dated 9 September 2023.
In that letter Ms Salem says she was asked to comment on the unique conflicts that Aboriginal people in health care provision face.
She said: We must walk between two worlds of culture, law and lore. We experience two expected outcomes from any role we are employed in.
She explained that Aboriginal people employed in health roles need to manage privacy and confidentiality in a very different way to the "functional boundaries the European/Western culture has". She said that it is difficult to maintain professional boundaries when you are Aboriginal and you are employed to look after family, kin and community because your family, kin and community place different expectations on the help you should provide them. She said it is often because of the fact that Aboriginal people have connections with community that they are employed in these roles. She said breaches of confidentiality must be occurring by other Aboriginal health workers on a "daily basis".
She said that Ms McCallum had admitted to looking up data relevant to a certain family, but said: They are a majority family in the community and to exclude them would, she states, looked like she was not including them in her risk evaluation. Excluding them from better care.
In Ms Salem's view: It would be a great loss of an Aboriginal Nurse passionate about health and with the lessons she has learnt she would be an invaluable mentor to others.
In cross-examination, Ms Salem said that she had had two telephone calls with Ms McCallum prior to writing her letter of support.
She said that Aboriginal health workers "cross the line all the time" because of the special cultural pressures brought to bear on them by their community. Under Aboriginal culture, community must come first. She said that Aboriginal health workers are under different expectations than white nurses and different demands are placed upon them to meet their community's health needs. She explained that this is why she herself has had to move away from her own community to avoid these pressures being continually placed upon her.
She said that she has commenced a mentor relationship with Ms McCallum and that is a process she sees continuing.
She said that she believes Ms McCallum would never access records inappropriately again.

Other letters of support

There are two further letters of support for Ms McCallum before the Tribunal.
One letter is a letter dated 10 September 2023 from Person G, a close relative of Ms McCallum. Person G says that they have witnessed Ms McCallum implementing the strategies she has learned from her psychologist to stop herself from slipping into her old patterns of behaviour and believes because of her insight, the accountability she has shown and her commitment to her learnings that she would not make the same mistake again. Person G is indigenous and says that in their view it would be a huge loss to the Aboriginal community should Ms McCallum not be given the chance to reregister as a nurse.
The other letter is a letter dated 8 September 2023 from Dr Lucy Scholfield, an Emergency Department Staff Specialist. Dr Scholfield has known Ms McCallum since 2017 when they were working together in the Wagga Wagga Base Hospital Emergency Department and is a firm friend of Ms McCallum's. She attests to Ms McCallum's competence as a nurse, empathy, professionalism, supportive nature and her desire to drive positive change. She says that Ms McCallum is a proud Aboriginal woman and a pillar of her local Aboriginal Community and that she is passionate about closing the gap and improving health care for Aboriginal people. She also says that Ms McCallum had told her that she had inappropriately accessed patient records and was "mortified" that she had done so. She said Ms McCallum had expressed empathy for the patients whose records she had accessed. She said Ms McCallum has also told her that her psychologist has helped her and improved her mental health and "she is now able to manage anxiety that previously she found crippling". She concludes: In conclusion, it is my opinion that Emma McCallum is an exceptional community member and local Aboriginal Health Champion. She is aware of the seriousness of her mistakes and will work tirelessly to atone for this and to pursue her dream of reducing health inequality for Aboriginal people.

Complaint One

Complaint One is that pursuant to s 144(a) of the National Law, Ms McCallum has been convicted of a criminal offence in NSW.
In evidence before the Tribunal are Court Attendance notices relating to the 17 charges made against Ms McCallum and Certificates of Conviction in relation to the four offences in respect of which Ms McCallum was convicted. Ms McCallum admits Complaint One.
We find that the evidence put forward by the HCCC proves the allegations in each of the Particulars of Complaint One and that Complaint One is proved to the Briginshaw standard.

Complaint Two

Complaint Two is that Ms McCallum is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that she has engaged in improper or unethical conduct relating to the practice or purported practice of nursing in inappropriately accessing medical records.
In so far as Particular One is concerned, the sentinel records show that Ms McCallum accessed the records of Persons A to F on the dates set out in Annexure A and Ms McCallum admits that she did so. It is clear on the evidence that Ms McCallum did not have authorisation from her employer or consent from Persons A - F to do so. It is also clear on the evidence that Ms McCallum did not access those records as part of her role as Aboriginal Project Lead. We find Particular One of Complaint Two to be proved.
In so far as Particular Two is concerned, the MLHD investigation report shows that Ms McCallum accessed the records of Persons G and H on the dates set out in Annexure A. Other than in respect of Person G's records which were accessed on 18, 19 and 25 October 2020, it is clear on the evidence that Ms McCallum did not have authorisation from her employer to do so. Other than in respect of Person G's records which were accessed on 18, 19 and 25 October 2020, it is also clear on the evidence that Ms McCallum did not access those records as part of her role as Aboriginal Project Lead.
However, in respect of Person G's records which were accessed on 18, 19 and 25 October 2020, Ms McCallum's evidence was that those records may have been reviewed by her as part of a data set of Aboriginal patients admitted to hospital that she was reviewing at the time as part of an audit she was conducting because Person G was an inpatient at the relevant time. We do not consider the HCCC has proved to the Briginshaw standard that those records were not reviewed by Ms McCallum as part of her role as Aboriginal Project Lead. It is possible that Ms McCallum did have authority to review those records and a proper reason for doing so.
Accordingly, we find Particular Two of Complaint Two to be proved other than in respect of Person G's records which were accessed on 18, 19 and 25 October 2020.
In so far as Particular Three of Complaint Two is concerned, the MLHD investigation reports show that Ms McCallum accessed her own records on the days specified in Annexure A and she admits to doing so. We find Particular Three of Complaint Two to be proved.
As to whether by reason of the above conduct Ms McCallum is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law turns on whether her conduct was improper or unethical.
"Improper" and "unethical" are not defined in the National Law. The Tribunal considered the meaning of those terms in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[55] stating as follows: "51. The words 'improper' and 'unethical' are not defined in the National Law. The Macquarie Dictionary defines improper as follows: 1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular.' 52. Unethical is defined as follows '1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct.' 53. The word improper was the subject of discussion by. French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494, [2009] HCA 7. The Chief Justice said: '… [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".' 54. Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term 'impropriety' in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. 55. The words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: 'Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. …'"
While there is no allegation that Ms McCallum shared, used or modified the information in the records she reviewed, nevertheless in our view it is self evident that Ms McCallum's conduct in accessing the records of Persons A to F without their consent was clearly improper or unethical. While Persons G and H may have consented to her accessing their records, it was also a clear breach of the Code of Conduct for Nurses and the NSW Privacy Manual which require that health information be accessed only when necessary to do so in order to carry out work duties. Similarly, it was a breach of the Code of Conduct to review her own records without authority.
We find that in so far as she accessed health records of Persons A to H (other than Person G's records which were accessed on 18, 19 and 25 October 2020) and her own health records, Ms McCallum is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law.

Complaint Three

Complaint Three is that Ms McCallum is guilty of professional misconduct under s 139E of the National Law. The question we must then determine is whether the conduct we have found to be unsatisfactory professional conduct amounts to professional misconduct.
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19]-[20], Basten JA explained: "19. … 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. … 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …"
In assessing the seriousness of the conduct, it is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638; [1997] NSWCA 264.
The conduct we have found the Respondent engaged in, particularly in so far as Person A to F's records were concerned, was extremely serious misconduct. Ms McCallum accessed highly personal and sensitive health information of persons without authority and without consent on multiple occasions. From the complaints lodged by those persons it can be seen that, unsurprisingly, it caused them significant distress. As the Council noted in their decision under s 150 of the National Law, Ms McCallum did so while working with members of the Aboriginal population, a particularly vulnerable group for whom privacy is of paramount importance.
As the Tribunal stated in Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [53] - [54]: 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.
While we accept Ms Salem's evidence, we do not think the cultural considerations which Ms Salem gave evidence about, in fact played any part in Ms McCallum's decision to access any of the records she accessed. There is no suggestion that Persons A to F requested that she access their records, quite the opposite. Further, while Person H did request Ms McCallum access their records, Person H does not identify as being Aboriginal. Ms McCallum's representative confirmed in closing submissions that no reliance was placed on cultural issues by way of an explanation of Ms McCallum's behaviour.
Nor was it, as Ms Salem seems to have understood, a matter of seeking to include Person A to F's data in a set of data Ms McCallum was reviewing as part of an audit so as not to exclude them from receiving care.
Ms McCallum knew, when accessing Person A to F's records, that it was wrong.
We find that Ms McCallum's conduct in accessing the records of Persons A - F was sufficiently serious to justify suspension or cancellation of her registration and, accordingly, that it is professional misconduct under s 139E of the National Law.
In so far as accessing Person G and H's records, even if she did think that she could access Person G and H's records with their permission, as a nurse of more than four years' experience, Ms McCallum should have known her obligations in that regard. However, in our view, that conduct, and her conduct in accessing her own records, while clearly unsatisfactory professional conduct, is not sufficiently serious to justify suspension or cancellation of her registration and, accordingly, we do not find that conduct amounts to professional misconduct under s 139E of the National Law.

Appropriate Protective orders

The Complaints having been proved to the extent as set out above, it falls then to determine whether the Tribunal should exercise its disciplinary powers.
As the Respondent is no longer registered, we must decide whether, if the Respondent were still registered, we would have suspended or cancelled her registration and, if so, whether we consider that the Respondent should be disqualified from being registered for a period.
Under s 149C(1)(b) the Tribunal may suspend or cancel a practitioner's registration if the Tribunal is satisfied that the practitioner is guilty of professional misconduct.
Section 149C(1)(c) provides that the Tribunal may also suspend or cancel a registered health practitioner's registration if the Tribunal is satisfied that the practitioner has been convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession.

S 149C(1)(c): Do the circumstances of the offence render the practitioner unfit in the public interest to practise

The question we must determine is whether the circumstances of Ms McCallum's offences render her unfit in the public interest to practise as a nurse.

Unfit in the public interest to practise

The relevant principles were summarised by the Tribunal in Health Care Complaints Commission v Lowe [2023] NSWCATOD 121 at [73]-[76] as follows: 73. The relevant principles were summarised recently by the Tribunal in Health Care Complaints Commission v Morris [2022] NSWCATOD 120 at [82] - [85] as follows: 82 In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14] the Tribunal stated: The National Law does not contain a definition of unfitness to practise in the public interest or unsuitability for registration. These terms, like all others in the Act, are interpreted in light of the objects of the Act in s 3 and the specific objective and guiding principle in the NSW version of the National Law contained in s 3A. 83 The following principles emerge from the Tribunal's decision in Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]: (1) The term "public interest" is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]; (2) s 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of "the practitioner's current fitness to practise" Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]-[69]; (3) In construing s 149C(1)(c) the Tribunal needs to take into account the objectives of the National Law which relevantly include "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". Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether, as a result of having committed an offence they have behaved so egregiously as to render the subject practitioner "unfit in the public interest to practise the practitioner's profession"; (4) The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances. 84 Whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]. 85 "Public interest" also may be taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within them: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]. However, we are cognisant of the remarks of Harrison J in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (albeit in the context of proceedings under s 150 of the National Law) of the concept of public interest being linked to the health and safety of the public. 74. The reference by the Tribunal in that case to the decision of the Court of Appeal in Pridgeon v Medical Council of NSW [2022] NSWCA 60 is a reference to the fact that, in that case the Court of Appeal held that for the purposes of s 150 of the National Law that the words "in the public interest" should be understood as meaning the public interest in the protection of the public's health and safety arising in the conduct of the practice of (in that case) medicine in respect of which a medical practitioner's registration is granted and is did not extend to include an unspecified public interest of exhibiting traits consistent with the honourable reputation of the medical profession, unrelated to the practice of medicine. 75. In Health Care Complaints Commission v FLJ [2023] NSWCATOD 7, which was decided after Morris, the Tribunal was required to consider whether the expression "in the public interest" for the purposes of s 149C(1)(c) of the National Law also had the meaning ascribed to it by the Court of Appeal in Pridgeon. In FLJ the Tribunal, having comprehensively reviewed the authorities and having had regard to the different purposes of s 149 (1)(c) and s 150 of the National Law held that for the purposes of s 149C(1)(c) the "public interest" consideration may include consideration of whether the practitioner's criminal offence exhibits traits in the practitioner inconsistent with the honourable practice of an honourable profession, and it is not necessary for a nexus to be established between the criminal offence and the practice of that profession. 76. Whether a practitioner is unfit in the public interest to practice must be assessed in light of a holistic inquiry into suitability. As the Tribunal stated in Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [22]: This assessment takes into account the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and since any investigation or sanction. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration.

Unfit in the public interest to practise - conclusion

While the conduct Ms McCallum engaged in was very serious, Ms McCallum has taken full responsibility for her conduct and did so immediately. While she was clearly in a difficult period of her life at the time of the conduct, she has not sought to rely on that to seek to justify her conduct in any way.
She has demonstrated insight into the impact of her conduct on the persons involved as well as on the reputation of her profession.
She has shown deep and, in our view, genuine remorse.
She has taken important steps to address the personal issues which she was experiencing at the time of the conduct. She has been working with a psychologist, Dr Blake, and proposes to continue to do so to, to address the personal factors which led to her behaving in the manner that she did.
She has commenced a mentoring relationship with a clearly very experienced Aboriginal Nurse Practitioner who is willing to help her deal with the difficulties Aboriginal Health workers face in trying to navigate the competing demands of their roles against the demands of their communities (although we note that, in fact, those issues were not at the root of Ms McCallum's conduct at issue in these proceedings).
She has developed strategies for managing her anxiety and we accept that she is more resilient and able to make better life choices.
We accept that Ms McCallum's conduct was a relatively short-lived lapse in judgment which occurred at a difficult period in her life and we do not have any concern that she would be likely to behave in a similar fashion again.
Her competency as a nurse is not in issue. Ms McCallum is clearly a proud Aboriginal woman who is passionate about improving health outcomes for her Aboriginal community.
Where the question we must determine is Ms McCallum's current fitness to practise, and is to be assessed holistically, we find that Ms McCallum is not currently unfit in the public interest to practise for purposes of s149C(1)(c) of the National Law.
Accordingly, if Ms McCallum was registered, it would not have been open to us to rely upon s 149C(1)(c) to make an order cancelling or suspending her registration.

Disciplinary orders - principles

The question then is whether, if the Respondent was still registered, we would have suspended or cancelled her registration under s149C(1)(b) because we have found her guilty of professional misconduct.
Section 3(2) of the National Law makes it clear that the objectives of the National Law include providing 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.
The purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield. However, that is not to deny that such orders may be punitive in effect: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], [31].
In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA gave the following explanation 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 misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
In the exercise of its protective jurisdiction, the Tribunal must take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and, more broadly, the protection of the community: Gayed v Walton [1997] NSWCA 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153.
As we have found Ms McCallum guilty of professional misconduct, it would have been open to us to cancel her registration under s 149C(1)(b) of the National Law if she was still registered. However, that outcome is not automatic: Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD 153 at [4].
In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA noted at [101]: The adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order.
There may be circumstances where, although a practitioner has been found guilty of professional misconduct, the practitioner has demonstrated to the Tribunal that they have gained insight into their behaviour, have shown remorse, and have taken sufficient steps to address their behaviour such that the Tribunal may have comfort that the practitioner would not be likely to engage in conduct of a similar nature again.
As we have set out above, in our view, this is such a case.
While Ms McCallum is guilty of a very serious breach of her ethical obligations, in our view the insight she has gained, the steps she has taken to address her health issues, Dr Blake's evidence (which we accept), the deterrent effect of the criminal proceedings she has been through as well as these disciplinary proceedings together with the fact that Ms McCallum has been unemployed since she resigned in July 2021, leave us with no concern that Ms McCallum would be likely to repeat her conduct. We do not consider there is any real risk that she would again abuse her position to access health records.
As the Sentencing Magistrate observed, Ms McCallum is otherwise a person of excellent character and someone who is passionate about improving health outcomes for the Aboriginal community.
Suspension or cancellation would clearly have adverse financial consequences for Ms McCallum and her young family and, taking into account Basten JA's comments in Prakash, we do not consider that if Ms McCallum were registered, either order would have been necessary from the point of view of the protection of the public, or from the point of view of specific or general deterrence.
In our view, Ms McCallum's conduct should clearly be denounced. However, in our view, that should be done by the issuing by this Tribunal of a reprimand.

Does the Tribunal have power to reprimand the Respondent

At the hearing the HCCC raised a question as to whether it is open to this Tribunal to issue a reprimand in circumstances where the Respondent is not presently registered as a nurse.
After the hearing the HCCC provided the Tribunal with a list of authorities regarding whether it is open to the Tribunal to reprimand a practitioner who is no longer registered and the Respondent provided some submissions in reply.
Subdivision 6 of the National Law sets out the powers which may be exercised by the Tribunal if Complaints against the practitioner have been proved.
Section 149A of the National Law sets out the Tribunal's general powers to caution, reprimand or impose conditions upon a practitioner's registration.
Section 149A(1) provides: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
There are numerous cases where the Tribunal has reprimanded practitioners who were no longer registered, for example: Heath Care Complaints Commission v Jouda [2023] NSWCATOD 83 at [75]-[76] and [83]. There are also two recent cases where the Tribunal has taken a different approach.
In Health Care Complaints Commission v Reyes [2023] NSWCATOD 57, the Tribunal noted that it did not accept that it had power to issue a reprimand to an unregistered practitioner, although the point does not appear to have been extensively argued.
In Health Care Complaints Commission v Neale [2023] NSWCATOD 137, the Tribunal noted that it inclined to the view that the Tribunal does not have power to reprimand an unregistered health practitioner. However, it did not need to decide the issue, so its comments are in the nature of obiter dicta.
The Tribunal in Neale observed that s 149A(1) provides for orders which may be made in relation to "registered health practitioners" and noted that "registered health practitioners" were defined in s 5 of the National Law to include individuals who are "registered under this Law to practise a health profession". It noted that the maxim of statutory construction whereby an express reference to one matter indicates other matters are excluded supported a finding that the legislature did not intend s 149A of the National Law to apply to unregistered health practitioners.
However, the Tribunal in Neale did not specifically address s 149A(3) of the National Law which provides: (3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only - (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered.
In our view, s 149A(3) makes it clear that the Tribunal does have power to make any of the orders or directions provided for in s 149A(1), including the power to reprimand, where a practitioner is no longer registered. The effect of s 149A(3), in our view, is that, if the Tribunal reprimands the practitioner, the practitioner will have been reprimanded, but any such reprimand will only be recorded on the practitioner's registration (under s 225 (j) of the National Law) if and when they become re-registered.
Section 149A(3)(b) also makes it clear that the Tribunal may also order conditions which are to be imposed upon the registration of a practitioner who is not currently registered, if they are re-registered.

Appropriate Conditions

Ms McCallum has indicated that she proposes to continue counselling sessions with Dr Blake and to continue a mentoring relationship with Ms Salem and we strongly encourage her to do so while she remains unregistered. In our view, it is also appropriate for us to make orders for conditions that she attend for ongoing counselling and be subject to mentoring which should be imposed on her registration if and when Ms McCallum is re-registered.

Conclusion on Appropriate Protective Orders

We conclude that it is appropriate that Ms McCallum be reprimanded for her misconduct. In addition, it is appropriate to impose two conditions on her registration which will take effect if and when she is re-registered. The first is a condition that she maintain a therapeutic relationship with a psychologist, at a frequency to be determined by the psychologist, for a period of at least 12 months. The second condition is that she undertake mentoring for a period of at least 12 months.

Costs

The HCCC seeks an order that the Respondent pay its costs as agreed or assessed and that order is not opposed by Ms McCallum
This is a costs jurisdiction, and ordinarily costs should follow the event. While there is a discretion not to award costs to the successful party it must be exercised judicially "according to proper fixed principles and rules of reason and justice": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]-[44].
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: Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 at [9].
In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182, the Court of Appeal identified factors that might militate against the HCCC recovering all its costs as including a lack of success in obtaining findings against the practitioner, or the HCCC's failure to establish the particulars pleaded, or some oppressive conduct on the part of the HCCC in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing.
While the HCCC did not make out the entirety of the particulars as pleaded and we do not propose to make protective order in the terms the HCCC proposed we do not see any basis for a departure from the general rule in this case.

Orders 1. Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (National Law), the Respondent is reprimanded. 2. Pursuant to s 149A(1)(b) and (c) and s 149A(3), the following conditions are imposed on the Respondent's registration when she is registered: 1. The Respondent is to attend for ongoing counselling by a psychologist for a period of at least 12 months. The frequency of that counselling is to be determined by the psychologist; 2. The Respondent is subject to mentoring in accordance with the Nursing and Midwifery Council of NSW (Council) Mentor Guidelines for a period of 12 months. 1. The Council is the appropriate review body to review these conditions. 2. Under clause 13 of Schedule 5D of the National Law, the Respondent is to pay the HCCC's costs as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2023

Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Emma McCallum (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) B Haider, Nursing and Midwives' Association (Respondent) File Number(s): 2023/00201808 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act) the disclosure of the names of the persons listed in the Annexure to the Complaint (Persons A - H) is prohibited.

Health Care Complaints Commission v McCallum

At a glance

Court

Decision date

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Judgment (23 paragraphs)

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Legislation Cited (2)

Cases Cited (36)