Health Care Complaints Commission v Morris

Material relied upon by the Commission

1. The Commission relied upon: 1. An affidavit of Ms Maria Wallis, the legal officer of the Commission with carriage of the application, sworn on 1 September 2022 (Exhibit A1); 2. A bundle of documents provided to the Tribunal on 24 August 2022 comprising 332 pages (Exhibit A2); 3. An additional bundle of documents provided to the Tribunal on 29 August 2022 comprising a further 95 pages (Exhibit A3); and 4. Written submissions dated 1 September 2022.
2. The Respondent did not file any materials in relation to the Application. In a letter dated 18 July 2022 from the NSW Nurses and Midwives' Association to the Commission they stated: This Association has received instructions from Ms Fiona Morris to communicate to the Health Care Complaints Commission that she does not intend to participate in the proceedings brought against her in the NSW Civil and Administrative Tribunal. Ms Morris has indicated that she has made this decision based on consideration of her health and well-being and is aware that proceedings may go ahead in her absence that may include adverse findings and orders against her and which may include an order for costs.
3. In an email dated 8 August 2022 from Ms Morris to Ms Wallis, Ms Morris further stated: …I will not be participating in these proceedings further. I have made this decision because I do not intend to return to nursing and also on the basis of medical advice that I have received from my treating practitioner about the real potential for these proceedings to aggravate my medical condition.
4. Nevertheless, as a matter of procedural fairness, the Tribunal made an order that the Commission's written submissions be served on the Respondent and a further order that the Respondent provide to the Commission and the Tribunal any submissions that she may wish to make in reply by 15 September 2022.
5. By email dated 14 September 2022 the Respondent advised that she did not wish to provide any submissions in reply.

Relevant Legislation

1. It is convenient to set out below those provisions of the National Law relevant to this application.
2. Section 3 of the National Law provides, relevantly: 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; … (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 … (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; … (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.
3. 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.
4. 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.
5. Section 130 of the National Law states 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. … (3) In this section - relevant event means - (a) in relation to a registered health practitioner - (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or …
6. 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 - … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
7. 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. …
8. 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.
9. Section 149C, which is an additional provision for NSW, (which is in the same Subdivision as s 149) provides: 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 - … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or …
10. Section 149C(4) sets out the Tribunal's powers in respect of practitioners who are no longer registered as follows: (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.
11. Section 149C(5) relates to prohibition orders and provides: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
12. Section 149C(5A) extends the power of the Tribunal to make a prohibition order under subsection (5) to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered.

Facts

1. The following facts which emerge from the evidence which has been filed by the Commission are found by us to be proved to the requisite civil standard.
2. In 2013 the Respondent completed a Bachelor of Nursing Degree in Scotland and between 2013 and 2016 worked as a registered nurse in Scotland in a number of public and private health care settings including in a dementia care home and an infirmary for elderly patients.
3. The Respondent was first registered as a registered nurse in NSW on 16 May 2016.
4. In February 2017 the Respondent started working as a registered nurse at a not-for-profit cancer hospital, Chris O'Brien Life House ("COBLH").
5. During her employment at COBLH over a period of approximately three years, the Respondent told her colleagues that she had been diagnosed with osteosarcoma cancer in the past, that her cancer had returned, that she was undergoing cancer treatment and that her cancer had become terminal, none of which was true.
6. The lies she told in this regard were repeated on many occasions and were elaborate in nature. For example: 1. From November 2017, she told one colleague (another registered nurse, herself a cancer survivor) that her osteosarcoma had returned and that she was taking oral immunotherapy to shrink the tumour prior to surgery and then sent her numerous messages over a period of time updating her as to her condition including that in December 2017 she required lung surgery to remove 18 metastases, in April 2018 that she was undergoing chemotherapy and radiation and in November 2018 tumours had doubled in size and due to the nature of her cancer, she may not be here in a couple of months according to her doctor; 2. From April 2019, she told a second colleague (a Senior Radiation Therapist) that she was to undergo chemotherapy and radiation therapy at Prince of Wales hospital for spinal cord metastasis and then sent her further messages over a period of approximately a year updating her as to her condition including sending scan images and asking her to look at them and referred to receiving care through a hospice leading her colleague to believe that the Respondent was suffering from a terminal illness and her death was likely imminent; 3. In mid 2019 in the work area she said to the Director of Clinical Services and other staff members present that she planned to go to Scotland to "say her goodbyes"; 4. The Respondent created a Facebook Messenger chat, added her colleagues and posted various health updates about her cancer, for example: 1. She posted numerous photos depicting herself in hospital connected to medical apparatus alleging to be receiving treatment for health conditions including cancer; 2. She posted messages and photographs suggesting she was trialling different chemotherapy pills; 3. She posted on 28 June 2019 "I should probably be honest and let you know things really aren't good. The cancer is trying it's best to take hold and has grown in my back, I'm at increased risk of loosing [sic] mobility so trying to do as much as I can while I still have that independence but yesterday found out that the lungs are in a bit of mess and my airway is becoming blocked. Since the tumours aren't going anywhere anytime fast this puts me in a really dire situation prognosis wise and I unfortunately don't have much time left"; 4. She posted on 4-9 October 2019 (during a hospital admission for meningitis) several pictures of herself in hospital and posts including the words "my cancer" and "back in oncology ward". 1. During her employment at COBLH, the Respondent posted messages in the name of Fiona Morris (but purporting to be from her husband), for example: 1. On 19 October 2019 "Spinal tumours compressing the cord news has floored her. That's why she has no mobility just now. She gets over one obstacle and hit with another. Because of spinal mass she has build-up of fluid in her ventricles of brain also, so they need to relieve the pressure on the brain which is possibly why she's been in and out of comas last few days. The spinal tumours can cause that but also the meningitis, so she's had a double whammy"; 2. On 20 October 2019 "Sorry to let you all know Fiona has gone off again. Her brain is under a lot of stress and pressure and until surgery tomorrow she remains unstable but we are back to living in the present and we need to get her conscious again." 3. On 22 October 2019 "Fee took another bad turn early afternoon and still in a critical condition. Could be post surgery swelling or caused from tumour compressing on brain stem. She isn't stable enough for tests. She has gone from coma to vegetable state in that she's opened her eyes but not responsive to any stimuli. This has been the hardest few weeks for us all so just bear with us." 4. On 23 October 2019 that she had palliative care consultations; 5. On 24 October 2019 that she underwent emergency surgery to insert a shunt in her brain; and 6. posted a "bucket list" of 37 things she wanted to complete prior to passing away from her cancer.
7. Her colleagues were concerned about the Respondent's terminal illness and offered both financial and emotional support during and after work hours.
8. The Respondent organised a work cake bake sale to fundraise for the "Fiona Morris HOPE fund" a charity that the Respondent had set up to raise funds for research into osteosarcoma, HOPE standing for Helping Osteosarcoma Patients Everywhere. The Respondent's colleagues contributed over $1000 which funds were donated to that fund, although the Respondent did not personally benefit financially from the funds raised.
9. Her colleagues also raised the issue with COBLH's HR department. COBLH met with the Respondent during which meeting she confirmed that she was suffering from osteosarcoma. As a result of those concerns and in the belief that the Respondent was terminally ill with only months to live and, therefore, unfit to care for patients COBLH offered to help treat her cancer, an offer which she declined. COBLH retained an additional registered nurse who was required on days when the Respondent was absent on sick leave at a total cost of approximately $16,000. COBLH also granted the Respondent an additional 42 days sick leave above her sick leave entitlement to the same approximate value.
10. In May 2020 the Respondent told colleagues that her cancer was terminal and that she was being admitted to a hospice.
11. In late May 2020, the Respondent was caught lying when she answered the door at home to a colleague's daughter when she had told colleagues she was in hospital for treatment.
12. On 1 June 2020, the Respondent admitted to the HR Manager that her osteosarcoma was a fabrication.
13. On 5 June 2020 a complaint was submitted by the Director of Clinical Services at COBLH to the Australian Health Practitioner Regulation Agency (AHPRA) and on 25 June 2020 her employment at COBLH ended. The complaint notes that staff affected by the Respondent's deception were requiring considerable counselling.
14. On 29 June 2020 the Respondent started working as a house manager in charge of other nurses at Wesley Mission, an organisation caring for children with disabilities, however at that time there were no residents.
15. On 31 August 2020 the Nursing and Midwifery Council of New South Wales (Council) conducted an urgent hearing under s 150 of the National Law. The Respondent received assistance from the Nurses and Midwives Association before that hearing and made submissions to the Council. The Council determined to impose conditions, including as to supervision, on the Respondent's registration.
16. As part of her submissions to the Council, the Respondent included a letter dated 23 August 2020 which stated: Firstly, I would like to express my sincere remorse and apologise for my behaviour towards my colleagues.
17. The letter went on to explain that the Respondent had experienced trauma in her childhood including the loss of her mother to cancer at a young age and that as a way of getting love and attention as a child she created a "false self" as the only time she felt love and attention from her father was when she was unwell. She explained that it had become integrated into her thought processes that she needed to be unwell to feel cared for, loved or accepted. She admitted that she had brought her work colleagues into her stories and said that, with the benefit of hindsight, she realised that in doing so she had caused them a great deal of hurt and distress which was never her intention. She acknowledged that she had hurt her friends, said she was sorry for her behaviour and that she had proactively taken steps to get the help she needs. She explained that before emigrating to Australia she had a lot of stress and she had started making things up again as her coping mechanism and her normal way of dealing with stress. She said that she had never and would never let what was happening affect the level of care she gave or cause any harm to her patients. She stated that she continued to attend appointments with both her psychiatrist and psychologist on a regular basis and that they believed her behaviour was linked to the trauma she went through in her past. She said: I have learned a lot of very hard lessons throughout the last few weeks and can offer my assurances that this will never happen again. I sincerely wish I could repair the damage that this has caused for my friends and family but I know I cannot.
18. As her employer could not meet the supervision requirements imposed by the conditions imposed on her registration, her employment at Wesley Mission ended on 8 September 2020. (Her current employment status is unknown but it appears that she remained unemployed until approximately January 2021 when she gained employment as an administrative assistant to a funeral director.)
19. On 15 October 2020 the Respondent was charged with three criminal offences of dishonestly obtain financial advantage or cause disadvantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). These offences each bore a maximum penalty of 10 years imprisonment. One of those charges (Sequence 2) was withdrawn in 2021.
20. By letter dated 11 December 2020 in response to the Commission's request for information as to whether the Respondent had notified AHPRA in relation to a relevant event under s 130 of the National Law (namely any charges or convictions that attract imprisonment of 12 months or more) in the last 12 months, AHPRA advised: 1. On 25 April 2020, Mrs Morris submitted online application (07261383) to Ahpra for annual renewal of her registration as a registered nurse. On that date, the online application form contained the following questions: "Since your last declaration to Ahpra, has there been any change to your criminal history in Australia that you have not declared to Ahpra?" "Since your last declaration to Ahpra, has there been any change to your criminal history in one or more countries other than Australia that you have not declared to Ahpra?" On both occasions, Mrs Morris answered "no" to those questions. 2. We were unable to find any further documents to suggest that Mrs Morris provided Ahpra with written notice of any charges or convictions in the last 12 months.
21. On 21 December 2020, having become aware of the criminal charges which had been laid against the Respondent, further proceedings were conducted under section 150C of the National Law. Mrs Morris appeared at that hearing again represented by the New South Wales Nurses and Midwives Association. The Council determined to suspend Mrs Morris' registration. During the course of that hearing Mrs Morris was asked if she had informed the Council or AHPRA of the criminal charges which had been laid against her. She told the hearing that she believed they knew police were investigating and that she was told by police that they were corresponding with Council.
22. On 24 August 2021 the Respondent entered a plea of guilty and was convicted of the following two offences (counts 1 and 3) and sentenced to a community corrections order: 1. count 1: dishonestly obtain financial advantage by deception contrary to section 192E(1)(b) Crimes Act 1900 (NSW) in that between February 2017 and June 2020 at Chris O'Brien Life House in the State of New South Wales the Respondent, by deception, that is by claiming to suffer from cancer to obtain additional sick leave dishonestly obtained a financial advantage to wit $16,206 in sick leave pay which she would not have otherwise been entitled to (the first offence); and 2. count 3: dishonestly obtain financial advantage by deception contrary to section 192E(1)(b) Crimes Act 1900 (NSW) in that between February 2017 and June 2020 the Respondent at Chris O'Brien Life House in the State of New South Wales, by deception, that is by claiming to suffer from cancer caused a financial disadvantage to Chris O'Brien Life House to wit $16,206 to employ an additional nurse to ensure safe patient care continued while she was away from her role claiming to be ill with cancer (the second offence).
23. The Respondent has repaid COBLH the amount of $16,206.

Medical evidence

1. Prior to mid 2020, the Respondent had not had any mental health treatments.
2. Since admitting to her deception in June 2020 the Respondent has seen a number of different psychologists and psychiatrists.
3. On 2 June 2020 the Respondent's GP referred her to a registered psychologist, Ms Sanela Mizdrak who she saw on three occasions. She was then referred to a different psychologist, Ms Christina D'Arcy in July 2020 because it was difficult to schedule appointments which fitted with her then work commitments. As at January 2021 the Respondent had attended 12 sessions with Ms D'Arcy.
4. The Respondent was also referred to a psychiatrist, Dr Devina Singh. In January 2021 she was then referred to a different psychiatrist, Dr Michael Armstrong, as Dr Singh had ceased to practice. The most recent report prepared by Dr Armstrong in the materials before the Tribunal is a report dated 23 January 2022. In that report he notes that as at that date he had carried out nearly 40 therapeutic sessions with the Respondent. By letter dated 31 August 2022 Dr Armstrong confirmed that the Respondent remains under his care.
5. The Respondent also saw Dr Adrian Keller in January 2021 who was asked by the solicitors representing her in the criminal proceedings to provide a forensic psychiatry report.
6. The Council also commissioned a psychiatric assessment of the Respondent from Dr Kipling Walker which was provided by way of report dated 30 November 2020 after an online interview with the Respondent conducted for 52 minutes in October 2020.
7. The Respondent's personal history as related by her to those treating her has been in similar terms and is summarised as follows. The Respondent reported a traumatic childhood. The family faced financial issues. As a result of that and her mother's ill health she and her parents moved to a small town when she was very young but her older siblings remained behind to continue their lives. Her mother was diagnosed with breast cancer when the Respondent was 2 and a half years old and passed away when she was approximately 8 years old. She experienced significant bullying after her mother's death from classmates at school eventually requiring her to change schools. She reported that at the time when she most needed support from her father, he struggled to be there for her and she could not talk to him about her difficulties. He was extremely volatile and was drinking heavily at the time. The Respondent admitted to fabricating lies or "making up stories" from a very early age to protect herself or absolve herself of certain obligations or to gain "more love and attention". She reported to both Dr Armstrong and Dr Keller a number of other instances where she had concocted stories, including about having an illness, from a young age through to her time as a nurse in Scotland.
8. According to Dr Armstrong's January 2022 report, the Respondent admitted that: 1. aged 26, while studying nursing, she concocted a story and told her husband that she had a tumour in her leg which story spread to other family members, her university friends and pipe band friends, she set up a justgiving.com page which received donations of over 20,000 GBP for the Bone Cancer Research Trust; 2. aged 27, she presented to her GP in Scotland "made out I was in excruciating pain", was taken by ambulance to hospital, had extensive inpatient investigations, cut herself with a razor to put blood in her urine, hoping for longer hospital stay and told doctors she had osteosarcoma; 3. a few months later, she bought crutches online and took them to university "pretending I couldn't walk properly. Did have a sore knee, but made out it was worse than it was, GP referred to specialist"; 4. in 2013, she had an arthroscopy on her knee but told friends she was going into hospital "to have a tumour removed" and burnt herself with an iron; 5. she exaggerated her knee symptoms "I made out I couldn't weight bear" so was referred for physiotherapy; 6. during her hospital nursing placement in Scotland, she developed a swollen area at the top of her leg and told the nursing team and her husband that she was scared the cancer was back; 7. in 2014, during her first graduate nursing position in Scotland, she had flu symptoms but told colleagues it was "mononucleosis"; 8. in 2018, when she had a breast lump detected at Prince of Wales Hospital which "wasn't anything sinister. I told them I'd had osteosarcoma, and my mother had breast cancer, so they sent me for genetic testing".
9. In Dr Armstrong's opinion in his report dated 18 August 2021 and updated by his report dated 23 January 2022, the Respondent suffers from a disorder known as Factitious Disorder (formerly known as Munchausen Syndrome) as well as Dissociative Amnesia, Persistent Depressive Disorder and Dependent Personality Disorder. Factitious Disorder involves falsification of physical or psychological signs or symptoms, or induction of injury or disease associated with identified deception.
10. Dr Keller in his report dated 25 January 2021 also concluded that the Respondent suffered from Factitious Disorder and Persistent depressive disorder. Dr Keller noted: [The Respondent] appeared remorseful and frequently expressed regret and shame for her actions. She appeared to accept rather than deny her behaviour and she avowed a need to change her behaviour.
11. He concluded that in his opinion "Ms Morris' mental illness may be amenable to treatment" however in his view in terms of the nature and frequency of treatment "it is likely to be required for an extended period, likely to be several years in duration".
12. Dr Walker's diagnosis made in November 2020 was that the Respondent suffered from Dysthymic disorder (persistent depressive disorder), generalised anxiety disorder and severe personality disorder, borderline pattern. He did not diagnose the Respondent as having Factitious Disorder.
13. The Commission asked the Tribunal if they had any questions for Dr Walker who had made himself available for the hearing. However they advised that Dr Walker had not seen the Respondent since providing this report so the Tribunal did not consider that he could assist us further.
14. Dr Armstrong's 23 January 2022 report, after noting that he did not agree with Dr Walker's diagnosis, also stated: My actual experience of treatment with Mrs Morris is that she remains very committed to therapy: she's attended reliably over the whole period since I first met her. She remains highly responsive to trauma informed therapeutic approaches. … The improvements in Mrs Morris' functioning noted in my report… continue. I consider that her Factitious Disorder has consistently been in remission during the past year. … After carrying out nearly 40 therapeutic sessions with Mrs Morris, I am optimistic that she will continue to experience further important, enduring changes in her functioning, quite probably including reduction in dependent personality features to a diagnostically subthreshold level. … I have formed the view that Mrs Morris, despite her emotional difficulties, has been a very capable, determined and proactive person, passionately committed to nursing.
15. The Commission does not make a complaint of impairment and has therefore not sought to obtain an updated psychiatric assessment of the Respondent.
16. In the circumstances it is neither necessary or possible for the Tribunal to make a finding as to whether the Respondent did or does suffer from Factitious Disorder.

Complaints - consideration

1. The Respondent did not appear at the hearing of these proceedings and was aware that the proceedings may go ahead in her absence and that adverse findings and orders may be made against her.
2. She has not, however, admitted the Complaints in writing to the Tribunal so that 165H of the National Law does not apply and the Tribunal must conduct an inquiry into the Complaints.
3. The Commission 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; 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].

Complaint One

1. Complaint One is that, pursuant to s 144(a) of the National Law, the Respondent has been convicted of criminal offences in New South Wales.
2. In evidence before the Tribunal are copies of two Certificates of Conviction issued by the Registrar of the Local Court of NSW at Newtown on 7 October 2021 which certify that on 24 August 2021 the Respondent was convicted of the first offence and the second offence.
3. We find that the subject matter of Complaint One has been proved.

Complaint Two

1. Complaint Two is that the Respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law in that she has contravened s 130(1) of the National Law by failing to notify the National Board within seven days of being charged and convicted of a criminal offence.
2. Section 139B(1)(b) of the National Law provides that unsatisfactory professional conduct of a registered health practitioner includes a "contravention by the practitioner (whether by act or omission) of a provision of this Law".
3. Section 130 of the National Law stipulates that registered health practitioners must, within seven days after becoming aware that a relevant event has occurred in relation to the practitioner, give the National Board written notice of the event. A relevant event in relation to a practitioner includes that the practitioner is charged with an offence punishable by 12 months imprisonment or more. AHPRA receives notifications for National Boards under the National Law.
4. Section 192E(1)(b) Crimes Act 1900 (NSW) relevantly provides that: "A person who, by any deception, dishonestly - … (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty - Imprisonment for 10 years.
5. The evidence before the Tribunal is that: 1. As at 15 October 2020 the Respondent was registered as a registered nurse; 2. On that date she was charged with three offences under s 192E(1)(b) of the Crimes Act each of which carried a maximum penalty of 10 years imprisonment; 3. One of those charges was withdrawn but this was not until 2021; 4. AHPRA has been unable to find any documents to suggest that the Respondent provided AHPRA with written notice of any charges in the 12 month period up to 11 December 2020 and no record of the Respondent notifying AHPRA of any relevant events between 11 December 2020 and 26 October 2021; 5. During the course of the s 150C hearing Mrs Morris was asked if she had informed the Council or AHPRA of the criminal charges which had been laid against her. She did not suggest that she had done so and told the hearing that she believed they knew police were investigating and that she was told by police that they were corresponding with Council.
6. A practitioner's awareness of their reporting requirements is not relevant to a breach of it: Health Care Complaints Commission v Kaye [2022] NSWCATOD 24 at [125].
7. We also note that the Code of Conduct for Nurses states that: "It is important that nurses are aware of their obligations under the National Law, including reporting requirements and meeting registration standards. Nurses must (a) abide by any reporting obligations under the National Law and other relevant legislation. Please refer to sections …130 …of the National Law … (e) inform AHPRA of charges, pleas and convictions relating to criminal offences (see the NMBA Registration standard: Criminal history)."
8. We find that the Respondent did not notify and contravened s 130 of the National Law in failing to notify AHPRA within seven days that she had been charged with three offences under s 192E(1)(b) of the Crimes Act.
9. The Complaint as drafted also complains that the Respondent did not notify the National Board of her conviction. However, the particulars of that aspect of the Complaint were withdrawn and we did not understand that aspect of the Complaint to be pressed. We do not find any contravention of s 130 of the National Law in that regard.
10. As the contravention by the Respondent of a provision of the National Law has been established, it follows that we must find that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law. The Tribunal has no discretion in that regard, even if the Respondent believed that she had no need to do so as she understood the police were informing the Council. As the Tribunal said in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [27]: In the present case, the contravention by the practitioner of a provision of the National Law has been established as a matter of fact. The section designates that contravention as unsatisfactory professional conduct. The Tribunal has no discretion, notwithstanding the fact that we accept that the practitioner contravened his reporting obligations under the National Law as a result of being given the wrong legal advice.
11. That this is the case recognises the importance of complying with the National Law. As the Tribunal stated in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [190]: These provisions are part of the protective architecture of the National Law. It is the compliance by practitioners with these provisions that allow regulatory authorities to decide whether a health practitioner's criminal history is relevant to the practise of their profession and thus ensure that only those health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.

Appropriate orders: cancellation and disqualification

1. The subject matter of the Complaints having been proved as set out above, it falls then to determine whether the Tribunal should exercise its disciplinary powers.
2. As the Respondent is no longer registered, it is first necessary for us to 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 specified period or until specified conditions have been complied with.

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

1. Section 149C(1)(c) provides that the Tribunal may 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.
2. Accordingly the question we must determine is whether the circumstances of the first and second offences render the Respondent unfit in the public interest to practise the practitioner's profession.

Unfit in the public interest to practise

1. 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.
2. 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.
3. 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].
4. "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.
5. 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 Limboro 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

1. In our view the circumstances of the offences do render the Respondent unfit in the public interest to practise as a registered nurse.
2. It is not suggested by the Commission that the Respondent was not a competent nurse. However, it is her egregious dishonesty which makes her unfit, in our view, in the public interest to practise as a registered nurse.
3. It is relevant to note that the Code of Conduct for Nurses provides, relevantly: Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must: … c. not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration… … Positive professional relationships are built on effective communication that is respectful, kind, compassionate and honest. … It is necessary to be honest and transparent with people. To ensure there is no perception of actual or personal gain for the nurse, nurses must: … c. not accept, encourage or manipulate people to give, lend, or bequeath money or gifts that will benefit a nurse directly or indirectly … e. not influence people or their families to make donations, and where people seek to make a donation refer to the local policy.
4. It is a fundamental requirement of being a registered nurse that one is scrupulously honest in their dealings with their work colleagues and patients.
5. A health professional who cannot be trusted to tell the truth presents a substantial risk to the public in a health services setting. Honesty is essential for health professionals because covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions because such behaviour may pose a risk to the safety of patients: Health Care Complaints Commissions v Picones [2018] NSWCATOD 56 at [104] - [105].
6. As the Tribunal noted in Health Care Commission v Hutchinson [2014] NSWCATOD 151 at [38], accepting the Commission's submissions in this regard: Any collegiate work environment operates on trust; a busy and stressful work environment such as a hospital or other health care facility, where weighty responsibilities are discharged by its workers, particular so. Nurses and other healthcare workers are entitled to assume that they do not run the risk of becoming a victim of fraud, when they befriend a co-worker and/or share personal details of theirs with that co-worker.
7. The offences occurred over a lengthy period of time and it was only when the Respondent was caught out that she admitted to her dishonesty. She caused significant distress to her colleagues and significant financial disadvantage to her employer who had shown her compassion.
8. We believe it would imperil the public's ability to entrust their care to the nursing profession if the Respondent were permitted to continue to practise as a registered nurse.
9. In her submission to Council, the Respondent did indicate that she understood the impact her actions had had on her colleagues and expressed her remorse. Dr Keller also noted in his report that the Respondent appeared remorseful and expressed regret and shame for her actions.
10. The Respondent has explained that she lied about having cancer to attract sympathy having suffered significant childhood trauma and due to her suffering, according to her doctors, Factitious Disorder.
11. There is evidence that the Respondent has accepted the need for treatment and reliably attended for a significant number of treatment sessions with her psychiatrist. The latest report available from Dr Armstrong reports that, in his view, she had, at least at that time, responded well to treatment and that, at that time, her Factitious Disorder was in remission and he expected further improvements.
12. However, there are differing views expressed by the various psychiatrists who have assessed her as to the Respondent's medical condition and the length of time which may be required for her recovery.
13. Unfortunately, the Respondent has not provided the Tribunal with any more current material so we do not have any evidence as to her medical condition currently, nor do we have any evidence as to whether the Respondent has engaged in any further deceptive behaviour since. As such, there is insufficient evidence to assure the Tribunal that the Respondent, to the extent that her deception was a result of Factitious Disorder (which we are not required and are unable on the evidence before us to find) or otherwise, is sufficiently rehabilitated that she would not be likely to engage in conduct of a similar nature in future.
14. We find that the circumstances of the offences render the Respondent unfit in the public interest, where the health and safety of the public are the paramount consideration, to practise as a registered nurse.
15. The question then is whether, if the Respondent was still registered, we would have cancelled her registration.

Disciplinary orders - principles

1. 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.
2. The purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. However, that is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31].
3. 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.
4. 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.
5. 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..."

Cancellation and disqualification - conclusion

1. In the circumstances, if the Respondent were still registered as a nurse we would have cancelled her registration pursuant to s 149C(1)(c) of the National Law.
2. We are satisfied that it would have been necessary and appropriate to make an order cancelling her registration to publicly condemn the Respondent's conduct, to act as a specific and general deterrent, to uphold the standards of the nursing profession and to preserve public confidence in the profession.
3. We also consider that the Respondent should be disqualified from being registered for a period of time. While we consider that the Respondent is presently unfit to practise, we recognise that she may, in time, be able to demonstrate that she has reformed, that her medical conditions have been appropriately managed and that she can be trusted to act honestly in her dealings with her colleagues and patients.
4. The Respondent's registration was suspended in December 2020 and surrendered in 2022. While the Respondent has indicated that it is not her intention to practise as a nurse again, she may wish to reconsider that decision in the future. Given the differing opinions both as to her condition and the extent of treatment she may require and noting that Dr Keller's opinion in January 2021 was that treatment would likely be required for "several years", we consider that a period of 2 years before the Respondent could be registered is appropriate.

Prohibition order

1. The Commission also seeks an order prohibiting the Respondent from providing any health service as defined in s 4 of the Health Care Complaints Act until such time as the Respondent is re-registered as a registered nurse.
2. Section 4 of the Health Care Complaints Act defines health service as follows: health service includes the following services, whether provided as public or private services - (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act.

S 149C(5): Is the Tribunal satisfied that the Respondent poses a substantial risk to the health of members of the public

1. By virtue of ss 149C(5) and 149C(5A) where the Tribunal has decided that it would have cancelled a person's registration if they were still registered, it may also make a prohibition order if it is satisfied that the person poses a substantial risk to the health of members of the public.

Substantial risk to the health of members of the public

1. The phrase "substantial risk" is not defined in the National Law but has been considered by the Tribunal in a number of decisions as a risk that is material, and real or apparent on the evidence, not without substance or speculative: Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 at [139], Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96], McAlpine at [89] and the authorities there referred to.
2. The question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services: Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [19].
3. The Commission submits that there is a risk that the Respondent may seek to work in health services and may revert to deceitful conduct. The Commission submits: 1. there is no evidence about the Respondent's current employment or future employment plans; 2. the Respondent's name was not placed on the NSW Health Service Check Register (because she was working at a private facility) so she could seek public or private employment; 3. although the Respondent has indicated she does not propose to practice nursing again in Australia, her intentions may change; 4. the Respondent has previously worked in a dementia care home, an infirmary for elderly patients and a in number of public and private health care settings in Scotland so she could seek similar work in Australia; 5. four days after her employment at COBLH ended, the Respondent started working as a therapeutic manager at Wesley Mission leading an intensive therapeutic care team for children with disabilities, in charge of other nurses.
4. The Commission submits that a health professional who cannot be trusted to tell the truth presents a substantial risk to the public (referring to the Picones decision referred to above) and that there is insufficient evidence to assure the Tribunal that the Respondent's character is reformed.
5. The Commission submits that the Respondent has identified stress as being a trigger for her deception in the past and submits: 1. the Respondent may seek work in areas related to nursing (such as an assistant in nursing, case work, aged care, disability work, care work, youth work or drug and alcohol services) which would bring her in regular close contact with vulnerable and difficult patients; 2. given the stress inherent in such work, the practitioner could revert to her deceitful conduct and place patients and colleagues at risk; 3. the practitioner may seek work in any form of unregulated health service, such as the provision of personal or health care services in the community sector; 4. given that type of work takes place in the homes of patients, there is likely to be minimal or no on-site supervision to monitor the Respondent's stress and detect further deceitful conduct.
6. The Commission also submits that a prohibition order ensures that the protective purpose of a disqualification is not significantly undermined, because if the Respondent were permitted to provide health services as an assistant in nursing during the period when she was disqualified from being registered, it would substantially diminish the protective purpose of that order.
7. We accept that there is a risk that the Respondent may seek to work in health services. In any event, the question as to whether she poses a substantial risk is to be determined assuming she was involved in the provision of health services.
8. We do consider on the evidence before the Tribunal including as to her long history of deceitful behaviour and the differing medical opinions as to her medical diagnosis and the extent of treatment that she may require, there remains a real risk that she may revert to deceitful conduct.
9. If the Respondent did revert to her deceitful conduct in the provision of health services, particularly where she may be in contact with vulnerable patients, we consider that she would pose a substantial risk to the health of her patients and colleagues.
10. As already mentioned, a difficulty the Tribunal faces in this matter is the lack of more current evidence as to the Respondent's medical condition presently, whether her treatment is continuing and the progress she has made in the treatment she has had to date.
11. The Tribunal is entitled to draw inferences from the failure of a practitioner to attend the hearing and from their "silence": Health Care Complaints Commission v Chen (No 2) [2021] NSWCATOD 174 at [11] and the cases there referred to.
12. As referred to in Chen, in Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 326 the NSW Court of Appeal stated at [47]: "In Bowen-James [Bowen-James v Walton (NSWCA, 5 August 1991, unrep)], after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued: … we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts."
13. The Respondent's failure to participate in the proceedings and adduce evidence as to her medical condition, her more recent behaviour, her employment status and her proposed career path going forward leaves us with little choice other than to conclude that she currently poses a substantial risk to the health of members of the public.
14. We also agree that, if a prohibition order were not made in this case that would serve to undermine the disqualification order that the Tribunal proposes to make.
15. We note that the order as framed by the Commission seeks the prohibition order to extend until such time as the Respondent is re-registered as a registered nurse. The Respondent has indicated that she does not, at least presently, propose to seek re-registration. Accordingly, an order in these terms effectively would require her to do so even if she does not propose to practise as a nurse in order that she might engage in providing other health services. However, it is open to the Respondent to seek a review of the prohibition order under s 163A of the National Law and to seek an order ending or shortening the period of the prohibition order. As such, we are content to make the order in the form proposed. We note that, if the Respondent were to apply for a review of the prohibition order under s 163A, the appropriate review body would be the Council.

Costs

1. The Commission seeks an order that the Respondent pay its costs as agreed or assessed.
2. This is a costs jurisdiction, and ordinarily costs should follow the event. As stated in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44]: It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.
3. While there is a discretion not to award costs to the successful party it must nonetheless be exercised judicially "according to proper fixed principles and rules of reason and justice, not according to private opinion: Philipiah at [43]
4. 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: Brush at [9]
5. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 the Court of Appeal identified three factors that might militate against the Commission recovering all its costs namely: First, the Commission's lack of success in obtaining findings against the practitioner in respect of professional misconduct. Secondly, the Commission's failure to establish each of the particulars pleaded. Thirdly, oppressive conduct on the part of the Commission 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.
6. The Commission submits and, on the material before the Tribunal, we accept that there has been no disentitling conduct by the Commission in this case which would warrant a departure from the general rule.

Orders 1. Pursuant to section 149C(4)(a) of the National Law the NSW Civil and Administrative Tribunal decides that if the Respondent were still registered the NSW Civil and Administrative Tribunal would have cancelled her registration. 2. Pursuant to section 149C(4)(b) of the National Law the NSW Civil and Administrative Tribunal decides that the Respondent is disqualified from being registered as a registered nurse for 2 years. 3. Pursuant to section 149C(4)(c) of the National Law the National Board is required to record the fact that if the Respondent were still registered, the NSW Civil and Administrative Tribunal would have cancelled her registration in the National Register kept by the Board. 4. Under section 149C(5) and (5A) of the National Law the Respondent is prohibited from providing any health service as defined in section 4 of the Health Care Complaints Act 1993 (NSW) (Health Care Complaints Act) until such time as she is re-registered as a registered nurse. 5. The Nursing and Midwifery Council of New South Wales is the appropriate review body to review Order 4. 6. Under clause 13 of Schedule 5D of the National Law the Respondent is to pay the Commission'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: 18 October 2022