Health Care Complaints Commission v Ostendorf - [2015] NSWCATOD 137 - NSWCATOD 2015 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Ostendorf

[2015] NSWCATOD 137

NCAT Occupational|2015-07-22

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Source facts

Court

NCAT Occupational

Decision date

2015-07-22

Source

Original judgment source is linked above.

Judgment (36 paragraphs)

[1]

Solicitors: Health Care Complaints Commission (Applicant) File Number(s): 1520033

[2]

REASONS FOR DECISION

By Application for Disciplinary Findings and Orders dated 27 February 2015 the Health Care Complaints Commission (HCCC) seeks orders: 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law NSW No 86a (the National Law), that had the respondent Ms Ostendorf still been registered, the Tribunal would have cancelled her registration. 2. Pursuant to s 149C(4)(b) of the National Law, that had Ms Ostendorf still been registered, the Tribunal would have disqualified her from being registered in the health profession for a period of two years. 3. Pursuant to s 149C(4)(c) of the National Law, the Tribunal request that the Nursing and Midwifery Board of Australia (the Board) record in the National Register kept and maintained on behalf of that Board by the Australian Practitioner Regulation Agency (AHPRA) the fact that the Tribunal would have cancelled Ms Ostendorf's registration had she still been registered as at the date of this decision. 4. That Ms Ostendorf pay the HCCC's costs.
For the reasons that follow, the Tribunal has decided to make the following orders: 1. An order pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law NSW No 86a that had Ms Ostendorf still been registered, the Tribunal would have cancelled her registration. 2. An order pursuant to s 149C(4)(b) of the National Law, that had Ms Ostendorf still been registered, the Tribunal would have disqualified her from being registered in the health profession for a period of one year. 3. An order pursuant to s 149C(4)(c) of the National Law requiring the Board to record in the National Register kept and maintained on behalf of the Board by AHPRA that the Tribunal would have cancelled Ms Ostendorf's registration had she still been registered as at the date of this decision.

[3]

Preliminary

The matter was listed for hearing on 22 July 2015. Prior to the hearing the HCCC corresponded with Ms Ostendorf to determine whether or not she intended to participate at the directions hearings or in the hearing itself. Relevantly: 1. On 12 April 2015 Ms Ostendorf indicated to the HCCC that she wanted to be deregistered and could not be involved in the proceedings as she was currently undertaking project work in Mexico: see the affidavit of Ms Jaimee Dinihan sworn 30 June 2015 at par [6] and Annexure E. Annexure E is an email from Ms Ostendorf to Ms Dinihan dated 12 April 2015 and states: I Katrina Ostendorf wish to be deregistered from the Nurses Board in Australia! I am unable to be involved in this process as I'm currently in Mexico on a community service project! There is no cellphone reception and very little Internet access. 1. On 16 April 2015 Ms Ostendorf informed AHPRA that she wished to surrender her registration as a nurse: see Ms Dinihan's affidavit at par [8] and Annexure G. Annexure G is an email from Ms Ostendorf to AHPRA dated 16 April 2015 and states: I wish to voluntarily to surrender my nurses registration affective immediately 1. On 27 April 2015 Ms Ostendorf informed Ms Dinihan that she would not be participating at the hearing: see Ms Dinihan's affidavit at par [10] and Annexure H. Annexure H is an email from Ms Ostendorf to Ms Dinihan which states: Jaimee received your email. I'm still in Mexico. I will not be participating in these proceeds [sic] as I have started [sic] earlier. I had major side-effects from taking the drug Artane! It caused me to lose short-term memory! I do not have a drug [dependence] or mental impairment as soon as I was off Artane and had surgery for my eyes there have been no problems! I was on Valium until surgery as it was prescribed to control the muscle spasms! I take no drugs of dependence!! The absolute truth was it was the drug Artane that cause problems and not me! I don't know why u ask my attentions of re registering inu had already made up your mind to deregister permanently! Nothing I say matters as I have told the truth! The Aust registration board is there to help nurses! I am a responsible person and it saddens me that the health commission will attack a person with false allegations, plus call me a liar! But I stand by fact Artane cause my problems! I have had surgery and imperfectly health!
Ms Dinihan's affidavit also sets out the steps taken by her to provide Ms Ostendorf with the materials relied on by the HCCC in these proceedings, and confirms that Ms Ostendorf had received the materials.
Given the facts and matters set out in Ms Dinihan's affidavit, the Tribunal was satisfied that Ms Ostendorf had notice of the hearing and that it was appropriate for the Tribunal to proceed in her absence.

[4]

Procedural Background

On 4 June 2012 the the Nursing and Midwifery Council (the Council) received a notification from Ms Elizabeth Filmer, Nursing Administration, Belmont Hospital. Ms Filmer indicated that Ms Ostendorf had been demonstrating drug-seeking behaviour.
On 29 June 2012 the Notifications Committee resolved to: 1. Refer the matter to the Council. 2. Require Ms Ostendorf to attend a health assessment pursuant to s 145E of the National Law. 3. Reconsider the matter after receipt of the health assessment report. 4. Write to Ms Ostendorf providing a copy of the notification and request: 1. a copy of her CV; and 2. any relevant information or objective evidence about the issues of the identified in the notification
There was then a series of correspondence between the Council and Ms Ostendorf in the period 17 July 2012 to 30 August 2012.
On 30 August 2012 Ostendorf failed to attend for the health assessment which had been scheduled with Dr Marina Vamos, a consultant psychiatrist.
Following this, the Council then determined to hold an enquiry pursued to s 150 of the National Law.
In its reasons for decision of 28 September 2012, the Council delegates decided to impose a suspension on Ms Ostendorf's registration. The Council delegates resolved that the suspension be imposed under s 150(1)(a) of the National Law for the protection of the health or safety of any person or persons. The Council directed that the suspension must be complied with until the complaint has been disposed of, or the suspension was removed.
On 27 May 2013 and 3 June 2013 the HCCC informed Ms Ostendorf that the complaint was to be investigated and that it had determined that her conduct warranted investigation by it.
On 21 November 2013 the HCCC wrote to Ms Ostendorf informing her that it was at the end of its investigation about the complaint. It stated that the evidence indicated she had an impairment as defined in the National Law that detrimentally affects her and was likely to detrimentally affect her capacity to practice as a nurse. In view of this, the HCCC was proposing to refer the matter to the Director of Proceedings under s 39(1)(a) of the Health Care Complaints Act 1993 for determination whether to prosecute a complaint before a professional disciplinary body. The purpose of the letter was to inform Ms Ostendorf of the substance of the grounds of the proposed action and to provide her with the opportunity to make submissions under s 40 of the Health Care Complaints Act.
No response was received to the request to attend a health assessment.. On 3 February 2014 the HCCC wrote to Ms Ostendorf and informed her that it had been decided that the complaint against her regarding impairment would be referred to the Director of Proceedings for consideration of whether the matter should be heard before the Tribunal.
The next communication received by the HCCC from Ms Ostendorf was an email dated 29 October 2014. Ms Dinihan had written to Ms Ostendorf on 9 October 2014, asking Ms Ostendorf to confirm whether she was still living in California and to provide a contact address and phone number. In her response of 29 October 2014, Ms Ostendorf states that she had returned to working again in May 2014, having had a year off to fully recover after surgery. She states that her health was now excellent, and that she was now working as a health and safety adviser. She states that this was a two year contract, after which she wished to pursue a nursing career in education. She concludes by saying "my 14-year-old daughter wants to go to college in the US and my family is living in the US and Australia. It is important that I remain transportable, especially my nursing career. My nursing registration is very important to me, as I am a single mother".
On 27 February 2015 the HCCC filed a complaint with the Tribunal. The complaint appears in full in Attachment 1. In summary, the first complaint was that Ms Ostendorf has an impairment within the meaning of s 5 of the National Law. The second complaint was that Ms Ostendorf was not competent within the meaning of s 139(a) of the National Law in that she lacked the mental or physical capacity to practise as a nurse.

[5]

Evidence

The applicant's primary material consists of two volumes of documents relevantly which included (in summary): the complaints; certificates of registration status in respect of Ms Ostendorf; documents relating to a presentation at Belmont Hospital on 27 May 2012 by Ms Ostendorf; documents relating to the presentation Calvary Mater Hospital on 2 June 2012 by Ms Ostendorf; documents relating to a referral of Ms Ostendorf to the Lake Macquarie Community Mental Health team on 21 June 2012; correspondence between the parties; documents relating to a proposed action of the Council pursuant to s 150 of the National Law; Council's Reasons for decision dated 28 September 2012; and documents relating to drugs including Augmentin and Artane. The materials include statements of various witnesses including: 1. Dr Lewis Maclean, at the relevant time a locum medical officer with Belmont Hospital; 2. Ms Corey Rowntree, at the relevant time the Head of Student Services at Newcastle Grammar, a school attended by Ms Ostendorf's daughter. 3. Mr Rob Matthews, a registered nurse working at the Lake Macquarie Community Health Team. 4. Ms Christine Schiavon, also a registered nurse working at the Lake Macquarie Community Health Team. 5. Mr George Leipions, also a registered nurse working at the Lake Macquarie Community Health Team.
Also included in the two folders of materials were a medical report of Dr Fung, and five medico-legal reports of Dr Samuels, a consultant psychiatrist.
This material was admitted without objection as Exhibit 1 in the proceedings.
The following additional documents were tendered at the hearing and also admitted without objection: 1. Exhibit 2: a confirmation of registration status of Ms Ostendorf dated 25 June 2015. The information was extracted from the National Register of health practitioners and indicates that Ms Ostendorf's registration as a nurse had been suspended on 28 September 2012, and registration surrendered on 17 April 2015. 2. Exhibit 3: an evidentiary certificate pursuant to s 244A of the National Law in respect of Ms Ostendorf. 3. Exhibit 4: a bundle of file notes of officers of AHPRA recording communications with Ms Ostendorf from July to September 2012. 4. Exhibit 5: the affidavit of Ms Dinihan referred to above.
The Tribunal also had the benefit of oral evidence from Dr Samuels at the hearing. It is more appropriate to summarise his evidence in the section of these reasons that considers his written reports.
As Exhibits 1 to 5 were admitted without objection the Tribunal accordingly makes the following findings. We shall do so by reference to relevant categories of subject matter.

[6]

Initial registration and practice of Ms Ostendorf

On 4 July 1985 Ms Ostendorf was first registered as a nursing aide under the Nurses Registration Act 1953. At that time her name was Katrina Benison.
On 17 January 1991 Ms Ostendorf was registered as a registered nurse under the Nurses Registration Act 1953.
On 25 September 1991 Ms Ostendorf's registration as a nursing aide was deleted as a result of her not paying the annual fee.
The records held by the Board provide no details of Ms Ostendorf's registration status between her initial registration and 17 January 1991 and 16 January 1995.
Ms Ostendorf was registered as a nurse continuously for the following periods: 17 January 1995 to 31 January 1996, 5 February 1996 to 28 February 1999, 14 April 1999 to 30 April 2001, and from 22 June 2001 to 30 June 2010.
On 15 February 1999 the Department of Health made an order in accordance with cl 151(1) of the Poisons and Therapeutic Goods Regulation 1994 prohibiting Ms Ostendorf, until further notice, supplying or having possession of drugs of addiction.
On 16 February 1999 Ms Ostendorf admitted to falsifying multiple entries of the drug pethidine in the drug register at the John Hunter Hospital and self-administering the drug, and resigned from the John Hunter Hospital.
On 19 August 1999 the Impaired Nurses Panel of the Board placed 10 conditions on Ms Ostendorf's registration as a nurse including: 1. Her drug authority was to remain withdrawn. 2. She was not to self-administer any narcotic derivatives unless ordered by her treating practitioner. 3. She was to attend first thrice weekly urinalysis. 4. She was to establish a therapeutic relationship with a psychiatrist of her choice, and to provide regular cell progress reports to the Board. 5. To refrain from the practice of nursing until reviewed by the Board in approximately 6 months' time.
On 14 January 2000, these conditions were continued by the Impaired Nurses Panel of the Board. However, Ms Ostendorf was permitted to return practice as a nurse.
On 31 August 2000, these conditions were further continued by the Impaired Nurses Panel of the Board, save that the requirement for thrice weekly urinalysis was removed.
On 3 May 2001, a committee of the Board noted a report and endorsed the Impaired Nurses Panel recommendation to discharge Ms Ostendorf from a (not specified) program.
On 20 July 2001, the order of the Department of Health prohibiting Ms Ostendorf supplying or having possession of drugs of addition ceased to operate.

[8]

Presentation at Belmont Hospital on 27 May 2012

On 27 May 2012 at 23.38 hours Ms Ostendorf was brought to the Belmont District Hospital by ambulance. Ms Ostendorf: 1. Complained of lower and central abdominal pain. 2. Told the nursing staff in triage that she was a medical doctor. 3. Told Dr Lewis Maclean, the then locum medical officer, that she was a medical doctor and that she had been attempting to manage her condition at home with the help of colleague. She identified the colleague as a radiologist. 4. Told Dr Maclean said she was a doctor who worked on oil rigs and had no local practice. 5. Stated that her husband was an anaesthetist at Westmead Hospital. 6. Refused bedside testing with urinalysis. 7. Stated that her intention in presenting to the emergency department was to obtain analgesia for her severe pain, and she did not want any further medical treatment. 8. Requested intravenous or intramuscular injection of opioid medications (scheduled drugs of addiction), and was particularly focused on receiving pethidine. 9. Made requests for the intravenous opiates to be given to her to take home to administer herself. 10. Discharged herself without any analgesic tablets, having been offered and having refused oral Pandeione Forte or Endone tablets, only to return approximately 10 minutes later to request the Endone tablets.
Dr Maclean: 1. Thought Ms Ostendorf's request for intravenous opiates for self-administration was ethically and legally hazardous. Following a discussion with Ms Ostendorf, he became convinced he was not dealing with someone who had a genuine medical condition and told Ms Ostendorf he would not be acceding to her requests. He notes in his statement that pethidine is well-known for its euphoric and addictive properties. For that reason he does not use it in his practice. 2. Concluded that Ms Ostendorf's clinical appearance did not support her reported severe pain. He notes that she did not seem clinically intoxicated or have an impaired sensorium at the time of her presentation; nevertheless, her history was vague and meandering and lacked specifics. 3. Considered that the history given by Ms Ostendorf had discrepancies and knowledge gaps that would be uncharacteristic of a trained doctor. He also considered that Ms Ostendorf looked very well, and had no obvious examination findings which implied an active medical condition.
After Ms Ostendorf's discharge, Dr Maclean searched the AHPRA database for a medical practitioner of the same name and could not find any such person. He found a registered nurse by Ms Ostendorf's name living locally in Newcastle. As a consequence of this discovery Dr Maclean notified the Emergency Department Director the following day of what had occurred.

[9]

Events of June 2012

On 2 June 2012 at 02.55 hours Ms Ostendorf attended the Emergency Department of the Calvary Mater Hospital. She was examined by Dr Maryann Ferreux who diagnosed her with a urinary tract infection. Dr Ferreus does not recall any observations about Ms Ostendorf's mental state, appearance, behaviour, speech mood or recognition. Nor does she recall any drug-seeking behaviour.
Ms Corey Rowntree was the head of student services at Newcastle Grammar, and has known Ms Ostendorf and her daughter Yasmin since about 2009, when she first taught Yasmin. Until June 2012 she had not experienced any problems with Ms Ostendorf. This changed in about mid-June 2012 when she began to receive, what she describes as "unusual", text messages on her mobile phone from Ms Ostendorf. Ms Rowntree states the messages were received at odd hours and did not always makes sense.
Towards the end of June or early July 2012 Ms Rowntree visited her parents. Ms Ostendorf, a friend of her parents was present. Ms Rowntree's parents told her that Ms Ostendorf was "rambling and not quite making sense".
Ms Ostendorf later accompanied this Rowntree on a school excursion to Sydney. During the trip she observed Ms Ostendorf "talking non-stop for the entire journey. She was talking in riddles and was nonsensical. If I had not known better it appeared to me that Ms Ostendorf was drunk". She recalls that when they were in Sydney "she continued to act inappropriately by swearing, talking loudly, yelling at strangers and talking about sexual things. Her behaviour was embarrassing and I recall being so concerned contact the principal Mr Alan Green seeking advice on how to handle the situation".
Following the incident, Ms Ostendorf sent Ms Rowntree two emails. These emails were similar to earlier text messages and the content "was rambling and paranoid". As a result of these messages and behaviour Ms Rowntree became concerned about the mental health of Ms Ostendorf and alerted the local mental health team.
Ms Rowntree considers that this behaviour was out of character, and was unusual conduct which happened over a short period time.
Ms Rowntree provided two emails to the Tribunal. It will suffice to reproduce the contents of the first email, an email from Ms Ostendorf to Ms Rowntree dated 21 June 2012. The email states (punctuation, spelling and ellipses as in the original): First, Sorry, but just had enough of school. Now u can get mad. I played not coping, tired, needy, crazy, drinker just to find out who is a flipper (bad one). Was going to Sydney to have a good time. Walked past junction hotel and Ms Lizzy called me. Then just say a our sole had a go at me Mr heavy, told Mr to fight off loud enough for everyone to hear, Rolly didn't kick me out. Said he was having drinks with his trekking buddy and rubbish yas and I. Wonder who trekking buddy is………. Dropped bottles of wine and was going to leave school (I am thinking of it and seeking advice). Miss behaved to see if bad flipper, not sure but the wrong name was used to ask me to leave a venue. Trust is everything!!!! I profile people to put on ships 3.2 sec is my record. My family is nothing like I said, tell people what they won't to hear psych 101. I am a superhero, don't get stressed on any level. Hope u smart enough to interpret and don't insult my intelligence with we have people to help and worried. That's just so funny lol.
Ms Rowntree also states that according to the enrolment information at the school Ms Ostendorf listed her occupation as a lecturer for the Australian Red Cross. Ms Ostendorf had told her "over the years" that she had studied medicine in America and was a qualified doctor.
As noted, Ms Rowntree alerted the local mental health team. On 23 June 2012, Rob Matthews, a registered nurse working at the Lake Macquarie Community Health Team, had a telephone conversation with Ms Ostendorf which was approximately 30 minutes in duration. He states that the conversation he had with her was "odd", and he formed the opinion based on his experience as a mental health nurse that Ms Ostendorf was mentally unwell.
On 25 June 2012 Ms Christine Schiavon, a registered nurse working at the Lake Macquarie Community Health Team, attended Ms Ostendorf's home. She found Ms Ostendorf's mood to be elevated and that she was having paranoid and suspicious thoughts. She, together with another registered nurse, Nurse Robinson, formed the view that Ms Ostendorf would benefit from a consultation with a psychiatrist and a plan was made for her to attend the clinic for an appointment two days later. Ms Schiavon states that the clinical record for Ms Ostendorf indicates that she cancelled that appointment, stating that she would prefer to make arrangements through her GP.

[15]

Dr Samuels - report of 23 January 2013

Dr Samuels interviewed Ms Ostendorf on 23 January 2013. He says that she was well-presented, her affect reactive, her mood euthymic and that she was not anxious. She told him that the presentation at Belmont Hospital was "A one-off incident" and denied any memory of the events that occurred. She denied that she was "confused" at the time her presentation and that she was "hypoxic". When Dr Samuels pointed out to her that she was not hypoxic, as she had excellent oxygen saturation, Ms Ostendorf claimed to him that she was dehydrated and that this had had a "domino effect".
Dr Samuel states that it was difficult to give a definite opinion as to Ms Ostendorf's mental health, and could find no clear evidence of any clear-cut major depressive, affective or psychotic illness. He considered that: 1. Ms Ostendorf's presentation to Belmont Hospital certainly suggested that she was drug seeking. 2. He could not discount the possibility that the combination of Artane, antibiotics and the viral infection, did, in some way, lead to a confusional state, but says that her behaviours at Belmont Hospital sounded very purposeful and in keeping with the behaviour of someone attempting to acquire opioids. 3. There were some aspects of Ms Ostendorf's presentation which raised the possibility of some underlying personality dysfunction. 4. While he could not clearly define the presence of a psychiatric or psychological impairment, Dr Samuels "certainly" was left with some concerns in relation to Ms Ostendorf returning to a clinical role.
Dr Samuels thought it important to obtain corroborative information from specialists and doctors as to her presentations over the years and the medications prescribed and taken.
The Tribunal notes that Dr Samuels refers to a file note of Ms Kim Bryant, an officer of the Council, dated 22 November 2012. Ms Bryant contacted Ms Ostendorf to tell her that her suspension was going ahead. They had a conversation. Ms Bryant's file note states that her impression was that Ms Ostendorf's speech was slurring and that she showed some pressure of speech.

[16]

Dr Samuels - report of 7 February 2013

In preparing this report Dr Samuels had additional information before him including a letter from Ms June Graham, Deputy Executive Officer, Hunter Health, dated 17 February 1999. This letter indicated that Ms Ostendorf: 1. Submitted signed documentation authorising withdrawal of authority to possess were administered dangerous drugs. 2. Admitted falsifying multiple entries of the drug pethidine in the drug register at John Hunter Hospital and self administering the drug. 3. Resigned from John Hunter Hospital on 16 February 1999.
Various other reports and documents relating to Ms Ostendorf's use of pethidine were also made available to Dr Samuels.
In his report Dr Samuels: 1. Stated that it was concerning that Ms Ostendorf did not volunteer her prior involvement with the Council nor admit to any previous substance misuse issue to him 2. Considered that this raised issues in regard to Ms Ostendorf's veracity and character. 3. Thought it seemed clear that Ms Ostendorf had long-standing substance misuse problems which she tended to minimise and deny. 4. Considered Ms Ostendorf's drug seeking at Belmont Hospital to have been blatant and deliberate, as it included quite involved fabrication and attempts to intimidate staff into acceding to her demands. 5. States that Ms Ostendorf's behaviour when confronted was evasive and in keeping with behaviours she has displayed previously.
In light of the additional information, Dr Samuels considered that there was a pattern of lying, deception and manipulation and that the resume Ms Ostendorf presented to him ("Professional Assets") suggested that she had a tendency to embellish her level of skills, training and expertise. He states that the fact she presented to an emergency department claiming to be a doctor may simply reflect drug seeking behaviour, but it could also reflect a more widespread pattern of deceptive behaviour.
Dr Samuels expressed "grave concerns" about Ms Ostendorf's current abilities to practise as a registered nurse. He states that she should certainly have her Sch 4D and Sch 8 authorities removed (a reference to Sch 4D and Sch 8 of the Poisons List) and considered that they should not be reinstated for a prolonged period.
Dr Samuels states that he is left with serious concerns about Ms Ostendorf's character and considers that the behaviours that were brought to the attention of the Council raises questions in regard to her fitness and suitability to retain her nursing registration. He states that if Ms Ostendorf is to return to the practice of nursing she should be regarded as having an impairment on the basis of long-standing underlying substance abuse and likely personality disorder.
Dr Samuels wishes to see Ms Ostendorf's full medical records before making definitive recommendations as to conditions to be placed on Ms Ostendorf's right to practice, but set out a list of some eight conditions that should be implemented as a minimum.

[18]

Dr Samuels - report of 21 October 2013

Dr Samuels was asked by the HCCC to provide a further report in light of evidence that, after the incident at Belmont District Hospital on 28 May 2012, a referral was made to the Lake Macquarie Community Mental Health Team regarding concerns of Ms Ostendorf's mental stability after an incident at the daughter's school. The HCCC sought his opinion in relation to the following: 1. His opinion of the response from Dr Fluit that Ms Ostendorf could have an underlying mental health condition exacerbated by Artane; and Dr Fluit's opinion that the adverse reactions suffered by Ms Ostendorf were recognised side-effects of Artane. 2. Whether Ms Ostendorf had an impairment, as defined by the National Law affecting her ability to safely practise as a registered nurse. If so to comment on the ways in which and the extent to which is Ostendorf's impairment detrimentally affects was likely to affect her capacity to practise nursing, and to provide an opinion on the likely duration of her impairment. 3. Whether Ms Ostendorf was confident, as defined by the National Law to practise as a registered nurse.
The records provided included the medical records from the Hunter New England Local Health District. These records reveal the following: 1. A mental health triage form of 21 June 2012, referring to the incident where Ms Ostendorf accompanied her daughter's school to Sydney, which states that the mental state impression recorded for Ms Ostendorf was "quite erratic behaviour, rambling speech, talks incessantly, talks in riddles and rhymes, inappropriate behaviour and sexual content to conversation". 2. When Ms Ostendorf presented to the Calvary Mater Emergency Department in May 2012 complaining of pain: 1. she told Dr Susan Clark that she was "a doctor". 2. the staff were unable to understand her, and she also stated that she was a doctor. 1. On 22 June 2012 there were various attempts made to visit Ms Ostendorf at home. The mental health team contacted Dr Fluit, who stated that Ms Ostendorf's current issues included delusions, and that she had intruded on him while he had seen another patient. 2. When Ms Ostendorf was seen on 23 June 2012 her mental state was "rambling", and that she declined the home visit. 3. Contact was again made with Ms Ostendorf on 24 June 2012, and she was noted to be pressured in speech with circumstantial content, and gave a rambling and convoluted history of her health problems. 4. Assessment occurred on 25 June 2012, at which Ms Ostendorf talked about "cover-ups", "suicide" and children using Facebook to "wolf pack" things and wanting to kill themselves. She had to be constantly redirected to the topic and much of the information was noted to be illogical. At this time, the risk assessment indicated risks in various domains including the fact that the mental health team suspected Ms Ostendorf had a major mental illness or disorder. Provisional diagnosis was deferred but it was noted that she had elevated mood with pressured speech and paranoid thoughts. 5. On 26 June 2012 the mental health team received a phone call from Ms Ostendorf who was quite verbally manic and spoke with "minimal pause". She said she had taken Augmentin which had resulted in swollen lips and throat.
Dr Samuels' lengthy response is dated 21 October 2013. In summary, he states: 1. It is possible that some aspects of Ms Ostendorf's presentation could be accounted for by her use of Artane, or other medications that she has clearly used in the past including opioids and benzodiazepines. Withdrawal from opiates and benzodiazepines could also lead to alterations in her mental state. However, he states that what was noted by the Hunter New England Local Health District Mental Health Team appears to be a pervasive disturbance of mood with features suggestive of mania or hypomania, rather than an organic mental state secondary to use of Artane or withdrawal from sedative hypnotics or opioid medications. 2. Ms Ostendorf suffers from an impairment as defined by the National Law. She has multiple physical health problems that could potentially impact upon her ability to safely practise as a registered nurse. Her presentation and the contacts are highly suggestive of a major mood disorder like Bipolar Disorder Type 1 or possibly a schizoaffective type disorder. There is a lot of material to suggest she might have an underlying personality disorder. There is a concerning pattern of misrepresenting herself as a health professional. 3. As to the ways in which, and the extent to which, Ms Ostendorf's impairment detrimentally affects her capacity to practise nursing, Dr Samuels states that Ms Ostendorf lacks judgement, and appears to have an inflated and unwarranted sense of her skills and competencies. He states that she has difficult interpersonal relationships and may well have an underlying major mental health problem. She appears to abuse various substances, to self-administer and to self-prescribe prescription medications. She has been noted to be aggressive on occasions and has represented herself as a doctor on a number of occasions. Dr Samuels states that these are strong suggestions that Ms Ostendorf would represent a risk to patients and colleagues in a clinical setting. 4. Dr Samuels could not give an opinion on the likely duration of Ms Ostendorf's impairment. 5. As to the question whether Ms Ostendorf was competent, as defined by the National Law, to practise as a registered nurse, Dr Samuels stated that he had concerns, particularly in regard to Ms Ostendorf's mental capacity.

[19]

Dr Samuels - report of 30 May 2014

Dr Samuels was asked by the HCCC to provide a further report after he was provided with a "full set" of Ms Ostendorf's medical records dating back to May 2002.
He says that a review of the medical notes for the period 7 May 2000 to December 2009 revealed that Ms Ostendorf had had a number of health problems during this period, including gynaecological problems, cervical problems and hormonal problems. She has also had ongoing problems with migraines, requiring treatment with Stemetil and pethidine from time to time. She has also had some problems with hypertension and chest pain.
Dr Samuels states that, from a psychiatric point of view, he is particularly interested in the fact that Ms Ostendorf has been prescribed benzodiazepines, in various forms, consistently since 7 May 2002 until 5 February 2010.
Having reviewed these medical records, Dr Samuels states that his opinion is essentially unchanged. He states that: 1. There is clear evidence that Ms Ostendorf had been on a combination of benzodiazepine-like drugs over a prolonged period. Indication for these medications was not clear. 2. Long-term use of benzodiazepines for either depression or anxiety is not recommended and it seems very likely that she developed the dependence on these medications. 3. It appears that Ms Ostendorf was briefly given an SSRA-type antidepressant which she apparently could not tolerate. 4. There is no evidence in the documents that she was referred to a psychiatrist or psychologist for the management of her anxiety or depressive symptoms, and although she had been prescribed medications for many years, there was no diagnosis made in the general practice records. Nor does it appear that Ms Ostendorf had been referred to any drug and alcohol specialist in regard to her dependency on benzodiazepines or opioids.
As far as Dr Samuels can ascertain, Ms Ostendorf was given injectable pethidine to use as required. He says that while management of migraine is outside his area of expertise, this approach seemed to be a "slightly unusual practice". For someone like Ms Ostendorf, who has a propensity to dependency, this would seem to be less than advisable.

[20]

Dr Samuels - evidence at the hearing on 27 July 2015

Dr Samuels also gave evidence at the hearing. In summary, he remained of the view that Ms Ostendorf was suffering an impairment, and that he had no reason to believe that anything had changed. He explained how, as missing information had come together, the picture had emerged of someone with an impairment for a prolonged period in the past. In his view the impairment included opiate abuse and a mood disorder, given the incidents of 2012, and a pattern of behaviour and misrepresentation. Dr Samuel said Ms Ostendorf had a very long history of drug and alcohol dependence with no treatment. She even missed an appointment with him, and he thought there was no reason to think the problems would go away, He considered that this would impact on her professional ability in the future. Dr Samuels believed that Ms Ostendorf was a risk to patients because of her mental state, the level of her consciousness and her cognitive disturbances. He considered that a mood psychosis was a major issue, and there was evidence of an underlying personality disorder. He considers that she has a potential to put patients at risk because she operates beyond her skill set, and that she was not reliable or dependable.
Dr Samuels also said that Ms Ostendorf presented in a confident manner. He was concerned colleagues would be intimidated by her. He thought there was a real danger of her doing clinical work for intervention when she is not qualified to do so, thus putting patients at risk.
Dr Samuels also gave evidence in relation to Ms Ostendorf's competence. He was asked directly whether it was his view that she lacked the mental capacity to practise as a nurse. He said it was difficult to "tease out" the personality factors involved in the case he considered the impact of drugs and mental illness could affect her mental capacity. He considered that her underlying personality was the more pervasive question, and that the serious question to be faced by Ms Ostendorf was her ability to understand the limitations. He said that fundamentally her personality style limited her mental capacity to practise in her profession, as she is not able to self-appraise her strengths. He stated that this may lead Ms Ostendorf to practise in a way that puts patients at risk. In his view impairment and mental capacity went "hand-in-hand".
Dr Samuels considered that Ms Ostendorf could not practise without oversight or monitoring. If she were to be permitted to practise she would have to practise under conditions of supervision and assessment by psychiatrists and psychologists, to be referred to drug and alcohol counselling at the very least. However, he said it was difficult to make specific recommendations without further assessment.

[21]

Statement of Ms Ostendorf

Included in the materials before the Tribunal is a statement titled "Professional Assets" of Ms Ostendorf. It is undated, but prepared after the complaint had been made regarding her visit to Belmont Hospital as a patient on 27 and 28 May 2012.
She states that until receiving the complaint she had no memory of being seen at Belmont Hospital. She says that the visit was prompted by an adverse reaction between prescribed medications that led to hypoxaemia, swelling and anaphylaxis. She then describes the event that led up to that visit which occurred over the preceding week. She says that she had seen her general practitioner on 24 May 2012 and presented with various ailments including fever, chills, chest pain skeletal and muscle pain, and a migraine. She was diagnosed with influenza Type A. Over the next few days her symptoms worsened to include vomiting and dehydration. As she is allergic to antiemetic agents, she was not able to resolve her illness. She says that on Sunday, 26 May 2012 she called an ambulance and was taken to Belmont Hospital. She says that medication she was taking to control a neurological eye condition reacted to medication to treat the influenza, sending her into severe anaphylactic reactions.
She then states: Apparently, not being of sound judgement due to my condition, I signed myself out of Belmont Hospital against medical advice. Complaints were filed about me being verbally abusive to the staff. As a result of my interaction with the staff at Belmont hospital, during my medical emergency, I am being scrutinised regarding my psychological soundness to practice as a nurse. This isolated medical incident has nothing to do with my abilities to perform my job. A similar situation would occur to a diabetic who is experiencing low blood sugar levels, they would present with alter mental status. I have been practising medicine for over 20 years, not as a nurse, but at a much higher skill level, treating and training in maritime medicine. I have an excellent reputation my field. I can provide references from shipping companies that have employed me, when my skills and abilities of documented.

[22]

Relevant Law

As noted above, on 27 February 2015 the HCCC filed a complaint with the Tribunal. The complaint appears in full in Attachment 1. In summary, the first complaint was that Ms Ostendorf has an impairment within the meaning of s 5 of the National Law. The second complaint was that Ms Ostendorf was not competent within the meaning of s 139(a) of the National Law in that she lacked the mental or physical capacity to practise as a nurse.
It is appropriate to set out the relevant provisions of the National Law. These are as follows. 1. Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and (b) the registration of students undertaking-- (i) programs of study that provide a qualification for registration in a health profession; (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 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. A "NSW provision" is defined in s5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note: This definition is an additional New South Wales provision. 1. Section 5, which relevantly provides: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or (b) for a student, the student's capacity to undertake clinical training - (i) as part of the approved program of study in which the student is enrolled; or (ii) arranged by an education provider. 1. Section 139, which states: Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person - (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language.

[23]

Relevant principles

An amended outline of submissions was received from the HCCC on 5 August 2015. The HCCC submits, and we accept that, the following principles are applicable: 1. In the absence of any direct evidence from Ms Ostendorf on any of the matters the subject of the complaint, the Tribunal is entitled to draw inferences from that silence. We note, however, the statement of the Court of Appeal in Palmer v Dolman [2005 NSWCA 361 at [41] that the inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful: see the discussion of this issue in HCCC v Ferguson [2015] NSWCATOD 14 at [39]. 2. The Tribunal is not bound by the rules of evidence: see Sch 5D of cl 2 of the National Law and s 38(2) of the Civil and Administrative Tribunal Act 2013. 3. While the Tribunal may inform itself in any way "it thinks fit", it should base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined: Sudath v HCCC [2012] NSWCA 171 at [75]. See too Smith v the Nursing and Midwifery Board of Australia [2013] NSWNMT 10 where the Nursing and Midwifery Tribunal of NSW stated: 18. Having made that observation [that the Tribunal may conduct proceedings as it thinks fit] , it is timely to recall the caution suggested by Evatt J in R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228. His Honour stated at 256: But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice." 19. As is observed by Aronson and Groves in Judicial Review of Administrative Action (5th Ed) at 581: Provisions which free a tribunal or other body from the rules of evidence are best regarded as facultative. They are intended to provide procedural flexibility but not to displace logic or reasons. A decision-maker freed from the rules of evidence must therefore still consider the whether the material it can consider should in fact be considered. The litmus test is usually whether the material is rationally probative. It follows that provisions which free tribunals from the rules of evidence do not allow decision-makers to "draw inferences or jump to conclusions, which the available material did not adequately support". 1. The onus of proof is the civil standard, as explained in Briginshaw v Briginshaw (1983) 6 CLR 336 and other authorities including Forster v Hunter New England Area Health Service [2010] NSWCA 106). See the recent discussion of the authorities in HCCC v Smith [2015] MSWCATOD 85 at [131] to [134]. 2. The disciplinary powers of the Tribunal are set out in s 149 of the National Law. The Tribunal has a range of powers which appear in ss 149A and 149B. 3. The paramount consideration in proceedings such as this is to protect the public: s 3A.

[25]

The historical evidence

Here the HCCC relies on the following relevant matters, which we comment on as follows. 1. The withdrawal of Ms Ostendorf's drug authority on 18 February 1999 following her falsification of drug records and self-administration of pethidine. This matter is clearly relevant to particular (a) and should be considered by the Tribunal in determining whether the allegation of impairment is made out. 2. The misrepresentation made by Ms Ostendorf on 29 November 2011, when she misrepresented to Dr Victor Fung that she was a doctor. The Tribunal is not persuaded that this representation is relevant to particular (a). The Tribunal does accept that it may be relevant to particular (b). 3. Ms Ostendorf's presentation on 27 May 2012 at Belmont District Hospital complaining of abdominal pain where she: 1. represented that she was a medical doctor and had been self-treating at home 2. requested injection of opiate medication to alleviate pain; 3. further requested that she be permitted to take the opiates home for self-administration, 4. in circumstances where the doctor who interacted with Ms Ostendorf formed the view that she had no genuine medical condition. 5. The Tribunal accepts that this matter is relevant to particular (a), and may be relevant to particular (b). 1. The misrepresentation made by Ms Ostendorf on 30 May 2012 when she misrepresented to Dr Susan Clarke that she was a doctor. The Tribunal is not persuaded that this representation is relevant to particular (a). The Tribunal considers that this evidence may be relevant to particular (b). 2. Ms Ostendorf's presentation at the Calvary Mater Emergency Department on 2 June 2012, where she was diagnosed with a urinary tract infection and prescribed Oxycodone and Ondansetron. The Tribunal does not accept that this matter is relevant to either particular, and that the information before the Tribunal does not suggest that Ms Ostendorf presented in anything other than a regular way. 3. Ms Ostendorf's behaviour in mid-June 2012 including: 1. the observation by persons associated with her daughter's school that her behaviour was unusual, paranoid, nonsensical and inappropriate, the Lake Macquarie Mental Health Team (MHT) being subsequently notified; 2. her presentation to a mental health nurse on 23 June 2012, a mental health nurse, where she was observed to be mentally unwell; 3. her presentation to another mental health nurse on 25 June 2012, who formed the opinion that Ms Ostendorf was paranoid, having suspicious thoughts and made an appointment for her to see a psychiatrist two days later. 4. her subsequent cancellation of this appointment. The Tribunal is not persuaded that, without more, this matter is relevant to particular (a). The Tribunal considers that this matter is relevant to particular (b). 1. The views of Ms Ostendorf's treating general practitioner Dr John Fluit, who states that he has had reason to be concerned about her mental health in the past, but that it had been difficult to ascertain what her condition has been. He reports erratic behaviour, flight of ideas, high-level anxiety and states, "there have been times in which she has told a colleague that she is a doctor. I am not sure if that is simply a lie or a delusion." The Tribunal accepts that this matter is relevant to particular (b). 1. Ms Ostendorf presentation to Dr Fung on 29 November 2011 in which she reported previously being prescribed Artane and consequently having visually hallucinations, suicidal ideation and severe worsening of anxiety. She also reported having completed a medical degree and lecturing in medicine. The Tribunal accepts that this matter is relevant to particulars (a) and (b). 1. Ms Ostendorf presentation to Dr Fung on 23 August 2012, where she reported that she had had a reaction to Artane about a month before, became confused and was admitted to hospital. She reported that she had been able to maintain reasonably normal function whilst on Artane after discharge. The Tribunal accepts that this matter is relevant to particulars (a) and (b). 1. Ms Ostendorf's statement that, in relation to her visit to Belmont Hospital on 27 May 2012 that she had no memory of that event and that her visit was prompted by an adverse reaction between prescribed medications and in particular Artane. She states it was an isolated medical incident and has nothing to do with her abilities to perform her job. This is reiterated in emails along with denials of drug seeking behaviour dated 10 June 2013, 13 June 2013, 20 June 2013 and 23 October 2013 from Ms Ostendorf to the HCCC. The Tribunal accepts that these matters are relevant to particular (a).

[26]

Dr Samuel's reports

We have summarized Dr Samuel's various reports above. The HCCC relies, in particular, on the following matters. 1. In his report dated 23 January 2013, Dr Samuels states that Ms Ostendorf's presentation to Belmont Hospital was suggestive of drug seeking, that there was the possibility of "some underlying personality dysfunction" and "underlying histrionic personality trait but that he was" unable to find clear evidence of any "clear-cut major depressive, affective or psychotic illness". Dr Samuels also accepted the possibility that the medications Ms Ostendorf was on at that time could lead to a "confusional state". 2. In his report dated 7 February 2013, Dr Samuels states that Ms Ostendorf has a longstanding substance misuse problem which she tended to minimise and deny, doubts her character and considers that she should be regarded as having an impairment on the basis of substance misuse and a likely personality disorder. 3. In his report dated 28 August 2013, Dr Samuels was provided with the clinical notes from Ms Ostendorf's general practitioner. A detailed chronology taken from these notes of Ms Ostendorf's medical history from 2010 is provided in Dr Samuels' report. Dr Samuels notes, in particular, that Ms Ostendorf's representations to Dr Fung in 2011 about being a medical doctor was in keeping with her presentation at Belmont Hospital, and that there was "a clear pattern of regular prescription of opioids and sedative hypnotic medications and probable dependence." 4. In his report of 21 October 2013, Dr Samuels states that whilst it is possible that some aspects of Ms Ostendorf's presentation could be accounted for by her use of Artane or other medications, there appears to be a "pervasive disturbance of mood with features suggestive of mania or hypomania rather than an organic mental state secondary to use of Artane or withdrawal from sedative hypnotics or opioid medications".
In summary, the HCCC submits, on the basis of the available evidence, and the inferences available from that evidence that Ms Ostendorf has an impairment on the basis of a longstanding substance abuse problem and a mood disorder and/or personality disorder. It submits that: 1. The evidence spans from 1999 and includes incidents where the impairment has manifested itself more recently and with observations made by professionals of Ms Ostendorf's behaviour and presentation which are consistent with impairment. In particular, Ms Ostendorf's prescription records from 2010 are demonstrative of longstanding benzodiazepine dependency. 2. The historical evidence summarised above is relied upon by Dr Samuels to reach his opinion that Ms Ostendorf has an impairment within the meaning of that term under the National Law. It is Dr Samuel's view that Ms Ostendorf suffers from an impairment as defined by the National Law, because of Ms Ostendorf's: 1. pattern of benzodiazepine use being suggestive of substance dependence and misuse; the 2. erratic behaviours which were: 1. highly suggestive of a major mood disorder like Bipolar or a schizoaffective type disorder; and 2. suggestive of an underlying personality disorder. 1. There is no evidence available to indicate that Ms Ostendorf's drug dependency issues have ceased or that she has obtained any treatment for her mood disorder and/or personality disorder. The available and reasonable inference to draw based on the totality of the evidence is that Ms Ostendorf's impairment continues, and that her behaviour in failing to engage with these proceedings is further evidence from which an inference can be drawn that she is an impaired person.
The HCCC submits that the effect of Ms Ostendorf's impairment on her ability to practise nursing is a matter of inference from the evidence supporting her impairment and her failure to engage in these proceedings. The HCCC submits that Ms Ostendorf's impairment will affect her ability to practise nursing. In this respect it relies on the opinion of Dr Samuels who states in his report of 21 October 2013 that Ms Ostendorf's lack of judgment, inflated sense of her skills and competencies, periodic aggression and her abuse and self-administration of various substances as ways in which her impairment is likely to detrimentally affect her capacity to practise nursing.

[27]

Complaint Two: competence

The HCCC's primary submission is that there is a clear statutory connection between a complaint of impairment and a complaint of incapacity. The HCCC notes s 139 of the National Law relevantly provides: A person is competent to practise a health profession only if the person -- (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession…
We have set out above that s 5, impairment "means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect ... the person's capacity to practise the profession".
The HCCC submits that it must follow that a finding of impairment is a finding about the practitioner's physical or mental capacity to practise medicine and that the disorder is or is likely to detrimentally affect their practice of medicine.
In this respect, the HCCC relies on Lindsay v Health Care Complaints Commission [2010] NSWCA 194 where Sackville AJA stated: There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act (at [168]).
Young JA and Giles JA agreed with Sackville AJA, and Giles JA stated (at [2]): With reference to paras [169] and following of his Honour's reasons, I respectfully do not think that there was any arguable deficiency in reasons in the Tribunal moving from impairment to the appellant not being competent to practice medicine. Reading the reasons as a whole, the basis for finding impairment inevitably led to incompetence to practice medicine. It was not a case where detailed explanation of the step from impairment to incompetence was necessary.
The HCCC submits that a finding of impairment in this case is established and that such a finding also supports a finding that Ms Ostendorf currently lacks the requisite mental capacity to practise the profession within the meaning of s 139.
The HCCC also relies on Ms Ostendorf's failure to, without reasonable excuse, comply with a direction given by the Council under s 145E of the National Law to undergo an examination by a specific practitioner.
It is submitted that a similar combination of factors, namely impairment by way of addiction and the failure to attend two medical appointments made pursuant to a direction, were considered in the case of HCCC v Cieslak [2013] NSWNMT 5 at [97] - [103]. Impairment, having been made out in that case, led to a finding that the nurse lacked the capacity by reason of her anxiety and drug addiction to practise the profession of nursing. The failure to attend one of the appointments without reasonable excuse was also taken into account.

[28]

Additional matters: The submissions of the HCCC of 5 August 2015

In addition to the submissions of 22 July 2015 and amended submissions of 5 August 2015, supplementary submissions were also provided on 5 August 2015. These submissions deal with five issues, namely: 1. Whether the HCCC seeks an order under s 149C(4)(c) of the National Law. The HCCC submits that the Tribunal ought to make an order under s 149C(4)(c) in addition to the orders sought under ss 149C(a) and (b). 2. Whether Ms Ostendorf is currently registered as an enrolled nurse or in any other capacity with AHPRA. The HCCC submits that the registration certificate from AHPRA dated 25 June 2015 supports a finding that, since at least 1 July 2010, the respondent has only held registration as a Registered Nurse. In addition the HCCC submits that further inquiries were made of AHPRA, and that those inquiries revealed that Ms Ostendorf is no longer registered with AHPRA in any capacity. 3. The meaning of mental capacity in s 139 of the National Law. The HCCC submits : 1. whilst there is no definitive authority on the meaning of "mental capacity" as referred to in the definition of competence in s139 of the National Law, judgments of the New South Wales Court of Appeal in Lindsay v HCCC [2010] NSWCA at [167] - [173] and Tung v HCCC [2011] NSWCA 219 at [58] - [62] provide some guidance; 2. Lindsay establishes the link between impairment and lack of competence, and notes at [170]: "…Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances." 1. Whether the Tribunal should make a prohibition order under s149C(5A) of the National Law in relation to "health education services". The HCCC submits that: 1. a prohibition order can only be made if the Tribunal either suspends or cancels a practitioner's registration under s149C(2) or (3) or if the Tribunal makes a disqualification order under s149C(4) of the National Law. In the present case, the Tribunal must find a lack of competence in order to be able to make orders under s149C(4). It is then technically open to the Tribunal to consider imposing a prohibition order under s149C(5A). If only the complaint of impairment is proven, the Tribunal cannot make orders under s149C(4) and cannot make a prohibition order. 2. a prohibition order should only be made if a disqualification order is not sufficient to protect the public. 3. the evidence available does not appear to establish a reliable link between Ms Ostendorf's lack of competence and a finding that she poses a substantial risk to the health of members of the public were she to provide a health education service to which registration is not a necessary qualification. As Ms Ostendorf is unrepresented and such an order has serious implications for any future opportunity to earn a livelihood, it is appropriate before making such a prohibition order that the Tribunal ought to notify her in writing and allow her an opportunity to respond. 1. There are cases where the Tribunal has made recommendations to a future Tribunal considering a re-registration application. The HCCC submitted that it would be useful for the Tribunal to make recommendations to any future Tribunal considering a possible re-registration application from Ms Ostendorf.

[30]

Does Ms Ostendorf have an impairment constituted by opoid and/or benzodiazepine dependence?

The Tribunal accepts the submissions of the HCCC to the extent that Ms Ostendorf suffers from opioid and/or benzodiazepine dependence, and finds that Ms Ostendorf does suffer from opioid and/or benzodiazepine dependence.
The Tribunal is comfortably satisfied that this is the case based on: 1. The withdrawal of Ms Ostendorf's drug authority on 18 February 1999 following her falsification of drug records and self-administration of pethidine. 2. Ms Ostendorf's presentation on 27 May 2012 at Belmont District Hospital. 3. Dr Samuels' opinion (7 February 2013) that Ms Ostendorf has a longstanding substance misuse problem. 4. Dr Samuels' opinion (28 August 2013) that Ms Ostendorf's representations to Dr Fung in 2011 about being a medical doctor were in keeping with her presentation at Belmont Hospital and that there was "a clear pattern of regular prescription of opioids and sedative hypnotic medications and probable dependence." 5. Ms Ostendorf's prescription records from 2010 are demonstrative of longstanding benzodiazepine dependency. 6. There is no evidence available to indicate that Ms Ostendorf's drug dependency issues have ceased, and that the available and reasonable inference to draw based on the totality of the evidence and is that Ms Ostendorf's impairment continues.
Accordingly, the Tribunal finds that Ms Ostendorf has an impairment constituted by the opioid and/or benzodiazepine dependence.
The Tribunal has considered the HCCC's submission that the behaviour of Ms Ostendorf in failing to engage with these proceedings is further evidence from which an inference can be drawn that she is an impaired person. The Tribunal does not accept that this matter, of itself, supports an inference that Ms Ostendorf has an impairment, particularly given some of her correspondence to the HCCC indicated difficulties in participating in telephone hearings (as to which see par 5 above), and, in any event, surrendered her registration prior to the hearing (see par 5).

[31]

Complaint One - particular (b)

The HCCC alleges that Ms Ostendorf has impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects was likely to detrimentally affect the practitioner's capacity to practice the profession of nursing.
The HCCC alleges that the impairment is constituted by a mood disorder and/or personality disorder (either alone or in combination with the alleged the opioid and/or benzodiazepine dependence).
The Tribunal is comfortably satisfied that this is the case based on: 1. The misrepresentation made by Ms Ostendorf on 29 November 2011, when she misrepresented to Dr Victor Fung that she was a doctor. 2. Ms Ostendorf's presentation on 27 May 2012 at Belmont District Hospital. 3. Ms Ostendorf statement that, in relation to her visit to Belmont Hospital on 27 May 2012 that she had no memory of that event and that her visit was prompted by an adverse reaction between prescribed medications and in particular Artane. She states it was an isolated medical incident and has nothing to do with her abilities to perform her job. This is reiterated in emails along with denials of drug seeking behaviour dated 10 June 2013, 13 June 2013, 20 June 2013 and 23 October 2013 from Ms Ostendorf to the HCCC. 4. The misrepresentation made by Ms Ostendorf on 30 May 2012 when misrepresented to Dr Susan Clarke that she was a doctor. 5. Ms Ostendorf's behavior in mid-June 2012. 6. The views of Ms Ostendorf's treating general practitioner Dr John Fluit, which, while not determinative, are supportive in establishing particular (b). 7. Ms Ostendorf presentation to Dr Fung on 29 November 2011. 8. Ms Ostendorf presentation to Dr Fung on 23 August 2012 9. Dr Samuels' opinion (28 August 2013) that Ms Ostendorf's representations to Dr Fung in 2011 about being a medical doctor were in keeping with her presentation at Belmont Hospital, and that there was "a clear pattern of regular prescription of opioids and sedative hypnotic medications and probable dependence". 10. Dr Samuels' opinion (21 October 2013) that: 1. there appears to be a "pervasive disturbance of mood with features suggestive of mania or hypomania rather than an organic mental state secondary to use of Artane or withdrawal from sedative hypnotics or opioid medications"; 2. what was noted by the Hunter New England Local Health District Mental Health Team appears to be a pervasive disturbance of mood with features suggestive of mania or hypomania, rather than an organic mental state secondary to use of Artane or withdrawal from sedative hypnotics or opioid medications; 3. Ms Ostendorf has multiple physical health problems that could potentially impact upon her ability to safely practise as a registered nurse; her presentation and the contacts are highly suggestive of a major mood disorder like Bipolar Disorder Type 1 or possibly a schizoaffective type or underlying personality disorder. 1. There is no evidence available to indicate that Ms Ostendorf has obtained any treatment for her mood disorder and/or personality disorder. 2. The available and reasonable inference to draw based on the totality of the evidence is that Ms Ostendorf's impairment continues.
Accordingly, the Tribunal finds that Ms Ostendorf has an impairment constituted by a mood disorder and/or personality disorder.

[33]

Complaint Two

The HCCC submits that Ms Ostendorf is not competent within the meaning of s 139(a) of the National Law in that she lacks the mental or physical capacity to practise as a nurse.
For the reasons given above, we have found that Ms Ostendorf has a mood disorder and/or personality disorder constituting an impairment. There is no expert evidence before us that suggests that this of itself constitutes a lack of mental capacity. In short, while there is evidence about mood or personality disorder, there is no evidence as to a lack of mental capacity.
We note Dr Samuel's oral evidence at the hearing, which we have summarised above. Dr Samuels considered the impact of drugs and mental illness could affect Ms Ostendorf's mental capacity. He thought that her underlying personality was the more pervasive question, and that the serious question to be faced by Ms Ostendorf was her ability to understand the limitations.
There is some evidence that Ms Ostendorf lacks physical capacity, and we note the statements by Dr Fung that Ms Ostendorf was functionally blind as long ago as November 2011. It would very much depend on how Ms Ostendorf wishes to practise as a registered nurse. We can envisage some circumstances, such as teaching, where blindness would not be an impediment to practise. On the other hand blindness, functional or otherwise, would be a considerable disadvantage for a theatre nurse.
The Tribunal has carefully considered the submissions of the HCCC that a finding of impairment for the purposes of s 5 of the National Law means that a finding that the practitioner is not competent to practise a health profession must be made. We are not persuaded that the argument necessarily follows, and we note that Sackville AJA states in Lindsay that even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. This analysis was recently considered and adopted by the Tribunal in HCCC v Ferguson [2015] NSWCATOD 14 at [110].
In the circumstances, Complaint Two is dismissed.

[36]

Costs

The HCCC also seeks an order that Ms Ostendorf pay its costs. Ordinarily, in this jurisdiction the successful party (here the HCCC) is entitled to such an order. However, the Tribunal notes that Ms Ostendorf indicated to the HCCC that she wished to surrender her registration or to be deregistered on 12 April and 16 April 2015 respectively. Accordingly, the Tribunal is concerned, in these circumstances, whether an order for costs is appropriate. Having made that observation, the Tribunal understands the submission of the HCCC, made in pars [15] and [16] of its amended submissions filed 5 August 2015 that, in addition to the protection of the public being the paramount consideration, other relevant purposes of its application include the need to maintain the standards of the relevant profession and to deter others from engaging in like conduct.
In this respect, we note the observations of the Court of Appeal in HCCC v Do [2014] NSWCA 307 at [51] and [52], and in HCCC v Philipiah [2013] NSWCA 342 at [42].
The Tribunal considers that the appropriate course is to direct the HCCC to file and serve submissions on costs within 14 days of these reasons being published. Ms Ostendorf is to respond within a further 14 days if she wishes. Upon receipt of those submissions the Tribunal will make its decision on the papers and without a further hearing. 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 Attachment 1 COMPLAINT The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney, having consulted with the Nursing and Midwifery Council of New South Wales, in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) (the National Law) HEREBY COMPLAINS THAT Ms Katrina Ostendorf (the practitioner) of XXXXX, being a registered nurse under the National Law COMPLAINT ONE Has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects was likely to detrimentally affect the practitioner's capacity to practice the profession of nursing. Background for complaint one The practitioner was involved in the impaired practitioners programme between 1999 and 2001 due to her pethidine independence. The practitioner was accordingly placed on a number of health and practice conditions. The practitioner was discharged from the impaired practitioners programme on 6 April 2001. On around 29 November 2011, the practitioner was diagnosed with cranial dystonia with prominent blepharospasm by consultant neurologist. One 27 May 2012 the practitioner presented at the emergency Department of Belmont district Hospital (the hospital): with a complaint of abdominal pain; requesting intravenous or intramuscular injection of opiate medications; and stating she did not want any further treatment. The practitioner discharged herself on the same day against medical advice On 29 May 2012 a notification was made by the Australian Health Practitioner Regulation Authority by the hospital. The matter was referred to the Council. 9 August 2012 the practitioner was directed to attend a health examination centre section 145E of the National Law for 30 August but failed to attend. On 28 September 2012 the practitioner's registration was suspended pursuant to section 150(1)(a) of the National Law. PARTICULARS FOR COMPLAINT ONE the practitioner suffers from: opioid and/or benzodiazepine dependence; mood disorder and/or personality disorder. COMPLAINT TWO Is not competent within the meaning of section 139(a) of the National Law in that she had lacks the mental or physical capacity to practice as a nurse. BACKGROUND FOR COMPLAINT TWO The background for Complaint One is repeated and relied upon. PARTICULARS FOR COMPLAINT TWO The particulars of Complaint One are repeated and relied upon individually and cumulatively. The practitioner, without reasonable excuse, failed to comply with a direction by the Council on 9 August 2012 under s 145A of the National Law to attend the health examination on 30 August 2012. 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: 07 December 2015

Health Care Complaints Commission v Ostendorf

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