Health Care Complaints Commission v Parmenter - [2023] NSWCATOD 136 - NSWCATOD 2023 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Parmenter

[2023] NSWCATOD 136

NCAT Occupational|2023-08-08

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Court

NCAT Occupational

Decision date

2023-08-08

Source

Original judgment source is linked above.

Judgment (46 paragraphs)

[1]

Solicitors: Health Care Complaints Commission (Applicant) New South Wales Nurses and Midwives' Association (Respondent) File Number(s): 2023/00080421 Publication restriction: Disclosure of the name of the person listed in the Schedule to the Complaint (Person A) is prohibited.

[2]

REASONS FOR DECISION

The Health Care Complaints Commission ("the Commission") has made a complaint against Ms Kylie Sharee Parmenter ("the practitioner"). The practitioner is a registered Nurse and Midwife. The Complaint was filed in the Tribunal by the Commission on 10 March 2023 with the practitioner filing a Reply on 8 June 2023. An Amended Complaint was filed by the Commission on 19 July 2023. Complaint one alleges the practitioner is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the Health Practitioner Regulation (National Law) (NSW) ("the National Law") and complaint two alleges the practitioner is guilty of professional misconduct within the meaning of s 139E of the National Law. The hearing proceeded on the understanding that both complaints and, if either one or both the complaints were established, what protective orders should be made, would be heard together.
The complaints arise out of conduct by the practitioner during the pandemic lockdown in October 2021. The practitioner was subject to a public health order that required her to be vaccinated against COVID-19 in order to continue working as a Registered Nurse and Midwife. The two incidents which are central to the Complaints took place at the Griffith Chemist Warehouse on 2 October 2021 and 30 October 2021 and involved the practitioner and Person A (Person A) who was a close family relative. On both those occasions, the practitioner presented herself and Person A for COVID-19 vaccinations but in circumstances more fully described below, on each occasion tampered with the syringes which had been prepared by the pharmacists to administer the vaccine to them.

[5]

legal principles

The overarching objective and guiding principle of the National Law is that the Tribunal must ensure the protection of the health and safety of the public as its paramount consideration (s 3A(1)). The first stated objective of the national registration scheme is 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 (s 3(2)(a)). Restrictions on the practice of a health professional 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 (s 3A(2)(c)).
As Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 explained: 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. [footnotes omitted]
So far as Meagher JA refers to upholding public confidence, it is primarily connected to the practitioner's malpractice or incompetence and setting standards deterring others from such conduct. But the statement also uses the expression "or otherwise not fit to practise, including those who are guilty of serious misconduct".
Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at page 362 made clear that when applying the civil standard on the balance of probabilities, the seriousness of the allegation, the inherent unlikelihood of its occurrence or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal, "In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

[6]

UNCONTESTED Background to the two complaints

In 1995, the practitioner obtained a Bachelor of Nursing from the University of Wollongong. She was first registered as a nurse in New South Wales on 19 December 1995. In 2000, the practitioner obtained a Graduate Diploma of Midwifery from Charles Sturt University and was subsequently registered as a midwife. On 3 December 2002, the practitioner commenced working as a midwife in the maternity unit at Griffith Base Hospital and has had a continued period of employment at the hospital until the current time.
The practitioner lives in a small town in a rural area approximately 15 kilometres outside the hospital at which she works.
As well as working at the hospital, the practitioner assists her husband with his business.
In the period when the events which are the subject of the complaint, took place, the practitioner was employed by the Murrumbidgee Local Health District ("the MLHD") as a midwife.
On 26 August 2021, the Minister for Health and Medical Research made the Public Health (COVID-19) Vaccination of Healthcare Workers Order 2021 under the Public Health Act 2020, s 7.
On 26 August 2011, the NSW Health Deputy Secretary advised all NSW Health employees that mandatory COVID-19 vaccination was required for all NSW Health staff, with the first vaccination required by 30 September 2021 and the second vaccination by 30 November 2021, in order to continue to work for NSW Health.
On 21 September 2021, the MLHD Director, People and Culture, emailed the practitioner reiterating to her the vaccination requirement pursuant to the Public Health Order and advised that a review of her records indicated that she had not had her first dose of COVID-19 vaccination.
On 27 September 2021 the Director further emailed the practitioner advising that if she did not meet the requirements of the Public Health Order, on 30 September 2021 she would not be able to work with NSW Health and would be placed on unpaid leave from that date.
The practitioner went on paid leave from 30 September 2021 to 5 November 2021.
In around late September/early October 2021, the practitioner formulated a plan to improperly tamper with the first dose of COVID-19 vaccination for Person A. There is an issue as to whether, as part of that formulated plan, she also intended to improperly tamper with the first dose of her own vaccination.
On 30 September 2021, in furtherance of her plan to improperly tamper with Person A's vaccination, the practitioner attended Griffith Chemist Warehouse ("the pharmacy"). She spoke to a pharmacist on duty and says she asked if she could have an appointment to receive the COVID-19 vaccination that day. The pharmacist advised the practitioner that there were no appointments available on 30 September 2021, but the practitioner and Person A could be booked in for the vaccination on another day. The practitioner asked the pharmacist if she could see the consult room that the COVID-19 vaccines were administered in at the pharmacy. She inspected the consult room at the pharmacy and then booked an appointment for herself and Person A to each receive the COVID-19 vaccination at the pharmacy on 2 October 2021 at 9am.
On 2 October 2021, the practitioner attended the pharmacy with Person A. The practitioner wore her NSW Health nursing uniform with a long-sleeved top underneath, despite being on leave and not rostered on to work on that day. The practitioner wore these nursing clothes with the intention of raising minimal suspicion from the pharmacy staff. She informed the pharmacists that she had just come from work and was still in her work clothes. The practitioner entered the room where the vaccines were to be administered. Two prepared syringes of COVID-19 vaccine were in a kidney dish, having been placed there by the pharmacists, being one AstraZeneca COVID-19 vaccine containing a 0.5mL dose of the ChAdOx1-S solution intended for the practitioner and one Moderna (Spikevax) COVID-19 vaccine containing a 0.5mL dose intended for Person A. The practitioner asked the pharmacists to leave the room where the vaccines were to be administered so she could remove her long-sleeved top in private. She needed to do so in order to expose her upper arm for the vaccination. The pharmacists complied with her request. Person A waited outside the door.
Whilst the pharmacists were out of the consult room, the practitioner tampered with both pre-prepared syringes of COVID-19. It is her case that she tampered with both syringes because she could not tell which of them contained the vaccine intended for Person A. The practitioner pulled from her purse a vial containing a liquid solution (either normal saline or sterile water, the practitioner has given two different versions); picked up the pre-prepared vaccines, disposed of some or all of the liquid within the vaccines (whether she disposed of the whole of the vaccine is a disputed fact); replaced some or all of the liquid within the syringes with the liquid solution; removed her nursing uniform T-shirt; removed her long sleeve top; put back on her nursing uniform T-shirt and invited Person A and the pharmacists back into the consulting room after being alone in the consult room for 1 minute and 35 seconds.
Having tampered with the vaccines, the practitioner permitted the respective pharmacists on 2 October 2021 to administer those doses of whatever was in the syringes to herself and Person A and did not disclose to the pharmacists that she had tampered with the two pre-prepared doses of COVID-19 vaccine.
On 30 October 2021, the practitioner again attended the pharmacy with Person A, ostensibly for the purpose of receiving a second vaccination for COVID-19 for herself and Person A. Again, the practitioner wore her NSW Health nursing uniform with a long-sleeved top underneath to the appointment, despite being on leave and not rostered on to work that day. The practitioner requested that both her and Person A's vaccine be administered at the same time. Again, the pharmacists had prepared the vaccines and again the practitioner asked the pharmacists to leave the room where the vaccines were to be administered so she could remove her top in private, (there is an issue as to whether this request was express or to be inferred by the practitioner stating that she needed to remove her top). The practitioner then again tampered with the two pre-prepared syringes of COVID-19 vaccine which had been left in the room whilst she was alone in the room. The practitioner admits to taking the caps off the needles of both syringes and then disposing of some of the vaccine intended for Person A; opening a cupboard door in the consult room without approval; removing a drawing up needle from the cupboard; using that needle to refill the vaccine syringe with which she had tampered by refilling it with an unknown amount of saline from a vial which she took out of the front pocket of her nursing uniform. The practitioner asserts however that she at no time intended, on this occasion, to dilute her own vaccine, saying her only intention was to dilute the vaccine of Person A. Whilst the practitioner agrees that she discarded vaccine from the syringe intended for Person A, there is a dispute as to whether she discharged the whole or only part of the vaccine from the syringe. The practitioner was alone in the consult room for 1 minute and 4 seconds.
Ms Mikkilineni, one of the pharmacists on duty, had become suspicious about the privacy request from the practitioner for a second time and went into the dispensing room to look at the CCTV footage from the camera in the consult room. She became concerned that the practitioner was tampering with the vaccines and entered the consult room whilst the practitioner was handling the vaccines and observed the kidney tray with one syringe with no cap to the needle and the other one with solution from the needle falling out. She alerted one of the owners of the pharmacy, Ms Rathi then entered the room and asked the practitioner what she was doing. The practitioner said she "I am making sure you're giving correct dose to us" and that she was "just checking." The practitioner was told that she should not have opened the cupboard door and she apologised for doing so.
The practitioner made a request that new syringes be prepared with the vaccine so that herself and Person A could each be administered an untampered dose of the vaccines. The pharmacists commenced to prepare new syringes.
Whilst that was happening Ms Mikkilineni checked the CCTV footage to find out what the practitioner had exactly done in the room. She observed the practitioner had taken something out of her pocket and had disposed of vaccine in the syringe and replaced it with solution that she had taken from her pocket The pharmacists then talked to the practitioner privately. She apologised and said she was "just trying to dilute the vaccine" to make it more gentle for Person A. She was then asked what she was diluting it with and the practitioner said "saline solution" and took from her pocket the vial of solution and showed it to the pharmacists. The practitioner offered an apology to the pharmacists. Both the practitioner and Person A then received a genuine dose of the vaccine on 30 October 2021.
The practitioner is currently practising under remote supervision pursuant to conditions on her registration put in place by the Nursing and Midwifery Council of New South Wales at a s 50 hearing which took place on 15 November 2021. The MLHD conducted their own inquiry, and the practitioner was stood down with pay while that inquiry proceeded. She did not return to work until the middle of 2022.

[10]

Is "improper" and "unethical" in s.139b(1)(l) an objective or subjective test?

Section 139B(1)(l) provides that unsatisfactory professional conduct includes "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession".
In this case the practitioner is alleged to have significantly breached codes of professional conduct. It is not a case where it is alleged the practitioner has been involved in immoral conduct which is not connected to a breach of codes of professional conduct.
In written submissions the Commission has asserted, on the one hand, that whether conduct is "improper" or "unethical" is an objective test and cited as authority Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[60] (a Tribunal upon which Boland ADCJ, Deputy President, presided)) but, on the other hand, relied upon HCCC v Kesserwani [2020] NSWCATOD 65 (a Tribunal upon which A Britton, then Principal Member, presided) at [26]: 26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances.
In relation to unethical conduct, some cases decided after Liu and Kesserwani (for example, Health Care Complaints Commission v Gupta [2022] NSWCATOD 141 at 169-170; Health Care Complaints Commission v Muthukrishna [2023] NSWCATOD 110 at 15) have proceeded on the basis that these two cases propose the same test as to how a practitioner will be judged guilty of such conduct. They do not. If a test has a subjective element then it becomes a subjective test. Liu at [55], [56] and [60] proposes an objective test and Kesserwani at [26] proposes a subjective test for unethical behaviour that involves intentional or reckless disregard to significant professional standards.
In contrast both Liu at [54] and Kesserwani agree the test for "improper" conduct is an objective one. The High Court in The Queen v Byrnes (1995) 183 CLR 501 at 514-5 explain the objective nature of the concept of impropriety as follows: Impropriety does not depend on the alleged offenders consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case
The distinction in relation to unethical conduct is prima facie relevant in this case because the practitioner, in submissions in relation to Complaint 1, has sought to rely upon subjective matters (background stress; anxiety about Person A; the conduct occurred outside the workplace and remedial education and counselling).
"Improper" and "unethical" are not terms of art and are to be given their ordinary meaning within the context of the alleged conduct. The dictionary definition of unethical conduct, adopted in both Liu at [39] and Kesserwani at [22] has two limbs, one of which involves conduct being contrary to moral precepts or being immoral and the other being a contravention of some code of professional conduct. However, it is to be observed that s 139B(1)(l) requires the unethical behaviour to relate to the practice or purported practice of the practitioner's profession which leaves limited scope for consideration, under this subsection, of morally dubious or unprincipled behaviour that is not related to a breach of significant professional standards.
Further consideration of which test for unethical conduct in s 139B(1)(l) is correct, is sterile in the circumstances of the current case [and probably in most cases]. This is because "arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct" (Kesserwani at [25]). In the context of allegations of breach of significant professional standards, any conduct which was unethical on a subjective test would be improper on an objective test. Accordingly in this case, in respect of Complaint 1, we only need to consider whether objectively the practitioner's conduct was improper because it consisted of a breach of standards of conduct that would be expected of a registered nurse and midwife.
There can be no doubt that once improper (or unethical) conduct relating to the practice or purported practice of a practitioner's profession is found, then that conduct is inevitably characterised as unsatisfactory conduct and there is no discretion to be exercised between the finding that the determination the conduct has occurred which is improper (or unethical) and the characterisation of that conduct as unsatisfactory conduct (Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at 26).
Nor does there seem to be any doubt that once it is submitted under s 139E that unprofessional conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and consequently a finding of professional misconduct, then certain subjective matters are relevant. Those and other subjective matters are also relevant after a finding of professional misconduct when considering what protective orders should be made at "Stage 2" under Division 3, Subdivision 6 of the National Law.

[11]

Complaint one is established on the uncontested facts

The Commission submits that even on the uncontested facts, what the practitioner did amounts to improper or unethical conduct because: (a) The practitioner's conduct in tampering with the vaccines was a breach of principle 1.2 of the Nursing and Midwifery Board Code of Conduct for Nurses, and Midwives, (the "Codes"), in that it was unlawful, capable of amounting to larceny or fraud and that: i. Nurses are to 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 (b) Additionally, the practitioner in disposing of all or part of the vaccines has breached principle 7 of both the Nursing and Midwifery Codes, specifically: i. To promote health for nursing practice, nurses must understand and promote the principles of public health, such as health promotion activities and vaccination (c) The practitioner's conduct in disposing of all or part of the vaccines, lying to and intending to deceive the pharmacists and Person A, is contrary to the ICN Code of Ethics for Nurses (adopted by the Nursing and Midwifery Board of Australia and applicable to all Australian nurses) relevantly, element 1.8, demonstrating trustworthiness and integrity: i. Nurses demonstrate professional values such as respect, justice, responsiveness, caring, compassion, empathy, trustworthiness and integrity. They support and respect the dignity and universal rights of all people, including patients, colleagues and families. (d) The practitioner's conduct in tampering with the vaccines is contrary to the NSW Health Code of Conduct, clause 4.3, acting professionally and ethically. (e) The practitioner's conduct is contrary to the position statement of the Nursing and Midwifery Board (NMBA), Nurses, midwives and vaccinations, dated October 2016, in particular: 1. The NMBA recognises the Australian Immunisation Handbook 10th edition as providing evidence based advice to health professionals about the safe and effective use of vaccines and the public health benefits associated with vaccination. 2. The NMBA expects all registered nurses, enrolled nurses, and midwives to use the best available evidence in making practice decisions. 3. All registered nurses, enrolled nurses and midwives are required to practise in accordance with professional standards set by the NMBA, including the codes of conduct, codes of ethics, and standards for practice. (f) The practitioner's conduct is contrary to the position statement of Registered Health Practitioners, students and the Covid vaccination, as at 9 March 2021, in particular: 1. that they were encouraged to have the full vaccination course because as members of the general community, vaccination will contribute to achieving the highest possible level of immunity across the community; and 2. vaccination will provide practitioners with a level of protection in relation to their own health if exposed to the novel coronavirus that causes COVID-19 at work or elsewhere. 3. The position statement provided for a conscientious objection to receiving the vaccine, on the basis of their own personal beliefs, and in that case they must inform their employer of their objection as soon as reasonably practical. Nevertheless the statement made it clear that health practitioners must comply with local employer or health department policies, procedures and guidelines relating to COVID-19 vaccination.
The practitioner accepts that she identified as a nurse and/or midwife during the times that she attended the pharmacy on 2 and 30 October 2021, including by wearing her nurse's uniform when she was not on duty those days. The practitioner admitted to formulating a plan to improperly tamper with Person A's doses of COVID-19 vaccine; to in fact having tampered with Person A's doses on two occasions; having tampered with her own as well on the first occasion and to have on that first occasion mislead pharmacists into injecting those altered vaccines into both herself and Person A. The practitioner accepts that the conduct was in breach of professional standards of conduct, position statements and the ethics required of nurses and midwives.
We are comfortably satisfied the practitioner's deliberate and/or reckless behaviour was objectively improper within the meaning of s 139B(1)(l) because it was inappropriate, abnormal and irregular when judged against the practitioner's codes of conduct. Consequently the practitioner has been guilty of unsatisfactory professional conduct. For completeness we also find that practitioner's behaviour was also objectively unethical.

[12]

Complaint 2:

In Complaint 2, the Commissioner asserts that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has engaged in unsatisfactory professional misconduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
It is the Commissioner's case that even on the uncontested facts, the practitioner is guilty of professional misconduct. But the commissioner goes further and presses for findings that the practitioner formulated a plan to tamper with both vaccines and on the first occasion disposed of all of her own vaccine as well as all of Person A's vaccine. The Commission also seeks findings that the practitioner exaggerated Person A's needle phobia to give her plausible deniability when tampering with her own vaccine.
The practitioner submits that it is a matter for the Tribunal to determine whether a finding of professional misconduct should be made, whilst presenting arguments in final submissions as to why we should not. The practitioner's position at Stage 2 will be that even if the Tribunal is comfortably satisfied that the practitioner's conduct is of a sufficiently serious nature to justify suspension or cancellation, we should not move onto make a protective order which includes suspension. In making these submissions the practitioner points to a number of subjective matters she says are in her favour.
Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment (Sabag v Self Care Complaints Commission [2001] NSWCA 411 at [82]). In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent by which it departs from proper standards (Health Care Complaints Commission v Litchfield [1997] NSWCA 264 at page 7).

[18]

The practitioner's knowledge about the AIR

The practitioner gave oral evidence that she was unaware of Service NSW and the Australian Immunisation Register (AIR) at the time of her vaccination. The AIR was the means by which her employer would be able to verify that she had been vaccinated in accordance with the public order and its use was a matter of general knowledge at the time. The practitioner said that she wanted to find out all she could about the vaccine and this included regularly reading material provided by her employer and seeing media reports about the progress of the fight against Covid-19. On 2 October, Ms Mikkilineni, one of the two pharmacists who administered the vaccine on that day reports that she "…and the other pharmacist Rakhee Rathi were in the consult room and then [the practitioner and Person A] entered the consult room and they were sitting in the chairs ready for the vaccine to be administered. We checked the AIR and all other details before vaccination and then when we were about to administer, the practitioner says she came back from work directly and would like to change the shirt and she told "Would you guys give me some privacy" and that's when [both pharmacists and Person A] also stepped out..." (Exhibit 1 page 18). The CCTV footage on 2 October [the three and five minute mark] corroborates that the pharmacists, using an electronic tablet, checked the AIR and other details with the practitioner as asserted by Ms Mikkilineni. After the practitioner had been caught on the 30 October she says "I managed to get an appointment with my GP and explained the whole situation regarding what I had done with the vaccinations at length. The GP said she would attempt to amend the vaccines that were previously given to reflect the correct vaccination status..." (Exhibit 2 page 17) We find the practitioner's oral evidence that she was unaware of Service NSW and the Australian Immunisation Register (AIR) at the time of her vaccination both inherently unlikely and not consistent with the other objective evidence referred to above.

[29]

The practitioner's state of mind at the time of the conduct

The Commission submitted that the practitioner's conduct was not benign, was reckless, dishonest, deceptive and premeditated.
The practitioner asserted at the s 150 hearing on 15 November 2021 (exhibit 1; pg 28; lns 37-60; ln 8) that on 2 October 2021 she diluted both of the vaccines with normal saline solution. When asked whether she had ascertained if normal saline was an appropriate dilutant, her immediate reaction was "its pretty universal normal saline and that's all that I had at home, yeh" (pg 59, lns 1-2). She said however that she had not undertaken evidence based research and she agreed she had no idea whether adding normal saline to a Moderna vaccine may have rendered it harmful, saying, "to be fair, no, I did not, no, it didn't even cross my mind at the time", going on to say that she picked the normal saline up because that is all that she had at home. It was put to the practitioner that she did not know whether what she had done to the vaccine prior to it being injected by the pharmacist into Person A could have been harmful to Person A. She responded, "well now that you mention it, potentially yes, I suppose so". Before us the practitioner confirmed that she had no idea at the time that she tampered with the vaccine what the effects of the sodium and chloride ions might have had upon the vaccine.
We conclude that the practitioner's conduct in tampering with the vaccines was not benign and was reckless.
The practitioner did not dispute that what she did was largely premeditated. Whilst the practitioner pointed out that she did not know whether the plans she had formulated would work to provide her with an opportunity to be able to tamper with the vaccine, those plans were designed to potentially give her that opportunity. On the first occasion, that opportunity was presented and she successfully took it. On the second occasion, she was caught. The practitioner lied to the pharmacists about her just coming from work when she was in fact on annual leave at the time. She deliberately wore her nurse's uniform, even though she was not rostered to work either of the days. She brought the dilution solution from her home to the consult room on both occasions; and on the second occasion, had it in her nurse's uniform pocket for easy access. On both occasions she deliberately wore a long-sleeved top underneath her nurse's uniform so that she could make a request to be afforded privacy to change her top thereby being left alone with the vaccine syringes. The practitioner's wearing of her nurse's uniform was not only premeditated but it was also dishonest and deceptive because it was in part worn to increase her chances of making the pharmacists feel comfortable in leaving the syringes in the consult room unattended whilst the practitioner changed her top. When the pharmacist entered the consult room on 30 October 2021, having seen on the CCTV that the practitioner was opening cupboards and appearing to be tampering with the vaccine, the practitioner's immediate response was that she was just concerned as to whether they were receiving the correct dose. The practitioner also lied to Person A about why she was wearing her nurse's uniform (but she gives an explanation as to why she did so). We have no difficulty in finding premeditation in the practitioner's conduct.
We conclude that even on the agreed facts, the practitioner's behaviour on 2 and 30 October 2021 was not benign; was reckless, premeditated, dishonest and deceptive.
The practitioner attended upon Dr Anthony Samuel, Council appointed psychiatrist, on one occasion. He reviewed all of the material and provided reports on 16 March 2022 and 2 May 2022. In the second report at paragraph 44 he records the following history provided by the practitioner which we note but discount having regard to our findings in respect to the practitioner's credibility: I asked [the practitioner] how she felt about the situation now. She said the whole thing was "ridiculous". She is upset about what she has done. She realises she sabotaged the process, she increased Person A's fears around needles and vaccinations, that her intervention was unhelpful and said that she really was in quite an anxious and disordered state during this time and was not thinking clearly." [The practitioner] said there was quite a lot going on, she had never felt this way before even when her mother got diagnosed with cancer, she was worried about [a relative] in Townsville, her husband had taken on a new business, and there was COVID-19 and she was involved in [redacted to protect the identity of Person A]. She said all in all she was overwhelmed and she acknowledged that she has, underneath it all, a perfectionist anxious personality and was trying to stay in control of work and home and there was a lot going on and she felt overwhelmed by conflicting information about the vaccines

[33]

What the practitioner said happened on 28 September 2021

It is part of the practitioner's case that on the last day that she worked before going on leave, namely 28 September 2021, she attempted to have herself and Person A vaccinated at the hospital at which she works. She asserts that she was unable to do so because of Person A's reaction to the possibility of receiving a needle.
The Commission suggested that the assertion that the practitioner had presented at her own hospital on 28 October 2021 with Person A for vaccinations should not be accepted without corroboration.
The practitioner did not mention attempting to be vaccinated on 28 September in her reflections document which she submitted to the s 150 hearing. The first occasion that she mentioned this was at that hearing [Exhibit 1 page 66 lines 6-11]. During s 150 hearing, the practitioner initially said that Person A "made a bit of a ruckus and swore and was a little bit not pleasant so I just said, "I'll come back later…" (Exhibit 1 page 43 lines 32-34). Later in her answers at the s 150 hearing, she said in relation to selecting the Chemist Warehouse "I just knew that I didn't want to have a repeat of the last episode which was quite an ordeal with [Person A] swearing and whatnot in the clinic…" (Exhibit 1 page 46 lines 34 and 35). Later still in the s 150 hearing, the practitioner said "They tried to suggesting [Person A] - they said, "We'll go into a quiet room, [Person A] cd lie down in a bed" bs [Person A] was hyperventilating, had [Person A's] mask on, [Person A] felt faint and all that sort of stuff and then [Person A] sort of lost it and got quite upset. so [Person A] left the rooms, [Person A] left the building so I followed [Person A]" (Exhibit 1 page 61 lines 4-8; as per original transcript). The practitioner had not initially asserted that Person A hyperventilated. The practitioner has not produced any evidence to corroborate her assertion that on the 28 September 2021 she and Person A had appointments for vaccination at her hospital or any clinical note by any health professional that Person A was in rooms in the hospital hyperventilating and feeling faint.
We do not accept the practitioner's version of what happened on 28 September 2021 without corroboration.

[34]

What the practitioner said about Person A's needle phobia

The version of events given by the practitioner relies heavily on an assertion by her that Person A suffered from a "needle phobia" after "a bad incident at the dentist". In statements made by her before giving oral evidence she refers repeatedly to Person A's agitation and anxiety at the possibility of being vaccinated.
We have just concluded that we are unable to place any weight on the practitioner's evidence about what she says happened on 28 September 2021.
The practitioner says that on 2 October 2021 she gave Person A a travel calm tablet (Exhibit 1 page 115) and "We were given the injection at the same time. I tried to distract [Person A] while the needle was given. [Person A] was sitting in a recliner chair opposite me" (Exhibit 1 page 115). The practitioner does not describe any behaviour consistent with needle phobia at the time the needle is being administered on 2 October 2021. The CCTV footage depicts Person A sitting calmly both when Ms Rathi initially approached Person A to prepare Person A's arm for the needle (prior to the practitioner asking for privacy to remove her top) and again while the needle with which the practitioner had tampered, was being administered. Neither pharmacist in their statement mentioned that Person A was in any distress whilst Person A received the needle on 2 October 2021.
The practitioner next asserted that on 30 October 2021 when the new, genuine vaccines were given to both her and Person A, "[Person A] was dry retching at this time while the needle was being given" (Exhibit 1 page 116). When challenged about this evidence, the practitioner conceded dry retching was an involuntary convulsion which is easily observed and that there was no such behaviour by Person A captured on the CCTV footage. The practitioner said that perhaps she used the wrong words. We have no doubt from her answers and from her qualifications as a health practitioner that she well understood what dry retching was and we find she intended to use those words. In fact, the practitioner had first made the assertion of dry retching in her first self-reflection log (provided to the s 150 hearing on 15 October 2021).
Having abandoned the assertion that Person A was dry retching, the practitioner maintained that Person A was gagging and hyperventilating behind [Person A's] mask at the time of the injection. Even gagging is an upper thoracic activity. Although there is no audio on the CCTV footage, there is no indication at all that Person A was gagging at the time Person A received the second injection, nor is there any indication of hyperventilation. Person A sits quite still when receiving the needle. There is no coughing, spitting, upper body or arm movements that are observable on the CCTV footage. Further neither pharmacist present showed any concern at Person A's reaction when Person A received the needle or afterwards; nor have they in their statements referred to any concern that they had about Person A's reaction including any side effects that Person A might have had in the period that Person A is required to wait before leaving the pharmacy.
The practitioner told the delegates at the s150 hearing that Person A had never been unwell nor ever needed to see a doctor (Exhibit 1 page 54). Prior to the 30 October 2021 (and so far as we know since) Person A had not sought any medical advice about Person A's alleged needle phobia.
There is no objective evidence produced by the practitioner to corroborate the practitioner's assertion that Person A had a needle phobia and in fact there is some reliable evidence, particularly from the CCTV footage, that the practitioner has at best exaggerated any needle phobia Person A may have had. In any event any aversion Person A had to needles had little to do with the practitioner's decision to dilute Person A's vaccine. Person A did not have any objection to having the vaccine per se. We are unable to place any weight on the practitioner's assertion that her behaviour was motivated by Person A having a needle phobia.

[35]

Did the practitioner seek to avoid vaccination of herself and Person A?

As indicated above, the Commission in addition invites the Tribunal, when both considering whether there is professional misconduct and when making protective orders, to make additional findings bearing on the question of the seriousness of the conduct. It is the Commission's case theory that until caught, the practitioner intended not to be vaccinated at all and had formulated a plan to achieve that result, and that between March 2021 and 2 October 2021, the practitioner had at all times deliberately avoided being vaccinated with the COVID-19 vaccine notwithstanding that she was working in a hospital setting with newborn babies and new mothers, and the vaccine was available to her. This case theory is also based upon the assertion that on 2 October 2021 the practitioner completely emptied both syringes, filling them with either normal saline or sterile water which was then injected intramuscularly into the practitioner and Person A. Further, that on 30 October 2021, the practitioner had taken the needles off both Person A's syringe and her syringe and although she had only interfered with Person A's syringe by the time she was interrupted and caught, she intended to repeat what is said to have happened on 2 October 2021, namely, she had emptied the entire contents of Person A's syringe and had replaced it using a draw-up needle with normal saline solution and that she intended to do the same with her own syringe before she was interrupted. It is also part of this case theory that the practitioner has used an exaggerated narrative in relation to Person A's needle phobia to give plausible deniability when implementing the plan that the practitioner had formulated.
We approach a consideration of these matters bearing in mind that at all times the onus is on the Commission to prove what is asserted on the standard of proof to which we have earlier referred.
There is evidence that points in the direction of the practitioner not wishing to be vaccinated herself. Her explanations as to why she did not get vaccinated between March and the end of September 2021 (no real pressure to do so; intended to do so in August holidays which partly got cancelled; didn't have time to do so in the multiple days that she had off because she might have had after effects which would prevent her from going to work; that she wore protective clothing at work so her unvaccinated condition was not a threat to patients in the hospital, including particularly birthing mothers and newborn babies), are not particularly convincing. Also adding support to this proposition is that the practitioner ignored or did not properly digest information provided by her employer in relation to the efficacy of the COVID-19 vaccinations and seemingly became lost in looking at information from people such as Dr Peter McCullough who was an American cardiologist who promoted misinformation about COVID-19, and other discredited media sources such as Senator Gerard Rennick, Ricardo Bossi from Australia One and Dr Vladimir Zelenko.
Against those pieces of evidence from which an indirect inference might in other circumstances be drawn, is the hard evidence of what might or might not have happened in the consult room. Exhibit 4 is the CCTV footage which provides some visual evidence of what happened inside and outside the consult room on 2 October and 30 October 2021. In relation to 2 October, whilst the footage demonstrates the practitioner expelling vaccine from the syringes, it is not possible to see whether she expelled the entirety of the vaccine in the syringe. The evidence of the attending pharmacist does not assist in that inquiry because on 2 October 2021 by the time they had re-entered the room, the practitioner had completed whatever she had done with the syringes and the pharmacists injected the practitioner and Person A respectively with the syringes without any knowledge that the syringes had been tampered with. On 30 October 2021, again, the pharmacist made no observations as to whether or not the syringe (Person A's) which had been tampered with had all the vaccine removed.
Against the Commission's case theory that the practitioner had formulated a plan not for herself to get vaccinated but to have certificates to say that she did, the practitioner can point to the seemingly untested fact that as a regular part of her practice as a midwife, she administers vaccinations to babies. In that regard, the practitioner further relies upon her unblemished record of almost 28 years as a nurse and 19 years as a midwife.
Further, the practitioner could have walked out of the room on 30 October 2021 having apologised without requesting that she and Person A be vaccinated with a syringe with genuine vaccine in it. Of course, at that point she knew that she had been caught and her future career was on the line.
We are unable to be comfortably satisfied that the practitioner in September 2021 had formulated a plan for herself not to be injected with the vaccine but to create a record that she had.

[40]

The practitioner's conduct since 30 October 2021

As indicated the practitioner returned to work in the middle of 2022 after the MLHD had completed its inquiry. In accordance with conditions imposed at the s 150 hearing, from June 2022 to date the practitioner has been the subject of supervision and monthly written reviews which have reflected safe and competent practice. For the main, those supervision reports have been provided by the practitioner's unit manager who apart from the first two months, has continually provided the supervision. She has also provided a glowing reference (in Exhibit 7, tab 13, pg166) reflecting upon the practitioner's accountability, professionalism and personal character having known the practitioner for three years and four months. She describes the practitioner as one of the most dedicated, professional and competent nurse/midwives that she has worked with in her period of over 20 years in the profession and as a safe, kind, compassionate and thoughtful clinician who always has her patients as a top priority. She says the practitioner has excellent leadership characteristics and she has no concerns in relation to the practitioner's ability to work as a nurse/midwife. We accept that that reference should be given some weight as it is written by her direct manager in the maternity unit at Griffith Base Hospital.
At tab 14 of Exhibit 7 there is an unsigned reference from Ms Curphey, registered nurse, who has known the practitioner for 24 years in a professional capacity and has read the complaint. She first met the practitioner in the paediatric ward in 1998 when she was the practitioner's mentor. She too describes the practitioner as one of the most competent and dedicated nurses that she ever worked with showing a degree of care to patients and staff members which is second to none. She describes the practitioner as being passionate about nursing and somebody who will more often than not work above the hours required, staying back late to spend time with grieving parents or emotional mothers or to lend a hand to other staff members struggling with a heavy workload. She reports that numerous people and families in the community have commented to her about the practitioner's wonderful care during their hospital stay. She speaks of the value of the practitioner's years of experience to the rural community that the practitioner serves.
As well as keeping current with her required continued professional development as a registered nurse and midwife, the practitioner has completed a course with the Australian College of Nursing "Immunisation for Health Practitioners" in February 2022 which involved 120 hours of learning.
She is currently enrolled in an Australian College of Nursing course in family and child health (and referred to this in evidence as her escape plan), saying that she wished to find a place as a health professional without the night shifts and double shifts that she feels currently compelled to work given the chronic staff shortages in her local area.

[42]

Conditions

The conditions proposed by the practitioner for further psychological counselling are set out earlier in the reasons and are suggested by the practitioner on the basis the Tribunal might receive further reassurance about the practitioner's ongoing self-care and ability to expediently reach out for help as required.
In his second report of 2 May 2022, Dr Samuel opines at paragraph 55: Given the fact that that [the practitioner] still has some unresolved issues around her mother's death and unresolved conflicts relating to her father and brother, and possibly other interpersonal stressors in her life, I would strongly encourage her to continue in some form of psychological counselling at a mutually agreed frequency with a psychologist or counsellor. It will be important for her to form a relationship with a psychologist or counsellor so that in the future if she is feeling overwhelmed, not thinking clearly, becoming preoccupied or ruminating about issues in her life and having irrational thoughts, that she can access help early.
The practitioner has provided (Exhibit 7, tab 8) a certificate of attendance of her having attended six counselling appointments by telephone for counselling sessions, the first four of which were completed by 2 December 2021 and the last two were on 24 May 2023 and 31 May 2023. No report is provided as to the nature or purpose of these counselling sessions allegedly due to confidentiality policy of the counselling service. Consequently, it seems that it took more than a year for the practitioner to, on her own volition, adopt the recommendations in Dr Samuels' May 2022 report.
Subdivision 6 Division 3 Part 8 of the National Law sets out the disciplinary powers of the Tribunal that may be exercised in relation to a registered health practitioner if it finds the subject matter of a complaint against the practitioner proved [s 149]. Sections 149A and 149B provide the Tribunal with power to impose a range of protective orders (one or more) including s 149A(1)(b) to impose conditions it considers appropriate on the practitioner's registration. Section 149C gives the Tribunal power to suspend or cancel the registration of a registered health practitioner. A submission was made by the practitioner that if the practitioner's registration is suspended the counselling conditions cannot be imposed until the completion of any order for suspension. That is said to be because the powers to make orders under sections 149A and 149B are in relation to a registered health practitioner which arguably the practitioner would not be during the period of time that her registration was suspended. The practitioner quoted Health Care Complaints Commission v Chauwan [2023] NSWCATOD 78 as authority to support that proposition but we are unable to see how that authority supports the proposition because in that case the Tribunal ordered restrictions be imposed upon the practitioner during the period of the suspension.
We do not have to say anything more about this submission, given that both parties seek conditions in the same terms in relation to the practitioner's attendance for further counselling to take effect after any period of suspension. We will make an order in those terms.