Health Care Complaints Commission v Roberts [2024] NSWCATOD 54 | Case summary

NCAT Occupational|2023-12-12

Introduction

The Health Care Complaints Commission ("Commission") has applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) ("the National Law") against Leanne Patricia Roberts ("Ms Roberts"), a registered nurse.
The proceedings arise from three complaints made by the Commission which in essence allege numerous non-compliances by Ms Roberts with the conditions of her registration and that Ms Roberts suffers from an impairment that affects or is likely to detrimentally affect her capacity to practise nursing.
By its Amended Complaint, the Commission seeks orders from the Tribunal under the National Law, s 149C(1)(b) to cancel Ms Roberts' registration with a non-review period of six months under s 149C(7). It also seeks a prohibition order under s 149C(5) for the same period as well as an order as to costs.
The Commission, prior to the hearing, invited Ms Roberts to seek legal advice, to serve any reply or material and to attend the hearing in accordance with directions previously given by the Tribunal. Ms Roberts was also informed that if she did not attend, that in her absence, the hearing may proceed and orders may be made against her. Despite communications with Ms Roberts, she did not serve any material and indicated to the Commissioner that she would not attend the hearing or participate.
During the hearing on 11 December 2023, the Commission requested the hearing proceed in the absence of Ms Roberts pursuant to s 165J of the National Law. The Tribunal requested the Commission contact Ms Roberts out of a concern she may not have been aware of the ramifications of the orders sought by the Commission and to ascertain whether Ms Roberts could appear via the telephone or at least speak to the Tribunal. This was in circumstances where the Commission relied on an Amended Application which, although provided to Ms Roberts, it was unclear to the Tribunal whether Ms Roberts was aware of what it contained. Consequently, following the efforts by the Commission, Ms Roberts spoke to the Tribunal via the phone albeit briefly. She confirmed that she was aware of the proceedings including the Amended Complaint and had no wish to participate or make any submissions and that she did not oppose the orders sought by the Commission except the order as to costs. Ms Roberts informed the Tribunal she had no intention of ever practising again as a nurse and so was not concerned about any adverse findings that might be made. The Tribunal was satisfied it was appropriate in all the circumstances to make an order that the hearing proceed in the absence of Ms Roberts and did so.

Materials before the Tribunal

The Commission relied on various materials including four medical reports from Dr Dore; transcripts of s 150 hearings; drug test results and summaries; records from Dr Elliott and Dr Hook; notes of psychologist Marcus Whelan; various policy documents; and the Amended Application dated 29 November 2023.
None of the evidence before us was challenged, nor was any evidence contradicting it put before us. The following factual background is not in dispute.

Background

Ms Roberts is a 41-year-old registered nurse who was first registered in 2003.
She commenced drinking alcohol at the age of 14 and by her early twenties, increased the amount she was drinking to the equivalent of half a bottle of spirits three days a week; experienced amnesiac episodes; but recognised she was drinking to excess and tried to curtail her intake.
In 2006, Ms Roberts was diagnosed with Bipolar Disorder.
In 2007, around the time she was working as a registered nurse at North Shore Private Hospital, Ms Roberts was first admitted for drug and alcohol treatment. She was readmitted in 2014.
By 2016, Ms Roberts reported to medical practitioners that she was drinking up to 2 bottles of wine daily for about 6 months. This increased to consuming 2-3 bottles of wine daily for 3 months and using around 1-2 grams of cocaine monthly resulting her being again admitted for drug and alcohol treatment at Northside West Clinic.
In April 2016, Ms Roberts made a self-notification about her admission to the clinic. Her treating psychiatric registrar confirmed a diagnosis of alcohol use disorder, which may affect her ability to work as a registered nurse.
In July 2016, Ms Roberts attended a health assessment as directed by the Nursing and Midwifery Council ("Council"). Subsequently, on 22 September 2016, she attended an Impaired Registrants Panel ("IRP") and conditions were imposed on her registration including that she attend random urine drug testing.
In early 2017, Ms Roberts attended a Council compliance interview and a health assessment with a psychiatrist. Ms Roberts reported to her GP that she had relapsed and had been drinking heavily for 6 months. She was admitted for involuntary mental health treatment and detoxification. However, at an IRP in May 2017, Ms Roberts reported she had been abstinent from alcohol for 9 months, attended Alcoholics Anonymous and Narcotics Anonymous and saw a drug and alcohol specialist for weekly group therapy.
The IRP Panel ultimately considered Ms Roberts was still vulnerable to potential relapse and imposed conditions on her registration including imposing hair testing ("ETG test").
In October 2017, Ms Roberts' hair ETG test indicated chronic excessive alcohol use. Ms Roberts resigned from working as a registered nurse due to a relapse of Bipolar Disorder and in November 2017, was hospitalised for involuntary mental health treatment. At that time she reported experiencing some psychotic symptoms, paranoid thoughts and auditory and visual hallucinations, had been drinking heavily and using cocaine.
A hearing was held on 18 December 2017 by the Council pursuant to the National Law, s 150 ("s 150 hearing"), which provides for the suspension of registration or the imposing of conditions on a health practitioner for the safety of the public. Ms Robert did not attend the s 150 hearing. The Council determined that she was not to work as a nurse until reviewed by Council.
In 2018, Ms Roberts had a manic episode triggered by alcohol and cocaine, and she reported recurrence of auditory hallucinations. Ms Roberts was admitted to Northside West Clinic for drug and alcohol treatment and reported drinking alcohol heavily before admission.
Between 4 July 2018 and 10 September 2018, Ms Roberts was unregistered as her registration had lapsed.
On 28 September 2018, Ms Roberts' psychiatrist diagnosed her with conditions including Bipolar Disorder complicated by alcohol/substance use. The psychiatrist reported that Ms Roberts' "acute episodes are characterised by insomnia, paranoid thinking and persecutory auditory hallucinations…She continues to use 'ice' intermittently at the weekends but does not see this as problematic."
Ms Roberts' GP certified that she was unfit for work due to Bipolar Disorder until 24 October 2018.
From 11 September 2018 to 1 March 2021, Ms Roberts held non-practising registration.
In February 2019, Ms Roberts' GP certified that she was unfit for work due to Bipolar Disorder until 28 May 2019.
In March 2019, the GP recorded that Ms Roberts was still drinking one bottle of wine per day and waiting for her nursing registration to be approved. She was referred again to a psychiatrist.
In July 2019, Ms Roberts commenced working as an in-home carer (non-nursing role) for Life Without Barriers for deaf, disabled and dementia aged care.
Ms Roberts applied for registration again in August 2019 but withdrew her application when a health assessment was required.
By November 2019, Ms Roberts' GP recorded that Ms Roberts had reported she was drinking two bottles of wine per day. She was subsequently admitted to Northside West Clinic for detoxification treatment.
Again, in January 2021, Ms Roberts applied for registration. On the application she indicated that she did not have an impairment but that there were conditions on her registration.
In March 2020, Ms Roberts commenced working as an in-home carer (non-nursing role) for Daughterly Care specialising in dementia care.
By mid 2020, Ms Roberts reported to medical practitioners that she had resumed consuming alcohol of about 3-4 units per night.
In July 2020, Ms Roberts' GP wrote a letter to the Australian Health Practitioner Regulation Agency ("AHPRA") to the effect that she was medically fit to practice as a registered nurse. However, in October 2020 the same GP referred Ms Roberts to a new psychiatrist, Dr Hook.
Ms Roberts attended an assessment with another psychiatrist, Dr Prior, in December 2020 who opined that Ms Roberts had Alcohol Use Disorder and Bipolar Affective Disorder; was drinking in a hazardous way; was not taking any active treatment; and was not attending Alcoholics Anonymous, Narcotics Anonymous or drug or alcohol counselling. In addition to the alcohol consumption, Ms Roberts was occasionally using cocaine. Given the long-term nature of her conditions and the risk of relapse, it was recommended by Dr Prior that if she was to be reregistered, conditions should be imposed.
On 2 March 2021, Ms Roberts was granted conditional general registration by AHPRA. She was informed that failure to comply with the conditions could result in action being taken against her.
The following three conditions imposed on Ms Roberts at that time are relevant to this proceeding. 1. Condition 3: To comply with the Nursing and Midwifery Council of NSW's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: a) Urine drug screening commencing at Group Two b) hair drug screening at a quarterly frequency, or as directed by the Council. 1. Condition 4: To comply with the Nursing and Midwifery Council of NSW's Alcohol Screening Policy and Participant Procedure: breath testing for alcohol (as varied from time to time). 1. Condition 7: To practice under indirect supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. a) to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council. b) to authorise the approved supervisor to provide written reports to the Council at quarterly intervals, or as specified by the Council.
On 12 April 2021, Ms Roberts did not attend her urine drug screening ("UDS").
On 14 April she received initial monitoring documentation which included the UDS test dates. She subsequently informed Council that as she is not working, testing would place a significant financial burden on her. She was provided with information about how to make a hardship application.
On 16 April and 27 April 2021, Ms Roberts did not attend for UDS.
Ms Roberts did not attend UDS on 18 May 2021 but attended the following day.
On 28 May 2021, she did not attend UDS. Ms Roberts informed Council it was for the reason that she had not yet received her pay. She next attended on 1 June 2021.
On 8 June 2021 and 22 June 2021, Ms Roberts did not attend for UDS. Instead, for each occasion, she attended the following day.
On 13 June 2021, Ms Roberts informed Council she had accidentally used cannabis.
On 6 July 2021, Ms Roberts did not attend UDS. She emailed the Council as follows "I can't get to testing today as it is Tuesday and I work a long day. I'll get tested tomorrow instead". At this time her hardship application was rejected by Council. She attended for testing on 7 July 2021.
On 12 July 2021, she did not attend for UDS but instead attended the following day. She emailed the Council stating that she could not attend UDS stating "I don't have the $ to pay for it. I get paid my Centrelink payment tomorrow so I'll get tested tomorrow".
On 26 July 2021, the practitioner commenced employment as a registered nurse at Sydney Oculoplastic Surgery ("SOS"). Ms Roberts did not attend UDS. Instead, she attended on 28 July 2021 which was the same day she commenced employment as a registered nurse at SOS. She emailed Council stating "I have got a job as a registered nurse! … I couldn't complete my uds on Monday or today due to work commitments".
On 29 July 2021, Council sent Ms Roberts an email outlining again the requirements of the conditions; referring to her failure to attend UDS; and requiring her to provide evidence of her inability to attend. The Council also provided Ms Roberts with a copy of the policy and procedures for Hair Drug Screening ("HDS").
On 27 September 2021, Ms Roberts received an email from Council about a dilute sample she had provided and how to avoid dilution in the future.
Ms Roberts did not attend for UDS on 25 October 2021. She attended the following day and informed the Council that she tested late due to work.
On 16 November 2021, Ms Roberts' GP wrote a letter to AHPRA that she was medically fit to practise as a registered nurse. Ms Roberts also attended a compliance interview with the Council and was informed that she was required to attend a health assessment on 10 December 2021.
On 18 November 2021, Ms Roberts notified Council that she was commencing employment at MetWest Eye Centre and asked whether an enrolled nurse could be her supervisor.
On 22 or 23 November 2021, Ms Roberts commenced her employment and the surgery manager, who was not a registered nurse, supervised her. Ms Roberts worked 10 hour days on Tuesdays and Wednesdays and her role included admitting patients, assisting the anaesthetists to prepare patients for surgery and following up the patients in recovery.
Ms Roberts failed to attend for UDS on 25 November 2021 but attended the following day.
On 29 November 2021, Ms Roberts worked as a registered nurse at SOS. A registered nurse was her supervisor. On the same day, Ms Roberts did not attend UDS but attended the following day.
For the period 26 July 2021 to 22 November 2021, Ms Roberts did not submit any Alcohol Breath Test ("ABT") logs in relation to her employment with SOS.
On 8 December 2021, the Council emailed Ms Roberts explaining that an enrolled nurse cannot supervise a Registered Nurse for workplace supervision. The emailed stated "You can only nominate a Registered Nurse to meet this condition. … In regards to your ABT condition … the nominee must be a senior person (not a colleague). This means they must be in a position to stand you down should you test positive". The Council provided Ms Roberts with a copy of the following documents: ABT Fact Sheet, ABT Screening Policy, ABT Participant Procedure, ABT Supervisor Procedure, ABT Form, ABT Supervisor Nomination Form, ABT Log, Notification of Conditions - Supervisor Form, Supervision Policy and a Checklist.
Ms Roberts attended her health assessment on 10 December 2021 with psychiatrist Dr Glenys Dore. She reported to Dr Dore that she had been abstinent from alcohol for six months and cocaine for over two years. Dr Dore opined that while the Bipolar Disorder and Alcohol Use Disorder remained in remission and while Ms Roberts continued to engage in treatment and was compliant with conditions on her registration, the risk of relapse was significantly reduced and she was fit to practise.
Immediately following this assessment, Ms Roberts commenced drinking alcohol again.
On 14 December 2021, Ms Roberts worked as a registered nurse at MetWest. The surgery manager again supervised Ms Roberts.
On the same day, Ms Roberts did not attend her UDS. She emailed the Council saying "Was supposed to do a urine screen today. But am unable to due to work. I will do it tomorrow instead". She attended on the following day on 15 December 2021.
On 16 December 2021, the Council emailed Ms Roberts reminding her to return various supervisor forms. Ms Roberts told Council they were "in the mail". When Council received documents on 22 December 2021, the timetable omitted finish and start times for the shifts.
Ms Roberts did not attend her UDS on 29 December 2021.
Ms Roberts attended a hair ETG screening on 31 December 2021 (the segment representing the period 26 September 2021 to 25 December 2021) which was indicative of alcohol use "just below chronic use cut off".
On 12 January 2022, Ms Roberts worked as a registered nurse at MetWest supervised by Shannyn Gellenos, the surgery manager. She did not attend for UDS and instead emailed the Council saying "unable to attend for screening today due to work requirements. I will attend tomorrow morning instead". She attended the UDS on 13 January.
On 19 January 2022, Ms Roberts worked as a registered nurse at MetWest again supervised by the surgery manager. Ms Roberts did not attend for UDS this day but instead attended 9 days later.
In the interim, on 20 January 2022, Ms Roberts received an email from the Council approving registered nurse ("RN") Carla Colarusso as her supervisor at SOS. The Council did not accept Shannyn Genellos as a supervisor at MetWest as she was not a registered nurse.
On 24 January 2022, the practitioner provided her first ABT log (22 November 2021 to 19 January 2021) to the Council signed by Shannyn Genellos as supervisor. No evidence was provided of work hours.
On 27 January 2022, Ms Roberts did not attend UDS.
On 2 February 2022, Ms Roberts worked as a registered nurse at MetWest. Ms Gellenos supervised the ABT with a zero result at the commencement of the shift but no ABT was recorded at the end of the shift. Ms Roberts did not attend for UDS on this day but next attended six days later on 8 February 2022.
The Council emailed and telephoned Ms Roberts on 10 February 2022 in respect of non-compliance with conditions.
On 15 February 2022, Ms Roberts attended an IRP. During the IRP interview, Ms Roberts reported drinking one bottle of wine each night on the weekend since November 2021. Although Ms Roberts acknowledged that she may be a "little bit" concerned that she was starting to drink again, she noted it had not affected her work performance. She also noted that she had not put in place any supports to manage or reduce her drinking.
The IRP considered that Ms Roberts had an impairment being Bipolar Disorder and Alcohol Use Disorder; was at risk of relapse; and did not appear to have insight as to the impact her current level of drinking could have. The IRP counselled Ms Roberts on the importance of strict compliance with the conditions on her registration and of engaging with her treatment to ensure relapse prevention strategies remain in place.
The IRP removed the conditions imposed by AHPRA and replaced them with 15 conditions under s 152J of the National Law effective from 22 February 2022.
Those conditions included the following: "Council Condition 4 To practice under indirect supervision in accordance with the Nursing and Midwifery Council of NSW regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. a) To nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the council. b) to authorise the approved supervisor to provide written reports to the council at quarterly intervals, or as specified by the Council. Council Condition 11 To comply with the Nursing and Midwifery Council of NSW's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: a) urine drug screening commencing at Group Two b) hair drug screening at a quarterly frequency, or as directed by the Council. Council Condition 12 To comply with the Nursing and Midwifery Council of NSW's Alcohol Screening Policy and Participant Procedure: breath testing for alcohol (as varied from time to time)."
On 24 February 2022, Ms Roberts signed an agreement to these conditions being placed on her registration.
On 28 February 2022, the Council sent to Ms Roberts a copy of the relevant policies referred to in the conditions on her registration as well as collection centre information, facts sheets about screening and various forms. Importantly, Council also sent a show cause letter seeking a response regarding non-compliance with Conditions 4, 11 and 12. Personal service of these documents occurred subsequently on 8 March 2022.
On 2 March 2022, Ms Roberts worked as a registered nurse at MetWest. Her ABT was supervised at shift start and end.
On 4 March 2022, the Council telephoned Ms Roberts reminding her to comply with her conditions.
Ms Roberts informed Council on 11 March 2022 that she had not received documents to nominate a supervisor.
Ms Roberts worked on 14 March 2022 as a registered nurse at SOS. A registered nurse supervised the ABT at shift start and end. Ms Roberts also provided her second ABT log to the Council signed by the approved supervisor at SOS and for MetWest (signed by the surgery manager, Shannyn Genellos and Angel Jose who had not been approved by Council). The logs did not contain evidence of work hours and also missing from the logs was the end of shift ABT readings for 2 and 17 February 2022.
Between the period 26 July 2021 and 15 March 2022, Ms Roberts did not submit a supervision report for SOS.
Ms Roberts worked as a registered nurse at MetWest on 17 March 2022. A registered nurse supervised the ABT at shift start and end.
On 21 March 2022 Ms Roberts worked as a registered nurse at SOS. A registered nurse supervised the ABT at the beginning and end of shift. However, Ms Roberts did not attend UDS on this day instead attending the following day after emailing Council to inform them.
Ms Roberts worked as an RN at MetWest on 23 March 2022 with supervision of her ABT by another RN. The Council emailed her requesting evidence about why she missed her previous UDS. She responded on 25 March 2022 to the effect that she could not make the test because she worked all day,
On 29 March 2022 the Council received an incomplete supervision report from SOS - missing were Ms Roberts' reflections. The Council also received an email from the practice manager at MetWest to the effect that an appropriate RN supervises Ms Roberts and that they would prepare the report and send shortly.
Ms Roberts worked as an RN on 6 April 2022 at MetWest. Her ABT was supervised at shift start and end. She did not attend her UDS. Council emailed her about compliance and requested she complete the "practitioner reflections" section of the SOS supervision report and that the supervisor provide a current curriculum vitae ("CV").
On 8 April 2022, Council received Ms Roberts' timesheets showing hours worked but not start and finish times.
Ms Roberts saw her GP on 21 April 2022 who noted she wanted to see a clinical psychologist and that she was drinking three drinks a day five days per week. The GP also referred her to a psychiatrist.
Ms Roberts did not attend her UDS on Friday 22 April 2022.
On the same day the Council's Monitoring Review Committee ("MRC") resolved the make Conditions 4, 11 and 12 critical impairment conditions pursuant to s 150FA of the National Law. Relevantly, from 22 April 2022 the critical impairment conditions on Ms Roberts' registration including the following: "Critical impairment condition 4 To practice under indirect supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. a. to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council. b. to authorise the approved supervisor to provide written reports to the Council at quarterly intervals, or as specified by the Council. Critical impairment condition 11 To comply with the Nursing and Midwifery Council of NSW's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: a. urine drug screening commencing at Group Two b. hair drug screening at a quarterly frequency, or as directed by the Council. Critical impairment condition 12 To comply with the Nursing and Midwifery Council of NSW's Alcohol Screening Policy and Participant Procedure: breath testing for alcohol (as varied from time to time)."
Ms Roberts was notified of the critical impairment conditions and was warned by Council that continued non-compliance would result in a complaint being made to the Commission.
On 28 April 2022, Ms Roberts worked as an RN at MetWest. Her ABT was supervised by another RN at shift start and end.
On 2 May 2022, Ms Roberts worked as an RN at SOS with her ABTs supervised by RN Colarusso at shift start and end. She submitted her third ABT log to the Council but without evidence of her work hours in the period 17 March to 2 May 2022 and her MetWest log signed by Angel Jose and Shannyn Genellos who had not been approved by Council.
On 3 May 2022, Ms Roberts failed to attend UDS. She received an email from the Council "received your voice message indicating you are unable to attend for a UDS today because you do not have the funds". Ms Roberts attended two days later.
Ms Roberts worked at MetWest as an RN on 12 May 2022 and had her ABT supervised at the beginning and end of her shift. However, she did not attend her UDS that day.
When she attended her UDS on 13 May 2022, it was a dilute result. Ms Roberts did not provide an adequate explanation for this.
On 23 May 2022, Council received an incomplete MetWest supervision report and an incomplete supervisor nomination form.
Again on 24 May 2022, Ms Roberts provided a dilute UDS result without an adequate explanation.
On 3 June 2022, the Council emailed Ms Roberts about the fact that the SOS supervision report and MetWest supervision report were incomplete. She was also informed that her hair test was overdue and that no evidence had been received in relation to recent missed tests.
The missing reflections from the first SOS report were provided to Council on 5 June 2022.
On 6 June 2022, Ms Roberts worked as an RN at SOS. Her ABT was supervised at the shift start and end by RN Colarusso. Ms Roberts resubmitted the MetWest supervision report (again signed by Shannyn Genellos and Angel Jose) and submitted her fourth ABT log for the period 4 May 2022 to 1 June 2022 with SOS timesheets for the period 17 January 2022 to 17 May 2022 only. No MetWest timesheet was provided.
On 8 June 2022, Ms Roberts worked as an RN at MetWest with another RN supervising the ABT at shift start and end. Ms Roberts did not attend her UDS this day.
On 10 June 2022, the practitioner attended a hair drug test ("HDT"). This testing was four months overdue. No drugs were detected in the segment from approximately late February 2022.
For the period 27 January 2022 to 10 June 2022, Ms Roberts did not attend HDT and did not provide any explanation for her absence.
On 14 June 2022, the MetWest supervision report was resubmitted by Ms Roberts however multiple pages were still missing.
Ms Roberts worked as an RN at MetWest on 15 and 16 June 2022, with the surgery manager supervising the ABT at the start and end of shift.
On 15 June, Ms Roberts failed to attend UDS but on 16 June explained she could not attend as she had a long day at work.
Ms Roberts worked as an RN at MetWest on 23 June 2022 with an RN Angel Jose supervising the ABT at shift start and end.
On 27 June 2022, Ms Roberts worked as a registered nurse at SOS with RN Colarusso supervising the ABT at shift start and end. She did not attend her UDS this day again informing the Council she could not test due to work.
In July 2022, Ms Roberts commenced working as an in-home aged and disability carer (non-nursing role) at Wendy's Home Care.
On 4 July 2022, Ms Roberts submitted her fifth ABT log (the period 6 June 2022 to 30 June 2022). Her readings were again signed by Angel Jose and Shannyn Genellos.
On 11 July 2022, the Council received a UDS and HDS summary report from QML Pathology showing five missed UDS. The Council emailed Ms Roberts to inform her that Angel Jose was not approved as a supervisor. They also provided Ms Roberts with the UDS and HDS summaries and a table of missed UDS and requested she provide a response regarding the tests from May 2022 until that date. The Council also provided Ms Roberts with a copy of a Complaint to the Commission.
On 14 July 2022, in a telephone call from the Council to Ms Roberts she explained that she could not give any reasons for the missed tests except that she must have forgotten to call the hotline on those days. She said she understood this was unacceptable but that she was trying to be compliant by ringing in.
Section 150 proceedings were scheduled on 18 July 2022 at which time Ms Roberts gave evidence. In her evidence she said that she had been drinking about a bottle of wine a night on the weekends since about September/November 2021. She said she tried not to drink midweek especially before shifts; that she had started taking Campral to decrease alcohol craving; that she did not attend the HDS because it was quite expensive and with the UDS she is a bit slack because she does long hours at work. She also said her sessions with a psychologist did not work as she considered they were "not the right fit".
On 18 July 2022, Ms Roberts registration was suspended effective 22 July 2022.
On 8 August 2022, Ms Roberts attended her psychiatrist, Dr Hook, who prescribed Naltrexone.
On 17 August 2022, Ms Roberts was informed that the Commission was investigating the Council's complaint.
On 26 August 2022, Ms Roberts participated in a Council directed health assessment with psychiatrist Dr Dore who reported at that time that Ms Roberts: 1. drinks a bottle of wine 5 nights a week from about 4pm to 8pm (to avoid positive breathalyser test when working as an RN the next morning); 2. is very concerned about her level of drinking but feels unable to find a way to cut down or stop currently; 3. has minimal alcohol-related treatment and no Relapse Prevention Plan; 4. has no clear goal for her drinking, apart from wanting to work towards abstinence for the future, but without clear strategies to achieve this; 5. found Campral ineffective in reducing her urges and cravings to drink; 6. "… does not perceive that her health has been an active factor in her difficulties with compliance and engagement. However, given that she has been drinking heavily on many nights each week, it is likely that alcohol has been prioritised over the completion of paperwork required by the Council on occasions."
Dr Dore encouraged Ms Roberts to discuss alcohol pharmacotherapies with her treating psychiatrist, explore recovery treatment and drug and alcohol counselling and engage in more treatment to try to change her drinking patterns. Dr Dore opined that Ms Roberts has an impairment under the National Law being Bipolar Disorder and Alcohol Use Disorder, which both have the potential to impact detrimentally on her practice of nursing when they are active. Dr Dore noted that the Bipolar Disorder was overall well-controlled on the current treatment with no episodes of mania or hypomania since 2017 and only a brief of depression in around March 2022 noting that Ms Roberts' "…Alcohol Use Disorder remains active, with ongoing heavy drinking through much of the week after work. While Ms Roberts has timed her drinking to avoid the possibility of a positive Alcohol Breath Test at work the next day, it is less clear what the overall impact of her heavy drinking has been on her level of general organisation and functioning."
Dr Dore recommended that if the practitioner's current suspension was lifted, the previous conditions would be appropriate plus new conditions such as engaging with a psychologist/counsellor with drug and alcohol expertise and engaging in a drug and alcohol recovery group.
On 31 August 2022, Ms Roberts attended her psychiatrist, Dr Hook, who recorded she was yet to start Naltrexone and wanted to do home detox.
On 5 September 2022, Ms Roberts attended her GP, Dr Zhou, who recorded "been to the psychiatrist… going for detox - has diazepam".
On 14 September 2022, Ms Roberts attended her GP, Dr Elliott, who referred her to Ramsay Clinic Wentworthville for outpatient alcohol rehabilitation.
On 26 September 2022, Ms Roberts attended Dr Hook who recorded she had completed home detox and had been sober for 2 weeks.
On 8 October 2022, Ms Roberts attended Dr Zhou who recorded that she had started Naltrexone.
On 2 November 2022, Ms Roberts notified the Commission that she was working six days a week as an in-home carer (Wendys Home Care and Daughterly Care).
On 21 December 2022, Ms Roberts attended her psychologist, Marcus Whelan, who recorded that Ms Roberts had not attended since initial consultation (21 April 2022). He noted that Ms Roberts was "motivated to abstain somewhat but still drinking a few times per week".
On 23 January 2023, Ms Roberts attended her GP, Dr Elliott, who recorded that Ms Roberts informed him that she ceased Naltrexone and was drinking alcohol again, 2-3 drinks daily.
On 20 February 2023, Ms Roberts commenced treatment with a new psychiatrist, Dr Olatunji. On 16 March 2023, when Ms Roberts attended a follow up consultation with Dr Olatunji, she appeared to be craving alcohol and was prescribed Naltrexone.
When Ms Roberts attended her psychologist on 23 March 2023, he recorded that she had not been drinking for over four weeks and was taking Naltrexone.
On 19 June 2023, Dr Olatunji consulted with Ms Roberts and recorded she was sober, attending psychotherapy with Marcus Whelan as well as group therapy but does not want to return to AA/NA.
On 24 July 2023, Dr Olatunji again consulted with Ms Roberts at which time he recorded that Ms Roberts' last alcohol intake was 5 months prior and cocaine nine months prior. He noted that Ms Roberts declined Naltrexone as it was too expensive.
On 25 September 2023, Ms Roberts participated in an assessment with psychiatrist Dr Dore. It was reported by Dr Dore that Ms Roberts: is "ambivalent" about a possible return to nursing; started attending the Alcohol and Drug day program at Northside West Clinic on Mondays since around November 2022; started seeing a new treating addiction psychiatrist, Dr Ayodele Olatunji, every six weeks and that he had prescribed her Naltrexone which she took for about a month but did not refill the prescription finding it too expensive. Dr Dore noted that Ms Roberts reported that she was abstinent from drinking for about 4-5 months from around March 2023 but that over recent months she had returned to limited and controlled drinking, consuming alcohol on occasional weekends, approximately half a bottle of wine over 1-2 nights, with dinner over a couple of hours.
Dr Dore opined that Ms Roberts had an impairment of Bipolar Disorder and Alcohol Use Disorder which were both currently in remission but which both "have the potential to impact detrimentally on her practice of nursing when they are active by impacting on her professional behaviour; her attention, concentration and memory; and her problem-solving skills, judgement and level of organization".

The Complaint

There are three complaints alleging: 1. unsatisfactory professional conduct within the meaning of s 139B(1)(c)(i) of the National Law in that Ms Roberts has contravened a condition to which her registration is subject (Complaint 1); 2. professional misconduct within the meaning of s 149E of the National Law on the basis of more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Ms Roberts' registration (Complaint 2); and 3. that pursuant to s 144(d) of the National Law, Ms Roberts has an impairment within the meaning of s 5 of the National law, being a mental impairment, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect Ms Roberts' capacity to practice the profession of nursing (Complaint 3).

Complaint 1

There are three different conditions which are alleged to have been breached by Ms Roberts: supervision conditions; drug screening conditions; and alcohol breath testing conditions. We will set out the particularised breaches for each type of condition as contained in Complaint 1 separately.

Breaches of supervision conditions

The Commission pleaded these breaches as follows: 1. The practitioner failed to submit a supervision report for SOS in breach of: 1. AHPRA condition 7 between around 26 July 2021 and 23 February 2022; and 2. Council condition 4 between around 24 February 2022 and 15 March 2022. 1. Between around 22 November 2021 and 18 July 2022 the practitioner worked at MetWest without an approved supervisor, in breach of: 1. APHRA condition 7 between around 22 November 2021 and 23 February 2022; 2. Council condition 4 between around 24 February 2022 and 21 April 2022; and 3. Critical impairment condition 4 between around 22 April 2022 and 18 July 2022. 1. The practitioner failed to submit any written reports from an approved supervisor for MetWest, in breach of: 1. AHPRA condition 7 between around 22 November 2022 and 23 February 2022; 2. Council condition 4 between 24 February 2022 and 21 April 2022; and 3. Critical impairment condition 4 between around 22 April 2022 and 18 July 2022.

Breaches of UDS conditions

Particular 4 is that Ms Roberts failed to attend UDS: 1. in breach of AHPRA condition 3 on 12 April 2021, 16 April 2021, 27 April 2021, 18 May 2021, 28 May 2021, 8 June 2021, 22 June 2021, 6 July 2021, 12 July 2021, 26 July 2021, 25 October 2021, 25 November 2021, 29 November 2021, 14 December 2021, 29 December 2021, 12 January 2022, 19 January 2022, 2 February 2022; 2. in breach of Council condition 11 on 21 March 2022, 6 April 2022, 22 April 2022; and 3. in breach of critical impairment condition 11 on 3 May 2022, 12 May 2022, 8 June 2022, 15 June 2022 and 27 June 2022.
It was pleaded as particular 5, that on or around 27 January 2022 or on any subsequent date until 10 June 2022 Ms Roberts failed to attend for hair drug screening in breach of: 1. AHPRA condition 3 between 27 January 2022 and 23 February 2022; 2. Council condition 11 between around 24 February 2022 and 21 April 2022; 3. Critical impairment condition 11 between around 22 April 2022 and 10 June 2022.
Particular 6 is that Ms Roberts provided dilute UDS results on 13 May 2022 and 24 May 2022 without adequate explanation, in breach of critical impairment condition 11.

Breaches of ABT conditions

Particulars 7 to 10 set out the alleged breaches of ABT conditions.
Particular 7 is that Ms Roberts failed to submit any ABT logs for the period 26 July 2021 to 22 November 2022 in relation to her employment with SOS in breach of AHPRA condition 4 between around 26 July 2021 and 23 February 2022.
Particular 8 is that AHPRA condition 4 was breached by Ms Roberts failing to provide all relevant timesheets and rosters for SOS for the period 26 July 2022 to 16 January 2022 required by Council to cross-check her ABT logs.
Particular 9 is that Ms Roberts failed to provide all relevant timesheets and rosters for MetWest in order for Council to cross check her ABT logs in breach of: 1. AHPRA condition 4 between 22 November 2021 and 23 February 2022; 2. Council condition 12 between around 24 February 2022 and 21 April 2022; and 3. Critical impairment condition 12 between around 22 April 2022 and 18 July 2022.

Complaint 2

In respect of Complaint 2, the Commission relies on the particulars of Complaint 1 both individually and cumulatively and says that when two or more of the particulars of Complaint 1 are taken together, a finding of professional misconduct is justified.

Complaint 3

The Commission pleads Complaint 3 as follows: 1. On 26 August 2022 the practitioner participated in a Council directed health assessment. In a report to the Council, the Council appointed Psychiatrist opined that the practitioner has the following: 1. Bipolar Disorder 2. Alcohol Use Disorder (DSM-5 diagnoses) which remains active. 1. The practitioner: 1. Has engaged in minimal treatment of her Alcohol Use Disorder 2. Undertakes ongoing heavy drinking through much of the week after work.

Policy documents

There are a number of relevant policies which inform the question as to whether the conditions are being complied with as follows.
The Alcohol Screening Policy provides: "Non-compliance with alcohol screening is any failure to follow the requirements of this policy, the Council's breath-testing for alcohol procedures, and any alcohol screening conditions on a participant's registration. … Non-compliance with alcohol screening includes, but is not limited to… k) the participant fails to provide their breath-testing log to the Council"
The ABT Participant Procedure states: "You must send us the following information within 7 days of the start of each calendar month, or as directed by us: • A copy of your log for the previous month • Evidence of your practise such as your work roster or copy of your appointment book. Any evidence you supply must be verified and signed by your employer or accreditor… All breath-tests must be administered by a supervisor approved by us. You must nominate a supervisor on your Starting breath-testing for alcohol form …We will decide whether your nominated supervisor will be approved … You must not practise until a Council-approved supervisor can administer your breath-test."
As the applicant submits, the following parts of the policies are relevant: d. [The ABT Supervisor Procedure] "All breath-tests must be administered by a breath-testing supervisor approved by us….Participants with breath-testing for alcohol conditions on their registration must only practise if all of the following apply:… - they have a breath-test administered by a supervisor approved by us …We will consider your completed Breath-testing supervisor nomination form and any other information provided to us and decide whether you will be approved as a supervisor….We will write to you and the participant and advise you of the outcome of your nomination….Every breath-test must be administered by an approved supervisor. e. ABT Log (Complete this log and send to us with evidence of your work hours within 7 days of the end of each calendar month…Your approved supervisor must fill in the date, time, location and result of each breath-test, then sign and write their name. …[check box] Yes I have attached evidence of my work hours (timesheet, shifts or roster); f. ABT fact sheet (When you have to have a breath-test you must ensure: - you have a breath-test administered by an approved supervisor - your supervisor completes and you sign your Breath-testing for alcohol log….You need to send us your breath-testing log and evidence of your practice or training hours within 7 days of the start of each calendar month."
Pursuant to the Council's Supervision Policy a practitioner's employer will be asked to assist with the implementation of supervision by nominating a nurse or midwife manager or equivalent senior nurse (CNE, CNS2 or CNC) to oversee supervision. This person is required to submit their resume to the Council for approval. The approved supervisor may be requested to provide periodic reports to the Council, in the Council approved format, on the practitioner's performance against the Council's standards for practice. The Council will generally specify the frequency of reports necessary.

The relevant law

The Tribunal may exercise the disciplinary powers conferred by Subdiv 6 of Div 6 of Pt 8 of the National Law if (a) it finds the subject matter of the complaint to have been proven or (b) the practitioner admits to it in writing to the Tribunal: National Law, s 149.
The HCCC bears the onus of proving the complaints against Ms Roberts on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings: National Law, cl 2 of Sch 5D. The approach to be adopted in making findings of fact in respect of matters in dispute was explained in Tsolis v Health Care Complaints Commission [2023] NSWSC 1599: "[93] While these proceedings are heard on a civil standard, when the Briginshaw test applies it is not whether a fact is more probable than not. It is whether the Tribunal, having considered the circumstances, is comfortably satisfied of the existence of a fact in issue."
The principles relevant to disciplinary proceedings under the National Law are uncontroversial. The overarching principles are found in s 3 and s 3A of the National Law. Section 3A, a NSW provision, mandates that in determining proceedings the Tribunal has the protection of the health and safety of the public as its paramount consideration.

Principles regarding protective orders

The primary purpose of protective orders made at the conclusion of proceedings is to protect the public, not to punish the practitioner: see Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40; s 3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law.
This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34].
In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see for example, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.
As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.

Consideration and findings

As noted above, Complaints 1 to 3 are not challenged by Ms Roberts.

Complaint 1

We have reviewed the evidence and are comfortably satisfied that in respect of Complaint 1, Ms Roberts breached the conditions to which her registration was subject and as particularised by the Commission (set out above).
We find that on the 27 occasions complained of, Ms Roberts failed to attend her UDS in breach of the drug screening conditions; she breached ABT conditions by failing to submit ABT logs as well as timesheets and rosters; she failed to attend for HDS without adequate explanation and provided dilute results on two occasions without adequate explanation.
Having established that the contraventions of conditions occurred, we are now required to consider whether those contraventions amount to unsatisfactory professional conduct and professional misconduct.
Section 139B(1)(c) of the National Law provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; ...
We consider each breach of the conditions to be an instance of unsatisfactory professional conduct and also, as a course of conduct, amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(c)(i) of the National Law. Consequently, we find that Ms Roberts is guilty of unsatisfactory professional conduct in respect of each contravention in Complaint 1.

Complaint 2 - does this constitute professional misconduct

The question whether Ms Roberts is guilty of professional misconduct is a separate question. Section 139E of the National Law provides as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19] (Basten JA) ("Chen"). The exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20].
The question for the Tribunal then, is whether the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. As held in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], the conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances".
As noted in Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35], the "seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred".
Whether and to what extent the conduct of Ms Roberts constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This requires us to determine whether "when [Ms Roberts'] contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": Health Care Complaints Commission v Perroux [2011] NSWDC 99 at [18].
The practice conditions were lawfully imposed on Ms Roberts' registration and there can be no doubt that they were so imposed for the protection and safety of the public. Practice conditions are an integral and important part of the regulation of health practitioners in New South Wales. Ms Roberts was obliged to conform to them.
We accept the Commission's submission and agree that, in isolation, some of the individual particulars of Complaint 1 are relatively minor breaches such as where Ms Roberts had taken some steps to complete a supervision report and nominate a supervisor; and did eventually attend for HDT. However, cumulatively they are of a sufficiently serious nature. We regard the behaviour of Ms Roberts in failing to comply with the conditions on her registration on dozens of occasions as being of a most serious matter.
In our opinion, the breaches of the conditions on her registration which we have found proven and which constitute unsatisfactory professional conduct, when considered in the aggregate, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Ms Roberts' registration (pursuant to National Law, s 139E(b)). Consequently, we find that Ms Roberts is guilty of professional misconduct. Complaint 2 is established.

Complaint 3

We note the medical evidence before us and, in particular, the evidence of Dr Dore who has extensive experience and qualifications as a consultant psychiatrist and specialist in addiction medicine since 1991. Dr Dore has opined that Ms Roberts suffers from Bipolar Disorder and Alcohol Use Disorder. Dr Dore came to the same view in 2021, 2022 and 2023. We accept Dr Dore's unchallenged evidence that even though Ms Roberts is in remission, these disorders have the potential to impact on Ms Roberts' practice of nursing when they are active. We are satisfied in all the circumstances, including: Ms Roberts' continued relapses over at least the past eight years after periods of abstinence; that she engages in minimal treatment; and continues to engage in heavy drinking of alcohol, that Ms Roberts has an impairment within the meaning of s 5 of the National Law and this impairment is likely to detrimentally affect her capacity to practise the profession of nursing. Complaint 3 is established.

What if any disciplinary orders should be made?

Part 8, Div 3, Subdiv 6 of the National Law which is headed "Disciplinary Powers of Tribunals" sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and impose conditions on the practitioner's registration. Where, as in this case, the Tribunal is satisfied the practitioner is guilty of professional misconduct, the Tribunal may suspend the practitioner's registration for a specified period or cancel their registration: s 149C(1) of the National Law.
Wright J in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] summarised the principles underlying the purpose of the orders in Pt 8, Div 3, Subdiv 6: "(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]."
The Commission seeks an order cancelling Ms Roberts' registration and that there be a non-review period for six months on the basis of s 149C(1)(b) of the National Law - that she has been found guilty of professional misconduct.
The Commission's contention is that Ms Roberts' words and actions illustrate her lack of comprehension regarding her professional obligations. This includes: 1. Ms Roberts' comment to the s 150 delegates that she had "been a little slack" when risk factors included breaching critical impairment conditions, and repeated, long-term failure to comply with the regulatory process, despite extensive support; and 2. in 2021, Ms Roberts misreported her level of drinking.
The Commission also notes Dr Dore's concerns in 2022 that Ms Roberts was prioritising drinking over attending to the paperwork required by the Nursing and Midwifery Council.
The Commission submits that, as a registered nurse, the public has the right to expect that Ms Roberts will strictly adhere to the conditions imposed on her so that she may practise safely.
The Commission also expressed the concern that Ms Roberts, who has previously worked as a carer, may seek to work in such areas where she does not need her registration, such as a nursing assistant or as a disability or aged care worker. The provision by Ms Roberts of other health services during the cancellation period would, as the Commission submitted, work against the protective goal of such order.
We note that Ms Roberts does not oppose the orders sought by the Commission and that she no longer wishes to continue her practice in health services.
In the exercise of our discretion and having regard to the paramount consideration being the protection of the public, we consider the protective function is best met by ordering that Ms Roberts' registration be cancelled with a non-review period of six months. We have given careful consideration to the concerns of the Commission and whether these concerns could be met by a less restrictive order however we have no evidence to enable us to assess the likelihood of any other order being complied with in circumstances where Ms Roberts has been unable to comply with conditions on her registration. We consider on the balance of probabilities based on the evidence, that it is most unlikely that Ms Roberts would be able to comply with further conditions on her registration. We are satisfied that there is a material risk that the type of conduct which is the subject of our misconduct findings (breaches of conditions on registration) will be repeated.

Should a prohibition order be made

By its Amended Complaint, the Commission also seeks an order under s 149C(5) of the National Law prohibiting Ms Roberts from providing "health services" as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for the same 6 month non-review period.
Section 149C(5) provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] … (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
The "health services" in s 4 as specified by the Commission are: (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act.
As we made an order under s 149C(1) to cancel Ms Roberts' registration, the power to make a prohibition order under s 149C(5) can be exercised. That power can only be exercised if we are satisfied that Ms Roberts poses a "substantial risk to the health of members of the public" (emphasis added). The Commission referred to the definition cited in other cases for substantial including "…material nature; real or actual; of ample or considerable amount, quantity…". In IceTV Pty Limited v Nine Network Australia Pty Limited (2009) 239 CLR 458; [2009] HCA 14, Gummow, Hayne and Heydon JJ, commented at [154] that the word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Their Honours stated at [154] that which of the various possible shades of meaning the word bears is determined by the context.
Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services.
The Commission does not precisely identify the type of risk posed by Ms Roberts if she were able to provide "health services". The Commissioner notes Ms Roberts is ambivalent about returning to work as a carer and in her brief appearance on the telephone at the hearing she said she has no interest in health services anymore. As she may seek work in areas related to nursing (such as a carer, assistant in nursing or aged care worker), the Commission contends that during the period her registration is cancelled, it would undermine the protective purpose of the order if a prohibition order were not also made.
That may be true, however, the requirement in s 149C(5) requires the Tribunal to be satisfied, on the evidence, that Ms Roberts poses a substantial risk to the health of members of the public. It falls to the Commission to establish that Ms Roberts poses a substantial risk to the health of members of the public if she were to be involved in the provision of health services.
The question raised is whether the available evidence supports a finding that Ms Roberts poses a real or actual risk to the health or safety of the public in the provision of health services. Whether a risk assessed to be low can be properly characterised as substantial is a question of judgement and degree. At best, the available evidence supports a finding that she may pose a risk if she relapses. Dr Dore's evidence is that Ms Roberts, at the time of the report, was in remission. We find on the available evidence that the Commission has failed to discharge the evidentiary burden of establishing that the risk posed by Ms Roberts to the health and safety of the public in the provision of health services can be properly characterised as substantial.
It follows that the power to make a prohibition order cannot be exercised.

Costs

The Commission seeks an order for costs as agreed or as assessed. In exercising the power to award costs under the National Law, cl 13 of Sch 5D of the general rule is that costs follow the event unless there has been disentitling conduct on the part of the successful party.
Ms Roberts resists an order being made and during her telephone attendance at the hearing said that she cannot afford it and it would be unfair.
In exercising the power to award costs, conferred by cl 13 of Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51].
While we have sympathy for the financial position in which Ms Roberts finds herself, the authorities have consistently stated that mere impecuniosity of the losing party is not a justifiable reason for departing from the presumption that the successful party is entitled to receive their costs: Health Care Complaints Commission v Philipiah at [42]. That presumption will generally be displaced only where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40]. There is no suggestion of any disentitling conduct by the Commission in these proceedings.
For these reasons, we have decided to exercise the power to order Ms Roberts to pay the Commission's costs, as agreed or assessed.

Order

We make the following orders: 1. Ms Roberts' registration is cancelled under the National Law, s 149C(1)(b). 2. Ms Roberts cannot seek a review of Order 1 before six months from the date of these orders. 3. Ms Roberts is to pay the Commission's costs as agreed or assessed under the National Law, cl 13 of Sch 5D.

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: 26 April 2024

Health Care Complaints Commission v Roberts

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Judgment (22 paragraphs)

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Cases Cited (22)