Health Care Complaints Commission v Ross

The Complaint

1. The Complaint as amended is as follows: 1. Complaint 1: Ms Ross has been convicted of criminal offences within the meaning of s 144 of the National Law, being: 1. The conviction on the charge under s 27E(2)(b) of the Summary Offences Act of bringing into a place of detention without lawful authority Flucloxacillin (particular 1); 2. The conviction on the charges under the Poisons and Therapeutic Goods Act (particulars 2-5); 1. Complaint 2: Ms Ross is guilty of unsatisfactory professional conduct as defined in s 139B(1)(b) of the National Law in that in contravention of s 130 of the National Law, she failed to notify the Nursing and Midwifery Board of Australia (the National Board) that she had been charged with an offence punishable by 12 months imprisonment or more, being the offence relating to Flucloxacillin under s 27E(2)(b) of the Summary Offences Act; 2. Complaint 3: Ms Ross is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in improper or unethical conduct relating to the practice or purported practice of nursing, being: 1. Her meeting with Inmate A on 3 June 2015 in circumstances where the meeting was not of a professional nature (particular 1); 2. Providing Inmate A with two empty medication boxes for the purpose of moving contraband (particular 2); 3. Providing Inmate A with two contraband mobile telephones (particular 3); 4. On approximately five occasions around 25 April 2015 - 30 May 2015, having telephone contact of a non-professional nature with Inmate A (particular 4); 5. Between 1 March 2015 - 4 May 2015 sending SMS messages via a mobile telephone subsequently found on the person of Inmate A (particular 5); 6. Between 1 March 2015 - 4 May 2015, conducting a non-professional relationship with Inmate A including telephone, SMS and face to face contact with him (particular 6); 7. On 3 June 2015, bringing into the place of detention without lawful authority Flucloxacillin (particular 7). Particulars 1, 2, 3, 4, 5 and 6 rely on contravention of the JH Code of Conduct 2006; and particular 7 relies on the conviction on the charge under the Summary Offences Act. A further particular, that two or more particulars under Complaint 3 when taken together would justify a finding of unsatisfactory professional conduct, concerning Ms Ross' inappropriate interactions with Inmate A, was not pressed during the hearing; 1. Complaint 4: Ms Ross is guilty of professional misconduct under s 139E of the National Law in that she: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, being Complaint 3; or 2. 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 her registration, being Complaints 3, together with Complaints 1 and 2.
2. The Complaint as filed with the application to the Tribunal included an additional Complaint 5, that Ms Ross is not a suitable person to hold registration as a nurse within the meaning of s 144 of the National Law, relying on the particulars of Complaint 2 and particulars 1 to 6 of Complaint 3, and the conduct underlying the convictions of 26 February 2016. Ms Ross was notified of the amended complaint, in which Complaint 5 has been deleted, on 14 June 2019.
3. The HCCC is seeking the following orders: 1. Cancellation of registration, based on Complaints 1 and 4; 2. Ms Ross not be entitled to apply for re-registration for a period of two to three years, based on Complaints 1 and 4; 3. The Tribunal is the appropriate review body, based on Complaints 1 and 4; 4. Costs; and 5. A reprimand, based on Complaints 2 and 3.
4. The HCCC notified Ms Ross of the orders it would be seeking by email on 14 June 2019.

Issues

1. The issues for determination are: 1. Whether the practitioner is guilty of unsatisfactory professional conduct or professional misconduct as alleged by the HCCC; and 2. If so, what are the appropriate protective orders to be made.

The Tribunal proceedings

1. There was no appearance by or on behalf of Ms Ross at either of the directions hearings held on 1 February 2019 and 29 March 2019, at which directions were made for the parties to file and serve the material on which they proposed to rely.
2. An order for substituted service was made on 29 March 2019, requiring the HCCC to serve its documents on Ms Ross on two email addresses known to be used by Ms Ross, and at a residential address in Goulburn NSW. The directions made on that occasion included directions listing the matter for hearing on 18 June 2019; a direction requiring Ms Ross to provide any material on which she relied by 10 May 2019; a direction that in the event of non-compliance with the orders by Ms Ross, the matter may proceed as an undefended matter on 18 June 2019; and a direction that Ms Ross could on or before 24 April 2019 apply to the Tribunal to set aside or vary the orders on three days' notice.
3. The HCCC filed its material in support of the application on 23 May 2019. No material has been received by the Tribunal from Ms Ross, and she did not appear at the hearing on 18 June 2019.

Proceeding in the absence of Ms Ross

1. On 18 June 2019 the Tribunal determined to proceed with the hearing in the absence of Ms Ross. The following are the reasons for that decision.
2. Div 10 of the National Law provides for the constitution and proceedings of the Tribunal in proceedings concerning a health practitioner. Section 165J of the National Law provides a right of appearance and representation in proceedings. Section 165J(3) provides: 165J Representation before Tribunal (NSW) … (3) This section does not prevent the Tribunal from proceeding in the absence of the registered health practitioner or student concerned, as long as the practitioner or student has been given notice of the inquiry or appeal.
3. The HCCC relied on an affidavit sworn by Ms Samantha King, a solicitor responsible for the day to day conduct of the matter, on 31 May 2019. Ms King states that in compliance with the orders made on 29 March 2019 for substituted service, on 2 April 2019 a copy of the orders sought for substituted service, the order made on 29 March 2019, and the application and Complaint filed by the HCCC were posted to the address in Goulburn. A copy of those documents was also sent by email to the two email addresses, which were Ms Ross' last known email address. A copy of the documents relied upon by the HCCC was served on 2 April 2019 by "Serv-U File Share", and Ms Ross was notified by email that the documents were available for download.
4. Annexed to Ms King's affidavit were documents confirming delivery of documents to the Goulburn address, and copies of the emails of 2 April 2019.
5. Ms King's affidavit in support of the HCCC's application for an order for substituted service sworn on 26 March 2019 outlines the basis on which the email addresses and the postal address referred to in the order for substituted service were believed to be addresses used by Ms Ross.
6. As noted above, the HCCC provided Ms Ross by email on 14 June 2019 the amended complaint (which deletes one of the five original complaints); and a list of the orders that would be sought by the HCCC at the hearing. That email also provided details of the costs order that would be sought by the HCCC.
7. The Tribunal was satisfied that the relevant documents had been served on Ms Ross in accordance with the order for substituted service made on 29 March 2019; that Ms Ross has been notified both of the hearing and of the evidence on which the HCCC would be relying; and that it was appropriate to proceed in her absence.

Evidence before the Tribunal

1. The HCCC relied on two volumes of documents: 1. Vol 1 (ex A2): the mandatory notification, certificate of conviction, expert report by Ms Christine Muller; s 150 proceedings; and documents from NSW Police brief; and 2. Vol 2 (ex A3): copies of telephone records; the JH Code of Conduct 2006; National Board Code of Professional Conduct for Nurses in Australia 2013; and letter from Australian Health Practitioner Regulation Authority (AHPRA) to the HCCC dated 11 December 2018.
2. The HCCC tendered a copy of the November 2014 version of the JH Code of Conduct (ex A4).
3. Ms Ross provided no evidence before the hearing and did not appear.
4. The Tribunal notes that on Friday 21 June 2019, three days after the hearing when the decision had been reserved, the HCCC forwarded an email received from Ms Ross on Wednesday 19 June 2019 at an email address identified in the orders for substituted service. In that email Ms Ross confirms that she does not wish to respond to or attend any proceedings. The HCCC did not seek to tender the email. The Tribunal sees no need to formally receive the email, other than to note that it has been placed on the Tribunal file.

Discussion and findings

1. The complaints that may be made about a registered health practitioner under the National Law include: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. …
2. Section 149C(1) of the National Law provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession.
3. The HCCC brings the complaints of unsatisfactory professional conduct relying on s 139B(1)(b) and (l) of the National Law: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following- … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
4. Section 139E of the National Law defines "professional misconduct": 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.
5. The onus or burden of proof is that of the HCCC. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). Due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, the standard of proof is the civil standard on the balance of probabilities, to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336: Health Care Complaints Commission v Perceval [2014] NSWCATOD 38 at [99]. The Tribunal approaches the question of proof in these proceedings applying the principles as stated by Macfarlan JA (with whom McColl JA and Sackville AJA agreed) in Forster v Hunter New England Area Health Service [2010] NSWCA 106: 22. In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid). 23. Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2).
6. The reference to Briginshaw is to the following passage in the judgment of Dixon J at 362: But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations that must affect 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.
7. Ms Ross did not participate in the proceedings, and accordingly the evidence on which the HCCC relied was unchallenged. The relevant principles are discussed in Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208, in which the Appeal Panel noted at [54] that courts will ordinarily accept unchallenged evidence unless it is "inherently illogical or unreliable" or "based on an incorrect or incomplete history or upon unproven assumptions" (referring to Bauskis v Liew [2013] NSWCA 297).

Complaint 1

1. The Certificate of Conviction (s 178 Evidence Act 1995 (NSW)) (ex A2, tab 3) confirms that on 26 February 2016 Ms Ross was convicted of the following offences: 1. Offence under s 27E(2)(b) Summary Offences Act: on 3 June 2015 without lawful authority, bring Flucloxacillin into a place of detention; 2. Four offences under s 16(1) Poisons and Therapeutic Goods Act: on 11 June 2015 have in her possession prescribed restricted substances, being Ondansetron, Gentamicin, Clonazepam, Trimethoprim.
2. The Certificate of Conviction confirms that Ms Ross was sentenced to a term of imprisonment of 7 months commencing on 26 February 2016 to be served by way of intensive correction in the community, and fined $300.00 for each of the four offences under the Poisons and Therapeutic Goods Act.
3. Complaint 1 is established.

Complaint 2

1. Section 130 of the National Law requires a registered health practitioner to give the relevant National Board written notice within 7 days of becoming aware that a relevant event has occurred. A "relevant event" includes in s 130(3)(a)(i) that the practitioner is charged with an offence punishable by 12 months imprisonment, and (ii) that the practitioner is convicted of an offence punishable by imprisonment.
2. The maximum penalty for an offence under s 27E(2) of the Summary Offences Act is imprisonment for 2 years or 20 penalty units or both.
3. On 11 December 2018 AHPRA advised the HCCC (ex A3, tab 33) that it has no record that Ms Ross notified the National Board that she was charged with an offence on or about 11 June 2015, or that she was convicted of one or more offences on or around 26 February 2016.
4. Ms Ross was arrested and charged on 11 July 2015. Ms Ross was required by s 130(1) of the National Law to notify the Nursing and Midwifery Board of Australia by 18 July 2015 that she had been charged. Her registration was suspended on 22 July 2015, and accordingly she was in breach of s 130 for a period of 4 days.
5. That contravention is unsatisfactory processional conduct as defined in s 139B(1)(b), and Complaint 2 is established.

Complaint 3

1. Particulars 1 - 6 of Complaint 3 rely on contravention of the JH Code of Conduct 2006. The relevant provisions of that Code (ex A3, tab 31) are in Part 2 Point 1.0 Additional Provisions Specific to Staff of Justice Health, relating to Associations with inmates/detainees, and in Part 2 Point 2.0 Involvement with Department of Corrective Services. Included in Part 2 Point 1.0 is the following: Contact and acceptable communication with inmates/detainees and their families All official dealings with inmates/detainees will be professional transparent, accountable and fair. … Relationships with inmates/detainees during and after incarceration Inappropriate relationships with inmates/detainees can lead to manipulation or compromise. While staff based in correctional/juvenile justice facilities will have regular interaction with offenders, they must be aware of the danger of 'crossing the line' or becoming vulnerable. As stated above, all relationships with inmates/detainees past or present must be declared to the staff member's immediate line manager. Dealing with financial matters for inmates/detainees …Justice Health staff must under no circumstances provide or arrange to provide any substance, advice, goods or services to any inmate/detainee patient outside of their official duties. If a staff member is in any doubt about this matter, he or she must refer the matter to their immediate line manager for resolution.
2. Part 2 Point 2.0 includes the statement that "Justice Health staff are obliged to adhere to Justice Health Policies and procedures".
3. The November 2014 version of the Code (ex A4) includes the same information at points 3.1.3: Contact and acceptable communication with inmates/detainees and their families, and 3.1.4: Relationships with inmates/detainees during and after incarceration.
4. Both versions of the Code state that Justice Health staff are required to be aware of and comply with the provisions.
5. The evidence as to Ms Ross' contact with Inmate A as the basis for Complaint 3 is as follows.
6. As to the meeting with Inmate A on 3 June 2015, the Senior Assistant Superintendent records in a Department of Corrective Services Incident Report (ex A2, tab 18) that on 3 June 2015 he received a telephone call from a senior correctional officer who had observed Ms Ross come to the front of the Activities area gate and hand what appeared to be a monthly pack of medication to Inmate A, and on contacting the Acting Unit Nurse Manager, was told it was not practice to take medication to the yards and especially not Activities. The Acting Unit Nurse Manager in a witness statement dated 20 July 2015 (ex A2, tab 19) confirmed that he had given that advice to the Senior Assistant Superintendent, and stated that he had checked the current medication charts and Inmate A was not on any medication which required delivery on that day. An Incident Report by a Senior Correctional Officer dated 4 June 2015 (ex A2, tab 23) includes the statement that she was told a nurse would be coming to Activities to hand Inmate A his monthly medications, and that she observed Ms Ross have a discussion with Inmate A and then leave, and observed Inmate A and other inmates looking in the bag of medications. In a subsequent statement to police dated 6 August 2015 (ex A2, tab 26), the Senior Correctional Officer stated that the only time that nurses attend the Activities area is if there is an incident and an inmate requires medical attention or first aid, and that is when she called the Senior Assistant Superintendent to say that "something just occurred and it doesn't seem right; the nurse attended activities and gave [Inmate A] a package and after she left I saw some other inmates looking in the package".
7. Detective Senior Constable Munro in his witness statement (ex A2, tab 20) records that on 4 June 2015 he viewed CCTV footage of Ms Ross meeting Inmate A the previous day. He and another officer attended Inmate A's cell while a search was conducted by Corrective Services Officers where he was informed a box of medication labelled in the name of Inmate A (Dalacin) had been located, inside which were 20 tablets of a different medication and a pair of earphones. He and the other officer attended the General Manager's office where he took possession of an exhibit, being two mini mobile phones. On return to the GCC he and the other officer collected exhibits including 3 SIM cards, various medications, and a mini bluetooth phone and other items.
8. A Senior Correctional Officer provided a Misconduct Report relating to Inmate A (ex A2, tab 22), in which it is recorded that on 4 June 2015 he was required to take Inmate A from the yard and search him. Inmate A removed a package from his pants. The package contained two black mobile phones and a USB charger cable. Inmate A said they were not his and he found them.
9. As to the alleged telephone contact, Senior Constable Kelli Moller in her witness statement of 10 July 2015 (ex A2, tab 17) records that she requested information on the mobile phone number registered to Ms Ross (04xxxxxx85) and that used by Inmate A (04xxxxxx77), and the results showed contact between April to May 2015. Telephone records are in evidence (ex A3, tab 30), and confirm that an SMS was sent from 04xxxxxx85 to 04xxxxxx77 on 3 May 2015 (pp 84, 266), and calls were made from 04xxxxxx85 to 04xxxxxx77 on 25 April 2015 (p 253), 27 April 2015 (p 254), 29 April 2015 (p 259), and 30 April 2015 (p 264).
10. The evidence includes statements made by Ms Ross when interviewed by NSW Police after her arrest. In her ERISP at Nowra on 11 June 2015 (ex A2, tab 25) Ms Ross stated that she took "empty boxes" to Inmate A at 1.00, 1.30pm in the Circle, stating that she was sure it was all on camera (p 14). They were empty boxes in a plastic bag. In response to questions about telephone contact with Inmate A, Ms Ross did not comment. Ms Ross stated (p 26) she did not deliver any medication, and that she was asked to provide some empty medication boxes.
11. Inmate A was interviewed by police on 12 June 2015 (ex A2, tab 27) and stated that he was removed from the cell he had occupied on 4 June 2015 because of possession of two mobile phones and a charger found on him on 4 June 2015. He was given the phones by a nurse, Ms Ross (p 9). He stated that on 3 June 2015 he was given two boxes inside a bag by Ms Ross (p 16), and identified a box labelled "Dalacin", and Flucloxacillin tablets, and stated they were in the box given to him by Ms Ross (p 19). A second box contained two black phones and a charger (pp 20-21). He used one of the phones that night to call his girlfriend. When he came into the yard they were still on him (p 26). He was not prepared to identify the person who had told him to hold them (p 31). He did not receive any other items from Ms Ross (p 32). Inmate A was asked about the record of telephone contact with Ms Ross, and stated that he had phoned her on a number recorded on a handwritten piece of paper received from another inmate (p 42). The phone calls were to find out when she was working (p 44). He had phoned her less than a dozen times (p 50).
12. Based on that evidence, the Tribunal makes the following findings. 1. Ms Ross met Inmate A at Activities on 3 June 2015. The evidence of the Acting Unit Nurse Manager confirms that there was no need for provision of medication that required such a meeting, which would have been a professional reason for the meeting. 2. The Tribunal finds that at that meeting on 3 June 2015 Ms Ross handed Inmate A 2 boxes. Particular 2 states that this was for the purpose of moving contraband. Ms Ross' evidence to police was that the boxes were empty. Ms Ross confirmed in her ERISP that she had requested to see Inmate A to deliver "some stuff", being empty boxes in a plastic bag. She stated (p 26) that she had been approached by Inmate A the day before and asked to provide some empty medication boxes; he did not explain why he wanted them and she does not ask any questions. It was not put to Ms Ross during the ERISP that the purpose was to facilitate movement of contraband. However, in her statement to the s 150 hearing on 22 June 2015, Ms Ross stated (ex A2, tab 15, p 5) that she provided empty boxes of medication, on CCTV, knowing that would alert officers that requests were being made of her. The inmates had contacted her by mobile phone on multiple occasions requesting a variety of means for them to conceal the contraband that they already had in their possession and were having smuggled in by a variety of unnamed Corrective Services officers. The Tribunal is satisfied that in providing the boxes, Ms Ross knew it was for the purpose of facilitating movement of contraband. 3. The Tribunal is satisfied that it is more likely than not that Ms Ross provided Flucloxacillin to Inmate A in the box on 3 June 2015. Inmate A's cell was searched on the following day and the box labelled Dalacin with Inmate A's name on it was located, containing 20 tablets of Flucloxacillin and the earphones (tab 20). Ms Ross pleaded guilty to the charges of having Flucloxacillin in her possession, and of taking Flucloxacillin into GCC without lawful authority, which was accepted by the Local Court as an admission that there had been medication, and not simply empty boxes. 4. The only evidence that Ms Ross gave Inmate A the mobile phones found on his person when he was searched on 4 June 2015 comes from Inmate A in his ERISP (ex A2, tab 27, p 12). Ms Ross declined to comment on that allegation in the ERISP, and denied it in her statement to the s 150 hearing. The charge for the offence involving the mobile phones was withdrawn and dismissed (ex A2, tab 3, p 2). The matters recorded in Inmate A's ERISP indicate that the events of 3 June 2015 were not a one off, and that there had been previous contacts with Ms Ross and other persons outside GCC; and further, the record of items located in his cell and the cell of another inmate on 4 June 2015 confirms that there had been previous provision of items to inmates including mobile phones. The telephone records confirm contact in April and May 2015, however no direct connection with Ms Ross for provision of those items has been established. While it would be consistent with the sequence of events as recounted by Inmate A that the boxes handed by Ms Ross to Inmate A on 3 June 2015 included a box containing the phones, the evidence does not establish that to the required degree of satisfaction, and the Tribunal does not find that Ms Ross provided two mobile phones to Inmate A. 5. In her ERISP Ms Ross confirmed that 04xxxxxx85 was her mobile number. Senior Constable Moller, who requested the formal telephone records, states in her witness statement of 10 July 2015 (ex A2, tab 17) that the records show that number having contact with the mobile phone number 04xxxxxx77 "(This number being used by [Inmate A])". That is the only confirmation in the available evidence that that number was a number used by Inmate A. Inmate A in his ERISP could not recall the number he used, or Ms Ross' number, stating that he called a number written for him on a piece of paper. Ms Ross declined to comment when questioned about telephone contact with Inmate A. The telephone records confirm a number of calls and texts between those phone numbers. Based on the evidence of Senior Constable Moller and the telephone records, the Tribunal is satisfied that there was contact by telephone including SMS between Ms Ross and Inmate A before the events of 3 June 2015. There is nothing to indicate any professional or work-related purpose for such contact.
13. Having regard to those findings, the Tribunal is satisfied that: 1. Ms Ross met Inmate A on 3 June 2015 and provided him with two medication boxes; 2. Ms Ross provided Inmate A with Flucloxacillin on 3 June 2015; 3. Ms Ross had telephone contact with, and sent SMS messages to, Inmate A during April and May 2015; and 4. There was no professional reason for the meeting with Inmate A, or the provision of medication to him, on 3 June 2015, or for the telephone and SMS contacts with him.
14. Those findings mean that particulars 1, 2, 4, 5 and 7 of Complaint 3 are established. The meeting with Inmate A and provision of medication boxes to him on 3 June 2015, and earlier telephone and SMS contact with Inmate A, was contrary to the requirements of Part 2 Point 1.0 and Part 2 Point 2.0 of the JH Code of Conduct. The matter particularised as particular 7 of Complaint 3 was the matter on which Ms Ross pleaded guilty and was convicted; it was also contrary to the requirement in the Code of Conduct not to provide or arrange to provide any substance, advice, goods or services to any inmate or patient outside of her official duties.
15. In her expert report dated 9 November 2017 (ex A2, tab 5), Ms Christine Muller states that Ms Ross' decision to meet with Inmate A on 3 June 2015 was not of a professional nature, and that to do so was significantly below the standard expected of a registered nurse with similar qualifications and experience. Her decision to provide Inmate A with 20 tablets of Flucloxacillin that had not been prescribed by a medical practitioner, and her decision to provide him with empty medication boxes, were inappropriate and significantly below the standard expected of a registered nurse with similar qualifications and experience. Having telephone and SMS contact with Inmate A was a direct breach of Corrective Services security procedures, the JH Code of Conduct, and a serious breach of professional boundaries, and was inappropriate behaviour significantly below the standard expected of a registered nurse with similar qualifications and experience.
16. The Tribunal accepts the assessment of Ms Ross' conduct made by the expert, based on the expert's experience as a registered nurse including 18 years' experience working in NSW correctional centres
17. Complaint 3 is that Ms Ross is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law, in that she engaged in improper or unethical conduct relating to the practice of nursing. The words "improper" and "unethical" as used in s 139B(1)(l) are not defined in the National Law but have been considered in a number of Tribunal decisions. The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of professional conduct". As was the case in Health Care Complaints Commission v Little [2016] NSWCATOD 146, the Tribunal adopts the dictionary definition in construing these words as they appear in the National Law. The Tribunal is satisfied that Ms Ross' conduct was contrary to her obligations as an employee of JH providing nursing services in GCC as set out in the Code of Conduct, and conduct which occurred while occupying a position of trust as a nurse, and was improper and unethical conduct so as to be unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law.
18. Complaint 3 is established.

Complaint 4

1. In considering whether the conduct found established in Complaints 1, 2 and 3 amounts to professional misconduct as defined in s 139E of the National Law, that is, conduct of a sufficiently serious nature to justify the suspension or cancellation of her registration, the Tribunal notes that the gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264.
2. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], 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. At [20] his Honour continued: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
3. As the Code of Conduct makes clear, health professionals employed by JH are required to exercise care in their relationships and contacts with inmates and detainees, and are vulnerable to manipulation and compromise. The expert report of Christine Muller (ex A2, tab 5) notes that breaches of professional boundaries includes secretive behaviour and "crossing the line"; that there are within NSW correctional facilities numerous information signs highlighting that it is an offence to introduce contraband items; and that it is common knowledge for JH staff that they are not permitted or able to make personal calls to an inmate and that to do so would be a breach of security.
4. The Tribunal finds that the conduct of Ms Ross as found in relation to Complaint 3 is such a departure from expected behaviour of health professional staff in a correctional centre as to justify suspension or cancellation of her registration. When considered together with the criminal convictions relied upon in Complaint 1, the Tribunal concludes that Ms Ross is guilty of professional misconduct.

Protective orders

1. Having found that the complaints against Ms Ross have been proved, the Tribunal may, under s 149A(1) of the National Law: (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
2. The Tribunal may suspend or cancel Ms Ross' registration, as it has found that she is guilty of professional misconduct: s 149C(1)(b) of the National Law. The offences for which Ms Ross was convicted occurred while she was working as a nurse, and the circumstances in which those offences occurred were integral to the role of a nurse; her access to the medication and her ability to pass it and the boxes to an inmate could only have been available because of her position as a nurse, and involved an abuse of the trust involved in that position. The Tribunal is satisfied that those circumstances render her unfit in the public interest to practise her profession, so that the additional basis on which her registration can be suspended or cancelled is available under s 149C(1)(c) of the National Law.
3. The power to make any of these orders is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held: 20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
4. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a), to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s 3A.
5. While the Tribunal has found that Ms Ross is guilty of professional misconduct, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. Whether or not the misconduct is sufficiently serious to warrant cancellation or suspension depends on the circumstances of the individual case.

What protective orders should be made

1. The HCCC submits that the circumstances of the offences for which Ms Ross was convicted are integral to her role as a nurse, and arose because of her position as a nurse, and involve an abuse of trust. There are two separate bases on which the HCCC argues for cancellation of Ms Ross' registration, first the underlying seriousness of her conduct overall, and secondly her failure to disclose her arrest, acknowledging that the obligation to notify the regulatory body under s 130(3)(a)(i) ended when her registration was suspended. The HCCC submits that the Tribunal has not been assisted by Ms Ross, who has not engaged in the proceedings, and accordingly does not have before it any recent evidence from her for example to explain her conduct, express insight, acknowledge the breaches of trust involved or the significance of the criminal convictions, or express remorse for her misconduct. The HCCC submits that Ms Ross used her position of trust to deliver mobile phones to an inmate in the GCC and to supply prescription drugs to an inmate; she only had access to the drugs and to the inmate because of the position of trust she held in the medical system; and she also had in her home prescription drugs that she was no authorised to have. Ms Ross' misconduct gives rise to serious concerns about her integrity; her conduct has the consequence of damaging the reputation and good standing of the nursing profession in the eyes of the community; and the only appropriate response is a further period of exclusion from the practice of nursing.
2. The Tribunal agrees that the conduct of Ms Ross was serious. In sentencing her for the offences the subject of Complaint 1, the Local Court magistrate stated (ex A2, tab 3) that the major offence under the Summary Offences Act called for a custodial sentence, commenting that to facilitate the provision of any drug apart from prescribed drugs to persons who are incarcerated requires general as well as specific deterrence. The conduct the subject of Complaint 3 involved, as submitted by the HCCC, a use of her position of trust in having access to prescription drugs and supplying them to an inmate, in contravention of the clearly identified obligations as an employee of JH in the correctional system. While the Tribunal has not found that Ms Ross provided the mobile phones to Inmate A, her provision of the boxes alone on the understanding that they would be used for movement of contraband was a serious breach of her obligations both under the Code of Conduct and more generally in the position of trust held as a nurse.
3. As accepted by the HCCC, while there was a breach of the obligation to notify the Nursing and Midwifery Board that she had been charged with an offence punishable by imprisonment of 12 months or more, that obligation ended on 22 June 2015 when Ms Ross was suspended in the s 150 proceedings. The failure to comply with s 130 was a matter of days, and Ms Ross did notify her employers of her arrest.
4. The Tribunal accepts, as did the Local Court, that the loss of the opportunity to practise her profession is a significant consequence of Ms Ross' actions. However, the Tribunal is required, as discussed in Lee at [20], to consider whether the experience of the criminal and disciplinary proceedings may have "opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish the likelihood of its repetition and to produce a level of insight" into character or misconduct. Ms Ross has not participated in the proceedings or provided any material in response to the HCCC complaints that might assist the Tribunal in understanding what may have motivated her to engage in the conduct, whether she shows any insight and remorse, and what steps she may have taken in rehabilitation.
5. In the absence of any such material the Tribunal notes the Local Court sentencing remarks, which confirm that the court accepted her remorse, noted that based on background material in the psychologist's report Ms Ross was an educated and compassionate person, and accepted that her prospects of rehabilitation were high.
6. As to an explanation for the conduct, the only relevant material before the Tribunal comes in the transcript of the ERISP in 11 July 2015, and in Ms Ross' statement to the s 150 hearing (ex A2, tab 15). In the s 150 hearing Ms Ross stated that she had moved back to Goulburn in 2009 and worked on a casual basis in order to support her grandparents; and 5 weeks afterwards her father died. Since that time she had suffered ongoing anxiety problems. She denied smuggling any contraband into the facility where she had worked without incident for almost 7 years. She admitted handing a bag of medication to Inmate A, being empty boxes of medication she had affixed his patient labels to. Since October 2014 she had been threatened and harassed by family members of another inmate who had been convicted of gang-style killings in 2002; they had gained information about her family members. She did not report it as she was not willing to bet the lives of her family against the hope that the threats made against her family would not occur. She had been harassed by phone and in person. As a result of stress and fear she had required anxiety medication. At no time did she provide medication, or mobile phones or any contraband to Inmate A or the other inmate, but provided them with empty boxes of medication after months of threats and harassment.
7. The Tribunal accepts that Ms Ross' statement to the s 150 hearing that she had been threatened and harassed provides some explanation for her decision to provide the boxes and medication to Inmate A. The Tribunal acknowledges that Ms Ross did not give evidence to the Tribunal and accordingly the above material was not tested, however her statement that she knew that providing the boxes to Inmate A on CCTV would alert officers that requests were being made of her while appearing to be providing things that the inmates had been demanding is consistent with her statement to police that she knew she would be seen on the cameras handing over the boxes, and lends support to that explanation. The Local Court magistrate accepted that there had been "some level of duress or pressure". That explanation is also consistent with the Local Court magistrate's acknowledgment that Ms Ross was a person of prior excellent character with very high prospects of rehabilitation.
8. However, while accepting that there was an explanation for her conduct, the Tribunal nonetheless finds that the conduct was a serious departure from the required standards. In her expert report Ms Muller states that in her experience, threats to staff are taken seriously by Corrective Services; and that Ms Ross could have removed herself from the situation by not taking casual shifts at GCC if she was fearful that her family would be harmed and had no faith that authorities could keep them safe. Ms Muller concluded that her conduct, given the justification and mitigating facts for providing Inmate A with medication boxes, was inappropriate, in breach of security procedures and the Code of Conduct and a serious breach of professional boundaries. In the absence of any explanation from Ms Ross as to why she did not take steps to notify the relevant authorities, the Tribunal accepts that conclusion.
9. In her statement at the s 150 hearing Ms Ross explained the medication found at her home as having been inadvertently brought home after a busy 12 hour shift at Shoalhaven emergency department, and that she pulled them out of her scrubs the morning after her shift. She always endeavours to return any items such as Micropore, scissors, pens or pills to stock on her next shift; these items were seized during the raid before her next available shift. Ms Ross stated that she had notified her employers after she was arrested that she would not be providing any services as a registered nurse again.
10. Ms Muller accepted it was plausible that Ms Ross could have inadvertently taken home the wafer of Ondansetron, the strip of Trimethoprim, and Flucloxacillin, in the pocket of her scrubs after a busy night shift, however it was less plausible that she was not aware she had a vial of medication in her pocket. Ms Ross' justification for being in possession of restricted prescribed substances in names other than those who reside at her home was unacceptable and below the expected standard. However, Ms Muller had no real issue with Ms Ross' statement at the s 150 hearing that she challenged then to find any nurse who does not inadvertently or accidentally bring home items they use in order to complete tasks during their shift, considering that many registered nurses with equivalent experience would agree with that sentiment when considered out of context. She did, however, question the validity of the statement, given the amount of unprescribed medications found in Ms Ross' possession.
11. In considering whether the seriousness of the conduct is such as to warrant an order cancelling Ms Ross' registration, the Tribunal has had regard to the following statement of principle in In Health Care Complaints Commission v Do [2014] NSWCA 307, where the Court of Appeal said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
12. As noted by Basten JA in Chen, the Tribunal must make an evaluative judgment as to the nature and seriousness of the conduct. The Tribunal has not had the benefit of evidence as to what insight Ms Ross may have as to the misconduct, or steps taken to demonstrate that the departures from expected and required standards of behaviour as a registered health practitioner were a one off and unlikely to be repeated. Given the seriousness of the misconduct, and the importance of maintaining the standards of the profession, the Tribunal considers that an appropriate protective order is to cancel Ms Ross' registration as a nurse.
13. The HCCC submits that a period of 2 to 3 years is required before Ms Ross should be able to seek re-registration. Basten JA in Chen noted at [21] that the fixing of a period within which re-registration may not be sought has a twofold operation: it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession, while holding open the possibility that an application for re-registration thereafter will at least be considered. At [88] Payne JA held: The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order.
14. The Tribunal has no evidence from Ms Ross to assist in considering what steps might need to be taken by Ms Ross before she might be in a position to justify re-registration. The Tribunal must accordingly be guided by its understanding of the seriousness of the conduct. The Tribunal also takes into account the fact that Ms Ross has had her registration suspended since 2015, and has not been able to practise as a nurse now for four years. The Tribunal accepts that the criminal proceedings against Ms Ross would account for some of that time. To impose a period of 2-3 years from the date of these orders would result in a period of time before Ms Ross could apply for a reinstatement order beyond that required to reflect the seriousness of the misconduct. The Tribunal considers it appropriate, for the reasons given by Basten and Payne JJA in Chen, to impose a period under s 149C(7), and that that period should be one year from the date of these orders.
15. The HCCC seeks an order that the Tribunal is the appropriate review body. That is the position under s 163(1)(c) of the National Law unless the order being reviewed provides it may be reviewed by the Nursing and Midwifery Council, or an order is made by the Tribunal List Manager that the Nursing and Midwifery Board or the Nursing and Midwifery Council is the appropriate review body for a review under Div 8 of Part 8 of the National Law.
16. The HCCC seeks a reprimand. A reprimand demonstrates that the practitioner is sanctioned for failing to meet expected professional standards, and acts as a deterrent to other practitioners; and further, upholds and reinforces the standards of the profession: Health Care Complaints Commission v Perera [2018] NSWCATOD 112 at [99]. The Tribunal agrees that a reprimand is appropriate to reinforce the need for practitioners to comply with their obligations to the regulatory authorities, and to reflect the seriousness of the conduct found in Complaint 3.

Costs

1. The HCCC seeks an order that Ms Ross pay its costs of the proceedings. The HCCC in a letter to Ms Ross dated 14 June 2019 provided an itemised bill of costs and disbursements to date, together with estimated costs of the hearing including barrister fees, totalling $13,635.77.
2. Clause 13 of Sch 5D of the National Law enables the Tribunal to make an order for payment of costs. The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282: 85. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".)
3. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. The Tribunal is satisfied that the HCCC has taken appropriate steps to inform Ms Ross of the disciplinary proceedings, and that she has had the opportunity to be informed of the issues and had an opportunity to respond. There is no disentitling conduct as on the part of the HCCC in the conduct of the proceedings. It is appropriate to order that Ms Ross pay the costs of the HCCC.
4. Clause 13(3A) of Sch 5D provides that the Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor in accordance with the costs legislation, being the Legal Profession Uniform Law Application Act 2014 (NSW). The usual form of order would be for costs to be as agreed or assessed. In the present circumstances it is unlikely that the HCCC and Ms Ross would reach agreement as to costs. The HCCC estimates its costs to be $13,635.77, an amount which would not warrant the time and expense likely to be incurred with an assessment. Based on the detailed breakdown of costs and disbursements provided with the letter of 14 June 2019, the Tribunal is satisfied that the amount of $13,635.77 represents an appropriate order for costs.

Orders

1. The Tribunal orders: 1. The complaints of unsatisfactory professional conduct and professional misconduct are proved. 2. The Respondent is reprimanded. 3. The Respondent's registration as a nurse is cancelled from the date of this decision. 4. The Respondent is not to make any application for review of the cancellation of her registration for a period of 12 months from the date of this decision. Any application for review must be made to the New South Wales Civil and Administrative Tribunal. 5. The Respondent is to pay the costs of the Health Care Complaints Commission in the amount of $13,635.77.

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: 04 October 2019