Health Care Complaints Commission v Russ

NCAT Occupational|2020-11-16

REASONS FOR DECISION

On six occasions between September 2018 and January 2019, Registered Nurse, Ms Lauren Russ, assisted her husband in supplying cocaine from their family home. They were arrested in April 2019. In August 2019, after entering a guilty plea, Ms Russ was convicted by the NSW Local Court of supplying a "prohibited drug", namely cocaine, under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW).
At the time of her arrest, Ms Russ was working as a registered nurse in the surgical ward of the Coffs Harbour Health Campus, where she had been working for about a decade. Ms Russ has not worked as a nurse since her arrest, having been suspended and later terminated from her position.
On 15 July 2019, after proceedings conducted under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law), the NSW Nursing and Midwifery Council (the Council) suspended Ms Russ's registration. On 20 April 2020, following a review conducted under s 150A of the National Law, the Council lifted the suspension and in substitution imposed a condition on Ms Russ' registration, requiring that she work under "indirect supervision". That condition remains in place.
In October 2020, after investigating a complaint about Ms Russ referred by the Council, the Health Care Complaints Commission (the Commission) referred a complaint (the Complaint) to the New South Wales Civil and Administrative Tribunal (NCAT) about Ms Russ.

Background to Ms Russ's conviction

In August 2018, the NSW Police Force established Strike Force Cyril to target the supply of cocaine in the Coffs Harbour area. Ms Russ and her husband were arrested as part of that investigation. At that time Mr and Ms Russ were living on a property they owned just outside Coffs Harbour with their two infant children.
Ms Russ admitted to knowingly assisting her husband to supply cocaine from the family property on six separate occasions between September 2018 and January 2019. After being contacted by her husband by SMS or phone, at his direction, Ms Russ: 1. on two occasions permitted a person to attend the family property to collect drugs; 2. on one occasion took an amount of cocaine from one person and hid it on the family property for collection by another person; 3. on two occasions put together bundles of cash for collection, knowing that it was to be used for the purchase of drugs; 4. on one occasion agreed to facilitate the supply of cocaine. That transaction did not proceed.
Mr Russ was the instigator of the supply of cocaine. Ms Russ had no direct dealings with either the suppliers or purchasers. While she concedes to knowingly taking part in the offence, she claims she did so at her husband's direction.
Mr Russ was convicted of drug-related offences and given a custodial sentence. According to Ms Russ, her husband was released from custody in May 2020 after spending several months in rehabilitation and serving part of his sentence.
The Local Court sentenced Ms Russ to a term of imprisonment of 13 months to be served by way of an intensive correction order made under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In addition, the Court imposed a condition that Ms Russ perform 100 hours of community service work.
Ms Russ appealed against the severity of that sentence. In allowing the appeal, Robinson DCJ described the objective seriousness of the offence at the "low range of offending". His Honour considered significant: Ms Russ's actions in entering a guilty plea at the earliest opportunity and assisting authorities in relation to the prosecution of other offenders; that Ms Russ posed a "very low risk" of reoffending - "I think one could virtually rule [out] any risk of reoffending"; Ms Russ being a person of good character with no previous criminal history; Ms Russ's minor role in the offence, and Ms Russ's actions in "fully satisfying" the 100 hours community service condition imposed by the Local Court. His Honour set aside the conviction, discharged Ms Russ under a conditional release order made under s 10(1)(b) of the Crimes (Sentencing Procedure) Act and ordered her to comply with a conditional release order for a period of nine months.

History post arrest

Ms Russ has not worked as a nurse since her arrest in April 2019. Since December 2019 she has worked as a shop assistant.
Ms Russ admits trying cocaine several years ago on a few occasions in a social context. She denies any other use of a prohibited drug. A drug test undertaken by Ms Russ in December 2019 returned a negative result.
Throughout the period of the offending conduct (September 2018 to January 2019), Ms Russ was working two shifts per week in the surgical ward of Coffs Harbour Health Campus, having returned from maternity leave in early 2018.
In a statement prepared for these proceedings, Ms Russ stated that: 1. the past 12 months have been the "most challenging of my life" as a single mother for about a year (while her husband was in custody) and "as a result of my actions" being forced to sell the family home; 2. she acknowledges that she has "caused harm to the community, her immediate family [and] also my nursing family through the supply of a dangerous substance"; 3. while she and her family have suffered as a result of her actions, "nothing compares to [the] embarrassment and shame, I feel knowing that I have contributed to drugs being in our society"; 4. she has "witnessed the heartache families endure when someone close to them is addicted to drugs"; 5. she became a nurse to help people and her actions "went against everything I was taught in my life as well as the values instilled in me by my parents"; 6. she recognises the fundamental conflict between the conduct in her private life and "my purpose as a nurse to promote health and wellbeing in the community and [to] provid[e] safe patient centred care"; 7. she takes full responsibility for her actions and is "incredibly remorseful and fully understands the gravity of her actions"; 8. she has used her time away from nursing for "deep reflection" on what it means to be a nurse; 9. in addition, during that time she has acquired a better understanding of her professional obligations under the "Code of Conduct, Code of ethics and the decision-making framework". She acknowledges that the codes apply at all times, not only at work, and that she must be "honest and compliant with the law at all times". 10. she now knows to remove herself from any situation that appears to be unethical or illegal and to seek assistance if she is uncertain about what to do.
Ms Russ was questioned in these proceedings about her knowledge of drug abuse within society at the time of the offending conduct. She stated that while she had some understanding, she had no direct experience of the effect of drug abuse on families, either through her work in the surgical ward or personal experience.
In answer to questions about her husband's involvement with drugs, Ms Russ stated that he started to use cocaine occasionally in about 2017 when there was a downturn in his concreting business and he became depressed. She stated that initially he appeared to use cocaine to "keep himself going" and that it was not until their arrest in April 2019 that she realised that her husband had a serious addiction.
She said she became aware that her husband was selling cocaine when he gave her the "heads up" that people would be arriving at the property to pick up or drop off things in a designated spot. She agrees that by September 2018 her involvement had escalated from "turning a blind eye" to assisting her husband in supplying cocaine.
She said that she felt vulnerable and "didn't want this happening around her children". She said while she was worried for her husband, she was not worried for herself, believing that her participation - leaving cash for people to collect, or letting people drop off drugs in the letterbox - was not illegal. She stated that she now realises this belief was "stupid" and any involvement in the supply of drugs, however small, is illegal.
Ms Russ claims that after his arrest her husband spent six months in drug rehabilitation. She claims that on his release from custody in mid-2020 when he returned to live with the family, she was unsure whether she would ever be able to trust him again and he had to "work hard to regain her trust". She claims they attended family counselling and she has made it clear to him that she would end their relationship if he was again to become involved with illicit drugs. She admits never asking her husband to desist from supplying drugs. She acknowledges that she should have been stronger and directed him to stop or removed herself from the situation.

Character references

Ms Russ tendered six character references in these proceedings. Five were provided by former nursing colleagues. Most are friends of Ms Russ. Each refer to the subject offence, state it was out of character and that Ms Russ is remorseful and deeply ashamed of her actions.
Clinical nurse educator, Peter Brookes, stated that he was shocked to learn of Ms Russ's involvement in criminal conduct, which he did not condone. He described it as "certainly not … a reflection of Lauren's nursing practice … [my observations of her] or social interactions". He wrote in glowing terms about her work as a nurse. He stated that he had several conversations with Ms Russ about her conduct and observed her to be "remorseful, apologetic and regretful".
Acting Nurse Unit Manager, Ms Victoria Clark, has worked with Ms Russ for 10 years. She attested to Ms Russ's dedication to her profession and strong work ethic. Ms Clarke stated that she has had multiple conversations with Ms Russ about "the disappointment and embarrassment she has caused her nursing family and her community" and her deep sense of remorse. Ms Clark stated she has discussed with Ms Russ the ethical obligations members of the nursing profession must adhere to and was aware that since being stood down from her position, Ms Russ had undertaken several courses in ethics and the law.
The sixth reference was provided by Ms Russ's supervisor throughout the period she performed community service. The supervisor expressed a high opinion of Ms Russ.

Submissions

The Commission contends that cancellation of Ms Russ's registration is the appropriate order. Ms Russ opposes that order but leaves to the Tribunal the appropriate form of order.
The Commission contends that the circumstances of the offence for which Ms Russ was convicted render her "unfit in the public interest to practise the … profession" of nursing (s 149C(1)(c)) and, as a consequence, the power conferred by s 149C of the National Law to cancel Ms Russ's registration can be exercised.
The Commission submits that in deciding whether the circumstances of the offence render Ms Russ unfit in the public interest to practise nursing, the factors identified in Health Care Complaints Commission v Marsh [2016] NSWCATOD 155 are relevant: (1) Whether the misconduct could be satisfactorily explained as an error of judgment rather than a defect of character; (2) The intrinsic seriousness of the misconduct in terms of fitness to practise; (3) Whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities or character; (4) The motivation which may have given rise to the proven episode of misconduct; (5) The underlying qualities of character shown by previous and other conduct; and (6) Whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a nurse.
In support of the contention that Ms Russ is unfit to practise, the Commission submits, first, that by her actions Ms Russ has willingly contributed to the scourge within the community of illicit drug use. The Commission points out that Ms Russ admits that from at least mid-2018 she turned a blind eye to her husband's involvement in supplying illicit drugs and, between at least October 2018 to January 2019, played an active role.
Second, the Commission contends that Ms Russ has failed, as required, to provide "clear proof" that she has reformed, referring to the oft-cited statement made by Walsh JA in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW) (Pt 2) 275 at 286, (Tziniolis) cited with approval in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 (at 637) and Lee v Health Care Complaints Commission [2012] NSWCA 80 at [72]: "... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man."
Third, the Commission points out that none of the people who supplied references in support of Ms Russ and attested to her good character, state, as Ms Russ appears to contend, that there has been a "fundamental change in her character" since the offending conduct.
Fourth, in the context of the s 150 review proceedings as recently as last year, the comments made by Ms Russ to the Council that through her conduct she did not place any patient at risk, demonstrate a superficial understanding of the ethical obligations imposed by the Code.
Fifth, while in her statement prepared for these proceedings, she asserted that she has "separated herself from any former acquaintances or individuals who could negatively impact on my life and my decision making", Ms Russ has been living with her husband since his release from custody in May 2020. She provided no independent evidence to support her claim that he no longer uses drugs and has undertaken not to do so.

Do the circumstances of the offence render Ms Russ unfit in the public interest to practise the practitioner's profession?

Section 149C(1) enlivens the power to cancel or suspend a health practitioner's registration and provides that, "[t]he Tribunal may suspend ... or cancel the registered health practitioner's registration if the Tribunal is satisfied" of any one of the four matters identified in s 149C(1)(a)-(d): 149C TRIBUNAL MAY SUSPEND OR CANCEL REGISTRATION IN CERTAIN CASES [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied-- ... (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or
Section 149C(1)(c) requires the Tribunal to evaluate whether "the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession". We accept, as the Commission contends, that the term "public interest", which is not defined by the National Law, is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35].
Further, as Payne JA explained in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]-[69], s 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of "the practitioner's current fitness to practise".
The question posed by s 149C(1)(c) is whether the circumstances surrounding the relevant offence currently render the practitioner unfit to practise his or her profession in the public interest. The Tribunal must look back to the circumstances of 2018-19 and make that assessment in the present. Nonetheless, that evaluation has a narrow focus and is to be undertaken solely by reference to "the circumstances of the offence".
As noted by Robinson DCJ, while the offence for which Ms Russ was convicted was inherently serious, the objective seriousness of Ms Russ's conduct fell at the low end of the scale for offences of this type. Nonetheless, the supply of illicit drugs is self-evidently inconsistent with the public interest and the ethical obligations of a registered nurse, even where, as here, it is unrelated to the performance of that role.
Offences are committed by individuals with varying subjective characteristics and personal circumstances. In construing s 149C(1)(c) we need to take into account the objectives of the National Law which relevantly include "the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": s 3(2)(a). Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether, as a result of having committed an offence they have behaved so egregiously as to render the subject practitioner "unfit in the public interest to practise the practitioner's profession".
The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances.
There is no evidence that Ms Russ's involvement in her husband's illegal drug activities affected her professional competence as a nurse. On the contrary, professional colleagues who knew her work spoke highly of her as a nurse. The issue here is ethical. The question is whether a relatively short involvement in serious illegal activity "renders" Ms Russ "unfit in the public interest to practise the … profession [of nursing]".
Committing a criminal offence, of course, raises questions about a person's character and fitness to practise as a health practitioner. In Tziniolis, Walsh JA suggested that character is a relatively permanent state. Because of this, he expressed some scepticism about the capacity of human beings to rehabilitate themselves. That observation appears to have been based on His Honour's experience of life rather than any independent empirical evidence. The observation, however, can apply in a positive way: if character is relatively stable, just as evidence of bad character must be given great weight, so must past good character be given appropriate weight in assessing a practitioner's fitness to practice.
As the proceedings in the courts made clear, Ms Russ did not instigate her husband's drug dealing, nor did she take the initiative herself by going into the supply of drugs on her own account. She does not appear to have been coerced by Mr Russ. Rather her involvement appears to have been reluctantly acquiescent in her husband's activities, rather than calculated or enthusiastic.
It is notable that, until then, she had no criminal history and had evidenced no criminal tendencies. Although Ms Russ admitted some minor recreational drug use several years ago, she is merely one of a significant number of otherwise law-abiding Australians who have done the same thing. Her admission of such conduct was, in fact, evidence of her willingness to be honest and frank and does her credit and supports the claims of her referees that she is a person of good character.
Her very early plea of guilty and her assistance to the prosecution suggest a determination on her part to face up to the consequences of her misconduct and, having accepted her legal punishment and public humiliation, to abide by the law and to live as a good citizen and parent of her children. That suggests that her offence was unusual and out of character for her, serious as it was. The Commission argues that there is no evidence in the references Ms Russ relies on of "fundamental change in character". That is because, according to her referees, her fundamental character is a good one.
Her remorse for her offence was assessed by the courts and others as genuine. Once sentenced by the Local Court, notwithstanding the decision of the pending appeal against the severity of that sentence, Ms Russ fulfilled all her obligations - so well, in fact, that the manager of the organisation where she undertook her community service work provided her with a reference. Once again, this suggests insight into the seriousness of her offence and a determination on her part to conduct herself lawfully and honourably.
Notwithstanding its very serious nature, having regard to the totality of the evidence of the circumstances of the offence, we are not persuaded that it rendered Ms Russ unfit in the public interest to practise the profession of nursing. That evidence supports a finding that although her offence was serious, it was so unusual for her that it cannot be considered emblematic of her fundamental character or her capacity to conduct herself ethically as a member of the nursing profession.
For these reasons, therefore, we are not persuaded that the circumstances render Ms Russ unfit in the public interest to practise the profession of nursing.

What if any disciplinary powers should be exercised?

Where a complaint made under the National Law is admitted, the Tribunal may exercise the powers in Sub-div 6, Div 3 of Pt 8 of the National Law, which include the powers to caution, reprimand and to impose conditions on a practitioner's registration. Given we are not satisfied that the circumstances of the offence render Ms Russ unfit in the public interest to practise, the power to suspend or cancel Ms Russ's registration cannot be exercised: s 149C(1)(c) of the National Law.
The National Law directs that in exercising the power to make disciplinary orders, the paramount consideration is the protection of the health and safety of the public: s 3A.
In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA emphasised at [20] that, "Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance … is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it, citing with approval the explanation given by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]: 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."
Relevant but not determining the question of what order should be made under s 149A of the National Law is the risk of reoffending.
We are satisfied, as was Robinson DCJ and Local Court Magistrate Gibson, that there is no material risk of Ms Russ reoffending. We accept that she is deeply remorseful and ashamed of her actions and is acutely aware that her actions are entirely inconsistent with the values taught by her parents and her obligations as a nurse. Her actions in entering a guilty plea at the first possible opportunity together with her actions in assisting police in prosecuting other offenders, is consistent with her claim. So too are the assessments made by Ms Russ's colleagues who provided character references on her behalf in these proceedings.
As the Commission points out, there is no independent evidence of Ms Russ's claimed rehabilitation. Nonetheless, we are satisfied, as claimed by Ms Russ, that it is highly unlikely that she would again turn a blind eye, less still assist her husband, in any illegal activity, including the use or supply of illicit drugs. In reaching that conclusion we have taken into account Ms Russ's remorse and insight, the genuineness of her claim that she is deeply embarrassed for the reputational damage she has caused the nursing profession and has suffered in the eyes of her community, her parents and potentially her children, together with the deterrent effect of the criminal proceedings, these proceedings and those before the Council.
While, as the Commission points out, Ms Russ has not undergone any significant counselling or other form of rehabilitation, we accept that she has reflected on her actions and given careful consideration to what she would do if in the future she was confronted with some form of illegal activity, including the use of illicit drugs. Her referees stated that she had genuinely reflected on her actions.
We also accept that Ms Russ has given careful consideration to the Code of Ethics and her ethical obligations as a nurse. In our view, she has moved beyond the "superficial understanding" of her obligations expressed to the Council in the context of the s 150 proceedings and now recognises her obligations extend beyond the performance of her role as a nurse.
In our view, in the circumstances of this case, the issue of a reprimand, which will appear on the public record of Ms Russ's registration maintained by the Australian Health Practitioner Regulation Agency, serves to denounce her conduct and will operate as a form of personal and general deterrence. In concluding that, in all the circumstances, the issue of a reprimand is an appropriate form of order, we have also taken into account that for over 12 months Ms Russ's registration has been suspended and/or subject to conditions.

Costs

The parties consent to the Tribunal making a fixed costs order pursuant to cl 13(1) and (3A) of Sch 5D of the National Law that Ms Russ pay costs in the sum of $8,000 to the Commission.

Orders 1. Pursuant to s 149A(1) of the Health Practitioner Regulation National Law (NSW), Ms Russ is reprimanded. 2. By consent, Ms Russ must pay to the Health Care Complaints Commission costs of $8,000.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2021

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