Solicitors: Health Care Complaints Commission (Applicant)
[2]
No appearance by Ms Shrimpton (Respondent)
File Number(s): 18/184718
[3]
Introduction
On 19 February 2019 the Tribunal found that complaints brought by the Health Care Complaints Commission (the Commission) against Ms Shrimpton of unsatisfactory professional conduct and professional misconduct were proved. This decision comprised stage one of the proceedings: see Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25.
On this same date the Tribunal made directions for the provision of written submissions from the parties for the next stage, being stage two of the proceedings. Stage two of the proceedings would deal with the final and protective orders that should be made. This decision reflects stage two.
The Tribunal received submissions from the Commission dated 25 February 2019. It has not received any submissions or any other material from Ms Shrimpton.
The findings which the Tribunal made on 19 February 2019 were grounded in three complaints which are summarised as follows:
1. Ms Shrimpton dishonestly used a credit card belonging to an elderly hospital patient for her own financial advantage whilst the patient was in her care.
2. Ms Shrimpton tried to conceal her conduct by providing an untruthful account to her supervisor and, when investigated, to the Commission.
3. Ms Shrimpton failed, as required under s. 130(1) of the National Law to notify Australian Health Practitioner Regulation Authority (AHPRA) that she had been charged with a criminal offence punishable by at least 12 months' imprisonment, namely, fraud an offence under s. 192E of the Crimes Act 1900 (NSW).
In our earlier reasons for decision in stage one of the proceedings we found the following matters which are of relevance to this decision:
1. Ms Shrimpton dishonestly and knowingly used a patient's credit card for her own financial advantage.
2. The patient did not consent nor was she in a state to give consent for the use of her credit card. Ms Shrimpton knowingly took advantage of that vulnerability.
3. The fraudulent conduct, opportunistic theft and dishonesty shown by Ms Shrimpton in her dealings with her peers and AHPRA fall far below the standards reasonably expected of a registered nurse and were improper.
4. Ms Shrimpton's duty to be candid and honest with the Commission is an integral part of the proper functioning of the regulatory system. She demonstrated a disregard for the Commission and its role. This conduct was not in conformity with standards of professional conduct and practice and was improper and unethical.
5. Ms Shrimpton's lack of candour with her colleagues, AHPRA and the Commission was because of a desire to avoid the consequences of her behaviour.
6. Ms Shrimpton's conduct was made all the more shameful by the fact that after the patient's death she deliberately contacted and misled a grieving family member, the patient's son, about the whereabouts of the credit card.
7. The exploitation of a frail, aged and vulnerable patient is conduct of a nature which strikes at the heart of public confidence in the profession. What Ms Shrimpton then said to the bereaved son of the patient after her death about the credit card further diminished trust which the public should be entitled to hold in the profession. To make matters worse Ms Shrimpton then compounded her conduct with her lack of candour with her colleagues, AHPRA and the Commission.
[4]
Principles regarding protective orders
The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see sections 149A, 149B and 149C of the National Law.
Having found the complaint of professional misconduct proven against Ms Shrimpton we may exercise powers to suspend or cancel her registration: see s. 149C(1) of the National Law. Further, if we are satisfied that Ms Shrimpton poses a substantial risk to the health of members of the public we may prohibit her from providing specified health services for a period specified in the order or permanently: see s. 149C(5)(a) of the National Law.
The Commission seeks cancellation of Ms Shrimpton's registration as a nurse for a period of 24 months. In addition the Commission submits that Ms Shrimpton poses a substantial risk to the health of members of the public and seeks a prohibition order. Specifically the Commission seeks an order prohibiting Ms Shrimpton from providing health services as an assistant in Nursing unless and until such a time as she is re-registered as a Nurse.
In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see 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: see s 3A National Law. 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 HCCC [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.
In Health Care Complaints Commission v Do [2014] NSWCA 307 Justice Meagher (with whom Justices Basten and Emmett agreed) referred at 35 to the importance of denunciation of misconduct, in the context of s. 3 and s. 3A of the National Law as follows:
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.
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.
[5]
Consideration of protective orders
In our view Ms Shrimpton's conduct strikes at the very heart of the integrity and ethical candour that the public are entitled to expect of the nursing profession. There was an absence of propriety, honesty and integrity in her practice. The gravity of her conduct in using the credit card of a frail and elderly patient extends to the surrounding circumstances and the breach of trust it involved.
Moreover Ms Shrimpton made a deliberate decision to contact and mislead a grieving family member. She had time to reflect on this decision but chose not to do so. Her moral culpability is high because of the significant departure from acceptable standards.
Ms Shrimpton made no admissions in relation to the Complaint and has not participated in the proceedings. She has made no submissions as to protective orders. As a result we have limited measures by which we can assess the level of insight and remorse, if any, that Ms Shrimpton holds into her conduct.
Certainly Ms Shrimpton had an opportunity to demonstrate insight and remorse when investigated by her colleagues and the Commission. In our view the false representations she made to deliberately conceal her conduct and the telephone call to the patient's son to deflect attention away from her fraud are evidence of her lack of insight. This is not limited to insight as to whether her actions amounted to a criminal offence, but insight into what she understands about the standards of practice and morality required of her as a nurse. She has not provided any material that would assuage us in this regard.
Having regard to these matters together with the findings made in our earlier decision, we are satisfied that it is appropriate that Ms Shrimpton's registration should be cancelled, and that such cancellation should be for a longer period than that submitted by the Commission.
We conclude that Ms Shrimpton should not be able to make any application for review of the cancellation of her registration for a period of three years. In our view given the gravity of the misconduct and the upholding of public confidence in the nursing profession requires that her conduct in its entirety be denounced as unacceptable and that a period of three years appropriately reflects that. In addition it will afford a reasonable period for Ms Shrimpton to gain insight into her misconduct.
[6]
Prohibition order
The Commission seeks an order prohibiting Ms Shrimpton from providing health services as an assistant in nursing unless and until such a time as she is registered as a Registered Nurse.
The Tribunal can make a prohibition order if the Tribunal is satisfied that the respondent poses a substantial risk to the health of members of the public: see s. 149C(5)(a) of the National Law. An order of this kind is aligned with the protective purpose of the legislation.
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 that person were to be involved in the provision of health services.
The Commission submits that the risk posed by Ms Shrimpton if she were to provide health services as an assistant in nursing is she could in the future, as she has done in the past, conduct herself dishonestly and then seek to conceal that dishonesty to avoid detection. In this regard reference is made to the efforts she made in this case to avoid detection by her employer, patients, patients' families, and regulators. The Commission also referred to previous complaints, unrelated to the current matter, about Ms Shrimpton and her lack of candour.
The Commission also submits that there is a substantial risk that if Ms Shrimpton made a mistake that compromised the health of a patient which she considered may compromise her ability to continue as an assistant in nursing, she would not prioritise the health of the patient and could not be trusted to candidly disclose that error to her supervisors. It is argued that this puts a patient's health at risk.
We accept these submissions. Ms Shrimpton targeted her fraud towards a frail, aged and vulnerable patient. Further we had the benefit of hearing evidence from the patient's son as to the effect and impact that Ms Shrimpton's conduct had on him. In our view his evidence epitomised the underlying legislative principle of the protection of the health and safety of the public. Her misleading conduct towards him satisfies us that she presents a substantial risk to the health of members of the public.
Additionally, and as submitted by the Commission, in our view a prohibition order ensures that the protective purpose of the cancellation of Ms Shrimpton's registration is not significantly undermined. This is because if Ms Shrimpton were permitted to provide health services as an assistant in nursing during the interim period when her registration was cancelled, it would substantially diminish the protective purpose of any order that cancelled her registration and may undermine confidence held in the profession.
Considered together the cancellation and prohibition order are justified, appropriate and reasonable given our findings
[7]
Costs
The power to award costs in health profession cases is contained in Schedule 5D, Clause 13 of the National Law. Schedule 5D, clause 13(3A) of the National Law permits the Tribunal to fix the amount of costs, or order that the amount of costs be assessed by a costs assessor or order costs on any other basis.
The Commission seeks its costs in the fixed amount of $17,473.61 which is made up of:
1. $9,874. 86 in solicitor's costs;
2. $7,598.75 in disbursements which includes counsel photocopying and expert report fees.
The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: see Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at 22. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at 36. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
It was submitted by the Commission that as there were no admissions or concessions on any fact by Ms Shrimpton the matter involved putting together a relatively complex factual argument and submissions to prove the fraud to a very high required standard.
Further the costs claimed are not the actual costs of the Commission. They do not account for the Commission's preparation for the stage two hearing on the papers, including counsel and the Commission's costs in drafting submissions, and corresponding with Ms Shrimpton and the Tribunal on matters relevant to stage two of the proceedings.
The Commission submits that an order should be made in a fixed amount rather than as agreed or determined by a costs assessor. The Commission is concerned Ms Shrimpton would not engage in any agreement or assessment procedures given her lack of engagement to date in her hearing and subsequent process. A costs assessment is a protracted and added cost for both parties. The Commission accepts that the amount can be hard for a personal litigant to pay but the fixed amount sought is not so high as to warrant protracting the matter further for a costs assessment.
We are satisfied from the material before us that Ms Shrimpton has been put on notice by the Commission of the amount sought by them in costs and how that amount is quantified. For the reasons submitted by the Commission it is appropriate to fix costs in the amount sought by them of $17,473.61.
[8]
Orders
1. The Respondent's registration as a nurse is cancelled from the date of this decision being stage two of the proceedings
2. The Respondent is prohibited from providing health services as an Assistant in Nursing unless and until such a time as she is registered as a Registered Nurse
3. The Respondent is not to make any application for review of the cancellation of her registration for a period of three years from the date of this decision.
4. The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2 and 3 above as soon as practicable
5. Under Sch 5D, cl 13(3A) of the National Law the Respondent is to pay the costs of the Health Care Complaints Commission fixed in the amount of $17,473.61
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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
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Decision last updated: 03 April 2019