Health Care Complaints Commission v Svensson

Background

1. The Respondent was first registered as a nurse on 17 February 1978. [3] She worked for the Northern Beaches District Child and Family Health Service from April 2001 to 21 January 2020. [4] From time-to-time, the Respondent attended the Mona Vale Child and Family Health Care Centre and Dalwood Children's Services site.
2. Having referred to these matters in his helpful submission on behalf of the Commission, Mr Stephens tendered as evidence a bundle of documents to which he added an Ahpra Evidentiary Certificate and an Evidentiary Certificate from NMC. That bundle was admitted into evidence as Exhibit 4 and identified for convenience as the Commission's Exhibit Bundle (CB). Mr Stephens relied upon the following matters and facts which were supported by documents within the CB and the Tribunal finds established.
3. On 3 February 2020, Ms Linda Wadsworth, the Director, Nursing and Midwifery, with the North Sydney Local Health District made a complaint about the Respondent to the Commission. [5]
4. That complaint noted that the North Sydney Local Heath District (NSLHD) proceeded to conduct an investigation of the Respondent's practice at NSLHD following an allegation the Respondent entered false patient appointments into her eMR calendar on 7 September 2018. [6] On 28 September 2019, an additional audit / privacy review was conducted to assess whether the Respondent accessed patient files inappropriately and without clinical necessity. [7] On 14 February 2019, the Respondent met with a GIPA officer where the Respondent was notified of the allegations. She was formally notified in writing on 22 May 2019. [8] On 16 April 2019, a further audit was conducted which found a further breach of privacy in accessing patient records. [9]
5. On 19 July 2019, the investigation team met with the Respondent to seek a verbal response from the Respondent. A written response was also provided. [10] On 13 August 2019, the Respondent was provided further information and invited to a further interview. [11] On 1 October 2019, the Respondent provided a written response to the allegations admitting she entered false appointments on 7 September 2019. [12] The NSLHD produced a detailed report of its investigation which identified the allegations had been substantiated. The Respondent was notified of the findings on 2 December 2019 and notified it was proposed her employment be terminated. [13] On 20 December 2019, the Respondent provided a further response to the allegations outlined in the Final Investigation Report. [14] Except in relation to 20 patients, the Respondent disputed wrongful access to patient records and of that 20 she claimed at least 11 were probably opened in error. The Respondent's employment was terminated on 21 January 2020.
6. On 18 May 2020, the NMBA decided to impose conditions on the Respondent's registration pursuant to s 150 of the National Law. [15] The Respondent did not attend the s 150 hearing and has not engaged substantively with the Commission in relation to its investigation. Save for her application made pursuant to clause 12 of Schedule 5D of the National Law which was made by the Respondent when self-represented, the Respondent has not otherwise formally responded to the Commission's complaint. The Respondent was legally represented until 14 March 2022 when her then solicitor, Ms B Haider, filed a Notice of Ceasing to Act. In the email to which that notice was attached, Ms Haider wrote as follows: [16] Dear Registrar I act for the Respondent, Ms Lisa Svensson in this matter. The representative for the Applicant, the HCCC, Mr Oliver Stephens, is also included in this email. Last week my client was affected by floods and suffered chest pain from which she was hospitalised. She continues to receive treatment and in the circumstances has surrendered her registration as a nurse. I attach a copy of the Notice of Surrender of Registration which was confirmed as received by AHPRA today. Ms Svensson is unable to further participate in these proceedings. In the circumstances, I also attach a Notice of Representation noting I am ceasing to act in this matter. I can be reached on [number omitted] should you wish to discuss this matter further.
7. On 15 March 2022, the Respondent was emailed to confirm whether she preferred to have the hearing dates listed 31 March 2022 and 1 April 2022 vacated and re-listed to a date when she was able to participate. By a reply dated the same date, the Respondent's former legal representative, Ms Haider, confirmed: A change of hearing dates will not alter her inability to participate in these proceedings.
8. On 17 March 2022, the Commission requested that the matter be re-listed for directions on 18 March 2022 to "determine whether and how the matter should proceed on 31 March 2022".
9. By a further reply dated 17 March 2022, the Respondent's former legal representative, Ms Haider, again confirmed to the Tribunal that a "change of hearing dates will not alter Ms Svensson's inability to participate in these proceedings".
10. By Orders made on 18 March 2022, the Tribunal directed that the matter be listed as undefended if the Respondent failed to file material and/or participate in the hearing. As noted previously on 23 March 2022, the Respondent filed her Application seeking relief pursuant to clause 12 of Schedule 5D of the National Law.
11. On 31 March 2022, Ms Haider appeared before us by telephone link and advised the Tribunal that she had spoken to the Respondent. As already noted, Ms Haider appeared as a matter of courtesy to the Tribunal. Although no longer instructed by the Respondent, Ms Haider confirmed that the Respondent did not intend to take further part in the proceedings in the event that her application pursuant to clause 12 of Schedule 5D of the National Law was unsuccessful. Ms Haider also confirmed that the Respondent understood that in the event that her application was unsuccessful, the Commission's application would be heard and determined on an ex parte basis.

The Respondent's Application pursuant to Clause 12 of Schedule 5D of the National Law

1. As will become apparent, the Tribunal in coming to its decision has considered the objects provision of the National Law (s.3) and the NSW Objective and guiding principle (s.3A). Those provisions are as follows: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and (b) the registration of students undertaking - (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are - (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; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

The evidence of the parties

1. The Tribunal accepted into evidence on behalf of the Respondent the following documents: 1. The Respondent's Application pursuant to clause 12 of Schedule 5D of the National Law, Exhibit T-1; 2. The Medical Certificate of Dr Vincent Chang dated 21 March 2022, Exhibit T-2; 3. A Statutory Declaration declared by the Respondent and dated 19 March 2022, Exhibit T-3. There was no issue before the Tribunal that the Respondent had surrendered her nursing registration.
2. The Commission relied upon the following documents which were admitted into evidence: 1. The Commission Exhibit Bundle (CB) comprising 64 tabs, Exhibit 4, to which the Evidentiary Certificates already referred to were added; 2. New South Wales Health Policy Directive PD2015-049, Exhibit 5; and 3. The Nursing and Midwifery Board Code of Professional Conduct, Exhibit 6.
3. The Tribunal also marked as an aide memoir submissions on behalf of the Commission which became Exhibit 7.
4. Tribunal Exhibit 1, the Respondent's Application pursuant to clause 12 of Schedule 5D, reads as follows: I am the Respondent in this case, and I am self-represented. Due to my health, I have not been able to further participate in these proceedings. I attach a letter from my GP, Dr Vincent Chang, dated 21 March 2022. I am writing to you after Mr Oliver Stephens from the Health Care Complaints Commission wrote to me on 15 March 2022 and alerting my attention to clause 12 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) 2009. I have been invited to make this application and I wish to please respectfully ask that the Tribunal consider whether this case can be considered under this section. I have spoken to Benish Haider from the NSW NMA who has explained this clause to me. Mr Stephens, through Ms Haider, also invited me to provide a statutory declaration confirming that I have surrendered my registration undertaking not to seek registration ever again as a nurse. I would respectfully please ask that this enquiry not be conducted or terminated under clause 12(1)(a)(ii) of Schedule 5D of the Health Practitioner Regulation National Law (NSW) 2009 because I have ceased to be a registered health practitioner. If the HCCC wish to withdraw the complaint, I would ask that this enquiry not be conducted or be terminated under clause 12(1)(a)(iii) of Schedule 5D of the Health Practitioner Regulation National Law (NSW) 2009. I acknowledge that as a result of my own mistakes that I made when using eMR, I have lost my rights to nursing practice in the service and advocacy of children and their families in our community. Thank you for considering this letter. Lisa Svensson 23 March 2022
5. The Respondent also relied upon a Statutory Declaration, Tribunal Exhibit 3, which states: I, Lisa Svensson of 18 / 35-43 Dalley Street, Queensclliff in the State of New South Wales do solemnly and sincerely declare that: (1) On 17 February 1978, I was registered by the Nursing and Midwifery Board of Australia as a Registered Nurse. (2) On 13 March 2022, I completed a form providing Notice to the Nursing and Midwifery Board of Australia of surrender of my registration as an Registered Nurse pursuant to s 137 of the Health Practitioner Regulation National Law (NSW) No.86a. (3) I undertake not to seek registration again as a nurse in Australia. I am retired and am presently suffering from a chronic cardiac health condition. (4) I acknowledge that if I attempt to seek registration as a nurse in future that the Health Care Complaints Commission may proceed to prosecute a complaint against me in the NSW Civil and Administrative Tribunal.
6. Tribunal Exhibit 2, the Medical Certificate dated 21 March 2022, provided by the Respondent's treater, Dr Vincent Chang, states: Dear Principal Member This is a letter to certify that I have been looking after Ms Lisa Svensson and her family as their family doctor since December 2013. I have always found Ms Svensson to be an unwaveringly trustworthy competent and intelligent individual. She has my respect. Ms Svensson was recently hospitalised (Royal North Shore Hospital 9-11/3/22) with ischaemic chest pains, dyspnoea, palpitations and presyncope. She was diagnosed with a condition of Takotsubo Cardiomyopathy ("broken heart syndrome") when the heart muscle becomes suddenly stunned or weakened. This condition is essentially caused by extreme stress / emotional distress and I am firmly confident that the undue stress of legal proceedings has not only exacerbated but directly caused it. It is my professional assessment that Ms Svensson is unable to participate any further in proceedings.
7. The evidence before us establishes and the Tribunal finds that the Respondent is no longer registered as a nurse. The Commission, although prepared to consent to the Respondent's application, has not withdrawn its complaint. Consequently, the Respondent's application is made pursuant to clause 12(1)(a)(ii) of Schedule 5D. Schedule 5D, clause 12(1)(b) requires that the Tribunal also be of the opinion that it is not in the public interest for the inquiry to continue. Section 3A of the National Law requires the Tribunal to consider as the paramount consideration, the protection of the health and safety of the public. Therefore a decision to dispense with a hearing requires the Tribunal to be satisfied that it is in the public interest to do so having addressed the paramount consideration of the health and safety of the public. [17]

What is the "public interest" to be considered here?

1. In Health Care Complaints Commission v Grygiel (termination application) [2020] NSWCATOD 53 (Grygiel), her Honour J. Boland ADCJ considered the term "public interest" in the context of an application pursuant to clause 12 of Schedule 5D of the National Law and said at [136] as follows: 136. I commence my discussion of the question posed by consideration of 3 criteria. First, by consideration of relevant provisions of the Health Care Complaints Act 1993 (NSW) and the National Law. Secondly, by reference to the scope and purpose of protective orders which may be made at the conclusion of disciplinary proceedings under the National Law. Thirdly, to general principles derived from case law.
2. At [137]-[143], her Honour considered the first of the criteria she proposed and noted the terms of relevant provisions including: 138. Section 90C of the Health Care Complaints Act provides as follows: 90C Criteria relevant to determinations of Director of Proceedings (1) The Director of Proceedings is to take into account the following matters when making a determination as to whether or not a complaint should be prosecuted before a disciplinary body - (a) the protection of the health and safety of the public, (b) the seriousness of the alleged conduct the subject of the complaint, (c) the likelihood of proving the alleged conduct, (d) any submissions made under section 40 by the health practitioner concerned. (1A) … (2) ... 140. Section 149D [sic] (s.145D) of the National Law requires the HCCC to refer a complaint to the Tribunal that may, if substantiated, provide grounds for suspension or cancelation of a registered health practitioner's registration. It provides as follows: 145D Serious complaints must be referred to Tribunal [NSW] (1) Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's or student's registration. (2) However, either the Council or the Commission may decide not to refer the complaint to the Tribunal if of the opinion the allegations on which the complaint is founded (and on which any other pending complaint against the registered health practitioner or student is founded) relate solely or principally to - (a) for a practitioner, the physical or mental capacity of the practitioner to practise the practitioner's profession; or (b) for a student, the physical or mental capacity of the student to undertake clinical training in the health profession in which the student is registered. (3) If the Council decides not to refer the complaint to the Tribunal, the Council must instead refer the complaint to a Committee or Impaired Registrants Panel. (4) If the Commission decides not to refer the complaint to the Tribunal, the Commission must instead refer the complaint to the Council. (5) This section does not require the Council or the Commission to refer a complaint the Council or Commission thinks is frivolous or vexatious. 141. The Tribunal is empowered under Subdivision 6 of Division 3 of Part VIII of the National Law if it finds the subject matter of a complaint proved, or the practitioner admits the complaints, to exercise the remedies under s 149A (to caution, reprimand, etc), s 149B (to fine) or s 149C (to suspend or cancel a practitioner's registration if that practitioner is not competent to practice, is guilty of professional misconduct, is guilty of a criminal offence the circumstances of which render the practitioner unfit in the public interest to practice the practitioner's profession or the person is not a suitable person to be registered.
3. In [142], her Honour noted the provisions of s 149C(4) of the National Law which refer specifically to a person who is no longer registered and empower the Tribunal to determine that if that person were still registered it would have suspended or cancelled the person's registration. In [143], her Honour noted that the term "public interest" appears in a number of provisions in the National Law relevant to her determination in Grygiel. They also inform this Tribunal's consideration of the Respondent's application. These provisions and the legislation referred to above are matters which have been taken into account by this Tribunal.
4. The purpose of protective orders made in disciplinary proceedings is well known. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA (with whom Basten and Emmett JJA agreed) said at [34]-[37]: 34. The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include 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" and to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3. 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. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246, McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest."
5. In considering the relevant characteristics of the "public interest" referred to in the legislation, her Honour J. Boland ADCJ in Grygiel said as follows: 145. In Hogan v Hinch [2011] HCA 4, the High Court discussed the words "public interest" in the context of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) in circumstances where it was asserted a journalist had breached a suppression order made by a trial judge. French CJ explained: Section 42 requires the Court before making an order under the section, be satisfied that "it is in the public interest to do so". The term "public interest" and its analogies have long informed judicial determinations and evaluative judgments at common law. Examples include the enforceability of covenants in restraint of trade [67], claims for the exclusion of evidence on the grounds of public interest immunity [68], governmental claims for confidentiality [69], the release from the implied obligation relating to the use of documents obtained in the course of a proceeding [70] and in the application of the law of contempt [71]. When used in a statute, the term derives its content from "the subject matter and scope and purpose" of the enactment in which it appears [72]. The Court is not free to apply idiosyncratic notions of public interest. In exercising its powers under s 42, the Court must assess public interest by reference to the place of the section in the statutory scheme, the purpose of the Act as a whole and the purposes of the extended supervision orders. In determining whether to make a suppression order with respect to identification of an offender, the Court must consider the extent, if any, to which the order would enhance the protection of the community. It must also consider its effect upon the offender's prospects of rehabilitation. Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is certainly in the public interest. A Court considering such an order must also look to the larger constitutional and legal context which informs the interpretation of the statute, having regard to the effect of the order upon the open justice principle, on common law freedom of speech, and on the human rights guaranteed by the Charter. The application of a public interest criterion may require a balancing of competing interests and "be very much a question of fact and degree" [73] (footnotes omitted). 146. … 147. In McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 at [55], the High Court observed: It may readily be accepted that most questions about what is in "the public interest" will require consideration of a number of competing arguments about, or features or "facets" of, the public interest. As was pointed out in O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210: [T]he expression "in the public interest" when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "insofar as the subject matter and scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislation could have had in view": Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 505, per Dixon J.
6. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91], Basten JA said as follows: The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so.
7. These are considerations of the meaning of "public interest" which we have considered and taken into account. In Prakash, the matter concerned a medical practitioner but the Court's decision is of general application where a complaint has been proved. Further, it is the case that in considering the facets of "public interest" where they relate to the confidence that the public can have in the trustworthiness and competence of a practitioner in the practice of their profession it need not be shown that actual harm has occurred as a consequence of the inappropriate actions complained of. [18] It is the analysis in Prakash that we have found most helpful.
8. In Grygiel, her Honour J. Boland ADCJ said with respect to ss 3 and 3A of the National Law which required her consideration of the application pursuant to clause 12 of Schedule 5D then before her as follows at [152]: I accept that the scope and purpose of the legislation require that I consider s 3 (where relevant), s 3A and relevant provisions of Part 8 of the National Law. Inextricably intertwined with Part 8 are s 90B and s 90C of the Health Care Complaints Act.
9. These are the provisions which also apply to the considerations of this Tribunal. Where findings of fact are necessary it is the Commission which bears the onus of proof. In our consideration of the application pursuant to clause 12 of Section 5D, we note that the Respondent has not filed evidence disputing the Commission's complaint.
10. The Tribunal must be satisfied that facts asserted by the Commission are established to an appropriate standard of proof. That standard is discussed in many authorities and has generally been accepted to be one which requires the Tribunal to be "comfortably satisfied on the balance of probabilities" as explained in Briginshaw's case. [19] The Tribunal is not, however, bound by the rules of evidence. [20] It is, however, bound by the rules of natural justice in its conduct of proceedings heard and determined before it.
11. The particulars of the Commission's complaints which the Tribunal later deals with in detail and finds established also inform our decision to dismiss the Respondent's application to terminate the Commission's complaint.

The seriousness of the alleged misconduct and the Respondent's response to the Commission's Complaint

1. Before the Tribunal, the Respondent did not challenge the Commission's evidence as particularised. During the course of the investigations leading to the Commission's complaint, she did however challenge the accuracy of the outcome in part and where she did not challenge it characterised her conduct as a "mistake". That terminology was used again before the Tribunal in Exhibit T-1. Further, and the Tribunal finds disturbing, is the finding during the course of the NSLHD investigation that after the matter of unauthorised access was raised with the Respondent in February 2019, she thereafter again inappropriately accessed patient records on a further 5 separate occasions between February 2019 and April 2019. [21]
2. The Tribunal considers any unauthorised access to patient medical records a serious matter. Repeated unauthorised access over a period of years adds to the seriousness with which the conduct must be viewed. But in the case of the Respondent it does not end here because having had the inappropriate conduct brought to her attention, the Respondent continued it. The individual patients whose records were accessed and the public more generally should be confident that this behaviour does not occur but where it does it is treated by regulators, disciplinary bodies and this Tribunal as a matter of serious concern.
3. In addition, the Commission Complaint alleges, and the Respondent agrees, that in the case of 4 patients, she created a false medical record in the case of each of them which confirmed and checked in the 4 patients and their children to appointments where on the date entered none of them arranged nor attended appointments on that date. The Respondent, it was alleged and she agreed, made the false entries for her own personal interest, namely "to give herself time to do other work". It is not claimed that damage flowed to any of these patients but that is not the point. These are records which necessarily must be accurate because they are relied upon not only by the patients themselves but also, for example, alternate clinicians.

The Respondent's position

1. The Respondent in evidence before the Tribunal did not admit the full extent of her conduct complained of by the Commission. She left open for the Commission to establish the extent of her wrongful access to patient records. Neither did she acknowledge the seriousness or the inappropriate nature of her conduct. She described it as "mistaken". There was no contrition or apology to the patients whose records had been accessed; indicative of a lack of understanding of the seriousness of the conduct. The patients involved and the general public were and are entitled to expect that practitioners understand the need to maintain the privacy and accuracy of patient medical records.
2. It is the case that the Respondent has declared her intention not to seek registration again as a nurse in Australia. She is, she says, retired and presently suffering from a chronic cardiac health condition. There is no contrary evidence to the Respondent's retirement and her intention not to again seek nursing registration. Her medical condition is the subject of the uncontested evidence of her treater, Dr Vincent Chang. The Commission however has not withdrawn its Complaint. The Tribunal, as we have said, finds the remarks of Basten JA in Prakash referred earlier and also the passage cited from Crickitt to be of particular assistance in coming to our decision that termination of the Commission's Complaint is not in the public interest.
3. The Respondent's conduct is of a serious nature and involves directly matters which not only the patients affected but the public at large must be confident do not occur with any frequency. Further, the conduct affects or has the capacity to affect at the very least the standing of the nursing profession in the eyes of the public at large. It is conduct which when considering it the Tribunal must regard as one of the facets of that consideration pointing out to other practitioners the importance of complying with professional standards and the risk of failing to do so.
4. The conduct complained of does not arise through inadvertence or a momentary lapse in the exercise of skill or judgment; nor is the conduct an isolated incident.
5. For the reasons set out above, the Tribunal has determined not to terminate the Commission's Complaint and that it is in the public interest that it continue to be heard and determined. The Respondent's application for relief pursuant to clause 12(1)(a)(ii) of Schedule 5D of the National Law is therefore dismissed.

Proceeding to hear the Commission's complaint ex parte

1. The evidence set out earlier in [12]-[17] of this judgment establishes that the Respondent has been on notice for a considerable period of time that the Commission's Complaint would continue and be heard on an ex parte basis in the event that her application pursuant to clause 12 of Schedule 5D was unsuccessful. Most recently, Ms Haider confirmed when she appeared by telephone link before the Tribunal that the Respondent was aware that this would occur and would not take part. Section 165J of the National Law enables the Tribunal to proceed in the absence of the Respondent "as long as the practitioner or student has been given notice of the inquiry or appeal". The period of notice required is set out in Section 165I of the National Law which requires "… not less than 14 days' notice of an inquiry or appeal". For the following reasons, the Tribunal is satisfied that appropriate notice has been given and finds that the hearing of the Commission's Complaints should proceed ex parte.

Background

1. The Tribunal relies upon the background matters set out earlier in this judgment at [7]-[17].

The evidence relied upon

1. The Commission relied upon the evidence earlier referred to in this judgment at [20] and [21].

Complaint 1

1. Complaint 1 alleges that: [the Respondent] is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has: (l) engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
2. The particulars in support of that complaint allege that over an extensive period of some years the Respondent while employed at the Northern Beaches District Child and Family Health Service inappropriately accessed electronic health records (eMR) of patients in circumstances where: 1. She accessed the records of patients who were not directly under her care and/or there was no indication to access the records; and 2. She did not have nor sought authorisation from her employer to access those records.
3. The evidence relied upon by the Commission in support of those particulars comprised the following: 1. CB, Tabs 4 and 5, the complaint of Ms Linda Wadsworth dated 3 February 2020 setting out the findings made on 21 November 2019 following a formal misconduct investigation carried out by NSLHD; 2. CB, Tab 34, a letter from Ms Kim Field of NSLHD dated 2 December 2019 setting out the findings of its internal formal misconduct investigation and terminating the Respondent's employment; 3. CB, Tab 45, a statement of Ms Karen Dignam dated 25 February 2021, being the Respondent's relevant Nursing Manager who conducted client audits in respect of 33 patients and 5 patients whose records were inappropriately accessed by the Respondent; 4. CB, Tab 46, a statement of Ms Carol Parker dated 9 September 2020 being the Corporate Records Manager, Privacy and Right to Information Officer of NSLHD who authorised a final report reviewing the alleged breach of privacy dated 12 April 2019. The finding contained in the report was that access of records was because of a "frolic" namely for the Respondent's personal use only and that the breaches occurred because of "mischievous behaviour and not that [the Respondent] wished to harm any particular person"; 5. CB, Tab 43, a report of the Fact Finding Investigation by NSLHD dated 4 November 2019; and 6. CB, Tab 26, an analysis of the eMR chart access.
4. The Respondent did not file any evidence before the Tribunal but as the Commission properly points out, the Respondent did give responses to the NSLHD as follows: 1. CB, Tab 48, the Respondent's Response dated 19 July 2019; 2. CB, Tab 49, the Respondent's Response dated 1 October 2019. The attachments referred to in this document appear at CB, Tabs 22-23 which sets out the Respondent's original handwritten responses to each of the 88 clients whose records were claimed at that point to have been accessed by the Respondent; 3. CB, Tab 50, the Respondent's Response dated 13 August 2019; and 4. CB, Tab 52, the Respondent's Response received by NSLHD in December 2019.
5. On the basis of the evidence already referred to from CB, Exhibit 4, the Tribunal finds that the particulars set out in [1(a) and (b)] of the Commission's Complaint 1 are established.
6. The second paragraph of the particulars to Complaint 1 alleges that the Respondent acted contrary to a number of regulatory requirements and codes of conduct which it is not necessary to detail but which are identified in (a)-(d) of it.
7. The Commission's evidence in support of the second paragraph of the particulars comprised the following: 1. CB, Tabs 4, 5 and 34, already referred to; 2. CB, Tab 46, being the Statement of Ms Carol Parker dated 9 September 2020, she being the appropriate officer of the NSLDH who authorised the Final Report of the Respondent's alleged privacy breach, that report being dated 12 April 2019 which concludes at p.5, "the findings of this internal review conclude that Ms Svensson has breached Health Privacy Principle 10 as identified" by reason of her unauthorised access to client records"; 3. CB, Tab 43, the NSLHD Final Investigation Report dated 21 November 2019 which concluded breaches of PD 2015_049 of the Health Records Information Privacy Act; and 4. CB, Tab 62, the NSW Privacy Manual (March 2015).
8. On the basis of the evidence referred to above, the Tribunal finds that each of the particulars alleged in the second paragraph to Complaint 1 are established.
9. The third paragraph of particulars to Complaint 1 alleges that the Respondent: … inappropriately created, confirmed and checked in four patients and their children to appointments into the eMR in circumstances where: (a) the patients had already attended appointments on 6 September 2018; (b) the patients did not arrange nor attend appointments on 7 September 2018; (c) the eMR records made it appear as though the patients had attended and received post-natal consultation from the practitioner on 7 September 2018; and (d) the practitioner inappropriately created, confirmed and checked in the patients for her own personal interest, namely to give herself some time to do other work.
10. The Commission's evidence in support of the third paragraph is as follows: 1. CB, Tabs 4 and 5, already referred to; 2. CB, Tab 24, a screenshot of the Mona Vale eMR Schedule dated 7 September 2018; 3. CB, Tab 27, the explanation from Ms Karen Dignam of how the Respondent checked patients into the eMR system; 4. CB, Tab 34, a letter from Ms Kim Field of the NSLHD dated 2 December 2019 setting out the findings of its internal investigation; 5. CB, Tabs 38 to 41, being medical records of Patient AG, Patient AH, Patient AL and Patient AG referred to in Schedule 2 to the Commission's Complaint; 6. CB, Tab 43, the report of a fact finding investigation by NSLHD dated 4 November 2019; 7. CB, Tab 44, a Statement of Ms Jacqueline Adams dated 8 October 2020 of a conversation between Ms Adams and the Respondent in which the Respondent said words to the effect of, "I put 5 appointments in the scheduler so I wouldn't be asked to move to another clinic because I have notes to complete."; 8. CB, Tab 45, a Statement of Ms Karen Dignam dated 25 February 2021 being the Respondent's relevant Nursing Unit Manager (NUM) in which Ms Dignam produces a file note of a conversation with Ms Adams where Ms Adams stated, "LS [the Respondent] stated she put 5 x appointments into her scheduler so she would not be requested to move to clinics to support her co-worker as she had a couple of weeks ago". [22] Ms Dignam extracted the 8 electronic entries of 7 September 2018 and rang each of the 8 clients to determine whether they attended on 7 September 2018. [23] Ms Dignam raised the allegation with the Respondent on 14 September 2018 in which the Respondent gave the answer referred to in (g) above; 9. CB, Tab 38, a Response from the Respondent dated 13 August 2019 in which an admission is made that the entries were made on 7 September 2018 despite those patients attending on the prior day, 6 September 2018; and 10. CB, Tab 52, a Response from the Respondent to allegations in December 2019 admitting to a "mistake of entering eMR scheduler appointments on 7 September 2018".
11. On the basis of the evidence set out above, the Tribunal finds that each of the particulars in the third paragraph to Complaint 1 of the Commission's Complaint is established.

Complaint 2

1. Section 139B(1) of the National Law includes a definition of "unsatisfactory professional conduct" in relation to a registered health practitioner. The section provides in part: 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 - … (l) other improper or unethical conduct any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. The Tribunal has considered the meaning of improper or unethical conduct in a number of authorities. In HCCC v Liu [2016] NSWCATOD 133, the Court relevantly in relation to these proceedings noted as Mr Stephens for the HCCC submits that: 1. The relevant ordinary meanings of "improper" include not in accordance with truth, fact, reason or rule; abnormal, irregular, incorrect, inaccurate, erroneous, wrong; [24] 2. In professional disciplinary proceedings, "impropriety" means a breach of the standards of conduct that would be expected of a person in a position of the practitioner; [25]
3. The Respondent's conduct here falls comfortably within the scope of one or more of the factors referred to in (a) above, and is clearly in relation to (b) above a breach of the standards of conduct, that would be expected of a person in the position of the Respondent. In particular, the Tribunal accepts and agrees with the submission put on behalf of the Commission at [45] of counsel's submissions, the substance of which are reproduced below. a. The Respondent was aware her employment was subject to compliance with NSLHD Position Description which required adherence to "statutory requirements and NSW Ministry of Health and NSLHD Policy and Procedures"; [26] b. The Respondent was aware of Community Health and Outpatient Care (CHOC) communication requiring progress notes to be entered in eMR to record why a client file was accessed and/or why a practitioner was accessing client files not under their immediate care; [27] c. The Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia, s 3.5 specifically outlines that nurses must protect the privacy of patients and access records "only when professionally involved in the care of a person and authorised to do so"; d. The Respondent had previously refused to attend another clinic in Balgowlah on 23 August 2018 and say used the scheduler for her own benefit to avoid reallocation on 7 September 2018; [28] e. The Respondent was subject to a performance improvement plan commencing 28 March 2017; [29] and f. After being made aware of the first breach of privacy, the Respondent was placed under supervision and given a directive not to access client files that were not under her name but continued to access client files not in her name. [30]
4. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct pursuant to s 139B(1)(l) of the National Law.
5. The second question which falls for consideration is whether the Tribunal is satisfied that the Respondent's conduct as set out in Complaint 1 also renders her guilty of professional misconduct.
6. Professional misconduct is defined in s 139E of the National Law which provides: 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.
7. The Commission submits that there should be a finding of professional misconduct. The Tribunal is satisfied that that is the case and finds the Respondent guilty of professional misconduct. The reasons for this finding include: 1. That the Respondent accessed the eMR records on 38 occasions over a period of years. She accessed the records of multiple patients; 2. The Respondent continued wrongfully to access those records and did so on at least 4 established occasions after the inappropriate nature of that conduct was raised with her; 3. The Respondent at no stage appears to the Tribunal to have accepted the seriousness of her breach of appropriate professional standards. She continues to refer to her conduct as "mistaken". Further, when confronted in the course of the investigation, she sought to deflect the seriousness of her breaches by asserting that other practitioners engaged in the same conduct. That and her initial denial exhibited limited insight and an endeavour to minimise the seriousness of her conduct; 4. The Respondent admitted making the false entries on 7 September 2018 and that this was done for her own personal benefit; 5. The patients in question were mothers and children receiving post-natal care and necessarily correct recording of their medical records is paramount to good care and continuity of care.
8. The Tribunal agrees with the submission made on behalf of the Commission in Mr Stephens' written submissions at [50(m)]: [that] the conduct in question brings the profession of nursing into disrepute, namely as member of the public ought reasonably to expect that patient records are accessed for a legitimate reason in accordance with established privacy principles and guidelines; acting contrary to this explanation erodes the trust in the nursing profession.

The orders sought by the Commission

1. The Commission seeks the following orders in the event that the Tribunal was satisfied, as it is, that the Complaint is made out: 1. An order under s 149C(4)(a) of the National Law that if the Practitioner was still registered the Tribunal would have suspended her registration; and 2. An order under s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the Practitioner was still registered, the Tribunal would have suspended her registration in the National Register kept by the Board; 3. An order under clause 13 of Schedule 5D of the National Law that the Practitioner pay the Commission's costs as agreed or assessed. The Commission also seeks an order prohibiting the disclosure of the names of the patients listed in Schedules A and B to the Complaint filed pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW).
2. For the purposes of Stage 2, there are two steps to the Tribunal's considerations. First, once the Complaint is proven it is necessary to consider what orders are appropriate to protect the public. Secondly, what costs orders, if any, are appropriate in the circumstances of the case.
3. Turning to the first matter, the Tribunal has found that the particulars to Complaint 1 are established. However, in determining the issue of appropriate protective orders, our paramount consideration is the protection of the health and safety of the public. In these proceedings it is the nature of the complaints which have been established which are important in relation to protecting public health and safety and public confidence in the administration of the protective provisions of the law.
4. The fact that the Respondent fails to see the significant inappropriateness of her conduct and that she has offered no explanation for it must weigh heavily against her. Accessing, without reason, private patient records and the creation of false patient records is a serious matter. This is because it breaches a substantial right of each patient whose records were accessed namely, the right that they will remain private save and except where necessarily accessed for the purpose of treatment. In a wider context, the conduct affects the public confidence in the professionalism of the nursing profession, that the conduct also continued after its wrongful nature was brought to the Respondent's attention. The Tribunal is satisfied that having regard to these matters, protective matters in the terms sought by the Commission are appropriate and orders in those terms will be made.

Costs

1. The Commission seeks an order that the Respondent pay the Commission's costs as assessed or agreed.
2. The discretion given to the Tribunal when considering whether or not an order for costs should be made is, as the Commission submits, a wide discretion. It is, however, a discretion bounded by legal principles. Any order made is not to punish the unsuccessful party but rather to compensate the party in whose favour the order has been made. In exercising the power to award costs, it is accepted that the general rule is that costs follow the event. [31]
3. The general rule can be displaced where there has been disentitling conduct by the successful party. There is no disentitling conduct in these proceedings. Consequently, an order for costs as assessed or agreed will be made in the Commission's favour.

Orders 1. The Respondent's application pursuant to clause 12 of Schedule 5D of the National Law is dismissed. 2. An order under s 149C(4)(a) of the National Law that if the Practitioner was still registered the Tribunal would have suspended her registration; and 3. An order under s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the Practitioner was still registered, the Tribunal would have suspended her registration in the National Register kept by the Board; 4. An order under clause 13 of Schedule 5D of the National Law that the Practitioner pay the Commission's costs as agreed or assessed. 5. That pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the names of the patients listed in Schedule A and Schedule B to the Health Care Complaints Commission's Amended Complaint is prohibited.

Endnotes

1. Commission Exhibit 1.
2. Commission Exhibit 2 (Medical Certificate) and Exhibit 3 (Respondent's Statutory Declaration).
3. Commission Exhibit Bundle (CB), Tab 5, Complaint of Linda Wadsworth, Section 2; and Tab 2, AHPRA Evidentiary Certificate.
4. CB, Tab 5, Complaint of Linda Wadsworth.
5. CB, Tab 5.
6. CB, Tab 43, NSLHD Final Investigation Report dated 21 November 2019.
7. CB, Tab 46, Statement of Carol Parker dated 9 September 2020.
8. CB, Tab 43, NSLHD Final Investigation Report dated 21 November 2019; Tab 31, NSLHD letter to Respondent dated 22 May 2019.
9. CB, Tab 43, NSLHD Final Investigation Report dated 21 November 2019.
10. CB, Tab 32, Minutes of Meeting with Respondent held on 19 July 2019; Tab 42, Transcript of NSLHD Interview with Respondent dated 19 July 2019; and Tab 48, Respondent's Response dated 19 July 2019.
11. CB, Tab 33, letter of Linda Wadsworth dated 13 August 2019.
12. CB, Tabs 49 and 50, reproducing Tabs 22-23, Response to the Complaint from the Respondent dated 1 October 2019.
13. CB, Tab 34, letter from Kim Field to Respondent dated 2 December 2019.
14. CB, Tab 52, Respondent's undated further response to allegations received by the NSLHD in December 2019.
15. CB, Tab 56, Written Reasons for Decision dated 18 May 2020.
16. Tribunal Exhibit 8.
17. Health Care Complaints Commission v Talmadge [2016] NSWCATOD 16 (3 February 2016) at [43].
18. See Hill v Medical Council of NSW [2019] NSWCATOD 97 adopting the earlier decision of the Tribunal in Crickitt v Medical Council of NSW (No.2) [2015] NSWCATOD 115 at [56].
19. Briginshaw v Briginshaw (1938) 60 CLR 366; see also Jautam v Health Care Complaints Commission [2021] NSWSC 85 per Payne JA at [86]-[87].
20. See s.38(2) of the Civil Administrative and Tribunal Act 2013 (NSW) and Clause 2 of Schedule 2 of the National Law.
21. CB, Tab 51, Allegation 3.
22. CB, Tab 44, Statement of Ms Jacqueline Adams dated 15 October 2020.
23. CB, Tab 44.
24. HCCC v Liu at [53].
25. HCCC v Liu at [54].
26. CB, Tab 18, NSLHD Position Description.
27. CB, Tab 19, Community Health and Outpatient Care, User Manual and Business Rules v4.2 (September 2018) and Tab 36, Tips of the Week and assorted docs.
28. CB, Tab 11, File Note of Tammy Devereaux dated 23 August 2018.
29. CB, Tab 15, Personal Record of PIP (January to May 2017).
30. CB, Tab 43, NSLHD Final Investigation Report dated 21 November 2019; CB, Tab 56, Written Reasons for Decision dated 18 May 2020 for proceedings held on 30 March 2020.
31. Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. 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: 23 December 2022