Health Care Complaints Commission v Thiruvarangam

NCAT Occupational|2017-09-29|Before: Dr J

Summary

By Application for Disciplinary Findings and Orders filed 8 May 2017, the Health Care Complaints Commission (the Commission) relevantly seeks orders, pursuant to s 149C of the Health Regulation National Law NSW No 86a (the National Law), including that: 1. The respondent's registration be cancelled; 2. The respondent may not apply for a review of that order for a minimum period of 12 months; 3. The respondent pay the Commission's costs of the application.
The application is founded on the Tribunal being satisfied that two complaints in respect of the respondent are established. These complaints are, in summary, that the respondent is impaired, and that she lacks competence to practise her profession.
For the reasons that follow, the Tribunal is not satisfied that either complaint is established.

Complaint

The Commission, having consulted with the Nursing and Midwifery Council of New South Wales (the Council) in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 145A of the National Law, complains that the respondent: 1. Suffers from an impairment within the meaning of s 5 of the National Law (Complaint One); 2. Is not competent to practise nursing under s 139(a) of the National Law as the practitioner does not have sufficient mental capacity, knowledge and skill to practise nursing (Complaint Two).

Evidence

The Commission filed two folders of some 50 documents including but not limited to reports report of the Impaired Registrant's Panel; interviews of the respondent by the Council; various performance assessments of the respondent; the s 150 reasons of the Council of 29 October 2012 and 15 February 2016 of 22 November 2015; correspondence between Patient A and the Commission, supervision reports, and expert reports.
The only witnesses to give oral evidence to the Tribunal were the respondent and Dr Langeluddecke, a psychologist relied on by the Commission.
The respondent had not filed any documents, including a statement or an affidavit, prior to the hearing. She was invited to give oral evidence at the hearing, and advised that the Commission's counsel would then cross-examine her.
The respondent told the Tribunal that she was 38 years old. She graduated in nursing in India in 2004, aged 21. She worked for a year and a half, and then married and had a baby. She returned to the workforce and worked in Bangalore for about two and a half years and then decided to come to Australia. She initially worked in New Zealand, in a small cardiovascular hospital, for about 7 to 8 months. After a short period in the surgical ward of Middlemore Hospital, she came to Australia, and worked in the Intensive Care Unit and Respiratory Unit of Royal Prince Alfred Hospital (RPAH) until she was terminated in 2016.
The Tribunal asked the respondent what she wanted it to do at the conclusion of the hearing. She said that she did not want her registration to be cancelled, and wanted to have the unrestricted to practise as a registered nurse.
In relation to impairment, she said that she believed in Jesus Christ, but when she told the Council that, she was sent for psychiatric assessment. She said that the psychological testing administered from time to time was therefore unfair. When she checked the testing with some of her colleagues, none were able to do that testing. She said that the tests were unfair, biased and unreliable.
In relation to her alleged lack of competence, she explained the circumstances surrounding her non-attendance at a Council hearing.
She said that since her termination she had not worked as a nurse, but had completed an intra-venous cannulation course. She hoped to work as a pathology trainer, or in research. She has been teaching one or two days per week.
Ms Tronson examined the respondent at some length. As to ongoing and continuing education, the respondent agreed that she had not undertaken any formal courses, save for the cannulation course referred to above, but she tried to keep up to date by internet reading. She denied that that was a passive approach to ongoing education. Ms Tronson asked her about various matters appearing in the performance reports and the reports of her supervisor, in particular that she was not good at critical thinking or analysis. The respondent disagreed with that view, and thought that Mr Tomczak and she had communication issues. She disagreed with his conclusions about her lack of critical thinking, commenting that he was the one who recommended that she be in charge. As to the reports of the performance assessors, the respondent said that they were "PhD nurses", not clinical nurses. She seemed to suggest that this would cause those assessors to be biased in their assessment of her. The respondent suggested that she had been "picked on" by the amount of review, performance assessments and supervision that she had to endure. She considered that Dr Langeluddecke was incorrect in her conclusions, and said that she had not read some of those reports as she did not want to take negative comments into her mind. She told Ms Tronson that she did not like her questions that she lacked insight. In summary, the respondent suggested that the Council never gave her a chance to talk about the matters which came before it, and that the Council failed to consider her records in particular that Mr Tomczak had provided a lot of good reports. She suggested the constant assessment process caused her to make errors

Findings

On the basis of the filed materials and the oral evidence given by the applicant, the Tribunal makes the following relevant findings.
In 2004, the respondent completed a Bachelor of Science in Nursing and Midwifery at Sri Ramakrishna Medical College and Research Institute in Chennai, India. After being registered as a nurse in India, and working in Bangalore, in 2009 the respondent was registered as a nurse by the Nursing Council of New Zealand (NCNZ).
From 9 February to 14 April 2009, the respondent worked at Middlemore Hospital in Manukau, New Zealand, but was dismissed for failing to meet the requirements of a performance management plan.
On 20 May 2009, a Notification was made to the Registrar of the NCNZ Registrar about her competence. The competence concerns related to the respondent failing to adequately plan nursing care, lacking basic knowledge about surgical training, and failing to check a patient's identification bracelet and emergency equipment.
On 25 May 2009, the respondent was registered as a nurse by the Nursing and Midwifery Board of New South Wales (the Board), on the basis of her registration as a nurse in New Zealand pursuant to the Trans Tasman Mutual Recognition Act 1997 (Cth).
On 26 November 2009, the respondent commenced working in the General Intensive Care Unit of RPAH.
On 8 February 2010, a meeting of the Competence Review Panel of the NCZC (the NZ Panel) was held. The NZ Panel determined that the respondent did not meet the required standards of competence for the registered nurse scope of practise and that she posed a risk of harm to the public. In its report of 24 February 2010, the NZ Panel recommenced relevantly that: 1. A condition be placed on the respondent's scope of practise that she must work for a NCZC-approved employer, and not be the sole registered nurse on duty; and 2. The respondent undertake a competence programme,
On 25 February 2010, those conditions were imposed on the respondent's registration in New Zealand.
On 5 March 2010, the NCNZ wrote to the Board notifying it of the above conditions.
On 14 January 2011, the Board imposed the following relevant (and summarised) conditions on the respondent's practice: 1. Must advise the Board of all nursing employers. 2 Must not accept work as a nurse through an agency. 3 Must not be the sole registered nurse on duty 4 Must not work in charge of a shift. 5 Must be supervised by a nurse manager or nurse educator approved by the Council . . . 6 Must enrol and provide satisfactory evidence of completion of a satisfactory completion of a course, unit or education module approved by the council at a tertiary institution which includes instruction on the physiology of older people, common infections, responses to common emergencies and discharge planning, and which includes a clinical placement of at least eight weeks and appropriate assessment . . . 7 Must include a performance assessment by an assessor approved by the council against the national competency standards for a registered nurse . . .
On 27 June 2011, Mr Grzegorz (Greg) Tomczak was proposed as the respondent's supervisor. Mr Tomczak was a Clinical Nurse Educator on the Respiratory Ward of RPA.
On 7 July 2011, the condition 6 on the respondent's practise was removed, and conditions 5(a), 5(d) and 7 amended.
On 27 August 2011, the respondent commenced work in Respiratory Ward 11W at RPAH.
On 23 September 2011, a performance assessment of the respondent was conducted by Ms Gerda Tolhurst, a Clinical Performance Assessor of the Council. In her report of 9 October 2011, Ms Tolhurst's conclusions and recommendations were as follows: "[The respondent] demonstrated that she practices within her own abilities at the beginning knowledge level, beginning school level and boundary of practice. She seeks help when care is beyond her limitations. Since she has only worked in this area for 2 months her nursing knowledge, skills and attributes will need further development in respiratory anatomy, physiology, pathology and nursing care related to the speciality. Her supervisor had commenced a program of clinical competency-based assessments and continuation of learning which will support [her] progress in the area of respiratory nursing practice. I was advised by the [Nurse Unit Manager] and the [Clinical Nurse Educator] of the Respiratory Unit that [the respondent] is a year 6 registered nurse. She was however, observed to be practicing to the level of a new nurse and at a beginning level within the specialty. This was not seen as an issue since she is continuing to learn and demonstrate progress within the current clinical plan which was prepared for her when she commenced work in the Respiratory Unit. I was advised that [the respondent] is receptive to learning and constructive feedback; she is reliable and provide safe nursing care. Overall, [the respondent] demonstrated enthusiasm to learn and continue to develop within this area and her supervisors appeared very keen to support her to pursue these goals ."
On 6 October 2011, Mr Tomczak completed his first Supervisor's Report. He relevantly stated that while the respondent had initial difficulties directly related to an unfamiliar ward routine and specialist procedures and protocols, she planned and prioritised her patient care safely and "most of the time efficiently". Mr Tomczak considered that the respondent had good clinical assessment skills and was able to recognise report and respond to deterioration in the patient without prompts or cues, and was currently working within the scope of a mid to junior level nurse. He stated that the respondent "demonstrates critical thinking".
On 2 February 2012, Mr Tomczak completed his second Supervisor's Report. He relevantly stated that the respondent continued to work at the level of a graduate registered nurse; had a "very good" knowledge base, but did not regularly demonstrate this knowledge in the context of problem solving and critical thinking. He stated that the respondent worked at the level of a graduate nurse; and that public safety would be compromised if she were to work autonomously in a rotating roster without support or supervision, particularly when required to perform clinical critical thinking and make complex nursing care decisions. He stated that "after months on the ward", the respondent still needed help in the day to day nursing operations, and that her clinical performance "does not give her the ability to work in the role she aspires to be employed in" He concluded that it would not be safe for the respondent to work as a registered nurse in a medical or surgical ward without high supervision.
On 23 March 2012, the Council considered the performance assessment report of Ms Tolhurst dated 9 October 2011 and her separate recommendation dated 11 October 2011 (which stated that she had formed the opinion that the respondent provided safe nursing care to her patients) and Mr Tomcsak's report of 2 February 2012 (which stated that it would not be safe for the respondent to work as a registered nurse in a medical/surgical ward without high supervision). Due to those conflicting opinions, the Council resolved that a Performance Review was required for the respondent.
On 10 May 2012, the Council conducted a Performance Review pursuant to s 156 of the National Law. In its decision of 7 June 2012, the Council noted that the respondent displayed a lack of understanding regarding her responsibilities in addressing the deficiencies identified initially in New Zealand and then in New South Wales, and that she relied on the current supervisor and hospital in-service program to provide her with sufficient nursing education. The Council was of the opinion that that was insufficient to address the identified deficiencies in respiratory nursing, but decided to adjourn the Performance Review, to allow for the receipt of a further Supervisor's Report.
On 11 May 2012, Mr Tomczak completed his third Supervisor's Report. He relevantly stated that the respondent had shown "an incredible self motivated change" in her work performance since his last report, being "much more focused", and "well entrenched in the daily routine of ward nursing", and following procedure and protocol very well and working within her scope of practice. However, the respondent demonstrated a shortfall in critical thinking; and required prompting, with this limitation translating into a lack of foresight that might affect public safety. Mr Tomczak stated that considering that the respondent was a sixth year registered nurse, the level of validation and support for her to practice safely remained higher than would be accepted for the level of experience. Nevertheless, since his previous report, significant improvement in this area had been demonstrated. He thought that a lack of critical thinking affected the respondent's decision making process, and that Critical Thinking and Analysis needed to be addressed appropriately if she was to work safely and without restrictions.
On 31 August 2012, an incident occurred concerning a patient under the respondent's care. The incident involved the respondent withholding anti-hypertensive, diuretic and hypoglycaemic medications from a patient, having identified the patient as being hypotensive, and not discussing her intervention with the patient's treating team. Mr Tomczak formed the view that this incident highlighted the respondent's shortcomings at a time when other areas of her clinical practice had been improving. While he could not excuse her breaching her duty of care for this patient, Mr Tomczak identified no performance issues.
In early September 2012, Mr Tomczak completed his fourth Supervisor's Report. He relevantly stated that the respondent's practice demonstrated a lack of critical thinking and clinical insight which put patient safety at risk. He stated that while the respondent was capable of learning and performing excellent clinical skills, she did not apply these skills into clinical practice in a consistent manner. He also stated that the respondent made clinical practice mistakes and omissions with greater frequency than what would be reasonable for a registered nurse who has worked one year in any clinical area. Mr Tomczak believed that the respondent attending to the "clinical ladder" he had assigned to her would not address the ongoing pattern of unsafe practice.
On or about 16 October 2012 a performance report of the respondent was prepared by Ms Jennifer Evans. The respondent was assessed as competent in eight of the ten units, but as not competent in the unit "Practices in accordance with legislation affecting nursing practice and health care". In addition, Ms Evans found that there was insufficient evidence to reach a conclusion in respect of the unit "Provides comprehensive, safe and effective evidence-based nursing care to achieve identified individual/group health outcomes". Ms Evans recommended supervision and mentoring for the respondent, together with further education relating to medication administration.
On or about 29 October 2012, a performance report of the respondent was prepared by Ms Renée Pinkney. Relevantly, Ms Pinkney reached similar conclusions to Ms Evans, and found that the respondent was able to provide safe nursing care at a beginning practitioner level. She recommended continuing education in relation to medication administration, and a professional development generally.
On 29 October 2012, the Council held a hearing pursuant to s 150 of the National Law. Relevantly, the Council found that the respondent functioned at the level of a "novice registered nurse", did not "appear to be able to apply principles she has learnt to novel situations", and "had difficulty maintaining safe practice in situations when she has a high workload or the condition of a patient is deteriorating". The Council was concerned that the respondent "continues to warrant close supervision and has not developed further in her critical thinking, clinical judgement and her understanding of care planning, prioritisation and appropriate referral". The Council made no amendment to conditions on the respondent's registration.
On 3 January 2013, Mr Tomczak completed his fifth Supervisor's Report. He relevantly stated that after almost fifteen months of supervised clinical practice in the role of an registered nurse, the respondent should be ready to consistently make "rationalised decisions", but she did not. Mr Tomczak considered that the respondent was practicing in the capacity of an Endorsed Enrolled Nurse, and that while she had expressed a desire to have the restrictions placed on her practice lifted, she had not demonstrated or documented this in an independent tangible form. Mr Tomczak considered that this was a clear lack of insight into the role of the registered nurse.
On 3 April 2013, Mr Tomczak completed his sixth Supervisor's Report. He relevantly stated that the respondent had been performing more consistently at the level of a registered nurse", and that her practice had improved to a level of competence considered safe. He was "more confident" in the respondent's ability to demonstrate safe clinical practice", and noted that she has been working competently under indirect supervision without a need for ongoing support other than for the purpose of assessment. He recommended that she have the opportunity to work with nursing students and work as a team leader. (We note that the evidence did not establish precisely when the respondent became a team leader, but the Commission agreed during the course of the hearing, when discussing Mr Tomczak's twelfth report of February 2016, that the respondent had become a team leader by that time.)
On 4 April 2013, the Council interviewed the respondent, following which she was referred to the Impaired Registrant's Panel (IRP).
On 22 August 2013, Mr Tomczak completed his seventh Supervisor's Report. He relevantly stated that the respondent had been performing consistently at the level of a registered nurse, performed in the ward at the basic level expected of other registered nurses, and continued to demonstrate a degree of competence comparable to her colleagues.
A hearing of the IRP was held on 12 September 2013. The IRP was unable to form a conclusion as to impairment. In its report of 31 October 2013, the IRP recommended the following relevant (and summarised) amendments to conditions on her registration: 1. Not to work as a sole practitioner on any shift, ward or unit. 2. Not to engage with an agency for the purpose of nursing. 3. Not to work on night duty. 4. To provide a report from a senior nurse responsible for supervising her practice prior to the next IRP appointment. 5. To nominate a senior nurse to oversee her supervision.
On 31 March 2014, Mr Tomczak completed his eighth Supervisor's Report. He relevantly stated that in the previous seven months he had not observed any unsafe substandard clinical practice by the respondent causing concern such as he had expressed in earlier reports. He stated that the respondent demonstrated the clinical practice expected of mid-level registered nurse in his unit, and that her clinical practice was consistent with the domains of the National Competency Standards for a registered nurse in the delivery of safe nursing care for his unit's complex medical patients. He stated that the respondent demonstrated insight into the needs of patients and continued to perform as a reliable team leader. He also stated that the respondent "continues to problem solve to the level expected of a registered nurse, applying critical thinking in relating to past experience when working with changing clinical scenarios."
On 13 June 2014, Mr Tomczak completed his ninth Supervisor's Report. He made similar if not identical comments to those made in his previous report.
A further hearing of the IRP was held on 17 June 2014. Relevantly, in its decision of 1 July 2014, the IRP acknowledged the positive evidence before it but noted that the respondent's workplace as being very supportive. The IRP concluded that the respondent did have an impairment, but did not identify what the impairment was, although the IRP did refer to the various reports of Dr Langeluddecke and the report of Dr Samuels. The IRP recommended further independent performance assessment and a re-assessment by Dr Langeluddecke.
On 13 May 2015, Mr Tomczak completed his tenth Supervisor's Report. Again, he relevantly stated he had not observed unsafe clinical practice by the respondent, and that she continued to demonstrate the clinical practice expected of mid level registered nurse. Again he stated that the respondent "continues to demonstrate insight into the needs of patients, that she continues to perform as a reliable team leader and continues to problem solve to the level expected of an registered nurse. He stated that there had been no observed significant changes in her clinical practice to suggest a risk to public safety.
On or about 10 June 2015, Ms Tracey Moroney and Ms Susan Liakatos completed a performance assessment report of the respondent. The authors considered the same ten competency units considered by Ms Evans and Ms Pinkney in their reports referred to above. Each unit was given a competency rating as follows: Domain - Professional Practice 1 Practises in accordance with legislation affecting nursing practice and health care: SUPERVISED; 2 Practises within a professional and ethical nursing framework: INDEPENDENT; Domain - Critical thinking and Analysis 3 Practises within an evidence-based framework; ASSISTED; 4 Practises in ongoing professional development of self and others: SUPERVISED; Domain - Provision and Co-ordination of care 5 Conducts a comprehensive and systematic nursing assessment: DEPENDENT; 6 Plans nursing care in consultation with individuals/groups, significant others and the interdisciplinary health care teams: INDEPENDENT; 7 Provides comprehensive, safe and effective evidence-based nursing care to achieve identified individual/group health outcomes: ASSISTED; 8 Evaluates progress towards expected individual/group health outcomes in consultation with others; SUPERVISED Domain - Collaborative and Therapeutic Practice 9 Establishes, maintains and appropriately concludes therapeutic relationships: INDEPENDENT; and 10 Collaborates with the interdisciplinary health care team to provide comprehensive nursing care: INDEPENDENT. where the assessments have the following meanings: 1. Independent The practitioner is safe and accurate, proficient coordinated, confident and expedient with time. They can practice without direction and may support other practitioners; 2. Supervised The practitioner is safe and accurate, efficient, coordinated, confident and expedient with time. Requires the usual level of supervision available to all nurses, ie occasional physical and verbal direction; 3. Assisted Mostly safe and accurate. Partial demonstration of skills. May be uncoordinated and inefficient. Delayed time expenditure. Requires further practice and frequent verbal and or physical direction. 4. Marginal Questionable safety and accuracy. Tends to be unskilled and inefficient with considerable and prolonged tome expenditure. Requires continuous verbal and or physical direction; and 5. Dependent Unsafe and inaccurate, unable to demonstrate procedures and lacks confidence, coordination and efficiency. Requires continuous verbal and or physical direction.
Ms Moroney and Ms Liakatos recommended that the respondent undertake further study "in theory and practical assessment of adult patient assessment and medication administration" and undergo regular review by an independent assessor.
On 11 September 2015, Mr Tomczak completed his eleventh Supervisor's Report. He relevantly stated that he had not personally observed unsafe clinical practice by" the respondent, and that "there have been no observed significant changes in her clinical practice to suggest a risk to public safety. However, he noted that she did not seek to participate in ongoing professional development opportunities, and would not take actions for "invigorating her registration from the restrictions placed on it", which he thought reasonable to expect. He stated that the respondent had been satisfied to remain "a passive participant" and had made no effort to improve her knowledge or skill as a registered nurse.
A further hearing of the IRP was held on 3 November 2015. Relevantly, in its decision of 22 November 2015, the IRP noted that the respondent "currently works in a very supportive environment at what appears to be a very basic registered nurse level and is receiving favourable work reports", and raised a concern that the respondent's years of practice would lead an employer to believe her ability is higher than it was, and that this could lead to "a risk to the safety of the public". The IRP noted the respondent's failure to undertake any further education as recommended in the performance assessment reports, and her "very limited insight". The IRP considered that the respondent lacked the ability to complete nursing assessment and was working at a very junior level despite her years of experience", and that it appeared that remediation and supervision had not rectified the underlying deficits. The IRP concluded that the respondent had a "cognitive impairment" which did not appear to be able to be remediated. The IRP recommended no change to the conditions and that the Council consider whether further action was required.
On 18 February 2016, Mr Tomczak completed his twelfth Supervisor's Report. He relevantly stated that he had not observed unsafe clinical practice by the respondent; and that "there have been no observed significant changes in the respondent's clinical practice to suggest a risk to public safety". However, he also observed that the respondent had limited her effort to participate in ongoing professional development opportunities, had not engaged with him as a clinical nurse educator other than in a reactionary manner after she had received communication from the Council, and that she had made no effort to improve her knowledge or skill as a registered nurse.
On 15 February 2016, a s 150 hearing was held. Relevantly, the Council noted that the assessments before it suggested that respondent was performing at a new graduate level, and that her performances as a nurse had not improved. The Council concluded that it held concerns about the respondent's understanding of her own practice limitations and her capacity to practice safely at a level expected of a registered nurse of her level of employment and experience. The Council noted Dr Langeluddecke's concerns and considered that the respondent was not safe to practise unsupervised. The Council imposed a condition on the respondent's registration that she not work as a registered nurse until further reviewed and the condition removed.
On 23 February 2016, a hearing of Council was held pursuant to s 150C of the National Law. Section 150C(1)(b) provides that Council may alter or remove conditions. Relevantly, the Council noted a lack of effort by the respondent, and found that: 1. Although the respondent's supervision reports were positive in some respects, the respondent's evidence suggested that she did not have insight into the relevant issues or understand what she was being asked; 2. The respondent "appeared to lack the ability to independently and critically assess, evaluate and react to clinical situations as they evolve or indeed if they change. She did not appear to understand the independent and professional role of nurses in patients care and the requirements of evidence based nursing care"; 3. While the respondent had not been given the appropriate level of support and clear guidance, conditions on the respondent's registration were necessary to decrease the risk to patient safety.
In conclusion, the delegates amended the conditions, relevantly, to require the respondent to only practise as a nurse under the supervision of a registered nurse who did not have conditions on his/her registration. Supervision was permitted to be remote, that is where the supervisor was on site, but not working in close proximity to the respondent, or offsite or working remotely from the respondent.
On 6 June 2016, the respondent's employment was terminated at RPAH. The termination was explained by RPAH in the following terms: "Following s 150 proceedings convened by the [Council] which resulted in an increase to the supervisory conditions on her registration, [the respondent] took paid leave until such time as her employment and our ability to support these restrictions was resolved. The restrictions imposed on [the respondent] to be directly supervised at all times with more frequent supervisor reports to be supplied to the [Council]. The facility found that the level of supervision required to support [the respondent] to undertake her role as a Registered Nurse was not operationally practical or reasonable. In addition, [the respondent's] colleagues had already redirected large amounts of time to indirectly supervise and augment her practice with no demonstrable improvement in her ability to perform the inherent requirements of the role of Registered Nurse. The facility found that due to the added restrictions imposed on her practice, we were no longer able to support [the respondent's] employment and she was terminated on 6 June 2016."

Expert reports

There were a number of expert reports before the Tribunal. These included the following.

Reports of Dr Langeluddecke

There were five reports of Dr Langeluddecke before the Tribunal. Dr Langeluddecke is a clinical psychologist.
First, a report of Dr Langeluddecke dated 8 February 2013. Dr Langeluddecke expressed concerns about the respondent's competence, primarily in relation to "longstanding limitations in her cognitive resources", finding that: "She is very poorly equipped to perform the duties of [registered nurse] in an independent and adaptive manner on cognitive grounds. She is unlikely to have sufficient reasoning capacity and higher order cognitive abilities to deal with the complex tasks/clinical situations which she is likely to encounter … [the respondent] appears to lack insight regarding her cognitive limitations …"
Dr Langeluddecke concluded that the respondent was unlikely to have the sufficient cognitive resources (including reasoning abilities) necessary to reliably perform the duties expected of a registered nurse in a safe and efficient manner, even at a fairly junior level.
Secondly, a report of 20 October 2014. Relevantly, Dr Langeluddecke found no grounds to amend the opinions expressed in her previous report. She remained of the opinion that the respondent was poorly equipped on cognitive grounds for employment as an registered nurse. Dr Langeluddecke stated that she had particular concerns about the respondent's capacity to deal with complex tasks/clinical situations and the responsibilities associated with senior nursing roles.
Thirdly, a report of 30 June 2016. Dr Langeluddecke found that the respondent could not be assessed cognitively due to "very tearful presentation and the content of her verbal responses [which suggested] that she is presently moderately to severely depressed." Dr Langeluddecke also stated that further testing may not be necessary given consistency across testing in 2013 and 2014.
Fourthly, a report of 13 September 2016. Dr Langeluddecke relevantly stated that: 1. Based on previous reports, the respondent's test results "possibly reflect longstanding cognitive limitations rather than acquired weaknesses secondary to a particular disability, condition or disorder; 2. This did not amount to an impairment for the purposes of the National Law; 3. On the basis of the respondent's test results, the respondent's difficulties in registered nurse roles over a number of years and the competency issues evident in the respondent's performance assessments and supervisor reports, the respondent lacked sufficient mental capacity, knowledge and skill to practise as a registered nurse; 4. The respondent's cognitive resources rendered her poorly equipped to meet the competencies expected of a registered nurse, and that she was likely to experience particular difficulty when required to independently deal with tasks/clinical situations which are novel, complex and/or unpredictable. Due to her cognitive limitations, the respondent was unlikely to prove capable of meeting the responsibilities associated with senior registered nurse roles.
Fifthly, a report of 25 September 2017. Relevantly, Dr Langeluddecke provided comments on the respondent's likely ability to meet the Board's Registered Nurse Standards for Practice based on previous neuropsychological reports, and noted some difficulties with standards 1.1, 1.2, 3.4, 3.5 and 5, and 6.1 in senior nursing roles or high acuity nursing. There was no change in her opinion as to the respondent's impairment and competence as expressed in earlier reports.
Dr Langeluddecke gave oral evidence to the Tribunal at the hearing. She explained that she had some difficulty in understanding what a "condition" was (as that word is used in s 5 of the National Law). She also said that impairment meant a "change or abnormality". Given the statutory definition of impairment of s 5 of the National Law, to which Dr Langeluddecke had referred in her reports, this evidence was of limited assistance to the Tribunal.

Report of Dr Samuels

Dr Anthony Samuels is a Forensic Psychiatrist. We had before us his report of dated 14 February 2014. Relevantly, Dr Samuels concluded that the respondent had "no significant prior history of psychiatric or psychological problems", "no clear cut neurovegetative symptoms of depression or anxiety", and no evidence of psychosis, no evidence of severe anxiety, and no features of her presentation suggestive of mania or hypomania." In short, he concluded that there was no evidence "from a psychiatric perspective", that the respondent currently suffers from an impairment.

Consideration of Complaints

As this Tribunal noted in Health Care Complaints Commission v Ovchinnikov [2017] NSWCATOD 62: "8 The Commission bears the burden of proving the matters particularised in the Complaint on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities. 9 The authorities have cautioned against the use of the term "comfortably satisfied" (a phrased adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1]."

Complaint One

Complaint One alleges that the respondent suffers from impairment within the meaning of s 5 of the National Law. Section 5 relevantly provides: "impairment", in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or
The sole particular of Complaint One is that the respondent has a mental impairment, condition or disorder that detrimentally affects, or is likely to detrimentally affect the practitioner's capacity to practise nursing.
The Commission relies in particular on Dr Langeluddecke's report of 13 September 2016 where she states: "… Ms Thiruvarangam's general Low Average to Average cognitive abilities for age, and below Average achievement on tasks which place greater demands on planning and higher order reasoning abilities, on neuropsychological testing possibly reflect longstanding cognitive limitations rather than acquired weaknesses secondary to a particular disability, condition or disorder …" "I am of the opinion that Ms Thiruvarangam lacks sufficient mental capacity, knowledge and skill to practise as [a registered nurse] given: 1) Low Average to Average intellectual functioning and memory/learning abilities, and deficiencies in planning, reasoning, cognitive flexibility, and comprehension on more complex or detailed tasks evident on standardized cognitive testing; and 2) Ms Thiruvarangam's difficulties in [registered nurse] roles over a number of years (both in New Zealand and Australia) and the competency issues evident in Performance Assessments and supervisor reports. Ms Thiruvarangam's cognitive resources render her very poorly equipped to meet the competencies expected of an [registered nurse]. She is likely to experience particular difficulty when required to independently deal with tasks/clinical situations which are novel, complex and/or unpredictable. Due to her cognitive limitations, Ms Thiruvarangam is unlikely to prove capable of meeting the responsibilities associated with senior [registered nurse] roles."
In addition, the Commission relies on Dr Langeluddecke's report of 25 September 2017, which commented on the respondent's likely capacity to meet the Registered Nurse Standards for Practice promulgated by the Nursing and Midwifery Board of Australia. The Commission relies on Dr Langeluddecke's opinion that the respondent's capacity in respect of standards 1.1 and 1.2 (which relate to the respondent's ability to think critically and to analyse nursing practice) was likely to be "limited", and that the respondent's capacity in relation to standards 5 and 6.1 (which respectively relate to the respondent's ability to develop a plan for nursing practice and to provide safe, appropriate and responsive quality nursing practice) was likely to be adversely affected in more complex, stressful, senior or high acuity positions.
The Commission accepts that Dr Langeluddecke's opinion in her report of 13 September 2013 is that the respondent does not have an impairment as defined in the National Law. The Commission submits that the Tribunal is not bound by Dr Langeluddecke's opinion on this, and that the Tribunal is entitled to, and ought to, form an opinion as to the question of whether the respondent has an impairment on the basis of its own interpretation of that term, as defined in the National Law. The Commission submits that Dr Langeluddecke's evidence is relevant primarily to the question of whether there is a "mental impairment, disability, condition or disorder" which has, or potentially has, a detrimental effect on the respondent's capacity to practise.
In this regard, the Commission submits that: 1. There is no need "to put a psychological label on" a condition in order to find that it is an impairment, as defined; it is sufficient to reach a "conclusion … that whatever it was that [a practitioner] suffer[s] from [is] prejudicial to an orderly conduct of her mental and physical duties" in the relevant profession: Grant v Health Care Complaints Commission [2003] NSWCA 73 at [12]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [64]; 2. The respondent's lack of cognitive resources is a "condition" in the same way that Ms Bousfield's lack of cognitive resources was a "condition": Health Care Complaints Commission v Bousfield [2014] NSWCATOD 57 at [198], 243, (5)). This submission is supported by the dictionary definitions of "condition", which include "state of health" and "fit or requisite state" (Macquarie Dictionary, online edition) and "The state of something with regard to its appearance, quality, or working order" (Oxford English Dictionary, online edition); and 3. Once it is accepted that the respondent's lack of cognitive resources is a "condition", it is plain from Dr Langeluddecke's opinion more generally, particularly when read together with the evidence as to the respondent's performance history and her evidence to the IRP in 2015, that it is a condition which "detrimentally affects or is likely to detrimentally affect … [the respondent's] capacity to practise" as a nurse, particularly having regard to all of the circumstances and the respondent's apparent "reluctance" to take remedial steps: Health Care Complaints Commission v Flett [2016] NSWCATOD 138 at [51]. 4. There is no evidence that there has been any improvement in the respondent's condition, or that the respondent has taken steps towards such improvement. Indeed, such an improvement is unlikely in light of Dr Langeluddecke's opinion.
For those reasons, the Commission submits that the Tribunal can be satisfied that the respondent has an impairment, and that Complaint One is established.
We disagree. For the following reasons, we do not accept that Complaint One is established.
First, Dr Langeluddecke clearly stated in her report of 13 September 2016 that the respondent did not have an impairment. In that report, Dr Langeluddecke notes that she had been asked to provide her opinion whether the respondent had an impairment "as defined by the National Law, affecting [the respondent's] ability to safely practise as a registered nurse". Dr Langeluddecke then sets out s 5 of the National Law and states: "As [the respondent's] general Low Average to Average cognitive abilities for age, and below Average achievement on tasks which place greater demands on planning and higher order reasoning abilities, on neuropsychological testing possibly reflect longstanding cognitive limitations rather than acquired weaknesses secondary to a particular disability, condition or disorder, I am of the opinion that the criteria for impairment are not met on cognitive grounds."
This can be contrasted with Dr Langeluddecke's opinion referred to in Health Care Complaints Commission v Bousfield [2014] NSWCATOD 57 at [194], a decision relied on by the Commission. Dr Langeluddecke stated: "I am of the opinion that the concerns which have arisen in relation to Ms Bousfield's competency to practice as a Year 8 RN relate to longstanding limitations in her cognitive resources. Verbal intellectual and memory abilities which are average for age have enabled Ms Bousfield to complete a Diploma in Health Sciences (Nursing). However, relative weaknesses in visuospatial learning, planning and reasoning skills render her poorly equipped to acquire and implement some of the competencies expected of an RN, including procedural tasks/clinical situations and senior nursing duties/roles. . . ." "I would expect Ms Bousfield to have sufficient cognitive resources to cope with fairly routine nursing tasks after appropriate skills training. Low average visual memory and intellectual abilities may render her relatively slow to achieve competence with practical procedures (e.g. CPR; venepuncture) and necessitate more practice than her peers in order to maintain these skills. I doubt that Ms Bousfield has sufficient cognitive resources to completely perform higher level nursing duties/roles which involve supervising other nursing staff or the independent care of patients whose medical issues are acute, complex and/or rapidly changing"
Those comments are not dissimilar to the comments made in these proceedings in respect of the respondent. However, in Bousfield, when asked, Dr Langeluddecke, in a supplementary report, directly opined that the practitioner suffered from an impairment on cognitive grounds: "Limitations in Ms Bousfield's cognitive abilities evident on psychometric testing and the level of cognitive ability demonstrated by Ms Bousfield whilst performing nursing duties (i.e., at a Performance Assessment) and when aspects of her nursing/medical knowledge were assessed by a Nursing and Midwifery Review Panel, indicate a cognitive "condition" which is likely to detrimentally affect Ms Bousfield's capacity to practise this profession."
Dr Langeluddecke was asked in her supplementary export report of 21 September 2017 to outline her opinion as to whether the respondent had the cognitive resources to meet the Boards Registered Nurse Standards for Practice. Dr Langeluddecke was then asked, in light of that opinion, to outline whether she was of the opinion that the respondent had an impairment within the meaning of s 5 of the National Law.
Dr Langeluddecke's conclusions as to the respondent's cognitive resources and her ability to satisfy the Board's Standards are set out above. At the conclusion of this supplementary report Dr Langeluddecke states: "The opportunity to consider [the respondent's] cognitive ability to meet specific [registered nurse] standards for practice provides no grounds for amendment of the opinions regarding the impairment and competency issues expressed in my report of 13 September 2016."
Accordingly, despite two invitations to reconsider her opinion as to whether or not the respondent had an impairment for the purposes of s 5 of the National Law (one invitation being answered in the form of the supplementary expert report, the other being in the course of oral evidence before the Tribunal), Dr Langeluddecke has consistently held the position that the respondent did not have an impairment for the purposes of s 5 of the National Law.
Secondly, as to the IRP decisions, the IRP decision of September 2013 did not find that the respondent was impaired. The IRP decision of June 2014 did find that she was impaired, but did not state what the impairment actually was. In its decision of November 2015, the IRP considered that the respondent had a "cognitive impairment". We note that, on all occasions, the respondent was permitted to remain practising as a registered nurse, subject to conditions. While it may be inferred that the IRP's finding of "cognitive impairment" was an impairment for the purposes of s 5 of the National Law, it has failed to clearly state which component of the statutory definition of "impairment" was satisfied. In those circumstances, we place minimal weight on this decision to support a finding of impairment.
Thirdly, and in any event, we do not accept that cognitive impairments or limitations, however expressed, are "a condition" for the purposes of s 5. We note that Dr Samuels' opinion was clear; the respondent did not have an impairment arising from a psychiatric impairment. No as there any suggestion that the respondent has a physical or mental impairment or disorder. The only possibilities are that the respondent's cognitive limitations are a condition, a submission pressed by the Commission.
In this respect, Commission relied on Grant and Qasim. True it is that in Grant, Meagher JA, with whom Beazley and Santow JJA agreed, stated at [12]: "Once they came to the conclusion, which they did come to, that whatever it was that she suffered from was prejudicial to an orderly conduct of her mental and physical duties as a medical practitioner, they were entitled to make a finding of impairment even although they did not put a psychological label on that impairment."
However, that paragraph needs to be seen in context. The previous paragraph ([11)] explains that context, namely that the issue arose in the context of the sufficiency of particulars, in circumstances where the impairment alleged was a mental illness: "Finally, there was a complaint that the Tribunal did not find with sufficient particularity what precise kind of mental disturbance they alleged Dr Grant suffered from. They came to a finding that she was suffering from mental impairment but they did not then say what sort of mental illness they relied on to constitute that impairment."
As to Qasim, the passage relied on by the Commission appears at [64] where Meagher JA, with whom McColl and Ward JJA agreed, relevantly stated: "There was no requirement under the applicable National Law that a diagnosis that a person has a mental condition or disorder in the sense of an "impairment" be formed in accordance with the DSM or that, having concluded that the practitioner has a paranoid disorder, it was necessary to identify where along the paranoid spectrum, from personality disorder to paranoid schizophrenia, the practitioner fell: see Grant v HCCC [2003] NSWCA 73 at [11], [12]. Dr Samuels' evidence was that the appellant has a paranoid condition "which falls somewhere between a paranoid personality disorder and a paranoid schizophrenia". That was sufficient to support the Tribunal's finding that Dr Qasim has a "serious psychiatric disorder" which constitutes an "impairment" under the applicable National Law."
In Qasim there was a diagnosis of a paranoid condition, albeit along a continuum of a paranoid personality disorder to paranoid schizophrenia. We consider that this is different in nature to the cognitive weakness or limitation which the Commission submits is a "condition" amounting to an impairment for the purposes of s 5. As Dr Langeluddecke herself notes, the testing possibly reflected cognitive limitations rather than an acquired weaknesses secondary to a particular disability, condition or disorder.
To put the matter another way, if the Commission's argument was accepted, a nurse with a sprained ankle wearing a "moon boot" would have a condition which might detrimentally affect or was likely to detrimentally affect their capacity to practice their profession. We do not accept that that this is the intended meaning or operation of s 5.
When weighing all of these matters, we are not satisfied that the respondent is impaired. We do not find Complaint One to be established.

Consideration of Complaint Two

Complaint Two alleges that the respondent is not competent to practise nursing under s 139(a) of the National Law as the practitioner does not have sufficient mental capacity, knowledge and skill to practise nursing.
The particulars to Complaint Two are: 1. The respondent has ongoing cognitive limitations including: 1. low average to average intellectual functioning; 2. low average to average memory/learning abilities; 3. deficiencies in planning; 4. deficiencies in reasoning; 5. deficiencies in cognitive flexibility; 6. deficiencies in comprehension on more complex or detailed tasks. 1. Following a meeting of the NZ Panel on 8 February 2010, conditions were placed on the practitioner's registration as the Panel found the practitioner: 1. lacked knowledge to safely assess and respond in emergencies; 2. performed below minimum standards for registered nurses; 3. did not meet all of the NCNZ competencies. 1. The NZ Panel determined in its Report of 24 February 2010, that the practitioner did not meet the required standards of competence for the registered nurse scope of practice and posed a risk of harm to the public. 2. During a performance assessment on 15 October 2012, the respondent failed to demonstrate: 1. higher level reasoning skills; 2. well-developed skills in client assessment. 1. During the period September 2011 to June 2015, the practitioner was assessed as performing at the level of a beginner registered nurse despite her being a registered nurse with approximately 6 to 9 years of experience. 2. Following a performance assessment conducted on 2 and 10 June 2015, the practitioner was rated as 'Dependent' in relation to the Board's Competency Standard 5 - 'Conducts a comprehensive and systematic nursing assessment' within the domain "Provision and Coordination of Care", meaning the practitioner: 1. was unsafe and inaccurate; 2. unable to demonstrate procedures; 3. lacks confidence, coordination and efficiency; 4. requires continuous verbal or physical direction. 1. Following a Performance Assessment conducted on 2 and 10 June 2015, the practitioner was rated as 'Assisted' in relation to the Board's Competency Standard 3 - 'Practises with an evidence based framework' within the domain "Critical Thinking and Analysis", meaning the practitioner: 1. was mostly safe and accurate; 2. showed a partial demonstration of skills; 3. may be uncoordinated and inefficient; 4. showed a delayed time expenditure; 5. requires further practice and frequent and verbal and/or physical direction. 1. Following a performance assessment conducted on 2 and 10 June 2015, the practitioner was rated as 'Assisted' in relation to the Board's Competency Standard 7 - 'Provides comprehensive, safe and effective evidence-based nursing care to achieve identified individual/group health outcomes' within the domain "Provision and Coordination of Care", meaning the practitioner: 1. was mostly safe and accurate; 2. showed a partial demonstration of skills; 3. may be uncoordinated and inefficient; 4. showed a delayed time expenditure; 5. requires further practice and frequent and verbal and/or physical direction.

Particular (1)

The Commission submits that this particular is demonstrated by Dr Langeluddecke's various reports from 2013 to 2016, but particularly the reports of 2013 and 2014 in which Dr Langeluddecke set out the respondent's cognitive testing results, and the report of 13 September 2016 in which Dr Langeluddecke states that the respondent lacks sufficient mental capacity, knowledge and skill to practise as a registered nurse given: 1. Her low average to average intellectual functioning and memory/learning abilities, deficiencies in planning, reasoning cognitive flexibility and comprehension on more complex or detailed tasks on standardized cognitive testing ; and 2. Her difficulties in registered nurse roles over a number of years (both in Australia and New Zealand) and the competency issues evidence in performance assessments and supervisor reports.
Dr Langeluddecke concluded that the respondent's cognitive resources rendered her poorly equipped to meet the competencies expected of a registered nurse, and that she was likely to experience particular difficulty when required to independently deal with tasks/clinical situations which are novel, complex and/or unpredictable. Due to her cognitive limitations, the respondent was unlikely to prove capable of meeting the responsibilities associated with senior registered nurse roles.
Important evidence was given by Mr Tomczak in this respect. As recently as February 2016 he stated that he had not personally observed unsafe clinical practice, and that there had not been observed significant changes in the respondent's clinical practice to suggest a risk to public safety.
At the conclusion of the hearing, we sought additional submissions on the question whether the cognitive impairment identified by Dr Langeluddecke amounted to "mental impairment" for the purposes of s 136 of the National Law. In its post-hearing submissions, the Commission indicated that it could not identify any authoritative statement of the definition of "mental capacity" or "capacity" in the context of the definition of "competence". The Commission submitted that the following authorities bear on how the term is to be understood, particularly in circumstances such as those in the present case. 1. Health Care Complaints Commission v Perceval [2014] NSWCATOD 38, where the Tribunal considered the question of competence in light of various mental conditions suffered by the nurse. In oral evidence, on competence specifically, the forensic psychiatrist, Dr Samuels said that he viewed insight into a diagnosed mental illness as part of mental competency or capacity, which might not be "a reflection of [the practitioner's] technical competence": at [192]. The Tribunal accepted this evidence in finding that the nurse lacked competence: at [210]. The Commission submitted that it was apparent from Dr Samuels' evidence, taken together with the Tribunal's acceptance of that evidence, that mental capacity (in the context of competence) is to be understood broadly. In particular, even where technical competence is demonstrated in some respects (or even generally), this does not preclude a finding that a practitioner lacks mental capacity to practise, and so is not competent. The Commission further submitted that, although there were no conduct issues in relation to the respondent, and the Commission also accepted that her colleagues viewed the respondent's technical skills as being (at least) adequate to the tasks she performed, Dr Langeluddecke's evidence supports a finding as to the respondent's "mental capacity" in a broader sense, particularly when the respondent's lack of insight is taken into account. 2. Health Care Complaints Commission v Flett: where Dr Samuels gave similar evidence. In that case, Dr Samuels' view was that the nurse "could not appreciate the limits her illness placed on her capacity". While that was a case concerning a diagnosed mental illness, which was capable of treatment and was being treated, the Commission submits that analogous reasoning can be applied in this case. Specifically, if the respondent had sufficient insight to appreciate the limitations on her capacity as a result of her limited cognitive resources, she would perhaps have the capacity to practise (safely) as a nurse - because it could be assumed she would practise within those limitations. Given the respondent's evidence that she does not accept Dr Langeluddecke's views, and the evidence as to her insight generally, it follows that she does not appreciate the limitations on her capacity. That is, in itself, part of her capacity on the basis of the reasoning in Perceval. As a consequence, considering her mental capacity as a whole, she is not competent to practise as a nurse.
Finally, the Commission also submits that it is clear that a finding of insufficient "mental capacity" leading to a finding of a lack of competence is open, even if there is no demonstrated lack of technical skills: Health Care Complaints Commission v CWY [2017] NSWCATOD 6 at [82].
Dr Langeluddecke's reports do provide some support for the allegation that the respondent had cognitive limitations in the past. However, we are less confident that her opinions provide support for the allegation that the respondent has ongoing cognitive limitations. Indeed, we note Dr Langeluddecke's opinion in her 25 September 2017 report that the respondent's ability to think critically and analyse nursing practise will depend on the complexity of the situation, and (at least in relation to the development of a plan for nursing practise), likely to be reasonable, While Dr Langeluddecke states that the respondent was "poorly equipped" to "efficiently and effectively plan" under conditions of high cognitive load and/or stress, the possibility of doing so is not, in terms, excluded. Finally, Dr Langeluddecke considers that the respondent's high level of commitment to a career in nursing and the considerable nursing training and experiences which she has gained are likely to render her capable of comprehensive , safe and responsive practice in junior nursing roles where she has the benefit of supervision and support.
Taking all these matters together, we are not satisfied that Particular (1) to Complaint Two is established.

Particulars (2) to (8)

These particulars can be dealt with together. We find that each of particulars (2) to (8) are established. However, we are not persuaded that any, or all, or some combination of those particulars support us finding that Complaint Two is established. Particulars (2), (3) and (4) are of historical importance, but fall far short from persuading us that at the time of the hearing, respectively some seven and five years later, they establish a lack of competence. Particular (5), at least partially, suffers from a similar problem. As to particulars (6), (7) and (8), it is true that these matters can be found by scouring the various performance assessment and other reports. But they fail to take account of Mr Tomczak's supervisor's reports, including his two reports in 2015 and in particular his most recent report of February 2016 that he has not observed unsafe clinical practice by the respondent or any changes in her clinical abilities to suggest a risk to public safety.
For the above reasons, we do not find Complaint Two established.

Conclusion

For the reasons given above, we have concluded that neither complaint is established.
This is a costs jurisdiction. We propose that the Commission, which has been unsuccessful in this application, pay the respondent's costs.
If either party seeks some other order, they should provide submissions to each other, and the Tribunal, within fourteen days. The other party may respond within a further fourteen days.
The Tribunal proposes to consider the issue of costs "on the papers", and without a hearing. If either party considers it desirable that a hearing be held, that issue should be addressed in the party's submissions.

Other

If we had found either Complaint established, it would have been open to the Tribunal to impose conditions on the respondent's registration. However, given our conclusion, we do not have the jurisdiction to do so and with the consequence that the existing conditions will fall away. The result is that the respondent is, theoretically at least, free to practise. It is a matter for the Council whether it wishes to seek the imposition of conditions on the respondent's registration, and we anticipate that the Council will do so. In the event that the Council does do so, we encourage it to impose conditions which are capable of working effectively, and do not have the difficulties identified by RPA in its letter terminating the respondent from its employment.

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: 15 December 2017

Trans Tasman Mutual Recognition Act 1997(Cth)

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