Health Care Complaints Commission v Tucker

NCAT Occupational|2023-03-02

Background

The Commission pointed to the following background in respect of the Respondent's registration.
The Respondent was first registered as a nurse on 18 January 2009. Between 18 November 2016 and 18 April 2019, the Respondent had conditions imposed on her registration by the South Australian Board of the Nursing and Midwifery Board of Australia, requiring her to undergo a drug screening programme and to receive specialist medical treatment.
The background to the imposition of those conditions was a notification about the Respondent's health on 23 December 2015 following a number of admissions to hospital for a number of physical and psychological issues.
Following a health assessment on 1 April 2016, the Respondent was diagnosed as having had a chronic cocaine use disorder in 2015 that was then in remission. Following a further health assessment undertaken on 18 December 2017, the Respondent was found not to meet the criteria for a substance use disorder but a recommendation for substance testing was made, leading to the imposition of conditions to that effect.
On 7 June 2018, AHPRA advised the Nursing & Midwifery Council of NSW ("the Council") that the Respondent had indicated that she had changed her principal place of practice to New South Wales. On 7 September 2018, the Respondent was referred to an Impaired Registrants Panel (IRP) of the Council.
On 1 March 2019, the Council resolved to impose conditions on the Respondent's registration including that she not self-administer any drug of addiction unless prescribed, comply with the Council's drug screening policy and attend for drug screening, and attend for treatment with a general practitioner and psychiatrist of her choice. There were also conditions imposed requiring the Respondent, within seven days of a change in the nature or place of practice, to forward evidence to the Council that she had provided a copy of the full conditions to her employer (Public Condition 2) and authorising the Council to exchange information with her employers and only be employed in circumstances where the employer had agreed to notify the Council of any breach of condition or unsafe practices, and exchange information with the Council in relation to compliance with conditions (Public Condition 3).

Factual Basis of Complaints

The Commission submitted that the relevant factual basis established in the evidence before the Tribunal is as follows: 1. The Respondent was employed by the Melanoma Institute of Australia (MIA) on or about 16 September 2020. 2. The key events are then as follows. On 21 September 2020, the Respondent informed the Health Professional Councils Authority that she had commenced a new job. In response, she was reminded of the requirement to provide her employer with the full conditions on her registration and was provided with a 'NMC Notification of Conditions - Employer Form' ("the Declaration") to be completed by her. 3. On 23 September 2020, the Respondent provided a completed Declaration to the Council on which she had forged the signature of Person A of her employer, thereby falsely indicating to the Council that her employer was aware of, and had been provided with, a copy of the conditions on her registration, and was authorised to notify the Council of any concerns about the Respondent's fitness to practise. 4. The completed Declaration form, carrying Person A's forged signature, was received by the Council on 30 September 2020. 5. On 11 February 2021, an IRP recommended that all conditions on the Respondent's registration be lifted, as she no longer met the definition of impairment because her health was well-managed. 6. On 16 February 2021, the Council wrote to the MIA to inform it that the Respondent's registration was no longer subject to conditions. 7. That letter precipitated an email response from Person A at MIA on 17 February 2021, and a subsequent phone call, in which Person A indicated that she had been unaware that the Respondent's registration was subject to conditions, and did not recall signing the Declaration. 8. As is set out in the written statement of Person A tendered in these proceedings, Person A states that she first became aware that the Respondent's registration had been subject to conditions on 16 February 2021, and she first discussed this with the Respondent on 18 February 2021, at which point the Respondent acknowledged she had forged her signature on the Declaration. As a result, the Respondent's employment was terminated with immediate effect. Person A also confirmed that she had not signed the Declaration. 9. On 18 February 2021, the Council informed the Respondent of the allegation arising from the discovery of her conduct as set out above, and sought information from her. On 22 February 2021, the Respondent provided a written response to the Council in which she admitted forging Person A's signature, saying "I know signing a form that was not her signature was wrong". The Respondent provided an explanation to the effect that she had been struggling to find a job in nursing (which she loved), exacerbated by employers being cautious due to COVID; she knew that she was this employer's (MIA's) second choice; and feared losing the offer if she made the employer aware of her conditions. She also expressed a sense of resignation that, having been subject to conditions for five years, they would never be removed despite her health having stabilised. 10. The Respondent also expressed fear held at the time that her employer might use the knowledge of her conditions against her, as had, she claimed, occurred at a previous job. 11. At a hearing into her conduct, the Respondent expressed remorse, saying "I cannot … stress how much regret I have and really do humbly apologize for not telling my [employer] about my conditions, but I hope the board can find understanding in my reasonings [sic], losing my job has been punishment enough in itself and I pray the board will continue to allow me to have my conditions lifted" . 12. On 22 March 2021, the Respondent attended a hearing convened by the Council under s 150 of the National Law. The Respondent gave a similar account as to the motivation for her actions, and admitted signing Person A's signature herself because her writing was "pretty easy to sign" and admitted that it was fraudulent to do so. 13. When asked in the hearing whether the Respondent subsequently reflected on what she had done, she said "it's always been in the back of my head like, you know, the whole time I was thinking like, 'did I do the right thing? Did I do the right thing?'" 14. The Respondent later confirmed to the Commission (in June 2021) that she had written Person A's signature in pen (as opposed to applying her signature electronically). In a written document served on the Commission on 20 January 2023, the Respondent stated: "I made a bad decision and gambled my career by signing [Person A's] name. The reason I was able to copy it so well as the computer application we used to generate referrals already had doctor's signatures in the system and were generated when a referral was needed to be written. [Person A's] signature was very easy to copy and like I said previously I did it at home as I remembered exactly how to write it." In explaining her conduct, she said: "My only intention was to get back into a job that I enjoyed. I honestly believed that the restriction on my registration was never going to end especially with the COVID pandemic happening and from prior reasons."
We accept that the factual basis set out in [20] above has been established on the evidence before us and so find.

Complaint One

The substance of Complaint One is that the Respondent is guilty of unsatisfactory professional conduct because she contravened Public Condition 2 of her registration by failing to forward to the Council within seven days of changing her place of practice (namely, by 23 September 2020), evidence that she had provided a copy of her full conditions to her new employer. Public Condition 3 was breached by working as a registered nurse at the MIA between 16 September 2020 and 18 February 2021 in circumstances where her employer had not agreed to notify the Council of any breach of conditions or unsafe practice.
We are satisfied that on the evidence Complaint One is made out and we so find.

Complaint Two

The substance of Complaint Two is that the Respondent is guilty of unsatisfactory professional conduct in that she engaged in improper or unethical conduct relating to the practice or purported practice of nursing by the provision on 23 September 2020 of the fraudulent Declaration to the Council in circumstances where the Respondent had forged Person A's signature on that form to conceal from her employer that her registration was subject to conditions.
In support of this complaint, the Commission referred to and relied upon the decision in Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 in which the following analysis was set out (at [67]-[69]): "67. … The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as 1. Not "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law. 68. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrne [1995] 193 CLR 501 at 514-515: see Health Care Complaints Commission v Phung (No. 1) [2012] 1 NSWDT at 68. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper. 69. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(I) stating at paragraphs 47 to 49: 'The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited.'"
The Commission submitted that the Respondent's conduct as set out in the evidence involved a "calculated deception" of the Council and her employer in order to conceal the conditions imposed on her registration from her employer, which was improper and unethical conduct as it was not in accordance with the propriety of behaviour, was abnormal or irregular, and contrary to the expected moral standards of a registered nurse.
We are satisfied that the description of "calculated deception" is satisfied in this case. It is reinforced by the material filed in the Tribunal by the Respondent herself setting out her motivation for knowingly acting in the manner in which she did in order to conceal the conditions from her new employer with a desire to obtain employment and a fear that disclosure would prevent the employment coming to fruition. However, it was fraudulent conduct which cannot be condoned.
We are accordingly satisfied that on the evidence before us Complaint Two is made out and we so find.

Complaint Three

Complaint Three is that the Respondent is guilty of professional misconduct based on Complaint Two individually, and Complaints One and Two cumulatively.
The Commission submitted in support of Complaint Three that in assessing whether the Respondent's conduct amounted to professional misconduct, the following principles should be born in mind by the Tribunal: 1. there is no category of unsatisfactory professional conduct which is not capable of forming professional misconduct: Chen v Health Care Complaints Commission (2017) 95 NSWLR 335; [2017] NSWCA 186 at [18]-[21]; 2. the traditional common law definition of professional misconduct is that ''which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency": Allinson v General Council of Medical Education and Registration [1984] 1 QB 750; 3. professional misconduct may be made out by a deliberate departure from professional standards or "such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration": Pillai v Messiter (1989) 16 NSWLR 197; and 4. the gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
The Commission submitted that the Respondent's misconduct involved a deliberate and calculated deceit against her employer and the Council in order to conceal from her employer the conditions that were imposed on her registration (in breach of a condition requiring them to be disclosed). It involved dishonesty through a positive act of forgery, and a deliberate contravention of her conditions of registration. The conduct struck at the heart of the regulatory system, by undermining the effectiveness of conditions imposed upon practitioners in order to protect the public.
The essential nature of compliance with conditions imposed on a practitioner's registration to the regulatory system, and the need for scrupulous observance of such conditions, is well-established: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [74]; Health Care Complaints Commission v Collins [2021] NSWCATOD 132 at [45]. As noted in Prakash at [74], "[i]t is even more serious when dishonesty supervenes".
It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealing with those authorities: HCCC v Chowdhury [2015] NSWCATOD 65 at [81].
A breach of conditions is unsatisfactory professional conduct under s 139B(1)(c) of the National Law. The Tribunal does not have a discretion to find otherwise: Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [22]-[27].
We regard the particular breaches of the conditions imposed on the Respondent in this matter as serious. There were in the circumstances set out at [15]-[19] above significant failures in respect of measures aimed at the protection of the public. The Respondent must have appreciated that signing the Declaration which authorised her employer to act as specified in the conditions and by fraudulently representing in the Declaration that her employer was acknowledging to the Council awareness of the conditions and authorised to notify the Council of any concerns about the Respondent's fitness to practice, that she was acting contrary to the obligations and standards expected of registered nurses.
The conduct in effect was designed to circumvent the oversight which had been put in place in circumstances where there had been significant health issues affecting the Respondent which needed monitoring. The conduct undermined those measures.
It appears that, as matters turned out, the Respondent's fitness to practise was not questioned. However, that cannot excuse the seriousness of the misconduct.
The forging of Person A's signature and the withholding of the information which the Respondent was to inform her new employer of was, in our view, serious misconduct. We understand that the Respondent was at the time concerned about obtaining employment when she was, it seems, fairly desperate to get the job but that cannot diminish the seriousness in circumstances where the regulatory system and oversight depends on the honesty, cooperation and integrity of the practitioners and their employers. The conduct was clearly improper and unethical relating to the practice of nursing.
The public interest requires the maintenance of public confidence in the high standards required of health practitioners. In addition, there must be encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. Denouncing serious misconduct operates both as a deterrent to the individual practitioner concerned, as well as the general body of practitioners: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA.
We have thus concluded that the unsatisfactory professional conduct engaged in by the Respondent as established in Complaint One and Complaint Two, when taken together, was of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration under s 139E(b) of the National Law.

Protective Orders Sought

The Commission argued that we should exercise our powers under s 149C(1)(b) on the basis that it is open to us to decide that if the Respondent was still registered, the Tribunal would have suspended or cancelled her registration, and if it would have cancelled her registration, decided that she is disqualified from being registered for a specified period as provided for in s 149C(4) of the National Law.
The Commission drew attention to the fact that the exercise of the discretion under that section requires an assessment of the conduct itself as well as any remorse or insight shown by the Respondent as highlighted in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] per Basten JA.
In oral submissions, Counsel for the Commission emphasised that the deception carried out in respect of the Respondent's new employer struck at the heart of the regulatory system justifying a finding that if still registered, cancellation of the Respondent's registration would have been made. We agree.
In support of the proposed non-registration period of one year, the Commission emphasised the seriousness of the breach. The Commission recognised that the Respondent has given an explanation for her conduct but there is an absence of remorse or regret for her conduct and an absence of evidence of any real insight into the gravity of the misconduct and the deceitful nature of it. These were matters that went directly to the protective nature of orders which needed to be issued in this matter.
The Commission also submitted that there was no evidence of training or other steps taken by the Respondent to educate her in respect of the nature of her conduct and the gravity of it.
Counsel for the Commission emphasised that this was a matter in respect of which there should be both general and specific deterrence including the maintenance of standards in the profession and a denunciation of the conduct. It was emphasised that conduct of this kind is hard to detect and it was simply by chance that it was discovered in the present matter.
We accept the force of these arguments and are satisfied and find that if the Respondent were still registered that the Tribunal would have cancelled her registration as a nurse under s 149C(4)(c) of the National Law and that a non-review period of 12 months would be appropriate.
As was held in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA (with whom Basten and Emmett JJA agreed): "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."
In our view, cancellation and a non-review period of 12 months conform with the principles there set out by his Honour. The making of the order under s 149C(4) will make it plain that conduct of the kind engaged in is unacceptable.

Costs

The Commission seeks its costs, as assessed or agreed, under clause 13 of Schedule 5D of the National Law. The general "rule" is that costs follow the event, namely, the successful party is usually awarded costs. There is nothing put against such an order being made in this case and an order as sought will issue.

Orders 1. The Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the Health Practitioner Regulation National Law (NSW), in that the Respondent contravened conditions to which the practitioner's registration was subject. 2. The Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW), in that the Respondent engaged in improper and unethical conduct relating to the practice or purported practice of nursing. 3. The Respondent is guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW), in that the Respondent engaged in more than one instance of unsatisfactory professional conduct that when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 4. If the Respondent were still registered the Tribunal would have cancelled her registration as a nurse with a disqualification period of 12 months from the date of this decision under s 149C(4)(a) and (b) of the Health Practitioner Regulation National Law (NSW). 5. The National Board with which the Respondent was registered is to record the fact that the Tribunal would have cancelled the Respondent's registration in the National Register kept by the Board. 6. The Respondent is to pay the Commission's costs as agreed or assessed. 7. The publication or broadcast of the name of Person A listed in the Schedule to the Complaint is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2023

Evidence Before the Tribunal

The Commission relies on the following material in support of its application: 1. a volume of evidentiary material entitled "Commission Documents"; 2. an evidentiary certificate from the Australian Health Practitioner Regulation Authority (AHPRA); 3. a supplementary bundle of documents; 4. an affidavit of Nicole Williams, legal officer of the Commission, with attachments affirmed on 1 March 2023 setting out correspondence with the Respondent as to the Directions earlier issued by the Tribunal and notice of hearing on 2 March 2023.
The Respondent did not appear at the hearing on 2 March 2023.
Based on the materials filed by the Commission, in particular the attachments to the affidavit of Nicole Williams, we were, however, satisfied that the Respondent was sufficiently on notice of the hearing on 2 March 2023 and, in particular, had acted in accordance with the Directions issued by the Tribunal on 14 October 2022 directing that the Respondent file any material that she intended to rely upon on or before 20 January 2023, which she did. In the same Directions, the matter was listed for hearing on 2 March 2023. In addition, the Commission, through its legal officers, communicated with the Respondent immediately prior to the hearing, on 1 March 2023, to the same email address used by the Respondent, to inquire whether she intended to appear at the hearing on 2 March 2023. The Respondent did not reply.
The affidavit of Nicole Williams also contained the material provided by the Respondent to the Commission prior to the Directions hearing on 14 October 2022 which consists of a two-page document headed "To Whom It May Concern", explaining the Respondent's actions, the subject of the complaints in this matter.
The Commission also sought the following orders: 1. an order under s 149C(4)(a) of the National Law, that if the Respondent was registered at the time of the hearing, the Tribunal would have suspended or cancelled her registration in circumstances where the AHPRA records set out that the Respondent had been unregistered since 5 July 2022, having failed to renew her registration; 2. an order under s 149C(4)(c) of the National Law requiring the Nursing and Midwifery National Board to record the fact that the Tribunal would have cancelled the registration of the Respondent as a registered nurse in the National Register kept by the Board.
The Commission submitted that the principles governing these proceedings included the following: 1. a fundamental purpose of the National Law is the health and safety of the public as reflected in the now ss 3A and 3B of the National Law and Health Care Complaints Commission v Dr DWF [2019] NSWCATOD 78 at [70]; 2. the proceedings are primarily protective, not punitive, in nature: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; [1997] NSWSC 29; 3. in protecting the community, the Tribunal must take into account the maintenance of the standards of the relevant profession and the preservation of public confidence in that profession: Gayed v Walton [1997] NSWCA 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; and 4. deterrence is a relevant factor: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [114].
The Commission accepted that it bore the onus of proof in these proceedings and drew attention to the need to prove the complaints on a balance of probabilities whilst bearing in mind the seriousness of the allegations and the gravity of the consequences of making the relevant findings sought against the Respondent.

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Cases Cited (18)