Health Care Complaints Commission v Turner

The application before the Tribunal

1. This is an application for disciplinary findings and orders against Ms Turner brought under the Health Practitioners National Law NSW (Nursing). The application is made by the Health Care Complaints Commission (the Applicant). The application attaches a Complaint dated 15 February 2016 ("the Complaint"). The Complaint makes six individual Complaints against Ms Turner. Each individual Complaint is supported by a set of particulars. In addition there was reliance on the same set of particulars between Complaints.
2. The first Complaint alleges that Ms Turner has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(l) of the Health Practitioner Regulation National Law ("the National Law").
3. Section 139B(1)(l) of the National law defines unsatisfactory professional conduct as follows: 1. Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
4. The second Complaint alleges that Ms Turner has been guilty of professional misconduct within the meaning of section 139E of the National Law. Section 139E of the National Law provides: For the purposes of this Law, professional misconduct of a registered health practitioner means- 1. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration, or 2. 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.
5. The third complaint alleges that Ms Turner is impaired within the meaning of section 5 of the National Law. Section 5 defines impairment as being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects the registered health practitioner's capacity to practise.
6. The fourth complaint alleges that Ms Turner is not competent to practice nursing within the meaning of section 139 of the National Law. For present purposes section 139 provides that a person is competent to practise only if the person has sufficient mental and physical capacity to practise their profession.
7. The fifth complaint refers to Ms Turner's criminal conviction for stealing. Section 144(a) of the National Law provides that where a practitioner has been convicted of or made the subject of a criminal finding for an offence this can be a ground for complaint.
8. The sixth complaint alleges that Ms Turner is not a suitable person to hold registration as a registered nurse under section 144(e) of the National Law.
9. If the Complaints are found proven by the Tribunal, the Applicant requests the Tribunal to exercise its power to make disciplinary orders specifically that Ms Turner be disqualified from being registered as a nurse and/or midwife for a period of 18 months to 2 years. It also seeks orders prohibiting Ms Turner from providing specific health services, namely; hospital, pharmaceutical and ambulance services; and an order for costs.

The Hearing

1. Ms Turner did not attend the hearing. An affidavit affirmed on 26 September 2016 by Ms Williams, a solicitor in the employ of the Applicant, sets out the steps taken by the Applicant to give Ms Turner copies of the documents which formed the Applicant's case, a copy of the proposed orders sought by the Applicant, the dates of directions hearings and the date of the substantive hearing. Documents attached to that affidavit indicate that Ms Turner was advised that she could, if she wished, participate in Tribunal proceedings by telephone.
2. The Tribunal is satisfied from the evidence before it that Ms Turner is aware of these proceedings, the orders sought by the Applicant and why. The Tribunal is also satisfied that Ms Turner has been notified of the hearing date. There was no request from her for an adjournment. In the light of these matters and in the interests of justice the Tribunal was satisfied that the hearing ought to proceed despite Ms Turner's absence.
3. Although Ms Turner did not participate in the hearing, she has not denied the conduct alleged. Nor has she presented any evidence which contests the particulars of the complaints or contradicts the evidence relied upon by the Applicant.

Complaint One - Unsatisfactory Professional Conduct

1. The particulars of this complaint refer to Ms Turner stealing 2,007 vials of morphine and pethidine of varying volumes and falsifying records. This occurred from 3 May 2010 to 5 September 2013. The particulars set out that in some instances Ms Turner entered false patient names into the hospital drug register. In other instances Ms Turner entered a transfer into the drug register from one ward to another ward but the drugs were never transferred. Moreover, on some occasions Ms Turner entered into the drug register that morphine had been dispensed to two Patients, Patients A and B. However, there was no corresponding record in their patient records that the drug had actually been administered to them.
2. Evidence in support of the particulars included drug register records, documents relating to false patient names and transfers of drugs between wards; admissions made by Ms Turner to her employer, an officer of the Pharmaceutical Services Unit at the NSW Ministry of Health and police; statements by co-workers; and documents evidencing Ms Turner's plea of guilty and conviction for stealing 2,007 vials of Morphine and Pethidine.

Complaint Two - Professional Misconduct

1. To support this complaint the Applicant relied on the particulars contained in the first complaint individually and cumulatively. It submitted that Ms Turner's conduct from 3 May 2010 to 5 September 2013 in stealing large volumes of drugs and falsification of records over a lengthy period was of a sufficiently serious nature to amount to professional misconduct.

Complaints Three and Four - Impairment and Competence

1. The Applicant contends that Ms Turner is impaired and is not competent to practise as a nurse in that she lacks the mental or physical capacity to do so. Ms Turner's health issues were particularised as follows: 1. Drug dependence syndrome (opioids, benzodiazepines and cannabis 2. Dysthymia (longstanding depression) and 3. Personality disorder
2. From 9 September 2013 to 26 September 2013 Ms Turner was admitted to Gissing House, a psychiatric in-patient unit at Wagga Wagga Base Hospital, for an acute depressive episode. From 13 March 2014 to 14 April 2014 Ms Turner was again admitted for an acute depressive episode this time as an inpatient at Albury Wodonga Private Hospital. From September 2013 to November 2013 and in June 2014 Ms Turner received care from the Wagga Wagga Community Mental Health and/Drug and Alcohol service.
3. Evidence in support of these particulars included Ms Turner's clinical records in relation to her hospital admissions; statements from Dr Davies, her treating psychiatrist at Wagga Wagga Hospital; clinical records from her General Practitioner; her District Community Mental Health Records and two psychiatric assessment reports from Dr Kipling Walker, Psychiatrist.
4. The clinical and medical records in relation to Ms Turner's hospital admissions and her District Community Mental Health Records disclose diagnoses of personality disorder with depressive features, opiate and benzodiazepine abuse and dysthymia.
5. In a report dated 17 December 2013, Dr Kipling Walker diagnosed Ms Turner as suffering from a drug dependence syndrome, depression and personality disorder. The personality disorder was defined by Dr Walker as persistent and abnormal emotions and behaviour that cause impairment.
6. Dr Walker, considered Ms Turner was not fit for work as a nurse. She required ongoing psychiatric treatment and anti-depressant medication and needed to deal with her opioid dependency. Dr Walker expressed the view that it was unclear whether Ms Turner would become fit for work as a nurse and she should not have access to Schedule 4 or 8 drugs.
7. In a subsequent report dated 20 June 2014 Dr Walker confirmed his view that Ms Turner was impaired due to her psychological conditions and was not a competent person to practice as a health professional. Dr Walker stated that due to her psychological conditions, Ms Turner did not have the mental capacity to practise nursing. He expressed the view that Ms Turner was not competent to practice nursing because she would have ongoing problems with judgment, trustworthiness and emotional stability even in the absence of her drug abuse, as her mood and personality problems will persist indefinitely.
8. The affidavit of Ms Williams affirmed on 26 September 2016 sets out the nature and extent of the contact she has had with Ms Turner. Attached to this affidavit is email correspondence from Ms Toni Neilsen, a support facilitator from Partners in Recovery.
9. Ms Neilsen advises that Partners in Recovery is an agency dedicated to the support of people with severe and persistent mental illness and complex needs. Ms Neilsen is Ms Turner's support facilitator. Ms Neilsen assists Ms Turner by co-ordinating services involved in her care. In an email dated 13 September 2016 Ms Neilsen states that Ms Turner is presently not going very well and is "struggling with her long road of recovery'. In a further email dated 20 September 2016 Ms Neilsen advised that Ms Turner had been admitted to a mental health unit over the preceding weekend.

Complaint Five - Criminal Conviction

1. On 18 May 2015 Ms Turner was convicted in the Wagga Wagga Local Court of the offence of steal property as clerk/servant. She was sentenced to a term of imprisonment of 10 months. The execution of the sentence was suspended upon Ms Turner entering into a bond for the same amount of time with the following conditions: 1. To attend counselling, educational development, drug or alcohol rehabilitation; and 2. Supervision by the New South Wales Community corrections (Probation and Parole).
2. In support of these particulars the Tribunal had before it the Wagga wagga Local Court Certificate of Conviction of 18 May 2014 and Police Brief including charge sheet, fact sheet, witness statements, and police interview with Ms Turner held on 26 September 2014. There is no suggestion that this conviction was the subject of a successful appeal.

Complaint Six - Not a suitable person to hold registration as a nurse and midwife

1. In relation to Complaint Six, the Applicant relies on Complaints One and Five and the particulars detailed in those complaints. In essence the Applicant points to the misappropriation of drugs by Ms Turner and the criminal conviction in that regard.

Unsatisfactory Professional Conduct section 139B(1)(l)

1. The uncontested evidence discloses that between 3 May 2010 and 5 September 2013 Ms Turner misappropriated 2,007 vials of morphine and pethidine for her own use and falsified hospital records to hide that misappropriation. This conduct has been admitted by Ms Turner in interviews conducted by her employer, the Pharmaceutical Services Unit at the NSW Ministry of Health and the police. The volume of stealing, that is; 2,007 vials of morphine and pethidine was also the specific subject of the conviction recorded by a Local Court on 18 May 2015. The Tribunal is satisfied from the evidence before it that the particulars detailed in this complaint are proved.
2. Section 139B(1)(l) of the National Law requires a determination by the Tribunal of whether Ms Turner's conduct demonstrates improper or unethical conduct relating to the practice or purported practice of nursing and is therefore unsatisfactory professional conduct.
3. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral; 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.
4. 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 HCCC 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.
5. There is no guidance in the National Law as to what is meant by "in the practice of nursing" however in the Tribunal's view it should be given a purposive meaning and is a notion of broad scope.
6. This interpretation is consistent with the case of Childs v Walton [1990] NSWCA 41, in which the meaning of the words "in the practice of medicine" in the now repealed Medical Practitioners Act 1938 were considered for the purposes of an allegation of professional misconduct. Samuels JA stated: "The phrase "in the practice of medicine" does not have a temporal meaning, but rather a qualitative or descriptive character. It does not circumscribe the period during which the conduct impugned must occur if it is to be capable of satisfying the prescription; it describes its nature. The conduct must be such as to demonstrate the lack of a quality (eg adequate knowledge) necessary in the practice of medicine…It need not be conduct which occurs in the course of treating a patient. The only requirement is that it must demonstrate one of the specified deficits…"
7. In the Tribunal's view Ms Turner's conduct over the lengthy period of some 3 years and four months in misappropriating 2,007 vials of morphine and pethidine was not in conformity with standards of professional conduct and practice. It falls below the standards of conduct expected of nurses in that it has the potential to bring the profession into disrepute. The Tribunal finds that the theft of large volumes of schedule 8 drugs was a serious breach of the standards to which the profession should conform. It was improper and unethical.
8. Equally, the deliberate falsification by Ms Turner of the drugs registers and other documents to hide her theft of drugs was improper and unethical. The integrity of drug registers relies on the accurate completion by those charged with this responsibility. It was Ms Turner's duty to accurately complete these records. Her falsification of the records was a breach of the trust that had been placed in her.
9. The Tribunal concludes that Ms Turner's conduct in relation to the misappropriation of drugs amounts to unsatisfactory professional conduct under s139B(1)(l) of the National Law. The Tribunal is satisfied that Complaint One is established.

Complaint Two: Professional Misconduct section 139E of the National Law

1. In determining whether a finding can be made of professional misconduct the Tribunal must determine whether as outlined in HCCC v Perroux [2011] NSWDC 99 at [18] "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration".
2. It has been held that 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": see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
3. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in section 139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: HCCC v Saedlounia [2013] NSWMT 13 at 43-50 and Health Care Complaints Commission v Do [2014] NSWCA 307 at 35.
4. To constitute professional misconduct, it has been held that the conduct the subject of the complaint must be of such a departure from the accepted standards of the profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence: see Qidwai v Brown [1984] 1 NSWLR 100 at 105 (Priestley JA).
5. In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 the Court of Appeal (referring to the earlier statutory test) described professional misconduct as including: "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson [v General Council of Medical Education and Registration [1894] 1 QB 755] (at 760-761)." (per Kirby P at 200).
6. The evidence is to the effect that over a period of three years and four months and on numerous occasions Ms Turner falsely obtained morphine and pethidine for personal use. She undertook considerable subterfuge by falsifying records and depriving patients of their pain relief medication. In the Tribunal's view this reflects extensive planning by Ms Turner to obtain drugs by deception. She took advantage of opportunities to procure drugs when she had access to the drug cupboard whilst on duty. In doing so she breached standard practise by accessing the drug cupboard alone.
7. On each occasion Ms Turner used her position of authority as a nurse in her pursuit to deceptively obtain morphine and pethidine. The totality of Ms Turner's conduct is of a very serious nature.
8. In the Tribunal's view the unsatisfactory professional conduct displayed by Ms Turner is of a sufficient nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law. The Tribunal finds that when considered as a whole Ms Turner's conduct constitutes professional misconduct. The Tribunal is satisfied that Complaint Two is established.

Complaint Three and Four: Impairment and Competence section 5 and section 139 of the National Law

1. It is apparent from the clinical records and medical evidence available to the Tribunal that Ms Turner has had significant issues in relation to her mental health, including at least two documented hospital admissions in September 2013 and March 2014. The clinical records in relation to Ms Turner's hospital admissions and her District Community Mental Health Records disclose diagnoses of personality disorder and dysthymia.
2. In a report dated 17 December 2013, Dr Walker, considered Ms Turner was not fit for work as a nurse. He stated that she required ongoing psychiatric treatment and anti-depressant medication and needed to deal with her opioid dependency. Dr Walker expressed the view that it was unclear whether Ms Turner would become fit for work as a nurse.
3. In a subsequent report dated 20 June 2014 Dr Walker confirmed his view that Ms Turner was impaired due to her psychological conditions and was not a competent person to practice as a health professional. Dr Walker stated that due to her psychological conditions Ms Turner did not have the mental capacity to practise nursing. He expressed the view that Ms Turner was not competent to practise nursing because she would have ongoing problems with judgment, trustworthiness and emotional stability even in the absence of her drug abuse, as her mood and personality problems will persist indefinitely.
4. Although the evidence from Dr Walker is some two and a half years old, there is no reason to believe that Ms Turner's condition will have materially changed. That is particularly so given Dr Walker's opinion that her conditions were likely to persist 'indefinitely'. Further the advice contained in the emails as recently as September 2016 from Ms Neilsen, Ms Turner's support facilitator, suggests that Ms Turner is struggling with her recovery. This evidence also suggests that Ms Turner has had a recent admission to a mental health unit.
5. In contrast there is no evidence before the Tribunal that Ms Turner's drug dependence issues have ceased or there have been actual improvements in her mental health issues.
6. In the Tribunal's view Ms Turner's mental health and drug dependence difficulties continue. The Tribunal finds that Ms Turner is impaired and that this impairment includes drug dependence. The Tribunal further finds that Ms Turner's impairment detrimentally affects her capacity to practise.
7. The totality of the evidence and specifically the reports from Dr Walker indicate that Ms Turner is not competent to practise nursing due to her psychological conditions. The Tribunal is satisfied that Ms Turner does not have sufficient mental and physical capacity to practise her profession. Accordingly the Tribunal is satisfied that Ms Turner is not competent to practise her profession.
8. The Tribunal is satisfied that the impairment and competency issues are continuing ones, and Complaints Three and Four are established.

Complaint Five - Criminal Conviction

1. Ms Turner was convicted of the offence of 'steal property as clerk/servant" in the Local Court at Wagga Wagga.
2. This is a conviction relating to matters of honesty and integrity. It was a breach of trust by Ms Turner of her position as a nurse and midwife. It arose during the practise of her profession. It related to an ongoing, deliberate course of conduct over a period in excess of 3 years.
3. Further in the Tribunals view the nature of the conviction, and the circumstances in which the offence was perpetrated, render Ms Turner unfit in the public interest to practice her profession in the sense contemplated by section 149C(1)(c) of the National Law.
4. The Tribunal is satisfied that Complaint Five is established.

Complaint Six - Not a suitable person to hold registration as a nurse and midwife

1. The Tribunal has found that Ms Turner has been guilty of unsatisfactory professional conduct and professional misconduct. The Tribunal has also found that Ms Turner is impaired and is satisfied that she is not competent to practice. Her recent criminal conviction renders her unfit in the public interest to practice her profession at this time. All these matters culminate in the position that she is not a suitable person to hold registration as a nurse and midwife. The Tribunal is satisfied that Complaint Six is established.

Principles regarding protective orders

1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of Part 8 of the National Law in relation to proven claims against registered health practitioners: see ss149A, 149B and 149C. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. Since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v HCCC [2012] NSWCA 80 at 34.
2. In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184.
3. In Health Care Complaints Commission v Do, Justice Meagher (with whom Justices Basten and Emmett agreed) referred (at [35]) to the importance of denunciation of misconduct, in the context of s 3 and s 3A of the National Law as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
4. Ms Turner is not currently registered. In the light of the seriousness of the misconduct if Ms Turner had been registered we would have cancelled her registration: see section 149C(4)(a) of the National Law.
5. As Ms Turner is not currently registered, the Applicant seeks an order under section 149C(4)(b) of the National Law disqualifying her from being a registered nurse and/or midwife for a period of 18 months to 2 years. The Applicant also seeks other ancillary orders including that Ms Turner be prohibited under section 149C(5)(a) National Law, from providing 'health services' as defined in section 4 of the Health Care Complaints Act 1993 (NSW) until such time as a reinstatement order is made. The specific prohibition sought by the Applicant relates to Ms Turner providing hospital services, pharmaceutical services and ambulance services.
6. In the Tribunal's view the misuse by Ms Turner of her position of authority and trust as a nurse in her pursuit to deceptively obtain drugs is very serious. Having regard to the need to maintain the standards of the profession, to deter others from engaging in like conduct, given the gravity, duration and subterfuge of the misconduct and in the absence of any evidence of rehabilitation, in the Tribunal's view the most appropriate order which reflects the paramount consideration of the protection of the public is a two year period of disqualification. It will also serve as a sufficient period within which Ms Turner can take steps to address her mental health issues and opioid dependency. It will also give her the opportunity to demonstrate character reform.
7. A prohibition order under section 149C(5)(a) of the National Law can be exercised where the Tribunal is satisfied that the practitioner poses a substantial risk to the health of members of the public.
8. The power conferred by section 149C(5)(a) of the National Law can still be exercised where the practitioner is no longer registered and the Tribunal makes a decision under section 149C(4) that it would have suspended or cancelled their registration if they were still registered: see 149C(5A) of the National Law.
9. The reports from Dr Walker indicate that given the nature and extent of Ms Turner's difficulties she should not work as a nurse. The Tribunal has found that Ms Turner is not competent and is unfit in the public interest to practice her profession. There is no evidence of rehabilitation. In the Tribunal's view Ms Turner poses a substantial risk to the health of members of the public.
10. In the light of these matters the ancillary order sought by the Applicant prohibiting Ms Turner from providing hospital, pharmaceutical and ambulance services until such time as a reinstatement order is made is also appropriate.

Costs

1. The Applicant seeks an order that Ms Turner pay its costs.
2. The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: see Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at 22. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at 36. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
3. The Complaints have been wholly proved. There are no factors that might militate against the recovery by the Applicant of its costs. Accordingly, the Applicant is entitled to an award for costs in its favour incidental to the proceedings.

ORDERS The Tribunal orders that: 1. If the Respondent (Ms Turner) was registered as a nurse and midwife at the date of these orders the Tribunal would have cancelled her registration. 2. The Respondent is disqualified from seeking registration as a nurse and/or midwife for a period of two years from the date of these orders. 3. Unless and until the Respondent is registered as a nurse and/or midwife, she is prohibited from providing the following health services: 1. Hospital services 2. Pharmaceutical services and; 3. Ambulance services. 1. The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2 and 3 above as soon as practicable. 2. An order under s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the names of Patient A and B appearing in the Schedule to the Complaint. 3. The Respondent is to pay the Applicant's costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2016