In these proceedings the Health Care Complaints Commission (the HCCC) is seeking findings against Leah Maree Wilkinson (Ms Wilkinson or the practitioner), a nurse, of having an impairment and that she is guilty of unsatisfactory professional conduct within the Health Practitioner Regulation National Law (NSW) (National Law), and the making of consequential protective orders.
We have decided to make the following orders and findings:
1. leave is granted to the applicant to file an Amended Complaint and service of the Amended Complaint on the respondent is dispensed with;
2. that Ms Wilkinson is guilty of unsatisfactory professional conduct within s 139B(1)(c) of the National Law;
3. that Ms Wilkinson has an impairment within s 5 of the National Law;
4. the proceedings are adjourned for a directions hearing on a date fixed by the Registrar to set a timetable and fix a hearing date for the stage 2 hearing to determine what if any protective orders should be made against the respondent.
[2]
The factual background
Ms Wilkinson who was born in 1965 and lives at Broken Hill in New South Wales:
1. has the following qualifications:
1. Certificate of Hospital Training - General Nurse, Ryde Hospital, 1987;
2. Certificate of Education in Midwifery, Manly District Hospital, 1989;
3. Postgraduate Diploma of Psychology, Charles Sturt University, 2011;
1. has had and has the following registrations as a health professional:
1. she was first registered as a nurse in New South Wales on 13 July 1987;
2. she was registered as a nurse and midwife under the National Law from 1 July 2010 to 6 June 2022;
3. she has been registered as a nurse and midwife under the National Law since 10 June 2022;
4. she was registered as a provisional psychologist from 14 May 2012 to 20 June 2013 and from 4 November 2019 to 9 December 2021.
Between 2013 and 12 January 2021, one or both of the Nursing and Midwifery Council of New South Wales (the NMC) and the Psychology Council of New South Wales (the PC) (together referred to as the Councils) received the following complaints against Ms Wilkinson:
1. during 2013 and 2014, the NMC received four complaints which alleged Ms Wilkinson made unfounded accusations about colleagues thieving, drug dealing and undertaking other criminal activities. Ms Wilkinson attended a health assessment with Dr Anthony Samuels (Dr Samuels), a psychiatrist, and the complaints were closed with no further action;
2. on 1 May 2017, the NMC received a complaint from Far West Local Health District (FWLHD) which reported concerns about Ms Wilkinson's behaviour and clinical practice in mental health. The complaint also reported that an internal review at the facility found suboptimal provision of care that highlighted poor clinical reasoning, judgement and inadequate clinical documentation. Ms Wilkinson attended a health assessment with Dr Samuels on 19 October 2017 and a counselling interview with a committee of the NMC on 1 December 2017. At the interview, Ms Wilkinson was issued with professional guidance and demonstrated awareness of the changes needed in her practice. The matter was closed;
3. on 2 September 2020, the PC received a complaint about Ms Wilkinson which reported that:
1. she sent an email to a Psychiatric Registrar regarding a client, and gave sensitive information about a client from her previous employment (a breach of privacy) and, within the same email, wrote about her experience at Broken Hill Community Mental Health and Drug and Alcohol Service (within FWLHD);
2. she sent an email to the Chief Executive of FWLHD with allegations about staff at FWLHD and that her electronic communication devices were being intercepted by listening devices.
Ms Wilkinson provided the PC with a response to the complaint. The matter was closed after further advice was provided to her;
1. on 31 December 2020, the Councils received a complaint about Ms Wilkinson which reported concerns about her mental health. The complainant submitted a copy of an email sent by Ms Wilkinson about a report for a client which included comments by Ms Wilkinson about her previous employment at FWLHD;
2. on 12 January 2021, the Councils received a notification from Neami National which raised concerns about Ms Wilkinson's health and conduct while working as a mental health nurse and provisional psychologist at the Broken Hill GP Super Clinic. The notification alleged that Ms Wilkinson wrote an email to colleagues alleging that Neami staff were involved in illegal activities. A workplace investigation reportedly did not reveal evidence of the Neami staff undertaking any illegal activity.
On 25 January 2021, a joint panel of delegates from the Councils, having regard to the complaints in [4(1)] to [4(4)] above and noting that there was no clear diagnosis of any psychiatric disorder in the multiple psychiatric assessments with multiple psychiatrists and a psychologist from 2013 to September 2018, decided that it was not appropriate to take action in respect of Ms Wilkinson for the protection of the health or safety of the public or otherwise in the public interest under s 150 of the National Law.
On 26 May 2021, a joint panel of delegates from the Councils, having regard to the complaints in [4(1)] to [4(4)] above and noting that there was there was no clear diagnosis of any psychiatric disorder in the multiple psychiatric assessments with multiple psychiatrists and a psychologist from 2013 to September 2018, were satisfied on the basis of the report of Dr Kim Newnham dated 23 April 2021 that Ms Wilkinson had an impairment as defined in the National Law and posed unacceptable and serious risks to public safety, decided that it was appropriate to take action in respect of Ms Wilkinson for the protection of the health or safety of the public and imposed the following conditions on her registration under s 150(1)(b) of the National Law (the 26 May 2021 Councils decision):
1. the PC imposed a condition that she was not to work as a registered psychologist until its review;
2. the NMC imposed a condition that she was not to work as a registered nurse and midwife until its review.
On 20 June 2021, Ms Wilkinson made an application to the Councils under s 150A(1)(b) of the National Law for a review of the 26 May 2021 Councils decision.
On 29 October 2021, a joint panel of delegates from the Councils affirmed the 26 May 2021 Councils decision under s 150A(3)(a) of the National Law.
On 7 December 2021, Ms Wilkinson made an application to the NMC under s 150A(1)(b) of the National Law for a review of the 26 May 2021 Councils decision so far as the imposition of the condition on her registration as a nurse and midwife.
On 24 January 2022, a panel of delegates from the NMC varied the 26 May 2021 Councils decision under s 150A(3)(a) of the National Law by imposing an additional condition that Ms Wilkinson attend for assessment by a NMC-appointed psychiatrist as directed by the NMC at its cost, and referred the matter to the HCCC for investigation pursuant to s 150D of the National Law (the 24 January 2022 NMC decision).
On 9 February 2022, the NMC sent a letter to Ms Wilkinson referring her to a health assessment by Dr Samuels on 6 April 2022 and requested confirmation by her of her attendance.
On 16 March 2022, Ms Wilkinson sent an email to the NMC in which she stated that she no longer resided in New South Wales, she had not been in employment as a registered nurse since 12 May 2021, and she had obtained legal advice that there is no requirement for her to attend a NMC appointed medical practitioner. She requested the cancellation of her appointment Dr Samuels on 6 April 2022, and stated that she would not be renewing her registration as a nurse and midwife through the NMC (the 16 March 2022 Wilkinson email).
On 22 March 2022, the HCCC sent a letter to Ms Wilkinson advising that it had decided to refer the complaint to its Investigation Branch.
On 10 June 2022, the NMC sent a letter to Ms Wilkinson referring her to a health assessment by Dr Samuels on 21 July 2022 and requested confirmation by her of her attendance.
On 14 June 2022 at 8.33 am, Ms Wilkinson sent an email to the NMC in which she stated that she was unable to attend her appointment with Dr Samuels on 21 July 2022 as the investigation of the matter had been referred to the HCCC under s 152L of the National Law on 22 March 2022 (the 14 June 2022 at 8.33 am Wilkinson email).
On 14 June 2022 at 1.26 pm, an officer of the NMC sent an email to Ms Wilkinson in which he set out s 139B(1)(c) of the National Law and stated that should she fail to attend the health assessment scheduled for 21 July 2022 without reasonable excuse the NMC may consider the failure to be a contravention of the conditions on her registration and therefore unsatisfactory professional conduct (the 14 June 2022 at 1.26 pm NMC email).
On 21 June 2022 at 12.42 pm, Ms Wilkinson sent an email to the NMC in which she referred to the 14 June 2022 at 8.33 am Wilkinson email as setting out the reasons why she would not be attending the health assessment scheduled for 21 July 2022 (the 21 June 2022 at 12.42 pm Wilkinson email).
On 27 July 2022, the HCCC made an interim prohibition order in relation to Ms Wilkinson under s 41AA of the Health Care Complaints Act 1993 (NSW) (HCC Act) that she must not, under any circumstances provide, or cause to be provided, any health services, either in paid employment or voluntarily, to any member of the public.
[3]
The history of the proceedings
On 11 April 2023, the HCCC as the applicant commenced proceedings 2023/00115501 against Ms Wilkinson as the respondent by filing an application for disciplinary findings and orders, which relevantly provides:
"3. ORDERS SOUGHT
In the event the subject-matter of the complaint is proved or admitted, the Applicant seeks:
1. Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law, with a non-review period of 1 to 3 years.
2. A prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for a non-review period of 1 to 3 years.
3. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law.
In the event that only some of the particulars of the complaint are proved, the Applicant may seek alternative protective orders under section 149A (caution, reprimand, counsel etc.), section 149B (fine), and/or section 149C (suspension) of the National Law.
GROUNDS FOR APPLICATION (INCLUDING PARTICULARS)
The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(c) and/or (I) and/or suffers from an impairment under section 144(d) of the National Law.
…
COMPLAINT ONE
The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the National Law in that the practitioner has contravened a condition to which the practitioner's registration was subject.
BACKGROUND TO COMPLAINT ONE
On 16 February 2022, the Nursing and Midwifery Council (Council") imposed the following condition on the practitioner's registration:
To attend for assessment by a Council- Appointed Psychiatrist (CAP) as directed by the Nursing and Midwifery Council of NSW. The costs of this assessment will be met by the Council.
PARTICULARS OF COMPLAINT ONE
1. The practitioner breached a condition of her registration when she failed to attend a health assessment arranged by the Council, which was scheduled for the following dates:
a. 6 April 2022; and
b. 21 July 2022.
COMPLAINT TWO
The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
BACKGROUND TO COMPLAINT TWO
On 9 February 2022, the practitioner was advised of an upcoming health assessment with Dr Samuels on 6 April 2022, pursuant to a condition of her registration.
On 16 March 2022, the practitioner sent an email to the Nursing and Midwifery Council which stated:
"I no longer reside in NSW and have not been employment (sic) as Registered Nurse since 12th May 2021.
I have sought legal advice and as such there is no requirement for me to attend an HPCA Nursing & Midwifefy Council appointed medical practitioner.
Accordingly, can you please cancel my appointment with Dr Anthony Samuels on 6th April 2022. I will not he renewing my Nursing and Midwifery Registration though NSW. Thank you."
PARTICULARS OF COMPLAINT TWO
1. On 16 March 2022, the practitioner gave false and/or misleading information to the Nursing and Midwifery Council, when she stated that she no longer resided in NSW.
COMPLAINT THREE
Pursuant to s 144(d) of the National Law, the practitioner has an impairment within the meaning of s 5 of the National Law, being a mental impairment, condition or disorder that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of nursing.
PARTICULARS OF COMPLAINT THREE
The practitioner suffers from an impairment, namely a psychotic illness."
On 28 April 2023, the Tribunal made procedural orders (the 28 April 2023 orders) including order 6 that the proceedings are listed for a combined Stage 1 and Stage 2 hearing on 18 October 2023 at 10am for three days, to be heard in person.
On 10 September 2023, Ms Wilkinson sent an email to the Registry in which she applied for an order that she be permitted to appear at the hearing by Audio Visual Link (the AVL application).
On 18 September 2023, Ms Wilkinson filed an application for miscellaneous matters and accompanying documents in which she sought the following orders (the miscellaneous matters application):
"1. Non-publication orders, which prohibit or restrict the publication of information, and Suppression orders, which more broadly prohibit or restrict the disclosure of information, whether by publication or otherwise. [62-020] Court Suppression and Non-Publication Orders Act 2010
2. Restrict publication of the Ms Wilkinson's name as a Health Practitioner under Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW)
3. Dismiss Proceedings for want of prosecution of proceedings s 55 Civil and Administrative Act 2013
4. Remove Conditions on Health Practitioner Registrations. Ms Wilkinson has been subject to conditions exceeding the maximum 2 years whilst practicing as a Provisional Psychologist s 152M(4) Health Practitioner Regulation National Law (NSW)
5. s 145 Health Practitioner Regulation National Law NSW-Complaints to be dealt with expeditiously Ms Wilkinson's treating health practitioner indicates that her mood is even and stable. and she engaged with them as required. NSW Paragraph 49 Howard v Nursing & Midwifery Council
6. Independent Medical reports exceeding 90 days must not be used as contemporaneous evidence to the defendant's state of health. A certificate of capacity is of no effect to the extent that it relates to a period that is more than 90 days before the certificate is provided.
7.a) all of the hearing happen in private under s 49(2) of the Civil and Administrative Act 2013 or under s165K of the Health Practitioner Regulation National Law in health matters
b) the evidence given in a private hearing kept confidential
c) anything else kept confidential
8. No orders to he issued as penalties/fines or disciplinary orders or unethical conduct breaches for health -related conditions when the health practitioner has been reviewed and treated as required s14 Health Care Complaints Act 1993 with reasonable excuse to reschedule health assessment.
s 152B(4) Health Practitioner Regulation National Law NSW 2009" (URL references omitted)
On 28 September 2023, Ms Wilkinson filed her statement of that date (the 28 September 2023 Wilkinson statement) which included her reply in which she denied the three complaints.
On 5 October 2023, the Tribunal dismissed the AVL application with oral reasons and adjourned the miscellaneous matters application to the hearing on 18 October 2023.
On 16 October 2023 at 8.23pm, Ms Wilkinson sent an email to the Registry in which she applied for an adjournment of the hearing (the 16 October 2023 at 8.23pm Wilkinson email or the adjournment application according to the context).
[4]
The hearing
On 18 October 2023, the stage 1 hearing took place. Mr I Chatterjee, a barrister, represented the HCCC. Ms Wilkinson did not appear.
At the commencement of the hearing, counsel for the HCCC advised that it and Ms Wilkinson had agreed that the hearing would be a stage 1 hearing. Notwithstanding the terms of order 6 of the 28 April 2023 orders, in view of the absence of Ms Wilkinson we decided to conduct the hearing as a stage 1 hearing.
At the commencement of the hearing, we heard the adjournment application and the miscellaneous matters application and made the following orders indicating that a statement of reasons would be provided in this decision:
1. the adjournment application is dismissed;
2. the miscellaneous matters application is dismissed.
The HCCC relied on the following documents which were admitted into evidence:
1. a bundle of documents entitled "Further Materials re Financial Hardship" which was marked as exhibit A1;
2. a bundle of documents filed on 5 October 2023 so far as tabs 2 to 105 which was marked as exhibit A2;
3. a supplementary bundle of documents filed on 12 October 2023 which was marked as exhibit A3;
4. the evidentiary certificate dated 7 September 2023 of the NMC which was marked as exhibit A4;
5. the evidentiary certificate dated 16 October 2023 of the Australian Health Practitioner Regulation Agency which was marked as exhibit A5;
6. the report of Dr Samuels dated 13 October 2023 (the 13 October 2023 Samuels report) which was marked as exhibit A6.
On 18 October 2023, Ms Wilkinson sent an email to the Registry (the 18 October 2023 Wilkinson email) in which she objected to the 13 October 2023 Samuels report being admitted into evidence on the ground that it does not comply with s 44B(5) of the Workers Compensation Act 1987 (NSW) (WC Act). We admitted the 13 October 2023 Samuels report into evidence over the objection of Ms Wilkinson because s 44B(5) of the WC Act which deals with the evidence as to work capacity to be provided by a worker to the insurer for the purpose of the calculation of weekly compensation by way of income support is irrelevant to the conduct of disciplinary proceedings against a health practitioner under the National Law.
The following documents were admitted into evidence on behalf of Ms Wilkinson:
1. Tax Invoice of Origin Energy dated 14 July 2023 which was marked as exhibit R1 (the 14 July 2023 Origin invoice);
2. the report of Andrew Frukacz (Dr Frukacz) dated 26 September 2023 which was marked as exhibit R2 (the 26 September 2023 Frukacz report);
3. the 28 September 2023 Wilkinson statement which was marked as exhibit R3;
4. the letter of the Australian Electoral Commission (AEC) dated 19 September 2023 to Ms Wilkinson which was marked as exhibit R4 (the 19 September 2023 AEC letter);
5. the document of the AEC entitled "Acknowledgement and declaration of key obligations for Temporary Election Workers (TEW)" which was marked as exhibit R5;
6. the payment advice of the AEC dated 9 October 2023 for Ms Wilkinson which was marked as exhibit R6 (the 9 October 2023 AEC payslip);
7. the document of the AEC entitled "Allocated staff as at Thursday, October 12th, 2023" which was marked as exhibit R7;
8. Collective Determination 2023/3 made by the Electoral Commissioner under the Commonwealth Electoral Act 1918 (Cth) which was marked as exhibit R8;
9. the email of Ms Wilkinson sent to the Registry on 5 October 2023 at 11.58 am and attached documents which were marked as exhibit R9;
10. the email of Ms Wilkinson sent to the Registry on 7 August 2023 at 10.39 am and attached documents which were marked as exhibit R10;
11. the email of Ms Wilkinson sent to the Registry on 31 July 2023 at 8.31 am and attached documents which were marked as exhibit R11;
12. the email of Ms Wilkinson sent to the Registry on 27 April 2023 at 12.58 pm and attached documents which were marked as exhibit R12;
13. the documents attached to the miscellaneous matters application which were marked as exhibit R13.
Ms Wilkinson in the 18 October 2023 Wilkinson email sought to rely the documents which are exhibits R3 to R8. During the hearing, out of caution we admitted the documents which are exhibits R1, R2, and R9 to R12 into evidence as they had been sent to the Registry. Subsequent to the hearing, we admitted the documents which are exhibit R13 into evidence as we had overlooked receiving them into evidence.
Dr Samuels gave oral evidence.
The HCCC provided written submissions dated 18 October 2023 (the HCCC written submissions) and made oral submissions.
At the conclusion of the hearing we reserved our decision.
On 19 October 2023, the HCCC filed an Amended Complaint deleting Complaint Two.
We have decided to give leave to the HCCC to file the Amended Complaint and dispense with service of the Amended Complaint on the respondent.
[5]
The issues
The following issues arise for determination:
1. issue 1: whether Ms Wilkinson engaged in the conduct alleged in the Particulars of Complaint One;
2. issue 2: whether Ms Wilkinson is guilty of unsatisfactory professional conduct;
3. issue 3: whether Ms Wilkinson has an impairment.
Before considering these issues, it is necessary to state our reasons for dismissing each of the adjournment application and the miscellaneous matters application. It is then appropriate to set out our approach in dealing with the proof of facts and then deal with issues 1 to 3 in turn.
[6]
The reasons for dismissing the adjournment application
The 16 October 2023 at 8.23pm Wilkinson email included as part of an email chain the following emails:
1. the email of Ms Wilkinson sent on 16 October 2023 at 11.10 am to the solicitor of the HCCC:
1. in which she relevantly stated:
"…
As discussed in the Directions hearing on 13th October 2023. I am unable to travel due to financial hardship and the HCCC, including the Nursing & Midwifery Council of NSW are not willing to fund my travel.
On 5th October 2023 G Blake AM SC, Senior Member dismissed my application for AVL attendance at the NCAT 2023/00115501 hearing from 18th-20th October 2023 based on the willingness of the HCCC to fund travel assistance.
Unfortunately, I have not received any Itinerary for travel arrangements from the HCCC and I am unable to travel to the hearing due to financial hardship.
However, I have attached Medical Clearance with fitness to travel.
If the HCCC can send a travel Itinerary with return Flights & Accommodation from 17th-21st October 2023 with a charge back facility for Meals and incidentals including airport shuttles, and electronic Cabcharge Digital Pass for Broken Hill and Sydney Travel return to Airport, then I can attend the hearing from 18th-20th October 2023.
I am a Regional/Remote (MM3) defendant with an allegation of a serious medical condition, experiencing financial hardship, and I cannot attend the NCAT 2023/00115501 hearing set down for 18th-20th October 2023.
…"
1. to which she relevantly attached:
1. the 14 July 2023 Origin invoice, which recorded an account balance of $2,020.18 for Ms Wilkinson for a supply address at Broken Hill in New South Wales with the balance of $1,006.39 carried forward and new charges of $1,013.74 for the period from 10 April 2023 to 10 July 2023;
2. the 19 September 2023 AEC letter, which recorded the engagement of Ms Wilkinson by the AEC as an electoral official at the Referendum on 14 October 2023;
3. the 9 October 2023 AEC payslip, which recorded that AEC paid Ms Wilkinson the sum of $100.28 and superannuation of $11.03 for the period from 28 September 2023 to 4 October 2023;
1. the email of an officer of the Commonwealth Bank of Australia sent on 9 October 2023 at 3.28 pm to Ms Wilkinson, in which the officer relevantly stated:
"…
At this stage, we have no confirmed solution on the arrears outstanding.
The budget you have submitted showed the monthly rental income of $1,300.00. As there are no other regular sources of income received, the results of the budget do not show that you have capacity to service the loans moving forward.
The Power of Sale Default Notice which expired on 29/5/23 is still valid. However, the Bank is not able to support your intention to seek for Early Release of Super as the full criteria is not met.
As for the Home Loanxxx7801, the property is secured by an investment property and therefore, this solution is not applicable.
…"
The HCCC opposed the adjournment application.
The evidence of Ms Wilkinson does not establish financial hardship such that she could not afford the travel and accommodation costs in connection with the hearing. She disclosed limited financial information. While she is in arrears for an unknown amount under a home loan from the Commonwealth Bank of Australia and for the amount of $1,006.39 to Origin Energy, she has an investment property and monthly rental income of $1,300.00, and had casual employment with the AEC in connection with the Referendum held on 14 October 2023.
For these reasons, we dismissed the adjournment application.
[7]
The reasons for dismissing the miscellaneous matters application
[8]
The matters to be determined
We decided that we should dismiss the miscellaneous matters application:
1. so far as orders 4 and 8 as the removal of conditions on Ms Wilkinson's registration as a nurse and midwife and any protective action in respect of Complaint One if proved and found to constitute unsatisfactory professional conduct would be determined as part of the proceedings;
2. so far as orders 6 as her objection to medical reports based on non-compliance with s 44B(5) of the WC Act was misconceived.
This left for determination to the following matters:
1. whether the proceedings should be dismissed for want of prosecution as sought in orders 3 and 5;
2. whether non-publication orders should be made and an order be made that the hearing be in private as sought in orders 1, 2, and 7.
[9]
The application for dismissal of the proceedings for want of prosecution
The source of the power to dismiss proceedings for want of prosecution is s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
The HCCC opposed the dismissal of the proceedings for want of prosecution.
Ms Wilkinson does not advance any reasons in the miscellaneous matters application as to why she contends that there has been a want of prosecution of the proceedings.
We are not satisfied that there has been any failure by the HCCC to prosecute the proceedings. They were commenced on 11 April 2023, set down for hearing on 28 April 2023 and heard on 18 October 2023. The reference to s 152M(4) of the National Law is misconceived as this provision deals with the length of an order for suspension or a condition imposed by a Council on a student in the case of impairment.
[10]
The application for dismissal for non-publication orders and the hearing be in private
The source of the power to make a non-publication order is cl 7 of Sch 5 of the National Law which confers the power on that the person presiding in the proceedings and s 64 of the NCAT Act. The source of the power to order that a hearing be in private is s 165K of the National Law and s 64 of the NCAT Act.
The principles as to the application of these provisions are set out in Health Care Complaints Commission v Thistlethwaite [2023] NSWCATOD 95 (Thistlethwaite) at [110], [113]:
"[110] The starting point is that disclosure of the name of a person who is the subject of disciplinary proceedings is expected to be made, consistent with the concept of open justice, unless there is a compelling reason for a non-publication order to be made in relation to that person's name. The risk of a negative emotional reaction to disclosure, such as embarrassment or humiliation, would not be an adequate reason for a non-publication order The risk of reasonably foreseeable negative impacts upon the Respondent's family from disclosure, such as embarrassment and negative social impacts, would not, by themselves, be sufficient reason to make a non-disclosure order: Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [44]-[46]."
"[113] The public is entitled to know whether a practitioner has been the subject of disciplinary findings and orders. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and why. Decisions also provide a marker of what is unacceptable to other members of the profession."
The HCCC opposed the making of non-publication orders and an order that the hearing be in private.
Ms Wilkinson does not advance any reasons in the miscellaneous matters application as to why she contends that non-publication orders should be made and an order made that the hearing be in private. In particular, she adduced no medical evidence that she would suffer harm from the publication of her name and the evidence in the proceedings.
Having regard to the principles in Thistlethwaite, at [110], [113], we are not satisfied that the risk of any negative impacts upon Ms Wilkinson from disclosure of her name or the evidence in the proceedings are a sufficient reason to make any non-publication orders and an order that the hearing be in private.
[11]
Conclusion
For these reasons, we dismissed the miscellaneous matters application.
[12]
The proof of facts
In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52].
In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), Dixon J commented at 362:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..."
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171 (Neat Holdings), the majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) said:
"[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (citations omitted)
Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact.
In approaching the issue in these proceedings we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126]-[127] (Leeming JA, with Basten JA at [1] and Gleeson JA at [37] agreeing); Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [85]-[87] (Payne JA, with Leeming JA at [1] and Simpson AJA at [118] agreeing).
The second aspect of the rule in Browne v Dunn is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (Ghosh) at [69]-[70], [137].
[13]
Issue 1: whether Ms Wilkinson engaged in the conduct alleged in the Particulars of Complaint One
[14]
Introduction
In her reply in the 28 September 2023 Wilkinson statement Ms Wilkinson contends that she was not in breach of a condition of her registration as a nurse and midwife when she failed to attend a health assessment arranged by the NMC on 6 April 2022 and 21 July 2022 by reason the operation of s 14 of the HCC Act.
[15]
Consideration
Part 2 Division 2 (ss10-15) of the HCC Act contains provisions dealing with the liaising of the HCCC with registration authorities and professional councils. Section 14 deals with the suspension of action by a professional council, and provides:
14 Suspension of action by professional council
(1) A professional council must not take any action under the Health Practitioner Regulation National Law (NSW) concerning a complaint while it is subject to investigation by the Commission or is being dealt with under Division 8 or 9.
(2) This section does not limit any power of a professional council under the Health Practitioner Regulation National Law (NSW) to do anything to protect the life or the physical or mental health of any person.
In the 24 January 2022 NMC decision, the panel of delegates from the NMC relevantly expressed the following conclusion:
"Having regard to our assessment of the information and evidence relevant to the above issues we conclude that Ms Wilkinson continues to pose a risk to public health or safety or the public interest which requires us to take action, because of the following reasons:
1. The practitioner has not engaged in Council processes - practitioner has not agreed to IRP recommendations and nor is she engaged with any treating practitioner/s.
2. The practitioner denies any mental impairment. There is no evidence that the practitioner has insight into her health issues.
3. There is no current information about the practitioner's mental health.
4. There is evidence from the Council Directed Health Assessor (CDHA) in April 2021, that the practitioner is impaired and carrying an undiagnosed and untreated escalating mental health disorder.
5. There is no up-to-date information about the practitioner's mental health 6. The practitioner hasn't engaged in treatment so there is no evidence to support lifting the current conditions
7. The practitioner continues employment in counselling and providing psychological support to patients/clients, using her mental health nursing qualifications and experiences, in breach of the Council's order, 7 October 2021.
We have concerns for the practitioner's vulnerable patients/clients and the advice she is providing them. Practitioner is engaging with and counselling patients/clients with mental health/wellbeing concerns and as a team leader, providing support and supervision to team members, who are dealing with patients/clients with mental health/wellbeing concerns.
…
We also hold ongoing concerns about the practitioner's standard of practice which are not at the level expected by a mental health nurse with 34 years' experience. Ms Wilkinson's practice concerns (as a provisional psychologist) raised by her clinical supervisor (25 January 2021) relate to professional boundaries, confidentiality, multidisciplinary team-work, and professional ethics and communication, and legal practice. These issues would also be concerns for a highly experienced mental health nurse.
…"
In the HCCC written submissions, the HCCC submitted that Ms Wilkinson breached the condition of her registration as a nurse and midwife by her failure to attend a health assessment arranged by the NMC on 6 April 2022 and 21 July 2022. The HCCC referred to the 14 June 2022 at 8.33 am Wilkinson email, the 14 June 2022 at 1.26 pm NMC email and the 21 June 2022 at 12.42 pm Wilkinson email.
Ms Wilkinson did not provide any evidence of the legal advice referred to in the 16 March 2022 Wilkinson email. Further, Ms Wilkinson did not make any submissions as to why s 14 of the HCC Act on its proper construction in the circumstances of the conclusion of the 24 January 2022 NMC decision prohibited the NMC from imposing the condition to attend a health assessment on 6 April 2022 and 21 July 2022.
We are satisfied that Ms Wilkinson breached the condition of her registration as a nurse and midwife when she failed to attend a health assessment arranged by the NMC on 6 April 2022 and 21 July 2022 for the following reasons:
1. in view of the conclusions in the 24 January 2022 NMC decision, the NMC was not prohibited by s 14 of the HCC Act from imposing the condition to attend a health assessment on 6 April 2022 and 21 July 2022. The condition that Ms Wilkinson attend a health assessment was in the circumstances of the conclusion of the 24 January 2022 NMC decision an action of the NMC encompassed by the power in s 14(2) of the HCC Act to protect the life or the physical or mental health of any person;
2. Ms Wilkinson had no reasonable excuse for failing to attend these scheduled health assessments. She received an explicit warning in the 14 June 2022 at 1.26 pm NMC email that she had no reasonable excuse for a failure to attend the health assessment scheduled for 21 July 2022 and any such failure may be considered to constituted unsatisfactory professional conduct. However, in response she maintained her position in the 21 June 2022 at 12.42 pm Wilkinson email.
[16]
Issue 2: whether Ms Wilkinson is guilty of unsatisfactory professional conduct
Part 8 Division 1 (ss 138-139I) contains provisions dealing with preliminary matters in relation to health, performance and conduct. Section 139B contains a definition of unsatisfactory professional conduct of a registered health practitioner, and relevantly provides:
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following -
…
(c) Contravention of conditions of registration or undertaking
A contravention by the practitioner (whether by act or omission) of -
(i) a condition to which the practitioner's registration is subject; or
…
In the HCCC written submissions, the HCCC submitted that the breach by Ms Wilkinson of the condition of her registration as a nurse and midwife by her failure to attend a health assessment arranged by the NMC on 6 April 2022 and 21 July 2022 constituted unsatisfactory professional conduct.
Ms Wilkinson did not make any submissions as to why her failure to attend a health assessment arranged by the NMC on 6 April 2022 and 21 July 2022 if found to be a breach of the condition of her registration as a nurse and midwife by her did not constitute unsatisfactory professional conduct.
We are satisfied that the breach by Ms Wilkinson of the condition of her registration as a nurse and midwife when she failed to attend a health assessment arranged by the NMC on 6 April 2022 and 21 July 2022 constituted unsatisfactory professional conduct within s 139B(1)(c) of the National Law.
[17]
Introduction
The HCCC relies on the following reports to establish that Ms Wilkinson has an impairment:
1. the report of Dr Samuels dated 6 June 2023 (the 6 June 2023 Samuels report);
2. the 13 October 2023 Samuels report.
In her reply in the 28 September 2023 Wilkinson statement Ms Wilkinson denies that she has an impairment and refers to a number of documents including the 26 September 2023 Frukacz report, and certain events.
Before considering this issue, it is convenient to summarise the evidence and submissions of the parties, to set out the applicable provisions of the National Law and the applicable legal principles.
[18]
The 6 June 2023 Samuels report
In the 6 June 2023 Samuels report, Dr Samuels relevantly expressed the following opinions:
"Q1. What is the current mental health status of Ms Wilkinson?
Noting - Section 5 of the National Law defines impairment as "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, for a registered health practitioner, the person's capacity to practise the profession."
Today, 6 June 2023, Ms Wilkinson appears to be much more settled in regard to her mental state. Her affect was reactive, her mood appeared to be euthymic, there were no neurovegetative symptoms of depression or anxiety evident. She was not thought disordered. She denied any perceptual disturbances. I thought there were still some over-valued ideas in relation to stalking and surveillance from her ex-husband, her sister and the Ombudsman. She was not expressing any overt delusional ideation. She says that she is engaged with a psychologist for ten sessions and been cleared. She said that psychologist said she had an adjustment disorder in relation to events in her workplace. She has seen a psychiatrist, Dr Frukacz, and said he has not made any comments about her mental health but will be seeing her again before the hearing. She has not been prescribed any psychotropic medication.
Q2. Does Ms Wilkinson currently suffer from an impairment within the meaning of the Health Practitioner Regulation National Law ("National Law")?
I do think Ms Wilkinson suffers from an impairment within the meaning of the National Law. In my opinion she does suffer from a paranoid disorder. She appears to have underlying paranoid personality traits. At times it is clear that her symptoms become more severe and appear to be associated with mood and anxiety symptoms, problems with thinking, perceptual disturbances and frank delusional ideation. It is likely that under stress these symptoms become more prominent. There does seem to be some family history of mental illness [details omitted] and it is quite likely that Ms Wilkinson has some vulnerability to psychosis. At the present time she is not manifesting frank symptoms of a psychotic illness. There appear to be some residual overvalued ideas but overall she presents quite well at interview today.
Q3. If Ms Wilkinson does currently suffer from an impairment, is that impairment likely to detrimentally affect her capacity to practice as a medical practitioner?
Noting - Section 139 of the National Law states that "a person is competent to practise a health profession only if the person has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and has sufficient communication skills for the practice of the profession, including an adequate command of the English language."
It does seem that Ms Wilkinson has had problems with employers that go back many years. She had problems at Nepean Blue Mountains Health District, she has had a series of problems in the Far Western Local Health District, she was also terminated from her position at Beyond Blue which she says was because of industrial activity. There certainly is evidence that problems with thinking and persecutory delusional ideation impact upon her professional practice. She seems to get into a pattern of raising concerns about various issues at high levels within the Health Service in which she operates and her behaviours lead managers and colleagues to have concerns about her mental wellbeing. She has a tendency to be litigious. She has limited insight into her mental illness and has had a very difficult relationship with health regulatory authorities, has not always been compliant with orders made, has constantly breached conditions and has failed to turn up for scheduled assessments. It seems clear that her mental condition, which fluctuates, has the potential to detrimentally affect her capacity to practice as a health practitioner.
…
Q6. What is Ms Wilkinson 's diagnosis?
Her diagnosis is not entirely clear. She does appear to have underlying paranoid personality traits with a vulnerability to developing more severe mental illness. It seems at times she does develop frank psychotic symptoms which could be part of a mood disorder with psychotic features or an emergent schizophreniform-type illness. The periods where her mental state deteriorates seem to settle even in the absence of assertive treatment.
…"
[19]
The 13 October 2023 Samuels report
In the 13 October 2023 Samuels report, Dr Samuels reviewed the 28 September 2023 Wilkinson statement and relevantly expressed the following opinions:
"…
Q5. What if any impact the enclosed material has on your diagnosis of Ms Wilkinson.
These documents only serve to reinforce the opinions expressed in my report of 6 June 2023. I have no doubt that Ms Wilkinson has an impairment within the meaning of the National Law and that she does suffer from a paranoid disorder with features suggestive of a paranoid personality disorder. There is also a possibility of an emerging Schizophreniform type illness. It seems clear that at times there are periods when psychotic symptoms are more prominent and more likely to impact on her behaviour and functioning.
…"
[20]
The oral evidence of Dr Samuels
Dr Samuels gave brief oral evidence at our request. He confirmed his opinions in the 6 June 2023 Samuels report and the 13 October 2023 Samuels report that Ms Wilkinson suffers from a paranoid disorder. He expressed the opinion that this disorder was likely to detrimentally affect her capacity to practise the profession of nursing both in terms of her interactions with employers and patient care.
[21]
The 28 September 2023 Wilkinson statement
In the 28 September 2023 Wilkinson statement, Ms Wilkinson has described events relating to her employment over many years and made submissions as to the law and the conduct of various persons and institutions. For the reasons explained below, it is unnecessary to summarise this extensive material.
[22]
The 26 September 2023 Frukacz report
In the 26 September 2023 Frukacz report which was prepared for Ms Wilkinson's workers compensation insurer, Dr Frukacz relevantly expressed the following opinions:
"…
Thus, Ms Wilkinson presents with a complex psychiatric picture. The injury for which conciliation is being sought occurred on 18 May 2022 which led to anxiety, which has previously been diagnosed as an adjustment disorder. There is a past history of adjustment disorder. In view of the fact that her symptoms of anxiety occurred after this incident where she received an adverse action email from her manager, and that her symptoms have resolved since ceasing work there, then this would suggest that it was that incident that led to the development of her adjustment disorder. The adjustment disorder has now resolved.
Dr Samuels and Dr Newham both reported a history of complaints about workplaces. Dr Newham reported that Ms Wilkinson had auditory hallucinations and delusions which she felt indicated that Ms Wilkinson had a psychotic disorder, whilst Dr Samuels opined that she may have a personality vulnerability that would lead to her experiencing difficulties in the workplace. I did not find any evidence of psychosis during my two interviews although she did report hearing noises that she described as a mosquito repellent device and that her sister was following her to different towns. It may be that under stress she can experience a brief psychotic episode, but this would not be contributing to her adjustment disorder arising from receiving the adverse action email.
…"
[23]
The submissions of the HCCC
In the HCCC written submissions, the HCCC submitted that the Tribunal should accept the unchallenged evidence of Dr Samuels and find that Ms Wilkinson has an impairment within s 5 of the National Law.
[24]
The submissions of Ms Wilkinson
In the 28 September 2023 Wilkinson statement, Ms Wilkinson has referred to the 6 June 2023 Samuels report (at [18], [26], [33]). She states that she would like to review the 11 independent medical examinations and states that they are an abuse of process and disability discrimination. She then twice refers to Q6 and the answer.
[25]
The applicable provisions of the National Law
Part 1 (ss 1-10) contains provisions dealing with preliminary matters. Section 5 contains definitions, and since the enactment of the National Law has relevantly provided:
5 Definitions
In this Law -
…
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
Part 8 Division 3 Subdivision 1 (ss 144-144G) contains provisions dealing with making complaints. Section 144 deals with the grounds for a complaint about a registered health practitioner, and relevantly provides:
144 Grounds for complaint about registered health practitioner [NSW]
The following complaints may be made about a registered health practitioner -
…
(d) Impairment
A complaint the practitioner has an impairment.
[26]
The applicable legal principles
In Grant v HCCC [2003] NSWCA 73 (Grant) at [12] (Meagher JA with Beazley JA at [20] and Santow JA at [21] agreeing) rejected the submission that the predecessor of the Tribunal did not find with sufficient particularity what precise kind of mental disturbance they alleged the practitioner suffered from because they did not then say what sort of mental illness they relied on to constitute impairment, and held:
"[12] In my view they do not have to. 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."
In Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim) at [64] (Meagher JA with McColl JA at [1] and Ward JA at [91] agreeing) held that 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-5 and cited Grant at [12].
In Health Care Complaints Commission v Dr Leonard Philipiah [2012] NSWMT 14 (Philipiah) at [49] the predecessor of the Tribunal held that a finding of professional misconduct is not necessarily incompatible with a concurrent finding of impairment where both are made out and there is no question of wilfulness of conduct is raised by either category. We accept that in the circumstances of the Amended Compliant that there is no impediment to the Tribunal making a finding of impairment.
[27]
Consideration
In the light of Grant at [12] and Qasim at [64], we accept that an impairment within the meaning of s 5 of the National Law can exist where there is no diagnosis of a particular physical or mental impairment, disability, condition or disorder where the practitioner is suffering from something that detrimentally affects or is likely to detrimentally affect the person's capacity to practise the profession.
We are satisfied that Ms Wilkinson has an impairment within s 5 of the National Law for the following reasons:
1. the question of impairment is to be determined by the medical evidence. It is for this reason that much of the material in the 28 September 2023 Wilkinson statement to the extent that it is evidence rather than a submission is not relevant to this issue;
2. we accept the unchallenged the written and oral evidence of Dr Samuels is consistent that Ms Wilkinson is suffering from a paranoid disorder that is likely to detrimentally affect her capacity to practise the profession of nursing;
3. Ms Wilkinson adduced no current medical evidence in which a contrary opinion is expressed. The opinion of Dr Frukacz in the 26 September 2023 Frukacz report is consistent with the evidence of Dr Samuels;
4. the 11 independent medical examinations referred to by Ms Wilkinson in the 28 September 2023 Wilkinson statement are no relied upon by Dr Samuels in forming his opinion;
5. if the reason for the reference by Ms Wilkinson to Q6 and the answer the 6 June 2023 Samuels report is that Dr Samuels is unable to make a clear diagnosis of her condition, then as recognised by the New South Wales Court of Appeal in Grant at [12] it is not necessary for there to be an identified illness before a person can have an impairment;
6. as explained in Philipiah at [49], there is no incompatibility between this finding and our finding that that Ms Wilkinson is guilty of unsatisfactory professional conduct within s 139B(1)(c) of the National Law.
[28]
Orders
We make the following orders:
1. leave is granted to the applicant to file an Amended Complaint and service of the Amended Complaint on the respondent is dispensed with;
2. the proceedings are adjourned for a directions hearing on a date fixed by the Registrar to set a timetable and fix a hearing date for the stage 2 hearing to determine what if any protective orders should be made against the respondent.
[29]
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: 31 October 2023