Health Care Complaints Commission v Wilkinson

NCAT Occupational|2024-03-13|Before: Blake AM

Introduction

These reasons for decision should be read with, and use the same abbreviations as in, our decision in the stage 1 hearing of these proceedings: Health Care Complaints Commission v Wilkinson [2023] NSWCATOD 156 (the stage 1 decision).

Overview

On 31 October 2023, we made the stage 1 decision which included the following findings: 1. that Ms Wilkinson is guilty of unsatisfactory professional conduct within s 139B(1)(c) of the National Law by breaching 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; 2. that Ms Wilkinson has an impairment within s 5 of the National Law.
We have decided in the stage 2 hearing of these proceedings to impose conditions on Ms Wilkinson's registration, and to order her to pay the HCCC's costs as agreed or assessed in accordance with the applicable costs legislation.

The issues

The following issues arise for determination: 1. issue 4: whether, and if so in what manner, the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law; 2. issue 5: the costs of the proceedings.
Before considering these issues, it is appropriate: 1. to set out the applicable provisions of the National Law; 2. to explain the applicable legal principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law, the exercise of the power of the Tribunal under s 149A of the National Law to impose conditions on the practitioner's registration and the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law; 3. to summarise the evidence and the submissions of the parties.

The applicable provisions of the National Law

Part 1 (ss 1-10) contains provisions dealing with preliminary matters. Section 3 specifies the objectives and guiding principles of the National Law, and relevantly provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and … (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and …
Section 3A specifies the particular objective and guiding principle of the National Law in New South Wales, and provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
Section 4 specifies how functions under the National Law are to be exercised, and provides: 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A.
Part 7 Division 11 Subdivision 2 (ss 125-127AA) contains provisions relevantly dealing with the review of conditions imposed on a practitioner's registration.
Part 8 Division 3 Subdivision 6 (ss 149-149E) contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies the circumstances in which these disciplinary powers may be exercised, and relevantly provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner … if - (a) it finds the subject-matter of a complaint against the practitioner … to have been proved; or …
Section 149A specifies the general disciplinary powers of the Tribunal, and relevantly provides: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - … (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); … (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. … (4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled. (5) The order or condition concerned is then a critical compliance order or condition.
Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner … concerned, or … to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.

The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law

In Lee v Health Care Complaints Commission [2012] NSWCA 80 (Lee) at [19]-[21], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
In Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) at [35], Meagher JA (with Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: "[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
In Re Parajuli [2010] NSWMT 3 (Parajuli) the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection": "(a) any need to protect the public against further misconduct by the practitioner; (b) the need to protect the public through general deterrence (of other practitioners); (c) the need to protect the public by reinforcing high professional standard and denouncing transgressions; (d) the maintenance of public confidence in the profession; (e) the desirability of making available to the public any special skills possessed by the practitioner."
The five matters in Parajuli have been approved applying the National Law: see, for example, Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 at [24]; Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 at [43]; Health Care Complaints Commission v Chahoud [2022] NSWCATOD 36 at [195].
In Health Care Complaints Commission v Buys (No 3) [2020] NSWCATOD 102 (Buys (No 3)) at [17], the Tribunal relevantly made the following observations as to reputational damage to a practitioner by reasons of protective action taken under the National Law: "[17] The respondent also emphasised that he had been punished by the publicity which had surrounded the finding of professional misconduct which had been made against him, the impact that this had had on his family and his practice, and the damage sustained to his reputation in the local area where he had been practising. Whilst these are unfortunate consequences for the respondent and his family, it must be emphasised that his circumstances are caused solely by the fact that he engaged in a course of misconduct of a serious kind, justifying a finding that it constituted professional misconduct. To this extent his authorship of his own misfortune is irrelevant in determining what protective orders should be made."
No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88].

The exercise of the power of the Tribunal under s 149A of the National Law to impose conditions on the practitioner's registration

In Prakash v Health Care Complaints Commission [2006] NSWCA 153 (Prakash) at [74], Santow JA (with Tobias JA at [79] agreeing) relevantly said: "[74] When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed …"
In Health Care Complaints Commission v Daly [2015] NSWCATOD 113 (Daly) at [137], the Tribunal relevantly made the following observations as to a critical compliance condition: "[137] … A critical compliance condition, because of its serious consequences if contravened may be described as draconian. The imposition of critical compliance condition requires careful consideration. …"
In Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103 at [172], the Tribunal relevantly made the following observations as to a critical compliance condition: "[172] As observed by the Tribunal in Dental Council of NSW v Stewart [2018] NSWCATOD 135 at [61], the imposition of a critical compliance condition is by its nature a very serious condition. If contravened the Council must suspend the practitioner and refer the matter to the Tribunal: National Law, s 150(3). If the Tribunal is satisfied that the condition has been contravened it must cancel the practitioner's registration: National Law, s 149C(3). There is no discretion and the circumstances surrounding the breach, no matter how compelling, cannot lead to a different outcome. The only discretion which exists relates to the length of time in which the cancelled practitioner may not apply for reinstatement. It is the mandatory nature of these provisions which makes any contravention so far-reaching and grave. ..."

The exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law

In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]-[46], Emmett JA (with Meagher JA at [1] and Beech-Jones J at [50] agreeing) set out the principles relevant to the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law: "[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied. [43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). [44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. [45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. [46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. …"

The HCCC conditions

The HCCC conditions are in the following terms: "Approval Conditions 1. To obtain Nursing and Midwifery Council of NSW approval prior to: a. changing the nature or place of practice while with any given employer; and b. changing her employer. 2. Condition 1(b) (but not condition 1(a)) is a critical compliance condition imposed under sections 149A(4) and (5) of the Health Practitioner Regulation National Law (NSW). Treatment Conditions 3. The practitioner attend for treatment by a registered psychologist, and a registered psychiatrist, of their choice. 4. With respect to the treatment ordered under Condition 3 the practitioner: a. must provide both her treating psychologist and treating psychiatrist with a copy of (Dr) Anthony Samuels reports of 6 July 2023 and 13 October 2023 ("the Reports"), by no later than her initial appointment with that practitioner if she is not, as at the time of the making of these conditions, in a treating relationship with that practitioner, and otherwise no later than 28 days after the making of these conditions; b. must attend on an average of once a month for a minimum of 12 months on her treating psychologist, with the frequency and duration of treatment thereafter to be determined by the treating practitioner; c. must notify the Nursing and Midwifery Council (of NSW) if she goes more than six weeks between any two appointments with her treating psychologist for the first 12 months of her treatment, within 8 weeks of the last appointment; d. must attend on an average of once a quarter for a minimum of 12 months on her treating psychiatrist, with the frequency and duration of treatment thereafter to be determined by the treating practitioner; e. must notify the Nursing and Midwifery Council (of NSW) if she goes more than 14 weeks between any two appointments with her treating psychiatrist for the first 12 months of her treatment, within 16 weeks of her last appointment; f. must seek treatment for the practitioner's underlying personality vulnerabilities as identified in the Reports; g. must authorize her treating practitioners to provide progress reports to the Nursing and Midwifery Council of NSW every 6 months, by no later than her initial appointment with that practitioner if she is not, as at the time of the making of these conditions, in a treating relationship with that practitioner, and otherwise no later than 28 days after the making of these conditions; h. must authorize her treating practitioners to inform the Nursing and Midwifery Council of NSW, by no later than her initial appointment with that practitioner if she is not, as at the time of the making of these conditions, in a treating relationship with that practitioner, and otherwise no later than 28 days after the making of these conditions, of any of the following: (i) failure to attend for treatment; (ii) termination of treatment; or (iii) a significant change in health status (including a significant temporary change). i. must provide the Nursing and Midwifery Council of NSW with the professional details of her treating practitioners by no later than her initial appointment with that practitioner if she is not, as at the time of the making of these conditions, in a treating relationship with that practitioner, and otherwise no later than 28 days after the making of these conditions; j. must authorise the Nursing and Midwifery Council of NSW to forward a copy of this decision and any other decision or report as determined by the Council to her treating practitioners, by no later than her initial appointment with that practitioner if she is not, as at the time of the making of these conditions, in a treating relationship with that practitioner, and otherwise no later than 28 days after the making of these conditions; and k. must notify the Nursing and Midwifery Council of NSW of her attendance on her treating practitioners within 14 days of each attendance. 5. Conditions 3 and 4(a), (c), (e), (f), (g), (h), (i), and (j) (but not conditions 4(b), (d) and (k)) are critical compliance conditions imposed under sections 149A(4) and (5) of the Health Practitioner Regulation National Law (NSW). Mentoring Conditions 6. The practitioner must engage in a mentoring relationship. 7. The mentoring relationship must occur when the practitioner is practising as a nurse. 8. The mentoring relationship is taken to commence from the date the mentor is approved by the Nursing and Midwifery Council of (NSW). 9. The mentor must be: a. a registered nurse who meets the criteria specified in the Nursing and Midwifery Council of (NSW) Mentor Guidelines; and b. approved by the Nursing and Midwifery Council of NSW. 10. The practitioner must: a. provide the Nursing and Midwifery Council of NSW with the name, contact details, and resume of the registered nurse who has agreed to act as mentor and act as specified in the conditions, for approval no later than 21 days from the practitioner recommencing practice as a nurse; b. provide to the Nursing and Midwifery Council of NSW a copy of the conditions signed by the practitioner and by the mentor; c. within 4 weeks of the mentor being approved, submit a mentoring plan that is developed in consultation with the mentor which meets the standards required by the Nursing and Midwifery Council of NSW; d. ensure the mentoring plan includes focus on any disciplinary or workplace issues that arise within the workplace, including any complaints or concerns that the practitioner has with respect to her colleagues or the services provided by her employer(s); e. authorise the mentor to report, in an approved format, to the Nursing and Midwifery Council of NSW every three months, and to inform the Council if: i. the mentor holds any concern about the practitioner's professional conduct, health or personal wellbeing; ii. the practitioner fails to attend for mentoring; or iii. the mentoring has been suspended or terminated by either the mentor or the practitioner f. at each mentoring meeting, discuss any disciplinary or workplace issues that have arisen within the practitioner's workplace, including any complaints or concerns that the practitioner has with respect to her colleagues or the services provided by her employer(s); g. be mentored for a minimum period of 12 months from the commencement of the mentoring as identified in Condition 8, and for such longer period as is subsequently determined by the Nursing and Midwifery Council of NSW; and h. authorise the Nursing and Midwifery Council of NSW to forward a copy of this decision and any other decision or report as determined by the Council to the mentor. Review Conditions 11. The Nursing and Midwifery Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 12. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia." (bold text in original)

The ACNC information

The ACNC information records charity details, summary of activities, charity programs and where the charity operates for Far West UC Ltd, which is referred to the Wilkinson stage 2 submissions.

The Wilkinson stage 2 documents

The Wilkinson stage 2 documents comprised the following documents: 1. the Wilkinson stage 2 submissions which include many unsubstantiated assertions about events occurring before and after the stage 1 decision; 2. the completed Certificate of Capacity form of State Insurance Regulatory Authority dated 14 February 2024 which records the certification by a medical practitioner that Ms Wilkinson has no current capacity for any work from 31 January 2024 to 13 March 2024; 3. the letter of HWL Ebsworth Lawyers dated 17 April 2023 to Ms Wilkinson and the enclosed default notices dated 17 April 2023 of Commonwealth Bank of Australia (CBA) which demands the payment of the total of $27,657.25 to remedy a default under loans from the CBA secured by mortgages over a property at Katoomba (the Katoomba property) and a property at Broken Hill (the Broken Hill property); 4. tax invoice of Origin Energy dated 15 January 2024 addressed to Ms Wilkinson which records the amount of $3,015.42 due in respect of the supply of electricity to the Broken Hill property; 5. the document entitled "Second notice - overdue water account of Essential Water dated 8 February 2024 addressed to Ms Wilkinson which records the amount of $447.52 is overdue in respect of the supply of water; 6. the document entitled "3rd instalment reminder notice" of Broken Hill City Council dated 18 January 2024 addressed to Ms Wilkinson which records the amount of $2,744.23 due as at 29 February 2024 in respect of rates for the Broken Hill property; 7. the document entitled "3rd instalment notice" of Blue Mountains City Council dated 23 January 2024 addressed to Ms Wilkinson which records the amount of $2,855.51 due as at 28 February 2024 in respect of rates for the Katoomba property; 8. the letter of Australian Taxation Office dated 27 October 2023 to Ms Wilkinson which records its refuse to approve a compassionate release of superannuation to her; 9. the documents of Verto Ltd dated 1 March 2024 in respect of Ms Wilkinson including the completed registration form with Disability Employment Services and the Job Plan; 10. the letter of Centrelink dated 18 December 2023 to Ms Wilkinson advising of her appointment for a Job Capacity Assessment on 9 January 2024; 11. Job Capacity Assessment Report of Centrelink in respect of Ms Wilkinson submitted on 9 January 2024; 12. Enrolment Summary for 2024 of the University of Sydney in respect of Ms Wilkinson; 13. the letter of QBE dated 14 December 2023 to Ms Wilkinson confirming on review the denial of liability for her workers compensation claim; 14. the letter of icare dated 12 February 2024 to Ms Wilkinson introducing her case management specialist; 15. the letter of the Department of Education dated 23 February 2024 to Ms Wilkinson acknowledging her complaint about Country Universities centre Far West.

The Wilkinson treatment documents

The Wilkinson treatment documents relevantly comprised the following documents: 1. tax invoices of Dr Frukacz dated 26 September 2023, 7 February 2024 and 20 February 2024 addressed to icare workers insurance recording services provided to Ms Wilkinson on those dates; 2. the letter of Dr Terence Sheppard (Dr Sheppard), Psychologist, of Thrive Medical dated 12 March 2024 advising that he had seen Ms Wilkinson in February 2024 and on 12 March 2024; 3. two cards of Thrive Medical recording appointments for Ms Wilkinson with Dr Sheppard on 16 April 2024 and on 13 May 2024.

The Wilkinson pensioner card

The Wilkinson pensioner card records that the card has a start date of 1 November 2023 and expires on 31 December 2025.

The HCCC stage 2 submissions

In the HCCC stage 2 submissions, the HCCC made the following submissions: 1. it seeks the imposition of the approval conditions, the treatment conditions and the mentoring conditions pursuant to s 149A(1)(b), (c) and (f) of the National Law respectively as well as the review conditions in the HCCC conditions; 2. it does not seek the suspension or cancellation of Ms Wilkinson's registration or that she be reprimanded; 3. it sets out the legal framework, referring to ss 3 and 4 of the National Law, Lee at [20], the five matters in Parajuli, Buys (No 3) at [17] which it submits applies to the impact of protective action on finances as well as reputation, the limitation on protective action to what is reasonably necessary to achieve the protective purpose of the legislation, Prakash at [74], and Daly at [137]; 4. the background to 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 is sets out in the stage 1 decision at [64]; 5. with respect to the application for critical compliance conditions, Ms Wilkinson's prior failure to comply with conditions, without any proper explanation, raises concerns that the imposition of conditions simpliciter (and without a specific consequence for breach) will be insufficient to deal with the risk that arises if she continues to practice without adequate intervention for her mental health issues. That concern is heightened by the apparent episodic nature of her mental health issues, and its severity when she is affected, as opined by Dr Samuels in the 6 June 2023 Samuels report and the 13 October 2023 Samuels report set out in the stage 1 decision at [75]-[76]; 6. the pattern of allegations identified in the 6 June 2023 Samuels report and the 13 October 2023 Samuels report continue in Ms Wilkinson's stage 2 materials: 1. she contends that the findings made against her in the stage 1 decision were the result inter alia of incitement / stalking / intimidation by certain ex-colleagues; 2. she claims that she suffered from the onset of post traumatic stress disorder on 31 January 2024 by reason of an offensive comment made by a workplace colleague; 3. the Job Capacity Assessment dated 13 October 2023, apparently performed by Centrelink as part of an application by Ms Wilkinson for the Disability Support Pension, records that she suffered from a "severe functional impact on activities involving mental health function" and had very limited work capacity; 1. while the evidence of Ms Wilkinson makes reference to ongoing treatment, no reports have been produced and it remains unclear to what extent she does accept she has mental health issues, and if so, what kind and to what extent. In particular, she does not appear to have ever accepted that she does from time to time suffer from paranoid and psychotic symptoms. Without a clear demonstration of insight, real concerns arise as to whether she will adhere to treatment plans as and when she suffers a relapse in her mental health issues; 2. imposition of critical compliance conditions provide a circuit breaker, in both providing Ms Wilkinson with considerable incentive to comply, while also ensuring that she is not allowed to practice on an ongoing basis without adhering to treatment. The HCCC conditions are balanced in allowing Ms Wilkinson to retain her registration while providing for a level of certainty as to the protection of the public. The treatment conditions are specifically crafted so as to ensure that the missing of a single appointment (for instance by error, or due to unavailability) will not result in cancellation of her registration; 3. it seeks its costs for both stage 1 and stage 2 of the proceedings.

The submissions of Ms Wilkinson

In the Wilkinson stage 2 submissions, Ms Wilkinson made the following submissions: 1. she has referred to Health Care Complaints Commission v Flett [2016] NSWCATOD 138 (Flett) at [18]-[26] and a series of other decisions; 2. she relies on Howard v Nursing and Midwifery Council of New South Wales [2019] NSWCATOD 176 (Howard); 3. she refers to the evidence of current treatment by Dr Sheppard and attempts to find suitable employment; 4. as to the protection of the public, the HCCC conditions will be unable to serve their purpose, she is aware of the potential consequences to her registration if her mental health is not adequately monitored or addresses, she is in a vocational rehabilitation program, and she has current referral with Dr Frukacz and Dr Sheppard;
In each of the 8 March 2024 Wilkinson email, the 12 March 2024 Wilkinson email and the 13 March 2024 Wilkinson email Ms Wilkinson made the following submissions: 1. she relies on Howard and requests the HCCC to refer the matter to counselling and withdraw the proceedings as they are a waste of the State's judicial resources; 2. as to the HCCC's application for costs, she is in severe financial hardship and is unable to pay costs to the HCCC.
In the 13 March 2024 Wilkinson email, Ms Wilkinson made the submissions that Dr Sheppard does not believe that she poses a risk to the public, and that she cannot practice as a credentialed mental health nurse with conditions on her registration.

Issue 4: whether, and if so in what manner, the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law

Most of the evidence adduced by Ms Wilkinson is not relevant to this issue and has not been taken into account. We have ignored the many unsubstantiated assertions about events occurring before and after the stage 1 decision set out in the Wilkinson stage 2 submissions as they are not relevant to the determination of this issue.
The principles in Flett at [18]-[26] and other cases referred to by Ms Wilkinson are largely not relevant to this stage 2 hearing. To the extent that they deal with protective orders, there is no relevant difference to the principles set out in [20] to [25] above.
The HCCC indicated that they are not withdrawing the proceedings. We have no power to compel the HCCC to withdraw the proceedings.
We are not satisfied that the position in Howard is analogous to the circumstances in these proceedings.
In Howard, the Tribunal considered an appeal by the practitioner against a decision of the NMC made on 3 July 2019 imposing conditions for remote supervision and continued psychiatric treatment on her registration as a nurse. The practitioner was registered as a nurse in 1987. Over a number of years, she had dealt with mental health issues. These issues had included periods of treatment in and out of hospital. She was currently unemployed and had not worked as a nurse since February 2017. She received a government income support payment. Since 1997, she had had a number of interactions with the NMC and its predecessor, the Nurses and Midwives Board (the Board) arising from her health issues. The Board first imposed conditions on her registration on 28 May 2009. The practitioner provided a number of health reports and testimonials. The Tribunal was satisfied that the protection of the public is not compromised by the removal of the conditions on her registration. It found that the practitioner had been subject to conditions for long enough. There is no practical utility to the conditions. This is because she has not been able to secure employment. In essence the conditions have been unable to serve their purpose which was to provide some objective evidence as to her progress in a nursing role. The Tribunal found that the allegations against her which led to the s 150 proceedings had never been fully tested. She was not subject to a conduct hearing, and denied key aspects of the allegations. For these reasons the Tribunal set aside the impugned decision and ordered that all conditions on her registration be removed.
Unlike the practitioner in Howard, Ms Wilkinson has not provided any health reports and testimonials. Further, unlike the practitioner in Howard, the allegations against Ms Wilkinson have been fully tested, and we have found her guilty of unsatisfactory professional conduct and to have an impairment. It follows that we do not accept Ms Wilkinson's submission that no protective action should be taken against her.
We do not accept Ms Wilkinson's unsubstantiated submission that Dr Sheppard does not believe that she poses a risk to the public.
Having regard to ss 3 to 4A of the National Law and the principles set out at [20] to [28] above, we are satisfied that the approval conditions, the treatment conditions, the mentoring conditions, and the review conditions in the HCCC conditions are appropriate. If followed, they will enable Ms Wilkinson to practice as a nurse in the manner that will reduce the risk to the public arising from her impairment. In view of our finding in the stage 1 decision at [88], we are satisfied that it is appropriate to impose critical compliance conditions as set out in the HCCC conditions.

Issue 5: the costs of the proceedings

The evidence adduced by Ms Wilkinson as to her financial position does not establish that she is impecunious. Even if she had established that she is impecunious, we would not have considered that her impecuniosity was a relevant factor in the exercise of the discretion as to costs.
Having regard to the principles in Philipiah at [42]-[46], it is appropriate to order Ms Wilkinson to pay the HCCC's costs of the proceedings pursuant to Sch 5D, cl 13 of the National Law as agreed or assessed in accordance with the applicable costs legislation.

Orders

We make the following orders: 1. the conditions set out in Schedule A are imposed on the respondent's registration; 2. the respondent is to pay the applicant's costs of the proceedings as agreed or assessed in accordance with the applicable costs legislation. Schedule A Approval Conditions 1. To obtain Nursing and Midwifery Council of NSW approval prior to: a. changing the nature or place of practice while with any given employer; and b. changing her employer. 2. Condition 1(b) (but not condition 1(a)) is a critical compliance condition imposed under sections 149A(4) and (5) of the Health Practitioner Regulation National Law (NSW). Treatment Conditions 3. The practitioner attend for treatment by a registered psychologist, and a registered psychiatrist, of their choice. 4. With respect to the treatment ordered under Condition 3 the practitioner: a. must provide both her treating psychologist and treating psychiatrist with a copy of Dr Anthony Samuels reports of 6 July 2023 and 13 October 2023 ("the Reports"), by no later than her initial appointment with that practitioner if she is not, as at the time of the making of these conditions, in a treating relationship with that practitioner, and otherwise no later than 28 days after the making of these conditions; b. must attend on an average of once a month for a minimum of 12 months on her treating psychologist, with the frequency and duration of treatment thereafter to be determined by the treating practitioner; c. must notify the Nursing and Midwifery Council of NSW if she goes more than six weeks between any two appointments with her treating psychologist for the first 12 months of her treatment, within 8 weeks of the last appointment; d. must attend on an average of once a quarter for a minimum of 12 months on her treating psychiatrist, with the frequency and duration of treatment thereafter to be determined by the treating practitioner; e. must notify the Nursing and Midwifery Council of NSW if she goes more than 14 weeks between any two appointments with her treating psychiatrist for the first 12 months of her treatment, within 16 weeks of her last appointment; f. must seek treatment for the practitioner's underlying personality vulnerabilities as identified in the Reports; g. must authorize her treating practitioners to provide progress reports to the Nursing and Midwifery Council of NSW every 6 months, by no later than her initial appointment with that practitioner if she is not, as at the time of the making of these conditions, in a treating relationship with that practitioner, and otherwise no later than 28 days after the making of these conditions; h. must authorize her treating practitioners to inform the Nursing and Midwifery Council of NSW, by no later than her initial appointment with that practitioner if she is not, as at the time of the making of these conditions, in a treating relationship with that practitioner, and otherwise no later than 28 days after the making of these conditions, of any of the following: (i) failure to attend for treatment; (ii) termination of treatment; or (iii) a significant change in health status (including a significant temporary change). i. must provide the Nursing and Midwifery Council of NSW with the professional details of her treating practitioners by no later than her initial appointment with that practitioner if she is not, as at the time of the making of these conditions, in a treating relationship with that practitioner, and otherwise no later than 28 days after the making of these conditions; j. must authorise the Nursing and Midwifery Council of NSW to forward a copy of this decision and any other decision or report as determined by the Council to her treating practitioners, by no later than her initial appointment with that practitioner if she is not, as at the time of the making of these conditions, in a treating relationship with that practitioner, and otherwise no later than 28 days after the making of these conditions; and k. must notify the Nursing and Midwifery Council of NSW of her attendance on her treating practitioners within 14 days of each attendance. 5. Conditions 3 and 4(a), (c), (e), (f), (g), (h), (i), and (j) (but not conditions 4(b), (d) and (k)) are critical compliance conditions imposed under sections 149A(4) and (5) of the Health Practitioner Regulation National Law (NSW). Mentoring Conditions 6. The practitioner must engage in a mentoring relationship. 7. The mentoring relationship must occur when the practitioner is practising as a nurse. 8. The mentoring relationship is taken to commence from the date the mentor is approved by the Nursing and Midwifery Council of NSW. 9. The mentor must be: a. a registered nurse who meets the criteria specified in the Nursing and Midwifery Council of NSW Mentor Guidelines; and b. approved by the Nursing and Midwifery Council of NSW. 10. The practitioner must: a. provide the Nursing and Midwifery Council of NSW with the name, contact details, and resume of the registered nurse who has agreed to act as mentor and act as specified in the conditions, for approval no later than 21 days from the practitioner recommencing practice as a nurse; b. provide to the Nursing and Midwifery Council of NSW a copy of the conditions signed by the practitioner and by the mentor; c. within 4 weeks of the mentor being approved, submit a mentoring plan that is developed in consultation with the mentor which meets the standards required by the Nursing and Midwifery Council of NSW; d. ensure the mentoring plan includes focus on any disciplinary or workplace issues that arise within the workplace, including any complaints or concerns that the practitioner has with respect to her colleagues or the services provided by her employer(s); e. authorise the mentor to report, in an approved format, to the Nursing and Midwifery Council of NSW every three months, and to inform the Council if: i. the mentor holds any concern about the practitioner's professional conduct, health or personal wellbeing; ii. the practitioner fails to attend for mentoring; or iii. the mentoring has been suspended or terminated by either the mentor or the practitioner f. at each mentoring meeting, discuss any disciplinary or workplace issues that have arisen within the practitioner's workplace, including any complaints or concerns that the practitioner has with respect to her colleagues or the services provided by her employer(s); g. be mentored for a minimum period of 12 months from the commencement of the mentoring as identified in Condition 8, and for such longer period as is subsequently determined by the Nursing and Midwifery Council of NSW; and h. authorise the Nursing and Midwifery Council of NSW to forward a copy of this decision and any other decision or report as determined by the Council to the mentor. Review Conditions 11. The Nursing and Midwifery Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 12. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia.

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: 22 March 2024

Medical Practice Act 1992(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (19)