Health Care Complaints Commission v Ziyambi

Legislative regime

1. Part 8, Div 3, Subdiv 6 of the Health Practitioner Regulation National Law (NSW) ("the National Law") which is headed "Disciplinary Powers of Tribunals" sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and impose conditions on the practitioner's registration. Where, as in this case, the Tribunal is satisfied the practitioner is guilty of unsatisfactory professional conduct, the Tribunal may caution or reprimand the practitioner's registration.
2. In exercising its powers, the Tribunal must observe the objectives and guiding principles of the National Law, the paramount consideration being to ensure the protection of the health and safety of the public (s 3B, formerly s 3A).
3. The protective objectives under the National Law therefore encompass considerations of specific and general deterrence, as well as upholding public confidence in the standards of the profession, including by denouncing misconduct as unacceptable: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] and [39].
4. Justice Wright in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] summarised the principles underlying the purpose of the orders in Pt 8, Div 3, Subdiv 6: "(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]."
5. The protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]-[114].

Commission's submissions

1. The Commission seeks an order that Mrs Ziyambi be reprimanded and certain protective orders in the form of conditions be imposed on her registration: s 149(1)(a), (b) and (c) of the National Law. The conditions included that she practise nursing no more than 40 hours per week with no more than 12 hours in any 24 hour period, inclusive of any administrative work and with regular notifications to the Council in respect of employment.
2. The Commission says that a reprimand and further conditions on Mrs Ziyambi's registration is appropriate given: "17.1 The need to ensure public safety and health through the maintenance of proper standards, including the need to ensure that practitioners can deliver safe and appropriate patient care, including through positive steps to be taken to reduce the effect of fatigue and stress. 17.2 The need to ensure maintenance of standards, in circumstances where both the NSW Health Code of Conduct had been breached, and the Nursing and Midwifery Code of Conduct. 17.3 The need to deter the practitioner from engaging in conduct which places patient safety at risk. This is particularly necessary having regard to the fact that the practitioner had been employed at Genista for a period of approximately three years, while continuously working within the NSW Health system and also working full-time as a Nurse Unit Manager at Cumberland Hospital, and undertaking casual employment at Liverpool Hospital. In that period she also co-founded an NDIS provider company, [DECS]. That is to say, that she had actively undertaken numerous modes of employment without apparent regard to the need to reduce stress and fatigue, and thereby risked the provision of safe patient care over a number of years. 17.4 The need for general deterrence including the need to communicate to the profession the unacceptability of the behaviour. 17.5 The fact that the protective orders are the least restrictive means of ensuring that the Respondent continues to practice in a safe manner. The protective orders merely require the Respondent to practice no more than a number of hours to ensure that patient safety is not compromised, and further to communicate to the Council the details of any employment, including secondary employment."

Mrs Ziyambi's submissions

1. Mrs Ziyambi contends that a reprimand is not warranted and is excessive in the circumstances of this case and protective orders could instead include a further education course or, if necessary, a caution. In effect, she contends that the protective orders sought by the Commission are unnecessarily harsh in their effect and not necessary for the protection of the health and safety of the public.
2. Mrs Ziyambi relied on the character references previously submitted as well as the evidence she and her referees gave at the Stage 1 hearing.
3. In her evidence, Mrs Ziyambi expressed remorse for her conduct. She said she worked more than one job in order to earn money to support her family both in Australia and in Zimbabwe. Mrs Ziyambi said that for many years, including as far back as when she lived in Zimbabwe, she has not required much sleep. She said she did not feel fatigued while juggling the numerous roles however she has now gained insight into how that could have seriously compromised patient safety.
4. She expressed contrition and remorse for her conduct. While conditions have been imposed on her registration since March 2023 (including that she has not performed the role of NUM for which she would be paid a higher rate) she has also voluntarily engaged in further education including a Certificate of Secondary Employment, a Certificate of Fatigue, Minimising the Impact of Work and a Certificate of Safe Use of High Risk Medicines. There have been no breaches of the conditions on her registration since they were first imposed over 18 months ago.
5. The character referees (Ms Sundar, Mr Nkomo and Ms Kirk) spoke of the insight Mrs Ziyambi has gained as a result of these proceedings; her remorse and shame; and how the conditions on her registration have impacted on her - in particular her inability to work in the more senior role of NUM. They attested to Mrs Ziyambi's high level of care for her patients and we accepted their evidence.

Consideration

1. As noted in [4] of the Stage 1 reasons, Complaint 1 had 7 particulars. Mrs Ziyambi admitted two of the particulars that were ultimately found against her. She admitted this conduct well before the proceedings commenced and was disciplined by her employers in respect of that conduct.
2. In respect of particular 5, Mrs Ziyambi used Genista resources to undertake personal and business activities. She acknowledged and admitted this on 8 December 2021 in an interview with her employers. She was issued with a written warning (see [41]-[42] of Stage 1 Reasons) and the employer was confident Mrs Ziyambi would learn from the experience. This proved to be correct as the conduct did not occur again. Mrs Ziyambi admitted this particular in these proceedings but did not admit that the conduct constituted unsatisfactory professional conduct. We agreed that it did not constitute unsatisfactory professional conduct for the reasons set out in [195]-[196] of the Stage 1 Reasons.
3. In respect of particular 6, failing to disclose secondary employment, Mrs Ziyambi also acknowledged and admitted this to her employer. She was reprimanded by the Western Sydney Local Health District. In this proceeding, she admitted this conduct (such that it was never in dispute). We determined that this constituted unsatisfactory professional conduct for the reasons set out at [200] of the Stage 1 Reasons.
4. Mrs Ziyambi's response in the proceedings to particular 7 was different in that she denied she was affected by fatigue and stress such that she should have acted to reduce either of those (see Stage 1 Reasons at [201]-[208]). That denial was in some respects not unreasonable because of the way the Commission pleaded this particular - that the fatigue manifested itself in her sleeping whilst on shift at Genista, a matter not ultimately proven. However, the aspect of it that concerned us was her inability to understand that nursing full-time during the day as well as two or three night shifts meant she was working with little to no sleep on occasions and which is the opposite of taking steps to reduce fatigue and stress. While we accept she may not have felt fatigued, undertaking back-to-back shifts is concerning conduct.
5. Mrs Ziyambi has been subject to conditions imposed by the Council on her registration from March 2023. She has complied with those conditions which included that she not perform in the role as a NUM and not work more than one job. There have been no breaches of these conditions. In addition, although not required under the conditions to do so, she has attended for further education including in respect of the impact of fatigue on work.
6. We also note there have been no other complaints about Mrs Ziyambi in the more than 20 years that she has been a nurse.
7. We have given careful consideration to the matters raised by the Commission and whether these concerns could be met by a less restrictive order.
8. We consider these proceedings as well as the conditions on her registration which have prevented her from undertaking the amount of work she was previously doing, have given her the necessary insight for us to be satisfied that she will not engage in back-to-back shifts again and will take more care to ensure that she gets sufficient rest and maintain her health.
9. We find that the imposition of the conditions on her registration up until now, as well as the emotional stress, time and cost of defending these proceedings has had a deterrent effect on her as demonstrated by her lengthy period of compliance since March 2023. Further, there is no evidence before us that the provision of nursing services by Mrs Ziyambi has actually been compromised by working more than one job or as a result of fatigue.
10. In all the circumstances, we do not consider Mrs Ziyambi poses an unacceptable risk to the health and safety of her patients. We do not consider it necessary for conditions to be imposed on her registration.
11. As we noted in the Stage 1 Reasons, we were concerned about Mrs Ziyambi working a day shift in the hospital directly after working night shift in the nursing home and that this was not in compliance with the Code in respect of taking steps to minimise fatigue. We find that over Mrs Ziyambi has now gained insight into the importance of taking steps to reduce fatigue and stress at work including by not working back-to-back shifts.
12. We also find that Mrs Ziyambi has demonstrated insight into the gravity of failing to disclose secondary employment and that this insight was gained by being reprimanded previously by her employer. Similarly, she has also learned, by being disciplined by Genista, that she is not to undertake personal or other business activities while at work.
13. We have therefore concluded, in the exercise of our discretion, that in considering the protective nature of our jurisdiction it is not necessary to reprimand Mrs Ziyambi but instead caution her. We also do not consider it necessary to impose further conditions on her registration in circumstances where she has already had conditions imposed for over 18 months; she has complied with those conditions and she has demonstrated insight. Further, as noted above, we do not consider she poses a risk to the safety of the public.
14. To reprimand Mrs Ziyambi and impose further conditions would in our view be excessive. The paramount protective nature of our jurisdiction should not lead us to independently punish her for prior behaviour for which she has already been reprimanded. A further reprimand and conditions preventing her working more than 40 hours per week would in our view be a disproportionate exercise of our jurisdiction. We note a nurse is not infrequently asked to work extra time at the end of a shift and to impose this kind of condition is both impractical and unnecessary in the circumstances of this case. Nor do we consider there is an appropriate basis to prevent Mrs Ziyambi working in her own business.
15. Instead, in the exercise of our discretion and having regard to the paramount consideration being the protection of the public, we have decided to caution Mrs Ziyambi without any further conditions on her registration. The community at large expects nursing practitioners will adhere to the standards expected of them, and the other nurses need to know that non-compliance with the Code is a serious matter. We also consider that the public interest is better served by cautioning Mrs Ziyambi rather than reprimanding her, with or without conditions.
16. We also consider that cautioning Mrs Ziyambi in circumstances where she has also had to bear the costs of defending these proceedings is a suitable specific and general deterrent and will help to maintain the public confidence in the profession.

Costs

1. Both the Commission and Mrs Ziyambi seek an order as to costs. The Commission seeks reasonable costs being 30% of its costs as agreed or as assessed; Mrs Ziyambi disputes that the Commission is entitled and submits she is also entitled to costs, which should be apportioned.
2. In exercising the power to award costs under the National Law, cl 13 of Sch 5D the general rule is that costs follow the event unless there has been disentitling conduct on the part of the successful party: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] ("Philipiah"); Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51].
3. As submitted by the Commission, it is for the losing party to establish a basis for departure from the usual rule as to costs: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10].
4. As noted by the Court of Appeal in Philipiah at [42]-[44]: "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 it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing… 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… 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."
5. The basis upon which the Commission contends that it should have a costs order in its favour as to 30% is that while Complaints 2 and 3 were not established, part of Complaint 1 was established.
6. The Commission relies on Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 ("Lucire") where the Court of Appeal considered the question of whether a practitioner was required to pay all of the Commission's costs where not all particulars pleaded were established. The Court stated at [49]-[50]: "49. [F]irst, the Commission was successful in obtaining findings against the practitioner in respect of unsatisfactory professional conduct, but not professional misconduct. It is not correct to apportion costs equally between the dismissal of the complaint with respect of professional misconduct and the upholding of the other complaint. The factual basis for each complaint was the same: the property characterisation of the legal consequences of the findings of fact was a discrete issue, involving a relatively small proportion of time at the hearing and submissions and on which the Commission was partly successful and partly unsuccessful. Any reduction in costs on account of the part on which it was unsuccessful would be relatively minor, 50. Secondly, the Commission failed to establish each of the particulars pleaded. This aspect is not to be assessed by a numerical calculation of the number of paragraphs of the particulars which were upheld and the number which were rejected. Nor would failure to establish some particulars necessarily result in any diminution in the costs payable to the Commission. However, where it can be said that discrete elements of the conduct complained of were not established, it may be appropriate to reduce the costs recovered by the Commission."
7. The Commission also relied upon Health Care Complaints Commission v Gaberman (No 2) [2023] NSWCATOD 178 and Health Care Complaints Commission v Reyes (No 2) [2023] NSWCATOD 94 which in turn relied on Lucire to the effect that the assessment of costs is not undertaken as a numerical calculation of the number of particulars upheld and those rejected.
8. The Commission acknowledges it was only partly successful but nonetheless established two occasions where Mrs Ziyambi engaged in unsatisfactory professional conduct. Further, the Commission contends that even though Mrs Ziyambi successfully defended most of the matters in dispute, this does not amount to "any dereliction of commission in [the Commission's] duty to the Tribunal", nor does it necessarily require a reduction in the Commission's costs given her "overall success in the proceedings": Health Care Complaints Commission v Litchfield (No 3) (Costs) [2023] NSWCATOD 44 at [34].
9. We note that in Lucire, the practitioner had criticised the manner in which the complaint had been pleaded and pointed to oppressive conduct on the part of the Commission: the practitioner had raised procedural unfairness in the conduct of the hearing. In the present proceeding, Mrs Ziyambi distinguishes the present proceedings from Lucire as not being a case where "discrete elements of the conduct complained of were not established" but rather, the majority of the substantive case was not proven by the Commission. Mrs Ziymabi says to award costs against her in these circumstances would be akin to punishing her for defending the complaints.
10. Further, Mrs Ziyambi also points to "disentitling conduct" of the Commission being that it "conducted itself in an oppressive fashion by taking procedural steps and significant preparation in its commencement of the prosecution case that gave rise to unnecessary hearing time and unnecessary expense". This appears to be merely a recitation of what was said in Philipiah - Mrs Ziyambi did not identify precisely particular conduct of the Commission except that it was not successful and relied on our findings that it was not inappropriate for Mrs Ziyambi to deny the allegations that were ultimately not proved (at [223] Stage 1 Reasons). Further, in respect of particular 5, Mrs Ziyambi said this was a reagitation of conduct for which she had already taken responsibility and been disciplined. It was submitted that she should not be punished again by way of costs especially as there was no finding of unsatisfactory professional conduct in respect of it.
11. As noted above, Mrs Ziyambi denied particular 7. It is this conduct which stands apart from the conduct she admitted as her denial made it necessary for the Commission to demonstrate with evidence the conduct in question. While the Stage 1 hearing was not in any meaningful way devoted to this conduct, it was linked as part of the evidence, including numerous rosters, which was directed towards demonstrating the amount of shifts she worked in each week.
12. The Stage 1 hearing was a three day hearing, the majority of which was taken up with the unsuccessful complaints and particulars involving allegations of Mrs Ziyambi sleeping at work and consequential failing to administer pain relief and one particular was dropped at the hearing. There were 5 witnesses for the Commission who all gave evidence about her alleged sleeping at work. Two witnesses did not appear for cross-examination: Ms Rodriguez without any explanation; and Ms Stillone, a crucial witness, who did not present medical evidence for her second non-appearance and declined to even appear via telephone.
13. It became apparent during the hearing that there had been an inadequate pre-hearing interrogation of the witnesses' evidence relied on by the Commission. Ms Pajic gave evidence that she had prepared her evidence together with Ms Stillone and that the allegations against Mrs Ziyambi had only been pursued because she had lodged an unfair dismissal claim. It should have been apparent to the Commission that there was a significant workplace dispute at Genista with factions and management issues that were influencing the allegations against Mrs Ziyambi. However, we also accept that having the allegations raised, it was not inappropriate for the Commission to pursue those complaints. It was unfortunate some of the witnesses did not appear at the hearing particularly as Mrs Ziyambi's counsel spent time preparing to meet the evidence expected to be given by them.
14. We have taken all of these matters into consideration and have decided to order Mrs Ziyambi to pay 10% of the Commission's costs. We have not undertaken a numerical allocation but instead, as a matter of impression, while acknowledging that Mrs Ziyambi successfully defended the majority of the allegations against her, that was primarily as a result of the way the Commission ran its case and its failure, on the evidence, to satisfy us that the conduct occurred in the manner pleaded by the Commission. However, ultimately, the Commission was successful in that Mrs Ziyambi was found guilty of two instances of unsatisfactory professional conduct. However, the Commission was unsuccessful in obtaining the disciplinary orders it sought and instead we cautioned Mrs Ziyambi. This caution will remain on her record. In reaching our decision to caution rather than reprimand Mrs Ziyambi, we took into account the costs consequences to her in defending the complaints and do not consider the circumstances warrant granting a costs order in her favour.

ORDERS

1. We make the following orders: 1. The respondent is cautioned under the National Law, s 149A(1)(a). 2. The respondent is to pay 10% of the applicant's costs as agreed or assessed under the National Law, cl 13 of Sch 5D.

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

Amendments 19 December 2024 - change of order dates 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: 19 December 2024