Health Care Complaints Commission v Zoing - [2024] NSWCATOD 67 - NSWCATOD 2024 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Zoing

[2024] NSWCATOD 67

NCAT Occupational|2024-04-30

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2024-04-30

Catchwords

193 CLR 72 Parker v Comptroller of Customs (2009) 83 ALJR 494

Source

Original judgment source is linked above.

Catchwords

193 CLR 72 Parker v Comptroller of Customs (2009) 83 ALJR 494

Judgment (50 paragraphs)

[1]

cCarthy [2021] NSWCATOD 201 HCCC v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 Health Care Complaints Commission v Farrell [2017] NSWCATOD 160 Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151 Health Care Complaints Commission v Reid [2018] NSWCATOD 162 Health Care Complaints Commission v Turner [2016] NSWCATOD 163 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lindsay v HCCC [2010] NSWCA 194 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Parker v Comptroller of Customs (2009) 83 ALJR 494; [2009] HCA 7 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Margaret Clara Zoing (Respondent) Representation: Counsel G Marsden (Applicant)

[2]

[5]

Overview

This matter concerns an application by the Health Care Complaints Commission ('the Commission' or 'the HCCC') for disciplinary findings and orders with respect to a complaint ('the Complaint') against the health practitioner, Margaret Clara Zoing, a registered nurse ('Ms Zoing' or 'the practitioner' or 'the respondent').
The Complaint is comprised of seven complaints, with particularised grounds for each complaint. The HCCC determined to prosecute the Complaint pursuant to s 90B(1) of the Health Care Complaints Act 1993 (NSW) ('the HCC Act'), alleging that the respondent has been convicted or made the subject of a criminal finding under s 144(a) of the Health Practitioner Regulation National Law (NSW) ('the National Law'); and/or has been guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b), s 139B(1)(c) and/or s 139B(1)(l) of the National Law; and/or has been guilty of professional misconduct within the meaning of s 139E of the National Law; and/or has an impairment under s 144(d) of the National Law; and/or is not competent to practise nursing under s 144(c) of the National Law.
The alleged conduct of the practitioner that gave rise to the matters particularised in the HCCC's Complaint had been the subject of an investigation by the Pharmaceutical Regulatory Unit ('the PRU') within the Ministry of Health into the suspected fraudulent use of forged prescriptions by Ms Zoing. The PRU's report dated 9 June 2022 ('the PRU Report') revealed that Ms Zoing, who has a medical condition for which she is legitimately prescribed opioid medications (Schedule 8 drugs of addiction), was obtaining additional opioids and restricted substances by forging prescriptions in the name of the person ('Person A') identified in Schedule A to the Complaint.
Schedule B to the Complaint listed medications dispensed from the forged prescriptions in the period from 13 January 2019 until 29 March 2022. In total, the PRU identified 245 dispensing transactions attributed to Ms Zoing using Person A's prescription stationery. Person A confirmed in writing to the PRU and subsequently to the New South Wales Police and the HCCC that they did not issue prescriptions to Ms Zoing.
In an interview with the PRU on 8 June 2022, Ms Zoing admitted to stealing prescriptions from Person A's prescription pad and using them to obtain the restricted substances and drugs of addiction. She consented to Orders being made under clause 175(1) of the Poisons and Therapeutic Goods Regulation 2008 ('the PTG Regulation') and under s 18AA of the Poisons and Therapeutic Goods Act 1966 (NSW) ('the PTG Act'). Those Orders prohibited her, in her profession as a nurse, from having possession of and supplying Schedule 8 drugs of addiction and any Schedule 4 restricted substances, effective on and from 16 June 2022.
The alleged theft and fraudulent use of forged prescriptions was reported to the Police and to the Nursing and Midwifery Council of New South Wales ('the Council'). Subsequently, the Police laid criminal charges against the practitioner. The Council referred the conduct of the practitioner to the HCCC (after taking action it considered appropriate to ensure the protection of the health and safety of the public). The HCCC, after considering the evidence before it, decided to prosecute the matters set out in the Complaint before this Tribunal.
On 16 June 2022, Ms Zoing was charged with "forge/fraudulently alter prescription" and "utter forged/fraudulently altered prescription" under s 16(2) of the PTG Act between 1 April 2022 and 3 May 2022 for a prescribed restricted substance ('the Offences'). She pleaded guilty and was convicted of the Offences at Sutherland Local Court on 18 August 2022. Ms Zoing received a Community Corrections Order for 12 months commencing on 18 August 2022.
Upon receiving notification from the PRU, the Council was aware that the practitioner: 1. had been diagnosed with vascular neuropathy and chronic inflammatory demyelinating polyradiculoneuropathy; 2. was prescribed opioid medications (Oxynorm and Jurnista) by her general practitioner; 3. was alleged to have forged 245 prescriptions for a range of medications (including Schedule 4 and Schedule 8 drugs) over a period of more than 3 years; 4. may have a dependency on opioids; 5. may have an impairment having regard to her drug seeking behaviour to obtain drugs of addition on fraudulent prescriptions; and 6. had been prohibited from possessing or supplying, in her capacity as a nurse, a drug of addiction or a restricted substance.
Pursuant to s 150 of the National Law, the Council convened an urgent hearing on 4 July 2022 to consider whether urgent interim action was required for the health and safety of any person or in the public interest.
The practitioner did not respond to the Council's requests for further information or for her to attend the s 150 hearing.
The Council had no information to consider Ms Zoing's work status, other than to note that she was employed as a specialist nurse to assist with the management of patients with Motor Neurone Disease ('MND'). The Council was unable to determine the extent of Ms Zoing's medical condition impacting upon her ability or capacity to practice as a registered nurse but concluded that she posed a risk to public health or safety. Two conditions were imposed on her registration to address the risk, effective on and from 5 July 2022: 1. not to work as a registered nurse until reviewed by the Council ('Condition 1'); 2. to attend by 22 July 2022 for hair drug testing as directed by the Council ('Condition 2').
The Council also recommended that Ms Zoing attend neuropsychometric testing and be reviewed by a psychiatrist.
The respondent failed to attend a hair drug test by 22 July 2022, and thereby failed to comply with Condition 2 of her registration.
As a result, on 26 August 2022, the Council considered Ms Zoing's ongoing non-engagement with the Council and her contravention of Condition 2, and resolved to initiate a complaint of unsatisfactory professional conduct to the HCCC. The Council amended Condition 2, requiring her to attend for hair drug testing by 26 September 2022. The Council also decided to make an order that Condition 2 be made a critical impairment condition under s 150FA of the National Law. Additionally, the Council resolved that Ms Zoing be referred for a health assessment with a neuropsychologist and subsequently a psychiatrist.
On 30 August 2022, the Council made a complaint to the HCCC of unsatisfactory professional conduct about the practitioner pursuant to s 139B(1)(c) of the National Law.
Ms Zoing failed to attend for her hair drug test by 26 September 2022, thereby contravening the critical impairment condition (Condition 2) (although she did subsequently arrange to have the test on 4 October 2022).
As arranged by the Council, Ms Zoing attended for neuropsychological evaluation on 10 October 2022 with Dr Amanda White, Clinical Neuropsychologist. In Dr White's expert opinion, Ms Zoing may qualify as having a cognitive 'impairment' as defined in s 5 of the National Law, in the area of new learning and memory, which is likely to detrimentally affect her capacity to perform her role as a nurse without consideration and supports.
Ms Zoing attended for psychiatric evaluation with Dr Anthony Samuels, Consultant Psychiatrist, on 25 October 2022. She subsequently attended another appointment with Dr Samuels on 9 April 2024. Dr Samuels opined that Ms Zoing has some 'impairments' within the meaning of the National Law, including a problem with opioid dependence, a chronic neurological disorder with chronic pain, and possibly some associated cognitive deficits, all having the potential to impact upon her professional function.
The HCCC sought orders to have the respondent's registration cancelled and to disqualify her from being registered for two years. A further order was sought to have the cancellation recorded in the National Register kept by the National Health Practitioner Board for the nursing profession ('the National Board'), as well as an order that the respondent pay the Commission's costs.
Ms Zoing did not file a reply to the HCCC's Complaint and did not file any written submissions for consideration.
Pursuant to s 149 of the National Law, the Tribunal may exercise disciplinary power if it finds the subject matter of the Complaint against Ms Zoing to have been proved, or Ms Zoing admits to it in writing to the Tribunal.
After hearing and considering all the relevant evidence, we find the subject matter of Complaints One, Two, Three and Four to have been proved. We find that the conduct particularised in Complaints Two, Three and Four, considered separately or in combination, is sufficiently serious to support a finding of professional misconduct and justifies cancellation of the respondent's registration. We find Complaint Six, that the respondent has an impairment that detrimentally affects her practise as a nurse, to have been proved on the expert evidence of both Dr White and Dr Samuels. We find Complaint Seven, that the respondent is not competent within the meaning of s 139(a) of the National Law since she lacks the mental and/or physical capacity to practise as a nurse as a result of her impairment, to have been proved on the expert evidence of Dr Samuels. Our reasons for these findings follow.
Having regard to the respondent's egregious conduct over a significant period of time, we have decided to cancel her registration and to disqualify her from being registered in the nursing profession for a period of 2 years effective from the date of this decision. We also order that the cancellation of the respondent's registration be recorded in the National Register kept by the National Board.
Finally, we order the respondent to pay the applicant's costs of these proceedings.

[7]

Filed on behalf of the Commission

In support of its Application for disciplinary findings and orders filed on 14 November 2023 (attaching a complaint dated 13 November 2023), the Commission relied on the following documents: 1. Affidavit of service of Zac Zaineddine sworn on 11 December 2023, filed on 14 December 2023 (marked for identification as "Exhibit A1"); 2. A bundle of documents served and filed on 5 March 2024 (marked for identification as "Exhibit A2"); 3. Amended Complaint filed on 19 April 2024 (marked for identification as "Exhibit A3"); 4. Amended Application for disciplinary findings and orders filed on 23 Aril 2024 (marked for identification as "Exhibit A4"); 5. Independent Health Assessment dated 9 April 2024 by Dr Anthony Samuels, Consultant Psychiatrist, filed on 23 April 2024 (marked for identification as "Exhibit A5"); 6. Evidentiary Certificate dated 18 March 2024 issued by the Nursing & Midwifery Council under s 244A of the National Law and filed on 23 April 2024 (marked for identification as "Exhibit A6"); 7. Evidentiary Certificate dated 22 April 2024 issued by the Australian Health Practitioner Regulation Agency ('AHPRA') and National Boards, filed on 23 April 2024 (marked for identification as "Exhibit A7"); 8. Supplementary report of Dr Anthony Samuels dated 14 November 2023, handed up during the hearing on 29 April 2024 (marked for identification as "Exhibit A8"); 9. Affidavit of Service signed by Justin Veitch, handed up during the hearing on 29 April 2024 (marked for identification as "Exhibit A9"); 10. A copy of AHPRA's Registration Standard: Criminal History document as at 1 July 2015, handed up during the hearing on 30 April 2024 (marked for identification as "Exhibit A10"); 11. Email correspondence dated 30 April 2024 from AHPRA to the HCCC regarding reports of notifiable events under s 130 of the National Law with respect to the respondent (marked for identification as "Exhibit A11"); 12. Written submissions dated 30 April 2024, handed up on the second day of hearing (not marked).

[14]

Medical history

Our reasons examine Ms Zoing's medical history insofar as it is relevant to understanding her iatrogenic opioid dependency and the events that followed including: 1. having Orders made prohibiting her, in her capacity as a nurse, from possessing, supplying and administering drugs of addiction and any restricted substances; 2. having criminal charges laid against her, resulting in a conviction for the Offences; 3. having conditions imposed on her registration by the Council under s 150(1)(b) of the National Law; and 4. the Commission's prosecution of the Complaint in proceedings before this Tribunal.
In 2010, at the age of 35, Ms Zoing experienced an acute medical episode and was admitted to Prince of Wales Hospital. She presented with reduced mobility, loss of upper limb function and swallowing difficulties, and she generally felt unwell. Initial concerns that she may have developed MND gave way to a diagnosis of severe chronic inflammatory demyelinating polyneuropathy (CIPD). Her illness required an extensive period of rehabilitation, relearning how to talk and walk. Her mobility improved as she progressed from a wheelchair to crutches which she still relies upon. Her condition has been relatively stable over the past 12 years since her initial diagnosis; however she continues to suffer painful peripheral neuropathy.
Ms Zoing has been treated with an armoury of medications including opioids and benzodiazepines to manage her pain, from which she appears to have developed iatrogenic opioid dependency.
Ms Zoing was seeing her GP, Dr Bruce Parani, for many years until he retired. She then consulted with various GPs in the same practice, including Dr Minh Dang Lam Vo and then Dr Charles Ellis, for the purpose of monitoring her general health ailments and having her Schedule 8 opioid prescriptions issued. Another doctor in that practice, Dr Selim, has located to a new practice and Ms Zoing is hopeful that Dr Selim will be her ongoing GP.
Since around July 2018, Ms Zoing has seen Dr David Gorman, a pain specialist, for her neuropathic pain. In June 2019, Dr Gorman noted that Ms Zoing was taking in excess of his recommended regime for Oxycontin (5 x 20mg per day), and advised her she should not escalate the opioids, as tolerance would develop. On 1 November 2019, Dr Gorman noted that Ms Zoing's intake of OxyNorm was at 6 x 20mg per day, with Jurnista remaining as recommended. In his report to Dr Minh Vo on that date, he thought that Ms Zoing's medications should be reduced if there was improvement in pain management.
Ms Zoing has also been treated by a Drug & Alcohol Specialist, Dr Gottlieb, and receives monthly Buvidal (depot buprenorphine) injections to treat her dependence on opioid drugs.
Ms Zoing has also been under the care of neurologist Dr Shaun Watson since at least March 2017. She was initially treated with plasmapheresis and now receives intravenous immunoglobulin infusions every fortnight. Dr Watson noted in his report dated 22 January 2020 that Ms Zoing takes opioid analgesics, namely Jurnista 40 mg daily and OxyNorm 20 mg six times a day, for pain relief. She also takes Panadeine Forte 2 tablets four times a day. Dr Watson thought that she could increase mycophenolate, an immunosuppressive agent, from 500 mg twice a day, to 1000 mg twice a day.
In a patient note dated 21 March 2020, Dr Minh Vo (Ms Zoing's GP) recorded that when telephoning to request authority to issue prescriptions for Schedule 8 medications for Ms Zoing, he was informed that she had twice in February 2020 and on four occasions in March 2020 had 20 OxyNorm dispensed. Ms Zoing is recorded by Dr Minh Vo as saying that she could not wait to see him and she had asked "the neurologist." It is not clear whether, in referring to "the neurologist", Ms Zoing was referring to Person A or Dr Shaun Watson. Nonetheless, Dr Minh Vo's notes record that he advised her that it was not the first time that she had broken the therapeutic relationship and that he was not comfortable to continue to give narcotic medications to her any more. Dr Minh Vo's notes record that he ended the therapeutic relationship that day.
Dr Watson saw Ms Zoing again on 28 October 2020, noting that she wears lignocaine patches for neuropathic pain and takes Madopar Rapid for restless leg syndrome. She also takes Endep 200 mg (an antidepressant), amlodipine for hypertension and Pariet, an antacid medication. Dr Watson noted that Ms Zoing was having difficulty finding a GP for prescribing Schedule 8 medications. He recommended that she locate a new pain specialist since Dr David Gorman (her previous pain specialist) had retired.
Ms Zoing attempted to locate a new GP and subsequently started seeing Dr Charles Ellis from around October 2021. Dr Ellis routinely issued prescriptions for Ms Zoing's medications (including Schedule 8 medications) and referred her to Dr James Yu, a pain specialist. Dr Ellis' patient notes record on 25 November 2021 that Ms Zoing must see Dr Yu before Dr Ellis could apply for an S8 authority. He noted on that occasion and again on 19 January 2022 that Ms Zoing had not completed a pain questionnaire and had not made an appointment with Dr Yu.
On 6 April 2022, Dr Benjamin Teo, a specialist pain management physician, saw Ms Zoing on behalf of Dr Yu. Ms Zoing told Dr Teo that her pain was mainly in the knees down, including calves, ankles and the soles of her feet, and to a lesser extent in the fingers. The pain was described as "frostbite like pains with fluctuating burning sensations". Dr Teo reported that Ms Zoing had concomitant paradoxical numbness in the lower limbs and electric shock-like sensations in the legs. In addition, he reported that there was "reduced appreciation for vibration sense, which has contributed to balance disorder and increased reliance on visual feedback for orientation."
Dr Teo noted that Ms Zoing's pain is most noticeable at night which causes night time awakenings. His report noted that Ms Zoing's intake of Oxynorm had increased to 8 x 20 mg tablets a day, and that her intake of Jurnista remained stable. In his report to Dr Ellis, he said that Ms Zoing's ongoing opiate requirements were "high but helpful in facilitating an active productive life with favourable side-effect profile". Nonetheless, Dr Teo thought it would be worth exploring tapering her doses, since the propensities for tolerance and loss of efficacy would be difficult to manage. In particular, he thought OxyNorm could be reduced to 6 tablets per day and that Jurnista could be reduced in the morning since her pain was most problematic at night. Dr Teo asked to see Ms Zoing in four months' time (i.e. in around August 2022).
Dr Ellis' patient notes record that, on 12 May 2022, he received a phone call from the Pharmaceutical Regulatory Authority and was advised that Ms Zoing had been found to have stolen prescription pads and had forged "many, many Endone scripts over the past 12 months". The Prescription Shopping Information Service ('Prescription Shopping') administered by Services Australia provided a report to Dr Ellis on 12 May 2022 which identified medications supplied to Ms Zoing in the period from 1 March 2022 to 12 May 2022. That report identified the number of times that medicines identified to be "Target Items" by Prescription Shopping (including analgesics, antidepressants and nervous system medicine), had been dispensed.
The patient notes record that on 13 May 2022 Dr Ellis discussed with Ms Zoing her fraudulent prescription behaviour and terminated his relationship with her for at least 6 months. Dr Ellis noted that Ms Zoing could obtain Schedule 8 medications from her pain specialist in the interim.

[17]

Council's assessment of the complaint under s 150 of the National Law

As already noted, after being notified by the PRU of its investigation and Orders prohibiting Ms Zoing in her capacity as a nurse from possessing, supplying or administering any drug of addiction or restricted substance, the Council considered at an urgent hearing held on 4 July 2022 whether it was appropriate to take urgent interim action for the health and safety of the public or in the public interest.
Ms Zoing did not respond to any form of contact by the Council (voicemail messages, SMS text messages or mail sent by registered post) requesting further information, and did not respond to the request that she attend the hearing. Pursuant to s 150(1)(b) of the National Law, the Council determined that it was appropriate to impose two conditions on Ms Zoing's registration, as noted in the Overview in these reasons.
Ms Zoing was personally served on 12 July 2022 with notice of the s 150 conditions.
Following the practitioner's failure to attend for hair drug testing by 22 July 2022 and her ongoing non-engagement with the Council, the Council resolved on 26 August 2022 to do the following: 1. initiate a complaint of unsatisfactory professional conduct against the respondent to the Commission, for investigation; 2. amend Condition 2, to require her to attend for hair drug testing by 26 September 2022; 3. make an order that Condition 2 was a critical impairment condition, breach of which would result in the matter being referred to the Commission as a complaint against the respondent; 4. refer the respondent for a health assessment with a neuropsychologist and subsequently, a psychiatrist.
By letters dated 2 and 7 September 2022, the Council advised the respondent of the above decisions.
Ms Zoing was personally served with the Council's correspondence dated 7 September 2022 which advised that the Council had resolved that she be referred for health assessments, and directed her under the critical impairment condition (Amended Condition 2) to attend for hair drug testing by 26 September 2022.
The practitioner attended upon Dr White for neuropsychological evaluation on 28 September 2022. Dr White's opinion as set out in her report dated 10 October 2022 is discussed under "Consideration".
Ms Zoing failed to comply with the critical impairment condition by the due date. On 29 September 2022, she advised the Council that she had made an appointment on 4 October 2022.
The results of the testing were positive for oxycodone and noroxycodone (both of which were prescribed opioid medications and disclosed) and benzodiazepine (neither prescribed nor disclosed). The pathology report on the hair sample tested estimated that the time period "covered" by the test extended back to approximately mid-June of 2022, but noted that because substances may be incorporated into existing hair through sweat or other secretions, the time period may extend up to and including the date of sample collection (4 October 2022).
Ms Zoing attended upon Dr Samuels on 25 October 2022 who provided reports dated 25 October 2022 and 14 November 2022 (after reviewing the pathology results of the drug hair testing). Dr Samuels saw Ms Zoing again on 9 April 2024 and provided a further report on that date. Dr Samuels' opinion as set out in his reports is discussed under "Consideration".

[25]

Powers of the Tribunal if a complaint is proved or admitted

If a complaint is proved or admitted, the Tribunal may exercise its disciplinary powers as set out in s 149 of the National Law: "The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if - (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal."
The Tribunal's general powers to suspend or cancel a practitioner's registration are found in s 149C(1) of the National Law as set out below: "(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession."
In circumstances where a practitioner is no longer registered, s 149C(4) of the National Law permits the Tribunal to suspend or cancel the person's registration as if they were still registered: "(4) If the person is no longer registered, the Tribunal may - (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board."

[35]

Complaint Two

Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that she contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted (on 18 August 2022) of the Offences.
Section 139B(1)(b) of the National Law provides that "unsatisfactory professional conduct" of a registered health practitioner includes: "A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention."
Section 130(1) of the National Law provides as follows: "130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event."
In the circumstances of this case, the definition of "relevant event" is identified in s 130(3)(b)(ii) of the National Law to mean a practitioner who is convicted of an offence punishable by imprisonment.
Additionally, the "Code of conduct for nurses" developed by the National Board sets out the legal requirements, professional behaviour and conduct expectations for nurses. Clause 1.1a specifically requires nurses to abide by any reporting obligations under the National Law, including s 130. Sub-clause 1.1e requires nurses to inform AHPRA of any charges or convictions.
The evidentiary material in support of the complaint includes the following: 1. that Ms Zoing was registered as an enrolled nurse at the time she was convicted of the Offences and was obliged to notify the National Board of her conviction within 7 days; 2. that the Offences are punishable by a maximum penalty of 20 penalty units or 6 months' imprisonment: s 16(2) of the Poisons and Therapeutic Goods Act 1966 (NSW), thereby satisfying the occurrence of a "relevant event" within the meaning of s 130(3)(b)(ii) of the National Law; 3. the Statement of Agreed Facts, Transcript and Certificate of Conviction; 4. Ms Zoing's apology (in her Written Response) for her failure to notify.
Complaint Two is effectively proven by the respondent's failure to notify the National Board within 7 days of being convicted of the offences on 18 August 2022. Once there is evidence that a practitioner contravened the notification requirements, a finding of unsatisfactory professional conduct will automatically follow: HCCC v Amulakumar [2019] NSWCATOD 173 at [22]-[27].
In her Written Response, Ms Zoing stated that she was unaware of the requirement under s 130 of the National Law. She had incorrectly assumed that she was de-registered. The imposition of Condition 1 on her registration (as an interim measure) had the effect that she was not permitted to work as a registered nurse until reviewed by the Council. She also said that she had assumed that she would need to inform AHPRA when prompted to declare new convictions at the time her registration falls due (which is correct but did not relieve her of her statutory obligation under s 130(1)).
Ms Zoing's oral evidence was consistent with her admission of the complaint in her Written Response.
As correctly argued by the HCCC, ignorance of the obligation under s 130 of the National Law does not excuse the failure to notify: HCCC v McCarthy [2021] NSWCATOD 201 ('McCarthy') at [20] and [24]. The notification obligation is more than a box-ticking exercise in compliance. The importance of compliance was addressed in Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 at [31]: "Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place. In our view Mr Holbrook's delay was a contravention of the National Law. We are satisfied that his delay in notification constitutes unsatisfactory professional conduct."
The respondent's assumptions that she had been de-registered and that she would declare her convictions at a future time when she was being re-registered do not relieve her of the obligation to notify the National Board. As noted by the Tribunal in McCarthy at [20], the obligations created by section 130(1) are in the nature of 'strict liability' obligations, and questions of intention and motivation do not arise in determining whether the obligations have been breached.
Indeed, disclosure of a criminal conviction at the time of renewal of registration is not enough. Disclosure must also be as and when a conviction occurs. As noted in McCarthy at [23], referring to Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 at [31], the Tribunal considered that comments made with respect to the dental profession were equally relevant to a nursing practitioner: "The dental profession is a regulated profession, designed to ensure inter alia the health and safety of the public and to enhance the confidence of the public in the integrity and competence of the profession. A requirement that dentists are compelled to inform the regulatory authority of any criminal charges and convictions for criminal offences, in each case of a serious nature, is a means by which the regulatory authority is able to maintain control over any practitioner who has engaged in conduct which is inimical to the proper and ethical conduct of dentists. Not only is there a requirement to provide this information as and when it occurs, but also on renewal of registration. A failure to comply with these requirements as and when compelled to do so is potentially a matter of some seriousness."
In another case involving an optometrist who had failed to notify the relevant National Board of his criminal convictions, the Tribunal discussed the need for practitioners to comply with the protective architecture of the National Law: Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 ('Bolton') at [188] - [190]: "[188] Turning to Mr Bolton's professional misconduct the object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners. The objectives of the national registration and accreditation scheme are 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: ss 3(1) and (2)(a) National Law. [189] The National Law contains specific provisions dealing with obligations of practitioners which amongst other matters require practitioners to notify AHPRA of criminal charges and convictions. It contains specific provisions on renewal of registration for practitioners to make declarations in annual statements about impairment and criminal history. Therefore there is coherence to the protective objects of the National Law and the individual provisions within it. [190] Mr Bolton failed to comply with provisions in the National Law requiring notification to AHPRA of criminal charges and convictions within seven days. These provisions are part of the protective architecture of the National Law. It is the compliance by practitioners with these provisions that allow regulatory authorities to decide whether a health practitioner's criminal history is relevant to the practise of their profession and thus ensure that only those health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered."
We find Complaint Two to be proven on the evidence, and find that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law.

[36]

Complaint Three

Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law as she has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. As stated earlier, this complaint relates to the practitioner's conduct in forging dispensed prescriptions that did not form the basis of the criminal charges.
The complaint is particularised as follows: 1. that between 11 January 2019 and 3 May 2022, in the course of her employment, the practitioner inappropriately took, without the consent or knowledge of Person A, blank prescription forms from Person A's Pharmaceutical Prescription Scheme personalised prescription pad. 2. that between 11 January 2019 and 3 May 2022, in the course of her employment as a registered nurse, the practitioner inappropriately: 1. used Person A's personalised prescription forms without his consent; 2. created false prescriptions for Schedule 4 and Schedule 8 drugs of addiction, without the consent or knowledge of Person A, where Person A was nominated as the prescriber and the practitioner was nominated as the patient; and 3. obtained Schedule 4 and Schedule 8 drugs of addiction using false prescription pads for her personal use. 1. that between 11 January 2019 and 29 March 2022, on occasions outlined in Schedule B to the Amended Complaint, during the course of her employment as a registered nurse, the practitioner inappropriately: 1. produced the false prescriptions at Priceline for the dispensing of Schedule 4 restricted substances and Schedule 8 drugs of addiction; and 2. obtained Schedule 4 and Schedule drugs from Priceline using the false prescriptions.
The evidence in support of the complaint is largely annexed to (and summarised in) the PRU Report which included details of an interview with the practitioner on 8 June 2022. During that interview, the practitioner admitted that she had written prescriptions for herself using Person A's prescription stationery without their consent.
The PRU Report relevantly appended the following material evidencing the conduct the subject of the complaint: 1. a printout from Priceline of Schedule 8 transactions dispensed from 13 January 2019 to 3 May 2022 to the practitioner identifying the prescriber as Person A; 2. a printout of the practitioner's patient history held by Priceline of medications dispensed to her from May 2019 to May 2022 also identifying the prescriber as Person A; 3. copies of correspondence between the PRU and Person A in which Person A confirmed that they had not issued prescriptions to the practitioner and that she was not their patient.
In total, in the period from 11 January 2019 to 29 March 2022, there were 245 dispensing transactions for medications of various substances written in Ms Zoing's name from prescriptions purportedly issued by Person A. This included 144 dispensing transactions for Oxynorm 20 mg, 20 capsules, 1 dispensing transaction for Jurnista 8mg, 14 tablets, 1 dispensing transaction for Jurnista 32 mg and 49 dispensing transactions for Panadeine Forte, 20 tablets.
In an interview with the PRU on 8 June 2022, Ms Zoing admitted there were prescriptions that she herself had written using Person A's prescription stationery, but she said that some transactions related to legitimate prescriptions issued by Person A. It was pointed out to Ms Zoing that Person A had provided written confirmation that they had never treated her as a patient and had never issued a prescription to her. Ms Zoing said that Person A was aware that she was having difficulties finding a regular prescriber for her medicines and had helped her out in the past regarding prescriptions.
Ms Zoing said that she thought Person A "wouldn't have minded" as she reasoned that they had helped her in the past. However, Ms Zoing acknowledged (although she was not entirely sure) that Person A had never issued a prescription for Oxynorm 20mg to her. It was pointed out to Ms Zoing that she had presented fraudulent prescriptions for a drug of addiction on 144 occasions. Ms Zoing said that Dr Gorman, who has now retired, used to prescribe up to 12 capsules per day which was reduced to 8 capsules per day. She said that Dr Charles Ellis (her GP) prescribes 8 capsules per day and that having the extra supplies of OxyNorm allowed her to take an additional 4 capsules per day. Ms Zoing denied ever providing these capsules to any other person.
In her Written Response, Ms Zoing stated that she regretted immensely what she did. She described her relationship with Person A over 18 years. She said that she worked long hours in the office, case managing 200 MND patients as well as being on call, and that the job was physically and emotionally taxing. She said that her patients took priority and her health was put on the "back burner" and that when Covid first hit Australia she had problems accessing her GP and pain specialist. She stated that "neurologists would often help provide scripts if needed" and recalled that she had received scripts from Person A for Panadeine Forte with five repeats, and scripts for antibiotics. However, she said that Person A may not have remembered those scripts over the years, and asserted that she did not intend to deceive the PRU in recalling those particular incidents.
In her oral evidence, the practitioner admitted her conduct the subject of Complaint Three in its entirety. Departing from the partial admissions she had given in her PRU interview and her Written Response, Ms Zoing admitted that she had fraudulently and falsely created all of the prescriptions listed in Schedule B to the Amended Complaint. When challenged on her explanation that during Covid she had difficulty finding a GP to prescribe opioids, she conceded that her conduct had in fact pre-dated Covid. Departing from her statements to the PRU that she thought Person A "wouldn't have minded", her oral evidence was that in using Person A's pad and signature stamp she had betrayed Person A's trust. She said that she had broken the law and had continued falsely creating prescriptions for herself "out of habit" because it had become easy to do.
When questioned by the Tribunal as to whether she had ever used Person A's prescription pad for MND patients, Ms Zoing said that she had occasionally issued scripts for patients but that was only done after discussion with Person A and with his consent. She acknowledged that when writing prescriptions for herself, she did not discuss it with Person A because she knew it was wrong, and didn't want it to be known.
We turn now to consider whether the practitioner engaged in improper or unethical conduct relating to the practice or purported practice of nursing under s 139B(1)(l) of the National Law.
The words "improper" and "unethical" are not defined in the National Law. The assessment of what constitutes "improper" or "unethical" conduct is based upon the ordinary meaning of those words. In the professional disciplinary context, there is some overlap between the two: Health Care Complaints Commission v Aref [2018] NSWCATOD 133 ('Aref') at [19].
The word "improper" was considered by the High Court of Australia in Parker v Comptroller of Customs (2009) 83 ALJR 494; [2009] HCA 7 where French CJ stated: "… [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong." "
In Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151, the Tribunal considered whether a psychologist had engaged in improper or unethical conduct. The Tribunal said there was no reason to suppose that the dictionary definitions of "improper" and "unethical" should be given a different meaning in the National Law. Accordingly, the dictionary definition of the words was adopted at [56]: "The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral; 2. in contravention of some code of professional conduct." "
In Liu at [51], the Tribunal again considered the meaning of "improper" with reference to the Macquarie dictionary: "The Macquarie Dictionary defines improper as follows: 1.not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2.not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3.unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4.abnormal or irregular."
In professional disciplinary proceedings, the term "impropriety" is taken to mean a breach of the standards of conduct that would be expected of a person in the position of the alleged offender: Liu at [54].
Again, in Liu at [52], the Tribunal considered the meaning of "unethical", with reference to the Macquarie dictionary: "Unethical is defined as follows. 1.contrary to moral precept; immoral. 2.in contravention of some code of professional conduct."
It is not necessary to exhaustively consider the meaning of "improper or unethical conduct" as it encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession: Liu at [55].
The test of whether conduct is "improper" is an objective one: Liu at [54]. It is not necessary for the Tribunal to be satisfied that the conduct is intentional, to find that is "improper": Aref at [19].
Applying an objective test, "improper" conduct includes conduct that is not in conformity with standards of professional conduct that would be expected by reasonable persons with knowledge of the duties, powers and authority of a person in the position of the practitioner: Aref at [20].
The gravity of the conduct in question must be measured against the extent to which it departs from proper standards, and not by reference to the worst cases: Aref at [21], applying Litchfield at [638].
The evidence, including the records appended to the PRU Report, and the practitioner's admissions when giving her oral evidence, establishes that the practitioner engaged in the conduct as alleged and particularised.
By her own admission, the practitioner knew that her conduct was wrong, yet she persisted in writing fraudulent scripts without authority, for her personal use, for more than three years. Also by her own admission, she breached the trust that her employer placed in her. It is clear, without needing to consider whether the practitioner had a consciousness of impropriety, that her conduct was secretive, deceptive and fraudulent, as well as being intentional and deliberate.
In our view, the conduct is egregious. In terms of the definition of "improper", the conduct was abnormal, irregular and plainly wrong. In terms of the definition of "unethical", we find the conduct was dishonest, immoral and in breach of the professional behaviour and conduct expectations for nurses. The conduct contravened Domain 4 of the Code of Conduct for Nurses, which requires the professional behaviour of nurses to embody integrity and honesty. The conduct fell well below the standard expected of a registered nurse, charged with fulfilling the duties and responsibilities within the power and authority enjoyed by the practitioner in her role. Conduct in the nature of the practitioner's behaviour has the potential to bring the nursing profession into disrepute and reduce public confidence in the profession.
We therefore find that the practitioner engaged in improper or unethical conduct relating to the practice or purported practice of nursing and is guilty of unsatisfactory conduct under s 139B(1)(l) of the National Law.

[37]

Complaint Four

Complaint Four is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c)(i) of the National Law, on the ground that she contravened a condition (Condition 2) of her registration.
The practitioner failed to comply with Condition 2, in failing to attend for hair drug testing by 22 July 2022.
The Council subsequently amended Condition 2, to require the practitioner to attend for hair drug testing by 26 September 2022, and the condition was made a "critical impairment condition" under s 150FA(2) of the National Law.
The practitioner again failed to attend for hair drug testing by 26 September 2022.
Whilst Ms Zoing did ultimately attend for hair drug testing on 4 October 2022, that occurred after the required date of 26 September 2022 and was therefore in breach of the critical impairment condition.
In her Written Response dated 22 April 2023, Ms Zoing stated that she was very sorry for the delay in attending to hair testing. She said that she was overwhelmed with all that was happening during July and August 2022, including dealing with her resignation and finishing up at work. She asserted that her hours were very long and her email inbox was congested, with around 700 emails to be read. She also asserted that she lived in a "black spot" location, with poor phone reception. Ms Zoing stated that she had booked an appointment for testing on 12 September 2022 but had developed gastroenteritis and was unable to attend for testing until 4 October 2022. She also identified a number of other issues that she had encountered at the time, including not having access to emails after her resignation took effect, and waiting for her hair (which she said she dyes and is slow-growing) to grow to a sufficient length to accommodate accurate testing.
The caselaw plainly regards compliance with conditions imposed upon registration as being critical to the health and safety of the public: Health Care Complaints Commission v Reid [2018] NSWCATOD 162 at [131]-[133]: "As has been frequently noted in decisions of this Tribunal, and the former Medical Tribunal of NSW, the compliance with conditions imposed by a Council is critical to the health and safety of the public. Practitioners in many instances are able to retain their registration only because a Council is satisfied that conditions imposed ameliorate risk to the public and/or maintain a practitioner's health and well-being."
Conditions imposed on a practitioner's registration must be scrupulously observed, as noted by the Court of Appeal in Prakash at [74]: "When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed…"
In support of Complaint Four, the Commission relied upon the following evidence: 1. that the practitioner was personally served on 12 July 2022, 6 September 2022 and 12 September 2022 with notice of Condition 2, the amendment to Condition 2, and information about hair testing; 2. the practitioner's Written Response admitting to the conduct constituting Complaint Four; 3. the practitioner's oral evidence which was consistent with the admissions in her Written Response.
We find, on the evidence, that Complaint Four is proved. Pursuant to s 139B(1)(c)(i) of the National Law, we find the practitioner is guilty of unsatisfactory professional conduct for contravening a condition of her registration.

[38]

Complaint Five

Complaint Five (constituted by the particulars of Complaint Two, Complaint Three and Complaint Four) asserts that the practitioner is guilty of professional misconduct pursuant to s 139E of the National Law in that the practitioner engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounts to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
The evidence relied upon in support of Complaint Five is the same evidence relied upon in support of Complaints Two, Three and Four.
Under s 139E(a) of the National Law, "unsatisfactory professional conduct" of a sufficiently serious nature to justify suspension or cancellation of a practitioner's registration equates to "professional misconduct". In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the Court of Appeal per Basten JA regarded professional misconduct as merely a category of unsatisfactory professional conduct which is sufficiently serious to justify suspension or cancellation.
We agree with the Commission's submissions that the practitioner's conduct was flagrant even though it was not conspicuous and, indeed, was done surreptitiously to avoid detection. The conduct was deliberate and extensive, continuing for more than three years despite the practitioner's own admission that she knew it was wrong and involved a breach of her employer's trust. It was not confined to using Person A's prescription pad without his knowledge or consent, but also involved the practitioner fraudulently presenting the forged prescriptions to Priceline as having been authorised by Person A for the treatment of Ms Zoing.
As submitted by the Commission, the proper handling and prescribing of drugs by medical practitioners are of the utmost importance to the community. Schedule 4 and Schedule 8 drugs of addiction are tightly regulated to protect the public. The practitioner lacked the qualifications or training to prescribe any medication, and certainly should not have been self-administering those medications. Given her evidence that she did not give the medications to any other person but used it to augment her own legitimately prescribed treatment, her conduct posed a risk to her own health and safety, as well as to the patients she managed. Her conduct had the potential to seriously undermine the reputation of her employer and reduce public confidence in the profession of nursing.
For the reasons given above regarding Complaint Three, we find that the conduct in Complaint Three is of sufficient gravity to justify suspension or cancellation of the practitioner's registration and therefore amounts to professional misconduct.
Turning to Complaint Two (failure to notify), the practitioner had been a registered nurse for more than 26 years and ought to have known about her obligations to comply with the National Law by promptly notifying the National Board of her criminal convictions. In our view, her statement to Magistrate Atkinson focused on her medical event in 2010 and the impact of Covid upon her conduct (which we consider to be disingenuous since she had been forging prescriptions for more than 12 months before the impact of Covid was felt in Australia). The transcript of proceedings shows that Ms Zoing referred to the "serious consequence" of her conduct, but did not acknowledge the serious nature of the conduct. Despite being an experienced, registered nurse since 1996, and despite the sobering experience of standing before a magistrate to be convicted and sentenced, the practitioner's failure to comply with her statutory obligation to notify the National Board of her conviction is difficult to comprehend.
With respect to Complaint Four (breach of a condition of registration), the practitioner was aware of the Council's decision imposing Condition 2. After failing to comply, the practitioner was then made aware by letter dated 2 September 2022 from the Council that: 1. Condition 2 was amended, requiring her to attend for drug hair testing by another date, namely, 26 September 2022; 2. Condition 2 was made a critical impairment condition under s 150FA of the National Law; 3. contravention of the condition would result in referral of the matter to the Commission, to be dealt with as a complaint against her.
The Council's letter of 2 September 2022 enclosed an extract of s 150FA of the National Law, advised the practitioner that AHPRA was made aware of the conditions imposed on her registration and advised her that her employer would also be notified. The Council's subsequent letter dated 7 September 2022 again set out the terms of the amended Condition 2 and stated, in bold print, that Ms Zoing was required to attend for testing before 26 September 2022, in order to comply with the condition.
The Tribunal acknowledges that the practitioner felt overwhelmed in the period leading to the criminal sentencing proceedings on 18 August 2022 and the immediate aftermath. However, despite having been personally served with the Council's correspondence and being given telephone numbers to contact personnel if she needed assistance or information, the practitioner's conduct reflects a blatant disregard for her compliance obligations.
In all the circumstances, for the reasons given with respect to our findings for Complaints Two and Four, we find that the conduct in each of those complaints, considered separately, is sufficiently serious to support a finding of professional misconduct justifying suspension or cancellation of her registration. It logically follows that, when considered together, the conduct amounts to conduct of a sufficiently serious nature to justify suspension or cancellation.
We therefore find that Complaint Five is proven.

[39]

Complaint Six

The Commission asserted that, based on the opinions of Dr White and Dr Samuels, the practitioner has an impairment that detrimentally affects or is likely to detrimentally affect her capacity to practise the profession of nursing contrary to s 144(d) of the National Law.
As previously noted in these reasons, "impairment" is defined in s 5 of the National Law to mean that 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 the person's capacity to practise the profession.
When considering whether a practitioner has an "impairment", there is no requirement to identify a particular diagnosis. In Grant v Health Care Complaints Commission [2003] NSWCA 73, where a medical practitioner was found to have a mental impairment, the Court of Appeal said at [11]-[12] that it was not necessary for a precise diagnosis to be identified: "[11] Finally, there was a complaint that the Tribunal did not find with sufficient particularity what precise kind of mental disturbance they alleged Dr Grant suffered from. They came to a finding that she was suffering from mental impairment but they did not then say what sort of mental illness they relied on to constitute that impairment. [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."
It is necessary to have regard to whether any impairment is current: Caladine v Health Care Complaints Commission [2007] NSWCA 362 at [11]. This may be demonstrated by evidence of a deficiency at a particular time together with the absence of any evidence of improvement since that time: Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 ('Astor-Finn') at [43].
In her Written Response, Ms Zoing said that she felt extremely overwhelmed during the investigation. She said that her conduct was "out of character" for her and it weighed heavily on her and her health. She also said that in the weeks leading up to the neuropsychologic and psychiatric assessments she was prescribed a new medication for her severe neuropathic pain (which felt like burning and electric shocks) which is worse at night, leading to sleeplessness. Ms Zoing stated that she had not slept on the nights before each of the assessments which may have contributed to the experts' findings. She asserted that her role requires good memory and problem-solving skills, and that she had written papers on various MND topics and had co-authored MND-related papers with other neurologists and clinical psychologists. Whilst this assertion was not challenged, no evidence of papers written or co-authored by Ms Zoing were provided to the Commission or the Tribunal.
Ms Zoing acknowledged she suffers severe neuropathic pain, especially at night which leads to sleeplessness, but did not acknowledge that she suffered any impairment that detrimentally affects her capacity to practice as a nurse.
When considering whether Ms Zoing has a physical or mental impairment within the meaning of s 5 of the National Law, we are reliant upon the expert opinions of Dr White and Dr Samuels.
In her report dated 10 October 2022, Dr White found the practitioner "demonstrates a significant and unusual weakness in her new learning and memory (Borderline to Low Average) particularly for verbal information and some unreliability which would be considered a considerable impairment for her, as well as some inefficiencies in aspects of executive function."
On a recognition test for a list of words, Dr White found the practitioner had an impaired ability to discriminate information. On the assessment of her new learning and memory function, Dr White noted that Ms Zoing received no significant benefit from having information repeated several times, and concluded: "Ms Zoing's new learning and memory was markedly below her current intellectual functioning. Such large discrepancies are considered clinically significant, particularly for her verbal and immediate memory with such large differences occurring in less than one percent of the population."
Dr White found the practitioner to be superficial in her responses, and thought this was unusual in the circumstances: "Despite her self-report of no stress, anxiety nor depression symptoms presently, I note that this is unusual and somewhat unexpected in the context of her current situation. She also presents as quite guarded and superficial in her responses particularly in relation to her involvement with the Council and related issues."
Dr White concluded: "In my view she may qualify as having a cognitive 'impairment' as defined in section 5 of the National Law (NSW). The nature and degree of her new learning and memory deficit is of concern and likely to detrimentally affect her capacity to perform her role without consideration and supports. The cause of her difficulty is likely to be multifactorial and related to her health. Impacts of Ms Zoing's medication may be also be (sic) a contributing factor."
Dr White did not consider Ms Zoing's current cognitive difficulties were at a level to preclude her from returning to practise nursing provided appropriate conditions were in place. However, her report was heavily guarded regarding Ms Zoing's capacity to practise: "Overall concerns for her health exist as well including medication issues and reports of high levels of neuropathic pain and no sleep which I would defer to an appropriate medical practitioner to comment on and indicate implications for her capacity to practise."
In his report dated 25 October 2022, Dr Samuels noted that Ms Zoing diminished her conduct by saying she had "stamped scripts for a period" and that during Covid she experienced difficulty in getting scripts for managing her pain. This is consistent with Dr Samuels' oral evidence that he thought Ms Zoing had minimised the seriousness of her conduct, and had 'down-played' the "stamping" of scripts as a routine, minor issue. The impression he gained was that Ms Zoing had no insight into the seriousness of what she had done. In his view, whilst Ms Zoing acknowledged the conduct was wrong, she justified it by focussing on the mitigating factors such as the difficulty she experienced in finding a GP. Dr Samuels noted that, when pointed out to her that there had been an enormous number of scripts involved, Ms Zoing acknowledged this and said that she had been left with nothing when Dr Gorman stopped seeing her and that she had tried, unsuccessfully, to find a GP to assist her.
Dr Samuels found that the practitioner had some impairments within the meaning of the National Law which include "a problem of prescription opioid dependence which seems to be reasonably well controlled on a buprenorphine injection, a chronic neurological disorder with chronic pain, and she may have some associated cognitive deficits". He thought the impairments have the potential to "impact upon her professional functioning".
Dr Samuels' report contained the following recommendations and an addendum after receiving Dr White's report and the results of Ms Zoing's drug test which, surprisingly, revealed the use of benzodiazepines (a matter which she had not disclosed): "Recommendations I do have some concerns about Miss Zoing's current fitness to work. It is imperative that she has a GP and ideally a single prescriber managing her medications. She should remain under the care of her neurologist, Drug & Alcohol specialist and a pain specialist. She should not return to a nursing role until cleared to do so by all her treating practitioners. Addendum I have now seen the neuropsychology report of Dr Amanda White dated 10 October 2022 which reveals cognitive deficits particularly associated with new learning that appear to have multi-factorial origins. I also note the hair test of 10 October 2022, Ms Zoing says she is no longer taking opioids (and the hair test may reflect prior use). However, she did not disclose use of benzodiazepines. This suggests her prescription drug use remains an issue of concern and she should definitely be under the care of a Drug and Alcohol specialist and should be subjected to regular urine drug screening and hair testing. She should only take medications as prescribed and ideally there should be a single prescriber for her medications. In regard to her cognitive deficits she will require significant oversight and monitoring in the workplace and may need to work with a neuropsychologist to implement the strategies proposed by Dr White."
Dr Samuel's supplementary report dated 14 November 2022 again noted the results of hair testing on 10 October 2022. He continued to have concerns about her fitness to return to work until she has clearance from her neurologist, Drug and Alcohol specialist and pain specialist. He emphasised that it is imperative that all her treating practitioners have a clear understanding about what medications Ms Zoing is actually taking, and who is prescribing it. Dr Samuels thought that, if Ms Zoing were to return to a nursing role, she will require "stringent monitoring" including thrice weekly urine testing and quarterly hair testing.
After seeing Ms Zoing again on 9 April 2024, Dr Samuels provided a further report, finding that the practitioner continues to struggle with physical ill health, decreased mobility and chronic pain. Ms Zoing asserted that her chronic pain is reasonably controlled on buprenorphine, with amitriptyline and Panadol used as adjunctive treatments. Dr Samuels noted that Ms Zoing appeared to be cognitively sharper in April 2024 than when he examined her in October 2022. He thought that opioid and benzodiazepine misuse may have impacted upon her cognitive functioning in October 2022, but could not be confident of Ms Zoing's improved functioning without further neuropsychological assessment.
Ms Zoing strongly denied using opioids since October 2022, however Dr Samuels expressed the view that he found Ms Zoing to be an unreliable historian. In oral evidence, Dr Samuels agreed there was no objective evidence to corroborate the practitioner's assertion that her opioid dependency was in remission. He also commented that the practitioner may have residual cognitive deficits that are not so severe as to be detectible in a clinical setting, however he was not comfortable to say that she was competent to practise as a registered nurse.
When asked about the likelihood of Ms Zoing's compliance with any future treatment, Dr Samuels' opinion was that personality factors are likely to have contributed to her response to the process (such as failing to adhere to hair testing). In giving his oral evidence, Dr Samuels said he wondered whether Ms Zoing's apparent inability to process the significance of events pointed to a personality disorder. He said it was unlikely that those personality factors had changed, since it appeared to him from his assessment in April 2024 that Ms Zoing still did not grasp the seriousness of the issues. Whilst acknowledging that her conduct was wrong, she still sought to down-play and justify it. Dr Samuels again expressed concern about her level of insight.
Dr Samuels reached the following conclusion in his further report (at para 80): "At this point she does seem to have a number of impairments within the meaning of the National Law, including iatrogenic opioid and benzodiazepine use disorder which according to her self-report is in remission. She has a mild anxiety disorder. She has an underlying cognitive disorder which may have improved following her self-reported cessation of opioids and benzodiazepines. However, her cognitive disorder could also be a manifestation of her underlying neurological disorder which is currently leading to considerable physical impairment. Personality factors appear to have been relevant in regard to the initial notification of her response to the regulatory processes. These impairments do have the potential to impact upon her professional functioning."
Dr Samuels' oral evidence was consistent with the opinions expressed in his reports. He thought Ms Zoing has residual deficits from her underlying neurological condition which has the capacity to detrimentally affect her practise as a nurse. Specifically, he commented that it affects her mobility, causes chronic pain, and possibly affects her cognitive function.
Relying upon the expert evidence, we find that Ms Zoing is currently impaired within the meaning of s 5 of the National Law, due to her iatrogenic opioid misuse disorder (controlled by buprenorphine), mild cognitive impairment, neurological disorder and mild anxiety. There is no objective evidence of improvement (such as independent confirmation that Ms Zoing's opioid dependence is in remission or neuropsychological evidence that her cognitive functioning has improved).
We therefore find that the evidence establishes Complaint Six.

[40]

Complaint Seven

Complaint Seven is that the practitioner is not competent within the meaning of s 139(a) of the National Law as she lacks the mental or physical capacity to practise as a nurse as a result of her impairment.
The particulars of Complaint Seven are that the practitioner's impairments (as relied upon for the purposes of Compliant Six) are of a sufficient nature and degree to impair her physical and/or mental capacity to practise as a nurse.
The relevant caselaw acknowledges that while an impairment does not automatically lead to the conclusion that a practitioner is not competent within the meaning of s 139(a) of the National Law, there is a close connection between an impairment and competence to practice.
The Court of Appeal in Lindsay v HCCC [2010] NSWCA 194 per Sackville AJA stated at [168]: "There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may well lead to a finding that the medical practitioner is not competent to practise within the meaning of s 64(1)(a) of the Act."
In Health Care Complaints Commission v Farrell [2017] NSWCATOD 160 at [82] the Tribunal found: "Section 139(a) of the National Law provides 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. In Astor-Finn it was further noted that the courts recognise that there is a close relationship between a finding of impairment based on a disorder affecting mental capacity and a finding of lack of competence to practice medicine, and it is not necessary to provide detailed explanation for moving from one step to the other."
Ms Zoing clarified during the hearing that she would want to go back to neurology if she returned to nursing.
We note that, from a cognitive perspective, Dr White thought that a number of considerations should be given if Ms Zoing returned to work as a nurse practitioner. Those considerations included working reduced hours to manage cognitive load and fatigue, having external supports to assist with planning and memory such as writing down notes, having information presented in small chunks, recording meetings so they may be referred to later and having a colleague attend meetings to ensure all necessary information is acquired and relayed, particularly those involving patient care.
Dr White also noted that it was possible that Ms Zoing's cognition may fluctuate over time, particularly if she became unwell again or dependent on medications.
Dr Samuels' report dated 9 April 2024 opined that the practitioner's mild cognitive impairment has the capacity to affect her ability to learn new information, to adapt to a new clinical environment or to deal with novel situations. He thought that these deficits could be significant if Ms Zoing changes to an area of nursing she is less familiar with or if she finds herself in a high acuity nursing situation.
Dr Samuels concluded that "an updated neuropsychological report may assist in clarifying whether or not there has been clinically significant improvement in her cognitive functioning as well as her capacity to cope with nursing roles she is less family with".
Based on Dr Samuels' evidence, we find that the practitioner's iatrogenic opioid misuse disorder and cognitive deficits cause her to lack the mental capacity to practise as a nurse. We also note the absence of objective evidence of both the practitioner's improved cognitive function and her asserted cessation of opioid and benzodiazepine use.
Accordingly, we find Complaint Seven to be proved.

[41]

Justification for cancellation of the respondent's registration

In determining whether or not the practitioner's conduct warrants suspension for a specified period or cancellation of her registration, we firstly have regard to the national registration and accreditation scheme which is underpinned by the paramount consideration being the protection of the health and safety of the public.
Secondly, the national scheme provides for the protection of the health and safety 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".
Thirdly, when making protective orders, we have regard to the following recognised principles (most of which have already been referred to above and were helpfully summarised in Counsel's submissions made on behalf of the Commission): 1. maintaining the standards of the profession, to preserve public confidence in the integrity of the nursing profession and thereby protect the community: Prakash at [91]; 2. deterring both the practitioner and others from engaging in similar conduct, to maintain professional standards and thereby ensure public safety and faith in the profession: Litchfield at [637]; 3. protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; 4. reinforcing the need for practitioners to comply with the protective architecture of the National Law, to assist regulatory authorities to decide whether a practitioner's criminal history is relevant to their practice: Bolton at [190]. 5. the Tribunal's jurisdiction is primarily protective and not punitive: Clyne at [201]-[202]; Litchfield at [637]; Liu at [42] and Meneghetti at [97]; however it is unavoidable that protective orders may be incidentally punitive: Lee at [20] and [31] and Meneghetti at [98].
Pursuant to s 149C(1) of the National Law, the Tribunal may suspend or cancel the practitioner's registration if it is satisfied: 1. the practitioner is not competent to practise the practitioner's profession: s 149C(1)(a); or 2. the practitioner is guilty of professional misconduct: s 149C(1)(b); or 3. the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession: s 149C(1)(c).

[44]

Cancellation on the ground that the circumstances of the Offences render the practitioner unfit in the public interest to practise nursing: s 149C(1)(c)

Under s 149(1)(c), a practitioner's registration may be suspended for a specified period or cancelled if the practitioner has been convicted of an offence and the circumstances of the offence render the practitioner "unfit in the public interest to practise the practitioner's profession".
A number of Tribunal cases have considered the phrase "unfit in the public interest to practise the practitioner's profession", since it is not defined in the National Law.
Written submissions made on behalf of the Commission helpfully summarised how the phrase is interpreted in light of the objects and guiding principles of the National Law, with reference to Tribunal cases. We adopt those submissions as set out below: "a. Whether a practitioner is unfit in the public interest to practice requires consideration of the nature of the conviction and the circumstances in which the offence was committed: Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 (Limboro) at [14]; b. Whether a practitioner is unfit in the public interest to practise requires the Tribunal to take into account not only the offences but also the circumstances in which the offences were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Turner [2016] NSWCATOD 163 at [67]; c. Whether a practitioner is unfit in the public interest to practise involves a consideration of both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and where there is a close nexus between the criminal conduct and professional role and responsibilities, the public's ability to entrust their care to those health professionals may be imperilled if the convicted practitioner continues to practise. The serious nature of the offences and length of time over which they occurred may cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a convicted practitioner lacking rehabilitation and insight: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]; d. Whether a practitioner is unfit in the public interest to practise must be assessed in light of a holistic inquiry into suitability which takes into account the wider context of the practitioner's conduct, including motivation, insight into the harm caused and any attempts at rehabilitation. All of these considerations must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards and public confidence in the health professions: Limboro at [22]; e. Whether a practitioner is unfit in the public interest to practise may include consideration of whether the practitioner's criminal offence exhibits traits in the practitioner inconsistent with the practise of an honourable profession: Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 (FLJ) at [93]."

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AHPRA's Registration Standard: Criminal History

AHPRA's "Registration Standard: Criminal History" (1 July 2015) sets out ten factors that the National Board will consider in deciding whether a health practitioner's criminal history is relevant to the practice of their profession under the National Law. Those factors are considered below: 1. The nature and gravity of the offence and its relevance to health practice 1. The Offences for which the practitioner was convicted are objectively serious and attract a maximum penalty of 6 months' imprisonment. They were regarded by Magistrate Atkinson as "serious" and the type of offences where gaol sentences are seriously considered. Her Honour described the offending as "a more serious example because there is a breach of trust as well". 2. The Offences were directly connected to the practitioner's practise as a registered nurse and involved a breach of the trust of Person A. The circumstances of the Offences are "inconsistent with the honourable practise of an honourable profession, which regards integrity trustworthiness and high moral and ethical values as an integral part of the practise of medicine": FLJ at [93]. 3. Following the PRU's investigation, the practitioner was subjected to orders prohibiting her, in her profession as a nurse, from having possession of and supplying Schedule 8 drugs of addiction and any Schedule 4 restricted substances. 4. In the interests of protecting the health and safety of the public, upon receiving the PRU Report, the Council took urgent interim action to impose Condition 1 on the practitioner's registration, prohibiting her from working as a registered nurse, subject to review. 1. The period of time since the health practitioner committed, or allegedly committed, the offence At the time of this hearing, approximately two years had passed since the commission of the Offences. 1. Whether a finding of guilt or a conviction was recorded for the offence The practitioner pleaded guilty and was convicted for the Offences. 1. The sentence imposed for the offence The practitioner was sentenced to a Community Corrections Order for 12 months pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) commencing on 18 August 2022 and expiring on 17 August 2023. 1. The ages of the health practitioner and of any victim at the time the health practitioner committed the offence The practitioner committed the Offences during the period from January 2019 to May 2022 and was aged 47 when the Offences were discovered. She was therefore approximately 44-45 years of age when she first started committing the Offences. The practitioner has been a registered nurse for approximately 26 years and assisted in the management of MND patients who, because of their diagnosis, would have been vulnerable. 1. Whether or not the conduct that constituted the offence has been decriminalised The conduct that constituted the Offences has not been decriminalised. 1. The health practitioner's behaviour since committing the offence The practitioner satisfactorily completed her Community Corrections Order and does not appear to have reoffended. Complaints Two and Four have been proven, in that the practitioner did not comply with her statutory and professional obligations since committing the Offences. 1. The likelihood of future threat to a patient of the health practitioner In the absence of objective evidence that the practitioner's iatrogenic opioid misuse disorder is in remission and having regard to the risk factors for potential relapse (including her pain that is not presently well managed, her sleep that remains chronically poor secondary to pain, her lack of engagement with a pain management specialist, and her acknowledged difficulty in finding a GP to manage her medications or coordinate with the practitioner's specialists), there is potential for the practitioner to pose a risk to a patient in the event of a relapse. 1. Information given by the health practitioner As noted in these reasons, the practitioner has expressed her remorse in her Written Response and when giving her oral evidence. However, we are not persuaded that the practitioner has reflected on, or expressly acknowledged, the gravity of her conduct. Ms Zoing attempted to justify her conduct because of Covid and yet her conduct commenced almost 15 months before the pandemic took hold. 1. Any other matter of relevance Dr Samuels' report dated 9 April 2024, after seeing the practitioner, almost one year and eight months after her conviction, expressed the view that Ms Zoing still did not have an appreciation of the seriousness of her conduct or the gravity of the proceedings. Dr Samuels also stated that he thought Ms Zoing has underlying personality factors including "a sense of entitlement" that may have contributed to the initial notification. His report dated 9 April 2024 noted the following: [Para 76] "When I last assessed her she appeared to be minimising these issues and a hair test following that assessment was positive for opioids and benzodiazepines and she had missed an earlier scheduled test". [Para 77, referring to neuropsychological testing by Dr White in October 2022] "Dr White also commented that at the time despite the stress she was under Ms Zoing minimised symptoms of depression and anxiety, that she was guarded and superficial and noted this was unusual. Although she now acknowledges some anxiety, she doesn't appear anxious and her partial insight into the events that led to her notification does raise some concerns about her personality functioning." [Para 60] "I asked Ms Zoing what the other issues were. She did not seem all that clear on these matters. I pointed out to her that a major concern had been the 245 prescriptions for opioids and benzodiazepines, and I asked her what she was going to tell the Tribunal about this. She said, "I shouldn't have done it". She said it was "an act of desperation during Covid". She said her usual GP had retired and taken all his notes, no one else knew her history and the pain clinic was not operating. She said she had worked in the area for twenty years and said she had often stamped scripts for other patients. She said [Person A] had given her scripts from time to time (this is denied in [Person A's] statement)." [Para 61] "Ms Zoing said: "I didn't think anyone would mind". I pointed out to her again that this was a very serious issue and she said she realises that now but at the time she was in significant pain and was not thinking through the issues."

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Concluding remarks

Ms Zoing was dealt a cruel blow in 2010, suffering a devastating medical event from which she endured loss of mobility and crippling pain. Through stoicism, she rehabilitated herself to graduate from a wheelchair to walking with crutches, and returned to nursing practice despite having debilitating neuropathic pain and physical disability. Her symptoms were treated with an armoury of medications including opioids from which she developed iatrogenic opioid dependency. Nonetheless, Ms Zoing focussed on her career, assisting patients with MND, and put their needs before her own. Her written submissions and oral evidence about her dedication to patient care were uncorroborated by objective evidence of her performance but were unchallenged, and we accept them as sincere statements.
We acknowledge that, in her Written Response and in giving her oral evidence, Ms Zoing deeply apologised for her actions and acknowledged that fraudulently using/writing scripts was wrong. However, her statements to Magistrate Atkinson, the PRU investigating officer and Dr Samuels demonstrate that she focuses on the mitigating circumstances rather than acknowledging the gravity of her conduct. On that basis, we consider Ms Zoing has limited insight into her behaviour.
In making the orders below, this Tribunal sends a message to health professionals about the standards expected of the nursing profession.
The period of two years of disqualification from registration will allow Ms Zoing time to self-care and consult with her treating doctor, a neurologist, a pain specialist, and a Drug and Alcohol specialist to manage her symptoms and disabilities and, in particular, her opioid dependence such that it does not overwhelm her. If Ms Zoing adopts Dr Samuels' recommendation that she also engages with a neuropsychologist to assist her to reflect upon and gain deeper insight into the gravity of her conduct, her rehabilitation is likely to be more successful.
The period of disqualification will enable Ms Zoing to engage with relevant government agencies to obtain all applicable benefits for her care. It will also afford her the time to engage with professional associations to obtain advice on a course of relevant professional development and develop a clear, detailed plan for ongoing learning that supports her intention to possibly re-enter the profession (which this Tribunal understands is important to her).

Health Care Complaints Commission v Zoing

At a glance

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Judgment (50 paragraphs)

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Legislation Cited (5)

Cases Cited (38)