Hollamby v Health Care Complaints Commission

Background

1. The following background facts are largely taken from the Second Decision and are not in dispute.
2. Ms Hollamby was first registered as an Enrolled Nurse in July 2008. In March 2010, the Queensland Nursing Council was notified of concerns about Ms Hollamby's employment at Nambour Hospital, relating to, among other things, administration of medication and general patient care. The following month, Ms Hollamby gave an undertaking to the Council to enter a period of "supportive mentoring".
3. In February 2013, three months after Ms Hollamby commenced employment as an Enrolled Nurse in NSW, the Queensland Board of the Nursing and Midwifery Board of Australia received a "work progress report" detailing concerns about Ms Hollamby's work performance.
4. In May 2013, following receipt of further complaints relating to Ms Hollamby's work performance, the Queensland Nursing Council exercised its powers under s 150 of the National Law to suspend Ms Hollamby's registration as an Enrolled Nurse.
5. In June 2014, following a referral from the Queensland Nursing Council, an Impaired Registrants Panel recommended that conditions be imposed on Ms Hollamby's registration, including that she undertake another course in Enrolled Nursing. Ms Hollamby refused to adopt those recommendations. The suspension of Ms Hollamby's registration continued.
6. In March 2015, following a request made by Ms Hollamby for a review of the decision to suspend her registration, the Queensland Nursing Council lifted the suspension and imposed revised conditions on her registration.
7. On 11 April 2016, the first day of hearing of the complaint lodged by the Commission with the NCAT, Ms Hollamby surrendered her registration as an Enrolled Nurse. As noted, the Tribunal (the Original Tribunal) declared that had Ms Hollamby not surrendered her registration, it would have exercised its power to cancel her registration.
8. In October 2018, a differently constituted Tribunal (the Review Tribunal) dismissed Ms Hollamby's application seeking reinstatement of her registration. The Review Tribunal decided not to exercise the discretion to make an order under s 163B(5) of the National Law preventing Ms Hollamby from seeking review of its decision for a specified time, reasoning at [55]: If Ms Hollamby is able to obtain better evidence about her cognitive function and mental capacity to practice, she ought not be denied the opportunity to make a further application for review.

Epilepsy

1. Ms Hollamby has suffered from epilepsy since infancy. The seizures occur without warning. In February 2013, after being seizure free for 13 years, Ms Hollamby suffered a series of seizures after working as an Enrolled Nurse over seven consecutive nights and accidentally missing a dose of antiepileptic medication. Ms Hollamby suffered further seizures in July 2015, July 2018, August 2018 and October 2018.
2. Ms Hollamby attends the Royal Prince Alfred Hospital Epilepsy Clinic. A neurologist with the Clinic, Dr Kaitlyn Parratt, in a report dated 11 December 2017, wrote that providing Ms Hollamby remained compliant with her medication (then twice daily, Topamax 75mg and Lamictal 100mg), there was a low risk of seizures. In oral evidence given at the hearing on 29 October 2019, Dr Parratt stated that she remained of that opinion, notwithstanding that after preparing that report, Ms Hollamby had suffered a further seizure (on 2 July 2018). Following that seizure, Dr Parratt increased Ms Hollamby's dosage of Lamictal from 100mg to 150mg, twice daily. Dr Parratt testified that while she could not say that Ms Hollamby will never have another seizure, given that at the time of the last seizure Ms Hollamby had been seizure free for several years, has a history of responding well to and being complaint with antiepileptic medication, and is in good health, the prognosis is positive.
3. In her report Dr Parratt wrote that Ms Hollamby is fit to return to work as an Enrolled Nurse provided she avoids working night shift, explaining that sleep deprivation could significantly reduce her "seizure threshold".
4. In reports dated 26 July 2017 and 30 April 2018, Dr Peter Holloway, Ms Hollamby's GP since June 2013, wrote that in his opinion Ms Hollamby is fit to work as an Enrolled Nurse. He described Ms Hollamby as a "stable epileptic". In oral evidence given on 29 October 2019 Dr Holloway stated that notwithstanding Ms Hollamby's recent seizure, he stood by that opinion, pointing out that her medication has now been adjusted. When questioned, Dr Holloway disagreed with the proposition that a possible cause of the seizure that occurred in July 2018 was that Ms Hollamby had become tolerant of antiepileptic medication.
5. While the original Tribunal was satisfied that, as alleged by the Commission, Ms Hollamby "lacked insight into the impact of epilepsy on her behaviour", the Tribunal made no express finding about whether that disorder affected Ms Hollamby's capacity to practise.
6. The Review Tribunal noted at [44] that the opinion expressed by Drs Parratt and Holloway that Ms Hollamby's seizure disorder is "now well controlled and is unlikely to detrimentally affect her capacity to practise as an Enrolled Nurse, notwithstanding the evidence of a recent seizure", was unchallenged. The Tribunal noted that prior to the seizure in July 2018, Ms Hollamby had been seizure free for several years, she was complying with treatment recommendations, was fastidious in taking her antiepileptic medication, was in good health, and was aware of and avoided stressors which might reduce her seizure threshold, such as alcohol, illicit drugs and sleep deprivation. The Tribunal concluded as [45] that "for the foreseeable future, Ms Hollamby's seizure disorder is unlikely to detrimentally affect her capacity to practise as an Enrolled Nurse".
7. In a report dated 19 July 2019, Dr Parratt wrote that she remained of the opinion that from the point of view of epilepsy control Ms Hollamby is fit to return to work. She noted that Ms Hollamby had been seizure free for 12 months on stable medication and is compliant with her medication regime. In that report Dr Parratt made no mention of the seizures in August 2018 and October 2018.
8. In these proceedings Ms Hollamby gave evidence that she is in good health, remains in the care of a neurologist and is compliant with medication and all treatment recommendations.

Cognitive impairment

1. In the proceedings before the Original Tribunal, the Commission contended, and Ms Hollamby admitted, that Ms Hollamby: 1. Lacks insight into the impact of epilepsy on her behaviour. 2. Suffers from cognitive impairments in relation to: (a) Non-verbal reasoning; (b) Working memory; (c) High-level frontal executive skills which affect: (i) Her capacity to form concepts; (ii) Her ability to adapt and regulate behaviour after being given feedback (iii) Her ability to think quickly and flexibly.
2. Those contentions were largely based on the opinion expressed by clinical neuropsychologist, Dr Wayne Reid who assessed Ms Hollamby at the request of the Nursing and Midwifery Council in February 2014 and again in December 2015.
3. In a report dated 22 December 2015, Dr Reid wrote that on re-examination, he found no evidence of any significant change in Ms Hollamby's intellectual abilities, which he characterised as "low average", since the first assessment he conducted in February 2014. He reported that testing in December 2015 revealed that:

• Ms Hollamby's verbal and visual memory abilities were within the "normal range"
• Ms Hollamby demonstrated deficits in non-verbal reasoning and some aspects of executive functioning
• Ms Hollamby demonstrated significant improvement in adaptability and concept formation.

1. In his opinion, the reported areas of impairment, together with a degree of lack of insight into her seizure disorder and self-monitoring, would affect her ability to practise as an Enrolled Nurse without supervision.

2017 neuropsychological assessment

1. In July 2017, clinical neuropsychologist, Dr Zoe Thayer assessed Ms Hollamby. Dr Thayer shared Dr Reid's opinion that Ms Hollamby's intellectual ability was in the "low average range". On testing of attention and information processing speed, memory, visuoconstruction, language and executive function, Dr Thayer found the majority of Ms Hollamby's test scores to be "within or slightly above the low to average range".
2. Dr Thayer noted that on testing, Ms Hollamby showed some "mild variability" on attentional tasks and mild weakness on some measures of verbal fluency. In addition, Dr Thayer reported that Ms Hollamby had difficulty inhibiting automatic verbal responses. Dr Thayer opined that this variability might be long-standing, related to Ms Hollamby's seizure disorder, or the result of taking Topamax for an extended period. She noted that Topamax is "well known to have significant negative effects on aspects of cognition in some people, in particular on working memory and verbal fluency".
3. Commenting on Dr Thayer's assessment, in her report of 11 December 2017, Dr Parratt wrote that from "a cognitive performance perspective, it was our neuropsychologist's opinion that [Ms Hollamby] would be fit to return to work as an enrolled nurse with the condition that she not work night shift". Dr Holloway shared that opinion.

2019 neuropsychological assessment

1. Clinical psychologist, Dr Jeanette Stewart assessed Ms Hollamby in July 2019. A report prepared by Dr Stewart dated 12 August 2019 was tendered in these proceedings. In addition, Dr Stewart gave oral evidence.
2. In preparing her report Dr Stewart reviewed Ms Hollamby's medical history together with the neuropsychological assessments undertaken by Drs Reid and Thayer and conducted a further neurological assessment. Dr Stewart found that consistent with previous assessment Ms Hollamby's general intellectual ability fell within the "low average range". Dr Stewart noted that Ms Hollamby's scores were broadly consistent with the results of previous assessments, except in the areas of working memory and auditory memory where Ms Hollamby's scores fell within the "borderline range". She wrote that Ms Hollamby's results suggest a "modality specific weakness" and ongoing weakness in terms of her working memory, verbal and non-verbal reasoning and in her ability to think quickly and flexibly.
3. In Dr Stewart's opinion, Ms Hollamby is not currently fit to practice "independently" as an Enrolled Nurse. However, in Dr Stewart's opinion Ms Hollamby should be given the opportunity to demonstrate competency to practice in the context of a trial period under supervision. In answer to the question, "If fit to return what restrictions or conditions, if any should the Tribunal consider imposing?", Dr Stewart wrote: As noted above, while I felt there were impairments in cognitive functioning that could impact on Ms Hollamby's ability to practice, I am also cognizant of the fact she has been working and studying, apparently with pleasing results. The Tribunal however, are best placed to decide what restrictions or conditions she should work under. Nonetheless, the Tribunal may wish to consider granting Ms Hollamby with a trial period as an Enrolled Nurse with certain restrictions, e.g., that she should be supervised if giving out medication until she is deemed competent. I feel she should be restricted to working in a low level demand setting (e.g., non-acute area) where there are repetitive aspects to her role and support available. This could provide the Tribunal the opportunity to see if Ms Hollamby can work around the cognitive weaknesses she has and indeed, whether there is any impact on her fitness to practice. She may require a re-examination of certain skills if these have not been covered in her current studies.
4. Dr Stewart stated that she was familiar with the tasks and duties of Enrolled Nurses having started off her working life as a nurse. In her view the "acid test" of Ms Hollamby's competence to practise will be whether she is "able to do the job on the day".
5. Dr Stewart wrote that she was concerned that Ms Hollamby still has an impairment which could affect her ability to practise as an Enrolled Nurse. However, she emphasised the importance of taking into account the progress Ms Hollamby has been making in terms of her current work as an Assistant in Nursing and in undertaking nursing studies. According to Dr Stewart, the findings on neuropsychological assessment must be assessed having regard to those positive factors.

Recent employment history

1. Since surrendering her registration as an Enrolled Nurse in 2016, Ms Hollamby has worked in the aged care sector. Ms Hollamby worked part-time until mid-2017 and thereafter on an occasional basis through a nursing agency. Since March 2019, Ms Hollamby has been working for the St Vincent's Aged Care Service as an Assistant in Nursing as a casual employee on a regular basis at two Sydney aged care facilities.
2. In support of her first review application, Ms Hollamby tendered two references prepared by former work colleagues. In a reference dated 21 January 2015, Registered Nurse Dr Robyn Daskine wrote that she had been working closely with Ms Hollamby since the opening of St Brigid's Green aged care facility in August 2014. Dr Daskine wrote that in her role as a "care support employee", Ms Hollamby approached her duties in a planned and professional manner, was a team player who demonstrated an ability to work autonomously, and was very adaptable to changes within her environment. She recommended Ms Hollamby for a position as an Enrolled Nurse (Medication Endorsed).
3. In an email to Ms Hollamby sent in May 2018, Assistant in Nursing, Phisami Thipasabsaprang wrote that she had worked with Ms Hollamby for "one to two years". She wrote that at work Ms Hollamby was organised and able to manage her time, demonstrated empathy for residents and colleagues, was positive and encouraged others, and followed instructions in safe manual handling.
4. Ms Hollamby's claim that she is not aware of any complaints being made about her work as a care assistant or Assistant in Nursing since 2016 is uncontradicted.

Education

1. Ms Hollamby was enrolled in a Bachelor of Nursing at the Australian Catholic University. The University awarded Ms Hollamby:

• credit for 13 units of study undertaken at another educational institution
• a credit grade for four units of study
• a pass grade for six units of study
• a fail grade for three units of study, and
• a "withdrawn/fail" for three units of study. Ms Hollamby has subsequently been awarded a pass for these units.

1. To complete the degree, Ms Hollamby must complete several subjects which have a clinical practice component. According to Ms Hollamby, the University has not given her permission to undertake those subjects, because of her registration status.
2. In March 2018, Ms Hollamby successfully completed an online program on medication calculation that is endorsed by the Australian College of Nursing.

Competence to practise

1. The original Tribunal found that Ms Hollamby was not competent to practise as an Enrolled Nurse. That finding was based on the results of four assessments conducted between January 2009 and December 2013. The following summary of those assessments derives from paragraphs [35]-[38] of Health Care Complaints Commission v Hollamby [2016] NSWCATOD 91.
2. In the first assessment conducted in January 2009, the Sunshine Coast-Wide Bay Health Service District assessed Ms Hollamby as being "not safe in the delivery of patient care and ability to problem-solve". In undertaking that assessment, the Service District applied the Australian Nursing and Midwifery Council Competency Standards for Enrolled Nurses.
3. In the second assessment conducted in January 2010, the Sunshine Coast-Wide Bay Health Service District assessed Ms Hollamby's ability to administer medication. The Service assessed Ms Hollamby as not being competent to administer medication.
4. In October 2013, Ms Hollamby failed to achieve the requisite mark in two written examinations administered by the Australian College of Nursing. One of the examinations involved drug calculation.
5. In a clinical assessment conducted in December 2013 by the Australian College of Nursing, Ms Hollamby was found to demonstrate "major deficits" in applied nursing skills across the following areas: (i) Safe storage and administration of medications (ii) The management of intravenous therapy (iii) Wound care (iv) Pain management (v) Protocol understanding in the surgical setting (vi) Accuracy in reporting, handover and documentation including admission, assessment charts and progress notes.
6. Ms Hollamby's competence to practise has not been formally assessed since December 2013.
7. The Review Tribunal concluded at [53] that the "available evidence does not positively establish that she has the mental capacity to practise and that her cognitive impairment is unlikely to detrimentally affect her capacity to practise".

Submissions

1. Ms Hollamby urges the Tribunal to reinstate her registration subject to conditions. The Commission neither consents to, nor opposes the reinstatement of Ms Hollamby's registration.
2. While acknowledging that she is cognitively impaired in several domains, Ms Hollamby contends that it is nonetheless appropriate for the Tribunal to exercise the power to reinstate her registration subject to "comprehensive and targeted" conditions. She proposes a suite of conditions (the Proposed Conditions), which include that she must work under close supervision, not work nightshift or through an agency, maintain a therapeutic relationship with a Neurologist and a General Practitioner, and undertake a further neurological assessment and report the results of that assessment to the Nursing and Midwifery Council. She contends that on the basis of those conditions, the Tribunal can be confident that she will not pose a risk to the health and safety of patients. The Commission agrees with that proposition.
3. Ms Hollamby concedes that it is not currently possible to accurately predict whether she will be competent to practise as an Enrolled Nurse without the Proposed Conditions. However, she contends that the following factors taken in combination favour the exercise of the discretion to make orders granting conditional registration. First, she has successfully completed the large part of a tertiary degree in nursing. She points out that the reason she has not completed that degree is unrelated to her academic or cognitive ability; rather, she has not been eligible to undertake the remaining subjects because she does not hold registration as an Enrolled Nurse. The second factor is her recent successful work history as an Assistant in Nursing and as a care assistant. While acknowledging that the duties and responsibilities of those roles are different to those of an Enrolled Nurse, she contends that her proven ability to successfully undertake those roles is consistent with the contention that her cognitive limitations and deficits are unlikely to detrimentally affect her capacity to practise as an Enrolled Nurse. Third, it is Dr Stewart's opinion that, notwithstanding her concerns about those limitations, it is not a forgone conclusion that they will detrimentally affect Ms Hollamby's capacity to practise as an Enrolled Nurse. Dr Stewart's view is that to enable a proper evaluation to be undertaken of whether Ms Hollamby's cognitive weaknesses will impact on her fitness to practise, Ms Hollamby ought be afforded the opportunity to work under the Proposed Conditions. Fourth, Dr Stewart's opinion, with which the Commission agrees, is that if Ms Hollamby were to work in a controlled environment under supervision, it is unlikely that she would pose a risk to patients. Fifth, Ms Hollamby has demonstrated a commitment to and passion for the profession of nursing, which, while not determinative of whether she will be competent to practise, indicates that she is likely to bring to her work diligence and commitment. Finally, Ms Hollamby points to the careful consideration she has given to, and her willingness to comply with, the Proposed Conditions.

Should the power to reinstate Ms Hollamby's registration as an Enrolled Nurse subject to conditions be exercised?

1. In exercising our power to make orders under s 163B of the National Law, the paramount consideration is the protection of the health and safety of the public (s 3A of the National Law). Ms Hollamby bears the onus of establishing that she is a fit and proper person to practise as an Enrolled Nurse. This is no easy task given the evidence that Ms Hollamby is cognitively impaired and six years ago was found to demonstrate "major deficits" in five key areas of nursing skills.
2. We agree with and adopt the principles governing the exercise of the power on review of a cancellation order, summarised in the Second Decision at [11]-[13].
3. We are satisfied, as was the Review Tribunal, that for the foreseeable future, Ms Hollamby's seizure disorder is unlikely to detrimentally affect her capacity to practise as an Enrolled Nurse, notwithstanding that since the review hearing Ms Hollamby has had two further seizures.
4. In addition, we are satisfied that notwithstanding her demonstrated cognitive weaknesses, if Ms Hollamby were to work under the Proposed Conditions, any risk posed to the health and safety of patients would be minimal.
5. The more difficult question is whether in circumstances where it is not possible to be satisfied that Ms Hollamby's cognitive impairment is unlikely to detrimentally affect her capacity to practise as an Enrolled Nurse, it is appropriate to exercise the power to reinstate her registration subject to conditions. The inability of the Review Tribunal to be so satisfied on the material then available, was the basis for its decision to dismiss Ms Hollamby's application for reinstatement: at [54]. The Review Tribunal did not have the advantage of being provided with the Proposed Conditions, which the parties agree mitigate any risk Ms Hollamby might pose to patients. Nor did the Review Tribunal have the benefit of Dr Stewart's careful assessment together with her opinion that given Ms Hollamby's recent successes in studies and employment, the results of neuropsychological testing might not necessarily render Ms Hollamby not competent to practise as an Enrolled Nurse. In Dr Stewart's opinion, unless and until Ms Hollamby is given a trial period of employment, albeit one under supervision, it is not possible to say with any certainty whether her cognitive weaknesses will adversely impact on her fitness to practise.
6. While the considerations are finely balanced, especially given the evidence of Ms Hollamby's cognitive impairment and the circumstances which led to the suspension of her registration in 2016, we have decided that it is appropriate to exercise the discretion to reinstate Ms Hollamby's registration as an Enrolled Nurse, subject to the Proposed Conditions. In reaching that decision we give considerable weight, as did Dr Stewart, to Ms Hollamby's recent success in studies and employment, which sits at odds with the cognitive deficits in several domains that was revealed by neuropsychological testing.
7. Mindful that the paramount consideration is the protection of the health and safety of the public, we have decided to add to the Proposed Conditions several additional requirements, including that Ms Hollamby work under supervision of nurse with at least three years' experience. In addition, we have strengthened the requirements governing Ms Hollamby's obligation to disclose her impairments to future employers.

Orders 1. Ms Hollamby's registration as an Enrolled Nurse is reinstated under s 163B(1) of the Health Practitioner Regulation National Law (NSW), subject to the following conditions: Health Conditions 1. Ms Hollamby is to maintain a therapeutic relationship with a Neurologist and a General Practitioner at a frequency to be determined by the practitioners. The treating relationships should continue until this condition is reviewed or until the treating practitioner determines that further treatment is not required. 2. Ms Hollamby is to provide the Nursing and Midwifery Council with the name and contact details of all treating practitioners and authorise each treating practitioner to inform the Council of termination of treatment, serious/immediate concerns about fitness to practise or repeated failure to attend appointments. 3. Ms Hollamby is to attend for health assessment by a neuropsychologist appointed by the Nursing and Midwifery Council within 6 months of being registered as an Enrolled Nurse. The cost of the assessment will be borne by the Council. Practice Conditions 1. Ms Hollamby must not engage with an agency for the purpose of nursing. 2. Ms Hollamby must not work night duty. 3. Ms Hollamby may only practise as an Enrolled Nurse under the supervision of a Registered Nurse with at least three years' experience who does not have any conditions on their practice. The supervisor must be: 1. on-site and working in close proximity within the ward or unit where Ms Hollamby is working; 2. able to oversee and provide advice about Ms Hollamby's practice when necessary; and 3. ensure that Ms Hollamby does not administer medication unless supervised at all times. 1. Ms Hollamby must provide the Nursing and Midwifery Council with the name, contact details and resume of the nominated supervisor within two weeks of commencing work. 2. Ms Hollamby must authorise the supervisor to provide, at monthly intervals, a written report about her performance as assessed against the standards for practice for an Enrolled Nurse approved by the Nursing and Midwifery Board of Australia. 3. Before commencing employment as an Enrolled Nurse, Ms Hollamby must inform the employer of the conditions on her registration and give the employer a copy of the reasons for decision in Hollamby v Health Care Complaints Commission [2019] NSWCATOD 189. 4. Ms Hollamby must provide the Nursing and Midwifery Council with the name and contact details of each employer and evidence that she has complied with Condition 1(i), before commencing work as an Enrolled Nurse. 1. Sections 125 and 127 of the National Law are to apply should Ms Hollamby's principal place of practice be anywhere in Australia other than in NSW so that the appropriate review body in those circumstances is the Nursing and Midwifery Board of Australia. 2. The Nursing and Midwifery Council is the appropriate review body for the purposes of Division 8 of the National Law.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2019