Ms Howard was registered as a nurse in 1987. Over a number of years she has dealt with mental health issues. These issues have included periods of treatment in and out of hospital.
Ms Howard is currently unemployed and has not worked as a nurse since February 2017. She receives a government income support payment.
Since 1997 Ms Howard has had a number of interactions with the Nursing and Midwifery Council of New South Wales (the Council) and its predecessor, the Nurses and Midwives Board (the Board) arising from her health issues. The Board first imposed conditions on Ms Howard's registration on 28 May 2009.
The most recent conditions on Ms Howard's registration with which we are concerned were imposed by a decision of the Council made on 3 July 2019.
On 24 July 2019 Ms Howard lodged an external appeal seeking review of the decision made by the Council on 3 July 2019 not to remove conditions imposed on her registration under s 152J of the Health Practitioner Regulation National Law (the National Law).
[2]
Background
Ms Howard has been the subject of a number of complaints made to the Board in 1997, 2001 and 2006 regarding her mental health. These complaints were resolved administratively without any further action by the Board.
On 16 February 2009 the Board received a notification from Dr Huw Raggatt, Hunter New England Area Health Service (as it then was) that Ms Howard was being treated for depression and alcohol dependence at James Fletcher Psychiatric Hospital at Newcastle. The Board referred Ms Howard for a health assessment.
On 23 March 2009 Ms Howard attended a psychiatric health assessment. On 28 May 2009 an Impairment Panel recommended that conditions be imposed on her registration. Ms Howard agreed to these conditions.
On 7 September 2009 a second Impairment Panel reviewed the conditions on Ms Howard's registration and recommended amended conditions. Ms Howard did not agree to the panel's recommendation and wanted the Board to remove those conditions requiring her to attend Alcoholics Anonymous meetings and to provide pathology reports for Full Blood Profile and Liver Function Testing. Once those conditions were removed, Ms Howard agreed to sign them on 25 November 2009.
On Ms Howard's request, a third Impairment Panel again reviewed the conditions on her registration and recommended to remove them. The conditions were subsequently lifted on 11 February 2010.
On 6 June 2011 a notification was made to Council by Ms Howard's then employer Lingard Private Hospital. On 21 September 2011 Ms Howard attended a psychiatric health assessment. On 14 October 2011 the Council referred Ms Howard to an Impaired Registrants Panel (IRP) and requested she provide a report from her treating psychiatrist regarding her treatment, health status and fitness to practise as a registered nurse. On 16 February 2012 the IRP recommended not to impose any conditions on Ms Howard's registration.
On 20 December 2016 the Council received a mandatory notification from Ms Howard's then employer, Kurri Kurri District Hospital. It alleged that on 3 November 2016 Ms Howard had presented for night shift duties under the influence of OxyContin; and, on 25 and 26 November 2016 had administered her own prescription medication to a patient. As a result Ms Howard was placed under supervision and rostered for day shifts only. The complaint alleges that a police welfare check was carried out after Ms Howard failed to attend an investigation interview scheduled by her employer on 12 December 2016 and did not present for work on 13 December 2016. The complaint also alleges that Ms Howard had ingested prescription medications and was articulating intent for self harm. She was admitted to an Acute Psychiatric Hospital. This notification triggered an urgent hearing under s 150 of the National Law. Section 150 proceedings occur in the context of the Council's obligation under the National Law to take action at any time if it is satisfied it is appropriate to do so for the protection of the health and safety of the public.
Ms Howard denied a number of key aspects of this complaint including that she administered medication to a patient, had ingested prescription medications and had expressed any intentions of self harm.
On 12 January 2017 delegates of the Council imposed conditions on Ms Howard's registration for the following reasons:
"… the delegates were concerned about ongoing possible depression and anxiety and Ms Howard's current health management, specifically the combination of her medications.
…
The delegates also held concerns for self-care, in particular her response to stress, use of alcohol and current therapeutic relationships. The delegates noted a long history of mental health admissions.
…
Therefore, the delegates believed Ms Howard should not manage medications, work night duty nor work for an agency and she should have some formal supervision."
The delegates referred Ms Howard to an IRP under s 150F of the National Law and imposed the following conditions:
"1. The registrant must practise under the indirect or direct supervision of a registered nurse (Division 1) who does not have any conditions on his/her practice. The supervisor must be:
a. on-site and working in close proximity within a ward or unit with the registrant; and
b. able to oversee and provide advice about the registrant's practice when necessary.
2. The registrant must not administer, check or handle medications.
3. The registrant must not work night duty.
4. The registrant must not engage with an agency for the purpose of nursing.
5. The registrant must:
a. inform all current nursing employers of the conditions immediately and provide the Nursing and Midwifery Council of New South Wales with each employer's name and contact details;
b. inform all future nursing employers of the conditions, and provide the Nursing and Midwifery Council of New South Wales with the name and contact details of each employer, before commencing work/employment as a registered nurse."
On 7 February 2017 Ms Howard was notified that her employment had been terminated and she had been placed on the NSW Health Service Check Register.
On 21 April 2017 Ms Howard attended a psychiatric health assessment. On 31 May 2017 the IRP recommended imposing new conditions on Ms Howard's registration which further restricted her practice. The new conditions replaced the s 150 conditions.
These conditions included remote supervision and prevented Ms Howard on any occasion working as a sole practitioner. She was required to see a psychiatrist for treatment; and to attend monthly for liver function testing, measurement of Carbohydrate Deficient Transferrin (CDT) levels and full blood count. At the time Ms Howard did not agree to these conditions. The panel referred the matter under s 152L of the National Law to the Council as a complaint. The Council then considered initiating interim proceedings. When Ms Howard was advised of this, she decided on 14 June 2017 to agree to the recommended conditions under s 152J of the National Law.
On 6 November 2017 Ms Howard sought a review of the conditions on her registration. On 13 December 2017 a psychiatric health assessment was conducted by the Council and Ms Howard was referred to a further IRP under s 152K of the National Law. On 8 February 2018 Ms Howard voluntarily agreed to modified conditions on her registration under s 152J of the National Law. That is, Ms Howard was still required to work under supervision, disclose conditions on her registration to employers, undergo monthly CDT testing, see a psychiatrist for treatment and attend a health assessment in 6 months.
On 27 September 2018 Ms Howard attended a further psychiatric health assessment as required by a previous IRP condition as recommended on 8 February 2018. Dr Samuels, Consultant Psychiatrist, provided an Independent Health Assessment report dated 27 September 2018. Following this, the Council decided to refer the matter to an IRP under s 152D of the National Law.
On 27 November 2018 the IRP recommended to impose new conditions on Ms Howard's registration. Ms Howard voluntarily agreed with these conditions. The conditions still required Ms Howard to work under supervision, disclose conditions on her registration to employers and see a psychiatrist for treatment. In addition, the panel required Ms Howard to participate in breath testing for alcohol and attend for review by a psychiatrist appointed by Council on a six monthly basis. In essence the panel noted that:
"Ms Howard's health had been assessed on five occasions
Ms Howard had been the subject of s.150 proceeding on 12 January 2017
Ms Howard has attended six IRPs, and Dr Samuels' review of Ms Howard's health on 27 September 2018 found she had an impairment; being a longstanding mood and anxiety disorder and a problem of opioid and alcohol misuse which impact her professional functioning."
On 7 December 2018 Ms Howard, through her solicitor, applied under s 152K for a review of the conditions on her registration. The application was for the removal of all the conditions or, in the alternative, the removal of supervision and alcohol breath testing conditions.
On 18 January 2019 the Council considered Ms Howard's request and decided to refer her to attend health assessments. The Council also decided that Ms Howard must be referred to an IRP under s 152K of the National Law, following receipt of the health assessment reports.
On 29 March 2019 Dr Alexandra Walker, neuropsychologist, provided a report regarding Ms Howard's health assessment. Dr Walker did not find Ms Howard to have "cognitive impairment". Her report stated "she is functioning at a similar level to her peers of the same age and education in most areas." Dr Walker was of the opinion that "from a cognitive perspective Ms Howard would be capable of returning to work as a Registered Nurse, given adherence to appropriate health conditions."
In an updated report of 1 May 2019 Dr Samuels maintained his view that Ms Howard had an impairment, which he recorded as a mood and anxiety disorder and a problem of opioid and alcohol misuse. Dr Samuels also expressed the view that although her conditions seem to be in remission, they still have the potential to impact upon her professional functioning.
In summary, Dr Samuels recommended alcohol monitoring conditions, noting that this may be an impediment to employment. In his view, continued monitoring and oversight was desirable until Ms Howard was re-established in a nursing role and there was objective evidence that she was functioning well in the workforce and maintained abstinence from alcohol and opiates.
In a letter dated 13 June 2019 Ms Howard's General Practitioner, Dr Andrew Pratt, stated:
"Ms Howard has had stable euthymic mood with stable psychotropic medication and psychotherapy. She does not have impairment of cognition or concentration due to her medication. She has stopped drinking alcohol. She has had good response to radiofrequency nerve blockade for the relief of chronic head and neck pain. Ms Howard has support from family, friends, myself and her treating psychiatrist, Dr K Newnham. In my opinion Ms Howard has regained the ability to safely and competently perform the duties of a registered nurse in the last twelve months."
On 3 July 2019 the IRP review was held. The panel recommended that some conditions imposed on 27 November 2018 be removed and others be slightly amended. However conditions in relation to remote supervision and continued psychiatric treatment remained.
In essence Ms Howard says these conditions are punitive and she cannot obtain employment with them on her registration.
[3]
Legislative Context
Section 3A of the National Law provides that:
3A Objective and guiding principle [NSW]
In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
Impairment is dealt with in Division 4 of Part 8 of the National Law at sections 152 to 152M. They relevantly provide as follows:
s 152B allows a Council to have a practitioner's health assessed;
s 152D allows a Council to refer a matter to an Impaired Registrants Panel;
s 152I(2)(b) allows the Panel to recommend that the practitioner agree to conditions being imposed on his or her recommendation;
s 152J allows a Council to impose recommended conditions if satisfied that the practitioner has voluntarily agreed to that action; and
s 152K allows a practitioner to apply for a review of any conditions imposed on their registration under s 152J.
Under s 159(1)(e) of the National Law, a practitioner who is subject to voluntary conditions may appeal to the Tribunal against a Council's decision to impose such conditions. The provision states:
159 Right of appeal [NSW]
(1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession -
…
(e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K.
On hearing an appeal, the Tribunal has the following powers:
159C Tribunal's powers on appeal [NSW]
(1) On an appeal against a decision of a Council, the Tribunal may by order-
(a) confirm the decision; or
(b) set aside the decision; or
(c) set aside the decision and make a new decision (being a decision that the Council could have made).
(2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
[4]
Ms Howard's case
Ms Howard gave oral evidence in which she provided details about her attempts to secure work as a nurse and an assistant in nursing. She explained that she had secured job interviews but upon telling potential employers about the conditions attached to her registration, it was clear to her that they were an impediment to being offered the job. From her perspective she explained that someone of her age, she is 60 years old, is not going to get a job with conditions attached to their registration.
Ms Howard referred to the incident at Kurri Kurri Hospital in which she was accused of giving a patient her own medication. Ms Howard explained that she had not actually given the patient the medication. That had been done by another staff member. However, she conceded that making her own personal medication available to a patient was improper. After she was demoted and lost the right to administer medication, she felt disempowered and disgraced. She felt she had no one to whom to talk.
Ms Howard had obtained some work as an assistant in nursing but this too had ceased. She believed this was because she did not have the relevant certificate for this type of work. She obtained some work in the community assisting others in care tasks such as shopping, however this involved travel, she was paid for a fixed number of hours which was significantly less than the hours she worked, and she had to use her own car giving rise to further personal expense. In her position continuing this work was not viable.
Ms Howard admitted that she had a history of depression. She admitted to alcohol dependency in the past and to resorting to alcohol in a crisis. All of these issues had been aired before the IRP. She had been prescribed Seroquel in the past and had taken it as prescribed. However she found the Seroquel unsuitable. She believed it had contributed to her sounding intoxicated. She set out the financial and other difficulties she has faced arising from her inability to secure paid work.
Ms Howard has continued to see health professionals. Under questioning she was able to identify a number of markers which were suggestive of deterioration in mood. She contended she was able to recognise when her mood changed. If her mood changed for the worse, she would manage this by consulting her treating health care professionals.
Ms Howard explained that for all intents and purposes, she had given up alcohol. This claim was supported by reported CDT measurements in 2018 in the months of March, August, September, October, and November; and in 2019 in the months of June and October which showed no evidence of excessive alcohol intake.
Ms Howard provided a number of health reports and testimonials.
Dr Pratt is Ms Howard's General Practitioner. He provided a report dated 4 October 2019. In this report Dr Pratt indicated that Ms Howard consulted with him at regular appointments. He indicated that Ms Howard had been consistent in her mood, thought processes and temperament. She had been able to deal with difficult situations as they arose.
Dr Newnham, Consultant Psychiatrist, has been Ms Howard's long term treating psychiatrist for many years. Dr Newnham provided a report dated 16 September 2019. In this report she stated relevantly as follows:
"Ms Howard has in the past had issues with excessive use of alcohol and opiate medication. This however was in the context of severe pain which has now resolved with treatment. She does not take any prescribed opiate medications and is now abstinent from alcohol. She is on modest doses only of psychotropics, doses that do not impair her cognition or result in excessive sedation.
… She has been attending reviews with myself on a very regular basis from February 2017 until the present, with ongoing appointments planned approximately each three weeks. Ms Howard has always attended punctually for appointments. I have over recent months been able to reduce her psychotropic medication to … a significant reduction from several years earlier. Her mood has not shown any signs of deterioration.
Despite the ongoing frustration and disappointment with being unable to obtain employment, Ms Howard has retained an active lifestyle and is now exercising regularly, enjoys gardening and is heavily involved with a local Christian church group."
Dr Newnham referenced the report of Dr Walker which concluded that based on an objective neurological assessment, Ms Howard did not have a cognitive impairment within the meaning of the National Law. Dr Walker concluded that Ms Howard was functioning at a similar level to her peers of the same age and education in most areas. Dr Newnham stated that this conclusion was consistent with her repeated subjective clinical examinations of Ms Howard over an extended period.
Ms Howard provided recent references from two former nursing colleagues; Ms Morgan and Ms Lehmann. Both nurses attested to Ms Howard's clinical knowledge. Neither had any concerns regarding Ms Howard's treatment or management of patient care. Ms Morgan was Ms Howard's after hours manager at Kurri Kurri Hospital. Ms Morgan was aware of the incident in relation to Ms Howard's personal medication being administered to a patient in circumstances when no ward stock was available. Ms Morgan had not found Ms Howard to demonstrate suicidal ideation or intent to self-harm. To her knowledge Ms Howard did not attend to patient care whilst under the influence of opiates.
[5]
The Council's case
The Council submitted that in the light of the assessment by Dr Samuels, it was open to the IRP to make the recommendations that it did and, for the Council to accept those recommendations and decide to leave the conditions on Ms Howard's registration in place.
The Council observed that while Ms Howard is subject to a condition requiring her to be supervised in practice the supervision is at the lowest level, being "remote" supervision. Further the "health" conditions on Ms Howard's registration require her to maintain therapeutic relationships with a general practitioner of her choice and a psychiatrist of her choice, and to be reassessed by a Council appointed practitioner in 6 months. It was submitted that these conditions were again at the lower, if not the lowest, level of restriction.
In the light of the low level of the conditions imposed on Ms Howard's registration and the paramount consideration as set out in section 3A of the National Law, the Council submitted that the IRP's recommendation to continue to impose conditions on Ms Howard's registration was appropriate at the time it was made and remains appropriate.
The Council's position was that the Appeal should be dismissed and that its decision of 3 July 2019 be affirmed.
[6]
Conclusions
In our view Ms Howard has been subject to conditions for long enough. There is no practical utility to the conditions. This is because she has not been able to secure employment. In essence the conditions have been unable to serve their purpose which was to provide some objective evidence as to Ms Howard's progress in a nursing role. We accept her evidence that the existence of the conditions on her registration combined with her age have made it difficult for her to obtain employment.
In Ms Howard's circumstances, the practical impact of the conditions on her registration has been to draw her into in a vortex. She has been unable to move forward and work towards a resolution.
The allegations against Ms Howard which led to the s 150 proceedings have never been fully tested. Ms Howard was not subject to a conduct hearing, and we note that she denies key aspects of the allegations.
There is evidence before us from two former colleagues in which neither had any concerns regarding Ms Howard's treatment or management of patient care. Ms Morgan who worked with Ms Howard at Kurri Kurri Hospital had not found Ms Howard to demonstrate suicidal ideation or intent to self-harm. To her knowledge, Ms Howard did not attend to patient care whilst under the influence of opiates.
We accept the evidence of Ms Howard's treating health care professionals. This evidence indicates that her mood is even and stable, and she engages with them regularly.
Ms Howard has in the past had issues with excessive use of alcohol and opiate medication. We accept the evidence of her treating psychiatrist that this was in the context of severe pain which has now resolved with treatment. Ms Howard does not take any prescribed opiate medications.
We accept the objective evidence of recent CDT levels. This evidence supports Ms Howard's claim that she is not consuming alcohol in an unsafe manner.
There is no evidence before us which suggests that Ms Howard has ever attended to patient care whilst under the influence of opiates.
We accept Ms Howard's evidence that she is aware of and able to recognise triggers in monitoring her own mental health. She has attended every health assessment and made herself available for every testing and appointment that has been required of her. In view of her compliance in this respect, she says and we have no reason to doubt, that if her mental health deteriorates she will seek treatment from her health care professionals.
Having had the benefit of hearing Ms Howard's evidence, in our view, the totality of her experience of the process including her attendance at IRP panels, section 150 proceedings and indeed this appeal has left an impression on her. The disclosures she has had to make have caused her embarrassment and shame.
Ms Howard presented as a person with a great passion for nursing and a commitment to the safety of her patients. In our view Ms Howard's experience of a variety of interventionist processes means that she is acutely aware of the potential consequences on her registration if she does not closely monitor and address her mental health.
In reaching these views we have considered the opinion of Dr Samuels. We acknowledge Dr Samuel's view that Ms Howard has an impairment, which he records as a mood and anxiety disorder and a problem of opioid and alcohol misuse. Dr Samuels is of the view that although Ms Howard's conditions seem to be in remission, they still have the potential to impact upon her professional functioning.
We understand the need for a cautious approach which is implicit in Dr Samuel's views. However balancing that view against the totality of the evidence before us, including from Ms Howard's treating clinicians that her mood is even and she is doing well under their treatment, we are satisfied that there is little risk of any potential relapse actually impacting on her ability to practise competently and safely.
In our view Ms Howard's passion for nursing combined with the salutary experience of the processes she has been through persuades us that she will take preventative and remedial action to ensure that her mental health issues do not impact on her professional functioning. Any further relapse, which is not adequately addressed by her and has the potential to impact on patient care, would inevitably bring her back into a process which it has taken a considerable period of time from which to extricate herself.
We are satisfied that the protection of the public is not compromised by the removal of the conditions on her registration.
For these reasons we conclude it is appropriate to set aside the decision of the Council dated 3 July 2019.
[7]
Order
1. The decision of the Nursing and Midwifery Council of New South Wales dated 3 July 2019 is set aside.
2. The Tribunal orders that all conditions on Ms Howard's registration be removed.
[8]
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
[9]
Amendments
22 November 2019 - Second order added.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 November 2019