Marquinez v Health Care Complaints Commission

NCAT Occupational|2017-10-04

Counsel: Ms Tronson (Respondent) File Number(s): 2017/00163643

REASONS FOR DECISION

This is an application of Mr Orlando Marquinez for reinstatement to the register of nurses.
On 30 October 2014, the Tribunal found certain complaints established against Mr Marquinez and: 1. Cancelled Mr Marquinez's registration as a nurse; and 2. Ordered that at least two years elapse from 30 October 2014 before Mr Marquinez could apply for a review of the cancellation order, see Health Care Complaints Commission v Marquinez [2014] NSWCATOD 125.
For the reasons that follow, the application is refused, and Mr Marquinez must pay the respondent's costs.

Evidence

Mr Marquinez provided very limited documentation in support of his application. His documents consisted of: 1. A Certificate III in Business dated November 2016, and a record of the subjects studied for that course; 2. A statement that he was registered with an employment agency for a period of at least mid-2016 to mid-2017, and that he "attends his appointments on a Weekly basis"; 3. Supportive references from two friends.
The respondent relies upon a volume of documents, including: 1. Evidence concerning the complaints before the Tribunal leading to its decision in 2014; 2. Evidence concerning Mr Marquinez's conviction on 2 September 2015 for offences related to the matters before the Tribunal in 2014; 3. Evidence concerning Mr Marquinez's conviction on 7 July 2016 of offences arising out of Mr Marquinez working as a nurse while his registration as a nurse was cancelled; and 4. Psychiatric reports provided by Dr Anthony Samuels (including one dated 30 August 2017).
The respondent's counsel Ms Tronson indicated that if the applicant chose not to give any evidence to the Tribunal, the respondent would invite the Tribunal to draw an adverse inference against the applicant for his failure to do so. In those circumstances, the applicant was sworn, gave some brief oral evidence in answer to questions from the Tribunal, and was then cross-examined by Ms Tronson.
The applicant accepted that invitation was sworn and gave oral evidence. Initially, he spoke to the various incidents generally. After setting out his position briefly, he was then cross-examined by the respondent's counsel. We set out below a summary of the important components of the applicant's evidence.
The applicant is 50 years old, unmarried, of Philipino origin, and now an Australian citizen. The applicant currently lives above an Asian grocery shop, where he works about 15 hours a week.
The applicant candidly admitted that he was guilty of the complaints heard earlier by the Tribunal, at which he did not appear. He said he knew that what he did was wrong, and that he really feels guilty. He wants to return to nursing as it is the only job he has ever really known, and the only job at which he can earn sufficient money to support his father who lives in the Philippines.
He is happy to do "whatever it takes" to return to nursing, which he loves. He says that he definitely will not go back to drugs. That all stopped when his mother suffered a stroke in July 2015. He says that he has now changed. While he had been addicted to drugs, this was not the way he was brought up. He realises now that drugs brought him to a "really horrible stage", where he lost everything.
He currently has debts of about $25,000, and is under financial pressure, including an indirect pressure to support his family. He now has new friends, and avoids all his old drug-taking friends.
The applicant also spoke very candidly admitted that he practised as a nurse for a period of some 13 months, immediately after his registration was cancelled by the Tribunal. He said that he did not have a choice, and that practising nursing was the only way he could survive. He now feels regretful about this, and recognises that he put patient safety at risk.
The applicant said he was asking for the chance to prove himself, he wants to redeem himself in his own eyes and those of his family.
He agreed that he had no independent evidence of abstinence from drugs to show the Tribunal. He denied drinking or smoking. He agreed that he had not engaged in any counselling or drug rehabilitation, but said that he was willing to do so. He thought that this might help.
The applicant also told us that he not kept up to date with his CPD requirements.

Relevant principles

The Tribunal accepts the respondent's submissions that the applicable principles in reinstatement cases include the following: 1. The Tribunal's jurisdiction in relation to reinstatement orders is protective: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155; 2. The power "is to be exercised in a way that ensures that any health practitioner who is the subject of a reinstatement order is of good character and both fit and competent to practise their profession": Donnelly at [12]; 3. The onus of proof lies on the former practitioner seeking reinstatement, requiring an evidentiary basis and with the standard of proof being the civil standard of the balance of probabilities: Donnelly at [12]. 4. The Tribunal "must approach the matter of reinstatement with a healthy scepticism" and "with the greatest caution and only upon solid and substantial grounds": Donnelly at [13]; 5. The Tribunal ought to be open to the possibility that a former practitioner has demonstrated that he or she is now fit for reinstatement to the register: Donnelly at [14]-[15]. There may also be public interest considerations served by permitting reinstatement: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 at [39]. 6. The passage of time since deregistration without further infraction does not imply that former practitioner is a changed person - clear proof is required to show that some years later the person has established themselves as a different person: Mnyandu at [38]; 7. Improved insight into conduct which led to the cancellation of registration in the first place, and into the personal factors which resulted in the complaints in question, will often be relevant to any application for reinstatement, as will any steps taken to demonstrate such improved insight as well as that the former practitioner is a changed person: see Donnelly, Mnyandu; Ristevski v Medical Council of NSW [2016] NSWCATOD 18.
To these principles can be added the following matters which appear in Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]. That paragraph summarises a lengthy passage of the Nursing and Midwifery Tribunal in Scully v Health Care Complaints Commission [2013] NSWNMT 7 as follows: The applicant bears the onus of proving that he is a fit and proper person to be engaged in the profession of nursing as an endorsed enrolled nurse (see [41] and the authorities there referred to); The standard of proof to be applied by the Tribunal is the civil standard of proof, the balance of probabilities, tempered by the requirements of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336); (see [41] and the authorities there referred to; see too In Re Jason Martin [2010] NSWMT 13 at [41]); The purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction is exercised is for the protection of the public (see [47] and the authority there referred to); The power to reinstate should "be exercised with great caution and only upon solid and substantial grounds" (see [48] and the authority there referred to); There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance (see [49] and the authority there referred to); In making an assessment of the applicant's worthiness and reliability for the future the Tribunal may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register. At [50] the Tribunal referred to In Re Jason Martin [2010] NSWMT 13 where the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner would behave in the future and remarked that "the decision in the particular case is to a greater or lesser extent dependant upon the Tribunal's assessment of the applicant".
We note the observations of the High Court in Australia in Re Lenehan (1948) 77 CLR 403;[1948] HCA 45 per Latham CJ, Dixon and Williams JJ at [27] (also referred to by the respondent)" When such a person applies for reinstatement he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal . . . the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds (Incorporated Law Institute of New South Wales v. Meagher [1909] HCA 87; (1909) 9 CLR 655).
Finally, we note that: 1. An objective and "guiding principle" of the national registration and accreditation scheme provided for by the National Law is the protection of the public through ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (see s (3)(2)(a) of the National Law; 2. In all applications in which the Tribunal in NSW is involved, the protection of the health and safety of the public is the paramount consideration (see s 3A).

Consideration

The applicant presented as someone who had seen the error of his ways, who wanted to reform, to rehabilitate himself and to return to a profession that he loved. However, he had not obtained any advice before filing his application for review, with the result that the evidence that the Tribunal would ordinarily expect to see was not available. Save for the personal references to which we have referred, which are of little weight as they make no reference to the applicant's history, including his criminal history and drug taking, all there was the fact of the applicant having completed a Certificate III in Business, and his uncorroborated evidence which he gave during the course of the hearing.
The respondent correctly submitted that the central question is Mr Marquinez's fitness to practise, and that he bears the onus of proving his insight and his abstinence from drugs, in circumstances where he had lied in the past, including to Dr Samuels, and in practising when he was not registered to do so. While he appeared to be genuine, and sincere, and remorseful at the hearing, the Tribunal could not be satisfied on any matter simply on the applicant's uncorroborated say-so.
We think that there is substance in the respondent's submissions. Given that: 1. The applicant bears the onus of proving that he is a fit and proper person to be engaged in the profession of nursing as an registered nurse; 2. An applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears a heavy onus of proving the case; 3. The jurisdiction we exercise is for the protection of the public; 4. The power to reinstate should be exercised with great caution and only upon solid and substantial grounds; 5. The "guiding principle" of the national registration and accreditation scheme provided for by the National Law is the protection of the public through ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered and; 6. In applications in NSW the protection of the health and safety of the public is the paramount consideration, we are unable to conclude, on the basis of the materials before us, and in light of Mr Marquinez's uncorroborated evidence, that he has discharged the necessary onus for us to order him to be reinstated to the Register.
We propose to dismiss the application for reinstatement. In addition, we propose to make an order pursuant to s 1263B of the National Law, as sought by the applicant. We further propose that a period of six months elapse before Mr Marquinez may apply again under s 163A of the National Law to the Tribunal to be reinstated to the Register.
Mr Marquinez needs to understand that while this is a minimum period before he can reapply, he is unlikely to be successful if he does not present independent and probative evidence to the Tribunal of his insight, his rehabilitation and his fitness to practise. He would also improve his chances of reinstatement if he could show a commitment to ongoing clinical and professional development, proof of abstinence from drugs, proof of ongoing engagement in drug counselling and rehabilitation services, and support from employers, friends and community workers, in references which make it plain that they are aware of Mr Marquinez's past and are therefore in a position to comment on his future. This list is not meant to be exhaustive, and we also suggest that Mr Marquinez obtain professional assistance before he reapplies.
We also propose to order that Mr Marquinez pay the respondent's costs as agreed or as assessed. We explained to Mr Marquinez during the hearing that this is a costs jurisdiction, and that were he to be unsuccessful in his application for reinstatement we would give consideration to ordering him to pay the respondent's costs. Mr Marquinez indicated that in those circumstances he would not oppose a costs order being made against him.

Orders The Tribunal orders that: 1. The application for reinstatement is dismissed. 2. Any further application by Mr Marquinez for re-instatement to the Register is to be heard by the Tribunal, and must not be made within a period of six months from the date of these reasons. 3. Mr Marquinez is to pay the respondent's costs, as agreed or as assessed.

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: 20 October 2017

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