Mew v Health Care Complaints Commission - [2020] NSWCATOD 129 - NSWCATOD 2020 case summary — Zoe

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Mew v Health Care Complaints Commission

[2020] NSWCATOD 129

NCAT Occupational|2020-08-04

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Source facts

Court

NCAT Occupational

Decision date

2020-08-04

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

(m) Within 14 days of commencing employment as an Enrolled Nurse, Ms Mew must give to the Council evidence that she has complied with the above condition. (n) Ms Mew must authorise the Council to exchange information with any person or current or future employer regarding any concerns in relation to compliance with these conditions. (o) Unless specified, Ms Mew is responsible for the costs associated with complying with these conditions. (3) The Council is the appropriate review body for the purposes of Division 8 of the National Law. (4) Ms Mew must pay the Commission's disbursements, as agreed or assessed. Catchwords: HEALTH - Professional registration and discipline - reinstatement of health practitioner HEALTH - Professional registration and discipline - whether practitioner has an impairment PRACTICE AND PROCEDURE - principles of open justice - whether appropriate to order the suppression of name of health practitioner COSTS - application of compensatory principle where applicant practitioner is successful in application for review of cancellation order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Health Records and Information Privacy Act 2002 (NSW) Nurses and Midwives Act 1991 (NSW) (repealed) Cases Cited: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 HCCC v CSM [2016] NSWCATOD 125 HCCC v CWY [2017] NSWCATOD 6 HCCC v Dr CRF [2016] NSWCATOD 120 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v Mew [2007] NSWNMT 17 Mew v HCCC [2012] NSWNMT 7 Texts Cited: Australian Health Workforce Ministerial Council, "Registration Standard: Recency of Practice" (1 June 2016) NCAT Policy 2, "Publishing Reasons for Decision" (October 2019) Nursing and Midwifery Council, "Regulatory Supervision Policy" (3 August 2018) Category: Principal judgment Parties: Melinda Mew (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: L Thomas (Respondent)

[3]

REASONS FOR DECISION

Former Registered Nurse, Melinda Mew, has a long-standing psychiatric disorder. Since 2008, she has been under the care of Neuropsychiatrist, Professor Perminder Sachdev, and has been treated with anti-psychotic medication.
Ms Mew now exercises the right conferred by s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law) to apply to the NSW Civil and Administrative Tribunal for review of the decision made in December 2007 by the Nursing and Midwifery Tribunal (NMT), to cancel her registration as a nurse: Health Care Complaints Commission v Mew [2007] NSWNMT 17 (the Cancellation Decision). The NMT found that Ms Mew suffers from an "impairment" and lacked "sufficient mental capacity" to practise nursing.
In 2012, Ms Mew unsuccessfully applied to the NMT for reinstatement of her registration: Mew v HCCC [2012] NSWNMT 7 (the Review Decision).
If the Tribunal exercises the power to make a reinstatement order, Ms Mew will be eligible to apply to the Nursing and Midwifery Board of Australia (the Board) to be registered in the profession of nursing. The parties agree that Ms Mew will be entitled to apply to the Board for registration as an Enrolled Nurse, not a Registered Nurse, because she has not practised as a Registered Nurse for over a decade, and, as a consequence, cannot satisfy the "Registration Standard: Recency of Practice" 1 June 2016, a registration standard approved by the Australian Health Workforce Ministerial Council issued under s 12(2) of the National Law. An applicant seeking registration in a health profession must meet any requirements for registration stated in an approved registration standard for the relevant profession: s 52(1)(e) of the National Law.
Ms Mew requests the Tribunal to reinstate her registration. She undertakes to comply with any conditions the Tribunal considers appropriate. The Health Care Complaints Commission (the Commission) neither supports nor opposes Ms Mew's application for reinstatement but submits that if the Tribunal decides to reinstate her registration, it is necessary and appropriate that it exercise the power to impose conditions on her registration.
For the reasons that follow, we have decided to reinstate Ms Mew's registration with conditions.

[4]

Tribunal cancels Ms Mew's registration

Ms Mew holds a Bachelor's degree in Nursing, conferred by the University of Sydney in 1999. In 1999 and 2000, Ms Mew worked as a Registered Nurse at Concord Hospital, Sydney and between October 2000 and January 2002, at Prince of Wales Private Hospital. In June 2002, Ms Mew commenced as a member of Royal North Shore Hospital's "casual nursing pool".
In January 2004, the Acting Chief Executive of the Northern Sydney Area Health Service notified the NSW Nurses and Midwifery Board of concerns raised by senior staff about Ms Mew's performance as a Registered Nurse: Cancellation Decision [9]-[18].
The Board in turn referred Ms Mew to Clinical Neuropsychologist, Dr Wayne Reid, for assessment. In a report dated 2 November 2004, Dr Reid wrote: Her premorbid level of intellectual ability was estimated to be at least within the normal range. This estimate is based on her ability to obtain entry into a degree in nursing. Assessment of her current level of intellectual functioning shows that she is having major problems in her intellectual skills, particularly affecting her verbal abstract reasoning, visual recognition and attention and perceptuo-motor speed. On a test of verbal abstraction, she appeared very concrete in her thinking and had problems in reasoning. By contrast, her non-verbal reasoning skills were within the average range .... Her performance on tests of memory revealed marked impairment in her ability to learn and retain logical verbal information in the form of prose passages and unrelated verbal material in the form of a word list over repeated learning trials. Further impairment in her memory was seen in her ability to recall complex visual information following a delay... Ms Mew had mild yet significant problems in planning and organising a complex activity ... More marked difficulties in concept formation and ability to adapt and regulate her behaviour given feedback and thinking quickly and flexibly.
In November 2005, Dr Reid reassessed Ms Mew, concluding that she did not have "the intellectual and cognitive capacity to work as a registered nurse". Dr Reid remained concerned about the underlying cause of Ms Mew's "cognitive problems" and recommended that she be assessed by a psychiatrist and a neurologist: Cancellation Decision at [21].
Neurologist, Dr McCusker, assessed Ms Mew in March 2006. He concluded that Ms Mew's neurological examination "appears to be essentially normal". He commented that Ms Mew's "history would be suggestive of frontal lobe dysfunction" however, he was unable to make a "definitive neurologic diagnosis". He recommended further investigation: Cancellation Decision at [23].
In May 2006 at the request of the NSW Nurses and Midwifery Board, Psychiatrist, Dr Anthony Samuels, assessed Ms Mew. In a report dated 23 May 2006, Dr Samuels commented that throughout the assessment, Ms Mew was "extraordinarily difficult" and "quite evasive". Dr Samuels concluded (Cancellation Decision at [25]): There certainly seems to be some organic brain dysfunction and whether or not this is due to a developmental disorder or a mental illness, is very difficult to know. There is the possibility that this represents some unusual prodrome of a psychotic illness, but the cognitive deficits identified by Dr Reid are more significant than those usually found in schizophreniform illnesses. There are certainly some frontal aspects to her presentation, and I suspect that her apparent lack of insight and inability to understand the nature of the situation that she finds herself in and the apparent indifference to the situation that she demonstrates today are a reflection of quite marked frontal lobe dysfunction.
Dr Samuels recommended that Ms Mew be referred for assessment and treatment by Neuropsychologist, Professor Sachdev. In Dr Samuels' opinion, Ms Mew was "not fit to practise any form of nursing until she has been adequately investigated, diagnostic clarification is reached and appropriate treatment instituted and clearance is received from her treating practitioners": Cancellation Decision at [28].
Ms Mew did not participate in the inquiry before the NMT, held in October 2007, to determine the complaint referred by the Commission alleging that she had an "impairment" (s 4A of the now repealed Nurses and Midwives Act 1991 (NSW)) and did not have "sufficient mental capacity to practise" nursing (s 4B of the Nurses and Midwives Act).
The NMT commented at [48] that the findings of Drs McCusker, Samuels and Reid were consistent with the "observational evidence from senior nursing staff at Royal North Shore Hospital". The NMT found at [50] "deficiencies in Ms Mew's clinical practice", specifically taking and recording clinical data, clinical assessment of patients, completing clinical tasks; receiving, interpreting and acting upon information from patients and colleagues.
The NMT found the complaint proven, commenting at [60]: [F]or the protection of the public, Melinda Mew should not return to nursing until she is able to demonstrate that she has recovered sufficient mental capacity, knowledge and skill to practise nursing safely and competently and that she does not suffer from mental conditions or disorders which detrimentally affect or are likely to detrimentally affect her capacity to practice nursing.

[5]

NMT dismisses Ms Mew's reinstatement application

In the intervening period between the making of the cancellation order (October 2007) and the proceedings before the NMT to determine Ms Mew's application for reinstatement (June 2012), Ms Mew worked as an Assistant in Nursing (AIN) through an agency. In addition, during that period she came under the care of Neuropsychiatrist, Professor Sachdev, and Clinical Psychologist, Dr Anne Nguyen. On Professor Sachdev's recommendation, in 2008 Ms Mew commenced taking antipsychotic medication.
Dr Nguyen and Professor Sachdev gave evidence at the hearing before the NMT. Each stated that Ms Mew's condition had improved significantly. Both were of the opinion that she was capable of working as a nurse.
According to Professor Sachdev, initially he found it difficult to diagnose Ms Mew's condition. After ruling out the possibility that Ms Mew had a brain disease or some form of neurodegenerative disorder, he made a tentative diagnosis of an "incipient form of schizophrenia or a schizophrenic form kind of illness but without full manifestation". On the basis of that conclusion, Professor Sachdev recommended that Ms Mew commence antipsychotic medication: Review Decision at [86], [87].
According to Professor Sachdev, after several months of taking antipsychotic medication "there was clear evidence of improvement": Review Decision at [88]. In his opinion, Ms Mew's "thought disorder had progressively, significantly improved", noting the opinion "of the people around her, her parents and her brother". In addition, in his opinion Ms Mew's "functional level had also improved and that she was much more independent compared to what she was like, say in 2007 or 2008": Review Decision at [88]. In his opinion, there had been reasonable improvement in her psychiatric status and "her disorder is reasonably in control at this point": Review Decision at [96].
Dr Samuels reassessed Ms Mew in May 2012. In his view, during that assessment Ms Mew displayed evidence of thought disorder. Like Professor Sachdev he concluded that Ms Mew has "some underlying schizophrenic form type illness". Noting that Ms Mew "appeared to be functioning as an AIN", Dr Samuels stated: Seeing her today, I have significant doubts that she would cope in the role of Registered Nurse and, even if supervised, I think she would find it quite difficult to follow instruction, to report back clinical information accurately and clearly, to prioritise information and to make appropriate decisions and judgements in emergency situations: Review Decision at [57].
Dr Samuels stated that he had "serious doubts" about Ms Mew's capacity to practise as a Registered Nurse: Review Decision at [56]. He suggested that Ms Mew be permitted "to enrol in some type of Reconnect course and to have a formal appraisal in relation to her nursing skills", reasoning: If her performance was rated as safe and adequate to practise as a Registered Nurse (which I think is unlikely), the matter could then be reviewed and a decision made as to whether she could return to some limited nursing role that was highly supervised. The fact that her cognitive deficits seem to improve when she was given Risperdal suggests that these deficits may be, in part, related to her underlying psychotic illness and no other clear cause of those problems have yet been elucidated. What does seem clear, however, is that problems with thought disorder and moderate underlying cognitive dysfunction remain: Review Decision at [60].
The Tribunal preferred Dr Samuels' opinion over that expressed by Professor Sachdev, concluding that there was insufficient evidence to support findings that Ms Mew currently did not have an impairment and had sufficient mental capacity to practise as a Registered Nurse: Review Decision at [127].

[8]

Dr Samuels' opinion about Ms Mew's fitness to work as an Enrolled Nurse

In June 2020 Dr Samuels reassessed Ms Mew at the request of the Commission. This was the third occasion Dr Samuels had assessed Ms Mew. Because of COVID-19 restrictions, the assessment was conducted via Zoom.
In a report dated 3 June 2020, Dr Samuels wrote: 1. Ms Mew appears to have some form of "atypical psychosis which affects her thinking"; 2. Ms Mew continues to exhibit "concrete thinking" and "mild thought disorder"; 3. Ms Mew continues to lack insight into her condition and while willing to continue to take anti-psychotic medication, apart from acknowledging its calming effects, she appears to be unclear about the reasons she is taking that medication.
In Dr Samuels' opinion, Ms Mew's "cognitive issues" prevent her functioning independently as a Registered Nurse. However, in his opinion, with conditions, Ms Mew has the capacity to competently and safely practise as an Enrolled Nurse. These include that Ms Mew: 1. continue to see Professor Sachdev and her GP on a regular basis; 2. work under close supervision, ideally in a "lower acuity environment"; 3. at least initially, have a limited role in administering and checking medication.
In oral evidence Dr Samuels stated that Ms Mew was "substantially better" than when he last saw her in 2012. Commenting on the observation in his report that Ms Mew's "affect was blunted", he stated that the fact the interview was conducted by Zoom and Ms Mew was nervous, undoubtedly contributed to that affect. However, even accounting for those factors, in his view, Ms Mew's presentation was "mildly unusual".
Professor Sachdev commented that while Ms Mew is not "overly expressive", he would not describe her affect as "blunted". While acknowledging that she is a "concrete thinker", Professor Sachdev did not share Dr Samuels' view that Ms Mew has a thought disorder. However, he agreed with Dr Samuels' opinion that Ms Mew lacks insight into her condition, explaining that this was a feature of her condition. He pointed out that despite her lack of insight, Ms Mew has at all times scrupulously adhered to any treatment recommendation made by him and has never missed an appointment.
Professor Sachdev disagreed that it was necessary to impose conditions on Ms Mew's registration by restricting her role in administering medication. However, given the likelihood that, at least initially when she commenced as an Enrolled Nurse, Ms Mew would be "somewhat anxious" knowing her "every move" was being watched, working in a high stress area such as intensive care might not be advisable. Emphasising that the performance of most people is affected by stress, Dr Sachdev stated that over the period Ms Mew was studying full-time and working part-time (mid-2017 to mid-2019) he did not observe any deterioration in her condition or decline in her functional capacity.

[10]

Conclusion

In exercising the power to make orders under s 163B of the National Law, we must give paramount consideration to the health and safety of the public (s 3A of the National Law). Ms Mew bears the onus of establishing that she can safely and competently practise as an Enrolled Nurse.
Dr Samuels and Professor Sachdev agree that Ms Mew's condition has significantly improved since she commenced taking anti-psychotic medication in 2008. The difference between them about Ms Mew's ability to work safely and competently as an Enrolled Nurse is one of degree. In contrast to Professor Sachdev, Dr Samuels considers that at least initially, it is necessary that several conditions be imposed on Ms Mew's registration.
Providing Ms Mew continues to receive treatment, we find that her condition is unlikely to detrimentally affect Ms Mew's capacity to practise as an Enrolled Nurse. In addition, we find that Ms Mew has sufficient mental capacity to practise as an Enrolled Nurse. Further, we are satisfied that Ms Mew is likely to continue to adhere to the treatment recommendations made by her doctors and to comply with any conditions imposed on her registration, including those she opposes and considers unnecessary.
In deciding to reinstate Ms Mew's registration as an Enrolled Nurse with conditions, the following considerations in our view are significant: 1. Ms Mew's history of working as an AIN since 2010, with largely the same employer, apparently without incident; 2. Ms Mew's recent academic success in completing a Diploma in Nursing; 3. The medical opinion that since 2008 there has been a significant improvement in Ms Mew's "atypical psychosis"; 4. Ms Mew's long history of conscientious compliance with treatment recommendations; 5. The likelihood that Ms Mew will comply with all conditions imposed on her registration; 6. Professor Sachdev's firmly held opinion that provided she continues to adhere to treatment recommendations Ms Mew will be able to work safely and competently as an Enrolled Nurse.
In addition to these favourable considerations, we have also taken into account: 1. Dr Samuels' residual concerns about Ms Mew's ability to work as an Enrolled Nurse, especially in a challenging high stress environment; 2. The possibility, if not probability, that on occasion Ms Mew may find herself in a work environment where the support and supervision provided is sub-optimal; 3. The challenging and unpredictable nature of the work undertaken by an Enrolled Nurse; 4. The risk to patient health and safety if nursing care is sub-standard.
As noted, the parties are in broad agreement about the form of conditions. The main point of difference is the period Ms Mew should be subject to conditions. We have decided that a period of six rather than 12 months as proposed by the Commission is appropriate. It balances Ms Mew's legitimate concerns that a 12-month period may render her unattractive to prospective employers, while at the same time protecting the health and safety of the public by permitting the Nursing and Midwifery Council to extend the period Ms Mew is subject to conditions, if it considers that to be appropriate. In addition, we have decided to strengthen the proposed condition restricting Ms Mew's ability to administer medication by mandating that she undertake further training recommended by the Council or her nurse manager before that condition is lifted. We have decided that the Council or Ms Mew's nurse unit manager are best placed to decide what type of additional training in medication administration Ms Mew ought to undertake, after having the opportunity to observe or receive reports on her performance at work.

[12]

Should a non-publication order be made?

Prior to the hearing, Ms Mew lodged an application seeking an order prohibiting the publication of her name. At the hearing, through her solicitor, Ms Mew advised that she no longer pressed that application. After the hearing Ms Mew wrote to the Tribunal stating that she had had a change of heart and now sought a non-publication order in respect of her name in these proceedings, and, in addition, the proceedings the subject of the Cancellation Decision and the Review Decision. The Commission opposes Ms Mew's application.
Ms Mew submits that the disclosure of her medical history and other personal information is likely to impact her safety and put her at risk of identity theft. In addition, she states that the publication of her name will cause her "undue distress, embarrassment and anxiety". Further, she contends that the publication of her name and personal details, contravenes the Health Records and Information Privacy Act 2002 (NSW).
Clause 7(1)(b)(iii) of Schedule 5D to the National Law provides that the person presiding in proceedings before the Tribunal may, if they think it is appropriate "in the particular circumstances of the case", direct that the name of nominated persons involved in the proceedings, including a registered health practitioner, not be published. The power to make an order under this provision vests in the presiding member of the Tribunal. Accordingly, the decision to make a non-publication order in this case was made by the presiding member, Principal Member Britton. In the interests of consistency, in these reasons the maker of the decision will be referred to in the plural.
In exercising the power to make orders under cl 7(1)(b)(iii) of Sch 5D to the National Law, the presiding member must have regard to the norm of open justice established by ss 49(1) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and s 165K of the National Law. The authorities have consistently emphasised that the power to depart from the norm must be exercised sparingly.
As noted by Acting Judge K P O'Connor in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [16], it is an "unavoidable incident" that a health practitioner the subject of proceedings brought under the National Law will often suffer a deep sense of shame and embarrassment and will be concerned about the impact of the proceedings on other members of their family. His Honour explained at [25] the rationale for disclosing the health practitioner's identity: Disciplinary proceedings and disciplinary orders have as their ultimate purpose the protection of the public. The public has an interest in knowing whether a practitioner has been the subject of a complaint. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of health practitioners. Other members of the profession have an interest in knowing whether a colleague has been the subject of disciplinary proceedings, and the nature of the offence.
As pointed out by the Commission, the power to make non-publication orders in respect of a health practitioner who is the subject of the initial disciplinary proceedings or subsequent review proceedings is seldom exercised. Generally, it is confined to cases where there is compelling evidence establishing something "special, exceptional, or out of the ordinary". See, for example, HCCC v CWY [2017] NSWCATOD 6 at [110], where the practitioner was in the early stages of recovery from a major psychiatric illness, and the reasons for decision referred to delusional fears and beliefs expressed during the period she was untreated; HCCC v CSM [2016] NSWCATOD 125 at [89], where the Tribunal found that there was a material risk that the disclosure of the practitioner's identity might inadvertently enable a patient to be identified, and also that the practitioner's mental health was at risk; HCCC v Dr CRF [2016] NSWCATOD 120 at [140], where there was expert evidence that publication of the practitioner's name would put them at risk of suicide.
Undoubtedly, the Tribunal has power to make the orders sought by Ms Mew. However, we have decided not to exercise that power. In reaching that decision we accept that the publication of Ms Mew's name, together with the history to the review applications and details of her mental health, are likely to cause her significant embarrassment and distress. Ms Mew appears to be a very private person and unsurprisingly finds the prospect of her mental health details being published to be deeply concerning, if not alarming. We accept that over the past decade having applied herself to her studies and work, and having worked with her treating practitioners to stabilise her mental health, Ms Mew is upset at the prospect that those achievements may be clouded by the publication of details of her mental health. While we have considerable sympathy for Ms Mew, we are not persuaded that her concerns warrant a departure from the norm of open justice.
With respect to Ms Mew's legitimate concern about the risk of identity theft, consistent with NCAT Policy 2 (October 2019) at [10], we have not included in these reasons "personal identifiers" such as Ms Mew's date of birth and address.
With respect to the submission that the publication of these reasons for decision contravenes the Health Records and Information Privacy Act 2002 (NSW), we note that the Act does not operate to prohibit the publication of reasons for decision which include personal information: s 13.

[13]

Orders 1. Ms Mew's registration as an Enrolled Nurse is reinstated under s 163B(1) of the Health Practitioner Regulation National Law (NSW). 2. Pursuant to s 163B of the Health Practitioner Regulation National Law (NSW), for a period of six months, or such longer period as determined by the Nursing and Midwifery Council (the Council) Ms Mew's registration is subject to the following conditions: Health conditions 1. Ms Mew is to attend for treatment by a Neuropsychologist and General Practitioner of her choice (the treating practitioners), at a frequency to be determined by the treating practitioners. 2. Ms Mew is to provide the Council with the names and contact details of the treating practitioners. 3. Every three months, or at such frequency as determined by the Council, Ms Mew is to provide the Council with evidence of her attendance (frequency and compliance) with the treating practitioners. 4. Ms Mew is to authorise the treating practitioners to inform the Council of any of the following: 1. termination of treatment; 2. any significant change in Ms Mew's health status, including a significant temporary change, and 3. any serious/immediate concerns about Ms Mew's fitness to practise. 1. Ms Mew is to take medication as directed by her treating practitioners. 2. Ms Mew is to attend for health assessment by a psychiatrist appointed by the Council within six months of being registered as an Enrolled Nurse. The cost of the assessment will be borne by the Council. Practice Conditions 1. Ms Mew is to practise under "indirect close" supervision in accordance with the Council's Regulatory Supervision Policy and as subsequently determined by the appropriate review body. 2. Ms Mew must: 1. nominate a supervisor for approval by the Council (the approved supervisor), within two weeks of commencing work, or as directed by the Council; 2. authorise the approved supervisor to provide to the Council, at quarterly intervals, or at such periods as directed by the Council, a written report about her performance; 3. authorise the Council to provide the authorised supervisor with a copy Mew v Health Care Complaints Commission [2020] NSWCATOD 129 and any relevant decisions. 1. Ms Mew is not to administer medication unless and until she has successfully completed additional training as determined by the Council or the relevant Nurse Unit Manager; 2. Ms Mew must not engage with an agency for the purpose of nursing; 3. Ms Mew is not to have supervisory responsibility for any other health practitioner or student, whether registered or not; 4. Within seven days of commencing employment as an Enrolled Nurse, Ms Mew must inform the employer of the conditions on her registration and give the employer a copy of the reasons for decision in Mew v Health Care Complaints Commission [2020] NSWCATOD 129. 5. Within 14 days of commencing employment as an Enrolled Nurse, Ms Mew must give to the Council evidence that she has complied with the above condition. 6. Ms Mew must authorise the Council to exchange information with any person or current or future employer regarding any concerns in relation to compliance with these conditions. 7. Unless specified, Ms Mew is responsible for the costs associated with complying with these conditions. 1. The Council is the appropriate review body for the purposes of Division 8 of the National Law. 2. Ms Mew must pay the Commission's disbursements, as agreed or assessed.

Mew v Health Care Complaints Commission

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