Nelson v Health Care Complaints Commission

NCAT Occupational|2022-11-08

(e) the practitioner is to: (i) authorise the treating practitioner to inform the Council of any failure to attend for treatment, termination of treatment, or if there is a significant change in health status (including a significant temporary change); and (ii) provide the Council with the professional details of the treating practitioner; (f) for a period of 3 years from the date the Tribunal makes a reinstatement order, to attend for treatment by a registered General Practitioner of the Applicant's choice. The frequency of the treatment is to be determined by the treating practitioner but for the first year shall be no less than once a month. The practitioner: (i) is to authorise the treating practitioner to inform the Council of any of the following: failure to attend for treatment, or termination of the treatment, or a significant change in health status (including a significant temporary change); and (ii) must provide the Council with the professional details of the treating practitioner; (g) for a period of two years, the Applicant shall submit to regular psychiatric review for assessment and monitoring of mental health should occur at a frequency of every 6 months and a report provided to the Council; (h) the Applicant shall also attend a drug and alcohol counsellor prior to making an application for registration and provide a letter of advice from the counsellor as to recommended management strategies which may be appropriate to him to manage his relationship with alcohol and such letter to be provided to the National Board for its consideration as to a further condition on his registration; (i) the appropriate review body for the purpose of a review of these conditions under sections 163‑163C of the National Law is the Council when the Applicant has a principal place of practice in New South Wales. In the event that the Applicant's principal place of practice is anywhere in Australia other than in New South Wales the appropriate review body shall in those circumstances be the relevant National Board. (2) There is a non‑publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of Patient A and Person A listed in the schedule to the Complaint. (3) The costs associated with the application shall be determined by the Tribunal on the papers in due course. Catchwords: HEALTH - Nurse - reinstatement application - previously surrendered registration - earlier Tribunal hearing - failure to maintain boundaries - relationship with mental health patient - steps to rehabilitation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Asar v Medical Council of New South Wales Bahramy v Medical Council go NSW [2014] NSWCATOD 116 Briginshaw v Briginshaw (1936) 60 CLR 336 Chen v Medical Council of New South Wales [2021] NSWCATOD 33 Coe v Health Care Complaints Commission [2013] NSWNMT 12 Dawson v Law Society of NSW [1989] NSWCA 58 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 Haber v Health Care Complaints Commission [2018] NSWCATOD v 16 Health Care Complaints Commission v Nelson [2019] NSWCATOD 22 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Jan v Health Care Complaints Commission [2021] NSWSC 350 Ng v Health Care Complaints Commission [2018] NSWCATOD 105 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Re Jason Martin [2010] NSWMT 13 Re Mansoor Haider Zaidi [2006] NSWMT 6 Reimers v Medical Council of NSW [2015] NSWCATOD 38 Scully v Health Care Complaints Commission [2013] NSWNMT 7 Shah v Health Care Complaints Commission (2014) NSWCATOD 94 Sundaraja v Health Care Complaints Commission [2020] NSWCATOD 144 Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 Texts Cited: Nil Category: Principal judgment Parties: Faron James Nelson (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: K Young (Applicant) A Bhasin (Respondent)

Solicitors: Dormer Stanhope (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2022/00051750 Publication restriction: A non‑publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of Patient A and Person A listed in the schedule to the complaint.

REASONS FOR DECISION

This application is brought by Faron James Nelson (the Applicant) and is lodged with the Tribunal under Case No. 2022/00051750, dated 22 February 2022.

Application

The application follows an earlier decision of the earlier Tribunal dated 12 February 2019, where it was determined that, had the Applicant been registered as a nurse at the time of the hearing, his registration would have been cancelled: See Health Care Complaints Commission v Nelson [2019] NSWCATOD 22. Currently, the Applicant seeks an order that he be given leave to become registered as an enrolled nurse.
The grounds for the application appear from an affidavit provided by the Applicant to this Tribunal dated 20 September 2022 which reads as follows: Background 1 As a child, I was raised by my mother. My father left us both when I was about five years old. After he left, my mother was very unsettled and we moved around often. I watched her struggle with alcohol dependency, homelessness and gambling addictions. I attended about 15 to 20 different schools as a result of moving around. 2 From the time I was about seven years old, which would have been in 1980, a priest form our local church in Guyra began sexually abusing me. I did not tell anyone of this abuse until many years later in life. I always thought I would never tell anyone. The abuse had a profound negative impact on my mental health and set the foundation for my unhealthy coping mechanisms; which I did not properly address until after the previous NCAT proceedings in 2018. 3 Following the sexual abuse, I developed PTSD and anxiety. 4 I always had an interest in the medical profession. I remember during a hospital admission as a child, I cannot now recall exactly what for, I experienced my first real sense of being cared for. The nurse who cared for me reminded me of the character who I wanted to be from a young age, Brendan Jones; the nurse In the television show 'A Country Practice'. 5 In about 1990, when I was 17 years old, I left high school midway through Year 10 and joined the Army. I did not stay In the army for long as I faced severe bullying from my colleagues. I was eventually discharged. 6 In 2009, I was formally diagnosed with bipolar disorder. 7 I was a Wardsman at Coffs Harbour Hospital for about 14 years prior to undertaking training to be an enrolled nurse. I obtained my qualification Diploma of Nursing (Enrolled Nurse) in 2009 and was registered as an enrolled nurse in 2011. 8 I have 10 children and six grandchildren. Most of my children are adults and take care of themselves, although I do have full time care of my nine‑year‑old son. My eldest child is 28 years old and my youngest is nine years old. I have three children under the age of 18 years old. Offending Behaviour and NCAT Proceedings 9 In the years leading up to 2014 and at the time of my inappropriate relationship with [Patient A] in 2015, I now recognise that I was struggling with poorly managed mental health issues; including anxiety, bipolar disorder and PTSD. I was also struggling with alcoholism, a gambling addiction and the mismanagement of my prescribed medications. These issues contributed to my poor judgement during this period. I deeply regret the path I took. 10 In 2014, I started working in the Mental Health Ward of Coffs Harbour Hospital. In about January 2015, I began having a relationship with [Patient A], one of the patients of the mental health ward. While this relationship was consensual, I recognise that it was highly unprofessional and inappropriate. While I did not know of her specific vulnerabilities, I now recognise how she was in a vulnerable position. 11 Initially I denied that I had a relationship with this patient because I was embarrassed and ashamed of my behaviour. I tried to hide my actions out of fear for the judgement that I would face. 12 My relationship with the patient ended in early February 2015, I sent a message to [Patient A] using words to the effect of "You cannot meet with me or contact me in anyway". 13 In March 2015, I resigned from the hospital. 14 In July 2018, The Health Care Complaints Commission filed their complaint against me in relation to my prior relationship with [Patient A] commencing NCAT Proceedings 2018/00208908 (Prior NCAT Proceedings). 15 At the time of the Prior NCAT Proceedings, I was being treated by Verity Stoker. Clinical Psychologist. I had been seeing Ms Stoker irregularly since 2009. Ms Stoker was unable to provide the tribunal with substantial evidence. 16 During the hearing In 2018, I admitted that my behaviour was wrong and unethical; which is still my view. I deeply regret forming the relationship and I am disgusted with myself that it ever occurred. My actions were wrong and I believe It is unacceptable to have a relationship with a patient or former patient 17 On 12 February 2019, final orders were made in the Prior NCAT Proceedings. Work and Qualifications 18 I am passionate about working within the medical field and although I am currently unable to work as a nurse I have continued to work and train in roles relating to the medical field. 19 I have completed formal training within the disability sector. Annexed and marked as follows are certificates I have received: (a) "C" - Certificate IV in Training and Assessment, lnduvial Support Aged Care and Disability Training - conferred by Key Employment Coffs Harbour on 12 July 2014; (b) "D" - Certificate Ill in Individual Support (Ageing) - conferred by Novaskill on 7 June 2016; and (c) "E" - Certificate IV in Ageing Support - conferred by Novaskill Coffs Coast on 21 September 2016. 20 On 20 September 2020, I received my Certificate of completion for the Quality, Safety and You - NDIS Worker Orientation Module. Annexed and marked "F" is a copy of my certificate. 21 On 21 September 2020, I began working in the aged care and disability sector. I undertook training relating to my core duties and responsibilities as required by my employer, Subee Newlake. Annexed and marked "G" Is the transcript of the training which I completed while I was employed there. I left my position with Subee Newlake on 21 March 2021. 22 I attended a first aid course on 27 September 2020. Annexed and marked "H" is a copy of my Statement of Attainment 23 In 2021, I applied to work at Coffs Harbour Hospital in a support service capacity. However, the orders made in the prior NCAT Proceedings required me to make a request to the Mid North Coast Local Health District to be removed from the NSW Health Service Check Register, which I did shortly after. 24 To support my application for removal from the NSW Health Service Check Register I provided an explanation and evidence of self-Improvement. 25 In a letter dated 18 August 2021 I received from the Human Resources department of Mid North Coast Local Health District stated: "Through the completion of a detailed Risk Assessment, the Mid North Coast Local Health District has reviewed the risks posed by the serious misconduct that led to the creation of the record and is satisfied that the risks no longer exist or have been sufficiently mitigated to warrant the removal of the record." 26 In December 2021, I was successful in applying for the support services position with the Mid North Coast Local Health District. In this role, I carried out cleaning, concierge and transport officer work. In order to obtain this position, I completed multiple 'My Health Learning' mandatory training modules which included training in areas such as the codes of conduct, quality standards, quality and safety, professional roles and boundaries, privacy and confidentiality and work, health and safety. Annexed and marked "J" is a certificate of completion for the ims+ How to Notify an Incident module. 27 Since 1 July 2022, I have been working in an administration role within the Mid North Coast Local Health District at Coffs Harbour Hospital. In this role I continue to complete training provided to me employer. Annexed and marked "K" is my certificate of achievement for the completion of the Code of Conduct module, Annexed and marked "L" is my certificate of achievement for the completion of Work Health and Safety and Hazardous Manual Tasks module. Mental Health Management and Self Improvement 28 I have been seeing Dr Adrian Gilliand, General Practitioner, since about 2010. He has been a key part of my support system especially since 2019, when I committed to my self-improvement and seeking the help that I should have sought years ago. 29 In about February 2019, I started seeing Kim Malone, Clinical Psychologist after being referred to her by Dr Gilliand. For the first few months, I attended appointments with Kim very regularly; about once a week or fortnight. In these counselling sessions we have been able to work through trauma from my past as well as issues that arise in my day-to-day life. Ms Malone has helped me to develop healthy coping mechanisms and to feel secure In seeking help when I need it. 30 About six months after the NCAT decision, I discovered the priest who had sexually abused me had died. This news triggered a new motivation within me to be a better person. I also wanted to be a better father, a better role model for my children, a better partner and I wanted to make a worthwhile future for myself. This was a major turning point in my life. 31 In the past I had used alcohol to self-medicate and avoid my reality. I would say my drinking and gambling issues went hand in hand. Since 2019, I have learnt alternate coping mechanisms from my counselling and I have ended my issues with alcohol and gambling. I do not drink regularly anymore and am no longer dependent on alcohol, nor do I have issues with gambling. I do drink on social occasions, and I can have one or two drinks then walk away from it; for which I am quite proud of myself. 32 Before 2019, I was not compliant in taking my prescribed medication regularly and would frequently stop taking it in periods where I felt better. I have now learnt how beneficial taking my medication consistently is for my mental stability and have committed to taking my medication as prescribed. I now take my medication every day and I have not stopped taking my medication just because I feel better. I take Metoprolol for blood pressure which is also used to help with the physical symptoms of my anxiety disorder. 33 Since making these major life changes my former partner has allowed me to be more involved in my nine-year-old son [redacted] life. Since December 2021, my current partner and I have been caring for him on a full time basis which I have found to be very fulfilling and enjoyable. 34 I currently attend counselling appointments with Ms Malone every few weeks depending on factors such as my mood and work commitments. I don't feel that I need to attend these appointments to be able to have a stable mental health rather that I like to continue to attend these appointments to be proactive about my mental health. I feel like I am the most stable I have ever been in my life and it is a very satisfying feeling. 35 In the past I would not reach out to people when I needed help but now, I have established a very strong support system and I no longer feel like it is a weakness to seek help when I need It. 36 A key part of my support system is my partner, Nicole Knight. She is a nurse and a Unit Manager in Intensive care. We have been in a relationship for eight years now and she has an intimate understanding of my mental health issues and mental health in general. Nicole knows when I need help and has always pushed me to seek suitable help when required. She is an Incredibly positive Influence on my life.

Nature of the Jurisdiction

Section 3A of the Health Practitioner Regulation National Law (NSW) ("the National Law"), provides that "in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration". The interests of the public includes patients or potential patients of the Practitioner concerned.

The Issues

The role of this Tribunal is not to determine or review the decision made by the previous Tribunal, but to determine whether the Applicant who was then found to be a risk to public safety, is at the time of this Hearing, a risk to public safety, or whether the Applicant should be allowed to apply for reinstatement as an enrolled registered nurse.

Respondent's Reply to the Application

The Health Care Complaints Commission (hereafter referred to as the Commission or the Respondent) replied as follows: 1. The Health Care Complaints Commission appears as contradictor to the application. 2. At this stage the Commission neither opposes nor consents to the application. 3. The Commission reserves its position to seek costs.

Applicant's Evidence

The Applicant relied on the affidavit provided by him dated 20 September 2022 which is set out above. He was cross‑examined by the Respondent essentially addressing the issues of the various medication which the Applicant has been prescribed, and his compliance with the taking of that medication. The Applicant indicated that he had been through various medication some of which did not agree with him, but that he was now on beta blockers which were effective and with which he was continuing.
Cross‑examination moved to questions about his attendances on his psychologist who was assisting with his levels of anxiety, and addressed the fact that it did not appear that he was seeing his psychologist on a regular basis. In response, the Applicant advised that he would mainly see his psychologist as and when, he needed to, sometimes in a week and sometimes in three weeks or six to eight weeks.
He was also cross examined on the issues relating to his excessive use of alcohol and indicated that he had not used alcohol to excess for at least 18 months and that he now only has a drink or two in a social environment.
He was questioned on what he would do if he was allowed to work as a nurse and he started developing a close relationship with a patient. He indicated that he would never do that again." It is pure professionalism." If anybody tried to get close he would go straight to his team leader, but it will never happen again.
He was asked questions about his attendance at Alcoholics Anonymous and indicated that he had not been going because he was not drinking other than very limited quantities of social drinking.
In answer to the questions about the relationship which he had with Patient A, he indicated that he was not attempting to minimise the behaviour or the relationship with Patient A, that he accepted full responsibility and he should never have done what he did.
That ended the cross‑examination of the Applicant.
The Applicant provided a letter written by Ms Nicole Knight which stated that: She is his partner and they have been together for the past 7 years. The beginning of the relationship was at times rocky for multiple reasons but they have stuck together and worked hard at working through that difficult period individually and together. Faron has worked a lot on trying to improve himself and over time he has made significant changes in his life both personal and career to make sure these circumstances never arise again. She has known him for over 20 years working in the health care system herself as a registered nurse. The time she worked with Faron he was in multiple roles over the years, cleaner, wardsperson/HSA and then as an Endorsed Enrolled Nurse. He has always been a happy, kind approachable person who would do anything to make someone have a smile on their face. He would also listen and have conversations with patients and families and you could see the way he put people at ease. During this time she watched him in stressful situations and high intensity scenarios he was able to talk with people and calm them and de‑escalate situations. He loved working in health and he loved working at Coffs Hospital, prior to this incident for over 15 years. Approx. 8 years ago he was going through a very messy separation from his ex‑wife who had taken his son away and was not allowing him to see him. This went on for months, [redacted] is Faron's ray of sunshine, she has seen their relationship grow and the bond between them become so strong. [redacted] is now in the care of Faron and Ms Knight fulltime and she watches him daily put him first, organise sports and activities and work through processes to support him to go to a good school. These are things that were never given to Faron as a child. He has been seeing both his GP and Psychologist specialist, Dr Adrian Gilliland and his Clinical Psychologist is Kim Malone, both helped him with his mental health and PTSD issues and his issues with drinking and gambling. Like all relationship she stated that they have ups and downs, but the change in Faron over the years couldn't make her more proud of the person he has become. He used to use alcohol and gambling to cope, he wouldn't talk. Now they sit down and unpack the issues. He has been working regularly back in health care as a patient transport officer but has moved on to do ward clerk and concierge work and she sees more the changes in his emotional stability and the proudness he has of himself working back in the health care setting. His ability to talk to anyone and help someone continues to shine through. He continues to maintain his fitness and wellbeing to help with mental issues. Prior to commencing back at the hospital he did some disability support work, which he enjoyed and he did online training and education to help with these roles. Ms Knight was not required for cross‑examination.
The Applicant called Dr Adrian Gilliland to give evidence. Dr Gilliland was referred to his report dated 7 April 2022 which read as follows: This is to certify that Mr Faron Nelson suffers from the following medical and mental health conditions listed below which are well controlled on his current medication. He has been seeing myself as his principal General Practitioner since 23/01/2013. He has a previous history of Severe Anxiety Disorder with a past history of Bipolar Affective Disorder and Post Traumatic Stress Disorder following childhood sexual assault. The perpetrator of this assault passed away in August 2020 and this has resulted in a reduction of his anxiety symptoms. These are well controlled. He is compliant with his medication and has good insight into bis medical and mental health conditions. He has shown the ability to undertake significant responsibilities in both his personal and working life. He has now full time parental care of his 9 year old son as well as assisting with care of his 5 children and 3 grandchildren from his first partner who has recently passed away with bowel cancer. He has also been employed as a patient transport officer and cleaner at the hospital since December 2021. He has also been working as a traffic controller for a construction firm prior to this for the last 2 years. He currently takes metoprolol for Blood pressure control which has also assisted with the physical symptom of his anxiety disorder and rosuvastatin for high cholesterol levels. He has significantly reduced his alcohol intake and now only drinks on social occasions with friends every couple of weeks. He is seeing a clinical psychologist on a regular basis. It is my opinion that Mr Faron Nelson is fit to undertake his usual duties as endorsed enrolled nurse without restriction. Please do not hesitate to contact me if you have any questions or concerns.
He was asked whether he confirms the contents thereof. He confirmed the contents and added that there may be a need for some supervision or conditions in place.
He was asked to clarify what he meant when he said that the Applicant was well controlled. He stated that he was referring to the anxiety and the physical symptoms of anxiety. He was asked various questions about sleeping problems and levels of alcohol to which he responded that he referred those questions to the psychologist.
The Applicant called Ms K M Malone, the treating psychologist of the Applicant who had provided a brief report dated 4 April 2022 the substantive points of which were as follows: I am writing in regards to Mr Faron Nelson, whom I have known in a professional context since February 2019, following a referral by his General Practitioner, Dr Adrian Gilliland. Upon further assessment Mr NeIson reported full Diagnostic Statistics Manual - Version Five (DSM‑5) criteria for Posttraumatic Stress Disorder (PTSD), Bipolar II Disorder, and Panic Disorder with Agoraphobia. I have met with Mr Nelson intermittently since 2019 to assist with processing previous childhood sexual assault, as well as assisting him with reducing panic attacks and avoidance of situations where symptoms may occur. More recently Mr Nelson has reported an abatement in his anxiety and trauma related symptoms following the death of the perpetrator of his CSA died in August 2020 he has had a great relief from trauma related symptoms. Further, the prescription of a beta blocker approximately twelve months ago, has also assisted In his panic symptoms. Mr Nelson has reported improvement in both his occupational and social function to a clinically significant degree. Herein, he has had the full time parental care of his nine year old son since late last year, and been on call to care for his other adult children following the death of their mother late last year. Further, he has been stable in his employment, working in patient transport and cleaning at Coffs Harbour Base Hospital during this time, and prior to his hospital work he had been working regularly In construction, traffic control duties and support work for disabled people. Mr Nelson has also demonstrated an ability to cope despite increased responsibilities and has been able to manage his previous psychological difficulties, including previous drinking patterns, panic attacks and agitation. Herein, he has not engaged in heavy drinking for more than two years, and only partakes light drinking on a social basis, once every couple of weeks. As such it is my opinion that Mr Nelson is fit to undertake his usual enrolled nursing duties without restriction.
Cross‑examination centred largely on the visits by the Applicant to Ms Malone. She confirmed that she had provided her file and that the file records visits to June 2022. She pointed out that the Applicant is entitled to 10 funded sessions per annum, and that he times them to suit his needs. She was asked whether his sessions were relating to his alcoholism and she stated that he was much more stable and that he did not need to be dependent on alcohol. She was asked whether further appointments had been booked to which she informed the Tribunal that she would be booking appointments after she returns from a short holiday. On re‑examination she was asked whether she would be prepared to see him on a regular basis if such an order was made to which she responded yes. A question was put to her by the Tribunal as to whether she thought that two years abstinence from excessive alcohol use was sufficient. She stated that in his case she thinks that he is very unlikely to relapse. He seems to be coping.
The Applicant then called Dr Matthew Jones a psychiatrist who had provided a report to the Tribunal in respect of his examination of the Applicant. Dr Jones was asked to confirm the contents of the report which he did.
The effect of Dr Jones' report is summarised below. In his report, Dr Jones summarised the background and history relating to the Applicant. In response to various questions put to him by the Applicant's counsel, he responded as follows: He was asked whether: a) Mr Nelson is now suffering from any physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect Mr Nelson's capacity to practice as a registered nurse. He stated that in his opinion, Mr Nelson is not currently suffering from any mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect his capacity to practice as a registered nurse. I am unable to comment about his physical health, however there were no physical limitations that became apparent in my assessment and understanding of Mr Nelson's case. Mr Nelson does have a history of significant anxiety over the years and this requires ongoing management. He also has a history of alcohol misuse and possible dependence, and this also requires ongoing management. b) And, if so, he was asked to prepare a treatment plan for Mr Nelson in relation to that impairment, disability, condition or disorder advising of the specific treatment you would recommend for Mr Nelson and how long he will be required to comply with that treatment plan. A treatment plan for Mr Nelson, in his opinion, should include: • Continued regular contact with his general practitioner to coordinate care and prescribe medications. • Continued taking of prescribed medications, at this stage Metoprolol, for his anxiety. • Ongoing regular psychological sessions with his established psychologist. This could be at a frequency of monthly or two monthly, when other factors are stable. • Mr Nelson should also avail himself of drug and alcohol counselling. He would likely only require management in the community and a drug and alcohol counsellor could recommend management strategies, for example attendance at group meetings etc. • With respect to considering his ability to practise, regular psychiatric review, for assessment and monitoring of mental health, should occur at a frequency of every three to six months during the period of observation. With respect to how long Mr Nelson should comply with his treatment, the answer to this would be for a considerable period following the Nursing and Midwifery Board's decision to. offer unrestricted registration. This would provide a buffer zone and be beneficial for Mr Nelson with respect to maintaining that registration, were it to be granted. c) Whether there is any risk Mr Nelson is likely to endanger his own safety or the safety of any other member of the public including without limitation having another sexual encounter with a patient. With Mr Nelson's history of having experienced suicidal thoughts, his long-term experience of anxiety and his history of alcohol use, as well as his history of having had inappropriate relations with a patient. there is always some consideration of increased risk of these things occurring in the future. With the above treatment plan, and the likely restrictions and conditions placed on Mr Nelson by AHPRA or the Nursing and Midwifery Board, this future risk would be minimised and considered manageable in that context. d) Whether there are any suitable conditions on registration which would mitigate any risks or concerns arising from any physical or mental impairment, disability, condition or disorder which Mr Nelson is still suffering from which could be considered by the tribunal. There are multiple potential suitable conditions on registration that would assist in mitigating risks or concerns regarding Mr Nelson returning to practice. These would include such measures as graduated limited exposure to clients, the use of chaperones, the use of multiple supervisors, ongoing psychological and psychiatric monitoring. These measures and matters are well and truly the experience of bodies such as AHPRA and the Nursing and Midwifery Board. The psychiatric component would include continued treatment and review, as recommended above. This would assist him attempting to mitigate the risks. 3.2 When preparing your report, without limiting in any way your usual opinion, please ensure your report deals with the following: a) A general assessment of Mr Nelson. This appears in the report above. b) The history given by Mr Nelson on examination. This appears in the report above. c) Whether Mr Nelson is or was at the time of misconduct suffering from a mental health impairment, or a cognitive impairment, or both. It is possible, from the information available to me, that Mr Nelson was suffering from some degree of mental health impairment around the time of the misconduct. Mr Nelson reported being emotionally affected by a number of things, drinking a lot of alcohol, and having a number of life events around that time. In contrast to that, I would not consider Mr Nelson has an ongoing mental health impairment and would consider that his longstanding anxiety is reasonably well-controlled currently, as is his alcohol use disorder. There is no particular evidence of any cognitive impairment. either in the past, or currently. d) If in your opinion Mr Nelson is or was suffering from such an impairment, the nature of that impairment and whether treatment Is available. Mr Nelson's impairment diagnostically would have been an Adjustment Disorder with depressed mood on a background of a longstanding Generalised Anxiety Disorder and a concurrent Alcohol Use Disorder. Treatment is available for these conditions. Mr Nelson has sought and received treatment for these conditions and continues to have treatment. He is not currently actively experiencing any active mood disorder, anxiety disorder or alcohol use disorder. e) If in your opinion treatment is available, the suitability of that treatment or support plan to address the misconduct behaviour. Mr Nelson appears committed to distancing himself from the behaviour and taking full responsibility. He is motivated to maintain his mental health, and reported he will abide by any treatment or conditions implemented by the Board. The treatment plan suggested above will best address the misconduct behaviour. f) Relevant changes in Mr Nelson's circumstances since the Orders were made by the New South Wales Civil and Administrative Tribunal on 12 February 2019. Mr Nelson reported a significant improvement in his mental health. He has changed his alcohol drinking behaviour, has persisted with psychological therapy, and has noticed considerable clinical benefit from medication for his anxiety, commenced one and a half to two years ago. Mr Nelson also has commenced full-time care of his nine year-old son, which is a great stabilising factor. Loss of contact with his son years ago was very destabilising for Mr Nelson. g) Relevant steps Mr Nelson has taken to improve his position. Mr Nelson has continued to work, has focused on his family relationships, has continued to seek assistance with psychological treatment, has complied with treatment recommendations and has endured a degree of public shame and ostracism, yet maintains a motivated and positive attitude. h) The likelihood of Mr Nelson requiring further treatment. If Mr Nelson is wishing to regain and maintain his nursing registration he will require considerable ongoing further treatment for the foreseeable future. The actual modalities of treatment may change over time (for example medications and doses can change, types of psychological therapy can vary). Realistically, Mr Nelson is looking at requiring some form of ongoing treatment while ever he wishes to practice as a nurse. i) Any further issues you consider pertinent. I have no further comments.
In cross-examination, Dr Jones was asked whether whatever the Applicant told him was summarised in his report. He stated that that was the position. He was asked whether he thought and, if so, to what extent, the Applicant had developed insight into the cause of his misconduct. He stated that it is very difficult to say whether and to what extent a person has insight. He indicated that it is much easier to say that a person has no insight. He was asked whether he agreed that what he was told was intended to minimise his behaviour and reflects on a lack of insight. Dr Jones said he did not agree with this proposition. There were all sorts of reasons why a person seeks to minimise. Real insight needs a reasonable amount of time to reflect. He was asked whether the decision of the previous Tribunal when hearing the complaint against the Applicant where it referred to cajoling Patient A into leaving her family is inconsistent with the account in Dr Jones' report. He stated that in relation to cajoling Patient A into giving up her family then he thinks that it is inconsistent. It was also put to Dr Jones that the report does not reflect the Applicant having told him that he influenced Person A to fabricate a story. Dr Jones confirmed that he was not told that and asked whether that reflected on the insight of the Applicant. Dr Jones indicated that in his view that was totally consistent with his partial insight. If he has sufficient insight to change his state and health hopefully his insight will improve with time.
The cross‑examination then turned to the psychological therapy which the Applicant was undergoing. Dr Jones stated that as far as he is concerned he has engaged with a psychologist and that can be very helpful. Psychotherapy is quite different. It has to be regularly/once per week and at the same time, while engaging with a psychologist does not require the same regular nature of visits . It is more defined to be supportive. In Dr Jones' view, if he is to go back to work he should be seeing someone perhaps every week or second week for a period of time for proper therapy. In essence, Dr Jones was of the opinion that he should enter psychological treatment as opposed to what he is currently getting, being supportive care. and that weekly or two weekly psychotherapy is what he needs. Essentially, Dr Jones is of the view that because he is seeking to be reintegrated into the nursing role, he should have more intensive active psychotherapy.
In response to a question on re‑examination as to what he thought the frequency should be he indicated that as far as he is aware the Nursing Council has had this kind of situation on numerous occasions and would know best what is appropriate.
Dr Jones was asked whether Ms Malone, who is already engaged, would be appropriate as a psychotherapist. Dr Jones indicated that if she is a psychotherapist and is prepared to undertake psychotherapy as opposed to playing a supportive role, he does not see a problem with that but it might be better to have a different psychotherapist from the supportive therapeutic environment.

Applicant's Submissions

In written submissions to the Tribunal dated 30 November 2022, the Applicant stated as follows: A Introduction 1. This matter concerns an application for re-instatement by a enrolled nurse, Mr. Faron James Nelson, the Applicant, under section 163B of the Health Practitioner Regulation National Law. The effect of the "reinstatement order" would allow the Applicant to make an application for registration (mostly Likely, provisional registration) as a nurse to the Nursing and Midwifery Board of Australia. The Applicant bas always agreed that were he to be re instated. he would consent to the imposition of appropriate conditions on his registration including that he undertake continuing medical treatment or further training as may be reasonably required should that alleviate any lingering concern about his fitness to practice. 2. His application is support d by his long-term partner, Ms Nicole Knight, a registered nurse and the Nursing Unit Manager of the Intensive Care Unit at the Coffs Harbour Hospital; his current employer, NSW Mid North Coast Local Health District; his general practitioner, Dr Gilliard; his regular psychologist, Dr Kim Malone and an independent expert psychiatrist, Dr Matthew Jones, Psychiatrist who has taken the view that subject to certain conditions on his registration which are routinely applied in these types of cases, he is fit to be able to work as a nurse. He has worked and still works at Coffs Harbour hospital in hospital administration. B. The parties' respective positions 3. The Applicant seeks an order that he is permitted to apply for re-registration as a nurse. 4. By way of email dated 25 October 2022, and again at the start and end of the hearing, the Applicant bas indicated that he is prepared to agree to reasonable conditions being imposed on his registration including a condition that he be subject to obtaining continuing medical treatment with a General Practitioner and a Psychotherapist for a period satisfactory to the Tribunal; enter into a mentor relationship with a more senior nurse for a period of 12 months; and that he notify all employers of the conditions on his registrations and provide evidence to the Nursing and Midwifery Council of NSW (the Council) of such notification within one week of commencing work with such an employer. 5. Despite attempts to engage the Commission on conditions, the Commission has refused to entertain any condition on the basis that the Applicant will face recency of practice issues with AHPRA. 6. More specifically, conditions proposed by the Applicant should the Tribunal be minded to allow the application for reinstatement are as follows: a. the Applicant must provide to the Council, a copy of these conditions signed by the Applicant and by, and on behalf of, each employer indicating their awareness of the conditions and authorisation within one week of commencing work with such employer, b. the Applicant must engage in a mentoring relationship for a period of at least 12 months, from the date that he recommences work as a registered nurse, with a registered nurse (Division l) who does not have conditions on his/her practice. The registered nurse mentor must be approved by the Council; c. the Applicant must: i. provide the Council with the name, contact details and resume of the registered nurse who has agreed to act as a mentor; and as specified in the conditions: ii. authorise the mentor: 1. to notify the Council of any breach of the conditions including repeated failure to attend mentoring meetings; and 2. to exchange information with the Council in relation to the Applicant's compliance with the conditions. iii. provide to the Council a copy of the conditions signed by the registrant and by the mentor indicating awareness of the conditions and authorisation; iv. submit a mentoring plan developed in consultation with the mentor within 8 weeks of the mentor being approved by the Council. The plan must detail: 1. Specific objectives/outcomes of the mentoring relationship. The objectives/outcomes must relate to, but are not limited to, the following areas: professional boundaries and responsibilities, patient-nurse issues and relationships, any anxiety and stress related issues arising during his work as a nurse and the impact of personal challenges (for example health or relationships) on his nursing practice and decision‑making. 2. Evidence which will demonstrate objectives/ outcomes have been met; 3. Schedule of meetings with the mentor comprising a minimum of one meeting per month; v. the Applicant must provide to the Council a mentoring report which is co-signed by the approved mentor addressing: 1. Progress towards or achievement of specified objectives/outcomes; 2. Any challenges/issues affecting progress and a plan to deal with these; and 3. Any changes to practice resulting from mentoring/associated learning; vi. the mentoring report must be provided to the Council every 4 months during the currency of the mentoring relationship. d. For a period of 3 years from the date the Tribunal makes a reinstatement order, to attend for treatment by a registered psychologist or registered psychiatrist of his choice, at a frequency to be determined by the treating practitioner but for the first year it must be no less than once a month. e. The practitioner is to: i. authorise the treating practitioner to inform the Council of any failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change); and ii. provide the Council with the professional details of the treating practitioner. f. For a period of 3 years from the date the Tribunal makes a reinstatement order, to attend for treatment by a registered General Practitioner of the Applicant's choice. The frequency of the treatment is to be determined by the treating practitioner but for the first year shall be no less than once a month. The practitioner: i. is to authorise the treating practitioner to inform the Council of any of the following: failure to attend for treatment, or termination of the treatment, or a significant change in health status (including a significant temporary change); and ii. must provide the Council with the professional details of the treating practitioner. g. For a period of two years, the Applicant shall submit to regular psychiatric review for assessment and monitoring of mental health should occur at a frequency of every 6 months and a report provided to the Council; h. the Applicant shall also attend a drug and alcohol counsellor prior to making an application for registration and provide a letter of advice from the counsellor as to recommended management strategies which may be appropriate to him to manage his relationship with alcohol and such letter to be provided to the National Board for its consideration as to a further condition on his registration; i. the appropriate review body for the purpose of a review of these conditions under sections 163-163C of the National Law is the Council when the Applicant has a principal place of practice in NSW. In the event that the Applicant's principal place of practice is anywhere in Australia other than in NSW the appropriate review body shall in those circumstances be the relevant National Board. 7. In relation to the power of the Tribunal to impose conditions which only take effect when the practitioner is re-registered by the relevant authority/authorities, the Applicant refers to the decision of the NSW Supreme Court in Jan v Health Care Complaints Commission [2021] NSWSC 350 at [62]‑[64]; see also Chen v Medical Council of New South Wales [2021] NSWCATOD 33. 8. As far as the Applicant understands, the Commission neither consents nor does it oppose the Applicant being permitted to now apply for re-registration as an enrolled nurse. Despite being asked to propose conditions on his reinstatement, the Commission has yet to do so. C. Relevant Facts 9. Much of the facts on this application are not in dispute. 10. In December 2021, the applicant and his current partner of seven years have been caring for his son, [redacted], on a full-time basis. 11. The Applicant has after years of struggling with finding medication to treat his anxiety which would cause him stomach or bowel upsets has found that prescribed medication, metoprolol to help his anxiety. He lives with his long term partner, Nicole Knight (7 years), an intensive care nurse/manager with child 9 year old [redacted] together with Nicole's two children. D. The Relevant Substantive Law 12. This application is brought pursuant to the provisions of Part 8 of Division 8 of the National Law. For the purpose of these provisions, this Tribunal is "the appropriate review body". By section 163A, the Applicant is entitled to request that the prohibition order that he be disqualified from being registered as a nurse be reviewed. 13. The powers of the Tribunal on a review under s 163B are as follows: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order - (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions, (2) If the appropriate review body makes an order altering a critical compliance condition. or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if- (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 14. The provisions of section 163C of the National Law are also relevant for the purpose of these proceedings. In conducting this review, the Tribunal cannot review the original decision in 2019 or make any findings made in connection with the making of that decision: s 163C(2) of the National Law. 15. The task of the Tribunal is to determine the appropriateness, at the time of the review, of the order concerned: s 163C(1). 16. For completeness, it is mandatory that the Tribunal to take into account any complaint of the kind described in section 163C(3). Section 163C is set out in full below: "163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter tire review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division. " 17. The role of the Health Care Complaints Commission in these proceedings is to act as contradictor to test the evidence, bring evidence itself where appropriate, and to assist the Tribunal with submissions: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155. 18. The approach to be adopted in considering an application for a reinstatement order has been set out in several decisions of this Tribunal and the former Tribunals. See Haber v Health Care Complaints Commission [2018] NSWCATOD v 16; Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 at [7]; Sundaraja v Health Care Complaints Commission [2020] NSWCATOD 144 at [19]; Bahramy v Medical Council go NSW [2014] NSWCATOD 116; Scully v HCCC [2013] NSWNMT 7 and Shah v Health Care Complaints Commission (2014) NSWCATOD 94 at (34)-(36). 19. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16, this Tribunal stated the principles in the following terms: "12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant/or reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and In particular In a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24]. (7) 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". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]... " 20. In Jan v Health Care Complaints Commission [2021] NSWSC 350 at [26], Leeming J observed: "The Tribunal stated, correctly, that the plaintiff bore the onus of proving to the civil standard that he was a suitable person to hold registration and was able to practise professional dentistry in an ethical manner: at {53]. The Tribunal said that what was required was an assessment of whether there was a material risk that he would repeat the conduct which resulted in him being deregistered and convicted of offences under the law, which in turn required consideration of whether his claims of being remorseful and having gained insight into his offending could be accepted without significant reservation: at [53]. It was not suggested that there was any error in that approach." (Emphasis Added). 21. In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated: 30. In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: [A]n applicant for reinstatement ... is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. 31. ln that case, the Medical Tribunal also stated at [42]: [T]he ultimate issue ... is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. 22. The Applicant adopts those statements of the principles to be applied in determining this application. 23. Nor can it be doubted that the proceedings are civil proceedings and the standard of proof is on the balance of probabilities. The standard of proof is to the Briginshaw standard: see Briginshaw v Briginshaw (1936) 60 CLR 336, In the context of re-instatement applications, see Ng cited above at [29]. 24. The Applicant makes the following submissions in support of the reinstatement order. 25. First, the Applicant submits the evidence establishes that he does have insight into his conduct which gave rise to the Tribunal's findings made against him in 2019 and has demonstrated remorse for his actions. He admitted all facts at the initial hearing and expressed remorse at the time. He still very much regrets his actions including his attempts to reconcile and is still embarrassed and ashamed by his behaviour. In his words, he "is disgusted with himself" for his "wrong and unethical behaviour". It is submitted the Applicant will be found to have accepted responsibility for his professional misconduct both at the time of the initial hearing and still. He expressed that over and over at the bearing. It should also be noted that the Applicant admitted each part of the complaint brought against him and was frank in relation to many aspects of his conduct at the initial Tribunal hearing. 26. Second, the Applicant submits the Tribunal will find the Applicant has taken steps to address the issues of concern in relation to his practice of nursing raised in the Tribunal findings. Following the decision in 2019. he engaged in a period of intensive psychotherapy to work on childhood trauma and sexual abuse issues which left him with significant adult anxiety. He has now addressed his issue of alcohol dependence. The statements made by the Applicant at the time that he was an alcoholic should not be taken as a medical diagnosis. He has never been diagnosed with alcoholism and is able to have a drink and then walk away. That is not a typical presentation of an alcoholic. He has controlled his prior excesses in alcohol which seemed to stem from anxiety. He is willing to attend a drug and alcohol councillor in relation to whether he needs to take any further steps should that he required by this Tribunal. 27. He has found considerable relief from his mental health issues since the passing of his priest abuser and having custody of his son. He enjoys a supportive relationship with his long-tern partner of 7 years and he has had full time care of his son. Loss of contact with his son was very destabilising for Mr Nelson. He has worked hard at addressing his issues and changed his lifestyle including excessive gambling and drinking. He has the support of his family; two of his co-workers at the hospital; his general practitioner and a clinical psychologist. 28. Third, the Applicant is currently well and after many years has found medication which works for him. Metoprolol, which he regularly takes. He has found a solution to his anxiety not in anti-depressants which made him ill and caused him upset bowel problems but through the use of beta blockers. He has a good relationship with clinical psychologist, Kim Malone and knows he has support there if he needs her and is prepared to agree to a condition that he regularly sees her for treatment going forward. 29. Fourth, the Applicant submitted to a psychiatric examination with Dr. Matthew Jones, Psychiatrist on 2 August 2022. Dr Jones found the Applicant to be engaging, polite, cooperative and attentive and displayed no abnormal movements. His speech was normal and there was no evidence of formal thought disorder or delusions though processes. His recognition, insight and judgment appeared intact. Dr Jones found that 'Mr Nelson is not currently suffering from any mental impairment, disability or disorder that detrimentally affects or is likely to detrimentally effect his capacity to practice as a registered nurse'. Dr Jones also found "I would not consider that Mr Nelson has an ongoing mental health impairment and would consider his longstanding anxiety is reasonably well-controlled currently as is his alcohol use disorder. There is no particular evidence of any cognitive impairment, either in the past or currently." 30. Dr Jones recommended that a treatment plan for the Applicant should include: - Continued regular contact with bis General Practitioner to coordinate his care and prescribed medications; - Continued taking of prescribed medications at this stage, Metoprolo for his anxiety; - On-going regular psychological sessions with his established psychologist; - Regular psychiatric review for assessment and monitoring of mental health should occur at a frequency of every 3 to 6 months; and - Mr Nelson should avail himself of drug and alcohol counselling. 31. As explained in detail above, the Applicant having considered Dr Jones report has indicated a willingness to agree to conditions which are consistent with the proposed treatment plan specified by Dr. Jones. Dr. Jones also found that if his proposed treatment plan was followed by appropriate conditions on his registration whether by this Tribunal or AHPRA, any future risk of Mr Nelson having inappropriate relations with a patient again would be minimised and considered manageable. 32. It should be noted that Dr. Jones further opined that "There are multiple potential suitable conditions on registration that would assist in mitigating risks or concerns regarding Mr Nelson returning to practice. These would include such measures as graduated limited exposure to clients, the use of chaperones, the use of multiple supervisors, ongoing psychological and psychiatric monitoring. These measures are well and truly in the experience of bodies such as AHPRA and the Nursing and Midwifery Board." 33. Fourth. he has maintained regular employment since 2019. including in the aged care and disability sector without issue and his current employer, Mid North Coast Health District undertook in 2019. a detailed risk assessment and have confirmed that the Applicant no longer poses a risk and have removed his name from the NSW Health Service Check register. He has continued to work at Coffs Harbour hospital since 2019 without any issue or concern. 34. Fifth, the Applicant is prepared to agree to extensive conditions attached to his registration should he be reinstated. The Applicant's lawyer wrote to the Commission after receiving the expert report of Dr Matthew Jones, Psychiatrist, dated 12 September 2022 and indicated that the Applicant was prepared to agree to appropriate conditions but no response was received or any conditions proposed. It is submitted the evidence presented to the Tribunal indicates that the matters of concern to the former Tribunal have been addressed by Mr Nelson. However, should there still be any doubt, the Applicant has also indicated and proposed a number of conditions which would address further any lingering concerns. 35. In particular, the Applicant is prepared to conditional reinstatement, comprising a period of mentoring over 12 months from the time that Mr Nelson recommences nursing work. It is submitted that this will assist Mr Nelson with any difficulties he might encounter on his return to nursing, particularly, relating to patient-nurse issues and relationships, any anxiety and stress related issues arising during his work as a nurse together with the impact of personal challenges (for example health or relationships) on his nursing practice and decision-making. This mentoring plan should provide appropriate protection lo the public. 36. The Applicant is also prepared to continue to see his General Practitioner and Psychologist on a regular basis and to consent to a reporting structure whereby both treating practitioners can report to the Council should there be any failure to continue with treatment or if they become aware of any concerns. These are invasive measures to the Applicant's privacy which have been offered voluntarily by the Applicant. The precise conditions proposed are set out above. The Applicant submits that the concerns raised by the Commission in relation to deficiencies in the Applicant's ability to practise safely can be resolved to the necessary protective requirement by the imposition of conditions to be attached to his registration. 37. It should be noted that as the Applicant has been out of practice for over 7 years he will need to apply for provisional registration with APHRA and may have to undertake an appropriate re entry course. Recency of practice is not an issue which the Commission is responsible for overseeing in NSW and the matter is solely a matter for APHRA in NSW. Conclusion 38. The application should be granted subject to the conditions proposed by the Applicant. 39. The Applicant wishes to be heard separately on costs at the appropriate time.

Respondent's Submissions

In written submissions to the Tribunal, the Respondent stated as follows: INTRODUCTION 1. The respondent (the Commission) appears as a contradictor on this application for review by the applicant (Mr Nelson), in which he seeks a reinstatement order under 163B(1)(c) of the Health Practitioner Regulation National Law (National Law). 2. As set out in the Commission's Reply dated 11 October 2022, the Commission neither opposes nor consents to the application. The Commission's role is to test the applicant' evidence, and to assist the Tribunal with submission as to the relevant law and its application to the facts: cf Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 at [16]. LEGAL PRINCIPLES 4. The applicable legal principles to an application for reinstatement were set out in Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [17]-[21] (Brereton JA, Bell P and Emmett AJA agreeing) (omitting citations): 17 In conformity with s 63C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application. In performing that task, the Tribunal must have regard to the objective and guiding principles of the National law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered, the paramount consideration being the protection of the health and safety of the public. 18 The position of an applicant for reinstatement in disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of fitness. An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practice in a way that conform· to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession. 19 Thus the essential task of an applicant for reinstatement is to show that he or he is no longer unfit... The 2020 Tribunal's decision 20 In the decision under appeal, the 2020 Tribunal reiterated that it was not its function to reconsider the circumstances which led to the cancellation of the applicant's registration. The Tribunal referred to Asar v Medical Council of New South Wales, in which the Tribunal had said: It is not the function of this Tribunal to revisit the conduct which led to the cancellation of the applicant's registration. The Tribunal proceeds upon the basis that the 2016 Tribunal found that the applicant, not a fit and proper person to practise medicine. The issue before this Tribunal is whether it is satisfied, upon the evidence now before it, that the circumstance which led to the cancellation no longer prevail and that the health and public safety of the community are protected in accordance with the requirements of section 3A of the National Law. That is, the Tribunal is required to whether or not the deficiencies in the applicant's character have been remedied. As was stated in In Re Jason Martin (2010) NSWMT 13 at page 8: [I]t 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". 21 Thus, the Tribunal correctly identified that it must be satisfied that the appellant is now "a proper person" to be registered, against the background of the finding of the 2014 Tribunal that she was not… 5. See also Zepinic v Health Care Complaints Commission [2020] [85] (N Adams J); AWS [40]-[51]. 6. While it is no pan of the Tribunal's role in determining this application to review the original decision or findings made in connection with it, those finding are relevant to the Tribunal's assessment of whether the applicant has discharged the burden upon him to show, by clear proof: a reformation of character since the misconduct occurred, such that he can now be trusted to practice in conformity with the high standards expected of an enrolled nurse. FACTUAL BACKGROUND 7. In the earlier Tribunal Decision, the Tribunal made observations regarding the misconduct, applicant's character and his insight into his misconduct, including the following: i) in relation to the applicant's claim that at the time that the misconduct occurred he was very new to nursing and the mental health ward and did not know that it was wrong and unethical, "[w]e find that this self-characterisation does not sit well with the swift and calculated deception that Mr Nelson put in place as soon he was made aware by the hospital that they were looking into his conduct; ii) the applicant 'expressed genuine remorse, even disgust, at his own behaviour" but there were a number of occasions on which he minimised it iii) the "inherent calculation and dishonesty" involved in the applicant's creation of a deception to maintain the relationship with Patient A "undermine[d] [his] account of himself at that time as naive and ill-considered" and "evince[d] a willingness to use others, including a patient, to achieve his own ends, with no consideration of the duties owed to them or the harm caused to them"; iv) "Patient A was 20 years old, had just undertaken a prolonged period of hospitalisation and was discharged into the care of her family, with whom he was living. Mr Nelson coached and cajoled Patient A into lying to her family, and in doing so deliberately cut her off from her main support network at a time of intense need for such support"; and v) the Tribunal gave the applicant credit for attending the hearing and making belated but fulsome admissions, and accepted that he was genuinely remorseful; however, it retained reservations about the extent of his insight into his own conduct, his ability to modulate his own emotions and conduct in order to perform satisfactorily as a health professional. and held grave concerns about his fitness to practice (while noting that there was no complaint of impairment or lack of competence) MATTERS FOR CONSIDERATION 8. In determining whether, through the evidence and submissions advanced on his behalf, the applicant has discharged the burden upon him to demonstrate against the backdrop of his previous misconduct that he can now be trusted to maintain the standards required to return to practice, the Tribunal may wish to take into account the following matters: i) While the applicant submits that he has gained insight into his misconduct and demonstrated remorse, aspects of the evidence may suggest a lack of genuine insight and ongoing tendency to minimise his misconduct (the Tribunal found he previously had - see Tribunal Decision excerpts identified earlier). In particular: a. In his affidavit sworn 20 September 2022, the applicant gave an account to the effect that his relationship with Patient A ended this initiative, which is inconsistent with the Tribunal' findings that he created a deception to continue the relationship involving Person A ([redacted] and his oral evidence to the Tribunal in 2018 that his last contact with Patient A was a message from her stating that he should not meet with or contact the applicant. b. The applicant gave an account of his misconduct to Dr Jones that Patient A "[E]nded up coming over to his house and he had nowhere to live. She stayed over for a couple of weeks because he had an open-door policy, but he told her to go home and talk to her family'' (Report of Dr Jones, 12.09.22, page 5). That account stands in stark contrast to the Tribunal' that he was discharged into the care of her family and "Mr Nelson coached and cajoled Patient A into lying to her family, and in doing so deliberately cut her off from her main support network at a time of intense need for such support''. c. While the applicant told Dr Jones that he was untruthful in the investigation because he knew that he would get into trouble and lose his registration, and regretted this decision (Report of Dr Jones, 12.0922, Ex 4, page 5), he omitted from his account to Dr Jones any mention of the deception he established by having Person A lie and say that he was the one in a relationship with Patient A (as Dr Jones confirmed in cross-examination). Dr Jones accepted in cross-examination that insight and any tendency to minimise misconduct was relevant to future risk, and gave evidence to the effect that the development of genuine insight required a long period of psychological therapy. ii) The applicant bas failed to engage in regular therapeutic psychological treatment in order to develop genuine insight into his misconduct. While in his letter of 22 April 2022 stated that he had "been regularly [seeing] multiple specialists, but mostly [my GP] and my Clinical Psychologist Kim Malan and in his affidavit stated that "I currently attend counselling appointments with Ms Malone every few weeks depending on factors such my mood and work commitments", the evidence demonstrates (and Ms Malone accepted) that he had seen her intermittently. Documents produced by Ms Malone indicate that she saw the applicant on 12 February 2019, 25 February 2019, 19 March 2019, 3 April 2019, 8 September 2020, 24 September 2020, 16 April 2021, 29 April 2021, 30 July 2021, 27 August 2021, 10 September 2021, 24 September 2021, 22 October 2021, 2 November 2021, 22 November 2021, 10 December 2021, 3 February 2022, 4 April 2022 and 15 June 2022. Ms Malone and the applicant gave oral evidence that he had seen her on one more occasion, in the weeks before the oral hearing on 6 November 2022, and there was at that date no future appointment booked. That is, at the time of hearing she had seen the applicant on only 4 occasions in 2022. In cross-examination, Dr Jones gave evidence to the effect that while the applicant had engaged in supportive psychological therapy, which may assist a patient to deal with crises, he had not engaged with a psychologist on a sufficiently regular basis for it be therapeutically effective. While Ms Malone gave evidence to the effect that funding considerations impacted the frequency of her consultations with the applicant, with 10 funded sessions per year resetting on I July, that did not explain the lack of appointments since 1 July 2022. More significantly, where the onus for demonstrating fitness for reinstatement lies upon the applicant, and the paramount consideration is the protection of the public, the Tribunal may consider that it is necessary and appropriate for the applicant to have engaged in therapeutic psychological therapy before an order for reinstatement is made. iii) The Tribunal may wish to place little, if any, weight on the evidence of Dr Gilliland. As he accepted in cross-examination, his opinion that the applicant was "fit to undertake bis usual duties as endorsed enrolled nurse without restriction" meant that there was no medical impediment to him performing the duties of an enrolled nurse on a ward, but did not reflect any opinion as to his suitability to do so. iv) The Tribunal may have reservations about the extent to which the applicant suffers from alcoholism or an alcohol use disorder, and the absence of any specific treatment for such a disorder. While at the time of his mi conduct hearing the applicant attributed his misconduct to heavy alcohol use, and accepted that be needed to go to Alcoholics in cross-examination he stated that he had not done so. His evidence was that he continues to drink albeit only socially and not regularly. The Commission accepts that account is consistent with evidence from Dr Gilliland and Ms Malone. Dr Gilliland, in response to questions from the Tribunal, did not think there had been a formal diagnosis and that treatment was required beyond referral to Ms Malone. Ms Malone considered that she did not see him as posing a risk of relapse. IMPOSITION OF CONDITIONS 9. ln the event that the Tribunal grants the applicant's application for reinstatement, the applicant has proposed that certain conditions be imposed on the applicant's registration under s 163B(4) of the National law. The Tribunal has invited the Commission to make submissions on appropriate conditions. 10. The primary position of the Commission remains that, in the event that the reinstatement application is granted, while it has the power to do so(under s 1638(4) of the National Law) the Tribunal should not impose conditions on the applicant's registration as to do so is premature when there is no immediate prospect of him returning the practice, and the National Nursing and Midwifery Board of Australia (the Board) may impose necessary or desirable conditions on his registration if and when he is registered, according to the circumstances then pertaining: s 83 National Law. 11. In accordance with s 1638(3) of the National Law, the effect of a reinstatement order is that the applicant would be able to be registered in accordance with Part 7 if he made an application for registration to the which decided to register him. In accordance with the Board's "Registration Standard: Recency of Practice" dated 1 June 2016, registration requires the completion of a minimum of 450 hours of practice within the past five years, successful completion of a program or assessment approved by the Board, and/or successful completion of a period of supervised practice approved by the Board. As the applicant acknowledges, he has not worked us an enrolled nurse since March 2015 (over 7 years ago), end there is no evidence that he would otherwise satisfy the recency of practice requirement. 12. Under s 163B(3A) of the National Law, any conditions imposed by the Board upon the applicant's re-registration will apply only to the extent that they are not inconsistent with conditions imposed by the Tribunal. There is a real prospect that conditions imposed by the Tribunal based on the current circumstances may not be appropriate if and when the applicant obtains registration. The Commission therefore submits that the Tribunal should not impose conditions at this point in time, as any conditions are a matter appropriately dealt with by the Board at a later date. 13. If the Tribunal nevertheless determines to impose conditions, based on the current circumstances the Commission consider the conditions proposed by the applicant to be suitable. COSTS 14. The Commission seeks an order that the applicant pay its costs, regardless of the outcome. 15. In Ake v Health Care Complaints Commission [2019] NSWCATOD 165, the Tribunal set out the relevant principles regarding costs in reinstatement applications at [46]-[50]. Relevantly, reinstatement proceedings can be seen as ancillary to the original misconduct proceedings, with the Commission appearing as a "public interest respondent" which should ordinarily obtain an order for its costs irrespective of the outcome. There are no "exceptional features" in the present case warranting a departure from that approach, noting that the applicant's impecuniosity does warrant such a departure: see Ake at [51]-[52]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].

Applicant's Submissions In Reply

By submissions in reply dated 19 December 2022, the Applicant stated as follows: 1. The Applicant makes the following short submissions by way of reply. 2. First, the Commission's position on the imposition of conditions is concerning and seemingly misconstrues the respective roles of the National Board, AHPRA and this Tribunal. It is so often the case that conditions similar to those proposed by the Applicant are made by this Tribunal which are conditions relating to disciplinary matters the subject of the original complaint. If there are specific conditions relating to the recency of practice or other registration requirements (the evidence led in this matter did not address recency of practice issues as that issue is not one before the Tribunal nor is it relevant to the current application) they can be dealt with by the National Board or AHPRA in the usual manner. Those types of issues are not within the remit of this Tribunal. 3. As seemingly admitted by the Commission at [13], this Tribunal has power under section 163B(4) of the National Law to impose appropriate conditions. The Applicant indicated upfront and at the hearing that he is prepared to agree to conditions on the reinstatement order to address any outstanding concerns regarding his ability or fitness to practice. The conditions proposed are wide-ranging and invasive and it is submitted, appropriate to address any outstanding issues as to both the Applicant's state of health, fitness and his level of training. If the National Board wants to impose further conditions relating to recency of practice or other registration requirements, the fact this Tribunal has already imposed conditions does not prohibit the National Board from doing so. 4. Second, the Applicant submits the evidence establishes that he does have insight into his conduct which gave rise to the Tribunal's findings made against him in 2019 and has demonstrated remorse for his actions. He admitted all facts at the initial hearing and expressed remorse at the time which was noted by the Tribunal in the initial decision and at the hearing of the reinstatement order. He was open, answered all questions of him in cross-examination properly and honestly and his evidence as to his state of health and fitness to practice should be accepted. 5. Third, in respect to the concerns made as to the Applicant failing to take steps to address his alleged alcoholism care should be exercised in acting on the Applicant's self-diagnosis when no medical diagnosis has in fact been made as indicated by Dr Gilliland. According to the Applicant he is able to have a social drink and then walk away. That is not a typical presentation of an alcoholic. He has controlled his prior excesses in alcohol which seemed to stem from anxiety. However, should this Tribunal still have concerns, this can be dealt with via the imposition of a condition by this Tribunal. The Applicant has indicated he is willing to attend a drug and alcohol councillor in relation to whether he needs to take any further steps should that be required by this Tribunal. 6. Fourth, the complaints made against the Applicant that he has not attended a psychologist regularly to have any real therapeutic effect is disputed. The Applicant is currently well and after many years has found medication which works for him, Metoprolol, which he regularly takes and which has addressed his anxiety issues. It was also clear that the Applicant has a good and supportive relationship with clinical psychologist, Kim Malone, and knows he has support there if he needs her when he needs that support. Finally, he has made it clear again upfront and still that he is prepared to agree to a condition that he regularly sees her and his GP for treatment going forward in accordance with the recommendations of Dr Jones and to submit to six monthly psychiatric review if required. 7. The Applicant also indicated he is prepared to agree to a reporting arrangement whereby Ms Malone or his GP may report any concerns they have to the Board. These risks and conditions can be easily managed through conditions. As indicated by Dr Jones further "There are multiple potential suitable conditions on registration that would assist in mitigating risks or concerns regarding Mr Nelson returning to practice. These would include such measures as graduated limited exposure to clients, the use of chaperones, the use of multiple supervisors, ongoing psychological and psychiatric monitoring. These measures are well and truly in the experience of bodies such as AHPRA and the Nursing and Midwifery Board." 8. Finally, technical criticisms and raising inconsistencies in the Applicant's evidence as to the instructions he gave to his doctors and the expert, Dr Jones as to the prior complaints is not of significance here. The Applicant is not a lawyer capable to regurgitating the ins and outs of a legal matter in detail and with an eloquence of someone with legal training nor are general interviews with a treating doctor or expert witness the appropriate forum in which to disclose to the level of detail seemingly required by the Commission. Such interviews are by their nature general especially where the Applicant's expert briefed the expert witness with a copy of the prior Tribunal decision. 9. The Applicant did not lie nor did he contort or twist the facts. It also needs to be recalled that at the initial hearing the Applicant while he did not accept all of the facts as alleged indicated to the Tribunal that he did not want to put the complainant through any more stress or angst by putting forward a different view so he chose to not contest her version. The Applicant also explained that history again at the hearing for reinstatement at this Tribunal. In such a context, it is not right to criticise the Applicant in circumstances where he has told his truth if such a truth departs slightly from the version accepted by the Tribunal at the initial hearing. 10. The application should be granted subject to the conditions proposed by the Applicant. There is little if no risk that such conduct shall ever be repeated and the Applicant's anxiety issues can be appropriately managed via conditions. 11. The Applicant wishes to be heard separately on costs at the appropriate time after a final decision is made. He opposes any costs order in favour of the Commission and wishes to address on that aspect on the papers once a final decision has been made in the usual manner in this Tribunal.

Decision And Reasons

The Tribunal having read the evidence contained in the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and the evidence contained in documents provided by the Respondent, having considered in detail the decision in the matter of Health Care Complaints Commission v Nelson [2019] NSWCATOD 22 and having taken into account the Applicant's and the Respondent's submissions, is comfortably satisfied that the Applicant is entitled to a reinstatement order by this Tribunal enabling the Applicant to make application to AHPRA and the Nursing and Midwifery Council for re‑registration as a nurse.
The Tribunal agrees with the submissions by the parties that it is not the role of this Tribunal to re‑examine the decision in the matter of Health Care Complaints Commission v Nelson [2019] NSWCATOD 22 but its role is to determine whether at this time the Tribunal believes that, subject to any decisions made by AHPRA and the Nursing and Midwifery Council when dealing with an application by the Applicant for reregistration, it is entitled to make such reinstatement order.
In coming to this conclusion, the Tribunal noted all of the above information which in the view of the Tribunal indicated that all witnesses who gave evidence and who were cross‑examined by the Respondent, hold a view that the Applicant should be reinstated and that the Applicant will not constitute a risk to members of the public. There were views expressed by various witnesses including by Dr Jones, who provided a report on an examination of the Applicant that reinstatement should carry with it various conditions to ensure the protection of the public. The Tribunal had regard to the views expressed by the Respondent that this Tribunal should not impose conditions if it determined that the Applicant should be entitled to apply for reregistration but that that task should be left to AHPRA and the Nursing and Midwifery Council. The Tribunal does not accept that submission. The Tribunal is of the view that it is entirely appropriate, if granting a reinstatement order, to impose such conditions on the Applicant when applying for reregistration and leaving it to AHPRA and the Nursing and Midwifery Council to determine whether they believe that any additional or varied conditions should be imposed on the registration of the Applicant.
Conditions which the Applicant was perfectly happy to accept were included in the submissions provided by the Applicant's counsel and on request to the Respondent to make any comment or call for any variation to those conditions, the Respondent refused to do so.
The Tribunal having considered the conditions proposed by the Applicant believes that those conditions plus any conditions additional which AHPRA and the Nursing and Midwifery Council may seek to impose, are adequate to protect the public.
The Respondent has called for an order for payment of its costs and has referred the Tribunal to the matters of Ake v Health Care Complaints Commission [2019] NSWCATOD 165 at [51] to [52] and Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at 42.
The Applicant has in its submissions in reply and at the end of the hearing requested that it be heard separately on costs at the appropriate time after a final decision is made. The Applicant opposes any costs order in favour of the Commission and wishes to address on that aspect on the papers once a final decision has been made in the usual manner in this Tribunal. While the Respondent has sought payment of its costs and referred to the two cases referred to above, there is no objection raised by the Respondent in respect of the costs being determined after the decision in the substantive matter.

Orders

Accordingly, the Tribunal makes the following orders. 1. The Tribunal grants a reinstatement order in favour of the Applicant subject to application to AHPRA and the Nursing and Midwifery Council subject to the conditions set out below and any additional or amended conditions imposed by AHPRA or the Nursing and Midwifery Council (the Council) when considering the application for reregistration by the Applicant: 1. the Applicant must provide to the Council, a copy of these conditions signed by the Applicant and by, and on behalf of, each employer indicating their awareness of the conditions and authorisation within one week of commencing work with such employer; 2. the Applicant must engage in a mentoring relationship for a period of at least 12 months, from the date that he recommences work as a registered nurse, with a registered nurse (Division 1) who does not have conditions on his/her practice. The registered nurse mentor must be approved by the Council; 3. the Applicant must: 1. provide the Council with the name, contact details and resume of the registered nurse who has agreed to act as a mentor; and as specified in the conditions; 2. authorise the mentor: 1. to notify the Council of any breach of the conditions including repeated failure to attend mentoring meetings; and 2. to exchange information with the Council in relation to the Applicant's compliance with the conditions; 1. provide to the Council a copy of the conditions signed by the registrant and by the mentor indicating awareness of the conditions and authorisation; 2. submit a mentoring plan developed in consultation with the mentor within 8 weeks of the mentor being approved by the Council. The plan must detail: 1. Specific objectives/outcomes of the mentoring relationship. The objectives/outcomes must relate to, but are not limited to, the following areas: professional boundaries and responsibilities, patient-nurse issues arising during his work as a nurse and the impact of personal challenges (for example, health or relationships) on his nursing practice and decision‑making; 2. Evidence which will demonstrate objectives/outcomes have been met; 3. Schedule of meetings with the mentor comprising a minimum of one meeting per month; 1. The Applicant must provide to the Council a mentoring report which is co‑signed by the approved mentor addressing: 1. Progress towards or achievement of specified objectives/outcomes; 2. Any challenges/issues affecting progress and a plan to deal with these; and 3. Any changes to practice resulting from mentoring/associated learning; 1. the mentoring report must be provided to the Council every 4 months during the currency of the mentoring relationship; 1. for a period of 3 years from the date the Tribunal makes a reinstatement order, the Applicant is to attend by a registered psychologist or registered psychiatrist of his choice for treatment, at a frequency to be determined by the treating practitioner, but for the first year it must be no less than once a month; 2. the practitioner is to: 1. authorise the treating practitioner to inform the Council of any failure to attend for treatment, termination of treatment, or if there is a significant change in health status (including a significant temporary change); and 2. provide the Council with the professional details of the treating practitioner; 1. for a period of 3 years from the date the Tribunal makes a reinstatement order, to attend for treatment by a registered General Practitioner of the Applicant's choice. The frequency of the treatment is to be determined by the treating practitioner but for the first year shall be no less than once a month. The practitioner: 1. is to authorise the treating practitioner to inform the Council of any of the following: failure to attend for treatment, or termination of the treatment, or a significant change in health status (including a significant temporary change); and 2. must provide the Council with the professional details of the treating practitioner; 1. for a period of two years, the Applicant shall submit to regular psychiatric review for assessment and monitoring of mental health should occur at a frequency of every 6 months and a report provided to the Council; 2. the Applicant shall also attend a drug and alcohol counsellor prior to making an application for registration and provide a letter of advice from the counsellor as to recommended management strategies which may be appropriate to him to manage his relationship with alcohol and such letter to be provided to the National Board for its consideration as to a further condition on his registration; 3. the appropriate review body for the purpose of a review of these conditions under sections 163‑163C of the National Law is the Council when the Applicant has a principal place of practice in New South Wales. In the event that the Applicant's principal place of practice is anywhere in Australia other than in New South Wales the appropriate review body shall in those circumstances be the relevant National Board. 1. There is a non‑publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of Patient A and Person A listed in the schedule to the Complaint.. 2. The costs associated with the application shall be determined by the Tribunal on the papers in due course.

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: 24 January 2023

At a glance

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Judgment (14 paragraphs)

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Cases Cited (18)

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