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[2014] NSWCATOD 94
NCAT Occupational
2014-07-08
Original judgment source is linked above.
What the Tribunal decided 1The Tribunal dismissed an application made by the applicant Mr Bhavesh Shah pursuant to s163B of the Health Practitioner Regulation National Law (NSW) No 86a (National Law) to be reinstated to the Register of Nurses. 2All statutory references are to the National Law except where stated otherwise.
Background to the application 3On 12 March 2013 the Nursing and Midwifery Tribunal of NSW (NMT) ordered the cancellation of Mr Shah's registration as a registered nurse. Shortly before the hearing Mr Shah admitted three complaints of unsatisfactory professional conduct and one complaint of professional misconduct, and further admitted to a lack of competence to practice nursing: see Shah v HCCC [2013] NSWNMT 1. 4A summary of the matters leading to the NMT's decision to cancel Mr Shah's registration is conveniently set out at paragraphs [5] to [9] of that decision as follows: 5. Mr Shah is a 32 year old man who was born in India. His first language is Gujarati. In India he obtained tertiary qualifications, including a post-graduate qualification in Biotechnology. In 2009 he successfully completed a Bachelor of Nursing Degree at the University of Western Sydney, and was first registered on the National Register of Health Practitioners on 28 January 2009. Following his registration he obtained employment as a registered nurse at the Sydney Adventist Hospital, Wahroonga ("the hospital") where he had previously worked since 2007 as an assistant in nursing. He was admitted to the hospital's graduate program on commencement of his employment. 6. On 25 May 2009, shortly after his first employment as a registered nurse, Mr Shah gave Mr UP, 79 year old patient ("Patient A"), who had recently undergone right hip replacement surgery, a green liquid from a bottle marked with the label "Cardizem Capsules 180mg. take 1 p.o. daily." The green liquid was "Morning Fresh" liquid dishwashing detergent, and was regularly used by Patient A at his home to clean his dentures. 7. A complaint about Mr Shah's actions in respect of the administration of the dishwashing detergent came to the attention of his supervisors, as did concerns that his English language skills appeared inadequate for those required by a registered nurse. These complaints eventually led to the then NSW Nurses and Midwives Board ("the NSW Board") placing conditions on Mr Shah's registration on 1 October 2009. These conditions required inter alia that Mr Shah only administer medication under direct supervision of a registered nurse and that he notify any employer of this condition. 8. In September 2010 the NSW Nursing and Midwifery Council ("the Council") imposed an additional condition on Mr Shah's registration, namely, that he complete, before 7 December 2010, an academic English competency examination, the International English Language Testing System ("IELTS"), with a minimum score of 7 in each of the four components (listening, reading, writing and speaking). Mr Shah did not successfully complete the IELTS examination. As a consequence, in February 2011, the Council advised Mr Shah it proposed to impose two conditions under s150(1)(b) of the National Law, namely, that he not practise nursing (that is, that his registration be suspended) and that he must complete an academic IELTS with an overall score of 7 in each component before 31 August 2011. 9. Following written submissions, made on behalf of Mr Shah by the New South Wales Nurses' Association ("the Association") to the Council, the proposed suspension of his registration was not implemented. However, on 3 March 2011, the Council imposed more onerous conditions on Mr Shah's registration. One of the conditions imposed was the foreshadowed requirement to complete the academic IELTS examination gaining the score of 7 in each component. Similar conditions were again imposed on 23 January 2012. It is not in dispute that Mr Shah did attempt the academic IELTS on six occasions between February 2009 (prior to his graduate employment) and August 2011, but has not achieved the overall score of 7 or above in all four categories as required by the Council as a condition of his registration. 5In addition to cancelling Mr Shah's registration, the NMT ordered that a period of not less than 12 months elapse from the date of its orders before Mr Shah apply could be apply to be registered on the Register. (We note that the NMT was abolished on 31 December 2013 (see the Civil and Administrative Tribunal Act 2013 (NSW), Schedule 1, Division 2, Clause 3) and the NMT's functions taken over by this Tribunal.) The NMT also ordered that any review of its decision be heard by the NMT (now this Tribunal).
Summary of applicant's evidence 6The applicant tendered a bundle of documents (A1 to A7). These relevantly included his statement dated 9 May 2014 (A1); his curriculum vitae (CV), undated (A2); a letter from Sydney Language Solutions Pty Ltd dated 8 May 2013 (A3) and two references (A5 and A7). 7These documents were all tendered without objection. Mr Shah's statement (A1) fulsomely refers to the events described above and the subsequent decision of the NMT to cancel his registration. He stated that he had read the orders of the NMT and understood its reasons for its decision, including both the inadequacy of his English and his competence to administer medication. He said he accepted the findings of the NMT. He also said that he understood that he bore the onus of proof in satisfying this Tribunal that he is now a fit and proper person to practice. 8His statement sets out at some length the steps he had taken to eliminate his deficiencies in English. These steps included his four attempts to pass the Occupational English Test (OET) in the period May 2012 to May 2013. Mr Shah states that the OET is "an international English test to assess the language and communication skills of the individual in listening, reading, speaking and writing". We understand that many professional boards and councils within the Australian Health Practitioner Regulation Agency (and the New Zealand healthcare regulators) accept the OET as an indicator of English. No issue was taken by the respondent as to the appropriateness or sufficiency of the OET qualification. 9In addition to addressing his English deficiencies Mr Shah also undertook various courses of varying lengths which are described in his statement. These courses include what he described as courses concerning "nursing ethics, medication administration, communication, knowledge and skills" at various institutions. He says that by undertaking those courses he has "achieved knowledge and skills to assist [him] in gaining the ability to better contribute to the work force. It has taught [him], most importantly to be honest and take responsibility for any mistakes [he] may make so as to better rectify the situation". 10He says at [26] that: "By undertaking these courses I have achieved knowledge and skills to assist me in gaining the ability to better contribute to the work force. It has taught me most importantly to be honest and take responsibility for any mistakes I may make so as to better rectify the situation. 11The statement also sets out his understanding of the appropriate protocols for the administration of medication. 12By way of submission he refers in paragraph 30 of his statement to the judgment of Kirby P in Pillai v Messiter (No. 2) 1989 16 NSWLR 197 at 201) that "delinquents and wrong-doers . . . should be removed from the register or from the relevant role of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed". 13Mr Shah says that his "disqualifying imperfections" have now been removed. 14Also included in Mr Shah's materials were two character references. The first (A5) was from Ms Chaukra, the General Manager of his current employer, Quality Care Nursing (QCN). QCN provides nursing personnel to health facilities in New South Wales. Mr Shah has been employed there in different roles since January 2009. He is currently working about 16 hours per week in the role of an assistant trainer. Ms Chaukra stated that Mr Shah is very careful, has learned from his mistakes, and is a fit and proper person to be held out to patients and the community as a person worthy of their confidence. 15The second reference (A7) is a personal reference from a clinical nurse educator employed by Sydney West Area Health Services. The writer has had no professional dealings with Mr Shah and simply states that, relevantly, Mr Shah is kind and helpful, and a responsible family man who looks after his family. 16Mr Shah was cross-examined by the respondent's counsel Mr Griffin. In particular he was examined at length about the accuracy of the statements contained in his CV attached to his statement. Mr Shah was repeatedly asked by Mr Griffin when was the last occasion he had worked as a nurse. The answer, with some equivocation, was 2011. However the documentary material placed before the Tribunal by the respondent, and ultimately agreed to by Mr Shah, demonstrated that the last occasion that he worked as a nurse was 30 December 2009, when he was terminated from his position as a registered nurse at Prince of Wales Hospital (POW). 17There were other issues with his CV (A2). While his CV stated that he was employed a registered nurse at POW from 2010 to 2012, he in fact was employed there (a) as a casual registered nurse from June to September 2009 and as a (b) fulltime nurse from 6 October 2009 to 30 December 2009. While his CV stated that he employed as a casual registered nurse at Bankstown Lidcombe Hospital from 2009 to 2010, he in fact was employed there from June 2009 to September 2009. While his CV states that he was employed at Sydney Adventist Hospital as a registered nurse from Mar 2009 to June 2009, in fact he was employed there from 28 April 2009 to 9 June 2009. While his CV states that he was employed at the SAN as an assistant in nursing (AIN) from November 2006 to November 2008, in fact he was employed there from May 2007 to March 2009. 18These facts were agreed to by the parties and set out in a document jointly tendered to the Tribunal shortly before the conclusion of the hearing. 19Nor does his CV, or statement, refer to the fact that the Nursing and Midwifery Board of NSW imposed on him, pursuant to s48 of the Nurses and Midwives Act 1991, four conditions on his registration (namely on 1 July 2010, on 2 September 2010, on 3 March 2011, and on 23 January 2012) relevantly including that he (a) only administer medications under the direct supervision of another registered nurse not subject to conditions on registration and (b) advise all current and future employers of such conditions were imposed. 20Mr Shah's counsel asked him in re-examination whether he had intentionally tried to deceive or mislead the Tribunal in presenting his CV in the way he did. He denied this to be the case. 21Mr Shah conceded in cross-examination that he did not tell initially his employers at Lidcombe Bankstown about the events at the SAN, including that he had been terminated.
Summary of respondent's evidence 22The respondent tendered a bundle of documents (R1 to R16). These relevantly included correspondence (R2 to R4, R9 to R13)), statements of Mr Ramiah dated 25 January 2010 (R5), a statement of Mr Ramiah dated 25 January 2010, a statement of Ms Lynette Saul dated 4 February 2010 (R6), Ms Saul's curriculum vitae (R6A); clinical records (R7 and R8); a statement of Mr Shah dated 23 January 2013 provided to the NMT (R14); registration documents pertaining to Mr Shah's registration produced by the Australian Health Practitioner Regulation Agency and the NSW Nursing & Midwifery Council (R15) and various documents produced by NSW Health South East Sydney Local Health District under cover of a letter dated 4 July 2014 (R16). 23These documents were all tendered without objection. Many of the documents related to the complaint before the NMT. We note that it is not the role of this Tribunal in this application to review the order of the NMT of 12 March 2013 or any findings made in connection with the making of that decision: subs 163C(2) of the National Law. 24Mr Griffin called Ms Saul. She was the New Graduate Nurse Co-Ordinator at the SAN at the time of Mr Shah's employment. She was cross-examined by Ms Alexander. She was an impressive and careful witness. However since she has not spoken to or ever met Mr Shah again since the events of 2009 her evidence was of little significance to the Tribunal, which must to determine the appropriateness, at the time of this review, of the order concerned (s163C(1)). Relevant provisions of the National Law 25This is an application pursuant to s163A of the National Law. That section provides that a person (in this case Mr Shah) may apply to the appropriate review body (in this case this Tribunal) for a review of a relevant order made in relation to the person (in this case the relevant order is the order of the NMT of 12 March 2013 ordering that Mr Shah's registration be cancelled). 26Pursuant to s163B(1) the appropriate review body (the Tribunal) may relevantly:
Approach to be taken 34Mr Griffin referred the Tribunal to the decision of the NMT in Scully v HCCC [2013] NSWNMT 7 which summarizes the relevant principles in reinstatement cases. We summarise those principles as follows:
Guiding principle - paramount consideration 37We also note however that an objective and "guiding principle" of the national registration and accreditation scheme provided for by the National Law is the protection of the public through ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (para. (3)(2)(a)). 38Furthermore, in all applications in which the Tribunal in NSW is involved, the protection of the health and safety of the public is the paramount consideration (see s3A).
Consideration 39It is against that statement of those principles that we turn to a consideration of Mr Shah's application for reinstatement. 40At para. [99] of its reasons for decision the NMT stated: [We] consider it is appropriate that, for the benefit of Mr Shah and any Tribunal which may consider a review, after the expiration of 12 months, of the orders of this Tribunal, that we record the material appearing in Ms King's written submission under the heading "Notes regarding proposed orders". Ms King states: In considering any application to join the Register, the practitioner's application should be considered by a Tribunal that has before it: (i) Evidence regarding English language proficiency and satisfaction of current statutory English language requirements as determined at the relevant time by Nursing and Midwifery Board of Australia; and (ii) Evidence regarding knowledge, skill and judgement in the practice of nursing that accords with the prescribed requirements as determined by the Nursing and Midwifery Board of Australia for registration within the division of nursing at the relevant time. 41The NMT noted that it was not necessary to make any order that any review should be conditional upon satisfying sub-paragraphs (i) and (ii), and that satisfaction of those matters would appear to be pivotal to any successful application for re-registration. That statement accurately states the two concerns before the NMT at the time it made its decision to cancellation Mr Shah's registration as a registered nurse.
English language proficiency 42It will be recalled that previous conditions placed on the applicant's registration required him to undertake and successfully complete an English competency examination, the International English Learning Testing System. Mr Shah attempted to do so on a number of occasions but was unsuccessful. However we understand that many professional boards and councils within the Australian Health Practitioner Regulation Agency (and the New Zealand healthcare regulators) accept the OET as an alternative indicator of English proficiency. Thus no issue was taken by the respondent as to the appropriateness or sufficiency of the OET qualification. 43Accordingly the Tribunal is satisfied that the applicant demonstrates today English language proficiency and the satisfaction of the current statutory English language requirements as determined by Nursing and Midwifery Board of Australia by registration as a registered nurse.
Knowledge, skill and judgement in the practice of nursing 44The totality of the material placed before us in support of the application for reinstatement was Mr Shah's statement (A1), his CV (A2), the materials relating to English proficiency and the materials relating to the courses he has undertaken since his registration was cancelled (A3), the work reference from Ms Chaukra (A5) and the personal reference from Mr Daddikar (A7). We shall consider each in turn. 45Mr Shah's statement was amplified briefly by Mr Shah during examination in chief by Ms Alexander. Mr Shah confirmed that he understood the "five golden rules" in relation to the administering of medication; that he needed to check the expiry dates of medication and the medication charts, and to raise any concerns with a supervisor. He also said that he was now a proper person to work as a registered nurse and had the appropriate knowledge and skills. 46We have noted above that the respondent took no issue with the applicant's English proficiency. As to the various courses he has undertaken, again there was no real issue that he had undertaken and completed appropriate and useful courses during the period that his registration had been cancelled. 47The references relied on by Mr Shah are of minimal assistance to the Tribunal. 48Of most significance is Mr Shah's CV, which we have referred to above, and his cross-examination in relation to it. Such an inaccurate CV (described sensitively by his counsel as "a mish mash") gives the Tribunal real reason to question the care and attention to detail given by Mr Shah in preparing his application for reinstatement to the Register. That concern naturally affects the Tribunal's consideration Mr Shah's application for reinstatement. The conduct of Mr Shah examined by the NMT amounted to unsatisfactory professional conduct, professional misconduct and a lack of competence to practice nursing. The medication issue was held to be "a serious error . . . either, by lack of English skills, or because of reckless indifference" (see [72] of the NMT's reasons). It would appear that, to put it neutrally, the lack of care exhibited by Mr Shah in 2009 has been repeated in his application for reinstatement, principally in his CV which is full of errors as to his work history and fails to state that conditions had been placed on his registration on four occasions. 49His explanation, advanced by Ms Alexander, that the mistakes made in the dates of the first entry subsequently caused all the following entries to be inaccurate should be rejected. In any event, that explanation does not explain his failure to indicate that no less than four conditions had been placed on his registration. If the respondent had not sought and produced the materials contained in Exhibit R15, in particular the "Confirmation of Registration Status" produced by the Australian Health Practitioner Regulation Agency and extracted from the National Register of Health Practitioners, this Tribunal would have been done the wiser about Mr Shah's real work history and the conditions placed on Mr Shah's right to practice. 50Mr Griffin submitted, the original complaints also involved questions of honesty; here again the question of honesty may be thought to arise given that the effect of the uncorrected CV was potentially to mislead this Tribunal. Mr Griffin submitted that by the inaccurate contents of his CV Mr Shah attempted to let the Tribunal believe that there were no concerns about his competence, no restrictions on his right to practice and no disciplinary complaints. 51Mr Griffin further submitted that the question for the Tribunal was one of trust; that all regulatory regimes hold the expectation that professional people will deal with the institutions by which they are employed in an open and honest manner. He posed the question whether we had confidence that Mr Shah would act honestly and transparently in his professional role. 52There is substance in these submissions. However we do not think it necessary to decide whether or not Mr Shah acted dishonestly or intentionally attempted to mislead us. Given that the principal documents on which Mr Shah relies in asking us to reinstate him to the register are his statement and his CV, it is of real concern that the CV in particular contains many inaccuracies and fails to state any of the four conditions that had been placed on his registration. 53In our view this demonstrates a real lack of care, at least, in the preparation of his application for reinstatement. Given that: (a)Mr Shah bears the onus of proving that he is a fit and proper person to be engaged in the profession of nursing as an registered nurse; (b)an applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears a heavy onus of proving the case; (c)the jurisdiction we exercise is for the protection of the public; (d)the power to reinstate should be exercised with great caution and only upon solid and substantial grounds; (e)the general "guiding principle" of the national registration and accreditation scheme provided for by the National Law is the protection of the public through ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered and; (f)in applications in NSW the protection of the health and safety of the public is the paramount consideration, We are unable to conclude, on the basis of the materials before us, and in light of the errors and misstatements in Mr Shah's CV in relation to his work history, that Mr Shah has discharged the necessary onus for us to order him to be reinstated to the Register.
Conclusion 54The application is dismissed. 55We propose that a period of nine moths elapse before Mr Shah may apply again under s163A of the National Law to the NSW Civil and Administrative Tribunal (NCAT) to be re-registered on the Register. However as we have not had the benefit of submissions from either party on this matter, Mr Shah may file submissions within 14 days of the date of these reasons if he wishes to submit that some shorter period is appropriate. The respondent may respond in a further 14 days if it wishes to. 56We also propose that Mr Shah be ordered to pay the respondent's costs, as agreed or assessed. The ordinary rule is that it is for the applicant Mr Shah, as the unsuccessful party, to justify why an order be made other than one that he pay the Board's costs: see Smith v Nursing and Midwifery Board of Australia (No. 2) [2013] NSWNMT 14 at [23]. 57If Mr Shah wishes to file submissions seeking some other order as to costs he should do so within 14 days of the date of these reasons. The respondent may respond in a further 14 days if it wishes to.
Orders
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: 21 August 2014
Shah
Health Care Complaints Commission