Shah v Health Care Complaints Commission

NCAT Occupational|2016-02-19

Pursuant to s 163B(4) of the National Law, the following conditions are imposed on Shah's registration:

Employment 1. Upon returning to practice in a clinical role as a registered nurse, Mr Shah must only work in a hospital setting for a period of 12 months (full time equivalent hours) and thereafter for a duration determined by the Nursing and Midwifery Council of NSW.

Upon returning to practice in a clinical role as a registered nurse, Mr Shah is not to work as a sole nurse on a ward or unit, as an in-charge nurse or team leader, or in circumstances where he does not have a senior nurse in a supervisory capacity within the workplace, for a period of 12 months (full time equivalent hours) and thereafter for a duration determined by the Nursing and Midwifery Council of NSW.

Upon returning to practice in a clinical role as a registered nurse, Mr Shah is not to work night shift for a period of three months (full time equivalent hours).

Upon returning to practice in a clinical role as a registered nurse, Mr Shah must not engage with an agency for the purpose of nursing for a period of 12 months (full time equivalent hours) and thereafter for a duration determined by the Nursing and Midwifery Council of NSW.

Before commencing work or employment as a registered nurse, Mr Shah is to inform all future nursing employers of the conditions on his registration, and provide the Nursing and Midwifery Council of NSW with the name and contact details of each employer.

While subject to conditions, Mr Shah must notify the Nursing and Midwifery Council of NSW within seven days of any changes to his residential address or employer.

Mr Shah must only be employed as a nurse in circumstances where the employer has agreed to notify the Nursing and Midwifery Council of NSW of any breach of the conditions or unsafe practice, and exchange information with the Nursing and Midwifery Council of NSW related to compliance with the conditions. This condition is to remain in place until all the conditions are removed.

Supervision Day to day supervision by RN (Division 1)

Upon returning to practice in a clinical role as a registered nurse and for a period of three months (full time equivalent hours), and for any further period as determined by the Nursing and Midwifery Council of NSW, Mr Shah's administration of medication must be directly supervised by a registered nurse (Division 1):

(a) with at least two years' experience as a registered nurse;

(b) who is approved by the Nursing and Midwifery Council of NSW; and

(a) who does not have any conditions on his/her practice.

Upon returning to practice in a clinical role as a registered nurse and for a period of one month (full time equivalent hours), Mr Shah must practice under the direct supervision of a registered nurse.

Upon returning to practice in a clinical role as a registered nurse for a period of 12 months (full time equivalent hours), and for any further period as determined by the Nursing and Midwifery Council of NSW, Mr Shah must practise under the indirect or direct supervision of a registered nurse (Division 1) with at least two years' experience as a registered nurse, and who is approved by the Nursing and Midwifery Council of NSW ("indirect supervision"). At all times, the supervisor must:

(b) be on-site and working in close proximity within a ward or unit with Mr Shah; and

Supervision report by nurse manager 11. Upon returning to a clinical role as a registered nurse, and for as long as his registration is subject to supervision conditions, Mr Shah must be supervised by a nurse unit manager (or equivalent):

(a) approved by the Nursing and Midwifery Council of NSW;

(b) who has agreed to oversee supervision and designate supervisors as referred to in conditions (6) and (7).

Mr Shah must provide the Nursing and Midwifery Council of NSW with the name, contact details and résumé of the nurse manager who works on the same premises as Mr Shah for approval, within 28 days of returning to a clinical role as a registered nurse.

(a) arrange the meetings with the nurse manager in person monthly;

I. notify the Nursing and Midwifery Council of NSW of any breach of the conditions or unsafe practice;

II. inform the Nursing and Midwifery Council of NSW if there are any concerns relevant to Mr Shah's performance as a registered nurse;

III. inform the Nursing and Midwifery Council of NSW of any failure by Mr Shah to attend a meeting with his nurse manager, of any termination of supervision, or any other matter his nurse manager considers appropriate; and

IV. provide the Nursing and Midwifery Council of NSW with a copy of the conditions signed by Mr Shah and by the nurse manager indicating awareness of the conditions and authorisation.

(d) Authorise the nurse manager to provide a written report after one month from the date of supervision, then at three months from the date of supervision, and then at three-monthly intervals about:

I. the practitioner's performance against the competency standards for a registered nurse (Division 1) approved by the Nursing and Midwifery Board of Australia initially; II. any matters the nurse manager considers necessary arising from the practitioner's supervision. 14. Should the approved nurse manager no longer be able to provide supervision, Mr Shah must submit the details of another appropriately qualified senior registered nurse supervisor to the Nursing and Midwifery Council of NSW, within two weeks of being so notified by nurse manager or becoming aware of same.

Education 15. Mr Shah is to enrol in and complete, at his own expense, any program nominated by AHPRA as necessary that he undertake to satisfy the Recency of Practice standard.

Mr Shah must provide to the Nursing and Midwifery Council of NSW:

(a) within 12 months of the Tribunal's decision (or longer if approved in writing by the Nursing and Midwifery Council of NSW upon the written application of the Practitioner), evidence of enrolment in the approved program;

(b) within three months of Mr Shah completing the approved program, or within three months of commencing work as a registered nurse (whichever period is longer), an appropriate document from the educational institution indicating successful completion of all components of the approved program.

Review Body 17. The Nursing and Midwifery Council of NSW is the appropriate body for the purposes of ss 163 - 163C of the National Law when Mr Shah's principal place of practice is in New South Wales.

Sections 125 - 127 of the National Law are to apply should Mr Shah's principal place of practice be anywhere in Australia other than in New South Wales so that the appropriate review body in those circumstances is the Nursing and Midwifery Board of Australia. Catchwords: PROFESSIONAL DISCIPLINE - Nurse practitioner - application for reinstatement to the register practitioner - rehabilitative steps - compliance with conditions - application granted subject to strict conditions. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Scully v HCCC [2013] NSWNMT 7 Health Care Complaints Commission v Shah [2013] NSWNMT 1 Shah v Health Care Complaints Commission [2014] NSWCATOD 94 HCCC v Guo [2011] NSWNMT 29 Shah v Health Care Complaints Commission [2014] NSWCATOD 94 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Brown v Health Care Complaints Commission [2015] NSWCATOD 40 Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 Category: Principal judgment Parties: Bhavesh Shah (Applicant) Health Care Complaints Commission (Respondent) Representation: Solicitors: NSW Nurses' Association (Applicant) Health Care Complaints Commission (Respondent in person) File Number(s): 1520217 Publication restriction: It is prohibited to disclose the name of, or any information, or other material that identifies or is likely to lead to the identification of "Patient A".

REASONS FOR DECISION

Bhavesh Shah has applied for review of the decision made by the Nursing and Midwifery Tribunal of NSW (NMT) to cancel his registration as a registered nurse (Health Care Complaints Commission v Shah [2013] NSWNMT 1) (the Cancellation decision). The trigger for the complaint, referred for determination to the NMT, was an incident in May 2009, where Mr Shah mistakenly gave dishwashing detergent to a patient, thinking it was medication. Stored in a bottle labelled "Cardizem Capsules", the detergent was used by the patient to clean his dentures. Cardizem is a drug used to treat hypertension. The NMT ordered that Mr Shah's registration be cancelled and that he not seek review of that order until 12 months had elapsed.
In 2014, Mr Shah unsuccessfully applied to the New South Wales Civil and Administrative Tribunal (NCAT) for review of the Cancellation decision: Shah v Health Care Complaints Commission [2014] NSWCATOD 94.
In these Reasons we consider Mr Shah's second application for review of the Cancellation decision. For the reasons that follow, we have decided to make a reinstatement order and, in addition, to impose conditions on Mr Shah's registration.

The Cancellation decision

In August 2012, the Commission lodged four complaints with the NMT asserting that Mr Shah was guilty of unsatisfactory professional conduct, professional misconduct, and was not competent to practice as nurse (s 139B(1)(a) and/or (c), s 139E and s 139 of the Health Practitioner Regulation National Law (NSW) (the National Law). Mr Shah admitted the particulars and allegations in each of the complaints. The primary issue the NMT was required to decide was what, if any, protective orders should be made.
In reasons given for the decision to cancel Mr Shah's registration, the NMT (Hon J Boland AM, L Schalk, K Sherwood and C Gardiner) summarised the background to that decision: 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, a 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.
The NMT noted (at [73]) that while at the time of the incident Mr Shah had only recently been registered as a nurse and been working in his position at the hospital for a short period, he had however undergone medications training immediately prior to this incident. The NMT considered it relevant that on becoming aware of his error, Mr Shah "failed to act promptly and appropriately with complete disregard for Patient A's care and safety": (at [73]).The NMT found that his actions in administering dishwashing detergent to the patient were "a serious error…either, by lack of English skills, or because of reckless indifference".
The NMT also considered it relevant that, despite six attempts, Mr Shah failed to successfully complete the International English Language Testing System (IELTS) examination, a condition imposed by the NSW Nursing and Midwifery Council: (at [74], [76]). The NMT reasoned that this indicated that Mr Shah "lacks the necessary proficiency in reading and writing to assume the responsible position enjoyed by a registered nurse in whom the general public can repose trust": (at [74]).
The NMT found that Mr Shah's conduct, the subject of the complaint before it, demonstrated unsatisfactory professional conduct and professional misconduct. In addition, the NMT found that Mr Shah's lack of proficiency in the English language meant that he was not competent to practice as a health professional. Section 139(b) of the National Law provides that a person is competent to practice a health profession, only if the person has sufficient communication skills for the practice of the profession, including an adequate command of the English language.
In deciding whether to cancel or suspend Mr Shah's registration, the NMT adopted the reasoning in HCCC v Guo [2011] NSWNMT 29. In Guo, in deciding whether to cancel rather than to suspend a practitioner's registration, the Tribunal reasoned if the practitioner were suspended, it would not be possible to determine whether at the end of the period of suspension, they "had cured [their language] deficiencies and…was a fit person in all respects to be registered": (at [80] - [87]).

The first review decision

On review of the Cancellation decision in 2014, the Tribunal (constituted by R C Titterton, R O'Donnell, M Constable and M Barnett) decided not to make a reinstatement order and to dismiss Mr Shah's application for review of the Cancellation decision. The Tribunal found (at [43]) that Mr Shah was now able to demonstrate proficiency in the English language. However the Tribunal found that the lack of care he exhibited in administering dishwashing detergent to a patient, which ultimately led to his deregistration, had again been demonstrated in his application for reinstatement (at [48]). The Tribunal noted that the CV prepared by Mr Shah attached to his application for reinstatement was replete with errors, including statements that he had been employed as:

a registered nurse (RN) at the Prince of Wales hospital (POW) from 2010 to 2012 despite last working as an RN at POW on 30 December 2009 after his employment was terminated (at [16]);
a casual RN from 2009 to 2010, when he was in fact employed between June 2009 and September 2009 (at [17]);
an RN from March 2009 to June 2009 at the Sydney Adventist Hospital when in fact he was employed between 28 April 2009 and 9 June 2009 (at [17]);
an assistant in nursing (AIN) at the Sydney Adventist Hospital from November 2006 to November 2008, when in fact he was employed between May 2007 and March 2009.

In addition, the Tribunal noted (at [19]) that Mr Shah made no mention in either his CV or the statement prepared in support of his application for review, that the Nursing and Midwifery Board of NSW had imposed conditions on his registration (on 1 July 2010, 2 September 2010, 3 March 2011, and 23 January 2012) 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 those conditions were imposed.
The Tribunal declined, as urged by the Commission, to find (at [52]) that these errors demonstrated that Mr Shah had acted dishonestly or had intended to mislead. However, the Tribunal found (at [52], [53]) that his lack of care in relation to the preparation of his application for reinstatement, demonstrated that Mr Shah has failed to prove he is a fit and proper person to be reinstated to the Register.

Statutory framework

The objectives of the national registration and accreditation scheme include to provide for 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) of the National Law). In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration (s 3A of the National Law).
The guiding principles of the national registration and accreditation scheme include that restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality (s 3(3)(c) of the National Law).
The power to review the Cancellation decision is contained in Division 7 of Part 8 of the National Law. Section 163A of the National Law is contained in Division 7 and gives Mr Shah a right to apply to the "appropriate review body" for review of the Cancellation decision. As a consequence of the decision made on 27 November 2015 by NCAT Deputy President, Her Honour Acting Judge Boland, in this matter, NCAT is the appropriate review body.
Section 163B(1) of the National Law sets out the powers of the appropriate review body on review: 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; ... (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; … (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.
A review conducted under Division 7 of Part 8 of the National Law is a review to determine the appropriateness, at the time of the review, of the order concerned (s 163C(1)). The review is not to review the decision to make the order the subject of the application for review, or any findings made in connection with the making of that decision (s 163C(2)). In addition to any other matter the 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 (s 163C(3)).
Contained in Part 7 of the National Law, headed "Registration of health practitioners", s 52 provides: 52 Eligibility for general registration (1) An individual is eligible for general registration in a health profession if - (a) the individual is qualified for general registration in the health profession; and (b) the individual has successfully completed - (i) any period of supervised practice in the health profession required by an approved registration standard for the health profession; or (ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession; and (c) the individual is a suitable person to hold general registration in the health profession; and (d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and (e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession. (2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83.
Section 53 of the National Law states: 53 Qualifications for general registration An individual is qualified for general registration in a health profession if - (a) the individual holds an approved qualification for the health profession; or (b) the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification; or (c) the individual holds a qualification, not referred to in paragraph (a) or (b), relevant to the health profession and has successfully completed an examination or other assessment required by the National Board for the purpose of general registration in the health profession; or (d) the individual - (i) holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for general registration (however described) in the health profession; and (ii) was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification.

Exercise of the power to make a reinstatement order

In Scully v HCCC [2013] NSWNMT 7 (Scully), the NMT usefully summarised the principles that apply to the exercise of the power to make a reinstatement order:

the applicant bears the onus of proving that he or she is a fit and proper person to be engaged in the relevant health profession (Scully at [41] and the authorities referred to);
the standard of proof to be applied is the civil standard of proof, the balance of probabilities, tempered by the requirements of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) (Scully at [41] and the authorities referred to);
the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction is exercised is for the protection of the public (Scully at [47] and the authorities referred to);
the power to reinstate should "be exercised with great caution and only upon solid and substantial grounds" (Scully at [48] and the authorities referred to);
there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance (Scully at [49] and the authorities referred to);
in making an assessment of the applicant's worthiness and reliability for the future the Tribunal may draw inferences from what has happened in the past and, in particular, what led to them being removed from the Register. (Scully at [50] and the authorities referred to). These principles have consistently been applied by NCAT, see for example; Shah v Health Care Complaints Commission [2014] NSWCATOD 94; Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155; Brown v Health Care Complaints Commission [2015] NSWCATOD 40, and Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43.

Employment history and qualifications

Mr Shah was born in India where he obtained tertiary qualifications, including a post-graduate qualification in Biotechnology. He also holds a Bachelor of Nursing from the University of Western Sydney. He was registered as a nurse practitioner in January 2009. Following his registration he obtained employment as an RN at the Sydney Adventist Hospital, where he had been working as an AIN since 2007.
In a statement prepared for these proceedings, Mr Shah outlined his employment history and training undertaken since his registration had been cancelled in March 2013. He stated that he continued to be employed by Quality Care Training Services in an education and support role and at the same time as an AIN through Quality Care Nursing Agency. According to Mr Shah, Quality Care operates both as a training provider and a nursing agency.
The CV attached to that statement contained the following summary of Mr Shah's recent employment history: Employment History Quality Care Nursing Agency Nov-2014 - current POW AIN casual Quality Care Nursing Agency Aug 2014 - current Concord Repatriation Hospital AIN casual Quality Care Nursing Agency July 2012 - current Education and clerical support person casual Quality Care Training Services July 2011 - July 2012 Assistant education support person - Certificate III Casual - 16 hr pw

In cross-examination, Mr Shah explained that since 2014 he has been an "agency nurse" at both POW and Concord hospitals. He conceded he has worked only one shift at POW and explained that he preferred to work at Concord hospital because it was closer to his home. He denied that by including the POW entry in his CV he sought to represent that he had been working continuously at POW since November 2014.
He agreed he did not advise either Concord or POW hospital of the 2014 decision, explaining he believed he was not required to do so as he was not working as a registered nurse. He stated if he were to be reinstated he would undertake to advise any prospective employer of both the 2014 decision and the Cancellation decision.

Discrepancy between statement of service and CV

In 2014, Mr Shah applied to upgrade his classification as an AIN Year 1. One of the pre-conditions for reclassification was the completion of 3000 "clinical service hours". In support of his application, Mr Shah prepared and submitted a statutory declaration, declared on 15 October 2014 (the statutory declaration), listing an estimate of the number of hours he had worked as both an AIN and RN. That statutory declaration together with a CV apparently prepared in 2015 (the 2015 CV) was produced in these proceedings by Quality Care in answer to a summons issued at the request of the Commission.
In these proceedings, Mr Shah was questioned about a number of apparent discrepancies between the CV attached to the statement prepared for these proceeding, the 2015 CV and the statutory declaration. For example, in relation to his employment at Monte Fiore Nursing Home, the CV states that Mr Shah worked between 10 May 2007 and 15 February 2009, whereas the statutory declaration states that he worked until 19 June 2009. He stated that the entry in the CV was accurate and the statutory declaration contained only "an estimate" of the period of his employment. He asserted that the authority charged with the task of determining his application for reclassification was only concerned with the number of hours, not the period, worked.

Reference provided Mr Sheela Chaukra

In support of his application, Mr Shah provided a reference prepared by the general manager of Quality Care, Sheela Chaukra, dated 3 December 2015.
Mr Chaukra stated that since joining the agency in January 2010, Mr Shah has worked in nursing homes, hospitals, and mental health facilities. He stated that he has found Mr Shah to be a "constantly pleasant person" who has the ability to present "creative ideas" regarding patient healthcare and hygiene. He wrote that Mr Shah is skilled in report writing and "monitoring vital signs". According to Mr Chaukra, in addition to his nursing roles, Mr Shah has undertaken various roles in Quality Care's training arm. He wrote that at all times Mr Shah has followed the organisation's policies and protocols.
In Mr Chaukra's opinion, Mr Shah is reliable and trustworthy and never passes up an opportunity to "learn and improve". He stated that since the 2014 Decision, Mr Shah has attended multiple Continuing Professional Development (CDP) courses in an effort to improve his proficiency in the English language and his clinical skills. He stated that during this period Mr Shah had made every effort to be "careful, accurate and task oriented". In his opinion, Mr Shah is an "honest and fit and proper person".
In a performance evaluation questionnaire completed in March 2015, Mr Chaukra gave a detailed assessment of Mr Shah's performance in the discharge of his duties as an AIN. He gave Mr Shah an overall assessment of "excellent". In addition, he wrote that Quality Care has received "very positive feedback" about Mr Shah from all places where he has worked.

Reference purportedly provided by Helen Kamali

In the 2015 CV Mr Shah nominated Helen Kamali as a referee. The Commission called Ms Kamali to give evidence.
Ms Kamali is the staffing manager at Concord hospital, a position she has held for the past 15 years. Her responsibilities include preparing the hospital's nursing roster. In that role, Ms Kamali liaises with nurse managers to ensure any staff shortages within the hospital are covered.
When questioned about whether she had agreed to act as a referee for Mr Shah, Ms Kamali stated she knew Mr Shah but could not recall being approached by him to act as his referee. Initially in evidence she said she could not recall being approached by Mr Shah but later said he was "very confident". She stated if she had been asked to act as Mr Shah's referee, as is her usual practice when approached by a member of the nursing staff, she would have refused. She claimed it is not uncommon for nursing staff, especially where engaged through an agency, to list her as a referee without seeking her consent. She stated that when approached by prospective employers her practice is to say she is unable to comment on an individual employee's work performance.
She said it was likely that she would be advised by a Nursing Unit Manager if they had experienced a problem with an agency nurse. She stated she had not heard any adverse reports about Mr Shah.
Mr Shah stated he was confident he had asked Ms Kamali to act as his referee and claims to have a clear recollection of doing so.

English language proficiency

As noted, the NMT found that Mr Shah lacked the necessary proficiency in the English language to undertake the responsibilities of a registered nurse. As at the date of the NMT hearing, 30 January 2013, Mr Shah had unsuccessfully sat the IELTS examination on six occasions (7 February 2009, 9 October 2010, 30 October 2010, 19 May 2011, 11 June 2011, and 13 August 2011).
In May 2013, Mr Shah passed the Occupational English Test (OET). The Tribunal on review noted (at [8]) that the OET test was accepted by many boards and councils within the Australian Health Practitioner Regulation Agency as an indicator of proficiency in the English language. The Tribunal concluded that despite Mr Shah's failure to satisfy the Council's requirement of achieving an overall score of at least seven in the IELTS examination, his OET qualification demonstrated sufficient proficiency in the English language.
Subsequently Mr Shah made further attempts to improve his proficiency in the English language. He has recently completed a short course designed to improve his pronunciation, diction and inflection.
It is apparent from his difficulties in obtaining a qualification in English language proficiency that Mr Shah is not a natural linguist. Nonetheless, we agree with the finding made by the Tribunal in 2014 that he now demonstrates reasonable proficiency in the English language.

Steps taken to mitigate risk of repeating error

In a statement prepared for these proceedings, Mr Shah wrote that he has spent "many hours" reflecting on the reasons for the Cancellation decision. He stated that it has always been his ambition to become a "respected and competent health practitioner". He claimed that since making the initial application for review he has focussed on obtaining skills to improve his confidence and general understanding of nursing. Mr Shah listed in his statement the professional development courses undertaken since the Cancellation decision was made, which include numerous short courses offered by NSW Health on ethics and various areas of clinical practice, including medication administration and dosage calculation. He stated he now fully appreciates of the need to be extremely careful in administering medication, and the real risk that a patient may suffer serious harm if he is not. Expanding on these claims, he claimed in oral evidence that he is now very careful in his work and if uncertain, always seeks guidance from his supervisor.
He stated that while he accepted and understood the basis of the decision made by the Tribunal in 2014, he had not intended to mislead the Tribunal.

Findings and conclusions

Mr Shah seeks reinstatement but also accepts that his registration should be subject to conditions. The Commission does not oppose that application. The parties are largely in agreement about the appropriate form of conditions. We will return to consider the areas of disagreement.
While the Commission does not oppose reinstatement, we nonetheless must be independently satisfied that Mr Shah can now be trusted to practise the profession of nursing in a way that conforms to the professional standards expected of a nurse practitioner and, in particular, in a manner that presents no material risk to the safety of the public and their confidence in the nursing profession. The paramount consideration in deciding whether to exercise the power to make a reinstatement order is the protection of the public.
We agree with the view expressed by the NMT that pivotal to any successful application for reinstatement is that Mr Shah demonstrate (i) proficiency in the English language and (ii) 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 (the Board) (at [99], [100]).
For the reasons given above we are satisfied that Mr Shah is now able to demonstrate reasonable proficiency in the English language.
With respect to the second issue, the evidence reveals that Mr Shah has gone to considerable lengths in the intervening period since the Cancellation decision was made to demonstrate that he possesses the knowledge, skill, and judgement to be reinstated as a nurse practitioner. Since that time, he has worked continuously on a causal basis as an AIN. While some caution must be exercised in accepting Mr Chaurak's glowing assessment of Mr Shah's clinical skills given he has neither worked with, nor supervised Mr Shah in a clinical environment, nonetheless, his assessment is consistent with Mr Shah's self-report that since the Cancellation decision to his knowledge no adverse reports have been made about him. That claim is also supported by the evidence given by Ms Kamali. Mr Shah's claim to have made real and genuine attempts to address the shortcomings identified by the NMT, in particular his lack of attention to detail in the administration of medication, is bolstered by the training he has undertaken in a range of areas of clinical practice.
The primary reason given by the Tribunal for not reinstating Mr Shah's registration in 2014, was because it could not be satisfied that Mr Shah had addressed the underlying problems which ultimately led to his deregistration: lack of English skills, reckless indifference or a combination of both. In these proceedings we also identified a number of errors and discrepancies in the documents prepared by Mr Shah relating to his employment history. While these shortcomings do not assist Mr Shah, nonetheless they were at the low end of the scale and Mr Shah provided a reasonably plausible, if not compelling, explanation for the discrepancies contained in his supporting documentation.
More troubling, was the listing of Ms Kamali as one of Mr Shah's referees. We think it improbable as claimed by Mr Shah that she consented to being nominated as his referee. We think it more probable that Mr Shah simply assumed she would not object to being approached to verify his period of service at Concord Hospital. While of concern, of itself it does not indicate that Mr Shah is not a suitable person to hold registration in the health profession.
We are satisfied that Mr Shah is again fit to practise as a registered nurse, subject to the conditions outlined below. In reaching that decision we consider the following to be relevant. First, in the original proceedings Mr Shah admitted all of the allegations and particulars of the Complaint. Second, in those proceedings and consistently thereafter, Mr Shah has expressed remorse for the actions which led to his deregistration. We accept his expression of remorse to be genuine and sincere. Third, we are satisfied that he understands the basis on which the findings of professional misconduct and unsatisfactory professional conduct were founded. Fourth, we are satisfied he now appreciates the harm caused or potentially caused to the patient the subject of the initiating complaint, and the need for vigilance and adherence to relevant protocols in the administration of medication. Fifth, he has made substantial efforts to address his lack of proficiency in the English language and to improve his clinical skills.
Subject to the strict conditions discussed below, we are satisfied that the order of deregistration is no longer appropriate.

Form of conditions

As noted above, the parties are largely in agreement about the form of conditions to be imposed on Mr Shah's registration. In our view the conditions we have adopted are appropriate and necessary for the protection of the public and not unduly onerous. In summary, they require Mr Shah to:

for a period of at least 12 months upon returning to practice in a clinical role, to work only in a hospital setting and not through an agency or as a sole nurse, in-charge nurse or team leader;
inform all future nursing employers of the conditions on his registration;
only accept employment where the employer has agreed to notify the Nursing and Midwifery Council of NSW (NMC) of any breach of the conditions of his registration or unsafe practice;
for a period of at least three months upon returning to clinical practice, to only administer medication under the direct supervision of a registered nurse, approved by the NMC;
for a period of at least 12 months on returning to clinical practice, to work under the direct or indirect supervision of a registered nurse;
be subject to the supervision of a NUM approved by the NMC, throughout the period his registration is subject to conditions;
complete a program nominated by the Australian Health Practitioner Regulation Agency (AHPRA) to satisfy the Recency of Practice standard.

The areas of difference between the parties about the conditions are largely form not substance. With respect to the conditions relating to the supervision by the NUM, the parties differ about the level of guidance to be given to the NUM about his/her role in supervising Mr Shah and reporting to the Board. We appreciate Mr Shah's concern that if the conditions are overly prescriptive, this may dissuade a prospective employer from hiring him. While detailed, the conditions relating to the supervision by the NUM is not especially onerous. Importantly, they provide guidance to the NUM about their role in supervising Mr Shah and the associated reporting obligations.
We have decided to add to the conditions proposed by the parties two further conditions: (i) that Mr Shah not work night shift for the first three months on returning to practice and (ii) to work under the direct supervision of a RN for the first month after returning to practice. These conditions in our opinion will both bolster the level of support available to Mr Shah on return to clinical practice after a long absence. In addition they will make it more likely that any issues of concern are promptly identified and able to be resolved.
The only other significant point of difference between the parties is whether it is appropriate to require Mr Shah to undertake some form of refresher training. Pursuant to s 32 of the National Law, the Board has developed the Recency of practice registration standard 2010 (the Standard), which was approved by the Australian Health Workforce Ministerial Council on 31 March 2010. Relevantly, the Standard requires that practitioners who have not practiced as a nurse or midwife for five years or more must satisfactorily complete a program or assessment process approved by the Board.
The parties agree that Mr Shah does not meet the Standard because he has not worked as a RN for over five years. The Commission proposed and we agree that he be required to satisfy the following condition: Mr Shah is to enrol and complete, at his own expense, any program nominated by AHPRA as necessary that he undertake to satisfy the Recency of Practice standard.
Mr Shah objects to the imposition of this condition. He states he has no in principle objection to undertaking further study, but submits that the Board, not the Tribunal, should decide whether further training is required. He points out that the Nursing and Midwifery Board of Australia Recency of Practice fact sheet, March 2015, indicates that it is not a mandatory requirement that an applicant for registration who has not practiced for over five years undertake further re-entry training and it is open to the Board to impose an alternative requirement a period of supervised practice. In addition, he points to the practical difficulty of meeting the proposed requirement given that two of the courses approved by the Board, namely those offered by the Sydney Adventist Hospital and the Australian College of Nursing, require course participants to have at least 12 months postgraduate clinical nursing experience, a condition which he cannot meet.
In response, the Commission points out that not all courses require participants to have 12 months postgraduate clinical nursing experience, pointing to, for example, the course offered by the Institute of Health and Nursing.
In our view, given that Mr Shah has not practiced for over five years, it is appropriate and in the interests of ensuring patient safety that he undertake additional study. In deciding whether it is appropriate to grant Mr Shah's application for reinstatement, his competence to practice, which includes having sufficient knowledge and skill, is a relevant consideration. It is difficult to see how Mr Shah could satisfy that requirement without undertaking some form of re-entry training.

Costs

The parties have agreed that the issue of costs should be determined after each has had an opportunity to consider the reasons for our decision. We make the following orders: 1. Any party electing to make an application for costs, must file and serve that application and any submissions in support, within 14 days of the date of this decision. 2. If a party opposes an application for costs, they must file and serve any submissions in reply within 14 days of receipt of the application and submissions. 3. Within 14 days of the date of this decision, the parties must notify the Tribunal and each other if they object to the issue of costs, being determined "on the papers". 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: 27 May 2016

At a glance

Court

Decision date

Source

Judgment (50 paragraphs)

Parties

Cases Cited (6)

Cited By (3)