Turicik v Nursing and Midwifery Board of Australia

NCAT Occupational|2024-07-30

Introduction

The appellant, Mr Vladislav Turicik, applied for provisional registration as a registered nurse on 16 January 2023. He previously held general registration as a registered nurse from February 2012 to 31 May 2019, at which time he decided not to renew his registration. On 5 October 2023, the respondent, the Nursing and Midwifery Board (the Board), determined to refuse the application on the grounds that Mr Turicik was not a suitable person to hold registration because it was of the opinion he was unable to practise competently and safely.
Mr Turicik has appealed the decision of the Board. In his grounds of appeal, Mr Turicik contends that the decision of the Board was procedurally unfair. The decision was a punishment and was an inappropriate method for dealing with 'one off' incidents or errors. The Board did not undertake a proper investigation and its view of his unsuitability for registration was based on an inappropriate performance assessment which was discriminatory and excessive. The assessment was undertaken in a strict hospital environment and was not tailored to the scope and type of practice that Mr Turicik had previously been engaged in, where he had primarily worked in aged care. He was ambushed and the assessment was therefore unfair. Mr Turicik seeks an order that the Tribunal substitute the appellable decision with a decision that he be granted provisional registration on conditions.
Mr Turicik is self-represented. He gave evidence at the hearing and made oral and written submissions. The authors of the performance assessment report relied on by the Board to refuse Mr Turicik's provisional registration were required to give evidence at the hearing. One of the assessors gave evidence. Mr Turicik did not require the second assessor for cross-examination.
The Tribunal was provided with copies of documents by both parties said to be relevant to the appeal.
We have decided to confirm the Board's decision. Mr Turicik's appeal is dismissed. We have ordered that Mr Turicik pay the Boards costs as agreed or assessed. Our reasons follow.

Background

Mr Turicik was a registered nurse for seven years prior to the expiry of his registration on 31 May 2019. He has a Master of Nursing, conferred by the University of Sydney on 8 April 2007. Mr Turicik was born in Slovakia and migrated to Australia many years ago. He is 58 years old, speaks several languages and has had a varied career, both before and after arriving in Australia as an Airforce and Police officer in the Czech Republic, a helicopter pilot and a care assistant working in residential aged care. During the period of his registration as a nurse, Mr Turicik worked in acute and aged care with various Sydney public hospitals and agencies, including the Royal Prince Alfred Hospital, where he worked for over three years, the Corporate Care nursing agency, where he was contracted to work at the Royal North Shore Hospital for nearly a year, and over two years with United Protestant Association of New South Wales (UPA) working in aged care at Stanwell Park.
The events leading to Mr Turicik's decision not to renew his registration in 2019 and the work that he has been undertaking since that time provide important background and context for the current appeal. The facts are not in dispute and the key events are summarised below.
By letter dated 22 June 2018, Mr Turicik notified the Australian Health Practitioner Regulation Agency (AHPRA) about allegations that had been made by his previous employer, UPA, relating to his performance and conduct as a registered nurse. These allegations arose out of work undertaken by Mr Turicik at Kennett Home, which is an aged care facility operated by UPA in Stanwell Park. Further detail about these allegations, which gave rise to Mr Turicik's notification, are contained in documents provided by Mr Turicik in these proceedings.
In brief, by letter dated 8 November 2017 Mr Turicik was required by UPA to attend a meeting at Kennett Home to discuss concerns about his conduct and performance. In a letter dated 15 December 2017, it is recorded that UPA determined it would not take any further action in relation to the matters raised, having regard to the matters discussed at a meeting between Mr Turicik and the Sydney District Manager and the human resources advisor for UPA. In further correspondence of 13 March 2018 (incorrectly dated 2017) from UPA to Mr Turicik, UPA outlined concerns regarding Mr Turicik's performance and his role as a registered nurse. The letter particularised six breaches that were alleged, including breaches of UPA's Code of Conduct and failure to follow various UPA policies and procedures, such as the UPA Abuse of Older People policy and procedure, the UPA Wound Care policy and procedure, the UPA Specialised Care policy and procedure and the UPS Pain Management policy and procedure. It is apparent that this letter was incorrectly dated '2017' because it refers to a request for a meeting on 16 March 2018. Mr Turicik responded by letter dated 16 March 2018, noting the incorrect date of the previous correspondence, denying these allegations and raising concerns about the allegations made.
On 14 March 2018 he made a complaint to the Health Care Complaints Commission (HCCC) in relation to UPA and certain named practitioners working at Kennett Home. The complaint alleged aged care abuse. He also made a complaint to the Fair Work Commission by letter dated 16 April 2018 about workplace bullying at Kennett Home. It is apparent that Mr Turicik was terminated by UPA and that he commenced proceedings against UPA for unfair dismissal. This is evidenced by an outline of submissions made to the Fair Work Commission by Mr Turicik dated 25 July 2018. These submissions record that Mr Turicik was notified of his dismissal on 25 May 2018.
Mr Turicik's dispute with UPA was resolved by Deed of Release dated 17 August 2018. The terms of the deed are confidential but resolved all issues between the parties to the deed.
In his letter to AHPRA dated 22 June 2018, Mr Turicik provided details of the allegations of serious misconduct made against him, details of his application to the Fair Work Commission and his termination and information relating to the claims he made in the Fair Work Commission which, at that stage, was listed for a conciliation on 29 June 2018. In his letter, which is headed 'voluntary notification', Mr Turicik advised as follows: As the matter is deemed to be serious, (at least by the UPA) I request AHPRA for an assessment, for instance if there is any effect on my registration/ability to work as an RN. At the moment I am not practising/employed, registered at the Centrelink.
It appears that this letter was referred to the Nursing and Midwifery Council (the Council), which initiated a performance review of Mr Turicik. Included in the Board's bundle of documents are emails between the Council and Mr Turicik from September 2018 to June 2019 relating to the performance review. In an email from Mr Turicik to the Council dated 3 October 2018, he provided various documents requested by the Council, which included his curriculum vitae, his academic record and a UPA statement of service. In February 2019 the Council advised Mr Turicik that he would be scheduled for a performance interview on 21 March 2019. Mr Turicik advised that he was travelling overseas in May 2019 and, accordingly, the performance interview was rescheduled to 20 June 2019. Mr Turicik did not attend the interview and the sequence of events leading to the interview and the outcome of the review are summarised in the Performance Interview Report of the interview panel dated 28 June 2019. There were two interviewers and a Council officer in attendance at the scheduled interview.
The events in 2019 provide relevant contextual background to the current proceedings. The fact that the performance review process was not finalised is one of the matters that led to the Board requiring Mr Turicik to undergo a performance assessment when he sought re-registration. In his evidence in these proceedings, Mr Turicik expressed regret that he did not engage in the performance review at that time and subsequently decided not to renew his registration. Mr Turicik now says that he made this decision in circumstances where he was under significant pressure as a result of the dispute with UPA. He believes this caused other problems for him, which have now left him in the position of being refused provisional registration as a registered nurse. Mr Turicik contends, and this submission is outlined in more detail later in these reasons, that the refusal was the result of an unfair process but also arose from unfair circumstances with its genesis in the dispute that he had with his previous employer UPA, which itself had under acted unfairly.
In his email of 13 June 2019, Mr Turicik noted that the tone of the paperwork provided in preparation for the interview focused on complaints made against him by UPA, as if he was in the wrong when in fact there is evidence to the contrary. He noted that the performance review was triggered by his own self notification, UPA never reported the allegations despite labelling them as 'serious misconduct' and, despite knowing that there were proceedings before the Fair Work Commission, the Council commenced the review process which he considered was unfair in the circumstances. Mr Turicik further stated that he did not want to duplicate the evidence and information that he had already provided. The thrust of this correspondence was Mr Turicik felt aggrieved by the fact that he had to defend himself. This was the basis for his concern about the humiliation of having to go through the issues again.
The Performance Interview Report summarised the events and correspondence leading up to the scheduled interview and the issues, outcome and recommendations to the Council. The authors of the Report were the two nominated interviewers. It is recorded that Mr Turicik was invited to attend the performance interview and he responded that he would not be renewing his registration. It is further recorded that the Council advised Mr Turicik he would need to surrender his registration formally and that he would still need to attend the performance interview until his notice of surrender was returned and completed. Mr Turicik responded by email that he did not intend to surrender his registration, nor did he attend intend to attend the performance interview scheduled for 20 June 2019.
The Report records that, on review of the information, the panel members did not consider Mr Turicik had provided reasonable grounds for not attending the interview and determined to proceed in his absence. The panel discussed the performance issues identified in the documentation in Mr Turicik's absence and noted that there was no evidence that Mr Turicik had remediated his performance or that he had sought further education relevant to his deficits. It is also recorded that the panel considered Mr Turicik did not understand his professional obligations, which included engaging with the regulator, but noted that the risk was mitigated by the fact that Mr Turicik was not working as a registered nurse, even though his registration remained valid unless not renewed, as of 1 July 2019.
The panel recommended to the Council that Mr Turicik be subject to a performance assessment and that the assessment should be measured against the Registered Nurse (Division 1) Standards for Practice. It was also recommended that the performance assessment should focus on eight specified areas, including medication administration, patient assessment, duty of care and teamwork and collaboration. It was further recommended that the Council write to Mr Turicik acknowledging receipt of his response, providing him with a copy of the Performance Interview Report and advising that he had been referred for a performance assessment.
A detailed record about what happened following this recommendation is not included in the documents provided by either Mr Turicik or the Board, but it appears that Mr Turicik did not renew his registration on 31 May 2019. On 23 July 2019, the Council wrote to AHPRA advising that the matter would be discontinued and that a complaint would not be referred in circumstances where Mr Turicik had ceased to be registered. It was noted that a record of the notification would be kept by the Council to be considered in the event of further notifications relating to the health, conduct and performance of Mr Turicik. It was also noted that Mr Turicik may, in the future, apply for registration with the Board and it was recommended that if so, Mr Turicik be required to undertake a performance assessment at that time.
Mr Turicik was sent correspondence by the Council on 23 July 2019. He responded by email dated 23 July 2019 stating that "hypothetical re registration as an RN would almost certainly constitute a deep psychological trauma". He also made a complaint to AHPRA by email dated 22 July 2019 expressing his concern about the process leading to the performance review, the fact that he had not received notification of the outcome and advising that he was considering taking legal redress against the Council.
After his registration expired, Mr Turicik completed a Juris Doctor degree at the University of New South Wales, conferred on 25 September 2019, and worked as a home care employee providing community care for elderly clients from 2020 to 2022. From 2022 to date, he has worked in voluntary roles with St. John's Ambulance and the NSW State Emergency Service. At the time of the appeal, Mr Turicik was working as an assistant in nursing in a casual role at the Prince of Wales Hospital.

Appellable decision

On 16 January 2023 Mr Turicik applied for provisional registration as a registered nurse. His application was accompanied by copies of his academic records and transcripts, a mapping template prepared by Mr Turicik (based on a Board template) and his curriculum vitae.
After assessing the application, it was decided by the Board at a meeting on 2 March 2023 that before re-registration would be considered Mr Turicik should undergo a performance assessment by assessors approved by the Board. There were several reasons cited for this, summarised as follows. While Mr Turicik previously held general registration, he had made a self-notification as the result of allegations made by his employer about his performance. The notification resulted in Mr Turicik being required to attend a performance interview with the Council and to complete a performance assessment. Mr Turicik did not attend the required performance interview and the assessment was not completed at this time. Mr Turicik's registration lapsed on 1 July 2019. In addition, Mr Turicik did not meet the Board's recency of practice registration standard as he last practised in February 2018 and had only completed approximately 122 hours of practice in the past five years.
Mr Turicik was notified of the proposed performance assessment by letter dated 2 March 2023. The Board appointed two assessors to undertake the performance assessment, which took place on 16 May 2023. The performance assessment, and the process followed by the Board, is at the heart of Mr Turicik's concern. Given the importance of the performance assessment, the recommendations made and the evidence of the assessor and Mr Turicik about the performance assessment, the evidence relating to these matters are set out in more detail later in these reasons.
It is apparent from the documents provided by the Board that the process of refusing an application for registration is a two-stage process. First, the matter is referred to the Board for consideration of a proposal to refuse an application for registration. If the Board decides to support the proposal, this is referred to an applicant for comment. After the applicant provides comments or submissions, the matter is again referred to the Board for consideration. The Board then considers the original referral, submissions made by the applicant and any amended recommendations and makes a decision in relation to the application for registration at a second Board meeting.
Consistent with this procedure, at a meeting held on 3 August 2023, the Board considered a proposal to refuse Mr Turicik's application for provisional registration as a registered nurse. The minutes record that the Board made a decision that it proposed to refuse Mr Turicik's application.
By letter dated 3 August 2023, Mr Turicik was notified of the proposed refusal. The letter set out the grounds for the proposed refusal. Mr Turicik provided submissions dated 3 August and 8 September 2023 responding to the notification. The application for provisional registration, including the submissions made by Mr Turicik, was considered by the Board on 5 October 2023. In an agenda paper provided to the Board, it was recommended that Mr Turicik's application for provisional registration as a registered nurse be refused. This decision was confirmed by the Board on 5 October 2023. Mr Turicik was notified of the decision by letter dated 5 October 2023 and he immediately appealed this decision to this Tribunal.
The grounds for the proposed refusal are set out in the Board minutes of 3 August 2023. These grounds were subsequently adopted by the Board at its meeting on 5 October 2023, with some revisions to take into account Mr Turicik's submissions. As such, it is apt to summarise the reasons for the proposed refusal.
It is noted in the reasons for the decision made on 3 August 2023 that the panel constituted in 2019 had recommended that if Mr Turicik decided to apply for re-registration, he should be required to attend a performance assessment against the Nursing and Midwifery Board of Australia Registered Nurse Standards for Practice, focusing on particular areas. The Board had considered the application for re-registration and decided to require Mr Turicik to undergo a performance assessment by a Board approved assessor. This assessment was completed on 16 May 2023. In their report dated 26 May 2023, the assessors opined that Mr Turicik was not able to demonstrate satisfactory clinical skills, knowledge and judgement expected of a registered nurse of Mr Turicik's experience in order to practise the profession safely and independently. The assessors also opined that the likelihood of negative consequences for patient outcomes "remains high". According to the assessors, Mr Turicik displayed extremely limited insight into his deficits in nursing knowledge and clinical skills and he did not hold the independent skills, knowledge or judgement to practise as a registered nurse. Seven deficits were identified.
The assessors concluded that Mr Turicik is not safe to return to practice as a registered nurse without direct supervision. It was recommended that Mr Turicik complete education, face to face essential, as approved by the Board in relation to the 15 areas identified in the report. In the draft decision it is noted that in the Board's opinion, Mr Turicik was not able to practise the profession competently and safely and he should be refused on the grounds that he was not a suitable person to hold registration.
Mr Turicik provided two submissions. The first submission was dated 3 August 2023. Mr Turicik noted that he had not received the Performance Assessment Report and therefore could not comment but believed the decision of the Board was a punishment, an inappropriate method for dealing with one off incidents or errors and was at alternative to a proper investigation. He submitted that the performance assessment was not tailored to his scope and type of practice and that the result was discriminatory and excessive.
Mr Turicik made similar submissions on 8 September 2023, noting that he had only just received a copy of the Performance Assessment Report. His submission was to the effect that the Board, as well as the assessors, were aware of the fact that he had practised in a pre-hospital environment only since August 2016 and had worked in age care and now was currently working with St. John's Ambulance. He objected to the assessment being undertaken under hospital conditions and noted that nursing practice was not restricted to the provision of direct clinical care. He therefore contested the choice of the type of assessment and submitted that it was inaccurate and misleading for him to be assessed at this level. The Board's reliance on this assessment was discriminatory and excessive as a means of necessary precaution and lacking 'a fair go'. Mr Turicik also submitted that the assessors had proposed further education, supervision and mentoring but this was not the approach taken by the Board, which had simply refused his application.
In its decision of 5 October 2023, the Board summarised the history of the matter and the recommendations made by the assessors. The Board referred to Mr Turicik's submissions said to be dated 3 September and 8 September 2023, although they were actually dated 3 August and 8 September 2023. The Board concluded that the submissions made by Mr Turicik did not change its decision for the following reasons: 1. In response to the complaint by Mr Turicik that the performance assessment was an inappropriate method for dealing with one off incidents or errors, the Board observed that Mr Turicik's previous employer, UPA, had raised a number of concerns about Mr Turicik's performance including breach of their code of conduct and failure to follow various important clinical policies and procedures. The inference being that the Board did not consider the previous issues raised to be one off incidents or errors. 2. Mr Turicik raised a complaint that the performance assessment was undertaken in a 'strictly hospital' environment which was not tailored to his scope and type of practice and the practice that he had worked in since August 2016. The Board noted that it did not regulate a scope of practice and it was necessary to ascertain whether a practitioner was safe to practise in a general scope of practice upon re-entry. It was also observed that as Mr Turicik worked in aged care, and this required acute nursing skills to assist vulnerable patients and to ensure they are properly cared for to prevent hospitalisation. It was noted that Mr Turicik's management and provision of care, including written assessments to assess his documentation of care and medication knowledge and administration, were assessed as part of the performance assessment. The results of the written assessment component indicated Mr Turicik did not demonstrate satisfactory skills of safe medication administration despite the length of his nursing experience. This was a basic requirement for practice. The assessors also found that Mr Turicik displayed extremely limited insight into his deficits in nursing knowledge and skills clinical skills. 3. There was a complaint made by Mr Turicik that the assessors had proposed further education, supervision and mentoring but Mr Turicik had been given no explanation as to why this was not an acceptable proposal for him. The Board noted that there were significant concerns regarding Mr Turicik's ability to practise in the profession safely and that it had been determined that these issues were far ranging and could not be mitigated by conditions. It was also noted that the deficits identified were fundamental to the practice of nursing and could not be remedied by education. 4. The Board acknowledged that there were delays in considering Mr Turicik's application for registration but noted that the application was incomplete when it was received and a number of outstanding documents were not provided until late January and February 2023, at which time the application was prepared for the next meeting of the Board in March 2023.
In summary, the Board determined that Mr Turicik's submissions did not establish any material difference from the information previously considered at its meeting in August 2023. Accordingly, the Board determined to proceed to refuse to grant Mr Turicik's provisional registration as a registered nurse on the grounds that it had formed the view Mr Turicik is unable to practise the profession competently and safely.

Legislative Framework

The Health Practitioner Regulation National Law (NSW) (the National Law) establishes a national registration and accreditation scheme for the regulation of health practitioners and the registration of students undertaking programs of study that provide a qualification for registration in a health profession or clinical training in a health profession.
Section 3(2) of the National Law provides that the objectives of the national registration and accreditation scheme are: 1. 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; 2. to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and 3. to facilitate the provision of high quality education and training of health practitioners; and (ca) to build the capacity of the Australian health workforce to provide culturally safe health services to Aboriginal and Torres Strait Islander Peoples; and 1. to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and 2. to facilitate access to services provided by health practitioners in accordance with the public interest; and 3. to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
Section 3A of the National Law sets out the guiding principles. Section 3A(1) provides that the main guiding principle is that the protection of the health and safety of the public must be the paramount consideration. Other guiding principles are that the scheme is to operate in a transparent, accountable, efficient, effective and fair way; the scheme is to ensure the development of a culturally safe and respectful health workforce that is responsive to Aboriginal and Torres Strait Islander Peoples and their health and contributes to the elimination of racism in the provision of health services; fees required to be paid under the scheme are to be reasonable having regard to the efficient and efficient operation of the scheme and 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.
Section 38 of the National Law provides that the National Board must develop registration standards which include requirements for continuing professional development for registered health practitioners registered in the profession and requirements in relation to the nature, extent, period and recency of any previous practice of the profession by applicants for registration. The National Board means a National Health Practitioner Board continued or established by regulations made under the National Law. The Board is a National Board for the purposes of the National Law.
Section 39 empowers the National Board to develop and approve codes and guidelines to "provide guidance to the health practitioners it registers and about other matters relevant to the exercise of its functions".
Part 7 of the National Law deals with the registration of health practitioners. Section 52 provides that an individual is eligible for general registration in a health profession if, relevantly, the individual is qualified for general registration in the health profession and is a suitable person to hold general registration in the health profession.
Section 55 relevantly provides, (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if - (h) in the Board's opinion, the individual is for any other reason-- (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely.
Section 62 deals with eligibility for provisional registration. It is in similar terms to s 55 but expressly provides that the provisional registration is to "enable the individual to complete a period of supervised practice that the individual requires to be eligible for general registration in the health profession". An individual is eligible for provisional registration pursuant to s 62 if the individual is qualified for general registration and is, relevantly, a suitable person to hold provisional registration in the profession. Section 62(2) provides that the National Board may decide that the individual is eligible for provisional registration by doing either or both of the following, namely, imposing conditions on the registration under s 83 or accepting an undertaking from the individual under s 83A.
Section 63 deals with unsuitability to hold provisional registration and provides: (1) Section 55 applies to a decision by a National Board that an individual is not a suitable person to hold provisional registration in a health profession. (2) For the purposes of subsection (1), a reference in section 55 to general registration in the health profession is taken to be a reference to provisional registration in the health profession.
Section 80 provides that, before deciding an application for registration a National Board may, amongst other things, by written notice given to the applicant require the applicant to undergo an examination or assessment within a reasonable time and at a reasonable place to assess the applicant's ability to practise the health profession in which registration is sought.
Section 81 of the National Law provides that if, after considering an application for registration and a National Board is proposing to refuse to register the applicant or to register the applicant subject to a condition, the Board must give the applicant written notice of the proposal, stating the reasons for the proposal and inviting the applicant to make a written or verbal submission within a specified period of time to the Board about the proposal.
Section 82 contains the provisions dealing with the decision about an application and provides: Decision about application (1) After considering an application for registration and any submissions made in accordance with a notice under section 81, a National Board established for a health profession must-- (a) decide to grant the applicant the type of registration in the health profession applied for if the applicant is eligible for that type of registration under a relevant section; or (b) decide to grant the applicant a type of registration in the health profession, other than the type of registration applied for, for which the applicant is eligible under a relevant section; or (c) decide to refuse to grant the applicant registration in the health profession if-- (i) the applicant is ineligible for registration in the profession under a relevant section because the applicant-- (A) is not qualified for registration; or (B) has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board to assess the individual's ability to practise the profession; or (C) is not a suitable person to hold registration; or (D) is disqualified under this Law from applying for registration, or being registered, in the health profession; or (E) does not meet a requirement for registration stated in an approved registration standard for the profession; or (ii) it would be improper to register the applicant because the applicant or someone else gave the National Board information or a document in relation to the application that was false or misleading in a material particular.
Section 83 provides that a National Board may register a health professional subject to conditions. A National Board must give the applicant written notice of the Board's decision within 30 days after making the decision pursuant to s 84. The notice must state the reasons for the decision, give the applicant notice that he or she may appeal against the decision and provide particulars of how an application for appeal may be made and the period within which the application must be made.
Section 175(1) provides that a person who is the subject of the decisions enumerated in the subsection, which includes a decision by a National Board to refuse to register the person, may appeal against the decision to the appropriate responsible tribunal. Section 6C of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), which has the effect of adopting the National Law in New South Wales, provides that this Tribunal is the responsible tribunal for the purposes of the National Law. Section 31 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) provides that the Tribunal has external appeal jurisdiction over a decision made by an external decision maker if legislation provides that an appeal may be made to the Tribunal against such decision. Thus, by operation of s 175(1) of the National Law, s 6C of the 2009 adopting legislation and s 31 of the CAT Act, the Tribunal has jurisdiction to hear and determine this appeal.
Section 175(3) provides that the appeal is to be dealt with by way of a new hearing and fresh evidence, with evidence in addition to or in substitution for the evidence that was before the National Board, may be given.
Section 175B provides that the responsible tribunal make any order about costs it considers appropriate for the proceedings. Section 175C provides that the tribunal may confirm or amend the appellable decision or substitute another decision for the appellable decision. In substituting another decision for the appellable decision, the tribunal has the same powers as the entity that made the appellable decision.

Relevant standards, policy and guidelines

Included in the Board's bundle of documents are registration standards and policy documents published by the Board, which have been developed by the Board pursuant to sections 38 and 39 of the National Law. Some of the documents included in the Board's bundle are documents developed by AHPRA in collaboration with the National Boards. These documents are relevant because they contain policies, procedures and guidelines which inform registration or the renewal of registration and include guidelines that were considered by the assessors and the Board in determining Mr Turicik's application for provisional registration.
The Nursing and Midwifery Board of Australia Registered Nurse Standards for Practice is dated 1 June 2016. It is noted that the registered nurse practice is person centred and evidence based with preventative, curative, formative, supportive, restorative and palliative elements. The standards for practice consist of seven standards, namely: think critically and analyse nursing practice; engage in therapeutic and professional relationships; maintain the capability for practice; comprehensively conducts assessments, develop a plan for nursing practice and evaluate outcomes to inform nursing practice. Each standard has criteria that specifies how that standard is demonstrated. The standards for practice apply to all registered nurses across all areas of practice and it is noted that they are to be read in conjunction with the applicable Board companion documents such as the standards, codes and guidelines, including the code of conduct for nurses, the national framework for the development of decision-making tools for nursing and midwifery practice, supervision guidelines for nursing and midwifery and guidelines for mandatory notifications.
In addition to the Registered Nurse Standards for Practice, the Board has published Registration Standard: Recency of Practice, effective from 1 June 2016. This registration standard sets out the minimum requirements for recency of practice for enrolled nurses, registered nurses and midwives. Relevantly, this standard provides that enrolled nurses, registered nurses and midwives will fulfil the regency of practice requirements if they can demonstrate that they have completed a minimum of 450 hours of practice within the past five years, they have successfully completed a program or assessment approved by the Board or they have successfully completed a period of supervised practice approved by the Board. Nurses and midwives working in a non-clinical practice are required to meet the recency of practice standard despite the fact that they are not in clinical practice. It is noted that nurses seeking to work in clinical practice who do not satisfy the requirement for recent clinical practice must meet different requirements, depending on the length of absence from practice.
The Board has also published Registration Standard: Continuing Professional Development dated 1 June 2016. This registration standard sets out the continuing professional development requirements that must be completed during the registration period.
Included in the Board's bundle is a policy, updated in December 2022, about re-entry to practice for nurses and midwives (Policy: re-entry to practice for nurses and midwives (2022)). The policy states that it applies to people with current general or non-practising registration or who have previously held registration as a nurse or midwife in Australia and are seeking to return to clinical and/or non-clinical practice but do not meet the requirements of the Board's Registration Standard: recency of practice. The policy applies to those who have had a lapse in practice of five years or more or who have held non-practising registration for five or more years or are no longer on the register. The policy provides that practitioners or former practitioners who are no longer on the register and have not practised for a period of between 5 to 10 years are required to lodge an application for provisional registration. The assessment of the application will determine whether the applicant will be required to complete a period of supervised practice approved by the Board, which is Pathway 1, or a Board-approved re-entry to practice program, Pathway 2. As Mr Turicik has not practised for over 5 years, this policy is relevant to his application.
Also relevant is the AHPRA and National Boards Supervision Guidelines dated 1 February 2022. This guideline notes that AHPRA works in partnership with 15 National Health Practitioner Boards to implement the national registration and accreditation scheme (the National Scheme). The guideline outlines the requirements for supervised practice under the National Law. It is noted that the Supervised Practice Framework accommodates the different regulatory purposes of supervised practice and allows for a responsive and risk-based approach to the National Scheme.
The Supervised Practice Framework is used for three regulatory purposes across the National Scheme. First, it may be used for types of registration that require supervised practice, such as limited and provisional registration. Secondly, it may be used to meet eligibility or suitability requirements at application or renewal level. For instance, where there is a return to practice after an absence or the change of a practitioner to a different field or scope of practice or where there is a need to meet the eligibility requirements for registration. The third instance where supervised practice may be used is where there is a condition or undertaking imposed by a National Board arising out of a complaint or a notification.
It is noted that the Framework is underpinned by several principles. Patient safety must be the overriding priority. It is also noted that a National Board will consider several factors when taking a risk-based approach to supervised practice and will be influenced by matters such as the setting and context in which the practitioner is being supervised, the supervisee's ability to show insight and/or reflection were applicable and the supervisee's qualifications, skills, competence, years of practice and clinical experience. The risks associated with the purpose of supervised practice will inform the level of supervised practice required, the frequency of consultation, the parameters of progression, the number of years of experience required of the supervisor and the frequency of reporting.
There are four different levels of supervised practice described in the Framework which are designed to make sure that the supervised person practises safely. The first level is direct supervision, where the supervisor is physically present at all times to observe the supervisee. The second level is indirect supervision at level 1, where the supervisor is physically present at the workplace. The third level is indirect at level 2, where the supervisor is assessable by phone or other means and available to physically attend the workplace and the fourth level is remote supervision, where the supervisor is not present at the workplace. The Framework provides that it may be necessary for the person being supervised to find and nominate their own supervisors. Supervisors must hold general registration and, where appropriate, the relevant specialist registration or endorsement.
Accordingly, it is apparent from the registration standards, supervision guidelines and Supervised Practice Framework referred to above, that where there are issues or concerns about an applicant seeking to return to nursing practice after an extended absence, it may be possible for that person to be provisionally registered subject to conditions and supervised practice. This is the contention of Mr Turicik. In contrast, the Board submits that Mr Turicik's deficits are so significant that his clinical skills, knowledge and judgement falls far short of what was suitable that the correct and preferable decision is that Mr Turicik's provisional registration should be refused and the appellable decision confirmed.

Outline of evidence

As already noted, the performance assessment undertaken, the briefing material provided and the circumstances relating to an updated recommendation provided by the assessors after the report was completed are all highly contested by Mr Turicik. As such, the details in relation to these matters are set out below. They were the subject of cross examination by the assessor, evidence by the appellate and submissions by both parties.
The performance assessors appointed by the Board were Ms Megan Thomas and Ms Ashleigh Djachenko. Both are Registered Nurses (Division 1). Ms Thomas holds a Bachelor of Nursing, a Graduate Certificate in Health Science (Nursing education) and a Diploma of Applied Sciences (Nursing). Ms Djachenko holds a Bachelor of Nursing, a Graduate Certificate Community and Primary Health Care and a Graduate Diploma Health Research. They are independent from the Board.
The performance assessors were provided with a brief dated 20 April 2023. They were provided with a background to the previous assessments. It was noted that Mr Turicik did not meet the Board's recency of practice registration standard. The nature and scope of the assessment was to address all areas of nursing practice and was to include: medication management (including calculation, administration, monitoring and documentation); communication (including teamwork and collaboration); patient assessment an escalation of care; time management, planning and prioritising care; recognising and managing the deteriorating patient; documentation; wound care management; infection control; duty of care and work health and safety.
The assessors were asked to consider the following issues: 1. Did Mr Turicik have satisfactory clinical skill, knowledge or judgement possessed to practise the profession safely and independently? 2. If there are any areas of deficit in Mr Turicik's practice that need to be addressed, details of how Mr Turicik's practice is below the expected standard. 3. If the conclusion of the assessors is that Mr Turicik's skill, knowledge or judgement to practise the profession is below standard, what action would the assessors recommend so the Board could be assured Mr Turicik is safe to practise and what are the reasons for these recommendations? 4. Can Mr Turicik receive a copy of their report directly from the Board? Alternatively, if the assessors believed their report contains information that may or will prejudice Mr Turicik's physical or psychological health or well-being, the assessors were asked to advise of this so the Board could provide a copy of the report to a nominated treating practitioner. 5. It was noted that the Board could take actions it considered appropriate to protect the public from risks posed by a practitioner's practise of the profession if it forms a reasonable belief that the practitioner's practise is unsatisfactory. If the assessors identify concerns about Mr Turicik's ability to practise safely, the assessors were asked to turn their mind to actions they felt may be appropriate to consider for example: 1. Requiring Mr Turicik to work under the supervision of an experienced colleague. 2. Requiring Mr Turicik to complete further education covering specific content.
Mr Turicik was provided with the details of the assessors, the scope of the assessment and was asked to complete a pre-assessment questionnaire. He was provided with the assessment plan and was advised that the assessment would take place it the St Vincent's Hospital Clinical School and Don Harrison Simulation Centre at Darlinghurst. He was advised that the assessment would be conducted from 9:00am to 5:00pm and would be managed "just like exam conditions" and would be conducted "within [his] scope of practice as a Registered Nurse (Division 1)". Mr Turicik was also advised that it had been decided to refer him for a performance assessment based on the previous notifications and recommendations made by the previous panel in 2019. Mr Turicik was advised the Board would decide what action to take based on the assessment report and that the actions may include requiring further information from Mr Turicik to support his application, granting the application for registration without imposing conditions, granting the application for registration subject to conditions to reflect the recommendations of the assessment or refuse to grant the application for registration.
Mr Turicik was provided with a Fact Sheet from AHPRA headed 'Performance Assessments'. The Fact Sheet provided to Mr Turicik is relevant because he says he relied on the Fact Sheet and did not understand that such a detailed assessment made under hospital environment conditions. Mr Turicik relies on those parts of the Fact Sheet which state that performance assessments are "tailored to the individual practitioner and practice setting" and "may be designed to lead to education and retraining when deficiencies are identified, while ensuring that the public is properly protected". It was also noted in the Fact Sheet that performance assessments are not a punishment or "an appropriate method for dealing with one off incidents or errors". Mr Turicik says that he misunderstood the nature and scope of the assessment and was unprepared for the level of detail that he was expected to consider. This caused him stress and the assessment process was consequently unfair.
Mr Turicik attended the performance assessment, and the assessors prepared a Performance Assessment Report dated 26 May 2023. The Report is 31 pages in length, including attachments. The Report describes the assessment process undertaken which included an initial discussion with Mr Turicik, a simulation assessment, a written assessment in relation to medication administration and knowledge and a final session, being a reflective interview and discussion with Mr Turicik. The Report notes that the performance assessment was carried out against the Registered Nurse Standards for Practice (2016) and the level of competence for clinical and written assessments was rated utilising the Bondy Competence Evaluation Tool. It is noted that each level of competency provides a description of the safety of the standard procedure, the performance quality and the level of support required.
The assessors met with Mr Turicik on his arrival and attempted to outline the performance assessment process with him. He was reportedly agitated, and it was necessary to redirect his conversation on a number of occasions. After conducting the initial interview with Mr Turicik, the assessors formed the view that Mr Turicik demonstrated an understanding of the Registered Nurse Standards for Practice but not the Code of Conduct. According to the assessors, Mr Turicik responded indirectly to targeted questions, showed limited insight into the areas of concern in the notification and his reflection and responses were significantly below that expected of a registered nurse with similar education and experience. Notably, when asked about his intentions, Mr Turicik said that if his registration was reinstated, he wished to work as a registered nurse with St. John's Ambulance or in the casual pool at the Prince of Wales Hospital.
In the simulation assessment, the assessors explained the two-hour simulation assessment for Mr Turicik and orientated him to the simulation laboratory. The laboratory included clinical equipment, a patient's medical records, drug handbooks and the roles of the assessors. In the simulation assessment, Mr Turicik was provided with the opportunity to demonstrate his knowledge and skills in medication management, communication, patient assessment and escalation of care, time management, including planning and prioritising care, recognising and managing a deteriorating patient, documentation, wound care management, infection control, duty of care and work health and safety. These simulations assessed Mr Turicik against the Registered Nurse Standards for Practice and the Code of Conduct for nurses.
In reviewing the results of the simulation assessment, the assessors found that Mr Turicik was able to demonstrate capacity to properly undertake medication administration in certain aspects but not in others. They concluded that his actions did not meet the National Safety and Quality Health Service (NSQHS) Medication Standard. He performed significantly below the standard expected for a registered nurse of similar experience and it was concluded that he would benefit from foundational medication administration education and direct supervision. The assessors had concerns about Mr Turicik's communication with the medical officer and the team members and noted that he did not follow the instructions of the assessors.
He was asked to perform some basic patient assessments during the simulation. The assessors raised concerns about some aspects of Mr Turicik's performance in the simulation. It was noted that Mr Turicik demonstrated very poor time management in relation to one of the simulations where some tasks were not completed. Mr Turicik's performance was not focused and lacked direction. Mr Turicik was able to correctly identify the deteriorating patient, but treatment was not timely. Mr Turicik maintained contemporaneous documentation and demonstrated some correct documentation but in the assessors' view, his progress notes did not reflect an accurate and comprehensive record of his assessments, planning, interventions and evaluations. In the final simulation, the applicant was required to assess, prioritise, provided document care for three patients. He demonstrated a basic ability but was not able to demonstrate foundational aspects of patient assessment and care planning, critical thinking and decision making and knowledge of commonly used medicines and common medical conditions. His performance was assessed as 'marginal'.
The assessors provided the applicant with 75 minutes to complete a written assessment which comprised questions about professional nursing practice and medications, drug calculations, medication management, medication procedures and terminology. He completed the assessment within the allocated time. Mr Turicik achieved an overall score of 60% for the medication knowledge written assessment and 90% for the medication calculation section. According to the assessors this result was not satisfactory in relation to safe medication administration despite the length of his nursing experience. The assessors identified that Mr Turicik needed further education in pharmacology, medication terminology and management and professional responsibilities in relation to medications.
In the final session, Mr Turicik was asked to reflect on the performance assessment and identify what he could have done differently. He was also asked if the assessments conducted were reflective of the scope of practice of a registered nurse. Mr Turicik agreed that the assessments were reflective of the scope of practice of a registered nurse but displayed "extremely limited insight" into the deficits in his nursing knowledge and clinical skills.
In assessing Mr Turicik against the Bondy Scale Rating of Competence against the seven standards set out in the Registered Nurse Standards for Practice, Mr Turicik was rated as "marginal" in respect of standards 1 and 2, "dependent" in respect of standards 3 and 4 and "assisted" in respect of standards 5, 6 and 7. The assessors identified performance issues in respect of all 10 areas assessed.
To understand Mr Turicik's overall results, it is necessary to understand the Bondy Scale Rating of Competence. The explanation of the Bondy Scale is set out on page 2 of the Performance Assessment Report (p 213 of the Board's tender bundle).
According to the Bondy Scale, there are six competency ratings with "independent" being the highest and "dependent" being the lowest. A rating of "dependent" means that a standard demonstrated by the practitioner is "unsafe" and 'inaccurate". The performance quality assessment for the "dependent" rating means that the practitioner is "unable to demonstrate procedures, lacks confidence, coordination and efficiency". The practitioner requires "continuous verbal and/or physical direction". The second lowest competency rating is "marginal". Practitioner who is rated as marginal has "questionable safety and questionable accuracy". The performance quality assessment for this rating means that the practitioner "tends to be unskilled and inefficient", with "considerable and prolonged time expenditure". This practitioner requires "continuous verbal and/or physical direction". The third competency rating is "assisted", which means that the practitioner is "mostly safe and accurate" with "partial demonstration of skills". The practitioner "may be uncoordinated and inefficient" with "delayed time expenditure" and "requires further practice". The practitioner also requires "frequent verbal and/or physical direction".
The top two ratings are "independent" and "supervised". Practitioners assessed with these ratings are both "safe" and "accurate" and either "proficient" or "efficient" and "coordinated" and "confident", requiring no direction or occasional physical or verbal direction.
Mr Turicik was therefore rated for four of the seven standards as being unsafe and inaccurate or having questionable safety and accuracy. He was assessed as mostly safe and accurate for only three of the standards.
In summary, the findings of the assessors were as follows: 1. Mr Turicik was not able to demonstrate satisfactory clinical skills common knowledge and judgement expected of a registered nurse of his experience to practise the profession safely an independent Lee. Mr Turicik failed to apply adequate knowledge, judgement and skill to all of the 10 areas that were assessed. 2. Consequently, the likelihood of negative consequences for patient outcomes remains high. 3. The assessors identified deficits in Mr Turicik's ability to demonstrate competent medication knowledge as well as safe administration, monitoring and documentation throughout the performance assessment, failure to undertake comprehensive patient assessments to inform planning, deficits in critical thinking and problem solving, failure to recognise and manage the septic patient, inability to demonstrate consistent infection control principles and workplace safety, inability to document and communicate vital data and nursing interventions an inability to demonstrate reflective practise and understanding of code of conduct principles. 4. The performance assessment focused on all relevant areas of practice and the results were referenced to the Registered Nurse Standards for Practice (2016) and the Code of Conduct for nurses (2018). The assessors conclude that Mr Turicik does not hold the independent skills, knowledge or judgement to practise as a registered nurse.
The assessors made the following recommendations to the Board as set out in Section 8 of the Report: 1. The practitioner is not safe to return to practise as a registered nurse without direct supervision. 2. The practitioner is to complete education, face to face essential, as approved by the Board, in relation to the 15 areas outlined in the report, which included revision of the NSQHS standards, sepsis pathway, infection control, clinical governance, ISBAR, communicating professionally for safety and therapeutic relationships, pharmacology for registered nurses and documentation for registered nurses. 3. After completion of this education, the practitioner requires a structured performance assessment to evaluate the skills itemised above, prior to consideration of registration.
After the Report was finalised and after the Board made its decision, there was correspondence between the lawyers acting for the Board and the assessors. By email dated 27 November 2023, the assessors were advised that there was a question about the Report that the lawyers wished to clarify. The email was in the following terms: Paragraph 1 of the recommendations in the Report states that the practitioner is not safe to return to practise without direct supervision. Paragraph 3 of the recommendations in the Report states that the practitioner should complete certain education and a performance assessment prior to being considered for registration. The question is: can Mr Turicik safely and competently return to practice with direct supervision, or is it your recommendation that the education and performance assessment (discussed in paragraph 3 of the recommendations in the Report) should be completed prior to Mr Turicik returning to practice with direct supervision. We note that direct supervision is described in the Supervised Practice Framework as follows: The supervisor takes direct and principal responsibility for all individual patients receiving care from the supervisee. The supervisee must consult with and follow the directions of the supervisor about the management of each patient, including the process of assessment, before care is given. The care provided must be directly observed by the supervisor who is physically present with a supervisor at all times.
In response to this email, the assessors prepared a Supplementary Performance Assessment Report dated 30 November 2023, which is referred to as "Attachment 4" to the Report. This Supplementary Report is a single page document, numbered 8 and headed, "Detailed Recommendations". The status of this Supplementary Report is disputed by Mr Turicik. This is because the decision of the Board made on 5 October 2024 was based on the Performance Assessment Report dated 26 May 2023, not the Supplementary Assessment Report. The findings and recommendations in that Report are referred to above.
The detailed recommendations in the Supplementary Report are to the following effect: To assist the Board, and provide clarification, the assessors are able to elaborate on the recommendations. It is our recommendation that the education and performance assessment 9discussed in paragraph 3 of the recommendations in the Report) should be completed prior to Mr Turicik returning to practice with direct supervision. 1 The assessors also recommend that the practitioner is to undergo a comprehensive health assessment to identify any modifiable barriers to Mr Turicik's undertaking of nurse education and capacity for safe practice as a registered nurse. And 2 The practitioner is to complete education that includes all the areas identified in the Report, and assessors recommend one of the following courses [details of courses omitted]. And 3 After completion of this education, the practitioner requires a structured performance assessment to evaluate the skills itemised above, prior to consideration of registration. And 4 The practitioner is not safe to return to practice as an RN without direct supervision.
While it can be accepted that there was scope for the original recommendations to be clarified by the assessors providing a Supplementary Report or by giving evidence for the purposes of these proceedings, the "Detailed Recommendations" provided on 30 November 2023 are presented as an attachment to the Performance Assessment Report and expand on the original recommendations. This caused some confusion for Mr Turicik, who questioned how these amended recommendations could become part of the Performance Assessment Report when they were drafted six months after the Report was completed. This raised concerns for Mr Turicik because the decision made by the Board was made nearly two months before these amended recommendations were formulated. We discuss this issue, and the import of the amended recommendations, later in our consideration of the appeal.
Ms Megan Thomas gave evidence at the hearing. She was one of the assessors and the co-author of the Performance Assessment Report. She has been a registered nurse for 42 years and graduated in 1982. Ms Thomas has undertaken approximately 55 performance assessments over a period of six years for the Board and AHPRA. She is nurse educator and lecturer but continues to work in clinical practice with NSW Health. She was independently contracted to undertake the assessment by the Board. She and the other assessor received the brief and prepared the assessment plan based on the brief. They adopted a standardised process for making the assessment.
Ms Thomas noted that Mr Turicik was agitated when he first arrived, and it was initially difficult to conduct the interview. She observed that Mr Turicik had a challenging communication style. He was able to complete the assessment, including the simulation. In preparing the Report, the assessors used a standardised tool, being the Bondy Scale for Rating Competences. She noted that Mr Turicik displayed deficits across seven of the standards and some of these deficits were foundational. In her view, Mr Turicik's deficits were widespread. The recommendation made by the assessors is set out on page 25 of the original Report. Ms Thomas said that the assessors provided a Supplementary Report to clarify issues subsequently raised about the original recommendations.
In her view, Mr Turicik could not be registered without supervision, and would need a further performance assessment after a structured educational course. She did not believe that Mr Turicik could return to supervised practice at this stage because his deficits were widespread and, in her view, foundational. These conclusions were the subject of the clarification contained in the Supplementary Report dated 30 November 2023.
In cross examination, Ms Thomas was asked whether she had noticed Mr Turicik was agitated and whether she considered that it may be appropriate to give him feedback and support through the process. Ms Thomas said that she could see that Mr Turicik was agitated but understood this was because there were "high stakes" in a performance assessment process, and it would be expected that some applicants would be nervous. It was the role of the assessors to assess the performance of the applicant and therefore it was not part of their role to give feedback and support to an applicant in undertaking the various tasks.
Ms Thomas was asked how the assessment plan was formulated. She was also asked whether she was directed on how to formulate the plan by the Board. Ms Thomas said that the two assessors discussed the plan and used the simulated sessions as tools for assessment. These tools for assessment were commonly used by tertiary educators to make assessments of performance. Ms Thomas was asked whether she recognised that the assessment program was testing Mr Turicik on matters that were outside his usual scope of practice. She was also asked by Mr Turicik whether she recognised that he had not been working for some time and that his knowledge may therefore be out of date and whether adjustments should be made for this. Ms Thomas said that in assessing performance it was necessary to assess the practitioner against the Registered Nurse Standards for Practice and making adjustments to reflect that the practitioner may not perform in accordance with the standards or to limit the scope of the assessment was not part of the independent performance assessment process.
Ms Thomas was questioned about why she had "reopened" the Performance Assessment Report on 30 November 2023 to amend the recommendations. Ms Thomas said that they created the attachment to the Report after receiving a request to elaborate or clarify certain aspects of the recommendations. The process that they adopted was to prepare a Supplementary Report as an attachment. Ms Thomas was asked whether she had changed her mind after drafting the original report and she said that she had not. The effect of the Supplementary Report was to clarify the opinion of the assessors that Mr Turicik would have to take the further training and education before consideration could be given to assessing his suitability for registration, even with supervision. She said that she was comfortable with the written clarification contained in the Supplementary Report and, while it may seem unusual to clarify aspects in a report, it was not uncommon to give further explanation about comments or recommendations made in a report when requested to do so.
Mr Turicik did not seek to cross examine the second assessor and accepted that her evidence would be similar to the evidence given by Ms Thomas.
Mr Turicik gave oral evidence. He said that he had retired about four and a half years ago. After his registration expired, he worked at Jewish care for two years and then joined the State Emergency Service and St. John's Ambulance, where he worked on a voluntary basis. He now worked as a first responder for St John's. Mr Turicik also said that he was now working at the Prince of Wales Hospital as an assistant in nursing on a casual basis. He worked at night shift three nights a week on 12-hour shifts. In his last rotation he worked in acute aged care. He also found that his language skills were useful, and he was often called upon to work in the field in aged care.
Mr Turicik said that while working as a volunteer at St. John's, he had completed various St John's first aid courses. He was asked whether he had undertaken any of the training courses referred to in the Performance Assessment Report, for instance, revision of the NSQHS standards, pharmacology for registered nurses or infection control training. Mr Turicik said that he had undertaken some training through St John's and this included medication administration. He had completed the first responder course in September 2023. This course was over a three-week period. He was also required to undertake a first aid advanced review course every year.
Mr Turicik was asked whether he had undertaken any training whilst working as an assistant in nursing at Prince of Wales. He was asked whether he had completed any of the in-house NSW health training modules. Mr Turicik said that he had undertaken a number of courses online and he was still waiting to access the practical modules. He completed the ISBAR training and other training relevant to the assistant in nursing level online.
Mr Turicik said that when he was undertaking the performance assessment, he was psychologically unwell and was struggling. He said that he did not disagree with the findings made but he was concerned about the process and procedure adopted for the assessment. In his view, the performance assessment was inappropriate, and it was not tailored to suit his practice. While he accepted that had not performed in accordance with a number of the standards, he believed that he was "destined to fail" because of the nature of the performance assessment.
In his view, the Board should have made sure that he understood the process that was going to be undertaken and he believes he was misled by the information provided by the Board in the Fact Sheets. He had believed that he would be tested on the scope of practice he had previously undertaken. When asked whether he disagrees with being tested on all aspects of nursing, Mr Turicik said that he accepted that there was an appropriate standard, but he was not prepared for the scale of the assessment. It was very strict, and it was tailored towards someone who would work in a hospital setting. This was not his area of practice, and he did not realise that the assessment would be like this. He accepted that the information provided to him suggested that the assessment would be conducted in exam conditions, but he believes that the Board should have ensured that Mr Turicik was aware of the scope of the assessment and the consequences. Mr Turicik denied that he did not prepare well enough for the assessment.
Mr Turicik said that if he was reinstated, he was intending to work with St. John's Ambulance and if possible, with the Prince of Wales Hospital. In these circumstances, he was questioned as to why he should not be assessed in the hospital setting. Mr Turicik agreed that he should be assessed on this basis but also believed that there should be a staged process that could have prepared him better. Mr Turicik acknowledged that he had received a copy of the plan and was notified of the performance assessment several months before the scheduled assessment took place. Mr Turicik said that he tried to do some preparation after he received the plan on 27 April 2023 and tried to obtain some assistance from colleagues that he worked with at St. John's. He said that he did not have any psychological issues at the time of the performance assessment, but he was very anxious at the time and after he had completed the assessment, he realised that he was going to fail.

Nature of appeal and issues

As observed by Deputy President Boland in Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183, appeals under s 175 of the National Law are dealt with by way of rehearing de novo. The appeal does not focus on the question of whether there were errors of law or fact made by the Board in its decision and defects in process or procedural fairness by the original decision-maker can be addressed by the Tribunal in these proceedings. The Tribunal should have regard to all available material, including any new evidence that was not considered by the Board when it made the original decision.
The appellable decision is the decision of the Board made under s 82(1)(c)(i)(C) of the National Law to refuse Mr Turicik's application for provisional registration on the grounds that he is not a suitable person to hold provisional registration because he is unable to practise the profession competently and safely (s 55(1)(h)(ii)). The Tribunal may confirm or amend the appellable decision or substitute another decision for the appellable decision.
The issue for the Tribunal is whether Mr Turicik's application for provisional registration as a registered nurse should be granted, either conditionally or unconditionally. This turns on the question of whether Mr Turicik is a suitable person to hold provisional registration and, relevantly, whether he is able to practise the profession competently and safely. This is a question of fact. The relevant evidence before the Tribunal in this regard comprises the Performance Assessment Report dated 26 May 2023, the Supplementary Report dated 30 November 2023 and the evidence of Ms Thomas and Mr Turicik.

Submissions

Mr Turicik contends that the Tribunal should substitute the appellable decision with a decision that his provisional registration be granted on condition. The relevant conditions could be those set out in the Supplementary Report, namely, that he undertakes supervised practice and that he completes the further education and training identified in the Performance Assessment Report and the Supplementary Report. Mr Turicik submits that the Board should have made a decision that he be allowed to re-enter practice in line with Pathway 2 and the Tribunal could now make such a decision. The decision made by the Board was a punishment and was unduly harsh and excessive.
He further submits that the performance assessment process undertaken by the Board was unfair. He should have been provided with more information about the process and been given support to assist him in his preparation and in undertaking the assessment. The assessment process was unduly harsh, and he had been given an expectation, through reading the Fact Sheets, that the process would be tailored to suit his previous scope of practice. He was unprepared. Mr Turicik agreed that he had performed poorly in the performance assessment but says that this was because of the process that was undertaken. He accepts that he may be required to undertake further training and education and submits that this could be taken through the Supervised Practice Framework. The Board could implement a staged process for his re-entry to practise.
The Board submits that Mr Turicik was given adequate notice of the performance assessment, he was provided with the plan for the assessment and was advised that the assessment would be undertaken in exam conditions. It was not appropriate for a performance assessment to be undertaken on a limited scope, particularly given that Registered Nurse Standards for Practice apply across the board. It is also relevant to note that Mr Turicik gave evidence that he wanted to return to clinical practice in a hospital and, as such, it was important that he be able to meet the necessary standards.
It is submitted that the critical question for the Tribunal is whether it can be satisfied that Mr Turicik can carry out the duties of a registered nurse safely. This is the paramount consideration. It is submitted that the answer to that question is no. It is also submitted that the deficits demonstrated by Mr Turicik as part of the performance assessment meant there were no conditions that could be safely imposed to ensure that Mr Turicik could meet the relevant standards.

Analysis and findings

One of the key aspects of Mr Turicik's complaints in these proceedings is that the performance assessment process undertaken by the Board was unfair. He should have been given more assistance and support with preparation and assessment tasks. He was misled by the information provided by the Board prior to the performance assessment. Mr Turicik originally contended that the assessment should have been tailored to his previous scope of practice, but he seemed to acknowledge in his evidence that the assessment should encompass the full extent of practice undertaken by registered nurses, including clinical practice. This is because Mr Turicik says that if his registration is reinstated one of the roles that he would like to undertake would be to work at the Prince of Wales Hospital, where he now works as an assistant in nursing.
While we accept that the information contained in the Fact Sheet could have been more clearly drafted and may have led Mr Turicik to wrongly believe that the assessment would be more limited in scope, we do not accept that this belief was justified in the circumstances of the case. This is because Mr Turicik was on notice about the nature of the assessment, he was provided with the plan and was advised in April 2023 that the assessment would be in accordance with "exam conditions" and it would be conducted within his scope of practice as a Registered Nurse (Division 1). It is implicit in this reference that the scope of practice as a registered nurse covers all roles undertaken by registered nurses, including roles in a hospital setting. He was advised that the assessment would take place over a period of nine hours.
Mr Turicik also contended that many of the matters that he was being assessed on were not relevant to his previous areas of practice in aged care. However, this contention cannot be sustained given that the nominated areas assessed cover basic nursing skills and knowledge that the Registered Nurse Standards for Practice require all registered nurses, regardless of whether they work in a hospital or aged care setting, to meet. Relevantly, all registered nurses must be able to competently administer medication, make medical assessments about a patient's needs, identify the needs of a deteriorating patient and understand the importance of escalation of care, undertake wound care management, work in teams and be able to work with medical officers and other staff, deal with infection control and provide appropriate and accurate documentation in relation to patient records.
In his evidence, Mr Turicik accepted that these broad range of skills were relevant for a registered nurse but nonetheless contended that the performance assessment should have been adjusted, or approached in a staged process, to give him the opportunity to succeed in the assessment.
Ms Thomas addressed these issues in her evidence. She says that when independent assessors are undertaking a performance assessment of the suitability of a practitioner, the assessor cannot give assistance or support to that practitioner through the assessment process. Nor can the assessor make testing easier to accommodate the practitioner's skillset and experience as to do so would compromise the assessment process. The assessment that was undertaken for Mr Turicik was a standard process commonly used to assess the competences of practitioners against the Bondy Competence Evaluation Tool. This was accepted and longstanding practice. Ms Thomas accepted that Mr Turicik was agitated and said that she attempted to explain the process to him at the initial stages of the assessment and where necessary, repeated instructions. However, she says that it is not appropriate to make adjustments or to take these matters into account when making an assessment. The assessment process must cover the range of clinical skills, expertise and knowledge that a registered nurse should have in undertaking nursing practice. The assessment cannot be undertaken in a staged process. A practitioner either meets a standard or does not meet the standard and the Registered Nurse Standards for Practice apply across the board.
Ms Thomas has undertaken 55 performance assessments and is very experienced. She has been a registered nurse for 42 years. We accept her evidence and the contents of the Report that she co-authored. Mr Turicik raised concerns about whether Ms Thomas was independent and whether specific instructions had been given to her and the other assessor by the Board that influenced their report. We are satisfied, based on the contents of the Report, the process undertaken, and Ms Thomas' evidence, that she was independently retained by the Board to undertake the performance assessment and that the assessment undertaken was the result of an objective evidence-based process. There is no evidence to the contrary.
The suggestion by Mr Turicik that the assessors improperly "reopened" their Report is a mischaracterisation of what happened. The assessors were asked to clarify the recommendations in their 26 May 2023 Report, and it is apparent that this request was made by the Board's lawyers for the purpose of these proceedings. The assessors addressed the issues raised in a "detailed recommendation" as an attachment to the original Report. This may have been a somewhat circuitous way to address the request but the fact that the recommendation was amended after the Report was finalised was obvious and transparent. The Tribunal can take into account any new evidence, including the revised recommendations contained in the Supplementary Report dated 30 November 2023, in deciding this case. The assessors were not seeking to reopen their report or to change their opinion. A plain reading of the two recommendations reveals that the opinions are not inconsistent but rather that the earlier recommendations may have been unclear.
Recommendation 1 of the earlier Report states that the practitioner is not safe to return to practice as a registered nurse without direct supervision. This may imply an opinion that the practitioner could return to practice (and thereby be registered) with direct supervision. However, such an interpretation is inconsistent with recommendations 2 and 3. Recommendation 2 provides that the practitioner should complete education as approved by the Board in relation to the 15 areas identified in the Report where the assessors had identified deficiencies. Recommendation 3 noted that after the practitioner had completed this education, he should undertake a further structured performance assessment to evaluate the skills itemised and that this should all be done prior to consideration of registration. As such cover it is apparent that the assessors did not contemplate Mr Turicik being registered and returning to practice until further steps had been taken.
In the updated detailed recommendations, the assessors made an additional recommendation that Mr Turicik undergo a comprehensive health assessment to identify any modifiable behaviours. This was a new recommendation made by the assessors, possibly intended to address issues that had been raised during the assessment process and referred to in the Report about Mr Turicik's challenging behaviours and lack of insight. Recommendation 1 contained in the earlier report is included as recommendation 4 but in the preamble to the recommendations it is now expressly noted that education and further performance assessment should be completed prior to Mr Turicik returning to practice with direct supervision. Recommendation 3, which is in the same terms as the previous recommendation, provides the practitioner should undertake a structured performance assessment to evaluate his skills after he had completed the education identified in recommendation 2 and that this should all be prior to consideration of registration.
On the question of procedural fairness, we accept that Mr Turicik was unprepared for the rigour and intensity of the assessment process, but we are not satisfied that this can be attributed to the Board or that the assessment process was unfair or unduly harsh or that the process undermined the validity and reliability of the conclusions and opinions made as recorded in the Performance Assessment Report and the Supplementary Report. We accept the evidence of Ms Thomas that the assessment was conducted fairly and in accordance with standard practice. It covered, and was intended to cover, a broad range of nursing practice to ascertain whether Mr Turicik was able to meet the Registered Nurse Standards for Practice.
The Board identified the need for Mr Turicik to be assessed for two reasons. First, there was an issue raised in 2019 about Mr Turicik's performance and conduct but Mr Turicik did not attend the scheduled performance interview that may have assisted to resolve those issues. It was recommended at that time that if Mr Turicik sought re-registration, he should be properly assessed. The second issue was that Mr Turicik had not practised for number of years and did not meet the recency of practice requirements. The decision to require a performance assessment was not itself discriminatory or unfair. We are also satisfied that the process and procedure adopted by the assessors to make the assessment was standard practice.
Even if Mr Turicik had a better understanding of what was involved, we are not satisfied that this would have made any difference to the outcome. The Performance Assessment Report is comprehensive and outlines Mr Turicik's performance against the standards in detail. Each of the tasks are assessed and the assessors provided commentary about what tasks were completed, what tasks were undertaken satisfactorily and what tasks were not completed or were not completed to the standard. The assessors identified many tasks that were not completed by Mr Turicik to the standard required. Some of those matters have been described by the assessors as foundational.
This is not a case where Mr Turicik had a medical episode during the assessment and therefore could not complete the assessment properly. If this had been the case, he could have sought to reschedule the assessment and there would have been no difficulty about this. He does not make that claim. Mr Turicik says that he panicked when he realised how difficult the assessment was going to be. However, having anxiety when under pressure is not of itself a reason why the assessment should have been delayed. Registered nurses may be called on to act urgently and under pressure in difficult situations, particularly where a patient's health condition is deteriorating and there is a need to escalate their care.
Based on the evidence before us, we are satisfied that the Performance Assessment Report dated 26 May 2023 represents an authoritative assessment of Mr Turicik's skills, knowledge and judgement and, relevantly, his suitability to be registered. We give this Report, the Supplementary Report and the evidence of Ms Thomas significant weight in forming a view about whether Mr Turicik is suitable and whether he is able, or conversely whether he is unable, to practise the profession of a registered nurse competently and safely.
There is evidence that Mr Turicik has undertaken further training since the assessment as a first responder with St. John's but that is not the training and education recommended by the assessors. There is no dispute that Mr Turicik has not undertaken the further training and education as recommended, although he has undertaken some basic training at the assistant in nursing level.
Having formed the view that the assessment made is an appropriate and accurate assessment of Mr Turicik's abilities and suitability, the question arises as to whether the decision made to refuse his provisional registration should be confirmed or whether there is another decision that should be made.
The only other alternatives are that Mr Turicik's application for provisional registration be granted on condition. This is what Mr Turicik contends.
The Performance Assessment Report of May 2023 and the Supplementary Report of November 2023 are comprehensive compelling reports. As already noted, we give those reports, and the evidence of Ms Thomas, significant weight in making our findings. The assessors were asked to consider a number of alternatives, including whether any areas of deficit identified in relation to Mr Turicik's practice could be addressed. The assessors concluded there were multiple deficits and that they were at least 15 areas of practice where Mr Turicik required further education and training. The assessors were of the view that even if this further education was completed, Mr Turicik would still require a further structured performance assessment to evaluate his skills prior to consideration of registration. They opined that Mr Turicik was not safe to return to practice without direct supervision and in their Supplementary Report stated that he could not practice, even with direct supervision, prior to the further education and structured assessment. We accept this evidence and find accordingly.
As such, we are not satisfied that there are any conditions that could be imposed at this stage that would justify a granting provisional registration, albeit on condition. In other words, and consistent with the recommendations made by the assessors, Mr Turicik's application for registration cannot not be properly considered until he has completed the recommended education and he is further assessed after having completed that education. It is possible that if Mr Turicik made good progress in remediating his identified deficits through an education program, a structured assessment of his skills may conclude that Mr Turicik could be registered with direct or even indirect supervised practice. In contrast, it is also possible that Mr Turicik may not make sufficient progress such that he is still found not to be suitable after an extended period of education and assessment. The outcome of these matters is entirely speculative, and it is therefore inappropriate to contemplate a conditional grant.

Conclusion

Having regard to the guiding principles set out in s 3A of the National Law, and in particular the protection of the health and safety of the public, which must be given paramount consideration, we have decided to confirm the appellable decision to refuse Mr Turicik's application for provisional registration as a registered nurse.

Costs

The general principles in relation to costs in matters under the National Law have been conveniently summarised in the recent decision of Deputy President, Seiden SC, DCJ, in Puri v Medical Council of New South Wales (No 2) [2024 NSWCATOD 122.
Section 175B of the National Law provides the Tribunal may make any order about costs it considers appropriate for the proceedings. Section 60 of the CAT Act deals with costs in the Tribunal but is expressly ousted by cl 13 of Sch 5D of the National Law, which relevantly provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
The Tribunal has published the Occupational Division Guideline, Costs (August 2017). Clause 14 provides: The Tribunal may make a costs order in disciplinary proceedings or an appeal brought under the Health Practitioner Regulation National Law. Costs are generally awarded to the successful party unless there are disqualifying circumstances.
As observed by Deputy President Seiden at [13] and [14], principles relevant to the general rule are that costs generally follow the event, although this is not an absolute rule. Costs compensate the winning party and are not a form of punishment, but this rule may be displaced if the winning party engages in conduct that disentitles them to costs (Hennessy ADCJ in Health Care Complaints Commission v Balafas (No 2) [2021] NSWCATOD 175 at [3]). Disentitling conduct will include misconduct relating to the litigation or the circumstances leading up to the litigation, such as unnecessarily protracting the proceedings (McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72; 1998 HCA 11 at [69]). The onus is on the losing party to establish a basis for any departure from the usual rule (Health Care Complaints Commission v Balafas (No 2)). The general rule will also be disturbed where there has been a mixed result there is no clear winning party and costs may be apportioned or reduced or various orders may be made that reflect the circumstances and are consistent with the underlying decision. Costs are in the Tribunal's discretion which should be exercised judicially (Cole DCJ in Health Care Complaints Commission v Wilcox (No 2) [2020] NSWCATOD 51 at [11])
In the present case, the Board sought an order for costs of the appeal. The Board succeeded on all aspects of the case and there is no evidence of disentitling conduct which would disturb the usual rule. Accordingly, we order that Mr Turicik pay the costs of the proceedings.

Orders

The Tribunal makes the following orders: 1. The decision of the Board is confirmed. 2. The appeal filed on 6 October 2023 is dismissed. 3. Mr Turicik to pay the costs of the Board as agreed or failing agreement as assessed pursuant to the Legal Profession Uniform Law Application Act 2014 (NSW).

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: 02 October 2024

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (4)