Wang v Health Care Complaints Commission

The applicant's evidence

1. The applicant relies on her own statements, the evidence of her ongoing professional development and, importantly, the evidence of her treating psychiatrist Dr Raphael Chan.

The applicant's written evidence

1. In her two statements, having briefly stated her work history, Ms Wang relevantly states that since 2013 she has attended consultations approximately once per month with Dr Chan. It was in 2013 that the Tribunal found that she still suffered from an impairment, and since that time she has worked hard to improve her English competency, and has worked "as hard as [she] can" to improve her clinical competency, by applying for and completing some 16 professional development courses. She understands that, were she reinstated, the National Board would then consider her present qualifications and to determine what further steps she would need to make prior to returning to clinical practice. Ms Wang feels that she has made significant progress since 2013.
2. On 24 July 2017, the applicant obtained permanent part-time employment as a disability carer with the Department of Family and Community Services (FACS). On 6 October 2017, this employment was transferred to the House With No Steps (HWNS). The applicant describes her role as caring for clients who suffer from autism and other medical problems, such as brain damage and mobility disabilities. She works on average for 34 hours a week, and her role involves caring for up to five patients at a time. She provides basic health and hygiene services, and assists with mobility, attending day programmes. Her induction for the role including assessment in modules including work health and safety, standards and quality, workplace behaviours and processes, principles and practice and medication support. She received excellent marks in each component.
3. Her first statement records that since the previous Tribunal decision of 2013, she now attends for monthly consultations with a psychiatrist, Dr Raphael Chan.
4. The applicant, in the period 2015 to date, has undertaken some 37 hours of professional development. A list of the courses and lectures the applicant has attended is set out in her first statement dated 27 July 2017. The subject matters studies include, but are not limited to Abdominal Assessment, Cardiac Assessment, Musculoskeletal Assessment, Cardiac Rehabilitation and Leadership and Workplace Culture.

The applicant's oral evidence in chief

1. At the hearing, the applicant gave some oral evidence to the Tribunal. In particular, she gave evidence of recent events at her current work place, HWNS, where she works as a disability support worker. Mr Fernon took her to a letter she wrote to her Co-Ordinator Tracy Sammunt on or about 6 October 2017. This was a complaint about what she described as the "bullying behaviour" of two employees at her workplace. She said that she wrote the letter because she was told to prepare the document by Ms Sammunt. The applicant said that Ms Sammunt was concerned about the way she was being treated. Following the letter, there was a meeting on 17 October 2017, following which the issues were resolved, and Ms Wang now enjoyed a good relationship with her colleagues.
2. Ms Wang also explained that when she was transferred from FACS to HWNS she signed a document titled "Code of Conduct" on 12 October 2017.
3. Other matters discussed in evidence in chief were the non-completion of Ms Wang's Bachelor of Health, and her results in her Chinese Medicine course at the University of Technology Sydney. She undertook those studies from 2007 to 2010, but as a result of the cancellation of her registration she could not complete the clinical component of her studies. Save for that clinical component, she has completed the subjects for that degree. In 2012, she reattended to retake certain subjects. She also undertook some studies, including communication subjects, as a complementary therapist. After receiving advice and contacting the Australian College of Nursing, she joined as an Associate Member in 2013 or 2014. This enabled her to undertake that various courses and programs referred to in her statement.
4. The applicant was asked about her counselling with Dr Chan. She said that she found her regular sessions to be very helpful. She was asked to assess her ability to work in the workplace now, as opposed to say when she worked at the Royal Hospital for Women Randwick (RHWR). She said that the applicant also said that in 2006 she very immature, and should never have written the letters she did to Ms Russell, the Director of Nursing. Looking back at those letters, she feels ashamed, and would never do it again.

The applicant's cross-examination

1. Ms Hartstein of counsel for the respondent conducted a lengthy cross examination of the applicant. The cross-examination concentrated on a number of areas, including but not limited to: 1. The applicant's failure to obtain a report of a neuro-psychologist for the purposes of her application. It was put to her that she had not as it would not have assisted her application, and that she had already made up her mind not to proceed with re-evaluation as it might harm her case. Ms Wang denied this suggestion, and said that she relied on her lawyers. She agreed however that she had not obtained a further report from a neuro-psychologist; 2. The events of 2003 at Concord Hospital, including a complaint of harassment made by Ms Judith Howell, and a number of letters with inappropriate affectionate language to Ms Kerry Russell. These letters were written in the period June to November 2003. This cross-examination continued for some period. The applicant said repeatedly that her conduct was immature, that she made a mistake, that she had learned from these mistakes, that she feels ashamed of what she did and that the behaviour would not occur again; 3. Recent events with HWNS, including a complaint she made about a co-worker, Ms Carmen Cruz. Ms Cruz in turn had made a complaint about Ms Wang's conduct relating to her treatment of a resident at the HWNS, and yelling at staff; 4. Recent personal events, including troubles with neighbours dumping rubbish, disputes with her body corporate, harassment from certain Catholic priests.
2. Ms Hartstein suggested to the applicant on a number of occasions that she was not telling the truth about various aspects of her evidence (including that her colleagues had told her to write a "begging loving letter" to Ms Russell). Ms Wang said that she was telling the truth.
3. Ms Hartstein suggested to the applicant that she was an argumentative and difficult worker and that she had not changed. Ms Wang denied this and said that she was frightened by the approach of management, did not get the support she needed and that she had language difficulties.
4. Ms Hartstein asked Ms Wang about her failure to give Dr Samuels a current address. Ms Wang said that she believed her address was a private matter. Ms Wang was asked how she had addressed her lack of competency apart from the ongoing professional development. She said she felt very frustrated and did not have the opportunity to upgrade herself.
5. The applicant agreed that the last time she had worked as a registered nurse was in March 2009, and that since that time she had worked as a disability support worker, for the Columban fathers and in an Aboriginal hostel in domestic roles.
6. The applicant was briefly re-examined by Mr Fernon. She gave evidence about her work at the hospital and textbooks she had read. She described her willingness to obtain further mandatory professional development and to obtain professional assistance in order to return to nursing.

Dr Chan's evidence

1. The most significant evidence relied on by Ms Wang was the report of Dr Chan. He says that between January 2014 to January 2017 he has seen Ms Wang on 35 occasions, approximately once a month, for approximately an hour each session. All sessions were conducted in English. He says that Ms Wang does not present with a Major Depressive Disorder or Anxiety Disorder, and he can find no symptoms or signs of delusions, hallucinations or other psychotic features. He says Ms Wang does not have any disorder of thought and that in his opinion: 1. Ms Wang does not have a mental illness; 2. There has been no evidence of any Psychotic Disorder (such as Schizophrenia, Schizoaffective Disorder, Schizophreniform Disorder, Brief Psychotic Disorder or Delusional Disorder) during his clinical consultations over the three years; 3. Ms Wang does not have Asperger's Disorder or Autism Spectrum Disorder.
2. Significantly, at par [29] of his report Dr Chan concludes, having been Ms Wang's treating psychiatrist for three years, that in his opinion Ms Wang does not have any physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect her capacity to practise as a registered nurse. He states (par [30]) that there are no mental health conditions that render her unfit to work as a registered nurse.
3. Dr Chan gave additional oral evidence to the Tribunal. In summary, he said that the applicant had a vocation for nursing and that not being able to work as a nurse was a disappointment to her. He thought that she had empathy and cared for people. There was some discussion about the difference between a trait and a disorder (a disorder being more than symptoms of behaviour but severe enough to interfere with functioning) and whether a trait was a mental illness. Dr Chan said that that was debatable, but a personality disorder was a mental illness for the purposes of DSM-IV. He assessed that the applicant did not have a personality disorder but had some characteristics of interpersonal functioning that might be labelled as such.
4. Dr Chan was asked by both the Tribunal and in cross-examination whether he was biased or constrained in what he might say and write in his reports by reason of being the applicant's treating practitioner. He said he was not, but said that he bore in mind the audience [that is the applicant] when stating his views. He also indicated that being her treating practitioner meant providing her with counselling and therapy, and that he was less likely to challenge the applicant during consultations.
5. Dr Chan was asked to comment on observations he had made of the applicant's development as person over the last four years. He said that in the beginning his focus was on her being out of work as a nurse, but over time he now explored other areas in her life, rather than just her complaining. Over the last four years, he has observed how she now utilises the support she is given. By way of example, Dr Chan talked about the applicant's most recent job at the HWNS which she found to be demanding and difficult. He considered that she was better prepared now to tackle challenges.
6. In summary, he confirmed that he did not consider that Ms Wang had an impairment to a significant degree which might affect her capacity to act as a nurse.
7. Dr Chan was cross-examined by Ms Hartstein. He agreed that in his report he concluded that the applicant did not have a mental illness or personality disorder. It was put to him that the applicant was muddled in terms of where her life is going and was not coping well without his assistance. Dr Chan did not agree. It was put to him that her behaviour with her neighbour, the strata committee and in her employment at HWNS, was typical of how she interacted with and related to the world. Dr Chan did not agree. It was also put to him that her behaviour was similar to her behaviour in the past, particularly in 2003. Dr Chan did agree with this.
8. Dr Chan was asked about Dr Samuels' conclusion that the applicant had some Cluster A personality traits. He said he was not sure whether what Dr Samuels described as personality traits were traits or in fact responses caused by real events. He agreed that if the incidents were based on misperceptions, this would be indicative of a paranoid personality trait.
9. It was suggested that one of the reasons that Dr Chan was not answering certain questions was because Ms Wang was present and that he was being recorded and transcribed. Dr Chan denied this.
10. Dr Chan was asked whether there were aspects of the applicant's psychiatric functioning that caused him concern. Dr Chan said he did have concerns about her working in a nursing environment because of her embarrassment and nervousness, but he was not concerned that she had a psychiatric illness or impairment.
11. Dr Chan was asked whether the applicant had capacity to practice as a nurse in any field. Dr Chan said that she needed high degree of supervision in any field. He was asked, given the applicant's previous problems and mentoring, whether supervision would be sufficient for her to be allowed to practice. Dr Chan said supervision would be helpful to manage her anxiety.

Dr Samuels' evidence

1. Dr Samuels saw Ms Wang on 21 September 2017. He had previously seen her on 10 September 2009. He noted that he had been provided with various documents, including what he described as the "very comprehensive" report of Dr Chan, together with Dr Chan's "very comprehensive and well laid out" notes and materials. He comments that the fact that Dr Chan had seen Ms Wang so consistently over such a long period led him to put "great weight" on Dr Chan's findings and opinions.
2. Dr Samuels considered that that had there had "clearly been a significant change" in Ms Wang's presentation since he had last seen her in 2009. He noted that Ms Wang appeared to have some insight into her previous behaviour. He thought that she had gained a great deal of benefit from her mentoring with Dr Chan, and concurred with his view that there was no evidence of clinical depression of a frank psychotic illness, and that the possibility of an autistic spectrum-type disorder is small.
3. However, Dr Samuels stated in his report: 52. There has clearly been a significant change in Ms Wang's presentation since I last saw her in 2009. Today she was quite calm and cooperative, well presented and her English has clearly improved. It does seem that she has gained a great deal of benefit from the mentoring she has received as well as the specific input from Dr Chan. I concur with Dr Chan that there really is no evidence at this point that Ms Wang is clinically depressed or suffering from a frank psychotic illness. l agree also, given the warmth of her communications today, the spontaneity of her communications, and the fact that Dr Chan has observed her over a prolonged period, that the possibility of an autistic spectrum-type disorder is small. 53. I think there is evidence, however, to suggest that Ms Wang has some dysfunctional personality traits which may have evolved on the background of some adverse early developmental experiences such as a strict upbringing, her mother's very serious accident and absence from Ms Wang's life during an important developmental period. There was undoubtedly a prolonged period of unusual and inappropriate communication between herself senior nursing staff and even now she seems to continues to exhibit mild persecutory ideation e.g. Ms Wang began the interview today by telling me that she lives between Auburn and Lidcombe but picks up her mail in Burwood as this is a safer address and she fears that her mail will be stolen. Her comment that many people "propose" to her may reflect some limitations in English or that she has some continued issues in regard to interpreting interpersonal exchanges. She certainly doesn't seem to have ever had an adult intimate relationship and her relationships remain somewhat superficial. 54. Her overall presentation suggests the likelihood of some Cluster A personality-type traits which, under stress, may become more prominent. . . . 56. At this point I would regard Ms Wang as continuing to have some mild psychiatric impairments that may potentially impact upon her professional functioning. 57. I do, have some significant concerns in regard to Ms Wang's clinical competency and the substantial efforts that were identified prior to her deregistration . . . her desire to return to Intensive Nursing may not be entirely realistic.
4. Dr Samuels concluded that if Ms Wang were to return to a nursing role it probably would be appropriate for some kind of recertification and further evaluation to occur, particularly given "the now quite significant recency of practice issues". In his opinion, Ms Wang: 1. Continued to demonstrate a mild impairment "but of greater significance are the questions surrounding her clinical competency"; 2. Manifested Cluster A personality traits and possibly some cognitive deficits, which traits under stress may become more prominent; 3. Suffers from a mental illness in the form of some dysfunctional traits that become more prominent when stressed and may have some demonstrable cognitive issues on testing; 4. Can probably return to some nursing roles as long as she is able to demonstrate basic competencies; underlying cognitive impairments, skill deficits and dysfunctional personality traits may mean that she is not suited to particular nursing roles such as high intensity nursing roles and neonatal nursing; 5. Suffers from a mild impairment in the form of a personality dysfunction (Cluster A type), possible cognitive deficits as well as a lack of clinical competence (which may or may not be related to those underlying impairments); 6. Would be able to work safely as a nurse in certain lower intensity roles.
5. Dr Samuels gave brief oral evidence in chief to the Tribunal. He confirmed that 2009 the applicant was "seriously disordered", and that the pattern of conflict in her life "very much" reflected a personality disorder or trait. In his view while Ms Wang had benefited from Dr Chan, she suffered from a disorder of a Cluster A type.
6. In particular, he was asked about whether Ms Wang exhibited personality traits, or whether she suffered from a disorder, did her traits "consolidate" into a disorder. Dr Samuels said that it depended on the facts, and that Ms Wang's enduring traits were not going to disappear. He agreed that whether Ms Wang was truly harassed or simply perceived her circumstances as such was fundamental to his opinion. Nevertheless, he considered that she had an impairment in terms of s 5 of the National Law.
7. Dr Samuels was cross-examined by Mr Fernon. It was put to him that his opinion had "drifted" from that of a trait to a disorder. Dr Samuels said that this was explained by the applicant's recent experiences at HWNS and the other matters in her personal life of which he had seen documentation. He also pointed to the fact that the applicant had not disclosed her mental health status in a job application.

Findings

1. Based on the documentary evidence and the oral evidence in chief and in cross examination, we make the following relevant findings of fact. 1. Ms Wang was born in Taiwan in 1975, subsequently studied nursing there, and was first registered as a professional nurse in the People's Republic of China in 1998; 2. She came to Australia in 1998 and studied in the Bachelor of Health Science - Nursing course at the University of Western Sydney, and graduated in 2003; 3. In 2003, there were a series of incidents requiring counselling at Concord Hospital, including but not limited to the appropriateness of Ms Wang's footwear, harassment of another registered nurse, time management and task coordination, generally poor levels of performance, many instances of inappropriate boundary-crossing behaviour with her supervisor, and one clinical incident described as being of significant concern. These incidents included a series of correspondence, in particular with her supervisor Ms Russell, of an inappropriate personal nature, exhibiting infatuation and founding Dr Samuel's opinion of a possible erotomanic disorder; 4. Ms Wang resigned from Concord Hospital in about November 2004 and then commenced employment at the RHWR in its Newborn Care Unit. It was noted that her skills in the assessment, planning and deliver of care were below the expected standard, and a performance management plan put in place and an education plan commenced; 5. On 2 May 2007, Ms Wang's performance was assessed using the Novice Competency tool. She failed to demonstrate the required level of competency in any element of the assessment. A four week period of supervised clinical management was arranged; 6. In June 2007, Ms Wang's performance was again assessed using the Novice Competency tool. She again failed to demonstrate the required level of competency in any element of the assessment; 7. On 13 June 2006, following a meeting to discuss these two clinical assessments, Ms Wang resigned from RWHW; 8. In the period 2006 to 2009, Ms Wang worked for various nursing agencies; 9. In 2007, Ms Wang commenced studying a course of Traditional Chinese Medicine; 10. On 28 September 2006, the respondent received a complaint from the Nurses and Midwives Board of NSW (the Board) concerning her competence while working at RWHW. The complaint related to her failure to demonstrate the required level of competency in any element of the competency assessments; 11. On 17 December 2008, the respondent lodged a complaint with the NMT against Ms Wang. The complaint alleged that Ms Wang lacked competence, and was guilty of unsatisfactory professional conduct in a number of particular s relating to her work at the RHWR. This complaint was amended on 24 August 2009 with the additional of a complaint of lacking competence. 12. On 11 August 2009, Ms Wang was assessed by Dr Wayne Reid, a neuropsychologist. In his report, Dr Reid concluded: On neuropsychological assessment Ms Wang was found to show specific impairments in her intellectual and cognitive functioning mainly affecting her verbal abstract reasoning, some aspects of her information processing skill, verbal memory, ability to adapt and regulate her behaviour given feedback and symptoms of a clinical depression with thoughts of self-harm. In answer to the specific questions . . . 1. On the basis of your assessment, does Ms Wang suffers from any physical or mental impairment, disability, condition' or disorder which detrimentally affects or is likely to detrimentally affect her physical or mental capacity to practice nursing? Ms Wang's main cognitive problems appear in her verbal abstract reasoning skills, impulsivity and difficulties in adapting and regulating her behaviour given feedback. These problems would affect her capacity to work as a registered nurse particularly in acute care stings and working with complex medical problems. Her difficulties in mathematics may also impair her ability to administer medications other than routine medications. 2. Is there anything in your assessment to suggest that Ms Wang lacks sufficient physical capacity, mental capacity, knowledge and skill to practice nursing and or sufficient communication skills for the practice of nursing including an adequate command of the English language ? As stated above Ms Wang does have problems with verbal abstract reasoning and she is inclined to be impulsive and speak and think very quickly. These difficulties would impact on her ability to practice nursing. I feel however that these problems are not beyond assistance with extra tuition in English, particularly spoken English, and feedback about slowing down her rate of speech. 3. Please explain as the risk, if any, of repetition of conduct such as that complained of should Ms Wang return to nursing in the future. From, my assessment it seems Ms Wang would currently have difficulties working as a registered nurse in a public hospital setting. It is felt she could manage nursing in a less demanding nursing setting such as a nursing home working in dementia care where she is not required to work under stressful/time pressured conditions. 1. On 10 September 2009, Dr Samuels, a psychiatrist, saw Ms Wang. In his report of 15 September 2009, he considered that there was a possibility of a developmental disorder along the autistic spectrum, but that it was hard to form that assessment without a clearer developmental history. He also said that some of Ms Wang's comments (which he described were given in a "fatuous, giggly and mildly inappropriate affect") suggested the possible presence of an erotomanic delusional disorder. He said that there were no clear features of a psychotic illness but conditions like schizophrenia, delusional disorder or an autistic spectrum disorder could manifest with mild cognitive deficits on neuropsychological testing. Dr Samuels considered that Ms Wang suffered from an impairment in terms of the National Law, stating that: I think there is little doubt from the evidence that I have seen that Ms Wang has serious deficiencies in terms of her skills as a registered nurse. I am unsure whether this relates to the inadequate training and experience or other factors. I do think it is likely however that the interpersonal and communication difficulties that have been noted arise partly because of an underlying psychiatric condition and associate cognitive deficits, as well as her language and comprehension skills. 1. After reviewing additional information, on 22 September 2009, Dr Samuels formed the view that Ms Wang was not fit to practise as a registered nurse, and should undergo psychiatric assessment. He found that the information he reviewed suggested a likely diagnosis of Erotomanic Delusional disorder. He was not able to exclude the possibility that Ms Wang was suffering from a chronic paranoid schizophrenic illness or other "more florid" psychotic illness; 2. In September 2009, the NMT conducted an inquiry into a complaint against Ms Wang made by the respondent in respect of: 1. impairment; and 2. a lack of competence (including having not completed an accredited preregistration course, not completing all the requirements of Bachelor of Nursing and not having completed sufficient English language requirements for registration); 1. Ms Wang was not represented at the hearing. On 15 March 2010, the NMT relevantly found: 1. in relation to the complaint of impairment: 81. The Tribunal accepts Dr Reid's findings and his conclusions, as set out in his report and oral evidence. The Tribunal is comfortably satisfied that the impulsivity and deficits in cognitive functioning, in particular, in verbal abstract reasoning and inability to adapt or regulate behaviour in response to feedback, are present and that they are likely to detrimentally affect the Respondent's capacity to practise. These deficits are, in the Tribunal's view, likely to impair her capacity to adapt her practice to changing requirements in clinical settings, to utilise complex equipment or administer medications and to interact with other staff and with patients. . . . 83. After considering all the evidence, including the performance assessments from RHW and the overwhelming weight of material indicating that Ms Wang failed to meet Novice Competence performance standards after extensive efforts by senior staff at the hospital to assist her to develop the necessary skills and knowledge, the Tribunal is comfortably satisfied that Ms Wang suffers from cognitive deficits which adversely affect her interpersonal interactions and communications and that these problems may be associated with an underlying psychiatric condition. On the other hand, the Tribunal is not comfortably satisfied that there is sufficient evidence to identify any of the psychiatric conditions proposed by Dr Samuels. The Tribunal accepts that specific diagnosis is not required for a finding of impairment: Grant v HCCC [2003] NSWCA 73. 1. in relation to the complaint of competence: 88. The Tribunal is comfortably satisfied that . . . the overwhelming weight of evidence relating to the assessments of Ms Wang's performance at RHW, [establishes] clearly that there were serious deficiencies in the knowledge and skill [Ms Wang] was able to demonstrate in her nursing practice. . . . 91. The . . . courses undertaken by Ms Wang at UWS were not sufficient, given the nature of her previous qualifications, to constitute completion of all the academic and clinical requirements of the prescribed Bachelor of Nursing. 92. The Complainant's submission that Ms Wang was "registered prematurely" and that she has "subsequently failed to attain the competence required of an RN" is accepted. However, the manner in which the registration occurred would not of itself be a basis for a finding of want of competence. 93. The Tribunal views the premature registration as essentially an issue of the background to the other questions of want of competence as demonstrated in the material from Ms Wang's period at RWH. As the Tribunal's findings must be made with reference to the situation at the date of its Inquiry, the defects in her qualifications in 2002 might be of purely historical interest or concern if the evidence of subsequent events or developments indicated that [Ms Wang] was now competent. Unfortunately, there is no good evidence of Ms Wang having gained since her registration sufficient knowledge or skill to practice nursing. Rather, as set out above, the evidence points in the opposite direction. 94. On the other hand, the Tribunal does not accept that the Complainant has established, at the relevant standard, that [Ms Wang] lacks competence in that she lacks an adequate command of English. 1. The NMT concluded that removal of Ms Wang's name from the Register was necessary for a period of three years to protect the public while a suitable opportunity was allowed for her to address the deficits found in her capacity to practise and in her competence; 2. In 2013, Ms Wang made an application for a review of the order of the NMT. She relied on evidence of a clinical psychiatrist, Dr Kin Chiam, who could find no evidence to support any diagnosis of a pervasive mental disorder such as Asperger's, and no evidence of psychotic or mood disorder. However, Dr Samuels, who reviewed Ms Wang again, found it highly unlikely that she no longer suffered an impairment (as defined in s 5 of the National Law) and doubted that Dr Chiam would have been in a position to "absolutely" exclude a diagnosis of Asperger's Syndrome; 3. Ms Wang was not represented at the hearing. The NMT asked Ms Wang a number of nursing scenario questions and found the answers given to be well below the standard expected of a registered nurse; The NMT was not satisfied that the Applicant had addressed the inadequacies in her competence or in her qualifications. The NMT did not have a recent comprehensive psychiatric assessment. In the circumstances, the NMT made orders that Ms Wang not be permitted to make a further application for review prior to 2 October 2016; 4. In the period 2014 to date, Ms Wang has attended psychiatrist Dr Raphael Chan, who has seen her on at least 35 occasions. His treatment may be characterised as counselling or supportive psychotherapy. He has spent considerable time discussing with her (in English) the NMT's decisions and the issues raised. Ms Wang has benefited from the psychological support gained in these consultations; 5. Over the course of several years to 2017, Ms Wang received English language tutoring, which has improved her English skills significantly; 6. Ms Wang is currently employed by HWNS, and while there have been some episodes of friction with her colleagues, we accept Ms Wang's assurances in her oral evidence that matters had been resolved.

The applicant's submissions

1. The applicant had the assistance of oral and written submissions of Ms Wang's senior counsel Mr J Fernon.
2. Mr Fernon submitted that the Tribunal should prefer Dr Chan's opinion that Ms Wang did not have an impairment to Dr Samuel's opinion that she did. He submitted that Dr Samuel's opinion in his written report that Ms Wang had personality traits was to be preferred to his conclusion at the hearing that she had a personality disorder. Mr Fernon said that this "drift" in opinion was not a proper understanding of what occurred.
3. In summary, Mr Fernon submitted the Tribunal should not find that Ms Wang lacks impairment for the purposes of s 5 of the National Law, and that she is not lack competence to practise. In particular, he submitted that we should reject the respondent's submission that in undertaking this review of the NMT's order of 2010 we must enquire into Ms Wang's suitability to be registered, including whether she is currently a fit and proper person to practise nursing, and her worthiness and her reliability are the critical issue.

The respondent's submissions

1. In summary, the respondent submits that the Tribunal should not make a reinstatement order. It submits that the applicant remains impaired, is not competent and, in any event, is not a suitable person to hold general registration: s 52(l)(c) of the National Law. The respondent submits that in order to make a reinstatement order, the Tribunal must be satisfied that an applicant for re-instatement is a person who is suitable for registration. This, it is submitted, is an "essential" component of the decision which the Tribunal has to make. The respondent submits that, as a matter of logic, suitability must be considered by any body determining whether a person may be registered.
2. The respondent submits: 20. A re-instatement order is an order that the applicant may be registered provided he or she meets the requirements of the Board. In order to make such an order the Tribunal must be satisfied that an applicant for re-instatement is a person who is suitable for registration. This is an essential component of the decision which the Tribunal must make. 21. The Tribunal is an independent body separate from those determining registration requirements (the Board) and implementing those requirements (the Council). 22. Section 52 of the National Law states that before a person can be registered he or she must be suitable. As a matter of logic, suitability must be considered by any body determining whether a person may be registered. 23. It would create an absurd situation if the Tribunal were to abdicate its responsibilities as imposed by the legislature and say we are not sure the applicant is a suitable to be registered but we will say she may be registered and then the Board can decide. 24. One of the criteria for "suitability" to be registered is that the applicant is a "fit and proper" person to be registered. 25. The matter of suitability to practice is therefore not a matter entirely for the Board as suggested by the Applicant, but is one of the matters to be determined by the Tribunal in hearing an application for reinstatement.

Impairment

1. We have set out above our summaries of the evidence, past and present, of the various experts. The only practitioners who have recently examined the applicant recently have been Dr Samuels who saw her on 21 September 2017 (having previously seen her on 10 September 2009), and Dr Chan, who saw her 35 times in a three year period. We consider that great weight ought to put on Dr Chan's report and evidence. We note his conclusion, set out above, that Ms Wang does not have any physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect her capacity to practise as a registered nurse, and that there are no mental health conditions that render her unfit to work as a registered nurse.
2. We note in particular that Dr Chan conducted all his consultations with the applicant in English. We consider him in the best position to opine as to whether Ms Wang has an impairment and we see no reason to doubt his conclusions, notwithstanding Dr Samuel's concerns.
3. The respondent quite strongly submitted that no order of reinstatement could be made given the contradicted evidence of Dr Reid of 2009, namely that Ms Wang had problems with verbal abstract reasoning and she was inclined to be impulsive and speak and think very quickly, and that these difficulties would impact on her ability to practice nursing. Even so, Dr Reid considered that these problems were not beyond assistance with extra tuition in English. In this respect, that by the time of the NMT hearing in 2010, the NMT did not accept that Ms Wang lacked competence in the sense that she lacked an adequate command of English. And, as we have noted, Dr Chan's consultations were conducted in English. He stated that he never experienced any difficulty in understanding what Ms Wang was saying, nor she him. Dr Chan noted that several years of English language tutoring that had been provided to Ms Wang over the course of several years. Having had the benefit of seeing and hearing being cross-examined for an extended period, we reject therefore the veiled submission of the respondent that Ms Wang lacked competence because of her poor English.
4. In particular, we note that Dr Reid in 2009 did not discount the possibility of Ms Wang returning to work in the future, noting that while Ms Wang's then problems would mean she would have difficulties working as a registered nurse in a public hospital setting, she could manage in a less demanding nursing setting such as a nursing home working in dementia care where she is not required to work under stressful or time pressured conditions.
5. We conclude, and find, that Ms Wang does not suffer an impairment for the purposes of s 5 of the National Law.

Competence

1. As we understand the respondent's position, a finding of impairment founds a submission that a practitioner lacks competence to practise their profession. In this respect, the respondent relies on cases such as Health Care Complaints Commission v Bousfield [2016] NSWCATOD 73 at [156] and Lindsay Health Care Complaints Commission [2010] NSWCA 194 at [167], [168] and [173]. If this is the proposition that the respondent was putting to us, we reject it. As the Tribunal explained in Bousfield at [211], while "a finding of impairment may indeed give rise to a finding of lack of capacity to practise . . . this is not automatically the case". The Tribunal then referred to Lindsay stating at [217]: As observed by Sackville AJA in Lindsay v Health Care Complaints Commission ([2010] NSWCA 194) and cited in Tung (at [56]), a Tribunal cannot merely make the assumption that the impairment meant that the practitioner lacked the capacity to practise medicine. Sackville [AJA] continued thus: "...Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances
2. The reference to Tung was a reference to Tung v Health Care Complaints [2011] NSWCA 219 where the Court of Appeal stated at [56]: A physical or mental impairment, disability, condition or disorder which detrimentally affects the person's physical or mental capacity to practice medicine may mean that the person does not have sufficient physical capacity, mental capacity or skill to practice medicine. But that is not necessarily so, and particularly it is not necessarily so in the case of a physical or mental impairment, disability, condition or disorder which is likely to detrimentally affect the person's physical or mental capacity to practice medicine.
3. We accept, of course, the statement of the Court of Appeal in Lindsay at [168] that there is a close relationship between a finding of a disorder that is likely to detrimentally affect a practitioner's mental capacity to practise, and a finding of a lack of competence to practise based on a want of sufficient mental capacity to practise. However, for the reasons given above, we do not find that the applicant is impaired within the meaning of s 5 of the National Law. It follows therefore that we do not find that she lacks competence to be reinstated.

Suitability

1. However, at the heart of the respondent's opposition to a reinstatement order is its submission that the applicant is a not a suitable person to practise. It submits that the applicant is not suitable and that it would be "absurd" for the Tribunal to order reinstatement, and that the Tribunal would "abdicate" its responsibilities were it to do so. This is disputed by the applicant, who submits that these propositions are put without reference to any authority. The respondent submits that this matters is, as a "matter of logic", one of the matters which must be determined by the Tribunal in reinstatement applications.
2. Section 163B relevantly provides: 163B POWERS ON REVIEW [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following-- (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order-- (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. . . . (3) A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if-- (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person.
3. For the following reasons, we do not accept the respondent's submission that that the Tribunal must be satisfied that the applicant is a fit and proper person to be reinstated if it proposes to make such an order.
4. First, the plain words of s 163B(2) provide no warrant for imposing that qualification on the exercise of the discretion to order reinstatement. There is no authority for the respondent's submission that the criteria to be applied by the Tribunal in an application for review is the same criteria to be applied in determining whether a person is eligible for registration. As Mr Fernon submitted, there is no specific criteria is provided in the National Law for the making of a reinstatement order, and that, to the contrary, s 163C specifies that: (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision.
5. Mr Fernon submits that the Tribunal is concerned with the reasons that gave rise to the order cancelling Ms Wang's registration. He says that different and specific considerations will apply if, after a reinstatement order is made, application is then made for registration in accordance with Part 7 to the National Board. Then it will be for the National Board to decide whether the applicant is eligible for registration.
6. We consider that the plain words of s 163B support this submission.
7. It is to be noted that Parliament explicitly set out a number of actions the Tribunal could make when considering an application or review. These are to dismiss the application, or:

• to make an order ending or shortening the period of the suspension concerned;
• to make a reinstatement order;
• to make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions;
• to make an order ending or shortening the period of a prohibition order; or altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions.

1. Parliament did not, in terms, provide for the Tribunal to (re)register the applicant. Nor did it, implicitly, require the Tribunal to consider the requirements for registration appearing in s 63(1) of the National Law, in particular s 63(1)(c), that the applicant be a suitable person to hold registration.
2. This is not an application for registration to the Register of Nurses. This is an application for reinstatement. It is the applicant's application to be restored to the position where she is able to seek registration. This is plain in the literal words of s 163B(3) which state that a reinstatement order is "reinstatement order" is an order that the person may be registered in accordance with Part 7 if the person makes an application for registration to the National Board and the relevant National Board decides to register the person.
3. Secondly, the respondent submits that the Tribunal's inquiry is a "very broad" one, encompassing the applicant's current suitability. It relies on authorities including Ex parte Tziniolis: Re the Medical Practitioners Act (1996) 67 SR (NSW) 448; Dawson v Law Society of NSW [1989] NSWCA 58; Re Jason Martin [2010] NSWNMT 13; Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155; Hilton v Legal Practitioners Board [2017] NSWCA 232, and Marquinez v Health Care Complaints Commission [2017] NSWCATOD 148. The only potentially relevant authorities are Donnelly and Marquinez, as the other cases each considered legislation other than the National Law (namely the Nurses and Midwives Act, the Medical Practice Act and the Legal Profession Uniform Law (NSW) and the Legal Profession Admission Rules 2005).
4. We think there is substance in Mr Fernon's submission that these authorities need to be treated with considerable caution. They either are concerned with applications for re-registration, involve different legislation or deal with qualitatively different facts.
5. We accept that a reinstatement order under the National Law, is, in substance, different to the processes available for reinstatement order under the now repealed Nurses and Midwives Act 1991 and the now repealed Medical Practice Act 1992, which Acts were considered in the older authorities dealing with reinstatement. He submitted that this was established by comparing the relevant sections of each Act.
6. The provisions of s 163B of National Law is set out above. Section 68 of the Nurses and Midwives Act relevantly provided that: 68 Review of suspension or cancellation of registration or enrolment by the Tribunal (1) A person: (a) whose registration or enrolment has been suspended under section 55 (5) or 64, or (b) whose name has been removed from a Register or the Roll under section 55 (5), 64 or 67, or (c) who is the subject of a prohibition order, may apply to the Tribunal for a review of the suspension, removal or prohibition order. . . . (4) On an application being made under this section, the Tribunal may, after such inquiry as it thinks fit: (a) dismiss the application, or (b) by its order, terminate any suspension, or (c) order: (i) that a person whose name has been removed from a Register or the Roll be registered or enrolled under the provision of this Act under which the person was registered or enrolled immediately before the person ceased to be registered or enrolled or under any equivalent provision of this Act, and (ii) that such conditions, if any, as the Tribunal may impose on the person's registration or enrolment and as are specified in the order be imposed on the person's registration or enrolment, or (d) by its order terminate or shorten the period of a prohibition order or alter the conditions to which the person is subject under a prohibition order (including by imposing new conditions).

Costs

1. We reserve the question of costs. If either party seeks costs, they should file and serve written submissions within two weeks of receiving these reasons, with the other party responding if they wish to within a further two weeks.
2. We also consider that the question of costs should be determined "on the papers", and without a further hearing. A further hearing would add to the costs already incurred, lengthen the proceedings and not facilitate the just, quick and cheap resolution of the real issues. However, if either party considers it appropriate for a hearing to be held on the issue of costs, their submissions should address that issue.

Order

1. The Tribunal makes: 1. A reinstatement order in respect of the applicant.

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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: 13 March 2018