Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Health Care Complaints Commission v Lopez (No 2) [2014] NSWCATOD 15
• Decision date: 19 March 2014
• Jurisdiction: Occupational Division
• Before: N O'Neill (Principal Member); K Dixon (Nurse Member); R Bond (Nurse Member); F Taylor (Lay Member)

Decision

As the Tribunal was satisfied that the complaints that Mavis Amarili Lopez was guilty of both unsatisfactory professional conduct and professional misconduct were proved, it made the following orders namely that:

1. As Mavis Amarili Lopez was no longer registered as a nurse on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia (the National Board) and maintained by the Australian Health Practitioner Regulation Agency (AHPRA), Ms Lopez be disqualified from being registered as a nurse for a period of two years from the date of this order.

2. Having decided that if Ms Lopez had still been registered at the time it heard and determined this matter, it would have cancelled her registration, the Tribunal requires the National Board to record the fact that the Tribunal would have cancelled Ms Lopez's registration on the register kept by the National Board.

3. Ms Lopez pay the costs of the Health Care Complaints Commission (HCCC) in this matter on the ordinary basis as defined in s 3 of the Civil Procedure Act 2005 (NSW) as agreed or assessed.

• Catchwords: Complaint against unregistered nurse - breach of condition - unsatisfactory professional conduct and professional misconduct - fact that registration would have been cancelled if nurse were registered ordered to be placed on National Register - nurse disqualified from being registered for two years - costs
• Legislation Cited: Health Practitioner Regulation National Law (NSW) ss 139B, 139E, 149C, 163A, cl 13, Sch 4E; Civil Procedure Act 2005 (NSW) s 3
• Cases Cited: Prakash v Health Care Complaints Commission [2006] NSWCA 153; Health Care Complaints Commission v Gregorio (No 1) [2009] NSWNMT 26; Health Care Complaints Commission v Lopez [2008] NSWNMT 24; Health Care Complaints Commission v Powell [2008] NSWNMT 19; HCCC v Gower [2011] NSWNMT 17
• Category: Principal judgment
• Parties: Health Care Complaints Commission (Complainant); Mavis Amarili Lopez (Respondent)
• Representation: Counsel; Brenda Tronson (for HCCC); Ms Lopez not present and not represented
• File Number(s): 1420005

reasons for decision

1 What the Tribunal decided

2 As the Tribunal was satisfied that the complaints that Mavis Amarili Lopez was guilty of both unsatisfactory professional conduct and professional misconduct were proved, it made the following orders under s 149C and clause 13 of Schedule 5E of the Health Practitioner Regulation National Law (NSW) (the Law):

3 As Mavis Amarili Lopez was no longer registered as a nurse on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia (the National Board) and maintained by the Australian Health Practitioner Regulation Agency (AHPRA), the Tribunal ordered that Ms Lopez be disqualified from being registered as a nurse for a period of two years from the date of this order and that at least two years elapse, from the date of this order.

4 The Tribunal, having decided that if Ms Lopez had still been registered at the time it heard and determined this matter, it would have cancelled her registration, the Tribunal requires the National Board to record the fact that the Tribunal would have cancelled Ms Lopez's registration on the register kept by the National Board.

5 The Tribunal ordered that Ms Lopez pay the costs of the Health Care Complaints Commission (HCCC) in this matter on the ordinary basis as defined in s 3 of the Civil Procedure Act 2005 (NSW). If agreement cannot be reached, either party may have the matter re-listed for assessment by NCAT.

Background to this hearing

6 On 30 September 2008, the then Nurses and Midwives Tribunal of NSW found Ms Lopez guilty of professional misconduct arising from the fact that she administered oral medication to a patient via an intravenous route. That tribunal suspended her registration as an endorsed enrolled nurse for a period of six months and imposed a series of conditions on her registration to take effect when her right to practise nursing revived at the end of the suspension period. Three of those conditions, which eventually became conditions 1, 9 and 11 respectively, are particularly relevant to these proceedings. They were to the effect that:

Ms Lopez was not qualified to administer medications until she commenced the accredited Post Enrolment medication administration course and then only administer medications for the purpose of completing the course (conditions 1 and 9).

If in the four years subsequent to that tribunal's orders Ms Lopez applied for enrolment to another nursing course (e.g. Bachelor of Nursing), she was required to provide to the education institution(s) to which she applied a copy of that tribunal's Reasons for Decision relating to her (condition 11).

7 When Ms Lopez applied for admission to the Bachelor of Nursing degree at the University of Technology, Sydney (UTS), she did not provide that university with a copy of the relevant reasons for decision.

8 When this matter came to notice, it was investigated by the HCCC which lodged a Complaint dated 20 September 2013 with the then Nursing and Midwifery Tribunal. That Complaint alleged in complaint one that, under s 139B(1)(c) of the Law, Ms Lopez was guilty of unsatisfactory professional conduct because she contravened a condition to which her registration as a nurse was subject. Complaint two alleged that, under s 139E of the Law, Ms Lopez was guilty of professional misconduct for the same reason. The particulars of both complaints were the same namely that:

1. On 26 November 2009, Ms Lopez breached the relevant condition by failing to provide UTS with a copy of the tribunal's Reasons for Decision document of 30 September 2008, when she submitted her application to UTS for the Bachelor of Nursing Course.

2. Between 27 November 2009 and 29 May 2011, Ms Lopez failed to provide UTS with a copy of the tribunal's Reasons for Decision document.

9 The inquiry into this Complaint commenced before the Occupational Division of NCAT on 19 February 2014.

10 The Confirmation of Registration Status document tendered to the Tribunal at the commencement of the inquiry noted that Ms Lopez's last day of registration as a nurse was 31 May 2013. The explanation provided was that Ms Lopez had failed to renew her registration.

Preliminary matters

11 Two preliminary matters had to be attended to before the inquiry into the Complaint could proceed. The first matter was whether the Principal Member should sit on this inquiry. This was because among the documents filed by the HCCC in this matter was a response, dated 23 November 2011, by the Principal Member when he was the Chairperson of the Nursing and Midwifery Tribunal to a letter from the Executive Officer of the Nursing and Midwifery Council of NSW requesting advice about the orders imposed by the then Nurses and Midwives Tribunal on Ms Lopez. The Principal Member drew attention to the letter and sought submissions from the HCCC's barrister Ms Tronson.

12 The letter made it clear that it contained comments not advice and that the comments made were intended to assist the Council in relation to its role in monitoring conditions placed on a nurse's registration. As Ms Tronson noted, the letter showed no prejudgment. Although, as Ms Tronson also noted, Ms Lopez had no opportunity to make submissions on this issue, the Principal Member did not disqualify himself as there was no basis arising from the letter to make it appropriate for him to do so. In making his decision, he applied the objective test for apprehended bias settled by the High Court and discussed in Health Care Complaints Commission v Gregorio (No 1) [2009] NSWNMT 26.

13 Ms Lopez's lack of opportunity to comment was of her own making as she chose very early in the processes leading up to the inquiry into the Complaint not to take part in any of the proceedings. This was the second preliminary matter to be dealt with.

14 Ms Lopez advised the Nursing and Midwifery Tribunal, when this matter was commenced and prior to the directions hearing held on 18 October 2013, that she did not intend to take part in that hearing. Ms Lopez sent an email confirming this intention on 17 October 2013. The email had a misspelling in the address which may explain why it did not reach the tribunal's registry. Ms Lopez did not attend that hearing. Nevertheless, she was sent the directions hearing order which set out the arrangements for the exchange of documents between the parties and the date, time and place of the hearing of this Complaint.

15 The HCCC sent her the documents it intended to rely on by registered post. The person who received that parcel of documents signed the receipt "Mavis Lopez". By a letter dated 13 February 2014, the HCCC advised Ms Lopez that it did not propose to call witnesses to give oral evidence but that it would rely on the documents it had served on her. It also advised in that letter what orders it would seek, including an order for costs against her. Attached to an email Ms Lopez sent to the HCCC on 17 February 2014 was a copy of the email she attempted to send to the tribunal on 17 October 2013. That attachment together with her statement in her 17 February 2014 email that "I would like to add to the reason I am not pursuing this case is the following:" confirmed to this Tribunal that Ms Lopez did not intend to attend the hearing conducted on 19 February 2014. The Tribunal determined to proceed with the hearing. The HCCC proceeded in the manner it had advised Ms Lopez and sought the orders it had advised her it would seek. Ms Lopez did not attend any part of the proceedings.

The evidence

16 Ms Tronson tendered, on behalf of the HCCC, the documents sent to Ms Lopez and filed with the Tribunal together with the documents referred to in the last paragraph. She stated that she did not intend to rely on the documents that gave rise to the first preliminary matter. As those documents were not relevant to the matters the Tribunal had to decide, it excluded them from the tender. The Tribunal marked the tendered documents as Complainants Exhibits 1 to 11, 13 to 16 and 18 to 81. Consistent with the advice given to Ms Lopez by the HCCC, no witnesses were called to give oral evidence to the Tribunal.

17 On 20 June 2005, Ms Lopez, after completion of a Certificate IV course, was first registered as an Endorsed Enrolled Nurse (EEN) in NSW. In July 2005 she was employed at St George Hospital as an EEN.

18 Between 18 and 19 months after she commenced nursing at St George Hospital, on the night of 30 January 2007, Ms Lopez administered oral medications intravenously to an elderly patient. A summary of the incident is set out at paragraphs 33 to 39 of Health Care Complaints Commission v Lopez [2008] NSWNMT 24.

19 By letter dated 14 February 2007, the Acting Director of Nursing and Midwifery, St George Hospital informed the then Nurses' Registration Board of NSW (the NSW Board) of what Ms Lopez had done on the night of 30 January 2007.

20 On 1 March 2007, in response to this information, the NSW Board imposed conditions on Ms Lopez's enrolment. She was not to administer medications. She was to advise all of her employers of these conditions and advise the NSW Board of all her employers. As the previous tribunal pointed out, the imposition of these conditions by the NSW Board allowed it take steps to protect the public, pending the formal investigation of this matter.

21 After its investigation of the incident, the HCCC brought a Complaint against Ms Lopez.

22 30 September 2008, the then Nursing and Midwifery Tribunal found that Ms Lopez demonstrated a lack of knowledge and judgment of a sufficiently serious nature to justify suspension or cancellation of Ms Lopez's registration as an (enrolled) nurse. It also found that Ms Lopez engaged in improper conduct.

23 That tribunal continued at paragraph 131 of its Reasons for Decision that it considered all the evidence, including the fact that Ms Lopez had apparently practiced for a period of approximately 18 months prior to the incident without complaint and that since the identification of her error and the fact that she had cooperated with those investigating the matter. This led the tribunal to be satisfied that it did not need to make an order to remove her name from the register of nurses. However the tribunal was of the view that, given the serious nature of the error made by Ms Lopez and the lack of knowledge, judgment and insight she demonstrated, a significant regime of conditions was required. The tribunal was also of the view that the safety of the public could be insured only if the orders made by it were complied with by Ms Lopez.

24 In paragraphs 138 and 139 of its Reasons for Decision, the tribunal made recommendations first that Ms Lopez not handle any medication during the period of her suspension, even if working as an Assistant in Nursing or a personal care assistant or similar and second that when considering the lifting of conditions ordered to be imposed on Ms Lopez's registration by the tribunal, the NSW Board should be satisfied that the obvious deficits in her medication knowledge were being or had been addressed.

25 Finally and highly relevant to the current Complaint brought against Ms Lopez in 2013 by the HCCC, the previous tribunal stated at paragraph 140 of its Reasons for Decision:

A finding of professional misconduct of this nature may be an issue to be considered as relevant by the education institution when considering the question of what appropriate credits should be given for the previous qualifications of the Respondent.

26 The tribunal suspended Ms Lopez for 6 months and removed her endorsement to administer medications. In addition the tribunal imposed a number of conditions on Ms Lopez's registration as an enrolled nurse to come into effect when the period of suspension had elapsed.

27 It is clear from the way those conditions were stated by the tribunal, that it intended that Ms Lopez be able to practise only as an enrolled nurse and not as an EEN until she had completed a currently accredited Post Enrolment Medication Course in its entirety. What became condition 8 provided that she was not to seek any consideration for her past studies when undertaking that course. She was to become able to seek the return of her status as an EEN only after she had completed the medication course in its entirety.

28 29 March 2009 Ms Lopez's period of suspension was completed and the conditions on her registration (enrolment) came into effect. As already noted these, conditions allowed her to practise as an enrolled nurse, but not as an EEN.

29 There was no evidence before the Tribunal to indicate that Ms Lopez undertook a currently accredited Post Enrolment Medication Course either during or after her period of suspension. Nor was there clear evidence about what she did from the time of her suspension until she made her application to UTS.

30 On 19 October 2009, Ms Lopez applied for admission to the Bachelor of Nursing degree course at UTS. In her well written application, she made no reference to the fact that she had had a period of suspension and that her registration as an enrolled nurse was subject to significant conditions. Nor did she provide to UTS, at the time of her application to that university for admission to the Bachelor of Nursing degree course, a copy of the then Nurses and Midwives Tribunal's Reasons for Decision document dated 30 September 2008 relating to her .

31 A fair reading of her application would give the impression that she was, at the time of her application, an EEN and that she was currently practising nursing and enjoying it. Furthermore, that she was also currently working in her "much loved casual position as a social educator". Her application also refers to her; "expectations from the Bachelor of Nursing (Accelerated Program: Enrolled Nurse)".

32 At the end of her application she declared that the information she submitted on her personal statement, which contained the matters referred to in the last paragraph, was correct, complete and written by her. She also declared that she understood that UTS reserved the right to vary or reverse any decision or enrolment on the basis of incorrect or incomplete information.

33 Ms Lopez's curriculum vitae shows that she worked at St George Hospital from July 2005 to October 2007. There is no evidence that she worked as a nurse after October 2007. She also claimed to have worked part-time as a social educator at a particular organisation from 2001 until 2012 and perhaps longer. However, the only material she could supply in support of that claim was a statement that she was employed there as a permanent part-time social educator from April 2002 to May 2004. Her explanation, which was probably to UTS at the time of her application for admission to its Bachelor of Nursing degree course, was that neither St George Hospital nor the organisation which employed her as a social educator was willing to provide her with a letter stating their employment with them.

34 In February 2010, Ms Lopez commenced studying for a Bachelor of Nursing degree at UTS. She was granted advanced standing for 36 credit points and she passed all the subjects she studied. These provided 86 credit points leaving at further 22 credit points to be obtained.

35 However, in an email dated 2 March 2011, Ms Lopez wrote the following to the Director of Undergraduate Nursing Studies at UTS:

Due to an honest error in misreading, I have failed to submit Orders imposed by the Nursing and Midwifery Board on my practice as an EEN to the Department of Nursing and Midwifery, prior to commencement of my current nursing course.

I will be at the university on Thursday 3rd March, between 11 and 2pm and would like to come to your office to hand it to you personally, unless you prefer to leave it with your secretary.

36 Ms Lopez did not deliver any document to the Director on 3 March, but did so at an arranged appointment held on 30 May 2011 - almost three months later. The note of the meeting signed the next day by the Director and the Academic Clinical Advisor who attended the meeting, noted the condition requiring Ms Lopez to provide a copy of the relevant Reasons for Decision document to the university. It also noted that Ms Lopez was asked why she overlooked this matter at the time of application and that her response was that she had forgotten this instruction. At the meeting, Ms Lopez was advised she would be suspended from clinical work related to the course.

37 UTS cancelled Ms Lopez's enrolment on 15 March 2012. Her appeal against cancellation was dismissed.

38 The documentary material before the Tribunal is inconsistent on the question of whether Ms Lopez was registered on 1 July 2010 when the national system for registration of health practitioners came into force. However, in 2011 Ms Lopez applied for reregistration as a Division 2 (enrolled) nurse under the national registration system and the various elements of that system co-operated to reregister Ms Lopez subject to the conditions on her registration imposed by the appropriate tribunal in 2007. In addition the Nursing and Midwifery Council of NSW (the Council), established under s 41B of the Law resolved at its meeting held on 7 July 2011 to monitor the conditions imposed on Ms Lopez's registration.

39 20 October 2011, the Council wrote to Ms Lopez advising her that it had responsibility for monitoring the conditions on her registration and providing her with advice "in relation to the action required on your conditions". This letter was enclosed with two documents, one requiring Ms Lopez to acknowledge awareness of the "Orders" on her registration and to provide details of her current employers. The second was a document to provide evidence that each of her employers had been informed of the orders on her registration. Ms Lopez signed the first document on 27 October 2011 and sent it back advising that she was not employed as she was studying full time. This document was received at the Council on the next day.

40 On 7 November 2011, the Council wrote to Ms Lopez noting her advice, via the document just referred to and a phone call, that she was studying full time and doing a Bachelor of Nursing course at UTS. The Council's letter reminded her of obligation under condition 11 of her registration that she had to provide UTS with a copy of the Reasons for Decision document relevant to her. To assist in this process, the Council enclosed a copy of the reasons for decision and a document to be signed by the Dean of Nursing at UTS acknowledging his receipt of the Reasons for Decision document.

41 On 15 November 2011, the Council received an email from Ms Lopez acknowledging receipt of that letter and requesting "a two week extension from 21 November 2011" to allow Ms Lopez time to sit her exams and provide the requested information.

42 By a letter dated 30 November 2011, the Council provided Ms Lopez with an amended version of the Notification of Conditions document and reminded her that that document should be signed by the named Dean at UTS and returned to the Council no later than 5 December 2011.

43 As the Council had not received the requested document, on 7 December 2011, a representative of the Council rang Ms Lopez. Ms Lopez explained that she was having difficulty returning the document as she was currently dealing with UTS "as her course may be cancelled because of a mistake she made". Ms Lopez also explained she was unwell and would ask her husband to email the Council. This did not happen but on 12 December 2011 the Council received an email from Ms Lopez apologising for what she described as her late reply to the telephone conversation of 7 December 2011. She gave as her reason that; "due to an error from my part I am currently facing possible cancellation of the bachelor of nursing course". She stated that she would keep the Council informed of the outcome of her appeal.

44 This appears to be a reference to the process noted above which resulted in UTS cancelling Ms Lopez's enrolment on 15 March 2012 and dismissing her appeal against that cancellation.

45 On the same day, 12 December 2011, the Council sent another letter to Ms Lopez requesting information concerning her educational activities and a range of other matters including the date she provided UTS with a copy of the Reasons for Decision document. She was asked to provide the Council with the information requested by 3 January 2013.

46 However on 20 December 2011, the Council sent yet another letter to Ms Lopez stating that it was not satisfied that her statement that she was facing possible cancellation of her Bachelor of Nursing course was a satisfactory explanation as to why she had not provided the notification document signed by herself and the relevant Dean at UTS. The Council requested that she provide the required document by 27 December 2011. This letter also advised that failure on her part to provide evidence of compliance on her part with the conditions on her registration may result in the Council making a complaint against her.

47 By a letter dated 6 June 2012, the HCCC advised Ms Lopez that a complaint had been made against her for having breached the conditions of her registration as an enrolled nurse.

48 On 25 June 2012, Ms Lopez emailed a response to the HCCC setting out the same excuse for providing the Notification of Conditions document that she has supplied to the Council. She also stated in that email that at no stage did she "neglect or undermine" the Council's request and that she was "more than happy" to provide all the information that she could.

The Tribunal's findings as to complaints one and two

49 The particulars in both complaints are clearly established by the evidence set out above. Condition 11 required the relevant tribunal's Reasons for Decision dated 30 September 2008 in relation to Ms Lopez to be provided to UTS on 26 November 2009. Ms Lopez provided them of her own volition on 30 May 2011 - 18 months late. Thus proving particular 1 beyond question.

50 The continuing breach of condition 11 is manifest from the evidence set out above showing the requests of the Council for Ms Lopez to obtain proof of notification of the Reasons for Decision to UTS and its efforts to assist her to comply. These efforts and the requests for proof of compliance were met by prevarication, delay and a continuously stated but irrelevant excuse for not complying. Particular 2 was clearly proved.

51 As a contravention of a condition of registration is, of itself, unsatisfactory professional conduct, because of the terms of s 139B(1)(c) of the Law, complaint one in this matter is proved. The next question is whether this conduct is professional misconduct. The definition of professional misconduct relevant to the circumstances of this case is found in s 139E(a) of the Law. It is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

52 The Tribunal considered that Ms Lopez's conduct, as alleged in this case, amounted to professional misconduct for at least two related reasons. The first reason has been well established within the health tribunals and adopted by the NSW Court of Appeal. It is summed up in the following brief passage:

Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed.¹

53 In this case, the conditions, particularly those related to improving her competence in relation to medications and thus protecting the public from a recurrence of the matter that gave rise to her suspension followed by conditioned registration, were imposed for very good reason and needed to be scrupulously observed. The Nurses and Midwives Tribunal reasons for decision show in detail why Ms Lopez needed to redo her medications training before it would be safe for her to practise again as an EEN and administer medications to patients in hospitals and elsewhere.

54 The second reason is that Ms Lopez chose to ignore the path back to full and unconditioned registration laid out for her by the relevant tribunal in 2008. It was clear that the tribunal, on the basis of the substantial material before it that the first step for Ms Lopez was to do, in its entirety, an accredited post enrolment medication course - a course designed to build on a person's experience as a nurse and to prepare them thoroughly for their endorsement as an enrolled nurse appropriately trained to administer medications in a hospital or other location where the exercise of knowledge, skill and judgment in the different ways of administering different kinds of medication was required and the "5 rights" of administration of medication stringently applied. If Ms Lopez had completed that course she could have regained her endorsement and would have been very well placed to go on to do further study and gain her bachelor's degree in nursing. Instead Ms Lopez chose a dishonest approach and mislead UTS into offering a place in one of their nursing degree courses and giving her advance standing that her previous actions indicated it would be unwise to give her.

55 Her conduct was much more serious than the failure to give a document to the university and get someone there to sign that they had received it and to pass that information back to the relevant body in the administrative/regulatory sections of the nursing profession. It was conduct that allowed her to progress in her professional development in a way that avoided her improving her professional knowledge and skill in an area in which she was found to seriously and dangerously wanting. It was dishonest conduct which the Tribunal considered of a sufficiently serious nature to justify cancellation of her registration and so professional misconduct.

56 There was another dimension to her conduct which also confirmed that it was professional misconduct. This arose from her delay first in providing the required Reasons for Decision to UTS and second from her prevarications in relation to herself informing the Council that she had provided that document and in obtaining, for the purposes of providing it to the Council, confirmation by the relevant Dean that the document had been provided to UTS. These requirements by the Council were appropriate for it to make to ensure that Ms Lopez, and other nurses or midwives, complied with conditions on their registration.

57 As submitted to the Tribunal by Ms Tronson, taken all together, Ms Lopez's conduct amounts to a persistent course of obfuscation and disregard for the requirements of the nursing profession - if not outright deception. The Tribunal does not accept that Ms Lopez "overlooked", "forgot" or "misread" the requirement that she provide the relevant Reasons for Decision document when applying to a university to be admitted to a Bachelor of Nursing degree course. Instead she waited until she had obtained, either through being given credit for certain subjects or passing them as part of her academic study, more than 80% of the credit points required to complete the course before she took that action.

58 Ms Lopez's failure to comply with the reporting and confirmation requirements imposed on her by the Council, her prevarication and disregard for the constant reminders from the Council to comply showed a persistent disregard for her obligations as a member of the nursing profession to meet the requirements imposed on her by those charged with different roles in regulating the profession. While this conduct did not directly threaten the health and safety of the public, it showed, over a long period, an unacceptable course of conduct. Consequently, the Tribunal found this element of Ms Lopez's conduct contributed to her breach of condition 11 being found to be professional conduct.

Protective orders

59 Ms Tronson, noting that Ms Lopez was not currently registered as a nurse, submitted on behalf of the HCCC, that the Tribunal should make three protective orders under s 149C(4) of the Law, namely that:

1. The Tribunal would have cancelled Ms Lopez's registration if she were still registered;

2. Ms Lopez is disqualified from being registered as a nurse for a period of two years from the date of the order in this matter; and

3. The Tribunal require the National Board to record the fact that the Tribunal would have cancelled Ms Lopez's registration in the National Register kept by the National Board.

60 Ms Tronson submitted that these orders were appropriate for the protection of the public in the circumstances of this case because the Tribunal had no assurance that imposing conditions on Ms Lopez's registration would be sufficient because of her lack of insight displayed in the evidence, her attempts to proffer excuses and her reluctance to take responsibility for her conduct. She had already breached a condition of her registration. Furthermore, such orders were necessary to maintain the high standards of the profession.

61 The Tribunal accepted Ms Tronson's submissions as to the orders it should make in this matter and the reasons why Ms Lopez had been given a clear pathway to return to nursing after undertaking retraining to overcome the deficits in her knowledge and skills in relation to medications that had been revealed in the last hearing in relation to her. Her breach of the condition was blatant and persistent and her conduct showed a disregard of her obligation to comply with conditions on her registration as a nurse. For the standards of the profession to be maintained and for the confidence of the public in the profession to be assured, both members of the profession and of the public have to see the outcome of such long term refusal to comply with conditions in the orders made by the Tribunal.

62 The Tribunal made its orders accordingly.

63 The Tribunal also noted should Ms Lopez seek to be reregistered as a nurse, she should be required to obtain a reinstatement order from NCAT, but should not be able to apply to NCAT for such an order until after the two year period of disqualification from registration had elapsed. This was because the Tribunal considered that the only way for all the issues that would need to be tested in relation to Ms Lopez's preparedness to return to nursing could only be undertaken in a public forum in which Ms Lopez's case could be tested (by the HCCC) before the Tribunal.

64 The Tribunal considered Ms Lopez needed a period of at least two years to come to terms with the seriousness of what she had done by avoiding complying with a key condition on her registration to practice. That condition was imposed to deal with her incompetence in administering medications which was the reason for her suspension in 2008 and for her return to nursing practice to be subject to conditions. In addition, Ms Lopez appeared to have no insight into the need for her to retrain in order to show that she could be trusted to administer medications safely to patients. She also appeared to have no insight into her obligation to comply with the terms of the conditions imposed on her registration and to comply with the requests of the body responsible for monitoring compliance with those conditions, namely the Council.

Costs

65 Ms Tronson sought an order for costs against Ms Lopez as the HCCC had already advised Ms Lopez. In her email dated 17 February 2014 to the HCCC, Ms Lopez stated that she could not, "afford any further costs from the HCCC tribunal" and continued that she did not understand why she would be liable for such in the first place. Ms Tronson referred the Tribunal to Tribunal to HCCC v Gower [2011] NSWNMT 17 [65] to [76].

66 As the HCCC had proven its case and had not done anything to disentitle it from either some or all of its costs, the Tribunal make an order for costs in its favour.

Orders

67 The Tribunal made the following orders:

As the Tribunal was satisfied that the complaints that Mavis Amarili Lopez was guilty of both unsatisfactory professional conduct and professional misconduct were proved, it made the following orders namely that:

(1) As Mavis Amarili Lopez was no longer registered as a nurse on the register of health practitioners, in relation to nurses, kept by the Nursing and Midwifery Board of Australia (the National Board) and maintained by the Australian Health Practitioner Regulation Agency (AHPRA), Ms Lopez be disqualified from being registered as a nurse for a period of two years from the date of this order.

(2) Having decided that if Ms Lopez had still been registered at the time it heard and determined this matter, it would have cancelled her registration, the Tribunal requires the National Board to record the fact that the Tribunal would have cancelled Ms Lopez's registration on the register kept by the National Board.

(3) Ms Lopez pay the costs of the Health Care Complaints Commission (HCCC) in this matter on the ordinary basis as defined in s 3 of the Civil Procedure Act 2005 (NSW) as agreed or assessed.

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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

Decision last updated: 19 March 2014