Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Health Care Complaints Commission v Perceval [2014] NSWCATOD 38
• Hearing dates: 4 September 2013, 13 December 2013, 20 December 2013 (written submissions)21 March 2014.
• Decision date: 29 April 2014
• Jurisdiction: Occupational Division
• Before: Boland AM ADJC (Principal Member); D Beaumont (Occasional Member- Professional); J Littlewood (Occasional Member - Professional); Emeritus Professor D Anderson AM (Occasional Member - Lay)

Decision

The practitioner's registration is cancelled. That Australian Health Practitioner Regulation Agency ("AHPRA") is requested to remove the practitioner's name from the register of Health Practitioners maintained by AHPRA on behalf of the Nurses and Midwives Board of Australia; that a period of not less than 3 years elapse before the practitioner may again apply to the Tribunal for re-instatement of her registration; and the practitioner pay the fifty per cent of specified costs of the HCCC as agreed and failing agreement liberty to re-list before the Tribunal.

• Catchwords: UNSATISFACTORY PROFESSOINAL CONDUCT AND PROFESSIONAL MISCONDUCT. Where it is asserted the practitioner breached conditions imposed on her registration. Where practitioner concedes some breaches. Whether conditions properly drafted - HELD wording of conditions imprecise; that practitioner's conduct in breaching some conditions established unsatisfactory professional conduct and professional misconduct. IMPAIRMENT - Conflict in expert evidence - HELD - Impairment is established. UNFIT TO PRACTISE - complaint established.
• Legislation Cited: Civil and Administrative Tribunal Act 2013; Crimes Act (NSW) 1900; Evidence Act 1994 (NSW); Health Practitioner Regulation National Law (NSW) No 86a; Mental Health Act 1990 (NSW) (repealed); Mental Health Act 2007 (NSW); Nurses and Midwives Act 1991 (repealed); Suitors Fund Act 1951; Victims Support and Rehabilitation Act 1996 (NSW) (repealed)
• Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; Chowdhury v HCCC [2010] NSWCA 56; Clyne v NSW Bar Association (1980) 104 CLR 186; King v Health Care Complaints Commission [2011] NSWCA 70; Lucire v Health Care Complaints Commission No 2 [2011] NSWCA 182; Makita v Sprowles [2001] NSWCA 305; Prakash v Health Care Complaints Commission [2006] NSWCA 153; Sudath v Health Care Complaints Commission [2012] NSWCA 171
• Texts Cited: Delegation and Supervision for Nurses and Midwives.(May 2008)
• Category: Principal judgment
• Parties: Health Care Complaints Commission (Applicant); Kirrilly Anne Perceval (Respondent)
• Representation: Counsel; P Griffin; Respondent (in person); Health Care Complaints Commission
• File Number(s): 14 20009

reasons for decision

What the Tribunal decided

1 On 29 April 2014 the New South Wales Civil and Administrative Tribunal ("the Tribunal") found complaints of unsatisfactory professional conduct, professional misconduct, impairment and a lack of competence to practise nursing brought by the Health Care Complaints Commission ("the HCCC") under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law") against Ms Kirrilly Anne Perceval ("the practitioner" proved.

2 The Tribunal ordered that the practitioner's registration as an enrolled nurse be cancelled, and a period of not less than three years elapse before she may again apply to the Tribunal to be registered.

3 The Tribunal also made an order that the practitioner pay the HCCC's costs as agreed, and failing agreement, liberty to restore before the Tribunal for determination.

4 These are the Tribunal's reasons for the orders made. For convenience, and to aid understanding of these reasons, a copy of the Further Amended Complaint brought by the HCCC is annexed to these reasons and marked Annexure "A".

Introduction

5 The practitioner is a woman with a tragic history of mental illness. A psychiatrist, Dr W D Wade, in February 2011 poignantly explained the practitioner "is a very sick lady who shows many elements of being psychotic". The practitioner's illness has been deleteriously affected over many years by her use of cannabis. She has had frequent admissions to psychiatric facilities both on a voluntary and involuntary basis.

6 The practitioner is an enrolled nurse and she has worked in that capacity for extensive periods since 1993 when she was first registered. Her illness first came to the attention of the former Nurses and Midwives Board ("the Board") in September 2006. Her registration was cancelled in November that year in circumstances where she was an involuntary patient under the provisions of the Mental Health legislation then in force.

7 In April 2007 the practitioner applied for reinstatement to the register, and after an inquiry, the Board permitted her to be registered, but subject to a number of conditions. However, the practitioner again suffered relapses associated with the use of cannabis eventually leading to different conditions being imposed on her registration in 2010. Following a psychiatric assessment of the practitioner conducted in 2010, the practitioner's registration was suspended. The practitioner's appeal to the Nursing and Midwifery Tribunal ("the NMT") challenging her suspension was dismissed.

8 The HCCC now assert that the practitioner has contravened the conditions imposed on her registration, and that she suffers from chronic paranoid schizophrenic illness and/or cannabis abuse. It is further alleged that the practitioner is not competent to practise nursing "within the meaning of s 139 (a) of the National Law".

9 While the practitioner does concede a number of particulars set out in the first complaint relied on by the HCCC, it is her position that a number of the conditions imposed on her registration are ambiguous, and in any event, that she has reasonably complied with them.

10 The practitioner concedes she is impaired, but says her impairment is as a result of post-traumatic stress disorder. She does not accept she suffers chronic paranoid schizophrenic illness and/or cannabis abuse. She does, however, admit to past cannabis abuse.

11 Significantly, it is the practitioner's position that she does not wish to continue her nursing career, and she does not oppose her registration being cancelled. She opposed any costs order being made against her.

The Further Amended Complaint and the Practitioner's concessions

12 The HCCC relies on a Further Amended Complaint (undated). Leave was granted to the HCCC to rely on this document at the hearing.

13 Complaint One, which contains six paragraphs or particulars, with various sub-paragraphs, alleges that the practitioner is guilty of unsatisfactory professional conduct because, at various times since 2007, she has breached conditions imposed on her registration on 18 October 2007, as varied on 12 August 2009, and new conditions imposed on 31 March 2010.

14 Complaint Two asserts that the practitioner is guilty of professional misconduct. The professional misconduct claim is based on the breaches of conditions by the practitioner, either individually or in combination, relied on in Complaint One.

15 Complaint Three alleges the practitioner suffers from chronic paranoid schizophrenic illness and/or cannabis abuse.

16 The final complaint, Complaint Four, asserts the practitioner is not competent to practise nursing "within the meaning of s139 (a) of the National Law". That is, the HCCC allege the practitioner does not have sufficient physical capacity, mental capacity, knowledge and skill to practise the profession.

17 As the practitioner had an opportunity to appear before the NMT and make submissions to it about the outcome of the proceedings, Mr P Griffin of counsel ("Mr Griffin"), who appeared for the HCCC, submitted the Tribunal should make appropriate protective orders, and that this matter is not one in which it is appropriate to have a "two stage" hearing (see King v Health Care Complaints Commission [2011] NSWCA 70; Sudath v Health Care Complaints Commission [2012] NSWCA 171). The Tribunal agrees with Mr Griffin's submission.

18 The practitioner, at the commencement of the hearing, confirmed she admitted she breached a condition imposed on her registration in October 2007 that she abstain from all use of cannabis. She concedes her use of cannabis resulted in her being admitted to hospital on 7 January 2010 with symptoms of psychosis (Particular 1 (i) and (ii)).

19 The practitioner also admitted she had failed, as required by conditions imposed on her registration in the period 12 August 2009 to 28 November 2010, to inform a nursing agency and a hospital where she worked of the conditions (Particular 4 (i) and (ii)).

20 The practitioner further admitted that she had not notified a hospital at which she was employed between 10 March 2010 to 28 November 2010 of a condition that she only work under direct supervision (Particular 5(i)). She did not admit that she actually worked without direct supervision because she asserts, as an Enrolled Nurse, she always works under direct supervision of a registered nurse.

21 Particular 6 asserts that the practitioner breached a condition imposed in March 2010 that she only work morning shifts. The practitioner has conceded this particular.

22 We have earlier noted that the practitioner disputes the psychiatric condition asserted by the HCCC, and she does not agree she currently suffers cannabis abuse.

Matters in issue

23 The issues in dispute which required determination by the Tribunal were thus limited. Those issues are as follows:

(1) did the practitioner breach a condition imposed on 29 November 2007 that she attend Narcotics Anonymous regularly;

(2) did the practitioner fail to regularly attend a counsellor as required by a condition on her registration imposed on 29 November 2007;

(3) did the practitioner, during the period 31 March 2010 to 28 November 2010, breach the condition that she should only work under direct supervision or was she "supervised" because she was at all relevant times an enrolled nurse;

(4) does the practitioner suffer either a chronic paranoid schizophrenic illness and/or from cannabis abuse; and

(5) is the practitioner, because of her impairment, unfit to practise nursing.

The transitional provisions and the conduct of the hearing

24 In June 2012, October and November 2012 a differently constituted panel of the NMT ("the first NMT") heard and determined an essentially identical Complaint to the one now before the Tribunal. The Complaint then heard did not, however, assert that the practitioner was incompetent by reason of a physical or mental disability to practise nursing.

25 The first NMT published its reasons for decision on 14 February 2013. After publication of the reasons, it became apparent to the Health Professionals Advisory Councils' staff that the first NMT was not properly constituted as required under s 165 (2) (b) of the National Law as the panel did not include an enrolled nurse. Its decision was therefore void. The practitioner was notified by letter dated 11 March 2013 of the error in the Tribunal's constitution. The Chairperson of the NMT convened a directions hearing on 19 April 2013 and it was suggested to the practitioner that the matter could be re-heard by a properly constituted Tribunal "on the papers", including the transcript of the prior hearing. Ultimately, the practitioner indicated that she wished to appear at the hearing. She did not oppose being cross-examined. Although directions were made for the practitioner to file any material on which she sought to rely, no material was filed in accordance with the direction, and the practitioner relied on documents provided to the first NMT.

26 A hearing before the NMT commenced in 4 September 2013. The practitioner was unable to attend on that day due to illness of her partner. The NMT heard evidence from the practitioner by telephone, and agreed with her then application that the proceedings be adjourned. The matter was consequently adjourned until 29 October 2013. The practitioner could not attend on that occasion either due to bush fires. The hearing was again adjourned. The practitioner confirmed orally the matters in the Complaint that she disputed. She also indicated that she did not wish to call any evidence, nor did she wish to cross-examine any witness relied on by the HCCC.

27 The matter was finally heard on 13 December 2013. The practitioner on that occasion appeared on her own behalf. The Tribunal had before it the material before the first NMT together with the transcript of those proceedings. The practitioner was sensitively cross-examined by Mr Griffin, and treated by him with courtesy (a fact this unwell practitioner herself readily acknowledged).

28 At the conclusion of the hearing, the Tribunal made orders that the HCCC file any written submissions on which it sought to rely by 20 December 2013, the practitioner file any written submissions on which she sought to rely by 14 January 2014 and the HCCC file any written submissions in reply by 21 January 2014. The decision, both in respect the Complaint itself, and appropriate protective orders was otherwise reserved. Helpful written submissions were received from Mr Griffin, on 20 December 2013. Due to the Christmas break and the transition from the NMT to the Tribunal, those submissions were not received by the Tribunal until the new year. No submissions were filed by the practitioner in accordance with the Tribunal's order, and consequently the HCCC did not file any submissions in reply.

29 On about 12 March 2014 the Tribunal was provided with a Certificate of Conviction under s 17B of the Evidence Act 1995 (NSW) from the Local Court at Cessnock in respect of the practitioner's conviction on 5 February 2014 for making a false allegation under s 40 of the Crimes Act 1900 (NSW). The practitioner was ordered by the presiding Magistrate to enter into a good behaviour bond for a period of three years. The Certificate notes that the practitioner knowingly made a false or misleading statement regarding a sexual offence on herself on 7 March 2013.

30 At a mention before the Principal Member on 21 March 2014, Mr Griffin explained that a copy of the certificate had been forwarded by the HCCC to the practitioner. He further explained that the HCCC did not seek to either formally re-open the proceedings and/or to amend the Complaint on the basis of the certificate. Rather, he referred to the fact that he had cross-examined the practitioner about statements in the police brief relative to the conviction, and the certificate was provided to the Tribunal and the practitioner by way completeness of evidence on this topic. The Tribunal notes that the practitioner may exercise appeal rights in respect of this conviction, and that the certificate is not relied on to prove any particular in the Complaint. The Tribunal accepts the certificate on the basis it forms part of Exhibit C ("the COPS records") tendered at the hearing.

31 As a consequence of the enactment of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), Schedule 1, Division 2, Cl. 3 the NMT was abolished effective on 31 December 2013. That Tribunal's functions were taken over by the NCAT. Pursuant to the transitional provisions in the NCAT Act (see Schedule 1, Div.3, Sub-Div 2, Cl. 7 (2) and (3)) the matter is now in the Tribunal for finalisation. Clause 7 (3) (b) provides the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had the NCAT Act and the relevant amending Acts not been enacted, continue to apply. Consequently, this matter is determined under the National Law in force up to 31 December 2013.

Background

32 Mr Griffin's submissions contain a useful and accurate chronology of the relevant facts in this matter. The following matters are relevant to the issues to be determined by us in this matter and our consideration of appropriate protective orders. Unless noted by us to be an assertion the following facts are found by us to be established to the requisite civil standard.

33 The practitioner was born in 1971.

34 At age 3 the practitioner was diagnosed with Histiocytosis. She underwent chemotherapy and radiotherapy for this condition for the next four years spending considerable periods of time in hospital. As a result of her treatment the practitioner suffered facial disfiguration. She asserts, as a consequence of her disfiguration, she was bullied at school.

35 The practitioner asserts she was sexually abused by her step-father between the age of four and six years.

36 The practitioner was formerly married. She has one child of her former marriage who is now over the age of 18.

37 The practitioner studied nursing at North Sydney TAFE in 1993 and was first enrolled as a nurse in NSW on 14 February 1995. She was then aged 23 years.

38 The practitioner, during her career as an enrolled nurse, was employed in a number of hospitals and nursing homes. She also undertook agency work.

39 In 2006 the practitioner was assaulted by a neighbour. She subsequently was found eligible, as a victim of sexual assault, for the provision of counselling services in NSW under the now repealed Victims Support and Rehabilitation Act 1996 (NSW). Following the assault the practitioner ceased working in New South Wales and moved to Queensland where she worked in the Royal Brisbane Women's and Children's Hospital.

40 In December 2006 the practitioner returned to New South Wales. She worked for a nursing agency and also worked on a part-time basis at Cessnock and Kurri Kurri Hospitals.

41 From 20 April 2009 the practitioner worked for Nursing Australia, a nursing agency. The majority of her work through the agency was shift work at Lake Macquarie Private Hospital. Additionally, during 2009 and 2010, she worked at the Stockton Centre. The Stockton Centre is a residential care facility for persons with an intellectual disability.

42 As earlier noted, the practitioner's registration was suspended on 3 March 2011.

43 The practitioner has a documented history of mental illness, associated with cannabis use dating from 1996.

44 On 10 December 1996 the practitioner was referred to James Fletcher Hospital, Newcastle by her general practitioner, Dr Richard Terry ("Dr Terry"). She is asserted to have presented to Dr Terry as "very depressed", and in a tearful state. The practitioner is recorded as reporting that she had stopped taking Prozac, and that she had increased her use of cannabis.

45 Between 8 January 1997 and 7 February 1997 the practitioner was an in-patient at Kirkwood House, a facility operated by a drug and alcohol support group sponsored by the Drug & Alcohol Service of the Hunter Area Health Service.

46 On 22 September 1997 the practitioner was referred by the Lake Macquarie Mental Health Team to the James Fletcher Hospital after she was reported to display paranoia regarding her safety.

47 Between 29 September 1997 and 14 November 1997 the practitioner was again an in-patient at Kirkwood House.

48 On 30 March 1998 the practitioner requested voluntary admission to James Fletcher Hospital under the then Mental Health Act 1990 (NSW) ("the repealed Mental Health Act"). She self-discharged on 1 April 1998 against medical advice.

49 On 24 August 1999 the practitioner was admitted as an involuntary patient to the Huon Ward, James Fletcher Hospital. She was recorded as suffering paranoid ideation and persecutory delusions.

50 On 15 November 2001 the practitioner was assessed by Dr Sukhdev Dillon, Chief Medical Office, Hunter Valley Mental Health Service for suspected bipolar affective disorder and medication issues.

51 Between 15 February 2002 to 12 December 2003 the practitioner was, on a voluntary basis, under the care of the Hunter Valley Community Mental Health Team. Her diagnosis at this time was recorded as bipolar disorder, depression and substance abuse.

52 In November 2005 the practitioner was admitted to the Huon Ward, James Fletcher Hospital. She was reported as experiencing somatic delusions of being HIV positive, and of her daughter being sexually abused by her former husband who had custody of the child at the time. A diagnosis of drug induced psychosis was made, secondary to cannabis abuse. On 17 November 2005 the practitioner was detained under the provisions of the repealed Mental Health Act.

53 The practitioner was again admitted to the Huon Ward between 7 August 2006 and 14 September 2006 with a diagnosis of delusional disorder and cannabis abuse. On 9 August 2006 she absconded from the hospital but some days later presented to a police station and was escorted by police to the hospital.

54 In 2006 the practitioner's daughter and her former husband's partner each obtained apprehended violence orders ("AVO") from the Maitland Local Court against her for their protection.

55 On 4 September 2006 the Board received notification from the James Fletcher Hospital that the practitioner was being held as a temporary patient under the repealed Mental Health Act after a psychotic episode brought on by cannabis abuse.

56 By letter dated 4 September 2006 the Board advised the practitioner that her enrolment had been cancelled in August 2006 under s 34 of the Nurses and Midwives Act 1991 (NSW) (now repealed).

57 On 14 September 2006 the practitioner was made the subject of a Community Treatment Order ("CTO"). Pursuant to the order the practitioner was required to undergo twice monthly Risperdal Consta injections and random urine drug screens.

58 Between 8 September 2006 and 3 November 2006 the practitioner was an outpatient at Kirkwood House.

59 In October 2006 the practitioner commenced work in Queensland as an enrolled nurse. Her registration in that State was valid.

60 On 23 December 2006 the practitioner was admitted to the Tweed Valley Clinic, Tweed Valley Hospital. She was detained under the repealed Mental Health Act. On the day of her admission the practitioner absconded from the hospital and the police were notified.

61 On 25 December 2006 the practitioner was made an involuntary patient in the Huon Ward, James Fletcher Hospital. The practitioner's urine tests were positive for cannabis. She was noted as not having complied with the CTO regarding Risperdal Consta injections. The practitioner was stabilised on Risperdal Consta and discharged from hospital on 16 January 2007, subject to a CTO which required medication compliance. Follow up was arranged with the Hunter Valley Community Mental Health.

62 On 5 April 2007 the practitioner made an application to the Board for reinstatement of her registration as an enrolled nurse.

63 On 18 May 2007 the Conduct Committee of the Board required the practitioner to undergo a psychiatric examination prior to determining her application for reinstatement.

64 On 15 June 2007 the practitioner was reviewed by Dr Marina Vamos, ("Dr Vamos") Consultant Psychiatrist. Dr Vamos recommended the practitioner be allowed to return to work under the management, for at least one year, of the Impaired Registrant's programme.

65 On 14 August 2007 the Board notified the practitioner that a Schedule 1B inquiry under the Nurses and Midwives Act was to be convened to consider her competence to practise nursing.

66 On 18 October 2007 following the Schedule 1B inquiry the Board imposed the following conditions on the practitioner's registration under s 29A of the Nurses and Midwives Act:

Mrs Perceval may only provide nursing care to the public subject to the following conditions. Mrs Perceval must:

(a) Abstain from all use of cannabis.

(b) Regularly attend Narcotics Anonymous.

(c) Take medication prescribed by her general practitioner.

(d) Regularly attend a counsellor of her choice and authorize that counsellor to report to the Board, in writing, any failure to continue to attend for counselling and of any concerns about her mental health which may impact on her capacity to provide safe patient care as an enrolled nurse.

(e) Provide to the Board in writing, within seven (7) days of receipt of the statement of decision.

(i) The name and contact details of the counsellor who has agreed to provide a report to the Board; and

(ii) A document signed by the counsellor acknowledging this agreement.

(iii) Provide to the Board in writing, within seven (7) days of changing her counsellor:

(iv) The name and contact details of the new counsellor who has agreed to provide a report to the Board; and

(v) A document signed by the counsellor acknowledging this agreement.

(f) Provide a report written by the authorised counsellor indicating whether or not there are any concerns in relation to Mrs Perceval's mental health. The report must be supplied by Mrs Perceval to the Board twelve months from the date of decision of this inquiry (i.e. October 2008).

(g) Provide to the Board in writing, within seven (7) days, details of any change of address.

(h) Authorise the counsellor to provide a report to the Board and provide a copy of the written authorisation to the Board and to the counsellor.

67 In November 2008 the practitioner had a brief admission to Maitland Hospital for depression and concerns for her daughter.

68 On 29 May 2009 Ms Colleen Smithers, Hunter Valley Mental Health Services, noted in an assessment report that the practitioner "stated she had last used THC in November [2008] preceding her admission to MMHU. She was smoking approximately a 'foil' a week".

69 On 5 November 2008 the Competence to Practice Committee of the Board requested the practitioner to undergo a further psychiatric assessment. The practitioner was assessed by Dr Anthony Samuels, ("Dr Samuels") Consultant Psychiatrist on 10 December 2008.

70 On 15 December 2008 Dr Samuels provided a report to the Board. He recommended, in light of the practitioner's recent admission to a psychiatric hospital in a state of anxiety, that she be reviewed again in three to six months, and that in the interim, the conditions on her registration remain in force.

71 On 6 January 2009 the practitioner was admitted to the Maitland Hospital Emergency Department as an involuntary patient under the Mental Health Act 2007 (NSW) ("the Mental Health Act").

72 On 1 February 2009 the practitioner was brought by police to the Mater Mental Health Unit as a result of delusions about her daughter, and her involvement in a high speed car chase with police that morning.

73 On 24 June 2009 the practitioner was again reviewed by Dr Samuels. In his report, dated 29 June 2009, Dr Samuels recommended to the Board further conditions be placed on the practitioner's registration including additional counselling support, more frequent attendances at Narcotics Anonymous, random urinary drug screenings, and confirmation from all employers that they were aware of the conditions on her enrolment. The practitioner reported to Dr Samuels during this review that she attended Narcotics Anonymous "occasionally", perhaps once or twice per month.

74 By letter dated 12 August 2009 the Board wrote to the practitioner advising her of the decision of the Competence to Practice Committee ("the Committee") determined at its meeting on 5 August 2009. The Committee made the following findings:

(1) Mrs Perceval was in breach of conditions (b) and (d) as follows:

(b) Not currently seeing a counsellor due to her counsellor being on six months leave; and

(d) Attending Narcotics Anonymous occasionally, rather than on a regular basis.

The Board requested that Mrs Perceval address conditions (b) and (d) in writing to the Board by 27 August 2009, advising her that the consequences of not doing so could include a disciplinary complaint being made against her.

(2) The conditions on Mrs Perceval's enrolment were to be varied in response to concerns raised by Dr Samuels' report as follows:

Mrs Perceval may only provide nursing care to the public subject to the following conditions. Mrs Perceval must:

(a) Abstain from all use of cannabis.

(b) Regularly attend Narcotics Anonymous.

(c) Take medication prescribed by her general practitioner.

(d) Regularly attend a counsellor of her choice and authorise that counsellor to report to the Board, in writing, any failure to continue to attend for counselling and of any concerns about her mental health which may impact on her capacity to provide safe patient care as an enrolled nurse.

(e) Provide to the Board in writing, within seven (7) days of receipt of the statement of decision.

(i) The name and contact details of the counsellor who has agreed to provide a report to the Board; and

(ii) A document signed by the counsellor acknowledging this agreement.

(f) Provide to the Board in writing, within (7) days of changing her counsellor:

(i) The name and contact details of the new counsellor who has agreed to provide a report to the Board; and

(ii) A document signed by the counsellor acknowledging this agreement.

(g) Provide a report written by the authorised counsellor indicating whether or not there are any concerns in relation to Mrs Perceval's mental health. [The words "The report must be supplied by Ms Perceval to the Board twelve months from the date of decision of this inquiry (i.e. October 2008)" were deleted]. The report must be supplied by Mrs Perceval to the Board within six months from 5 August 2009 (i.e. February 2010). (Amended condition).

(h) Provide to the Board in writing, within seven (7) days, details of any change of address.

(i) Authorise the counsellor to provide a report to the Board and provide a copy of the written authorization to the Board and to the counsellor.

(j) Advise her employer/s (and/or supervisor/s) of the conditions placed on her enrolment as an enrolled nurse. (New condition).

(k) Authorise her employer/s (and/or supervisor/s) to report to the Board, in writing, of any concerns which may impact on her capacity to provide safe patient care as an enrolled nurse and provide a copy of the written authorisation to the Board and to her employer/s (and/or supervisor/s). (New condition).

75 On 7 January 2010 the practitioner was admitted to the Maitland Hospital and subsequently transferred to the Mater Mental Health Unit.

76 Between 7 to 29 January 2010 the practitioner was an involuntary patient at the Mater Mental Health Unit. According to urine drug screens performed on 10 and 22 January 2010, and reporting by the practitioner of admissions of the use of cannabis, she was found to have symptoms of psychosis in the presence of cannabis use.

77 On 16 January 2010 the practitioner absconded from the unit but voluntarily returned on 19 January to attend her appeal to the Mental Health Review Tribunal ("the MHRT") for discharge from the hospital. The practitioner's appeal to the MHRT was dismissed.

78 On 22 January 2010 the Hunter Valley New England Area Health Service notified the Board that the practitioner had been admitted as an involuntary patient to the Mater Mental Health Unit. The practitioner was discharged from this unit on 29 January 2010 with follow up to be undertaken by the Lake Macquarie Community Mental Health Team.

79 On 25 March 2010 the Lake Macquarie Mental Health Team notified the Board in writing that, following her discharge in January 2010 from the Mater Mental Health Unit, the practitioner had not, except on one occasion, responded to contact from the Team, had not had her prescribed depot medication, nor attended scheduled reviews with the Team or her treating psychiatrist.

80 As a result of the practitioner's impairment and failure to receive follow up treatment on 31 March 2010 the Board changed the conditions on the practitioner's enrolment to provide as follows:

Ms Perceval may only provide nursing care to the public subject to the following conditions. Ms Perceval:

(a) May only practice as a nurse under the direct supervision of a registered nurse (without conditions on his/her practice).

(b) May only work morning shifts.

(c) Must advise her employer (and/or supervisor) of the conditions placed on her enrolment as a nurse.

(d) Must attend for review by a Board nominated psychiatrist if/when she requests a review of the conditions of her enrolment as a nurse.

81 The Nursing and Midwifery Council ("the Council") (the successor of the Board on the introduction of the National Law) received confirmation from Mr M McKay, Manager, Nursing Australia, ("Mr McKay") that the practitioner had undertaken 237 shifts for the agency (including night duty shifts) between 30 April 2009 and approximately 30 November 2010.

82 Mr McKay confirmed to the Council that around 30 November 2010 the practitioner first asked him to sign a document stating he was aware of the conditions placed on her registration as an enrolled nurse. He advised that he declined to sign the document as he could not be sure that there had been compliance with the conditions.

83 On 23 December 2010 the Council received confirmation from Mr Brett Dennett ("Mr Dennett"), Director of Clinical Services, Lake Macquarie Private Hospital that the practitioner had worked 34 night shifts and 8 evening shifts during the period 16 April 2010 to 28 November 2010. Mr Dennett noted that the hospital was not aware of the conditions on the practitioner's registration until the end of November 2010. At that time, as the hospital could not accommodate the requirements of her conditions, the practitioner was not offered further shifts at the hospital.

84 On 8 February 2011 Dr W D Wade ("Dr Wade"), consultant psychiatrist, on the request of the Council, assessed the practitioner. He opined that she was suffering from a "Chronic Paranoid Schizophrenic Illness".

85 On 14 February 2011 the Council received written submissions from the practitioner.

86 On 3 March 2011 the Council, pursuant to s 150 (1) (a) of the National Law, suspended the practitioner's registration.

87 On 9 March 2011 the Council referred issues concerning the practitioner's impairment and breach of conditions on her registration to the HCCC.

88 On 28 March 2011 the practitioner appealed the Council's decision to suspend her registration.

89 On 4 July 2011 the NMT heard the appeal. It confirmed the Council's order, and dismissed the appeal.

90 On 13 December 2013 the practitioner wrote a letter addressed to "To whom it may concern". In the letter the practitioner said:

I formally request that my name be withdrawn from the Roll of Nurses. I no longer wish to practise as nurse, due to the ongoing prosecution by the H.C.C.C

91 On 8 March 2013 NSW Police records disclose the practitioner reported to Wollombi Police Station that she has been raped. The practitioner was charged by NSW Police with making a false statement under s 40 of the Crimes Act 1900 (NSW). On 5 February 2014 the practitioner was convicted in the Cessnock Local Court and sentenced to enter a bond to be of good behaviour for a period of three years.

The relevant law

92 The first complaint agitated by the HCCC asserts that practitioner is guilty of unsatisfactory professional conduct under s 139 B of the National Law. That section so far as in relevant to this complaint provides:

(1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following--

(c) A contravention by the practitioner (whether by act or omission) of-

(i) a condition to which the practitioner's registration is subject; or

(ii) an undertaking given to a National Board.

(e) (intervention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner.

93 The second complaint, which alleges the practitioner is guilty of unsatisfactory professional conduct, is brought under s139E of the National Law. That section provides as follows:

For the purposes of this Law, "professional misconduct" of a registered health practitioner means--

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or

(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

94 The third Complaint asserts the practitioner is impaired. Impairment is defined in s5 of the National Law in the following terms:

"impairment", in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect--

(a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; ...

95 The fourth complaint asserts the practitioner lacks the competence to practise nursing as explained in s 139 (a) of the National Law. Section 139 (a) provides as follows:

A person is "competent" to practise a health profession only if the person--

(a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and ...

The objects and principles underpinning the National Law

96 Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. Section 3A of the National Law, in force at the date of the hearing, sets out the objective and guiding principle to be applied by a Tribunal in New South Wales conducting an inquiry into a complaint and, if appropriate to do so, when making protective orders. The relevant parts of s 3, for the purposes of this hearing, are as follows:

(2) The objectives of the national registration and accreditation scheme are--

(a) 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; and

...

(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and .......

(3) The guiding principles of the national registration and accreditation scheme are as follows--

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;

...

( c) 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.

97 Section 3A, which has particular relevance in the circumstances of this matter, provides as follows:

In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

98 It is relevant at this point the Tribunal records that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1980) 104 CLR 186).

The onus or burden of proof

99 The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336.

Complaint One and Two - admitted particulars

100 It is unnecessary, in the circumstances of this matter, that we consider in depth certain particulars of Complaints One and Two conceded by the practitioner.

101 The practitioner concedes that she breached the condition imposed on 29 November 2007 ("the first conditions") that she abstain from all cannabis use.

102 The practitioner did not dispute that she told Dr Samuels on 10 December 2008 that she had used cannabis contrary to the first conditions. Hospital records produced by the HCCC disclose the practitioner's long standing history of cannabis abuse associated with her mental health admissions. In particular the records of the practitioner's admission on 10 January 2010 establish Complaint One particular 1 (i) and (ii) is proved.

103 The practitioner concedes that she failed to notify the nursing agency who engaged her, or Lake Macquarie Hospital of conditions placed on her registration between 12 August 2009 and 28 November 2010.

104 The unchallenged evidence before the Tribunal, being Mr Dennett's letter to the Council dated 21 December 2010 and his statement dated 9 August 2011, together with the statement of Mr McKay dated 26 August 2011, established particular 4 ((i) and (ii), 5 (i) (ii) are proved to the requisite civil standard.

105 We note that Mr McKay's evidence is that the practitioner worked for Nursing Australia between 30 April 2009 and 28 November 2010. During that period she worked 237 shifts mostly at Lake Macquarie Hospital. Mr McKay states that during her period of employment the practitioner did not make him aware of any conditions on her registration.

106 The Tribunal further notes that Mr Dennett only became aware of the conditions on the practitioner's registration when he received a letter from the Council dated 21 December 2010. Mr Dennett's statement refers to him speaking to the practitioner's Nurse Unit Manager, Ms Colmer, who is reported as saying the practitioner had only told her some weeks before December 2010 that she had conditions on her registration. It is asserted that Ms Colmer reported the practitioner did not however explain that one condition was that she could only work morning shifts.

Disputed conditions

General comments about conditions

107 Before turning to the particulars relating to the requirement the practitioner regularly attend Narcotics Anonymous and regularly attend counselling it is relevant that we make some general observations about conditions imposed by either the Board or Council from time to time and orders made by the Tribunal, Performance Review Panels or Professional Standards Committees.

108 The first conditions, as earlier noted, were imposed by the then Board in late 2007. Those conditions are, as are later conditions, set out in full under "background" in these reasons and it is unnecessary we repeat them. It is relevant to note however that condition 2 of the first conditions required the practitioner to provide a report to the Board by 18 October 2008 from her counsellor in respect of any issues concerning her mental health. On 5 August 2009 the Board varied the first conditions by extending the time for the provision of the report by the authorised counsellor until February 2010, and added additional conditions ("the second conditions"). The additional conditions in the second conditions were highlighted by the words "new condition" in brackets after the relevant condition.

109 However, on 31 March 2010, different conditions (being conditions imposed by a Competence to Practise Committee) were imposed ("the third conditions"). Although the Committee document dated 22 July 2013 refers to the second conditions being "varied", it was not noted that the earlier conditions were revoked and the new conditions substituted in lieu.

110 The Tribunal considers that it is essential when conditions are imposed that the requirements which a practitioner must observe should be clear and unambiguous. This requirement has even more relevance when a condition is a critical compliance condition (see s 146B (3) and (4)).

111 We were uncertain whether the conditions imposed on 31 October 2010 were in addition to or in substitution for the second conditions as varied. Mr Griffin submitted we should infer the revocation of the earlier conditions because the third are silent as to the continuation of the earlier conditions. He referred to the third conditions as being "more stringent" than the earlier conditions.

112 While a Tribunal, with the benefit of a legally trained member, may draw inferences, these conditions required compliance by an enrolled nurse with no legal training or expertise to draw the inference that the second conditions had been revoked and replaced by the third conditions.

113 While we note that the earlier conditions were imposed by the Board not the Council, there would have been no doubt about which conditions were in force at a particular point in time, if the third conditions made it plain that the earlier conditions were revoked. This is particularly so when regard is had to the authorities which emphasise the need for a practitioner to scrupulously adhere to conditions imposed. The need is well demonstrated in the comments of the Medical Tribunal in Re Dr Tan Than Le (Medical Tribunal decision, 20 September 2001 at 46, para 95) and approved by the Court of Appeal in Prakash v Health Care Complaints Commission [2006] NSWCA 153 as follows:

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. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, 'containing as it does a grave criticism of the standard of the practitioner's conduct'.

114 It is not a matter of dispute that the first and second conditions were imposed under s 29A of the now repealed Nurses and Midwives Act. But the Complaint was instituted after the commencement of the National Law, and is to be determined under that Law.

115 Certain provisions of the National Law are unique provisions in respect of this State. Under the NSW provisions a Performance Review Panel, a Professional Standards Committee or the Tribunal can impose conditions or make orders in respect of a registered Health Practitioner. The distinction between a condition and an order may be difficult to distinguish in practical application. But the ramifications of contravention of either a condition or an order, or review of them, makes precision of drafting of either particularly relevant.

116 The distinction between a condition and an order is apparent in s 149A (1) (b) (c) (d) (e) and (f) (a NSW provision). Those sub-sections provide as follows:

149A General powers to caution, reprimand, counsel etc [NSW]

(1) The Tribunal may do any one or more of the following in relation to the registered health practitioner--

(a) caution or reprimand the practitioner;

(b) impose the conditions it considers appropriate on the practitioner's registration;

(c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);

(d) order the practitioner to complete an educational course specified by the Tribunal;

(e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal;

(f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. [our emphasis]

117 Thus it is clear that a condition attaches to a practitioner's registration. In other words, the practitioner's ability to practise his or her profession as a registered practitioner requires that the practitioner does so in accordance with the condition. As such any condition will appear on the records maintained by the Australian Health Practitioner Regulation Agency ("AHPRA") ( see s 225 (k) of the National Law).

118 An order may mandate a practitioner undergo either particular treatment, the completion of an educational course or courses, or provide reports on the practitioner's practice, or for the practitioner engage in conduct such as to seek advice and support from a mentor. It is not necessary that an order of the Tribunal appear on a practitioner's registration maintained by AHPRA. It may be included on a practitioner's registration at the discretion of a National Board (s 225 q). It will be remembered that the practitioner's registration details are publicly available on the AHPRA web-site.

119 However, somewhat inconsistently with distinction maintained between conditions and orders in s 149 A, the language employed in s 150 refers to a council, if it is satisfied it is appropriate to do so, by order imposing conditions on a practitioner's registration.

120 From time to time, both pursuant to s 150 and otherwise, requirements to be observed by a practitioner are framed as an order that the practitioner comply with certain conditions. Thus, a "blurring" of the two provisions may occur.

121 There may, however, be consequences if it is asserted there is a contravention of a condition as distinct from a contravention of an order. The identification of whether a requirement is a condition or order also has consequences if variation or removal is sought by the practitioner in New South Wales.

122 Section 139B (c) (i) provides that contravention of a condition, if proved, constitutes unsatisfactory professional conduct. Section 139B (d) separately provides contravention of an order of a Committee or a Tribunal, if proved, also constitutes unsatisfactory professional conduct. "Contravene" is defined in Schedule 7 Part 3 Cl 12 as "includes fail to comply with". Thus, although it is necessary for the HCCC to particularise with care whether a contravention of s 139B (c) (i) is alleged, or a breach of s 139B (d), the consequences for the practitioner may not necessarily be substantially different. But we note the comments of the Court of Appeal in Prakash about the serious consequences of breach of conditions. Further, contravention of a critical compliance condition or order, if proved, it may lead to cancellation of the practitioner's registration (see 149A (4)).

123 The question of whether a Tribunal imposes a condition on a practitioner's registration, or orders a practitioner to undergo medical treatment or to comply with other requirements becomes important if the practitioner seeks a review of the Tribunal's orders under s 163A (again a NSW provision of the National Law). The Tribunal has the power to review a "relevant order" (see s 163A (b)) or an order made under Division 8. A "relevant order" is defined as an order suspending or cancelling a practitioner's registration, or "an order that conditions be placed on a practitioner's registration". This wording may be considered confusing. It may be the draftsperson intended to limit a review to a review of an order imposing conditions under s 150.

124 Understandably, we did not have the benefit of submissions on this topic, as the question of what conditions were in force from 31 March 2010 was peripheral to the real issues in dispute in this matter. Without deciding this issue, it appears to us on a strict reading the section does not permit a Tribunal or a Council to review a condition unless it is imposed as "an order", and the definition and section does not permit the review of an order made under s 149A (b) (c) (d) (e) and (f) of the National Law or conditions imposed under other than under s 150. We note, however, a Council can, under s 150C (2), at any time alter or remove a condition imposed under Subdivision 6 of Part 8. The power does not appear to extend to conditions imposed under s 148E (1) (c) (which is found in Subdivision 5 of Part 8), or conditions imposed under s 146B (d) (which is found in Subdivision 3 of Part 8).

125 A recent document, described as "Legal Practice Note No. 1 2014", published by the Health Professional Councils Authority states:

In NSW conditions imposed on a health practitioner's registration following a conduct process (Tribunal, Professional Standards Committee, or a council inquiry) or a Performance Review Panel hearing can only be lifted following a formal review process by the appropriate review body. This is entirely appropriate in terms of conditions that restrict a practitioner's professional practice in the interests of protecting the public.

However, orders that require a practitioner to do a specific thing, such as undergo a period of professional supervision or mentoring, or undertake a specified educational course, but which do not restrict his or her practice whilst that thing is done should be able to be "lifted" as soon as they have been satisfactorily complied with. This is reflected in the absence of any provision that allows for the review of orders

126 We observe that, so far as we are aware, the "Legal Practice Note" has no legislative status under the National Law. It is a helpful and informative document for members of councils, Performance Review Panels and Professional Standards Committees in NSW, Tribunal members and practitioners. It appears on the Health Professional Councils Authority web-site. Notwithstanding the comments contained in the note that a requirement in an order should be able to be "lifted" following compliance, the note does not reference how an obligation contained in an order is to be "lifted" (or varied) if imposed by a Tribunal, or by what authority such an order, if recorded on a practitioner's registration is to be removed. If we are correct, s 163A may require legislative amendment to make it clear that an appropriate review body can review (a) a condition or (b) an order imposing a condition under s 150 and (c) an order such as one which may require a practitioner to attend counselling, or to engage in a course of education or be subject to mentoring.

The Narcotics Anonymous condition

127 As noted above, the practitioner does not concede she contravened the condition imposed on 18 October 2007 that she regularly attend Narcotics Anonymous. In her document entitled "Pleas in Relation to Charges" dated 27 September 2012 ("the practitioner's response") she states "I have and do still attend Narcotics Anonymous on a twice weekly basis".

128 The evidence relied on by the HCCC to support this complaint is the practitioner's self reporting to Dr Samuels on 24 June 2009 that she attended Narcotics Anonymous "occasionally or one to two monthly". The HCCC further rely on the fact that the Board wrote to the practitioner on 12 August 2009 asserting she was not complying with the condition.

129 Mr Griffin, while very fairly noting the imprecision in the drafting of the condition, particularly in respect of the use of the word "regularly", and the fact that the Board in its correspondence with the practitioner did not define what it meant by "regularly", submitted it was arguable from the date of the Board's letter "that the Respondent knew that attending occasionally or one to two meetings monthly was not 'regularly' in the opinion of the Board".

130 We have earlier set out the precise wording of this condition, but for convenience we now repeat the relevant condition.

[The practitioner] must ... regularly attend Narcotics Anonymous

131 The Tribunal makes a number of observations about this condition. While the condition is properly drafted "in personam", that is, it mandates compliance by the practitioner, who is named, it is unlimited as to time. That is, the condition does not specify when the practitioner must commence attending Narcotics Anonymous, with what frequency and for what period of time. Nor does it provide any requirement for the practitioner to provide evidence of her attendance so that monitoring of the condition is prima facie impossible.

132 Mr Griffin fairly noted that Narcotics Anonymous, as its name implies, works on the basis of the anonymity of attendees, and records of attendances are not maintained.

133 The major problem however with this condition is the imprecision surrounding the adverb "regularly". A condition must be drafted with precision, so that the practitioner understands the obligations placed on her or him, and its compliance capable of objective, not subjective, assessment.

134 "Regular", the adjective, is defined in the Macquarie Dictionary to include "usual, normal, customary; conforming in form or arrangement, symmetrical; characterised by fixed principle uniform procedure; recurring at fixed times; periodic; adhering to rule or procedure; observing fixed times or habits". "Regularly" is the adverb of regular.

135 We accept the practitioner could not provide independent evidence of her attendance at Narcotics Anonymous. The Tribunal also accepts the practitioner was honest in her reporting to Dr Samuels.

136 We do not accept that the Board told the practitioner what it meant by regular in its letter to on 12 August 2009 or in earlier correspondence sent to the practitioner.

137 We are satisfied that this drafting of this condition was imprecise, incapable of objective assessment as to what was required of the practitioner, and the establishment of compliance with it. In short, we are satisfied the HCCC has not established to the requisite standard particular (a) of Complaint One.

The counselling condition

138 The next particular disputed by the practitioner is particular 3 of Complaint One. This condition is framed as follows:

[The practitioner] must regularly attend a counsellor of her choice and authorise that counsellor to report to the Board, in writing, any failure to continue to attend for counselling and of any concerns about her mental health which may impact on her capacity to provide safe patient care as an enrolled nurse

139 In his written submissions Mr Griffin notes "This condition is ambiguous because 'regularly' is not defined". However he goes on to submit that "the [practitioner] failed to attend a counsellor for eleven (11) months when she was obliged to do so. This cannot be construed as regular attendance".

140 In the practitioner's response she says:

I plead not guilty. I have attended counselling on a regular basis, and continue to do so, and have authorised all counsellors to make whatever reports to the board that are necessary. With regard to my counselling with Emma Lee, I was not referred by this counsellor to an alternative counsellor during her leave, and assumed my counselling was at an end for the time being.

141 This statement is somewhat inconsistent with the practitioner's written submissions to the first NMT. In her submissions the practitioner explained that "when I requested that Ms Lee report to the Board she refused on the basis that she did not feel it appropriate. I now appreciate I should have pressed the matter."

142 The practitioner saw Ms Emma Lee ("Ms Lee") on sixteen occasions from 11 April 2008 until 4 March 2009. In March 2009 Ms Lee took extended leave. The practitioner thereafter saw Mr Benjamin Kelly for counselling on 9 December 2010 and 17 January 2011.

143 In the practitioner's response she explains that she has been seeing a counsellor, Ms Margaret Muir ("Ms Muir"), on a regular basis, initially fortnightly and then monthly. She asserts that the frequency of her visits to Ms Muir are as suggested by the counsellor. We note the practitioner commenced seeing Ms Muir in March 2011. By that date she was no longer obliged to attend a counsellor of her choice, that condition have been apparently rescinded and replaced by the third conditions.

144 The Further Amended Complaint asserts the practitioner breached the condition that she regularly attend a counsellor because she self-reported to Dr Samuels that whilst Ms Lee was on leave she was not seeing anyone else at the time, and that she did not attend a counsellor between 4 March 2009 and 9 December 2010.

145 The interpretation of the condition in respect of counsellor imposed in the first conditions and varied in the second conditions, which came to the notice of the practitioner shortly after 12 August 2009, each refer to the practitioner attending counselling on a "regular" basis. We refer to our earlier discussion of the word "regular" in the first and second conditions relating to the practitioner's attendance at Narcotics Anonymous.

146 We perceive some difficulties with the conditions concerning counselling as originally drafted and contained in the first conditions, and the slight variation of the conditions in the second conditions. First, we note as part of condition (d) the practitioner was required to "regularly attend a counsellor of her choice and to authorise that counsellor to report to the Board in writing, any failure to continue to attend for counselling and of any concerns about her mental health which may impact on her capacity to provide safe patient care as an enrolled nurse". The practitioner was also required to provide a report written by the authorised counsellor with the report to be provided to Board twelve months from the date of the decision of the inquiry (i.e October 2008) (Condition (f)). That condition was varied in the second conditions to delete the reporting requirement date of October 2008 and to substitute in lieu February 2010.(Condition (g)). She was also required to authorise the counsellor to provide a report to the Board (condition (h) first conditions and condition (i) second conditions).

147 It is not dispute that the practitioner attended on Ms Lee on 11 April 2008 after the condition was imposed in the first conditions, and that she authorised her to provide a report.

148 The condition does not specify when the practitioner must commence regularly seeing a counsellor, how often she must do so, and for what duration. It could be implied that, subject to any adverse report by the counsellor, the requirement to attend counselling as required in the first conditions would cease when the practitioner's counsellor provided the report in October 2008. There is an inconsistency between the requirement to authorise the counsellor to report to the Board any concerns about the practitioner's mental health, and the requirement that a report was not required for a period of one year. The latter condition (h), was not expressed to be subject to or in addition to the requirements of condition (d).

149 The evidence supports a finding that the practitioner did comply with the condition as imposed in the first conditions. That is, between October 2007 and March 2009 she did attend a counsellor. The frequency with which she was required to attend was not specified. We are satisfied in this period the practitioner could not be regarded as in breach of the condition. But the particular is limited to the period from March 2009 to December 2010.

150 Mr Griffin points out in his submission that the practitioner attended on Ms Lee for sixteen counselling sessions prior to Ms Lee going on leave. He submits "on average this amounts to a session every three weeks during this eleven month period". He further notes that in these circumstances the practitioner "could not have held a reasonable belief that attending no sessions in the following twelve months was compliant with the obligation to regularly attend".

151 We accept there is some force in Mr Griffin's argument. However, as we have noted the first condition was silent as to when the practitioner was to commence seeing a counsellor, the type of counselling, qualifications of such counsellor, how often the practitioner was required to attend a counsellor, and if counselling expenses were to be borne by the practitioner. Notwithstanding the Board reviewed and varied the first conditions on 12 August 2009 it did not, at that time, provide any further specificity to the condition, but merely repeated the earlier condition without significant variation. The only variation was to extend time for the counsellor to report from October 2008 to February 2010.

152 The evidence discloses that the counselling the practitioner attended was funded under the victims compensation legislation and limited to sessions approved by the relevant authority administering that legislation. While such counselling, which was continuing at the date of the hearing, indirectly dealt with aspects of the practitioner's psychological condition, it was not specific counselling to address her cannabis abuse, or her diagnosed psychiatric condition. A condition could have required the practitioner to attend, at her own expense, a clinical psychologist approved by the Board for counselling, directed to the practitioner's cannabis abuse on a monthly or other basis (such as nominated by the psychologist) such counselling to commence within one month from the date of the Board's orders, and to continue for a period of twelve months, unless otherwise recommended by the psychologist. It is relevant we note that Dr Samuels expressed his concern to the Board about the nature of the counselling the practitioner had received, and the fact it had ceased due to the practitioner's counsellor being on leave. Against that background a condition with greater specificity was warranted.

153 We note that for the contravention to be proved the HCCC must adduce evidence to the Briginshaw standard. With some hesitation, given we see some force in Mr Griffin's submission on this topic, we nevertheless conclude because of the vagueness of what was required under the condition this particular is not established to the requisite civil standard.

The direct supervision complaint

154 Particular 5 of Complaint 1 is centred on the practitioner's asserted failure to comply with condition (a) of the third conditions. It will be remembered that these conditions came into effect on 31 March 2010. The further amended complaint asserts the practitioner breached condition (a) by working shifts at the Lake Macquarie Private Hospital between 31 March 2010 and 28 November 2010 without direct supervision.

155 The HCCC rely on the Australian Nursing and Midwifery Council ("the ANMC") publication Delegation and Supervision for Nurses and Midwives. That publication describes "direct supervision" as:

Direct supervision is when the supervisor is actually present and personally observes, works with, guides and directs the person who is being supervised

156 Direct supervision is to be compared and contrasted with the definition of "indirection supervision" in the same document which is described as follows:

Indirect supervision is when the supervisor works in the same facility or organisation as the supervised person, but does not constantly observe their activities. The supervisor must be available for reasonable access. What is reasonable will depend on the context, the needs of the consumer and the needs of the person being supervised

157 The HCCC also rely on two other Council publications namely National Competency Standards for the Enrolled Nurse (October 2002) and National Competency Standards for the Registered Nurse (January 2006). The first document states that "the enrolled nurse works under the direction and the supervision of the registered nurse". Mr Griffin submits "This naturally may include periods of direct supervision but this is not always the case. The RN delegates the work and determines how much supervision in EN under his/her care requires". The submissions further note that a letter from the Registrar of the Board to the practitioner dated 14 August 2007 advised her to review the National Competency Standards for the Enrolled Nurse prior to the hearing of her application for restoration of her registration.

158 It is also relevant to refer to other documents relied on by the HCCC in support of this claim. Those documents include:

(1) a file note of Ms Kim Bryant dated 23 November 2010 recording a telephone conversation with the practitioner explaining the definition of "direct supervision", and the practitioner's response that she was working under those conditions;

(2) an addendum to Ms Bryant's file note recommending to the practitioner she check with her employer that she was working under "direct supervision";

(3) correspondence between the Council and the practitioner's employers. It is submitted this correspondence "suggests [the practitioner] had not been compliant with conditions; and

(4) the respondent's submissions in respond to the Council where the practitioner stated "I chose, and I realise now quite wrongly, work over compliance".

159 As earlier noted, it is the practitioner's position that she did not breach condition (a) of the third conditions, because as an enrolled nurse, she worked at all times under the supervision of a registered nurse. While we accept the practitioner's position is strongly arguable, ultimately for reasons we now discuss, we conclude that the breach of the relevant condition is established.

160 The practitioner was well aware, from not later than her conversation with Ms Bryant in November 2010, what was involved with concept of direct supervision. But that conversation did not occur for some seven months after the practitioner was notified of this condition. The fact it was necessary for Ms Bryant to explain the condition to the practitioner tends to support the view that she did not understand at that time precisely what was required to do to ensure she was "directly" supervised. However, such a condition would have been otiose if she was simply required to do no more than that which her categorisation as an enrolled nurse (as defined in Cl 5 of Schedule 5C Div 3) required.

161 We also note that in Lucire v Health Care Complaints Commission No 2 [2011] NSWCA 182 at 34 Basten JA noted that a condition which required supervision in accordance with the Medical Council policy was appropriate. By analogy, we find that direction supervision as explained in the Council's policy is clear and unambiguous. This policy came into effect in May 2007. Strangely the document refers to it being approved in November 2007. That is, however, of little moment as the Council's policy was publicly available well before the third conditions were imposed.

162 The practitioner has conceded she knew she was required to notify any employer of the third conditions. We are comfortably satisfied, based on the practitioner's oral evidence at the first NMT hearing, that she had to notify her employer of the third conditions, including the requirement she work under direct supervision on morning shifts. She deliberately chose to ignore those important requirements imposed for the safety and protection of the public, and in her own best interests, given her previous unfortunate mental health history. We are satisfied that the practitioner knew something more was required by the condition than her usual employment terms. We are satisfied that particular 5 (ii) is established.

Professional misconduct

163 The HCCC rely on the particulars set out in Complaint One to establish that the practitioner is guilty of professional misconduct.

164 We have already set out the definition of professional misconduct earlier in these reasons. Although the practitioner disputed before the first NMT that she was guilty of professional misconduct, before us she conceded this complaint.

165 The practitioner has a long and sad mental health history. Her psychiatric hospital admissions are, in the main, associated with cannabis use. However, she contravened the condition she abstain from any cannabis use. The condition was an important one directed firstly to the safety of her patients, and to her own health.

166 The practitioner embarked on a course of conduct in engaging in employment without telling the nursing agency, or her nurse unit manager at Lake Macquarie Private Hospital or the Stockton Centre of the conditions on her registration. While she did, in about October 2010, tell her nurse unit manager at Lake Macquarie Private Hospital she had conditions on her registration, she failed to disclose she was restricted to only working morning shifts, and regularly engaged in other shifts. Her conduct was deliberate. The practitioner put her financial need ahead of the safety of her patients.

167 After March 2010 the practitioner was well aware that the Council had imposed stringent conditions on her in circumstances where her mental health admissions made it plain she was a very vulnerable woman. In those circumstances the Council, we would say with careful consideration of the safety of the public, and for the practitioner's own benefit, required her to work under direct supervision of a registered nurse and only on morning shifts. The practitioner flagrantly ignored that important condition.

168 We have earlier in these reasons set out the discussion of the Medical Tribunal of the necessity to comply with conditions imposed on a practitioner's registration. The Medical Tribunal's remarks were endorsed in Prakash and cited with apparent approval in Chowdhury v HCCC [2010] NSWCA 56.

169 We are satisfied that the contraventions which we have found established in combination are serious, and potentially placed the practitioner's patients at risk. We are accordingly satisfied that those contraventions when considered together could warrant the suspension or cancellation of the practitioner's registration. We are satisfied that Complaint Two is established to the requisite civil standard.

Complaints Three and Four

170 It is convenient that we discuss these two complaints together. This is because the issues to be determined focus principally on the expert psychiatric and psychological evidence common to both complaints.

171 Complaint Three, in broad terms, asserts the practitioner suffers from chronic paranoid schizophrenic illness and/or cannabis abuse, and that those diagnoses, or either them, detrimentally affects her capacity to practise in the profession of nursing.

172 Complaint Four, which was not before the first NMT, but added to the Further Amended Complaint before us, asserts the practitioner is not competent to practise nursing within the meaning of s139 (a) of the National Law. We infer that the lack of competence asserted is a lack of mental competence, not a lack of physical competence, knowledge or skills.

173 The HCCC relies principally on the expert evidence of Dr Samuels, and Dr Wade. We will discuss those specialists' evidence shortly. Reference in Mr Griffin's submissions is also made to reports of Dr Vamos, Dr Lisa Blackwell, Consultant Psychiatrist ("Dr Blackwell") and Dr Bipin Ravindran, ("Dr Ravindran") Staff Specialist, Hunter Valley Mental Health Team. Mr Griffin also refers to the findings of the MHRT on 30 September 2011 that, at that time, the practitioner was a mentally ill person, and the fact a CTO was made on 30 March 2012 to continue until 29 June 2012.

174 As noted earlier in these reasons, the practitioner does not dispute she suffers an impairment, and in her oral submissions to the Tribunal she confirmed her view that her impairment (post traumatic stress disorder and depression) presently affects her capacity to practise nursing. The practitioner, however, disputes the diagnosis of chronic paranoid schizophrenia made by Dr Samuels and Dr Wade. In support of her position she relies on a report of her current treating counsellor, Ms Muir.

Dr Samuels' reports and oral evidence

175 Dr Samuels provided three reports to the Council after the practitioner was referred to him for assessment (15 December 2008, 29 June 2009 and 2 July 2012). Dr Samuels gave oral evidence before the first NMT on 31 October 2012.

176 In his report dated 15 December 2008 ("the first report") Dr Samuels noted that he was asked to conduct a mandatory review under the provisions of the Part 9 Schedule 1B of the now repealed Nurses and Midwives Act to review the practitioner because she was seeking to resume practise as an enrolled nurse without conditions on her registration.

177 Dr Samuels recorded a history given by the practitioner including that six months previously she had "busted and smoked one cone". She also acknowledged eighteen months prior to this interview she was using 7g of cannabis a week.

178 After noting that he had very little material before him, Dr Samuels explained, at that stage, he was unable to proffer a definitive diagnostic opinion.

179 Dr Samuels' next report, dated 29 June 2009 ("the second report") recorded the fact that the doctor had seen a report prepared by Dr Vamos. He also set out the practitioner's history of attending counselling with Ms Lee, but that counselling had ceased because the psychologist was on leave. Under the heading "Opinion", Dr Samuels said:

It does seem that her psychotic episodes were indeed marijuana related. Assuming that she remains abstinent from substances and is compliant with her antidepressant medication, I would expect her mental state to remain quite stable. However I have some concern that she is no longer in regular counselling and I would suggest that she attends Narcotics Anonymous on a more regular basis

180 Dr Samuels third report, dated 2 July 2012, was specifically produced for the purposes of the first NMT hearing which, at the time the report was prepared, had been adjourned. For the purposes of this report, Dr Samuels was provided with a report of Dr Wade dated 9 February 2011 and material from Hunter New England Mental Health. He also had a copy of a report of Ms Muir dated 2 May 2012.

181 Dr Samuels recorded that he had briefly reviewed the notes of the practitioner's last five inpatient admissions and noted that, after her last admissions, the practitioner had been discharged on a CTO. He also noted a current CTO made on 30 March 2012. At interview, the practitioner told Dr Samuels that she did not believe she had a psychotic illness. The practitioner was noted to deny any marijuana use since November 2011.

182 Dr Samuels opined:

I think the most likely diagnoses in terms of assessment today and the background information is that of Chronic Paranoid Schizophrenia Chronic Post Traumatic Stress Disorder and Marijuana Abuse

183 In response to a question posed by the HCCC as to whether or not the practitioner suffers from an impairment within the meaning of s 5 of the National Law Dr Samuels opined:

Yes. I do believe that she is suffering from a chronic paranoid schizophrenic illness which appears to be reasonably well controlled. She also appears to be suffering from Chronic Post Traumatic Stress Disorder which seems to be in remission. Her self-report suggests that her marijuana abuse is also in remission but she's not been having any urine drug testing, she's not seeing a drug and alcohol specialist, and there's no corroborative information in this regard.

184 Dr Samuels went on to explain:

In relation to her chronic paranoid schizophrenic illness I believe [the practitioner] has a lack of insight and denial in relation of this diagnosis.

185 Dr Samuels was requested by the HCCC to comment on the practitioner's impairment, and the affect of that impairment on her ability to practise nursing. Dr Samuels expressed the following opinion:

Her lack of insight and judgment is a source of concern. It is highly unlikely she would recognise any signs of relapse. It is also highly unlikely that she would willingly accept treatment follow up...

It is also likely that her chronic paranoid schizophrenic illness would impact on her abilities to practise as a nurse, particularly in terms of communication with colleagues and patients. Her behaviours and thinking processes may, at time, also create some problems in the workplace.

She states that she is no longer using marijuana but there is, however, no objective evidence to corroborate this. Certainly if she was using marijuana it could destabilise her mental state and it would be important to be sure that she was not using substances of any kind.

186 Dr Samuels was also asked to provide his view on the prognosis of the practitioner. In response to this request he said:

...Her prognosis is guarded and, given her past history, it seems to me likely that there is a high prospect of further relapse in the future.

187 The HCCC also asked Dr Samuels his professional opinion, if he was satisfied the practitioner was impaired, how long the impairment was likely to exist. After referring to her then current limited level of support, and the evidence of possible underlying delusional ideation, Dr Samuels responded to the question posed in these terms:

[the practitioner] has limited insight into her illness and absolutely denies having a psychotic illness but acknowledges in the course of her last admission of doing 'the wrong thing' by smoking marijuana but denies that she was deluded or experiencing any psychotic symptoms. Her affect is somewhat blunted. These features suggest there is an ongoing impairment.

188 Although not then forming part of the Complaint, Dr Samuels was requested to comment on the practitioner's competency to practise nursing. His answer is relevant to our consideration of Complaint Four in these proceedings. Dr Samuels expressed the following opinion:

I do have some concerns about [the practitioner's] mental capacity to practise as an enrolled nurse. I do believe that in a structured, highly supervised environment it would be possible for her to practise safety as an enrolled nurse. However, it would also be important that she was receiving adequate professional follow up and support as well.

189 By the time Dr Samuels gave his oral evidence at the adjourned hearing on 31 October 2012 before the first NMT it was clear that the practitioner disputed, as she did before us, the diagnosis of chronic paranoid schizophrenia made by Dr Wade, and confirmed by Dr Samuels. Dr Samuels explained "the diagnosis" by Ms Muir of complex post-traumatic stress disorder was terminology that most psychiatrists would diagnose as "having either post-traumatic stress disorder or a borderline personality disorder with some post-traumatic features". He noted that it was not a recognised diagnosis in the then Diagnostic and Statistical Manual of Mental Disorders IV ("the DSM IV"), but rather is a term used by trauma counsellors.

190 Dr Samuels went on to acknowledge (transcript 31 October 2012 p 10) that early developmental adverse experiences can lead to personality instability and problems in later life. He readily conceded that "it certainly sounds like [the practitioner] has a background of some early developmental traumas and some instability in her early life, which could account in part for some of the manifestations of her psychiatric problems today". He maintained, however, that the significant presenting psychiatric problems were the practitioner's diagnosis of chronic paranoid schizophrenia and marijuana use. (transcript p 12) He later explained he had the strong sense the practitioner found it really difficult to accept she has a mental illness (transcript p 13).

191 When asked to expand on his opinion of the practitioner's impairment discussed in his third report. He explained:

I do believe she's impaired. I believe that she has a chronic paranoid schizophrenic illness which is predominantly in remission, although there's some residual features in the form of a slightly blunted affect and some possibly delusional ideas and I think that her lack of insight can also be construed as being part of that condition. I think she also has marijuana abuse which is in remission. There is the issue of chronic post traumatic disorder or complex trauma, which seems to be largely in remission, and there may well be some personality factors that are of relevance as well.

192 Dr Samuels was also asked to expand or comment on that part of his report dealing with the issue of the practitioner's competency to practise as an enrolled nurse. He said:

Well, I could elaborate on that a bit. I mean, I do see the part of competence or mental capacity or competence to practice as a nurse as - as also having the capacity or insight to understand factors in oneself, including mental illness, that might impact upon one's nursing abilities. So I think having the mental capacity in her case really would require her to accept that she has a diagnosis of mental illness, to accept treatment for that mental illness, to realise that marijuana is - can potentially lead to mental state decompensations and to abstain from that and to be willing to participate in a process of oversight and monitoring. So I think in terms of her ability, I mean, given her - what she told me and her apparent lack of insight in relation to her mental illness I think that is a manifestation of a lack of mental capacity to practice as - as an enrolled nurse, and that's not a reflection of her technical competency. I have no idea what's that like, but there is a risk that she could become unwell, fail to do anything about that or to see that, and not seek appropriate treatment or intervention. So I think that is a marker of mental competency and capacity.

Dr Wade's report

193 Dr Wade is a consultant psychiatrist. He assessed the practitioner at the request of the Council on 8 February 2011.

194 Dr Wade set out an extensive history as reported to him by the practitioner. He recorded that she said she had been sexually abused as a child with her mother was "pimping her out" to whoever would pay, and that she had been sexually abused by her step father on one occasion.

195 The practitioner also reported that her mother, her daughter, and the doctors were all complicit in having her admitted to hospital in January 2010.

196 The practitioner told Dr Wade she had commenced using cannabis at age 18. She denied cannabis had ever caused her any problems such as psychosis. She reported seeing a counsellor, Mr Ben Kelly, but said that she could only see him when she could afford it.

197 Dr Wade reported "[in] the mental state examination there was no indication of insight regarding past psychiatric admissions. She totally denied being psychotic but more related any irrational behaviour was about being in the normal range of upset".

198 At page 7 of his report Dr Wade opined:

That is that my provisional diagnostic list - at the top is the likelihood of her suffering Chronic Parnoid Schizophrenic illness and then anything under that would be very remote in possibility; some bizarre combination of Dissociate Identity Disorder with an underlying Borderline Personality Disorder related to horrific abuse and neglect in her developing years, with intense paranoia at times and what under the old DSM III version of Borderline Personality Disorder, such symptoms as Brief Reactive Psychosis. From a pure DSM IV TR perspective there is certainly some missing criteria and information but I think in this set of circumstances, the issue of diagnosis is not so important, the real issue in the assessment is that [the practitioner] is obviously a very disturbed person who has a profound psychiatric disorder. [original emphasis]

199 Dr Wade noted that, without treatment, he felt the practitioner's condition would deteriorate, and opined in these circumstances, the feasibility of her working as an enrolled nurse, until her psychotic state was treated, was remote.

Ms Muir's report

200 Ms Muir holds the degree of Bachelor of Science (Hons). She is a registered psychologist. Ms Muir provided a letter to the first NMT dated 5 May 2011. Having set out the practitioner's diagnosis of "hysteocytosis [sic] at age 3 or 4" she went on to note the practitioner's history of sexual assault by her step-father. She recorded "[the practitioner's first name] was subject to many sexual assaults and other traumatic experiences that have left [the practitioner] with Severe Chronic Complex Type II Trauma".

201 Ms Muir explained that the practitioner had commenced seeing her through the Victims Services Board early in 2011. She opined:

[The practitioner] would appear to have experienced undiagnosed Complex Type II Trauma for over 35 years. Since told of my assessment [the practitioner] has applied herself conscientiously in an attempt to overcome her past problems.

202 Ms Muir provided a letter addressed to the Tribunal dated 2 May 2012. She stated "This is to confirm that [the practitioner] has continued her recovery from severe Chronic Complex Type II Trauma".

203 On 12 November 2012 Ms Muir provided a report addressed to the HCCC. She explained the texts to which she had referred in arriving at her diagnosis of Severe Chronic Complex Type II Trauma 1 including the DSM IV, a United States Veterans' Affairs publication and the Australian Guidelines for Treatment of Adults with ASD and PTDS Chapter 7. She concluded her report noting "I perhaps could have made my report to Victims Service Tribunal clearer if I had said [the practitioner] was experiencing 'Severe, chronic Complex OR Type II Trauma'. However as the psychiatrist suggested my original diagnosis is understood by Victims Service Tribunal".

204 The practitioner saw another Consultant Psychiatrist, Dr Blackwell on one occasion. Dr Blackwell reported to the practitioner's general practitioner the outcome of her limited assessment on 25 April 2012. It is noteworthy that although on examination she found no psychotic features on that day, Dr Blackwell explained this did not preclude "the fact she has been psychotic in the past".

205 Dr Blackwell opined:

In terms of DSM criteria, [the practitioner] would fit the diagnosis of Cannabis Dependence, currently abstinent and Borderline Personality Disorder. She has some residual PTSD symptoms but would not fit DSM IV criteria. Although she currently has no psychotic symptoms circumstantial evidence in her history would suggest the existence of a psychotic illness.

Discussion and Findings Complaints Three and Four

206 As observed by Dr Samuels, while the practitioner accepts the diagnosis of Ms Muir, she is not prepared, or perhaps more accurately, is unable to accept, a diagnosis of chronic schizophrenia.

207 There is no doubt that Dr Samuels is an expert whose qualifications enable him to express the opinions provided in these proceedings (see Makita v Sprowles [2001] NSWCA 305). We had no hesitation in accepting Dr Samuels' evidence in his report, and particularly as expanded in his oral evidence. In reaching this conclusion we note that he does not exclude Ms Muir's diagnosis as a secondary diagnosis.

208 We make the following observations about Ms Muir's evidence, and why we have rejected her diagnosis as the only diagnosis, and accepted and preferred the evidence of Dr Samuels. First, it is not clear, on the evidence before us, that Ms Muir has the requisite expertise to make the diagnosis proffered in her reports. Secondly, it is clear that her counselling of the practitioner was and is focussed on sexual assault issues, and as Dr Samuels explains, and she accepts, the terminology she uses to describe a diagnosis is terminology adopted by sexual assault counsellors. Thirdly, Ms Muir's reporting does not refer to the practitioner's well documented and long standing history of psychotic episodes on her psychiatric admissions either voluntary or involuntary.

209 In summary, we are satisfied that the practitioner does suffer an impairment as particularised in Complaint Three notwithstanding her cannabis abuse may be in remission. We accept, as Dr Samuels cogently pointed out, the practitioner's self reporting on this issue may not be accurate.

210 We also accept Dr Samuels' evidence, particularly his oral evidence on this topic, which we have earlier set out, in respect of Complaint Four and find that complaint established. In reaching this conclusion we also find that the practitioner tragically demonstrates a lack of insight into her psychiatric illness. That lack of insight, together with her psychiatric diagnoses, satisfies us that Complaint Four is established.

Protective orders

211 As we noted at the commencement of these reasons, the practitioner has stated both orally and in writing that she does not wish to remain registered as an enrolled nurse.

212 Given our findings of unsatisfactory professional conduct and professional misconduct we accept it is open, based solely on our findings in respect of those complaints, to cancel the practitioner's registration.

213 It is our view, given the expert medical evidence, which we have accepted, that the practitioner presently suffers an impairment, and further that she is not competent to practise nursing, that the only viable and appropriate protective order is the cancellation of the practitioner's registration.

214 While the practitioner did not suggest she may wish to review, at any time, any order cancelling her registration, the Tribunal considers in fairness to her that we should address a possible review application.

215 The evidence before us is that the practitioner is continuing to see Ms Muir, and that she appears to be benefitting from counselling. However, Dr Wade's prognosis of the practitioner's schizophrenia if not properly treated, and Dr Samuel's carefully expressed concerns about the practitioner's lack of insight lead us to the conclusion that some significant period of time should elapse before the practitioner may, if she desires to do so, apply for a review under s 163 A of the National Law.

216 Doing the best we can on the evidence before us, we are of the view that a period of not less than three years should elapse before the practitioner may apply for a review of the cancellation of her registration. This period will enable the practitioner, if she does wish to seek registration, to demonstrate her mental condition is stable, that she has abstained from cannabis use and abuse, and has received appropriate medical treatment. Further it will be necessary that the practitioner demonstrates insight into the seriousness of her conduct in breaching the conditions imposed on her registration.

217 Given the history of this matter to date, and particularly the seriousness of our findings we find that the appropriate review body of our orders is the Tribunal.

Costs

218 Mr Griffin provided the Tribunal with extensive submissions, including reference to relevant authorities, on the question of costs. He fairly pointed out that there was a reasonable basis for the practitioner's non attendance on some occasions.

Costs - the statutory basis and relevant authorities

219 Schedule 5D Cl 13 of the National Law reposes a discretion in the Tribunal to award costs. The authorities dealing with costs are set out in Mr Griffin's submissions. We agree that the submissions accurately capture the relevant principles to be applied. At paragraphs 148 to 150 of his submissions Mr Griffin states:

148. A successful party to litigation has a "reasonable expectation" of being awarded costs against the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11 at [134]. Fairness dictates that the unsuccessful party typically bears the liability for costs unless it is demonstrated that some other order is appropriate: Currabubula Holdings Ply Ltd v State Bank of NSW [2002] NSWSC 232. The presumption is based on the principle that costs are compensatory, and applies to the Medical Tribunal. Ohn v Walton (1995) 36 NSWLR 77 at 79; and Latoudis v Casey (1990) 170 CLR 334.

149. It is for the losing party to establish a basis for any departure from the the usual rule. Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]. However, the purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 at [34]; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at [22].

150. The discretion to depart from the usual rule is unfettered; however a tribunal ought not exercise its discretion against the successful party arbitrarily or capriciously, or on no grounds at all. Oshlack at [22]. The discretion must be exercised judicially, and "according to rules of reason and justice, not according to private opinion ... benevolence ... or sympathy." Williams v Lever (1974) 2 NSWLR 91 at 95. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: Oshlack at [40] and [69]; Arian v Nguyen [2001] NSWCA 5 at [36]. The disentitling conduct does not necessarily need to amount to misconduct, and may simply be any conduct 'calculated to occasion unnecessary expense.' Keddy v Foxall [1955] VR 320 at 323-4.

The recent Court of Appeal decision in HCCC v Philipiah [2013] NSWCA 342, with Emmett JA (Meagher JA and Beech-Jones J agreeing) have re-affirmed the general principles:

"[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied.

[43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95).

[44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.

[45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner.

[46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. In all of the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside."

220 There are a number of features relevant to the hearing of this matter and any costs orders flowing from the hearing. First, it is not suggested that the practitioner knew or ought to have known that the first NMT was wrongly constituted. The accidental improper constitution of the Tribunal was a regrettable error. It was not submitted to us that the first Tribunal or this Tribunal are Tribunals which are prescribed Tribunals for the purposes of s 2 of the Suitors Fund Act 1951 (NSW), or that a payment could be made to the HCCC under s 6C of that Act for costs thrown away as a result of the wrongly constituted Tribunal for the first hearing. Accordingly, we make no findings about the provisions of that Act or its application to the circumstances which occurred requiring the hearing before this Tribunal.

221 Second, we accept there were legitimate reasons for the practitioner's inability to attend the hearing when fixed in September 2013 due to her partner's sudden and significant illness as confirmed to us by his general practitioner. Further, the practitioner's non-attendance in November 2013 was established to be as a result of the serious bush fires, which rendered it impossible for the practitioner to access the road where she lives, to travel to Sydney for the hearing.

222 Third, we accept the practitioner was successful in her resistance of the particular relating to the asserted failure to comply with the condition to attend Narcotics Anonymous, and her resistance to the claim in respect of the condition requiring her to attend counselling was found by us to be justified. 

223 We also take into account, in the exercise of our discretion, the fact the practitioner, who was at all times unrepresented, conceded her conduct constituted unsatisfactory professional conduct and professional misconduct in September 2013. She also conceded she was impaired, but did not admit the particulars of impairment relied on by the HCCC. She did not oppose an order that her registration should be cancelled. These are all factors which must be weighed and balanced in determining the issue of costs. Ultimately, however the HCCC was successful in respect of the four complaints agitated.

224 We have determined, having regard to the principles which we have set out above, that the practitioner should pay 50 per cent of the HCCC's costs limited to the preparation of and conduct of this hearing, excluding the costs of the first NMT hearing, costs of 4 September 2013 and November 2013. We are satisfied such an order recognises and give appropriate weight to those aspects of the Complaint on which the HCCC succeeded, whilst giving appropriate recognition to the practitioner's concessions and costs incurred through no fault of the practitioner.

ORDERS

225 The Tribunal makes the following orders:

(1) The registration of Ms Kirrilly Anne Perceval ("the practitioner") as an Enrolled Nurse on the National Register of Health Practitioners maintained by the Australian Health Practitioner Agency ("the Register") is cancelled under s 149C (1) (a) of the Health Practitioner Regulation National Law (NSW) ("the National Law").

(2) The Australian Health Practitioner Regulation Agency is requested to remove the practitioner's name from the Register.

(3) A period of not less than three (3) years shall elapse from the date of these orders until the practitioner may apply under s 163A of the National Law to the Occupational Division, Civil and Administrative Tribunal, to again be registered on the Register.

(4) Subject to any application made by the practitioner pursuant to s163 (1) (a1) of the National Law any application by her for re-instatement to the Register shall be heard by the Tribunal.

(5) The practitioner shall pay fifty per cent (50%) of the Health Care Complaints Commission's costs of:

(i) the preparation of the hearing;

(ii) the hearing before the Tribunal on 13 December 2013;

(iii) the costs of the written submissions provided by the Health Care Complaints Commission dated 20 December 2013; and

(iv) the costs of the appearance on 21 March 2014 as agreed and failing agreement liberty to restore before the Tribunal.

 

Attachment A

FURTHER AMENDED COMPLAINT

HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW)

Executive Officer

Nursing and Midwifery Council of New South Wales

Level 6

477 Pitt Street

SYDNEY NSW 2000

The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of New South Wales in accordance with section 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law"),

HEREBY COMPLAINS THAT

Kirrilly Perceval ("the nurse"), of 5/60 Lightfoot Street, Cessnock, New South Wales, being a nurse enrolled under the National Law

COMPLAINT ONE

Has been guilty of unsatisfactory professional conduct under s 139B(c) of the National Law in that she has contravened conditions to which her enrolment is subject.

PARTICULARS OF COMPLAINT ONE

On 18 October 2007 conditions were imposed on the practitioner's enrolment by a Schedule 1B Inquiry pursuant to section 29A of the Nurses and Midwives Act 1991 (repealed). These conditions included, relevantly, that the practitioner must:

(a) Abstain from all use of cannabis;

(b) Regularly attend Narcotics Anonymous;

(c) Take medication as prescribed by her general practitioner;

(d) Regularly attend a counsellor of her choice and authorise that counsellor to report to the Board, in writing, any failure to continue to attend for counselling and of any concerns about her mental health which may impact on her capacity to provide safe patient care as an enrolled nurse . . .

(h) Provide to the Board in writing, within seven (7) days details of any change of address.

On 12 August 2009, following a report from psychiatrist Dr Anthony Samuels, the Nurses and Midwives Board varied the conditions on the practitioner's enrolment, and added, relevantly, the condition that the practitioner must:

(j) Advise her employer/s (and/or supervisor/s) of the conditions placed on her enrolment as an enrolled nurse.

On 31 March 2010, the Nurses and Midwives Board varied the conditions to require that the practitioner:

(a) May only practise as a nurse under the direct supervision of a registered nurse (without conditions on his/her practice);

(b) May only work morning shifts;

(c) Must advise her employer (and/or supervisor) of the conditions placed on her enrolment as a nurse;

(d) Must attend for review by a Board nominated psychiatrist if/when she requests a review of the conditions of her enrolment as a nurse.

(1) The practitioner breached the condition, effective from 18 October 2007, that she abstain from all use of cannabis, in that:

(i) on 10 December 2008 the practitioner admitted to psychiatrist, Dr Anthony Samuels, that six months previously she "busted and smoked one cone";

(ii) on 7 January 2010, the practitioner was admitted to the Mater Mental Health Unit with symptoms of psychosis in the presence of cannabis use.

(2) The practitioner breached the condition, effective from 18 October 2007, that she regularly attend Narcotics Anonymous in that psychiatrist, Dr Anthony Samuels, reported following his assessment of the practitioner on 24 June 2009, that she attended Narcotics Anonymous occasionally, "perhaps one-to two-monthly".

(3) The practitioner breached the condition, effective from 18 October 2007, that she regularly attend a counsellor in that:

(i) on 24 June 2009 the practitioner reported to psychiatrist, Dr Anthony Samuels, that her counsellor, Emma Lee, was currently on 6 months' leave and that she was not seeing anyone else at that time;

(ii) the practitioner did not attend a counsellor between 4 March 2009, being her last appointment with Emma Lee, and 9 December 2010, being her first appointment with new counsellor, Benjamin Kelly.

(4) The practitioner breached the condition, effective from 12 August 2009, that she must advise her employer/s (and/or supervisor/s) of the conditions placed on her enrolment as a nurse in that:

(i) during the period between 12 August 30 April 2009 and 28 November 2010, the practitioner worked a total of 212 237 shifts for Nursing Australia, a nursing agency, and did not advise the agency of the conditions on her enrolment;

(ii) during the period between 30 April12 August 2009 and 28 November 2010, the practitioner primarily worked shifts at Lake Macquarie Private Hospital and did not advise her supervisor/s of the conditions on her enrolment.

(5) The practitioner breached the condition, effective from 31 March 2010, that she only practise under direct supervision in that:

(i) the practitioner did not advise her employer at Nursing Australia that she was required to work under direct supervision until 28 November 2010 and consequently, no direct supervision was arranged by her employer;

(ii) the practitioner worked shifts at Lake Macquarie Private Hospital between 31 March 2010 and 28 November 2010 without direct supervision.

(6) The practitioner breached the condition, effective from 31 March 2010, that she only work morning shifts in that between 16 April 2010 and 28 November 2010, the practitioner worked 48 afternoon or night shifts at Lake Macquarie Private Hospital.

COMPLAINT TWO

Has been guilty of professional misconduct within the meaning of s 139E of the National Law in that:

(a) she has been guilty of unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or

(b) she has been guilty of more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

PARTICULARS OF COMPLAINT TWO

As for Complaint One.

COMPLAINT THREE

It is alleged that the nurse suffers from a 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 in the profession.

PARTICULARS OF COMPLAINT THREE

The nurse suffers from:

(1) chronic paranoid schizophrenic illness; and/or

(2) cannabis abuse.

COMPLAINT FOUR

Is not competent to practice nursing within the meaning of section 139(a) of the National Law.

PARTICULARS

As for Complaint Three.

DATED this day of 2012

Karen Mobbs

Director of Proceedings

Health Care Complaints Commission

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

Amendments

02 May 2014 - typographical error
Amended paragraphs: paragraph 22

Decision last updated: 02 May 2014