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HSK v Nursing and Midwifery Board of Australia QCAT 418
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
HSK v Nursing and Midwifery Board of Australia  QCAT 418
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Occupational regulation matters
19 December 2018
12 December 2018
Judge Sheridan, Deputy President
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – LICENCES AND REGISTRATION – where the registrant nurse seeks a review of a decision made by the Nursing and Midwifery Board of Australia and the subsequent conditions imposed on her registration – where the conditions were imposed on the registrant’s registration after the Nursing and Midwifery Board of Australia formed a reasonable belief that the registrant suffered from an impairment that detrimentally affects or is likely to detrimentally affect her capacity to practise the nursing profession – whether the registrant suffers from an impairment for the purposes of the Health Practitioner Regulation National Law (Queensland) – whether, if the registrant suffers from an impairment, conditions, if any, should be placed on the registrant’s registration
Health Ombudsman Act 2013 (Qld), s 58(1), s 103(1)(a), s 104
Health Practitioner Regulation National Law Act 2009 (Qld), s 9
Health Practitioner Regulation National Law (Queensland), s 5, s 169, s 178, s 178(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2)
Medical Board of Australia v Wong  QCAT 439
Pearse v Medical Board of Australia  QCAT 392
APPEARANCES & REPRESENTATION:
J Allen QC instructed by Hall Payne
C Wilson instructed by Minter Ellison
REASONS FOR DECISION
- This is an application made by the applicant nurse, HSK, to review a decision of the respondent Nursing and Midwifery Board of Australia (Board). An order is sought setting aside the decision of the Board and for the tribunal to substitute its own decision as to any conditions (if any) considered necessary and appropriate in all of the circumstances for the protection of the public.
- The registrant first obtained registration as a registered nurse in January 2016.
- In May 2016, the registrant obtained employment as a registered nurse with a regional health service. The registrant commenced working in the acute mental health unit (the unit) attached to the base hospital in a regional town. This was her first position as a registered nurse since graduating.
- While working in that position, on 18 and 19 November 2016, some six months after commencing at the unit, the registrant engaged in boundary violations with two former patients of the unit; one of the boundary violations involved sexual contact. Upon the discovery of the conduct by nursing colleagues, the colleagues reported the incident and the registrant requested a meeting with the Nursing Director of the health service.
- A meeting was held on 29 November 2016 at which the registrant made full admissions. The registrant admitted to having a drink with two patients from the unit at the home of one of the patients and engaging in sexual intercourse with the other patient. The registrant disclosed having recently ceased taking her anti-depressant medication and to having a number of emotional and psychosocial stressors in her life.
- Upon the reporting of the incident, the registrant was immediately moved to an administrative role in the unit. The registrant became the subject of an investigation by the health service.
- The boundary violation was the subject of a notification by a representative of the health service to the Health Ombudsman on 15 December 2016. In the notification, in addition to reporting the boundary violations, concerns were raised as to the registrant’s health and the possibility of interruptions with the registrant’s treatment.
- Following receipt of the notification, on 22 December 2016 the Health Ombudsman notified AHPRA and referred to AHPRA the health impairment component of the notification. By letter dated 23 December 2016, the Health Ombudsman notified the registrant that he was considering whether or not to take immediate action against the registrant by suspending the registrant’s registration and requested a response by 24 January 2017.
- After the incident, the registrant immediately sought an appointment with her general practitioner. A mental health plan was prepared on 29 November 2016, including a letter of referral to a psychologist. The registrant commenced supportive therapy treatment with the psychologist. During this period, following discussions with the registrant, her general practitioner removed the Implanon implant as it was thought the hormone treatment was affecting her mood.
- By letter dated 12 January 2017, the registrant was given a notice by AHPRA, acting on behalf of the Board, enclosing a copy of the notification received by the Health Ombudsman and requesting a response.
- Submissions were made on behalf of the registrant, and by letter dated 23 March 2017, the registrant was further notified of an intention to place a condition on her registration that the registrant not treat male patients without a chaperone present. Ultimately, pursuant to s 58(1) of the Health Ombudsman Act 2013 (Qld) (HO Act), immediate action was taken by the Health Ombudsman and, with effect from 22 May 2017, conditions were imposed that the registrant could not provide health services to male patients aged between 18 and 55 years. Upon the imposition of the conditions, the registrant was moved from the administrative role in the unit to the child and adolescent inpatient unit.
- In the interim, in February 2017, the registrant completed a two-day boundary violation course with Davaar Consultancy training. The reflective essay written at the completion of the course was tendered as evidence in the proceedings.
- On 15 June 2017, the Notification Committee of the Board decided pursuant to s 169 of the Health Practitioner Regulation National Law (Queensland) (National Law) to require the registrant to undergo a health assessment on the basis that the Committee “reasonably believes the registrant has, or may have, an impairment.”
- The registrant resigned from her position at the hospital on 31 August 2017. It is accepted the registrant would have been terminated had she not resigned.
- The registrant attended upon Dr Prior on 11 October 2017, almost 12 months after the incident. Dr Prior gave his report on 12 October 2017. In his report, Dr Prior concluded that the registrant had Substance Use Disorder (mild) and Major Depressive Disorder (recurrent). Dr Prior reported that the registrant had a history of recurrent depressive disorder and a recency of stability of that disorder but evidence of ongoing vulnerabilities emotionally to manipulation within relationships, as confirmed in his report dated 5 December 2018 and his affidavit sworn 5 December 2018. The finding of vulnerabilities was based on the history which Dr Prior understood the registrant to have given at his initial consultation with the registrant in October 2017 of her having had an inappropriate relationship with an older male cousin which had continued until April 2017.
- Dr Prior recommended a number of conditions be attached to the registrant’s registration in order to ensure public safety, including not providing a health service to males between the ages of 18 and 55, working under supervision with reports by the supervisor to the Board and continuing treatment with a general practitioner and a psychologist with reports to the Board.
- The report of Dr Prior was provided to the registrant and was the subject of a meeting on 5 January 2018 between the registrant, her solicitor and AHPRA. At the meeting, the registrant fully explained the nature of the relationship with the older male cousin and stated that it had been misreported in Dr Prior’s report. There had been no relationship with an older male cousin but one incident which the registrant considered to be sexual assault. A note of that meeting was attached to the affidavit of Rosemary Kent dated 9 November 2018 and tendered in these proceedings.
- At that time, a copy of the note was not given to Dr Prior and Dr Prior was not asked to make any comment in terms of his report.
- On 31 January 2018, pursuant to s 103(1)(a) and s 104 of the HO Act, the Health Ombudsman referred to the tribunal the issue of the registrant’s misconduct (referral proceedings).
- A report was obtained by the solicitors acting for the registrant from a psychiatrist, Dr Chung. Dr Chung provided a report dated 4 June 2018. A copy of the report was provided to the Board on 19 June 2018. The report of Dr Chung was prepared based on a review of various reports, including Dr Prior’s report, the reports of the registrant’s treating psychologists and the self-reflective essay, but without the benefit of a consultation with the registrant nor a copy of the note of the meeting with AHPRA at which the registrant had sought to correct what she said was a factual error in Dr Prior’s report.
- Dr Chung concluded that no conditions were necessary to remain on the registrant’s registration as the registrant had developed insight into her condition, had attended a boundary awareness course and had taken steps to continue with treatment and participate in psychotherapy for her depression. Dr Chung considered that she had taken protective measures to prevent future similar issues, had become aware of her vulnerabilities and was continuing to work on her issues with appropriate therapy.
- The Committee of the Board met to consider its decision on 21 June 2018. The Committee of the Board was provided with the note of the meeting with AHPRA on 5 January 2018 at which the registrant had sought to correct the alleged factual error in Dr Prior’s report. The report of Dr Chung is said to have been before the Committee; albeit there is no reference in the Committee’s decision to his report.
- By letter dated 22 June 2018, notification was given to the registrant of the Committee’s decision. The letter stated that the issue identified was:
Whether [the registrant] has 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 the profession.
- It was stated that the Committee acting on behalf of the Board had decided under s 178 of the National Law that the restrictions on practice in relation to age and gender that had been in place since 17 May 2017 were no longer necessary. However, due to the recurrent nature of the registrant’s depressive illness, the Committee considered it was necessary to impose conditions on her registration, in particular conditions requiring the registrant:
- (a)to practice in a Board-approved position;
- (b)to practice under the supervision of another health practitioner registered in the same profession, approved by the Board and who must provide reports to the Board; and
- (c)to undertake treatment with a general practitioner and psychologist at a frequency determined by them and who must report to the Board when requested.
- A copy of the Committee’s decision was given to the Health Ombudsman and, on 28 June 2018, the Health Ombudsman removed the restrictions in relation to age and gender and imposed no further conditions on the registrant’s registration.
- On 19 July 2018, the registrant filed in the tribunal an application to review the Board’s decision (review proceedings).
- Following the filing of the review proceedings, a direction was made by the tribunal for both the referral and the review proceedings to be heard on the same day.
The nature of the proceedings
- Pursuant to s 9 of the Health Practitioner Regulation National Law Act 2009 (Qld), a reference in the National Law to an appeal against a decision is, for an appeal to QCAT as the responsible Tribunal, a reference to a review of the decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Section 20(2) of the QCAT Act provides that the Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. The combined effect of s 9 of the National Law and s 20(2) of the QCAT Act establishes the nature of an appeal as being a full hearing de novo.
- The purpose of the review of a reviewable decision is to produce the correct and preferable decision. It was accepted by the parties that the appeal is a new determination of the rights of the registrant applying the law at the time of the appeal hearing and according to the evidence offered at the time of the appeal hearing.
- The parties accepted that as the decision of the Board was made pursuant to s 178 of the National Law, the Tribunal in conducting the review must decide two issues:
- (a)Whether the registrant suffers from an impairment as that term is defined in the National Law; and
- (b)If the Tribunal determines the registrant has an impairment, and only then, determine what conditions, if any, should be placed on the registrant’s registration.
- The National Law defines impairment, in relation to a person, to mean:
…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; or…
The evidence of the psychiatrists
- At the hearing, the Board relied on the evidence of Dr Prior. Dr Prior gave oral evidence, based on his report dated 12 October 2017 following his consultation with the patient on 11 October 2017 and having read the reports of Dr Chung dated 4 June 2018 and 7 November 2018. The registrant relied on the evidence of Dr Chung. Dr Chung gave oral evidence, having given two reports; the first report dated 4 June 2018 having been given without a consultation with the registrant and the second report dated 7 November 2018 following a consultation with the registrant on 29 October 2018.
- At the time the matter came on for hearing, both Dr Prior and Dr Chung had had the benefit of the reports of the registrant’s treating general practitioners and treating psychologists.
- Both Dr Prior and Dr Chung agreed the registrant suffered from recurrent major depressive disorder. Both agreed her condition is presently in remission. Both agreed that the registrant, at this time, needed to continue to take medication and to continue with such ongoing psychotherapy as considered necessary by both the registrant and her treating psychologist.
- Where the doctors differed was that Dr Prior considered that the registrant needed to have conditions imposed on her registration to ensure that she continued with her treatment with regular reports to be provided to the Board and further considered that the registrant required a level of supervision so as to ensure she remained safe in the workplace.
- Dr Prior referred to the fact that the registrant had ceased taking her medication on at least two previous occasions and on each occasion that resulted in an episode of depression. In oral evidence, Dr Prior acknowledged that the registrant had shown insight and been compliant with treatment in the last two years but considered that the stressors of a return to work meant that “it would be advisable to mandate some level of medication, psychotherapy and supervision.”
- In his oral evidence, Dr Prior was asked about what he described as the marked change in the registrant’s description of the incident with her cousin. Dr Prior accepted that it was possible for a person to change their view over time but added “but there may be also some retrospective sort of editing going on here”, indicating, it seems, that Dr Prior did not accept her version of the incident. That was also apparent in his affidavit sworn as recently as 5 December 2018.
- Dr Chung agreed with the opinion of her general practitioner that the Implanon, a hormone contraceptive treatment which had been inserted before the incident, may have contributed to the onset of the depression. Dr Chung accepts that the Implanon is well known to cause depression in some susceptible patients. Dr Chung commented that the Implanon has now been removed and agreed that since then her mental state has improved immensely. In giving his oral evidence, Dr Prior also accepted that Implanon can precipitate depression in vulnerable people.
- Dr Chung considered that the registrant has developed insight into her behaviour and actions and that she no longer had a vulnerability due to her mood and mental state. Dr Chung considered that the registrant’s awareness of her vulnerabilities and working through her issues during psychotherapy were the protective measures.
- When asked about her several relapses, Dr Chung accepted that is a factor but said the registrant “had not had a lot of experience in terms of psychological therapy” and “awareness of her illness and self-management of that illness.” He said, that when he saw her in October, she had “a close relationship with her therapist and had quite a few and extensive and intensive psychotherapy [sessions] with a very qualified psychologist and learnt coping mechanisms, recognising how to manage stress and developing a support system – a network around her.”
- Dr Chung did not consider that the registrant required supervision beyond that which should be provided to any young nurse in her position. Dr Chung did not consider that the requirement for that supervision should be legally imposed on the registrant; rather, he considered that any young nurse should be regularly monitored and supervised in any healthy and functional ward environment.
The evidence of the registrant
- The registrant gave evidence both orally and in the form of affidavit evidence, the first affidavit dated 21 August 2018 filed in the referral proceedings and the second affidavit dated 22 November 2018 filed in the review proceedings. In her affidavit filed in the referral proceedings, the registrant gave a very clear account of the events of 18 and 19 November 2016. The registrant accepted full responsibility for her behaviour.
- In that affidavit, she refers to having made a “mistake” and “exercised poor judgment”. She expressed being extremely regretful and remorseful that her performance and conduct over that period fell short of the standard of care and treatment to which she held herself and fell short of the standard that was required of her under the Code of Conduct for the Queensland Public Service and that the public reasonably expects of a senior registrant.
- The registrant refers to a number of stressors in her life at the time of the incident: her parents’ separation, their re-partnering and the unhappiness of her younger siblings, her grandfather’s deterioration in health, her difficulties with her flat mate, financial problems and working a lot of overtime. The registrant also said that her ability to cope significantly improved once she had the Implanon removed. She said she noticed that “the way that I reacted to situations was very, very different.”
- In her oral evidence, she said she had “stupidly” decided to cease taking her medication. In cross-examination, when asked whether there was something about the medication which she did not like, the registrant responded that she doesn’t even like taking Panadol. The registrant continued, “I just didn’t want to. I didn’t feel like I needed it at that time and I felt like my mood was, you know, I thought everything was going really well. I loved my job, like, I loved it.” The registrant then said, “... it’s a very different belief to what I have today.”
- The registrant was also asked questions as to the incident with her older cousin in his forties. She said that he had sexually assaulted her after the funeral of her grandfather. She admitted that they both had been to the pub drinking, after the funeral and the wake, with other members of the family. The older cousin had previously welcomed her into his home and had been protective of her. The older cousin and his family lived one and half hour’s drive from the regional town she was living in.
- The registrant said she had a good upbringing and had never dealt with anything like the sexual assault before. She said that she did not originally plan to tell her family. She admitted that in her descriptions of the incident to Dr Prior she was perhaps sugar-coating it to save her family. She had also not described the incident in her reflective essay.
- Her psychologist evidently considered she had been traumatised by the event. Ultimately, on the recommendation of her psychologist, she decided that continuing contact with the cousin was unhealthy and she ceased all contact with him and his family.
- When asked about continuing to remain appropriately treated, the registrant responded that she would continue seeing a doctor and even the psychologist. She said that she was very confident with them and explained that she had not seen a psychologist or a psychiatrist before this incident. She said that she has no shame in going to get therapy. She said, at the end of the day, “I want to be a nurse. And I’ll do all I can to keep my registration.”
- When the registrant was asked about returning to work, the registrant said that she knows she now has in place the appropriate coping mechanisms. While she accepts that her return to work will be stressful, she referred to the stressors of the last few years, including the investigation by her employer, the Health Ombudsman and the Board and now the proceedings before the Tribunal.
- The Tribunal found the registrant to be a very impressive and truthful witness. It was apparent the registrant had spent time in psychotherapy. The registrant was able to answer difficult questions in a controlled and analytical manner, with moments of appropriate emotion.
- The Tribunal accepts that the incident with her older cousin as described by the registrant occurred as she stated it did.
The evidence of the treating practitioners
- The Tribunal had the benefit of the evidence of the general practitioners and treating psychologist. The general practitioner, who had treated the registrant in the six months before the tribunal hearing, referred to the registrant as “doing well, in a stable relationship, currently healthy lifestyle, working.” Relevantly, her treating psychologist concluded, at the time of the registrant’s visit on 19 September 2018, that the registrant currently does not require her services. In the report it was noted by the treating psychologist that the registrant felt psychological support may be beneficial to her in the first three months of working as a registered nurse.
- In submissions, counsel for the Board confirmed that there is no contention that there was a substance abuse disorder which would constitute an impairment. Counsel stated that it was the major depressive disorder, which is recurrent, which constitutes the impairment. Counsel referred to the comments made by Deputy President Horneman-Wren in Medical Board of Australia v Wong where he stated that:
Where the practitioner suffers from an underlying impairment, disability, condition or disorder, which, in the absence of treatment would, or would be likely to, detrimentally affect the person’s capacity to practice, that person may have an impairment for the purposes of the National Law.
- Counsel then referred to the registrant’s relapses and said that the evidence is that where a practitioner suffers from a condition and has suffered a relapse of that condition, then it is more likely that the individual will suffer another relapse. It was submitted that the registrant was therefore more likely to relapse in the future. Counsel then referred to her symptoms having emerged when she had been off her medication, or not taking medication, and where there were external stressors active in her life. Counsel stated that the stressors which had happened had not been events which “can be described as unique or unlikely to occur in life.” On that basis, the Board submitted that the risks posed by the registrant returning to work could be managed by the imposition of appropriate conditions on the registrant’s registration.
- Counsel for the registrant referred to the fact that the registrant has remained, for the last two years, appropriately treated both by medication and psychotherapy. He referred to her having successfully undertaken a boundary violation course and having developed coping strategies. He said that Dr Prior acknowledged that she has obviously demonstrated insight into the nature of her condition and the need for treatment. He said the Tribunal should be satisfied that she has developed a relationship with her general practitioner and has an established relationship with a psychologist to which she could turn, if either she or her general practitioner felt that was necessary.
- Counsel referred to the acknowledgment by the registrant in her evidence as to the fact there will be stressors associated with her return to work. The registrant has also acknowledged the stressors associated with the investigations and proceedings she has been involved in for the past two years. Counsel for the registrant appropriately accepted the breadth of the definition of impairment as extending to the Tribunal forming a reasonable belief that the registrant “has or may have an impairment”. However, in order to make a finding of impairment, on the facts here he submitted the Tribunal must find that the registrant’s major depressive disorder in remission “detrimentally affects or is likely to detrimentally affect her capacity to practice her profession.”
- The acceptance of the evidence of the registrant makes it impossible to rely to any significant extent upon the evidence of Dr Prior as to her impairment. This is so for two reasons. First, as Dr Prior acknowledges, his opinion as to her vulnerabilities is based upon the history he was given or he perceived to have been given. As the Tribunal has accepted the registrant’s account, the facts relating to the incident with the older cousin were not as stated in Dr Prior’s report.
- The second reason relates to the Tribunal accepting that the registrant did not tell him about the ordeal because, like many victims of sexual assault, she was traumatised by it and did not want to talk about it to others at that time. The Tribunal considers that Dr Prior’s final conclusion as stated in oral evidence is influenced by his view that the registrant changed her story and his view as to the reason for the alleged change of story. The Tribunal considers that Dr Prior’s conclusion as to the registrant requiring ongoing monitoring continues to be influenced by that view.
- In the circumstances, given the insight into her condition and of her need to continue with her treatment, the Tribunal is not satisfied that the registrant’s condition “detrimentally affects or is likely to detrimentally affect her capacity to practice her profession.” The Tribunal finds that the registrant does not have an impairment.
- Having reached that conclusion, there is no basis for taking action under s 178(2) of the National Law, including the imposition of conditions on the registrant’s registration arising from her impairment.
- Accordingly, the orders made by the Tribunal are:
- The conditions imposed on the applicant’s registration pursuant to the decision of the respondent dated 22 June 2018 are set aside.
- The applicant is to file submissions on costs by 4.00 pm on 18 January 2019.
- The respondent is to file submissions on costs by 4.00 pm on 25 January 2019.
 Pearse v Medical Board of Australia  QCAT 392, .
 QCAT Act, s 20(1).
 National Law, s 5.
 Transcript of Proceedings, HSK v Nursing and Midwifery Board of Australia (Queensland Civil and Administrative Tribunal, OCR200-18; Judge Sheridan, S Lewis, M Barnett, Prof M Lupton, 12 December 2018) P1-51, ll42-45; P1-52, l13-14 (Transcript of Proceedings).
 Transcript of Proceedings, P1-54, l20.
 Transcript of Proceedings, P1-55, l3.
 Transcript of Proceedings, P1-25, l36-38.
 Transcript of Proceedings, P1-25, l47ff.
 Affidavit of HSK dated 21 August 2018, .
 Transcript of Proceedings, P1-68, l1.
 Transcript of Proceedings, P1-68, l5-9.
 Transcript of Proceedings, P1-62, l9.
  QCAT 439, .
 Transcript of Proceedings, P1-76, l29-30.
 Transcript of Proceedings, P1-82, L33-41.
- Published Case Name:
HSK v Nursing and Midwifery Board of Australia
- Shortened Case Name:
HSK v Nursing and Midwifery Board of Australia
 QCAT 418
19 Dec 2018
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QCAT 355||05 Nov 2018||Respondent's application for a direction that the applicant attend a further health assessment; application dismissed because QCAT did not have the power to require a health practitioner to attend a medical examination: Sheridan DCJ.|
|Primary Judgment|| QCAT 418||19 Dec 2018||Applicant's application for a review of a finding by the respondent Board that the nurse is impaired and for a review of the conditions imposed upon the nurse’s registration by the respondent granted; determination that the respondent does not have an impairment and the conditions set aside: Sheridan DCJ (assisted by Ms M Barnett, Mr S Lewis, Professor M Lupton).|
|Appeal Determined (QCA)|| QCA 144 (2019) 1 QR 600||26 Jul 2019||Appeal dismissed: Morrison and McMurdo JJA and Boddice J.|