Clarke v Health Care Complaints Commission (No 2)

[2024] NSWCA 15

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Clarke v Health Care Complaints Commission (No 2) [2024] NSWCA 15

Hearing dates:

23 November 2023

Decision date:

07 February 2024

Before:

White, Mitchelmore and Kirk JJA

Decision:

(1) In proceeding 2022/356036 the appeal is dismissed with costs.

(2) In proceeding 2023/40167 the summons for leave to appeal is dismissed with costs.

Catchwords:

OCCUPATIONS — Nurses — Qualification and registration — Impairment — Competence — Where Tribunal found that a registered nurse suffered an impairment — Where registered nurse held not to be competent to act as a nurse — Where Tribunal found impairment rendered nurse a significant risk to health and safety of the public — Registration cancelled and non-review period imposed — Nurse prohibited from providing health services

APPEALS — Leave to appeal — Appeal as of right on questions of law — Where no clear grounds of appeal advanced — No errors of law established — No errors in Tribunal’s finding of fact — Leave to appeal refused — Appeal dismissed

Legislation Cited:

Evidence Act 1995 (NSW)

Health Care Complaints Act 1993 (NSW), s 4

Health Practitioner Regulation National Law (NSW), ss 5, 149C

Medical Practice Act 1992 (NSW)

Cases Cited:

Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163

Health Care Complaints Commission v Clarke [2022] NSWCATOD 55

South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63

Health Care Complaints Commission v Clarke [2022] NSWCATOD 55

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Clarke v Health Care Complaints Commission [2024] NSWCA 16

Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163

Clarke v Nursing and Midwifery Council of New South Wales [2021] NSWCATOD 32

Category:

Procedural rulings

Parties:

Sharmain Daisy Clarke (Applicant)
Health Care Complaints Commission (Respondent)

Representation:

Counsel:
Applicant unrepresented
A Petrie with E Lambert (Respondent)

Solicitors:
Applicant unrepresented
Health Care Complaints Commission (Respondent)

File Number(s):

2022/356036; 2023/40617

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2022] NSWCATOD 146

Date of Decision:

17 November 2022

Before:

The Hon D A Cowdroy AO KC, Principal Member
S Daly, Senior Member
J O’Baugh, Senior Member
C Berglund, General Member

File Number(s):

2021/298698

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant challenged a decision of the New South Wales Civil and Administrative Tribunal to cancel her registration as a nurse pursuant to s 149C(1)(a) of the Health Practitioner Regulation National Law (NSW) with a non-review period of three years. That decision also prohibited her from providing any “health service” as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for the same period. She sought leave to appeal from those orders and concurrently to appeal from those orders as of right.

On 15 October 2021 the HCCC filed an application in the Tribunal seeking cancellation of the appellant’s registration, prohibition of her providing health services with a non-review period. The appellant’s application for summary dismissal was rejected. After a final hearing the Tribunal found that the appellant was suffering from a bipolar disorder, psychotic and paranoid personality features, and exhibited no insight regarding her impairments. The Tribunal concluded she was suffering from an impairment and was not competent to act as a nurse. Further, it concluded she would constitute a significant risk to the health and safety of the public if permitted to provide a health service. The Tribunal ordered that her registration be cancelled with a non-review period of three years and she be prohibited from providing health services for the same period.

The appellant sought leave to appeal from these orders and appealed as of right from the same.

On 24 October 2023, the appellant filed a notice of motion seeking, inter alia, the vacation of the date for the hearing of both her appeal and application for leave to appeal. This application was withdrawn on 30 October 2023.

The appellant failed to appear at the hearing of her appeal and leave to appeal, instead forwarding emails to the Registrar complaining of the contents and completeness of the Appeal Books, seeking the recusal of White JA and purportedly requiring that the hearings be adjourned. These applications were refused.

The written submissions provided by the appellant did not identify clear or proposed grounds of appeal, and her failure to appear on the hearing of her appeal rendered it difficult for the Court to identify the errors of law she contended the Tribunal made.

The Court nonetheless distilled five issues for consideration:

1. Whether any factual error appeared in the Tribunal’s determination that would support a grant of leave to appeal;

2. whether the appellant was denied natural justice in the hearing before the Tribunal;

3. whether leave to appeal should be granted on the ground that the medical evidence relied upon was inadmissible by reason of s 76 of the Evidence Act 1995 (NSW) and was not admissible as expert evidence under s 79, or ought not have been relied on by the Tribunal;

4. whether the Tribunal committed an error of law by imposing a non-review period on the cancellation of the appellant’s registration as a nurse; and

5. whether the Tribunal had the authority to order that the appellant be prohibited from providing a health service, including by teaching nursing, for the same period as the non-review period.

The Court (White, Mitchelmore, and Kirk JJA) dismissed the appeal and the application for leave to appeal, holding:

As to issue (i):

Assuming the admissibility of the medical evidence relied on by the tribunal, the Tribunal made no error in preferring the evidence adduced by the HCCC. The Tribunal’s exercise of discretion should not be disturbed on appeal. Leave to appeal should not be granted (to the extent it was required): [84], [87], [90], [103], [104] (per curiam).

As to issue (ii):

There was no basis for the appellant’s assertion that there were procedural irregularities, or that she was otherwise denied procedural fairness. No denial of natural justice was established: [70], [74], [75], [92], [94] (per curiam).

As to issue (iii):

The Tribunal is not bound by rules of evidence and may inquire into and inform itself on any matter as it sees fit, subject to the rules of natural justice, pursuant to s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Even if the rules of evidence applied, the evidence would have been admissible: [78], [79], [82], [90], [105] (per curiam).

As to issue (iv):

Section 149C(7) of the Health Practitioner Regulation National Law (NSW) provides that an order cancelling a registered practitioner’s registration may also order that an application for review may not be made until after a specified length of time has elapsed. The Tribunal made no error of law in imposing a three year non-review period: [81], [82], [97] (per curiam).

As to issue (v):

The Tribunal was entitled, when cancelling the appellant’s registration, to make an order prohibiting her from providing health services for a specified time if satisfied that she posed a substantial risk to the health of members of the public: [97], [98] (per curiam).

The term “health service” is defined in s 5 of the Health Practitioner Regulation National Law (NSW) to include “health education services”. The medical evidence justified the conclusion that as the appellant suffered from an impairment and was not competent to provide teaching services, she would constitute a significant risk to public health and safety: [98], [99], [100], [103], [104] (per curiam).

JUDGMENT

1. THE COURT: There are two proceedings before the court. In proceeding 2023/40167, Ms Clarke seeks leave to appeal from orders of the New South Wales Civil and Administrative Tribunal (“the Tribunal”) that her registration as a nurse be cancelled pursuant to s 149C(1)(a) of the Health Practitioner Regulation National Law (NSW) (“the National Law”), with a non-review period of three years, and that she be prohibited from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for the same period as the non-review period imposed. Ms Clarke was also ordered to pay the respondent’s costs of proceedings in the Tribunal (Health Care Complaints Commission v Clarke [2022] NSWCATOD 146).

2. In proceeding 2022/356036, Ms Clarke appeals from those orders.

3. The Tribunal’s decision was made in its Occupational Division. An appeal from its decision lies as of right on any question of law or, with the leave of the Court, on any other grounds (Civil and Administrative Tribunal Act 2013, Sch 5, Pt 6, subcl 29(4)(b)).

Adjournment Application

4. Both proceedings were listed for hearing on 23 November 2023.

5. Ms Clarke did not appear at the hearing. On 22 and 23 November 2023 she forwarded emails to the Court of Appeal Registrar in which she sought orders that White JA recuse himself and that the hearing be adjourned. Those emails are quoted in the reasons of White JA for declining to recuse himself from the hearing. Those reasons are published separately (Clarke v Health Care Complaints Commission [2024] NSWCA 16).

6. By those emails, Ms Clarke also sought an adjournment of the hearing. We refused that application. The principal basis of that application was that Ms Clarke was not prepared to attend court if White JA were present. She adhered to that position, despite having been given notice that her application should be made in court. By an email sent to the Duty Registrar (not the Court of Appeal Registrar with whom she had previously communicated), Ms Clarke asked the Registrar to “…advise the relevant authorities that the applications to be heard this morning is to be adjourned and or otherwise stood over in accordance with the statements issued in this email correspondence”. She attached her email correspondence addressed to the Court of Appeal Registrar on the morning of 23 November 2023. The Duty Registrar advised her at 9.37am that she had copied the email to the Court of Appeal Registry and the Court of Appeal Registrar for consideration and advice. It was forwarded from the Court of Appeal Registry to our associates when the hearing had concluded.

7. Evidently Ms Clarke considered that by demanding an adjournment and not appearing she could obtain the adjournment sought.

8. Ms Clarke had no proper basis for refusing to appear on the hearing of her appeal and application for leave to appeal. She was not entitled to assume that her recusal application or her adjournment application would be successful. Just as it would be intolerable if individual litigants could influence the composition of the Bench merely by taking objection to the participation of an individual judge or particular judges (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [20]), so it would be intolerable if a litigant could influence hearing dates by demanding an adjournment and refusing to appear on a listed date for hearing.

9. Ms Clarke’s email correspondence referred to her intention to obtain legal advice as to the “circumstances surrounding the proceedings”. Her notice of appeal includes an application for an order that she be referred to a barrister or solicitor under the Pro Bono Legal Assistance Scheme. If that application were to have been progressed, Ms Clarke needed to have filed a notice of motion seeking that relief well in advance of the date fixed for the hearing of the appeal.

10. On 24 October 2023, Ms Clarke filed a notice of motion in which she sought, amongst other relief, the vacation of the hearing date of 23 November 2023 and the scheduling of a new date for hearing of her appeal and application for leave to appeal. That notice of motion was heard by the President on 30 October 2023. The orders of 30 October 2023 include a note of Ward P that Ms Clarke withdrew that application.

11. In her email correspondence, Ms Clarke also complained about the content of the Appeal Books. She complained that documents had been wrongly included in the Blue Appeal Books and that documents had been excluded which should have been included. She also apparently complains about the absence of transcripts required for the compilation of the Black Appeal Book.

12. There is nothing in those complaints. Ms Clarke complained of the inclusion in the Blue Appeal Books of the amended application filed by the respondent (“the HCCC”) in the Tribunal. That was the process upon which the hearing in the Tribunal proceeded. It was filed pursuant to leave granted by Boland DP on 26 May 2022 (Health Care Complaints Commission v Clarke [2022] NSWCATOD 55).

13. Ms Clarke objected to the inclusion in the Blue Book of documents that were part of the evidence admitted before the Tribunal on the ground that “the HCCC did not make part of these proceedings fraudulent actions of the HCCC context of the statement is rejected in the highest [sic]” and (in respect of some documents) “fraudulent actions of the HCCC”. The objection was not particularised. We do not understand it.

14. Ms Clarke objected to the inclusion in the Blue Books of the medical evidence on which the HCCC relied before the Tribunal, and on which the Tribunal based its decision, on the grounds of “relevance subject to absence of any current and verifiable evidence”. The material was clearly relevant.

15. Ms Clarke had other objections, but these examples suffice to demonstrate the position she took. Her position was that documents that were before the Tribunal, which she considered were adverse to her, should be excluded from the Blue Books. Whatever submissions might properly have been made about those documents and the Tribunal’s reliance on them, there was no basis for her complaint that they should be excluded from the materials before this Court.

16. Ms Clarke also complained that certain of the documents in the Blue Books were incomplete. In response, the HCCC invited her to provide the documents that she wished to be included in the Blue Books. Had she appeared, Ms Clarke could have produced those documents for inclusion in the Blue Books.

17. The transcripts of the hearing in the Tribunal from whose decision the appeal is brought were included in the Black Book. Ms Clarke did not identify what transcripts were missing.

18. In short, Ms Clarke’s complaints about the preparation of the materials for the hearing did not justify an adjournment of the hearing. Had she sought to justify an adjournment on that ground, it behoved Ms Clarke to appear to explain her reasons.

19. For these reasons we refused the adjournment application.

Application by the HCCC to the Tribunal

20. On 10 September 2020, the Nursing and Midwifery Council lodged a complaint concerning Ms Clarke with the HCCC. On 11 February 2021, the HCCC in a letter to Ms Clarke advised that, having investigated the complaint, the HCCC considered that the evidence indicated that she suffered from an impairment as defined in the National Law and was not competent to practise nursing in that she did not have the mental capacity and sufficient skills or knowledge to practise the profession. The HCCC invited her to make submissions if she wished to do so in respect of its preliminary conclusions.

21. On 23 April 2021 the HCCC advised that, after having considered submissions provided by Ms Clarke, it remained of the view that the complaint from the Nursing and Midwifery Council should be referred to the Director of Proceedings under s 39(1)(a) of the Health Care Complaints Act 1993 (NSW) for determination as to whether the complaint should be prosecuted before a disciplinary body.

22. It was by this process that the HCCC came to file its application in the Tribunal on 15 October 2021.

23. By its amended application in the Tribunal the HCCC sought the following orders:

“In the event the subject-matter of the complaint is proved or admitted, the Applicant seeks:

1. Cancellation of the Respondent's registration, pursuant to s 149C(1)(a) of the National Law, with a non-review period of 6 years.

2. A prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as any non-review period imposed;

3. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law.

In the event that only some of the particulars of the complaint are proved, the Applicant may seek alternative protective orders under section 149A (caution, reprimand, counsel etc.), section 149B (fine), and/or section 149C (suspension) of the National Law.”

24. Section 144 of the National Law provides that complaints may be made against a registered health practitioner on five grounds. One of these grounds (s 144(d)) is that the practitioner has an impairment. Another is that the practitioner is not competent to practise the practitioner’s profession (s 144(c)).

25. “Impairment” is defined in s 5 as follows:

“impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder…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

...”

26. The grounds for the application were that Ms Clarke allegedly suffered an impairment under s 144(d) and was not competent under s 144(c) in that she lacked the physical or mental capacity to act as a nurse.

27. The particulars of the alleged impairment were as follows:

“1.   The practitioner suffers from a physical and/or mental condition or disorder namely bipolar disorder;

2.   Since at least 2 April 2019, the practitioner has exhibited psychotic and likely paranoid personality features;

3.   For the period 28 November 2019 to 16 December 2019, the practitioner was involuntarily admitted to Royal North Shore Hospital (RNSH) for psychiatric medical services;

4.   Upon presentation to RNSH, the practitioner voiced persecutory ideations including references to home intrusion and surveillance cameras watching her from the ceiling of her home;

5.   The practitioner exhibits a lack of insight in relation to her impairment, in that she:

a.   denies she suffers from mental illness;

b.   has not complied with prescribed mental health treatment regimen;

c.   failed to attend and complete a performance assessment as required by the Nursing and Midwifery Council.”

28. The application as originally filed (that is, before its amendment) sought cancellation of Ms Clarke’s registration as a registered nurse pursuant to s 149C(1)(b) of the National Law. Section 149C of the National Law relevantly provides:

“(1)    The Tribunal may suspend a registered health practitioner’s registration for a specified period or cancel the registered health practitioner’s registration if the Tribunal is satisfied—

(a)   the practitioner is not competent to practise the practitioner’s profession; or

(b)    the practitioner is guilty of professional misconduct; or

(c)    the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner’s profession; or

(d)    the practitioner is not a suitable person for registration in the practitioner’s profession.

…

(5)    If the Tribunal suspends or cancels a registered health practitioner’s or student’s registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following—

(a)    prohibit the person from providing health services or specified health services for the period specified in the order or permanently;

(b)    place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.

…

(7)   An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.”

29. Ms Clarke sought an order for summary dismissal of the application. Her application and the HCCC’s application to rely upon an amended application were determined by Deputy President Boland AM (Health Care Complaints Commission v Clarke [2022] NSWCATOD 55). Deputy President Boland dismissed Ms Clarke’s application for the proceeding to be summarily dismissed. In relation to the HCCC’s application to amend its application, she said:

“[97] The complaint as particularised does not allege professional misconduct and the reference to s 149C (1) (b) is clearly a mistake or typographical error.

[98] It is clear that from the particulars of the complaint that the orders sought are orders under s 149 (1) (c) [sic] and s 149 (7) [sic] of the National Law. It is appropriate and proper that the Application to the Tribunal should be amended. This amendment is not made late in the day, or is such that it is likely to cause prejudice to the practitioner (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27). Accordingly I propose to grant leave to the HCCC to file an Amended application for disciplinary findings and orders which sets out correctly the relevant provisions of the National Law under which orders are sought.”

30. The references to the legislation in para [98] of Boland DP’s reasons are themselves typographical errors. The references should have been to s 149C(1)(a) and s 149C(7).

31. An amended application seeking cancellation of Ms Clarke’s registration pursuant to s 149C(1)(a) of the National Law was filed on 17 June 2022.

32. The application asserted that Ms Clarke has an impairment within the meaning of s 5 of the National Law that detrimentally affects or is likely to detrimentally affect her capacity to practise the profession of nursing, thus engaging both ss 49C(1)(a) and (d).

The Medical Evidence

33. The HCCC relied principally upon the evidence of Dr Anthony Samuels and Dr Murray Wright, both of whom describe themselves as consultant psychiatrists.

34. Dr Samuels first provided an assessment of Ms Clarke’s mental health on 16 October 2015. He did so following a decision of delegates of the Nursing and Midwifery Council who imposed conditions on Ms Clarke’s registration pursuant to s 150(1)(b) of the National Law. The conditions included that Ms Clarke “complete a performance assessment by performance assessor/s approved by the Nursing and Midwifery Council of NSW. The cost of assessment is to be met by the Nursing and Midwifery Council of NSW”.

35. The Tribunal recorded that, in his report of 16 October 2015, Dr Samuels found that Ms Clarke had experienced a period of emotional distress following the termination of her employment, that her self-report suggested she was not currently experiencing the emotional distress, and that there was no clinical evidence that she was suffering from a major depressive or anxiety disorder. Dr Samuels concluded that he could find no clear evidence that Ms Clarke was suffering from an impairment within the meaning of the National Law (at [19]).

36. A further s 150 hearing was conducted by the Nursing and Midwifery Council on 13 July 2017. For reasons published on 16 August 2017, the Council varied the conditions imposed on her registration. The conditions imposed were that she not work as a registered nurse until review of the condition by the Nursing and Midwifery Council and that she attend for a health assessment by a psychiatrist appointed by the Council at the Council’s expense.

37. On 29 March 2018, Dr Samuels provided a further health assessment of Ms Clarke.

38. On 22 May 2018, an Impaired Registrants Panel of the Nursing and Midwifery Council provided a report recommending the continuation of the condition that Ms Clarke not work as a registered nurse until the Council had reviewed and removed that condition. The Panel recommended that Ms Clarke be well engaged with a general practitioner, psychiatrist, and psychologist, with regular reviews and compliance with treatment. Once her treating practitioners formed an opinion that she was fit to work as a nurse, and provided that opinion in writing to the Council, the Panel recommended that a further health assessment ideally by the same Council-appointed psychiatrist (that is, Dr Samuels) be obtained.

39. Dr Samuels provided further assessments on 2 April 2019 and 25 February 2020. Dr Samuels’ conclusions following his assessments of 29 March 2018, 2 April 2019 and 25 February 2020 are summarised at paras 20-23 of the Tribunal’s reasons and need not be restated in these reasons. Suffice it to say it was Dr Samuels’ opinion that Ms Clarke suffered from a bipolar type disorder with hypomanic features, which was unlikely to improve without assertive psychiatric treatment. He considered her not fit to practise as a nurse until she developed more insight into her mental illness and accepted appropriate treatment for an adequate length of time.

40. The Tribunal also had regard to opinions of a Dr Patrick Toohey, psychiatrist, who provided a report dated 6 November 2017 to Ms Clarke’s then general practitioner, Dr Andrew Adams. In his report of 6 November 2017, Dr Toohey stated that he agreed with a report of a psychiatrist, Dr Andrew Macpherson, and a treating psychologist, Ms Anne Lucas, that Ms Clarke was showing signs and symptoms of a bipolar disorder. Dr Toohey had attempted to initiate treatment with a drug, Seroquel, but Ms Clarke did not persist with the treatment (at [46])

41. Ms Clarke relied on reports provided by another consulting psychiatrist, Dr Anthony Dinnen. On 16 August 2018, he provided an opinion to Dr Adams as follows:

“I have seen your patient for review since she initially attended on 9 July on two further occasions, 24 July and 14 August. Discussions have revealed her extraordinary level of persistence, determination and ability with regard to managing her litigations arising from what she considers to be discrimination and harassment in the work place. She has about three court cases going and one of them has led to leave being granted to her appeal to the Supreme Court of Appeal in NSW.

When we discussed her abilities in this fashion she pointed out to me that her background in South Africa as a person of mixed race but predominantly Indian heritage has led to her experiencing considerable difficulties which she overcome because of her determination to persue [sic] her nursing career.

Over a decade in South Africa has been followed by over a decade here but she is determined to succeed in her efforts to return to her profession.

I advised her that I did not think at present that she should seek a fitness certificate so she can return to work. I think that is because she is so much consumed by these legal matters and the ongoing litigation where she is trying to establish justice and recompense. When these are resolved I believe she would certainly be fit to return to full time work as a nurse in her profession, and I discussed this with her. She has ongoing appointments to see me.”

42. The report apparently given by Ms Clarke to Dr Dinnen as to the extent of her then ongoing litigation (“about three court cases”) misstated the extent of the litigation even then being undertaken. On 9 February 2021, Ms Clarke was declared a vexatious litigant (South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63). The reasons of Schmidt AJ for making that declaration recite the various proceedings in which Ms Clarke had been involved. That judgment was part of the documents admitted into evidence before the Tribunal.

43. Ms Clarke did not seek to contradict the recitation of her unsuccessful claims. In 2008, 2014, and 2015 the Nurses Association brought proceedings on her behalf in the Industrial Relations Commission for allegedly unfair dismissal. These were either dismissed or discontinued (at [72]-[76]).

44. In 2016, Ms Clarke brought proceedings in the District Court against three nurses with whom she had been employed at the Royal Hospital for Women, in which she sought damages for alleged harassment, vilification, defamation and, ultimately, battery. Those proceedings were unsuccessful. She brought numerous proceedings against the South East Sydney Local Health District in various courts and tribunals, which were also unsuccessful. She also claimed damages for defamation, professional negligence, and malice against the Nursing and Midwifery Council. In 2018 she brought proceedings in the District Court in slander against the Acting Director of Nursing, Gynaecological Services, at the Royal Hospital for Women. In 2015, she brought proceedings in the Federal Circuit Court against other defendants concerning her employment at the Royal Hospital for Women. All of these proceedings were ultimately dismissed.

45. On 15 October 2018, Dr Dinnen reported to Dr Adams that when he had written on 16 August that Ms Clarke was “consumed” by litigation, he did not mean that it could cause any psychiatric illness. He opined that Ms Clarke was fully well, but that the litigation was consuming so much time and effort that he did not think she should try to work at that time. It does not appear from Dr Dinnen’s report, or his later reports, that he considered whether Ms Clarke’s determination to pursue her claims in different courts, notwithstanding their lack of legal merit, might itself be indicative of a mental disorder.

46. On 26 February 2019, Dr Dinnen provided a report addressed “To whom it may concern” in which he said:

“This is to confirm that Ms Clarke has been attending regularly for counselling since July 2018. She has attended on a regular basis every month or two for support, discussion and guidance with regard to her various litigated matters arising from her employment. At all times I found her to be intelligent, well balanced emotionally, and without any evidence of psychiatric illness. In my view she is perfectly well mentally, and is fit to resume any form of part or full time nursing as she desires and is made available to her.

At her request I have previously provided letters to Dr Andrew Adams of Randwick advising the same view in similar terms, but I understand this led to some confusion. I am writing this to state that there should be no confusion at all. In my view there is no evidence from any time that I have consulted with Ms Clarke that she suffers any form of mental illness or psychiatric or psychological disorder.”

47. On 3 March 2019, Dr Adams issued a medical certificate stating that he agreed with Dr Dinnen’s opinion dated 26 February 2019 that Ms Clarke did not suffer from any psychiatric illness. Dr Adams stated that he supported any independent psychiatric evaluation as might be necessary for her to return to her career of nursing.

48. Ms Clarke also relied upon a report of a Dr Samson Roberts, a psychiatrist who prepared a medical report in relation to a workers compensation claim made by Ms Clarke. Dr Roberts’ report is dated 22 October 2014. He considered that Ms Clarke did not present with any psychiatric impairment. He did not give oral evidence and had not seen Ms Clarke since 2014.

49. On 2 April 2019, Dr Samuels again saw Ms Clarke. She attended on him in compliance with the requirement of the Nursing and Midwifery Council that she attend an independent health assessment. Dr Samuels noted Dr Dinnen’s report dated 26 February 2019. He reported:

“Her main focus apart from wanting to get back to nursing work, is on legal matters and she spends a large proportion of her day involved in these matters.

… it is fairly evident when talking to Miss Clarke, particularly when she gets emotional about the injustices that she perceives, that her thinking becomes disorganised, there is a grandiosity and whilst she has some grasp of legal concept, there is a conflation of ideas and a lot of what she says is not all the comprehensible.

In addition, her speech is very pressured and I tried to record what she said to demonstrate her thought disorder but it was difficult at times to keep up with her rapid flow of thoughts.

It is my view that Miss Clarke suffers from an impairment within the meaning of the Health Practitioner Regulation National Law (as in force in each state and territory) ("the National Law"); namely a Mood Disorder with Psychotic Features.

2. Recommendations

My impression remains unchanged and it is my view that she is not well enough to work as a Registered Nurse. In my opinion Miss Clark's mental state is not likely to improve without assertive psychiatric treatment. Given her lack of insight this is not likely to occur unless her mental state decompensates to the point that treatment can be enforced under the Mental Health Act.”

50. Dr Samuels’ report was provided by the Nursing and Midwifery Council to Dr Dinnen. He responded as follows:

“I thought I should record my concern about Dr Samuels' comment at the end of his report. I quote:

‘I note the reports of Dr Dinnen and Dr Adams and it is often difficult as a treating practitioner to be frank about a patient's mental state because of the risk of alienating them therapeutically and in addition she is highly litigious’.

I take exception to that comment. I understand it is privileged because it is in the nature of a medicolegal report. I thought it was important therefore to write to you to say that I have no difficulty in expressing my opinion about this patient. I would certainly say if I thought she was paranoid or psychotic or suffering from any other form of psychiatric illness. My statement, after fifty years of consultant practice as a psychiatrist, that I do not consider she has any psychiatric illness is to be taken at face value and is not to be interpreted in this way, as it was by Dr Samuels.

It would also be obvious that my opinion, as quoted by Dr Samuels, is at odds with his but that is another matter.”

51. On 11 June 2019 the Impaired Registrants Panel of the Nursing and Midwifery Council reported that:

“We cannot reconcile the difference of opinion between Dr Samuels and Dr Dinnen in regard to Ms Clarke’s presentation, diagnosis, impairment or fitness to practise. Ms Clarke’s presentation at the IRP is not consistent with Dr Dinnen’s opinion. Ms Clarke presented at the IRP in a similar manner to that Dr Samuels described in his April 2019 report. We found her guarded, intense, at times agitated and often thought disordered and disorganised. At times she was quite fixated on certain topics and alluded to possible persecutory themes, as above. We struggled to understand her idiosyncratic use of language and noted that she did not answer questions posed.

The Panel agrees with Dr Samuels that Ms Clarke meets the definition of impairment as defined by the Law in that she has a health condition that is likely to detrimentally affect her capacity to safely practice as a nurse. The Panel accepts Dr Samuels’ diagnosis of a mood disorder with psychotic features.

What, if any, risk does Ms Clarke pose to the health and safety of the public? Ms Clarke is not currently working as a nurse and has not worked as a nurse since 27 October 2015. When she was working as a nurse, concerns about her practice and performance were raised and have never been addressed, as the performance assessment process was not completed, due to her illness.

The Panel concludes that Ms Clarke has a health condition that would detrimentally affect her capacity and safety to practise, due to her disorganisation, thought disorder, intense preoccupation with rigid themes (including paranoid, persecutory ones), and lack of insight.

We note that she does not have a clear diagnosis and is not receiving assertive treatment. She has found the counselling and support from her psychiatrist and (past) GP of benefit.

Due to the combination of concerns about her performance and concerns about her health we believe Ms Clarke would pose a risk to the safety of the public, especially in her preferred context of practice, being perioperative nursing.”

52. On 28 November 2019, Ms Clarke attended the Royal North Shore Hospital for investigation of left shoulder pain and discomfort in her chest. The discharge notes of the hospital record:

“…During her physical review in ED, Sharmain was found to voice persecutory ideations about home intrusion, cameras on the ceiling and concerned for her safety.

Sharmain was also found to be tangential and pressured with her speech. Given that Sharmain initially objected to the admission, she was admitted as an involuntary patient under the NSW Mental Health Act. Sharmain received serial troponin as well as ECG checks whilst in ED. There were nil abnormalities detected and she was cleared medically for a mental health admission.

This is Sharmain's very first psychiatric admission. She has had previous engagement with various community doctors, including a private psychiatrist Dr. Anthony Dinnen. Up until the presentation date, there was nil clear diagnosis for Sharmain. However, Sharmain was trialed on a short course of sodium valproate in the past but ceased by Sharmain. At the time of presentation, Shar in is not on any regular medication and has nil known allergies.

Sharmain sustained significant psychosocial stressors since 2016, stemming from her workplace altercations, These have led to further legal battles which likely further exacerbated Sharmain's deterioration. Sharmain was working as a registered nurse until 2016. Since then, Sharmain has been focusing on managing these legal battles...

There is no history of any substance misuse.”

53. The discharge report referred to drugs which Ms Clarke had been prescribed and had taken whilst under involuntary admission and reported that, following the taking of those drugs, she felt more rational, more relaxed and less preoccupied, that her persecutory delusion had resolved, and that there were no overt psychotic symptoms. She was discharged with a plan of continuing the medication for a further seven days and then to follow up with her general practitioner and with Dr Dinnen.

54. On 13 January 2020, Dr Dinnen issued a certificate addressed “To whom it may concern” stating that Ms Clarke had attended that day for an assessment. Dr Dinnen considered that she was fully fit to work in her usual occupation.

55. On 25 February 2020, Ms Clarke attended a health assessment with Dr Samuels. He reported that Ms Clarke was more settled in terms of her mental state unless pressured, and slightly less disorganised. He noted Dr Dinnen’s opinion that she did not suffer from mental illness. Dr Samuels stated that it was his understanding that Dr Dinnen had stopped her medication because she was having side effects. Dr Samuels found it concerning that Ms Clarke was no longer taking any antipsychotic and mood stabilising medications. He considered that even a fairly brief period of treatment with psychotropic medications made a considerable difference to her mental state. He considered that there was still evidence of thought disorder, tangential responses, a somewhat detached affect and she lacked insight. He remained of the view that Ms Clarke suffered from an impairment within the meaning of the National Law and had a mood disorder with psychotic features and likely paranoid personality features, which had the potential to impact upon her professional functioning.

56. His conclusion was as follows:

“It remains my view that Miss Clarke is not fit to practise as a nurse until she develops more insight into her mental illness, is accepting of appropriate treatment, and remains on prescribed treatment for an adequate length of time. Whether or not her insight would improve with longer term treatment with psychotropics is uncertain, but the brief period in hospital seemed to lead to some improvements in her mental state. Without more assertive psychiatric and psychological treatment interventions, the prospects of her returning to a nursing role are quite low at this time. It seems evident that ongoing litigation, at significant cost financially and to her personal wellbeing, is very unlikely to achieve the resolution she is hoping for and is likely to be detrimental to her psychological and psychiatric well being and overall prospects for recovery.”

57. The Impaired Registrants Panel adopted Dr Samuels’ opinion, but also had regard to Ms Clarke’s oral presentation. Ms Clarke had requested a review of her registration which precluded her practising. The Panel members were the same members who had reviewed her health previously. They observed that, in some respects, Ms Clarke had improved since she last attended in June 2019. The Panel stated:

“Despite these improvements, however, she remains preoccupied with certain topics, particularly to do with the way she is treated by the Council, by a ‘third party’ at the hospital and in relation to how people acquire information about her. There is a generally paranoid, persecutory element to the way she describes events and she repeatedly referred to multiple legal complaints and proceedings she has initiated in response. She remains thought disordered and disorganised in her responses to questions and her explanations are difficult to follow and generally do not address the question. She continues to demonstrate no insight into her illness, asserting that she has no psychiatric illness and does not require treatment with medication.

We conclude that Ms Clarke does have a mental impairment and agree with Dr Samuels that Ms Clarke has a mood disorder with psychotic features and likely paranoid personality features. We concur with his concern about her lack of insight.”

58. The Panel agreed with Dr Samuels’ opinion that she was not fit to practise as a nurse.

59. On 14 February 2022, the HCCC wrote to Ms Clarke requesting, not it seems for the first time, that she attend an appointment with Dr Murray Wright, psychiatrist, for an independent health assessment which, the HCCC said, would help the Tribunal determine her current health status and whether she had an impairment as defined in s 5 of the National Law. The HCCC said that attendance at the assessment was not compulsory, but that if Ms Clarke declined to attend without a valid reason the HCCC might ask the Tribunal to draw adverse inferences from her refusal to do so.

60. Ms Clarke did not see Dr Wright to enable him to make his assessment of her mental health following consultation.

61. Dr Wright provided evidence to the Tribunal based upon his assessment of the medical records with which he was provided concerning Ms Clarke. On the basis of the medical records, Dr Wright considered that there was evidence supported by first hand observation that Ms Clarke suffers from a bipolar disorder with psychotic features and has no insight into the nature and consequences of both her condition and her refusal to engage in treatment. Based on his review of the documentation, he considered that Ms Clarke suffers from a bipolar disorder with psychotic features and a paranoid personality disorder, and that these conditions adversely affected her ability to respond to criticism and feedback in the workplace. He considered that Ms Clarke should not return to practice until an independent health assessment by a psychiatrist confirmed that she had engaged in appropriate treatment and that the conditions of bipolar disorder with psychotic features and paranoid personality disorder were being appropriately managed to the extent that enabled her to practise. He considered that any return to practice should include a requirement that she continue to see a treating psychiatrist and adhere to treatment prescribed, and that she be reviewed by an Impaired Registrants Panel on a regular basis.

62. At the conclusion of his evidence, Dr Dinnen was questioned by Senior Member Daly and gave the following evidence:

“Q. Okay. Thank you. One more question. What psychiatric diagnosis might extensive litigation be indicative of? What differential diagnoses would you consider when considering extensive litigation?

A. Well, it can be a reflection of a personality disorder. Some vexatious litigants are determined to cause as much damage as they can while being quite sane, so they’ve got a, you know, a pathological, ah, ah, aspect of their character. So it can be a reflection of a personality disorder. Ah, it can be due to a paranoid psychosis in ...(not transcribable)... schizophrenia. Ah, normally if someone is very ill mentally they, they, they’re not very efficient in conducting these sort of complicated affairs, but for people to engage in a great deal of litigation inappropriately, I would say, um, psychotic illness such as paranoid psychosis or paranoid schizophrenia, ah, bipolar disorder or personality disorder are what you’d be looking for.”

Tribunal’s Reasoning

63. Dr Samuels, Dr Wright, and Dr Dinnen gave oral evidence before the Tribunal. In relation to the evidence of Dr Dinnen, the Tribunal found:

“[86] Dr Dinnen reiterated that he was providing counselling and therapy for her distress and concern about her condition, namely to be restored to a position (as a nurse) and his role was supportive. He considered that her court actions were not a manifestation of a mental illness. He acknowledged that he did not realise the extent of the litigation in which the respondent was involved but indicated that had he known the full extent of it, he would have been concerned. However, he again stated that he never made a diagnosis of the applicant and did not prescribe any medication for her. He understood, as per his letter dated 14 January 2019, that Dr Samuels was to undertake the formal assessment of the respondent. Significantly, the Tribunal notes that Dr Dinnen never required the respondent to undergo a mental health assessment, and he readily acknowledged that he never performed a mental health assessment of the respondent.”

64. The Tribunal found, on the basis of the diagnoses made by Dr Toohey, Dr Samuels and Dr Wright, that Ms Clarke is suffering from a bipolar disorder [99]. The Tribunal found that Ms Clarke exhibited psychotic and likely paranoid personality features based upon Dr Samuels’ report dated 2 April 2019 [99].

65. The Tribunal found that, on her involuntary admission to Royal North Shore Hospital psychiatric medical services, Ms Clarke voiced persecutory ideations. It also found that she exhibited a lack of insight in relation to her impairment in that she denied suffering from mental illness and had not complied with prescribed mental health treatment regimen [99].

66. The Tribunal concluded:

“Conclusion

[104] In the circumstances, the Tribunal finds that the evidence of Dr Samuels, and of Dr Wright and the respondent’s medical history provided by Dr Adams and Dr Toohey satisfies it, to the requisite standard, that the respondent is suffering from an impairment. The Tribunal arrives at such a conclusion, noting that whilst Dr Wright did not consult with the respondent, his report is the latest report to be considered. Specifically, the Tribunal does not accept the opinion of Dr Dinnen in view of the fact that he has never undertaken a formal mental health assessment of the respondent and deferred such assessment to Dr Samuels’ opinion. The report of Dr Roberts also did not suggest that such practitioner was required to perform a full mental health assessment; rather he was required to provide an opinion for a compensation claim. The Tribunal also notes that Dr Roberts has not seen the respondent since 2014.

[105] Complaint One is established. That is, pursuant to s 149C(1)(a) the Tribunal is satisfied that the respondent is not competent to practise her profession.

[106] As a result of such finding the Tribunal finds that Complaint Two is also established, that is that the respondent is not competent within the meaning of s 139(a) of the National Law in that she lacks the mental or physical capacity to practise as a nurse, as such the respondent would constitute a significant risk to the health and safety of the public if she were permitted to provide a health service as defined in the National Law; see Health Care Complaints Commission v Spirziola [2022] NSWCATOD 118.

[107] The applicant seeks a non-review period of 6 years. The Tribunal notes the reasons, namely that the respondent has refused treatment. However, the Tribunal considers that an internal review period of three years is sufficient to enable the respondent to seek appropriate treatment with a view to her possible reinstatement as a practising registered nurse.”

67. Assuming (contrary to Ms Clarke’s submission) that the Tribunal was entitled to have regard to the evidence and reports of the medical witnesses called by the HCCC, the Tribunal’s acceptance of the evidence of Dr Samuels, Dr Wright and Dr Toohey, in preference to the evidence of Dr Dinnen and Dr Roberts, raises no question of law.

68. Nor is there any reason to consider that the Tribunal’s preference for the opinions expressed by those doctors over the opinions expressed by Dr Dinnen and Dr Roberts was not well based, for the reasons that the Tribunal gave. Leave to appeal to challenge the Tribunal’s findings as to the effect of the medical evidence should not be given.

Ms Clarke’s grounds of appeal and written submissions

69. It is difficult to identify from Ms Clarke’s grounds of appeal or proposed grounds of appeal, and from her written submissions, what are the errors she contends the Tribunal made. As noted above, Ms Clarke did not appear on the hearing of the appeal and we have no means of elucidating matters her written submissions leave obscure. However, some of Ms Clarke’s grounds of appeal and submissions raise questions of law. None is of substance.

70. Ms Clarke contended that there were procedural irregularities in the management of the appeal due, she said, to the incomplete and defective preparation of the appeal books. Leaving aside the fact that she had the primary responsibility for the preparation of the appeal books, for the reasons discussed above at [12]-[18], there is no basis for those contentions.

71. As to the substance of the appeal, Ms Clarke submitted that the proceedings in the tribunal were vexatious and ought to have been summarily dismissed. We see no error in the refusal of Deputy President Boland summarily to dismiss the HCCC’s proceedings.

72. Part of Ms Clarke’s submissions relate to other proceedings concerning her dispute with the South Eastern Sydney Local Health District concerning her employment and the termination of her employment, which are irrelevant to this appeal. Part of her submissions concern proceedings she brought in the Human Rights Commission, which again are irrelevant to the present appeal. So far as her submissions have arguable relevance, she contends that either the Nursing and Midwifery Council or perhaps the HCCC engaged in harassment and intimidatory acts by requiring her to attend health assessments. Otherwise she makes sweeping allegations of dishonesty or impropriety as seen in the following paragraphs:

“75.   Dishonestly, false and misleading information with the intention of perverting the course of justice (knowingly established fraudulent transcripts for 21.09.2015 and 13.07.2017) subject to no evidence supplied with an unsealed application served on the applicant on 15.10.21 with an unorthodox bundle of materials.

76.   Potential statutory breaches and doctrines in upholding the objects of the Health Care Complaints Act 1993 in the principle issue of public safety further articulated under the Health Practitioners Regulation National Law 86a.

77.   2014 and 2015 mandatory notifications in receipt of the HCCC was not examined, 2018, 2019, 2020-2022, 2023 concerns and complaints raised on medical practitioners and health organisations went unchecked, paragraph 41 above.

78.   The applicant/appellant was able by 9.01.23 provide a white folder which demonstrated by reference to evidence and law, reasonable grounds upon which the primary court’s findings can be challenged and the orders made should be displaced.”

73. There are numerous paragraphs in Ms Clarke’s submissions in similar style. It is impossible to identify precisely what it is she contends in relation to these matters.

74. Some grounds can be identified. One is that she was allegedly denied natural justice in the hearing before the Tribunal. If so, this would be an error of law. The complaint of denial of natural justice would be made good if actual bias, apprehended bias or denial of procedural fairness were established. Ms Clarke does not contend that the decision is vitiated for actual or apprehended bias. There would be no proper basis for any such submission.

75. Nor is there any basis for a submission that she was denied procedural fairness in the Tribunal. The transcript of the hearing in the Tribunal clearly demonstrates otherwise.

76. In her summary of argument in support of her summons for leave to appeal, Ms Clarke submitted that:

“1. The nature of the applicant's case is relied upon elements of unfair prejudice in the highest, error in the application of the law, attempt to pervert the course of justice, by denying the applicant any employment and earnings in the health industry within her areas of expertise, sec 97 Tendency Rule, 96 Failure to Act & 95 Use of Evidence for other purposes relevant to the First and Second Respondents in question under Evidence Act 1995.

2. Further contraventions are evident under Standard of Proof Evidence Act 1995 Sec 140 (1) (2) (b) (c) and Sec 142 (1} (a) (b) &(2) (a) (b)

3. The judgement handed down refuses to apply Part 3.3 Sec 76 The opinion rule (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed, a further contravention and lack of insight was applied under (2)in response to the findings noted on pages 22 and ceases on page 25 of the said judgement;

4. Sec 77 and 79 (1) in relation to Opinion rule, the applicant suffers an intense and unfair prejudice, because the evidence of an opinion that was admitted was relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed, the evidence supplied by the First respondent in its letters dated 23.04.2021, 21.01.22 & 14.02.2022; notwithstanding, the Second Respondent's. compilation of two judgements on 26.05.22; whereby, one judgement was provided to the applicant in confidence to be collected from Level 10 of the John Maddison Registry on 26.5.22 supporting the opinions of Dr. Anthony Samuels false and irregular opinions.

5. Unfair prejudice explicitly is actioned in the handing down of the judgement on 17.11.22, informing in favour of the preconceived, misconceived, and inappropriate psychiatric clinical diagnoses expressed by the first Respondent-and its associate , whereby, a sustained illegality is canvassed in the judgement made.by the Second Respondent, under the Exception as to when the opinion rule does not apply.”

77. Ms Clarke’s submission appears to be that the medical evidence upon which the Tribunal relied was inadmissible by reason of s 76 of the Evidence Act 1995 (NSW) and was not admissible as expert evidence under s 79.

78. Section 38(2) of the Civil and Administrative Tribunal Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Exceptions to that rule are not relevant in the present appeal (s 38(3) and Sch 5 cl 20).

79. Accordingly, the rules of evidence did not apply to the proceeding before the Tribunal. Nor was objection taken to the doctors’ reports. In any event, if the rules had applied, and objection had been taken, there would have been no proper basis for the Tribunal to have rejected the evidence of the doctors on whom the HCCC relied.

80. Ms Clarke appears to assert that the Tribunal had no authority to order that her registration as a nurse be cancelled “with a non-review period of three years”. If this were so, the Tribunal would have committed an error of law.

81. But s 149C(7) of the National Law expressly provides that, where the Tribunal cancels a registered health practitioner’s registration, the order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.

82. Division 8 of Pt 8 provides, by ss 163 and 163A(1)(b), that a person may apply to an appropriate review body, which includes the Tribunal (s 163(1)(c)), for review of a “relevant order” made in relation to the person. A “relevant order” includes an order by the Tribunal that a person’s registration be cancelled (s 163A(4)). There is no doubt that the Tribunal had the power to specify a non-review period of three years. There is no plausible ground for interfering with the Tribunal’s discretionary judgment as to whether, and if so for how long, an order under s 149C(7) should be made.

83. It appears from Ms Clarke’s summary of argument in support of her application for leave to appeal, her written submissions on appeal, and her affidavit of 9 January 2023 which consists partly of evidence and partly submissions, that she also contends:

1. that the amended application filed by the HCCC in the Tribunal was filed out of time and was irregularly filed (affidavit paras 5-12);

2. that the complaint of the Nursing and Midwifery Council to the HCCC of 10 September 2022 was made to evade financial claims that Ms Clarke had on the Council (affidavit para 18);

3. that there was no current evidence that Ms Clarke ever suffered or was suffering any mental retardation and the medical reports relied upon by the HCCC or by the Council contained inaccurate and false information on her alleged psychiatric illness (affidavit para 22);

4. that at no time was she examined by the HCCC and the Council did not provide its complaint to her prior to making the complaint to the HCCC (affidavit para 23) and hence she did not have the opportunity to respond to the Council’s complaint (affidavit para 24);

5. that she did not attend on Dr Wright as requested by the HCCC by its letter dated 21 January 2022 because she relied upon the National Law (although she did not specify on what provision she relied) which did not authorise an unreasonable request.

“There was no utility in attending to my opponent’s request to assist [it] in making its case out, I was always cognitively aware and understood the impact of the application made and as to what statutory implications and repercussions was evident from the respondent’s application made on 15.10.21 and was awaiting to be supplied the evidence”;

6. the HCCC’s letter of 14 February 2022 was coercive, oppressive and harassing and the health assessment she was asked to attend would not have been an “independent” assessment, but “a false and illegal psychiatric diagnosis with a man of power, Dr Murray Wright, who is the chief psychiatrist in the Ministry of Health [with] affiliations with the South Eastern Sydney Local Health District” (para 33);

7. there was no current evidence before the Tribunal on which it could have relied to make its decision that she suffered an impairment, the assessments of Dr Samuels did not comply with the Medical Practice Act 1992 (NSW) concerning the ethical decision making framework and principles and contained inaccuracies, were collusive, and are to be attributed to an allegiance Dr Samuels owes to “its affiliates” (para 37);

8. it is illegal for the HCCC to accuse her of “…a psychiatric retardation in the absences of any clinical and/or physical representations” (para 40); and

9. Dr Toohey wrongly prescribed her Seroquel drugs which she did not take because there is no requirement for the drug and an excessive dosage was prescribed (paras 51 and 52).

84. We see no merit in these contentions. There was no evidence to support Ms Clarke’s attack on the good faith of the Nursing and Midwifery Council or Drs Samuels and Wright. Otherwise her submissions were contrary to the weight of the medical evidence which the Tribunal was entitled to accept.

85. Ms Clarke also complained about a previous decision of the Tribunal in November 2017 (Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163). That complaint is not directly relevant to the present appeal and application for leave to appeal. She referred to various historical matters concerning her previous dealings with the North Sydney Local Health District, the South Eastern Sydney Local Health District, issues in relation to employment, and previous proceedings concerning co-workers which are part of the background to the present dispute but are not relevant to issues concerning the correctness of the Tribunal’s orders.

84. As we discern the issues arising from Ms Clarke’s summary of argument and affidavit, she contends that the psychiatric diagnoses relied on by the HCCC were “preconceived, misconceived and inappropriate”.

85. As we apprehend it, Ms Clarke seeks to repeat on appeal a submission she made to the Tribunal to the effect that Dr Samuels and Dr Wright were not independent experts but tailored their opinions to meet the wishes of the HCCC and the Nursing and Midwifery Council. There was no proper basis for that submission. It ought not to have been made, although allowance must be made for the impairment of Ms Clarke’s mental health. The submission is consistent with Dr Samuels’ diagnosis of 25 February 2020 that she suffers from a mood disorder with psychotic features and likely paranoid personality features. Dr Wright expressed the same opinion in his report of 26 July 2022.

86. Ms Clarke submitted that the Nursing and Midwifery Council breached s 145E(2) of the National Law by directing her to undergo an independent health assessment when that was not reasonable. Nothing in the materials suggest that the Council acted unreasonably in requiring her to undergo an examination. Appeals from the determination of the Impaired Registrants Panel which recommended the imposition of conditions on her registration, including in the latter decision a condition that she not practise as a registered nurse, were dismissed (Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163; Clarke v Nursing and Midwifery Council of New South Wales [2021] NSWCATOD 32).

87. In her summary of argument, Ms Clarke contended that the HCCC shielded the wrongful conduct of the Nursing and Midwifery Council by using its power for an improper purpose. There was no evidence to support that contention.

88. Ms Clarke disputed the facts found by the Tribunal contending that the diagnosis of bipolar disorder was a false diagnosis, that the diagnosis that she exhibited psychotic and likely paranoid personality features was wrong and not an opinion expressed from an independent perspective, that the record of the Royal North Shore Hospital stating that on presentation she voiced persecutory ideations was wrong, and so forth. We have found no error in the Tribunal’s acceptance of the medical evidence relied on by the HCCC.

89. Ms Clarke did not give evidence before the Tribunal.

90. Ms Clarke contends that the Tribunal denied her the opportunity of adducing critical evidence. As we apprehend it, she contends that the Tribunal denied her this opportunity by refusing to issue subpoenas to employees of the HCCC for the purpose of giving evidence in the Tribunal. We were not referred to any application made by Ms Clarke for the employees of the HCCC to be required to attend to give evidence, or any reasons advanced by her for that application, or what evidence she contended they could usefully give, or how in refusing leave for the issue of subpoenas, the Tribunal erred.

91. It appears from the transcript of the fourth day of the hearing that overnight Ms Clarke filed a summons seeking to summons the Director of the HCCC to give evidence. The Tribunal dismissed that application. It said:

“[67]   At the outset of the fourth day of hearing, the respondent sought leave to issue a subpoena to the acting director of the applicant. She did so on the basis that the proceedings had been incorrectly commenced, and asserted that there were irregularities to the extent that she did not know what she was answering. It was pointed out to the respondent that the issues in the application were plain and had been discussed with her on the first day of the hearing. Further, in view of the prior interlocutory application, no purpose would be served by the issue of the summons. Accordingly leave to issue the summons was refused.”

94. Ms Clarke did not demonstrate any reason why the Tribunal erred in so deciding. There was no denial of procedural fairness.

95. By her summary of argument, Ms Clarke challenged the Tribunal’s order that she be prohibited from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW), including the provision of teaching of nursing, for the same period as the non-review period imposed (that is, three years). She submitted:

“22. The error in the application of s4 HCCA 1993 is inconsistent to the prohibition order made in the decision handed down on 17.11.22 because; s4 HCCA 1993 refers to a health practitioner to be a natural person and a health service provider is subject to multiple health services includes -nursing and midwifery services, notwithstanding;

23. Division 6A and s41 B of the HCCA 1993 in response to prohibition orders is potentially relevant under the application of the Law for non-registered practitioners; the applicant has sustained her nursing registration with the licencing authority commencing 2015 to date, whilst the strenuous litigation is underway, the contravention of the Law is evident because the applicant is a registered health practitioner in NSW and the order cannot be enforced.

24. The error in the application of the Law is gaping as to the order made because the order is inconsistent to the definitions under the s4 HCCA 1993 and affects only non-registered practitioners.

25. The National Law 86a Sec 149C informs at subsection (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and its satisfied the person poses a substantial risk to the health of member so the public, it may order (a prohibition order) do any one or more of the following: (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;

26. The argument is such that ·if the evidence to prosecute was sound, the application of the National Law Sec 149C(5) would have taken effect immediately, therefore, order (2) is presented with an error in the application of the Law, unfair prejudice and pure injustice sustained under the Evidence Act 1995.

…

31. For arguments purposes; Prohibition orders under the National Law requires a practitioner to have sustained a criminal record from a serious malpractice and or otherwise, a misconduct relevant to public safety and or the safety compromise on the practitioner in question, the First Respondent failed to make their case out in good faith under Sec 1450 Serious Complaints must be referred to the Tribunal [NSW](1-).”

96. Although it is difficult to follow the submission, it is at least clear that Ms Clarke contends that the Tribunal was not authorised to make the prohibition order referred to above.

97. Section 149C(5) has been quoted at [28] above. Because the Tribunal cancelled Ms Clarke’s registration, it was entitled to make an order prohibiting her from providing health services for a specified time if it were satisfied that she posed a substantial risk to the health of members of the public.

98. The Tribunal was satisfied that Ms Clarke posed a substantial risk to the health of members of the public. It found that she was not competent within the meaning of s 149C(1)(a) of the National Law, in that she lacked the mental or physical capacity to practise as a nurse and, as such, would constitute a significant risk to the health and safety of the public if she were permitted to provide a health service as defined in the National Law (at [106]).

99. “Health service” is defined in the National Law as follows:

“health service includes the following services, whether provided as public or private services—

(a) services provided by registered health practitioners;

…

(g) health education services;”

100. There was ample evidence that Ms Clarke, by reason of mental impairment, is not competent to practise as a nurse. The medical evidence did not specifically address her competence to teach nursing. Ms Clarke had not served any statement indicating she intended or wished to teach nursing. Her wish to do so arose during the course of her submissions before the Tribunal. On the final day of the hearing, Ms Clarke said that she was doing a programme with TAFE where she was attempting to qualify herself to teach in her area of expertise so as to teach enrolled nurses and a course in an Advanced Diploma of Nursing.

101. Dr Samuels’ report of 29 March 2018 following a consultation with Ms Clarke noted that she was pressured in speech, thought disordered, mildly disinhibited, and that it was difficult to get a coherent history from her. His opinions remain unchanged.

102. Ms Clarke did not seek to lead any evidence from Dr Dinnen to the contrary. Nor did she seek to give evidence herself to the Tribunal that might give the Tribunal some assurance that she would be mentally competent to teach nursing. The fact that she demonstrated the intellectual capacity to pass courses that might lead to a teaching qualification did not mean that the Tribunal was required to be satisfied that she had the necessary competence to carry out health education services.

103. The evidence before the Tribunal of those features, and the hypomanic, depressive, psychotic, and paranoid features she displayed, amply justified the Tribunal’s conclusion that she was not competent to provide teaching services.

104. It was open to the Tribunal to consider that as Ms Clarke was not competent to teach nursing there would be a substantial risk to the health of members of the public if she were permitted to teach student nurses or student enrolled nurses.

105. For these reasons Ms Clarke’s applications to appeal as of right and for leave to appeal from the orders of the Tribunal should be dismissed. Costs should follow the event.

106. We make the following orders:

1. In proceeding 2022/356036 the appeal be dismissed with costs.

2. In proceeding 2023/40167 the summons for leave to appeal be dismissed with costs.

**********

Amendments

07 February 2024 - Date of decision corrected

07 February 2024 - Case name corrected

Decision last updated: 07 February 2024