Nursing and Midwifery Board Of Australia and Guildford-Taylor

[2014] WASAT 24 (S)

NURSING AND MIDWIFERY BOARD OF AUSTRALIA and GUILDFORD-TAYLOR [2014] WASAT 24 (S)

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 24 (S)
Act:	HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
Case No:	VR:151/2013	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	JUDGE D R PARRY (DEPUTY PRESIDENT) DR B JONES (SESSIONAL MEMBER) MS K KEMP (SESSIONAL MEMBER)	Delivered:	17/06/14
No of pages:	20	Judgment Part:	1 of 1
Result:	Practitioner's registration as a registered health practitioner cancelled and practitioner disqualified from applying for registration as a registered health practitioner prior to 4 January 2018 Practitioner ordered to pay costs and disbursements assessed at $6,836
Category:	B
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Parties:	NURSING AND MIDWIFERY BOARD OF AUSTRALIA LISA GUILDFORD-TAYLOR
Catchwords:	Vocational regulation ­ Nurse ­ Professional misconduct ­ Impairment ­ Substance abuse or dependence ­ Practitioner impersonated a medical practitioner and provided a false medical history in order to procure insertion of a venous infusaport in circumstances where there was no clinical justification for one being inserted ­ Penalty ­ Lack of insight ­ Distress and damage to reputation ­ Costs
Legislation:	Health Practitioner Regulation National Law (Western Australia), s 5, s 5(c), s 156(1), s 196(2), s 196(4) Nurses Act 1992 (WA) State Administrative Tribunal Act 2004 (WA), s 60(2), s 61, s 62, s 62(3), s 62(4), s 87(2)
Case References:	Chan and The Nurses Board of Western Australia [2005] WASAT 115 Craig v Medical Board of South Australia (2001) 79 SASR 545 Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13.11.92) Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA) 194 Medical Board of Australia and Costley [2013] WASAT 2 Medical Board of Australia and Woollard [2012] WASAT 209 (S) Nursing and Midwifery Board of Australia and Guildford­Taylor [2014] WASAT 24 Nursing and Midwifery Board of Australia v Williams [2013] SAHPT 1
Orders	On the application determined on the documents by Deputy President, Judge Parry, Sessional Member Bronwyn Jones and Sessional Member Kerry Kemp on 17 June 2014, it is ordered that:,1. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Western Australia) (National Law) the practitioner is reprimanded.,2. Pursuant to s 196(2)(e) of the National Law the practitioner's registration is cancelled.,3. Pursuant to s 196(4) of the National Law the practitioner is disqualified from applying for registration as a registered health practitioner prior to 4 January 2018.,4. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) the practitioner must pay to the applicant its costs and disbursements of this proceeding assessed in the sum of $6,836 by 15 July 2014 or within such further period agreed by the applicant.
Summary	The Tribunal previously found that Ms Lisa Guildford­Taylor (practitioner), a registered health practitioner and specifically an Enrolled Nurse, behaved in a way that constitutes professional misconduct under the Health Practitioner Regulation National Law (Western Australia) (National Law) in that she:  (a) held herself out to be a medical practitioner, specifically an Oncology Registrar; and (b) provided a false medical history, ,in order to procure the insertion of a venous infusaport in circumstances where there was no clinical justification for one being inserted.  The Tribunal also previously found that the practitioner has an impairment, in terms of substance abuse or dependence, under the National Law.  The Tribunal was therefore required to consider the appropriate penalty and whether, and if so in what amount, a costs order should be made.,The Tribunal determined that the protection of the public, the need to maintain the high standards and good reputation of the profession of nursing, and the need to deter others who have an impairment, in terms of substance abuse or dependence, from similar misconduct, requires that the practitioner be reprimanded, her registration be cancelled, and that she be disqualified from applying for registration as a registered health practitioner for a period of five years from the date on which her registration was suspended by the Nursing and Midwifery Board of Australia.  The Tribunal observed that fraudulent, misleading and deceptive conduct by a health practitioner towards other health practitioners is not only utterly unacceptable in itself, but also undermines trust and confidence between health practitioners which is essential for proper patient care.  The Tribunal found that although the practitioner ultimately admitted responsibility and apologised for her conduct, she failed to demonstrate any real insight in relation to the seriousness of her wrongdoing.  The Tribunal acknowledged that media reporting of the conduct findings has been distressing to the practitioner and has damaged her reputation.  However, the Tribunal determined that this does not warrant or justify a lesser penalty, having regard to the objects of vocational disciplinary proceedings.,The Tribunal ordered the practitioner to pay the legal costs of the Nursing and Midwifery Board of Australia, but assessed the costs to be paid at approximately 67% of the amount sought by the Board and approximately 40% of the amount paid by the Board to its lawyers.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : NURSING AND MIDWIFERY BOARD OF AUSTRALIA and GUILDFORD-TAYLOR [2014] WASAT 24 (S) MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT)

DR B JONES (SESSIONAL MEMBER)
MS K KEMP (SESSIONAL MEMBER)

HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 17 JUNE 2014 FILE NO/S : VR 151 of 2013 BETWEEN : NURSING AND MIDWIFERY BOARD OF AUSTRALIA

Applicant

AND

LISA GUILDFORD-TAYLOR
Respondent

Catchwords:

Vocational regulation ­ Nurse ­ Professional misconduct ­ Impairment ­ Substance abuse or dependence ­ Practitioner impersonated a medical practitioner and provided a false medical history in order to procure insertion of a venous infusaport in circumstances where there was no clinical justification for one being inserted ­ Penalty ­ Lack of insight ­ Distress and damage to reputation ­ Costs

Legislation:

Health Practitioner Regulation National Law (Western Australia), s 5, s 5(c), s 156(1), s 196(2), s 196(4)

Nurses Act 1992 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2), s 61, s 62, s 62(3), s 62(4), s 87(2)

Result:

Practitioner's registration as a registered health practitioner cancelled and practitioner disqualified from applying for registration as a registered health practitioner prior to 4 January 2018

Practitioner ordered to pay costs and disbursements assessed at $6,836

Summary of Tribunal's decision:

The Tribunal previously found that Ms Lisa Guildford­Taylor (practitioner), a registered health practitioner and specifically an Enrolled Nurse, behaved in a way that constitutes professional misconduct under the Health Practitioner Regulation National Law (Western Australia) (National Law) in that she:

(a) held herself out to be a medical practitioner, specifically an Oncology Registrar; and
(b) provided a false medical history,

in order to procure the insertion of a venous infusaport in circumstances where there was no clinical justification for one being inserted. The Tribunal also previously found that the practitioner has an impairment, in terms of substance abuse or dependence, under the National Law. The Tribunal was therefore required to consider the appropriate penalty and whether, and if so in what amount, a costs order should be made.
The Tribunal determined that the protection of the public, the need to maintain the high standards and good reputation of the profession of nursing, and the need to deter others who have an impairment, in terms of substance abuse or dependence, from similar misconduct, requires that the practitioner be reprimanded, her registration be cancelled, and that she be disqualified from applying for registration as a registered health practitioner for a period of five years from the date on which her registration was suspended by the Nursing and Midwifery Board of Australia. The Tribunal observed that fraudulent, misleading and deceptive conduct by a health practitioner towards other health practitioners is not only utterly unacceptable in itself, but also undermines trust and confidence between health practitioners which is essential for proper patient care. The Tribunal found that although the practitioner ultimately admitted responsibility and apologised for her conduct, she failed to demonstrate any real insight in relation to the seriousness of her wrongdoing. The Tribunal acknowledged that media reporting of the conduct findings has been distressing to the practitioner and has damaged her reputation. However, the Tribunal determined that this does not warrant or justify a lesser penalty, having regard to the objects of vocational disciplinary proceedings.
The Tribunal ordered the practitioner to pay the legal costs of the Nursing and Midwifery Board of Australia, but assessed the costs to be paid at approximately 67% of the amount sought by the Board and approximately 40% of the amount paid by the Board to its lawyers.

Category: B

Representation:

Counsel:

Applicant : Mr H Quail with Mr DP Spencer
Respondent : In person

Solicitors:

Applicant : Australian Health Practitioner Regulation Agency
Respondent : N/A

Case(s) referred to in decision(s):

Chan and The Nurses Board of Western Australia [2005] WASAT 115
Craig v Medical Board of South Australia (2001) 79 SASR 545
Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13.11.92)
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA) 194
Medical Board of Australia and Costley [2013] WASAT 2
Medical Board of Australia and Woollard [2012] WASAT 209 (S)
Nursing and Midwifery Board of Australia and Guildford­Taylor [2014] WASAT 24
Nursing and Midwifery Board of Australia v Williams [2013] SAHPT 1

REASONS FOR DECISION OF THE TRIBUNAL:

Findings of professional misconduct and impairment

1 On 25 February 2014, the Tribunal found that, during the period 13 November 2012 to 13 December 2012, Ms Lisa Guildford­Taylor (practitioner), a registered health practitioner and specifically an Enrolled Nurse, behaved in a way that constitutes professional misconduct under the Health Practitioner Regulation National Law (Western Australia) (National Law) in that she:

a) held herself out to be a medical practitioner, specifically an Oncology Registrar; and

b) provided a false medical history,

in order to procure the insertion of a venous infusaport in circumstances where there was no clinical justification for one being inserted: see Nursing and Midwifery Board of Australia and Guildford­Taylor [2014] WASAT 24 (conduct reasons).

2 In particular, the Tribunal found that the practitioner's conduct is 'inconsistent with the practitioner being a fit and proper person to hold registration in the profession' of nursing, within the meaning of paragraph (c) of the inclusive definition of the term 'professional misconduct' in s 5 of the National Law. The Tribunal said the following at [37] of the conduct reasons:

… The practitioner engaged in fraudulent and misleading conduct in her dealings with fellow health practitioners. She brazenly impersonated an Oncology Registrar in her text messages to Dr Makin on two separate occasions. She used medical knowledge, language and terminology in a calculated manner in order to mislead Dr Makin into thinking that she was a medical practitioner seeking an urgent procedure for his or her patient. The practitioner also provided a false medical history of breast cancer, both to Dr Makin on 22 November 2012 and when she was readmitted to St John of God Hospital, Murdoch on 11 December 2012 complaining of fever. In this respect also, the practitioner knowingly deceived fellow health practitioners on two separate occasions.

3 The Tribunal also found that, even if the practitioner's conduct is not 'inconsistent with the practitioner being a fit and proper person to hold registration in the profession' of nursing under paragraph (c) of the definition of 'professional misconduct' in s 5 of the National Law, it nevertheless constitutes 'professional misconduct' within the meaning of the National Law for the following reasons given at [40] of the conduct reasons:

Although the practitioner's conduct was not concerned with her work as a nurse and did not involve any patient, other than herself, there was a sufficient nexus with her profession as a nurse. Her fraudulent, misleading and deceptive conduct was directed towards her fellow health practitioners. It involved the use of medical knowledge, language and terminology to mislead fellow health practitioners, and in particular Dr Makin, to have surgery performed on her, namely the insertion of an infusaport, for which there was no clinical justification and which would not otherwise have occurred. Whether the practitioner's conduct falls within the examples of 'professional misconduct' set out in the definition of that term in s 5 of the National Law or not, it constitutes serious professional misconduct for the purposes of the National Law.

4 The Tribunal also found that the practitioner has an 'impairment', in terms of substance abuse or dependence, under the National Law.

5 The Tribunal directed the Nursing and Midwifery Board of Australia (Board), by 11 March 2014, to file and serve written submissions in relation to penalty and costs and supporting information in relation to costs to enable the Tribunal to assess costs (if an order for the payment by the practitioner of the Board's costs of the proceeding is made) and directed the practitioner, by 25 March 2014, to file and serve written submissions in relation to penalty and costs and any character references on which she relies. The Tribunal also ordered that, subject to any further order, the issues of penalty and costs are to be determined entirely on the documents under s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

6 As the Board's written submissions filed on 11 March 2014 sought an order for costs, but did not contain submissions or supporting information in relation to costs, and as the practitioner did not file any submissions in relation to penalty and costs, on 27 March 2014, the Tribunal directed the Board, by 1 April 2014, to file and serve submissions and supporting information in relation to costs and directed the practitioner, by 8 April 2014, to file and serve her written submissions in relation to penalty and costs and any character references on which she relies. The Board filed written submissions and supporting information in relation to costs on 2 April 2014 and the practitioner filed a written submission in relation to penalty on 1 April 2014. The practitioner did not provide any character references.

Legal framework and principles in relation to penalty

7 Under s 196(2) of the National Law, having found that the practitioner behaved in a way that constitutes professional misconduct and that she has an impairment, the Tribunal may decide to do one or more of the following:

(a) caution or reprimand the practitioner (s 196(2)(a));

(b) impose a condition on the practitioner's registration (s 196(2)(b));

(c) require the practitioner to pay a fine of no more than $30,000 to the Board (s 196(2)(c));

(d) cancel the practitioner's registration (s 196(2)(e)).

8 As noted at [31] of the conduct reasons, on 4 January 2013, the Board took 'immediate action' in relation to the practitioner under s 156(1) of the National Law by suspending her registration as a registered health practitioner. Consequently, although s 196(2)(d) of the National Law states that the Tribunal may decide to 'suspend the practitioner's registration for a specified period', it is not open in this case for the Tribunal to suspend a registration which is already suspended. However, the Tribunal may, if appropriate, cancel the practitioner's registration under s 196(2)(e) of the National Law, and if the Tribunal decides to cancel the practitioner's registration under the National Law, then s 196(4) of the National Law states that the Tribunal may also decide to disqualify the practitioner from applying for registration as a registered health practitioner for a specified period.

9 Section 196(2) of the National Law does not limit the types of conditions that the Tribunal may impose on the practitioner's registration. However, s 196(2)(b) of the National Law provides the following examples of conditions that may be imposed where appropriate:

…

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or

(iv) a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons[.]

10 It is well recognised that vocational disciplinary proceedings have three principal objects, namely:

(1) the protection of the public 'from delinquents and wrong­doers within professions' and 'seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements';

(2) the 'need to maintain the high standards and good reputation of the profession generally in the eyes of the community'; and

(3) the 'need to deter others who may be of a like mind to transgress in the future'.

(Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13.11.92) at 141 (Owen J)).

11 Although the term 'penalty' is conventionally used to refer to the appropriate disciplinary consequence of vocational disciplinary proceedings, the penalty is not imposed to punish the practitioner for his or her wrongdoing, but rather to achieve the three principal objects of such proceedings. Indeed, 'sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration': Craig v Medical Board of South Australia (2001) 79 SASR 545 at [43] (Doyle CJ).

12 As the Tribunal said in Medical Board of Australia and Woollard [2012] WASAT 209 (S) (Woollard) at [35] in relation to the imposition of a penalty in vocational disciplinary proceedings:

A disciplinary tribunal necessarily exercises a broad discretion having regard to the particular circumstances of each case.

13 In Woollard at [35] the Tribunal also said the following with respect to the relevance of penalties imposed in other disciplinary proceedings:

In relation to the determination of an appropriate penalty in vocational disciplinary proceedings, great care needs to be taken when having regard to penalties imposed in other cases, although general principles can be observed and applied.

14 Having referred to this paragraph (and to a similar statement in Medical Board of Australia and Costley [2013] WASAT 2 (Costley) at [45]), the Tribunal held as follows in Nursing and Midwifery Board of Australia and Jackson [2013] WASAT 140 at [48]:

As noted by the Tribunal in Woollard at [35] and Costley at [45], although general principles can be observed and applied from other vocational disciplinary decisions and although it is in the public interest for there to be general consistency in penalties imposed for conduct of a particular character in such proceedings, particularly in the context of a national registration and disciplinary scheme, great care needs to be taken because of differences in factual circumstances. Ultimately, the appropriate disciplinary consequence of misconduct is to be determined having regard to what is necessary and appropriate to achieve the three principal objects of disciplinary proceedings referred to earlier in these reasons, in the particular circumstances of the case, including mitigating circumstances.

15 Finally, in Woollard the Tribunal said the following at [18]:

The question of whether a practitioner acknowledges and understands the nature of his or her error and has insight into the seriousness of the error is relevant to the question of penalty required for the protection of the public: Legal Profession Complaints Committee v Detata [2012] WASCA 214 at [64]; Legal Profession Complaints Committee and Detata [2011] WASAT 91 (S) at [12]; Medical Board of Western Australia and Wolman [2011] WASAT 69 (S) at [24].

Board's submissions

16 The Board submits that each of the three principal objects of vocational disciplinary proceedings set out earlier in these reasons are relevant in this matter.

17 Although the Board has been unable to locate 'any similar factual cases which may assist the Tribunal', it refers in its submissions to a recent decision of the Health Practitioners Tribunal of South Australia, in which there was a finding of professional misconduct against a nurse who acted dishonestly, and a decision of this Tribunal from 2005 which referred to the importance of health practitioners maintaining the trust and confidence of each other in order to be able to practise effectively in their profession.

18 In Nursing and Midwifery Board of Australia v Williams [2013] SAHPT 1, the Health Practitioners Tribunal of South Australia found that a nurse behaved in a way that constitutes professional misconduct under the National Law in circumstances where she falsely represented that she had a diploma in enrolled nursing in order to gain entry to a course, produced forged documentation and gave a false explanation to the Board and the Australian Health Practitioner Regulation Agency (AHPRA). The South Australian Tribunal found that the nurse 'was extremely remorseful and had admitted the conduct as laid in the complaint', apologised to AHPRA and to the Tribunal for her conduct, and was 'presently quite ill with a form of leukaemia' (at [24]). The South Australian Tribunal ordered that the practitioner be reprimanded, that her registration be cancelled, and that she be prohibited from reapplying for reregistration for a period of two years.

19 In Chan and The Nurses Board of Western Australia [2005] WASAT 115, the Tribunal dismissed an application for review of the decision of the former Nurses Board of Western Australia to refuse a nurse registration under the Nurses Act 1992 (WA). The practitioner in that case had been convicted on charges of stealing and fraud for which she was sentenced to imprisonment for nine years. At the time of the review, the nurse was on parole in the community. As part of its reasoning for finding that it was not appropriate for the nurse to be registered to practise as a nurse, the Tribunal said the following at [89]:

A nurse registered under the [Nurses Act 1992 (WA)], in the course of her or his profession, must be capable of establishing relationships of trust with patients, with other colleagues in the nursing profession, with employers operating hospitals and other institutions in which nurses work, and with a range of other professionals in the health and allied industries with whom a nurse necessarily must relate on a daily basis. It cannot be said with any degree of confidence that Ms Chan could presently enjoy the trust and confidence of any of these people falling in these classes in the light of her convictions in 2000.

20 The Board also submits, in effect, that the practitioner has failed to demonstrate insight, because she has not provided any explanation for her conduct beyond her letter to the Board received on 28 December 2012 (see conduct reasons at [29] ­ [30]), has not cooperated in a health assessment and has not demonstrated any remorse. The Board also notes that, until her email on 11 March 2014, the practitioner failed to participate in the proceeding before the Tribunal.

Practitioner's submissions

21 The practitioner's written submission filed on 1 April 2014 states as follows:

TO AHCPRA [sic] AND STATE TRIBUNAL WA [sic],

RE: Lisa Guildford-Taylor

I am once again writing to you to try and resolve the issue and allegations that have been made against me. I am sending this letter once again and asking that details about my medical history not be flaunted for the general public to see. I am also extremely distressed and disappointed that the results of several articles published in newspapers and on websites have resulted in several death threats being delivered directly to my home address, abusive phone calls and being physically attacked whilst walking home. This situation has caused distress, pain and suffering far beyond what i [sic] could ever explain and put into words to explain to you. My entire life has literally been turned upside down and i [sic] am unable to seek any assistance to deal with this. I do not have any support from anyone including the board and the other organisations involved. I have suffered and been punished long enough. I am keen to resolve this and move forward. Details regarding my private medical history have been twisted. I am in fear of my life and safety and this situation is still not resolved. Worst of all i [sic] have been made out to be a liar, cheat and fake. I have not been treated fairly at any stage of this enquiry.

I would also like to point out that due to these allegations i [sic] am being forced to go without pain relief for chronic pain issues and also my anticoagulant medications which i [sic] have been told previously are vital and a lifelong necessity. Due to these accusations i [sic] cannot obtain prescriptions for previously used and required medications. The impact of these allegations upon my life are detrimental, distressing and extremely dangerous. Not too [sic] mention i [sic] am in an extreme amount of physical pain, and feel as a human being i [sic] am entitled to basics such as pain relief.

I hope you can partially understand what it is like to be in my shoes currently, to have no support personally or professionally and many of the details in this case that have been published have been mis communicated [sic] and plainly untrue.

I have made it abundantly clear that I am fully admitting responsibility. I do however feel that it is not being viewed from my perspective and the explanation I have supplied has not even been taken into consideration when trying to resolve this. Ultimately I feel that it was a massive mis communication [sic] on both my part, the doctors involved and the advice that I had recieved [sic] from the on call doctors when I presented asking for help at the emergency department. I am fully aware that the way in which I handled these things which again after the lack of communication & pure frustration whilst I was trying to resolve the problem.

I have made.[sic] [s]everal changes to the way that I deal with my health issues as a result of learning this very painful lesson. I have spent several months undergoing intensive counselling and assistance and feel that I have a good hold on what caused this issue, why it happened and the ways in which I can prevent it from happening in the future. I have suffered extensive nightmares and still continue to face the consequences of this which again I feel was a mis communications [sic]/lack of support theough [sic] the medical system and poor choice made by myself. I do not feel that both the board and the doctor involved handled this case appropriately and as a result I now suffer extreme distress and recurrent nightmares. There has been several times I have been unable to necessary seek medical attention due to the poor treatment & having been 'black marked''. I was shouted at, spoken to extremely rudely and sent home with massive sepsis. i [sic] was also threatened that unless i [sic] ''came up with some money'' then i [sic] would not be treated. I am certain that this is not professional nor appropriate given the circumstances. I have suffered enough. My career, personal life and physical and emotional health has all been affected. Whilst I am now able to deal with this more than sufficiently to continue working, studying and being a productive member of society the traumatic experiences in the past will always be traumatic.

I would however still like to take this opportunity to apologise for the part that I admittedly played in this incident to both the doctor involved and hospital aswel [sic] as the APRHA [sic] & tribunal for having to deal with this.

I would be willing to undertake any conditions set by the board and[/]or tribunal in relations [sic] to my registration and would value your input in relation to preventing this from happening again and how I can resume practicing [sic] in the least restrictive way possible. I have already suffered serious financial hardship and personal hardship as a result of not being able to work. My reputation has been tarnished with further false accusations made which have since been found to hold no merit. I would ask that you consider the serious implications already made. I am also willing to undergo a formal medical assessment previously requested by the board should that be necessary and I ask that again a female doctor be provided.

I do hope that this matter can be resolved as quickly as possible and once again i [sic] do apologise sincerely to the board, tribunal and to the doctor involved for inappropriate actions on my part.

I am keen for this to be resolved as soon as possible without any further damage to my reputation or health and career. I have suffered emotionally, physically and financially more than enough and im [sic] sure more than the board, the doctor involved and anyone else will ever know.

Kind regards,

Yours truly,

[Signature]

Lisa Guildford­Taylor

P.S.

I hope that you will also consider the fact that confidential medical details have been released. This is extremely unfair and also illegal. I am a human being who has the right to confidentiality where my medical history is concerned.

Appropriate penalty

22 In our view, the protection of the public, the need to maintain the high standards and good reputation of the profession of nursing, and the need to deter others who have an impairment, in terms of substance abuse or dependence, from similar misconduct, requires that the practitioner be reprimanded, her registration be cancelled, and that she be disqualified from applying for registration as a registered health practitioner for a period of five years from the date on which her registration was suspended by the Board.

23 As we found in the conduct reasons at [40], the practitioner's conduct 'constitutes serious professional misconduct for the purposes of the National Law'. At [37] of the conduct reasons, we found that the practitioner:

• 'engaged in fraudulent and misleading conduct in her dealings with fellow health practitioners';

• 'brazenly impersonated an Oncology Registrar in her text messages to Dr Makin on two separate occasions';

• 'used medical knowledge, language and terminology in a calculated manner in order to mislead Dr Makin into thinking that she was a medical practitioner seeking an urgent procedure for his or her patient'; and

• 'provided a false medical history of breast cancer … [and in] this respect also … knowingly deceived fellow health practitioners on two separate occasions'.

24 Furthermore, we found at [38] of the conduct reasons that the practitioner 'must have been aware that her fraudulent, misleading and deceptive conduct would potentially compromise fellow health practitioners', including not only Dr Makin, but also other nurses who were involved in the practitioner's admission to, and procedure at, St John of God Hospital, Murdoch.

25 The penalty should be sufficient to clearly demonstrate to the consumers of health services, the practitioner, the nursing profession and the community generally how fundamentally unacceptable fraudulent, misleading and deceptive conduct by a health practitioner towards other health practitioners is. Such conduct is not only utterly unacceptable in itself, but also undermines trust and confidence between health practitioners which is essential for proper patient care. Moreover, as the practitioner knowingly misled fellow health practitioners on a number of occasions, she would not presently have the necessary trust and confidence of health practitioners and could not therefore effectively practise as a nurse.

26 Significantly, also, the practitioner's misconduct did not involve merely a single instance or incident, but rather was repeated and sustained over a period of time. It involved impersonating a doctor in two separate text messages on 13 and 15 November 2012 and providing a false medical history on two separate occasions on 22 November 2012 and 11 December 2012.

27 The appropriate penalty should also reflect the Tribunal's finding that the practitioner's conduct is inconsistent with her being a fit and proper person to hold registration in the profession of nursing. This requires, in addition to a reprimand, cancellation of the practitioner's registration and disqualification from applying for registration as a registered health practitioner for a substantial period.

28 It appears that the practitioner's fraudulent, misleading and deceptive conduct was related to her impairment, in terms of substance abuse or dependence. The practitioner's impairment cannot justify or excuse her professional misconduct. However, the practitioner's impairment forms part of the context in which her professional misconduct took place, and is relevant to the determination of the appropriate penalty. Had it not been for the practitioner's impairment, a more substantial period of disqualification would have been imposed for her professional misconduct.

29 In relation to acknowledgement and understanding of her conduct, although the practitioner says in her written submission that 'I am fully admitting responsibility' and 'once again i [sic] do apologise sincerely to the board, tribunal and to the doctor involved for inappropriate actions on my part', she has failed to demonstrate any real insight in relation to the seriousness of her wrongdoing.

30 The practitioner says that she feels 'that it is not being viewed from my perspective and the explanation I have supplied has not even been taken into consideration when trying to resolve this'. However, prior to her submission filed on 1 April 2014, the practitioner had not admitted responsibility and has never provided any real explanation for the misconduct. As we said at [29] of the conduct reasons, in the practitioner's letter received by AHPRA on 28 December 2012, she 'did not specifically respond to or deny the issues identified in AHPRA's letter'.

31 Furthermore, in her written submission, the practitioner seeks to characterise and down play her conduct as 'a massive mis communication', rather than recognising it as fraudulent, misleading and deceptive conduct, as characterised in the conduct reasons. She also seeks to blame others. The practitioner says in her written submission that the 'mis communication' was 'on both my part, the doctors involved and the advice that I had received from the on call doctors when I presented asking for help at the emergency department'. She also blames a 'lack of support theough [sic] the medical system' and says that:

I do not feel that both the board and the doctor involved handled this case appropriately and as a result I now suffer extreme distress and recurrent nightmares.

32 Although the practitioner says in her submission that she would be 'willing to undertake any conditions set by the board and[/]or tribunal in relations [sic] to my registration' so that she can return to practise as a nurse, in our view, at this stage, the imposition of conditions would not be sufficient to protect the public and nor would it sufficiently maintain the standards and reputation of the profession or deter others. No doubt, if the practitioner seeks registration after the period of disqualification, and if she is granted registration by the Board, appropriate conditions would be imposed.

33 The practitioner also says ­ and it is no doubt the case ­ that 'I have already suffered serious financial hardship and personal hardship as a result of not being able to work'. However, this hardship is a direct consequence of the practitioner's serious professional misconduct. It does not relevantly warrant or justify a lesser penalty than that referred to earlier.

34 Finally, the practitioner says ­ and it is no doubt the case ­ that media reporting of the findings in the conduct reasons has been extremely distressing to her and has damaged her reputation. However, the practitioner's distress and the damage to her reputation as a result of the media coverage does not warrant or justify a lesser penalty, having regard to the objects that vocational disciplinary proceedings are intended to serve.

Costs

35 In its submissions on penalty filed on 11 March 2014, the Board sought an order that the practitioner pay its costs 'in the amount of $17,000, or otherwise to be assessed'. However, the Board did not make any submissions in support of this application. In its submissions on costs filed on 2 April 2014, the Board submits that 'the appropriate order in this case is that the [practitioner] pays not less than 60% of the [Board's] costs of these proceedings, being $10,126.05'. However, the Board did not explain the basis or logic of seeking an order for 60% of its costs.

36 The Board has provided a detailed schedule itemising 61.75 hours of work by solicitors in relation to this proceeding at a rate of generally $119 per hour. The total amount claimed by the Board for solicitors' costs is $4,941.76. The Board has also provided a schedule of counsel's fees in relation to this proceeding totalling $11,935, including disbursements and GST. The schedule refers to two days for consideration of the brief, preliminary advice and preparation for hearing, including written submissions and research, at a rate of $3,500 per day, one day brief on hearing fee of $2,000, and 4.5 hours for preparation of penalty submissions and research at a rate of $440 per hour. The Board submits that it was 'entitled and appropriate to brief counsel on the basis that the matter had both factual and legal complexity and was also serious in terms of the gravity of the conduct that was alleged'.

37 The Tribunal's approach and practice in relation to costs in vocational disciplinary proceedings and in relation to the assessment of costs was summarised in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA) 194 at [51] and [53], respectively, in terms endorsed in Woollard at [40] ­ [56] and in Costley at [63] ­ [71], as follows:

Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party. The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented': Roberman at [30]

…

In relation to the amount or quantum of costs, the Tribunal's usual practice is to determine the amount of work which was reasonable and necessary to properly prepare and present the case and then to apply, as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant hourly or daily rate specified in the Legal Practitioners (State Administrative Tribunal) Determination 2010 (Determination): J&PMetals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [9] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [35] ­ [36] and [47] ­ [48]. The Determination prescribes the maximum amounts which can be charged without a written agreement as to costs with a client under s 282 of the LP Act. The Legal Costs Committee has not prescribed a scale of costs for the Tribunal in respect of party/party costs, because the Legal Costs Committee has recognised that 'the overriding philosophy of the Tribunal, as expressed through its enabling legislation, is that parties appearing before the Tribunal are to bear their own costs of proceedings': Legal Practitioners (State Administrative Tribunal) Report 2010 (WA) para 3b. The Determination is, therefore, not binding in the present case, but rather, is to be used as a guide as to the maximum rates which might be allowed on a party/party basis.

38 In Woollard the Tribunal observed at [50] ­ [51] as follows:

The Tribunal's main objectives stated in s 9 of the SAT Act include to 'minimise the costs to parties'. As the Tribunal said in J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242 at [38]:

… [T]he Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach a proceeding in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order.

The Tribunal assesses costs 'in a relatively robust fashion', consistently with its statutory objectives: Marvell Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49]; see, for example, Law and Town of Vincent [2006] WASAT 263 (S). Generally speaking, 'any award should be approached in a broad fashion and should not have to descend into [an] inquiry into small items of expenditure': Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302; (2008) 60 SR (WA) 194 at [67].

39 After quoting the passages from in de Braekt and Woollard set out above, in Costley it was observed and held as follows at [66]:

The approach by the Board to the assessment of costs is to look at what has been charged by its solicitors and counsel, and to apply a reduction in the amount sought to be recovered in relation to solicitors' costs. Other than that, in its submissions, the Board suggests that the reduction takes account of any excess in the charge rates over that that might be permitted under the Legal Practitioners (State Administrative Tribunal) Determination 2010 on a solicitor/client basis, and any potential double recovery of GST, the basis for the reduction is not clear. In our view, in matters of this nature, the preferable approach is not to look at what has actually been charged to the client, but rather what reasonable allowance should be made, taking a robust and broad brush approach, for the work necessarily done to bring the proceedings to a conclusion. That is the approach taken by the Tribunal in Woollard, and, with respect, we consider it a sound basis to approach the assessment of the quantum of costs in vocational matters. It is important that the policy behind the practice of the Tribunal in relation to costs in vocational regulatory matters does not lead to excessive and crushing costs claims beyond what a practitioner might reasonably expect to have to meet if the application against him or her is ultimately successful.

40 The approach by the Board to the assessment of costs in this case is similar to the approach of the Medical Board of Australia in Costley. In its submissions on costs, the Board has referred to what has been charged to it by its solicitors and counsel and has applied a 40% reduction to those amounts. As in Costley, 'the basis for the reduction is not clear' ([66]).

41 There is no reason why, in the circumstances of this case, the Tribunal should depart from its usual practice in relation to costs in vocational disciplinary proceedings where the vocational disciplinary body is successful in obtaining a finding of misconduct. An order for the payment of costs should therefore be made against the practitioner.

42 However, having regard to the Tribunal's objective to minimise costs to parties, the practitioner should not be required to compensate the Board for 61.75 hours of solicitors' time (equivalent to approximately one and a half weeks of work for a single practitioner working a 40 hour week), even at a rate of $119 per hour. While this hourly rate is reasonable, for the purposes of a costs assessment in this Tribunal, in our view, 61.75 hours of solicitors' time was not reasonable and necessary to properly prepare and present the case, having regard to the complexity of the matter, the number of issues, the documentary evidence, the fact that there was only one witness whose statement had to be prepared, and the length of the hearing. Furthermore, although we agree that it was reasonable for the Board to brief counsel, the number of hours spent by counsel in relation to this proceeding was not, for the purposes of a costs assessment in this Tribunal, in our view, reasonable and necessary to properly prepare and present the case, having regard to the same factors.

43 For the purposes of the costs assessment in this case, we consider that the following approximate number of hours of solicitors' time would have been reasonable to properly prepare and present the case:

Expenditure Item	Number of hours
Preparation and filing of application	3 hours
Preparation for and attendance at three directions hearings	6 hours
Obtaining documents from third parties and preparation of witness statement of Dr Makin	6 hours
Brief to and conference with counsel	3 hours
Preparation of book of documents for hearing	1 hour
Preparation for and attendance at hearing (the hearing took less than one hour)	3 hours
Preparation of penalty and costs submissions	3 hours
TOTAL:	25 hours

44 The rate of $119 per hour claimed by the Board is reasonable. Twenty five hours at a rate of $119 per hour equates to $2,975.

45 We agree that it was reasonable for the Board to brief counsel in this case, given the potential complexity of the case and the gravity of the conduct involved. We consider that, having regard to the work performed by the Board's solicitors, it is reasonable to allow costs for counsel's fees at eight hours for conferences, settling documents and preparation for hearing, three hours for attending the hearing (which took less than an hour) and two hours for settling submissions on penalty and costs. Using the hourly rate of $297 for counsel in the Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA) as a guide, a reasonable amount for counsel's fees for the purposes of costs assessment in the Tribunal in the circumstances of this case is $3,861.

46 The total amount of costs as assessed is, therefore, $6,836.

47 The practitioner should be ordered to pay the Board's costs of this proceeding assessed in the sum of $6,836.

Conclusion

48 We consider that the appropriate vocational disciplinary consequence of our findings that the practitioner behaved in a way that constitutes professional misconduct and has an impairment, in terms of substance abuse or dependence, is that:

a) the practitioner be reprimanded;

b) the practitioner's registration be cancelled; and

c) the practitioner be disqualified from applying for registration as a registered health practitioner prior to 4 January 2018, being five years from the suspension of her registration by the Board.

49 The practitioner should also be ordered to pay the Board's costs and disbursements of this proceeding assessed in the amount of $6,836.

Orders

50 The Tribunal makes the following orders:

1. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Western Australia) (National Law) the practitioner is reprimanded.

2. Pursuant to s 196(2)(e) of the National Law the practitioner's registration is cancelled.

3. Pursuant to s 196(4) of the National Law the practitioner is disqualified from applying for registration as a registered health practitioner prior to 4 January 2018.

4. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) the practitioner must pay to the applicant its costs and disbursements of this proceeding assessed in the sum of $6,836 by 15 July 2014 or within such further period agreed by the applicant.

I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE D R PARRY, DEPUTY PRESIDENT