25 Dr Makin subsequently removed the practitioner's infusaport and she was transferred to Fremantle Hospital for treatment for bacteraemia. 26 On 14 December 2012, the practitioner was placed under psychiatric care at Fremantle Hospital. On 15 December 2012, the practitioner discharged herself from Fremantle Hospital against medical advice.
27 On 20 December 2012, the Director Medical Services of St John of God Hospital, Murdoch notified the Australian Health Practitioner Regulation Agency (AHPRA) of concerns regarding the behaviour of the practitioner. On 21 December 2012, the Board's Western Australia Immediate Action Committee (Committee) decided to investigate the practitioner's health and conduct under s 160 of the National Law. On that day, AHPRA wrote to the practitioner advising her of the notification raising concerns about her behaviour, enclosing a copy of the notification and requiring her to provide a response to the issues identified in the letter and any supporting documentation by 27 December 2012. The issues identified in AHPRA's letter dated 21 December 2012 were as follows:
1 Masquerading as medical practitioner: It is alleged that you masqueraded as a medical practitioner in order to procure an infusaport from Dr Greg Makin. 2 Fabricating medical history: It is alleged that, on 11 December 2012, you presented to St John of God Hospital, Murdoch and fabricated some or all of your medical history in order to receive further medical investigation and treatment.
3 Procuring central venous access devices: It is alleged that, on at least three occasions, you have procured central venous access devices for the purposes of illegal drug administration from Dr Makin.
28 The letter from AHPRA to the practitioner dated 21 December 2012 also advised her that, on that day, the Committee formed the belief that a health issue may be impacting on the practitioner's capacity to practise safely and required her to undergo a health assessment under s 169 of the National Law. 29 On 28 December 2012, AHPRA received an undated letter from the practitioner in which she stated that she was 'utterly appalled, disgusted and upset that these allegations have occurred especially when my professional conducts [sic] and practice is being questioned'. The practitioner said that she had 'not engaged in long term full time employment as a nurse since graduating in 2010 given my health issues and the feeling I felt unable to successfully and adequately complete my duties as an Enrolled Nurse until my health was at a more manageable level'. The practitioner said that she had never requested Schedule 8 medications from emergency departments, walkin clinics or other general practitioners and had 'on occasion most normally postoperatively been given these medications but on a few occasions returned largely un opened/used packets to pharmacies for correct disposals'. However, the practitioner did not specifically respond to or deny the issues identified in AHPRA's letter.
30 In the practitioner's undated letter received by AHPRA on 28 December 2012, she said that she was 'in the process of obtaining any medical confirmation I am able to do so that may assist with the investigations' and that 'I am more than willing to undergo a medical examination as requested …'. However, the practitioner failed to attend a health assessment as required by the Committee at that time or subsequently.
31 On 4 January 2013, the Board took 'immediate action' in relation to the practitioner under s 156(1) of the National Law by suspending the practitioner's registration as a registered health practitioner. Section 156(1)(a) of the National Law enables the Board to take such immediate action if it:
… reasonably believes that (i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety;
Issues for determination 32 The following two issues arise for determination:
33 We will address each of these issues in turn.Has the practitioner behaved in a way that constitutes professional misconduct or unprofessional conduct?
34 The facts set out and found above demonstrate that the practitioner has behaved in a way that constitutes professional misconduct under the National Law.
35 Section 5 of the National Law contains the following definition of 'professional misconduct' for the purpose of the National Law:
professional misconduct, of a registered health practitioner, includes
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession; (Emphasis added).
36 In Nursing and Midwifery Board of Australia and Jackson [2013] WASAT 140, the Tribunal held at [20] as follows:
It is apparent from the word 'includes' in this definition that the intention of the legislation is that the three paragraphs that follow are simply examples of 'professional misconduct' for the purposes of the National Law and are not an exhaustive statement of that term. Thus, 'professional misconduct' under the National Law can include professional misconduct which does not fall within any of the paragraphs in the definition of that term, for example, conduct which was characterised as professional misconduct or equivalent under earlier vocational disciplinary legislation. Furthermore, as is apparent from the example of professional misconduct in the third paragraph of the definition ('… whether occurring in connection with the practice of the health practitioner's profession or not …') and from cases under disciplinary legislation prior to the National Law, 'professional misconduct' can include conduct in a practitioner's personal life where there is a sufficient nexus with the practitioner's profession: see Hoile v The Medical Board of South Australia (1960) 104 CLR 157. …
37 In our view, the practitioner's conduct revealed in the facts set out and found earlier is 'inconsistent with the practitioner being a fit and proper person to hold registration in the profession' of nursing, and we therefore find that the practitioner has behaved in a way that constitutes 'professional misconduct' within paragraph (c) of the definition of that term in s 5 of the National Law. 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. 38 Furthermore, the practitioner must have been aware that her fraudulent, misleading and deceptive conduct would potentially compromise fellow health practitioners. These included not only Dr Makin, who as a result of the practitioner's false representations performed surgery on her, but also other nurses who were involved in her admission to, and procedure at, St John of God Hospital, Murdoch.
39 However, in our view, 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.
40 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.
41 Finally, although we find below that the practitioner has an impairment, we do not consider that, in the circumstances of this case, the impairment has the consequence that the practitioner's conduct is not inconsistent with her being a fit and proper person to hold registration in the profession of nursing or that she has not otherwise behaved in a way that constitutes professional misconduct for the purposes of the National Law. This is because her conduct was brazen, calculated, deceptive, devious and repeated.
42 We therefore decide under s 196(1)(b)(iii) of the National Law that the practitioner has behaved in a way that constitutes professional misconduct.
Does the practitioner have an impairment?
43 The Tribunal has power under s 196(1)(b) of the National Law to make 'one or more' of the decisions enumerated in that provision. The facts set out and found above demonstrate not only that the practitioner has behaved in way that constitutes professional misconduct under the National Law, but also that the practitioner has an impairment, in terms of substance abuse or dependence, under the National Law.
44 Section 5 of the National Law contains the following exhaustive definition of 'impairment' for the purposes of the National Law:
impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect
(a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; …
45 There is no medical, psychiatric or psychological evidence before the Tribunal showing that the practitioner has an 'impairment'. However, in the circumstances of this case, there is cogent evidence and the Tribunal feels an actual persuasion that the practitioner has an impairment in terms of substance abuse or dependence and we therefore find on a balance of probabilities and applying the Briginshaw approach that the practitioner has an impairment in terms of substance abuse or dependence. We have come to this view for the following three reasons. 46 First, the practitioner admitted to Dr Makin that she uses intravenous Phenergan from multiple after hours general practitioners and has used venous infusaports to inject herself with crushed and dissolved Phenergan tablets.
47 Secondly, there is no logical explanation for the practitioner's fraudulent, misleading and deceptive conduct in impersonating a medical practitioner and in giving a false medical history in order to procure the insertion of a venous infusaport, where there was no clinical justification for one being inserted, other than that she has an impairment in terms of substance abuse or dependence and procured the insertion of the infusaport to take drugs.
48 Thirdly, the evidence of Dr Makin of what he observed when he examined the practitioner on 22 November 2012 (see [16] above) shows that the practitioner had had at least three venous infusaports inserted (although, contrary to the third issue identified in AHPRA's letter to the practitioner dated 21 December 2012, Dr Makin only inserted one of the infusaports). The evidence of Dr Makin also shows that there was no clinical justification for the infusaports to be inserted. The evidence therefore demonstrates a course of conduct and long term substance abuse or dependence on the part of the practitioner.
49 Furthermore, use of intravenous Phenergan and injection of crushed and dissolved Phenergan would plainly affect a registered health practitioner's capacity to practise the profession of nursing.
50 We therefore decide under s 196(1)(b)(iv) of the National Law that the practitioner has an impairment.
Conclusion
51 After hearing the matter about the practitioner referred by the Board to the Tribunal, the Tribunal has decided:
(a) under s 196(1)(b)(iii) of the National Law that the practitioner has behaved in a way that constitutes professional misconduct under the National Law; and (b) under s 196(1)(b)(iv) of the National Law that the practitioner has an impairment under the National Law.
52 The matter should now proceed to the determination of the appropriate disciplinary consequence of the Tribunal's decisions that the practitioner has behaved in a way that constitutes professional misconduct and has an impairment and the Board's application that the practitioner should pay its costs of the proceeding under s 87(2) of the SAT Act. Subject to any further order, the issues of penalty and costs should be determined entirely on the documents, under s 60(2) of the SAT Act, after the parties have had the opportunity to file and exchange written submissions.Orders
53 The Tribunal makes the following orders:
1. During the period 13 November 2012 to 13 December 2012, Ms Lisa GuildfordTaylor (practitioner) 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.
2. The practitioner has an impairment under the National Law in terms of substance abuse or dependence. 3. By 11 March 2014, the applicant must 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 applicant's costs of the proceeding is made.
4. By 25 March 2014, the practitioner must file and serve written submissions in relation to penalty and costs and any character references on which she relies.
5. By 1 April 2014, the applicant may file and, if so, must serve any written submissions in reply and must advise the Tribunal and the practitioner whether the author of any character reference filed by the practitioner is required for crossexamination.
6. 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).
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal. ___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT