Nursing and Midwifery Board of Australia v Nurse DZ (Occupational Discipline)
[2015] ACAT 93
•24 December 2015 and 11 February 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NURSING AND MIDWIFERY BOARD OF AUSTRALIA v NURSE DZ (Occupational Discipline) [2015] ACAT 93
OR 15/33
Catchwords: OCCUPATIONAL DISCIPLINE – health practitioner regulation – nurse – accessed medical documents of patients without their consent and not in course of treatment of patients – whether single or multiple instances of access - whether professional misconduct or unprofessional conduct – conduct admitted – reprimand - conditions imposed on registration – non-publication of identity of respondent
Legislation cited: Health Practitioner Regulation National Law (ACT) Act 2010 s 8
Health Practitioner Regulation National Law (ACT) ss 5, 39, 41, 193, 196
Health Records (Privacy and Access) Act 1997 s 6 and
Sch 1, Privacy Principles 6, 9 and 10
ACT Civil and Administrative Tribunal Act 2008 ss 38,39
Cases cited:Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
Bernadt v Medical Board ofAustralia [2013] WASCA 259
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Psychology Board of Australia v Fox (No 2) [2015] ACAT 25
Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135
Health Care Complaints Commission v Dr A [2012] NSWMT 10
BCS v Dental Council of NSW (No 2) [2016] NSWCATOD 9
Clyne v NSW Bar Association (1960) 104 CLR 186
Law Society of NSW v Foreman (1994) 34 NSWLR 408
Texts/Papers cited: Code of Ethics for Nurses, Nursing and Midwifery Board of Australia (2013)
Code of Professional Conduct, Nursing and Midwifery Board of Australia (2015)
Tribunal: Senior Member R Creyke (Presiding)
Senior Member B Meagher SC
Member L Williams
Date of Orders: 24 December 2015 and 11 February 2016
Date of Reasons for Decision: 24 December 2015 and 11 February 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL OR 33 of 2015
BETWEEN:
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND:
NURSE DZ
Respondent
TRIBUNAL: Senior Member R Creyke (Presiding Member)
Senior Member B Meagher SC
Member L Williams
DATE:11 February 2016
ORDERS
1.The publication of evidence given at the hearing of this application, or of matters contained in documents filed with the tribunal, or received in evidence by the tribunal for the hearing, that identifies or tends to identify the respondent’s stepchildren or the respondent, including publication of their names, is prohibited.
-------------------------------------
Senior Member R. Creyke for and on behalf of the Tribunal
-
ACT CIVIL & ADMINISTRATIVE TRIBUNAL OR 33 of 2015
BETWEEN:
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND:
NURSE DZ
Respondent
TRIBUNAL: Senior Member R Creyke (Presiding Member)
Senior Member B Meagher SC
Member L Williams
DATE:24 December 2015
ORDERS
The Tribunal decides under section 196(1)(b)(ii) of the Health Practitioner Regulation National Law (ACT) (the National Law) that the respondent has behaved in a manner that constitutes unprofessional conduct and further decides that:
Under section 196(2)(a) of the National Law the respondent is reprimanded.
Under section 196(2)(b) of the National Law the respondent’s registration as a registered nurse be subject to the following conditions:
(a)Within six months or such longer period as it requires, the respondent completes a Board-approved course (or courses if more than one is required) relating to the management of health records and/or privacy and access to health records. Completion of the course(s) is to be funded by the respondent.
(b)The respondent is to undertake mentoring with a Board-approved mentor who is in the same profession as the respondent but at a more senior level. The person chosen by the Board may be the mentor with whom the respondent already has an effective mentoring relationship.
(c)The mentoring program is to continue for not less than twelve months from the date the conditions are imposed. The mentor is to provide reports to the Board at four monthly intervals. Any costs associated with the mentoring program are to be funded by the respondent.
(d)The mentoring sessions are to cover the following areas:
i.Nursing and Midwifery Board of Australia Code of Ethics;
ii.Nursing and Midwifery Board of Australia Code of Professional Conduct;
iii.Nursing and Midwifery Board of Australia Competency Standards; and
iv.Nursing and Midwifery Board of Australia Decision Making Framework.
The application is otherwise adjourned so that the Tribunal can consider whether an order should be made for the non-publication of information that might identify the respondent’s step-children and consequently, the respondent (the non-publication issue).
The parties are directed to give the Tribunal and each other any submissions they wish to make about the non-publication issue by 29 January 2016.
The Tribunal will consider any submissions filed and make a decision in relation to the non-publication issue on the papers.
Sgd.
Ms L. Crebbin, General President
for and on behalf of the Tribunal
REASONS FOR DECISION
Note: The Tribunal made orders and provided them, together with the reasons for decision set out in paragraphs numbered 1 to 64 below, to the parties on 24 December 2015. Further submissions were sought so that the Tribunal could consider whether an order should be made for the non-publication of information that might identify the respondent’s step-children (the non-publication issue). The Tribunal’s order in relation to the non-publication issue was made on 11 February 2016 and is set out above. The reasons for the decision to make the non-publication order are set out in numbered paragraph 65 and following. Paragraphs 1 to 64 have been anonymised to give effect to the non-publication order but are otherwise in substance as provided to the parties on 24 December 2015.
This is an application by the Nursing and Midwifery Board of Australia (Board) following a referral to the Tribunal under section 193 of the Health Practitioner Regulation National Law (ACT) (National Law). A referral is required where the Board reasonably believes that a health practitioner has behaved in a way that constitutes professional misconduct. The ACT Civil and Administrative Tribunal is the entity to whom the matter is to be referred by virtue of section 8 of the Health Practitioner Regulation National Law (ACT) Act 2010, which applies the National Law in the ACT.
Section 196(1) of the National Law authorises the Tribunal to decide disciplinary matters for health practitioners. If the practitioner has a case to answer, the Tribunal may decide that the practitioner has behaved in a way that constitutes among other things, unsatisfactory professional performance, unprofessional conduct, or professional misconduct:
196Decision by responsible tribunal about registered health practitioner
(1)After hearing a matter about a registered health practitioner, a responsible tribunal may decide—
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b)one or more of the following—
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii)the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct;
(iv)the practitioner has an impairment;
(v)the practitioner’s registration was improperly obtained because the practitioner or someone else gave the National Board that registered the practitioner information or a document that was false or misleading in a material particular; or
The orders authorised by section 196(2) of the National Law, following a finding under section 196(1)(b), include reprimanding the practitioner and imposing a range of conditions on the registration of the practitioner. The powers conferred on the Tribunal under the National Law permit the Tribunal to make the orders sought in this matter.
In these reasons, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the members hearing this matter.
Background
The health practitioner, who is the respondent in this matter, is now a registered nurse (level 2). She worked as a nurse for some time before completing university studies in 2008, leading to her registration as an RN Level 1. She said that she has worked in nursing for over ten years and has been employed in a hospital since April 2011.[1]
[1] The applicant’s statement in support of an application for disciplinary action dated 7 August 2015 at page 55
The respondent has been in a relationship for some years. The respondent and her partner each have children from a previous relationship. Following the commencement of the relationship, all the children lived with them from time to time. The children of her partner have not lived with the couple for some time.
The respondent, in the course of her employment, became aware that two of her partner’s children were receiving treatment at the hospital. She accessed the health records of the children. This access led to disciplinary proceedings by her employer, to a notification to the Board, and ultimately to this referral to the tribunal.
Before the Tribunal, despite an order that they do so, the parties did not agree on a statement of the facts pertinent to this matter. However, at the hearing, the respondent agreed, with one exception, that the facts set out in the Board’s ‘Characterisation of respondent’s conduct’, at paragraphs 18-22 of its submission to the Tribunal of 16 October 2015, were a correct statement of relevant facts. The Tribunal is satisfied on the evidence that this concession was appropriate.
The Tribunal sets out the facts based on the submission. The facts have been edited for reasons of privacy, completeness and succinctness. They are:
(a)The respondent accessed the medical records of the children l without their consent.
(b)At the relevant time, the respondent was not treating either child.
(c)Due to her employment the respondent had access to the hospital’s record system.
(d)The respondent said her unauthorised access to the records was ‘to deal with the lack of information she and [her partner] had about the two children’.
(e)An employer’s internal investigation into the respondent’s conduct found that between 27 August 2013 and 21 March 2014, the respondent accessed 54 separate medical records relating to the children, on eight separate occasions.
(f)The respondent asserted at the employer’s internal investigation that she was aware of her obligations under the legislation and the need for confidentiality in relation to accessing information held in the records system.
(g)The access informed the respondent of sensitive personal health information about the children.
(h)The respondent disclosed some of that information to her partner.
The fact not agreed by the respondent was the characterisation of her access as being to 54 records on eight separate occasions. She submitted that the access, being for a single purpose, namely, to discover information about the children, was a single access, and did not comprise multiple accesses.
Additional facts which emerged from the written evidence and during the hearing which the Tribunal accepts as correct are:
(a)the respondent stopped accessing records relating to the two children in March 2014;
(b)the cessation occurred before the employer’s internal investigation commenced;
(c)the respondent had undertaken training in the appropriate use of the employer’s record system;
(d)following the internal investigation the employers most senior nurse, was appointed as a mentor to the respondent. This person attended the hearing at the Tribunal as a support person;
(e)mentoring occurs on an ‘as needs’ basis but took place approximately once every two months from the time of the mentor’s appointment following the employer’s investigation and is ongoing.
The draft final report of the employer’s investigation found that the respondent unlawfully accessed the records of one of the children 40 times between 27 August 2013 and 29 October 2013 and of the other child, 14 times between 27 August 2013 and 21 March 2014.
The report also found that on a number of occasions the respondent unlawfully disclosed the personal health information of the children to her partner.[2]
[2] Draft final report at page 10
The report recommended that the employer:
1.consider the report with a view to determining whether misconduct has occurred;
2. if relevant, determine an appropriate sanction; and
3. provide the practitioner with a copy of the report (less attachments).
The final outcome of the disciplinary process conducted by the employer was advised to the respondent. The report expressed the findings as follows:
To provide you with a first and final written warning. Any further proven breaches of unauthorised access to patient information will result in the termination of your employment ….
On 3 July 2014 a notification complaint concerning the respondent’s access to the health records of the two children was made to the Australian Health Practitioner Regulation Agency for the attention of the Nursing and Midwifery Board of Australia.
On 9 July 2014 the Board informed the respondent of the notification and of the Board’s intention to conduct an assessment to see whether further action was required. The respondent was invited to make a submission to the Board on or before 23 July 2014. The respondent provided a submission dated 18 July 2014.
On 21 August 2014 the assessment report was presented to the Board which decided to refer the matter to the tribunal under part 8, division 12 of the National Law.
In the interim, on 22 September 2014, the Board received the final report of the employer’s investigation.
On 26 November 2014, the respondent was invited to make final submissions, which were sent to the Board on 8 December 2014.
On 16 March 2015, the Board notified the respondent that it had decided on 6 February 2015 to refer the matter to the tribunal.
On 7 August 2015, the Board gave effect to its referral decision by lodging an application for disciplinary action with the tribunal.
Various directions were made requiring the parties to file documentary evidence and submissions. The hearing of the application took place on 13 November 2015. The applicant was represented by Ms Tarbet from the ACT Government Solicitor, while the respondent represented herself.
Submissions
In summary, the Board’s written submission dated 16 October 2015 was as follows:
(a)That the respondent’s conduct can be characterised as more than one instance of unprofessional conduct. When the instances are considered together they amount to ‘conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’ within the definition of professional misconduct in section 5 of the National Law.
(b)In accordance with section 39 of the National Law, the standards of conduct expected of a health practitioner registered to practice as a nurse are represented in the Code of Ethics for Nurses, Nursing and Midwifery Board of Australia (2013), the Code of Professional Conduct, Nursing and Midwifery Board of Australia (2015) (Codes), as well as the principles derived from the case law.
(c)Section 41 of the National Law states that the Codes are admissible as evidence of what constitutes appropriate professional conduct or practice for the relevant health profession, in this case the nursing profession.
(d)The standards evidenced by the Codes are supported by provisions in the Health Records (Privacy and Access) Act 1997 concerning the privacy of patients’ personal health information.
(e)The Board proposed disciplinary orders which not only sanctioned the conduct concerned, but were designed to protect the public by the maintenance of proper professional standards. In that context the Tribunal accepts that the two children of the respondent’s partner were members of the public.
(f)The submission also set out the details of the orders sought.
In summary, the respondent’s submission dated 22 September 2015 was as follows:
(a)She admitted the conduct was wrong, but emphasised that the access was not for personal gain but was out of concern for the two children and for her partner, in the absence of communication to her partner and herself from their mother about the welfare of the children.
(b)Following the employer’s investigation and report the respondent was instructed to, and had undertaken, a course on the Human Rights Act 2004, and studied various Codes and legislation governing access to personal health information, her employment obligations and her professional conduct obligations including the Code of Professional Conduct for Nurses, and the Code of Ethics for Nurses. These actions meant she was permitted to maintain her access to the employer’s record system.
(c)She reported to the mentor appointed for her on completion of each of these tasks.
(d)As a consequence of these actions, her deeper understanding of her obligations, and her personal reflections on her motivation for the inappropriate access, she sought consideration be given to decreasing the length of time for the conditions asked for by the Board.
(e)She maintained that her conduct did not meet the definition of professional misconduct in section 5 of the National Law, but at most should be characterised as unprofessional conduct as it fell below the standard expected of a health professional but was not ‘substantially below’ the standard expected.
(f)In particular, she submitted that there was only one instance of access, since the access was for a single purpose, the protection of the children. That meant there was no risk of her invading the privacy of the public generally since she sought information only about the children.
(g)She acknowledged her poor judgement, but said it was a personal, not a professional matter.
(h)She realised that her conduct was wrong and ceased accessing the records of her own accord and before the employer’s internal investigation.
Consideration
As, with one exception the facts are agreed, and the Tribunal decided this was an appropriate concession, the sole issues to be decided by the Tribunal were:
(a)how to characterise the conduct involved in the unauthorised access of records; and
(b)what were appropriate orders.
Characterisation
The Board submitted that:
(a)Individuals all have a reasonable expectation of privacy in their lives’.
(b)They need ‘to be able to control the narrative of their lives, to be able to control what other people know about their life.
(c)That need ‘is particularly acute in a health care setting because people aren’t there necessarily voluntarily … and so they’re forced to give personal health information in a context where they might not want to, but because it can facilitate their health care’.
(d)The consequence is ‘a higher expectation for patients … that information they give in circumstances often beyond their control isn’t used for a purpose other than that for which it is given’.[3]
(e)The reason the Board ‘has adopted such a rigorous standard in its code of ethics and its code of professional conduct, [is[because of that … inherent vulnerability of an individual in a health care setting’.[4]
[3] Transcript of Proceedings 13 November 2015 pages 16-17
[4] Transcript of Proceedings 13 November 2015 page 17
As relevant, section 5 of the National Law states that:
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.
and:
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes—
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; ...
The respondent said she accepts that her conduct amounted to ‘unprofessional conduct’. She disputes that it amounts to ‘professional misconduct’. The issue turns on whether her conduct fell within (b) of the definition of professional misconduct in the National Law set out above.
The Board contended that:
each instance of unlawful access to the medical records … by the [respondent] constituted a deliberate breach of the relevant standards, established by the Code of Ethics, Code of Conduct and Health Records Act, expected of a nurse of the [respondent’s] training and experience.
The Tribunal does not accept the argument by the respondent that her conduct could be characterised as a single access as it was for one purpose only, namely, for the welfare of the two children of her partner. There were multiple accesses over a period of seven months.
Unauthorised access to medical records is conduct of a lesser standard than might reasonably be expected of a health practitioner by the public or the practitioner’s professional peers. Such conduct is contrary to the Health Records (Privacy and Access) Act 1997 (ACT) (Health Records Act). Under that Act ‘a person to whom a privacy principle applies must not, without lawful authority, contravene the privacy principle’.[5] There is no doubt that the respondent is such a person.
[5] Section 6 of the Health Records (Privacy and Access) Act 1997
Privacy principle 6 in the Health Records Act permits access to health records by a health provider other than the patient, without consent, only when the accesser is treating the patient, or when the accesser reasonably requires access for provisions of a health service.[6] Disclosure of such information to a family member may be made only for compassionate reasons, if the disclosure would be expected by the patient, and it is not contrary to the patient’s wishes.[7]
[6] Privacy principle 6 (1), (2)
[7] Privacy principle 6(3)
The respondent did not have consent to access the children’s health records, or to disclose some of that information to her partner. The respondent was not part of the children’s treatment teams, nor was she providing a health service to them. Her access breached privacy principle 6 of the Health Records Act and was unlawful.
Even if the information had been lawfully obtained, such disclosure was not consistent with the purpose for which the information was obtained in the first place, namely, to treat the children. The disclosure was contrary to privacy principle 9. That principle provides that outside a treating team, a person who has access to a health records must not use the information for another purpose unless it falls within an exception.
The exceptions are that information may be shared within a treating team, when the patient is reasonably likely to have been aware that information of the kind is usually disclosed, when the patient has consented, when disclosure is necessary to prevent or lessen serious or imminent risk to life or health, when it is required by law, or for the ‘management, funding or quality of the health service’. The respondent said that the access was for the welfare of the children. However, it is unclear how the respondent’s access could benefit the children when she had no contact with them.
Privacy principle 10 also prevents disclosure of health information to anyone other than the patient except if it falls within one of the exceptions listed for privacy principle 9. The disclosure to the respondent’s partner was contrary to both privacy principles 9 and 10 and did not fall within any of the exceptions.
In the evidence provided to the employer’s investigation, one of the children expressed her anger at the breach of her confidentiality. She said she had had limited contact with her father since she was nine years of age and none since 2012.[8]
[8] The applicant’s statement in support of an application for disciplinary action dated 7 August 2015 at page 55
The respondent was not part of the children’s treating team, the disclosure was not one as to which the children ought to have been aware, was not made with consent, was not necessary to protect risk to the health of the children, was not required by law, nor was it necessary for the health service being provided to the children. It is not clear how the respondent could have believed that disclosure of information to an estranged father, could have been beneficial to their health.
The conduct was also contrary to the ethical requirement for nurses to protect the privacy of health information of patients except with their consent or with lawful authorisation.[9] The respondent’s unauthorised access also breached the Code of Professional Conduct for Nurses in Australia to comply with the law concerning access to health information, and to disclose such information, if known, only for treatment purposes, as part of the health team, and when possible, only with the consent of the patient.[10]
[9] Value statement 7 in the Code of Ethics for Nurses
[10] Conduct statement 5 in the Code of Professional Conduct for Nurses in Australia
Accordingly, the access was unlawful and contrary to the ethical and conduct standards expected of nurses. The access amounts to unprofessional conduct,[11] the Codes being evidence of the expected standard of conduct for professionals according to section 41 of the National Law.
[11] Section 39 of the National Law
That conduct occurred on 54 occasions, collectively undertaken over a period of seven months. The Tribunal does not accept that such conduct can be treated as a single instance of unprofessional conduct. As is apparent from the itemisation of these instances of access at page 50-51 of the evidence before the Tribunal, the access occurred on eight separate occasions for short periods of time but involving more than one page of the records on each occasion.
The Tribunal must still decide whether the conduct is ‘substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’. It is only if the multiple instances of access, collectively, can be categorised as conduct substantially below the standard expected, that the conduct can amount to professional misconduct.
The practitioner is a level 2 registered nurse, that is, someone with seniority. She has over a decade of experience in nursing and, as she conceded at the hearing, has been trained in the rules relating to confidentiality of patient records. These factors suggest her conduct is more reprehensible than someone with less seniority and experience.
On the other hand, the conduct was atypical. The Tribunal had no evidence that the respondent was less than professional in her conduct in the workplace before these incidents, or since March 2014. In addition, and to her credit, the respondent ceased the conduct of her own volition. Her partner assisted her. She regained her perspective on the fact that accessing these patients’ records was unauthorised and she has not undertaken any such access since.
It is significant that her employer, following its investigation of her conduct, permitted her to maintain access to its records. That outcome is an indication that the conduct was considered to be something which would not be repeated. That conclusion is supported by the particular circumstances relating to the conduct, namely, that the access related only to two persons who had a familial relationship to the respondent. The access, while deliberate, did not involve general snooping of patient records. The conduct also occurred in the context of a breakdown of communication within the extended family circle and the respondent’s concerns about the two children who had lived with her for a period.
The respondent has indicated she has learned her lesson from this lapse of professional standards. She has never attempted to deny the conduct, she has indicated her remorse and her intention not to transgress in such a manner again, and has taken steps to update her understanding of the legal standards and values relating to protecting the public’s right to privacy of their health records.
She has demonstrated that intention by her willingness to study again the relevant Codes, she has reflected on what caused her lapses, and in doing so has consulted her mentorfor advice. She has also accepted the conditions imposed by her employer and indicated her willingness to accept those which are proposed by the Board.
Standards under the general law
In addition to the standards in the National Law and in the Codes, the cases contain principles which reflect levels of wrongdoing. The classic statement in the case law of what constitutes professional misconduct is found in Allinson v General Council of Medical Education and Registration[12] as ‘something … which would be reasonably regarded as disgraceful or dishonourable by … professional brethren of good repute and competency’.[13]
[12] [1984] 1 QB 750
[13] at 760-761
At the same time, as Kirby P commented in Pillai v Messiter (No 2)[14]:
the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a [health practitioner].
[14] (1989) 16 NSWLR 197 at 200-201
That conduct as McLure P noted in Bernadt v Medical Board of Australia[15] has two facets:
Professional misconduct has both a performance component (conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience) and a conduct component (conduct whether occurring in connection with the practice of the practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession).
[15] [2013] WASCA 259 at [23]
The respondent’s conduct was deliberate. It was not negligent. Nonetheless, it was an uncharacteristic lapse and could not be said to portray indifference and an abuse of the privileges which accompany registration. In the circumstances indicated by the evidence, the conduct would not be characterised as ‘disgraceful’ or ‘dishonourable’ by professional peers. Nor, given that her employer has seen fit to maintain her employment and her access to the patient records database, can it be categorised as conduct which marks the person as not a fit and proper person to hold registration in the nursing profession.
The Tribunal finds that although there were multiple unauthorised accesses to patient records over the period of seven months that conduct; given the mitigating circumstances, the generally professional conduct of the respondent over her decade of nursing, her remorse, the fact that her conduct is not likely to be repeated, and her willingness to subject herself to conditions to improve her understanding, is not substantially below the standard to be expected of a registered nurse of her seniority and experience. That is, the respondent’s conduct is not professional misconduct.
The conduct, however, does amount to unprofessional conduct since it did involve a contravention of the law. The conduct breached several of the privacy principles in the Health Records Act. Orders should be imposed that redress the behaviour and that seek to deter the respondent and other health practitioners from similar behaviour in future by emphasising the importance of protecting the privacy of health records and of maintaining high ethical standards, regardless of private interests and concerns.
Orders
The Board proposed that the respondent be reprimanded and have the following conditions imposed on her registration:
(a)Within six months of the imposition of conditions, she is to complete a Board-approved course relating to the management of health records and/or privacy and access to health records;
(b)She is to undertake mentoring with a Board-approved mentor for not less than twelve months from the date of conditions being imposed, with the mentor to provide reports to the Board every three months. The mentoring sessions are to cover the following areas:
i.Nursing and Midwifery Board of Australia Code of Ethics;
ii.Nursing and Midwifery Board of Australia Code of Professional Conduct
iii.Nursing and Midwifery Board of Australia Competency Standards;
iv.Nursing and Midwifery Board of Australia Decision Making Framework.
2)She is to bear any costs of, and incidental to, compliance with the conditions.
The respondent submitted in response that she:
(a)agrees that she should be reprimanded for her conduct;
(b)agrees that conditions should be placed on her registration;
(c)contends that consideration should be given to the conditions being imposed for a shorter period than 12 months to take account of the courses, self-training and self-reflection she has already undergone since the employer’s investigation.
At the hearing the respondent’s evidence was that the Human Rights Act course she undertook was an online course, did not have a medical records focus, and did not meet the requirements recommended by the Board. She also conceded that she had not undertaken any other courses which were more appropriate for her retraining.
The Board noted that there are courses on the Health Records Act which can be tailored to the needs of individual participants. The respondent indicated she would be willing to attend such a course. The understanding of the Board was that these courses were run every two months but they could be cancelled for lack of interest. For that reason, the Board suggested it may be necessary to extend the deadline included in its conditions beyond six months to ensure the practitioner could attend such a course.
The respondent initially objected to the imposition of conditions for a period of 12 months from the date of the Tribunal’s decision. She maintained that as she had already undertaken retraining, had some insight into her conduct, and had sought personal and professional support through her mentor, part of her retraining had already been undertaken and the conditions should not be imposed for a period of that length.
In response the Board said that the longer term was required to reflect the deterrence factor in imposing conditions. The Board also noted that 12 months would be a sufficient time for the practitioner to complete the training needed to ensure she met her professional obligations in the future, to enable her to attend an appropriate training course on the Health Records Act, possibly supplemented by other training sessions, and for that training to have a discernible effect. The respondent practitioner then accepted that conditions should be imposed for 12 months.
There was discussion of the proposed requirement that the practitioner meet with a Board-appointed mentor who in turn would report to the Board every three months. The Board acknowledged that a failure to report by the mentor has not arisen previously but might be a problem if the obligation became onerous. The Board also agreed to consider whether the continuation of current, if she was willing, would meet this requirement.
The Tribunal accepts that it is appropriate that an order be made reprimanding the respondent for her conduct and is satisfied, with one minor exception, that the conditions proposed by the Board should ensure that in future the respondent will better protect the privacy of the records to which she has access, will maintain proper and ethical standards and will protect the good standing and reputation of the profession.[16]
[16] Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
The Tribunal is satisfied that the mentor’s report need only be made every four, rather than three, months. Otherwise, the Tribunal agrees that orders should be made in the terms proposed by the Board and accepted by the practitioner -orders are made accordingly.
No application was made by either party to limit the publication of the name of the practitioner and this was not discussed during the hearing. In considering the matter it has occurred to the Tribunal that it would be somewhat self- defeating if there was a publication that may identify the people whose records were accessed. In order for the Tribunal to limit publication in any way, it is necessary for it to make an order under s39(2)(b) of the ACT Civil and Administrative Act 2008. The proposal might be, for example, that the name of the practitioner be replaced by an initial wherever it appears. The order and reasons will not be published other than to the parties in the meantime. The parties are directed to provide any submissions they wish on this issue by no later than the close of business on Friday 29 January 2016.
Non-publication
No application was made by either party to limit the publication of the name of the health practitioner and this was not discussed at the hearing. The hearing in this matter was conducted in public in accordance with s 38 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). In preparing these reasons the Tribunal became concerned that by publishing the decision and reasons in the usual manner there would be potential for the identity of those who were the subject of the accesses involved in this matter to become known if the name of the respondent and some other information was not anonymised.
In order for the Tribunal to limit publication in such a way, it is necessary to make an order under s 39(2)(b) of the ACAT Act. The Tribunal relied on its power to act of its own motion, but in order to accord the parties natural justice sought the views of the parties before making an order. (ACAT Act s 39(3)).
Submissions were made by both parties. In brief, the respondent supported the need to prevent the identity of the children being disclosed and proposed that their names not be published and that a pseudonym be used for her name to avoid this outcome.
The Board opposed the proposal in part. The Board also agreed that the names of the children not be published, and submitted that the relationship of the children to the respondent could be described in a way that concealed its closeness, and that otherwise the reasons be reported in full, including the name of the respondent.
The Board also submitted that the interests of the private lives of the parties do not require the privacy that would be effected by a non-publication order. At the same time, the submission conceded there may be special circumstances arising in this matter. The Board cited examples of such circumstances, including the need to protect the identity of a victim: John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131.
The Board however, submitted that greater weight should be given in the need to ensure the proper administration of justice, to deterrence and the protection of the public so that regulation of health practitioners operates in a transparent, accountable, efficient, effective and fair way.
The Tribunal notes that there is no proposal for it not to publish the reasons in full.
The starting principle provided in s 38 of the ACAT Act is that hearings are to be in public. The powers of the Tribunal with respect to non-publication are found in s 39. The suppression of evidence, including the names of parties, is permitted only if the right to publication is ‘outweighed by competing interests’ (ACAT Act s 39(1)). The exceptions to the principle apply only if the Tribunal is satisfied that the evidence disclosing the names of a party should be kept private:
because the interest of the private lives of the parties require the privacy;(s 39(5)(b) or
to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice. (s 39(5)(c)
The Tribunal accepts that the circumstances do not bring this case within the terms of section 39(5)(b), the protection of the privacy of the parties. The non-publication of the respondent’s name is a secondary interest; the primary interest is the protection of the privacy of the children of her partner and they are not parties. The principal issue is whether there are special circumstances which justify non-publication because publicity would prejudice the interests of justice.
The Tribunal accepts that the ACAT Act should be interpreted in accordance with the principle of open justice, subject only to a matter coming within one of the exceptions in s 39(5) (Psychology Board of Australia v Fox (No 2) [2015] ACAT 25 (Fox No 2) at [50]-[51]), and in light of an object of the ACAT Act, namely, that it is to conduct its hearings in a manner which is fair (ACAT Act s 6(d)). The Tribunal notes, however, to the extent that Fox (No 2) is relied on more generally by the Board, that the reasons in that case specifically noted that the principles discussed were not being applied to a request to suppress the name of a party (Fox (No 2) at [55], [67]).
The application of the open justice principle in occupational discipline cases was helpfully described by Acting Judge KP O’Connor in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 (BXD (No 2)) at [25] as follows:
Disciplinary proceedings and disciplinary orders have as their ultimate purpose the protection of the public. The public has an interest in knowing whether a practitioner has been charged with a disciplinary offence, and of the outcome, especially where it is adverse. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons. Publicity also serves that end. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence. Decisions also provide a marker of what is unacceptable to other members of the profession.
See also Health Care Complaints Commission v Dr A [2012] NSWMT 10 (Dr A); BCS v Dental Council of NSW (No 2) [2016] NSWCATOD 9.
The Tribunal in health practitioner discipline matters, must also comply with the National Law. An objective of the National Law is ‘the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered’ (National Law s 3(2)(a)). Tribunal findings and consequential orders are ‘for the protection of those who require protection’ (Clyne v NSW Bar Association (1960) 104 CLR 186 at [24]).
The protection of the public involves protection from physical harm, but also from emotional harm and from breaches of privacy. In this matter there are two categories of the public who potentially require protection: the children, as members of the public, who should be protected in future from emotional harm and from breaches of their privacy; and the wider public who should equally be protected from any breaches of their privacy due to actions by the respondent.
Protection of the children
The nature of the actions taken by the respondent were not generalised breaches of privacy, but were confined to breaches of the privacy of the children. The breaches of their privacy caused considerable distress to at least one of the children. There is an interest in the distress of that child not being reactivated by the publication of reasons which include the name of the respondent.
The names of the children are not included in the reasons, but if the name of the respondent is included, it opens the way for the revelation of the identities of the children. The key personnel involved in this matter operate within the relatively small hospital community in Canberra, and publication of the name of the respondent, would readily enable her relationship with those whose records were accessed to be ascertained, thus again breaching their privacy. The facts are akin to those in the BXD(No 2) in which a non-publication order was made in order to prevent disclosure of the names of family members who were the victims of misconduct. Protection of the children’s interest in this matter, also victims of misconduct, equally support non-publication of the respondent’s name and is consistent with the interests of justice.
Protection of the general public
A factor referred to by the Board, and emphasised in the BXD (No 2) decision, is the need to deter inappropriate conduct by a health practitioner. The Tribunal’s reasons indicate there is a minimal need for that concern in this matter. The level of wrongdoing by the respondent was unprofessional conduct, not the higher category of professional misconduct, and the respondent appreciated, prior to any proceedings being brought, that her accesses were wrongful, desisted from any further breaches, and has openly expressed her shame for her transgressions.
Her behaviour was atypical, and this is reflected in the fact that her employer did not bar her access to records of other patients. Her unauthorised accesses were confined to the two family members, not the public in general. This should assuage any concerns of potential patients of the respondent from the wider community, and means there is no need to reveal her name for the protection of the general public.
Other factors
An ‘element of deterrence is providing an assurance to the public that serious lapses in the conduct of … practitioners will not be passed over or lightly put aside, but will be appropriately dealt with’ (Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441B, 471B).
In this matter the Tribunal has not made a confidentiality order over the reasons, which are published in full. The findings and the orders made disclose the reasoning process of the Tribunal in reaching its decision, they indicate the nature of the disciplinary breaches, and the consequences for the respondent of those breaches. The public is thus assured that adverse findings were made against the respondent for her offences, and that the conditions imposed by the Tribunal are designed to reduce any possibility of a repeat of the actions involved in this matter.
The decision also provides a reminder to other members of the nursing and midwifery profession of the unacceptable nature of such breaches. The reasons and the findings are an assurance to the public of the integrity and fairness of decisions by the Tribunal in relation to its role in enforcing the standards of conduct of health practitioners. The Tribunal has given due consideration to the issue of deterrence, and is satisfied that this would not be jeopardised by non-publication of the respondent’s name.
The non-publication of the name of the respondent denies to some of her professional colleagues knowledge that the respondent has been disciplined, assuming the Nursing and Midwifery Board takes account of the orders made by the Tribunal and does not list the actual name of the nurse in its register. Nonetheless, the high probability, if her name was disclosed, particularly in the small health practitioner community involved in this matter, is that it would open the way to further breaches of the privacy of the children. For this reason the Tribunal considers that this element of the open justice principle is outweighed by the countervailing need for the administration of justice to be fair, in this case, to the children.
The Board also submitted that the transparency of the regulatory process should be a factor taken into account by the Tribunal. The Tribunal agrees with this submission, but notes that the solution suggested by the Board, namely, that to lessen the likelihood of the identities of the children being revealed, the closeness of the relationship between the respondent and the children should be concealed, is contrary to the need for another aspect of the open justice principle, that tribunal processes be transparent.
In summary, the selective nature of the unauthorised access breaches, their cessation at the respondent’s own instigation, and her expressed intention, which the Tribunal has accepted as genuine, that she would not again breach her access rights in any unauthorised manner, have persuaded the Tribunal that in the special circumstances of this application, a non-publication order is strictly necessary. The necessity is to provide justice to the children by ensuring that their privacy is not breached anew by disclosure of the name of the respondent, which would facilitate their identities being revealed, a real possibility in particular in the small Canberra health community.
Evidence was provided during the hearing that disclosed the identity of the victims of the misconduct. An order should be made under s 39(2)(b) prohibiting publication of the evidence given at the hearing, or of information contained in the documents filed with the tribunal or received in evidence, that tends to identify the children or the respondent.
The reasons on the substantive issues have already been provided to the parties. In order to prevent further potential breaches of privacy occurring when the reasons are made available to the public, an order should also be made that has the effect of ensuring that the name of the respondent not be published. That means the reasons as published will not identify the names of the respondent’s step children, or her employer, and will use a pseudonym for the name of the respondent.
………………………………..
Senior Member Ms R. Creyke
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | OR 33 of 2015 |
PARTIES, APPLICANT: | Nursing and Midwifery Board of Australia |
PARTIES, RESPONDENT: | Nurse DZ |
COUNSEL APPEARING, APPLICANT | Ms N. Tarbet |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | ACT Government Solicitor’s Office |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member Ms R Creyke Senior Member Mr B Meagher SC Member Ms L Williams |
DATES OF HEARING: | 13 November 2015 |
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