Clarke v Health Care Complaints Commission (No 2)

1. [1]

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

2. [2]

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

3. [3]

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

Adjournment Application

1. [4]

   Both proceedings were listed for hearing on 23 November 2023.

2. [5]

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

3. [6]

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

4. [7]

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

5. [8]

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

6. [9]

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

7. [10]

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

8. [11]

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

9. [12]

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

10. [13]

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

11. [14]

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

12. [15]

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

13. [16]

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

14. [17]

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

15. [18]

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

16. [19]

    For these reasons we refused the adjournment application.

Application by the HCCC to the Tribunal

1. [20]

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

2. [21]

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

3. [22]

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

4. [23]

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

5. [24]

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

6. [25]

   “Impairment” is defined in s 5 as follows:

7. [26]

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

8. [27]

   The particulars of the alleged impairment were as follows:

9. [28]

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

10. [29]

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

11. [30]

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

12. [31]

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

13. [32]

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

The Medical Evidence

1. [33]

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

2. [34]

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

3. [35]

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

4. [36]

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

5. [37]

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

6. [38]

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

7. [39]

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

8. [40]

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

9. [41]

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

10. [42]

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

11. [43]

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

12. [44]

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

13. [45]

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

14. [46]

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

15. [47]

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

16. [48]

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

17. [49]

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

18. [50]

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

19. [51]

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

20. [52]

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

21. [53]

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

22. [54]

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

23. [55]

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

24. [56]

    His conclusion was as follows:

25. [57]

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

26. [58]

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

27. [59]

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

28. [60]

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

29. [61]

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

30. [62]

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

Tribunal’s Reasoning

1. [63]

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

2. [64]

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

3. [65]

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

4. [66]

   The Tribunal concluded:

5. [67]

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

6. [68]

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

Ms Clarke’s grounds of appeal and written submissions

1. [69]

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

2. [70]

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

3. [71]

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

4. [72]

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

5. [73]

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

6. [74]

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

7. [75]

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

8. [76]

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

9. [77]

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

10. [78]

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

11. [79]

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

12. [80]

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

13. [81]

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

14. [82]

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

15. [83]

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

16. [84]

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

17. [85]

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

18. [86]

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

19. [87]

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

20. [88]

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

21. [89]

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

22. [90]

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

23. [91]

    Ms Clarke did not give evidence before the Tribunal.

24. [92]

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

25. [93]

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

26. [94]

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

27. [95]

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

28. [96]

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

29. [97]

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

30. [98]

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

31. [99]

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

32. [100]

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

33. [101]

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

34. [102]

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

35. [103]

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

36. [104]

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

37. [105]

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

38. [106]

    We make the following orders:

    1. (1)

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

    2. (2)

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