BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL. HEARING held at Wellington on Thursday 16 August Mr H Midgley (members)

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1 Level 13, Mid City Tower, Willis Street PO Box , Wellington, New Zealand Telephone: Facsimile: gayfraser@hpdt.org.nz Website: DECISION NO: 123/Nur07/70P IN THE MATTER of the Health Practitioners Competence Assurance Act 2003 AND IN THE MATTER of a charge laid by a Professional Conduct Committee pursuant to section 91(1)(b) of the Act against ROSINA MARY HEALEY, Enrolled Nurse of New Plymouth BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL HEARING held at Wellington on Thursday 16 August TRIBUNAL: Mr B A Corkill QC (Chairperson) Ms O Harris, Ms H Irvine, Professor J Kilpatrick and Mr H Midgley (members) Ms G J Fraser (Executive Officer) Ms R Hauraki (Stenographer) APPEARANCES: Ms C Prendergast and Ms H de Montalk for the Professional Conduct Committee

2 2 Introduction: 1. Ms Healey is an enrolled nurse. She resides in New Plymouth. 2. On 8 May 2007 a Professional Conduct Committee (PCC) appointed by the Nursing Council of New Zealand charged that Ms Healey had been convicted of 44 counts of using a document, and that those convictions either separately or cumulatively reflect adversely on her fitness to practise. 3. The PCC alleged that there was accordingly a disciplinary offence under section 100(1)(c) of the Health Practitioners Competence Assurance Act 2003 (HPCA Act). The Charge: 4. The charge stated: The Professional Conduct Committee pursuant to section 81(2) of the Act charges that: On 20 July 2006, Ms Healey was convicted in the Tauranga District Court of 44 counts of using a document to obtain pecuniary advantage pursuant to section 228 of the Crimes Act 1961 and that those convictions either separately or cumulatively reflect adversely on her fitness to practise. Particulars of Convictions 1. During the period 18 July 1990 to May 2003 Ms Healey claimed ACC payments for loss of earnings and unemployment benefit from 1 November 1990 under the name Rosina Fitzgerald, and worked as an enrolled nurse from: 19 October 1992 to 29 October September 1997 to 1 March October 1997 to 24 February June 2000 to 25 November 2002 The Hearing: 5. Ms Healey did not attend the hearing. The Tribunal received evidence that: 5.1 Notice of intention to bring disciplinary proceedings was sent to Ms Healey by registered mail on 25 May 2007, at her last known address.

3 3 5.2 On 31 May 2007, she spoke to the Executive Officer, asking for advice on what she should do about the letter. 5.3 A letter was received on 15 June 2007 from her lawyer, stating that Ms Healey did not wish to be heard either personally or through a representative at the Tribunal hearing. 5.4 On 21 June 2007 a letter was sent by the Executive Officer to Ms Healey s lawyer, asking whether she wished to apply for name suppression. No response was received. This was followed up on 2 July 2007, and 5 July 2007 by phone, and no response was received. 5.5 On 11 July 2007, Ms Healey was sent a copy of the Tribunal s minutes of a directions conference of 10 July 2007, confirming date, time and location of hearing. This was copied to her lawyer. 5.6 On 3 August 2007, the Executive Officer wrote to Ms Healey confirming the date, time, venue and composition of the Tribunal for the hearing. 5.7 The PCC also placed evidence of communications sent by it to Ms Healey, relating to the disciplinary proceeding, being letters of 23 January 2007, 12 February 2007, 27 April 2007 and 18 July The last communication enclosed a bundle of documents and the PCC s submissions relating to the forthcoming hearing. 6. Section 156 of the HPCA Act states in the absence of proof to the contrary that notification sent to a person at their last known place of residence is deemed to be delivered if the letter was properly addressed and posted. 7. Having regard to the content of the various letters referred to above, the Tribunal was satisfied that proper notice of the charge had been given to Ms Healey, that she had been given a proper opportunity to participate in the preliminary formalities, and that she had been given proper notice of the hearing itself.

4 4 Legal Principles: Onus and Standard of Proof 8. The PCC carries the onus of proof. 9. New Zealand authorities require the Tribunal to assess the culpability of a health practitioner on the basis of the civil standard of proof, bearing in mind that serious allegations require a high level of proof. In Z v Complaints Assessment Committee and Another (22 March 2007, [2007] NZCA91), the Court concluded after a careful review of all the relevant authorities that the approach set out in Re H [1996] AC 563, at 586, per Lord Nicholls of Birkenhead, in the following passage, was the correct approach: The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Conduct which Reflects Adversely on a Practitioner s Practice: 10. Section 100(1)(c) of the Act provides that a registered health practitioner may be disciplined by the Tribunal where the practitioner has been convicted of an offence that reflects adversely on his or her fitness to practise. 11. In Pittwood (84/OST06/42P), there is a careful review of the second limb of the phraseology, reflects adversely, which this Tribunal adopts. 12. In Re Zauka (Decision 236/03/103C, 17 July 2003) the Medical Practitioners Disciplinary Tribunal was required to consider a similar provision section 109(1)(e) of the Medical Practitioners Act That Tribunal, guided by observations of the

5 5 District Court in CAC v CM [1999] DCR 492, stated: It was not necessary that the proven conduct should conclusively demonstrate that the practitioner is unfit to practise. The conduct will need to be of a kind that is inconsistent with what might be expected from a practitioner who acts in compliance with the standards normally observed by those who are fit to practise medicine. Not every divergence from recognised standards will reflect adversely on a practitioner s fitness to practise. It is a matter of degree. While conduct will satisfy the requirements of the rider, it cannot be decided solely by analysing the words of the subsection. It is rather, a matter that calls for the exercise of judgment 13. In F v The Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 the Court of Appeal made it clear that the term reflects adversely on fitness to practise as it was used in the rider to section 109(1)(c) of the Medical Practitioners Act 1995, raised the threshold as to what constituted a disciplinary offence under section 109(1)(c) of that Act. The Facts: 14. In 1990, Ms Healey was working as an enrolled nurse in Manurewa, South Auckland. On 8 February 1990 she was riding her bicycle and was involved in an accident. She sustained bruises, grazing and injuries to her face and right shoulder. 15. She lodged an ACC claim which was accepted by the Corporation and Ms Healey began receiving earnings related weekly compensation payments. 16. As a consequence of receiving weekly compensation payments, Ms Healey had an obligation to notify the Corporation if she returned to work and to declare any income she received in addition to any weekly compensation payments. 17. After a period of recuperation, Ms Healey returned to work. On 18 July 1990, Ms Healey s doctor declared her fully unfit for work and weekly compensation payments resumed. 18. Following an examination from a specialist, surgery was performed on Ms Healey s shoulder. 19. From 18 July 1990 until May 2003, Ms Healey continued to submit medical certificates stating she was fully unfit for work.

6 6 20. In May 1992, Ms Healey received a lump sum compensation payment from the Corporation of $14, In support for her application for a lump sum payment, Ms Healey stated that, as a consequence of her injury, she was unable to undertake many recreational activities that she had previously enjoyed, she was unable to perform most household tasks and was unable to attend to many activities related to her own personal care. 21. In March 2003, a routine audit of Ms Healey s ACC file was undertaken by the Corporation. This audit revealed that Ms Healey had used several different names, several different IRD numbers and false addresses in order to conceal from the Corporation that she had been employed and was in receipt of wages and other income whilst at the same time receiving weekly compensation payments. 22. The audit also revealed that: 22.1 From 1 November 1990, Ms Healey had applied for and was granted an unemployment benefit under a false name From 19 October 1992 until her resignation on 29 October 1993, Ms Healy was employed as an enrolled nurse at a Thames rest home earning $16, gross. During this period Ms Healey continued to submit certificates to the Corporation indicating she was fully unfit for work and so continued to receive weekly compensation payments at the same time On 3 October 1996 Ms Healey applied for and was granted an unemployment benefit under a false name. During this period Ms Healey continued to receive weekly compensation payments from ACC. This double dipping continued until 7 May 2003.

7 From 17 November 1997 until her resignation on 1 March 1998, Ms Healey worked as an enrolled nurse at a rest home in New Plymouth earning $2, gross. During this period she continued to submit certificates to the Corporation indicating she was fully unfit for work and so continued to receive weekly compensation payments at the same time From 2 October 1997 to 24 February 1999, Ms Healey worked on a casual basis as an enrolled nurse at a health provider in New Plymouth, earning $ gross. She did not notify the Corporation of this employment From 6 June 2000 until her resignation on 25 November 2002, Ms Healey worked as a relieving community services worker at a residential care unit in New Plymouth earning $8, gross. As part of a pre-employment check, she was required to answer questions regarding her accident history. On the form she stated she had never suffered any injury which had resulted in her taking time off work or made any claim with ACC for any injury During this period Ms Healey continued to submit medical certificates to the Corporation indicating she was fully unfit for work and so continued to receive weekly compensation payments at the same time as weekly compensation. While in receipt of weekly compensation payments from ACC, she had also received from Work and Income New Zealand a further $77, net of tax in benefit payments. She had an obligation to disclose these payments to the Corporation but did not Ms Healey s weekly compensation payments were ceased in June Ms Healey appeared in the Tauranga District Court and entered guilty pleas on all charges.

8 8 23. On 20 July 2006, Harding DCJ sentenced Ms Healey to concurrent terms of imprisonment for two years and three months and ordered Ms Healey to pay reparation of $206, at $20.00 per week. Grounds of Discipline: 24. It is clear from the certificates of conviction and sentencing notes of the District Court that the first element of the disciplinary charge, that Ms Healey was convicted of 44 counts of using a document, is established The Tribunal is also satisfied that those convictions either separately or cumulatively reflect adversely on her fitness to practise: 25.1 There were a very significant number of charges involving a gross breach of trust over a long period of time from 1990 to A very substantial sum of money, in excess of $200,000.00, was involved in terms of the amount defrauded from the Accident Compensation Corporation The offending was relatively sophisticated, and involved a significant degree of pre-meditation Whilst this dishonest activity was occurring, Ms Healey worked in rest homes/residential care units. Residents of such institutions are typically elderly and infirm, and easily able to be taken advantage of The gross dishonesty demonstrated by Ms Healey is far below the standards which would be expected of an enrolled nurse working in institutions of this kind, where trust is so essential. 1 Section 67 of the HPCA Act requires the Registrar of the Court to notify the regulatory authority where a practitioner has been convicted of an offence punishable by imprisonment for a term of three months or longer. Section 229A of the Crimes Act 1961, as it was at the time of the offending, stated that there was a maximum of imprisonment not exceeding seven years. Accordingly the threshold of the Act was met.

9 9 26. The Tribunal readily concludes that the illegal, immoral, unethical and dishonest conduct demonstrated by Ms Healey over such a long period reflects adversely on her fitness to practise. Penalty: 27. In determining the appropriate penalty, the Tribunal has borne in mind the following functions of disciplinary proceedings: 27.1 Protecting the public this object is reinforced by section 3 of the HPCA Act, as mentioned above Maintaining professional standards this object is emphasised in Taylor v General Medical Council [1990] 2 All ER 263; Ziderman v General Dental Council [1976] 2 All ER 344 and Dentice v The Valuers Registration Board [1992] 1 NZLR To punish the practitioner in question, as referred to in Dentice v The Valuers Registration Board To rehabilitate the practitioner, if worthy of this course of action (J v Director of Proceedings (Baragwanath J, 17 October 2006, CIV ). 28. The submission made by the PCC was that given the circumstances of the offending, the Tribunal should cancel Ms Healey s registration. 29. In PCC v Martin (27 February 2007, High Court Wellington CIV ), Gendall J stated that although the cancellation of a practitioner s registration had a punitive effect, that is not why the order should be made: It was made for the primary purpose of protecting the public and community by upholding proper professional standards, deterrence (both specific and general), ensuring only those who are fit in the widest sense, to practise are given that privilege. (para 23)

10 Examples of previous cases where removal of name has occurred as a result of a conviction being entered in similar circumstances are Sizemore (26 April 2005), and Pearson (39/Nur05/2BP). 31. The Tribunal has concluded that an order of cancellation should be imposed for the following reasons: 31.1 The offending was very serious, and completely contrary to appropriate standards. It involved a gross breach of trust The only penalty available to the Tribunal that would adequately ensure the upholding of proper professional standards and public safety is cancellation. A suspension for a maximum of three years would merely mean that Ms Healey s name would automatically be restored to the register after the expiration of three years. Given the seriousness of the offending, that is not a sufficiently adequate response Ms Healey deceived the general practitioner from whom she obtained 44 separate medical certificates, to the effect she was unfit for work The planned premeditated and deliberate conduct reinforces the inevitable conclusion that Ms Healey is not a fit and proper person to be on the register as an enrolled nurse. 32. Turning to the issue of costs, the Tribunal has very little information concerning the financial circumstances of the practitioner. Harding DCJ in the sentencing notes said that there was an extreme unlikelihood that reparation would ever be paid, but he nonetheless ordered it. On 1 March 2007 Ms Healey implied, in a letter to the PCC, that she was not in a good financial position, but no further details were given.

11 The Tribunal has considered such information as it has, and orders that Ms Healey pay $1, as a contribution to the costs of and incidental to the inquiry by the PCC and the hearing by the Tribunal. It does so because Ms Healey should make a contribution towards those costs and expenses. Of that amount, $ is to be paid to the Tribunal, and $ to the PCC. 34. A final issue relates to publication. The important principles of open justice must apply in this case. No order of name suppression was made in the District Court, and no information has been placed before the Tribunal which would support the making of an order of non publication. It is undoubtedly in the public interest that members of the public are aware of the circumstances of this offending. 35. The Tribunal directs that the Executive Officer publish in the New Zealand Gazette, Kai Tiaki, the Nursing Council Newsletter, and the Nursing Review, a summary of the Tribunal s findings and orders. That summary should include reference to Ms Healey s name. The Tribunal also orders that its decision be published on the Tribunal s website. Conclusion: 36. The Tribunal has determined that the convictions described in the charge separately and cumulatively reflect adversely on Ms Healey s fitness to practise. 37. The penalties imposed by the Tribunal are: 37.1 Her registration as an enrolled nurse is cancelled (section 101(1)(a) of the HPCA Act) Ms Healey is to pay $1, as a contribution to the costs and expenses of and incidental to the hearing by the Tribunal and the inquiry made by the PCC and the prosecution of the charge. That is, $ is to be paid to the Tribunal, and $ to the PCC (section 101(1)(f) of the HPCA Act).

12 The Tribunal directs that a notice stating the effect of the Tribunal s decision be published in the New Zealand Gazette, Kai Tiaki, the Nursing Council Newsletter, and the Nursing Review, with express reference being made to Ms Healey s name and that the decision be published on the Tribunal s website (section 157 of the HPCA Act). DATED at Wellington this 27 th day of August B A Corkill QC Chairperson Health Practitioners Disciplinary Tribunal