Background Facts

The appellant was an enrolled nurse operating a beauty clinic where she performed cosmetic injections of Botox and dermal fillers. The clinic was operated in conjunction with a medical practitioner located in Perth, Dr Ho, who would make the prescriptions for the injection after consultation with patients through Skype. Several complaints were made regarding the appellant's practice to the Nursing and Midwifery Council of New South Wales ('the Council'). These complaints included that she:

  • provided injections from her home;
  • sold Schedule 4 Prescription Only Medicine without authorisation;
  • claimed that she was a registered nurse rather than an enrolled nurse;
  • uploaded photographs of patients on social media without consent; and
  • advertised herself as being a clinical nurse specialist.

Upon investigation by the Health Professionals Councils Authority, inspectors discovered further contraventions of proper practice. Notably, the appellant was unable to articulate the signs and symptoms of a patient suffering from an adverse reaction to a dermal filler, and was unable to identify and explain the side effects of particular drugs used in her procedures. The report concluded that the appellant had demonstrated a "significant deficit in her knowledge and skill in medication administration as an enrolled nurse".

In light of these circumstances, the Council imposed conditions on the appellant that she be subject to the supervision of a Registered Nurse, and that she undertake further educational courses. Relevantly, the supervision condition required that the Registered Nurse physically attend the premise where the Appellant practiced.

Pursuant to s 150 of the Health Practitioner Regulation National Law (NSW), the Appellant was later suspended from practice as she had failed to adhere to the supervision and education requirements imposed on her. Although she had nominated a supervising Registered Nurse, they had been "barely" in contact and the appellant had continued to practice largely unsupervised. The appellant conceded that the supervising Registered Nurse had attended the premises on less than five occasions. Further, the appellant had not completed the requisite educational coursework. The appellant subsequently brought an appeal against the Council under s 159 of the Regulation, challenging her suspension.

Findings

The Tribunal dismissed the appeal.

Although the appellant had given evidence that she misunderstood the nature of her supervision condition, this was immaterial. The Tribunal held that if the appellant held such a misunderstanding, this indicated a "lack of intellectual capacity inconsistent with that which is required for an enrolled nurse to practice safely". In the alternative, the appellant was either careless, or held only a tokenistic regard for the supervision condition and proceeded with reckless disregard. In any case, the Tribunal was satisfied that the appellant's poor performance and her failures to comply with supervisory conditions justified suspension on the grounds that she may pose a risk to the health and safety of her present and future clients.

As an ancillary matter, the Tribunal noted that there may have existed, in the aggregate, a situation which may call for investigation of all of the circumstances in which the appellant operated her beauty salon practice as part of a commercial relationship with Dr Ho. Notably, the Court raised concern over the lack of regulation for injectable substances and minimal supervision by Doctor Ho which was reflective of a commercial arrangement. As such, the Tribunal asked the Nursing and Midwifery Council to refer a copy of the reasons for decision to the Health Care Complaints Commission, Medical Board of Australia and the relevant Departments of Health in New South Wales and Western Australia.