Dudhela v Health Care Complaints Commission

The Respondent's submissions

1. The HCCC neither opposed nor consented to Mr Dudhela's reinstatement application.
2. In its submissions the HCCC pointed the Tribunal to a number of considerations it said the Tribunal should take into account in determining whether it was satisfied that a reinstatement order was appropriate. Those considerations, amongst others, are dealt with below.

Consideration

1. Mr Dudhela desires to return to practice as a registered nurse in an aged care setting where he feels he can make a meaningful contribution. Ultimately he wishes to teach, but he wishes to go back to practice at this stage to gain further practical experience he can then draw on in his teaching. He is clearly passionate about pursuing such a career.
2. Over eighteen months having passed since the Tribunal's orders were made, it is open to Mr Dudhela to seek a review of the order cancelling his registration under s 163A of the National Law.
3. Mr Dudhela has the onus of proof in these proceedings and, as the HCCC submitted, the onus is a heavy one. The onus is on Mr Dudhela to demonstrate to the Tribunal that, having engaged in conduct of such a serious nature, he can now be trusted to return to practise in a way that presents no risk to the safety of the public and their confidence in the profession. Clear proof is required that he has gained insight and that he will not behave in future in a way that causes risk to patients or may bring the profession into disrepute. The Tribunal is to exercise the power to reinstate with great caution, only on solid and substantial grounds, and is to approach its task with a "healthy scepticism". The paramount consideration is the protection of the public.
4. Mr Dudhela's conduct in failing to maintain observations as directed, a clear-cut basic responsibility of a mental health nurse, and in falsely signing for rounds he did not complete was extremely serious. Mr Dudhela was an experienced nurse with significant experience in mental health nursing and yet he put the safety of an extremely vulnerable patient at risk. He has rightly accepted the Tribunal's findings against him in this regard and accepts that his conduct was inexcusable.
5. It is clear to the Tribunal that Mr Dudhela has reflected on his conduct at the time of Patient A's death.
6. The evidence shows that Mr Dudhela has undertaken a significant amount of professional development, both before and after the cancellation of his registration. Before the cancellation of his registration he undertook a Certificate in Ageing Support and a Graduate Diploma of Gerontological Nursing.
7. Since the cancellation of his registration he has also undertaken a significant amount of professional development training including various on-line and other courses related to aged care nursing, disability nursing and teaching skills. As part of his Certificate III in Individual Support (Ageing) which he completed in March 2023 (by way of credit transfer for 10 of the 13 Units of Competency) he completed a component titled "Work legally and ethically" which, he says, was a 16 hour component. He has also undertaken a two hour "Law and Ethics in Practice" webinar conducted by the NMWA, a two hour webinar "Nursing and Midwifery Board (NMBA) Code(s) of Conduct" and a three hour webinar on whistleblowing. Assuming the "Work legally and ethically" component of his Certificate III did take 16 hours (which cannot be independently verified on the material before us), this amounts to 23 hours of training relevant to or transferrable to ethics in the practice of nursing.
8. Mr Dudhela is to be commended for undertaking significant professional development including courses on ethics which directly relate to the very serious errors of judgment that he made. However, undertaking training such as this is one thing, putting into practice the lessons taken from it is another.
9. Mr Dudhela says, and we accept, that he deeply regrets his conduct and the effect it had on Patient A and his family. However, at the hearing Mr Dudhela accepted in cross-examination that his conduct on the evening of 26 May 2017 was not limited to Patient A. It is of significant concern to us that Mr Dudhela did not express (and does not appear to have otherwise expressed) remorse for the effect his conduct may also have had on other patients.
10. Mr Dudhela says that he has gained insight, developed "critical thinking analysis tools", feels more "emotionally mature" and would never behave in a similar way again.
11. However, apart from the letter of recommendation from Ms Lovett, all that is before the Tribunal is Mr Dudhela's own uncorroborated evidence in this regard.
12. Ms Lovett's letter of recommendation is undated and it is not addressed to the Tribunal. However, even if we accept Mr Dudhela's evidence that he told Ms Lovett that he was seeking reinstatement and asked for a letter from her for the purposes of this application, all that he says he told Ms Lovett in that regard was that his registration had been cancelled for "poor practice". He did not tell her the details of his conduct leading to his registration being cancelled or of the Tribunal's very serious findings against him. In those circumstances we can give very little weight to Ms Lovett's letter.
13. The Tribunal has before it no independent evidence of how Mr Dudhela's behaviour has changed since the order cancelling his registration and/or how he has put into practice what he has learnt from the relevant courses he has undertaken.
14. Mr Dudhela worked at St Sergius Aged Care for approximately three years after conditions were imposed on his registration and before it was cancelled. He worked under a mentor/supervisor, Ms Susanna McGuire. Mr Dudhela said that Ms McGuire had helped him improve his practice. However, no evidence from Ms McGuire has been provided to the Tribunal.
15. The conditions imposed on Mr Dudhela's registration by the Council prior to the cancellation order being made required monthly supervisory reports to be provided to the Council, however (albeit such reports would clearly cover the period prior to the cancellation order) none of those reports have been put before the Tribunal.
16. Mr Dudhela said that, if reinstated, he would be confident that he could again work at St Sergius. However, no evidence was provided to the Tribunal from anyone from St Sergius Aged Care supporting this statement or his reformation of character.
17. In her letter dated 28 February 2024 confirming in-service education Mr Dudhela undertook before his registration was cancelled, Ms Zaytseva, the Director of Care at St Sergius Aged Care, stated that Mr Dudhela's engagement in these sessions reflected "his dedication to professional development and maintaining high standards of patient care". However, no leave was sought by Mr Dudhela to provide any further character references, so the Tribunal proposes to disregard this observation. We note, however, that even if we were to take it into account, given we have no information as to how well Ms Zaytseva knows Mr Dudhela or whether she is aware of the Tribunal's findings in the disciplinary proceedings and given the generality of the observation, it would be wholly insufficient to persuade us of Mr Dudhela's rehabilitation.
18. It emerged during the course of Mr Dudhela's evidence at the hearing that the CV that he included in the bundle of materials he relied upon contained a typographical error. It stated that Mr Dudhela ceased working at St Sergius Aged Care in September 2020, rather than November 2020. Mr Dudhela also needed to correct his oral evidence given in this regard. It also emerged that Mr Dudhela had, since the time he prepared his CV in October 2023, commenced working at Macquarie Training College and Wesley Mission. We accept that the typographical error in Mr Dudhela's CV was a genuine mistake. We also accept that Mr Dudhela's original evidence in this regard was given under a genuine mistake. Further, we do not consider that, by omitting to include details of his work at Macquarie Training College and Wesley Mission Mr Dudhela was seeking to mislead the Tribunal in any regard. However, the fact that Mr Dudhela needed to correct his CV and that his CV was some four months out of date demonstrated to us that Mr Dudhela did not take particular care in putting his documentation together for the Tribunal.
19. In circumstances where poor documentation practices are in issue, this lack of attention to detail does not give us confidence that Mr Dudhela has clearly understood just how important it is to have clear and accurate documentation particularly in a nursing context.
20. Mr Dudhela wishes to return to practice in an aged care setting where he would be responsible for the care of vulnerable patients. Where we must exercise great caution and where the protection of the public is our paramount concern, the Tribunal cannot simply take Mr Dudhela's "word for it" that he can be trusted to practise in a way that presents no risk to the safety of those patients.
21. Mr Dudhela has not satisfied his onus of proving that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession. We simply cannot be satisfied on the very limited evidence before us that it is appropriate for us to make the reinstatement order that Mr Dudhela seeks.
22. As we propose to dismiss Mr Dudhela's reinstatement application, it would also be open to us to make an order under s 163B(5) of the National Law that Mr Dudhela is not to make a further application for review of the order cancelling his registration for a further specified period of time. The HCCC submitted that a non-review period of two years would be appropriate.
23. We note that a non-review period of two years would be greater than the non-review period set by the Tribunal in cancelling Mr Dudhela's registration. We do not propose to make such an order in this case. It is, accordingly, open to Mr Dudhela to make another application for reinstatement when he believes it is appropriate to do so. However, Mr Dudhela must be aware that he is unlikely to be successful on any further reinstatement application if he does not present independent and probative evidence to the Tribunal of his insight, his rehabilitation and his fitness to practise in a way that presents no risk to the safety of patients.

Costs

1. In exercising the power to award costs under cl 13 of Schedule 5D of the National Law, the general rule is that "costs follow the event": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].
2. Ms Doust submitted on behalf of Mr Dudhela that, in this case, no order as to costs should be made and pointed to the decision of Brown v Health Care Complaints Commission [2015] NSWCATOD 40 which in turn refers to the case of Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 where no order as to costs was made. Donnelly was considered at some length in the case of Ristevski v Medical Council of NSW [2016] NSWCATOD 18 where at [82] the Tribunal concluded: What emerges from the review of the cases raised by the applicant where no order was made is that the public interest respondent who is given leave to appear in answer to a reinstatement application should not assume that the Tribunal will compensate it for their participation, at least where the applicant's application is successful. Some attention will be given by the Tribunal to the way the respondent conducted itself in the proceedings (a usual matter in all cases involving costs disputes). Where the participation is seen as unsatisfactory or of little or no value, it may be disposed not to order costs.
3. At [87] the Tribunal concluded: … A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused.
4. In conducting a review of a relevant order under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the HCCC as a public interest contradictor: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 at [51].
5. Ms Doust submitted that while Mr Dudhela's conduct was serious it "was not serious enough to tip the balance for a costs order in favour of" the HCCC. However, that is to misstate the test. It was not suggested that the HCCC has engaged in any disentitling conduct in the manner in which it has appeared as contradictor in Mr Dudhela's reinstatement application. The HCCC has conducted its case entirely appropriately and the Tribunal has been assisted by its appearance. The fact that, as Ms Doust submitted, the HCCC limited the evidence it served in these proceedings largely to documents served in the disciplinary proceedings is not a reason to depart from the general rule that costs should follow the event (indeed that is likely to reduce the costs Mr Dudhela may be required to pay) and we can see no other reason for doing so.

Orders 1. Pursuant to s 163B(1) of the Health Practitioner Regulation National Law (National Law), the application is dismissed. 2. The Applicant is to pay the Health Care Complaints Commission's costs as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2024