Dudhela v Health Care Complaints Commission

Judgment (6 paragraphs)

[1]

The Applicant's submissions

Ms Doust submitted on behalf of Mr Dudhela that: 1. Mr Dudhela has continued to reflect on his conduct and fully understands his conduct on the night of 26 May 2017 was professional misconduct; 2. The "incident" is a constant reminder to him of the paramount responsibility he has to the care and safety of his patients; 3. He has been deeply committed to improving himself professionally and in his life overall; 4. He has demonstrated "sound and meaningful" insight into the fact that he engaged in professional misconduct; 5. He continues to be ashamed by his limited insight at the time which lead to his conduct on the night shift. He now understands his conduct was inexcusable; 6. Mr Dudhela has completed substantial and relevant continuing professional development including CPD that would improve his clinical skills and challenge and develop his critical thinking skills and ethical values and approximately 42 hours of CPD concerning ethics which is transferrable to the practice of nursing. This CPD, it was submitted, has given him structure and guidance for his future workplace values and principles. He now understands the relevance of the Code of Conduct, the Code of Ethics and the Standards for Practice and that they are fundamental to nursing values and performance; 7. He can now see his lack of courage and failure to advocate for Patient A was unacceptable and, having completed education on how to be an ethical whistleblower, if placed in a similar situation again he would, without hesitation, draw on his critical thinking skills and advocate for his patients following the policies and procedures for safe patient care; 8. Mr Dudhela has demonstrated true remorse and genuine insight into his failings on 26 May 2017 and the importance of clinically sound and ethical nursing practice.
It was submitted that the Tribunal should take into account the "character reference" from Ms Lovett, in particular her statement that: Honesty, integrity, calm disposition, and ethical practices are key to being a successful trainer/assessor in our industry, Mehul displays all of these and more.

Consideration

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.
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.
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.
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.
It is clear to the Tribunal that Mr Dudhela has reflected on his conduct at the time of Patient A's death.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

Relevant Principles

As ss 163C(1) and 163C(2) of the National Law make clear, the review is not a review of the original decision to cancel the practitioner's registration, but is a review to determine the appropriateness of the cancellation order as at the date of the hearing of the application. As Brereton JA, with whom Bell P (as His Honour then was) agreed, stated in Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [17] (footnotes omitted): [17] In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application. In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, the paramount consideration being the protection of the health and safety of the public.
The approach to be taken in considering an application for a reinstatement order under the National Law has been set out in numerous decisions of the Tribunal including recently in Mayr v Health Care Complaints Commission [2023] NSWCATOD 148 at [9]-[12]. As the Tribunal observed in Mayr, in Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13, Adams J noted that the general principles to be followed had been correctly identified by the Tribunal below in Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 at [7]-[8] as follows (internal case citations omitted): "[7] The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms: 12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of 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 (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; (5) There is no public interest in denying forever the chance of redemption and rehabilitation to [a] former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance; (6) "Clear proof" is required to establish that there has been a reformation of character. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made"; (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the Applicant. [8] In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated: 30. In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: [A]n Applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. 31. In that case, the Medical Tribunal also stated at [42]: [T]he ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession."
In Mooney v Medical Council of NSW [2024] NSWCATOD 24 the Tribunal explained at [18]: Several formulations have been put forward as ways of predicting how a person will behave in future. Have they gained insight? Have they proved that they have overcome a defect in character? Are they now a 'fit and proper person' to be registered? Essentially the question is whether [the practitioner] has proved 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: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24].
In Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 at [13] the Tribunal said: [13] We must approach the matter of reinstatement with a healthy scepticism - see Ex parte Tziniolis, Re the Medical Practitioner Act (1966) 84 WN (Pt 2) (NSW) 275 at 286 (Walsh J). As was noted by the High Court a long time ago in Re Lenehan [1948] HCA 45 at [27] (Latham CJ, Dixon and Williams JJ) when a lawyer applies for reinstatement to the relevant roll of practitioners, they are in a more disadvantageous position than an original applicant because they must displace the decision as to probable permanent unfitness which was the basis of their removal. While they may be restored to the roll after they have been struck off, the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds. This approach has been adopted in New South Wales and is appropriate to health practitioners seeking to be reregistered as practitioners - see Dawson v The Law Society of New South Wales [1989] NSWCA 58 at [12] (Mahoney JA). …
The standard of proof is the civil standard of proof, that is, on the balance of probabilities to the level of satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Given that the National Law is directed at the protection of the public, the Tribunal must be satisfied to a robust level: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 at [39] and the cases there referred to.

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Judgment (6 paragraphs)

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