Health Care Complaints Commission v Alunday

NATURE OF THE JURISDICTION

1. The nature of the jurisdiction of the Tribunal is to protect the public and to maintain proper standards in the profession of nursing. The effect of any decision is not to punish the Respondent.
2. In Clyne v NSW Bar Association (1960) 104 CLR 186 at 202; [1960] HCA 40 the High Court said: "Although it is sometimes referred to as "the penalty of disbarment" it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view for the protection of those who require protection and from the professional point of view in order that abuse of privilege may not lead to loss of privilege."
3. Section 3B of the Health Practitioner Regulation National Law (NSW) ("the National Law"), provides that: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. The interests of the public includes patients or potential patients of the Practitioner concerned.
4. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "… The purpose of any order consequent upon a finding that a complaint has been proved is said to be protective of the interests of the public at large but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of … practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted."
5. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s 3B of the National Law.

THE ISSUES

1. The issue in this matter arises from the Complaint in that it is alleged that on the afternoon of 1 August 2023 the Respondent put Patient A on her bed inside Patient A's private bedroom, removed his pants and his underwear from his body and masturbated near the patient whilst Patient A was laying on her bed. The Respondent has admitted those allegations and it is therefore only for the Tribunal to determine whether the Respondent is guilty of unsatisfactory professional conduct or professional misconduct.

MATERIAL AVAILABLE TO THE TRIBUNAL

1. The Tribunal had available to it the Application for Disciplinary Findings and Orders, an Affidavit made by Samuel Fair, a solicitor employed by the Health Care Complaints Commission, containing communications with the Respondent regarding the matter, the conduct of the matter and the requirements of the Respondent. In addition, the Tribunal had access to a transcript of the s 150 proceedings. The Tribunal also had available to it the New South Wales Police Force COPS dated 1 September 2023. In addition, an affidavit by Helaina Drakos, a solicitor employed by the Applicant dealing with the issues surrounding service of documents on the Respondent and other issues.
2. Finally, the Tribunal had available to it the opening submissions by the Applicant.

EVIDENCE OF THE APPLICANT

1. The evidence of the Applicant appears from the submissions made by it as opening submissions and amended in the closing address. At paragraph 14 the date 2021 should be 2023, at paragraph 21(b) the word "Braganca" should read "Briginshaw" and paragraph 43 can be disregarded as orders have already been made restricting publication of the name of Patient A and of Person B.
2. In addition, the Applicant stated that the Applicant relies on the comments of Person B. She has given her evidence and stands by it with there being no challenge to it. She was not called to be cross-examined. She made contemporaneous notes of what she saw. There is no reason for her to have lied and indicated that she had a great deal of respect for the Respondent.
3. Relying on the evidence, the Applicant states that: "… 3. The Respondent is a Registered Nurse, registered under the Health Practitioner Regulation National Law ('National Law). The Respondent's registration as a nurse is currently suspended, however for the purposes of these proceedings, the Respondent is taken to be registered for the period of the suspension. … 5. Complaint One alleges that the Respondent is guilty of unsatisfactory professional conduct ('UPC') within the meaning of s139B(1)(I) of the National Law in that the respondent has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. 6. Complaint Two is that the Respondent is guilty of professional misconduct under s139E of the National Law. … 7. The practitioner was born [on] 28 March 1976 and is currently 48 years of age. He migrated to Australia in June 2011 from the Philippines. 8. The practitioner obtained a Bachelor of Nursing from the Western Sydney University in 2023 and was first registered as a nurse in Australia on 9 March 2023. …"

Service of Complaint and Commission's material

1. On 2 August 2024, the Tribunal made the following orders: "1. In accordance with subrule 15(1) of the Civil and Administrative Tribunal Rules 2014(NSW), service of the Application and associated materials is to be by way of the respondent's email address along with a text to be sent to his phone alerting him to the email. 2. In accordance with subrule 15(2) of the Civil and Administrative Tribunal Rules 2014 (NSW), the Application and associated materials are to be taken to have been served on the respondent once the Application and associated materials have been served in accordance with order 1."
2. The Application, Complaint and material on which the Applicant relies has been served on the Respondent in accordance with the orders for substituted service. On 27 August 2024, the Applicant sent the Application for Disciplinary Findings, Complaint and brief of evidence (comprising of 170 pages) to the Respondent via the last known email address of the Respondent. On the same day, the Applicant also sent a text to the Respondent alerting him to the email.

Ex parte Hearing

1. On 2 August 2024, the Tribunal made procedural orders which included that the Respondent was obliged to give the Applicant any material and any Reply on which he relies on or before 27 September 2024. The Applicant did not received a Reply to the Application for Disciplinary Findings, any material or any communications from the Respondent after the Complaint was filed. It was therefore anticipated that the Respondent would not appear at the Hearing or contest the matters set out in the Application for Disciplinary Findings or Complaint given the fact that he had not involved himself in the matter at all.
2. The Tribunal stated that should the Respondent not attend the Hearing, the Tribunal should proceed ex parte. The Tribunal pointed out that s 165J(3) of the National Law provides that NCAT may proceed in the absence of the practitioner, as long as the practitioner has been given notice of the inquiry. The Tribunal is satisfied that the Respondent has been given notice of the inquiry for the following reasons: "20. … a. The Commission has complied with the orders for substituted service; b. There is evidence that the Respondent has used the email address: [Redacted] as recently as 7 February 2024, which is the email address which the originating process, material and Notice of Listing has been sent to. This same email address is contained in the Respondent's signed Curriculum Vitae dated 29 August 2023; c. The Commission has made attempts to ensure that the Respondent is aware of the Hearing listing and that the Respondent is content for the hearing to go ahead in his absence. [d. On the date of the hearing the Applicant advised the Tribunal that it had that day served the Applicant's submissions as per the order for substituted service. In an abundance of caution the Tribunal ordered the Respondent be given 14 days in which to provide submissions in reply, failing which the matter would proceed Ex Parte. Nothing has been received from the Respondent.]"
3. The Applicant submitted that the following legal principles are relevant to the Tribunal's task in this matter: "Standard of Proof/Rules of Evidence 21. … a. HCCC bears the onus of proof; b. While neither the principle in [Briginshaw] v Briginshaw (1938) 60CLR 336 at 362 or section 140 of the Evidence Act 1995 (NSW) directly apply to the Tribunal's decision making, the Tribunal should be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding; c. The Tribunal is not bound by the rules of evidence. However, while not bound, the Tribunal remains subject to the rules of procedural fairness (Sudath v Health Care Complaints Commission [2012] NSWCA 171, per Meagher JA at [75]); d. Further, although the Tribunal may inform itself in 'any way it thinks fit', decisions must still be based on material which tends logically to show the existence of or non existence of facts relevant to the Issues to be determined. Thus, material which, as a matter of reason, has some probable value in that sense may be taken Into account; e. In proceedings in which the Tribunal is dealing with more than one complaint about a registered health practitioner or student, the Tribunal may have regard to all the evidence before it (whether the evidence arose in relation to a complaint in respect of which the Tribunal is making a finding or any other complaint or complaints in the proceedings) when making a finding on a question of fact or a finding as to unsatisfactory professional conduct/professional misconduct; f. These proceedings are referred to as an Inquiry by the National Law. These matters stamp the Tribunal's work with an inquisitorial model and as such is not a Court and should not be treated as a Court of strict pleading; g. Complaints are not pleadings; h. The Tribunal in the proceeding makes an evaluative judgment as to the seriousness of the misconduct and the inferences that should be drawn. … Complaint One 22. Complaint One alleges that the Respondent is guilty of UPC under s139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. … 24. The National Law contains no definition of the term "improper and unethical" in the context of section 139B. The following caselaw however provides guidance as to the meaning of those words: a. In HCCC v Boulton [2021] NSWCATOD 160 the Tribunal referred to the Macquarie Dictionary definition of "improper" as "not in accordance with propriety of behaviour, manners et cetera" or "abnormal or irregular" and of 'unethical'" as "1. Contrary to moral precepts; immoral" and "2. In contravention of some code of professional conduct." b. In HCCC v Nguyen (2018] NSWCATOD 168 the Tribunal considered the application of the term "improper conduct" in section 139B(1)(l) and stated "the High Court has noted that 'improper is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514 where Brennan, Deane, Toohey and Gaudron JJ said: "impropriety does not depend on the alleged offenders consciousness of impropriety. Impropriety consists in a breach of the standards of ethical conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position or circumstances of the case.· The Commission's Case 25. The [Applicant states that the] evidence supports the … factual findings [which are set out in the Tribunal's Reason for Decision.] … 28. Complaint 2 alleges that the practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has engaged in more than one instance of unsatisfactory professional conduct that when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of a practitioner's registration. The Commission submits that the particulars of Complaint 1 either individually or cumulatively are sufficiently serious enough to justify suspending or cancelling the practitioner's registration, and therefore a finding of professional misconduct is warranted. 29. The following principles are relevant when the Tribunal considers whether the conduct meets the threshold of professional misconduct: a. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from proper" or "reasonably expected· standards". b. The actual outcome of the conduct in the specific instance is not the focus of the finding, rather the nature of the conduct and its capacity to justify the order. c. The seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred. Such circumstances would relevantly include the practitioner's state of mind at the time of the conduct, risk of harm arising from the conduct and the practitioner's knowledge, skill and training. 30. The conduct is sufficiently serious to justify suspending or cancelling the practitioner's registration for the reasons as set out [by the Applicant]. 31. The Commission further submits that the seriousness of the conduct is aggravated by the steps that the Respondent took to avoid detection of his behaviour, such as closing the curtains, turning off the lights and performing the act in a private setting when he was aware that Person B was tending to another patient, and the other AIN on shift was on break. These steps, make it clear that the Respondent knew what he was doing was wrong. … 32. The orders sought by the Commission, as set out in the Application for Disciplinary Findings are: a. Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law with a non-review period of 3 years; b. A prohibition order pursuant to s 149C(5)(a) prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as any non-review period imposed. c. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law as agreed or assessed. … 35. [The Applicant submitted that] [c]ancellation of the Respondent's registration is appropriate in this case for the following reasons: a. The conduct was objectively serious and had a high risk of harm to the patient and his colleagues: b. There is a need for specific deterrence in this case to protect other patients and health service workers from the Respondent, particularly in circumstances whereby the Respondent has failed to engage in these proceedings; c. The conduct has a real potential to erode public confidence in the nursing profession. The community expects nurses to exhibit integrity, trustworthiness, and high moral and ethical values. The conduct committed by the practitioner is at complete odds with these expectations: d. The Respondent has failed to provide an explanation or motivation for the conduct to either the Council or the Commission; e. The Respondent's conduct of failing to engage with his employer during the investigation of the incident and immediately obtaining employment with another aged care provider as a Registered Nurse, is not the behaviour of someone that truly appreciates the severity and significance of his conduct; f. There is clear nexus between the conduct and the practitioner's professional role. In other words, the conduct occurred during his work as a nurse and in the context of the treatment of a patient; g. The practitioner has not demonstrated any remorse or consideration of how the patient could have felt during the conduct. His evidence given to the Council during the s150 proceedings was focused upon his own misfortunes, his family and the distress caused to Person B, rather than the patient or her family. h. There is a need for general deterrence to reinforce high professional standards and maintain the reputation of the profession; i. The respondent had an opportunity to demonstrate insight and remorse by participating in the inquiry; j. There is no evidence before the Tribunal regarding current fitness to practise. Importantly, there is no evidence allowing the tribunal to assess: i. recent education in relation to ethics and/or professional boundaries; ii. current psychiatric and/or psychological fitness; iii. the risk of re-offending; iv. current support systems; v. current recidivism risk; vi. current employment status; vii. current health status. 36. As to the period of the non-review period sought by the HCCC of 3 years, it is submitted that a period within this range appropriately reflects the seriousness of the conduct provides general and specific deterrence as well as holds open the possibility that an application for re­ registration thereafter will at least be considered once the respondent obtains insight and shows evidence of rehabilitation. 37. A lesser sanction of a suspension is inappropriate in this case as this protective order should only be considered in circumstances where the practitioner will be fit to practise at the end of the period of suspension. Here, there is no evidence before the Tribunal as to when the Respondent will regain fitness, if ever. …
4. The Applicant pointed out to the Tribunal that: "Prohibition order 38. Section 149C(5) says that: 'If the Tribunal suspends or cancels a registered health [practitioner's] or [student's] registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently,· (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.' 39. The HCCC seeks a prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as any non-review period imposed. 40. The question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if that person were to be involved in the provision of health services. 41. For the same reasons as … the HCCC says the Respondent's registration should be cancelled, the HCCC submits the respondent remains a substantial risk to the health and safety of members of the public, and so, a prohibition order is warranted in this case. Such an order would also ensure that the protective purpose of the cancellation order was not undermined by the Respondent being permitted to provide health services as an assistant in nursing. 42. Further, the lack of evidence before the Tribunal as to the Respondent's future plans, his failure to participate in the hearing and failure to express any remorse or insight in this case, supports such order. Non-Disclosure Orders 43. The Application for Disciplinary Findings … prohibiting the disclosure of the names of the persons listed in the Schedule to the Complaint pursuant to s64(1)(a) of the Civil and Administrative Tribunal [is in place]. Such orders are desirable in this case to protect Patient A's privacy and to not deter future complainants from coming forward. Costs 44. The HCCC seeks an order that the Respondent pay the HCCC's costs, as agreed or assessed in accordance with Schedule 5D, Clause 13 of the National Law. 45. The Tribunal has the power to require the Complainant, registered health practitioner or any other person entitled to appear before the Tribunal to pay the costs of another, where so decided by the Tribunal. 46. The relevant principles as to costs in this jurisdiction are: 1. Ordinarily, costs should follow the event unless there are reasons to conclude otherwise; 2. Mere impecuniosity is not a justifiable reason for departing from that rule; 3. There are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing. 47. There are no factors in this case that could militate against the recovery by the Commission of all of its costs such as those identified in Health Care Complaints Commission v Philipiah [2013] NSWCA 342. The HCCC has acted properly in the proceedings and has also sought to minimise costs by not briefing external counsel." (Footnotes omitted.)

EVIDENCE OF THE RESPONDENT

1. The Tribunal had very limited evidence from the Respondent and could only rely on the appearance by the Respondent at the s 150 hearing before the Nursing and Midwifery Council.
2. The Respondent was asked whether he was aware of the complaint made against him and why he was before the Nursing and Midwifery Council to answer to this issue. In response he said that to his understanding, of course, the facility is protecting the residents from any harm. He stated that it is his behaviour at the time which is really serious and something which a staff member should not do and therefore he understood that it was necessary for them to take action against him.
3. The Respondent effectively did not participate any further in the investigation of the matter having admitted his wrongdoing.

APPLICANT'S SUBMISSIONS

1. The Respondent's admissions were formally provided as part of the Applicant's submissions in that they list all of the evidence to the Tribunal as evidence on the part of the Applicant.

RESPONDENT'S SUBMISSIONS

1. The Respondent made no submissions in regard to his defence of the matter and as he did not appear before the Tribunal on the date of the hearing no submissions were made by the Respondent at the hearing.

decision and reasons

1. The Tribunal having read the evidence contained in all of the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and read the evidence given by the Respondent in the s 150 hearing, having reviewed the various additional documents which were tendered and having considered the submissions made by the Applicant, the Tribunal is satisfied that the complaint made by the Applicant against the Respondent as set out in the Complaint is proven and that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct.
2. The basis on which the Tribunal has come to that conclusion is that: 1. The conduct particularised in the particulars of Complaint 1 was, in the view of the Tribunal, improper and unethical. It was unethical in that it was contrary to various applicable codes of conduct governing the practise of nursing, including, as set out in particular 2. 2. The Tribunal having reviewed the Nursing and Midwifery Board of Australia Code of Conduct 2018 ('Code of Conduct') was satisfied that under Clause 2.1 of the Code of Conduct the Respondent failed to provide safe and quality care and practise in accordance with the standards of the profession. 3. In addition under Clause 4.1 of the Code of Conduct the Tribunal was satisfied that the practitioner failed to: 1. maintain professional boundaries; or 2. recognise the inherent power imbalance, that existed between him and Patient A. 1. In the view of the Tribunal the conduct was improper by virtue of the fact that: 1. the Respondent held a position of trust and authority over a vulnerable patient and by his actions, he abused this position; 2. the conduct of the Respondent violated the patient's dignity; and 3. the Respondent took advantage of the patient's health status in that she would either not have understood what was happening or would not be able to remember what happened or she may have had the view that she would not have been believed if she raised concerns; 4. the conduct risked causing distress and confusion to the patient; or 5. the conduct could cause distress to any person who became aware of the conduct, such as Person B; 6. the conduct demonstrates a lack of understanding of boundaries in professional relationships, respect for female colleagues and a lack of general judgment. 1. In forming a view of the appropriate position to be adopted by the Tribunal the following principles apply: 1. The Tribunal takes account of the fact that the guiding principle is "the protection of the health and safety of the public must be the paramount consideration". 2. The Tribunal's jurisdiction is primarily protective in nature, rather than punitive". 3. In exercising its protective jurisdiction, the Tribunal notes that it must have consideration for the maintenance of the standards of the nursing profession, preservation of public confidence in the profession and, more broadly, the protection of the community. 4. The Tribunal had regard to s 3A which establishes the protection of public safety as the chief concern, but notes that additional considerations include deterring others from engaging in similar conduct. This is a necessary part of maintaining the standards of the profession and thereby ensuring the continuance of public safety and faith in the profession. 5. The determining of appropriate protective orders means that the Tribunal must remind other members of the profession of the public interest in the maintenance of high professional standards and the order needs to emphasise the unacceptability of the conduct involved in the disciplinary offence. 6. Protecting the health and safety of the public is not confined to protecting future patients from the risk of harm. The Tribunal may appropriately take into account matters such as the maintenance of standards and the general standing of the profession. Denouncing misconduct operates both as a deterrent to the individual concerned as well as to the general body of practitioners.
3. In respect of the conduct of the Respondent the Tribunal was in the unfortunate position that it had no evidence other than that contained in the s 150 hearing and as the Respondent failed to appear at the hearing the Tribunal had no ability to make assessment of the Respondent's statements that he recognises his wrongdoing, that it was a very bad mistake and that it would never happen again. Without being able to hear the evidence from the Respondent and to assess his demeanour and his sincerity, the Tribunal can only rely on the evidence against the Respondent in coming to its conclusion. The Tribunal was satisfied that the Respondent did in fact take Patient A to her room, close the curtains, switch off the lights and, having placed her on her bed, removed his pants and his underwear and masturbated in the view of Patient A. Accordingly, the Tribunal is satisfied that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct.
4. In the circumstances, the Tribunal makes the following orders.

ORDERS 1. Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law with a non-review period of 3 years; 2. A prohibition order pursuant to s 149C(5)(a) prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as any non-review period imposed. 3. An order that the Respondent pay the Applicant's costs under clause 13 of Schedule 5D of the National Law 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

Amendments 14 February 2025 - Updated Coversheet 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: 14 February 2025