Health Care Complaints Commission v Ambut

Background

1. The Agreed Facts noted that in 2009 the Practitioner had obtained a Bachelor of Science in Nursing in the Philippines. On 13 January 2016, he was first registered as a Registered Nurse (RN) in Australia. To that point, he had worked as a casual assistant in nursing at the Royal North Shore Hospital (RNSH) in Sydney. On obtaining his registration, he continued to work at that hospital as a registered nurse until October 2020. In addition, during the period the Practitioner worked at RNSH, he also worked as a RN employed at Liverpool Hospital by the South Western Sydney Local Health District. As a NSW Health employee at any public hospital, the Practitioner was required to comply with the NSW Health Code of Conduct. It was agreed that on 7 November 2019, the Practitioner signed that Code of Conduct and agreed to comply with it.
2. The evidence discloses that from about 2018, the Practitioner endeavoured to enhance his qualifications and commenced working as a sessional academic/clinical facilitator. In that capacity, he worked at the Australian Catholic University, the University of Notre Dame, and the University of Wollongong.
3. There is no evidence before the Tribunal which suggests that apart from the matters which form the complaint now before it, the Practitioner has been the subject of any other complaint or issue in relation to his practice as a RN. Indeed, the documents placed before us on his behalf reflect a competent nurse and, in relation to his teaching endeavours, an instructor well thought of by his students.

The Applicant's Complaint

1. Nevertheless, as Ms Bayley who appeared on behalf of the HCCC said in her helpful written submissions, there is no doubt that the Practitioner: "… misappropriated Dexamethasone from Liverpool Hospital, lied to his supervisor when he was questioned about the Dexamethasone by giving a false account [and] breached a confidentiality direction by discussing the incident with his colleague …."
2. It remained at issue before the Tribunal whether he, in addition, encouraged that colleague to corroborate his false account. That colleague, Person B, gave evidence and was cross-examined in the proceedings. The Practitioner was also cross-examined as to what each of them said took place. Person B's evidence was and remained in cross-examination consistent with the statement she gave at or about the time of the incident and which appears in the HCCC bundle. [2] During cross-examination, Person B made concessions where appropriate.
3. The Practitioner was cross-examined about Person B's evidence that he had endeavoured to induce her to support the initial position that he had taken, which was that he had only removed saline solution and a cannula. His evidence remained largely consistent with a statement dated 28 May 2021 which the Practitioner submitted to s 150 proceedings which appear to have taken place on or about 25 June 2021. When pressed by Ms Bayley for the HCCC, the Practitioner said of Person B, words to the effect that: "She did not offer to lie for me. She asked me, 'I'm going to tell her [Person A] what you said [a reference to the saline solution and cannula]. I have your back.'"
4. The Tribunal is not bound by the rules of evidence but it must ensure procedural fairness is afforded to the parties. Credit findings where necessary must be made and must be determined having appropriate regard to the relevant considerations as outlined in Briginshaw. [3] Credit findings, however, in the context of proceedings which regularly come before this Tribunal, can have consequences beyond the determination of the truthfulness of one witness' evidence as opposed to another. The Practitioner has here admitted the first three particulars alleged in support of the HCCC's first complaint. The HCCC further alleges, and the Tribunal agrees for the reasons set out later in this decision, that, either separately or together, the facts comprised in those particulars are sufficient to establish the second complaint made by the HCCC. For that reason, the Tribunal finds it unnecessary to determine the fourth particular alleged by the HCCC in support of its first complaint.

The parties' evidence

1. The HCCC relied upon the following evidence: 1. An Evidentiary Certificate provided by the Australian Health Practitioner Regulation Agency (AHPRA) and two evidentiary bundles, which became Exhibits 1, 2 and 3.
2. The Practitioner relied upon the following evidence: 1. References and testaments emailed by his solicitor which became Exhibit 5; and 2. Both parties relied upon a joint statement of agreed facts which became Exhibit 4.

Orders sought by the parties

1. The HCCC sought an order that the names and addresses of the witnesses listed in the Schedule to the Amended Complaint not be disclosed pursuant to clause 7 of Schedule 5D of the National Law and an order prohibiting disclosure pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW). An order in those terms was not opposed and will be made.
2. In addition, in her written submission, Ms Bayley sought the following orders: 1. That the Tribunal would have cancelled the Practitioner's registration pursuant to s 149C(1)(b) and s 149C(4)(a) of the National Law with a 12-month disqualification period. 2. An order under s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the Practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 3. That the Practitioner pay the costs of the HCCC as agreed or assessed.
3. In her short submission, Ms El Mokdsi sought on behalf of the Respondent orders as follows if professional misconduct was established: 1. That the Tribunal would have suspended the Practitioner's registration pursuant to s 149C(4)(a) of the National Law with a 6-month suspension period. 2. That the Respondent comply with any orders in relation to supervision and/or extra training after the suspension period. 3. That each of the parties bears their own costs in these proceedings.

Relevant legal principles

1. Section 3A of the National Law notes the main guiding principle to be applied by the Tribunal in administering the National Law is that the protection of the health and safety of the public must be the paramount consideration. Pursuant to s 3(2)(a), the application of that principle includes ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered. [4]
2. Proceedings are to be primarily protective not punitive in nature. [5] However, in protecting the community the Tribunal must take into account the maintenance of standards of the relevant profession and the preservation of public confidence in that profession. [6] The deterrence of similar behaviour is a relevant factor. [7]
3. The HCCC bears the onus of proof in these proceedings but as already noted, the Tribunal is not bound in assessing evidence by the rules of evidence. [8]

Complaint 1

1. The Practitioner's admission of the first three particulars to this complaint enable the Tribunal and the Tribunal finds that the complaint is established and the Practitioner is guilty of unsatisfactory professional conduct. That conduct is also unethical. [9] In this regard, the Tribunal accepts the submissions made by counsel for the HCCC at par [10] of her written submission.

Complaint 2

1. The second complaint brought by the HCCC 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 the practitioner's registration."
2. "Professional misconduct" is a category "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation of a Practitioner's registration. [10] That determination requires an assessment of the gravity of the offending conduct and, as the authorities have established, is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards. [11] The Practitioner's evidence of the reasons behind his conduct were that it was his intention to treat a friend who did not have access to Medicare as he was at the time disentitled due to his visa status. However, whether or not the Practitioner's motive might be described as benign, that is not the point. The Practitioner had ample experience and must have known that the conduct was wrong. He must also have known that the administration of the drug was not without risk to his friend because it relied upon the Practitioner's diagnosis. The Tribunal agrees with the propositions advanced by Ms Bayley for the HCCC at pars 24, 30, 32 and 33 of her written submission. Consequently, the Tribunal finds as follows if professional misconduct was established: 1. That the Practitioner's conduct was plainly wrong and known by him to be wrongful for a number of reasons including that it was unlawful to remove the drug and other items he removed from Liverpool Hospital; 2. That the Practitioner's conduct posed a risk of harm to his friend; 3. That the Practitioner's conduct adversely impacted his hospital employer; and 4. The Practitioner's conduct adversely impacted the nursing profession.
3. It follows that the Tribunal finds the Practitioner guilty of professional misconduct.

Protective Orders

1. As the solicitor for the Practitioner submitted on his behalf, this is the Practitioner's first offence. It is further submitted on his behalf that his actions were not pre-planned but rather "momentary lapses of judgment which he regrets in their entirety". Having regard to the evidence going to the Practitioner's prior nursing performance, his teaching abilities and the character evidence placed before us on his behalf, the Tribunal accepts that the Practitioner's actions were inconsistent with that evidence and were a singular lapse in judgment. That lapse was, however, serious and the deterrence of like conduct is a factor which the Tribunal must and has taken into account in determining the protective orders to be made. Those orders which appear at the conclusion of these reasons are that, if registered, the Tribunal would have suspended the Practitioner's registration for a period of nine months.

Costs

1. The HCCC seeks an order that the Practitioner pay its costs as agreed or assessed. The Practitioner proposes that each party pay their own costs, in effect, that there be no order as to costs.
2. This is a jurisdiction in which costs follow the event. That is, unless there is some significant or exceptional circumstance as to why that should not be the case. No such circumstance exists here and there will be an order that the Practitioner pay the costs of the HCCC as agreed or assessed.

Orders 1. That pursuant to s 149C(4)(a) of the National Law, if the Practitioner were still registered the Tribunal would have suspended that registration for a period of nine months. 2. That pursuant to s 149C(4)(c) of the National Law, the Tribunal requires the National Board to record the fact that the Tribunal would have suspended the Practitioner's registration in the National Register kept by the Board. 3. That pursuant to clause 13 of Schedule 5D of the National Law, the Practitioner pay the costs of the Health Care Complaints Commission as agreed or assessed. 4. That pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the names of Person A and Person B listed in the Schedule to the Amended Complaint filed by the Health Care Complaints Commission on 17 October 2022 is prohibited.

Endnotes

1. Exhibit 4.
2. Exhibit 2, Tab 4.
3. Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
4. Health Care Complaints Commission v Dr DWF [2019] NSWCATOD 78 at [70].
5. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; [1997] NSWSC 29.
6. Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
7. Health Care Complaints Commission v Litchfield (supra) at 637.
8. Civil and Administrative Tribunal Act 2013 (NSW), s 38(2); National Law, Sch 5D cl 2.
9. Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 at [47]; Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [67]-[69].
10. Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19].
11. Health Care Complaints Commission v Litchfield (supra) at 638. 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: 01 August 2023