Health Care Complaints Commission v Aryal

Nature of the jurisdiction

1. The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and to maintain proper standards in the profession of nursing.
2. In Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201-202; [1960] HCA 40, the High Court said: "Although it is sometimes referred to as "the penalty of disbarment", it must be emphasized 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 3A of the Health Practitioner Regulation National Law (NSW) ("the National Law"), provides that "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 include 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 made 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 medical 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 3A of the National Law.

The issues

1. In essence, therefore, the issues which arise are clearly set out in the particulars of Complaint One. The Respondent was convicted of a criminal offence in New South Wales which is clearly proven and admitted by the Respondent, and is therefore not in issue.
2. In respect of Complaint Two, that the Practitioner failed to notify the National Board within seven days that he had been charged on 17 March 2018 with an offence punishable by 12 months imprisonment or more has been agreed to by the Respondent and the only issue for the Tribunal to determine therefore is whether there is a satisfactory explanation for the failure to notify the Nursing and Midwifery Board of Australia ("the National Board").

Respondent's Reply to the Complaint

1. The Respondent has responded to the Complaint in his own words in the following terms: "… Please do not punish me more than I should be. Yes I have done a mistake in my life and because of this I have lost everything in my life. I am in jail. I do not wish to live any second. I am already a dead person, waiting to be physically dead. I am responsible for my action. I sow the seed now I am reaping it. You all are doing your job. I know that you will have to answer the public and ensure public safety. I am nothing anymore. People may judge my past, present and future on the basis of my criminal conviction. However I cannot control anyone. Only one thing I can do is purify my mind, speech and action and do not do any further bad karma. No matter what I say to you, you guys will bring this clauses and that to blame me and punish me. I have already experienced unfairness in the trial during my criminal case. My voice means nothing anymore. I am a broke person. After coming out of jail I would be a homeless person. My ex-wife took all the property and super (90% of my assets) and made me to pay her legal fee too. She hide all the deposit money personal belongings from me and washed her hands [of] me. Your [H]onour I know in your court again I might get ripped off. Thank you your [H]onour. No one really cares anymore how helpful I was, compassionate I was towards my clients.
2. While that response does not deal with the allegations contained in the Complaint, the evidence before the Tribunal is reviewed later in these reasons to reflect the approach the Tribunal should take in respect of protective orders, once a decision has been made in respect of the guilt of the Respondent for both complaints.

Evidence of the Applicant

1. The Applicant has provided a large body of documents some of which will be dealt with in these reasons in order to determine the appropriate protective orders that should be made.

Section 150 proceedings

1. The Tribunal was provided with a copy of the reasons for decision of the Nursing and Midwifery Council of New South Wales ("the Council") following a s 150 hearing.
2. In considering the application of the provisions of s 150 of the National Law, the Council delegates had regard to whether any action is appropriate for the protection of the health or safety of any person or persons or for reasons otherwise in the public interest.
3. After carefully considering the material before them and for the reasons outlined in the written decision, the delegates were satisfied that it was appropriate to impose a condition on the Respondent's registration.
4. Pursuant to s 150(1)(b) of the National Law, the delegates imposed a condition on the Respondent's registration that he must not work as a registered nurse until reviewed by the Council and the condition is removed.
5. The Tribunal was provided with a copy of the sentencing remarks of the District Court of New South Wales in its decision on 19 February 2020 following a finding of guilt against the Respondent by the jury. In summary, the sentence of the Respondent is as follows: 1 The offender, Mr Aryal, stood trial before a jury in the District Court at Parramatta from 21 August 2019 on an indictment containing four counts, counts 2 and 4 being expressed in the alternative to counts 1 and 3. On 30 August 2019 the jury found the offender guilty of the two primary offences in counts 1 and 3. The offences are one each of having sexual intercourse with the complainant without consent knowing that she was not consenting in circumstances of aggravation, namely that the complainant had a cognitive impairment. Each offence carries a maximum penalty of 20 years imprisonment, and a standard non-parole period of ten years, which are matters that I have taken into account as guideposts in the sentencing exercise. 2 In determining the appropriate sentence I am required to make findings as to the relevant facts, which must of course be consistent with the verdicts of the jury. I make the following findings. 3 At the time of the offences the complainant victim was 21 years of age and lived with her mother and grandmother. She had been diagnosed a number of years earlier as having a mild to moderate intellectual disability. In March 2017, about one year before the offences, she scored in the extremely low range for cognitive functioning with her full scale IQ scores being in the extremely low range, placing her IQ as being greater than 0.1% of others in the community of a similar age. What this means is that more than 99% of people of similar age would score more highly than the victim. 4 Due to her intellectual disability the victim required constant supervision and care, including assistance getting dressed, having her meals prepared, and in taking her medication for a lifelong epilepsy disorder. She also had difficulty understanding the concept of time and safety. Although she had learned to shower herself and to put on her own shoes, she did not know how to tie her laces. She did, however, work part-time as an office assistant in Wynyard on weekdays from 2pm to 5pm doing administrative and cleaning jobs, although even then she required assistance from a job support trainer three days per week. 5 In 2018 she was attending Randwick TAFE two days a week and undertaking a certificate in career preparation. The victim had been "travel trained" so that she could catch the train from her home near Panania into the city and return, although she was usually accompanied to the train station in the mornings by her grandmother. The victim also had a mobile phone and a watch which enabled her mother to track her whereabouts using software installations on those devices. 6 The offender was 42 years old at the time of the offences and lived in Panania with his wife, two young children, and his parents-in-law. He worked as a registered psychiatric nurse for the Justice Health and Forensic Mental Health Network. He had a Masters Degree in Nursing, majoring in mental health, in which he had achieved several distinction grades and had been working as a nurse for about ten years. At the time of his offences his work with the Justice Health organisation involved him caring for, attending to, and assessing patients with mental illnesses, brain injuries and intellectual disabilities. 7 The offender first met the victim by chance as she was walking home from Panania Railway Station while the offender was walking his young son in a pram. The offender and the victim commenced talking and exchanged telephone numbers. This led to contact by means of telephone conversations and text messages during the following week. On Sunday, 11 March, five days before the offences, the victim and the offender spoke by telephone for about thirty minutes. About half an hour later the offender tried to call the victim five times but his calls were not answered. … 11 On the day of the offences, Friday 16 March 2018, the offender met the victim at Panania Railway Station on her return from work and bought some food for them to eat. He then asked the victim whether she wanted to drive somewhere with him, and after she agreed he said "Maybe I'll take you somewhere we can get to know each other". The offender then drove the victim in his Toyota van to Deepwater Park in Milperra where he parked. It was dark at the time and the offender suggested to the victim that they be friends. After the victim began to talk about an injury to her ankle, the offender began massaging the ankle, kissed the victim on the mouth and suggested that they get into the back of the van. Once in the rear of the van the offender removed the victim's pants and, while kneeling over her, placed his fingers into her vagina for a few minutes. This is the offence referred to in count 1 of the indictment. After this the offender had penile-vaginal intercourse with the victim for one or two minutes until he withdrew his penis and ejaculated into a tissue. 12 Telephone tracking records, which became exhibit 2 in the trial, indicate that the victim's phone was located in the vicinity of Webster Street in Deepwater Park at about 6.08pm, but that by 6.26pm it was back in the vicinity of Woodburn Avenue where the complainant lived. It follows that the offences were committed somewhere within this approximate 18 minute period of time. The victim's mother, who was unable to contact either the victim or the offender, called police and told them that the victim's phone indicated that she was in the vicinity of Deepwater Park. Although police patrolled the area they found no trace of the victim or the offender, presumably because by then they had left the area. The offender dropped the victim a short distance from her home because, as he later told police, he knew that the victim's mother would not be happy that he had been with the victim. 13 After being dropped off the victim walked to her house and immediately informed her mother that she had had sex with the offender. In the early hours of the next morning the offender booked a flight for himself from Sydney to Kathmandu which was due to leave later that day. Also, in the early afternoon the offender conducted a number of internet searches using his laptop computer, which included searches under the phrases "consensual sex", "sexual assault punishment Australia", "sexual assault" and "sexual contact without capacity". Police attended the offender's home that same afternoon and placed him under arrest. Subsequently he participated in a Record of Interview in which he admitted to having had sex with the complainant, stating however that the sex was consensual and that the victim was "like a girlfriend" with him, and was wanting sex and enjoying it. 14 He told police further that he thought the complainant was a very simple girl and that she "doesn't look very smart", but that at the time of the sexual intercourse he did not know that she did not have the capacity to provide consent, and did not know that she had a cognitive impairment. In relation to his proposed travel to Nepal, he admitted to police that he had purchased a ticket as he wanted to go because he was devastated and thought the situation was going to be a mess, but after speaking with his wife and her family he decided to cancel the ticket, believing that if he ran away it might look like he was a criminal. The offender also told police that the first time he thought something was not right with the complainant was when he dropped her off and noticed that she appeared to walk in the wrong direction. He said that he did not use his brain and that maybe he was just desperate to have sex. … 16 In submissions on sentence the Crown suggested that I would be satisfied beyond reasonable doubt that the offender was reckless as to the victim's capacity to consent in that he realised the possibility that she was not capable of consenting but went ahead with the sexual intercourse regardless. In my view, the evidence, including the general presentation and demeanour of the complainant, both in her electronically recorded interview and in her evidence at trial, provide clear support for this conclusion beyond reasonable doubt. 17 Clearly these offences of aggravated sexual assault are inherently serious. That conclusion is reinforced by the maximum penalty, and the standard non-parole period, both of which provide guideposts in the sentencing exercise. … 19 … [T]he objective seriousness in this matter is increased because of the relatively significant intellectual impairment present in the complainant which, as I have already noted, would have been apparent after even a short interaction with her. Although the complainant's intellectual disability is categorised as mild to moderate, Dr Pulman explained that this does not mean that it is "fairly mild and not that much of an issue". Dr Pulman in her evidence said at p 276 of the transcript: "A full scale IQ at that level indicates that she has a mild to moderate intellectual disability. Now I think it's important to have some understanding when we say mild intellectual disability it doesn't mean it's just fairly mild, it's not that much of an issue. To explain what I mean you've got 2 to 3% of the general population you'll find with an intellectual disability. So 2 to 3% or 2 to 3 out of 100 people will have an intellectual disability. Now, approximately 85% of that small group will be categorised as having a mild intellectual disability. Then you've got moderate, severe, profound and yes, so she's sitting in that range of mild to moderate." … 21 The evidence demonstrates that the offender, a chronologically mature man of 42 at the relevant time, actively pursued a physical relationship with the complainant by contacting her over a number of days using language such as "Hi babe" and "Sweet dreams, love you 'muwaaa'". I also note in this regard that the sexual assaults occurred within a very short space of time after the offender collected the victim from the railway station, and immediately after satisfying his sexual urges he drove her back to the vicinity of her home. While the offender told police that he had ejaculated into a tissue, the detection of semen in the vaginal smears indicates that he may have commenced ejaculating in the complainant's vagina and clearly was not using a condom at the time. This subjected the complainant to the risk of pregnancy and the risk of infection. 22 It is clear that the offender was on notice, especially given his qualifications and training, that the complainant was intellectually compromised. This conclusion is reinforced by the evidence that he had been told by the complainant's mother that she was not allowed out at 7 o'clock at night, and that the complainant was "not mature enough" to meet with him. I accept the Crown's submission that he was at least reckless as to her capacity to provide consent. It was in these circumstances that he took advantage of the complainant's intellectual disability and her childlike innocence for the sole purpose of pursuing his own sexual urges. In doing so, he subjected her to the somewhat degrading act of digital and penile penetration on the floor in the back of his motor vehicle, following which he immediately dropped her a safe distance from her home so as to limit the risk that his own indiscretions would be discovered. … 29 The offender provided a letter to the Court in which he arguably expressed some remorse, although the weight that I can give to that is limited given the letter's contents and the absence of evidence on oath by the offender by which his evidence might be tested. Although in the letter the offender says that the victim's impairment is now obvious to him, he claims that he had no knowledge of any impairment at the time and committed the offences unknowingly. This is contrary to the verdicts of the jury, and contrary to my own conclusion that the victim's intellectual impairment would have been obvious to anyone, and especially to a mental health nurse with a Masters Degree. Although the offender says in his letter that he would like to apologise to the victim and her family, a significant percentage of the letter is focused on the adverse impacts which the offender himself claims to have suffered. In my view any remorse by the offender is limited. 30 Having said that, the offender's letter, his employment and academic history, and the testimonial evidence, supports the conclusion that the offender has at least reasonable prospects of rehabilitation. As already noted, he has a good history of applying himself academically and in work. Furthermore, his letter indicates that while in custody he has completed a number of courses which will assist him in finding work when he is released. This is important in his rehabilitation, given that he has been stripped of his nursing registration arising from his offences. He has also indicated a renewed commitment to follow Buddhist principles which should assist him in avoiding offences like this in the future.
6. In addition, the Tribunal was provided with a copy of the decision of the Court of Criminal Appeal in the Supreme Court of New South Wales on 26 November 2020 and its decision on 3 February 2021.
7. Leave to appeal against the decision was granted but the appeal was dismissed.
8. The Respondent is currently in prison having been sentenced to imprisonment with a non-parole period of five years and six months. The head sentence will expire on 16 March 2026 and the non-parole period will expire on 16 September 2023.
9. The Tribunal also had available to it transcripts of evidence of various people including the victim, her mother and her grandmother and had access to the transcript of their evidence in the criminal trial against the Respondent. Also included in the evidence before the criminal trial was the evidence of Dr Pulman who conducted significant testing of the victim and noted that the victim's intellectual disability meant that 99.9% of the population performs better than her and that intellectual disability would have been apparent after even a short interaction with her.
10. The Tribunal being aware of its obligations that the safety of the public is of primary importance also had regard to a notification sent to the Health Care Complaints Commission on Monday 21 May 2018 by Mr Kemp Bailey which details his interaction with the Respondent as follows: "I am a Registered Nurse and my colleague and his wife are both Registered Nurses. I have worked with this RN for many years, perhaps 8 or 9 years. Both he and his wife are friends of my wife and I. I have been his NUM for several years and he is held in high regard, is well respected and highly educated to Masters Level, and is highly experienced in the Forensic Mental Health field where we had worked together. I have also been his Clinical Supervisor for over 3 years. I like and respect this man and consider him my friend. I personally know him and his wife and children, personally know his in laws and parents, and have visited his home on several occasions over the years. My wife and I are enormously disturbed to learn that he is now being held on Remand at Silverwater Metropolitan Remand and Reception Centre in Sydney and has been charged with 4 counts of Aggravated Sexual Assault against an Intellectually Disabled woman, who lives 200m away from his home. These charges and his status was confirmed by our Employer by email to all current staff. These charges and his current status have also been confirmed by his wife who is in the process of seeking a separation and divorce. He tried to flee the country on a one way solo ticket to Nepal when Police arrested him at his home in Sydney. At no stage has he expressed remorse for the victim or any blame or responsibility for the charges. Over the last several years there have been a number of sexualised complaints against this man but he was able to have these complaints quashed due to poor and dysfunctional management and 'sweeping' type processes. My wife and I are supporting his deeply disturbed wife and children. His wife has engaged a Family Court Lawyer to facilitate [the] settlement process."
11. The Tribunal also had available to it a letter from New South Wales Health to the Respondent dated 4 July 2017 which indicated that it was a request to attend a fact-finding interview. Of relevance was the opening sentence of that letter which read "I refer to your email sent to NUM Temptation Gahadza regarding the incident involving Mr Luke Daykin on 23 June 2017". No evidence was led concerning what that incident involved and the Respondent did not remember anything about it.
12. The Tribunal also had available to it documentation from the South Eastern Sydney and Illawarra Area Health Service (as it then was) in regard to an investigation into an incident in May 2009 after an allegation was made on 27 May 2009 by a female inpatient due to be discharged from the Kiloh Centre during a meeting with her treating psychiatrist, Dr Duncan Wallace. During the conversation, "the patient advised Dr Wallace that a male nurse had acted inappropriately to her and had asked her out for coffee, hugged her, attempted to kiss her on the lips and telephoned her afterwards." The patient subsequently revealed the name of the nurse in question to the nurse who was specialling her. As he believed that the story was credible, Dr Wallace indicated that there was no reason why the patient should not be interviewed.
13. The investigation by New South Wales Health examined each allegation made against the Respondent and the detail is contained in the investigation report which was available to the Tribunal. Of relevance in that report is that of the eight allegations against the Respondent, seven of them were sustained and one was not sustained due to insufficient evidence. The allegations were dealt with as follows: • Allegation One - That on Tuesday 26 May 2009 Mr Aryal asked a mental health inpatient to meet him outside the ward after she was discharged. (Sustained) • Allegation Two - That on Tuesday 26 May 2009 Mr Aryal told a mental health inpatient that he would buy her flowers when he met her after she was discharged. (Insufficient Evidence to Sustain the Allegation) • Allegation Three - That on Tuesday 26 May 2009 Mr Aryal told a mental health inpatient that she had beautiful eyes. (Sustained) • Allegation Four - That on Tuesday 26 May 2009 Mr Aryal told a mental health inpatient that he loved her. (Sustained) • Allegation Five - That on Tuesday 26 May 2009 Mr Aryal hugged a mental health inpatient. (Sustained) • Allegation Six - That on Tuesday 26 May 2009 Mr Aryal attempted to kiss a mental health inpatient on the lips. (Sustained) • Allegation Seven - That on Tuesday 26 May 2009 Mr Aryal kissed a mental health inpatient on the cheek. (Sustained) • Allegation Eight - That on Tuesday 26 May 2009 Mr Aryal telephoned a mental health inpatient from home and told her not to tell anyone about what had occurred between them earlier in the day. (Sustained)
14. That concluded the evidence for the Applicant.

Evidence of the Respondent

1. The evidence of the Respondent is mainly gathered from emails and notes written by the Respondent to the Council, the Health Care Complaints Commission (HCCC) and the Tribunal. In addition, the Respondent made oral submissions during the hearing and gave evidence in respect of which he was cross-examined by the Applicant.
2. In a letter to the investigating officer of the Applicant, the Respondent stated that the woman whom he met and had sex with was not known to him for a long time. He only met her for a few minutes on two occasions and on the third occasion they had sex. He did not have enough opportunities to know her properly. If he knew that she was cognitively impaired, needs assistance for personal hygiene, was travel trained and needs help at work, then he would not have pursued an intimate relationship with her. She presented herself as a normal woman. All he knew after talking to her a few times was that she has a job in the city, is 21 years old and goes to TAFE for study. She did not have a physical disability or disfigurement when he met her. She was travelling every day and every time he spoke to her by herself it did not appear to him that she was cognitively impaired.
3. In addition, he stated that her condition was presented to the court in an exaggerated form. He stated that the assessment report used to describe her abilities was apparently commissioned to get more funding from the National Disability Insurance Scheme.
4. He stated that he had no intention of exploiting her sexually or assaulting her. He claims that they had consensual sex. She undressed herself and was enthusiastic about having sex with him.
5. He advised the HCCC that he is a totally changed person since his incarceration. He has spent nearly two years in remand jail on those charges. People in the prison, including some prison officers and inmates, have treated him badly. He states that while he has lost everything, in prison he has been practising Buddhist teachings and trying to follow the Bodhisattva's way of life and is no longer attracted to women.
6. In respect of the complaint that he failed to notify the National Board in time about his criminal charges, he states that after his arrest he was locked up in a cell for 23 hours a day. He had no access to welfare or social workers. His life was in danger all the time because he was with other dangerous inmates, among them drug addicts, violent people, and murderers. He became depressed and almost killed himself by hanging and overdosing using Avanza which was prescribed for him. At some point in time he was given a letter by an officer from the National Board. However, he was so shattered at the time that he could not deal with it. He did not intend to disobey or disrespect the rules and regulations of the National Board.
7. In the Tribunal hearing, under cross-examination, the Respondent remained committed to the position he had adopted at all times to date. The only area where there appears to have been some conflict is that in questioning on his knowledge of the Code of Conduct and his obligation to report the matter to the National Board he stated in cross-examination that he was not aware of that obligation at the time.
8. That was the only evidence for the Respondent and the Respondent's case was closed.

Applicant's closing submissions

1. The Applicant provided the Tribunal with closing submissions which are set out below. "… PROOF OF THE COMPLAINT Complaint One 9. Complaint One is that pursuant to section 144(a) of the National Law, the respondent has been made the subject of a criminal finding for a criminal offence in NSW. … 10. Complaint One is not a complaint of unsatisfactory professional conduct or professional misconduct. Rather, the Commission submits that the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession: National Law, 149C(1)(c). 11. The respondent does not expressly admit Complaint One however does not dispute the fact of the conviction, sentence or the judgment against him as set out in the particulars of Complaint One. 12. The Tribunal can be satisfied of these matters by reference to the District Court of NSW judgment, the certificate of conviction and the transcript of the trial in the Commission's brief of evidence. Complaint Two 13. Although complaint two (relating to the failure to notify) has not been admitted expressly, the respondent has admitted that he did not notify the Board of his charges, and it follows necessarily that he has engaged in unsatisfactory professional conduct within the meaning of s139B(1)(b) of the National Law: HCCC v Amalakumar [2019] NSWCATOD 173 at [27]. There is no "reasonable excuse" provision in section 130 and 109 of the National Law, unlike in others (e.g. s 145F) or a threshold degree of seriousness (e.g. s 139B(1)(a)). PROTECTIVE ORDERS 14. Should the Commission's complaints (or their subject matter) be found proved, or should they be admitted, the Tribunal's task is to determine whether to exercise its disciplinary powers under ss 149A, 149B or 149C of the National Law in relation to the respondent (National Law, s 149). 15. The Commission submits that the appropriate order is an order cancelling the respondent's registration as a registered nurse, with a non-review period of five to seven years, pursuant to s 149C(1)(c) and (7) of the National Law. The Commission also seeks a prohibition order on the respondent working in health services as defined by s 4 of the Health Care Complaints Act. Those orders are appropriate given: (a) the seriousness of the respondent's unlawful conduct, including the recklessness with which the respondent has approached and treated the vulnerability of the victim; (b) the respondent's continued lack of understanding of his obligations when holding nursing registration in the public; and (c) the lack of evidence of genuine insight into his behaviour and demonstrated reform including his own deficiencies in appropriately caring for and responding to mental health issues in vulnerable persons, which commenced from 2009 and continues; and (d) the respondent's complaint history. Principles to be applied 16. The Tribunal's paramount consideration in exercising its disciplinary powers must be the protection of the health and safety of the public (National Law, s 3A; Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), Sch 5, cl 9(1)). The Tribunal must also have regard to the related objective of the national registration and accreditation scheme established under the National Law 'to provide for 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' (National Law, s 3(2)(a); CAT Act, Sch 5, cl 9(1)) and that the restrictions on the practice of a health professional are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. … 19. In determining whether misconduct by a health practitioner is such that suspension or cancellation of their registration is appropriate, relevant considerations include (See, eg, Health Care Complaints Commission v Moulds [2010] NSWNMT 1, [47]; Health Care Complaints Commission v Pierce [2010] NSWNMT 23, [62]; Health Care Complaints Commission v Marsh [2016] NSWCATOD 155, [17]; Health Care Complaints Commission v Jung [2018] NSWCATOD 53, [14]): (a) whether the misconduct could satisfactorily be explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct as it relates to fitness to practise; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner; (d) the motivation for the misconduct; (e) the underlying qualities of character shown by previous and other conduct; and (f) whether the practitioner's conduct after the proven episode of misconduct demonstrates that public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a health practitioner. 20. In considering the last matter, and reformation generally, the Tribunal cannot assume that a practitioner has reformed without 'clear proof, and more than the mere passage of time without misconduct: See, eg, Lee v Health Care Complaints Commission [2012] NSWCA 80, [73] (Barrett JA, Macfarlan JA and Tobias AJA agreeing). Reformation is the exception rather than the norm: See, eg, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637 (Gleeson CJ, Meagher and Handley JJA). The Tribunal must be satisfied that the practitioner has demonstrated integrity, trustworthiness, high moral and ethical values and a capacity to comply with relevant obligations, codes of practice, such that it is appropriate for the practitioner to be held out to the public as a person worthy of their confidence: See, eg, Dawson v Law Society of New South Wales [1989] NSWCA 58 (Mahoney JA); Crickett v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115, [56]. 21. There is no punitive purpose in the Tribunal's disciplinary task under the National Law: Litchfield (1997) 41 NSWLR 630, 637-38 (Gleeson CJ, Meagher and Handley JJA). A practitioner does not receive any discount or credit because they have been punished in criminal proceedings, although the possible punitive effects of disciplinary orders should be kept in mind to the extent they are relevant in determining what is appropriate to achieve the protective purpose in particular circumstances: See, eg, Lee [2012] NSWCA 80, [20] (Barrett JA, Macfarlan JA and Tobias AJA agreeing); Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323, 336-37 [54]-[56] (Basten JA, McColl JA and Harrison J agreeing). … 23. Where guilt is established to the criminal standard, public policy suggests that so long as a conviction stands the facts necessarily established ought to be regarded as proved for the purpose of any civil proceedings: Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 Mason P at [86] referring to Lai v Minister for Immigration, Local Government & Ethnic Affairs (1991) 28 FCR 346: of Helton v Allen (1940) 63 CLR 691 at 702-703, 710; contrast Public Trustee v Fraser (1987) 9 NSWLR 433. However any additional findings and decisions of this Tribunal are on the balance of probabilities. Why the Tribunal should make the orders sought by the Commission 24. The Tribunal should be satisfied that it is appropriate to cancel the respondent's registration as a nurse with a five to seven year non-review period and impose a prohibition order on the respondent working in health services. The respondent, for the reasons below, presents a significant risk to the health of the public by the provision of other health services to vulnerable persons. 25. First, the respondent's criminal conduct was very serious. The Commission relies on the judgment of the District Court of NSW (accepted on appeal before the Criminal Court of Appeal): District Court of NSW (a) [6]: At the time of his offences his work with the Justice Health organisation involved him caring for, attending to, and assessing patients with mental illnesses, brain injuries and intellectual disabilities. … (e) [19]: … [T]he objective seriousness in this matter is increased because of the relatively significant intellectual impairment present in the complainant which, as I have already noted, would have been apparent after even a short interaction with her. … (h) [22]: It is clear that the offender was on notice, especially given his qualifications and training, that the complainant was intellectually compromised. This conclusion is reinforced by the evidence that he had been told by the complainant's mother that she was not allowed out at 7 o'clock at night, and that the complainant was "not mature enough" to meet with him. … (i) [24] ... Courts in recent decades have repeatedly commented on the adverse and often long term effects on victims of these sorts of offences, effects which are entirely understandable and which are ordinarily to be expected as a consequence of offending of this kind. This case is no different and I have no doubt that the offences have regrettably left their mark on the victim and her family members. … 26. Second, elements of the respondent's behaviour demonstrate consciousness of wrongdoing. … [W]hile talking to police, the respondent mentioned telling the victim to lie to her mother about what they had done because he was aware that the victim's mother didn't want him going out with her. … [H]e reports that earlier on the victim's mother was "very firm with me, don't talk to her daughter, don't go out, she is not mature enough." The respondent was married with two young children and an experienced mental health nurse at the time of his sexual assault and his actions demonstrate a willingness to act on sexual urges to the exclusion of his responsibilities and training. He was found to have been reckless of the capacity of the victim to consent and in his own words "did not use his brain" in his pursuit of sex with the victim. His embarrassment after the event is suggested by his decision to drop the victim away from her home to avoid confronting what he had just done. His actions in booking a flight for himself that evening out of the country, and his internet searches for "sexual contact without capacity", for example, suggest a consciousness of wrongdoing at least closely after the time of the act. 27. Third the respondent's misconduct is made more serious by the fact that he engaged in it while trained as a mental health nurse and with specific training in other relevant areas: (a) The respondent worked as an AIN prior to obtaining registration as a nurse at the start of 2008. (b) From 2009 the respondent worked in mental health, employed full time by [the] Health and Forensic Mental Health Network. (c) On 14/04/2011 the respondent completed a course on "Connecting with Families and Carers". (d) On 07/12/2013 the respondent completed a course on 'Fundamentals of HIV and Sexual Health - expanding the scope of primary health care nurses". (e) On 19/02/2014 the respondent completed a course on Sexually Transmissions in the Correctional Environment. (f) On 29/10/2014 the respondent completed a workshop on "Sexual Safety Policy Training Workshop". (g) On 15/12/2015 the respondent obtained a Master of Nursing (Mental Health) from the University of Wollongong. (h) On 02/05/2016, 22/05/2016 and 04/06/2019 the respondent completed modules on "Sexual Safety Policy Training". (i) On 21/03/2017 the respondent completed a two-day workshop on Public Sexual Health. 28. The respondent did not use a condom knowing of the risks of pregnancy and sexually transmitted disease to the victim, and his actions caused harm to the victim by pain in her vagina. The respondent's disregard of his education, training and ethical obligations as a nurse, designed to protect public health and confidence in the profession, for his own sexual gratification was a gross abuse of that trust by a mental health care nurse. While the conduct the subject of the conviction did not occur at work, it did occur to a vulnerable person with cognitive difficulties and significant care needs, where the respondent ought to have been more aware of his obligations and boundaries. 29. Fourth, the respondent has displayed little genuine insight into or remorse for his conduct: (a) The respondent has not acknowledged that he ought to have been aware at the time of the victim's cognitive impairment and her inability to properly consent to sex. He acknowledges that her impairment is "obvious to him" post-fact. The victim's cognitive impairment was established at the trial… The respondent [has] not understood and acknowledged that his training, experience and education as a mental health nurse ought to have, as the trial judge recognised, put him on notice that she was at least intellectually compromised. The trial judge agreed with the Crown submission that the evidence of the victim… provided clear support for the conclusion that the respondent "realised the possibility that she was not capable of consenting but went ahead with the sexual intercourse regardless". … … (c) He maintained at his appeal that the victim was "an adult who was a willing participant in the sexual intercourse with consent only vitiated by her cognitive impairment." [A]lthough his counsel at hearing "acknowledged the difficulty in maintaining this contention". (d) On 19 February 2020 the District Court of NSW judge stated that "Although the offender says in his letter that he would like to apologise to the victim and her family, a significant percentage of the letter is focused on the adverse impacts which the offender himself claims to have suffered. In my view any remorse by the offender is limited." (e) In his NCAT reply document of November 2020 he speaks in terms of unfairness in his criminal trial (no such allegation was raised by his counsel in the appeal) and about the impact on him and his circumstances, rather than apologising for their consequences on the victim and the dignity of the profession. This reply is largely his reflection about himself and the situation he has now found himself in, which he seems to view as unfair, rather than any insight into his conduct or harm to the victim; (f) Similarly in his February 2021 letter to the Commission and NCAT he does not [demonstrate] any adequate insight into this matter. 30. Fifth, the Tribunal cannot be satisfied that the respondent's misconduct was an aberration or a mere error of judgment. In 2009 the respondent was found by his employer to have acted inappropriately towards a mental health inpatient in May 2009, including by hugging and attempting to kiss the patient. The respondent disputed aspects of the account and the Tribunal should treat the hospitals' findings with caution but it is a situation where the respondent breached professional boundaries and pursued an inappropriate relationship with a mental health patient, despite her mental health. … 31. Sixthly, the respondent did not notify the Board of his charges within seven days. It is accepted by the Commission that the respondent being remanded in custody on the day he was charged may have presented some initial hurdles to the respondent doing so, however the respondent suggests he was merely uninformed of his obligations. There are many obligations imposed on nurses concomitant with the very significant rights and privileges which also attend that role. The effective operation of the national registration and accreditation scheme, established by the National Law for the regulation of health practitioners, is dependent upon a system of self-reporting by registered health practitioners. The integrity of that scheme requires that health practitioners are not only candid in their dealings with and fully cooperate with relevant regulatory bodies but are aware of their reporting obligations under the National Law: Health Care Complaints Commission v Menz [2017] NSWCATOD 141 at [67]. To this extent the Tribunal's findings in relation to this issue should serve as a signal to other practitioners of the importance of being aware of and [abiding] by their obligations. Non-review period 32. The respondent was sentenced to a head sentence of 8 years with a non-parole period of 5 years and 6 months, to date from 17 March 2018. The respondent's non-parole period will expire on 16 September 2023. 33. The practitioner's time out of the profession is relevant if, for example, such time was used to gain insight, reflect on the conduct, pursue further education etc. It is not relevant to general deterrence. The concepts that arise in criminal proceedings, including the relevance of time on bail or in custody prior to sentence, do not apply in the same way here (see reasoning in Qasim). General deterrence in the context of disciplinary proceedings operates separately to any criminal penalty imposed: Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 at [60]. The criminal penalty addresses general deterrence to the community regarding engaging in criminal conduct whereas the general deterrence in the context of disciplinary proceedings is directed to a protective purpose, the responsibilities of registered health practitioners, and maintaining the standards of the profession, along with maintaining public confidence in the profession. 34. It is submitted that the Tribunal should set a non-review period of sufficient length to address: (a) general deterrence; (b) the lack of insight that has been demonstrated by the respondent; (c) a sufficient period of time for the practitioner to demonstrate that he is a person suitable to practice. The Commission notes that although the respondent may not seek to do so in the future, he does comment in his letter to the Tribunal about becoming a nurse again and notes that, if he does, he won't hold any 'hatred, angry thoughts, or grudges towards anyone' - such emotions by the respondent do not speak highly of his insight into his own role in the harm he caused his victim; (d) the protection of public health and safety in circumstances where the offending, though not in the course of clinical practice, was serious and demonstrates a significant lack of judgment and failing of his treating and experience, when dealing with a very vulnerable and intellectually disabled person, where the practitioner has previously been the subject of a complaint regarding boundary violations (albeit in 2009, but in the context of his employment). 35. In Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17, the Tribunal extended the non-review period past the expiration of the respondent's non-parole period, to the end of the head sentence. The Tribunal made the following comments at [48]: 'The practical effect of being subject to a custodial sentence means that Mr Elshaimy is unable to resume practice until at least the commencement of the non-parole period in December 2019. We think it is appropriate to extend the period Mr Elshaimy is precluded from seeking registration for a further 19 months from that date. This will coincide with the end of the head sentence imposed by the District Court. By that time, Mr Elshaimy will have been in the community for just under two years and will have had the opportunity to demonstrate that the optimistic assessment made by Woods J of his prospects of rehabilitation was not misplaced.' 36. In Health Care Complaints Commission v Thomas [2019] NSWCATOD 163, the Tribunal extended the non-review period for two years past the expiration of the parole period. In that matter, the Commission submitted that the non-review period should be 6 years, to encompass the period remaining on parole and continue for a further three years so that the practitioner could receive further psychological treatment beyond a period that might be required to do so by his parole officer and provide sufficient distance from the offences so as not to undermine public confidence (the Tribunal ultimately imposed a 5 year non-review period, that is it imposed a period beyond the parole period). 37. In Health Care Complaints Commission v Jung [2018] NSWCATOD 53, the Tribunal did not specifically comment on the interaction between the sentence imposed for the criminal offences and non-review period, but did comment at [39] that it was relevant to consider the time required for the practitioner to change his conduct and considered that the respondent's insight was a relevant factor. Ultimately, the non-review period imposed was 7 years, in circumstances where the sentence imposed for the criminal offending was 5 years (with a non-parole period of 3 years) - the non-review period was considerably longer than the sentence for the criminal matters. 38. In Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 Gleeson CJ, Meagher and Handley JJA there noted (at 637) 'In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW) (Pt 2) 275 at 286: "... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man."' 39. Where the respondent has not shown himself to be a changed person and continues to minimise his conduct and lack of judgment, and where it is not known whether the respondent will be released on parole (it may well be that he serves the entirety of his sentence), the non-review period should, as in Thomas, extend past the expiration of the parole to facilitate insight and rehabilitation by, for example, psychological treatment, that is not undertaken as a requirement of parole. Prohibition order 40. Section 1490(5) of the National Law provides that: (5) 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. 41. The Commission submits that the respondent's conduct and his lack of insight into his conduct, by continuing to minimise his role in the assault and failing to demonstrate clear reform, renders him a substantial risk to the health of members of the public. His impaired judgment and care in 2018 following his conduct in 2009 ought be considered by the Tribunal to pose a substantial risk to members of the public who receive health services, (including inmates who receive health services). 42. The approach taken by the Tribunal in Health Care Complaints Commission v Menz (No. 2) [2017] NSWCATOD 172 at [18] and [19] and Health Care Complaints Commission v Sundarajah (No 2) [2018] NSWCATOD 86 was to ask whether the respondent is likely to pose a real and material risk to the health and safety of the public if he were to be involved in the provision of health services. 43. As in those cases, the Commission submits that the weight of evidence indicates that unless and until the respondent receives appropriate independent treatment to understand his motivations and his inability to use his training and experience towards this vulnerable person, and to take responsibility for his role in the conduct, he is likely to pose a real and material risk to the health and safety of the public if he were to provide health services. In Sundarajah the Tribunal observed that the practitioner lacked competence to practise as a dentist, not because of any lack of clinical skills but because of an inability to deal appropriately with staff and patients socially. This inability was observed to be "unlikely" to be confined to health services provided in the field of dentistry. Similarly, the Commission submits that the deficiencies the respondent has shown in his judgment and care in the past is not likely to be confined to nursing patients. 44. The Commission submits that the respondent should be prohibited from providing all health services until such time as he is registered as a nurse again following his period of disqualification. … Costs 46. The Commission also seeks an order that the Respondent pay the Commission's costs in a fixed amount, pursuant to Sch 5D, cl 13(3A) of the National Law. The Commission has conducted itself in a proper manner such that costs should follow the event: See, eg, Health Care Complaints Commission v CSM [2016] NSWCATOD 125, [99]. Probable inability to pay a costs order is not a basis on which to refuse a costs order, but supports the making of a fixed costs order rather than an order requiring assessment of costs: Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 9) [2018] NSWSC 1657. Ordering fixed costs, as requested by the plaintiff, would obviate further legal costs for each of the plaintiff and the defendant. This is particularly apposite in circumstances where it is or may be unlikely that the defendant will be able to meet the liability of the order now made, in any event, or the costs of any assessment that may ultimately need to be undertaken if costs were to be assessed: Australia and New Zealand Banking Group Limited v Giannaklis (No 3) [2020] NSWSC 1271. 43. The Commission seeks to be heard further on the amount sought by way of fixed costs. Non publication order 44. The Commission seeks a final non-publication order over the victim's name and any information which might tend to identify her, as was made by the District Court of NSW.

Respondent's closing submissions

1. The Respondent simply repeated the matters and issues that he had raised before and pleaded for the Tribunal to treat him leniently as he does not believe he was aware of the impairment of the victim and he would not have had a sexual relationship with her had he been aware thereof. He also asked the Tribunal to overlook the failure to notify the National Board.

Decision and Reasons

1. The Tribunal, having read the evidence contained in the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and the evidence contained in documents provided by the Respondent, having considered in detail the very extensive transcript of the criminal trial and having taken into account the Applicant's and the Respondent's submissions, is comfortably satisfied that the criminal conviction is proven and that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct.
2. The Tribunal is satisfied that this leads to a decision as to whether the Respondent should be entitled to be practising as a nurse and what disciplinary action would be appropriate in the particular circumstances of the matter. In considering appropriate disciplinary findings, the Tribunal had regard to a number of factors. These included the decision in the s 150 examination and the surrounding circumstances of this matter. The Tribunal had limited benefit of evidence from the Respondent as the Respondent was unrepresented and was not really able to present any further evidence than the evidence of his current conditions and disadvantage.
3. It is important to note that the Tribunal was not asked to determine the guilt of the Respondent in respect of the sexual relationship which he had with the victim, in that the Respondent had already been convicted by the Court on those accounts. However, it was important for the Tribunal to examine all of the circumstances surrounding the conviction in order to determine the appropriate disciplinary orders which the Tribunal should make.
4. The Tribunal was particularly concerned about the denial by the Respondent of his knowledge of any impairment of the victim. It is important to remember that the Respondent was a registered nurse working in the field of mental health, qualified in the area of mental health and holding a Masters Degree in Nursing. It is clear to the Tribunal that the Respondent must be significantly competent to have achieved that level of education. In addition, it is clear that the Respondent had been working for a considerable amount of time as a mental health nurse and of necessity would have been faced with mentally-impaired patients over the course of his working life. The Tribunal was comfortably satisfied that with all the knowledge and experience that the Respondent had, it would be most unlikely that he would not have been able to notice the impairment of the victim based on the few occasions when he met or spoke to her. On the record it is clear that the Respondent met the victim in the street and had a very short conversation with her on that occasion. In that conversation there may not have been anything to indicate the impairment of the victim. However, between that meeting and the occasion on which the Respondent met and had a sexual relationship with the victim, there had been two telephone calls, one lasting approximately 8 minutes and the other lasting approximately 29 minutes. It would be surprising if in that amount of time the Respondent with his background and experience did not notice or recklessly ignored the impairment of the victim.
5. In addition, of significance to the Tribunal was the fact that the time during which the Respondent collected the victim, took her to the park, had sex with her and returned her to her home lasted only 18 minutes, indicating to the Tribunal that the Respondent must have embarked on the meeting and taken the victim to the park for the purpose of having sex with her.
6. In regard to Complaint Two relating to the failure to notify the National Board, the Tribunal did give consideration to the explanation given by the Respondent as to why he failed to notify and can understand that there would have been a point in time when it would have been very difficult for the Respondent to deal with the need to notify the National Board. However, had the Respondent been aware of his obligation to notify the National Board, there must have been a point in time when the Respondent could have dealt with the matter. This he failed to do and the only manner in which this came to the attention of the National Board was through a report by his employer of the criminal charge against him.
7. In addition, in cross-examination the Respondent conceded that he was not aware of the obligation under the Code of Conduct for nurses, an obligation of which he should have been aware.
8. In the circumstances, the Tribunal is comfortably satisfied that the Respondent is guilty of both Complaint One and Complaint Two brought by the Applicant.
9. The issue which arises for the Tribunal is what the appropriate orders to be made in respect of the Respondent's future practice in the field of nursing are. The Tribunal believes that it will be very important for the Respondent to undergo a serious change in his behaviour and attitude. The Tribunal was uncomfortable with the lack of insight displayed by the Respondent and the manner in which he has dealt with this entire matter. The Respondent has in some sense expressed his regret and apologised to the victim for what he had done but, on balance, it is clear that the major approach adopted by the Respondent is that he is in fact the victim and not the perpetrator. This lack of insight is of concern and indicates to the Tribunal that on release from prison the Respondent will require a period of time in which to seek assistance to reform and change his thinking so that the public are not at risk from him practising as a nurse.
10. In the circumstances, the Tribunal makes the following orders.

Orders 1. The Respondent having been convicted of a criminal offence involving a sentence of more than one year and having failed to notify the National Board within seven days of being charged, is guilty of unsatisfactory professional conduct and professional misconduct in respect of his behaviour while working as a registered nurse and this renders him unfit in the public interest to practise his profession pursuant to section 149(1)(c) of the Health Practitioner Regulation National Law (NSW). 2. Had the Respondent been a registered nurse, the Tribunal would have cancelled his registration with immediate effect. 3. The Respondent shall not be entitled to apply for registration as a nurse for a period of two years from the date on which he is ultimately released from prison, whether that release is at the end of the full eight year sentence or on parole at any time. 4. Until such time as the Respondent is re-registered as a nurse, the Respondent must not work in any role connected with nursing or the provision of health care services to members of the public. 5. The Respondent shall pay the Applicant'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: 21 May 2021