Health Care Complaints Commission v Black

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 201-202; [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 Objectives 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.
4. The interests of the public includes patients or potential patients of the Practitioner concerned.
5. 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 … 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 … 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."
6. 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. In essence, therefore, the issues that arise are clearly set out in the Particulars of Complaint 1. The Respondent, while working with Patients A and B as an enrolled nurse, breached professional boundaries in that she entered into relationships not of a professional nature with Patients A and B, in breach of the Nursery and Midwifery Code of Conduct. In addition, the Respondent is alleged to have paid a utility bill on behalf of Patient B using Patient B's credit card, where dealing with a patient's financial affairs is in breach of the Code of Conduct. Furthermore, it is alleged that on three occasions the Respondent used Patient B's credit card for her own purposes.
2. No formal reply to the Complaint by the Respondent was available to the Tribunal.

EVIDENCE OF THE APPLICANT

1. The Applicant provided a bundle of documents consisting of Tabs 1‑53 which included various statements, exchanges of emails between the Respondent and her employer, correspondence between her employer and the Nursing and Midwifery Council of New South Wales ("the Council"), a transcript of the proceedings in a s 150 hearing, and written reasons for the decision of the Council following the s 150 hearing.
2. The Tribunal does not propose to go through in detail the evidence of each of the witnesses or the details contained in the various documents save to say that in respect of the breach of professional boundaries with Patient A, the Respondent admitted that she had breached those boundaries and that her explanation that she felt that she was assisting Patient A with his mental health was unacceptable. In addition, in respect of the use of Patient B's credit card for paying Patient B's electricity account, the Respondent confirmed that this was in breach of her duties while employed by Paramedical Health.
3. In respect of the Respondent's personal use of Patient B's credit card, the Tribunal was satisfied that the Respondent did use Patient B's credit card for purchases of a personal nature. The evidence against the Respondent is set out in detail in the Applicant's written submissions provided to the Tribunal, which are set out below. "HCCC's Stage 1 - Written Submissions INTRODUCTION 1. These proceedings were commenced by way of a Complaint made by the HCCC dated 10 October 2022. 2. This is an enquiry into the Complaint made by the HCCC to the Tribunal under sections 145C(1)(a) and 145D of the Health Practitioner Regulation National Law (NSW) ("National Law"). 3. The respondent was first registered on 8 November 2017 as an Enrolled Nurse. 4. On 18 January 2021, the Nursing and Midwifery Council of New South Wales ("Council") suspended the respondent's registration pursuant to section 150(1)(a) of the [National Law]. 5. For the purposes of these proceedings, the respondent is taken to be registered for the period of the suspension in accordance with s 176D of the National Law. 6. Complaint One alleges the respondent has been made the subject of a criminal finding pursuant to section 144(a). 7. Complaint Two alleges the respondent is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(e) of the National Law in that she contravened section 34A(4) of the Health Care Complaints Act 1993. 8. Complaints Three and Four allege the respondent is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the respondent engaged in improper or unethical conduct relating to the practice of nursing. 9. Complaint Five alleges that the respondent is guilty of professional misconduct under section 139E of the National Law. 10. The conduct complained of in the Complaint raises serious issues from the perspective of the protection of the public, and the maintenance of standards and public confidence in the profession of nursing. Undefended Hearing 11. The HCCC relied upon the Affidavit of Lucy Cannon dated and filed 22 February 2023 to establish that: a. The respondent was served with a copy of the Complaint, the HCCC's material, the Evidentiary Certificate, the HCCC's protective orders sought and the NCAT Notice of Listing prior to the Hearing date. b. The respondent is aware of the proceedings and hearing/enquiry; 12. For the above reasons, the HCCC says the matter is capable of proceeding in the respondent's absence on the listed Hearing date. Non-Publication Order 13. The HCCC seeks an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure and/or publication of the names of: a. [Patient A]; and b. [Patient B]. Standard of Proof 14. The HCCC bears the onus of proof in these proceedings. [1] 15. The Commission must prove the Complaint on the balance of probabilities. While neither the Briginshaw principle nor section 140 of the Evidence Act 1995 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. [2] Rules of Evidence 16. 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 HCCC [2012] NSWCA 171, per Meagher JA at [75]). 17. 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 or non-existence of facts relevant to the issues to be determined. Thus, material which, as a matter of reason, has some probative value in that sense may be taken into account' (Sudath at [79]; Lindsay v HCCC [2010] NSWCA 194 at [34]-[35], [242]). 18. In dealing with more than one complaint about a registered health practitioner, 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 that a registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct. 19. The proceedings of this nature before the Tribunal are referred to as an inquiry by the National Law. These matters stamp the Tribunal's work with an inquisitorial model [3] and as such it is not a Court and should not be treated as a court of strict pleading. Complaints are not pleadings. [4] The Tribunal in the proceedings makes an evaluative judgment as to the seriousness of the misconduct and the inferences that should be drawn. [5] THE COMPLAINT 20. Part 8 of the National Law deals with complaints concerning health practitioners. 21. Specifically, section 144 outlines the possible grounds of complaint against a health practitioner. They relevantly include complaints that: a. the practitioner has, either in this jurisdiction, or elsewhere, been convicted of or made the subject of a criminal finding for an offence - section 144(a); and b. the practitioner has been guilty of unsatisfactory professional conduct - section 144(b). Complaint One Particular 1 22. Complaint 1 is that pursuant to section 144(a) of the National Law, the practitioner has been made the subject of a criminal offence in the State of New South Wales. 23. Particular 1 states: 'On 21 April 2021, the practitioner was charged by NSW Police with 3 counts of Dishonestly Obtain Financial Advantage Etc by Deception contrary to section 192E(1)(b) of the Crimes Act (NSW).' 24. The evidence in support of particulars 1 is the 'NSW Police Force Criminal History - 8011 Report' dated 26 July 2021 contained at Tab 44 of the HCCC's material. 25. Particular 1 is comfortably satisfied. Particular 2 26. Particular 2 is as follows: 'On 15 June 2021, the practitioner was convicted in the Picton Local Court of 3 counts of Dishonestly Obtain Financial Advantage Etc by Deception contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW).' 27. Evidence of the conviction is contained in the Local Court Certificate of Conviction found at Tab 46. Particular 3 28. Particular 3 alleges that: 'On 27 July 2021, Local Court Magistrate Mark Douglass of Picton Local Court ordered the practitioner to pay fines in the sum of $1,200 ($400 in respect of each [of the] 3 offences).' 29. As with particular 2, this particular is verified by the Certificate of Conviction issued by the Local Court of Picton found at Tab 46. 30. The HCC[C] submits that The Tribunal should therefore find Complaint 1 made out in its entirety. Complaint Two 31. Complaint 2 is that the respondent is guilty of unsatisfactory professional conduct under section 139B(1)(e) of the National Law in that the practitioner has contravened section 34A(4) of the Health Care Complaints Act 1993. 32. Section 139B(1)(e) of the National Law defines 'unsatisfactory professional conduct' to include: 'A contravention by the practitioner of section 21A(3), 34A(4) or 63G(4) of the Health Care Complaints Act 1993.' 33. Section 34A of the [Health Care Complaints] Act states: '(1) If the Commission is investigating a complaint and is of the opinion that a person is capable of giving information, producing documents (including medical records) or giving evidence that would assist in the investigation, the Commission may, by notice in writing given to the person, require the person to do any one or more of the following- (a) to give the Commission, by writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation) and within such time as is reasonable, and in the manner, specified in the notice, any such information of which the person has knowledge, (b) to produce to the Commission, in accordance with the notice, any such documents, (c) to appear before the Commissioner or a member of staff of tire Commission authorised by the Commissioner at a time and place specified in the notice that is reasonable and give any such evidence, either orally or in writing, and produce any such documents. … (4) A person who is subject to a requirement under subsection (1) must not, without reasonable excuse, foil to comply with the requirement. Maximum penalty-200 penalty units. Note - Failure of a health practitioner ta comply with a requirement under subsection (4) may constitute unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW).' 34. On 20 January 2022, the manager of Complaint Operations (Investigations) at the HCCC sent a letter to the respondent's Picton address which enclosed a document titled 'Notice to Give Information/Produce Documents under Section 34A(1)(a)/(b) of the Health Care Complaints Act 1993', herein referred to as the 's 34A Notice'. A copy of that correspondence is contained at Tab 32. 35. The same letter was sent to the practitioner on 21 January 2022 via email. A copy of [the] same is also contained in Tab 32. The correspondence noted that the Commission was investigating complaints about the respondent's conduct and stated that in order to investigate the matter properly, the Commission required a response to the allegations made against her and to produce documents on or before 2 February 2022. 36. Inter alia, the s 34A Notice attached to the letter required the respondent to provide: a. a written response to each of the allegations that have been made against her in respect of [Patient A]; b. details of any employment the respondent was currently undertaking and the name of any employer; c. all correspondence between her and [Patient A] for [a] specified period; and d. a copy of her CV. 37. In the event of any doubt as to whether the correspondence was received by the respondent, the HCCC draws attention to the Statutory Declaration of Perry Gamsby dated 1 February 2022 found at Tab 33 which confirms that on 27 January 2022, the letter dated 20 January 2022 addressed to the respondent was personally served on her at the Picton residential address. 38. It is the HCCC's submission that the correspondence dated 20 January 2022 and the attached s 34A Notice was 'notice in writing' which required the respondent to do things described in s34A(a) and (b) of the [Health Care Complaints] Act. 39. There is no evidence before the Tribunal of the respondent complying with the request by 2 February 2022, or at all. Nor is there any evidence of the respondent responding to the HCCC in respect of the s 34A Notice, at any time. 40. Furthermore, there is no evidence of the respondent providing a reasonable excuse (or any excuse) for the failure to comply with the requirements set out in the s 34A Notice. 41. In the HCCC's submission, by failing to comply with the s 34A Notice and also by failing to provide a reasonable excuse for not complying with same, the respondent has contravened s 34A(4), and consequently committed unsatisfactory professional conduct as defined by s 139B(1)(e). 42. Particulars 1 to 3 of Complaint 2 are therefore established. Complaint 3 36. Complaint alleges that the respondent is guilty of [unsatisfactory professional conduct] under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice of nursing. 37. The National Law contains no definition of the term "improper and unethical" in the context of section 139B. 38. In HCCC v [Bolton] [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.' 39. 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 offender's 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'.' 40. The HCCC submits that each particular of Complaint 3 amounts to improper and/or unethical conduct. The conduct alleged, involves breaches of proper professional boundaries expected of nurses and breaches of the Code of Conduct for Nurses. 41. As a background to the relationship between the respondent and the patients to which the complaint relates, it is noted that: a. The respondent obtained a Diploma of Nursing from TAFE NSW in 2017; b. The respondent was employed by ParaMedical Health ("the employer"), as an Endorsed Enrolled Nurse; c. The employer provided in home care for aged and disabled people and the respondent's role included attending the client's homes and providing specialised nursing; d. There was an expectation for all employees to adhere to the Code of Conduct for Nurses; e. Patient A is a male born in 1972, and at the relevant times was a quadriplegic living in community housing in Picton, NSW. Extracts of his clinical file are contained at Tab 52. f. Patient B was a male born in 1970 who suffered from alcohol neuropathy, alcoholism, chronic pain and lived alone in Bowral, NSW. Extracts of his clinical file are contained at Tab 52. g. The respondent provided nursing care to both Patient A and Patient B. 42. In the HCCC's submission, both patients were extremely vulnerable patients and a significant power imbalance existed between the respondent and the patients. Particular 1 43. Particular 1 alleges that: 'On various dates including 2 January 2021, the practitioner breaches proper professional boundaries by attending the residence of Patient A at times where the practitioner was not rostered to work at Patient A's residence.' 44. To establish as a matter of fact that the respondent attended the residence of Patient A outside of rostered shift times, the HCCC relies upon the following: a. The complaint made by Ms Nicole Milatos to AHPRA on 7 January 2021 at Tab 16, page 4 of the HCCC's material, particularly Ms Milatos' evidence that she saw the respondent's vehicle outside the client's home for extensive periods outside of shift schedule during periods of her own 'personal surveillance'. b. The photographs contained at Tab 18 of the HCCC's material; c. Ms Milatos' letter to the HCCC dated 15 October 2021 at Tab 19 of the HCCC's material, particularly the following extracts of that letter: i. Page 3: 'As [Patient A] resides on a main road, I observed leaving her car [sic] to enter his home as I had driven by and could see she was logged onto our system. During this period, we had placed a setting to disallow carers to log onto [sic] without answering questions to confirm they were wearing a mask. I also observed her insider [sic] his home later that day without a mask playing cards with his friends out of shift time.' ii. Page 11: '... Her car was photographed and her presence was verified by my attendance to the house on 2/1/21. I first observed her car at [Patient A]'s on 2/1/21 at 2:42pm (no shift was scheduled for this time - it was a Saturday) then at 3:10pm (no shift was scheduled at this time) and then at 7:38pm (no shift scheduled at this time) on the same day. I have photos of her car there stamped at those times. Details are contained in staff notes of emails previously forwarded.' d. The respondent's admissions to her employer at Tab 14, page 26 of the HCCC's material that she had been to Patient A's home to play cards with the patient's brother and ex carer. e. The respondent's text messages to Ms Milatos contained at Tab 26, page 3 where she refers to playing cards while not on shift. f. The respondent's admissions to the Council, in particular at Tab 27, page 7 of the s 150 transcript wherein the respondent states: 'I deny having a sexual relationship with that client. Yes I was there outside of shift times but I was sorting cards with him, playing Magic because it's a card game we both were interested in.' g. The further admissions made by the respondent to the Council at Tab 27, page 12 wherein it is recorded: 'MS HART: So you were employed an enrolled nurse. So when you visited him outside of your paid contracted hours, you saw yourself - you yourself as visiting him as a friend? MS BLACK: Yes, I was there sorting cards with him like for the Magic and stuff like that. I was there with his brother and another carer, his carer at the time, and we were playing Magic. MS HART: So you engaged in both a profess/anal relationship with this client and a personal relationship? Am I right in thinking that, Allison? MS BLACK: I suppose so.' 45. The HCCC submits that the above evidence establishes the facts alleged in particular 1. 46. In relation to whether the conduct meets the threshold of 'improper' and/or 'unethical', the HCCC relies upon the Code of Conduct contained at [Tab] 48, particularly Principle 4 dealing with professional behaviour and professional boundaries. 47. The HCCC says that the conduct was both improper and unethical in that the respondent failed to: a. recognise the inherent power imbalance that existed between herself and the patient; b. maintain professional boundaries; c. recognise that over-involvement occurred and disclose same. 48. Attending the patient's house whilst not working for social purposes, clearly crossed over from a professional to a personal relationship. 49. The HCCC says the matter was particularly a serious boundary violation given that: a. the respondent maintained a treating relationship with the patient simultaneously; b. Patient A was highly vulnerable, being wheelchair bound; and c. even if there was no sexual intercourse involved and even if the respondent did not consider the relationship to be romantic, the conduct risked the patient mis-interpreting the nature of the relationship and potentially causing harm and disruption to the therapeutic relationship. Particulars 2, 3, 4 and 5 50. Particulars 2-4 allege that: '2. On 24 October 2020, the practitioner breached proper professional boundaries by paying Patient B's personal utility bills on her personal mobile phone with Patient B's credit card 3. On 28 October 2020, the practitioner used Patient B's credit card … to make personal online purchases from Woolworths Online, Petbarn and Exotic Athletica without Person B's consent 4. The conduct in particulars 2 and 3 of Complaint 3 is repeated and relied upon in combination as a course of conduct involving a failure of the practitioner to maintain her personal boundaries with Patient B amounting to unsatisfactory professional conduct.' 51. In relation to establishing the conduct as set out in particulars 2 and 3, the HCCC relies upon the following: a. The respondent's evidence provided to the Council during the s 150 Hearing; b. The Court Attendance Notice and FACTS Sheet at Tab 42; c. The certificate of conviction at Tab 46; d. The material within the police brief of evidence, including: i. The bank records at Tab 37; ii. The statement of [Ms] Anita Makimare dated 28 January 2021 at Tab 39; iii. The statement of Nicole Milatos at Tab 40; and iv. The statement of Jade Esquilant at Tab 41; e. The Notice of Pleading at Tab 43 which included: i. respondent's guilty plea; and ii. an explanation for the conduct, namely that she was a single mother who was not in a good financial position and wanted to pay off some debts. 52. The respondent has also admitted to her employer [that she had been] paying Patient B's utility bills on her own phone. 53. In relation to the impropriety of the conduct/unethical nature of the conduct, the HCCC notes the following: a. paying personal bills/managing finances was not within the position description or duties and responsibilities of the enrolled nurse position; b. the respondent has admitted to her employer that she should not have paid the bill as that is not part of the service they were to provide clients; c. the respondent knew that it was not her role to pay utility bills and it was in fact the role of the support worker to do so rather than Paramedical staff; d. the practice of paying the patient's utility bills represented a transgression of the proper boundary between the nurse and client; e. there can be no question that the action of using the credit card of a vulnerable patient to make personal purchases without the patient's consent (or even with consent given the relationship between the two) is a grossly immoral act. 54. The HCCC also relies upon the decision of Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 which categorised a nurse's conduct of dishonestly and knowingly using a patient's credit card for her own financial advantage whilst that patient was in her care could be categorised as 'improper'. 55. For the same reasons, the HCCC says that the conduct breached s 4.1 of the Code of Conduct which relates to professional boundaries. Complaint Four 56. Complaint 4 alleges that the respondent is guilty of [unsatisfactory professional conduct] under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper and unethical conduct relating to the practice of nursing. 57. The particulars of Complaint 4 are as follows: '1. On 11 November 2020, the practitioner provided false and/or misleading information to her employer when she stated she did not use Patient B's credit card to make personal purchases. On 18 January 2021, the practitioner provided false and/or misleading information to the delegates of the Nursing and Midwifery Council of New South Wales when she stated that she did not use Patient B's credit card for any purpose than to pay Patient B's 2 utility bills.' 58. It is well established that lies to the Council can constitute improper or unethical conduct: [s]ee Health Care Complaints Commission v DAC [2017] NSWCATOD 98 at [102], [120]; Health Care Complaints Commission v Cokon [2018] NSWCATOD 5 at [136] and Health Care Complaints Commission v Hanna [2018] NSWCATOD 113 at [104] (lying to the Council's section 150 delegates) and Health Care Complaints Commission v XC [2015] NSWCATOD 9 at [103] (lying to the Medical Board and the Council appointed expert) and Health Care Complaints Commission v Skandaliaris [2018] NSWCATOD 199 at [110] (lying to the Council) and Health Care Complaints Commission v Moslemi [2020] NSWCATOD 2 at [30] (lying to the Council). Concealing information from the [Council] can also constitute improper or unethical conduct. 59. As discussed in the earlier complaints, the HCCC says it is established as a matter of fact, that the respondent did use Patient B's credit card without his consent to make personal purchases on 28 October 2020. 60. Prior to admitting to do doing so, the respondent made a number of deceptive representations which form the basis of this complaint. Namely: a. Particular 1: At Tab 12, page 1, there is evidence of the respondent denying the conduct via email to her employer, Ms Milatos on 11 November 2020. b. Particular 2: At Tab 27, page 6, the transcript of the s 150 proceedings, there is evidence of the respondent denying using Patient B's credit card referred to as 'keycard' besides paying the two electricity bills. 61. The Commission submits that the conduct in particular 1 amounts to unsatisfactory professional conduct because: a. It is a breach of the standards of conduct that would be expected of an enrolled nurse; b. It is unethical to provide false information and/or mislead her employer in the process of investigating potential misconduct (or otherwise) because it is dishonest, contrary to the Code of Conduct, influenced by self-interest, has the potential to bring the professional [sic] into disrepute and jeopardise the nursing profession's good reputation and standing. 62. The Commission submits that the practitioner's conduct in particular 2 was improper because: a. The practitioner misled the section 150 delegates appointed by the Council, including members of the nursing profession; b. The purpose of section 150 hearings is to protect the health and safety of the public by providing a mechanism to ensure that nurses are safe to practice - the act of [providing] misleading information impeded the Council, or could have impeded the Council's ability to protect the public; c. The respondent denied knowledge of the theft from Patient A notwithstanding that she was directly responsible and knew she was responsible; d. The respondent also mentioned the presence of another carer who was apparently present at the time she paid the patient's bills to make her denials more plausible. 63. In addition, the Commission submits that the respondent's conduct in particular 2 was unethical because: a. The Code of Conduct states that positive professional relationships are built on effective communication that is respectful, kind, compassionate and honest; b. The respondent failed to give a full and frank account to her nursing peers appointed as section 150 delegates; c. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities and uphold the highest standards of honesty and integrity in their dealings with those authorities: Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at [81]. d. The practitioner's lack of candour was, in the HCCC's submission, likely motivated by a desire to avoid the consequences of her behaviour. 64. For the above reasons, the HCCC says Complaint 4 is established. Complaint Five 65. Complaint 5 alleges that the respondent is guilty of professional misconduct under s 139E of the National Law in that the practitioner has: a. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or b. 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. 66. In support of the finding of professional misconduct, the HCCC relies upon the particulars of Complaints 2 to 4 and says that the conduct when considered either individually or cumulatively is of a sufficiently serious nature to amount to professional misconduct. 67. As the Tribunal would be aware, there is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s 139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: see Health Care Complaints Commission v Saedlounia [2013] NSWMT 13 at paragraphs 43-50 and Health Care Complaints Commission v Do [2014] NSWCA 307 at paragraph 35. 68. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 '[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation': see paragraph 19. 69. The protective objects of the National Law inform the Tribunal's evaluative task as to whether the conduct amounts [to] professional misconduct. In Health Core Complaints Commission v Do, Meagher JA, with whom Basten and Emmett JJA agreed, stated at [35]: 'The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective ls achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.' 70. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the Respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct ls 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 (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 638). 71. When the complaints are considered individually and together, the HCCC says there has been a significant departure from the standard of conduct to be expected of a nurse. 72. The HCCC submits that, in itself, stealing from a patient under the respondent's care simply is abhorrent behaviour and should easily fall within the threshold of professional misconduct. 73. The boundary violations concerning Patient A is also in itself capable of a finding of professional misconduct, especially considering the absence of any understanding from the respondent as to why the conduct was inappropriate. 74. The pattern of behaviour constituted exploitation of two (2) vulnerable patients, conduct of a nature which strikes at the heart of public confidence in the profession. 75. To aggravate the matter, the respondent then compounded her conduct with acts of further dishonesty to her employer and the Council. She also failed to assist the HCCC in its investigation in contravention with the requirements of the National Law. 76. For the above reasons, the HCCC asks the Tribunal to make a finding of professional misconduct. Stage 2 Submissions Protective Orders Sought 77. The HCCC seeks the following protective orders: a. That the respondent's registration be cancelled pursuant to s 149C(1)(b) and/or 149C(1)(c) of the National Law with a non-review period of 2 years; and b. 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. 78. The HCCC also seeks an order that the respondent pay the HCCC's costs as agreed or assessed pursuant to clause 13 of Schedule [5D] of the National Law. 79. Whilst the respondent has not meaningfully participated in the disciplinary process, she has indicated to the HCCC that she will accept the loss of her registration. Governing Principles 80. The paramount consideration in proceedings such as this is protection of the public. Accordingly, the Tribunal's jurisdiction must be exercised bearing in mind the need to place to the fore, issues of public safety. It has also been held that in addition to the protection of the public being the paramount consideration, other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201, 202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184. 81. In NSW Bar Association v Meakes [2006] NSWCA 340 at [114], Basten JA set out the following as the important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order: a. The order reminds other members of the profession of the public interest in the maintenance of high professional standards; b. The order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence; and c. By speaking to the public at large, the order seeks to maintain confidence in the high standards of the profession. 82. Those statements of principle were further refined by Meagher JA in the context of the National Law in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: the objective extends to protecting the public from not only the practitioner's misconduct but also similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession, 'by setting and maintaining standards and, where appropriate, cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise'. 83. Section 3A of the National Law affirms that the protection of public safety and health is the paramount consideration. Public protection is achieved via registration, 'ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner' are registered. Power to Suspend or Cancel 84. The Tribunal's power to make protective orders is enlivened where it finds the subject matter of a complaint to have been proved, or admitted by the respondent. 85. In this case, the Tribunal has power to suspend or cancel the respondent's registration under two (2) sections of the National Law: a. Under s 149C(1)(c): if it is satisfied that [s]he has been convicted for an offence, and the circumstances of the offence render [her] unfit in the public interest to practice as a nurse. b. Under s149C(1)(b): if the respondent is guilty of professional misconduct. 86. In Health Care Complaints Commission v Russ [2021] NSWCATOD 5, the Tribunal identified the following relevant principles in considering whether the circumstances of an offence rendered a practitioner unfit in the public interest: a. The term 'public interest' is a broader concept tha[n] the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held (citing Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]) (at [37]). b. An assessment of the practitioner's current fitness to practice is required, and is not subject to a requirement of 'probable permanent unfitness' (citing Chen v Health Care Complaints Commission [2017] NSWCA 196 at [67]-[69]) (at (38]). c. The question is whether the circumstances surrounding the offence currently render the practitioner unfit to practice in the public interest. Those circumstances include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances (at [39]). 87. 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. 88. Whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse. [6] 89. Whether a practitioner is unfit in the public interest to practice must be assessed in light of a holistic inquiry into suitability which takes into account the wider context of the practitioner's conduct, including motivation, insight into the harm caused and any attempts at remediation. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards and public confidence in the health professions. [7] Prohibition Orders 90. [Section] 149C(5) says that: 'If the Tribunal suspends or cancels a registered health practitioners' 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.' 91. As is clear from s 149C(5) of the National Law there are two pre-requisites to be established if a prohibition order is to be made. 92. First, the Tribunal must have determined that the practitioner the subject of disciplinary proceedings should have her/his registration suspended or cancelled. 93. Secondly, the Tribunal must be satisfied that the person poses a substantial risk to the health and safety of members of the public. 94. In Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 at [139], the Tribunal referred to a substantial risk being a risk that is material, and real or apparent on the evidence, not without substance or speculative. 95. In Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48 it was noted that 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. 96. The Tribunal noted the following: 'The Commission submits that the risk posed by Ms Shrimpton if she were to provide health services as an assistant in nursing is she could in the future, as she has done in the past, conduct herself dishonestly and then seek to conceal that dishonesty to avoid detection. In this regard reference is made to the efforts she made in this case to avoid detection by her employer, patients, patients' families, and regulators. The Commission also referred to previous complaints, unrelated to the current matter, about Ms Shrimpton and her lack of candour. The Commission also submits that there is a substantial risk that if Ms Shrimpton made a mistake that compromised the health of a patient which she considered may compromise her ability to continue as an assistant in nursing, she would not prioritise the health of the patient and could not be trusted to candidly disclose that error to her supervisors. It is argued that this puts a patient's health at risk. We accept these submissions. Ms Shrimpton targeted her fraud towards a frail, aged and vulnerable patient. Further we had the benefit of hearing evidence from the patient's son as to the effect and impact that Ms Shrimpton's conduct had on him. In our view his evidence epitomised the underlying legislative principle of the protection of the health and safety of the public. Her misleading conduct towards him satisfies us that she presents a substantial risk to the health of members of the public. Additionally, and as submitted by the Commission, in our view a prohibition order ensures that the protective purpose of the cancellation of Ms Shrimpton's registration is not significantly undermined. This is because if Ms Shrimpton were permitted to provide health services as an assistant in nursing during the interim period when her registration was cancelled, it would substantially diminish the protective purpose of any order that cancelled her registration and may undermine confidence held in the profession. Considered together the cancellation and prohibition order are justified, appropriate and reasonable given our findings.' Submissions on Protective Orders 97. The HCCC submits cancellation of the respondent's registration is appropriate for the following reasons: a. The gravity of the conduct - the circumstances of the criminal offending are sufficiently serious to render the respondent unfit to practice. Conduct of stealing from an ill and vulnerable patient within the respondent's care is highly serious. b. Each instance of professional misconduct (boundary violations, the various episodes of deceitful conduct and failing to respond to the s 34A Notices) were also highly serious and necessitate a need for deterrence, a need to reinforce high professional standards and maintain public confidence in the profession of nursing; c. There is clear nexus between the conduct and the practitioner's professional role - the conduct of the practitioner has occurred within the context of her work as a nurse and falls well below the acceptable standards of practice; d. There is a need for deterrence, to reinforce high professional standards and maintain public confidence in the profession; e. If the Tribunal were not to denounce the conduct in the strongest terms, this may inadvertently suggest that this type of conduct is acceptable; f. The respondent has demonstrated contempt for the regulator and the profession by failing to engage with same. This together with her propensity to lie to the Council, raises doubt as to whether in the event she was allowed to return to practising nursing, she would be compliant with the codes of conduct and any conditions imposed on her registration. The subsequent lies to the Council also demonstrate a lack of insight into what she understands about the standards of practice and morality required of her as a nurse. g. The behaviour subsequent to the criminal offending suggests it was not an error in judgment, but a defect in character; h. The misconduct was committed relatively recently (in 2020 and 2021), while she was registered as a nurse. These are not historical offences; i. At the time of offending, the respondent was a 32-year-old woman. She was an adult, and should have been aware of her obligation to comply with her professional obligations and the criminal law. j. The unfitness of the respondent to practice is not cured by the mere passage of time without renewed misconduct. [8] Importantly, there is no evidence before the Tribunal to assess the practitioner's current fitness to practice. Specifically, there is no evidence before the Tribunal to assess current: i. levels of insight (if any) into the conduct; ii. degree of remorse; iii. understanding of the motivation for the conduct; iv. awareness of the conduct being unacceptable; v. support systems; vi. employment status; vii. health status; or viii. financial status. k. In the absence of evidence dealing [with] the respondent's reformation of character, the Tribunal cannot now be satisfied that there is clear proof to show that some years later, she has established [herself] as a different person. l. There is no evidence before the Tribunal of steps taken by the respondent towards rehabilitation, reformation or further education. m. There is an obvious lack of knowledge held by the respondent regarding the appropriateness of relationships with clients. For example, during the s 150 proceedings held on 18 January 2021, the respondent continued to deny that she had breached the standards when engaging in a professional relationship concurrently with a personal relationship when employed as an EN relating to [Patient A]; n. The respondent had an opportunity to demonstrate insight and remorse when the matter has been investigated by her employer and the Commission; o. The lesser sanction of a suspension should only be considered in circumstances where the Tribunal is confident at the time of making its protective orders that the practitioner will be fit to practise at the end of the period of suspension: Law Society of New South Wales v Walsh [1997] NSWCA 185 at [45], per Beazley JA. In this case, there is no evidence before the Tribunal as to when the respondent will re-gain fitness to practice, if ever. 98. For the same reasons, the HCCC submits that 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. 99. The Tribunal would have no confidence that the respondent would not pose a substantial risk to patients across the spectrum of health services, in the circumstances. 100. As to the period of the non-review period sought by the HCCC of 2 years, it is submitted that this period appropriately reflects the seriousness of the conduct, provides general and specific deterrence as well as holding open the possibility that an application for re-registration thereafter will at least be considered once the respondent changes her practices. 101. Whilst every matter should be assessed on its own merits and the Tribunal is certainly not bound by previous decisions, the HCCC submits that the following decisions will assist the Tribunal in formulating protective orders. Health Care Complaints Commission v Kauser [2020] NSWCATOD 42 102. This case concerned a registered nurse working at the Sydney Skin and Vein Clinic in Chatswood, Sydney who over a three-week period misappropriated credit cards and cash from three patients of the Clinic while they were sedated and having procedures. Ms Kauser then used the credit card to purchase personal luxury items for herself to the value of around $35,000. Ms Kauser was found guilty of several criminal offences relating to the theft and use of the credit cards. The Tribunal also found that she had misled the Nursing and Midwifery Council when initially asked about the thefts and denied any wrongdoing, and continued to lie to the Commission when an investigation was undertaken into the alleged thefts. 103. In that decision, the Tribunal ordered: a. if Ms Kauser was still registered as a nurse, the Tribunal would have cancelled her registration, b. Ms Kauser is not permitted to apply for re-registration for a period of 30 months; and c. prohibition order imposed is imposed preventing Ms Kauser from providing the following health services on a public, private or volunteer basis until she is registered: medical, hospital, nursing or midwifery services; mental community health services; health education services. Health Care Complaints Commission v Shrimpton (No.2) [2019] NSWCATOD 48 104. In Shrimpton, the Tribunal found that a registered nurse dishonestly used a credit card belonging to an elderly hospital patient for her own financial advantage whilst the patient was in her care, tried to conceal her conduct by providing an untruthful account to her supervisor and, when investigated, to the HCCC. It found that she also failed, as required under s 130(1) of the National Law to notify [the] Australian Health Practitioner Regulation Authority (AHPRA) that she had been charged with a criminal offence punishable by at least 12 months' imprisonment, namely, fraud an offence under s 192E of the Crimes Act 1900 (NSW). 105. In that case, the Tribunal ordered the following protective orders: a. The Respondent's registration as a nurse is cancelled with a non-review period of 3 years from the date of the decision. b. The Respondent ls prohibited from providing health services as an Assistant in Nursing unless and until such a time as she is registered as a Registered Nurse c. The Respondent is not to make any application for review of the cancellation of her registration for a period of three years from the date of this decision. Costs 106. The HCCC seeks an order that the Respondent pay the HCCC's costs. 107. Pursuant to Schedule 5D, Clause 13 of the National Law, 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. 108. In Qasim v HCCC [2015] NSWCA 282, the Court of Appeal (per Meagher JA, McColl JA and Ward JA agreeing) has set out the principles to be applied by Tribunals in relation to the issues of costs: '[84] Clause 13 in Sch 5D of the applicable National Law relevantly provided: (1) A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. [85] In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McCall JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the [Civil and Administrative Tribunal Act] which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings 'only if it is satisfied that there are special circumstances warranting an award of costs'.)' (emphasis added) 109. It is submitted that the Complainant has acted properly in the prosecution of the Complaint in these proceedings and that there has been no disentitling conduct. 110. Of particular note, the HCCC alerts the Tribunal to the fact that the HCCC has minimised costs by not briefing external counsel. 111. It follows that the Tribunal ought to make an order that the Respondent pay the HCCC's costs as agreed or assessed: Schedule 5D, Clause 13." (some footnotes omitted)

EVIDENCE OF THE RESPONDENT

1. The Respondent did not appear at the hearing nor did she provide any of the information requested by the Applicant and failed to provide any evidence over and above that referred to in the submissions by the Applicant set out above.

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, having reviewed the various additional documents which were tendered and having considered the submissions made by the Applicant which fully set out an analysis of the evidence available, the Tribunal is comfortably 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 the breaches of professional boundaries by the Respondent in relation to Patients A and B, the fraud committed by the Respondent, and the total failure of the Respondent to participate in the conduct of the matter (which demonstrates a total lack of respect for the Council, the Applicant or the Tribunal) are very serious.
3. In coming to its conclusion, the Tribunal is fully aware of, and agrees with, the submissions of the Applicant as to the purpose and role of the Tribunal in complaints of this nature against a practitioner, and is aware that its obligation is to ensure the safety of the public while at the same time also protecting the good name of the profession.
4. In addition, the Tribunal has regard to the fact that its role is protective and not punitive, but should also operate as a deterrent to other members of the profession.
5. In this respect, the Tribunal considered the various cases referred to by the Applicant which deal with these issues and was comfortably satisfied that an order for cancellation of the Respondent's registration is appropriate. In considering the question of registration, it is important to note that in the view of the Tribunal each of the alleged breaches by the Respondent in the Complaint, and the particulars thereof, would be sufficient for the Respondent's registration to be cancelled. Taken together, the Tribunal believes that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. The Tribunal is of the view that the breaches are extremely significant and that the only explanation for the Respondent's conduct is her flagrant disregard for her professional and ethical obligations as a nurse, which constitutes a serious risk to the public.
6. The Tribunal believes that the Respondent will need considerable time and effort to develop an understanding of, and insight into, her behaviour both in respect of the breaches the subject of the Complaint, and her behaviour subsequently in relation to the Council, the Applicant, and the Tribunal. In the circumstances, the Tribunal believes that any non‑review period should be at least two years.
7. Accordingly, the Tribunal makes the following orders.

ORDERS 1. The Respondent's registration is cancelled pursuant to s 149C(1)(b) of the National Law with immediate effect. 2. An application for review under Part 8, Division 8 of the National Law may not be made for a period of two years. 3. The Respondent is prohibited from providing any health services for the same period as the non‑review period imposed pursuant to s 149C(5) of the National Law. 4. The Respondent is to pay the costs of the Applicant as assessed or agreed.

Endnotes

1. Lindsay v Health Care Complaints Commission [2005] NSWCA 356.
2. Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]; Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [54].
3. Weinstein v Medical Practitioners Board (2008) 21 VR 29 at [30].
4. King v Health Care Complaints Commission [2011] NSWCA 353 at [4], [168].
5. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [55].
6. HCCC v Karunaratne (No 2) [2018] NSWCATOD 201 at [51].
7. HCCC v Limboro [2018] NSWCATOD 117 at [22].
8. Lee v Health Care Complaints Commission [2012] NSWCA 80. 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: 17 April 2023