Health Care Complaints Commission v Chauwan

The Amended Complaint

1. The HCCC Amended Complaint comprises two elements being: Complaint 1 Pursuant to s 144(a) of the National Law, the Practitioner was made subject of a criminal finding for an offence in the State of New South Wales. Complaint 2 The Practitioner is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law in that the Practitioner has contravened s 130(1) of the National Law.
2. In the Amended Reply filed on the Practitioner's behalf, Complaint 1 and each of the particulars supporting it and also Complaint 2 and each of the particulars supporting it, are admitted. The Tribunal therefore may have regard to s 149(b) of the National Law which enables it to exercise the disciplinary powers contained in Subdivision 6 of which the subsection forms part. The parties' evidence reflected in the particulars to each of the complaints, however, remains relevant to the Tribunal's conclusions by reason of s 165M(2) and (5) of the National Law.

The evidence of the parties

1. The HCCC relied upon their Amended Complaint and in addition the following documentation: 1. The Evidentiary Certificate provided by Ahpra and dated 9 November 2022 (Exhibit 1). 2. Written Submissions on the HCCC's behalf and the Chronology already referred to (Exhibit 2). 3. A bundle of documents comprising 33 tabs (Exhibit 7).
2. The Practitioner relied upon the following documentation: 1. A Supervision Report dated 9 September 2022 (Exhibit 3). 2. A Supervision Report dated 14 October 2022 (Exhibit 4). 3. A Supervision Report dated 14 November 2022 (Exhibit 5). 4. Submissions on behalf of the Practitioner (Exhibit 6). 5. A bundle of documents comprising 17 tabs (Exhibit 8). 6. An email from the Practitioner (Exhibit 9).
3. The Tribunal has read and had regard to those documents. The Practitioner gave evidence and was cross-examined.

The orders sought by the parties

1. The HCCC in its Application for Disciplinary Findings filed 22 July 2022 sought first an order pursuant to s 64(1) of the Act that the name of the victim in the criminal proceedings referred to in the Schedule to the Amended Complaint be prohibited. The Tribunal made that order on 21 November 2022.
2. In addition to that order, the HCCC sought to the following orders: 1. Cancellation of the [Practitioner's] registration pursuant to s 149C(1)(b) of the National Law with a non-review period of 12 months. 2. An order that the [Practitioner] pay the Commission's costs under Clause 13 of Schedule 5D of the National Law.
3. As a consequence of the re-framed complaint, the relief sought by the HCCC was amended from s 149C(1)(b) to s 149C(1)(c) of the National Law.
4. By an email forwarded to the Tribunal at its direction on 21 November 2022, Mr Thompson outlined the orders sought on behalf of the Practitioner as follows: 1. That the [Practitioner] remain under Remote Supervision as a condition of his nursing registration. 2. That the Nursing and Midwifery Council (NSW) be appointed as the appropriate review body for this condition. 3. That in the event that a minimum term was required, it was suggested to be 6 months. 4. That a caution be issued by the Tribunal in relation to the late notification as outlined in Complaint 2. 5. That costs if ordered against the [Practitioner] be costs as agreed or assessed.

The relevant law

1. These are proceedings to which s 149C(1)(c) of the National Law applies. The Practitioner has admitted that he has been made the subject of a criminal finding and admitted the particulars of the circumstances of that finding. Separately, the Tribunal is satisfied from the evidence before it that ignoring the admission, the complaint is otherwise established. Similarly, in relation to Complaint 2, the evidence before the Tribunal ignoring the Practitioner's admissions is sufficient to establish Complaint 2 and the Tribunal so finds Complaint 2 established. The Tribunal's disciplinary powers pursuant to Subdivision 6 of Division 3 of the National Law is therefore enlivened.
2. The Tribunal must consider the safety of the public although this is not the only consideration as the authorities refer to other relevant considerations including the need to maintain standards within the relevant profession and deterrents to others within the profession from like conduct. [1] Where a practitioner has been convicted of a criminal offence, the Tribunal said in Russ, [2] the following relevant principles applied in considering whether the circumstances of an offence rendered a practitioner unfit in the public interest: 1. The term "public interest" is a broader concept than protection of the health or safety of the public and encompasses wider community interests such as standards to which human conduct is to be held (citing Pharmacy Council v Ibraham [2020] NSWSC 708 and 35 (at [37]); 2. An assessment of the practitioner's current fitness to practice required and is not subject to a requirement of "probable permanent unfitness" (citing Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]-[69] (at [38])); 3. 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 requirements 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]).
3. The Tribunal will apply those principles and in addition have regard to the public interest need including the need for patients to have confidence in the trustworthiness and high-moral and ethical values of practitioners. [3]

Discussion

1. The Practitioner gave evidence that he lived with his wife and two children aged 5 and 3 years. He was presently employed at Estia Health Albury as a registered nurse working subject to the current conditions placed on that registration. His Curriculum Vitae [4] noted that he was working on a permanent part-time basis between 59 to 76 hours per fortnight.
2. In his evidence-in-chief, the Practitioner was taken to a Supervision Report dated 9 September 2022, [5] a Performance Appraisal dated 1 January 2022, [6] and a letter on the letterhead of Estia Health dated 10 October 2022 and addressed to the Tribunal. [7] The Practitioner gave evidence that the author of each of these documents, Ms Kelly Hayes, who is also the Executive Director of Estia Health Albury, was aware of the matters before the Tribunal which in any event is clear from the content of Ms Hayes' letter dated 10 October 2022 which although it refers to a s 150 hearing is clearly directed to this Tribunal. To quote from Ms Hayes's letter: Krishna is currently employed by Estia Health and commenced on 20 September 2021 on a part-time basis. Krishna is currently employed in the position of Registered Nurse and I have been his manager since he started at Estia Health Albury. During this time Krishna has shown no issues regarding his behaviour or in relation to his performance in the role. He has demonstrated strong professional and inter-personal skills. As his manager, I am confident in stating that he has demonstrated to be a safe and competent Registered Nurse and has been a valued team member at Estia Health Albury.
3. The Performance Appraisal dated 1 January 2022 notes in overall comments: Krishna is a wonderful RN. Krishna always conducts himself in a kind and professional manner. Krishna is a wonderful leader and always approachable to the team. Krishna works conscientiously with his peers to ensure the residents' care needs are met. Krishna is a wonderful asset to our team. Well done Krishna.
4. The Supervision Report [8] and an earlier Supervision Report [9] together with the reports admitted into evidence [10] all note the Practitioner's compliance with the conditions to which he is subject. In addition, his competency rating for each category of the Bondy Competence Evaluation Tool is in each of the supervision reports referred to in the highest category. To quote from the supervisor's comments in the most recent report: [11] Krishna remains competent in all areas of nursing care. Krishna's care remains efficient and coordinated. Krishna is confident and always displays practical use of time. Krishna continues to work in a professional manner and will always escalate any concerns or seek help and guidance as needed.
5. These comments are reflective of the supervisor's comments in each of the reports. The Practitioner was cross-examined by counsel appearing for the HCCC. He was challenged about his acceptance of the facts underlying the charge in respect of which he was found guilty. The Practitioner's evidence in response was consistent with an acceptance of the Court outcome but retention of an element of disagreement with it. In a statement replying to the HCCC complaint as originally filed, the Practitioner said with respect to Complaint 1, which remains in the same terms as follows: I accept the finding of guilt by the Court. I have always respected my profession, patients, the community and my family. I understand that this can impact my professional standing and work as a RN, however, this incident was out of character and not in keeping with how I conduct myself personally or professionally.
6. Taken as a whole, cross-examination of the Practitioner did not permit a different conclusion and the Tribunal therefore accepts that evidence.
7. The Tribunal also accepts the evidence of the Practitioner's supervisor, Ms Kelly Hayes. That evidence enables the Tribunal to find and the Tribunal does find that the Practitioner is a personable hardworking and highly competent registered nurse. The period during which Ms Hayes has been able to monitor the Practitioner being a period of some years is also significant in determining the weight which can be attached to her opinions.
8. The Tribunal has also regard to the evidence and outcome in each of the three hearings which have now taken place pursuant to s 150 of the National Law. The first of those hearings led to the Practitioner's registration being suspended on and from 8 February 2021. The second hearing which took place on 16 July 2021 set aside the suspension. The third hearing which took place approximately a year later on 15 July 2022 led to conditions being imposed upon the Practitioner's registration. [12] Two facts of importance to the Tribunal arise from the Council's considerations in each of these hearings. First, that the Practitioner worked between July 2021 and 2022 without restriction and without complaint of any kind as to his personal behaviour or competence as a registered nurse. Secondly, that when conditions were imposed upon the Practitioner, the evidence establishes that he has accepted them, worked within them with a high degree of competence.
9. Apart from the complaint in respect of which the Practitioner was found guilty, the evidence before the Tribunal is that the Practitioner has not been made subject to any other relevant complaints. The Tribunal so finds.
10. The evidence also establishes and the Tribunal finds that the offence is inconsistent with the Practitioner's otherwise unblemished record. While it would be imprudent to find beyond reasonable doubt that the Practitioner would never commit a similar offence, that is not the evidentiary standard which applies here. However, it is open to the Tribunal and the Tribunal finds that on the balance of probabilities the Practitioner will not re-offend. Thus, if the Practitioner does present any risk to the public or more particularly any patient in his care, that risk can almost entirely be discounted from the Tribunal's considerations as to appropriate penalty.
11. Mr Mitchell for the HCCC submitted that the Tribunal must have regard to the nature and gravity of the offence. The Tribunal acknowledges that the nature of the offence being the non-consensual sexual touching of another person is clearly a relevant consideration. However, the gravity of the offence in this case having regard to the penalty imposed is at the lower end of the spectrum. The offence is plainly relevant to the practice of nursing given the almost certain circumstances which will lead to a registered nurse coming into contact with vulnerable patients.
12. Mr Mitchell submitted that the Practitioner had a "complete absence of any insight" and later that the Practitioner "demonstrated no insight". He submitted that there was before us "no evidence of his [the Practitioner's] fitness to practice". The Tribunal does not agree. It is difficult to understand the direction of that submission because the Practitioner clearly has an understanding of the consequences of re-offending. The evidence referred to earlier in this judgment and our findings flowing from it lead to the conclusion that but for an assessment of risk that the Practitioner might re-offend there is no other factor which would support a finding of concern in relation to the Practitioner's practice as a registered nurse. As the Tribunal has found that the Practitioner is unlikely to re-offend, the issue of risk significantly but not entirely falls away.
13. It is necessary to consider any damage to the reputation of nursing generally. In this case, the guilty conduct did not occur at the Practitioner's workplace or in connection with the practice of his profession. It occurred in unrelated circumstances.
14. Turning to the second complaint relied upon by the HCCC. The Practitioner agrees that he failed to give the notice required within the relevant time. The Practitioner was convicted of the relevant offence on 4 December 2020. In his Reply to the Complaint, the Practitioner admitted the relevant particulars. In his Reply to the Particulars set out in his Statement, [13] the Practitioner says that as to being charged on 16 March 2020, he 4 days later on 20 March 2020 notified his employer of the charge and ceased work as a registered nurse. As to the second particular to the Complaint, the Practitioner again agrees that he failed to give notice within the 7 days as required. His evidence, not contradicted, is that he gave appropriate notice on 23 December 2020.

Appropriate Protective Orders

1. Having found the complaints established, it is necessary for the Tribunal to now consider what protective orders are appropriate. The orders sought by the parties appear earlier in this judgment.
2. The Tribunal's paramount consideration is the protection of the health and safety of public. [14] The Tribunal has referred to Health Care Complaints Commission v Russ in connection with the relevance of that concept to the facts in these proceedings. Having considered the evidence and made the findings earlier referred to, the Tribunal is satisfied that the appropriate protective orders are as set out below.
3. In relation to those orders, the Tribunal notes that since the matter was heard the Practitioner has continued to practise under the conditions including the Supervision Orders dating from 15 July 2022. In the event that there had been any breach of those orders there was opportunity for the HCCC to bring notice of that before the Tribunal. As that has not occurred, the Tribunal infers that the Practitioner has continued to abide by the conditions imposed and that is a relevant consideration.

Costs

1. These are proceedings where pursuant to Schedule 5D of the National Law, costs follow the event. There is no doubt that the Practitioner's decision to admit the HCCC's complaints limited the scope of the proceedings. Those admissions shortened the hearing, but the hearing was still necessary. This is not a case therefore where special circumstances can be found notwithstanding that the orders made were essentially in terms of those which the Practitioner sought. Their terms were only made available to the Tribunal and the HCCC at the conclusion of the hearing.

Orders 1. That the Practitioner remain under remote supervision as a condition of his nursing registration. 2. That the Nursing and Midwifery Council (NSW) be and is appointed as the appropriate review body for this condition. 3. That pursuant to s 149A(2) of the National Law, the Practitioner be cautioned with respect to his breach of s 130(1) of the National Law. 4. That pursuant to Clause 13 of s 5D of the National Law, the Practitioner pay the costs of the Health Care Complaints Commission as agreed or assessed. 5. The Tribunal notes that an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) was on 21 November 2022 made in relation to the disclosure and/or publication of the name of Person A in the Schedule to the Health Care Complaints Commission's Amended Complaint.

Endnotes

1. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202.
2. Health Care Complaints Commission v Russ [2021] NSWCATOD 5.
3. Crickitt v Medical Council of NSW (No.2) [2015] NSWCATOD 115.
4. Exhibit 8, Tab 4.
5. Exhibit 8, Tab 9.
6. Exhibit 8, Tab 10.
7. Exhibit 8, Tab 11.
8. Exhibit 8, Tab 9.
9. Exhibit 8, Tab 8.
10. Exhibits 3, 4 and 5.
11. Exhibit 5.
12. Exhibit 8, Tabs 27, 29 and 31.
13. Exhibit 8, Tab 2.
14. National Law at s 3A. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 09 June 2023 - Representative updated 05 July 2023 - Coversheet and Paragraph 1 - "Bahdur" changed to "Bahadur" 06 September 2023 - Order 1 and 2 replaced 11 October 2023 - paragraph 40 sentence replaced. 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: 11 October 2023