Health Care Complaints Commission v Clemente

NCAT Occupational|2024-08-29

Introduction

This decision concerns the protective orders to be made under the Health Practitioner Regulation National Law (NSW) (National Law) in respect of the Respondent, Mr Sean Clemente, following this Tribunal's decision on 1 May 2024 that the Complaint against him prosecuted by the Health Care Complaints Commission (HCCC), namely that he has been convicted of a criminal offence in New South Wales, was proven: Health Care Complaints Commission v Clemente [2024] NSWCATOD 56 (Stage One Proceedings).
A hearing took place before us on 29 August 2024. At that hearing Mr Clemente tendered some evidence but the HCCC requested the matter be adjourned part-heard in order for it to seek to issue summonses to produce documents which, it said, would assist the Tribunal in light of a lacuna it had identified in the evidence. The proceedings were adjourned part-heard and came back before us on 14 November 2024. The issue before the Tribunal was as to the protective orders, if any, the Tribunal should make (Stage Two Proceedings).
The HCCC submits that the Tribunal should make an order pursuant to s 149C(1)(c) of the National Law cancelling Mr Clemente's registration with a non-review period of two years and an order under s 149C(5) prohibiting Mr Clemente from providing health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for the same period as any non-review period imposed.
Section149C(1)(c) of the National Law provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or …
Section 149C(5) of the National Law provides: (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.

Materials before the Tribunal

The HCCC relied on the bundle of documents comprising 197 pages which was tendered in the Stage One Proceedings and tendered two further bundles of documents. One bundle comprised documents produced under summons by Psychorium Forensic & Clinical Psychology Services, the other bundle comprised documents produced under summons by Community Corrections.
Mr Clemente relied upon a letter dated 17 July 2024 from his psychologist, Mr Lamarque, and a letter dated 5 July 2024 from Mr Nitin Virmani of Blacktown Community Corrections confirming that Mr Clemente has completed all of the requirements of the community service work condition of the Community Correction Order made in respect of Mr Clemente on 9 May 2023.
On 29 August 2024 Mr David Odbert, a Community Corrections Officer, was called by Mr Clemente and cross-examined. Mr Odbert was recalled at the hearing on 14 November 2024 and leave was given to reopen his cross examination. His evidence is referred to below.
At the hearing on 14 November 2024 Mr Lamarque was called and cross-examined. The HCCC also called Mr Alex Quan a Community Corrections Psychologist. Mr Clemente also made some submissions which were in the nature of a mix of evidence and submissions. This evidence is referred to below.

Background Facts

Mr Clemente was first registered as a registered nurse on 27 March 2020.
At all relevant times he was employed as a registered nurse at Macquarie University Hospital in Macquarie Park New South Wales (Hospital).
On 9 May 2023 Mr Clemente pleaded guilty to and was convicted of the offence film person in private act without consent to obtain sexual arousal between 1 September 2022 and 8 January 2023 contrary to s 91K of the Crimes Act.
The circumstances of the offence were that: 1. between 1 September 2022 and 8 January 2023 Mr Clemente installed a Go-Pro video camera under the sink facing the sit-down toilet in the unisex staff toilets on Ward A at the Hospital; 2. on 8 January 2023 11 video recordings, each under ten minutes, were located on the card inside the camera. The videos showed colleagues and staff members of the Hospital undressing and using the toilet and, in certain instances, captured their genital areas.
On 11 January 2023 Mr Clemente was arrested. Mr Clemente participated in an interview with police where he made full and frank admissions. He immediately admitted to the conduct and said that he watched the videos for the purposes of sexual gratification. When asked whether he would have kept making recordings if he hadn't been caught, he admitted that he may have.
Mr Clemente's employment at the Hospital was terminated on 19 January 2023.
A s 150 hearing was held on 25 January 2023 which Mr Clemente attended. Again, he was open and candid in his responses to the Nursing and Midwifery Council's (Council) questions. Mr Clemente said that he had been anxious and depressed prior to having committed the offence and explained that his family had moved overseas four years prior but he had opted to remain in Australia by himself to complete his degree. This left him feeling separated from his family and he believed led to feelings of anxiety and depression.
Mr Clemente also told the Council that his partner worked at the Hospital and because one of his bail conditions was that he not speak to or see any staff from the Hospital he had not seen or spoken to his partner since those conditions were imposed. He said, however, that his family had been supportive (albeit that they live overseas) and that he had a friend lending him some support.
He also told the Council delegates that he had been wanting to apologise to the people involved but had been unable to because of his bail conditions. He said he had written a letter to the colleagues involved. That letter is in the materials before the Tribunal. In that letter Mr Clemente said: First and foremost, I'm truly and sincerely sorry for what I have done, I will forever regret and resent myself for doing what I did. I am really really ashamed of everything and there's no valid excuse for it. I also wanted to apologise for bringing our hospital's name into it with me. I will do everything to make myself better and to improve myself to be a better man. I'm not expecting anyone to forgive me. I know it has been tough knowing about what I did.
The Council determined to suspend Mr Clemente's registration with immediate effect.
Mr Clemente was convicted of the offence on 9 May 2023 and was sentenced to a community corrections order requiring him to perform 250 hours of community service work. It was an additional condition of the order that Mr Clemente participate in a Moderate Intensity Sex Offenders program.
A Sentencing Assessment Report was before the Sentencing Magistrate. That report noted: 1. Mr Clemente had no prior convictions or known history of anti-social behaviour; 2. Mr Clemente appeared to accept responsibility for his offending and acknowledged the inappropriateness of his behaviour; 3. Mr Clemente appeared to have some level of insight into the impact his offending behaviour may have had on the victims stating: "I know I was hurting them without them knowing"; 4. Mr Clemente expressed a willingness and ability to undertake any required interventions to assist him in addressing his offending behaviour; 5. Mr Clemente was assessed at a Tier 1 Low risk of reoffending according to the Level of Service Inventory - Revised (LSI-R).
The Magistrate also had a report from a Community Corrections Psychologist, Alex Quan, who assessed Mr Clemente, without having interviewed him, as being in the above average risk range of reoffending due to, amongst other things, his young age and not having lived with an intimate partner for a period of time. Mr Quan recommended Mr Clemente be referred for further psychological assessment and noted that he would be eligible for Moderate Intensity Sex Offender Programs (MISOP). It was also recommended Mr Clemente be referred to a community-based psychologist experienced in the treatment of men who have sexually offended while he is on the wait list for MISOP and recommended ongoing communication between Community Corrections and his treating psychologist to monitor engagement and responsiveness. It was recommended that "initial risk management should focus on Mr Clemente's sexual self-regulation" and that "[f]urther assessment into his sex drive/preoccupation with sex, the potential presence of deviant sexual interest, and his use of sex as coping is required".
In June 2023 Mr Quan undertook a further assessment of Mr Clemente (a "Stable 2007" assessment) based on an interview with him. In that assessment Mr Quan noted that (at that time) Mr Clemente "appear[ed] to exhibit difficulties in identifying the predisposing or precipitating factors relating to his offence".

Mr Odbert's evidence and Community Corrections Materials

Mr Odbert's evidence before the Tribunal on 29 August 2024 was to the effect that Mr Clemente had been compliant with his Community Corrections orders. Mr Clemente had been subject to supervision, but in light of his compliance, that supervision had been suspended. He also told the Tribunal that although it had been a condition of the Court Orders that Mr Clemente engage in the Moderate Intensity Sex Offenders program, he understood Mr Clemente had been found to be ineligible for the program (although he was not aware why) and that, instead, Mr Clemente had been required to undertake community based counselling.
From the materials produced under summons it appears that, after Mr Clemente's conviction: 1. Mr Quan referred Mr Clemente to Psychorium Forensic & Clinical Psychology Services for sex offender treatment in July 2023; 2. Mr Clemente attended two sessions with Ms Annalise de Groot, a psychologist at Psychorium on 16 October 2023 and 30 October 2023; 3. Mr Clemente was finding it difficult to meet the costs of his psychological sessions and wished to move to monthly, rather than fortnightly sessions; 4. In December 2023 Ms de Groot recommended Mr Clemente continue fortnightly rather than monthly sessions noting that "his identified risk factors, or self-determined goals [had not] been addressed in therapy and that Mr Clemente was at that time "in the very early initial stages of treatment"; 5. Community Corrections was, nonetheless, supportive of Mr Clemente not resuming treatment until January 2024 and suspended Mr Clemente's supervision; 6. In February 2024 Ms de Groot advised Community Corrections that she could not comment on any risk of re-offending by Mr Clemente as she had not seen him since 30 October 2023 and he did not "sufficiently engage in treatment": 7. In March 2024, Mr Clemente was placed back under supervision because he had not engaged in psychotherapy and was advised to contact Mr Pierre Lamarque to make an appointment to see him for counselling; 8. Mr Clemente contacted Mr Lamarque and had an initial appointment with him on 22 May 2024; 9. On 27 May 2024, it was noted that an "ICD" had been completed with CSNSW Psychologist Alex Quan and it "had been agreed that there were no significant concerns regarding sexual self-regulation and/or other dynamic risk factors" and Mr Clemente's supervision was again suspended noting that he had maintained a lengthy "period of stability in the community and is engaged with a psychologist to address his sex offending. He has shown insight into his offending and [he] engages well in behaviour change discussions".
At the hearing on 14 November 2024 Mr Odbert was asked about this note. He explained that an "ICD" is an Internal Case Discussion and that this note referred to a discussion between him and Mr Quan but that he could not now recall the specifics of that discussion.
Mr Odbert was also taken to a document in the materials produced by Community Corrections which noted that in February 2024, when signing on for work as part of his Community Corrections Order, Mr Clemente had tested positive to methamphetamine on a drug test. Mr Odbert said that he recalled speaking to Mr Clemente about his test result and that Mr Clemente denied having taken drugs. He said he and his colleagues had doubts about the validity of the test results as they were not always accurate and could produce false positives. Also in his experience with Mr Clemente he had never exhibited signs of drug use. A separate test was arranged for the next day at which Mr Clemente tested negative for all substances.

Mr Lamarque's evidence

Mr Lamarque's letter dated 17 July 2024, relied upon by Mr Clemente, stated: I am a Psychologist working from the Pacific Medical Centre in Blacktown. Mr Clemente was referred to me on the 20th of September 2023 by Dr Kabir Ahmed for the treatment of Adjustment Disorder with mixed anxiety and depressed mood following the suspension of his registration as a nurse. Mr Clemente has been punctual, engaged well, and was fully open about the circumstances that led to the suspension of his registratioin. He has engaged well in the therapeutic process and taken full responsibility for his actions and his terrible lack of judgement at the time of what constituted appropriate behaviour. Mr Clemente has had signficant time to reflect on his actions and it is very clear in my professional opinion that he is never to going to engage in such behaviours again and he is not going to compromise the safety and privacy of others in his work environment or any other environment. The on-going consequences to himself have been painful and led him to take a serious look at himself, his actions, and the harm he caused others. Mr Clemente has expressed contrition, is ashamed of his actions, and is using the occasion to grow emotionally, mentally, and spiritually although he has not fully forgiven himself for the pain he caused to his co-workers, his family and himself. Mr Clemente has also sought spiritual assistance through his church and strenghtened his participation in his faith. Mr Clemente has also completed his Community Service hours as directed by the Burwood Local Court Magistrate. I am of the opinion that Mr Clemente has made significant progress and would not engage in behaviours that compromise the safety of others. I am writing this letter to provide you with information relevant to your deliberations in regard to the determination of Mr Clemente's registration status.
Mr Lamarque was cross-examined at the hearing on 14 November 2024. His evidence was as follows.
Mr Lamarque has worked as a psychologist for approximately 25 years. He was asked about his experience treating sex offenders. He said that he did not have extensive experience treating sex offenders. He had had some clients who had engaged in sexually aberrant or criminal behaviours but he did not specialise in treating clients of this kind. He would not describe himself as an expert in the field.
The referral provided to Mr Lamarque from Dr Ahmed referred to in his letter above was dated 20 September 2023 but Mr Clemente's first appointment with him was on 21 May 2024. At the time of writing his letter dated 17 July 2024 referred to above he had seen Mr Clemente three times: on 21 May 2024, 18 June 2024 and 17 July 2024. He has also seen Mr Clemente on three further occasions since then, on 14 August 2024, 24 September 2024 and 6 November 2024.
Mr Lamarque has tested Mr Clemente using a number of tools: an "APA cross-cutting measure" (a broad screening tool that looks at a range of symptoms across different psychological conditions targeting particular areas such as anxiety, depression and manic mood disorders), an "APA anxiety and depression" measure for adults and an "ADNM20" tool which measures adjustment disorders. He has not tested Mr Clemente using any psycho- sexual tests or undertaken any actuarial or formal risk assessment testing the likelihood of Mr Clemente re-offending.
The opinion expressed by Mr Lamarque in his letter, which he continues to hold, was formed based on the testing carried out by him as well as from the conversations he has had with Mr Clemente. He said from the conversations he has had with Mr Clemente it is clear to him that Mr Clemente would not engage in similar behaviours again. He said Mr Clemente now has a steady partner and understands the harm he has caused.
He said that the treatment he has been engaging in with Mr Clemente since 17 July 2024 has focussed on his anxiety and depression and dealing with adjustment disorder, "what is happening in his life and how he engaged in the behaviours that he did". When asked what led Mr Clemente to behave as he did, Mr Lamarque said "sexual gratification". When asked whether Mr Clemente had done any work on sexual self-regulation he said that Mr Clemente now has a girlfriend and in his opinion he will not engage again in similar behaviour because his sexual needs are being met. He was asked what his opinion would be if Mr Clemente's sexual needs were no longer being met and he said that that was "only one aspect", his opinion is also based on Mr Clemente's realisation that his behaviour was "very stupid", harmful, caused offence and made people feel unsafe and, he said, at the time of his offending behaviour Mr Clemente had not had that insight. He said that Mr Clemente was brought up as a Christian with a strong set of values and that, since the time of the offence, he has regained and strengthened his faith. Mr Clemente has engaged in Church activities and, it is Mr Lamarque's view, that will help him stay on a "healthy track". Mr Lamarque was asked whether he knew that Mr Clemente had a partner at the time of the offences. He said that he had not known that, but that that did not change his opinion.
When asked what the plan was for Mr Clemente's future treatment he said that he will continue to see him, but that he did not believe Mr Clemente needed treatment for much longer.

Mr Quan's evidence

Mr Quan was taken to the report he had prepared which was before the Sentencing Magistrate. He confirmed that he had prepared that report without interviewing Mr Clemente and that it had been prepared using a "Static 99" actuarial risk assessment tool which scores the risk of recidivism by reference to a number of factors.
He explained that Community Corrections' policies and procedures require the use of the "Static 99" and "Stable 2007" risk assessment tools in undertaking psycho-sexual risk assessments for sexual offenders.
Mr Quan was asked whether he was familiar with the tests Mr Lamarque said that he had used to assess Mr Clemente. Mr Quan had not heard of the "APA cross-cutting measure" and had "vaguely heard" of the ADNM20 assessment but was not familiar with it. He had heard of the APA depression/anxiety measure for adults but said that in his experience such a tool was not typically used to assess sexual drive or the use of "sex as coping".
Mr Quan was asked whether in his view the risk factors he had identified in his reports relating to Mr Clemente could adequately be treated and resolved in three sessions with a psychologist, such that it would be "safe to say" that Mr Clemente would not engage in behaviour such as the behaviour giving rise to his offences again. In Mr Quan's view it would be highly improbable that those factors could be treated and resolved in three sessions with any psychologist. He was asked whether they might be able to be treated and resolved in eight sessions with a psychologist. He was unable to give a definitive view on that because it depended on a number of factors but said that he was "unclear" whether eight sessions would be sufficient.
Mr Quan was also taken to the note in the Community Corrections materials of the internal case discussion on 27 May 2024 between himself and Mr Odbert. He explained that the note "it was agreed that there were no significant concerns regarding self-regulation and/or other dynamic risk factors" was not intended to suggest that Mr Clemente's risk factors had been satisfactorily resolved by that time, but only that there was nothing to suggest that there had been a significant increase in risk factors identified.
Mr Quan was taken to his June 2023 assessment of Mr Clemente which noted that Mr Clemente had, at that time, difficulty identifying the factors which led to him offending. He said that he has not undertaken any further assessment of Mr Clemente since his June 2023 assessment so could not say whether Mr Clemente has, since the time of writing that report, now identified the factors which led him to behave as he did. He added that that is a typical problem for offenders, and that prior to the commencement of treatment many offenders have difficulty identifying the underlying cause of their behaviour.

Mr Clemente's evidence and submissions

In his reply document filed in these proceedings Mr Clemente said: I am writing this response in accordance with COMPLAINT ONE to express my sincere remorse regarding my immature, thoughtless and unacceptable actions. I do not deny, and I have admitted to my wrongdoing to everyone including to the local court and to the magistrate. I am both embarrassed and will forever be ashamed of my wrongdoing. I acknowledge that my actions have breached the trust of the people who are close to me, especially to my previous colleagues. I vow to never make such reckless decisions again in my life and continue to reflect on it every day. I implore you to recognise that this one and only bad decision does not reflect my character as an individual and as person.
At the Stage One hearing, Mr Clemente also told the Tribunal that he knew and understood that what he did was wrong and that there was not a day that passed that he had not thought about it.
At the hearing on 14 November 2024 Mr Clemente explained that at the time of his interview with Mr Quan in June 2023 he was at the early stages of coping with what had happened and was not in "the right head space" at that time.
He described the events of the day of his arrest which he clearly found extremely traumatic. He expressed gratitude to the police officers who took him home after he had been charged.
Mr Clemente also explained that he had not been able to afford to continue to see Ms de Groot on a weekly basis - at the time he did not have a stable job and was working 3-4 days a week, and sometimes less. He also explained that he was having difficulty seeing or even speaking with his female friends at the time and that he was uncomfortable seeing Ms de Groot. He explained that was why he asked Community Corrections if they could refer him to another psychologist. He explained that the reason for the delay between his referral to Mr Lamarque and his first appointment with him was a combination of the fact that his partner had booked a trip away for him in April and Mr Lamarque's availability.
He said that he immediately felt safe with Mr Lamarque and he looks forward to seeing him once a month because he feels like he is really helping him. Mr Lamarque had encouraged him to go back to his faith which he had lost after his parents had left Australia.
He said that his previous colleagues have asked him how he is doing and that they would like to see him as they still accept him notwithstanding what he has done. He said he is still ashamed and not ready to face them yet.
He explained that he has a current partner and that he is thankful she is there for him and supports him. He is grateful to his family and friends who are there for him even knowing what he has done.
He said that he is "trying to be good to everyone". He is grateful for his job and also grateful to Mr Odbert who he said had also helped him a lot.
He said that Mr Lamarque has helped him a lot. He is really sorry for what he has done. He said he understands "how it happened" and the vastness of what happened and its effect on other people.
Mr Clemente said that he misses working as a nurse and really wants to go back to working as a nurse.

Appropriate protective orders

The HCCC submits that the Tribunal should make an order under s 149C(1)(c) cancelling Mr Clemente's registration as a nurse with a non-review period of two years and an order under s 149C(5) prohibiting Mr Clemente from providing other health services for the same period as the non-review period imposed.

S 149C(1)(c): Do the circumstances of the offence render the practitioner unfit in the public interest to practise

Section 149C(1)(c) of the National Law provides that the Tribunal may suspend or cancel a registered health practitioner's registration if the Tribunal is satisfied that the practitioner has been convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession.
Accordingly, the question we must determine is whether the circumstances of Mr Clemente's offence render him unfit in the public interest to practise as a nurse.
The relevant principles were summarised by the Tribunal in Health Care Complaints Commission v Lowe [2023] NSWCATOD 121 at [73]-[76] as follows: 73. The relevant principles were summarised recently by the Tribunal in Health Care Complaints Commission v Morris [2022] NSWCATOD 120 at [82] - [85] as follows: 82 In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14] the Tribunal stated: The National Law does not contain a definition of unfitness to practise in the public interest or unsuitability for registration. These terms, like all others in the Act, are interpreted in light of the objects of the Act in s 3 and the specific objective and guiding principle in the NSW version of the National Law contained in s 3A. 83 The following principles emerge from the Tribunal's decision in Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]: (1) The term "public interest" is a broader concept than 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: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]; (2) s 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of "the practitioner's current fitness to practise" Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]-[69]; (3) In construing s 149C(1)(c) the Tribunal needs to take into account the objectives of the National Law which relevantly include "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". Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether, as a result of having committed an offence they have behaved so egregiously as to render the subject practitioner "unfit in the public interest to practise the practitioner's profession"; (4) The circumstances of an offence 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. 84 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: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]. 85 "Public interest" also may be taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within them: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]. However, we are cognisant of the remarks of Harrison J in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (albeit in the context of proceedings under s 150 of the National Law) of the concept of public interest being linked to the health and safety of the public. 74. The reference by the Tribunal in that case to the decision of the Court of Appeal in Pridgeon v Medical Council of NSW [2022] NSWCA 60 is a reference to the fact that, in that case the Court of Appeal held that for the purposes of s 150 of the National Law the words "in the public interest" should be understood as meaning the public interest in the protection of the public's health and safety arising in the conduct of the practice of (in that case) medicine in respect of which a medical practitioner's registration is granted and did not extend to include an unspecified public interest of exhibiting traits consistent with the honourable reputation of the medical profession, unrelated to the practice of medicine. 75. In Health Care Complaints Commission v FLJ [2023] NSWCATOD 7, which was decided after Morris, the Tribunal was required to consider whether the expression "in the public interest" for the purposes of s 149C(1)(c) of the National Law also had the meaning ascribed to it by the Court of Appeal in Pridgeon. In FLJ the Tribunal, having comprehensively reviewed the authorities and having had regard to the different purposes of s 149 (1)(c) and s 150 of the National Law held that for the purposes of s 149C(1)(c) the "public interest" consideration may include consideration of whether the practitioner's criminal offence exhibits traits in the practitioner inconsistent with the honourable practice of an honourable profession, and it is not necessary for a nexus to be established between the criminal offence and the practice of that profession. 76. Whether a practitioner is unfit in the public interest to practice must be assessed in light of a holistic inquiry into suitability. As the Tribunal stated in Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [22]: This assessment takes into account the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and since any investigation or sanction. 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.
In our view the circumstances of the offence do render Mr Clemente unfit in the public interest to practise presently as a registered nurse.
It is not suggested by the HCCC that Mr Clemente was not a competent nurse. However, we must consider whether Mr Clemente is able to practise in an ethical manner and the circumstances of his offence involved an egregious breach of the trust of his colleagues at the Hospital.
While Mr Clemente has been convicted of a single offence, the conduct occurred over a period of some months and Mr Clemente admitted he would probably have continued had he not been caught.
While there is no evidence before the Tribunal as to the effect of his conduct on the colleagues involved, and we accept Mr Clemente's evidence that some of those colleagues have since reached out to him, there is no doubt that what Mr Clemente did must have caused them significant distress and Mr Clemente rightly acknowledges this is the case.
To his credit, Mr Clemente admitted his actions as soon as he was caught and has been honest and forthright in his dealings with the Police, the Council and in these proceedings before the Tribunal. He has not sought to put forward any excuse for his conduct. It is very clear to us that he is genuinely remorseful. He is very sorry for what he did and the impact his actions had on his colleagues.
We also commend Mr Clemente for his courage in participating in the proceedings before us which required him to appear before the Tribunal, not once but ultimately three times, each of which occasions was undoubtedly a very difficult experience for him.
It is also to his credit that his partner, friends and family continue to support him.
Mr Clemente is clearly passionate about being a nurse and has demonstrated a willingness to do whatever is required to enable him to return to practice.
He has engaged diligently in counselling sessions with Mr Lamarque and intends to continue to see him.
We do not criticise Mr Clemente for discontinuing his sessions with Ms de Groot. It is understandable that Mr Clemente was having difficulty engaging with females at the time and he was also under financial constraints. Nor do we criticise him for taking two months to secure an appointment with Mr Lamarque.
It is also clear that Mr Clemente engaged responsibly in his community services work and impressed his supervising officer, Mr Odbert, sufficiently that he was comfortable suspending his supervision and chose to have Mr Clemente's positive drug test result questioned and overturned.
However, unfortunately for Mr Clemente and through no fault of his, while Mr Lamarque has clearly helped Mr Clemente deal with the anxiety and depression he has suffered as a result of his conviction and the suspension of his nursing registration, we cannot be satisfied that the factors which led to Mr Clemente behaving as he did have been adequately identified or addressed in the sessions Mr Clemente has had with him to date or otherwise. While Mr Clemente said that he understood "how it happened", we are not satisfied that he does. When asked what led Mr Clemente to behave as he did Mr Lamarque responded simply that it was "sexual gratification". While Mr Lamarque has some experience working with clients who have committed sexual offences, he candidly confirmed that he was not an expert in that field. There is no evidence that there has been any further assessment into Mr Clemente's sex drive/pre-occupation with sex or his use of sex as a coping method or sexual self-regulation as was initially recommended by Mr Quan. The testing Mr Lamarque has undertaken relates to anxiety, depression and adjustment disorders and, on his own admission, he has not undertaken any psycho-sexual testing using tools (such as the Static 99 or Stable 2007 assessment tools Mr Quan explained were used by Community Corrections) or other formal risk assessment tools. Mr Lamarque's opinion that Mr Clemente would not again engage in behaviours that compromise the safety of others was based on the testing he undertook and his discussions with Mr Clemente.
Ms de Groot was clearly of the opinion in December 2023 that, at that time, Mr Clemente was only at the very initial stages of his treatment. We accept Mr Quan's assessment that, at the time of Mr Lamarque's letter in July 2024 having only seen Mr Clemente three times, it was highly improbable that Mr Clemente could have identified and satisfactorily resolved the underlying issues which caused his offending. We are also not satisfied that by the time of the hearing when Mr Lamarque had seen Mr Clemente on a further three occasions, that there would have been sufficient opportunity to have resolved those issues. As such, we give little weight to Mr Lamarque's opinion in this regard. While we accept that Mr Clemente has undergone significant distress as a result of his conduct which would no doubt amount to a significant deterrent, we cannot be satisfied on the evidence before us that there is little risk of Mr Clemente engaging in behaviour of a similar nature again and, therefore, that he does not pose a risk to the health and safety of the public.
That is not to say that Mr Clemente cannot resolve those issues. He is encouraged to continue to work to do so and to seek to have his relevant risk factors properly assessed and addressed.
While Mr Clemente's offence was not strictly related to the actual practise of nursing, it was undertaken in a hospital context. As the Tribunal concluded in Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 the public interest consideration may include consideration of whether the practitioner's criminal offence exhibits traits in the practitioner inconsistent with the honourable practice of an honourable profession, and it is not necessary for a nexus to be established between the criminal offence and the practice of that profession.
We find that, where the health and safety of the public are the paramount consideration, the circumstances of Mr Clemente's offence do render him unfit in the public interest to practise currently as a registered nurse.

Disciplinary orders - principles

Section 3(2) of the National Law makes it clear that the objectives of the National Law include providing 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.
The purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. However, that is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31].
In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA gave the following explanation 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 is 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.
In the exercise of its protective jurisdiction the Tribunal must take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and, more broadly, the protection of the community: Gayed v Walton [1997] NSWCA 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153.
In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA stated at [21] and [22]: [21]… [I]n determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make..."

Cancellation - conclusion

Given the seriousness of Mr Clemente's conduct and our inability to be satisfied that there is no risk that he would behave in a similar fashion again, and where the paramount consideration is the protection of the health and safety of the public, we are satisfied that it is appropriate and necessary to make an order cancelling Mr Clemente's registration. In our view, the public's ability to entrust their care to the nursing profession may be imperilled if he were allowed to continue to practise. A cancellation order would publicly condemn his conduct and also serve to act as a specific and general deterrent, to uphold the standards of the nursing profession and to preserve public confidence in the profession.
We also consider that it is appropriate to set a minimum period within which Mr Clemente may not make an application for review of the cancellation order to send a message to him, to the profession and to the public about the seriousness of his conduct. However, we think that a 2 year non-review period as proposed by the HCCC would go further than required for the protection of the community and for the proper purposes of such an order. Mr Clemente has undertaken regular psychological counselling and has demonstrated insight. In our view a non-review period of 12 months would be sufficient for Mr Clemente to take the further steps necessary (with further psychological treatment) to identify and address the issues which led to his conduct occurring. On any application for re-instatement Mr Clemente would of course need to demonstrate that he can be trusted to return to practise in a manner that presents no risk to the safety of the public and their confidence in the profession: Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13. On any such application he would need evidence of rigorous psychological testing having been done in relation to the risk factors identified by Mr Quan and any other relevant risk factors identified.

Prohibition order

The Commission also seeks an order prohibiting the Mr Clemente from providing any health service as defined in s 4 of the Health Care Complaints Act for the same period as any non-review period imposed.
Section 4 of the Health Care Complaints Act defines health service as follows: health service includes the following services, whether provided as public or private services- (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act.

S 149C(5): Is the Tribunal satisfied that the Respondent poses a substantial risk to the health of members of the public

By virtue of s 149C(5) where the Tribunal decides that it will cancel a person's registration, it may also make a prohibition order if it is satisfied that the person poses a substantial risk to the health of members of the public.

Substantial risk to the health of members of the public

The phrase "substantial risk" is not defined in the National Law but has been considered by the Tribunal in a number of decisions as a risk that is material, real or apparent on the evidence and not without substance or speculative: Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 at [139], Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96].
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 the person were to be involved in the provision of health services: Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [19].
For the same reasons as outlined above, we do consider there would be a risk that, without further psychological assessment and treatment, Mr Clemente could engage in behaviour of a similar nature again which would undoubtedly pose a risk to the health of the public. Accordingly, we consider it both appropriate and necessary also to make a prohibition order prohibiting Mr Clemente from providing other health services for a period of 12 months.

Costs

The HCCC seeks an order that Mr Clemente pay its costs as agreed or assessed in relation to the Stage One Proceedings and in relation to the second day of the Stage Two Proceedings but does not seek its costs of day one of the Stage Two Proceedings.
This is a costs jurisdiction, and ordinarily costs should follow the event. As stated in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44]: It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.
While there is a discretion not to award costs to the successful party it must nonetheless be exercised judicially "according to proper fixed principles and rules of reason and justice, not according to private opinion": Philipiah at [43]
The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Brush at [9]
In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 the Court of Appeal identified three factors that might militate against the Commission recovering all its costs namely: First, the Commission's lack of success in obtaining findings against the practitioner in respect of professional misconduct. Secondly, the Commission's failure to establish each of the particulars pleaded. Thirdly, oppressive conduct on the part of the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing.
We agree that it is not appropriate that Mr Clemente should have to bear the costs of day one of the Stage Two Proceedings because the adjournment sought on that occasion could have been sought earlier by the HCCC obviating the need for a hearing on that day. The HCCC submits and, on the material before the Tribunal, we accept that there has been otherwise no disentitling conduct by the HCCC in this case which would warrant a departure from the general rule.

Orders 1. Pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (National Law) the registration of Sean Clemente (Respondent) as a registered nurse is cancelled. 2. Pursuant to s 149C(7) the Respondent may not apply for a review of Order 1 for a period of one year from the date of these orders. 3. Pursuant to section 149C(5) of the National Law the Respondent is prohibited from providing any health service as defined in section 4 of the Health Care Complaints Act 1993 (NSW) for a period of one year from the date of these orders. 4. Under clause 13 of Schedule 5D of the National Law the Respondent is to pay the HCCC's costs in respect of the hearing on 22 April 2024 and 14 November 2024 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: 27 November 2024

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