Health Care Complaints Commission v EAE

NCAT Occupational|2024-03-27

Introduction

EAE, who was a registered nurse, has applied to terminate the Tribunal's inquiry into a complaint against him made by the Health Care Complaints Commission. The power to do so is in clause 12(1) of Schedule 5D to the Health Practitioner Regulation National Law (NSW) (National Law). Alternatively, EAE consents to the orders sought by the Commission. Those orders include an order that if EAE was still registered, the Tribunal would have cancelled his registration: National Law, s 149C(4), subss (5) and (5A).
The Health Care Complaints Commission opposes EAE's application to terminate the inquiry. In relation to EAE's alternative application that the Tribunal make the orders sought by the Commission, the Commission also opposes that course.
The complaint, under s 144(a) of the National Law, is that on 25 November 2022, EAE was convicted in the District Court of the following offences: 1. Aggravated indecent assault victim under the age of 18 contrary to section 61M(1) of the Crimes Act 1900 (Cth); 2. Sexual intercourse with a child between 10-14 under authority contrary to section 66C(2) of the Crimes Act 1900; 3. Sexual intercourse with a child between 10-14 contrary to section 66C(2) of the Crimes Act 1900; 4. Sexual intercourse with a child between 10-14 under authority contrary to s 66C(2) of the Crimes Act 1900.
The offences occurred over a period of approximately two years beginning when EAE was 14 years old and his sister, the victim, was 10 years old.
Publishing or broadcasting the names of children involved as victims in criminal proceedings is prohibited by s 15A(1)(c) of the Children (Criminal Proceedings) Act 1987 (NSW). In those circumstances, it is desirable to make an order under s 64(1)(a) and (b) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure, publication or broadcast of the name of Person A, the victim. As disclosure of EAE's name is likely to lead to the identification of Person A, I make the same order in relation to EAE.

Procedural background

The original application sought orders that EAE's registration be cancelled with a non-review period of 2-3 years.
At a directions hearing on 10 November 2023, the application was adjourned to 1 March 2024 because EAE was still in prison. On 28 February 2024, three days before the directions hearing, EAE lodged an application to terminate the inquiry, among other things. On 20 March 2024, the Commission lodged an amended application for disciplinary findings and orders seeking the following orders: 1. An order under s 149C(4)(a) of the National law that if the practitioner were still registered the Tribunal would have cancelled his registration; 2. An order under s 149C(4)(b) of the National Law that the practitioner is disqualified from being registered as a nurse for 2-3 years; 3. An order under s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board; 4. An order under s 149C(5) and (5A) of the National Law that the practitioner is prohibited from providing health services as defined by section 4 of the Health Care Complaints Act 1993 to any person under 18 years of age; 5. An order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed.

Application for consent orders

As an alternative to the application for termination of the inquiry, EAE consents to these orders. It is premature at this stage of the proceedings, to make protective orders, by consent or otherwise. These reasons address the application for termination. If an inquiry is terminated, the appropriate order is to dismiss the Commission's application, not to make protective orders: Health Care Complaints Commission v Grygiel [2020] NSWCATOD 53 at [213]-[227].

Power "not to conduct" or "to terminate" an inquiry

Clause 12(1) of Schedule 5D to the National Law gives the Tribunal power "not to conduct" an inquiry or "at any time to terminate an inquiry" if "the person about whom the complaint is made ceases to be a registered health practitioner" and "in the opinion of the... Tribunal it is not in the public interest for the inquiry... to continue": 12 Certain complaints may not be heard [NSW] (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if - (a) any of the following circumstances apply - (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. ...
The power to terminate the proceedings is to be considered solely under clause 12 of Schedule 5D of the National Law, not under the Civil and Administrative Tribunal Act 2013 (NSW): Health Care Complaints Commission v Grygiel [2020] NSWCATOD 53 at [222].

EAE's evidence and submissions

EAE tendered the "Agreed Facts" prepared by the Office of the Director of Public Prosecutions for the criminal proceedings. The Agreed Facts describe the circumstances giving rise to the criminal offences listed in the complaint. EAE also tendered the Digital National Police Certificate listing various offences. The offences all occurred in the family home when the children's parents were out.
EAE lodged a statutory declaration admitting that he had been convicted of the offences, undertaking not to re-apply for registration as a registered nurse in NSW, or elsewhere, and not to seek employment in any regulated healthcare profession. He says he plans to pursue a career unrelated to health care.
As a result of these convictions, EAE says that he is a "registrable person" under the Child Protection (Offenders Registration) Act 2000 (NSW) for the next 7 years and six months. It is a criminal offence for him to apply for, undertake or remain in child related work, which includes paid or unpaid work.
In his written submissions, EAE states that the criminal convictions are not related to his employment as a registered nurse and he has led a blameless life as an adult.

Commission's submissions

The Commission identified several uncontroversial facets of the public interest which are relevant when determining an application for termination. The Commission also submitted that the following matters were relevant: the seriousness of the alleged conduct; whether the complaints and the particulars underlying them are conceded or contested, whether the practitioner has made full and frank written admissions and the extent to which an inquiry is required to resolve any factual disputes, whether the practitioner has provided a written undertaking not to re-apply for registration in the future, whether the practitioner is in poor health, elderly or retired.
The Commission agrees that the following circumstances apply to this case: the complaint does not allege unsatisfactory professional conduct or professional misconduct; the conduct did not occur when EAE was a registered nurse; EAE has provided a statutory declaration undertaking that he will not re-apply for registration as a registered nurse and will not seek employment in any regulated health profession; Agreed Facts in the criminal proceedings have been provided; and EAE is subject to restrictions as to his employment because of his status as a "registrable person". However, according to the Commission, none of those matters "negate the need to hold an inquiry".
The Commission submitted that it is consistent with the paramount consideration of protecting the health and safety of the public that the Tribunal can make findings about a registered nurse who is convicted of a criminal offence, even if the offending occurred pre-registration. Furthermore, it would be contrary to the public interest if the Tribunal were "precluded" from making protective orders against a former health practitioner in circumstances where the conviction may not occur until long after the offending.
I will refer to other aspects of the Commission's submissions as they arise.

Meaning of "not in the public interest"

EAE has ceased to be a registered health practitioner. The issue in these proceedings is whether, in the opinion of the Tribunal "it is not in the public interest" for the inquiry to continue.
An interpretation of the phrase "not in the public interest" that will best achieve the purpose or object of the National Law is to be preferred. Under cl 7 of Schedule 7 of the National Law: 7 Interpretation best achieving Law's purpose (1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation. (2) Subclause (1) applies whether or not the purpose is expressly stated in this Law.
"Public interest" is not defined in the National Law. The term "not in the public interest", appears in Queensland and Commonwealth legislation. For example, s 93ZZB(2) of the Criminal Proceeds Confiscation Act 2002 (QLD) provides that: 93ZZB Making of serious drug offender confiscation order (1) Subject to subsection (3), the Supreme Court must make a serious drug offender confiscation order against the prescribed respondent if the court is satisfied - (a) the prescribed respondent has been convicted of a qualifying offence for which a serious drug offence certificate has been issued and has not been cancelled; and (b) the application for the order was made within 6 months after the issue of the certificate. (2) However, the court may refuse to make the serious drug offender confiscation order if the court is satisfied it is not in the public interest to make the order.
When determining the meaning of the phrase "not in the public interest" in this provision the Queensland Court of Appeal provided the following summary of the legal principles: State of Queensland v Deadman; Thompson v State of Queensland [2016] QCA 218, [51] (footnotes deleted): [51] Given that the Act provides no positive indication of the considerations by reference to which the s 93ZZB(2) discretion to refuse to make an order is to be made, the public interest determination is to be construed as importing a discretionary value judgment to be made by reference to undefined factual matters. While a general discretion is conferred, a court is not free to apply idiosyncratic notions of what is in the "public interest". In considering whether there has been error in the exercise of the discretion, it is important to bear in mind that the s 93ZZB(2) discretion is confined only in so far as the subject matter and the scope and purpose of the Act may indicate that the given reasons for the exercise of the discretion are definitely extraneous to any objects that the legislature could have had in view. Further, the exercise of the discretion may require "consideration of a number of competing arguments about, or features or 'facets' of the public interest" and "will seldom be properly seen as having only one dimension".
The phrase "not in the public interest" also appears in s 49(4) of the Proceeds of Crime Act 2002 (Cth) which provides that: 49 Forfeiture orders - property suspected of being proceeds of indictable offences etc. … (4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied: (a) is an instrument of a serious offence other than a terrorism offence; and (b) is not proceeds of an offence; if the court is satisfied that it is not in the public interest to make the order.
In Commissioner of the Australian Federal Police v Fernandez [2018] NSWCA 198 at [87] the Court did not need to decide whether there had been an error in the interpretation of this provision but made the following observation at [87]: ... the term "public interest" is not defined in the Act, but in accordance with the usual principles of statutory construction, the term must be construed having regard to " 'the subject matter and the scope and purpose' of the enactment in which it appears": see Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [31]; O'Sullivan v Farrer (1989) 168 CLR 210 at 216; [1989] HCA 61.
The general principles enunciated in these two decisions also apply to the interpretation of the phrase "not in the public interest" in clause 12(1) of Schedule 5D to the National Law. The first step is to identify relevant facets of the public interest based on the subject matter, scope and purpose of the National Law. The second step is to identify the factual matters which will inform the Tribunal's discretionary value judgement as to whether the discretion to terminate the inquiry should be exercised. Finally, the Tribunal must exercise the discretion.

Subject matter, scope and purpose of the National Law,

The objectives of the National Law, as set out in s 3, are as follows: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and (b) the registration of students undertaking - (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (ca) to build the capacity of the Australian health workforce to provide culturally safe health services to Aboriginal and Torres Strait Islander Peoples; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
The "guiding principles" are set out in s 3A: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that - (i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and (ii) contributes to the elimination of racism in the provision of health services; Example - Codes and guidelines developed and approved by National Boards under section 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care. (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
There is an "additional NSW provision" in s 3B: 3B Objective 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. Note - This section is an additional New South Wales provision.
The objectives and guiding principles most relevant to the circumstances of this case are: the protection of the health and safety of the public; that "the scheme is to operate in a transparent, accountable, efficient, effective and fair way"; that "only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered" and that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality".
Other provisions of the National Law are consistent with these objectives and principles. Apart from complaints relating solely to the physical or mental capacity of the practitioner, the Commission is under a duty to refer a complaint to the Tribunal if at any time, it "forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's or student's registration": National Law, s 145D.
Section 90C(1) the Health Care Complaints Act 1993 (NSW) sets out the criteria relevant when the Commission is determining whether or not a complaint should be prosecuted: 90C Criteria relevant to determinations of Director of Proceedings (1) The Director of Proceedings is to take into account the following matters when making a determination as to whether or not a complaint should be prosecuted before a disciplinary body: (a) the protection of the health and safety of the public, (b) the seriousness of the alleged conduct the subject of the complaint, (c) the likelihood of proving the alleged conduct, (d) any submissions made under section 40 by the health practitioner concerned.
The seriousness of the alleged conduct is relevant because the Tribunal may only cancel or suspend EAE's registration if the Tribunal is satisfied that "the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession" or that "the practitioner is not a suitable person for registration in the practitioner's profession": National Law, s 149C(1)(c) and subs (d).
Section 165M(4) of the National Law is relevant to the guiding principle in s 3A(2)(a) that "the scheme is to operate in a transparent, accountable, efficient, effective and fair way". The general rule under that provision is that the Tribunal is to make publicly available a statement of a decision even in respect of a complaint that has been proved or admitted in whole or in part: National Law, s 165M(4). Leeming JA observed that this provision "reflects a legislative determination that there should be a transparent process in the case of the most serious complaints": Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [15].
"Justice to the individual" has been identified as a relevant public interest consideration, but not in the context of the National Law. In Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18; [1990] HCA 21. Mason J held that "... the public interest necessarily comprehends an element of justice to the individual". A similar conclusion was reached in Courtenay Investments Ltd v Director of Public Prosecutions (Cth) [2012] WASCA 121 at [115], when interpreting s 49(4) of the Proceeds of Crime Act 2002 (Cth): In my opinion, the concept of 'public interest', in this context, is sufficiently broad to include, as factors requiring consideration, any relevant prejudice or hardship.
The NSW Court of Appeal agreed with that proposition when interpreting the same statutory provision in Commissioner of the Australian Federal Police v Fernandez [2018] NSWCA 198 at [87].
In Health Care Complaints Commission v Grygiel [2020] NSWCATOD 53 at [200], the Tribunal gave "some weight to the delay and ongoing costs which will be involved if the proceedings are not terminated". In my view in these proceedings, there is also a public interest in providing justice to the individual. That consideration is not "definitely extraneous" to any objects the legislature could have had in view: State of Queensland v Deadman; Thompson v State of Queensland [2016] QCA 218 at [51]. It is implied in the object that the legislative scheme operate in a "fair way".
Based on the legislative provisions and the case law to which I have referred, I have identified two facets of the public interest relevant to the circumstances of this case: 1. protecting the health and safety of the public (that is the paramount public interest consideration); and 2. for the legislative scheme to operate in a transparent, accountable, efficient, effective and fair way which includes providing justice to the individual.
Protecting the health and safety of the public includes protecting the public from similar misconduct or incompetence of other practitioners: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. One way of achieving that objective is to make orders which encourage other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
Protection of the health and safety of the public also includes ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, however restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality: National Law, ss 3A(2)(a) and 3(3)(c).
If these public interests are achieved, the public will have confidence in the standards of the profession: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].
The Commission submitted that there is a public interest in the Tribunal conducting an inquiry to hear evidence from the practitioner and to ensure the Tribunal has sufficient evidence to make findings about the circumstances of the offences and to impose appropriate protective orders. Evidence relevant to those issues includes any evidence as to the circumstances in which the offences were committed and EAE's degree of insight, remorse and contrition. As there has been no opportunity to provide relevant material, that evidence is not yet available. In addition, the Tribunal is required to give a written statement of the reasons for the decision which includes findings on material questions of fact and the evidence on which the findings were based: National Law, s 165M(2).
Citing various Tribunal decisions, the Commission submitted that there is a public interest in serious allegations being ventilated and dealt with in an open forum. It would be contrary to the public interest if health practitioners could simply de-register to avoid an inquiry regarding serious allegations. Without an inquiry and published decision future regulatory authorities and employers may not be aware of serious conduct and the public would not be protected if the practitioner's conduct is hidden from view.
It is not the case that without any inquiry, serious allegations will necessarily be hidden from view. The Tribunal is generally required to publish written reasons for a decision to terminate an inquiry: National Law, 165M(4).
The fact that the Director of Proceedings has decided to prosecute a complaint which is regarded as serious, does not mean that there is a public interest in the Tribunal conducting an inquiry. The legislation provides for an inquiry not to be conducted, or to be terminated, in certain circumstances: National Law, s 165H and cl 12(1) of Schedule 5D. These provisions would have no utility if it were a facet of the public interest for the Tribunal to hold an inquiry in relation to serious allegations.

Identification of factual matters

Depending on the circumstances of the case, various factual matters will inform the Tribunal's judgement as to whether the discretion to terminate the inquiry should be exercised. Those factual matters are undefined by the legislation. Any factual matter which relates to a facet of the public interest is relevant.
The Commission has applied for an order that EAE is prohibited from providing health services as defined by s 4 of the Health Care Complaints Act 1993 to any person under 18 years of age: National Law, s 149C(5) and subs (5A). The Tribunal may make such an order if the Tribunal cancels the practitioner's registration and finds that the person poses a "substantial risk to the health of members of the public". The Commission submitted that it is relevant to consider whether a prohibition order has been sought, such that there is a substantial risk to the health of members of the public that needs to be addressed.
The fact that the Commission has applied for a prohibition order is not a factual matter that has any connection with a facet of the public interest. Similarly, the fact that the Commission has not consented to the termination application is not relevant to any issue I need to determine.

Protection of the health and safety of the public

Any factual matters which tend to show that, despite not being registered, the practitioner will pose a risk to the health and safety of the public are relevant.
The uncontroversial factual matters are that EAE has been convicted of the offences set out in the complaint attached to the application lodged by the Commission. The circumstances of those offences are described in the Agreed Facts. The offences occurred over a period of approximately two years beginning when EAE was 14 years old and his sister, the victim, was 10 years old. The offences all took place in the family home when the children's parents were out.
These offences are objectively extremely serious. EAE served a prison sentence and is now on parole. They began more than 30 years ago. I make no finding as to whether EAE has led a "blameless life" as an adult but there is no complaint by the Commission about EAE's conduct since that time.
EAE lodged a statutory declaration admitting that he had been convicted of the offences, undertaking not to re-apply for registration as a registered nurse in NSW, or elsewhere, and not to seek employment in any regulated healthcare profession. He says he plans to pursue a career unrelated to health care.
As a result of these convictions, EAE says that he is a "registrable person" under the Child Protection (Offenders Registration) Act 2000 (NSW) for the next 7 years and six months. It is a criminal offence for him to apply for, undertake or remain in child related work, which includes paid or unpaid work. Even if EAE remained registered, he would not be able to undertake such work.
Protection of the health and safety of the public includes protecting the public from similar misconduct or incompetence of other practitioners: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. In the circumstances of this case, there can be no deterrent effect if the Tribunal continues with the inquiry and makes protective orders. There is no deterrent to a child from committing these kinds of offences. Nor would holding an inquiry, as distinct from terminating the inquiry and providing reasons, deter a person who has engaged in such undetected criminal conduct as a child, from applying for registration as a health practitioner.

Operation of the legislative scheme

It is efficient for the inquiry to be terminated because the Tribunal will not incur the costs of holding an inquiry. The process will be transparent and accountable as long as adequate reasons for the decision to terminate are published. The process is fair because, among other things, each party has been given an opportunity to provide submissions.
Any prejudice or hardship to EAE is a relevant factual matter when considering the overall fairness of the process including providing justice to the individual. One of EAE's objectives in seeking to terminate the inquiry is to avoid having to pay the Commission's costs which he says have been estimated to be in the vicinity of $17,000 - $25,000. It is not fair that EAE should have to incur these costs if no other facet of the public interest is furthered by holding an inquiry.

Exercising the discretion

For the reasons I have given, based on the facets of the public interest I have identified and the relevant factual matters to which I have referred, it is not in the public interest for the inquiry to continue.

Orders 1. The respondent's application under clause 12(1) of Schedule 5D to the Health Practitioner Regulation National Law (NSW) to terminate the inquiry is granted. 2. The proceedings are dismissed.

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 2024

Crimes Act 1900(Cth)

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