Health Care Complaints Commission v Elliott

The Hearing

1. Mr Elliott did not attend the substantive hearing. The Tribunal has conducted a number of directions hearings in the matter and although contact was made with Mr Elliott during one of these directions hearings, he did not participate in the listing process.
2. The application and attached Complaint was served by way of substituted service (as permitted by way of an order of the Tribunal made on 28 June 2016). Since that date, various other documents including the Applicant's evidence in this matter have been similarly served on Mr Elliott. There has been no correspondence with the Applicant or the Tribunal by Mr Elliott about this matter.
3. The Tribunal is satisfied from the evidence before it that Mr Elliott is aware of these proceedings. The Tribunal is also satisfied that Mr Elliott has been notified of the date for the substantive hearing. There was no request from Mr Elliott for an adjournment of the hearing. In the light of these matters and in the interests of justice the Tribunal was satisfied that the hearing ought to proceed in his absence.
4. Although Mr Elliott did not participate in the hearing he has not indicated to the Tribunal that he concedes the factual matrix underpinning the complaints. Equally, he has not denied the conduct alleged. Nor has he presented any evidence which contests the particulars of the complaints or contradicts the evidence relied upon by the Applicant.

Complaint One and Two: Unsatisfactory Professional Conduct and Professional Misconduct

1. Particular One of Complaint One alleges that during Patient A's first admission, Mr Elliott failed to maintain professional boundaries in that he spent time with Patient A discussing his history and personal life including his past relationships and children.
2. Particular Two of Complaint One relates to events during Patient A's second admission. It is also an allegation that Mr Elliott failed to maintain proper professional boundaries with Patient A, in circumstances where he had full knowledge of her mental health issues. Specifically that he: 1. discussed personal issues with Patient A including details of her marriage and his previous marriages 2. walked into Patient A's hospital room and sat so close to Patient A that their bodies were touching. 3. entered Patient A's room and stood over her while she slept to watch her 4. entered Patient A's room and kissed her 5. planned to take Patient A on an outing to a park on 2 September 2014 when he was off duty. The planned outing did not occur as Patient A cancelled the arrangement. 6. swapped phone numbers with Patient A in the context of Patient A discussing applying to University to undertake a Bachelor of Counselling 7. sent two hundred and twenty two (222) text messages to Patient A of a personal and intimate nature between 2 September 2014 and 5 September 2014 and received numerous text messages from Patient A of a personal and intimate nature 8. advised Patient A to lock her phone to prevent other nursing staff from reading her text messages when they charged her phone for her 9. alluding in text messages to Patient A that he was suffering from mental health issues
3. Particular Three of Complaint One relates to events following Patient A's discharge from her second hospital admission and is again an allegation that Mr Elliott failed to maintain proper professional boundaries with Patient A, in circumstances where he had full knowledge of her mental health issues. Specifically that he: 1. picked Patient A up from her home and took her for a drive around Lake Illawarra. At this time they kissed and discussed falling in love. 2. sent two hundred and thirty eight (238) text messages to Patient A between 6 September 2014 and 10 October 2014 of a personal and intimate nature 3. professed his feelings for her whilst simultaneously voicing reluctance in continuing a personal relationship with Patient A in the text messages 4. following Patient A making an official complaint about his behaviour, he sent text messages to Patient A blaming her for ending their relationship, telling her to leave him alone and that she had done "enough damage".

Patient A's Hospital Admissions

1. As set out in the Complaint, the Applicant submits that when seen as against the background of Patient A's three admissions to the Hospital where Mr Elliott worked as an enrolled nurse, his conduct with respect to her amounted to unsatisfactory professional conduct.
2. Patient A's clinical records from the Hospital show that her first admission (5 July 2013 to 13 September 2013) was due to a breakdown in mental health and that the conditions requiring acute care included "Borderline Personality Disorder and Major Depression" with suicidal ideation. Her treatment included group and individual psychotherapy as well as pharmacotherapy.
3. Patient A's second admission (18 August 2014 to 5 September 2014) followed presentation with suicidal thoughts and exhibition of manic symptoms. At this time Mr Elliott provided direct care and treatment to Patient A on at least three occasions and was the author of progress notes on 29 August 2014, 2 September 2014 and 4 September 2014.
4. Patient A's third admission (18 September 2014 to 7 October 2014) was due to side effects she had experienced as a result of her prescription medication, including hypo and hyper mania and an inability to sleep. During that time, Patient A was experiencing a higher than normal libido and lack of inhibitions. Her mood had deteriorated and she had increased thoughts of suicide.
5. According to records held by her treating psychiatrist, Ms Jarman, Patient A's health status is severe and chronic. Her diagnoses included borderline personality disorder, dependant personality disorder, bipolar affective II disorder, post-traumatic stress disorder and major depressive disorder.

Evidence in support of the events described in the particulars

1. Evidence to support Particular One is contained in a statement of Patient A dated 9 December 2014 in which she sets out Mr Elliott's discussions with her where he spoke about his history and personal life including his past relationships and children.
2. Evidence in support of Particular Two comes from the statement of Patient A dated 9 December 2014 and a supplementary statement made by her dated 2 June 2015. Other evidence includes screen shots from Patient A's phone of the text messages sent and received between 2 September and 5 September 2014 and her written complaint dated 26 September 2014 about Mr Elliott's behaviour which was made by her during her third admission to Hospital.
3. Examples of these text messages include: 2 September: Patient A: Do you care that I'm sick physically and mentally? Mr Elliott: No Patient A: Positive? Mr Elliott: Only tht you patient…and married …. Mr Elliott: I hav feelings for you..i sensed you felt something last time…was so happy when I got to join your groupwork here before…love being with you. Mr Elliott: I am attracted to you Mr Elliott: Now my heart racing…went back to your room…only to see you sleeping…wanted to lie next to you and hold you in my arms. 3 September Mr Elliott: I am scared someone find out and im out a job and registration 5 September Mr Elliott: That cannot happen…you are married…and a patient…I cannot even see you as an ex patient for some time."
4. In another text message sent by Mr Elliott to Patient A on the 2 September 2014 he advises her to lock her phone to prevent other nursing staff from reading her text messages. In some of the messages, Mr Elliott communicated that he too was suffering from mental health issues.
5. Evidence in support of Particular Three comes from the statement of Patient A dated 9 December 2014. Patient A stated that on 8 September 2014 Mr Elliott picked her up from her home and they drove to Lake Illawarra. At this time they kissed, discussed falling in love and having sexual intercourse.
6. Other evidence in support of Particular Three includes statements from Hospital staff and screen shots from Patient A's phone of the text messages exchanged between Mr Elliott and Patient A between 6 September 2014 and 10 October 2014 which were numerous and of a personal and increasingly sexual nature. Examples of these text messages include: 6 September 2014 Mr Elliott: Slept in your bed yesterday Still had ur scent in the room (p99) 13 September 2014 Mr Elliott: Can I say I when we in car I want to touch your breast…kept think of heading my hand down there and my mouth follow later. Mr Elliott: I want taste your body…your scent drives me crazy. Patient A: More air. Mr Elliott: But if we kept going I may end up inside you.
7. Some of the messages that were sent by Mr Elliott voiced reluctance in continuing a personal relationship with Patient A on the basis that what they were doing was wrong and his previous bad relationships.
8. By mid-September 2014 Mr Elliott began to distance himself from the relationship. At around this time Patient A contacted Registered Nurse Chester, who had been a Program Manager at the Hospital, in relation to the breakdown of the relationship. On 16 September 2014 Mr Elliott subsequently sent Patient A a text message expressing concerns that RN Chester was asking questions and she may alert staff at the Hospital to the relationship.
9. In mid-September 2014 Patient A consulted with her psychologist, Ms Jarman by phone. Patient A disclosed her relationship with Mr Elliott and told Ms Jarman that she was feeling suicidal.
10. Soon after this phone conversation with Patient A, Ms Jarman advised Cinzia Gagliardi, Clinical Program Manager at the Hospital, of the disclosure by Patient A of the relationship with Mr Elliott.
11. On 16 September 2014, and at the invitation of Ms Gagliardi, Patient A attended a meeting with Ms Gagliardi and Ms Kim Capp, Director of Nursing. At this meeting Patient A disclosed the relationship with Mr Elliott and his acts such as kissing her and planning to take day leave during her Second Admission.
12. On 18 September 2014 Patient A was admitted to hospital again. During this admission she made a formal complaint against Mr Elliott to the Hospital dated 26 September 2014.
13. After Patient A attended the meeting with Ms Gagliardi and Ms Kim Capp and made a formal complaint, she received text messages from Mr Elliott blaming her for ending their relationship and accusing her of ruining his life. The text messages focused on the impact on him and his life. Examples include: 17 September 2014 Mr Elliott: Thank you…you hav renewed my belief that noone really cares about me 9 October 2014 Mr Elliott: I don't know what you wanted in all this but I gav you honesty and my hear and you destroyed everything Mr Elliott: You obviously don't care about me or my life…you hav ruined me and my family…my children suffer now as I hav no job to provide for them…only about yourself Mr Elliott: Just leave me alone now…you done enough damage

Mr Elliott's response to Patient A's complaint

1. Mr Elliott made no formal admissions about the complaint made to the Hospital by Patient A. He failed to attend a meeting with the Nurse Unit Manager at the Hospital about the complaint.
2. By letter dated 2 October 2014 the Hospital terminated Mr Elliott's employment. It subsequently made a notification about Mr Elliott to the Australian Health Practitioner Regulation Authority. As a result of this notification the Nursing and Midwifery Council of NSW (the Council) conducted proceedings under s.150 of the National Law to consider Mr Elliott's continued registration as an enrolled nurse.
3. The Council held its proceedings on 10 November 2014. Although Mr Elliott was invited to make submissions and attend the s.150 proceedings, he did not provide submissions or participate in the proceedings. On 10 November 2014 the Council resolved to suspend Mr Elliott's registration as an enrolled nurse.

Nursing Standards

1. The Nursing and Midwifery Board of Australia has developed three documents which set out standards and gives Nurses guidance as to the conduct expected of them. These documents were before the Tribunal.
2. The Code of Ethics for Nurses in Australia (2008) makes reference to the need to recognise and manage the power differential in the relationship between nurses and people in their care.
3. The Code of Professional Conduct for Nurses in Australia (2010), at Conduct Statement 8, requires nurses to promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care. This refers to the need to protect people with mental illness from sexual exploitation and the responsibility of a nurse to maintain a professional boundary with their patients. It explicitly states that sexual relationships between nurses and persons with whom they have had a professional relationship are inappropriate in most circumstances.
4. A Nurse's Guide to Professional Boundaries (2010) clearly sets out a continuum of professional behaviour which, at one end, can result in over involvement. "Boundary violations" are referred to as resulting when nurses confuse their own needs with the needs of the person in their care. "Sexual misconduct" is referred to as an "extreme form" of boundary violation and includes any behaviour that is seductive or reasonably interpreted as sexual by the person who is in a therapeutic relationship with a nurse.

Expert Peer Review Report

1. Mr Warren Shaw RN prepared a peer review report dated 1 September 2015. The report reviewed and expressed opinions as to the conduct of Mr Elliott and the social and intimate relationship that developed between him and Patient A. Mr Shaw's Curriculum Vitae was available to the Tribunal. It reveals an extensive work history as a clinical nurse and Area Nurse Manager with a particular focus on mental health services.
2. Mr Shaw's report refers to the allegations forming the particulars of Complaint One and for each particular expresses the view that the conduct of Mr Elliott represented a significant departure from the standard reasonably expected of a practitioner of equivalent level of training and experience applicable at the time of the conduct. Each allegation invited the strong criticism of the expert.
3. Mr Shaw was of the opinion that Mr Elliott did not maintain "clear and adequate" boundaries with Patient A. In particular, the expert made the following remarks: 1. Personal disclosures by Mr Elliott were "disturbing" because such disclosures would have confused Patient A with regard to the nature of the therapeutic relationship, and were primarily directed to meet his own needs. 2. Mr Elliott's behaviour in standing over the bed of Patient A had the potential to generate significant confusion and distrust not only for Patient A but other patients on the Unit who may have witnessed or been aware of this conduct. Such behaviour undermined the credibility of the treatment team, the reputation of the institution and reflected poorly on the nursing profession. 3. All patients, especially those with psychiatric disorders, can misinterpret physical contact or the intrusion of personal space as an attempt to initiate a more intimate relationship. Given Patient A's background of illness, Mr Elliott was expected to maintain a professional and therapeutic relationship. 4. The physical contact between Patient A and Mr Elliott was extremely inappropriate. 5. The in person meeting between Mr Elliott and Patient A on 7 September, only two days after her discharge from Hospital, was highly inappropriate. The act would not only have misled and confused Patient A but also carried the potential to expose the relationship to her family along with the associated potential ramifications. 6. Mr Elliott's text messages professing his feelings for Patient A whilst also expressing reluctance was "disturbing" and likely to add to Patient A's confusion, distrust and distress. There was a general lack of insight shown by Mr Elliott into his role and impact of his conduct on the patient.
4. Ultimately, Mr Shaw was of the view that Mr Elliott's conduct was significantly at the over involvement end of the continuum when considered against the document "A Nurse's Guide to Professional Boundaries" characterised by marked boundary violations and sexual misconduct. His conduct strayed from "The Code of Professional Conduct for Nurses in Australia", particularly in relation to Conduct Statements 8, 9 and 10.

FINDINGS

1. For the reasons that follow the Tribunal is satisfied that the particulars relied upon by the Applicant are established and Complaints One and Two are proved.

Complaint One: Unsatisfactory Professional Conduct sections 139B(1)(a) and (l)

1. Mr Elliott has made no admissions in this matter. He failed to attend a meeting with the Nurse Unit Manager at the Hospital upon the initial complaint being made. He did not participate in s150 proceedings held by the Council on 10 November 2014. He did not participate in the Tribunal hearing. Although he has not indicated to the Tribunal that he concedes the factual matrix underpinning the complaints, he has not denied the conduct alleged. Nor has he presented any evidence which contests the particulars of the complaints or contradicts the evidence relied upon by the Applicant.
2. The evidence in relation to the particulars of Complaint One is compelling. As outlined above, it is largely from Patient A and supported by evidence of copious text message communication between Patient A and Mr Elliott. The text messages support the events as alleged by Patient A. The Tribunal is satisfied on the evidence before it that all the particulars set out in Complaint One are made out.
3. Section 139B(1)(a) of the National Law requires the determination by the Tribunal as to whether Mr Elliott has been guilty of unsatisfactory professional conduct. It involves an objective assessment of Mr Elliott's conduct against the standard of conduct reasonably expected of an equivalent practitioner.
4. Section 139B(1)(l) of the National Law also requires a determination by the Tribunal as to whether Mr Elliott has been guilty of unsatisfactory professional conduct. It involves an assessment as to whether Mr Elliott's conduct was improper or unethical relating to the practice of nursing.
5. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral; 2. in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law.
6. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrne [1995] 193 CLR 501 at 514-515: see HCCC v Phung (No. 1) [2012] 1 NSWDT at [68]. If conduct, is not in conformity with standards of professional conduct and practice it can be seen as improper.
7. Mr Elliott had access to Patient A's clinical notes. As such he would have been well aware of her documented vulnerabilities associated with her mental health issues and complex clinical history. His conduct over a period of months involved different individual examples of boundary violations and included intimate physical contact. The text messages between him and Patient A were numerous, intense and sexually explicit.
8. Mr Elliott's conduct in sending text messages alluding to his own mental health issues was outside the guidance provided by the Nursing and Midwifery Board of Australia, in "A Nurse's Guide to Professional Boundaries". This guide sets out that personal disclosures should be limited to those of therapeutic care or value. What Mr Elliott did was disclose information to achieve a personal alliance rather than a therapeutic one.
9. Mr Elliott did not maintain a clear separation between his professional conduct aimed at meeting the health needs of Patient A and his own personal views and feelings. The intimate and personal relationship he developed with Patient A was not relevant to the therapeutic relationship. It was entirely inappropriate. He crossed professional boundaries.
10. As referenced by the expert, Mr Shaw, the conduct of Mr Elliott in relation to Patient A is in breach of industry codes and guidelines provided by the Nursing and Midwifery Board of Australia. In the Tribunal's view Mr Elliott's conduct was significantly below the standard of conduct reasonably expected of an equivalent practitioner. The Tribunal finds that Mr Elliott's conduct amounts to unsatisfactory conduct pursuant to s139B(1)(a) of the National Law.
11. Mr Elliott's attempts to encourage Patient A to maintain a deception as it related to their relationship by his advice to her to lock her phone to prevent other nursing staff from reading her text messages was improper and unethical. In essence he was asking Patient A to collude with him to hide from professional scrutiny. Mr Elliott's attempts to go on a private outing with Patient A on 2 September 2014 during her second admission, and the in person meeting which did take place on 7 September 2014 only two days after her discharge from hospital, demonstrates a considered attempt to pursue and maximise inappropriate contact.
12. Following Patient A making a formal complaint, Mr Elliott sent her text messages blaming her for ending their relationship and accusing her of ruining his life. In effect Mr Elliott was attempting to apportion responsibility for the relationship, its disclosure to his employer and the impact on his employment on Patient A. The text messages focused on how their relationship could affect him and his life, there was no recognition of how it did or had the potential to affect Patient A.
13. All of these actions were not in conformity with standards of professional conduct and practice and as such were improper and unethical. The Tribunal finds that Mr Elliott's conduct amounts to unsatisfactory conduct pursuant to s139B(1)(l) of the National Law
14. The Tribunal is satisfied that both components of Complaint One are established.

Complaint Two: Professional Misconduct section 139E of the National Law

1. The Applicant submits that the conduct of Mr Elliott, which has been shown to constitute unsatisfactory professional conduct, is sufficiently serious that it amounts to professional misconduct. In particular, the particulars of Complaint One, when considered together, demonstrate sufficient seriousness for Complaint Two to be made out.
2. In determining whether a finding can be made of professional misconduct the Tribunal must determine whether as outlined in HCCC v Perroux [2011] NSWDC 99 at 18 "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration".
3. It has been held that the "gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards": see Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638.
4. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s.139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: HCCC v Saedlounia [2013] NSWMT 13 at 43-50 and Health Care Complaints Commission v Do [2014] NSWCA 307 at 35.
5. To constitute professional misconduct, it has been held that the conduct the subject of the complaint must be of such a departure from the accepted standards of the profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence: see Qidwai v Brown [1984] 1 NSWLR 100 at 105 (Priestley JA).
6. In Pillai v Messiter (No 2) [1989] 16 NSWLR 197 the Court of Appeal (referring to the earlier statutory test) described professional misconduct as including: "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson [v General Council of Medical Education and Registration [1894] 1 QB 755] (at 760-761)." (per Kirby P at 200).
7. The Tribunal accepts the submission put by the Applicant that Mr Elliott's conduct is of a very serious nature and demonstrates ongoing boundary violations with a seriously mentally ill patient whom he had previously treated, both in and out of the Hospital setting. The nature of the boundary violations were such they escalated over time and were not isolated events. The text message communication indicates that Mr Elliott appreciated that what he was doing was wrong but continued to act in breach of his professional obligations regardless. Of significant concern was Mr Elliott's encouragement to Patient A to hide text messages to avoid detection.
8. In addition Mr Elliott's improper behaviour showed a sustained disregard for the health and welfare of his patient and a focus on his own needs. This was particularly so after Patient A made a formal complaint and Mr Elliott's conduct was discovered.
9. In the Tribunal's view the unsatisfactory professional conduct displayed by Mr Elliott is of a sufficiently serious nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law. The Tribunal finds that when considered as a whole Mr Elliott's conduct constitutes professional misconduct. The Tribunal is satisfied that Complaint Two is established.

Principles regarding protective orders

1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see ss149A, 149B and 149C. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. Since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v Health Care Complaints Commission [2012] NSWCA 80 at 34.
2. In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184.
3. In Health Care Complaints Commission v Do, Justice Meagher (with whom Justices Basten and Emmett agreed) referred (at [35]) to the importance of denunciation of misconduct, in the context of s 3 and s 3A of the National Law as follows: 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.
4. In the Tribunal's view Mr Elliott's conduct was serious. It constituted a course or pattern of conduct with Patient A which involved persistent boundary violations. The behaviour was not impromptu, nor can it be seen as a one-off incident.
5. Mr Elliott was well aware of the gravamen of his own actions and appreciated the possible consequences to him such that he encouraged Patient A to actively hide their communications.
6. Mr Elliott has made no admissions in relation to the Complaint and has not participated in the proceedings. He did not participate in the Hospital or Council investigations.
7. As a result the Tribunal has limited measures by which it can assess the insight, if any, that Mr Elliott holds into his conduct.
8. However in the Tribunal's view what we are left with is an overarching impression from Mr Elliott's text messages to Patient A after his conduct was discovered by the Hospital, that he does not hold any insight at all into how his conduct affected Patient A. Mr Elliott's focus appears to have been a desire to meet his own personal needs. In our view Mr Elliott poses a substantial risk to the health of members of the public.
9. In the Tribunal's view a key aspect of the protection of the public extends beyond protecting the individual patients of an individual practitioner, but rather, to the protection of the public as a whole by means of the denunciation of the type of conduct such as the boundary violation that occurred in this case. Having regard to the findings made above as to the nature of the conduct and the protection of the public, the Tribunal is satisfied that the disciplinary orders sought by the Applicant in respect of Mr Elliott, specifically that his registration be cancelled and that he not make any application for review of the cancellation of his registration for a period of at least three years, are appropriate.
10. The Applicant also seeks an order for costs.
11. The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: see Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at 22. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at 36.
12. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at 42-46, with Emmett JA (Meagher JA and Beech-Jones J agreeing) stating: "As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by 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 (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied.
13. The Complaints have been wholly established. There are no factors that might militate against the recovery by the Applicant of its costs. Accordingly, the Applicant is entitled to an award for costs in its favour of and incidental to the proceedings.

ORDERS

1. The Tribunal orders that: 1. Pursuant to s 149C(1)(b) the Respondent's registration as an enrolled nurse is cancelled. 2. Pursuant to s 149C(7) of the National Law the Respondent is not to make any application for review of the cancellation of his registration for a period of 3 years from the date of the Tribunal's decision. 3. Pursuant to s 149C(5) of the National Law, the Respondent is prohibited from providing all health services unless and until he is re-registered as an enrolled nurse. 4. The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2 and 3 above as soon as practicable. 5. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the disclosure of the name of Patient A appearing in the Schedule to the Complaint is prohibited 6. The Respondent is to pay the Applicant's costs of and incidental to the proceedings

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: 03 February 2017