Health Care Complaints Commission v Foster

Background

1. Mr Foster was first registered as a nurse in New South Wales on 20 March 2001.
2. Mr Foster was employed by the Hunter New England Local Health District (HNELHD) with Mental Health Services on 26 September 2000. He began working as a Registered Nurse in the Neuropsychiatry Unit at the Morisset Hospital (known as Kaoriki House) on 22 October 2007.
3. Patient A was an in-patient at Kaoriki House between 12 March 2018 and 2 April 2019.
4. At the relevant time, Patient A suffered from Pantothenate Kinase-Associated Neurodegeneration (PKAN), which is a rare degenerative brain disorder, schizoaffective disorder, and a substance abuse disorder.
5. In January 2019, Patient A made an allegation of sexual misconduct against Mr Foster to her caseworker at a Community Managed Organisation. The matter was referred to the police. Mr Foster was advised of the allegation and initially took a period of leave from his employment whilst the matter was investigated by both the police and his employer. Mr Foster's employment with the HNELHD was suspended on 3 June 2019.
6. Proceedings under s 150C of the National Law were held by the Nursing and Midwifery Council of NSW (the Council) against Mr Foster on 12 August 2019. On this date, the Council decided to impose a condition on Mr Foster's registration that he not work as a nurse until further review by the Council.
7. On 21 August 2019, Mr Foster was arrested and charged with the following offences: 1. 5 counts of sexually touch a person with a cognitive impairment under s 61KD of the Crimes Act 1900 (NSW); 2. 1 count of committing a sexual act towards a person with a cognitive impairment under s 61KF of the Crimes Act 1900; and 3. 2 counts of sexual intercourse with a person with a cognitive impairment under s 66F of the Crimes Act 1900.
8. On 12 September 2019, the Council suspended Mr Foster's registration. Mr Foster's employment was terminated on 3 October 2019.
9. On 27 August 2021, after a judge alone trial at the Sydney District Court, Downing Centre, Mr Foster was found guilty of 5 counts of sexually touch another person with a cognitive impairment and 1 count of committing a sexual act towards a person with a cognitive impairment. Mr Foster was found not guilty of 2 counts of sexual intercourse with a person with a cognitive impairment.
10. On 19 November 2021 at the Sydney District Court, Mr Foster was sentenced to an aggregate term of imprisonment of three years and six months with a non-parole period of two years. Mr Foster is currently incarcerated and will be eligible for parole on 18 November 2023.

The Application and Complaint

1. At the commencement of the hearing, the Commission was granted leave to amend the application to clarify and correct a typographical error. The amendment clarified that if Complaints One and Three against Mr Foster were substantiated, the Commission sought cancellation of his registration under s 149C(1)(c) and (d) of the National Law. These provisions concern whether the circumstances of the criminal offences of which Mr Foster was convicted render him unfit in the public interest to practise nursing (s 149C(1)(c)); and, that he is not a suitable person for registration as a nurse (s 149C(1)(d)).
2. The Commission also seeks a prohibition order prohibiting Mr Foster from providing health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) and its costs.

The Evidence and Hearing

1. In support of the Application and Complaint, the Commission relied on a set of documents as evidentiary material. These documents encompassed, but were not limited to, Police and Court Records including transcripts of evidence in the District Court proceedings against Mr Foster, District Court Judgement and Sentence decisions, Victim Impact Statement, Psychological Assessment Report, Sentencing Assessment Report, NSW Police Fact Sheets, forensic results, witness statements, and Certificates of Conviction.
2. Mr Foster did not file a reply to the Application and Complaint or any documents in response to the Commission's documents. Mr Foster participated in the hearing by audio visual link. Accordingly, it was not until the hearing that Mr Foster indicated his attitude to the disciplinary proceedings.
3. At the hearing, Mr Foster indicated that he disputed some factual matters advanced by the Commission. He did not oppose the orders for the cancellation of his registration, a prohibition from providing health services, or costs. Mr Foster gave oral evidence but was not cross examined on that evidence. Patient A did not give evidence.
4. Both Stage 1, regarding the extent to which the Complaint is established against Mr Foster, and Stage 2, regarding the issue of what disciplinary orders it was appropriate for the Tribunal to make, were the subject of evidence and submissions at the hearing. The possibility of dealing with Stage 2 after the completion of Stage 1 was raised with Mr Foster. He indicated that he was comfortable to deal with both Stages 1 and 2 at the hearing.

Complaint One: Convicted of Criminal Offences

1. This complaint is brought under s 144(a) of the National Law. It is brought because Mr Foster has been convicted of criminal offences in NSW.
2. The complaint sets out particulars of six offences of a sexual nature of which Mr Foster was convicted on 19 November 2021. The offences took place at a mental health facility at Morisset, and it was an element of each offence that Mr Foster knew that Patient A did not consent.
3. Inherent in each offence were circumstances of aggravation. The circumstances of aggravation for each offence were that Mr Foster had committed the offence against a person with a cognitive impairment and for whose care he was responsible. Patient A was a person with a cognitive impairment, Mr Foster knew that Patient A was a person with a cognitive impairment and, as a nurse at the facility where Patient A resided, he was responsible for her care.
4. The offences for which Mr Foster was convicted are recorded as follows: 1. Under section 61KD(1)(a) Crimes Act 1900 (count 1) sexually touching Patient A on 24 December 2018. 2. Under section 61KD(1)(a) Crimes Act 1900 (count 2) sexually touching Patient A between 24 December 2018 and 27 January 2019. 3. Under section 61KD(1)(a) Crimes Act 1900 (count 3) sexually touching Patient A between 24 December 2018 and 27 January 2019. 4. Under section 61KD(1)(a) Crimes Act 1900 (count 4) sexually touching Patient A between 24 December 2018 and 27 January 2019. 5. Under section 61KF(1)(a) Crimes Act 1900 (count 5) committing a sexual act towards Patient A between 24 December 2018 and 27 January 2019. 6. Under section 61KD(1)(a) Crimes Act 1900 (count 8) sexually touching Patient A on 28 January 2019.
5. The factual matters underpinning the convictions as found by Bourke SC DCJ against Mr Foster are set out in R v Foster [2021] NSWDC 726 at [4]-[10]. They are as follows: "4. … The offences involved a single victim, [Patient A], who was a patient at Kaoriki House where she had been admitted from 12 March 2018 until 2 April 2019. Kaoriki House is a 12-bed psychiatric inpatient ward within Morisset Hospital, and the offender was a senior nurse there at the time. [Patient A] had schizophrenia and was taking medication for that condition. She was also taking methadone each day for heroin addiction. [Patient A] reported that these medications sometimes had a stupefying effect upon her. 5. [Patient A] also has a condition known as Pantothenate Kinase Associated Neurodegeneration, also known as "PKAN", which can cause a person to have difficulty in articulating words clearly, and very slow, muffled or strangled speech, or a tendency to repeat syllables or words over and over very rapidly. It is a cognitive impairment and may affect executive functioning. 6. At Kaoriki House, patients who smoked were allowed to have a cigarette approximately every three hours. These would be distributed by a staff member at specific times of each day. 7. The offences occurred during four separate incidents. The first incident is the subject of count 1. Count 1 is an offence of sexual touching of a person with a cognitive impairment by a person responsible for that person's care. The offence occurred in an external courtyard on Christmas Eve 2018, when the offender touched [Patient A's] breasts. This occurred in an alcove which she referred to as a "hidey-hole" after a barbecue. The offender was on duty at that time and had been cooking food on the barbecue for the residents earlier in the afternoon. The barbecue had finished and the other staff and residents had gone back inside the building. In finding the offender guilty of this offence I accepted beyond reasonable doubt [Patient A's] version, namely that the incident occurred in the hidey-hole while [Patient A] was standing up. The offender put his hand under [Patient A's] shirt and bra and said "Jeez you've got nice tits". When [Patient A] said "Paul, leave me alone, I don't want to do it. I'm uncomfortable" the offender replied "Don't worry about it" and continued to touch her breast for a couple of minutes. 8. The second incident is the subject of counts 2 and 3. Those two counts are also offences of sexual touching of a person with a cognitive impairment by a person responsible for that person's care. These offences occurred in the same open courtyard sometime between 24 December 2018 and 27 January 2019. [Patient A] was sitting down but was in a position where the offender could be in front of her, and also see if anyone was coming. The offender approached her and played with her breasts on the inside of her clothing using circular motions with his hands. This is the subject of count 2. He then put his hand down her skirt and into her underpants and touched her on the vagina with his fingers. This is the subject of count 3. This overall incident occurred for several minutes. During the incident the offender told [Patient A] "You're my favourite. You smell like berries and you taste like sweet red wine" or something similar. The incident ceased when [Patient A] began to cry. The offender then left her alone and she went to her room where she continued to cry. 9. The third incident is the subject of counts 4 and 5. Count 4 is an offence of sexual touching of a person with a cognitive impairment by a person responsible for that person's care. Count 5 is an offence of committing a sexual act towards a person with a cognitive impairment by a person responsible for that person's care. This third incident occurred in a tribunal hearing room at Kaoriki House between 24 December 2018 and 27 January 2019. On this occasion the offender took [Patient A] to the tribunal room through a locked door and once inside he sat on the edge of a table and fondled her breasts, this being the subject of count 4, and also fondled his penis, which is the subject of count 5. This incident stopped when Ms P started crying out of fear. 10. The fourth incident is the subject of count 8. Count 8 is another offence of sexual touching of a person with a cognitive impairment by a person responsible for that person's care. This incident took place in a locked room at Kaoriki House on 28 January 2019. The offender took [Patient A] by the hand and walked her there just before the last cigarette break when staff were putting out supper food which usually happened around 7pm to 8pm. The offender had a key to the room and once inside he took off his own clothes and laid the victim on her back on a bed. The offender [Patient A's] breasts, either by pulling up her top, or removing it altogether, and then put his penis between her breasts until he ejaculated on her breasts. [Patient A] wiped the semen off her breasts with her shirt. The offender and [Patient A] were in the room for about 10 to 15 minutes. The offender told [Patient A] that if she ever spoke about the assault she would lose her house or be moved to another hospital where she would not get the house for which she was on a waiting list. [Patient A], after using lipstick to mark the location of the semen stain on her shirt, sent the shirt or top to her daughter in the post. Testing of the stain confirmed the presence of the offender's DNA. Those are the factual matters upon which Mr Foster is to be sentenced."
6. Mr Foster stated that he understood he had been convicted of the particularised offences. He refuted the allegations that underpinned the convictions but accepted that because of the convictions professional sanctions would flow. He accepted that he was unfit to practise.
7. The evidence before us includes the judgment and findings of the District Court and Certificates of Conviction. The evidence before us substantiates each of the convictions detailed in the Complaint. Complaint One is proven.

Complaint Two: Unsatisfactory Professional Conduct

1. Under s 144(b) of the National Law, a ground for complaint about a registered health practitioner is that the practitioner has been guilty of unsatisfactory professional conduct. Unsatisfactory professional conduct under s 139B(1)(b) of the National Law includes: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law or the regulations under this Law ...
2. The complaint of unsatisfactory professional conduct against Mr Foster is based on a contravention of s 130(1) of the National Law. This provision requires that a practitioner must notify the National Board in writing within seven days of becoming aware that a relevant event has occurred. Under s 130(3)(a)(ii) of the National Law, a relevant event means where a practitioner is charged with an offence punishable by 12 months imprisonment or more.
3. The particulars for this complaint were that Mr Foster failed to notify the National Board within 7 days of being charged on 21 August 2019 of the following offences: 1. 4 counts of sexually touching another person without consent in circumstances of aggravation pursuant to s 61KD of the Crimes Act 1900; 2. 1 count of aggravated sexual assault pursuant to s 61KF of the Crimes Act 1900; and 3. 2 counts of sexual intercourse with a person with a cognitive impairment under s 66F of the Crimes Act 1900.
4. We interpolate to note that a typographical error appears at various points in the Complaint in which s 61KF and s 66F of the Crimes Act is mistakenly referred to as s 61J(1) of the Crimes Act.
5. Mr Foster admits this complaint. Independently of this admission, the evidence before us from AHPRA indicates that Mr Foster did not make any disclosures to AHPRA of the charges against him within the time specified.
6. Mr Foster contravened s 130(1) of the National Law because he failed to notify the National Board that he had been charged with offences punishable by 12 months imprisonment or more within 7 days.
7. The contravention by Mr Foster of a provision of the National Law has been established as a matter of fact. Section 139B(1)(b) of the National Law designates that a contravention of the National Law, in this case a breach of s 130(1), as unsatisfactory professional conduct. The effect of that finding is that Mr Foster is guilty of unsatisfactory professional conduct. Complaint Two is proven.

Complaint Three: Not a suitable person to hold registration

1. This complaint is brought under s 144(e) of the National Law. It is that Mr Foster is otherwise not a suitable person to hold registration in his profession. The conduct which is alleged in the particulars in support of this complaint is based on the conduct which underlie the two counts of aggravated sexual assault with which Mr Foster was charged under s 66F of the Crimes Act 1900 (count 6 and 7) and of which he was found not guilty.
2. The particulars of this complaint are as follows: 1. Between 7:30pm and 9pm on 28 January 2019, in a spare room at Kaoriki House, Mr Foster engaged in fellatio and vaginal intercourse with Patient A in circumstances where: 1. Patient A was a person with a cognitive impairment; 2. Mr Foster was responsible for the care of Patient A; 3. He removed all of his clothes; 4. He said words to the effect of "you're my favourite" to Patient A; 5. He grabbed Patient A's shoulders and pushed her onto the bed in the room; 6. He said words to the effect of "don't you dare tell anyone, you'll lose your house and I'll get into trouble, you have a carer, and they'll say its not consensual"; 7. He engaged in vaginal intercourse with Patient A for about 2-3 minutes; 8. Patient A said words to the effect of "I am really uncomfortable with this"; 9. He said words to the effect of "we're naughty, you're my favourite"; 10. He pulled his penis out of Patient A's vagina and put it in her mouth and moved Patient A's head back and forth for about 2-3 minutes.
3. In response to this complaint, Mr Foster accepts that he was responsible for the care of Patient A. He disputed that Patient A had a significant cognitive impairment. He drew a distinction between the medical definition used in his field of endeavour as a nurse, and that used in the legal arena in which the District Court proceedings had occurred. He conceded that Patient A satisfied the legal definition. In respect of the balance of particulars, he contends that they draw on information of which he was found not guilty.
4. In relation to particulars (1)(a) and (b) above, Mr Foster accepted that Patient A lived in a mental health facility and along with others he was responsible for her care. During his evidence to the Tribunal, he disputed the degree to which Patient A's mental health difficulties affected her ability to make decisions. He believed it was significant that the Judge who presided at his trial observed that Patient A was able to give evidence in a clear sequence. This, according to Mr Foster, showed that Patient A's brain worked well.
5. In relation to the balance of particulars (1)(c)-(j), Mr Foster did not deal specifically with the asserted facts. He made no specific denial of the events alleged to have taken place between him and Patient A on 28 January 2019. This included Mr Foster removing his clothes, engaging in sexual intercourse and fellatio for 2-3 minutes with Patient A, telling Patient A not to tell anyone, and Patient A telling him that she was uncomfortable with what was happening.
6. Rather, in response, Mr Foster focused on what he believed was Patient A's mental state.
7. Mr Foster stated that Patient A's cognitive impairment was not tested by the Court. The police interviewed Patient A five days after the incident. She was coherent and her brain functioned well so, in his view, at the time of the incident she was mentally stable. Similarly, she was coherent at the time she gave her statement to police. He said that Patient A gave a good account of herself in Court and the Judge was impressed. As we understood it, the implication Mr Foster was attempting to draw was that Patient A did not have a cognitive impairment, knew what she was doing, and was a willing participant.
8. Mr Foster stated that one week before the trial, Patient A approached the police and wanted to expand on her complaint against him. She stated that he had been abusing her for some months. She explained she had memory lapses and against her will had been given electroconvulsive therapy (ECT) at Kaoriki House. Mr Foster drew attention to the fact that these matters were the subject of cross examination at his trial, and it was demonstrated that ECT had not been administered to Patient A.
9. Mr Foster was critical of how the presiding Judge dealt with this inconsistency in Patient A's evidence. He suggested that the Judge was not qualified to make an assessment about Patient A's mental health. He contended that this was an example of Patient A changing her story. On paper, Patient A had a diagnosis but this did not mean that her brain was not functioning. Mr Foster stated that he never felt that Patient A suffered from a cognitive impairment and there was no assessment done of the ability of her brain to function. He stated that an inference to be drawn from the material the Commission had put forward was that he had preyed on someone whose brain was not functioning properly. He objected to this. It was false and, in his view, it speaks to Patient A's reliability and credit.
10. Mr Foster referenced a sexual encounter with Patient A which was the subject of one of the criminal convictions against him (count 8). In the finding of guilt against Mr Foster, weight was attached to scientific evidence. Specifically, a swab taken from the inner breast area of Patient A detected a sperm cell and the partial DNA profile recovered from the sperm fraction had the same profile as Mr Foster. Secondly, the testing of the front chest area of the shirt belonging to Patient A detected the presence of semen also found to have the same DNA profile as Mr Foster.
11. In this incident, Mr Foster stated that Patient A had collected his DNA sample when he had masturbated and ejaculated semen on her breasts. She used a shirt to wipe the semen off her breasts and she then sent the shirt in the post to a relative. Patient A then made the allegations against him. He stated that this suggested clear planning by Patient A.
12. In conclusion, Mr Foster stated that the sexual encounter he had with Patient A in which he had participated was indefensible. He was ashamed and believed he should not practise as a nurse.
13. The tenor of Mr Foster's evidence was that he maintained his innocence of the convicted offences. He accepted that there was a sexual incident between him and Patient A in which he had ejaculated on her breasts, but Patient A initiated this interaction.
14. Mr Foster had adopted this position at his trial and on sentence. In a psychological assessment report provided on sentence, he minimised his behaviour by saying Patient A was able to consent and that she initiated the encounter with a motivation of suing the hospital: see Report of M Godbee, Forensic Psychologist, 30 September 2021.
15. Although Mr Foster was found not guilty of two offences, this does not prevent disciplinary proceedings being taken against him arising out of the same set of alleged facts.
16. Even if the factual questions were identical, the difference in the onus of proof prevents the issues being the same. Whether conduct has been established beyond reasonable doubt is not the same question as whether that conduct has been established on the balance of probabilities. Therefore, "an acquittal does not bar civil proceedings against the accused arising out of the same facts": see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635; [1997] NSWCA 264 (Gleeson CJ, Meagher and Handley JJA).
17. Complaint Three details conduct reflected in counts 6 and 7 of which Mr Foster was found not guilty. However, there was a relationship between those counts and count 8, of which Mr Foster was found guilty. In R v Foster [2021] NSWDC 725, Bourke SC DCJ explained this relationship as follows (at [117]): "Counts 6 and 7 are alleged to be part of the same incident as count 8 and I have already accepted beyond reasonable doubt the complainant's version of what is alleged in count 8. However, I must give separate consideration to the question of whether I am satisfied beyond reasonable doubt of the essence of what is alleged in counts 6 and 7, which each involve alleged acts of sexual penetration. In contrast to count 8, there is no forensic evidence which supports counts 6 and 7, which rely solely on the credibility and reliability of the complainant and, while I am satisfied beyond reasonable doubt about the complainant's evidence concerning count 8, the allegations in counts 6 and 7 are of a different nature to that in count 8."
18. After his Honour set out his reasons as to why he was left with a reasonable doubt in relation to the penetration and fellatio alleged in both counts 6 and 7, his Honour stated as follows (at [125]): "Nonetheless, I am satisfied that it is very highly probable that the incident on 28 January 2019 occurred in the manner that the complainant alleges and that the accused did penetrate her vagina and mouth before ejaculating on her breasts but, given the need for me to assess and apply the criminal standard of proof to each allegation, the matters to which I have referred leave me with a reasonable doubt as to whether the penetrations alleged in counts 6 and 7 occurred. I, therefore, find the accused not guilty in relation to counts 6 and 7."
19. In assessing whether the particulars in Complaint Three are made out, we have the oral evidence Mr Foster gave at the hearing before us, and the accounts given by him and Patient A in the criminal proceedings. These include police statements and interviews, and the trial transcripts of evidence given by Patient A and Mr Foster. We also have evidence from third parties including Patient A's daughter, and witnesses who gave evidence about their observations of and conversations with Patient A.
20. In cases involving two opposing versions of events, the focus will be on the credibility and reliability of the witnesses and any evidence corroborating their account. However, in cases involving sexual misconduct, a common feature is for there to be competing accounts given by a complainant and respondent with no other witnesses to the conduct. In criminal cases, the High Court has confirmed that an accused person can be convicted on the testimony of a single witness: see Robinson v R (1999) 197 CLR 162; [1999] HCA 42 at [18]. There is no requirement that a complainant's evidence be corroborated before a jury may return a verdict of guilty upon it: see Pell v R (2020) 268 CLR 123; [2020] HCA 12 at [53]. This also applies to health disciplinary cases involving sexual impropriety, as confirmed by the Court of Appeal in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [49].
21. Looking at the totality of the evidence before us, including Patient A's police statement, her evidence recorded by the trial transcript and the evidence given by witnesses, we found the account given by Patient A as to what occurred on 28 January 2019 to be clear, coherent, and persuasive.
22. On 28 January 2019 and in the days soon after, Patient A reported her claims about Mr Foster's conduct to three people.
23. Patient A told her daughter about what Mr Foster had done in a phone call in the evening on 28 January 2019. Patient A's daughter gave evidence that in this conversation her mother was very distressed, upset, and scared. Patient A told her daughter she could not report the matter until a nurse whom she trusted came on shift. In a second conversation on that same evening, Patient A explained to her daughter that she had a shirt with Mr Foster's bodily fluids on it. It was this shirt which Patient A subsequently sent in the post to her daughter, who in turn took it to police.
24. Two days later, on 30 January 2019 at different points in the day and on separate occasions, Patient A told a disability support worker unconnected with Kaoriki House and a social worker who worked at Kaoriki House about Mr Foster's conduct.
25. Ms Duggan was a social welfare worker at Kaoriki House. She gave evidence about her observations of Patient A and conversations she had with her at various points in the day on 30 January 2019. Ms Duggan had assisted Patient A to secure transitional supported accommodation on her discharge from Kaoriki House. Early in the morning on 30 January 2019, Ms Duggan observed Patient A to be anxious and restless. She said Patient A appeared concerned about whether she would still be able to go to the accommodation which had been arranged and mentioned a concern she might be sent to another hospital. This evidence lends support to Patient A's account that Mr Foster told her that if she told anyone about his conduct, she would lose her house.
26. Later in the morning of 30 January 2019, a disability support worker, Ms Wells, collected Patient A from the hospital as part of a community access program. Away from the hospital, Ms Wells initially observed Patient A to be "down." She asked Patient A what was wrong. Patient A said that Mr Foster had been having sex with her and had taken her into a room. Ms Wells said that she had never seen Patient A upset like this before. At this point, as Ms Wells was obliged to make a mandatory report about the allegations, Ms Wells returned to her office with Patient A and police were called.
27. Later that day, after police had become involved, Ms Duggan accompanied Patient A to a medical examination. Patient A also told Ms Duggan about what had happened on 28 January 2019. The account she gave Ms Duggan was entirely consistent with the details set out in Complaint Three.
28. A component of Patient A's account of her interactions with Mr Foster included him giving her additional cigarettes after sexual encounters as an incentive to not tell anyone about his conduct. Ms Duggan had observed Mr Foster give Patient A additional cigarettes a couple of weeks prior to 30 January 2019. She had questioned Mr Foster about this. Mr Foster told Ms Duggan that he wanted a settled shift. Ms Duggan thought this was unusual because she had always found Mr Foster to want to be consistent with patients and the rules which applied in the facility. This evidence lends support to Patient A's account that Mr Foster gave her additional cigarettes as an incentive to be silent.
29. Patient A subjected herself to a medical examination. In our view, this lends further support to her version of events. Such examinations are invasive and difficult for complainants of sexual offences. In our view, a complainant does not lightly undertake them unless there is substance to the allegations which are being made.
30. In contrast, we did not find Mr Foster to be an impressive witness. A recurring feature of his evidence both at the trial and before us were his concerted efforts to disparage and discredit Patient A.
31. Mr Foster's challenge to the assessments made about Patient A's cognitive ability was not supported by doctors who gave evidence about these matters at trial, namely Dr Pepper, neurologist and Dr Keighran, psychiatrist. Although there was no evidence about how PKAN affected Patient A's brain function and Dr Pepper did not examine Patient A, Patient A's cognitive impairment was demonstrated at the trial and no contrary evidence was before us.
32. In giving his oral evidence, Mr Foster attempted to use the psychiatric history of Patient A as a weapon to undermine her reliability. An example of this was what he claimed to be changes in her story shortly before the trial and to her erroneous assertion that she had been subjected to ECT at Kaoriki House.
33. The evidence of Dr Keighran referred to Patient A's diagnosis of PKAN and schizoaffective disorder (SAD). He indicated that there were some similarities between SAD and schizophrenia, and is associated with psychotic symptoms, including hallucinations, which can wax and wane. Flare ups of this kind would usually be brief and quickly attenuated and might last a matter of hours or a day or two. In the event of a flare up, Dr Keighran said in this case a patient would be given medication to calm things down. Bourke SC DCJ found that Patient A's belief that she was given ECT was delusional and was referenced only relatively recently before the trial and did not detract from her reliability.
34. In our view, Mr Foster's statements about these matters were used by him as a justification to undermine the reliability of Patient A and to avoid squarely dealing with the allegations against him.
35. At trial, Mr Foster was asked by his counsel why he had engaged in the sexual act which formed count 8. He said that he was having a bad day, his marriage was strained, he was angry and frustrated in his job and so he just said to himself, "Fuck it, I'm just gonna do it." Mr Foster also claimed that this was not the first time that Patient A had acted out sexually towards him.
36. In our view, this response shows a total disregard for Patient A. It shows Mr Foster's preparedness to use Patient A as a sexual object to achieve sexual gratification. In our view, it is a matter of significance to the way Mr Foster went about committing all the conduct which Patient A alleges occurred on 28 January 2019 and not just the conduct of which he was convicted.
37. During Mr Foster's evidence at the trial, he asserted that Patient A behaved in a sexually provocative way towards him. Yet he did not record this behaviour in clinical notes, report it to his supervisors or discuss it with any colleagues to seek guidance. None of the witnesses who gave evidence about the types of behaviour displayed by Patient A made any reference to sexualized behaviour by her of this kind. In our view, if this had occurred, Mr Foster would have acted. We do not believe Patient A behaved in a sexually provocative way towards Mr Foster. In our view, this was a further example by Mr Foster attempting to denigrate Patient A and undermine her reliability.
38. Having regard to the seriousness of the allegations and the gravity of the consequences, the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 ("Briginshaw") are relevant to these disciplinary proceedings. Holding those principles to mind, we accept the account given by Patient A about what Mr Foster did and said on 28 January 2019. We are satisfied that the Commission has established the particulars in Complaint Three on the balance of probabilities to the Briginshaw level of persuasion. We find the particulars detailed in Complaint Three proved.

Consideration

1. Two issues flow from the findings we have made about Complaints One and Three. Firstly, whether the circumstances of the offences for which Mr Foster has been convicted render him unfit in the public interest to practise his profession. Secondly, whether the conduct which we have found substantiated in Complaint Three makes Mr Foster not a suitable person to hold registration.

Circumstances of the criminal offences

1. In considering whether the circumstances of the criminal offences of which Mr Foster has been convicted render him unfit in the public interest to practise nursing, we have had regard to the circumstances of the offences as found and set out in the sentencing remarks of Bourke SC DCJ in R v Foster [2021] NSWDC 726 which are set out in this decision at [27]. We have also had regard to his Honour's sentencing remarks in which he referenced Mr Foster giving Patient A cigarettes as an encouragement for her being silent: R v Foster [2021] NSWDC 726 at [20], [23]-[24].

Unfit in the public interest

1. The term "public interest" is not defined in the National Law, and in the context of s 150 proceedings was the subject of consideration in Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708, in which the Court held that the "public interest" is a broader concept than protection of the health or safety of the public, encompassing wider community interests such as the standards to which human conduct is to be held.
2. The following observations by Harrison AsJ in Pharmacy Council of NSW v Ibrahim at [32] and [35] are instructive: "32. As such, and in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see [Hanna v Medical Board of NSW [2017] NSWCATOD 27] at [18]. … 35. … The public interest is a broader concept, encompassing wider community interests such as the standards to which human conduct is to be held …"
3. In Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53, the Tribunal considered an application under cl 12 of Schedule 5D of the National Law and s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) for an order that the proceedings against a health practitioner be dismissed. Deputy President Boland ADCJ noted at [143] that the words "public interest" are found in various provisions of the National Law including relevantly s 3, in association with a practitioner found guilty of criminal offences (s 149C), in determining whether to take action under s 150, in making an interlocutory order suspending a practitioner's registration (s 165L), in determining what information should be included in the public register (s 226), in requiring Committee members to put the public interest before the interests of a health professional in their determinations (Schedule 2), and obligations on members of National Boards (Schedule 4) and in cl 12 of Schedule 5D.
4. Her Honour considered the authorities on the "public interest" and concluded at [151] that the authorities emphasised a number of matters relevant to the scope and purpose of the legislation, those factors including "the high moral and ethical obligations on practitioners, the need to comply with regulations, and the confidence of the public in those who treat them". Her Honour referred in particular to the comments of Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "… The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so."
5. In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 ("Limboro"), the Tribunal stated at [14]: "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."
6. Whether a practitioner is unfit in the public interest to practise will require consideration of the nature of the conviction and the circumstances in which the offence was perpetrated. Those circumstances can extend to the factual background and the impact of the conviction on the respondent in terms of any insight, contrition, and remorse: see Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51].
7. In Limboro at [22], similar themes were discussed regarding considerations broader than the direct impact upon the practitioner's patients: "From the above legislative extracts and interpretive statements it is clear that criminal conduct is a distinct factor when determining suitability to practise which must be assessed in light of a holistic inquiry into suitability. 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. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards, and through this, public confidence in the health professions."
8. Accordingly public interest contemplates both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and that criminal conduct occurs whilst performing their professional role and responsibilities, the public's ability to entrust their care to those health professions is eroded if the practitioner continues to practise.
9. The factors that emerge from the circumstances of the offences which demonstrate that Mr Foster is unfit in the public interest to practise are as follows: 1. The intrinsic seriousness of the sexual offences committed by Mr Foster towards a patient in his care. 2. Mr Foster committed multiple offences over at least a month and included conduct aimed at dissuading Patient A from making any complaint to others. 3. Mr Foster held an inherently unequal position of power over Patient A and used that position to achieve sexual gratification. Patient A was highly vulnerable. She had complex mental health issues. She was an involuntary inpatient at a mental health facility and as such she could not leave that facility. 4. Patient A was a patient in a secure and specially designed mental health facility. She should have been safe in that environment and unharmed by those responsible for her care. Mr Foster betrayed that fundamental duty of care. 5. In evidence before us, Mr Foster showed no remorse for his criminal conduct or contrition for the impact upon the victim of his crimes. His expressions of regret were focused on his personal disgust in himself in having had a sexual encounter. 6. The setting and maintenance of professional standards and public confidence would be undermined in the event Mr Foster was allowed to continue practising.
10. Given the matters referred to above, we are satisfied that the circumstances of the offences of which Mr Foster has been convicted render him unfit in the public interest to practise nursing.

Not a suitable person to hold professional registration

1. The phrase "suitable person" is not defined in the National Law. The Macquarie Dictionary defines "suitable" as "such as to suit; appropriate; fitting; becoming." Section 55 of the National Law deals with unsuitability to hold general registration and sets out the circumstances or criteria used to assess whether a person is unsuitable for registration. Accordingly, it offers guidance as to the meaning of suitable person.
2. Relevantly Section 55 (b) and (h) of the National Law states that a National Board may decide that an individual is not a suitable person to hold general registration, if: 55 Unsuitability to hold general registration (1) … (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (h) in the Board's opinion, the individual is for any other reason - (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely.
3. The meaning of the expression "not a suitable person to hold registration" was considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72]-[73]: "72. … [I]n considering whether [the practitioner] "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members 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 (ss 3(1) and 3(2)(a) of the National Law). 73. While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills."
4. That interpretation was cited with approval by the Tribunal in Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 at [116]-[118] and by the Court of Criminal Appeal in Jung v R [2017] NSWCCA 24 at [56] (Johnson J; Hoeben CJ at CL and Latham J agreeing).
5. The totality of the conduct detailed in Complaint Three which we have found proven against Mr Foster occurred in an isolated room where Patient A would have felt helpless. The conduct involved Mr Foster removing all his clothes, engaging in vaginal intercourse and fellatio for several minutes, and a threat that if Patient A spoke about the incident, she would lose the house for which she was waiting. It is objectively extremely serious. It is conduct which shows a complete lack of integrity. It demonstrates Mr Foster's inability and unwillingness to place the needs and well-being of his patients over his personal inclinations. The sexual exploitation of a vulnerable patient is conduct of a nature which strikes at the heart of public confidence in the profession. It is conduct for which Mr Foster displayed no remorse.
6. Accordingly, we conclude that Mr Foster is not a suitable person to hold registration as a nurse.

The principles relevant to the making of protective orders

1. The totality of the serious sexual misconduct which we have found proven against Mr Foster enlivens our powers to suspend or cancel his registration. This is because we have determined that the circumstances of the offences for which Mr Foster has been convicted render him unfit in the public interest to practise; and, that other sexual misconduct which we have found proven demonstrates that he is not a suitable person for registration as a nurse: see s 149C(1)(c) and (d) of the National Law. In our view, each ground independently justifies cancelling his registration.
2. In determining the appropriate orders, the Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. Relevantly, of those principles, s 3(2)(a) provides 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 paramount consideration is the protection of the health and safety of the public: National Law, s 3A(1).
3. This determination may only be made by reference to the facts before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34].
4. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], Meagher JA (Basten JA and Emmett agreeing) referred 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."
5. In the light of the findings we have made above about Mr Foster being unfit in the public interest to practice and that he is not a suitable person to hold registration, we are satisfied that it is appropriate that his registration should be cancelled.
6. We conclude that Mr Foster should not be able to make any application for review of the cancellation of his registration for a period of seven years. In our view, given the gravity of our findings, the upholding of public confidence in the nursing profession requires that his conduct in its entirety be denounced as unacceptable, and which a period of seven years appropriately reflects.
7. We also found Mr Foster guilty of unsatisfactory professional conduct for his contravention of a provision of the National Law specifically, s 130(1) of the National Law. This finding does not enliven the powers to suspend or cancel his registration. Given the conclusion we have reached about Mr Foster's registration, in practical terms there is no protective order that needs to be made to reflect this finding.

Prohibition order

1. The Commission seeks a prohibition order against Mr Foster on the basis that he poses a substantial risk to the health of members of the public. It seeks that Mr Foster be prohibited from providing any health services, as defined by the Health Care Complaints Act until such time as he is re-registered as a nurse. Mr Foster did not oppose the making of such an order.
2. The Tribunal can make a prohibition order if the Tribunal is satisfied that the respondent poses a substantial risk to the health of members of the public: see s 149C(5) of the National Law. An order of this kind is aligned with the protective purpose of the legislation.
3. Section 4 of the Health Care Complaints Act defines "health service". It includes the following services whether provided as public or private services as follows - "(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."
4. On the evidence before us, we find that Mr Foster poses a substantial risk to the health of members of the public if he were to be involved in the provision of any health services. The gravity of his conduct toward a vulnerable patient and complete lack of insight entails an unacceptable risk to the public.
5. Further a prohibition order ensures that the protective purpose of the cancellation of Mr Foster's registration is not significantly undermined. This is because if Mr Foster were permitted to provide health services during the period when his registration was cancelled, it would diminish the protective purpose of the cancellation of his registration and undermine confidence held in the profession.

Costs

1. The Tribunal has the power to award costs as specified in the National Law: clause 13 of Schedule 5D.
2. The principles relevant to the exercise of discretion in awarding costs are the subject of discussion in the High Court of Australia in Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25. The High Court stressed that the awarding of costs is a discretionary matter, but the discretion must be exercised judicially by reference to relevant considerations. Their Honours further explained the general rule that costs follow the event reflects the position that a successful party should be compensated for the expenses it has incurred and is not intended to be punitive. These established principles are also relevant to professional disciplinary proceedings: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
3. The Commission was successful in proving all the particulars in the three individual complaints advanced by it. Each complaint was substantiated. It was successful in proving Mr Foster's unfitness in the public interest to practise nursing and that he is not a suitable person to hold nursing registration. It was successful in obtaining orders for cancellation of registration and prohibition.
4. There is no evidence of any disentitling conduct by the Commission. Accordingly, a costs order will be made in its favour.

Orders 1. Under s 149C(1)(c) and (d) of the Health Practitioner Regulation National Law (NSW), the registration of the Respondent is cancelled. 2. Under s 149C(7) of the Health Practitioner Regulation National Law (NSW), a non-review period of 7 years is imposed. 3. Under s 149C(5) of the Health Practitioner Regulation National Law (NSW), the Respondent is prohibited from providing a health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW). 4. Under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the Respondent is to pay the Applicant's costs as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 5. Under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and/or publication of the name of the person identified as Patient A in the Schedule to the Health Care Complaints Commission's Complaint and of Patient A's child referred to in the proceedings is prohibited.

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: 22 June 2023