Health Care Complaints Commission v FQZ

NCAT Occupational|2023-04-17

(1) The disclosure of the name and address of the person listed in the Schedule to the complaint filed with the application for disciplinary findings and orders in this matter is prohibited under s 64 of the Civil and Administrative Tribunal Act 2013.

(2) The disclosure of the name of the Respondent to this matter, or any information or material which may tend to identify him, including the name of any hospital at which he has been employed, is prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, and the Respondent shall be referred to as FQZ for the purposes of these proceedings.

reasons for decision

By amended application dated 6 April 2023, the Health Care Complaints Commission ("the Commission") applied for a disciplinary finding and orders under the Health Practitioner Regulation National Law (NSW) ("the National Law") specifically relevant to the profession of nursing against a previously registered practitioner identified in these proceedings as FQZ ("the Respondent").
The Director of Proceedings of the Commission had determined to prosecute a number of complaints against the Respondent under s 90B(1) of the Health Care Complaints Act 1993 (NSW) alleging that the Respondent had been guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law and had been convicted or made the subject of criminal findings pursuant to s 144(a) of the National Law and is not a suitable person to hold registration under s 144(e) of the National Law.

Orders Sought

The Commission seeks the following orders: 1. If the Respondent were still registered as a nurse practitioner, the Tribunal would have cancelled his registration as a nurse with a disqualification period of six to eight years from the date of the Tribunal's decision under s 149C(4)(a) and (b) of the National Law. 2. The National Health Practitioner Board with which the Respondent was registered is to record the fact that the Tribunal would have cancelled the Respondent's registration in the National Register kept by the Board. 3. An order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993 (NSW), for the same period as any disqualification period imposed. 4. An order that the Respondent pay the Commission's costs under Clause 13 of Schedule 5D of the National Law.

Hearing on 17 April 2023

The matter was set down for hearing on 17 April 2023. Prior to the hearing the Respondent had participated in directions hearings before the Tribunal and had indicated his intention not to file any documents. However, he had written a letter dated 21 February 2023 to the Registrar of the Tribunal which we will deal with further below.
On the day of the hearing the Respondent appeared briefly by audio-visual link (AVL) at the commencement of the proceedings and immediately indicated that he did not wish to take part in the proceedings. He told the Tribunal that he accepted that he had done wrong decades ago, that he took responsibility for his actions, and would never pursue nursing again. He stated that as a working nurse he had been professional, and understood that he was an unsuitable person to continue the practice of nursing.
The Respondent asked to be immediately excused from the proceedings which occurred. Before he ended his participation, and with the co-operation of the solicitor advocate for the Commission, Ms Bailey, the Tribunal informed the Respondent that his letter of 21 February 2023, referred to above, would be admitted into evidence.
The Respondent then ceased to have any further participation in the proceedings.

Relevant Legislative Provisions

The relevant provisions of the National Law relied upon are as follows: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. … (3) In this section - "relevant event", in relation to a registered health practitioner means - (a) the practitioner is charged with - (i) a scheduled medicine offence; or (ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or (b) the practitioner is convicted of or is the subject of a finding of guilt for - (i) a scheduled medicine offence; or (ii) an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere; 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following -- … (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. … (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied -- … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; … (4) If the person is no longer registered, the Tribunal may - (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently. … (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered.

Complaint 1

The Commission relies on s 144(a) of the National Law in Complaint 1 on the ground that the Respondent has been convicted of a criminal offence in New South Wales.
The documentary evidence before us records that the Respondent was on 23 August 2021 convicted in the District Court of New South Wales of: 1. a criminal offence pursuant to s 66A of the Crimes Act 1900 ("the Crimes Act") concerning sexual intercourse with a child between the age of seven and nine years during a period 1987 to 1989; 2. a similar offence committed during the period 1987 to 1990; and 3. a third offence in breach of s 61D(1) of the Crimes Act in respect of sexual intercourse with a child aged between four and six years without consent during the period 1984 to 1986.
The Respondent was at the time of the commission of these offences aged between 20 and 25 years old.
The Respondent was sentenced by the District Court to an aggregate term of imprisonment consisting of a term of seven years with a non-parole period of four years and three months commencing on 23 August 2021.
The Respondent would, accordingly, be eligible for release on parole in November 2025 with the sentence expiring in August 2028.
We are satisfied on the evidence presented by the Commission, and find, that the Respondent was convicted of criminal offences in New South Wales supporting the making of a complaint under s 144(a) of the National Law.
We are satisfied that notwithstanding the fact that the Respondent ceased to be a registered nurse in July 2020, not seeking to be re-registered, the phrase "registered health practitioner" in s 144 is to be interpreted to include a formerly registered health practitioner as provided in s 139G of the National Law and Ghosh v Health Care Complaints Commission [2020] NSWCA 353; 104 NSWLR 107 at [84]. We accept the Commission's submission that it would be contrary to the public interest if the Tribunal is precluded from making protective orders against a registered practitioner or a person who was, but is no longer, or was not at the relevant time, registered as a health practitioner. We also note that generally a conviction may not occur until long periods after offending.
Further, we are satisfied that the phrase "has been" convicted in s 144(a) of the National Law includes the conviction of a registered practitioner whether the conviction occurred before, during or after the person's registration.
Accordingly, we accept that the Commission has established, and we find, that Complaint 1 has been proven. The Respondent was charged and convicted of a criminal offences punishable by significant terms of imprisonment.

Complaint 2

Complaint 2 is that the Respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law in that the Respondent failed to notify the National Health Practitioner Board ("the National Board") of the charges that were laid against him by the New South Wales police within seven days of those events. The Nursing and Midwifery Board of Australia is the relevant National Board.
As is set out above, s 139B(1)(b) of the National Law provides that unsatisfactory professional conduct by a registered health practitioner includes a "contravention by the practitioner (whether by act or omission) of a provision of this law". Section 130(1) of the National Law then relevantly provides that registered health practitioners must give the National Board written notice within seven days of being aware of being charged with an offence punishable by 12 months imprisonment or more.
The Commission argues that provisions requiring the notification of certain types of criminal charges to the National Board are a significant tool in the regulatory framework and that by not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. It argues that these provisions are part of the protective architecture of the National Law.
On the evidence before the Tribunal it is clear that on 12 February 2020 the Respondent was charged with five offences (one offence contrary to s 61E(2) of the Crimes Act and four offences contrary to s 66A of the Crimes Act). Each offence was punishable by 12 months imprisonment or more.
The Commission therefore argues that the Respondent should have, but did not, notify the National Board of these criminal charges within seven days, or at all.
The offences which were charged on Wednesday 12 February 2020, and the events immediately thereafter, are central to Complaint 2.
On 12 February 2020, whilst the Respondent was on duty at the hospital where he was employed, he was arrested and escorted from the premises by New South Wales detectives for questioning.
Later that same day information was received by the hospital from the New South Wales Police to the effect that the Respondent had been arrested, charged and released on Police bail to appear before a New South Wales Magistrates Court within the following two weeks to face charges of an historical nature of aggravated assault and abuse involving a minor.
A briefing note prepared for the Chief Executive of the relevant Local Health District on 14 February 2020 recommending the suspension from duty without pay of the Respondent recorded that a risk assessment had been carried out after the reports of the Respondent's arrest and charges being laid which showed that it was inappropriate for the Respondent to continue working as a Registered Nurse whilst the matter was further investigated.
The briefing note further recorded as follows: "Communication was undertaken with AHPRA on Thursday 13 February who noted communication with regards to [the Respondent] through the Health Care Complaints Commission (HCCC) and the Nursing Midwifery Board, it was acknowledged that action would be imminent from either of these agencies."
All of this occurred prior to 19 February 2022 and so it is abundantly clear that prior to the expiration of seven days from the charges being laid the National Board, the Australian Health Practitioners Regulatory Authority ("AHPRA") and the Commission had been made aware of the fact that the Respondent had been charged with serious criminal offences.
In our view, the principles underpinning the statutory provisions relied upon by the Commission were, in this case, not undermined in any material way as all the relevant regulatory agencies, and the Respondent's employer, were immediately aware of the charges and acted to assess the risk, and took appropriate action to protect the health and safety of the public at the earliest possible stage, all within the 7 day period contemplated by the National Law. None of those regulatory bodies were deprived of the opportunity to take immediate action to protect the health and safety of the public at the earliest stage.
It is correct, and we accept, that the Respondent himself did not notify the National Board but, in the circumstances, non-compliance by the Respondent was, in our view, of a very technical nature.
The purpose of the legislation as emphasised to us by the Commission was not undermined. It is not clear what further purpose would have been served by the Respondent also notifying the National Board.
In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [22]-[27] the Tribunal rejected a submission by the relevant practitioner that there was a discretion as to whether a contravention of the kind set out in s 139B(1)(b) of the National Law constitutes unsatisfactory professional conduct. The Tribunal held that once the contravention by the practitioner of the provision of the National Law has been established as a matter of fact, the section designates that contravention as unsatisfactory professional conduct.
However, in our view, the legislative scheme is unlikely to have intended the imposition of a sanction on a practitioner for unsatisfactory professional conduct where the regulatory bodies had the relevant notice in the time period specified and there is no effect on their ability to act immediately.
Although strictly speaking Complaint 2 has been made out, we do not in the circumstances of this case regard it appropriate to impose any sanction for the Respondent's failure.
We also note that we are surprised that the Commission pursued a complaint of this nature with full knowledge of the evidence it has tendered, the events set out above that show that knowledge of the charges was immediately shared and there was no material detriment to anyone as a result of the Respondent's failure. It is difficult to see what benefit derives from pursuing the Complaint in those circumstances.

Complaint 3

Complaint 3 is that the Respondent is otherwise not a suitable person to hold registration as a nurse.
In addition to the background to Complaint 1 which is relied upon by the Commission, it pointed to evidence, which we accept, that the Respondent also engaged in serious sexual misconduct in respect of the same minor on two additional occasions during the period October 1985 to 1987, and also separately between 1987 and 1990 which were not the subject of convictions. This conduct was admitted by the Respondent in the District Court.
The Commission argued that the finding of unsuitability should be made in respect of that conduct in the circumstances where: 1. the Respondent engaged in sexual intercourse with a child under 10 years old; 2. the community regards that conduct as abhorrent; 3. registered nurses should have strong ethical values and act with integrity; 4. having regard to the Respondent's proven and admitted conduct he is not an appropriate person to practise as a nurse; 5. patients place a great deal of trust in nurses touching them when they may be unwell, sleeping, sedated, or unconscious; and 6. to maintain trust in the nursing profession, it is not in the public interest for the Respondent to practise.
The conduct the subject of Complaint 3, as admitted by the Respondent in the District Court, was, in the end, not the subject of convictions. It was conduct taken into account for the purposes of the sentence imposed for the other offences he had committed. The conduct was serious misconduct by the Respondent and is to be denounced.

If Registered Would Have Cancelled by Reason of Convictions

The relevant principles to be applied in this case include that the jurisdiction of the Tribunal is protective in nature, and not punitive: Health Care Complaints Commission v Litchfield [1997] NSWCA 264; (1997) 41 NSWLR 630 at 637. In the exercise of its protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in that profession and the protection of the community: Gayed v Walton [1997] NSWCA 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12.
In addition, the purpose of the proceedings includes the need to deter others from engaging in similar conduct: NSW Bar Association v Meakes [2006] NSWCA 340 at [114].
As pointed out above, the Commission seeks an order that the Tribunal would have cancelled the Respondent's registration under s 149C(4)(a) of the National Law in that the circumstances of the offences render the Respondent unfit in the public interest to practise as provided in s 149C(1)(c). Pursuant to sub-section (4)(a), the Tribunal has a discretion as to whether to make an order as sought.
In order to suspend or cancel registration, ss 149C(1)(c) and 149C(4)(a) of the National Law require an assessment and satisfaction by the Tribunal that "the circumstances of the offence" render the Respondent "unfit in the public interest to practise" the Respondent's profession.
The meaning of "unfit … to practise" is not defined in the National Law. Whether the Respondent is "unfit" is to be decided at the time of the hearing, and the circumstances of the offence and all the circumstances impacting upon current fitness are relevant considerations.
In Health Care Complaints Commission v Bautista [2023] NSWCATOD 65 the Tribunal considered the approach to s 149C(1)(c) as follows: "50. In Health Care Complaints Commission v Morris [2022] NSWCATOD 120 the Tribunal summarised (at [82]-[85]) some of the relevant authorities concerning the interpretation of s 149C(1)(c) of the National Law thus: [82] In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14] the Tribunal stated: "The National Law does not contain a definition of unfitness to practise in the public interest or unsuitability for registration. These terms, like all others in the Act, are interpreted in light of the objects of the Act in s 3 and the specific objective and guiding principle in the NSW version of the National Law contained in s 3A." [83] The following principles emerge from the Tribunal's decision in Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]: (1) The term "public interest" is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]; (2) s 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of the "practitioner's current fitness to practise": Chen v Health Care Complaints Commission [2017] NSWCA 186; 95 NSWLR 334 at [67]-[69]; (3) In construing s 149C(1)(c) the Tribunal needs to take into account the objectives of the National Law which relevantly include "the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered". Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether, as a result of having committed an offence they have behaved so egregiously as to render the subject practitioner "unfit in the public interest to practise the practitioner's profession"; (4) The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances. [84] Whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]. [85] "Public interest" also may be taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within them: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]. However, we are cognisant of the remarks of Harrison J in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (albeit in the context of proceedings under s 150 of the National Law) of the concept of public interest being linked to the health and safety of the public. 51. The precise meaning of the phrase "in the public interest" requires further attention in light of the decision of the Court of Appeal in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 ("Pridgeon"), where it was held (at [68]) in respect of that phrase used in s 150 of the National Law as follows: ""First, in the context of Subdivision 7, the reference to the "public interest" should be understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted. In the present case, the relevant public interest must be in the conduct by Dr Pridgeon of his profession as a medical practitioner. There may, arguably, be some wider, unspecified public interest in limiting the potential for the rule of law to be undermined by conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine which the National Law regulates. However, the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned." 52. It will be seen that in respect of the relevant public interest, the Court drew a distinction between conduct by a practitioner as a medical practitioner, and conduct that is unrelated to the practice of medicine which the National Law regulates, being conduct, in that case, potentially in defiance of an order of a court undermining the administration of justice. 53. That distinction in our view is important particularly when, as required by s 149C(1)(c): (1) the circumstances of the offence are to be considered; (2) there must be a sufficient relatedness between those circumstances so as to "render" the practitioner unfit; and (3) the fitness or otherwise must be in the public interest "to practise" the practitioner's profession. 54. The full scope and potential impact of the judgment in Pridgeon has been examined in some detail (and in a most helpful manner) by the Tribunal in Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [61]-[94]. We agree that it does not appear that the Court in Pridgeon sought to overturn earlier approaches to the meaning of the phrase. The Court did not state that the offending conduct must have occurred in the practise of medicine."
In respect of our approach in this matter the Commission also emphasised the following passage from Health Care Complaints Commission v Limboro [2018] NSWCATOD 117: "22. 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."
Taking into account the required approach emphasised in these authorities we are of the view and conclude that the circumstances of the offence, sexual abuse of a young and vulnerable girl, sufficiently relate to the practice of nursing where the practitioner would inevitably be responsible for providing nursing care which involves physical contact with patients, both young and old, with a definite and proper understanding of the professional boundaries which need to be maintained.
In our view, the nature of the conduct the subject of the convictions and the circumstances in which the offending was perpetrated, weigh heavily in favour of rendering the Respondent unfit in the public interest to practise nursing.
The Respondent's victim was very young. The offending occurred over a number of years and continued after the Respondent was a Registered Nurse. The Respondent took advantage of a young girl in a family environment.
The seriousness of the offences, and their nature, are reflected in the sentences imposed by the District Court. As stated by the sentencing judge, "the community regards with abhorrence the sexual assault on children. Offences of this type are of the utmost seriousness".
The Commission also pointed to the Code of Conduct for Nurses, which we note the Respondent was aware of, requiring that nurses "practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practise and/or damage the reputation of the profession". The Commission argued that the serious nature of the Respondent's sexual offences committed on a vulnerable child and the length of time over which they occurred, would cause most reasonable members of the public to fear placing themselves, or their young loved ones, in the Respondent's care.
We accept the force of these submissions.
We are satisfied that the convictions and circumstances surrounding the offences render the Respondent unfit in the public interest to practise nursing. We take into account specifically the maintenance of standards of the profession, the preservation of public confidence in that profession such that it is able to maintain the trust of the public. It is also important that there be general deterrence, a reminder to other members of the profession of the public interest in the maintenance of high professional standards (see, e.g., Health Care Complaints Commission v Marsh [2016] NSWCATOD 155 at [27]) and denouncement of the conduct.
We have come to this view notwithstanding the fact that the offending occurred over 23 years ago and that the Respondent was at the time a relatively young man. We also accept that the District Court in sentencing assessed the Respondent's prospects of rehabilitation as good and that the psychological report referred to by the sentencing Judge also considered the risk of recidivism on the part of the Respondent at the time as low. However, the protection of the public extends beyond the risk of the conduct being repeated.
In the written correspondence to the Tribunal on 21 February 2023, to which we refer above, the Respondent further recorded for the Tribunal and "all other stakeholders" that he had not reoffended for over three decades, and most definitely never intended to reoffend again. He also stated that he wished to inform the Tribunal that for the entire time that he carried out his duties as a registered nurse he always carried himself with the utmost professionalism and always did the very best he could for all his patients. This was also followed for the people he worked with and the people he reported to. The Respondent stated that he wished to draw to the attention of the Tribunal that the Code of Conduct set out by the New South Wales Department of Health, he mostly worked under, was always very important to him at all times and he was always most vigilant to live and work by those codes.
The Respondent concluded in his correspondence that if the Tribunal made findings that he was considered an unsuitable person for the purposes of carrying out health care for any period of time, he wished to state that he will always respect that decision and any obligations placed upon him.
In his correspondence to the Tribunal the Respondent further stated that following charges being laid against him he concluded that he would never practise in health care of any kind for the remainder of his life so that by June 2020 he did not renew his registration and no longer considered himself to be a registered nurse.
Although the statements in the letter of 21 February 2023 are untested in the sense that they were not made in sworn evidence before the Tribunal they are consistent with the evidence and findings in the District Court and we give them weight in our overall assessment of suitability.
In our view, the public protection encompassing the broader goal of safety through the setting and maintaining of professional standards and public confidence in the profession of nursing outweigh the factors referred to above which weigh against a conclusion that the offences and circumstances render the Respondent unfit to practise.
The protective nature of the Tribunal's jurisdiction make it necessary in our view to send the strongest of messages to others in the profession of the unacceptability of criminal conduct of the nature engaged in by the Respondent.
We are satisfied that if the Respondent was still registered the Tribunal would have cancelled the registration under s 149C(4)(a) of the National Law for the reasons set out above.
In the circumstances it is not necessary to address the alternative basis relied upon by the Commission arising from Complaint 3 to make findings as to suitability to hold registration as a nurse.

Prohibition Order

The Commission also sought a prohibition order under s 149C(5)(a) of the National Law because, it submitted, the Respondent poses a substantial risk to the health of members of the public.
The Tribunal analysed the prerequisites to making a prohibition order in some detail in Health Care Complaints Commission v Phuoc Loc Le [2022] NSWCATOD 85 as follows: "110. The pre-requisites to making a prohibition order authorises on the question of whether a practitioner poses a "substantial" risk are set out in the decision of Health Care Complaints Commission v Jason Vuong [2022] NSWCATOD 83 at [84] - [90] as follows: As is clear from the National Law there are two pre-requisites to be established if a prohibition order is to be made. First, the Tribunal must have determined that the practitioner the subject of disciplinary proceedings should have her/his registration suspended or cancelled. Secondly, the Tribunal must be satisfied that the person poses a risk to the health and safety of members of the public. In Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 at [139] the Tribunal referred to a substantial risk being a risk that is material, and real or apparent on the evidence, not without substance or speculative by reference to Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96] and Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [7]. We note in Brush that the Tribunal found a "material" risk the conduct that subject of the complaint might be repeated but it was not a substantial risk and therefore declined to make the order sought. In Choi at [75] the Tribunal notes: The HCCC also seeks a prohibition order pursuant to s 149C(5) of the National Law to prevent the respondent from providing any health service. The Tribunal accepts that there is a "substantial risk to the health of members of the public" which is a precondition to the making of such an order, and that it is a risk that is real or apparent on the evidence presented and not a risk that is without substance, or which is fancy or speculative: Health Care Complaints Commission v Sharah [2015] NSWCATOD 99. We note that in Taylor the Tribunal adopted the assessment of risk referred to in Choi but observed the Tribunal had to be satisfied that there is a "substantial risk". The Tribunal determined that it did not have appropriate expert evidence, nor was there any evidence that the medical practitioner the subject of the disciplinary proceedings had engaged in any inappropriate behaviour since his retirement. The Tribunal declined to make a prohibition order. In Health Care Complaints Commission v Tane (No 2) [2020] NSWCATOD 159 the Tribunal held that a nurse, who had engaged in inappropriate conduct with patients in a drug and alcohol facility including sharing personal information with the patients, seeking to borrow large sums of money from one patient and a loan of $6000 from a second patient, posed a substantial risk of engaging in like conduct if she engaged in certain health services. The Tribunal's finding of substantial risk was based on its assessment the nurse may engage in a similar manner with other patients, and because of her personal circumstances were such that she may not be in a fit and proper state to provide those services. In his oral submissions Mr Fuller referred us to the decisions of the Tribunal in Health Care Complaints Commission v Grieve [2016] NSWCATOD 28 at [99] - [114]. The decisions in these matters turn on the facts in each case. In Shrimpton a substantial risk was identified if the nurse, who had behaved inappropriately with vulnerable patients was able to engage in health care services involving patient care. In Grieve the Tribunal suspended the practitioner's registration and found a lack of insight into the offending conduct. 111. In this case the HCCC assert there is a "real and material" risk to the public if a prohibition order is not made by reference to the decisions in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 as well as the authorities discussed above. In Menz the Tribunal explained at [18] - [19]: Because of our decision to make an order under s 149C(4), the power to make a prohibition order under s 149C(5) can be exercised: s 149C(5A). That power can only be exercised if we are satisfied that Mr Menz poses a "substantial risk to the health of members of the public" (emphasis added). Neither party addressed in their respective submissions the meaning of the expression "substantial risk" as used in s 149C(5) of the National Law. The Macquarie Dictionary offers a number of definitions. These include "…material nature; real or actual; of ample or considerable amount, quantity…". In IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; 83 ALJR 585, Gummow, Hayne and Heydon JJ, commented at [154] that the word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Their Honours stated at [154] that which of the various possible shades of meaning the word bears is determined by the context. Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services. 112. After discussing the fact that the nurse had a criminal conviction for sexual assault of a 14-year-old girl, but had not offended, again the Tribunal said that his risk of so doing was low the Tribunal concluded at [21]-[22]. It falls to the Commission to establish that Mr Menz poses a substantial risk to the health of members of the public if he were to be involved in the provision of health services. At best, the available evidence supports a finding that he may pose a low risk to children. The question raised is whether the available evidence supports a finding that Mr Menz poses a real or actual risk to the health or safety of children in the provision of health services. Whether a risk assessed to be low can be properly characterised as substantial is a question of judgement and degree. We find on the available evidence that the Commission has failed to discharge the evidentiary burden of establishing that the risk posed by Mr Menz to the health and safety of the public in the provision of health services can be properly characterised as substantial. It follows that the power to make a prohibition order cannot be exercised. 113. Here the HCCC submit the practitioner poses a substantial risk by virtue of the lack of insight into the shortcomings of his knowledge and conduct. 114. We do not find that the HCCC has satisfied the evidentiary onus to warrant the making of a prohibition order. Any shortcomings in the practitioner's knowledge will be subject of careful evaluation on any re-instatement application. It is to be remembered that the events the subject this complaint occurred between 2017 and 2019. The practitioner has been suspended since April 2020. There is simply no evidence that he has, or is likely to, engage in a health service which poses a substantial risk to the public. We therefore will not make a prohibition order."
The prospect of the Respondent providing health services as defined in s 4 of the Health Care Complaints Act 1993 now or in the foreseeable future so as to pose a risk to the health of members of the public is in our view very low. The risk that the conduct the subject of the Complaints in this matter might be repeated is in our view extremely low.
Apart from the Respondent's current circumstances the relationship with the family of his victim ended a long time ago, he did not reoffend after 1990, worked successfully in a hospital after that and until his arrest in 2020 and is never likely to be able to work with children again.
As recorded in the evidence presented to us a bar was placed on the Respondent's Working With Children Check by the Office of the Children's Guardian in February 2020 that he was not to be employed or continue to be employed as a person in child related work in accordance with s 9 of the Child Protection (Working With Children) Act 2012.
In our view, the matters raised by the Commission in support of this claim fall short of meeting the high threshold, namely, that the Respondent poses a substantial risk to the health of members of the public, even leaving aside his current custodial sentence. We decline to make such an order.

Should an order be made pursuant to s 149C(4)(b) of the National Law?

The Commission also seeks an order pursuant to s 149C(4)(b) of the National Law that the Respondent be disqualified from being registered in the health profession for a period of 6 to 8 years "to address the risk of recurrence, deter other practitioners from engaging in such conduct and maintain public confidence in the profession".
The Respondent is currently approximately 59 years old, having been born in September 1964. He will remain in custody pursuant to the District Court orders until 22 November 2025 or, failing parole, until 22 August 2028.
In either event, the Respondent is unlikely to be able to meet "Recency of Practice" standards.
The Respondent has acknowledged and expressly states that he will never practise nursing again. He did not seek to renew his registration even prior to his conviction of the offences in 2021.
We also take into account the matters we have referred to above concerning the absence of risk and the historical nature of the offending.
Further, no submission was made to us and no evidence addressed to support the period of 6 to 8 years claimed by the Commission.
By the time the Respondent is released from prison he will not have practised for some 5 years and will be well over 60 years old.
In our view, and we are satisfied, that it is highly unlikely that the Respondent will ever, because of his age, his lack of ongoing professional development, and his stated intention never to practise, to seek to be reinstated to the register.
In the circumstances, we are not satisfied that any order should be made under s 149C(4)(b) to protect the public against misconduct by the Respondent.
However, as has been made clear in the decisions referred to above, the protective nature of the jurisdiction is wider and, in our view, a period of disqualification from being registered for a period of three years is appropriate so as to denounce the serious misconduct engaged in by the Respondent, the conduct the subject of Complaints 1 and 2, and for the purposes of general deterrence.

Costs

The Commission sought an order for costs which would usually follow if successful in establishing the complaints.
The Respondent questioned the Commission's claim pointing to the fact that he had not sought to renew his registration after being charged in 2022 and that, in the circumstances, there was no need to bring the proceedings against him.
As will appear from our reasoning above we intend to make an order to the effect that if the Respondent was still registered the Tribunal would have cancelled his registration. Such an order is only available to be made by the Tribunal and has been considered as appropriate.
The Respondent also pointed to the very difficult financial position he was and is in after his suspension from work without pay in February 2020 and paying any legal costs would be very difficult at this time. We accept that an order for costs will cause hardship to the Respondent.
However, the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 held at [42] that, "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".
In addition, an award of costs is intended to compensate a successful party and not to penalise an unsuccessful party, although that is often the practical effect of such an order (Philipiah, at [44]).
Although the Commission has not succeeded in all its claims we are of the view that bringing of those failed claims did not materially add to the time and costs associated with the proceedings and do not disentitle the Commission to its costs.
Accordingly, there will be an order for costs in the favour of the Commission that the Respondent pay its costs as agreed or assessed. It will no doubt take into account the circumstances of the Respondent in the manner and extent of the enforcement of the order.

Orders 1. An order pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) that if the Respondent were still registered, the Tribunal would have cancelled his registration. 2. Pursuant to s 149C(4)(b) of the Health Practitioner Regulation National Law (NSW), the Respondent is disqualified from being registered as a nurse for a period of 3 years. 3. Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the Nursing and Midwifery Board of Australia is to record the fact that the Tribunal would have cancelled the Respondent's registration in the National Register kept by the Board. 4. Pursuant to cl 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the Respondent is to pay the Health Care Complaints Commission's costs of the proceedings, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2023

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