Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the name of the respondent is prohibited. The respondent is to be known by the pseudonym "FXH".
[2]
Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
[3]
Reasons for decision
The Health Care Complaints Commission (HCCC) has referred complaints to the Tribunal for orders under the Health Practitioner Regulation National Law (NSW) (National Law) against the respondent, a former registered nurse (the practitioner).
The first complaint is that the practitioner has been convicted of a criminal offence in New South Wales (NSW), being two counts of possessing child abuse material contrary to section 91H(2) of the Crimes Act 1900 (NSW).
The second complaint is that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct because he has contravened section 130(1) of the National Law by failing to notify the National Board that he had been charged before a New South Wales Court with an offence punishable by 12 months imprisonment or more, within 7 days of becoming aware of the fact.
The third complaint is that the practitioner is otherwise unsuitable to be a registered nurse based on the behaviour and circumstances outlined in the facts tendered at the respondent's sentence in the Local Court.
In the orders made on 31 March 2023, the Tribunal also made an order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting the disclosure of the name of Person A listed in the Schedule to the complaint attached to the application. In that regard, we have referred to the person as "Person A" in these reasons.
Given the nature of the criminal offences which the practitioner has been convicted of and that the practitioner is presently in jail, we have also made orders anonymising the name of the practitioner. To protect the anonymity of practitioner, we have also referred to the parties by reference to their relationships to the practitioner and each other and we have refrained from identifying the location of various places. It is noted that the HCCC indicated that they may make an application to set aside the prohibition in the future once the practitioner has served his sentence.
Clause 2 of Sch 5D of the National Law provides:
2 Proceedings generally [NSW]
In proceedings before it, … the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit.
In Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106, Macfarlan JA (with whom McColl JA and Sackville AJA agreed) held (at [22]-[23]):
"22 In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid).
23 Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2)."
In Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127], Leeming JA (with whom Basten and Gleeson JJA agreed) stated:
"… neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT."
It is in the context of those principles that we have proceeded to consider the complaints.
[4]
Complaint 1 - Criminal Conviction
Section 144(a) of the National Law provides as follows:
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.
A certificate of conviction (Evidence Act 1995 (NSW), s 178), dated 28 June 2022, has been provided by the HCCC (Exhibit 1, p 53). The certificate confirms that the practitioner was convicted two offences of possessing child abuse material contrary to section 91H(2) of the Crimes Act.
In relation to the first offence, the practitioner was found to have possessed child abuse material on a HP laptop computer between 3pm and 6pm on 24 March 2022. For that offence, he was sentenced to a term of imprisonment of 2 years to commence on 28 June 2022 and expiring on 27 June 2024, with a non-parole period of 12 months.
In relation to the second offence, the practitioner was found to have possessed child abuse material between 3pm on 20 March 2022 and 4pm on 24 March 2022. For that offence, the practitioner was sentenced to a term of imprisonment of 2 years to commence on 28 June 2022 and expiring on 27 June 2024 with a non-parole period of 12 months.
On that basis, we find that the practitioner has been convicted of a criminal offence and the complaint is proven.
[5]
Complaint 2 - Unsatisfactory Professional Conduct or Professional Misconduct
Section 144(b) of the National Law provides as follows:
144 Grounds for complaint about registered health practitioner [NSW]
The following complaints may be made about a registered health practitioner -
…
(b) Unsatisfactory professional conduct or professional misconduct
A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
Section 139B(1)(b) provides that contravention by a practitioner of a provision of the National Law amounts to unsatisfactory professional conduct includes.
In an email provided by the HCCC (Exhibit 1, p 71), the Australian Health Practitioner Regulation Agency confirms that the practitioner did not provide a notice under s 130 of the National Law. Section 130 of the National Law requires that a registered health practitioner must, within 7 days after becoming aware that a relevant event has occurred, give the National Board established for the practitioner's profession written notice of the event. A relevant event includes if the practitioner is charged with an offence punishable by 12 months imprisonment or more. In this case, the offences attracted a maximum penalty on indictment of 10 years. The practitioner does not dispute that there was no notice given within 7 days, as is required by s 130 of the National Law.
On that basis we find the complaint of unsatisfactory professional conduct is proven.
[6]
Complaint 3 - The Practitioner's Fitness to Practise Nursing
Section 144(e) of the National Law provides that:
144 Grounds for complaint about registered health practitioner [NSW]
The following complaints may be made about a registered health practitioner -
…
(e) Suitable person
A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
In Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17, the Tribunal held at [31]:
"… The fact of [the practitioner's] conviction is not relevant to the assessment of whether [the practitioner] "is otherwise not a suitable person". Nonetheless, the offending conduct which gave rise to that conduct remains relevant to that assessment."
The HCCC submits that the facts sheet tendered on sentence in the Local Court, as well as the practitioner's interview with police, demonstrate that he is unsuitable to be a registered nurse.
Having considered the police fact sheet (Exhibit 1, pp 44-48), the transcript of the police interview conducted with the practitioner (Exhibit 3), the sentencing assessment report (Exhibit 1, pp 64-68) and a case note report from Corrective Services New South Wales (Exhibit 1, pp 69-70), we are not satisfied that the practitioner is suitable to hold registration as a nurse.
In the transcript of interview conducted by police, the practitioner admits that he "jumped the fence" of the property where Person A lived with his wife, went around to the back of their house, put his phone against their window and recorded what was going on inside their house (Exhibit 3, p 4). Person A was known to the practitioner. The practitioner was a trainee minister and Person A had been the practitioner's teacher and mentor for some time (Exhibit 3, p 45). During the police interview, the practitioner initially minimised that he had accessed the material. On inspection of the practitioner's phone, it was discovered the practitioner had possession of 100 files of children as young as under 10 years old engaged in various sex acts, including oral sex, anal sex, and masturbation videos (Exhibit 3, p 41). A file was located on the practitioner's laptop that depicted a child, between 1 and 2 years old, engaged in sexual intercourse with an adult (Exhibit 3, p 33). The practitioner had viewed child abuse material and he masturbated to it (Exhibit 3, p 39). The practitioner had a practice of going to a file sharing site, viewing child abuse materials for masturbation, and then clearing the link (Exhibit 3, p 42). The practitioner had been accessing material for the previous 12-18 months (Exhibit 3, p 46).
The interview also reveals that the practitioner had taken a photograph of an adult person he had previously lived with, while that person had no clothes on and without that person's permission.
The sentencing report states that the practitioner was living with his parents at the time he was awaiting sentencing and had not disclosed the nature of his offending and that he has been unable to identify the contributing factors relating to the offending or the seriousness of the offences. Importantly, the report notes that the practitioner failed to link the consequences of his offending on the children who featured in the material. Despite the lack of insight, the report states that the practitioner's offending does not appear predatory in nature and that he has been assessed as a low risk of reoffending.
At the hearing, the practitioner stated he did not propose to return to the profession of nursing and that he now recognises that nursing is not a suitable profession for him.
The Tribunal concludes that the practitioner is not fit to practise nursing. The conduct in relation to Person A reveals that the practitioner had taken advantage of his relationship with Person A and was aware of where the bedroom was located because he had previously been in Person A's home. The offending only stopped when Person A noticed a mobile phone camera outside the bedroom window. The practitioner also exposed himself to a potential breach of the trust of others around him by using a file sharing site which operates on the basis that material is provided to the practitioner in exchange for the practitioner uploading material he had. That conduct is contrary to the expectations for nurses, which involves people receiving care, including vulnerable people and children. There must be complete trust in the profession that patients will be protected from sexual exploitation and physical harm. Further, criminal actions, such as the ones committed by this practitioner in his personal life, adversely impact the profession's good reputation.
[7]
Orders Sought
The HCCC proposes that the following orders should be made by the Tribunal in relation to the complaint.
The HCCC further submits the complaints are serious and warrant:
1. An order under section pursuant to s 149C(1)(c) and/or s 149C(1)(d) of the National Law, that the practitioner's registration be cancelled with a non-review period of 4 years.
2. An order prohibiting the practitioner from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993 (NSW), for the same period as any non-review period imposed.
3. An order under clause 13 of Schedule 5D of the National Law that the practitioner pay the HCCC's costs as agreed or assessed.
The practitioner did not object to the making of those orders and, as stated above, does not propose to return to nursing in the future.
Sections 149A-149C of the National Law set out the orders that the Tribunal can make once it has been found that the complaint against the practitioner has been proved.
The power to make those orders is protective rather than punitive.
Section 3(2)(a) of the National Law provides that one of the objectives of the national registration scheme is:
3 Objectives
(2) …
(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; …
In Lee v Health Care Complaints Commission [2012] NSWCA 80, the Court of Appeal held (at [20]-[21]):
"20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points:
1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.
2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.
3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.
21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
In Health Care Complaints Commission v Do [2014] NSWCA 307, where the Court of Appeal said (at [35]):
"The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
[8]
Cancellation of Registration and Non-review Period
Relevantly, section s 149C(1)(c) and s 149C(1)(d) of the National Law provide as follows:
149C Tribunal may suspend or cancel registration in certain cases [NSW]
(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied -
…
(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or
(d) the practitioner is not a suitable person for registration in the practitioner's profession.
Having considered the evidence, we find that the practitioner's registration should be cancelled.
The practitioner's sentence expires on 27 June 2024 with a non-parole period of 12 months. The practitioner became eligible for parole on 27 June 2023. If granted, the practitioner will be on parole for a year and in jeopardy of returning to custody for any breach. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA noted at [21] that
"… Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it."
In HCCC v Piper [2014] NSWCATOD 62, the Tribunal said (at [48]):
"... [T]he object of protection includes deterring the practitioner from repeating the conduct and significantly, in this case, deterring others who may consider engaging in similar conduct (NSW Bar Association v Hamman (1999) NSWCA 404)."
The practitioner did not object to the cancellation of his registration or to the length of the non-review period being 4 years.
We are of the view that in the circumstances, and for the protection of the public and the maintenance of proper professional standards, the practitioner's registration should be cancelled. There is no evidence that the practitioner has undertaken rehabilitation in relation to sex offending. The case notes report from Corrective Services New South Wales, dated 24 June 2022, indicates that the practitioner may not be eligible for sex offenders programs in jail. In that regard, the practitioner confirmed at the hearing that he had not undertaken any sex offender program while in jail. The practitioner indicated at the hearing that he did have some clearer insight into the reasons for his offending. However, it is unclear what those insights are and the steps taken in relation to rehabilitation. The reputation of the nursing profession would be damaged if the practitioner's licence was not cancelled, in the absence of evidence of the reformation of the practitioner's character.
In our view, a period of 4 years is also an appropriate non-review period. The practitioner should have known his conduct was wrong. Even though the offences were committed outside of the practitioner's profession, the nature of the offences committed and the circumstances in which they were committed are serious. There is limited evidence before us to demonstrate that the practitioner will not repeat the offending in the future. A non-review period of 4 years will allow some time for the practitioner to commence appropriate treatment.
[9]
Prohibition Order
Having determined to cancel the practitioner's registration, the Tribunal also has the power to make a prohibition order if we are satisfied that the practitioner poses a substantial risk to the health of members of the public.
Section 149C(5), (5A) of the National Law provides as follows
(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following -
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;
(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Note -
Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
(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.
Before considering whether to make a prohibition order, the Tribunal must be satisfied that the practitioner poses "a substantial risk to the health of members of the public". That is a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75].
We consider that the practitioner would pose a substantial risk to the health of members of the public. The substantial risk posed by the practitioner arises from the combination of his sexual interest in children, his lack of impulse control demonstrated by his behaviour relating to Person A and his former housemate, the lack of insight into his offending, and the lack of evidence relating to steps taken in relation to treatment.
There is also a risk that the practitioner poses a risk in relation to children and vulnerable people.
We find that the practitioner poses a substantial risk to the health of members of the public and it is appropriate to make the protective order disqualifying the practitioner from providing a health service for a period of 4 years.
[10]
Costs
The HCCC seeks an order that the practitioner pay the HCCC's costs as agreed or assessed.
The Tribunal has power to order costs, as conferred by clause 13 of Schedule 5D of the National Law. Generally, costs of proceedings before the Tribunal follow the event unless there has been some disentitling conduct by the HCCC in the conduct of the proceedings: Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
The HCCC proceeded with this referral in an appropriate way and there was no disentitling conduct in the way that the HCCC conducted the proceedings. On that basis, we make the order for costs.
[11]
Orders
The Tribunal makes the following orders:
1. The respondent's registration is cancelled with a non-review period of 4 years from the date of this order.
2. The respondent is prohibited from providing any health service as defined in section 4 of the Health Care Complaints Act 1993 (NSW) for a period of 4 years from the date of the making of this order.
3. The respondent is to pay the Health Care Complaints Commission's costs of the proceedings, as agreed or assessed.
4. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the name of the respondent is prohibited. The respondent is to be known by the pseudonym "FXH".
[12]
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
[13]
Amendments
20 July 2023 - Coversheet - name of Applicant's Counsel corrected.
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: 20 July 2023