Health Care Complaints Commission v Galanto

The evidence relied upon by the HCCC

1. In support of its Application, the HCCC relied upon the following material: 1. A volume of evidentiary material comprising the HCCC's primary evidence which was admitted into evidence and became Exhibit H1; 2. A bundle of further evidence in support of the HCCC's case including an Affidavit of Mr Peter McMahon Rogers affirmed 13 October 2021 which became Exhibit H2; 3. An evidentiary certificate from the Council which became Exhibit H3; 4. An evidentiary certificate from the Australia Health Practitioner Regulation Agency (AHPRA) which became Exhibit H4; and 5. Submissions on behalf of the HCCC accepted as an aide memoir which became Exhibit H5.

The structure of the proceedings

1. As the Tribunal has found that the Practitioner has been given notice of the hearing including the matters to be raised and penalties sought if the HCCC's complaints are established, s.165J(3) of the National Law permits the hearing to take place in her absence. [9]
2. Mr Bhasin, counsel who appeared for the HCCC, submitted that the Tribunal should proceed to determine whether the HCCC's complaints had been established and, if so, the appropriate protective orders in a single hearing. He cited decided authority setting out relevant considerations for the Tribunal in determining whether or not to do so. [10]
3. The Tribunal agrees with those submissions and finds that all relevant issues should be heard and determined in a single hearing. To the reasons supporting that conclusion as outlined by counsel on behalf of the HCCC, with which the Tribunal also agrees, we would add that the Practitioner is also on notice of the penalty now sought. [11] That is, the possible consequence if the HCCC's case is established.

Relevant Law

1. These are proceedings brought under Part 8 of the National Law.
2. As with all proceedings conducted under the National Law, the objectives and guiding principles in s.3 and particularly s.3A are of relevance. Section 3A provides: "Objective and Guiding Principles [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration."
3. It can be seen from the complaints earlier set out in this decision that Complaints One and Two contend that the Practitioner engaged in improper or unethical conduct and that she breached a condition of her registration. Complaint Three alleges that the Practitioner should be found to lack the necessary competence to practice nursing. Complaint Four contends that by her conduct with respect to the first two complaints, the Practitioner should be found to be guilty of professional misconduct.
4. The HCCC bears the onus of proof of each element of its complaint.
5. The purpose of protective orders made if a complaint is established is, however, not to punish the Practitioner. Primarily, the role of any protective order is to protect the public. [12]
6. The Tribunal must be satisfied that the complaints made by the HCCC are established to the appropriate standard of proof. That standard is discussed in many authorities and has generally been accepted to be one which requires the Tribunal to be comfortably satisfied on the balance of probabilities as explained in Briginshaw's case [13] a complaint is established. The Tribunal is not, however, bound by the rules of evidence. [14] It is, however, bound by the rules of natural justice in its conduct of proceedings heard and determined before it.
7. The background to the HCCC complaint has been briefly referred to earlier in these Reasons. It begins with a complaint by the Respondent's then employer, Opal Cardinal Freeman Aged Care (OCF), to AHPRA on 27 March 2019. [15] The complaint comprised two elements. First, that the Practitioner had failed to administer medication to three patients. Secondly, to hide her mistake she had later removed that medication from her work premises to her home. Further medication errors were noted during the Practitioner's time at OCF. That complaint led to proceedings pursuant to s.150 of the National Law which concluded on 30 April 2019 with orders that the Practitioner's ability to practice being made subject to conditions. One such condition was a requirement that the Practitioner practice under indirect supervision.
8. A Performance Assessment Report was required and on 29 July 2019, the Practitioner was assessed. [16] As a consequence of the Performance Assessment Report, the matter was referred to a Performance Review Panel, that Review being held on 10 December 2019. The Panel formed the view that there was a significant issue of public health and safety so the inquiry should be terminated and the matter referred back to the Council to enable a formal complaint to be made against the Practitioner. [17] On 19 December 2019, further proceedings took place pursuant to s.150 of the National Law and the Practitioner was ordered not to work as a registered nurse until further reviewed by the Council.
9. On 10 February 2020, the Council made a formal complaint to the HCCC regarding the breach of Practice Condition 2 by the Practitioner. That is, that she should practice under supervision. Subsequently on 17 June 2020, the Council made a further formal complaint against the Practitioner arising from the Performance Review Panel reference. [18]

Complaint One

1. The HCCC complaint related to the Practitioner's conduct when employed at the OCF facility on 19 and 20 March 2019. That evidence comprised statements by the Respondent's colleague, RN Edwin Vergara, and Ms Michelle Cabato, who was a Care Coordinator at the time at OCF. [19] The substance of that evidence was that Mr Vergara was approached at about 4.00 pm on 19 March 2019 by a colleague, RN Mar Tamayo, with 3 sachets of medication which had been found on the medication trolley on the third floor of the facility. Mr Vergara stated that the Practitioner had been rostered on the third floor that morning and presumably had failed to administer the medication to 3 different residents. Mr Vergara's evidence was further that at the time he was handed the medications, the Practitioner had returned to the facility and he assumed overheard the conversation between he and RN Mar Tamayo because she, the Practitioner, asked that he give her the medication which he did and following which she left the facility.
2. Mr Vergara reported the incident to the Care Coordinator at the time, Ms Michelle Cabato, who provided a statement to the Commission. [20] Ms Cabato's evidence was that on 19 March 2019 at about 6.00 pm, she was approached by Mr Vergara and Case Coordinator, RN Juvy Buluran, to whom the earlier incidents were reported. Following that report at 6.30 pm on 19 March 2019, Ms Cabato telephoned the Practitioner and requested that she return the medication sachets. Ms Cabato provided a written account of her conversation with the Practitioner to the Commission and the next morning she states she found an envelope containing the 3 sachets and a letter from the Practitioner recommending a solution to avoid medication being missed in future under the new system. [21]
3. On 22 March 2019, the HCCC was formally notified of the allegations against the Practitioner and on the same date the Practitioner was suspended with pay. She resigned on 26 March 2019. [22]
4. The Practitioner has given accounts of the events which took place. The only point of substance where her evidence relevantly differs from that of her colleague and the Care Coordinators already referred to, is a denial that she took the medication from RN Vergara and deliberately removed it from OCF; instead stating that she was given the medication by an RN who told her to "do whatever you want" with it. She states further that she handed the medication back to the RN but that the RN gave them back to her as she was entering the lift. [23]
5. The Practitioner took no part in the proceedings before us and that necessarily has consequences with respect to the weight that can be placed upon prior statements inconsistent with the statements of witnesses where those statements were placed in evidence before us. The evidence of RN Vergara is entirely consistent with his conduct and in relevant parts corroborated by Ms Cabato. Where the Practitioner's evidence differs from the evidence of those two witnesses, the Tribunal prefers their evidence. There are also the facts as counsel for the HCCC points out, the Practitioner admits that she failed to administer the 3 sachets of medication and concedes that one of the medications she removed from the facility was Aldactone (Spironolactone) [24] It follows that the Tribunal finds that each of the particulars alleged by the HCCC in Complaint One are as established: 1. First, that the Practitioner failed to administer 3 sachets of medication being the medications referred to in [1] of the particulars with respect to Complaint One; 2. Secondly, that the Practitioner inappropriately removed the 3 sachets of medication from OCF being a fact which irrespective of the circumstances in which it occurred is admitted by the Practitioner; and 3. Thirdly, that the Tribunal is satisfied that between the dates alleged, the Practitioner possessed Spironolactone, a prescribed restricted substance, within the meaning of s.4 of the Poisons and Therapeutic Goods Act being in a contravention of s.16 of that Act.
6. It is now necessary to determine whether in establishing the particulars set out for Complaint One, the Tribunal should find that the Practitioner is guilty of unsatisfactory professional conduct as alleged in Complaint One. That is, that the Practitioner engaged in "improper" or "unethical conduct" in the practice of her profession as a registered nurse. The meaning of "improper" or "unethical conduct" has not been defined in the National Law but has been considered by the Courts on numerous occasions. [25] The substance of those considerations appears to be that the term "improper" is not to be treated as a term of art. [26] In Byrne's case at pp.514-515, the High Court comprising Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend upon the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged defender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case."
7. The HCCC submitted that the Respondent's conduct in: 1. Failing to administer medication to patients in an aged care facility; 2. Removing such medication from an aged care facility; and 3. Removing medication that was a restricted substance from an aged care facility: was, individually and cumulatively improper and unethical conduct as it was not in accordance with propriety of behaviour, was abnormal or irregular and contrary to the expected moral standards of a nursing practitioner.
8. Counsel for the HCCC also referred the Tribunal to various nursing standards which he submitted the Practitioner's conduct breached. It is not necessary to repeat those references in this decision because the Tribunal is satisfied that for the reasons advanced in 34, (2) and (3), the practitioner is guilty of improper and unethical conduct in the practice of her profession as a nurse and it follows the Tribunal is satisfied that Complaint One is established.

Complaint Two

1. On 24 April 2019, the Council convened proceedings under s.150C of the National Law against the Practitioner.
2. As a consequence of those proceedings, conditions were placed upon the Practitioner's registration effective from 24 April 2019 including a condition (Condition 2) that required that she practice under supervision in accordance with the Council's Regulatory Supervision Policy in the following terms: "To practice under indirect supervision in accordance with the Nursing and Midwifery Council of NSW Regulatory Supervision Policy (as varied from time to time) and as subsequently determined by the appropriate review body."
3. The evidence primarily relied upon by the HCCC is to be found at Exhibit H1. [27] The HCCC also relied upon evidence from the Practitioner as recorded from time to time. That evidence establishes and the Tribunal finds as matters of fact as follows: 1. On 8 May 2019, the Council by phone and email informed the Practitioner's employer HAC of the supervision condition and the Council's supervision policy; 2. On 10 May 2019, the Practitioner returned a signed copy of her Conditions to Council acknowledging that she was aware of the conditions on her registration; 3. On 16 May 2019, the Practitioner returned a copy of her Conditions signed by her and her nominated supervisor, the Director of Nursing at HAC; 4. On 31 May 2019, the Council informed the Practitioner by email that the documents provided by her were incomplete as her supervisor's CV and CPD was required, and requested these by close of business on 7 June 2019; 5. On 13 June 2019, the Council requested the information again and informed the Practitioner that a failure to comply with that request may put her in breach of Practice Condition 2; 6. On 20 June 2019, the Council again by email and text message requested the relevant documentation from the Practitioner. The Practitioner was in addition informed that she was in the Council's opinion now in breach of Practice Condition 2; 7. On 21 June 2019, the Practitioner telephoned the Council and was advised that she was in breach of Practice Condition 2. The Practitioner apparently said that she was awaiting provision of the relevant documents from her proposed supervisor and had been reminding them of that need for some time. The Practitioner was asked to email this explanation to Council; 8. On 29 July 2019, the Council attempted to contact the Practitioner by telephone as the explanation or information earlier requested had not been received; 9. On 30 July 2019, as a consequence of the Council contacting the Practitioner's nominated supervisor directly, that supervisor emailed her CV and CPD to Council; 10. On 20 August 2019, Council informed the Practitioner by letter that her nomination was not successful and requesting that she nominate another supervisor by 30 August 2019; 11. On 29 August 2019 and subsequently on 10 September 2019, the Practitioner telephoned the Council; the upshot of those conversations being that on the later date the Practitioner advised that she did not think that she could provide an appropriate supervisor. She said she may stop practicing. Council advised that the monitoring process would be required while the practitioner remained practicing; 12. On 11 September 2019, the Practitioner advised the Council that she was on indefinite leave as she could not find a supervisor and intended to apply for different roles. Subsequently, on 12 December 2019, the Director of Nursing at HAC confirmed that the Practitioner had not worked since 28 August 2019 and that when she had worked there, there had always been another practitioner on site.
4. During the Performance Assessment Report which took place on 29 July 2019, [28] it is recorded at p.4 of the written assessment under the heading, "Conclusion", as follows: "It should be noted that Ms Galanto has conditions on her registration in place however was not able to articulate the details of these. It was evident that Ms Galanto has limited insight regarding the reason for the notification or concerns regarding her practice. Throughout the interview, it was noted that Ms Galanto had difficulty comprehending and responding to questions and demonstrated poor reflection on practice. She also showed limited understanding of potential strategies and resources to prevent further issues."
5. In the evidence the Practitioner provided regarding her compliance with Practice Condition 2 to the s.150C Review Panel on 19 December 2019, she admitted that she practiced while waiting for her supervisor to be approved. Her explanation was that this was because she had to keep reminding her supervisor and then that that supervisor and other available supervisors were on leave. She claimed to have been told by her supervisor that it was fine for her to practice while waiting for the supervisor to be approved.
6. The HAC roster from April to September 2019 provided in the HCCC evidence demonstrates that the Practitioner worked on each of the days particularised in Complaint Two and there can be no issue having regard to the evidence earlier referred to that there was no approved supervisor in place at those times. Consequently, the Tribunal finds that the particulars alleged in Complaint Two are established.
7. The breach by the Practitioner of a condition placed upon her registration is by definition unsatisfactory professional conduct in accordance with s.139B(1)(c)(i) of the National Law.
8. A practitioner's obligations scrupulously to observe conditions place upon their registration is well established. [29] Furthermore, a practitioner has an obligation to acquire an understanding of any conditions placed upon their registration. [30]
9. The evidence establishes and the Tribunal finds that she complied with neither of these requirements and further that that non-compliance continued in circumstances where she was reminded both of the requirement for compliance and the consequences of non-compliance. The Tribunal is satisfied on the basis of the particulars established that Complaint Two is established and that the Practitioner is guilty of unsatisfactory professional conduct as alleged in that complaint.

Complaint Three

1. The complaint seeks a finding from the Tribunal that the Practitioner is not competent within the meaning of s.139 of the National Law to practice as a nurse on the basis that she lacks the necessary knowledge and skill to do so. The particulars provided in relation to this complaint are extensive. They are based primarily upon the report of the performance assessment which took place on 29 July 2019; evidence which was given by the Practitioner in proceedings under s.150C of the National Law which were head by the Council on 19 December 2019 and records of HAC already noted as one of her employers. [31]
2. The Performance Assessment Report [32] is replete with instances where the Assessors recorded a failure by the Practitioner competently to perform or adequately understand the requirements necessary properly to perform her duties as a nurse. The HCCC contends that arising from the Performance Assessment Report on 29 July 2019, the particulars set out in 1, (b), (c) and (d) of the Particulars to Complaint Three are established. The Tribunal agrees. In addition, as part of that Performance Assessment Report, the Practitioner was asked to complete a "Medication Knowledge Written Assessment". Paragraph 2 of the Particulars to Complaint Three allege deficiencies in the Practitioner's performance of that aspect of the assessment. The Tribunal is satisfied that that is in fact the case and finds that those particulars are established.
3. The seriousness nature of the deficiencies identified by the Assessors in the Performance Assessment Report were amplified by additional evidence placed before the Tribunal, some of which we refer to in the following paragraphs of these Reasons. Turning first to the Assessors' report that included findings that the Practitioner: 1. Had limited insight regarding the concerns about her practice; 2. Had difficulty comprehending and responding to questions and demonstrate poor reflection of practice; 3. Showed limited understanding of potential strategies and practices to prevent further practice issues; 4. Lacked any insight into the issues raised by the compulsory notification; 5. Demonstrated a number of concerning deficits and was rated "not competent" in a clinical assessment for the care of elderly persons; 6. Was rated "not competent" and achieved an overall score of 29% in the medication knowledge competency written assessment, with sufficient deficits in her knowledge of medications that could lead to medication errors and harm patients in her care; and 7. Was unsafe to practice independently as a registered nurse and did not meet a number of the NMBA Registered Nurse Standards for practice.
4. In addition, records produced by her employers, HAC and OCF, noted a number of other alleged unsatisfactory practice issues. On 10 December 2019, the Council had convened a Performance Review Panel in response to the findings of the Performance Assessment Report referred to. That Panel was satisfied that there existed an issue of public health and safety that, in the Panel's opinion, required investigation by the Commission. The Panel was also satisfied that there was a prima facie case of professional misconduct by the Practitioner or unsatisfactory conduct by the Practitioner.
5. The Performance Review Panel's Report [33] recorded as counsel for the HCCC correctly submitted that the Practitioner: 1. Admitted it was a mistake remove a dressing without gloves and that she should have remembered it was a practical assessment; 2. Was unable to identify other areas of her practice requiring improvement; 3. Stated she does not usually exhibit such infection control standards; 4. Denied crushing and administering an Enteric coated tablet; 5. Denied failing to administer Somac; 6. Stated she would not normally swab a wound from outside to inside; and 7. Stated that she did not answer questions very well.
6. The matters and facts there stated and in addition the transcript of evidence of the Council proceedings pursuant to s.150 of the National Law which took place on 19 December 2019 support the HCCC's case and buttress the Tribunal's findings that the particulars in both [1] and [2] to Complaint Three are established.
7. The Tribunal must now consider whether the Practitioner is competent to practice as a health professional within the meaning of s.139 of the National Law. In making that determination, the Tribunal has had particular regard to the following evidence: 1. The evidence of the Performance Assessment Report recording the Practitioner's performance when assessed on 29 July 2019; 2. The Report of the Performance Review Panel dated 17 December 2019 recording the events of a hearing which took place on 10 December 2019 where the Practitioner attended and was accompanied by Ms Anne Samuelson, a professional officer; and 3. The transcript of evidence of the Council's proceedings pursuant to s.150 of the National Law which took place on 19 December 2019.
8. The particulars arising from this evidence which the Tribunal has found to be established demonstrate a significant deficiency in the Practitioner's competency to practice. That deficiency is such that it must lead the Tribunal to find and the Tribunal finds that the Practitioner lacks the appropriate knowledge and skill to practice as a nurse and it follows is not competent within the meaning of s.139 of the National Law to practice in that capacity.

Complaint Four

1. This complaint seeks a finding from the Tribunal that the Practitioner is guilty of professional misconduct within the terms of s.139E of the National Law. The HCCC contends that the particulars to its Complaints One and Two if, as they have been, are established then the Tribunal should find that the Practitioner has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration; and/or 2. Engaged in 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 the suspension or cancellation of the Practitioner's registration.
2. In determining whether the Practitioner's conduct amounts to professional misconduct, a number of principles apply, relevantly that: 1. There is no category of unsatisfactory misconduct which is not capable of forming professional misconduct; [34] 2. The traditional common law definition of "professional misconduct" is that "which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency"; [35] 3. Professional misconduct may be made out by deliberate departure from professional standards or "such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration"; [36] and 4. The gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards. [37]
3. The Tribunal is satisfied that in relation to Complaint One, the Practitioner's failure to administer medicine to patients in an aged care facility and upon that having been brought to her attention, her removal of that medicine from the facility involves a significant departure from the standard of proper ethical conduct.
4. In relation to Complaint Two, the Practitioner failed to comply with Practice Condition 2 when it was brought to her attention on more than one occasion that a failure to do so could, and ultimately did, lead to the suspension of her registration. Not only did that conduct show a willingness to breach the conditions imposed upon her but also potentially placed patients treated by her whilst unsupervised at risk. These matters satisfy the Tribunal that the Practitioner has engaged in unsatisfactory professional conduct which is of a sufficiently serious nature to justify cancellation of the Practitioner's registration and that that conduct further amounts to professional misconduct within the terms of s.139E of the National Law.

The consequences of the Tribunal's findings

1. The HCCC noting that the Practitioner is no longer registered as a nurse asks the Tribunal to find that in the event that she were still registered it would have suspended or cancelled her registration. In the latter event, the HCCC asks that the Tribunal determine the period during which it would have disqualified the Practitioner from being registered. There is no issue that the National Law permits the Tribunal to undertake this course.
2. As Basten JA noted in Prakash [38] 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."
3. The Tribunal notes in considering the appropriate protective orders to be made that the particulars relied on by the Commission have been established and a number of relevant conclusions inevitably flow from those findings. These include: 1. That upon discovering that she had failed to administer medicine to three aged care patients, rather than return to the aged care facility and seek to remedy that situation, the Practitioner sought to remove the evidence that that had occurred from the facility. That conduct is sufficient for the Tribunal to find and the Tribunal does find that the Practitioner poses a risk to the safety of her patients or potential patients; 2. The Practitioner's failure to adhere to the conditions placed upon her registration in particular to practice without supervision is further conduct which the Tribunal finds placed the safety of her patients at risk; and 3. The Practitioner's failure to demonstrate any insight into her failings.
4. To these matters, the Tribunal would add the lack of competency exhibited by the Practitioner in undertaking the written requirements of her performance assessment. The Tribunal therefore finds that if the Practitioner was registered at the time of this hearing, the Tribunal would have cancelled her registration. Further, the Tribunal finds that disqualification of the Practitioner from applying for re-registration for a period of two (2) years is in the circumstances of this case appropriate. That is necessary to ensure that the public is protected from the Practitioner returning to practice and is further necessary to ensure public faith in the standards of the profession. As the Tribunal noted in Guo [39] at [47] in relation to a practitioner found to lack competence: "In this case, the admission has been made and in the Tribunal's view the evidence is clear that Ms Guo is not competent at least in terms of knowledge and skill, communication skill and command of English to practice nursing. In these circumstances, the Tribunal considers that the cancellation of Ms Guo's registration is the primary order it must make. To do otherwise would fly in the face of the first objective of the National Registration and Accreditation Scheme which is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered."
5. The Tribunal's view there expressed is apposite to the evidence this Tribunal has found is established in relation to the Practitioner's competence in terms of knowledge and skill, communication skills and understanding of her obligations to obtain registration and practice as a nurse.

Costs

1. The HCCC seeks an order for costs as assessed or agreed.
2. The general rule in relation to costs pursuant to Clause 13, Schedule 5D of the National Law is that costs follow the event. There is no basis here that that should not occur. [40] An order that the Practitioner pay the costs of the HCCC on the basis sought will be made.

Orders 1. Pursuant to s.149C(4)(a) of the Health Practitioner Regulation Law (NSW) if Marissa Galanto (the Practitioner) was still registered the Tribunal would have cancelled her registration. 2. Pursuant to s.149C(4)(b) of the National Law, the Practitioner is disqualified from being registered as a nurse for a period of 2 years from the date of this Order. 3. The Practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

Endnotes

1. Tribunal Exhibit T1.
2. Documents being part of the documents contained in Exhibit H1.
3. Exhibit H1, Tab 5.
4. Exhibit H1, Tab 37.
5. Exhibit H1, Tab 12.
6. Exhibit H1, Tab 9.
7. Exhibit H1, Tab 7.
8. Exhibit H1, Tab 11.
9. See also Health Care Complaints Commission v Hutchison [2014] NSWCATOD 151 at 3.
10. Lucire v Health Care Complaints Commission [2011] NSWCA 99 per Basten JA (McColl JA and Sackville AJA agreeing) at [60].
11. Counsel's written submissions dated 22 October 2021, Exhibit H5 at [13].
12. Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 326 at [55].
13. Briginshaw v Briginshaw (1938) 60 CLR 366; see also Jautam v Health Care Complaints Commission [2021] NSWSC 85 per Payne JA at [86]-[87].
14. See s.38(2) of the Civil Administrative and Tribunal Act 2013 (NSW) and Clause 2 of Schedule 5D of the National Law.
15. Exhibit H1, Tab 3.
16. Exhibit H1, Tab 37.
17. Exhibit H1, Tab 12.
18. Exhibit H1, Tabs 7 and 11.
19. Exhibit H1, Tabs 13 to 17.
20. Exhibit H1, Tab 13.
21. Exhibit H1, Tabs 14 and 16, respectively.
22. Exhibit H1, Tabs 17 and 2.
23. Exhibit H1, Tab 5 at [19] and Tab 6 at pp.6-7. See also her evidence recorded by the Council on 10 December 2019 at Tab 12, p.5.
24. Exhibit H1, Tab 6 at pp.6 and 9; Tab 6 at p.9.
25. See, for example, Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [67]-[69]; Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 at [47]-[49]; and Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]-[55].
26. R v Byrnes (1995) 183 CLR 501 at 514-5.
27. See Tabs 18 to 36.
28. Exhibit H1, Tab 37.
29. Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [74].
30. HCCC v Saedlounia [2013] NSWMT 13 at [106].
31. Exhibit H1 at Tabs 37, 10 and 40.
32. Exhibit H1 at Tab 37.
33. Exhibit H1, Tab 12.
34. Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]-[21].
35. Allison v General Council of Medical Education and Registration [1984] 1 QB 750.
36. Pillai v Messiter [No 2] (1989) 16 NSWLR 197.
37. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
38. Prakash v Health Care Complaints Commission [2006] NSWCA 153.
39. HCCC v Guo [2011] NSWNMT 29.
40. See for example, Health Care Complaints Commission v Philipiah [2013] NSWCA 34. 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: 24 February 2022