Health Care Complaints Commission v GGO

Health Care Complaints Commission v GGO - [2024] NSWCATOD 50 - NSWCATOD 2024 case summary — Zoe

The submissions of the applicant

In the HCCC submissions, the applicant made the following submissions: 1. the circumstances of the first offence render the respondent unfit in the public interest to practise as a paramedic for the following reasons: 1. the nature and gravity of the offence: Parliament has made it clear that this is a grave offence by setting a maximum penalty of 5 years imprisonment. The sexual touching offence involved the respondent, after having already been told by the victim that she was "sick of people touching her", approaching her, sitting behind her with his legs either side of her, reaching his hand up her leg and touching the outside of her underwear, and simultaneously putting his other hand through the back of her dress to try to touch her breast. As described by the sentencing judge, the sexual touching offence occurred during a "persistent course of conduct in pursing the [victim] in a sexual way on the evening of the offence" even "despite having been plainly rebuffed by the victim". The respondent also admitted to the use of a prohibited drug on the night of the offence, namely cocaine; 2. the period of time since the offence was committed: the offending occurred almost 5 years ago, and the conviction occurred around 2 and a half years ago. Whilst the offence is no longer immediately recent, the amount of time that has passed is not such that the impact of the conviction on the respondent's fitness for registration is significantly diminished; 3. the conviction and sentence imposed: the respondent, as a first time offender, was convicted of the offence and sentenced to a community corrections order for 2 years, with supervision conditions; 4. the respondent's behaviour after committing the offence: the respondent apologised to the victim for misreading the situation in a recorded phone conversation approximately 7 months after the offending. Approximately 10 months after the offending, the respondent denied there had been any sexual activity between himself and the complainant when asked by the police. The respondent failed to notify the National Board within 7 days of being charged, and in fact did not ever make a notification of the charges, although he was suspended by his workplace shortly after being charged. The respondent raised at the sentencing proceedings that poor mental health relating to his relationship breakdown contributed to the offending. However, there is limited evidence in relation to attempts to treat his mental health, such as ongoing psychological assistance, other than letters from his general practitioner outlining his prescribing of sertraline and diazepam for anxiety back in 2021. The respondent included an apology to the victim in his letter to the District Court at sentencing and stated that he was solely responsible for what occurred that night. Further, the second offence was committed approximately 5 months into his community corrections order for this offence; 5. the respondent's explanation: In the sentencing assessment report, the respondent is said to have minimised his behaviour by emphasising the influence of his alcohol and cocaine use on the night of the offence. This report also noted the respondent expressed in a psychological assessment that an accumulation of stressors occurred in the lead up of the offending, including an increase in difficult work circumstances, a "terrible" relationship with his ex-wife, "denial" about the end of their relationship and fear of losing his children; 6. the potential relevance of the offence to health practice: a paramedic's responsibilities regularly include touching patients who may be unwell, intoxicated, incapacitated or unconscious. Often these patients are in a state of heightened vulnerability. A strong understanding of appropriate boundaries and consent are vital to the practice of paramedicine. The Code of Conduct (which is admissible evidence of what constitutes appropriate professional conduct for the profession) outlines, under the heading "professional values and qualities": "Practitioners must be ethical and trustworthy. Patients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion." The respondent's conduct is inconsistent with the professional and ethical obligations expected of a paramedic; 1. the circumstances of the second offence render the respondent unfit in the public interest to practise as a paramedic for the following reasons: 1. the nature and gravity of the offence: Parliament has made it clear that this is a serious offence by setting a maximum penalty of 2 years imprisonment. In this instance, the respondent breached the condition that he not-contact the victim unless via email and only in relation to the children, by making offensive allegations of a sexual nature regarding her personal life in front of one of their children. The remarks were offensive, involved misogynistic language and yelling, were made outside the respondent's property on a busy roadway, and were directed as statements made to the child about her mother. Not only was the victim shaken by the events, she was fearful for the safety of their children. The child who was present also described being scared of the respondent because of the yelling, and trying to run away because she was frightened. The gravity of the offending lies not only in the seriousness of the conduct, but also the practitioner's wilful breach of two court orders: the ADV order and the community corrections order which he received in relation to the first conviction; 2. the period of time since the offence was committed: this offence occurred approximately 2 years ago. The conviction occurred in January 2023. The time that has passed has not diminished the relevance of the offending to the respondent's fitness to practice as a paramedic; 3. the conviction and sentence imposed: the respondent again was convicted and received a further community corrections order for 14 months; 4. the respondent's behaviour after committing the offence: the respondent initially denied the conduct in his interview with police and was adamant that there had been no swearing in front of the children, and that he would "never use that kind of language". The respondent later pleaded guilty, and in a letter to the Local Court apologised to the victim, stating his actions were "disrespectful", acknowledging the potential to harm the victim and their daughter, and the safety in their co-parenting responsibilities. The respondent also completed a White Ribbon Knowledge Assessment "Prevention of Violence Against Women for Workplaces". The respondent has not been charged with any further offences since this time; 5. the respondent's explanation: the respondent has not provided any specific explanations for the conduct, but did accept responsibility in his letter to the Local Court at sentence; 6. the potential relevance of the offence to health practice: the gravity of this offence lies not only in the serious conduct itself, but also the wilful breach of two court orders. The latter raises concerns generally about the respondent's compliance with the various requirements placed on registered health practitioners. The nature of the conduct, being both an instance of domestic violence, and involving the use of misogynist language, is also inconsistent with the Code of Conduct, in particular the items listed under the hearing "cultural safety for all communities"; 1. considered together, the first and second convictions show a disregard for the law and a disturbing pattern regarding the respondent's attitude towards women. This is a relevant consideration in relation to both the Tribunal's consideration of whether the circumstance of the offending render the respondent unfit in the public interest to be registered as a paramedic for the following reasons: 1. the behaviour is inconsistent with the high standard expected of paramedics regarding understandings of consent, boundaries and respect for women, and as such may present a risk to future patients; and 2. the nature of the conduct has the ability to diminish of public confidence in the profession if not appropriately condemned; 1. there is no evidence of the respondent before the Tribunal that alternative protective orders, such as suspension or conditions, would appropriately protect the public.
In her oral submissions counsel for the applicant submitted the Tribunal should order a non-review period of one year.

[13]

Orders

We make the following orders: 1. The respondent's registration is cancelled. 2. The respondent may not apply for review of order (1) above for one year from the date of this decision. 3. There is no order as to the costs of the proceedings. 4. The disclosure of the names of the following persons, together with any information or material which could identify these persons, whether by itself or with other information and material, is prohibited: 1. the victim of the offence under s 61KC(a) of the Crimes Act 1900 (NSW) of which the respondent was convicted on 26 November 2021; 2. the respondent's ex-wife; 3. the respondent's three children. 1. For the purposes of these proceedings, the name of the respondent is anonymised as GGO. 2. Subject to order (8), the disclosure of the name of the respondent, together with any information or material which could identify the respondent, whether by itself or with other information and material, is prohibited. 3. Subject to order (8), access to and disclosure of documents and evidence filed with the Tribunal in these proceedings is restricted to the parties and their legal representatives. 4. Orders (6) and (7) do not preclude the applicant or any of its officers or employees from disclosing: 1. the respondent's name; 2. the decisions, reasons for decision and orders of the Tribunal in these proceedings; 3. documents and evidence filed with the Tribunal in these proceedings; and 4. information about the proceedings, decisions, documents and evidence referred to in (b) and (c) above to any of the entities in the Schedule in connection with the applicant's exercise of its functions under the Health Practitioner Regulation National Law (NSW) (as amended or substituted from time to time) and all regulations and rules made under or in connection with those Acts (as amended or substituted). Schedule 1. The Australian Health Practitioner Regulation Agency. 2. The Paramedicine Council of New South Wales. 3. The Paramedicine Board of Australia.

Parties

Applicant/Plaintiff:

Health Care Complaints Commission

Respondent/Defendant:

GGO

Legislation Cited (5)

Crimes Act 1900(NSW)

Children (Criminal Proceedings) Act 1987(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Crimes (Domestic and Personal Violence) Act 2007(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Cases Cited (11)

Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Wood [2020] NSWCATOD 60 Health Care Complaints Commission v ZXY [2021] NSWCATOD 136 Lee v Health Care Complaints Commission [2012] NSWCA 80 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) GGO (Respondent) Representation: Counsel: A Petrie (Applicant)

The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law

In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [19]-[21], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [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 … 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 at [35], Meagher JA (with Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: "[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."

The exercise of the power of the Tribunal to cancel the registration of the practitioner and to specify a non-review period

In Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [21]-[22], Basten JA (with Leeming JA at [23] agreeing) considered the operation of s 149C of the National Law: "[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. …"
In Chen at [88], Payne JA (with Basten JA at [1] and Leeming JA at [23] agreeing) considered the operation of s 149C(7) of the National Law: "[88] … a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order."
The Tribunal has applied the following principles in determining whether a practitioner is unfit in the public interest to practise the practitioner's profession within s 149C(1)(c) of the National Law: 1. the National Law does not contain a definition of "unfit in the public interest to practise" and this term should be interpreted in light of the objects in s 3 and the specific objective and guiding principle in s 3A of the National Law: Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14]; 2. whether a practitioner is unfit in the public interest to practise 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]; 3. it is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role, however where there is no nexus a more careful inquiry into the public interest factors may be required. There may be instances in which 'public interest' is 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 involving violence, sexual assault or the sexual exploitation of children, for example, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17].

The exercise of the power of the Tribunal to make a non-publication order under s 64 of the NCAT Act

The relevant power of the Tribunal to restrict the publication of certain matters in proceedings before it is found in s 64 of the NCAT Act which relevantly provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), … (4) For the purposes of this section, 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.
In Health Care Complaints Commission v ZXY [2021] NSWCATOD 136 (ZXY) at [121] the Tribunal noted that the authorities on the making of non-publication orders in disciplinary proceedings under the National Law stress that unless there are special or out of the ordinary circumstances the principles of open justice should prevail; but the Tribunal has found a real risk that disclosure of the practitioner's name could lead to suicide has overridden the general principles of open justice. The Tribunal at [134]-[135] over the opposition of the HCCC made a non-publication order after undertaking a risk assessment on the evidence and finding that the practitioner's health and well-being override open justice principles.

(2009) 74 NSWLR 523