Health Care Complaints Commission v Gott

NCAT Occupational|2023-03-06

of NSW (No 2) [2015] NSWCATOD 115 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Gayed v Walton [1997] NSWCA 121 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 Health Care Complaints Commission v Morris [2022] NSWCATOD 120 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 Qasim v Health Care Complaints Commission [2015] NSWCA 282 R v Gott (Local Court (NSW), Feather LCM, 9 March 2022, unrep) Sudath v Health Care Complaints Commission [2012] NSWCA 171 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Naomi Louise Gott (Respondent) Representation: Counsel: E Lambert (Applicant)

Solicitors: Health Care Complaints Commission (Applicant) New South Wales Nurses and Midwives' Association (Respondent) File Number(s): 2022/00272429 Publication restriction: On 6 March 2023, an order was made under ss 64(1)(a) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) that there be no publication or disclosure of any evidence given in the proceedings connected to: (a) Any third party's history of sexual trauma or trauma generally; and (b) The identity of or any identifiable details of any third party perpetrators or alleged perpetrators of trauma or crimes.

Introduction

This is an application to the Tribunal by the Health Care Complaints Commission (HCCC) for disciplinary findings and orders against the Respondent, Naomi Gott, following a determination by the Director of Proceedings of the HCCC to prosecute Complaints against the Respondent. Ms Gott was a registered nurse from 19 September 2019 until 22 August 2022 when her registration was suspended.
The Complaints against the Respondent are that pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW) (National Law) she has been convicted of a criminal offence in NSW and that she is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law in that she contravened s 130(1) of the National Law.
The HCCC bears the onus of proof of the Complaints. The standard of proof in disciplinary proceedings is on the balance of probabilities with a sufficient degree of certainty having regard to the seriousness of the allegations made, which is recognised as the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41; Gautam v Health Care Complaints Commission [2021] NSWCA 85; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 at [24].
If the Tribunal finds the Complaints against the Respondent to have been proved, the HCCC seeks an order pursuant to s 149C(1)(c) of the National Law suspending the Respondent's registration for a period of six months and an order that certain conditions be placed on her registration upon the expiration of the suspension order.
In these reasons the Applicant is referred to as the Applicant or the HCCC and the Respondent is referred to as the Respondent or Ms Gott.

Material before the Tribunal

The HCCC relied on: 1. A bundle of documents (in two volumes) provided to the Tribunal on 24 January 2023 (Exhibit A1); 2. An evidentiary certificate relating to Ms Gott's registration dated 27 February 2023 (Exhibit A2); and 3. The transcript of Sentencing Remarks by Magistrate Feather in the Local Court in Katoomba in R v Naomi GOTT on 9 March 2022 (Exhibit A3).
The Respondent objected to the admission of some of the material in Exhibit A1, namely statements made by various persons for the purposes of criminal proceedings against Ms Gott. The objection was made on the ground that they were not relevant and on the ground that, because Ms Gott pleaded guilty in those proceedings, the witnesses were not ultimately called and their evidence was not tested. As will be seen later in these reasons, despite her guilty plea, Ms Gott now denies that some of the conduct underlying her conviction occurred. As such, we consider the statements are relevant and they were admitted, subject to weight, which is addressed later in these reasons.
Ms Gott gave evidence and was cross-examined. She also relied on: 1. A bundle of documents provided to the Tribunal on 25 January 2023 (Exhibit R1); 2. A letter dated 18 January 2023 from Ms Caroline Issa, a Registered Psychologist (Exhibit R2); 3. An academic transcript from the Australian Catholic University issued on 18 January 2023 (Exhibit R3); and 4. Tabs 4-8 of a bundle of documents titled "Disclosure Documents served by the Health Care Complaints Commission" (Exhibit R4).

Relevant Legislation

It is convenient to set out below those provisions of the National Law relevant to this application.
Section 3 of the National Law provides, relevantly: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; … (2) The objectives of the national registration and accreditation scheme are - (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; …
Section 3A of the National Law, which is an additional provision for NSW, relevantly provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3B of the National Law, which is also an additional provision for NSW, relevantly provides: 3B Objective and guiding principle [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.
A "NSW provision" is defined in s 5 of the National Law as: 5 Definitions (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation.
Section 130 of the National Law states 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 means - (a) in relation to a registered health practitioner - (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; …
Section 139B of the National Law, which is an additional provision for NSW, relevantly provides: 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) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
Section 144 of the National Law, which is an additional provision for NSW, sets out the grounds for complaint which may be made against health practitioners, including: 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. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. …
Section 149 of the National Law, which is an additional provision for NSW, relevantly provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if - (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal.
Section 149A of the National Law, which is an additional provision for NSW, (which is in the same Subdivision as s 149) provides, relevantly: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - … (b) impose the conditions it considers appropriate on the practitioner's registration;
Section 149C of the National Law, which is an additional provision for NSW, (which is in the same Subdivision as s 149) provides: 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; …

Facts which are not in dispute

The following facts are not in dispute and we find they are proved to the requisite civil standard.
In 2014, the Respondent pleaded guilty to two counts of dishonestly obtaining financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). At the time of the offences, in 2013, the Respondent was working in the real estate industry. The circumstances of the offences were that she submitted claim forms for the refund of unclaimed bond monies that belonged to others, purporting to be the claimant of those monies and directed the monies into her personal bank account. Ms Gott was sentenced to a good behaviour bond for a period of 18 months and ordered to pay compensation in the amount of $9,899.96.
Ms Gott was employed as a Practice Manager/Receptionist, as well as an Assistant Dental Nurse, at a Dental Practice from approximately May 2015 to August 2019.
Ms Gott obtained a Bachelor of Nursing from Western Sydney University in 2018 and was registered as a nurse on 19 September 2019.
Ms Gott was employed as a Registered Nurse, Casual, at United Protestant Association of New South Wales - Ascott Gardens Orange & Prunes Lodge Molong from November 2019 to February 2020 and as a Registered Nurse Permanent Part-Time at St John of God - Hawkesbury Hospital Windsor from February 2020 to July 2021. From July 2021 she continued to work at St John of God Hospital on a casual basis as well as working at NSW Health - Nepean Hospital as a Registered Nurse/Student Midwife Permanent Part-Time.
On 27 July 2020, Ms Gott was charged with the following offences, alleged to have occurred over the period July 2018 to August 2019 when she was employed at the Dental Practice: 1. 47 counts of steal property of master/employer contrary to s 156 of the Crimes Act 1900; and 2. 25 counts of cause unauthorised computer function with intent to commit serious offence contrary to s 308C(1) of the Crimes Act 1900.
Ms Gott notified AHPRA of the charges on 9 October 2020.
On 9 March 2022, Ms Gott pleaded guilty to one count of steal property of master/employer contrary to s 156 of the Crimes Act 1900 in that between 10 December 2018 and 11 July 2019 she stole certain property, to wit, $18,600 cash, the property of a Dental Practice, being a clerk of that Dental Practice.
The Fact Sheet that was the agreed fact sheet relied on at the Sentencing Hearing stated: "4.The business practice in terms of cash payments was as follows: when the business took cash payments from clients, the cash was taken by reception and placed within a purple pencil case in a drawer under the desk acting as a till. The amount received would be entered on the computer system and a corresponding receipt issued to the client. Collected cash payments were generally banked on a weekly basis. To bank the money, a bank deposit slip would be created by whomever was doing the banking and the corresponding cash would be taken from the purple pencil case. Together they would be sealed in a plastic Westpac deposit slip and taken to the bank to be deposited in the owner's bank account. 5. Between 10th December 2018 and 11th July 2019 the accused on approximately 40 occasions accessed the banking system and created banking deposit slips. This had the effect of removing the amount from the final bank deposit slip that would be printed at time cash payments were taken to the bank. At the same time, the corresponding cash amount would be taken from the purple pencil case and stolen by the Accused. Neither the banking deposit slip nor the cash for that amount would make it to the bank as required."
Ms Gott was sentenced to 12 months imprisonment to be served by way of intensive correction in the community and was ordered to pay compensation in the amount of $11,600 to the Dental Practice (an insurance payout having already been made in the sum of $7,000).
In his sentencing remarks, Magistrate Feather said: "In August 2019 just over 12 months after the victims took control of the practice they engaged the services of an accountant, they were concerned about discrepancies and monies that had been uncounted for. That investigation revealed a number of discrepancies in the banking system of the business, in relation particularly to cash payments. You pleaded guilty to on at least it would seem 40 occasions or approximately 40 occasions taking money to which you were not entitled, that is cash that had been paid to that business by patients of the business. The usual practice was that any cash taken by the reception was placed in a purple pencil case in a drawer under the desk, that was effectively acting as a till. The amount received would be entered on the computer system and a corresponding receipt issued to the client. And collected cash payments were generally banked on a weekly basis. You accessed the banking system and creating banking deposit slips and that had the effect, this is on 40 occasions of removing the amount from the final bank deposit slip that would be printed at the time cash payments were taken to the bank. And at the same time you would take corresponding cash amounts from the purple pencil case and stole those monies from your employer. The total amount that you stole from your employer was the sum of $18,600. That is a significant amount of money. There was some not insignificant degree of planning that was involved in this offending and it was a gross breach of trust on your part. That is, an employer in a position of authority that you were in within the practice you were being trusted to ensure that the monies that were received by the practice were properly banked to the practice's bank account. And as I say this was a gross breach of trust."
Ms Gott notified AHPRA of the conviction on 14 March 2022.
Following Ms Gott's notification of her charges and her subsequent conviction, the Nursing and Midwifery Council of New South Wales (Council) conducted three proceedings under s 150 of the National Law on 16 November 2020, 11 April 2022 and 22 August 2022. On the first two of those occasions, the Council was not satisfied it was appropriate to take action under s 150(1) of the National Law. On 22 August 2022 the Council suspended Ms Gott's registration under s 150(1)(a) of the National Law.

Ms Gott's evidence

Ms Gott also gave evidence at the hearing and relied on a document she described as a "reflection" which is really a statement of facts mixed with submissions prepared for the purposes of the proceedings. She noted that she had previously provided two separate "reflections" (which are of a similar nature) that she had prepared for the purposes of the s 150 hearings and explained that, as time has gone by, she can see that her reflection continues and evolves over time. Ms Gott was also cross-examined.
Some of Ms Gott's evidence was slightly different to the statements of fact in her earlier "reflection" documents, which also differed slightly from each other. However, we understood her evidence was as follows.
Ms Gott is a survivor of childhood sexual abuse that commenced at a very early age. From an early age, she says she learned to protect herself from people in positions of trust and power over her by doing as she was told which, she said, was a defence mechanism. She says she has suffered complex post-traumatic stress disorder for most of her life.
She said that, until 2013, she had spent her life wanting to help others. However, she always felt that she wasn't good enough: the pain and overwhelming failure she felt always held her back. She was desperate to prove that she was better than she felt and she believes this caused her to "fall into the wrong group", making her easily led in a desperate attempt to fit in.
In terms of her 2014 conviction, she says that she pleaded guilty at the first possible opportunity and accepted that her behaviour was questionable. Looking back, she can see that she was just following what others were doing. She didn't think to, or have the courage to, expose the wrongdoing. In cross-examination she accepted that she had moved bond monies repayable to other persons into her personal bank account. She said that this was "standard behaviour" and she went along with it on two occasions. She "followed the crowd". She said that other staff also did this, but she accepted that did not take away from what she had done. She now knows that what she did was wrong, but she doesn't think she fully appreciated that it was wrong at the time. She didn't give it the thought she should have. She explained that at this time her sister had been diagnosed with advanced Neimann-Pick Type C disease (which she described as an early onset of dementia) and she was helping her mother to support her sister and her sister's children, as well as her own children (we return to this further below). She accepted that the offences were probably financially motivated. When asked why she entered a guilty plea, she said that she did so because she did commit the offences and accepted responsibility for her actions. She said that she had reflected on the impact of her actions. She said she lost her reputation, but also that she recognised the money belonged to someone else and it could have been important to them, she had no right to take it and she shouldn't have. It had a big impact on her own life and the life of her family.
She said that in 2013 she began treatment with a psychiatrist, Dr Gordana Jovanova at St John of God. This was the first time, she says, that she was able to see she was more than her past and she had the skills that could allow her to help others who had experienced a similar childhood as her own. She has spent many years under the treatment of psychiatrists and psychologists who have, over the years, helped her to come to terms with her childhood trauma. This has enabled her to build new strategies so that she could deal with the unwanted side effects of the behaviours she had previously adopted to help her cope with the effects of her childhood trauma.
In terms of the offence for which she pleaded guilty and was convicted in 2022, Ms Gott says that she has, in fact, always denied stealing the money from the Dental Practice for her own use or at all.
By way of background, she explained that she took the position at the Dental Practice as it was a largely clinical role. She says, feeling vulnerable after her 2014 conviction, she felt she needed to be in a role not dealing with finances. She was originally employed as a dental assistant and was to work one day a week at the front desk. However, when the practice was sold in 2018 her role changed to being mostly administrative.
She says that she was asked by the original owner of the practice to receipt some cash payments, using a different method. She says the new owner of the practice also asked her to receipt some cash differently and then give the cash to him directly or place the cash into an envelope titled "coffee money" for the owner and his wife to use.
She said that in August 2019 she became aware that a number of cash bankings had not been presented to the bank during the period December 2018 to July 2019 and she was informed that she was being accused of stealing this cash. She denied those allegations, but was advised by her lawyer to maintain her right to silence during the police investigation. She was charged with 47 counts of steal property of master/employer. She says most of these were funds she had in fact herself identified as missing. She was also charged with 25 counts of unauthorised use of computer function, that is using the password of another employee with the intention to commit larceny.
She says that she always denied the charges against her. However, one week before the hearing in respect of those charges, the police provided her with their brief of evidence. She says that at that time she realised that the way she had been asked to receipt the cash payments was incorrect.
She said the police offered her a plea bargain, whereby they would withdraw the 72 charges against her and she would plead guilty to one charge of steal property from master/employer of $18,600 cash between 10 December 2018 to 11 July 2019.
She says in considering the plea bargain she had to take into account: 1. The fact her sister had advanced Neimann-Pick Type C disease and she may have been needed to care for her; 2. Her 21-year-old daughter also had early Neimann-Pick Type C disease and she needed her care, support and assistance; and 3. She had a 9-year-old daughter she also cared for.
She says that, on the advice of her solicitor and barrister, she decided to accept the plea bargain as she could not risk the possibility of going to prison. Her concern was to put her family's needs before her own.
She accepted in cross examination that, at the time she pleaded guilty, she had already declared the charges to AHPRA and would have known that a guilty plea would likely have an impact on her registration as a nurse. She also acknowledged that she understood criminal charges had to be proved beyond reasonable doubt. In cross-examination, she further explained that she pleaded guilty because she was scared of being in Court and, because of her previous convictions, she understood there was a chance that she could go to prison. She also explained that there were other people at the practice that she could not rely on to tell the truth, because she thought they would be scared of losing their jobs if they did.
She said that, when she got the Police brief of evidence, she realised she had done something wrong. That is, she had had a role in not putting cash payments through the practice's books correctly, so that it was not properly accounted for or declared to the Australian Taxation Office. She said she could not, therefore, plead not guilty when there were things of which she was, in fact, guilty. She maintains that she did not take the money and put it in her own bank account. However, she accepts that she didn't receipt it properly. She says that she takes responsibility for doing the wrong thing with the money, but she maintains that she did not carry out the conduct for which she was convicted. She says that she does not know what happened to the money; she believes that it was used by her employer to pay for dinners, lunches and the like. When asked "do you accept you were guilty of the offence for which you were convicted?", she said "I have taken full responsibility for what I was convicted for". It was put to her in cross-examination that she was seeking to minimise her actions in 2018-2019 to seek to avoid the repercussions. She denied that she was minimising her actions. She said that she did what she did, she shouldn't have done it, she should have asked questions and she didn't. She should never have behaved the way she did. However, she did not agree she was minimising her conduct. She said what she did was wrong and she hated that she had done it.
Ms Gott says that she understands that pleading guilty has left her in a position where she appears to be untrustworthy and dishonest. However, in cross-examination, when asked how she thought patients would react if they knew of her recent conviction, she said that it was her belief that anyone she had looked after would think there must be more to the story and would not think it was like her. When asked how she thought a new patient she had not yet cared for would react, she answered that she could not talk about hypotheticals.
She said that, on 4 September 2020, she received a letter acknowledging that she was a Victim of Crime, having suffered long-term sexual abuse. She stated that receiving that letter made her feel heard and valid. That document changed everything for her and made her feel like she could be heard and could help. She went on to study midwifery because she wants to help women. Her strategy is to be somewhere where she can help people, where she can hear people and be heard, rather than be in situations where there were older men who had a level of authority over her who made her "freeze" and told her what to do.
She says that she has faithfully attended her psychologist and has made enormous progress. She has learnt strategies that have made it possible for her to be comfortable when dealing with people in positions of power. She now has the confidence to consider what has been said to her and to raise questions, with the expectation that those questions will be valued and appropriately answered. She said that, as a student midwife, there have been many occasions where she has said she doesn't understand something and that people were "ok" with that, which had not previously been her experience.
She understands that nursing is a profession where honesty and trust between her patients and colleagues is paramount. The profession is highly respected in the community and she has an obligation to ensure that trust and honesty are maintained.
She understands that she has breached the Code of Conduct for Nurses, in particular Principle 1.2 - not to participate in unlawful behaviour. She says that, going forward, she will uphold this principle by ensuring she documents and reports any concerns she may have if she believes the practice environment is compromising the health and safety of her patients.
She acknowledges that the conviction has damaged her professional status and the reputation of the nursing profession and has raised questions about her professional standards. She understands the obligation to provide safe and competent nursing care and says that she will actively promote the need to ensure the safety of the community in her future nursing practice.
She has also focused on continuing professional development. In early December 2022, Ms Gott completed a Unit of Study at the Australian Catholic University titled "Healthcare Ethics: Principles in Practice" which was completed over 150 hours and she attained a credit grade. She had enrolled in that course prior to her registration being suspended. She says that, as a result, she truly understands the importance of practising nursing in an ethically safe way. She says that, as ethical issues arise during her nursing career, she now feels confident that she will be able to brainstorm issues, reflect and find information to make good, sound, confident and ethical decisions.
She says that, as a registered nurse, she must take reasonable measures to establish a sense of trust in people receiving care to ensure their physical, psychological, emotional, social, and cultural wellbeing is protected. In order to do this, she will ensure that she questions what she is doing and her reasons for doing it. She will never again just "do what she is told" and if she doesn't understand why she is doing something she will ask questions and seek to understand, to protect the vulnerable people that put their trust in her. She says that she has developed strategies for slowing down and asking questions to understand exactly what is being asked of her so she can make an informed decision as to whether it is something she should do. She asks herself if she had to explain why she was doing something, could she? And if she could not explain it to herself, she would not do it. If she could explain it, and agree with it, then she would.
In her evidence in chief, she was asked to give examples of how she might now react in a workplace setting in a position where she might easily be led. She gave two examples of where, in two different workplace settings, she had chosen not to go along with what was considered by other nursing staff to be adequate care for patients but chose, rather, to spend further time with her patients. In one case these were elderly patients, many of whom had dementia, and in another, women who were in a low socio-economic demography who were pregnant and experiencing drug problems. She said she would talk with them and help them as much as she could.
Ms Gott proposes to use "Your Health Matters", a nurse counselling service for social and emotional support if she requires it in future. When she returns to nursing, she proposes to find a senior nurse to act as an informal mentor that she can confide in and discuss any issues or questions she may have in her practice.
She also intends to ensure that her CPD training each year includes content that covers the ICN Code of Ethics for Nurses, the Code of Conduct for Nurses or the Standards of Practice for registered nurses to ensure she is always reminding herself of the fundamental concepts of trust, honesty and integrity, both generally and in the practice of nursing.
Ms Gott has not worked since her registration has been suspended, because it is difficult to apply for jobs as she does not want to deceive people. If people ask her why she is not working she is honest with them. She has used the time since her suspension to work on herself and look after herself. She says her psychology sessions, including Schema therapy, have been a fantastic help.
Ms Gott has a sister with Niemann-Pick Type C disease and she has helped care for her and her four children. She also has a daughter with the same condition who lives at home and will be required to live at home forever, and four other children. However, she says she feels like she has a lot of support.
Ms Gott was asked why she did not notify AHPRA within seven days of the charges which were laid against her in July 2020. She said when she was initially charged with 72 offences, while the original charge notice was created on 27 July 2020, she was not made aware of these charges until early September 2020. At that time, she was unaware that this occurrence was an event requiring mandatory reporting to AHPRA within seven days. At this time, she had been registered but had not yet renewed her registration. She thought she would have to tell AHPRA of the charges on her renewal application. However, on reflection she felt that that did not seem right and so she took advice from a solicitor and realised that she had missed the seven-day notification period. On 9 October 2020, having become aware that these charges should have been reported within seven days, she immediately completed the Notice of Certain Events Form and sent it to AHPRA on that day.

Medical evidence and references

Ms Gott has provided the Tribunal with a copy of a letter dated 18 January 2023 from her treating psychologist, Ms Caroline Issa, who confirms that Ms Gott has attended 15 sessions since November 2019 and proposes to continue sessions in the future. We note that the HCCC had asked for Ms Issa to be available for cross-examination, but were advised that she would not be.
Ms Issa says: 1. After Ms Gott pleaded guilty to the offence and was de-registered, she started to feel helpless and that life had no point. Ms Gott takes a lot of pride in being able to help people in their time of need. She feels like she has lost a lot because of the complaint and that she may not be able to be a midwife again; 2. Part of the reason why Ms Gott has been attending sessions has been to deal with how she approaches situations in her personal life as well as professionally. She has a history of trauma, having been abused as a child, which has formed the way she views people in authority and her need to people please. Ms Gott's trauma is significant and the experience she has had with the complaint has retraumatised her and she felt like she could not trust herself to do the right thing because anything she has done tends to be wrong. However, through therapy and self-development as well as her nursing and midwifery education, she has been utilising strategies to help her cope with the trauma and to make choices based on her own safety and the safety of others. She has been looking at how her behaviours, cognitive awareness and her approach to certain situations has been helpful or unhelpful. 3. Ms Gott has started Schema Therapy and, after identifying the maladaptive schemes she has been using in her life, is now finding ways of approaching situations that have been deemed difficult or impossible previously. She has looked at and is working on developing healthy boundaries with people and is communicating what she needs rather than making assumptions and coming up with her own conclusions of what she feels is the right course of action. She is learning to manage situations with other people in a more mindful way and taking less focus away from people pleasing. She is learning to be proactive in asking for clarification about anything that she seems dubious and is unafraid to speak up.
Ms Gott has also referred the Tribunal to a number of references: 1. A reference from Midwifery Unit Manager at Nepean Blue Mountains Local Health District (NBMLHD), who has known Ms Gott for 12 years and was her direct line manager at Nepean Hospital. She says Ms Gott is a very caring and compassionate person, she has never known her to be dishonest at work and has never had any concerns regarding her professionalism or how she cares for her patients. There has never been any disciplinary action or performance management required. Even if the Tribunal were to find the particulars of the complaint to be true, she would still advocate for her employment as a Registered Nurse/Midwife as she would be an asset to anyone who would employ her in these roles. Ms Gott is passionate about the care she provides; 2. A reference from the Clinical Midwifery Educator NBMLHD who has known Ms Gott for 20 years and was her Clinical Midwifery Educator while Ms Gott was employed by NBMLHD as a registered nurse/student midwife from July 2021. She also says that she has never known Ms Gott to be dishonest at work and there has never been any disciplinary action or performance management required. During her student experience, she worked consistently to a high standard of midwifery care, following codes of conduct and ethics whilst providing safe, women-centred, holistic care. No woman, family member or colleagues have ever raised any concerns with her about Ms Gott. Even if the Tribunal were to find the particulars of the complaint to be true, she would still recommend for her to be employed as a Registered Nurse/Midwife as she demonstrates the skills, knowledge, and insight to be a valuable team member in any chosen health role. She does not believe Ms Gott is a danger to patients or colleagues and has the utmost confidence, respect, and trust in her ability to continue to work as a health professional. She believes Ms Gott is a fit and proper person to be held out to patients and the whole of the community as a person worthy of their confidence, regardless of the outcome of the complaint; 3. References from a friend of 4 years, a friend of 34 years and a previous manager from her time at St John of God Hospital (also a friend) recommending Ms Gott be employed in the nursing profession/ as a registered midwife. These references appear to have been provided in the context of Ms Gott seeking employment before she was suspended and none of the authors refer to having knowledge of the contents of the complaint made against her; 4. A reference from her best friend who has known Ms Gott for more than 25 years, which appears to have been prepared for the purposes of one of the s 150 proceedings. This letter does refer to the "unfortunate situation with" the dental practice and says that the author has never wavered in her belief in Ms Gott's innocence, but understands why she felt she had to plead guilty. She says that Ms Gott has overcome many obstacles and hardships in life, supports many people, including her mother who has custody of her sister's children due to her sister's condition and that she has raised 5 exceptional daughters. She says that Ms Gott is passionate about her nursing career and is a passionate advocate for women's health.
There is also in evidence: 1. a Midwifery Student Appraisal Record dated 5 October 2021 which has been signed by a Midwifery Educator who notes that Ms Gott's appraisal is satisfactory and whose comments include: "Naomi is progressing very well through the course with excellent feedback from the clinical staff. Naomi is passionate about women centred care and is clearly demonstrating this with enthusiasm and professionalism. … Naomi is an excellent communicator and develops a wonderful rapport with the women and their families." 1. Ms Gott's CPD record for the period from 31 May 2022 which shows that Ms Gott has undertaken 32 hours of continuing professional development, in addition to the ACU Healthcare Ethics course in the period to December 2022, including as to the Revised Code of Conduct for Nurses, the Revised Registered Nurses Standards for Practice and the Revised ICN Code of Ethics for Nurses.

Ms Gott's evidence which is inconsistent with the facts underlying her conviction

No objection was taken by the HCCC to the Tribunal admitting Ms Gott's evidence, which was inconsistent with the facts underlying her conviction.
In Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [101]-[103], Meagher JA, with whom Whealy JA agreed, explained the circumstances in which the Tribunal can admit evidence inconsistent with a conviction as follows: "101. In relation to the second complaint, the respondent relies on conduct which includes the conduct underlying the appellant's two convictions. The inquiry in relation to that complaint could result in the appellant being fined, suspended or deregistered. He has an interest in challenging or explaining the alleged conduct as part of his response to it. If he puts that conduct in issue, the Tribunal's obligation is to inquire and make findings as to whether it occurred. In doing so it must base its decision upon relevant material. Whilst it is not bound by the rules of evidence and may inform itself as it sees fit, it must accord the appellant procedural fairness. In the circumstances, that requires that the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial. 102. The requirement that the Tribunal allow the appellant to present relevant and probative material in response to the evidence relied upon by the respondent in relation to the second complaint, does not mean that the Tribunal is required to rehear the matters dealt with in the District Court. It is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight. 103. The Tribunal's ruling was not made on the basis that the appellant was using the opportunity to defend the complaints made against him to challenge the propriety of his criminal convictions or the fairness of his criminal trial. Nor was that ruling justified on the basis that it involved an attempt to re-litigate matters in respect of which the appellant had been convicted. The second complaint requires an assessment of the appellant's character as revealed by alleged personal misconduct. The leading of evidence which challenges the facts underlying the conviction does not, without more, involve the re-litigation of the question whether the appellant was guilty of the offences so as to engage the public policy against collateral attack on a conviction." (emphasis added)
It is not in issue that Ms Gott was convicted of the offence of stealing property of her employer contrary to s 156 of the Crimes Act 1900 and she does not seek to impugn her conviction. However, for the purposes of the Tribunal assessing her fitness to practise as a registered nurse, Ms Gott maintains (as she did at each of the s 150 hearings and in each of the statements she prepared for those hearings) that in fact she did not carry out the conduct for which she was convicted. She maintains that she was instead guilty (albeit, she says, that she did not realise the consequences of her actions at the time) of not accounting correctly for some of the practice's cash receipts such that the practice did not declare the correct amount of income to the Australian Taxation Office for taxation purposes.
Ms Gott has not called any other evidence to seek to support this position.
We appreciate that Ms Gott was clearly in a delicate position at the time she entered her guilty plea, given her family's very difficult circumstances and her caring responsibilities for her daughter with early Neimann-Pick Type C disease, her other children, and her sister's children. We accept she wanted to avoid a prison sentence. Nevertheless, she did plead guilty, on the advice of her solicitor and barrister, to the offence for which she was convicted on the basis of the agreed facts, knowing that the standard of proof in criminal proceedings was beyond reasonable doubt and understanding that a guilty plea may well impact her registration as a nurse.
We accept that we should not give significant weight to the statements in the police brief, which were not tested by way of cross-examination. Nevertheless, we can and do give them some weight. In light of that evidence and her guilty plea, and in the absence of any other evidence to support her version of events, we do not believe Ms Gott when she says that her conduct in relation to the cash in question amounted only to incorrect accounting. Nor do we believe her when she says that she did not take the money for her own purposes. As we do not believe her evidence in this regard, we remain satisfied on the balance of probabilities, to the Briginshaw standard, that Ms Gott did in fact carry out the conduct for which she was convicted, namely that she stole amounts totalling $18,600 over a series of 40 occasions over the period December 2018 to July 2019 from her previous employer. This was a serious offence which attracted a significant criminal penalty.

Complaint One

Complaint One is that, pursuant to s 144(a) of the National Law, the Respondent has been convicted of a criminal offence in New South Wales.
The Particulars of that Complaint are: 1. On 27 July 2020, the Respondent was charged by NSW Police with 47 counts of Steal Property of Master/Employer contrary to s 156 of the Crimes Act 1900 (NSW) and 25 counts of Unauthorised Computer Function with Intent to Commit Serious Indictable Offence pursuant to s 308C(1) of the Crimes Act 1900; 2. On 9 March 2022, the Respondent was convicted in the Local Court of Katoomba of 1 count of Steal Property of Master/Employer contrary to s 156 of the Crimes Act 1900; 3. On 9 March 2022, the Respondent was sentenced to a term of imprisonment of 12 months to commence on 9 March 2022, the term of imprisonment to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentence) Act 1999 (NSW). The Respondent was also ordered to pay $11,600 in compensation to the Dental Practice.
The Respondent has admitted Complaint One, Particulars 1, 2 and 3 in writing.
We find that the evidence put forward by the HCCC proves the allegations in Complaint One on the balance of probabilities, with a sufficient degree of certainty, having regard to the seriousness of the allegations.

Complaint Two

Complaint Two is that the Respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law in that she has contravened s 130(1) of the National Law.
Section 139B(1)(b) of the National Law provides that unsatisfactory professional conduct of a registered health practitioner includes a "contravention by the practitioner (whether by act or omission) of a provision of this Law".
Section 130 of the National Law stipulates that registered health practitioners must, within seven days after becoming aware that a relevant event has occurred in relation to the practitioner, give the National Board written notice of the event. A relevant event in relation to a practitioner includes that the practitioner is charged with an offence punishable by 12 months imprisonment or more.
The Particular of Complaint Two is that the Respondent failed to notify the National Board within seven days of being charged on 27 July 2020 with 72 offences punishable by 12 months imprisonment or more.
The Respondent has admitted Complaint Two, Particular 1 in writing.
We find that the evidence put forward by the HCCC proves the allegations in Complaint Two on the balance of probabilities, with a sufficient degree of certainty, having regard to the seriousness of the allegations.

Appropriate orders

The Complaints having been proved as set out above, it falls then to determine whether the Tribunal should exercise its disciplinary powers.

Section 149C(1)(c): Do the circumstances of the offence render the practitioner unfit in the public interest to practise?

Section 149C(1)(c) provides that the Tribunal may suspend or cancel a registered health practitioner's registration if the Tribunal is satisfied that the practitioner has been convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession.
Accordingly, the question we must determine is whether the circumstances of the offence render Ms Gott unfit in the public interest to practise the practitioner's profession.
The relevant authorities were recently summarised by the Tribunal in Health Care Complaints Commission v Morris [2022] NSWCATOD 120 ("Morris") at [82]-[86] as follows: "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 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 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]. 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."
Since Morris, the Tribunal has found in Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [92]-[93] that the requirement in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 at [68] referred to above that there be a nexus between the criminal conduct and the practice of the practitioner's profession does not apply in considering whether a person is unfit in the public interest to practise for the purpose of s 149C(1)(c), preferring instead the test as formulated in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56(7)(f)] and Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123(6)(b)] which were respectively as follows: "56(7)(f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits." "123(6)(b) The "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession."
Whether a practitioner is unfit in the public interest to practise must be assessed in light of a holistic inquiry into suitability. As the Tribunal stated in Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [22]: "… 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. …"

Unfit in the public interest to practise - conclusion

In our view the circumstances of the offence do render the Respondent currently unfit in the public interest to practise as a registered nurse.
As to the circumstances of the offence itself, we have found above, that we are satisfied that Ms Gott did carry out the conduct for which she was convicted. The offence was similar in nature to earlier offences to which she pleaded guilty as recently as 2014.
However, we also note that even if we accepted (which we do not) Ms Gott's version of events, namely that she played a role in effectively defrauding the Australian Taxation Office (albeit, she says, unknowingly at the time), that would also be a matter of significant concern.
Further, we consider that, in continuing to deny her conduct, Ms Gott has shown limited remorse and insight into her conduct. She accepts partial responsibility for her actions but, in effect, continues to lay the blame for what she did on others.
There is no question in our minds that Ms Gott is a caring and compassionate person, who has done much for her family. She has also, since the offence, completed her nursing and midwifery education which has clearly been empowering for her. We accept that she is passionate about nursing, in particular caring for women, and her competency as a nurse has not been placed in issue in these proceedings.
However, there remains a significant question as to her integrity and her capacity to handle ethical situations which may well arise in her role as a nurse.
Ms Gott has clearly taken some important steps which go some way to address these concerns.
We accept that Ms Gott experienced significant trauma as a child, and it is clear that the trauma she suffered as a child has affected her deeply. We accept that it led to her employing strategies to cope with the effect of that trauma. She has regularly attended sessions with her psychologist to work on the maladaptive schemes she has been using as coping mechanisms and her psychologist reports that she is making progress and proposes to continue to see her regularly.
Ms Gott has also undertaken significant relevant continuing professional development.
Ms Gott has spoken about some of the strategies she has developed or is developing to manage situations where she is being told what to do by others and says she is now questioning whether she should behave as directed.
However, the letter from her psychologist, Ms Issa (who did not make herself available for cross-examination) suggests to us that while Ms Gott has made progress, there is still work for her to do in that regard. For example, Ms Issa states that Ms Gott "is working on developing healthy boundaries", "is learning to manage situations with other people" and "is learning to be proactive".
Further, and more importantly, the strategies Ms Gott has developed or is working on are mostly directed at questioning what others tell her to do. She has not really sought to address what she might do in a situation where there may be an ethical dilemma where there is no one telling her or suggesting to her what to do but where she needs to make a decision herself as to how best to behave. We accept that she may well have "followed the crowd" when she engaged in the conduct giving rise to her 2014 conviction (although that in no way excuses her conduct). However, we do not accept that this is a complete explanation at all for her conduct giving rise to the offence for which she pleaded guilty in 2022.
While Ms Gott has said that she understands that honesty and trust between patients and colleagues is paramount and she has an obligation as a nurse to ensure that honesty and trust are maintained, when she was asked in cross-examination how she thought a new patient would react if they knew of Ms Gott's conviction, she said that she could not talk about hypotheticals. This demonstrated to us that she still has limited insight into the impact of her actions.
We find that the circumstances of the offence render the Respondent unfit in the public interest, where the health and safety of the public are the paramount consideration, to practise as a registered nurse.

Disciplinary orders - principles

Section 3(2) of the National Law makes it clear that the objectives of the National Law include providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.
The purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. However, that is not to deny that such orders may be punitive in effect: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], [31].
In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA gave the following explanation 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."
In the exercise of its protective jurisdiction, the Tribunal must take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and, more broadly, the protection of the community: Gayed v Walton [1997] NSWCA 121.
However, in Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA noted at [101]: "The adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order".

Disciplinary Orders - the parties' submissions

The HCCC submitted that Ms Gott's registration should be suspended for a period of six months and, on the expiration of the suspension, that conditions be placed on her registration, including that she must engage in a mentoring relationship for a period of at least 12 months. In the alternative to a condition that she engage in a mentoring relationship, the HCCC submitted that conditions be placed on her registration that she not work as the nurse in charge of any shift or as the sole practitioner on any shift, and practise under indirect close supervision. The alternative suggested orders proposed by the HCCC are attached as Annexure A to these reasons.
The Respondent submitted that her registration should not be suspended, rather a caution or reprimand should be given, but that if the Tribunal were minded to suspend her registration a period of three months, rather than six months, would be more appropriate. In terms of conditions to be imposed on the Respondent's practice, she submitted that a condition that she engage in a mentoring relationship (which she has already indicated she proposes to do in any event) rather than indirect supervision would be more appropriate.

Disciplinary Orders - conclusion

As set out above, the purpose of disciplinary orders is not to punish the practitioner but to protect the public and maintain proper professional standards.
We would not make any disciplinary order as a result of Ms Gott's failure to notify AHPRA within seven days of the charges being laid against her in 2020. We accept that this was a genuine oversight on her part and when she realised her error, she took steps to address it immediately.
However, the criminal conduct in which Ms Gott has engaged is of a serious nature and should be denounced. We consider this conduct warrants a reprimand being given. A reprimand is an official rebuke for past wrongful conduct and sends a strong message to uphold the reputation of the profession and maintain confidence by the public in it: Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 at [48].
However, we do not consider a reprimand is sufficient in the circumstances. Ms Gott has demonstrated that she is prone to submitting to the temptation to steal money which belongs to someone else to use for her own purposes. This poses a danger to patients in a hospital setting where they may be asleep, unconscious, or immobile in their rooms when she has access to their rooms. They may have cash or credit cards or other valuables with them. The risk is that these situations will present Ms Gott with fresh temptations to steal again.
When a member of the public enters a hospital, they need to be able to trust that the health professionals responsible for their care will uphold expected standards of ethical behaviour.
We believe it would imperil the public's ability to entrust their care to the nursing profession if the Respondent were permitted to continue to practise as a registered nurse at this stage.
We are satisfied that it is necessary and appropriate to also make an order suspending the Respondent's registration to protect the public, recognise the seriousness of the Respondent's conduct, to act as a specific and general deterrent, to uphold the standards of the nursing profession, and to preserve public confidence in the profession.
In determining the appropriate period of suspension, we need to consider what period of time may be required for the Respondent to change her conduct so that she can return to practice without risk to the health or safety of the public: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [74].
Ms Gott says that she has spent the time since her suspension working on and looking after herself. However, she continues to demonstrate limited insight into her conduct. We consider that she would benefit from another period of time to reflect on these reasons and consider what other strategies she may need to put in place before returning safely to practice.
We consider that suspension for a period of six months is appropriate and proportionate in the circumstances of this case.
In terms of the conditions which should be imposed on her registration after the expiration of her suspension, we consider that, given our concerns as to her ability to resist the temptation to steal again, for a period after she returns to practice, Ms Gott should not be the sole practitioner or nurse in charge on any shift. Further, while we understand that, as a practical matter, it may be easier for Ms Gott to establish a mentoring relationship with another practitioner, in our view it is more appropriate to make an order that she be subject to indirect supervision for a period of time. This is because the concern that we have is as to her ability to act ethically in situations, as and when they arise, which call on her to make a decision as to how best to behave. We do not think that can best be monitored by a mentor who would typically be consulted after the event and think it would be preferable for the Respondent to be under supervision and have the ability to check her judgment calls at the time she is required to make them with her supervisor. Ms Gott said herself that, as ethical issues arise, she feels confident that she will be able to brainstorm the issues - this can more readily be done with a supervisor than a mentor.

Costs

The HCCC seeks an order that the Respondent pay its costs as agreed or assessed.
This is a costs jurisdiction, and ordinarily costs should follow the event. While there is a discretion not to award costs to the successful party it must be exercised judicially "according to proper fixed principles and rules of reason and justice": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]-[44].
The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [9].
In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182, the Court of Appeal identified factors that might militate against the HCCC recovering all its costs as including a lack of success in obtaining findings against the practitioner, or the HCCC's failure to establish the particulars pleaded, or some oppressive conduct on the part of the HCCC in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing.
On the material before the Tribunal, we do not consider there has been any disentitling conduct by the HCCC in this case that would warrant a departure from the general rule.
The Respondent submitted only that, if there was to be an order for costs made against her, that it should be an order that she pay the HCCC's costs as agreed or assessed. That is the order which the HCCC seeks and we consider an order in those terms is appropriate.
In light of the above, the orders we propose to make are as follows.

Orders 1. Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (National Law), the Respondent is reprimanded. 2. Pursuant to s 149C(1)(c) of the National Law, the registration of the Respondent as a registered nurse is suspended for a period of six months. 3. Pursuant to s 149A(1)(b) of the National Law, upon the expiration of the suspension of her registration, the Respondent's registration is subject to the following practice conditions for a period of twelve months: 1. The Respondent is not to be the nurse in charge of any shift, ward, or unit; 2. The Respondent is not to work as the sole practitioner on any shift; 3. The Respondent is to practise under indirect close supervision in accordance with the Nursing and Midwifery Council of New South Wales (Council) regulatory supervision policy (as varied from time to time) and as subsequently determined by the Council and: 1. Must nominate a supervisor for approval with the Council 14 days prior to commencing work or as specified by the Council; 2. Must authorise the approved supervisor to provide written reports to the Council (which meet the standards required by the Council) at quarterly intervals, or as specified by the Council for a minimum cumulative period of 12 months and until the Council advises the Respondent otherwise in writing. 1. The Respondent is not to practise until a supervisor has been approved by the Council and has been provided with a copy of this decision. 2. The Respondent is to forward evidence to the Council within seven days of her employment as a nurse, or any change in her employment, that she has provided a copy of this decision to her employer. 1. The Council is the appropriate review body to review these conditions. 2. Sections 125-127 of the National Law are to apply whilst the Respondent's principal place of practice is anywhere in Australia other than New South Wales so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia. 3. Under clause 13 of Schedule 5D of the National Law, the Respondent is to pay the HCCC's costs as agreed or assessed.

ANNEXURE A - FORM OF PROTECTIVE ORDERS PROPOSED BY HCCC

HCCC's Position on Protective Orders 1. Suspension of the respondent's registration pursuant to s149C(c) of the Health Practitioner Regulation National Law (NSW) for a period of 6 months. 2. Upon the expiration of the suspension of the registration, the respondent's registration is subject to the following practice conditions pursuant to section 149A(1)(b) of the Health Practitioner Regulation National Law (NSW): a. To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of the date of the decision, that the practitioner has provided a copy of this decision to her employer/s (if any). b. Within seven (7) days of a change in the nature or place of practice, the practitioner is to forward evidence to the Nursing and Midwifery Council of NSW that she has provided a copy of this decision to the nursing employer/s. c. The practitioner must engage in a mentoring relationship for a period of at least 12 months with a registered nurse (Division 1) approved by the Council who does not have conditions on their practice. d. To comply with condition (c), the practitioner must: i. nominate a mentor for approval by the Council, within 21 days of recommencing practice as a nurse. ii. provide to the Council, within 14 days of the mentor being approved, a copy of the Tribunal's decision, including orders made, that has been signed by both the practitioner and by the mentor indicating awareness of the decision and orders. iii. submit a mentoring plan developed in consultation with the mentor within 4 weeks of the mentor being approved by the Council. The mentoring plan must include a focus on the professional obligations of honesty and integrity. iv. attend meetings with the approved mentor at least but not limited to once weekly for the first three months and thereafter meetings can be reduced to once monthly. Meetings can take place in person or via digital means, however at least one face to face meeting is to take place per month. v. authorise the approved mentor to notify the Council of any breach of the conditions including repeated failure to attend mentoring meetings and to exchange information with the Council in relation to the practitioner's compliance with the conditions. vi. submit a mentoring report to the Council every month for the first three months and then every three months thereafter for a minimum cumulative period of 12 months and until the Council advises the practitioner otherwise in writing. The mentoring report is to be co-signed by the approved mentor and must meet the standards required by the Council. e. The practitioner is responsible for the costs associated with complying with the conditions unless otherwise specified. f. The Nursing and Midwifery Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). g. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia.

The Tribunal may also consider in the alternative, the following protective orders: 1. A reprimand, as opposed to suspension. 2. The following conditions on registration: a. Not to be the nurse in charge of any shift, ward or unit. b. Not to work as the sole practitioner on any shift. c. To practise under indirect close supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. i. To nominate a supervisor for approval with the Council, within 14 days of commencing work or as specified by the Council. ii. To authorise the approved supervisor to provide written reports to the Council at quarterly intervals, or as specified by the Council. d. Not to practice until a supervisor has been approved by the Nursing and Midwifery Council of NSW. 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: 02 May 2023

Crimes (Administration of Sentence) Act 1999(NSW)

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