Health Care Complaints Commission v GVY [2025] NSWCATOD 134;

1. The Commission filed an Amended Complaint on 10 June 2025. The Amended Complaint pleads as follows.

1. Complaint One was that, pursuant to s 144(a) of the National Law, the practitioner has been convicted of a criminal offence in NSW.
2. The Particular of Complaint One was that on 19 January 2023 at Wellington Local Court the practitioner was convicted of an offence of assault occasioning actual bodily harm (domestic violence related) in company of others contrary to s 59(2) of the Crimes Act 1900 (NSW) (Crimes Act).
3. The practitioner has admitted the Particular of Complaint One, and Complaint One itself.
4. Complaint Two was that Complaint One was that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) in that the practitioner contravened a provision of the National Law.
5. The Particular of Complaint Two is that the practitioner contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted on 19 January 2023 of one offence of assault occasioning actual bodily harm (domestic violence related) in company of others contrary to s 59(2) of the Crimes Act.
6. The practitioner has admitted the Particular of Complaint Two, but not Complaint Two itself.

(1) Exhibit A, being a 571 page bundle of materials including documents relating to the practitioner's criminal proceedings in the Wellington Local Court (including but not limited to the NSW Polce Facts Sheet; NSW COPS Event Reference no 83020940); the s 150 reasons for decisions; the documents before the Nursing and Midwifery Council of NSW (Council) for the purposes of the s 150 proceedings; documents relating to the practitioner's criminal appeal in the District Court at Dubbo;

(2) Exhibit B, being a 52 page bundle of materials being:

(a) "select pages" from summons material produced by Mind Over Matter Psychology;

(b) various NSW Health Guidelines with respect to End of Life Carte and Decision Making and Pain Management. Also included in the bundle was the Nursing and Midwifery Board of Australia's (Board) National Competency Standards for the Registered Nurse and the International Council of Nurses 2012 Code of Ethics for Nurses.

(3) Exhibit C, being a 22 page of materials including AHPRA and Council evidentiary certificates, the supplementary expert report of Ms Marrianne McGhee dated 11 July 2025 and associated documents;

(4) Exhibit D, being a 31 page bundle of documents of the Commission's correspondence with the practitioner prior to the hearing.

1. On 30 April 2025, the practitioner filed her Reply to the Application, an affidavit sworn by her on 4 April 2025, together with attachments, and a report of her treating psychologist Mr Navin Gooniah dated 7 April 2025.

(1) sets out details of:

(a) her four biological children, respectively aged 4, 7, 12 and 13 years; and

(b) her two step-children, respectively aged 10 and 11 years whom she cares for on a shared custody basis;

(2) sets out details of her employment history; and

(3) explains the steps she has taken in her rehabilitation, which include

(a) how to identify and modify negative thought patterns;

(b) learning mindfulness techniques;

(c) improving her communication and relationship skills;

(d) making the following changes in her life:

(i) taking medication to assist with her mental health treatment;

(ii) complying with a treatment plan;

(iii) taking a proactive approach to her psychology sessions; and

(iv) recommencing weekly church attendance and participating in Bible study.

1. The practitioner was cross-examined. We see no need to recite her evidence in these Stage 1 reasons. Her evidence may however be relevant to the Stage 2 proceedings.

1. It is appropriate to set out the relevant parts of Mr Gooniah's brief report in full:

[The practitioner] continues to demonstrate insight into her past behaviours and shows sustained commitment to her rehabilitation. Her appointments have been spaced out considering her progress. The therapeutic focus has been on monitoring coping strategies, reinforcing emotional regulation, and enhancing insight to prevent relapse into maladaptive behaviours.

I confirm that my professional opinion remains unchanged since my previous letter dated 12 July 2024 - I do not consider [the practitioner] to be a risk to children. She has consistently demonstrated remorse, accountability, and a sustained willingness to improve herself and her circumstances.

Regarding prognosis, in my professional opinion, [the practitioner]'s rehabilitation has been successful to date, underpinned by meaningful psychological engagement. However, should her registration be cancelled, it may significantly disrupt her progress. Loss of professional identity and purpose can risk undoing therapeutic gains, destabilise her mental health, and lead to a deterioration in functioning, motivation, and self-esteem. Maintaining her professional registration-subject to continued engagement and supervision - would likely support the stability and sustainability of her recovery.

1. Again, these matters are more relevant to the Stage 2 hearing.

1. We had the benefit of a chronology of events prepared by the Commission. The contents and accuracy of which was agreed to by the respondent, save where otherwise indicated. In those circumstances, we make the following relevant findings.
2. We stress relevant findings. Many of the agreed facts, such as the practitioner's regular attendance at psychology sessions with Mr Gooniah, his reports and his treatment plans, are, as we explained at the Stage 1 hearing, more relevant to the Stage 2 hearing

1. In 2014, the practitioner completed a Certificate III in Aged Care.

1. From January 2015, the practitioner worked as an assistant in nursing at Eloura Aged Care Facility.

1. From February 2016, the practitioner worked as an assistant in nursing at Bellhaven Aged Care.

1. In 2017, the practitioner completed a Diploma of Nursing.
2. On 30 November 2017, the practitioner was first registered as an enrolled nurse.

1. From around July 2018, the practitioner worked as an enrolled nurse at Wellington Hospital. As an enrolled nurse, the practitioner was obliged to comply with the Code of Conduct for Nurses and the Enrolled Nurse Standards for Practice.
2. From around November 2018, the practitioner worked as an enrolled nurse - intake coordinator in the Western NSW Local Health District (Planned Care for Better Health team) at Dubbo District Office.

1. The practitioner commenced a Bachelor of Nursing through University of New England and completed one unit.

1. Between 8.30pm and 8.37pm on 7 to 12 September 2021, the practitioner smacked Child A on the buttock multiple times with a wooden spoon.
2. On 12 September 2021, Child A's mother noticed bruises on Child A, contacted police, took a photograph of the bruises and took Child A to hospital.
3. On 14 September 2021, Child A was examined by a paediatrician.
4. On 15 September 2021, Child A and Child B were interviewed by police.
5. On 21 September 2021, Child C was interviewed by police.
6. On 27 September 2021, police attended the practitioner's premises to serve an Apprehended Domestic Violence Order (ADVO).
7. Around 6 or 10 October 2021, the practitioner was charged with one count of assault occasioning actual bodily harm (domestic violence). Sometime later, the practitioner was also charged with one count of assault occasioning actual bodily harm in company of others (domestic violence).
8. On 18 October 2021, the practitioner signed a Notice of Certain Events, marking the box to indicate that she had been charged with an offence punishable by 12 months imprisonment or more.
9. On 22 December 2021, the Australian Health Practitioner Regulation Agency (AHPRA) received the practitioner's Notice of Certain Events.
10. On 14 or 22 December 2021, the practitioner completed Lifeline training (12 hour workshop and assessment) Recognise and Respond Appropriately to Domestic and Family Violence.

1. On 5 January 2022, the Council of NSW asked the practitioner to provide information.
2. Around 18 to 21 January 2022, the practitioner's solicitor provided documents to the Council including an Information Declaration Form, the Police Facts Sheet (incomplete) and Court Attendance Notice and references.
3. On 13 January 2022, the Commission provided the complaint to the practitioner's solicitor and requested the practitioner's response.
4. On 27 January 2022, the practitioner's solicitor emailed the police facts sheet and practitioner's undated statement to the Commission.
5. On 16 February 2022, the Council emailed the practitioner, informing her about the s 150 hearing scheduled on 21 February 2022 and requested her response, CV and CPD.
6. Sometime after 16 February 2022, the practitioner provided her CV, CPD and a reference from Leanne Stimpson (Manager Western NSW Integrated Care, Planned Care for Better Health) to the Council.
7. On 21 February 2022, the practitioner attended a s 150 hearing before the Council. The Council suspended the practitioner's registration, effective 25 February 2022.
8. Around 7 March 2022, the Council provided written reasons for its decision.
9. On 28 March 2022, the Commission sent a letter to the practitioner, informing her that the complaint had been referred to a general practitioner, who had referred her to a psychologist, Mr Navin Gooniah.
10. On 5 and 19 August 2022, the practitioner was assessed by Mr Gooniah.
11. On 31 August 2022, Mr Gooniah prepared a report and treatment plan (for sessions over a minimum 12-month period).
12. Mr Gooniah's report stated that he was of the opinion that the practitioners' symptoms at the time of the offences met the criteria for Adjustment Disorder, Generalised Anxiety Disorder and Major Depressive Disorder, single episode, unspecified, as per the World Health Organisation International Statistical Classification of Diseases and Related Health Problems, 10th revision (ICD-10).[1]
13. In the period September to December 2022, the practitioner attended psychology sessions with Mr Gonniah.

1. On 19 January 2023, the practitioner attended the Wellington Local Court criminal hearing. Child A, Child B, a paediatrician, the practitioner and practitioner's partner all gave evidence. The Magistrate found the offence against the practitioner of assault occasioning actual bodily harm (domestic violence related) in company made out and rejected the defence of lawful corporal punishment.
2. The charge of assault occasioning actual bodily harm (domestic violence) was withdrawn. The Magistrate made a final ADVO for the protection of Child A and Child B for a period of two years.
3. The practitioner did not notify the National Board within 7 days of being convicted on 19 January 2023 of one offence of assault occasioning actual bodily harm (domestic violence related) in company of others contrary to s 59(2) of the Crimes Act.
4. Accordingly, the practitioner contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted on 19 January 2023 of one offence of assault occasioning actual bodily harm (domestic violence related) in company of others contrary to s 59(2) of the Crimes Act.
5. In the period January to December 2023, the practitioner attended further psychology sessions with Mr Gooniah.

1. On 21 March 2023, the practitioner was sentenced at Wellington Local Court. to a Community Correction Order for a period of 2 years, commencing on 21 March 2023 and expiring on 20 March 2025, with conditions including to continuing counselling with psychologist as required and directed.

31 January 2024, appeal against conviction dismissed

1. On 31 January 2024, the practitioner appeared before the NSW District Court to appeal the conviction of one count of assault occasioning actual bodily harm in the presence of others (domestic violence). The Court was satisfied on the evidence that the elements of the offence of assault occasioning actual bodily harm in company were proved beyond reasonable doubt and rejected the defence of lawful correction. The Court dismissed the practitioner's appeal and confirmed the Local Court findings of guilt. The practitioner was again sentenced to a Community Correction Order for a period of 2 years (to commence on 31 January 2024 and expire on 30 January 2026). The Court confirmed the ADVO to protect Child A and Child B.
2. In the period February to December 2024, the practitioner attended further psychology sessions with Mr Gooniah.

1. On 18 March 2025, the practitioner had had another psychology session with Mr Gooniah.

1. Both the Particular of Complaint One and Complaint One itself have been admitted by the practitioner.
2. Regardless of those admissions, we are independently satisfied that both the Particular and Complaint One are established.

1. The Particular of Complaint Two has been admitted by the practitioner.
2. Regardless of that admission, we are independently satisfied that the Particular is established.
3. The practitioner has not admitted Complaint Two itself.
4. Complaint Two is that that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) in that the practitioner contravened a provision of the National Law.

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.

(2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.

...

(3) In this section -

relevant event, in relation to a registered health practitioner, means -

(a) the practitioner is charged with -

...

(ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or

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 - **

...

Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

(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.

...

1. The Commission submits that all nurses (being both registered nurses and enrolled nurses) are required to notify the National Board of certain criminal charges and convictions within a tight timeframe. Section 130 of the National Law also relevantly provides that registered health practitioners must give the National Board written notice within seven days of being aware of being convicted of any offence punishable by imprisonment.
2. The Commission submits that health professionals are regulated to ensure the health and safety of the public and to enhance the confidence of the public in the integrity and competence of the profession. The requirement that health practitioners are compelled to inform the regulatory authority of criminal charges and convictions of a serious nature is a means by which the regulatory authority is able to maintain control over any practitioner who has engaged in conduct which is inimical to proper and ethical conduct. Not only is there a requirement to provide this information as and when it occurs (under section 130), but also on renewal of registration (under section 109). A failure to comply with these requirements is potentially a matter of some seriousness. It is incumbent upon health practitioners to inform themselves of the regulatory requirements under which they practice. A failure to do so does not excuse non-compliance. In this respect the commission refers generally to Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72.
3. The Commission then submits that the relevant principles regarding a failure to notify under s 130 of the National Law include the following:

(1) the importance of maintaining the integrity of the system for the disciplining of health practitioners set up by the National Law and that practitioners comply with the reporting obligations which form part of the system: Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [34];

(2) duties of candour to professional regulators are extremely important to enable our health system to function and to protect the health and safety of the public: Health Care Complaints Commission v Lidman [2020] NSWCATOD 48 at [20];

(3) once there is evidence that the practitioner contravened the notification requirements in the National Law, a finding of unsatisfactory professional conduct will automatically follow: _Health Care Complaints Commission v Amalakuma_at [22]-[27].

(4) ignorance of the notification obligation does not excuse a failure to notify the Council. Here the Commission referred to some nine authorities. It is sufficient that we refer to the most recent one, being Health Care Complaints Commission v Kaye [2022] NSWCATOD 24 at [125];

(5) provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage: Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [100];

(6) these provisions are part of the protective architecture of the National Law. It is the compliance by practitioners with these provisions that allow regulatory authorities to decide whether a health practitioner's criminal history is relevant to the practise of their profession and thus ensure that only those health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [174].

1. The Commission then summarises the relevant facts, and concludes its submissions as follows (footnotes omitted):

j. On 21 February 2022, the practitioner gave evidence during the section 150 hearing including that she had pleaded not guilty and would be defending the matter, the delegates explained that there is a 7 day limit on reporting, and the respondent stated that she initially didn't realise that it was actually a charge when she got the notice to appear at court (the court attendance notice) then she got legal advice that she needed to notify.

k. On 19 January 2023, the practitioner attended the defended criminal hearing, when she gave evidence and when the Magistrate told her that she was convicted;

l. On 21 March 2023, the practitioner attended the sentencing hearing, when the Magistrate told her the sentence;

m. The practitioner failed to notify AHPRA of her conviction by 27 January 2023 (7 days after she was convicted), by 29 March 2023 (7 days after she was sentenced) by 8 February 2024 (7 days after her conviction was confirmed on appeal) or anytime prior to 23 April 2024 (when AHPRA confirm there had been no further notifications since the Notice of Certain Events received on 22 December 2021;

n. Accordingly, the practitioner contravened section 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted on 19 January 2023 of one offence of assault occasioning actual bodily harm (domestic violence related) in company of others contrary to section 59(2) of the Crimes Act 1900.

1. Relevantly, the practitioner's solicitor submitted on her behalf:

14. The practitioner was under a mistaken belief that the filing of the appeal meant that the finding of guilt and conviction would not need to be reported, as the sentence was stayed.

15. In circumstances where the practitioner had notified AHPRA of the proceedings at an early stage and was under a mistaken belief as to the effect of lodging an appeal, applying the Briginshaw test, it is submitted the Tribunal would find the practitioner is not guilty of unsatisfactory professional conduct.

1. In Health Care Complaints Commission v Amalakumar, an authority relied on by the Commission, the Tribunal stated:

24. We reject the suggestion in the practitioner's case that we have any discretion as to whether a contravention of the kind set out in s 139B(1)(b) of the National Law constitutes unprofessional conduct. Section 139B(1)(b) is unlike s 139(1)(a) or s 139(1)(l), for example, in that it requires no evaluation, assessment or characterisation of the conduct alleged in order to be established.

25. Determining whether the "knowledge, skill or judgment" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such.

26. In disciplinary proceedings in relation to s 139B(1)(l) of the National Law, the determination of the question as to whether "any other improper or unethical conduct relating to the practice ... of the practitioner's profession" has occurred requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s 139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct.

27. In the present case, the contravention by the practitioner of a provision of the National Law has been established as a matter of fact. The section designates that contravention as unsatisfactory professional conduct. The Tribunal has no discretion, notwithstanding the fact that we accept that the practitioner contravened his reporting obligations under the National Law as a result of being given the wrong legal advice.

(emphasis added)

1. As in Health Care Complaints Commission v Amalakumar, in the present application, the contravention by the practitioner of a provision of the National Law has been established as a matter of fact, and the practitioner has admitted that fact. Section 139B(1)(b) of the National Law designates that contravention as unsatisfactory professional conduct. The Tribunal has no discretion to find otherwise.
2. It follows that we find Complaint Two established.
3. We conclude by noting that, as we explained at the hearing, the thrust of the practitioner's submissions at the Stage 1 hearing were better directed to the Stage 2 hearing.

(1) The Particular of Complaint One is established.

(2) Complaint One is established, in that the respondent has been convicted of an offence of assault occasioning actual bodily harm (domestic violence related) in company of others contrary to s 59(2) of the Crimes Act 1900 (NSW).

(3) The Particular of Complaint Two is established.

(4) Complaint Two is established, in that the practitioner contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted on 19 January 2023 of one offence of assault occasioning actual bodily harm (domestic violence related) in company of others contrary to s 59(2) of the Crimes Act 1900 (NSW).

(5) Costs are reserved.

(6) A Stage 2 hearing will be held at Parramatta on 13 October 2025 at 10.00am.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.

24 September 2025 - File number on cover page corrected.

[1] This was not an agreed fact, but it is convenient to refer to this matter at this point of the Reasons.