Health Care Complaints Commission v GVY

Health Care Complaints Commission v Ruming [2024] NSWCATOD 77

Health Ombudsman v Horsburgh [2023] QCAT 368

Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157

Health Ombudsman v MBS [2023] QCAT 551

The Tribunal made an order pursuant to cl 7 of Sch 5D of the Health Practitioner Regulation National Law (NSW) prohibiting the disclosure to any person or entity the names, addresses or any other identifying information of Child A, Child B and Child C, each being listed in the Schedule to the Complaint attached to the applicant's Application for Disciplinary Findings and Orders filed 13 December 2024, and Person D.

1. By application for disciplinary findings and orders filed 6 March 2024, the applicant (Commission) sought orders under the Health Practitioner Regulation National Law (NSW) (National Law) for cancellation of the respondent's (practitioner's) registration as a nurse.
2. The matter was conducted as a Stage 1 proceeding on 1 July 2025. For the reasons published on 24 September 2025, we found the two complaints established: Health Care Complaints Commission v GVY [2025] NSWCATOD 134 (Primary Decision).
3. A Stage 2 hearing was held on 13 October 2025.
4. The present reasons concern the appropriate protective order to impose on the practitioner. For the following reasons, we have decided to cancel the practitioner's registration and set a non-review period of one year.
5. In addition, subject to any further submissions, we propose to order the practitioner to pay the Commission's costs as agreed or as assessed in accordance with the relevant costs legislation.
6. These reasons assume a knowledge of the Primary Decision.

1. For convenience, we set out the complaints the subject of the Primary Decision, both of which we found established.

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. At the Stage 1 hearing, the practitioner 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. At the Stage 1 hearing, the practitioner admitted the Particular of Complaint Two, but not Complaint Two itself.

1. The evidence tendered by the parties was summarised in the Primary Decision at [13] to [17]. We noted at the time that some of the evidence was more relevant to the Stage 2 hearing than the Stage 1 hearing.

1. In addition to its evidence filed at the Stage 1 hearing, at the Stage 2 hearing the Commission also relied on a bundle of materials filed on 29 August 2025.[1]
2. The Commission relied on submissions dated 27 August 2025 filed 29 August 2025.

1. In addition to her evidence filed at the Stage 1 hearing (being her affidavit affirmed 13 August 2025[2] and report of her treating psychologist, Mr Navin Gooniah, dated 12 July 2024[3]) at the Stage 2 hearing the practitioner also relied on:

(1) the affidavit of Ms Dianne Batholomew affirmed 13 August 2025;[4]

(2) the affidavit of Ms Pieta Michelle Harrison affirmed 15 August 2025;[5]

(3) the further report of Mr Navin Gooniah dated 12 July 2025.[6]

1. In summary, after setting out her family relationships, her education and employment experience, the practitioner then addresses the circumstances of the appeal of her criminal conviction appeal, and her rehabilitation.
2. In relation to her conviction in the Wellington Local Court and her appeal to the Dubbo District Court, the practitioner states:

22 On 21 March 2023 I was found guilty of the assault occasioning actual bodily harm offence.

23 On 24 March 2023 I instructed my legal representatives to file an appeal of that finding of guilt. I understood that upon this appeal being filed the finding of guilt and conviction would be stayed. I believed that the appeal would be filed that day or the next day, and certainly within 7 days of 21 March 2023.

a) Annexed and marked 'A' is a copy of my email to my legal representatives dated 24 March 2023.

24 I am now aware that the appeal was filed on 30 March 2023. Had I been aware that the appeal was not filed within 7 days I would have reported the finding of guilt and conviction to APRHA.

1. In relation to her rehabilitation, the practitioner states:

28 Shortly after the offence, I have started seeing psychologist Navin Goonniah on a fortnightly basis. Sometimes this would change subject to his availability.

29 One of things I have learned through these sessions is how to identify and modify negative thought patterns. Examples of the changes I have made as a result of this include:

a) I kept a journal, or a book of thoughts, and moods monitored, or of significant events that happened.

b) I discussed anything | couldn't process on my own with my psychologist, Navin Gooniah.

c) I kept track of moods via my period monitoring app.

d) I used the circle of control to remind myself what things I could control, for example my actions and reactions, and things I couldn't, like the opinions of others, or their thoughts.

e) I used affirmation cards and daily bible verses. My church support member sends me daily messages with [B]ible verses which helps to counteract any negative self-talk.

f) I attend therapy with my psychologist, Navin Gooniah on a regular basis.

30 I have also learned to use mindfulness techniques to manage stress and enhance emotional regulation. Examples of the changes I have made as a result of this include:

a) I meditate in the morning before starting the day. I also look at [B]ible verses and practice yoga.

b) Focus on breath awareness and present moment attention to r educe stress and help improve emotional regulation.

c) Engage in physical exercise at least twice a week which helps to manage stress and health.

d) When I am feeling overwhelmed I incorporate mindful breathing exercises, or take a short walk where I focus on each step and the intent.

31 I have improved my communication and relationship skills. Examples of the changes I have made as a result of this include:

a) Practicing active listening which includes maintaining eye contact, validating feelings, and reflecting. Using "I Feel" statements have been great to help each other understand all out feelings.

b) I use positive reinforcement to encourage respectful communication and cooperative behavior, such as acknowledging effort, expressing appreciation and providing encouragement consistently. This has been helpful when parenting my children especially during conflict and distress.

c) I regularly schedule time one on one for each of my children to ensure that we strengthen our bonds and create space for open,

32 l have made the following changes since 12 September 2021:

a) Began taking medication to assist with my mental health treatment;

b) Complied with my treatment plan and taken a proactive approach to my psychology sessions; and

c) Recommenced weekly church attendance and participating in Bible study.

1. The practitioner was required for cross-examination. Where relevant, her oral evidence will be discussed below.

1. Ms Batholomew worked with the practitioner closely in the period November 2018 until November 2024.
2. She is aware of the practitioner's criminal conviction. She describes the practitioner as "highly dedicated to her work", "a good team player" and "well-liked". Ms Batholomew says that the practitioner works with a calm and caring demeanour, and is a "very kind and caring" person.
3. Ms Batholomew says that she holds "no concerns whatsoever" about the practitioner working with children, and believes that her offence was an aberration.

1. Ms Harrison first met the practitioner in 2018 when they started working together.
2. Ms Harrison was informed about the practitioner's criminal charges in about 2021.
3. Ms Harrison says that the practitioner is "professional and hard working, who would "go above and beyond asking if any help was needed". The practitioner is also a "quick learner".
4. Like Ms Batholomew, Ms Harrison has no concerns "whatsoever" about the practitioner working with children or other patients. She too believes that the practitioner's offence was an aberration.
5. As to the practitioner's general character, Ms Harrison says that the practitioner is a respected member of the community and has a "loving and caring nature as a mother".

1. The practitioner relies on submissions dated 15 August 2025 filed 18 August 2025.

1. In his report dated 12 July 2024, Mr Gooniah states:

2. Client's Current Diagnosis:

2.1. Based on my clinical observations and consultations with [the practitioner], she has been diagnosed with Adjustment Disorder with Anxiety and a Major Depressive Disorder (MDD).

2.2. The diagnosis of Adjustment Disorder with Anxiety is characterised by emotional and behavioural symptoms that occur in response to a significant life stressor. In [the practitioner's] case, the stressors have included legal issues and the associated impacts on her personal and professional life. Symptoms have included excessive worry, nervousness, and difficulty concentrating. The treatment plan focuses on managing these symptoms and facilitating adjustment to the stressors.

2.3. The diagnosis of Major Depressive Disorder (MDD) is characterised by persistent sadness, hopelessness, and a lack of interest in daily activities, leading to significant impairment in daily functioning. Symptoms include constant depressed mood, loss of interest in activities, significant weight and sleep changes, fatigue, feelings of worthlessness, cognitive impairments, and recurrent suicidal thoughts. These symptoms must be present for at least wo weeks to be diagnosed. Treatment typically involves psychotherapy and medication, emphasising early intervention and a comprehensive treatment plan to improve quality of life.

...

4. Risk to Children:

4.1. Based on my clinical observations and professional opinion, there is no evidence to suggest that [the practitioner] poses a risk to children. Throughout our sessions, she has displayed a responsible and conscientious attitude towards caregiving. She has shown empathy and understanding of the needs of children, and there have been no indications of behaviours that would be harmful to minors. Additionally, her history in therapy demonstrates a commitment to personal growth and responsible behaviour.

5. Risk to Vulnerable Community Members:

5.1. In my professional opinion, [the practitioner], does not pose a risk to vulnerable community members in her role as a[n] enrolled nurse. Her consistent engagement in therapy, adherence to the treatment plan, and proactive approach to personal development indicate that she takes her responsibilities seriously. She has shown an understanding of the ethical considerations and duties inherent in her profession and has demonstrated behaviour that aligns with professional standards. There is no evidence from our sessions to suggest that she would endanger vulnerable individuals under her care.

Conclusion:

[The practitioner] has shown significant dedication to her therapy and personal development. Her compliance with the treatment plan and proactive approach in sessions have been exemplary. There are no indications from the therapeutic perspective that she poses any risk to children or vulnerable community members. It is my professional opinion that she is suitable to hold registration within the Nursing and Midwifery Profession.

1. In his report dated 7 April 2025, Mr Gooniah relevantly states:

Since my last correspondence dated 12 July 2024, [the practitioner] has attended two additional sessions on 19 December 2024 and 18 March 2025.

[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. The Commission required both the practitioner and her psychologist Mr Gooniah to attend the hearing for cross-examination.
2. The practitioner said in cross-examination that the occasion in question was the first time she had smacked any of the children. This was explored by Ms Bayley who appeared for the Commission. The practitioner said she was aware that smacking could hurt, and cause emotional harm, but "I guess you could say that in the moment it was not something I thought through". The practitioner said that she no longer thinks it is "ok" to smack a child, and now realises that smacking was "definitely not" the only tool for disciplining children.
3. Of significance to us, the practitioner stated, when asked about the impact of smacking Child A, the practitioner said that "we don't agree with what the accusations were", before going on to say, "I mean I don't really know what to say, I do love them dearly and with everything happening at that time it should not have".
4. The practitioner was asked whether, when she said she did not agree with what the accusations were, whether her position at the Tribunal hearing was the same position she maintained at the Local Court hearing, namely that "she [meaning Child A] just made it up". The practitioner's response was

I don't know, as I wasn't there during the day. I can only say what my action was which is the same. ... I can only guess that with the conflict about the mum there has been coaching and extenuating of the truth ... I don't want to say that she is lying but I can only say what I know happened.

1. At the Tribunal hearing the practitioner described the smacking as a "light tap rather than a strong hit".
2. As to there being any connection with the charges and her employment as a nurse, the practitioner said there was a connection "but [it] wasn't conducted at the workplace".
3. The practitioner was asked if she accepted that the District Court judge who heard her appeal did not believe her. The practitioner's response was that she spoke to her psychologist about that, and that "I do know the truth, but I accept the judgment".
4. Mr Bayley noted that photographs of the injuries were included in the Commission's Stage 2 materials. She asked the practitioner if it was her view that while Child A had the injuries she (the practitioner) had not caused them. The practitioner's response was:

With what my part in the event was I don't believe I caused them. I don't know what happened that day because I was working, I know my husband slapped ... I accept what the court has found. I'm working to make sure that it does not happen again.

1. As to Mr Gooniah, there is no need to refer to his oral evidence. He impressed us as a professional witness who understood his duties to assist the Tribunal, and the cross-examination by Ms Bayley did not cause him to change the opinions expressed in his reports.

1. The relevant provisions of the National Law are as follow:

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 -

...

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.

...

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 -

(a) the practitioner is not competent to practise the practitioner's profession; or

(b) the practitioner is guilty of professional misconduct; or

(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or

(d) the practitioner is not a suitable person for registration in the practitioner's profession.

...

1. The Commission seeks a protective order regarding Complaint One. The Commission does not seek a protective order in relation to Complaint Two.
2. After reciting the relevant principles, the Commission states that it seeks an order that the Tribunal cancel the practitioner's registration pursuant to s 149C(1)(c) of the National Law because the circumstances of her offence render her unfit to in the public interest to practise nursing.
3. The Commission relies on the following factors is seeking cancellation of the practitioner's registration:

(1) the nature and gravity of the offence;

(2) the potential relevance of the offence to health practice;

(3) the period of time since the offence was committed;

(4) the convictions and sentences imposed;

(5) the age of the practitioner and the victim;

(6) the practitioner's behaviour after committing the offence;

(7) the practitioner's explanations for her conduct.

1. The Commission also submits that the Tribunal should not accept some of the practitioner's submissions, in particular where the practitioner appears to minimise her offending and culpability, and the nexus between the practitioner's offence and her professional role.
2. In relation to this last aspect, the Commission submits that:

(1) conduct which occurs outside the workplace may still render a practitioner unfit to practice;

(2) the Tribunal may have regard to the impact of the practitioner's conduct on the reputation of the nursing procession and the confidence of the public in the profession;

(3) health professionals are in a unique position to identify and respond to family violence. A nurse who has perpetrated family violence may be, or be perceived to be, biased when they are caring for victims or perpetrators of family violence and may not provide the necessary care if they do not identify the abuse or minimise its impact;

(4) nurses have a valuable role to play to be alert to suspected domestic violence within their community, rather than perpetrate it. Members of the community may fear seeking nursing services for themselves or their family members from nurses convicted of domestic violence offences;

(5) nurses may encounter patients experiencing domestic violence in an array of settings. For example, nurses working in hospitals may encounter patients experiencing domestic violence seeking wound care, nurses in medical centres may encounter patients experiencing domestic violence seeking pain relief and medical certificates, nurses working in vaccination clinics may notice suspicious bruising and telehealth nurses may have patients disclosing domestic violence concerns; and

(6) as the first port of call for many health concerns, nurses may be the first to notice changes in behaviour of regular patients and their family members and take the opportunity to encourage them to seek support.

1. In summary, the Commission submits that domestic violence is completely inconsistent with the professional and ethical obligations of a nurse.[7]
2. "In fairness", the Commission acknowledges that:

(1) the practitioner has no other convictions (apart from assaulting Child A);

(2) the practitioner was assessed at low risk of re-offending by the community corrections officer (noting that the practitioner told the community corrections officer that she did not consider her discipline to be inappropriate);

(3) the practitioner has been attending psychological sessions since about nine months after she was charged (noting that she still denies her offending);

(4) the practitioner informed her nursing manager about the incident (noting that she did not share detailed information with management until about four months after she was charged;

(5) the practitioner completed training about domestic violence, about two months after she was charged;

(6) the practitioner renewed her Working With Children Check on 23 June 2023, while her District Court appeal was pending, noting that she told the Office of Children's Guardian that she was "vigorously defending" the matter;

(7) the practitioner currently intends to seek employment as an enrolled nurse working with patients over 16 years of age (noting that her intentions may change in future and potential future employers will be unaware of these disciplinary proceedings because her name is protected by a pseudonym); and

(8) the practitioner intends to complete a Bachelor of Nursing (presumably so she can seek employment as a registered nurse in future).

1. Nevertheless, the Commission submits that cancellation is the appropriate protective order, noting that it appears that the practitioner still does not accept responsibility for her offending and has limited insight into how the circumstances of her offence impact on her trustworthiness in the profession of nursing.

1. The practitioner commences her submissions by stating that the questions for the Tribunal to determine are:

a) Do the circumstances of the criminal convictions render the practitioner unfit in the public interest to practise as a nurse?

b) Do the practitioner's five breaches of the National Law arising from his failures to self-notify and disclose the criminal proceedings, taken together, amount to unsatisfactory professional conduct?[8]

c) What are the appropriate orders?

1. In relation to the first question posed, the practitioner submits that, while it is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role, where there is no direct nexus a more careful inquiry into the public interest factors may be required. The Commission refers to Health Care Complaints Commission v Lidman [2020] NSWCATOD 48 where the Tribunal stated [12]:

The practitioner's conduct in assaulting his then partner is conduct that is incompatible with respect for the health, welfare and safety of the public. The assault in this matter was a serious one, and took place in the presence of the victim's daughter.

1. The practitioner submits that, in the present case:

(1) the offence was "a reactive situation and it is not a deliberate or gratuitous act of violence, but it was excessive punishment";[9]

(2) the offence occurred in the respondent's home and involved excessive discipline of one of her step-children. The use of excessive discipline is in a different category of offending than partner-partner domestic violence or other assaults on children. Parliament has accepted that the use of some violence can be appropriate when disciplining children;[10]

(3) the circumstances of the offence are far removed from the workplace or any scenario the respondent will encounter in the workplace;

(4) in her nursing career, the respondent has not and does not deal with children of a similar age to the victim in the criminal matters; and

(5) the assault was an isolated incident. There have been no acts of violence before or after the incident. By the time of the Stage 2 hearing, over four years will have passed without any recurrence of violent conduct.

1. The practitioner submits that she has undertaken significant psychological counselling and treatment since September 2021, and that:

(1) she has been diagnosed with Adjustment Disorder, Generalised Anxiety Disorder and Major Depressive Disorder;

(2) these mental conditions are "quite significant" and resulted in a finding that she was less morally culpable for the offending;[11]

(3) she is currently diagnosed with Adjustment Disorder with Anxiety and Major Depressive Disorder;

(4) has to date completed 19 psychological treatment sessions since August 2022, being a significant number of sessions and a significant length of time she has engaged in treatment;

(5) is now taking prescribed medication;

(6) while she maintains that she is not guilty of the offence, her account is that she did smack her step-child with a spoon but was using lawful correction (Crimes Act, s 61AA). The practitioner disputes the number of times she is alleged to have smacked her step-child. Significantly, following the offence, she no longer uses corporal punishment with her children at all and instead relies on other reward-punishment strategies such as, "time out, removal of privileges, and rewarding positive behaviours";

(7) notwithstanding that she maintains her innocence, the practitioner's conduct after the offence and the significant steps she has taken demonstrates insight; and

(8) in Mr Gooniah's opinion, the practitioner is not a risk to children.

1. As to protective orders, the practitioner submits that this matter is analogous to Lidman, where a reprimand was imposed. The practitioner submits that the complaints in Lidman were more serious than the circumstances of her case as:

(1) in Lidman, there were two criminal convictions for offences on separate dates. In the present case there is a single offence on one date;

(2) the offences in Lidman occurred against the same person in the context of a 'controlling' intimate partner setting. The circumstances of the present case are markedly different in that excessive discipline was used in a reactive situation and the respondent's mental conditions lowered her moral culpability; and

(3) in Lidman there were multiple failures to report, whereas the practitioner reported the proceedings and was under a mistaken belief that the letter she received from the Commission on 23 January 2023 meant that the Commission was already aware of the conviction.

1. In the words of the Commission in its Stage 1 submissions:

This matter is about a 29 year old nurse, who had been registered as an enrolled nurse for over 3 years, who smacked her 6 year old step-daughter multiple times with a wooden spoon, who was then convicted of assault occasioning actual bodily harm in company and who then failed to promptly report her conviction to the National Board as required.

1. It is appropriate to recall the circumstances of the proven offence the subject of Complaint One.
2. The offence took place on 12 September 2021.
3. When examined at the Dubbo Hospital on 14 September 2021,[12] Child A's injuries were recorded as:

Right Leg:

On her right mid upper thigh, anteriorly, was a reversed J shaped linear bruise, 6cm long and around 4cm across. It could also be described as a C without the top bit.

Above this was a thick linear bruise near the bony part of the right hip, the anterior superior iliac spine This was 3cm long by 1cm thick.

There were no abnormal findings on the back of her right leg.

Left Leg.

On her left buttock cheek, there was an area of bruising around 95cm[13] by 6cm at maximum measurement. It was an oval shape.

Above and to the left of this moving towards her iliac crest, the bony rim of her hip. was another bruised area. 6.5cm by 4cm.

Above the main bigger bruise, was a smaller circular bruise around 1cm.

Below the buttock bruising were two more thick linear looking bruises.

The top one had a circular end with a tail. It was 1.5cm at the top. It was 1cm long reducing in size from the top of the tail.

About 1-2cm below this was another linear bruise 4cm long by 1cm across.

...

The findings of bruising to her left buttock area and right thigh when returned into her mother's care on Sunday 12 September 2021 triggered the child protection process and medical review of the injuries.

Child A had multiple areas of bruising visible to her right thigh and left buttock area

[Person D] her mother has photos on her personal phone.

No discussion was made with the girls about mechanism causing the bruising

Formal interview with the police was scheduled for Wednesday 15" September 2021.

These bruises are not explained by normal childhood play activities

There is no medical reason to explain the number or size of the bruises

No formal pathology or radiology investigations were indicated.

The bruising is suspicious of inflicted injury.

This report is based on the reports from the mother and the clinical examination finings.

(emphasis added)

1. 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). The practitioner's partner, Child A's father, was charged with four similar offences.
2. The Facts Sheet relevantly alleged that:

The victim in the matter is Child A.[14]

On the 12th September 2021, [Person D] contacted Wellington Police Station as she wanted to report that the her daughter Child A had a very large bruise to her left side buttock. Child A and her sister Child B, had allegedly just returned from the [practitioner's residence]. Child A and Child B disclosed to [Person D], that the [practitioner] and co-accused had physically assaulted Child A with a wooden spoon.

...

[Person D] said that Child A and Child B were both in their school uniform, so she wanted to change them into their pyjama's. When [Person D] was changing Child A she appeared to be in some pain, and then she noticed a very large bruise to the left side buttock of Child A. [Person D] questioned Child A and Child B who at first stated that Child A fell over, but then said that the co-accused had hit Child A with a wooden spoon as she was labelled a "liar" by the co-accused, due to breaking a glass vase. Child A and Child B also disclosed that the [practitioner] was also hitting them with a wooden spoon.

When police were speaking [Person D], they asked if they could see the bruise. The witness then attempted to asked Child A if she would show the police, but she appeared very nervous and shy due to the officers being both male. Police asked [Person D] if she could take Child A into another room and obtain a photo of the injuries without the officers present. The witness then escorted Child A another room and took a photo using her mobile phone. The witness then showed police the photo. The photo shows a large purple bruise on the left side buttock, but there is several smaller bruises around the large one.

...

The witness stated that she would also be taking Child A to Wellington Hospital due to the large bruise causing her pain. Police then left the location.

On the 14th September 2021, Child A attended Dubbo Base Hospital in order to have a Suspected Child Abuse & Neglect assessment by a Paediatrician. The notes provided to police from the assessment are as followed:

Significant bruising to left buttock, top left thigh, reverse G shape bruise to top of right thigh and another bruise in right hip. G shape bruise could be spoon shaped. Thought to have had more than one it to have this kind of impact, was good impact. ... Nothing within the time frame to suggest a fall, bike or scooter accident etc Bruising noted to all be roughly of the same age The Paediatrician noted that due to the location, size, multiple bruises, no history of fall etc indicated that this was not likely to be an accident and the bruising was acquired another way. Child A has good coordination and no neurological issues No behavioural concerns, interactions were appropriate No forensic photography taken

...

[Child A] was in the lounge room and the co-accused smacked her lots of times on the buttocks with the wooden spoon and on her right hand. After that, the [practitioner] used the same wooden spoon and smacked Child A on the buttocks more than once.

Child A stated that being hit by [the practitioner] caused a lot of pain. The bruise on her buttocks wasn't there prior to the [practitioner] and co-accused assaulting her with the wooden spoon.

Child A also demonstrated how after being smacked she had to stand with her hands outstretched in position. This version is consistent with what Child B disclosed.

(emphasis added; grammatical and other errors as in original)

1. The practitioner pleaded not guilty to both offences. At the conclusion of a hearing held on 19 January 2021, after the Local Court found the offence of assault occasioning actual bodily harm in company of others (domestic violence) proven and had convicted the practitioner, the Crown withdrew the assault occasioning actual bodily harm "simpliciter" charge.
2. The matter was then adjourned for sentencing and her Honour imposed an Apprehended Domestic Violence Order (ADVO) on both the practitioner and her partner for the protection of both Child A and Child B.
3. Sentencing took place on 21 March 2023. Her Honour described the injuries in these terms:

It cannot be said that the injury is one of a trivial nature pardon me - the offending is not of a trivial nature and the actual injury is not insignificant.

1. Manea LCM sentenced the practitioner to a community corrections order with supervision for a period of two years, with the practitioner having to serve 170 hours. Her Honour said:

In relation to [the practitioner] I repeat my findings in terms of the objective seriousness being above the mid-range aggravated by the fact that it was committed in the presence of other children in the home where she is in a role of a parent as a step-mother who has responsibility and care in the position of that trust at the time of the offending.

The offending is in the context of using that wooden spoon to inflict the injury which caused the assault occasioning actual bodily harm. I am of the view that her case is somewhat different on a finding of her mental health impairment and that is a generalised anxiety disorder, a major depressive disorder and an adjustment disorder of which seemed to be quite significant.

She has undertaken counselling and some nine sessions and the material before me outlined in the report that I have already referred to of Mr Navin Goonniah indicate that she has engaged with and that is for the 7 December 2022 treatment sessions to deal with the challenges and areas of development in terms of her anxiety and her condition.

I find that that does mean that she is less morally culpable or in terms of general deterrence that less of a vehicle in terms of general deterrence to be made an example of in the community.

However, it is a serious offence, one which indicated already carries a seven year maximum penalty, there is no discount for the fact that the matter was run to a hearing. There is some expression in the sentencing assessment report about the effect it has had on her and the impact in terms of her nursing registration. It is regrettable she will have to continue on with employment to provide for her family, this offence obviously has weighed heavily on both of the accused people since they have come to court and were convicted on the last occasion | take that into account. She is suitable for community service.

1. The practitioner appealed both the conviction and the ADVO. The appeal was heard in the District Court at Wellington on 31 January 2024. In summary, the practitioner submitted that the Magistrate erred by failing to adequately consider large parts of the evidence and failed to reject the evidence of the accused[15] to the criminal standard. The practitioner submitted that the Magistrate misused the first instance advantage she held; that her failure to adequately consider large parts of the evidence meant that findings as to credit and/or reliability cannot be deferred to and must be disregarded; that, further, no findings to the criminal standard can be made that could support a finding of guilt; and that, consequently, the finding of guilt should, therefore, be set aside.
2. Robinson DCJ noted that the practitioner continued to rely on the defence of lawful correction, a defence that appears in s 61AA of the Crimes Act. That section provides:

Defence of lawful correction

61AA Defence of lawful correction

(1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if--

(a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and

(b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.

(2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied--

(a) to any part of the head or neck of the child, or

(b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.

(3) Subsection (2) does not limit the circumstances in which the application of physical force is not reasonable.

(4) This section does not derogate from or affect any defence at common law (other than to modify the defence of lawful correction).

(5) Nothing in this section alters the common law concerning the management, control or restraint of a child by means of physical contact or force for purposes other than punishment.

1. Robinson DCJ gave a lengthy ex tempore judgment. Her Honour found that the while the Magistrate was satisfied that assault occasioning actual bodily harm had been proved beyond reasonable doubt, the Magistrate had erred in failing to particularise in her decision that she was also satisfied that the element of "in company" had been made good.
2. In those circumstances, Robinson DCJ carried out her own evaluation of the evidence.
3. Relevantly, her Honour:

(1) rejected the practitioner's criticisms of inconsistencies in Child A's evidence, finding her evidence supported by the complaint she made to her mother the day after the incident;

(2) found that Child A's evidence also supported by the views of Dr McGeechan who assessed Child A on 14 September 2021, and produced a report which was tendered without objection confirming those injuries, injuries which were not explained by childhood playing activities. Her Honour described Dr McGeechan's evidence as "very powerful";

(3) Child A's evidence was also supported by contemporaneous account to the police at an interview within days of the incident; and

(4) Like Manea LCM, found Child A's mother to be a reliable witness.

1. When it came to the evidence of the practitioner (and her partner, who had also appealed his conviction), who had given evidence at the appeal hearing, her Honour stated:

Similar to the learned Magistrate, I do not accept the evidence given by either of the appellants, and, in fact, I, too, comfortably reject it. Most telling is the explanation given by each of some contact with the complainant involving an item - a spoon or a spatula - to her bottom area; an explanation which is not in any way consistent with the injuries as acknowledged in the photo, the medical records, or the expert opinion of the Doctor.

That, in my view, is crucial and determinative of the truthfulness and reliability of the accounts given by each of the appellants. Added to that is the fact that the [practitioner's partner], refers to an incident on the Saturday involving a broken vase, and him, later that day, taking some action against the complainant in the way that he identifies, which is in some way connected to that vase and her allegedly lying. That provides some support for the complainant's version, but, importantly, neither [appellant] in any way give evidence consistent with the unchallenged evidence of both of the children of a disciplinary process or procedure that was adopted by both the appellants on that Saturday evening.

There was challenge made to what each of the appellants did to the complainant, but there was no challenge made of the complainant's evidence and that given by her sister in the way they described that procedure, and I unequivocally accept to have occurred.

The evidence of the appellants', in my view, is convenient, likely reconstructed, and likely done so in an attempt to exculpate themselves of responsibility for what occurred on this day.

Having formed that view, as may be clear, I do not accept any reasonable possibility that their accounts are true. Again, particularly telling is the extent of the injuries, and I confirm in that regard my earlier assessment of the expert evidence which rules out the reasonable possibility as the injuries having occurred as a consequence of any other incident. There is no other reasonable explanation, in my view rising from the evidence that explains those injuries.

I comfortably reject the version of events given by both appellants.

(emphasis added)

1. Her Honour went on to find that all the elements of the offence of assault occasioning actual bodily harm in company had been proved beyond reasonable doubt.
2. As to the defence of lawful correction, on the version of events that Robinson DCJ accepted, her Honour did not consider the force to be reasonable. This was due to the factor required to be taken into account as identified in s 61AA(1)(b), including the age of the victim at the time, the number of blows inflicted, the use of the spoon/spatula, the fact that two people were involved, and the reason being the consequence of alleged misbehaviour. Also, her Honour found, in recognition of s 61AA(2)(b) and the unchallenged evidence that the consequent harm to the child lasted for more than a short period. Rather, as described by Dr McGeechan, the harm was significant.
3. Her Honour concluded that the defence of lawful correction was not established, primarily because she did not accept the explanation given by either appellant for that purported punishment. Further, the version of events that her Honour found proved beyond reasonable doubt did not, "in any way", amount to one that is reasonable for the reasons that her Honour indicated.
4. Accordingly, the appeals were dismissed and the findings of guilt by the Magistrate confirmed.
5. In oral submissions at the Tribunal hearing, Ms Bayley noted when viewed as a whole, the Stage 2 evidence demonstrated some positive factors for the practitioner, such as her engagement with Mr Gooniah. However, Ms Bayley submitted that there was a risk of reoffending were the practitioner to find herself in stressful situations, and emphasised that the practitioner still did not accept responsibility for her offending.
6. In oral submissions for the practitioner, Mr Singh conceded that the practitioner maintained her innocence of the offence, but submitted that she did show some insight into her behaviours, demeanour, and now had an understanding of the impact on the children and mother of the children. Mr Singh submitted that the Tribunal would accept that there were good prospects of rehabilitation.
7. Mr Singh placed great emphasis on the Tribunal's reasons for decision in Lidman. We have summarised Mr Singh's submissions above.
8. Mr Lidman was a male nurse who had committed a "serious assault" on his partner in 2015. The complaints to the Tribunal arose as a result of a criminal conviction for the 2015 assault, and failure to make timely and appropriate self-notifications to the National Board concerning the criminal proceedings. When Mr Lidman and his then partner separated in 2017 an Apprehended Violence Order was issued for her protection. A breach of that order led to the practitioner receiving a second criminal conviction, and his subsequent failures to self-notify to the National Board concerning those proceedings: Lidman at [1].
9. The practitioner pleaded guilty to both the 2015 and 2017 criminal offences, and received a good behaviour bond on each occasion: Lidman at [2].
10. In Lidman, the Tribunal stated, in sentiments with which we agree, that:

10 It is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role, however where there is no nexus a more careful inquiry into the public interest factors may be required. There may be instances in which 'public interest' is taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences involving violence, sexual assault or the sexual exploitation of children, for example, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within that profession.

11 We find that the criminal act of assault against a partner in a domestic setting may be such that a practitioner is unfit in the public interest to practise as a nurse. The protection of the health and safety of the public is the paramount consideration under the NSW version of the National Law, and all of our functions under the Law must be guided by this consideration. Family and domestic violence remains one of the most serious and sustained threats to the health and safety of the Australian public, in particular to women and children.

12 The practitioner's conduct in assaulting his then partner is conduct that is incompatible with respect for the health, welfare and safety of the public. The assault in this matter was a serious one, and took place in the presence of the victim's daughter.

13 After careful consideration of the circumstances of the offences, on the limited evidence available, we do not find on balance that the practitioner is unfit in the public interest to practise. The 2015 assault appears to be an isolated incident, which occurred while the practitioner was under the influence of drugs and alcohol. While we have some concern that there is little expression of remorse or genuine responsibility for this assault in the practitioner's very brief written 'reflection', we have no evidence of any later acts of violence or domestic abuse to suggest any repetition or pattern of violent conduct.

...

16 As such, although we denounce the practitioner's very serious past criminal conduct in assaulting his partner as incompatible with the values and conduct expected of health practitioners by the public, we do not find that he is unfit in the public interest to practise as a nurse in the future.

1. We regret to say that we cannot come to the same conclusion.
2. The principal reasons for that conclusion is that unlike Lidman, where the practitioner admitted his guilt to the Court to the Tribunal, here the practitioner has not admitted or acknowledged her guilt to the Commission, the Council, the Local Court, the District Court or to us where, despite the District Court's conclusions as to her veracity and credit, the practitioner continues to minimise the extent of her involvement, and suggest that Child A had been coached by her mother to give false evidence at the Local Court.
3. The Commission's submissions, on this point, which we accept, are compelling, namely:

(1) the practitioner explained to the Magistrate that she tapped Child A on the bottom once because she was pinching[16] and claimed that it was appropriate discipline,[17] but the Magistrate rejected the practitioner's defence of lawful corporal punishment;[18]

(2) the District Court judge found that the evidence of the practitioner and her partner was "convenient, likely reconstructed, and likely done so in an attempt to exculpate themselves of responsibility for what occurred on this day";[19]

(3) the practitioner's explanation was rejected because it was "not in any way consistent with the injuries ... in the photo, the medical records or the expert opinion;[20]

(4) the District Court judge instead accepted Child A's version, namely that the practitioner's partner then the practitioner both struck Child A in response to the broken vase;[21]

(5) the practitioner's explanations show that she does not accept responsibility for her offending;

(6) the practitioner explained to the Office of Children's Guardian that the "allegation has not been proven and does not relate to my employment or workplace conduct";[22]

(7) the practitioner explained to the Commission that the allegation was false and "does not relate to my employment or workplace conduct."[23] The practitioner explained to the Council that the accusations had been made up and that the "incident had occurred in her private life and not in her work as a nurse";[24]

(8) the practitioner explained to the s 150 delegates that "on paper" this was quite a serious offence[25] but that it was "completely not true";[26]

(9) the practitioner explained during the Stage 1 hearing that she does not admit assaulting Child A.

1. In addition to our observation that the practitioner still does not accept responsibility for her offending, our observation is that she has limited insight as to how the circumstances of her offence impact on her trustworthiness in the profession of nursing.
2. We are fortified in this view by the maintenance of the practitioner's position before us that "Parliament has accepted that the use of some violence can be appropriate when disciplining children", by reference to s 61AA of the Crimes Act. As the Commission submits, while there is a defence for physical force applied for the purpose of the punishment of a child, that defence is only available if the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.
3. The Magistrate rejected the practitioner's defence, as did the District Court judge, who concluded that the force was not reasonable.
4. As the Tribunal stated in Health Care Complaints Commission v Ruming [2024] NSWCATOD 77 at [71]:

It is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role. Where an offence is not committed in the course of acting in a professional role, a nuanced approach to the public interest is required. Matters such as the extent to which the reputation and trust in the nursing profession is maintained and the wider community interests in the ethical standards expected of health professionals will come to the fore. Health care professionals should be committed to the ethics of health care in having a responsibility to ease human suffering. Not cause it or be complicit in it.

1. The Commission submits, correctly, that the AHPRA Code of Conduct for Nurses,[27] (Code of Conduct) is admissible in these proceedings as evidence of what constitutes appropriate professional conduct or practice for the health profession, (National Law, s 41), and therefore is a legitimate benchmark against which the practitioner's conduct may be assessed.
2. We note that a practitioner's obligations under the Code of Conduct include the following.
3. First, there are certain professional values on which all practitioners are expected to base their practice. For example, nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration.[28] Here, the Commission submits, and we accept, that the practitioner participated in unlawful behaviour by assaulting a child in her care.
4. Secondly, that nurses embody integrity, honesty, respect and compassion;[29] Here the Commission submits, and we accept, that the practitioner's conduct is inconsistent with the compassion expected of nurses. We note that the Tribunal has held that it may consider "whether the practitioner's criminal offence exhibits traits in the practitioner inconsistent with the honourable practice of an honourable profession'" and that it is not necessary for a nexus to be established between the criminal offence and the practice of that profession: Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [93].
5. Thirdly, nurses also have a responsibility to promote health and wellbeing for people and their families.[30] Here the Commission submits, and we accept, that:

(1) the practitioner injured Child A, in the presence of other children;

(2) where health professionals are convicted of serious criminal offences involving violence, the public's ability to entrust their care to those health professions maybe imperilled if the convicted practitioner continues to practise.

1. Fourthly, nurses have a valuable role to play in being alert to suspected domestic violence within their community, rather than perpetrating it. The practitioner was convicted of assault occasioning actual bodily harm (domestic violence related) in company. The Commission submits, and we accept, convictions for domestic violence may jeopardise public confidence in the nursing profession.
2. Having found that practitioner is unfit in the public interest to practise as a nurse, it follows that it is appropriate to make an order cancelling the practitioner's registration.
3. We note that in Lipman, a reprimand was ordered. However in Lipman, unlike the circumstances of this matter, Mr Lipman pleaded guilty, the Commission did not seek cancellation, and the Tribunal found that Mr Lipman was fit in the public interest to practise as a nurse. Here, the practitioner did not plead guilty, and has in fact persistently claimed that she did not commit the offence, the Tribunal does seek cancellation and we have found the practitioner unfit in the public interest to practise as a nurse.
4. We agree with the Commission that the appropriate period before which the practitioner may seek reinstatement is a period of 12 months.

1. The Commission has already sought an order that it be paid its costs of the proceedings.
2. The practitioner has reserved her position.
3. The Tribunal has repeatedly indicated, as has the Court of Appeal, that this is a costs jurisdiction, and the ordinary rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
4. In these circumstances, we propose to order the practitioner to pay the Commission's costs.
5. However, as we have not heard from the practitioner, we will allow her 14 days to file and serve submissions if she opposes that order.
6. The Commission may reply within a further 14 days if necessary.
7. We propose to consider costs on the papers and without a hearing: Civil and Administrative Tribunal Act 2013 (NSW), s 50(2). Either party opposing that course should address that issue in their submissions.

(1) The registration of the respondent as a nurse is cancelled pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW).

(2) Any application for review of order (1) may not be made until 12 months after the date of these orders.

(3) Any submissions from the respondent resisting an order that she pay the applicant's costs as agreed or as assessed is to be given to the applicant and filed with the Tribunal within 14 days of the date publication of these reasons.

(4) Any submissions in reply by the applicant may be given to the respondent and filed with the Tribunal within 28 days of the date of publication of these reasons.

(5) Pursuant to cl 7 of Sch 5D of the Health Practitioner Regulation National Law (NSW) prohibiting the disclosure to any person or entity the names, addresses or any other identifying information of Person D.

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.

[7] Here the Commission relies on, (albeit in different interstate statutory schemes) a nurse who assaulted her 10 year old son: Health Ombudsman v Horsburgh [2023] QCAT 368 at [10] and [15]; a nurse who assaulted his 16 year old daughter: Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157 at [8]- [10] and [20]-[21]; and a nurse who assaulted his six year old daughter: Health Ombudsman v MBS [2023] QCAT 551 at [7].

[8] Clearly this is an error. The reference to "five breaches" may possibly be a reference to the factual circumstances in Health Care Complaints Commission v Lidman [2020] NSWCATOD 48; see [17].

[9] Remarks on Sentence, Manea LCM, 21 March 2023.

[10] Crimes Act 1900 (NSW), s 61AA.

[11] Remarks on Sentence, Manea LCM, 21 March 2023.

[12] Statement of Dr Anne McGeehchan, 14 September 2021; Ex A, 391-396.

[13] It may be that the reference to 95cm is a typographical error. While it is hard to gauge the total size of the injury, the photographs relied on by the Commission at pp 38 and 39 of Ex D depict an extensive injury consistent with Dr McGeechan's view that the harm was significant.

[14] Child A, then aged approximately six years, is a step-child of the practitioner.

[15] This appears to be a reference to both the practitioner and her partner: Judgment, Robinson DCJ, 31 January 2024; Ex A,524.

[27] Effective from 1 March 2018; updated June 2020.

[28] Code of Conduct, 1.2 Lawful behaviour.

[29] Code of Conduct, Principle 4: Professional behaviour.

[30] Code of Conduct, Principle 7: Health and wellbeing.