Health Care Complaints Commission v Harvey

The Application before the Tribunal

1. An application for disciplinary findings and orders against Mr Harvey has been initiated under the Health Practitioners National Law NSW (Nursing). The application is made by the Health Care Complaints Commission (the Applicant). The application attaches a Complaint dated 21 April 2017 ("the Complaint"). The Complaint makes three individual Complaints against Mr Harvey. The first Complaint is supported by a set of particulars. The second Complaint relies on a distinct and separate set of particulars. The third Complaint relies on the same set of particulars as contained in the first and second Complaints.
2. The first Complaint alleges that Mr Harvey is guilty of unsatisfactory professional conduct within the meaning of s139B(1)(a) and (l) of the National Law arising out of his conduct towards a child, Patient A, and towards other staff.
3. The second Complaint alleges that Mr Harvey is guilty of unsatisfactory professional conduct because he contravened a condition to which is registration was subject.
4. Section 139B of the National Law defines unsatisfactory professional conduct. For present purposes the relevant provisions are contained in s.139B(1)(a), (c), and (l) and are as follows: 1. Conduct that demonstrates the knowledge, skill or judgement 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 … 1. A contravention by the practitioner (whether by act or omission) of:- 1. a condition to which the practitioner's registration is subject; or 2. an undertaking given to a National Board … 1. (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
5. The third Complaint alleges that Mr Harvey is guilty of professional misconduct within the meaning of s139E of the National Law.
6. Section 139E of the National Law provides: For the purposes of this Law, professional misconduct of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration, or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
7. If the Complaints are found proven by the Tribunal, the Applicant requests the Tribunal to exercise its power to make disciplinary orders specifically that Mr Harvey's registration be cancelled and that he not make any application for review of the cancellation of his registration for a period of at least 12 months. It also seeks an order for costs.

The Hearing

1. Mr Harvey did not attend the substantive hearing. Prior to the hearing the Tribunal conducted two directions hearings in the matter.
2. On 19 May 2017 a directions hearing was held which provided for the filing and serving of material by the parties. Mr Harvey was represented at this directions hearing by Ms Kava, solicitor, New Law. The matter was also listed for hearing and scheduled for 18 September 2017.
3. On 27 June 2017 and in accordance with the directions made on 19 May 2017 the Applicant served documents on Mr Harvey which comprised its evidence in this matter.
4. By letter dated 18 July 2017 Ms Kava, advised the Tribunal that Mr Harvey had withdrawn his instructions. She enclosed a Notice of Ceasing to Act. Ms Kava further advised that Mr Harvey had requested that she inform the Tribunal that it was his intention not to appear to defend the complaint. She added that he understood that the matter would proceed on the papers in his absence.
5. Further directions were held on 25 August 2017. Mr Harvey was notified of this listing. He did not appear. The date for the hearing was confirmed.
6. There has been no other correspondence by Mr Harvey with the Applicant or the Tribunal about this matter. Mr Harvey has not filed any material in accordance with the directions made on 19 May 2017.
7. The Tribunal is satisfied from the evidence before it that Mr Harvey is aware of these proceedings. The application and attached Complaint was served on Mr Harvey. The application sets out the range of orders sought by the Applicant. There was no request from Mr Harvey for an adjournment of the hearing. The letter from Ms Kava indicates it was Mr Harvey's intention not to defend the matter. In the light of these matters and in the interests of justice the Tribunal was satisfied that the hearing ought to proceed in Mr Harvey's absence.
8. Although Mr Harvey did not participate in the hearing and through his former solicitor indicated that he did not intend to defend the complaint, he has not indicated to the Tribunal that he concedes the factual matrix underpinning the complaints. Equally, he has not indicated to the Tribunal that he denies the conduct alleged. Nor has he presented any evidence which contests the particulars of the complaints or contradicts the evidence relied upon by the Applicant.

Particulars of the Complaints and Evidence in Support

Complaint One: Unsatisfactory Professional Conduct

1. Patient A attended the ASU at Westmead Hospital on 31 October 2014 for a dental procedure under general anaesthetic. All of the particulars in Complaint One are alleged to have occurred on 31 October 2014 at the ASU. At the time Patient A was seven years old.
2. Complaint One alleges a series of incidents involving Patient A some of which came to light when Patient A's mother complained to staff members. Some of the incidents were witnessed by nursing staff. In addition Patient A's mother made a handwritten complaint dated 31 October 2014 which detailed a number of the incidents.
3. Particular 1 alleges that Mr Harvey made a comment to Patient A to the effect of "you better close that gown of yours or I will have to whistle at that" in circumstances where Patient A was wearing only a hospital gown over her underwear and was walking to the toilet. The allegation that Mr Harvey made this comment to Patient A arose from the written complaint by Patient A's mother.
4. In an interview conducted on 16 January 2015 as part of an investigation conducted by Western Sydney Local Health District (WSLHD), Mr Harvey first said that he did not recall this incident. Later on in the interview he denied making the statement attributed to him. He admitted to sitting on Patient A's bed at the completion of her admission, saying that he was trying to settle Patient A ahead of her surgery. In a submission prepared by New Law dated 31 August 2016 to the Health Care Complaints Commission (HCCC), Mr Harvey denied the incident.
5. Particular 2 relates to Mr Harvey tickling Patient A's feet and attempting to tickle her stomach and/or around her waist.
6. The allegation arose from the written complaint by Patient A's mother, in which she reported that: … on few occasions he was trying to tickle her feet [Patient A] was not feeling comfortable…. …Then proceeded to try tickle her stomach as he called her cheeky cow…
7. In a statement dated 10 December 2015, a Clinical Nurse Specialist in the ASU, said that a staff member came to her during the afternoon saying that Mr Harvey was sitting on the end of a child's bed and was tickling her feet.
8. In a statement dated 10 December 2015 RN Reyes, a Registered Nurse who was working in the ASU on this day, said that she saw Mr Harvey tickling Patient A's feet. RN Reyes made a record of this on a data base (AIMS) at the time, stating that Mr Harvey was tickling Patient A on her hips and toes in front of her mother, and observed that her mother was uncomfortable with this.
9. In a statement dated 10 December 2015 RN Claridge, another Registered Nurse on duty this day, also saw Mr Harvey tickling Patient A. She said that RN Reyes and another staff member asked Mr Harvey to move away from the child as his behaviour was inappropriate.
10. In the WSLHD investigation interview conducted on 16 January 2015, Mr Harvey admitted to tickling Patient A's feet, toes and legs. He indicated that this was to relax her. In response she had pulled her feet up under her gown, laughed and giggled. He thought RN Claridge and RN Reyes may have misinterpreted his actions. On reflection, he said, that tickling was not appropriate and was stupid.
11. In the section 150 proceedings held on 24 August 2015, Mr Harvey was invited to provide his side of the story in relation to his conduct on 31 October 2014. He said his habit was to speak to the patient no matter their age. He sat on the bed talking to the child and she was a little nervous, so he tickled her feet and legs but, he said he did not remember tickling any higher. The patient drew her legs up under her gown, gave him a giggle and a "bit of a smile".
12. In a response to the NMCNSW dated 3 September 2015 Mr Harvey admitted that he tickled Patient A's feet, but denied tickling her waist area. He stated that given Patient A drew her feet to her chest while he tickled her it was possible that in inadvertently touched her in the hip area. He stated that at the time he was attempting to amuse Patient A.
13. Ms Twomey provided an expert peer report dated 8 August 2016 which examined Mr Harvey's conduct. Ms Twomey has been registered as a Nurse since 1980 and has substantial experience in working in Women's and Children's Health Services in Australia and New Zealand.
14. Ms Twomey opined that Mr Harvey's conduct in touching a seven year old female patient by tickling her toes, feet, legs, waist and hip area to amuse her, was significantly below what is reasonably expected of a practitioner with the same training or experience.
15. In Ms Twomey's opinion, in doing so, Mr Harvey did not think critically and analyse the nursing practice being provided and did not engage in a therapeutic or professional relationship. Ms Twomey pointed out the difference between kindness and professional boundaries.
16. Particular 3 alleges that Mr Harvey inappropriately called Patient A words to the effect of "cheeky" and or "cheeky cow". This allegation is made in the written complaint made by Patient A's mother. The allegation was also verbally reported by Patient A's mother to a member of staff. The context of the allegation is to the effect that Mr Harvey made the comments to Patient A because she had pulled her legs up under her gown in response to his tickling her toes. Patient A's mother had observed her child to be uncomfortable when tickled by Mr Harvey. In the WSLHD investigation interview Mr Harvey denied this allegation. However, in a submission to the HCCC dated 31 August 2016, Mr Harvey admitted that he called Patient A "cheeky". He said he did not recall using the words "cheeky cow" but accepted it was possible.
17. In Ms Twomey's peer report, assuming Patient A's mother's version was correct, she expressed the view that Mr Harvey's conduct in stating words to the effect of "cheeky" and "you cheeky cow" to a seven year old female patient, in circumstances where the patient's mother was present, was below what is reasonably expected. Ms Twomey considered the language to be inappropriate and demonstrating a lack of respect for the patient and understanding of his role in providing a therapeutic relationship. In support of her opinion she referred to cl 4.2 of the Code of Professional Conduct for Nurses in Australia, and "A Nurse's Guide to Professional Boundaries". Relevantly the Code refers to the role Nurses hold in promoting and protecting the interests of people receiving treatment and care, whilst the Guide refers to nurses actively preserving the dignity of those in their care and respect for their vulnerability.
18. Particular 4 alleges that on at least two occasions Mr Harvey inappropriately "wolf whistled" at Patient A whilst she was wearing her hospital gown. This allegation arose from reports by staff at Westmead Hospital.
19. The first occasion was when Patient A was walking to get a book from the bookshelf with RN Reyes. RN Reyes said that as they walked past Mr Harvey he wolf-whistled. RN Reyes made an entry in the AIMS database, recording that this incident occurred at about 2.30pm.
20. The second occasion occurred when Patient A was walking to the toilet with a nurse. RN Reyes was at the nurse's desk as Patient A was being escorted to the toilet and she heard Mr Harvey wolf-whistle again. RN Reyes made a further entry in the AIMS database.
21. Although not recorded in Patient A's mother's written complaint, the Acting Director of Nursing reported that Patient A's mother told her that when Patient A was getting up to go to the toilet, Mr Harvey had whistled when she got up.
22. In the WSLHD investigation interview Mr Harvey denied the allegation of wolf whistling. He stated he could not wolf-whistle as he had had a broken tooth. He explained that he does have a habit of whistling and had been chided previously by a supervisor for it. However he conceded he may have made that sound near Patient A as he was walking away in exasperation. In the section 150 proceedings, Mr Harvey said he could not whistle because of a partial plate.
23. To the NMCNSW Mr Harvey denied the allegation, and again stated that he was known to have a habit of whistling while he works, and may well have been whistling as he walked in or around the unit. To the HCCC, Mr Harvey denied the allegation and referred to his response to the NMCNSW.
24. Ms Twomey expressed the view that "wolf whistling" on at least two occasions to a seven year old female patient wearing only a theatre gown at the time, where the patient's mother was present, was significantly below what is reasonably expected. Ms Twomey said this invited her strong criticism. In Ms Twomey's opinion, this conduct involved breaches of four different sources of professional standards or codes of conduct, it brings the profession into disrepute; and it has no place in practice.
25. Particular 5 alleges that Mr Harvey poked his head around the corner and stuck his tongue out at Patient A on more than one occasion. This arose from the written complaint by Patient A's mother.
26. In the WSLHD investigation interview Mr Harvey accepted he could have poked his tongue out but denied sticking his head out from around corners. A couple of years previously a colleague had told him not to poke his tongue out. He agreed that in hindsight it was inappropriate. However, he said that whether or not it could be appropriate in general, depended on the child. In this case he said Patient A smiled and giggled.
27. In the section 150 proceedings, Mr Harvey accepted that management and colleagues had previously advised him that some of his behaviours during his nursing practice, such as whistling, poking his tongue out and sitting on a patient's bed, were inappropriate but he continued to do these things.
28. To the NMCNSW, Mr Harvey admitted he poked his tongue out. He stated that at the time he was attempting to amuse Patient A. He accepted with the benefit of hindsight that this behaviour was inappropriate. He reiterated this position in submissions to the HCCC.
29. Ms Twomey expressed the view that Mr Harvey's conduct in sticking his tongue out at Patient A was significantly below what is reasonably expected. She said it was not respectful, displayed unprofessional behaviour; and crossed professional boundaries. Ms Twomey referred to clause 4.2 of the Code, and page 1 of "A Nurse's Guide to Professional Boundaries". Further, Ms Twomey noted publications to the effect that this gesture could have multiple meanings: it could be rudeness, disgust, playfulness, or outright sexual provocation.
30. Particular 6 alleges that Mr Harvey inappropriately made a comment involving sexual innuendo in the presence of Patient A using words to the effect of, "That is not the only thing you pull" or "that's not all she likes to pull off" in reference to a doll with removable arms and legs that Patient A was discussing with RN Claridge.
31. Both Patient A's mother and RN Claridge reported this incident having occurred, and others reported having been told about it soon afterwards. In her statement RN Claridge was unsure who this comment was directed at.
32. In the WSLHD investigation interview Mr Harvey said that the comment was not directed at Patient A, but it was directed in general. He said RN Claridge was talking to Patient A, and he believed he said "that's not the only thing that comes apart" with reference to the dolls, by which he was meaning the heads, clothes and accessories, as this was written on the box and he was aware of this from his own experience. He disputed the wording that had been attributed to him.
33. In his response to the NMCNSW Mr Harvey said that he recalled that the doll Patient A had with her was the same doll he had given as gifts to his nieces. He was aware that these dolls can come apart. He believed that he made a comment with words to the effect that "that's not the only thing that comes apart", in response to a comment made by RN Claridge. He accepted with the benefit of hindsight that this comment had the potential to be misconstrued.
34. To the HCCC, Mr Harvey relied on his response to the NMCNSW, but clarified that the comment was made to RN Claridge and not to Patient A.
35. Ms Twomey said that in stating words to the effect, "That's not the only thing you pull off" in reference to a doll with removable arms and legs, where Patient A and another nurse were talking about the doll, Mr Harvey's conduct was significantly below what is reasonably expected. She said the language contained strong sexual innuendo, was unprofessional and breached professional practice expectations, referring to cl 4.2 of the Code.
36. Particular 7 combines Particulars 1 to 6 to allege that Mr Harvey engaged in inappropriate behaviour of a sexual and/or harassing nature towards Patient A, alone or in combination.
37. Particular 8 alleges that Mr Harvey inappropriately said to a ward clerk words to the effect "I have had enough of this place, I'm going home" and when the ward clerk said he could not do that he said words to the effect "watch me," and as he walked away said "F you". In her statement the ward clerk clarified that the profanity was not directed at her.
38. In his response to the NMCNSW, Mr Harvey admitted the allegation, and accepted that with the benefit of hindsight his behaviour was inappropriate. He said that as the day unfolded, it became increasingly stressful for him and he was leaving the ward upset and uncertain when he made the unfortunate comments. Mr Harvey maintained this position in a submission to the HCCC.
39. Ms Twomey considered that Mr Harvey's conduct in combination and his judgement in conducting himself in this matter were significantly below what is reasonably expected. Ms Twomey noted that Mr Harvey had admitted to tickling Patient A's feet, toes and leg when Patient A was wearing only a theatre gown; sticking his tongue out at her; saying "that's not the only thing that comes apart'; as well as the comments made to and in the vicinity of the ward clerk. Ms Twomey expressed the view that this admitted conduct was below what is reasonably expected. Further, Mr Harvey's judgement was below what is reasonably expected.

Complaint Two: Unsatisfactory Professional Conduct

1. Complaint Two alleges Mr Harvey breached a condition that was imposed on his registration that he may only provide nursing care to adult patients or clients and must not assess, treat or provide nursing care to children in any practice setting. It alleges that on 22 September 2015 he breached that condition whilst working at WDS when he acted as a nurse assisting during a circumcision procedure on Patient B, who was then aged eleven years. The particulars contend Mr Harvey: 1. was present at the operating table during the surgery; 2. was located around the middle of the torso of Patient B during the surgery; and 3. stated to theatre staff, at some stage during the procedure, that he had conditions on his registration and that he didn't think he was allowed to work with children.
2. The Director of Nursing at WDS stated that during the morning she walked into one of the operating theatres and saw that Mr Harvey had scrubbed for a case which involved a child patient. She looked at the wall and read that the case was a circumcision. Because the medical staff were half way through the procedure, she did not speak to Mr Harvey at that stage.
3. After the procedure, the Director of Nursing spoke to Mr Harvey and advised he was not to participate in cases involving children. She learned from speaking with senior nurses, that Mr Harvey appeared to be "quite open with all staff that he had paediatric restrictions".
4. An anaesthetist during a procedure on 22 September 2015, recalled that Mr Harvey was present as either the scout or scrub nurse. He recalled the respondent telling theatre staff, to the effect, "I think I have conditions on my registration" and "I don't think I am allowed to work with children".
5. The surgeon on 22 September 2015, said that at some stage during the procedure he overheard Mr Harvey telling theatre staff about the conditions on his registration. He recalled Mr Harvey standing around the middle of the patient's torso during the procedure, and did not recall him touching the patient.

Complaint Three: Professional Misconduct

1. Complaint Three comprises the accumulation of the conduct alleged in the various particulars of Complaints One and Two and put forward in their totality to support a finding of professional misconduct.
2. In essence the Applicant submits that Mr Harvey's departure from accepted standards in this case was either deliberate or at the least involved such a degree of flippancy and disrespect that it portrayed indifference and abuse of the privileges which accompany his registration.

Nursing Standards

1. The Nursing and Midwifery Board of Australia has developed a number of documents which set out standards and gives Nurses guidance as to the conduct expected of them.
2. The Code of Professional Conduct for Nurses in Australia, at Conduct Statement 4.2, requires nurses to promote and protect the interests of people receiving treatment and care. This includes taking action to ensure the safety and quality of their care is not compromised because of harmful prejudicial attitudes about attributes including gender.
3. A Nurse's Guide to Professional Boundaries (2010) refers to the power imbalance present in a professional relationship places the recipients of care in a position of vulnerability and of potential exposure to exploitation or abuse if trust is not respected. Nurses have a responsibility to ensure that a relationship based on plans and goals that are therapeutic in intent and outcome is maintained.
4. The NSW Code of Conduct, March 2012 produced by NSW Health requires staff to promote a positive work environment.
5. All these documents were before the Tribunal.

FINDINGS

1. For the reasons that follow the Tribunal is satisfied that all but one of the particulars relied upon by the Applicant are established and that Complaints One, Two and Three are proved.

Complaint One: Unsatisfactory Professional Conduct sections 139B(1)(a) and (l)

1. The evidence in support of Particular 1 that Mr Harvey made a comment to Patient A to the effect of "you better close that gown of yours or I will have to whistle at that" in circumstances where Patient A was wearing only a hospital gown over her underwear is contained in the statement of Patient A's mother. The allegation was denied by Mr Harvey at the WSLHD investigation interview and in his submission to the HCCC. None of the other witness statements before the Tribunal referred to this specific incident. The Tribunal has not had the benefit of hearing direct evidence from Patient A's mother on this issue. Although the Applicant has tried on a number of occasions to contact Patient A's mother, its most recent letter to her came back return to sender unclaimed. In the Tribunal's view the nature and extent of the evidence about this allegation is inconclusive and is not capable of supporting a finding that this particular is made out.
2. Mr Harvey conceded that he tickled Patient A's feet and it was possible that he inadvertently touched her in the hip area. Mr Harvey's conduct in tickling Patient A was witnessed by a number of staff members and Patient A's mother. In a submission to the HCCC Mr Harvey admitted that he called Patient A "cheeky". He could not recall using the words "cheeky cow" but accepted it was possible. Patient A's mother referred to the incident in her handwritten statement and reported it to a member of staff at the time. The Tribunal is satisfied that Particulars 2 and 3 are made out.
3. Mr Harvey was observed by a Registered Nurse on duty to have wolf whistled in the direction of Patient A on two occasions. In addition Patient A's mother reported the incident to the Acting Director of Nursing. Mr Harvey denied that he wolf whistled but stated that he had a habit of whistling while he works. In the Tribunal's view Mr Harvey's explanation of attempting to draw a distinction between wolf whistling, which he claims he did not do, and whistling whilst he worked, which he did do is not plausible. It runs counter to the direct observations of a Registered Nurse on duty and the report made by Patient A's mother.
4. Patient A's mother refers to Mr Harvey poking his tongue out at Patient A. In the WSLHD investigation interview Mr Harvey accepted he could have poked his tongue out at Patient A and agreed that it was inappropriate.
5. In the Section 150 proceedings Mr Harvey said that management and staff had advised him that some of his behaviours such as whistling and poking his tongue out where inappropriate yet he continued to do these things. The Tribunal is satisfied on the evidence before it that Mr Harvey did these things on this occasion. The Tribunal is satisfied that Particulars 4 and 5 are made out.
6. Particular 6 is that Mr Harvey inappropriately made a comment involving sexual innuendo in the presence of Patient A using words to the effect of, "That is not the only thing you pull" or "that's not all she likes to pull off" in reference to a doll with removable arms and legs that Patient A was discussing with another Nurse. This incident and the words used are referred to in the statements of Patient A's mother and the Registered Nurse who was with Patient A at the time. Mr Harvey's version of this incident is that he believed the words he used were to the effect that "that's not the only thing that comes apart". Moreover he made the comment in response to something said by the Nurse with Patient A. He accepted with the benefit of hindsight that this comment had the potential to be misconstrued. In a submission to the HCCC, Mr Harvey clarified that the comment was made to the Nurse with Patient A and not to Patient A. In the Tribunal's view the recollection of Patient A's mother and the Nurse with Patient A as to the precise words used by Mr Harvey is to be preferred. The Tribunal is satisfied that Particular 6 is made out.
7. When looked at collectively Particulars 2 to 6, which the Tribunal has found to be proven, demonstrate a pattern of inappropriate behaviour of a sexual and harassing nature towards a seven year old girl. This is the gravamen of Particular 7. The Tribunal find this particular to be proven.
8. There is no real dispute in the evidence before the Tribunal about Particular 8. Mr Harvey conceded that he used intemperate language upon leaving the ward. This particular is proven.
9. Section 139B(1)(a) of the National Law requires the determination by the Tribunal as to whether Mr Harvey has been guilty of unsatisfactory professional conduct. It involves an objective assessment of Mr Harvey's conduct against the standard of conduct reasonably expected of an equivalent practitioner.
10. Section 139B(1)(l) of the National Law also requires a determination by the Tribunal as to whether Mr Harvey has been guilty of unsatisfactory professional conduct. It involves an assessment as to whether Mr Harvey's conduct was improper or unethical relating to the practice of nursing.
11. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral; 2. in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law.
12. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrne [1995] 193 CLR 501 at 514-515: see HCCC v Phung (No. 1) [2012] 1 NSWDT at [68]. If conduct, is not in conformity with standards of professional conduct and practice it can be seen as improper.
13. The words improper and unethical were considered by the Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes: The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical.
14. This test was adopted in HCCC v Liu [2016] NSWCATOD 133 at [56].
15. In the peer expert report Ms Twomey assessed Mr Harvey's conduct in tickling Patient A and poking his tongue out at Patient A to be significantly below what is reasonably expected of a practitioner with the same level of training or experience. Similarly Mr Harvey's conduct in using words to the effect that is not the only thing you pull off in reference to a doll with removable arms and legs, and his intemperate language was also significantly below what was expected of a practitioner with the same level of training or experience.
16. Ms Twomey was particularly critical of Mr Harvey's conduct in wolf whistling at Patient A. She expressed the view that "wolf whistling" on at least two occasions to a seven year old female patient wearing only a theatre gown was conduct which involved breaches of four different sources of professional standards or codes of conduct, it brought the profession into disrepute; and it had no place in practice.
17. As referenced by the expert, Ms Twomey, Mr Harvey's conduct in relation to Patient A was in breach of codes and guidelines provided by the Nursing and Midwifery Board of Australia. In the Tribunal's view Mr Harvey's conduct was significantly below the standard of conduct reasonably expected of an equivalent practitioner.
18. Further Mr Harvey's conduct when viewed objectively was not in conformity with standards of professional conduct and practice to be expected of nurses. In the Tribunal's view, Mr Harvey's language and conduct contained sexual innuendo directed towards and in the vicinity of a seven year old girl. As critiqued by Ms Twomey it brings the profession into disrepute and it has no place in practice. It was improper and unethical.
19. The Tribunal finds that Mr Harvey's conduct amounts to unsatisfactory conduct pursuant to s139B(1)(a) and (l) of the National Law.
20. The Tribunal finds Complaint One is established.

Complaint Two: Unsatisfactory Professional Conduct section 139B(1)(c) Breach of Condition

1. There is no dispute in the evidence that Mr Harvey breached a condition that was imposed on his registration that he may only provide nursing care to adult patients or clients and must not assess, treat or provide nursing care to children in any practice setting. The evidence establishes that the condition was imposed on his registration 24 August 2015. The evidence further discloses that on 22 September 2015 he breached that condition when he acted as a nurse assisting during a circumcision procedure on Patient B, aged eleven years. The particulars of Complaint Two are proven.
2. The Tribunal finds that Mr Harvey breached a condition imposed by the Council on his registration and as specified in the Complaint. In the Tribunal's view this was a serious breach. The goals of public protection and public confidence which the conditions that were imposed on Mr Harvey were directed, were undermined. The Tribunal finds having regard to s.139B(1)(c) of the National Law that this conduct can be categorised as unsatisfactory professional conduct. The Tribunal finds Complaint Two is established.

Complaint Three: Professional Misconduct section 139E of the National Law

1. The Applicant submits that the conduct of Mr Harvey, which has been shown to constitute unsatisfactory professional conduct, is sufficiently serious that it amounts to professional misconduct. In particular, the particulars of Complaint One and Two, when considered together, demonstrate sufficient seriousness for Complaint Three to be made out.
2. In determining whether a finding can be made of professional misconduct the Tribunal must determine whether as outlined in HCCC v Perroux [2011] NSWDC 99 at 18 "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration".
3. It has been held that the "gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards": see Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638.
4. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s.139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: HCCC v Saedlounia [2013] NSWMT 13 at 43-50 and Health Care Complaints Commission v Do [2014] NSWCA 307 at 35.
5. To constitute professional misconduct, it has been held that the conduct the subject of the complaint must be of such a departure from the accepted standards of the profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence: see Qidwai v Brown [1984] 1 NSWLR 100 at 105 (Priestley JA).
6. In Pillai v Messiter (No 2) [1989] 16 NSWLR 197 the Court of Appeal (referring to the earlier statutory test) described professional misconduct as including: "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson v General Council of Medical Education and Registration [1894] 1 QB 755] (at 760-761)." (per Kirby P at 200).
7. The Tribunal accepts the submission put by the Applicant that Mr Harvey's conduct is of a very serious nature and demonstrates a departure from accepted standards.
8. Mr Harvey's conduct in breaching a condition placed on his registration not to treat or provide care to a child is of a very serious nature. It demonstrates a lack of insight into the need to act scrupulously with regard to his professional obligations and to show proper respect to the requirements of the Council which were imposed upon him. In the Tribunal's view it is essential to the smooth operation of the system of regulation and discipline that practitioners comply with conditions placed on their registration.
9. In the Tribunal's view the unsatisfactory professional conduct displayed by Mr Harvey is of a sufficiently serious nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law. The Tribunal finds that when considered as a whole Mr Harvey's conduct constitutes professional misconduct. The Tribunal is satisfied that Complaint Three is established.

Principles regarding protective orders

1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see ss149A, 149B and 149C. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. Since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v Health Care Complaints Commission [2012] NSWCA 80 at 34.
2. In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184.
3. In Health Care Complaints Commission v Do, Justice Meagher (with whom Justices Basten and Emmett agreed) referred at [35] to the importance of denunciation of misconduct, in the context of s 3 and s 3A of the National Law as follows: 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.
4. In the Tribunal's view Mr Harvey's conduct was serious. It constituted a course or a pattern of conduct towards Patient A of inappropriate language and actions. Mr Harvey's subsequent participation as a scrub nurse in the surgery performed on Patient B was a direct violation of a condition which had been imposed on his practice.
5. Mr Harvey has made no admissions in relation to the Complaint and has not defended the proceedings. As a result the Tribunal has limited measures by which it can assess the insight, if any, that Mr Harvey holds into his conduct.
6. However in the Tribunal's view looking at Mr Harvey's interviews and submissions to the NMCNSW and the HCCC, what we are left with is an overarching impression that there is an absence of any expressed remorse for his conduct or indeed any insight into the impact of his conduct.
7. In the Tribunal's view a key aspect of the protection of the public extends beyond protecting the individual patients of an individual practitioner. It goes to the protection of the public as a whole by means of the denunciation of the type of conduct such as the inappropriate actions and language together with the significant breach of a practice condition that occurred in this case. Having regard to the findings made above as to the nature of the conduct and the protection of the public, the Tribunal is satisfied that the disciplinary orders sought by the Applicant in respect of Mr Harvey, specifically that his registration be cancelled and that he not make any application for review of the cancellation of his registration for a period of at least one year, are appropriate.
8. The Applicant also seeks an order for costs.
9. The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: see Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at 22. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at 36.
10. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at 42-46, with Emmett JA (Meagher JA and Beech-Jones J agreeing) stating: "As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission 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 (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied."
11. The Complaints have been wholly established. There are no factors that might militate against the recovery by the Applicant of its costs. Accordingly, the Applicant is entitled to an award for costs in its favour of and incidental to the proceedings..

ORDERS

1. The Tribunal having found the complaints of unsatisfactory professional conduct and professional misconduct proved and orders that: 1. The Practitioner's registration is cancelled 2. Under s.149C(7) of the National Law the Practitioner is not to make any application for review of the cancellation of his registration for a period of 12 months from the date of the Tribunal's decision. 3. Under s.149C(5) of the National Law, the Practitioner is prohibited from providing all health services unless and until he is re-registered. 4. The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2 and 3 above as soon as practicable. 5. Under s.64 of the Civil and Administrative Tribunal Act 2013 the disclosure of the names of Patient A and B appearing in the Schedule to the Complaint is prohibited 6. The Practitioner is to pay the Applicant's costs of, and incidental, to the proceedings

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: 06 December 2017