Health Care Complaints Commission v HBB [2025] NSWCATOD 51

1. On 13 January 2025, the Health Care Complaints Commission (the "HCCC") filed an application in this Tribunal asserting that a nurse was guilty of unsatisfactory professional conduct and professional misconduct ("the substantive proceedings").
2. Orders have been made prohibiting the identification of the nurse. I have referred to her as HBB.
3. On 25 February 2025, HBB filed an application seeking an order the effect of which would be to terminate the substantive proceedings and some ancillary orders.
4. The HCCC opposes the making of the order and says it is in the public interest for the substantive proceedings to continue.

1. There are affidavits in evidence from HBB and her solicitor.
2. I make the following findings for the purpose of this application.
3. HBB is now 26. She was registered as a nurse on 1 June 2020 and employed by Armidale Hospital from June 2020 to April 2021.
4. On 29 November 2021 HBB was arrested and charged with the following criminal offences:

(1) Possessing a proscribed restricted substance contrary to the Poisons and Therapeutic Goods Act 1966 (NSW).

HBB admitted to the HCCC by letter dated 20 April 2024 that she had misappropriated morphine while working at Armidale Hospital.

(2) Six counts of using a carriage service to prepare/plan to procure a person under 16 years to engage in sexual activity.

(3) Five counts of using a carriage service to transmit child pornography.

1. On 6 December 2021, HBB's registration as a nurse was suspended by the Nursery and Midwifery Council (the "Council").
2. On 26 September 2023, HBB pleaded guilty and was sentenced for the offences of using a carriage service to prepare/plan to procure a person under 16 years to engage in sexual activity and using a carriage service to transmit child pornography.
3. HBB sought a review of the suspension of her registration. After a hearing on 5 June 2024, the Council set aside the suspension and imposed conditions on HBB's registration.
4. On 31 July 2024, HBB submitted a fast-track application for general registration as a registered nurse to AHPRA.
5. On 12 February 2025, AHPRA notified HBB that it refused her application for registration.
6. HBB says that her conduct which led to the charges and convictions was caused by the controlling behaviour of her then partner.
7. HBB says she is constantly worried about these proceedings. They affect every aspect of her life, including her sleep, work and study and her ability to move on and to recover from her past experiences.
8. In her affidavit HBB has given an undertaking to never apply for registration as a nurse in the future or to otherwise practise as a registered nurse. She says she now realises that the path to re-registration is too onerous. If she was able to re­register she would be subject to restrictions that would make working unacceptably difficult, and she is not interested enough in nursing to go through the re-registration process.
9. HBB is currently enrolled in the Diploma In Law course run by the Legal Profession Admission Board (LPAB) and intends to apply for admission as a solicitor when she completes her studies. She has disclosed her convictions and these proceedings to the LPAB. She says there is a risk that she might not be admitted as a solicitor.
10. HBB relies on reports from her treating psychologist who has expressed the following opinions:

(1) HBB commenced antidepressant medication in March 2024 which has alleviated but not resolved her psychological symptoms.

(2) HBB's mood and trauma-related symptoms fluctuate in response to external stressors and these proceedings have significantly increased her psychological symptoms.

(3) If HBB is required to participate in these proceedings, it is likely to result in a further significant deterioration in her psychological functioning impacting on her current study, relationships and general wellbeing.

(4) If HBB is treated as an offender in these proceedings without the complexity of her situation being acknowledged, there will be a consequential impact on her psychological health and recovery from her trauma.

(5) Continuation with these proceedings may negatively impact on HBB's ability to engage with the Australian Federal Police ("AFP") in relation to other matters.

1. HBB is concerned that publication of a written decision, even if the names are anonymised, might be recognised by someone thus exposing the identity of a victim.

1. In the substantive proceedings the HCCC makes the following complaints about the conduct of HBB. It asks the Tribunal to find that, if HBB was still registered, her registration would have been cancelled and to disqualify HBB from being reregistered for 12 months.

1. HBB is guilty of unsatisfactory professional conduct by reason of the facts underlying the two offences in respect of which she was convicted.

1. HBB is guilty of unsatisfactory professional conduct because, contrary to the Health Practitioner Regulation National Law (NSW) (the "National Law"), she did not notify the National Board within seven days of becoming aware that she had been charged with the three offences.
2. HBB is guilty of unsatisfactory professional conduct when, contrary to the National Law, she had not notified the National Board within seven days of becoming aware that she had been convicted.

1. HBB engaged in improper or unethical conduct relating to the practice of nursing when she:

(1) During a shift at Armidale Hospital, removed a morphine infusion bag from one of her patients, falsely recorded that the infusion bag was empty and took the morphine infusion bag from Armidale Hospital.

(2) Knowingly provided false and misleading information to the Council, when she said she did not know how the morphine infusion bag came to be at her home.

1. HBB is not a suitable person to hold registration as a nurse because:

(1) She produced and sent child pornography images.

(2) Took advantage of a child to obtain the pornographic images for her own sexual gratification and the sexual gratification of another person.

1. The conduct in Complaints One to Four was sufficiently serious nature to justify suspension or cancellation of her registration and was thus professional misconduct.

1. The application to terminate the substantive proceedings is made pursuant to cl 12 (1)(a)(ii) and 12 (1)(b) of Schedule 5D of the National Law.
2. Clause 12 provides:

1. A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if-

(i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal;

(ii) the person about whom the complaint is made ceases to be a registered health practitioner or student;

(iii) the complaint before the Committee or the Tribunal is withdrawn; and

(b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue.

1. HBB is not currently a registered health practitioner.
2. Accordingly, the issue between the parties is whether it is in the public interest for the substantive proceedings to continue.
3. The term "public interest' is not defined in the National Law. Clause 7 of Schedule 7 of the National Law provides:

(1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation.

(2) Subclause (1) applies whether or not the purpose is expressly stated in this Law.

1. The relevant objectives of the National Law are set out in s 3:

(1) The object of this Law is to establish a national registration and accreditation scheme for-

(a) the regulation of health practitioners; ...clinical training in a health profession.

(2) The objectives of the national registration and accreditation scheme are-

(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; ...

1. The guiding principles of the National Law are set out in s 3A:

(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...

In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

1. The definition of "public interest" has been considered the Courts and Tribunals on many occasions. I have been provided with written submissions by counsel for the parties which have been very helpful.
2. In determining whether to grant the relief sought by HBB I take the following principles into account:
3. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] Basten JA held:

The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so.

1. In Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35], the Court held:

... the plain language of the statute ... clearly differentiates in its two limbs between the protection of the health and safety of the public, and the public interest. The public interest is a broader concept, encompassing wider community interests such as the standards to which human conduct is to be held.

1. The purpose of an inquiry into complaints against a health practitioner was explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]:

The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.

1. In NSW Bar Association v Meakes [2006] NSWCA 340, the Court of Appeal considered a protective order imposed on a legal practitioner. Basten JA held at [113]:

The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose.

1. A relevant issue will be the likely strength of the HCCC's case. In Health Care Complaints Commission v Torrinello [2015] NSWCATOD 90 ("Torinello") at [30], the Tribunal held that the likelihood of whether the HCCC could prove all of the particulars of the complaint must be taken into account and weighed in the balance.
2. Counsel for HBB relied on a number of cases in which the Tribunal has terminated an inquiry.
3. Counsel for HBB relied on the decision in Torrinello. That decision concerned a general practitioner of unknown age who was alleged to have inappropriately prescribed testosterone and breached professional boundaries with four patients. He did not admit the complaint and five months before the Tribunal hearing signed a statutory declaration stating he was retiring from practice because of ill health. The unchallenged evidence referred to the practitioner having undergone two operations on his neck and falling while hospitalised. His doctor said the practitioner was unfit to participate in the proceedings.
4. In deciding to grant leave to the HCCC to withdraw the Complaint, the Tribunal had regard to the expense of the hearing, both to the parties and the public, the inevitable delay to other cases where there may be a risk to public safety and if, after a hearing, the practitioner's registration was cancelled, that would achieve no greater protection of the public than his non-registered status, albeit that he would have to apply to the Tribunal for re-instatement. That meant there was no direct risk to the health and safety of the public.
5. However that case, the HCCC, through a lengthy internal review process, had determined that it was not in the public interest to proceed with the complaint. Accordingly the application for withdrawal came before the Tribunal at the request of both of the parties. In these proceedings, the HCCC does not consider that it would be in the public interest to terminate the substantive proceedings.
6. Counsel for HBB also relied on the decision in HCCC v Perry [2015] NSWCATOD 76. This involved a 62-year-old general practitioner alleged to have prescribed drugs of addiction or restricted substances over a two year period and inappropriately to 25 patients. He admitted the complaint and changes were made to his practice. Two months before the tribunal hearing, the practitioner indicated an intention to retire and relinquish his registration.
7. This again was a matter in which the HCCC determined that it was not in the public interest to proceed with the complaint. The Tribunal held at [17]:

We had regard in particular to: the respondent's full admissions, the removal of his registration (at his request) which serves the public interest in the responsible and safe practice of medicine, his age, and the unlikelihood therefore that he would seek to return to practice.

1. These considerations do not apply in the matter before me.
2. Counsel for HBB also relied on Health Care Complaints Commission v Harley [2014] NSWCATOD 110, where two months prior to the hearing the nurse completed a notice to surrender her registration and swore a statutory declaration stating she would not seek registration and undertook not to practise in Australia. At [36] the Tribunal said:

36. ... if the complaint were proven, the conduct of an inquiry in this matter would result in the practitioner being in a position to reapply for registration after any period of disqualification has run. This may mean the practitioner could recommence nursing practice. Under the current state of affairs, if the practitioner honours her undertaking, she will never be registered. If the undertaking is broken, it is a further factor that could be considered by the Tribunal, along with the allegations set out in the complaint filed, if the HCCC refiles the complaint.

1. I am not persuaded that these decisions are directly relevant to my determination of HBB's application. HBB cannot be described as having decided to retire, she is only 26. Nor did she surrender her registration. Nor has she filed a Reply in the substantive proceedings so none of the particulars of the complaints have formally been admitted. Lastly, it is not realistic to say that the matters raised in the substantive proceedings can be agitated when and if she decides to apply for registration. That may occur in many years' time by when the evidence may have been lost or be less reliable.
2. As the Tribunal observed in Health Care Complaints Commission v Mercurio [2017] NSWCATOD 136 at [15]:

There are a number of decisions of members of this Tribunal dealing with applications made under clause 12 of Schedule 5D of the Act. The effect of some of these decisions has been to not conduct or terminate an enquiry, and others have been to contrary effect. In some cases, the health practitioner has conceded misconduct, and in others has denied such conduct. In some cases, the allegations against the practitioner have been of a most serious kind, and others of lesser significance. In some cases, the practitioner has been found to be suffering from an underlying condition which would preclude him or her from ever practising medicine again, and the physical or mental condition of others has been affected by age. Each case must be considered having regard to its own facts, and this may account for the diversity of results...

1. In determining whether to make the first order sought by HBB for the termination of the proceedings, I have taken the following matters into account.

(1) As I have already found, there is evidence from HBB and her treating psychologist that the continuation of the prosecution of and participation in the substantive proceedings will adversely impact on HBB's mental health.

(2) It is not my role to make findings in relation to the divergence of views amongst the three experts as to their diagnosis of HBB's mental health symptoms. I accept the submission by counsel for the HCCC that it is in the public interest that the Tribunal hear the evidence of the experts to determine, for itself, any causal connection between any diagnosis and the commission of the criminal offences committed by HBB.

(3) Counsel for HBB placed great reliance on HBB's undertaking not to work as a nurse in the future. HBB said in her affidavit dated 30 March 2025 that she might have considered trying to return to work as a nurse "if nursing was something that I felt strongly about": at [41].

I do not give this evidence much weight for the following reasons.

Firstly, it is conceded that the undertaking is not enforceable, it would only be a matter raised at any future application for re-registration.

Secondly, there is other evidence that HBB gained great satisfaction from her work as a nurse and had considered returning to nursing, contrary to the statements made in her affidavit.

HBB told the s 150 hearing in 2021 "I got a three month temporary contract on paediatrics ... that was the area that I felt exceptionally passionate with - about", "This job gave me a huge amount of purpose ... I miss my job" and "Healthcare has been my passion since I was pretty young. I was really set on being a nurse. I tried to study as quick as possible": Annexure to HBB affidavit dated 30 March 2025 at p 503.

HBB informed the Council in 2021 that she would abide by the conditions on her registration and that she wished to "continue to develop myself as a registered nurse within my health care career": Annexure to HBB affidavit dated 30 March 2025 at p 447.

In April 2024 she told the HCCC that "I highly valued my position at Armidale hospital and felt a strong sense of pride to be a registered nurse. It created a part of my identity - losing this part of myself has been incredibly painful": Annexure to HBB affidavit dated 30 March 2025 at p 340.

In May 2024 HBB said, at a s150A hearing, "But I - I would if possible, of course, like to stay in the industry. That's definitely a huge motivation of mine and at the time, two - three years ago because I wasn't able to be honest with the board, I just completely wrote off the - any kind of future in nursing. I just thought okay, well I guess that's it. Which is not how I feel now. Like, I'd really like to do the work in trying to, yeah, regain the trust that's been lost and re-enter that workforce if possible, yeah", "I really enjoyed my - I enjoyed the hospital work. Like, I really do like clinical work, and where I feel a lot of nurses told me that's the best experience you can get is just working in a hospital to start off with, because you get so much exposure. So, like, I - look, I'd love that exposure again in a hospital." And, in answer to the question "And it's not tempting to make a career out of law?" HBB replied "Ultimately I think I more see it as just a way to develop my mind.": HCCC material at pp 35, 39 and 43.

Lastly, I also take into account that HBB submitted an application for registration on 31 July 2024. Counsel for HBB invited me to accept the evidence of HBB who said she had applied to re-register because she found out there was a deadline by which it had to be submitted, she did not then have an immediate intention to return to nursing and she applied to keep her employment options open. Even on the submission made by counsel for HBB, in July 2024 HBB considered nursing as a career option.

(4) On the material before me, I am satisfied that the alleged conduct in each of the first four complaints in the substantive proceedings, if established, is capable of being found to be unsatisfactory professional conduct.

Counsel for the HCCC submitted that the criminal conduct in respect of which HBB was convicted was objectively very serious. This was not disputed. The annexure to the affidavit of HBB includes evidence relating to the convictions. I am satisfied that there are good prospects of the facts that HBB was convicted and the underlying facts leading to the convictions being established by the HCCC in the substantive proceedings.

In relation to her failure to inform AHPRA about the charges and, later, the convictions, HBB said in her letter dated 20 April 2024 that she genuinely did not know that she was required to notify AHPRA. I am satisfied that there are good prospects of this aspect of the substantive proceedings being established by the HCCC.

In addition the complaint includes an allegation that HBB took a morphine infusion bag from Armidale Hospital. The removal of the bag is also admitted in the letter dated 20 April 2024. Counsel for HBB asked me to infer that HBB only took what was left in the bag after the patient had received his or her full dose. It is not my role to determine this issue but I do note that there is evidence to the contrary, which is that HBB recorded in the patient's record that the bag was 'empty' and later the missing quantity was established: HCCC material p46. I decline to draw such an inference. I am satisfied that there are good prospects of this aspect of the substantive proceedings being established by the HCCC.

Lastly the complaint includes an allegation that HBB knowingly provided false and misleading information to the Council at the s 150 hearing in 2021 when she said she did not know how the morphine infusion bag came to be at her home. However, as I have already said, she later admitted that she had taken it. I am satisfied that there are good prospects of this aspect of the substantive proceedings being established by the HCCC.

(5) HBB has not filed a Reply in the substantive proceedings. I accept the submission made by counsel for the HCCC that the absence of formal admissions to the Complaints weighs in favour of continuation of the substantive proceedings as "it is important that this Tribunal not be seen to allow a health practitioner to avoid confronting allegations of serious misconduct unless there is a significant reason for doing so." Mercurio at [24].

(6) If I were to terminate the substantive proceedings the opportunity for the Tribunal to determine important factual matters that can only occur during the course of an inquiry would be lost. As submitted by counsel for the HCCC a full hearing will allow for the testing of that evidence so that the Tribunal can be fully informed of the issues and make a determination accordingly.

(7) Further, if the allegations in the substantive proceedings are established, the Tribunal will go on to decide which protective orders, if any, to make in the public interest.

(8) Counsel for HBB submitted that the fact that the conduct occurred in the context of HBB being the subject of coercive control and the victim of physical and psychological abuse is relevant because there is no public interest in prosecuting a practitioner for conduct in those circumstances.

I do not accept this submission. There is often a reason for a practitioner having engaged in unsatisfactory professional conduct and/or professional misconduct, however it does not mean that the regulatory scheme under the National Law is not engaged.

(9) Counsel for HBB also submitted that the substantive proceedings should be terminated so that HBB will be able to provide a statement to the AFP in relation to other possible prosecutions. It was submitted that I should infer that if the substantive proceedings continue, the institution of any further criminal proceedings will be delayed.

In circumstances where there is no evidence about this issue other evidence from HBB and her psychologist's opinion based on what HBB told her, I decline to draw such an inference or make such a finding.

(10) I accept the submission made by HBB that continuation of the prosecution will expend public funds and cause delay to other practitioners having their proceedings heard by the Tribunal. However this factor cannot have great weight as it is role of the Tribunal under the National Law to determine contested applications.

1. There are additional submissions which I do not accept:

(1) HBB cannot personally fund her participation in the substantive proceedings.

Counsel for HBB could not provide me with any legal authority making this issue relevant to the public interest test.

(2) HBB did not procure the morphine for her own use and hair testing undertaken by the Nursing and Midwifery Council of NSW confirmed this to be the case.

Neither of these submissions are supported by the evidence. In addition I do not accept that it is relevant to either the strength of the HCCC prosecution or the public interest test.

(3) HBB has already been the subject of criminal proceedings and had criminal convictions recorded against her name.

It is not clear what is meant by this submission. If it is suggested that HBB is being punished twice for the same conduct, then the submission is meaningless as the National Law expressly provides for criminal conduct to be one of the issues which can lead to a complaint against a practitioner.

1. Taking all of these matters into account, the most significant public interest elements applicable to the substantive proceedings are the deterrent effect that any finding of professional misconduct will have on other health practitioners, and the necessity to uphold public confidence in the standards of the profession.
2. I am satisfied that these matters outweigh the likely impact on HBB of the substantive proceedings being heard and determined.
3. I decline to find that it is not in the public interest for the inquiry to continue and decline to make the first order sought in HBB's application.

1. This was not pressed and I decline to make the second order sought in HBB's application.

A suppression and non-publication order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) prohibiting the disclosure and publication of any written decision in this proceeding.

1. The HCCC opposes the making of this order.
2. I am not persuaded that any additional order is necessary to protect the identity of the victim.
3. I decline to make the third order sought in HBB's application.

1. Counsel for HBB submitted that notwithstanding the outcome of the application, the HCCC should pay the costs of HBB.
2. This submission relied on an email dated 6 February 2025 in which the solicitors for HBB asked the HCCC for the public interest considerations which it said were relevant to the substantive proceedings so that instructions could be sought as to whether a termination application should be made by HBB. In its reply dated 10 February 2025, the HCCC advised that if HBB chose to file a termination application, it would 'provide submissions as to what it deems to be the relevant public interest considerations'. Accordingly, HBB had to file the termination application without understanding why the Commission contended that the prosecution was in the public interest.
3. In reply, counsel for the HCCC said that it was open to the HCCC to refuse to reply because the instructions it had received from the Director were privileged.
4. Counsel for HBB did not identify anything in the HCCC submissions that they could not have anticipated. There is no evidence as to when the HCCC's written submissions were served, but they were filed in the Tribunal on 15 March 2025.
5. I am satisfied that costs should follow the event.
6. HBB is to pay the costs of the HCCC on the termination application filed on 25 February 2025.

(1) The Application for miscellaneous matters filed by HBB on 25 February 2025 is dismissed.

(2) HBB is to pay the costs of the Health Care Complaints Commission on the Application filed on 25 February 2025.

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.