Health Care Complaints Commission v Holbrook

The Complaint

1. By an Amended Complaint dated 27 March 2019, the Commission applied to the Tribunal for disciplinary findings and orders against Mr Holbrook under the National Law. The Complaint comprises three individual complaints.
2. The first complaint is that the two convictions recorded in the District Court on 14 September 2018 form a ground of complaint under section 144(a) of the National Law. This provision deals with the situation where a practitioner has been convicted of, or made the subject of a criminal finding for an offence. The two individual offences of which Mr Holbrook was convicted, being importing a marketable quantity of a border controlled drug and dealing with money believed to be the proceeds of crime, are specified as the particulars which support this complaint.
3. The second complaint is that under section 144(e) of the National Law, Mr Holbrook is not a suitable person to hold registration in the nursing profession. This complaint has three sets of particulars.
4. The first two particulars outline Mr Holbrook's conduct which underlies the two convictions.
5. The conduct underlying the conviction for one count of dealing with money more than $10,000 believing it to be the proceeds of crime contrary to section 400.6(1) of the Criminal Code (Cth) is that: 1. On about 13 January 2017, Mr Holbrook had possession of a Nike shoe box containing $39,000 in $100 and $50 Australian dollar notes; 2. Mr Holbrook believed the $39,000 to be proceeds of crime.
6. The conduct underlying the conviction for one count of importing a marketable quantity of border controlled drug contrary to section 307.2(1) of the Criminal Code (Cth) is that: 1. Between 8 January 2017 and 30 January 2017, three consignments were sent to two different addresses linked to Mr Holbrook, each containing border controlled drugs, namely: 1. on about 8 January 2017, he imported 96.4 grams of MDMA in an envelope containing a silver foil heat sealed bag with two consecutive layers of plastic heat sealed bags inside it; 2. on about 25 January 2017, he imported 195 grams of MDMA in two envelopes each containing a silver foil heat sealed bag with two consecutive layers of plastic heat sealed bags inside them; 3. on about 30 January 2017, he imported 55.8 grams of cocaine in a cardboard box declared as a "box of trading cards" containing 18 metallised sachets, each printed with trading card game images with a clear plastic heat sealed bag inside twelve of the sachets.
7. The third particular outlines Mr Holbrook's conduct which was the subject of his admission to a further ten offences of importing a border controlled drug. As previously noted these offences were dealt with on a schedule under s 16BA of the Crimes Act 1914 (Cth) and were taken into account in the sentence imposed on him by the District Court on 14 September 2018.
8. These further ten offences are additional acts of criminality committed on separate dates to those contained in the first complaint, and were not the subject of convictions of themselves.
9. This conduct occurred between 16 April 2014 and 30 January 2017. During this time ten consignments were sent to five different addresses linked to Mr Holbrook, each containing border controlled drugs. Mr Holbrook admitted to importing the following drugs on the dates and in the amounts shown: 1. 16 April 2014, 10.2 grams of amphetamine 2. 16 June 2014, 5.1 grams of amphetamine 3. 16 June 2014, 2.1 grams of 3,4- MDMA 4. 7 November 2014, 0.4 grams of 2,5-dimethoxy-4-bromophenethylamine (2C-B) 5. 24 October 2014, 1.9 grams of amphetamine 6. 1 September 2015, 28.1 grams of cocaine 7. 1 October 2015, 9.9 grams of MDMA 8. 5 October 2015, 5.0 grams of cocaine 9. 6 October 2016, 3.5 grams of cocaine 10. 30 January 2017, 28.1 grams of cocaine
10. The third complaint is a complaint of unsatisfactory professional conduct against Mr Holbrook under section 139B(1)(b) of the National Law because he contravened a provision of the National Law.
11. The basis for the third complaint is that it is a requirement of the National Law that a practitioner must notify the National Board within 7 days if they are charged with an offence punishable by 12 months imprisonment or more: see section 130(1)(a)(i).
12. The particulars for this complaint are that on 14 January 2017 police charged Mr Holbrook with one count of knowingly dealing with proceeds of crime contrary to section 193B(2) of the Crimes Act 1900 (NSW). This charge is for an offence punishable by 12 months imprisonment or more, namely 15 years. It was not until 29 May 2017 that AHPRA received written notice from Mr Holbrook's solicitor that he had been charged.

Mr Holbrook's response to the Complaint

1. In a written statement to the Tribunal dated 2 August 2019, Mr Holbrook admitted the Amended Complaint in full. He also made significant admissions in a set of Agreed Facts filed with the Tribunal on 21 August 2019 (Agreed Facts).
2. There is no contest about the factual matters identified in the particulars. There is evidence before us to prove all the particulars. This evidence includes but is not limited to Certificates of Conviction; selected police documents (COPS event, Court Attendance Notices, Search Warrant, photographs of seized items and police statements), agreed statement of facts in the criminal proceedings and transcripts of the sentencing hearing and decision of the District Court.
3. Evidence available to the District Court and to us includes a report dated 28 June 2018 from Ms O'Connor psychologist, together with other medical records for Mr Holbrook, which set out in detail his background and mental health history including medication prescribed to him for depression.
4. In the light of the evidence and the written admissions made by Mr Holbrook we are satisfied that the particulars of all three complaints are made out.

Protective orders sought

1. The Commission seeks an order that Mr Holbrook's registration be cancelled, and that a non-review period of four years be set. It was submitted that this period was an appropriate means of censuring Mr Holbrook's conduct and sending a strong message, both specifically to him but also to other practitioners more broadly, that the misconduct cannot be condoned. Further it was argued that Mr Holbrook will require a lengthy period to demonstrate genuine insight and rehabilitation.
2. Submissions made on behalf of Mr Holbrook by Mr Byrne did not contest the making of an order cancelling registration. Mr Byrne submitted that Mr Holbrook's prospects of rehabilitation were reasonable and asked that a non-review period be set that would effectively not shut the door on his return to the profession. In this regard he argued for a period that would allow Mr Holbrook to seek re-instatement of registration on or before July 2022 enabling him to meet practice requirements. He also argued that a non-review period of 18 months to 2 years was consistent with cases referred to by the Commission in its written submissions.

The legal framework raised by the Complaint

1. In relation to complaint one, we may suspend or cancel a registered health practitioner's registration if we are satisfied that the practitioner has been convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession: see section 149C(1)(c) of the National Law.
2. In relation to complaint two, we may suspend or cancel a registered health practitioner's registration if we are satisfied that the practitioner is not a suitable person for registration in the practitioner's profession: see section 149C(1)(d) of the National Law.
3. In relation to complaint three, written submissions provided by the Commission at the hearing in support of cancellation of Mr Holbrook's registration stated that we may suspend or cancel a registered health practitioner's registration if we are satisfied that the practitioner is guilty of professional misconduct, namely unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. However, the Commission did not assert in its Complaint that Mr Holbrook was guilty of professional misconduct. In respect of complaint three it only pleaded unsatisfactory professional conduct.
4. Complaint three is about Mr Holbrook's conduct in not notifying AHPRA within 7 days of charges being laid against him as required by section 130(1)(a)(i) of the National Law. Unsatisfactory professional conduct includes a contravention by a practitioner whether by act or omission of a provision of the National Law: see section 139B(1)(b) of the National Law.
5. Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place. In our view Mr Holbrook's delay was a contravention of the National Law. We are satisfied that his delay in notification constitutes unsatisfactory professional conduct.
6. It is not clear to us why the wording in the Commission's written submissions appeared to suggest that complaint three, which did not contend that Mr Holbrook was guilty of professional misconduct because of his breach of section 130(1)(a)(i) of the National Law, could be seen as an avenue to cancellation. We have set out later in this decision Mr Holbrook's evidence explaining his delay in notification. In the light of Mr Holbrook's evidence, his relative inexperience and the fact that he ultimately did notify AHPRA of the charges pending against him, even if it had been pleaded we would not have seen his conduct as of sufficient seriousness to amount to professional misconduct.

The issues

1. In practical terms there is some overlap between the first and second complaint. This is because both complaints concern the convictions.
2. The first complaint relies on the existence of the convictions to ground the complaint: see s 144(a) of the National Law.
3. The second complaint is grounded in the contention that Mr Holbrook is not a suitable person to hold registration as a nurse: see s 144(e) of the National Law. It appears to be distinguished from the first complaint by traversing the conduct underlying the convictions.
4. The Commission has framed its Complaint and submissions by reference to two discrete and separate aspects. It refers to both Mr Holbrook being unfit in the public interest to practise nursing; and to his not being a suitable person for registration as a nurse.
5. As we understand the Complaint, the offences for which Mr Holbrook was convicted raise the question of whether the circumstances of the offences render him unfit in the public interest to practise nursing: see s149C(1)(c) of the National Law. Additionally, whether the conduct underlying the convictions for those offences and his admission of a further ten offences of importing border controlled drugs raise the question of whether he is not a suitable person to hold registration in the nursing profession: see s 149C(1)(d) of the National Law.
6. When considering cancellation of registration, and as referred to later in this decision, there is some overlap between the concepts of suitability and fitness. Indeed the word fitness is a synonym for suitability.
7. There is also a degree of circularity between being unfit in the public interest to practise the nursing profession; and not being a suitable person for registration in the nursing profession. This arises because a person can only work or practise as a nurse if they are registered to practise as a nurse.
8. No argument was put to us at the hearing by either party as to these matters. For present purposes, in our view it is not necessary for us to examine or decide in detail the full extent of this overlap or the limitations that might arise.
9. It is sufficient for us to note that a point of difference is that s 149C(1)(c) requires that a conviction for an offence, or the making of a criminal finding for an offence, must exist whereas s 149C(1)(d) is not limited in this way.
10. Further, the second complaint raises not only the underlying conduct of the convictions which make up the first complaint, but traverses other conduct beyond the convictions.
11. In relation to the interplay between s 144(a) and (e) of the National Law we note the observations in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 as follows at [60]: On a plain reading, the words "or otherwise" must denote something other than the types of conduct or circumstances set out in s144(a) to (d). We agree that the admissions of the criminal offences themselves are only relevant to s 144(a), and that the admission of unsatisfactory professional conduct is only relevant to s 144(b). However, it appears to us that s 144(e) may be established on evidence of the underlying conduct that led to the criminal charges and convictions. The factual circumstances of events which ground a criminal conviction or finding may, depending on their gravity, if established to the requisite standard, constitute a separate and distinct complaint to the admitted complaints brought under s 144(a) and (b). In other words, those circumstances, of themselves, may otherwise render a practitioner unsuitable for registration.
12. Accordingly our primary focus has been on the issues of Mr Holbrook's fitness to practise as a nurse and his suitability to hold registration as a nurse. To do this it is necessary to examine Mr Holbrook's conduct and the circumstances of the offences.

Circumstances surrounding the conduct

1. Mr Holbrook explained how he got involved in the importation of drugs as follows. In early 2013, he was running a small online business selling electronic goods. Through this business he met and dealt with a man who bought and sold phones and various electronics. On one occasion while at this man's home, another person came to the house to conduct a drug deal. Mr Holbrook believed that the drugs he saw being sold were of a poor quality. Mr Holbrook formed the view that he could supply a superior product. He decided to do a test order of cocaine from overseas. He contacted the man to whom he had previously sold electronics, and subsequently supplied this man with what he believed to be a superior quality of drugs on a regular basis. Mr Holbrook sourced the drugs through the dark web.
2. Sometime in about 2014 or 2015 Mr Holbrook became aware that the man he had supplied to had been sent to gaol. At around the same time Mr Holbrook stopped purchasing and supplying drugs for approximately 6 months. He then engaged a second dealer and recommenced bringing drugs into Australia via Australia Post.
3. Under cross examination by the Commission Mr Holbrook explained the nature of the testing he undertook on the drugs which he was importing to control their quality. This included using testing kits to identify what the drugs had been cut with and their level of purity. He explained that he would make an assessment as to whether the drugs were cut with substances which he considered to be dangerous. He disposed of any product which he assessed to be unsafe. He conceded under cross examination that he used his skills, training and knowledge as a nurse to conduct research and make these assessments. Mr Holbrook did not take drugs himself.
4. A search warrant was executed by police at Mr Holbrook's home on 13 January 2017. The items seized in this search indicate a degree of planning and an orchestrated enterprise. The items seized included: 1. Australia Post box addressed to Andrew HOLBROOK at PO Box 4339 2. Australia Post e-parcel addressed to Andrew HOLBROOK at PO Box 82 3. a green environmental bag containing numerous Australia Post parcel post bags 4. a Nike shoe box containing $39,000 in $100 and $50 Australian dollar notes 5. an A4 notebook with handwritten notations relating to the internet (dark net) and 9 Australia Post Express Parcel tracking number stickers 6. a set of scales
5. The handwritten notations in the A4 notebook included reference to: 1. data encryption 2. disabling JavaScript to prevent identification by law enforcement 3. use of Virtual Private Network that does not retain logs of user activity and permits payment via Bitcoin 4. "wash pa w/Isopropy alco" refers to rinsing or wiping clean plastic bags/wrappings containing illicit drugs with isopropyl alcohol to remove trace evidence such as fingerprints
6. Other handwritten notations within the A4 notebook included: 1. Expect every wone you post is being recs by LE. Think about habits, spelling errors 2. Don't ever think anyone will go to jail for you 3. Lawyer on retainer, once arrested keep mouth shut, don't speak without lawyer or do anything you don't have to legally 4. ISP can see Tor but legal Tavis leaves no evidence 5. Biggest issue = steady supply
7. On 6 September 2018 Mr Holbrook gave evidence in the criminal proceedings against him. His evidence to the District Court was to the effect that: 1. He got involved in criminal activity when he visited a business colleague and saw a drug deal and noticed that the drug was of poor quality 2. He became involved to have a better product 3. His logic at that time was to get the user something safer to consume 4. His motivation was to try to help people as much as he could 5. He had a friend overdose in front of him and that was one of the reasons he wanted to become a nurse 6. His logic was that if a user has an overdose of heroin laced with something else, the user and the hospital staff have no idea what's going on 7. He did some research on the dark web about testing and purity 8. He ordered the drugs on the internet and on sold them to a supplier 9. He engaged in criminal conduct during the period he was working in a hospital 10. His primary motivation was trying to get the users a purer product but later there was a financial motivation 11. He benefitted financially for some years from his conduct 12. He did not appreciate the harmful effects of drugs in the community until after he was arrested

Mr Holbrook's employment and registration history

1. On 8 December 2014, Mr Holbrook accepted an offer to work for NSW Health as a registered nurse and agreed to comply with the Code of Conduct. The Code requires staff to act professionally and ethically including to observe all laws relating to their profession, avoid conduct that could bring NSW Health into disrepute and to report certain types of criminal charges laid against them within 7 days: see 4.3.10, 4.3.12 and 4.3.17 NSW Health Code of Conduct, September 2015.
2. On 29 May 2017, AHPRA received a letter from Mr Holbrook's solicitor which related to Mr Holbrook's renewal of registration as a nurse. AHPRA was advised that Mr Holbrook had been charged with criminal offences. Prior to this letter, Mr Holbrook had not notified AHPRA that he had been charged with any offence.
3. Mr Holbrook's evidence to the Tribunal was to the effect that he did not realise that he was required to notify AHPRA within a 7 day period of being charged with an offence. Once he became aware he was required to disclose the charges he did. He also explained that whilst he was aware of the Code of Conduct he did not at the time appreciate how it was relevant to his circumstances.
4. On about 7 July 2017, Mr Holbrook's employer became aware that he had been charged with criminal offences and immediately placed him on unpaid special leave. He was reminded of his obligation under the Code of Conduct to report criminal charges that involved offences punishable by imprisonment for 12 months or more to the Chief Executive within 7 days of a charge being laid. He was asked for information about the charges.
5. On 10 August 2017, the Nursing and Midwifery Council convened proceedings under section 150 of the National Law. Mr Holbrook's registration was suspended.
6. On 14 August 2017, the Council informed Mr Holbrook's employer that his registration had been suspended. On 18 August 2017, Mr Holbrook sent a letter of resignation to his employer.

Remorse and insight

1. Mr Holbrook pleaded guilty to the criminal charges and made full admissions regarding the Complaint before the Tribunal. The evidence before us indicates that he regrets and is ashamed of his conduct. This includes statements he made in the course of his District Court sentencing hearing, in his reply to the Complaint and in his oral evidence to the Tribunal.

Mr Holbrook's current circumstances

1. Mr Holbrook told the Tribunal that he currently has no access to counselling for his mental health issues. He has no access to and is no longer receiving any medication for depression. He described his mental health as up and down. He has no access to the internet or to any educational courses. He has no practical way to access any educational opportunities or to continue with any form of continuing professional development.
2. Mr Holbrook's evidence was to the effect that he enjoyed nursing and hoped that his registration as a nurse could be restored in the future. He accepted that his path toward rehabilitation would be difficult but that the restoration of his nursing registration would provide some hope that he could make amends for what has passed.
3. It was clear from Mr Holbrook's oral evidence that he was focused on getting through and serving the remainder of his custodial sentence. Given the limitations of his current circumstances it was understandably difficult for him to articulate what plans he had for the future as far as his nursing career was concerned.

The convictions and Mr Holbrook's conduct

1. The National Law provides under s 149C(1) that the Tribunal may suspend or cancel a practitioner's registration if: (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.
2. The Commission relies on both subsections as an avenue to cancellation of Mr Holbrook's registration.

Fitness to practise

1. The issue to be determined is whether the circumstances of these offences render the practitioner unfit in the public interest to practise as a nurse.
2. The offences with which Mr Holbrook was convicted concern his conduct in possessing a large sum of cash being the proceeds or crime and importing a marketable quantity of illicit drugs. The circumstances surrounding the drug offences comprised his conduct in arranging for the delivery of three consignments into Australia from overseas on separate dates. Two of the consignments contained MDMA and one contained cocaine. In our view it is conduct which is inconsistent with community expectations as to the quality expected of a person in fulfilling the role of a practising nurse.
3. Mr Holbrook's convictions for importing a marketable quantity of illicit drugs, specifically MDMA and cocaine, render him unfit in the public interest to practise as a nurse given the danger that these drugs may present for the mental and physical well-being and health of the public. It is antithetical to the practice of the profession of nursing that a person involved in providing health services to the public should in their private life be involved in the importation of illicit drugs. It is conduct which is not consistent with the welfare of the public.
4. None of the criminal offences took place in the course of Mr Holbrook's professional practice as a nurse. However, in our view the public interest can encompass the broader principles of the protection of the public as it relates to the reputation of the profession in the eyes of the public. Nurses are held in a position of trust in the community. The commission of these offences violated that trust.
5. We are satisfied that complaint one is proved, and that the circumstances of the offences of which Mr Holbrook was convicted render him unfit in the public interest to practice as a nurse.

Suitability to hold registration

1. The phrase "suitable person" is not defined in the National Law. The Macquarie Dictionary defines "suitable" as "such as to suit; appropriate; fitting; becoming". Section 55 of the National Law deals with unsuitability to hold general registration and sets out the circumstances or criteria used to assess whether a person is unsuitable for registration. Accordingly it provides some guidance as to the meaning of suitable person.
2. Relevantly section 55 states that a National Board may decide that an individual is not a suitable person to hold general registration, if: (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (h) in the Board's opinion, the individual is for any other reason-- (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely.
3. The meaning of the expression "not a suitable person to hold registration" was considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72]-[73]: [I]n considering whether [the practitioner] "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members 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 (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills.
4. That interpretation was cited with approval by the Tribunal in Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 at [116]-[118] and by the Court of Criminal Appeal (Hoeben CJ, Johnson J and Latham J) in Jung v R [2017] NSWCCA 24 at [56].
5. We are satisfied that Mr Holbrook is not a suitable person to hold registration as a registered nurse.
6. This is because the underlying conduct of the offences with which Mr Holbrook was charged and convicted concern his actions in January 2017 in arranging for the delivery of three consignments of illicit drugs into Australia from overseas, and represented a course of conduct in an ongoing criminal enterprise. They were not isolated occurrences. On Mr Holbrook's own admissions he imported multiple packages from April 2014 until 2017. Indeed the amounts involved increased over time. For example, earlier importations of MDMA in 2014 and 2015 were in amounts of less than 10 grams but by January 2017 they had reached 195 grams. His criminal conduct involved premeditation and deception. There was a significant degree of planning, premeditation and calculated assessment of risk, as demonstrated by the dark web notations.
7. Mr Holbrook conceded in cross-examination that he used his skills, training and knowledge as a nurse to conduct research and make assessments as to the quality of the product he was importing. This was not a proper or ethical use of his knowledge and skills as a nurse.
8. Mr Holbrook was engaged in this activity whilst he was nursing student. He continued it after he was registered. There is no evidence to suggest that he would have stopped if it were not for his detection.
9. We are satisfied that complaint two is proved.

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 sections 149A, 149B and 149C of the National Law.
2. 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. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law.
3. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34].
4. 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 [1997] 41 NSWLR 630 at 637.
5. In Health Care Complaints Commission v Do [2014] NSWCA 307, 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.
6. As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.

Consideration of appropriate protective orders

1. We are satisfied that the three complaints as advanced by the Commission are proved.
2. We accept that Mr Holbrook is remorseful and that his arrest and imprisonment have now given him greater insight into the impact of his conduct.
3. Principles of general deterrence and denunciation are significant in this case. This is because of the social consequences that flow from the movement of drugs and their distribution. Those working in the health sector would be, and should be acutely aware of this. This is what the public would expect.
4. We conclude that cancellation of Mr Holbrook's registration is necessary in the circumstances. 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 that which occurred in this case.
5. We have taken into account the Commission's submissions in seeking a non-review period of four years. However, we conclude that Mr Holbrook should not be able to make any application for a review of the cancellation of his registration for a period of three years.
6. In our view the gravity of the conduct and the upholding of public confidence in the profession require that Mr Holbrook's conduct in its entirety be denounced as unacceptable and that a period of three years appropriately reflects that. In addition it will afford a reasonable period for Mr Holbrook to take steps to demonstrate rehabilitation.
7. We have taken into account the submissions of Mr Holbrook's legal representative in seeking a non-review period that would allow Mr Holbrook to seek re-instatement of registration on or before July 2022 to enable him to meet recency of practice requirements. However, we accept the submission of the Commission on this point, that the extent to which any recency of practice requirements might be imposed is done so with the protection of the public in mind. Accordingly the argument made on behalf of Mr Holbrook is not a strong factor which would persuade us to shorten the non-review period which we believe is appropriate.

Costs

1. The Commission seeks its costs under clause 13 of Schedule 5D of the National Law. By letter dated 12 September 2019 the parties advised that costs had been agreed between them in the fixed amount of $10,963.28. Accordingly under Sch 5D, cl 13(3A) of the National Law, Mr Holbrook is to pay the costs of the Health Care Complaints Commission in the sum of $10,963.28.

Orders 1. The practitioner's registration as a nurse is cancelled. 2. The practitioner cannot seek a review of the cancellation order until 3 years from the date of this decision. 3. The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1 and 2 as soon as practicable. 4. The practitioner is to pay the Health Care Complaints Commission's costs in the sum of $10,963.28.

​ 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: 27 September 2019