Health Care Complaints Commission v Hsu [2025] NSWCATOD 85;

Gautam v Health Care Complaints Commission [2021] NSWCA 85

Ghosh v Medical Council of New South Wales [2020] NSWCA 122

Grant v HCCC [2003] NSWCA 73

Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73

Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113

Health Care Complaints Commission v Buys (No 3) [2020] NSWCATOD 102

Health Care Complaints Commission v Chahoud [2022] NSWCATOD 36

Health Care Complaints Commission v Chen (No 2) [2021] NSWCATOD 174

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Duggan [2015] NSWCATOD 142

Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17

Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25

Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39

Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172

Health Care Complaints Commission v Neale [2024] NSWCATOD 16

Health Care Complaints Commission v Philipiah [2013] NSWCA 342

Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82

Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10

King v Health Care Complaints Commission [2011] NSWCA 353

Lee v Health Care Complaints Commission [2012] NSWCA 80

Lucire v Health Care Complaints Commission [2011] NSWCA 99

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

Qasim v Health Care Complaints Commission [2015] NSWCA 282

Re Parajuli [2010] NSWMT 3

Windsor v Health Care Complaints Commission [2020] NSWCA 110

Nursing and Midwifery Board of Australia, Code of conduct for nurses (June 2022)

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of Persons A and B is prohibited.

1. In these proceedings the applicant, the Health Care Complaints Commission (who is also referred to as the Commission or the HCCC), is seeking findings against the respondent, Zachary Luke Hsu (Mr Hsu), a nurse (who is also referred to as the practitioner), that he is not otherwise a suitable person to hold registration as a nurse and has an impairment within the Health Practitioner Regulation National Law (NSW) (National Law), and the making of consequential protective orders.
2. We have decided to make the following orders and findings:

(1) leave is granted to the Commission to rely on the Amended Complaint which was lodged on 8 May 2025;

(2) leave is granted to the Commission to rely on the Supplementary Report of Dr Anthony Samuels (Dr Samuels), psychiatrist, dated 16 May 2025 (the 16 May 2025 Samuels Report);

(3) Mr Hsu is not otherwise a suitable person to hold registration as a nurse within s 144(e) of the National Law;

(4) Mr Hsu has an impairment within s 5 of the National Law;

(5) the registration of Mr Hsu as a nurse is cancelled;

(6) Mr Hsu is prohibited from providing any health service as defined in s 5 of the National Law;

(7) Mr Hsu may not apply for a review of orders (5) and (6) above for a period of two years from the date of this decision;

(8) Mr Hsu is to pay the Commission's costs of the proceedings.

1. Mr Hsu was born in 1997, obtained a Bachelor of Nursing degree from the University of Technology Sydney in 2022, and was first registered as a nurse on 11 January 2022.
2. On 28 February 2022, Mr Hsu commenced employment as a registered nurse at Prince of Wales Hospital, Randwick (PWH).
3. On 28 February 2023, Mr Hsu was charged with sexually touching another person without consent under s 61KC(a) of the Crimes Act 1900 (NSW) (the first charge).
4. On 1 March 2023, Mr Hsu was charged with intentionally touching a child 10 years or older and under 16 years under s 66DB(a) of the Crimes Act (the second charge).
5. On 2 March 2023, the Director of Nursing of PWH sent a complaint in relation to Mr Hsu to the Australian Health Practitioner Regulation Agency (AHPRA) advising of the first and second charges and of the suspension of his employment (the PWH complaint).
6. On 27 March 2023, the delegates of the Nursing and Midwifery Council of New South Wales (the Council) held a hearing under s 150 of the National Law in response to the PWH complaint. The delegates decided to suspend the registration of Mr Hsu pursuant to s 150(1)(a) of the National Law and to refer the matter for investigation by the HCCC pursuant to s 150D of the National Law (the Council decision).
7. On 9 June 2023, Magistrate E Manea in the Local Court of New South Wales at Waverley in proceedings 2023/00067604 pursuant to s 14(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) made orders (the 9 June 2023 orders) dismissing the first and second charges and discharged Mr Hsu into the care of Dr Helen Baker (Dr Baker), his psychologist, subject to the following conditions:

"1. To undergo and participate in; Psycho-education on each of the impairments contributing to Mr Hsu's behaviour on 27th February 2023.

2. Follow up with Psychiatrist and take medication as prescribed where necessary especially for medication appropriate to Mr Hsu's impairments.

3. Participate and undergo Cognitive Behaviour Therapy (CBT) combined with Action Commitment Therapy (ACT), the latter where necessary.

4. Mr Hsu to make regular diary entries regarding various difficulties with anxiety and his other mental health and cognitive impairment issues.

5. Role play for social and communication issues.

6. Mr Hsu will undertake reading suggested by the Psychologist to advance his understanding of required treatment paths.

7. Mr Hsu is to seek advice from Psychologist and various online facilities (e.g. Beyond Blue and The Black Institute) as directed by his psychologist.

8. Participate in a Mindfulness practice especially to assist to reduce the frequency of his racing mind.

9. Undertake self-soothing activities."

1. On 3 October 2023, the delegates of the Council held a hearing under s 150A of the National Law (the s 150A hearing) and affirmed the Council decision.

1. On 13 October 2024, the Commission commenced proceedings 2024/00464505 against Mr Hsu by filing an application for disciplinary findings and orders and the attached Complaint comprising Complaints One and Two and a Schedule listing the names of Persons A and B (the HCCC Application), and which relevantly provides:

**"**3. ORDERS SOUGHT

The Applicant seeks the following orders:

1 An order prohibiting the disclosure of the names of the persons listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013.

In the event the subject-matter of the complaint is proved or admitted, the Applicant seeks:

2. Cancellation of the Respondent's registration, pursuant to s 149C(1)(d) of the National Law with a non-review period of 2 years

3. A prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as any non-review period imposed;

4. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law, as agreed or assessed.

In the event that only some of the particulars of the complaint are proved, the Applicant may seek alternative protective orders under section 149A (caution, reprimand, counsel etc.), section 149B (fine), and/or section 149C (suspension) of the National Law.

GROUNDS FOR APPLICATION (INCLUDING PARTICULARS)

The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has an impairment under section 144(d) of the National Law and is a suitable person to hold registration under section 144 (e) of the National Law."

1. On 21 February 2025, the Commission lodged the Affidavit of Perry Gamsby (Mr Gamsby) sworn on 10 February 2025 in which he deposed to the service of the HCCC Application on Mr Hsu on 3 February 2025 (the Gamsby Affidavit).
2. On 26 February 2025, the Tribunal constituted by Judge R Seiden SC, Deputy President, made an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the names of the two persons named in the schedule to the Complaint and procedural orders for the lodging of a Reply by Mr Hsu and of evidence and submissions by the parties.
3. On 7 May 2025, the Commission lodged the following documents on which it relies:

(1) Health Care Complaints Commission Material (the HCCC documents);

(2) Health Care Complaints Commission Supplementary Material (the HCCC supplementary documents);

1. On 9 May 2025, the Commission lodged the following documents on which it relies:

(1) Amended Complaint;

(2) Commission's Submissions (the HCCC Submissions);

(3) Commission's Chronology (the HCCC Chronology).

1. On 22 May 2025, the Commission lodged the report of Dr Anthony Samuels (Dr Samuels) dated 16 May 2025 (the 16 May 2025 Samuels Report).
2. On 26 May 2025, the Commission lodged the evidentiary certificate dated 26 May 2025 of AHPRA (the 26 May 2025 AHPRA certificate).
3. On 2 June 2025, the Commission was granted leave to rely on an Amended Complaint in the form of the Amended Complaint.
4. Mr Hsu has not lodged any documents.

1. The Amended Complaint relevantly provides (bold text in the original and omitting the strikethrough and red text indicating amendments):

"COMPLAINT ONE

Pursuant to section 144(e) of the National Law, the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.

BACKGROUND TO COMPLAINT ONE

Person A was born in 2008 and at the relevant time was a 14-year-old student at Randwick Girls High School. Person A and the practitioner were not known to each other.

PARTICULARS OF COMPLAINT ONE

1. On Monday, 27 February 2023 at approximately 3.25pm, Person A was walking in her school uniform, consisting of a skirt and shirt, in a westerly direction along Barker Street, Randwick when the practitioner walked behind her and said, "Can I just...?" before he reached out with his right hand under Person A's skirt and squeezed her left buttock.

2. On 28 February 2023, the practitioner was charged with 'Sexually touch another person without consent' and 'Intentionally touch child 10 years or older and under 16 years' (the charges).

3. On 9 June 2023, the charges were dismissed and discharged under s 14(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

COMPLAINT TWO

Pursuant to section 144(d) of the National Law, the practitioner has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of nursing.

PARTICULARS OF COMPLAINT TWO

1. The practitioner suffers from a Mood and Anxiety Disorder.

2. The practitioner suffers from a Substance Abuse Disorder involving marijuana and MDMA."

1. On 2 June 2025, the hearing took place. Emma Bayley, a solicitor, represented the Commission and was instructed by Helaina Draikos (Ms Draikos). There was no appearance by or on behalf of Mr Hsu.
2. The Commission relied on the following documents which were admitted into evidence and marked as follows:

(1) the bundle of documents comprising correspondence between the Commission and Mr Hsu from 13 December 2024 to 28 May 2025 (the correspondence bundle) (exhibit A1);

(2) the email correspondence between the Commission and Mr Hsu from 28 May 2025 to 2 June 2025 (the supplementary correspondence bundle) (exhibit A2);

(3) the HCCC documents (exhibit A3);

(4) the HCCC supplementary documents (exhibit A4);

(5) the 16 May 2025 Samuels Report (exhibit A5);

(6) the 26 May 2025 AHPRA certificate (exhibit A6);

(7) the Gamsby Affidavit (exhibit A7).

1. The Commission also relied on the following documents which we marked as follows:

(1) the HCCC Submissions (MFI1);

(2) the HCCC Chronology (MFI2).

1. There was no oral evidence.
2. During the hearing, we decided that the hearing should not be adjourned notwithstanding the non-appearance of Mr Hsu. In making this decision we had regard to the communications between the Commission and Mr Hsu in the correspondence bundle and the supplementary correspondence bundle. It is unnecessary to summarise these communications. We note that on 3 June 2025 we received an email Mr Hsu sent to the Registry on 2 June 2025 at 9.15 PM (marked as exhibit R1) in which he relevantly states:

"I'm informing the tribunal that I could not attend my hearing on the 2nd of June due to illness, I was happy for the hearing to take place in my absence and do not wish for another date to be re-listed. I was notified that the hearing did in fact take place and look forward to the tribunal's decision."

1. At the conclusion of the hearing, we granted leave to the Commission to lodge and serve supplementary submissions on the question of non-suitability within s 144(e) of the National Law by 9 June 2025 and reserved our decision.
2. On 10 June 2025, the Commission lodged the Commission's Supplementary Submissions (the HCCC Supplementary Submissions) which we have marked (MFI3).

(1) whether Mr Hsu was served with the material relied on by the Commission;

(2) whether the hearing should be a combined stage 1 and stage 2 hearing;

(3) whether Mr Hsu is not otherwise a suitable person to hold registration as a nurse;

(4) whether Mr Hsu has an impairment;

(5) whether, and if so in what manner, the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law should be exercised against Mr Hsu;

(6) whether Mr Hsu should pay the Commission's costs of the proceedings.

1. It is convenient to consider the first two issues together.
2. Before considering these issues, it is appropriate to set out the applicable provisions of the National Law and the legal principles as to the proof of facts.

1. Part 1 (ss 1-10) contains preliminary provisions. Section 3 specifies the objectives and guiding principles of the National Law, and relevantly provides:

3 Objectives and guiding principles

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

(a) the regulation of health practitioners; and

...

(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; and

...

1. Section 3A specifies the objective and guiding principle to be observed in the exercise of functions under the National Law, and provides:

3A Objective and guiding principle [NSW]

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

1. Section 4 specifies how functions under the National Law are to be exercised, and provides:

4 How functions to be exercised

An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A.

1. Section 5 contains definitions, and since the enactment of the National Law has relevantly provided:

5 Definitions

In this Law -

...

health service includes the following services, whether provided as public or private services -

(a) services provided by registered health practitioners;

(b) hospital services;

(c) mental health services;

(d) pharmaceutical services;

(e) ambulance services;

(f) community health services;

(g) health education services;

(h) welfare services necessary to implement any services referred to in paragraphs (a) to (g);

(i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists;

(j) pathology services.

...

impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect -

(a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or

1. Part 8 Division 3 Subdivision 1 (ss 144-144G) contains provisions dealing with the making of complaints. Section 144 deals with the grounds for complaint about a registered health practitioner, and relevantly provides:

144 Grounds for complaint about registered health practitioner [NSW]

The following complaints may be made about a registered health practitioner -

(a) Criminal conviction or criminal finding

A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.

(b) Unsatisfactory professional conduct or professional misconduct

A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.

(c) Lack of competence

A complaint the practitioner is not competent to practise the practitioner's profession.

(d) Impairment

A complaint the practitioner has an impairment.

(e) Suitable person

A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.

1. Part 8 Division 3 Subdivision 6 (ss 149-149E) contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies the circumstances in which these disciplinary powers may be exercised, and relevantly provides:

149 Powers may be exercised if complaint proved or admitted [NSW]

The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner ... if -

(a) it finds the subject-matter of a complaint against the practitioner ... to have been proved; or

...

1. Section 149C specifies the powers of the Tribunal to suspend or cancel registration in certain cases, and relevantly provides:

149C Tribunal may suspend or cancel registration in certain cases [NSW]

(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied -

...

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

...

(7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.

1. Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides:

13 Tribunal may award costs [NSW]

(1) The Tribunal may order the complainant (if any), the registered health practitioner ... concerned, or ... to pay costs to another person as decided by the Tribunal.

...

(3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.

1. In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52].
2. In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), Dixon J commented at 362:

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..."

1. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171 (Neat Holdings), the majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) said:

"[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (citations omitted)

1. Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact.
2. In approaching the issue in these proceedings we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126]- [127] (Leeming JA, with Basten JA at [1] and Gleeson JA at [37] agreeing); Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [85]- [87] (Payne JA, with Leeming JA at [1] and Simpson AJA at [118] agreeing).
3. The second aspect of the rule in Browne v Dunn is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 at [69]- [70] (Brereton JA with Simpson AJA at [137] agreeing).

Whether Mr Hsu was served with the material relied on by the Commission

Whether the hearing should be a combined stage 1 and stage 2 hearing

1. Mr Gamsby in the Gamsby Affidavit gave evidence that he served the HCCC Application on Mr Hsu on 3 February 2025.
2. The correspondence bundle relevantly includes the following emails:

(1) the email of Ms Draikos to Mr Hsu sent on 16 April 2025 at 11.06 am in which she relevantly stated:

"...

I note that over the phone you mentioned that you had already provided your material to the Tribunal. I note that as per the order (attached) your material is to be served next Wednesday, 23 April 2025. Could you please provide me with a copy of your material by email at your earliest convenience.

When you serve your material, please let us know if you are content for the matter to proceed as a combined hearing? If you chose not to have a combined hearing, the matter would be split into two stages (first a Stage 1 hearing about whether the alleged conduct is proven then a second Stage 2 hearing on a later date about whether protective orders should be made). This would likely involve additional time and costs.

Could you also please advise whether Dr Samuels and Person A are required for cross-examination.

..."

(2) the email of Ms Draikos to Mr Hsu sent on 7 May 2025 at 11.40 am in which she relevantly stated:

"...

Further could you please advise:

1. If you have any objections to the Commissions material, including the supplementary bundle that was served on you this week.

2. If you require Person A or Dr Samuels for cross-examination.

3. Whether you wish to continue with a combined hearing.

..."

(3) the email of Ms Draikos to Mr Hsu sent on 9 May 2025 at 4.01 pm in which she relevantly stated:

"...

Please see attached, by way of service, Sealed Copies of the Amended Complaint, the Commission's chronology, and the Commission's submissions which were all filed with the Tribunal today.

I confirm that hardcopies of these documents have been express posted to your residential address.

..."

(4) the email of Mr Hsu to Ms Draikos sent on 10 May 2025 at 3.07 pm in which he relevantly stated:

"...

Just informing you I do not have any objections to the material submitted, I do not require anyone for cross examination and wish to proceed with a combined hearing. I have no material to submit that the commission does not already have.

..."

(5) the email of Ms Draikos to Mr Hsu sent on 21 May 2025 at 3.37 pm in which she relevantly stated:

"...

Please see attached, by way of service, Dr Samuels supplementary report. I confirm that this will be posted to your residential address.

..."

1. The supplementary correspondence bundle relevantly includes the email of Ms Draikos to Mr Hsu sent on 29 May 2025 at 1.51 pm in which she relevantly stated:

"...

Please see attached, by way of service, the AHPRA Evidentiary Certificate.

..."

1. In the light of this evidence, we are satisfied of the following matters:

(1) Mr Hsu was served with the material relied on by the Commission;

(2) the hearing should be a combined stage 1 and stage 2 hearing.

Whether Mr Hsu is not otherwise a suitable person to hold registration as a nurse

1. The Commission in the HCCC Submissions submitted that Mr Hsu is not otherwise a suitable person to hold registration as a nurse by reason of his breaches of the following requirements of the code of conduct for nurses of the Nursing and Midwifery Board of Australia (the National Board and the NMC code of conduct respectively) which has been in effect since 1 March 2018 and updated in June 2022, and was approved by National Board under s 39 of the National Law:

"1.2 Lawful behaviour

Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must

...

c. not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration, and

..."

1. The Commission in the HCCC Supplementary Submissions submitted that Mr Hsu is not otherwise a suitable person to hold registration as a nurse by reason of his failure to complete the treatment plan comprised by the conditions of the 9 June 2023 orders, and the contents of the 16 May 2025 Samuels Report.
2. We note that the particulars of Complaint One in the Amended Complaint do not refer to any breach of the NMC code of conduct by Mr Hsu, and the failure of Mr Hsu to complete the treatment plan comprised by the conditions of the 9 June 2023 orders, which is referred to in the 16 May 2025 Samuels Report.
3. We also note that particular 3 of Complaint One in the Amended Complaint, while referring to s 14(1) of the MHCIFP Act, does not specifically refer to the impairments that gave rise to the 9 June 2023 orders.
4. In Lucire v Health Care Complaints Commission [2011] NSWCA 99 (Lucire) the New South Wales Court of Appeal considered an appeal by the practitioner against protective orders under the predecessor legislation to the National Law in circumstances where the practitioner did not adduce any evidence before the predecessor to the Tribunal. Basten JA at [39]-[47] addressed the unsatisfactory form of the complaint and at [45] relevantly said (with McColl JA at [1] and Sackville AJA at [155] agreeing):

"[54] Failure to formulate the complaint in appropriate terms is not a matter of pedantry or formalism. Imprecision can readily lead to false issues, evidence extending to matters which are not really relied upon and, as already noted, confusion as to the effect of the ultimate orders. ..."

1. In King v Health Care Complaints Commission [2011] NSWCA 353 (King) the New South Wales Court of Appeal considered an appeal by the practitioner against protective orders under the predecessor legislation to the National Law. McColl JA at [8] observed notwithstanding the absence of a statutory directive to formulate complaints in a pleading, it cannot be gainsaid that a complaint should, for reasons of procedural fairness, be formulated in appropriate terms, citing Lucire at [45].
2. Having regard to the principles in Lucire at [45] and King at [8], we have not considered the Commission's evidence and submissions so far as they relate to the alleged breaches of the NMC code of conduct by Mr Hsu and the failure of Mr Hsu to complete the treatment plan comprised by the conditions of the 9 June 2023 orders, as they are not relevant to the establishment of this Complaint. However, we have treated particular 3 as sufficiently raising the allegation that Mr Hsu had the impairments that gave rise to the 9 June 2023 orders. The necessity to examine the adequacy of particular 3 could have been avoided if the Commission had particularised these impairments.
3. Before considering this issue, it is appropriate to set out the applicable statutory provisions and legal principles, and summarise the relevant evidence and submissions of the Commission.

1. Part 1 (ss 1-6) contains preliminary provisions. Section 3 contains definitions and relevantly provides:

3 Definitions

(1) In this Act -

cognitive impairment - see section 5.

...

mental health impairment - see section 4.

...

4 Mental health impairment

(1) For the purposes of this Act, a person has a mental health impairment if -

(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

(2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons -

(a) an anxiety disorder,

(b) an affective disorder, including clinical depression and bipolar disorder,

(c) a psychotic disorder,

(d) a substance induced mental disorder that is not temporary.

...

5 Cognitive impairment

(1) For the purposes of this Act, a person has a cognitive impairment if -

(a) the person has an ongoing impairment in adaptive functioning, and

(b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and

(c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

(2) A cognitive impairment may arise from any of the following conditions but may also arise for other reasons -

(a) intellectual disability,

(b) borderline intellectual functioning,

(c) dementia,

(d) an acquired brain injury,

(e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder,

(f) autism spectrum disorder.

12 Defendants with mental health impairments or cognitive impairments

(1) A Magistrate may make an order under this Division or adjourn proceedings if it appears to the Magistrate that the defendant has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both.

(2) The Magistrate may take action under this Division only if it appears to the Magistrate, on an outline of the facts alleged in the proceedings or other evidence the Magistrate considers relevant, it would be more appropriate to deal with the defendant in accordance with this Division than otherwise in accordance with law.

...

14 Orders Magistrate may make

(1) A Magistrate may make an order to dismiss a charge and discharge the defendant -

(a) into the care of a responsible person, unconditionally or subject to conditions, or

...

(2) An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise.

15 Considerations of Magistrate when making order

In deciding whether it would be more appropriate to deal with a defendant in accordance with this Division, the Magistrate may consider the following -

(a) the nature of the defendant's apparent mental health impairment or cognitive impairment,

(b) the nature, seriousness and circumstances of the alleged offence,

(c) the suitability of the sentencing options available if the defendant is found guilty of the offence,

(d) relevant changes in the circumstances of the defendant since the alleged commission of the offence,

(e) the defendant's criminal history,

(f) whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990,

(g) whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan,

(h) whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public,

(i) other relevant factors.

Crimes Act

1. Part 10 Div 10 Subdiv 3 (ss 61KC-61KD) contains offences of sexual touching. Section 61KC relevantly provides:

61KC Sexual touching

Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally -

(a) sexually touches the complainant, or

...

is guilty of an offence.

Maximum penalty - Imprisonment for 5 years.

1. Part 10 Div 10 Subdiv 6 (ss 61DA-61DB) contains offences of the sexual touching of children. Section 61DB relevantly provides:

66DB Sexual touching - child between 10 and 16

Any person who intentionally -

(a) sexually touches a child who is of or above the age of 10 years and under the age of 16 years, or

...

is guilty of an offence.

Maximum penalty - Imprisonment for 10 years.

1. In Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 (Kazeme) at [122], the Tribunal made the following observations as to the meaning of the expression "not a suitable person" in s 144(e) of the National Law:

"[122] The term "not suitable" in s 144(e) is not defined. That is to "...ensure that bodies such as this Tribunal and the Boards charged with the important responsibility of ensuring high standards are maintained in registered professions are able to consider each case on its individual merits": Health Care Complaints Commission v Bosanquet [2012] NSWDT 2 at [103]. The approach to be adopted in considering s144(e) was discussed in Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 in the following terms:

27. The expression "not a suitable person to hold registration" is not defined by the National Law. Section 55 of the National Law provides some guidance as to its meaning. Headed "Unsuitability to hold general registration", s 55 of the National Law states that a National Board may decide that an individual is not a suitable person to hold general registration, if, among other things:

...

(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.

28. The meaning of the expression "not a suitable person to hold registration" in s 144(e) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 (Brush) 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.

29. That interpretation was cited with approval by the Tribunal (A/J Boland presiding) 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]."

1. In Health Care Complaints Commission v Chen (No 2) [2021] NSWCATOD 174 (Chen (No 2)) at [28]-[31], the Tribunal cited the cases in Kazeme at [122] in making observations as to the meaning of the expression "not a suitable person" in s 144(e) of the National Law.
2. In Windsor v Health Care Complaints Commission [2020] NSWCA 110 (Windsor) the New South Wales Court of Appeal dismissed an appeal by the practitioner against protective orders under the National Law. Gleeson JA at [110]-[112] made the following observations as to the scope of s 144(e) of the National Law (with Leeming JA at [143] and McCallum JA at [144] agreeing):

"[110] The Commission submitted that the words "is otherwise" in s 144(e) simply operate to enable the Tribunal to hear other types of complaints, other than those mentioned in s 144(a)-(d). That submission accorded with authority in the Tribunal which has interpreted the word "otherwise" in s 144(e) as limiting the operation of that provision to grounds for complaint not set out under ss 144(a)-(d): Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [60]; Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [59]; Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [57]; Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [51]. Dr Windsor did not submit to the contrary.

[111] The question of construction in relation to s 144(e) is whether, as the Commission submitted, the National Law should operate to permit the Tribunal to find a practitioner is otherwise not a suitable person to hold registration (s 144(e)) on the same underlying conduct of another ground of complaint, such as "lack of competence" (s 144(c)). According to the submission, this interpretation would best achieve the purpose or object of the National Law and is to be preferred to any other interpretation, as mandated by the purposive approach to the National Law required by cl 7 of Sch 7 of the National Law.

[112] The starting point is to recognise that the same particulars of underlying conduct can be characterised in more than one way for the purpose of s 144 of the National Law, when the Tribunal is exercising its powers under s 149C(1). That is, the underlying conduct relied upon for a complaint is not mutually exclusive to one of the complaints that can be made under s 144(a) to (e). That is also reflected in the language of s 149C(1) where the "is otherwise" limitation in s 144(e) is not repeated in s 149C(1)(d)."

1. In Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 (Elshaimy) at [37], the Tribunal made the following observations as to the evidentiary onus where there is proof of involvement by the practitioner in conduct which evidences bad character:

"[37] While the Commission bears the onus of establishing that Mr Elshaimy is not a suitable person to practise, given his proven involvement in conduct which evidences bad character, the evidentiary onus, in practical terms, shifts to Mr Elshaimy who must be able to point to some positive evidence of reformation. Given the gravity of his misconduct, that onus is heavy. As Walsh JA commented in obiter in Ex parte Tziniolois; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at [461]:

Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred.

If a man has exhibited some serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show some years later he has established himself as a different man."

1. The HCCC documents relevantly includes the following documents:

(1) the Court Attendance Notice and Police Facts Sheet for each of the first and second charges which relevantly set out the following facts:

"The accused, Zachary HSU, and the victim, (Person A) (aged 14), are not known to each other. The victim and the witness, (Person B), are siblings.

About 3:18pm on Monday 27 February 2023, the victim finished school at Randwick Girls High School, located on the corner of Barker Street and Avoca Street, Randwick.

About 3:25pm, the victim was walking home on the Southern-side of the pedestrian footpath, in a Westerly direction along Barker Street. As the victim began approaching the intersection of Barker Street and Willis Street, she heard footsteps behind her. The victim turned around and saw the accused walking behind her. The victim continued walking and crossed Willis Street.

As the victim passed the intersection of Willis Street, she heard the accused say, "Can I just..." the victim turned slightly toward the accused, who was now standing within arms reach. The accused said "Can I just ..?" before reaching out with his right hand and squeezing her left buttock. The victim did not say anything and the Accused ran away in an Easterly direction along Barker Street.

At 3:29pm, the victim called the witness, crying, and the witness said, "What happened?"

The victim said, "Some guy has just touched me, some guy was like following me, he lifted up my skirt and touched me"

The witness said, "Where?"

The victim said, "Just down the hill"

The witness knew this meant in the direction of his location.

The witness said, "Where are you?"

The victim said, "I'm almost home"

The witness said, "Where is he?"

The victim said, "He is running back up the hill"

At this time, the witness was waiting for a bus at the intersection of Barker Street and Young Street. Rather than wait for his bus, he began to walk in a Westerly direction along Barker Street, toward the direction of the accused.

The witness sighted the Accused walking hurriedly towards him. The Accused got into a Gold Honda Civic sedan bearing New South Wales [registration number omitted] which was parked facing west on Barker Street near the intersection of Jane Street.

...

... The Accused nominated himself as the sole driver of the [registration number omitted] at the time of offence.

..."

(2) the New South Wales Police Force Brief of evidence for the first and second charges which relevantly included:

(a) the Statement of Constable Bonnie McMahon dated 21 March 2023 (the McMahon Statement);

(b) the Transcript of Interview with Person A on 27 February 2023 (the Person A Interview);

(c) the Statement of Person B dated 27 February 2023 (the Person B Statement);

(3) the Transcript of the hearing on 9 June 2023 which includes the following findings of Magistrate Manea (Tcpt, 9 June 2023, p 10, ll 4-48):

"It is appropriately conceded by the Crown that Mr Hsu is eligible for diversion in terms of his mental health impairment and Helen Baker, psychologist, has diagnosed him with the following conditions, and this is in reference to her report of 16 May 2023:

"Autism spectrum disorder, generalised anxiety disorder, clinical depression, substance induced mental disorder."

It is not temporary. In those circumstances the Crown has made a concession that he is eligible in terms of what is colloquially referred to as the first limb. He fits the mental health impairment definition.

So now I turn to whether or not it is appropriate in the circumstances, more appropriate, to deal with the defendant in accordance with this division and otherwise in accordance with law.

I turn then to the considerations under s 15. In deciding this question I must look at a list of factors, but that is not an exhaustive list. The nature of the defendant's apparent mental health impairment or cognitive impairment appears on a reading of the material contained in the report relied upon to be high level anxiety. In terms of his cognitive impairment he has:

"A cognitive impairment in adaptive functioning, autism spectrum disorder and he also has disturbances that will be regarded as significant for clinical diagnostic purposes, that they are generalised anxiety disorder and effective disorder, being clinical depression and a substance induced mental disorder that is not temporary."

In my view on the material that is before me it appears that the offending behaviour can be squarely placed on his conditions, and that is that there is a nexus between the mental health impairment and the conduct in the facts, and that although he has used marihuana in the past and has used also MDMA, ecstasy and consumed alcohol, it is my view that there is a nexus between the actual conditions diagnosed by the psychologist and rather than being solely referrable to substance issues.

It is significant to consider also the facts in this matter. The nature, seriousness and circumstances of the alleged offence are outlined in the facts of which I have read, and it is appropriate to put that it is not at the lower end given that he follows the complainant or victim and follows her and lifts up her skirt and touches her on the buttocks. It is, though, conduct which is not, in my view, at the midrange of objective seriousness. It is towards the lower end but not at the lowest end. It is, in my view, still a serious offence and one of which - this is sequence 2 - carries a term of imprisonment as a maximum penalty of ten years."

(4) Advice of Court Result dated 4 July 2023 which records the 9 June 2023 orders;

(5) the Criminal History of Mr Hsu dated 6 October 2023.

1. The Commission in each of the HCCC Submissions and the HCCC Supplementary Submissions relevantly made the following submissions:

(1) Mr Hsu is not a suitable person to hold registration as a nurse;

(2) the evidence establishes particulars of Complaint One;

(3) it set out some relevant principles.

1. We are satisfied that the Commission has established most of the particulars of Complaint One as follows:

(1) the conduct of Mr Hsu in particular 1 is established by the Police Facts Sheet for each of the first and second charges, the McMahon Statement, the Person A Interview, and the Person B Statement;

(2) the bringing of the first and second charges in particular 2 is established by the Court Attendance Notice. We note that particular 2 is inaccurate as whereas the Court Attendance Notice for the first charge was issued on 28 February 2023, the Court Attendance Notice for the second charge was issued on 1 March 2023. However, nothing turns on this inaccuracy;

(3) the dismissal of the first and second charges and discharge of Mr Hsu in particular 3 is established by the 9 June 2023 orders. We note that particular 3 is inaccurate as s 14(1) of the MHCIFP Act provides for the discharge of the defendant rather than the charge. However, nothing turns on this inaccuracy. The nature of these orders can only be understood in the light of the provisions of the MHCIFP Act and the findings of Magistrate Manea set out above. In particular, by virtue of s 14(2) of the MHCIFP Act, there was no finding that Mr Hsu committed offences under ss 61KC(a) and 66DB(a) of the Crimes Act.

1. Having regard to the principles in Kazeme at [122], Chen (No 2) at [28]-[31] and Windsor at [110]-[112], we are satisfied that by reason of the combination of his impairments and the conduct specified in particular 1 Mr Hsu as at 27 February 2023 was otherwise not a suitable person to hold registration as a nurse within s 144(e) of the National Law. While we accept that this conduct was caused by his mental health impairment and cognitive impairment as found by Magistrate Manea in making the 9 June 2023 orders, the nature of the impairments and the resulting conduct meant he was not otherwise a suitable person to hold registration as a nurse.
2. In circumstances where Mr Hsu has not adduced any evidence, then, having regard to the principles in Elshaimy at [37], we are satisfied that Mr Hsu is otherwise not a suitable person to hold registration as a nurse within s 144(e) of the National Law.

1. Before considering this issue, it is appropriate to set out the applicable legal principles, and summarise the evidence and submissions of the Commission.

1. In Grant v HCCC [2003] NSWCA 73 (Grant) at [12], Meagher JA (with Beazley JA at [20] and Santow JA at [21] agreeing) rejected the submission that the predecessor of the Tribunal did not find with sufficient particularity what precise kind of mental disturbance they alleged the practitioner suffered from because they did not then say what sort of mental illness they relied on to constitute impairment, and held:

"[12] In my view they do not have to. Once they came to the conclusion, which they did come to, that whatever it was that she suffered from was prejudicial to an orderly conduct of her mental and physical duties as a medical practitioner, they were entitled to make a finding of impairment even although they did not put a psychological label on that impairment."

1. In Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim) at [64], Meagher JA (with McColl JA at [1] and Ward JA at [91] agreeing) held that there was no requirement under the applicable National Law that a diagnosis that a person has a mental condition or disorder in the sense of an "impairment" be formed in accordance with the DSM-5 and cited Grant at [12].
2. In Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 (Astor-Finn) at [43], the Tribunal made the following observations with respect to the establishment of impairment within s 5 of the National Law:

"[43] The following principles are established:

i. There is no requirement for the Tribunal to make a finding as to a particular diagnosis. It is enough that whatever the condition possessed by the practitioner it is 'prejudicial to the orderly conduct of her [or his] mental and physical duties as a ... practitioner': Grant v HCCC [2003] NSWCA 73 at [12] per Meagher JA.

ii. Impairment must be demonstrated by reference to evidence or an unequivocal admission by the practitioner: HCCC v Greenwood [2011] NSWNMT 13 at [62].

iii. The Tribunal must consider whether the practitioner is currently impaired: Caladine v HCCC [2007] NSWCA 362 at [11] per Beazley JA. Currency of impairment may be demonstrated by evidence of deficiency at a particular time combined with the absence of any evidence of any improvement since that time. To similar effect, see HCCC v Wang [2010] NSWNMT 9 at [93] (there making this observation in relation to a finding as to present competence)."

(1) the transcript of the s 150A hearing at which Mr Hsu gave the following evidence with respect to his anxiety in dealing with patients:

"it was just very difficult for me to communicate with those patients, and I often had to leave .., when I would have these anxiety attacks, I would kind of shut down a little bit, so I would have to leave the situation for quite a few minutes, and then come back, just because it was quite overwhelming... It's usually when I have to deal with aggressive patients, or we're having a sort of an ... argument about maybe their treatment or how they want to be treated";

(2) the report of Dr Samuels dated 7 February 2024 (the 7 February 2024 Samuels report) comprising 10 pages and a curriculum vitae of five pages, in which he expressed the following opinions with respect to Mr Hsu following a consultation with him on that day:

"64. He does have a number of impairments within the meaning of the National Law, namely "a Mood and Anxiety Disorder which remains symptomatic and a Substance Use Disorder involving marijuana and MDMA which is in early remission. He has some features suggestive of a mild autistic spectrum disorder and possible ADHD. There is also a possibility of a latent paraphilic disorder. These impairments do have the potential to impact upon his professional functioning."

(3) the email of Dr Baker to Ms Drakos sent on 26 March 2025 (the 26 March 2025 Baker email) in which she states that:

(a) Mr Hsu said he had worsening apprehension as a result of regular shifts with difficult to manage patients;

(b) Mr Hsu has not completed his treatment plan, he needs to attend further sessions and his access to nursing wards should be restricted for some time until she is satisfied with his recovery.

1. The HCCC supplementary documents relevantly include the report of Dr Raiz Ismail, Consultant Psychiatrist, dated 8 March 2023 (the 8 March 2023 Ismail report) in which he relevantly recorded the following history taken from Mr Hsu on that date:

"He said that he has been taking Citalopram 20 mg for the past 6 months-he admitted that this medication, an anti depressant has not been prescribed for him. He admitted that he was taking this medication illegally from the ward where he is currently working (neurology ward). He said that he had stopped this medication five days before the incident as he wanted to see how his anxiety was without the medication. He said that he felt that he was suffering from anxiety for a long time, that's why he wanted to try Citalopram.

...

During this time, he did not seek any professional help for his anxiety issue. He said that he feels anxious in social situations. He becomes anxious in crowded places, fear of scrutiny, at times he has developed panic attacks

in work and in crowded places. ...

...

He said that his anxiety got worse when he started nursing. He said that he was masking his anxiety...."

1. The Commission in the HCCC Submissions relevantly made the following submissions:

(1) it set out some relevant principles;

(2) Mr Hsu's anxiety is likely to detrimentally affect his capacity to practise nursing in the light of his evidence at the s 150A hearing;

(3) Mr Hsu's depression is likely to detrimentally affect his capacity to practise nursing: nurses are required to safely store and administer prescribed medications to patients but he self-medicated using antidepressant medication (Citalopram) from his nursing workplace;

(4) Mr Hsu's substance use disorder is likely to detrimentally affect his capacity to practise nursing: nurses are required to practice safe person-centred care and not engage in unlawful conduct, but he increased his use of illicit substances during his nursing rotations and, since he ceased therapy, there remains a risk of relapse;

(5) Mr Hsu's autistim spectrum disorder is likely to detrimentally affect his capacity to practise nursing: he hated the noise when patients screamed and he had worsening apprehension before his nursing shifts.

1. We are satisfied that the Commission has established the particulars of Complaint Two as follows:

(1) Mr Hsu suffering from a Mood and Anxiety Disorder is established by the 8 March 2023 Ismail report, the evidence of Mr Hsu at the s 150A hearing, the 7 February 2024 Samuels report and the 26 March 2025 Baker email;

(2) Mr Hsu suffering from a Substance Abuse Disorder involving marijuana and MDMA is established by the 7 February 2024 Samuels report.

1. Having regard to the principles in Grant at [12] and Qasim at [64], and the evidence of Dr Samuels in the 7 February 2024 Samuels report, we are satisfied that Mr Hsu had an impairment within s 5 of the National Law as at that date.
2. In circumstances where Mr Hsu has not adduced any evidence, then, having regard to the principles in Astor-Finn at [43iii], we are satisfied that Mr Hsu has an impairment within s 5 of the National Law.

Whether, and if so in what manner, the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law should be exercised against Mr Hsu

1. Before considering this issue, it is appropriate to set out the applicable legal principles, and summarise the submissions of the Commission.

The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law

1. In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [19]- [21] Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law:

"[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. ...

[20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points:

1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.

2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.

3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.

[21] The task of the Tribunal ... centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."

1. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], Meagher JA (with Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm:

"[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 Re Parajuli [2010] NSWMT 3 (Parajuli) the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection":

"(a) any need to protect the public against further misconduct by the practitioner;

(b) the need to protect the public through general deterrence (of other practitioners);

(c) the need to protect the public by reinforcing high professional standard and denouncing transgressions;

(d) the maintenance of public confidence in the profession;

(e) the desirability of making available to the public any special skills possessed by the practitioner."

1. The five matters in Parajuli have been approved by the Tribunal applying the National Law: see, for example, Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 at [24]; Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 at [43]; Health Care Complaints Commission v Chahoud [2022] NSWCATOD 36 at [195].
2. In Health Care Complaints Commission v Buys (No 3) [2020] NSWCATOD 102 at [17], the Tribunal relevantly made the following observations as to reputational damage to a practitioner by reasons of protective action taken under the National Law:

"[17] The respondent also emphasised that he had been punished by the publicity which had surrounded the finding of professional misconduct which had been made against him, the impact that this had had on his family and his practice, and the damage sustained to his reputation in the local area where he had been practising. Whilst these are unfortunate consequences for the respondent and his family, it must be emphasised that his circumstances are caused solely by the fact that he engaged in a course of misconduct of a serious kind, justifying a finding that it constituted professional misconduct. To this extent his authorship of his own misfortune is irrelevant in determining what protective orders should be made."

1. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88].

The exercise of the power of the Tribunal to cancel the registration of the practitioner and to specify a non-review period

1. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen) at [21]-[22], Basten JA (with Leeming JA at [23] agreeing) considered the operation of s 149C of the National Law:

"[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.

[22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. ..."

1. In Chen at [88], Payne JA (with Basten JA at [1] and Leeming JA at [23] agreeing) considered the operation of s 149C(7) of the National Law:

"[88] ... a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order."

The exercise of the power of the Tribunal to make a prohibition order

1. The meaning of "substantial risk" in s 149C(5) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 (Menz (No 2)) at [19]:

"[19] Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services."

1. The Commission in the HCCC Submissions relevantly made the following submissions:

(1) it set out some relevant principles;

(2) Mr Hsu's registration should be cancelled because he is not a suitable person for registration in the nursing profession with a two-year non-review period;

(3) Mr Hsu poses a substantial risk to the health of the public.

1. In view of our findings we are satisfied that we are entitled pursuant to s 149(a) of the National Law to exercise the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law against Mr Hsu.
2. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in [80] to [87] above, and the matters set out in [66] to [68] above, we are satisfied that it is appropriate to cancel Mr Hsu's registration pursuant to s 149C(1)(d) of the National Law.
3. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in Menz (No 2) at [19], and the matters set out in [66] to [68] above, we are satisfied that Mr Hsu poses a substantial risk to the health of members of the public, and it is appropriate to make the prohibition order against him pursuant to s 149C(5) of the National Law.
4. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in Chen at [22] and [88], and the matters set out in [67] to [69] above, we are satisfied that it is appropriate to fix a non-renewal period of two years pursuant to s 149C(7) of the National Law for the cancellation of Mr Hsu's registration and the making of the prohibition order against him.

Whether Mr Hsu should pay the Commission's costs of the proceedings

1. Before considering this issue, it is appropriate to set out the applicable legal principles, and summarise the submissions of the Commission.

The exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law

1. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]-[46], Emmett JA (with Meagher JA at [1] and Beech-Jones J at [50] agreeing) set out the principles relevant to the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law:

"[42] 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.

[43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95).

[44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.

[45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner.

[46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. ..."

1. In Health Care Complaints Commission v Neale [2024] NSWCATOD 16 (Neale) at [8]-[10], the Tribunal relevantly said:

"[8] In its submissions with respect to costs dated 4 August 2023 the Applicant identified the relevant statutory provisions with respect to costs and a number of the principles relevant in that regard. As is not in doubt, costs are awarded to compensate a successful party, rather than punish an unsuccessful party and, as a general rule, follow the event (HCCC v Philipiah [2013] NSWCA 342).

[9] The presumption that a successful party is entitled to receive its costs is generally only displaced where there has been some disentitling conduct by the successful party (Oshlack v Richmond River Council (1998) 193 CLR 72 [1998] HCA 11, Health Care Complaints Commission v CSM [2016] NSWCATOD 125, Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154).

[10] A respondent bears the onus of establishing a basis for any departure from the general rule (Health Care Complaints Commission v Livermore [2021] NSWCATOD 115). If the successful party is found to have engaged in disentitling conduct the general rule may be departed from."

1. The Commission in the HCCC Submissions relevantly made the following submissions:

(1) it set out some relevant principles;

(2) it will be the successful party and there is no disentitling conduct by the Commission to warrant a departure from the general rule.

1. Having regard to the principles in Philipiah at [42]-[46] and Neale at [8]-[10], we have decided pursuant to cl 13 of Sch 5D of the National Law to order Mr Hsu to pay the Commission's costs of the proceedings as agreed or assessed.

(1) The respondent's registration is cancelled.

(2) The respondent is prohibited from providing any health service as defined in s 5 of the Health Practitioner Regulation National Law (NSW).

(3) The respondent may not apply for a review of orders (1) and (2) above for two years from the date of this decision.

(4) The respondent is to pay the costs of the applicant of the proceedings as agreed or assessed.

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

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