Health Care Complaints Commission v Kemp

The Commission's Complaint

1. The Commission relies upon three (3) Complaints contained in its Application for Disciplinary Findings and Orders dated 15 June 2023. They are: Complaint 1 Pursuant to s.144(a) of the National Law, the Practitioner has been convicted and has been made the subject of a criminal finding for criminal offences in New South Wales. Background of Complaint 1 On 24 August 2022, the Practitioner was convicted of the following offences at Wollongong Local Court: (a) possessing child abuse material at Bulli between 1 January 2020 and 11 May 2021 contrary to s.91H(2) of the Crimes Act 1900 (H80440338 Sequence 2); (b) disseminating child abuse material at Bulli on 22 March 2021 contrary to s.91H(2) of the Crimes Act 1900 (H80440338, Sequence 3); (c) intentionally distributing an intimate image without consent at Bulli on 28 April 2021 contrary to s.91Q(1) of the Crimes Act 1900 (H80440338, Sequence 14); (d) intentionally distributing an intimate image without consent at Bulli on 3 April 2021 contrary to s.91Q(1) of the Crimes Act 1900 (H80440338, Sequence 16). Complaint 2 The Practitioner is guilty of unsatisfactory professional conduct under s.139B(1)(b) of the National Law in that he has contravened s.130(1) of the National Law. Particulars of Complaint 2 The Practitioner failed to notify the National Board that he has been charged before a New South Wales Court with the following offences punishable by twelve (12) months imprisonment or more within seven (7) days of becoming aware of the fact. On 11 May 2021, the Practitioner was charged 1 x count of an offence of disseminate child abuse material contrary to s.91H(2) of the Crimes Act 1900 (H80440338/1); On 11 May 2021, the Practitioner was charged 1 x count of an offence of possess child abuse material contrary to s.91H(2) of the Crimes Act 1900 (H80440338/2). Complaint 3 Pursuant to s.144E of the National Law, the Practitioner is otherwise not a suitable person to hold registration in the Practitioner's profession. Background to Complaint 3 The background to Complaint 1 is relied upon and repeated. Particulars of Complaint 3 Between 1 January 2021 and 28 April 2021, the Practitioner recorded intimate images of Victim A without her consent (Form 1 offence).

The evidence before the Tribunal

1. The Tribunal's evidence included the Affidavit of Ms Nicole Faraj, legal officer, to which we have already referred. In addition, the Tribunal relied upon the following: 1. A bundle of documents comprising 29 tabs which was admitted into evidence and became Exhibit 1; 2. An Evidentiary Certificate provided by Ahpra dated 26 September 2023 which became Exhibit 2; 3. An Evidentiary Certificate on the letterhead of the Paramedicine Council of New South Wales prepared for the purposes of the proceedings which became Exhibit 3.
2. As we have said, the Respondent provided only an unsigned letter dated 15 August 2022 on the letterhead of Dr Robert McGrath, consultant neuropsychologist. The letter relates to the Respondent's current state of health and the Practitioner's opinion as to the cause of the Practitioner's criminal conduct. But without more it is not possible to determine the context in which it was generated or, for example, whether the document contains all the matters and circumstances taken into account by its author.
3. Before the Tribunal therefore, the Commission's evidence is not challenged. With respect to the unsigned letter of Dr Robert McGrath, the Tribunal has taken it into account. However, in the circumstances of its presentation to us it cannot be afforded any great weight where the reasons for its production are unclear and the Commission has not been afforded an opportunity to challenge opinions expressed in it. Apart from that document, the Respondent's attitude to the proceedings can be seen from an email reply sent to Ms Faraj on 13 September 2023 which included a statement in the following terms: Hi … please tell them to do what they have to do … I want nothing to do with it … thanks again.

Discussion

1. In considering the evidence, the Tribunal is not bound by the Rules of Evidence. However, the civil standard of proof does apply. See for example, Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53. The civil standard is satisfaction on the "balance of probabilities" often referred to as the Briginshaw standard. [3] The Commission bears the onus of proof and the Tribunal, to use a phrase often used, must be "comfortably satisfied" that that onus has been discharged. Quite properly counsel for the Commission at [25] of her helpful submission, refers us to the Tribunal's findings in Health Care Complaints Commission v Segal [2022] NSWCATOD 71 at 5. The allegations against the Respondent in this case are serious and there is potential for a significant impact upon him should we find the Commission's case established. Consequently, the Tribunal has taken into account the need to rely only on evidence properly supporting the findings we have made.
2. In relation to those findings the Tribunal is satisfied that the evidence establishes the following facts and circumstances are proved before the Tribunal, namely: 1. That on 11 May 2021, the Respondent was arrested and charged with possessing and disseminating child abuse material contrary to s.91H(2) of the Crimes Act 1900 (NSW). [4] 2. That on 16 May 2021, the NSW Ambulance notified the NSW Paramedicine Council regarding the Respondent's alleged conduct. [5] 3. That on 26 May 2021, the NSW Paramedicine Council determined to suspend the Respondent's registration as a paramedic pursuant to s.150(1)(a) of the National Law. [6] 4. That on 9 June 2021, the Respondent entered pleas of guilty in relation to the following offences: 1. possessing child abuse material in contravention of s.91H(2) of the Crimes Act 1900; 2. disseminating child abuse material in contravention of s.91H(2) of the Crimes Act 1900; 3. intentionally distributing intimate images without consent in contravention of s.91Q(1) of the Crimes Act 1900. [7] 1. That on 24 August 2022, the Respondent was convicted of the offences to which he entered guilty pleas referred to in the last preceding paragraph. [8] That on sentencing the Respondent a further offence was taken into account being that the Respondent intentionally recorded intimate images without consent in contravention of s.91P(1) of the Crimes Act 1900 (Form 1). [9] 1. That on 24 August 2022, the Respondent was sentenced to a term of imprisonment of two (2) years to be served by way of intensive correction in the community and, a community correction order to be served concurrently. [10]
3. It follows from the findings set out above that Complaint 1 is established.
4. Turning to Complaint 2, s.130(1) of the National Law provides: (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event.
5. Pursuant to s.130(3)(a)(ii) of the National Law, a "relevant event" includes a practitioner being charged with an offence punishable by more than 12 months imprisonment. There is no issue that the offences with respect to which the Respondent pleaded guilty were offences punishable by more than 12 months imprisonment.
6. Counsel for the Commission submits that the charges of 11 May 2021 were "relevant events" which required the Practitioner to notify the National Board within seven (7) days namely by 18 May 2021. The Tribunal agrees.
7. Counsel further submits that in an email dated 11 October 2022, a Regulatory Support Officer of Ahpra confirmed to Ms Regina Kolo, an investigation officer of the Health Care Complaints Commission that Ahpra records did not contain any self-notifications from the Respondent. [11] The Commission further contends that a later search was conducted of records at Ahpra which confirmed the accuracy of the earlier search. Evidence of that later search was not however put before the Tribunal but that does not prevent the Tribunal finding as the Commission submits it should that the Respondent was required to and did not notify the National Board within seven (7) days of being charged with the offences of 11 May 2021.
8. Having regard to the nature of the charges, the fact that the Respondent pleaded guilty to the charges and the obligations upon the Tribunal under the guiding principles established in the National Law and pursuant to s.139B(1)(b) of that Law, that the Respondent is guilty of unsatisfactory professional conduct. Complaint 2 is therefore established.
9. Turning to Complaint 3, the Commission contends that the Respondent is not otherwise a suitable person to hold registration as a paramedic pursuant to s.144(e) of the National Law. The evidence relied upon is the conduct underlying his convictions and the Form 1 offence earlier referred to. [12]
10. The Court in Windsor v Health Care Complaints Commission [2020] NSWCA 110 per Gleeson JA at [112]-[114] held that conduct which resulted in complaints of criminal conduct under s.144(a) may be the basis for findings that a practitioner is otherwise not a suitable person and in particular his Honour said: 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 complaint is not mutually exclusive to one of the complaints that can be made under ss.144(a)-(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).
11. Counsel for the Commission has also drawn the Tribunal's attention to Health Care Complaints Commission v Haasbreok [2018] NSWCATOD 177 and Health Care Complaints Commission v Pilkington [2020] NSWCATOD 21 at [104]. The latter case being one where a proper consideration for the Tribunal was the reputation of the relevant professional generally and the public's trust in it which may be affected by the Respondent's conduct. It is sufficient for the Tribunal to find and the Tribunal does find that the Respondent's conduct leading to his conviction of the offences of possession and dissemination of child abuse material are offences of considerable seriousness and contrary to accepted community standards.
12. The Tribunal further accepts the submission of counsel for the Commission at [43.2] of her submission that: [13] The nature of the conduct underlying Complaint 3, Particular 1, was clandestine, being that the Respondent used a pen camera to record intimate images of the victims without consent …
13. On the basis of the evidence referred to above, the Tribunal finds that the Respondent is not a suitable person to hold a registration as a paramedic.

The appropriate penalty to be imposed

1. Section 149C relevantly states: 149C Tribunal may suspend or cancel registration in certain cases (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) … or (b) … or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. … (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order") do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. … (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.
2. In exercising the power to make orders in terms of the section, it is their protective nature rather than their punitive nature that is important. [14] A recent distillation of relevant considerations with respect to the application of s.149C(1)(c) was set out in Health Care Complaints Commission v Russ [2021] NSWCATOD 5. That judgment being cited with approval by the Tribunal in Health Care Complaints Commission v Muthunesan [2021] NSWCATOD 178 at [84] where the approach adopted in Russ was outlined in the following terms: … (a) The assessment is current rather than at the time of the offences, but is directed at the circumstances of the offence only: "The question for the decision-maker seeking to apply s.149C(1)(c), therefore, is whether the circumstances surrounding the relevant offence currently the practitioner unfit to practice his or her profession in the public interest. The Tribunal must look back to the circumstances of 2018-19 and make that assessment in the present. Nonetheless, that evaluation has a narrow focus and is to be undertaken solely by reference to the circumstances of the offence." (b) The circumstances of the offence are broad in keeping with the public protection purposes of the National Law: "The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances were developed; the character of the practitioner and his or her subjective circumstances."
3. The nature of the offences involving the dissemination of child pornography and the clandestine behaviour to which the Respondent pleaded guilty require a significantly lengthy period of cancellation of the Respondent's registration. Against such a result is only the content of Dr Robert McGrath's letter in which he opines that the Respondent's behaviour was associated and had a causal connection to the drug regime with which he was then being treated. However, in the absence of Dr McGrath as a witness, we can afford little weight to his opinion.
4. It is the Respondent's evidence that he does not propose to again enter the paramedic service. Whether or not this is in fact the case we cannot say; but this Tribunal has difficulty in re-admitting to practice in the paramedical service a practitioner who has been convicted of the offences to which the Respondent plead guilty. The Tribunal finds a non-review period of five (5) years entirely appropriate.
5. Likewise, the Tribunal accepts the submissions made on behalf of the Commission with respect to the application of s.149C(5) of the National Law and the consequences which flow from it. An order will be made prohibiting the Respondent from providing any health service as defined in s.4 of the Health Care Complaints Act 1993 (NSW) for a period of five (5) years.
6. The Commission seeks a non-publication order to refer to the persons named in the Amended Schedule filed with the Tribunal. A non-publication order will be made.

Costs

1. The Commission seeks an order that the Respondent pay its costs as agreed or assessed pursuant to Clause 13 of Schedule 5D of the National Law. This is a jurisdiction where costs generally follow the event. There is nothing to suggest that this should not be the case in these proceedings. It follows an order in the terms sought by the Commission will be made.

Orders 1. That pursuant to s 149C(1)(c), the Respondent's registration be cancelled and that cancellation not be reviewed for a period of five (5) years. 2. That pursuant to s 149C(5), the Respondent be prohibited from providing a health service (as defined in s.4 of the Health Care Complaints Act 1993 (NSW) until he obtains re-registration. 3. An order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) that the name and address of the persons listed in the Schedule to the Health Care Complaints Commission Amended Complaint filed 20 November 2023 not be disclosed. 4. An order that the Respondent pay the Health Care Complaints Commission's costs as agreed or assessed.

Endnotes

1. Exhibit 2, Ahpra - Evidentiary Certificate.
2. Exhibit 3, Paramedicine Council of New South Wales - Evidentiary Certificate.
3. See Briginshaw v Briginshaw (1938) 60 CLR 366 at 362-363.
4. Exhibit 1, Tab 12 at p.65 and Tab 3 at p.15.
5. Exhibit 1, Tab 3.
6. Exhibit 1, Tab 4.
7. Exhibit 1, Tab 13.
8. Exhibit 1, Tab 24.
9. Exhibit 1, Tabs 17 and 19.
10. Exhibit 1, Tab 24.
11. Exhibit 1, Tab 26.
12. Exhibit 1, Tab 17.
13. Exhibit 1, Tab 15.
14. See Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202 and Lee v Health Care Complaints Commission [2012] NSWCA 80. 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

Amendments 04 December 2024 - Coversheet and end of decision under heading Orders, text of order 3 - spelling correction. Publication Restriction - text has had spelling correction. Paragraph 23 - rewording of quote. 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: 04 December 2024