Health Care Complaints Commission v Le [2025] NSWCATOD 107;

(1) an offence of participating in a criminal group contrary to s 93T(1) of the Crimes Act 1900 (NSW) ("Crimes Act")

(2) an offence of dealing with property reasonably suspected to be proceeds of crime contrary to s 193C(2) of the Crimes Act

(3) two offences of possessing an unauthorised firearm contrary to s 7A(1) of the Firearms Act 1996 (NSW) ("Firearms Act").

1. For the offences under the Crimes Act, the Respondent was sentenced to imprisonment for 12 months, to be served by way of an Intensive Corrections Order. For the offences under the Firearms Act, the Respondent was placed on a Community Corrections Order also for a period of 12 months.

1. The Applicant said that the Respondent was guilty of unsatisfactory professional conduct under s139B(1)(b) of the National Law in that the Respondent had contravened a provision of the National Law. Particulars of the complaint were as follows.
2. The Applicant said that the Respondent failed to notify the National Board within seven days of being charged on 12 July 2023 with the offences described at (2) and (3) above at para [8].
3. The Applicant further said that the Respondent failed to notify the National Board within seven days of being charged on 8 August 2023 with:

(1) the offence of knowingly dealing with proceeds of crime contrary to s 193B(3) of the Crimes Act

(2) four offences of knowingly taking part in the supply of a prohibited drug not less than the large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW)

(3) one offence of knowingly taking part in the supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

1. The Applicant said that the Respondent failed to notify the National Board within seven days of being convicted on 8 May 2024 of the offences outlined under Complaint 1.

1. The Applicant said that the Respondent was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that he had engaged in improper and or unethical conduct relating to the practice or purported practice of nursing. Particulars of the complaint were as follows.
2. On15 May 2024, the Respondent made certain representations to the Nursing and Midwifery Council of NSW ("Council") that the Applicant said were intentionally false and or misleading, in that they contained a material omission. During a phone call with a staff member, the Respondent had advised that his charges had been withdrawn and requested information about how his suspension could be reviewed.
3. In an email of 15 May 2024, the Respondent requested for his suspension to be reviewed and attached a document comprising of two extracted pages of a five-page charge certificate. The document provided was only two pages of the five-page charge certificate omitting any pages which outlined the charges to which the Respondent had pleaded guilty and for which he was convicted.

1. The Applicant said that the Respondent was guilty of professional misconduct under s 139E of the National Law. The Respondent in the Applicant's submission had engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. Additionally, in the Applicant's submission, the Respondent had engaged in more than one instance of unsatisfactory professional conduct in that when the instances were considered together, they amounted to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration. The Applicant, in terms of particulars, relied on the particulars for Complaints 2 and 3 above.
2. There was no dispute between the parties as to the matters of fact set out above, including the convictions made against the Respondent.
3. At the hearing of the matter, the Tribunal heard the submissions and evidence of both parties as to the substance of the Applicant's complaints and as to the orders sought by the Applicant.

1. The matter for the Tribunal to consider is whether or not the conduct of the Respondent in evidence amounted to "professional misconduct". If the Tribunal finds that the Respondent's conduct does answer the description of "professional misconduct", grounds may arise under s 149C for making the orders sought by the Applicant.
2. "Professional misconduct" is defined as follows in s 139E of the National Law:

"139E Meaning of "professional misconduct" [NSW]

"For the purposes of this Law, professional misconduct of a registered health practitioner means-

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or

(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration".

1. For conduct to amount to "professional misconduct, it must first answer the description of "unsatisfactory professional conduct". If this is found to have occurred, the unsatisfactory professional conduct must be of a sufficiently serious nature within the meaning of s 139E. Section 139B(1) of the National Law provides the following definition of "unsatisfactory professional conduct":

"139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]

(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following-

......

(b) Contravention of this Law or regulations

A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention"

.......

(l) Other improper or unethical conduct

Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession".

1. If the evidence establishes that the conduct in issue of the Respondent is "unsatisfactory professional conduct" and is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, the Tribunal may find the Respondent's conduct to be "professional misconduct".
2. Section 130 of the National Law creates obligations on the part of a registered health practitioner to give notice of certain matters, including being charged with an offence punishable by 12 months imprisonment or more. It provides that:

"130 Registered health practitioner or student to give National Board notice of certain events

(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.

(2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.

.......

(3) In this section -

relevant event, in relation to a registered health practitioner, means -

(a) the practitioner is charged with -

(i) a scheduled medicine offence; or

(ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or

(b) the practitioner is convicted of or is the subject of a finding of guilt for -

(i) a scheduled medicine offence; or

(ii) an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere; or

....."

1. There was no dispute that the Respondent was a "registered health practitioner" at the time the conduct in issue occurred. It follows that if the Respondent was charged with an offence punishable by 12 months imprisonment or more, or was convicted of an offence punishable by imprisonment, and did not discharge his obligations under s 130 to give notice, a contravention of a provision of the National Law arises, amounting to "unsatisfactory professional conduct" within the meaning of s 139B. Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession will also answer the description of "unsatisfactory professional conduct".
2. Under s 144(a) of the National Law, complaints can be made against a health practitioner arising out of a criminal finding for an offence, unsatisfactory professional conduct or professional misconduct. The provision is as follows:

"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".

(1) Whether the Respondent was charged with an offence punishable by 12 months imprisonment or more or convicted of an offence punishable by imprisonment?

(2) If so, whether the Respondent did not give the notice required under s 130 of the National Law?

(3) Whether there has been improper or unethical conduct relating to the practice or purported practice of the practitioner's profession?

(4) If so, whether the Respondent's conduct is of a sufficiently serious nature to justify suspension or cancellation of his registration?

1. It is undisputed that the Respondent had been charged with the criminal offences set out at [8] and [12] above and convicted of the criminal offences set out at [8] above.
2. The offences for which the Respondent had been charged included offences punishable with imprisonment for more than 12 months. The provisions establishing the offences and maximum penalties for each offence were as follows:

(1) s 193C(2) of the Crimes Act - imprisonment for 3 years

(2) s 7A(1) of the Firearms Act - imprisonment for 5 years

(3) s 193B(3) of the Crimes Act - imprisonment for 15 years

(4) s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) - imprisonment for life.

1. The offences for which the Respondent was convicted as set out at [8] above were all punishable by imprisonment.
2. The consequence is that we find that the Respondent was charged with offences punishable by 12 months imprisonment or more and convicted of offences punishable by imprisonment.
3. Complaint 1 has been proved.

Did the Respondent give the notice required under s 130 of the National Law?

1. Section 130(1) of the National Law imposes an obligation on registered practitioners to notify the National Board of a "relevant event" in writing within seven days of becoming aware of that event. A "relevant event" is defined to include being charged with an offence punishable by 12 months imprisonment or more and being convicted of an offence punishable by imprisonment.
2. On 8 May 2024, the Respondent having been charged, was convicted of the offences the subject of Complaint 1. The relevant offence under s 193C(2) of the Crimes Act carried a maximum penalty of imprisonment for three years. The offence under s 7A(1) of the Firearms Act carried a maximum penalty of imprisonment for five years.
3. The Respondent was charged with further offences on 8 August 2023. All of these offences were punishable by 12 months imprisonment or more.
4. The evidence was that the Respondent at no time notified the National Board with either being charged or convicted of the offences in question.
5. A subjective belief that the practitioner did not know of their reporting obligations does not excuse the practitioner from complying with those obligations (Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72, at [32]).
6. The Tribunal finds that the Respondent having been charged with offences punishable by 12 months imprisonment or more and having been convicted of offences punishable by imprisonment, failed to notify the National Board in writing within seven days of becoming aware of the relevant event. As a consequence, we find that the Respondent has breached his obligations under s 130.
7. We find Complaint 2 to have been proved.

Whether there has been improper or unethical conduct relating to the practice or purported practice of the practitioner's profession?

1. In seeking review of the suspension of the Respondent's registration, the Respondent represented Council that charges against him had been withdrawn and inquired as to how he could have his suspension reviewed. The "charge certificate" that the Respondent sent was the final two pages of a five-page charge certificate. The omitted pages listed the offences certified for prosecution. Ultimately, the Respondent was convicted and sentenced on 8 May 2024.
2. It is accepted that "deliberate falsehoods constitute a breach of the standards of conduct that would be expected of a nurse and are contrary to moral precepts" (Health Care Complaints Commission v Achurch [2019] NSWCATOD 20, at [42]).
3. We find no basis in the evidence to conclude that the oral statement made by the Respondent that no charges were pending against him or omission of the pages of the charge sheet containing information about the charges against him were the result of inadvertence or a mistake. We find that the wrong information provided by the Respondent orally and omission of pages of the charge certificate reveal an intention on the part of the Respondent to exclude information about the charges against him from the information he provided.
4. In these circumstances, we are satisfied that the provision of misleading information by the Respondent amounted to improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
5. We find Complaint 3 to have been proved.

Is the Respondent's conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration?

1. The basis of Complaint 4 is that the instances of impropriety alleged by the Applicant represent a dishonest course of conduct that can only be properly characterised as "professional misconduct". That conduct included the Respondent's failure to report the charges and convictions in issue (see [38] above) and providing misleading information concerning the charges against him and his convictions (see [42] - [43] above).
2. We have found that the Respondent failed to comply with his notification obligations under s 130 of the National Law. This amounts to a contravention by him of a provision of the National Law. As such, his conduct is "unsatisfactory professional conduct" within the meaning of s 139B(1)(b) of the National Law.
3. We have also found that the Respondent provided misleading information concerning his charges and convictions, amounting to improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. As such, this conduct is "unsatisfactory professional conduct" within the meaning of s 139B(1)(l) of the National Law.
4. If the unsatisfactory professional conduct we have found is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, it will answer the description of "professional misconduct". It will also amount to "professional misconduct" if the entire conduct makes up more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
5. The Tribunal in Health Care Complaints Commission v Bolton [2021] NSWCATOD 16 made the following observations on the obligation to notify relevant criminal charges:

"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".

1. The conduct described above of failing to comply with notification obligations under s 130 and the provision of misleading information is serious. This was conduct of the Respondent with the object of maintaining his registration. He deprived the regulator of the ability to assess risk. He also sought to conceal information that was highly relevant to the determination of whether his registration ought to stand. He did this by telling the Council that no convictions were pending and also omitting pages from the charge certificate he provided showing the charges on foot. Failure to make the required report in accordance with the National Law and the Respondent's additional steps to conceal information that went to the Respondent's fitness to practice nursing is no small matter.
2. We find for these reasons that the Respondent's conduct amounts to more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. In other words, it is "professional misconduct" within the meaning of s 139E. We also find that the failure to make a report under s 130 of the National Law and the subsequent provision of misleading information, each on its own amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

1. In circumstances where the Respondent is no longer registered, the Applicant seeks orders pursuant to s 149C(4) of the National Law, which provides as follows:

"(4) If the person is no longer registered, the Tribunal may-

(a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and

(b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and

(c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board".

1. Section 149E(4) requires the Tribunal to decide the matter based on hypothetical circumstances of the Respondent remaining registered. It must decide whether in that hypothetical situation, the Tribunal would have suspended or cancelled the Respondent's registration.
2. The power of cancellation is set out in s 149C(1). The power to cancel registration can relevantly be exercised if the "practitioner is guilty of professional misconduct" (s 149C(1)(b)) or 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" (s 149C(1)(c)).
3. The Tribunal must in determining an application for protective orders exercise its functions having regard to the objectives and guiding principles (s 4 of the National Law). Paramount among them is the protection of public health and safety (s 3A-3B of the National Law).
4. In Health Care Complaints Commission v Chahoud [2022] NSWCATOD 36, the Tribunal said, at [194]-[195]:

"In Lee Barrett JA at [20] to [21] considered the exercise of powers by Tribunals to make protective orders and concluded:

"Essential to a proper assessment of a Tribunal's discretionary judgement 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 are 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 effect 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.

The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."

195 In Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 the Tribunal concluded at [42]-[46] as follows:

"The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in health professions.

In Re Parajuli [2010] NSWMT 3 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 purpose of protective orders was described in the following terms in Health Care Complaints Commission v Do [2014] NSWCA 307, at [35]:

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

1. The Applicant submitted that there were two bases on which the Respondent, were he registered, ought to have his registration cancelled. Firstly, the circumstances of the offences for which the Respondent had been convicted rendered him unfit in the public interest to practice in the profession of nursing and secondly that he had engaged in professional misconduct.
2. We accept that the offences for which the Respondent had been convicted are serious. The maximum sentences were terms of imprisonment of three years or more. The Applicant says that the Respondent's conduct was in furtherance of the objectives of an organised group engaged in the manufacture and supply of several illicit drugs in large commercial quantities. They say that the Respondent had directly facilitated the manufacture of relevant substances on a substantial scale. We accept the Applicant's submissions and evidence.
3. The Respondent did not dispute these matters. He said that he accepted responsibility and understood the seriousness of his offences. He also expressed regret at his actions. He says that he was experiencing significant personal and financial hardship at the time he committed his offences and that he "acted out of desperation" but understood that this did not excuse his offending. The Respondent also provided various references as to his character. However, none of the witnesses attended the hearing to be cross-examined and give oral evidence.
4. The Respondent's submission was that the relevant activities which had resulted in his convictions were not related to the practice of his profession as a nurse. He distinguished between what he did as a nurse and what he did outside of his work as a nurse. The Applicant, on the other hand, submitted that in facilitating the manufacture of illicit drugs, the Respondent had demonstrated a disregard for public health that was fundamentally incompatible with the profession of nursing.
5. We do not accept that conduct outside the Respondent's work as a nurse can be separated from the matters relevant to determination of his fitness to practice as a nurse. Engaging in activities that injure public health cannot be regarded as irrelevant to a determination of whether or not a person is fit to practice as a nurse. We find a lack of insight on the part of the Respondent in imagining such a separation between what he did as a nurse and what he did outside his work as a nurse.
6. When asked whether he would repeat his conduct if future circumstances of a kind that had given rise to the conduct in issue, he did not provide a clear answer that he would not. That conduct included the crimes for which the Applicant was convicted, a failure to notify on more than one occasion and the provision of misleading information. The failure to provide a clear answer as to whether he would repeat the conduct in issue is also evidence of a lack of insight.
7. The Applicant seeks an order disqualifying the Respondent from the practice of nursing for up to two years. We agree that such an order should be made. In our opinion, the convictions of the Respondent are sufficiently serious, taking into account the matters set out at [59] above, to justify such an order. The professional misconduct on the part of the Respondent are separate grounds for making such an order.
8. The lack of insight on the part of the Respondent described above are also relevant considerations, particularly in determining the length of the period of cancellation. The Respondent may, having reflected upon his conduct during the 2 year period of cancellation, consider applying again for registration after that period has passed.
9. The Applicant sought an order that the Respondent pay its costs. We agree that such an order should be made following the event and in the absence of disentitling conduct by the Applicant.

(1) decides that if the Respondent were still registered the Tribunal would have suspended or cancelled the Respondent's registration;

(2) decides and orders that the Respondent is disqualified from being registered in the health profession for a period of 2 years from the date of this decision;

(3) requires and orders the National Board with which the Respondent was registered to record the fact that the Tribunal would have suspended or cancelled the Respondents' registration in the National Register kept by the Board;

(4) orders that the Respondent pay the Applicant's costs under clause 13 of Schedule 5D of the National Law.

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.

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.

02 March 2026 - Order 2 corrected from applicant to respondent