Health Care Complaints Commission v Lidman

NCAT Occupational|2020-04-22

Background

The practitioner has been a registered nurse since 2003. This matter has its genesis in Mr Lidman's serious assault on his former partner in 2015. The complaints arise as a result of a criminal conviction for the 2015 assault, and failure to make timely and appropriate self-notifications to the National Board concerning the criminal proceedings. When Mr Lidman and his then partner separated in 2017 an Apprehended Violence Order (AVO) was issued for her protection. A breach of that order led to the practitioner receiving a second criminal conviction, and his subsequent failures to self-notify to the National Board concerning those proceedings.
The practitioner pled guilty to both the 2015 and 2017 criminal offences, and received a good behaviour bond on each occasion.

The Hearing and Issues

Complaint 1 is that the practitioner has been the subject of two criminal convictions within the meaning of s 144(a) of the National Law.
Complaint 2 is that the practitioner is guilty of unsatisfactory professional conduct within s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW) (the National Law) by reason of contravention of s 130(1) of the National Law on the duty of self-notification of criminal charges, and criminal convictions, and s 109(1)(b) of a change to criminal history when submitting a renewal of registration.

Unfit in the public interest to practise

The National Law provides under s 149C(1) that the Tribunal may suspend or cancel a practitioner's registration if: (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession;
Although the proceedings were brought in the Tribunal rather than the Professional Standards Committee (PSC) on the basis that the criminal conviction enlivened the power to suspend or cancel registration, in its written submissions, filed on the afternoon of the scheduled hearing date, the HCCC did not ultimately seek an order of cancellation.
It is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role, however where there is no nexus a more careful inquiry into the public interest factors may be required. There may be instances in which 'public interest' is taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences involving violence, sexual assault or the sexual exploitation of children, for example, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within that profession.
We find that the criminal act of assault against a partner in a domestic setting may be such that a practitioner is unfit in the public interest to practise as a nurse. The protection of the health and safety of the public is the paramount consideration under the NSW version of the National Law, and all of our functions under the Law must be guided by this consideration. Family and domestic violence remains one of the most serious and sustained threats to the health and safety of the Australian public, in particular to women and children.
The practitioner's conduct in assaulting his then partner is conduct that is incompatible with respect for the health, welfare and safety of the public. The assault in this matter was a serious one, and took place in the presence of the victim's daughter.
After careful consideration of the circumstances of the offences, on the limited evidence available, we do not find on balance that the practitioner is unfit in the public interest to practise. The 2015 assault appears to be an isolated incident, which occurred while the practitioner was under the influence of drugs and alcohol. While we have some concern that there is little expression of remorse or genuine responsibility for this assault in the practitioner's very brief written 'reflection', we have no evidence of any later acts of violence or domestic abuse to suggest any repetition or pattern of violent conduct.
The 2017 conviction for breach of the AVO resulted from an incident where the practitioner asked a friend to send a message to his former partner, warning her that a third person was of bad character. This was a breach of the order, and it was experienced by the victim as controlling conduct. Without detracting from that, we note that the conduct was not threatening, harassing or intimidating and that it would likely be characterised at the lower end of seriousness in the range of AVO breaches. Importantly, it was not a recurrence or escalation of the 2015 criminal conduct. Five years have now passed without any apparent recurrence of the violent conduct.
The practitioner states that he has undertaken counselling and addressed mental health and substance abuse issues. This claim was supported by a statement from a treating psychologist, and was unchallenged by the HCCC. The practitioner also submitted a professional reference from a colleague of five years' standing which spoke highly of his professionalism and character.
As such, although we denounce the practitioner's very serious past criminal conduct in assaulting his partner as incompatible with the values and conduct expected of health practitioners by the public, we do not find that he is unfit in the public interest to practise as a nurse in the future.

Do the notification and disclosure failures amount to unsatisfactory professional conduct?

There were five failures in total, two concerning the 2015 proceedings and three concerning the 2017 proceedings. The National Law obliges registered practitioners to self-notify within 7 days of a criminal charge, and also to notify of a criminal conviction within such period. The practitioner did in fact self-notify concerning the 2015 charge, but he did so just over two weeks later than the required time period. He did not understand at that time that a further notification was required once a conviction was recorded.
While these are breaches of the National Law and therefore fall within the s 139B(1)(b) statutory definition of unsatisfactory professional conduct, we find that, taken alone, they do not rise to a level of such seriousness as to require censure. We find that there was no dishonesty, or intention to conceal the 2015 criminal proceedings, as evidenced by that fact that the practitioner notified the National Board of the charge and did subsequently disclose the conviction as a change to his criminal history when he next renewed his registration.
Three further particulars concern the 2017 proceedings, in that the practitioner did not self-notify of the 2017 charge or conviction, nor later disclose the change to his criminal history in his renewal application. The respondent submitted that these were oversights in the context of a period of personal stress, including the practitioner's relationship breakdown. Notwithstanding this context, we find that these later three breaches are far more serious in that the practitioner was clearly aware of his professional obligations, and failed to fulfil them.
Duties of candour to professional regulators are extremely important to enable our health system to function and to protect the health and safety of the public.

Appropriate Protective Orders

The HCCC sought a reprimand, and did not seek an order for any form of conditions. In the event that the Tribunal found the unsatisfactory professional conduct proved the respondent submitted that a reprimand was the appropriate order.
We have some concerns at the tenor of the respondent's statements and claims, which tend towards minimising and excusing his conduct as the product of circumstances rather than as his own responsibility. However on the basis that on the limited evidence available it appears that the conduct was isolated, occurred some time ago, and has not been repeated, there is no justification for any restriction of practice.
Given our findings on the serious nature of the criminal conviction for assault, and the seriousness of the practitioner's failure to self-notify and disclose his second criminal conviction in 2017 for breach of the AVO, it is appropriate that the practitioner be reprimanded and this reprimand be recorded on the public register.

Costs

The respondent's position was that this matter ought to have been brought in the PSC, a jurisdiction which does not result in costs. The HCCC sought its costs on the basis that it had succeeded in its case.
While the HCCC rightly pointed out that the criminal convictions gave rise to the issue of cancellation of registration under s 149C(1)(c) of the National Law, thus requiring referral to NCAT, it did not ultimately pursue a cancellation order. The HCCC submitted that even in matters where professional misconduct is not alleged and an order of cancellation not sought in the Tribunal the successful applicant may still be awarded costs, citing the recent case of Health Care Complaints Commission v Coutinho [2020] NSWCATOD 33 as comparable.
In circumstances in which the complaint is entirely conceded and the order sought is one which could have been achieved through less formal proceedings, there may be a finding that some reduction in the costs is merited. In the circumstances of this case, including the very late indication from the HCCC that they did not seek cancellation, we find that some reduction is justified. The HCCC is entitled to 80% of its costs.

Orders 1. The practitioner is reprimanded pursuant to s 149A(1)(a) of the National Law. 2. The Respondent to pay 80% of the Applicant's costs of these proceedings as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 3. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibition of disclosure or publication of the names of Persons A and B listed in the schedule to the complaint.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2020

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