The Health Care Complaints Commission ("HCCC") has applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) ("the National Law") against Steven Manukuo, an Enrolled Nurse ("the practitioner").
The proceedings arise from complaints made pursuant to ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 (NSW) and s 145A of the National Law. The complaint alleges that the practitioner is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law.
The complaint relates to a breach of s 130(1) of the National Law, in that, the practitioner failed to notify the National Board, within seven days, of both having been charged on 3 June 2021 and convicted on 17 January 2022, with the offence of dishonestly obtain financial advantage or cause disadvantage by deception pursuant to s 192E(1)(b) of the Crimes Act 1900 (NSW) which is punishable by 12 months imprisonment or more ("the offence").
The Tribunal ordered that the proceedings be set down for a hearing to be conducted in one stage. That means the Tribunal is to determine whether the complaint is proven and what protective orders should be made as a consequence of the Tribunal's findings.
The hearing was listed as an in-person hearing.
The HCCC was represented by Ms A Kelly, a solicitor within the Legal Services division of the HCCC. The practitioner appeared in person.
The practitioner did not file any evidence. He admits to each and every particular of the complaint. The practitioner gave oral evidence.
The HCCC relied upon a bundle of material filed on 15 November 2023 (Ex A 107 pages) and an email from Bill Karney dated 14 December 2023 (Ex B). Proposed protective orders were also filed on the morning of the hearing.
The HCCC did not call any witnesses. The practitioner was cross-examined.
The Tribunal may exercise the disciplinary powers conferred by Subd 6, Div 6 of Part 8 of the National Law if (a) it finds the subject-matter of a complaint to have been proved, or (b) the practitioner admits to it in writing to the Tribunal: s 149 of the National Law.
The combined Stage 1 and 2 hearing and these reasons relate to the issue of whether the allegations in the complaints have been proven to the requisite standard, and whether any conduct found to have occurred constitutes unsatisfactory professional conduct. If the complaints are proven and a finding of unsatisfactory professional conduct is made against the practitioner, the Tribunal is then required to consider, and determine, what if any protective orders are appropriate.
The HCCC bears the onus of proving the complaints against the practitioner, on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 of Sch 5D of the National Law). The approach to be adopted by the Tribunal in making findings of fact in respect of matters in dispute was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52]-[53] in the following terms:
52. In medical 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 (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]).
53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations.
[2]
Background
The practitioner was first registered as an Enrolled Nurse on 21 April 2011 and has over 14 years' hospital and practice nurse experience. He was employed on a part-time basis as an Enrolled Nurse at the Prince of Wales Hospital in the surgical ward at the time of the offence. The police facts to which the practitioner pleaded guilty, include the following. The practitioner had been friends with a 75 year old man ("the victim") for a number of years. The circumstances leading to the charge concerned a period of time when the victim was hospitalised and released to an aged care facility with very little ability to walk, or, care for himself. The practitioner offered to be the victims informal carer and to carry out duties such as purchasing groceries for him. The victim told the practitioner he could use his debit card to make essential purchases as his carer. The practitioner took possession of the victim's card and pin number. He agreed to only use the victims card for authorised purchases. The practitioner made admissions to the police to misappropriating up to $7,000 from the victim (which was amended to $11,000 at the Local Court hearing). He paid $200 back to the victim in September 2019. At the time of being charged, no further reparation has been made to the victim (now deceased) or to his estate.
On 17 January 2022, the practitioner was convicted of the offence. He pleaded guilty to misappropriating $11,000 belonging to the victim. The practitioner was sentenced to a Community Correction Order for a period of 2 years commencing on 17 January 2022 and expiring on 16 January 2024. He was required to, and did, perform 200 hours of community service work.
Relevantly, and a matter which is not in contest, is that the practitioner failed to notify the National Board of both the charge and the conviction, which he was required to do pursuant to s 130(1) of the National Law.
On 12 April 2022, the practitioner lodged an application for renewal as an enrolled nurse with the New South Wales Council of the Nursing and Midwifery Board of Australia ("the Board"). In his application he made an adverse disclosure in relation to his criminal history.
On 1 September 2022, the Board made a voluntary complaint to the Australian Health Practitioner Regulation Agency ("AHPRA") pursuant to ss 144 and 154 of the National Law.
On 12 May 2023, the HCCC investigated the complaint and referred it to the Director of Proceedings which led to the current proceeding filed in this Tribunal.
[3]
The Complaints
There are two complaints.
Complaint One is that pursuant to s 144(a) of the National Law, the practitioner has been convicted of a criminal offence in NSW. The practitioner was convicted of dishonestly making unauthorised purchases on Person A's debit card in the sum of $11,000 between 1 January 2019 and 17 September 2019 under s 192E(1)(b) of the Crimes Act 1900.
Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct pursuant to s 139(B)(1)(b) of the National Law, in that the practitioner has contravened s 130(1) of the National Law. That is because the practitioner failed to notify the national board, within seven days, that he had been charged on 3 June 2021 before the Local Court at Sydney Downing Centre with the offence of dishonestly obtain financial advantage or cause disadvantage by deception pursuant to s 192E(1)(b) of the Crimes Act 1900 which is punishable by 12 months imprisonment or more.
The practitioner also failed to notify the national board, within seven days, that he had been convicted on 17 January 2022 at the Local Court at Sydney Downing Centre with the offence of dishonestly obtain financial advantage or cause disadvantage by deception pursuant to s 192E(1)(b) of the Crimes Act 1900 which is punishable by 12 months imprisonment or more.
The HCCC seeks the following orders:
1. The practitioner has been convicted of a criminal offence pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW), namely the offence of Dishonestly obtain financial advantage or cause disadvantage by deception pursuant to s 192E(1)(b) Crimes Act 1900, is proved.
2. The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW), is proved.
3. Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), the practitioner is reprimanded.
4. Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW), the practitioner following Conditions are to be imposed on the practitioner's registration:
1. The practitioner participate in a Gambling Treatment Program approved by the Nursing and Midwifery Council.
1. The appropriate review body for the purpose of a review under sections 163-163C of the Health Practitioner Regulation National Law (NSW) is the Nursing and Midwifery Council of NSW when the practitioner has a principal place of practise in NSW.
2. Sections 125 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply while the practitioner's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia.
3. The practitioner pay the HCCC's costs.
[4]
Evidence
The following summary is based on the unchallenged statements and bundle of documents relied upon by the HCCC.
[5]
Complaint One
The certificate of conviction issued by the local court of NSW dated 22 December 2022 records that on 17 January 2022 at the Local Court Downing Centre Sydney, Magistrate M Greenwood made the following orders against the practitioner in relation to the charge of dishonestly obtain financial advantage or cause disadvantage by deception pursuant to s 192E(1)(b) of the Crimes Act 1900. The practitioner was convicted and sentenced to a Community Correction order for a period of two years to commence on 17 January 2022 and expiring on 16 January 2024 with the condition, amongst others, to perform 200 hours of community service work.
The practitioner admits to the complaint.
We find that the subject conviction is a criminal offence within the meaning of s 144(a) of the National Law. We also find that the practitioner was convicted of that offence on 17 January 2022.
Complaint One is proved.
[6]
Complaint Two
The practitioner admits that he had been charged on 3 June 2021 before the local court at Sydney Downing centre with the offence. The maximum penalty for the offence is imprisonment for 10 years. We are satisfied that the offence is punishable by 12 months imprisonment or more.
The practitioner admits that he did not notify the National Board within 7 days of having been charged with the offence on 3 June 2021. He also admits that he did not disclose to the National Board within 7 days him being convicted of the offence on 17 January 2022. We find the particulars of Complaint Two proved.
For the reasons set out below, we also find the failure of the practitioner to comply with s 130(1) of the National Law amounts to unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law. Complaint Two is proven.
[7]
HCCC submissions
In circumstances where the Tribunal makes a positive finding of professional misconduct (as is sought by the HCCC), it is submitted the Tribunal may consider reprimanding the practitioner and impose a condition on his registration to the effect that he participate in a Gambling Treatment Program. This is because, as set out below, the practitioner used the funds he misappropriated from the victim for gambling (namely poker machines) and to pay off debts. The HCCC contends that there is insufficient evidence that the practitioner continued his treatment for a gambling addiction. While acknowledging that he has sought voluntary treatment, the practitioner's participation has been declining. In considering these matters, the paramount consideration of the Tribunal must be the protection of the health and safety of the public.
The HCCC submits that given the gravamen of the allegations against the practitioner; the need to protect the public through general deterrence (of other practitioners); the need to protect the public by reinforcing high professional standards and denouncing transgressions; and the maintenance of public confidence in the profession, there is need for action by way of orders under the National Law. To ensure a means of censuring the practitioner's conduct and sending a strong message, both specifically to the practitioner but also to other practitioners more broadly, the orders at [23] are sought.
[8]
The practitioner's submissions
The practitioner gave evidence "I overlooked the seven days' notice of reporting charges and offences." He recognised that this was an error but disclosed the criminal convictions at the time of applying for his re-registration.
He said the victim was a good friend and what he did was "stupid". He was driven by his gambling addiction and expressed remorse.
The practitioner's evidence in relation to his treatment included him consulting a counsellor over the first two years from 2019 at St Vincent's hospital twice a month. He said that "over the last twelve months I have gone every now again." The practitioner has lapsed three times in the last twelve months. When he does relapse he consults his counsellor to discuss strategies in managing his behaviour and the desire to play poker machines.
The practitioner said "I know what I did what was wrong. I had guilt the day I was sentenced. I ask for leniency from the Tribunal."
In cross-examination, the practitioner accepted that the community would be disappointed he stole from a vulnerable person. He agreed that he started to misappropriate money from the first time he was given the victims card. He believed he had repaid the victim's family about $8,000, but conceded he did not have any bank records with him to put before the Tribunal to establish those payments. Notwithstanding, he agreed that sometime between his sentence and 13 October 2022, he stopped paying back the money.
The practitioner was asked questions about how many times he attended the gambling treatment program. In April 2023, the records before the Tribunal record that he attended five sessions over a twelve month period. The practitioner disagreed that he only attended five sessions but accepted that the documents do not accord with his recollection. We prefer the documentary evidence and find that the practitioner is likely to have only attended five sessions during that period.
The practitioner agreed that he is sometimes influenced to play poker machines when he attends pubs and clubs with family members. He said he will continue to seek treatment by way of counselling.
We find the practitioner be an honest and reliable witness, except we did not accept his evidence of attending more than five counselling sessions from April 2023 for the reasons set out above.
[9]
Discussion and findings
In considering the particulars of Complaint One, the Tribunal notes that under s 149 of the National Law, the important aspect of the complaint is its "subject-matter", which "provides the jurisdictional gateway for the Tribunal to exercise its disciplinary powers": Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315, at [34]. Wilson J held at [36]-[37]:
36. It is clear that the subject matter of the complaint may or will be broader than individual particulars of it, and include those matters of fact advanced in support of it. That must be so having regard to the overall aims and objectives of the National Law, and the wide procedural powers given to the Tribunal. In particular, the Tribunal's power to inform itself in any way it sees fit, and to determine any complaint it considers should be determined, regardless of the complaint advanced, is inconsistent with a narrow reading of the Tribunal's power to range beyond the particulars of a complaint.
37. The role of the Tribunal is to conduct an inquiry into a complaint made against a health practitioner, informed as it thinks necessary, and determining any complaint it considers arises on the material before it. There can be no basis in such circumstances to consider the Tribunal bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced.
For the reasons in [25]-[28], Particular 1 of Complaint One is established.
For the reasons in [29]-[31], Particular 1 and 2 of Complaint Two are established.
[10]
Whether unsatisfactory professional conduct Complaint Two
The HCCC alleges that the conduct as particularised in Complaint Two constitutes unsatisfactory professional conduct under s 139B(1)(b) of the National Law:
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) 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..
In Health Care Complaints Commission v Shipley [2020] NSWCATOD 128 ("Shipley") the Tribunal described the evaluative task required by s 139B(1)(b) in the following terms:
66. Complaint Three relies on s139B(1)(b) of the National Law, which defines "unsatisfactory professional conduct" to include a contravention by the practitioner (whether by act or omission) of a provision of the National Law. The practitioner breached s 130(1) and s 109(1)(b) of the National Law. The practitioner's evidence to the Tribunal was that she thought the Board already knew about the charges, and that when she was completing her renewal application in May 2018 she thought she would notify if she were convicted. As discussed in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [27], the contravention by the practitioner of a provision of the National Law having been established as a matter of fact, that contravention is designated as unsatisfactory professional conduct, and the Tribunal has no discretion.
The Tribunal has found particulars 1 and 2 in Complaint Two are established. The practitioner has contravened a provision of the National Law, and that contravention is designated as unsatisfactory professional conduct, and the Tribunal has no discretion.
The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law as alleged in Complaint Two.
[11]
Consideration
The practitioner is guilty of unsatisfactory professional conduct. The Tribunal's powers to make orders are specified in s 149A of the National Law.
The HCCC submits that the appropriate protective orders are at out at [23].
The HCCC submits that the practitioner's actions in taking money from a vulnerable man and failing to notify the Board of the charges, are all serious breaches of his obligations as a health practitioner. The HCCC relies on the facts tendered in the Local Court proceedings which the practitioner entered a guilty plea. It is without doubt the practitioner's actions as an enrolled nurse who was acting as a friend and carer, had not only broken the safety and trust of a vulnerable man, but had caused significant reputational damage to the nursing profession as a whole. The conduct was not isolated and occurred over a nine month period.
The HCCC submits that the practitioner's admissions that he was feeding a gambling addiction, whilst they provide an explanation for his conduct, makes his offending more serious because it was committed for financial gain. His behaviour was opportunistic and designed as a ruse to obtain money to feed his addiction and also given he disclosed in his sentencing assessment report he had large debts to pay.
The HCCC submits that the practitioner has not committed to ongoing treatment and the Tribunal would not be satisfied that he will continue to seek treatment for gambling without a condition to that effect.
The practitioner accepts that he should be reprimanded and that his registration be subject to the condition proposed by the HCCC. He is remorseful for his actions and said he is working hard on his addiction.
The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3 of the National Law. The most directly relevant of those principles is that in s 3(2)(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. The protection of the health and safety of the public must be the paramount consideration: s 3A.
In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said:
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.
In Health Care Complaints Commission v Gupta [2022] NSWCATOD 141 at [171]-[172] the Tribunal restated the relevant principles in determining a protective order:
171 As the Tribunal recently stated in Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATOD 79 at [58], paraphrasing Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 at [101], the relevant principles in determining a protective order have been stated on many occasions and include the following:
(1) the protection of public safety and health is paramount; National Law, s 3A;
(2) public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a);
(3) the Tribunal must consider the maintenance preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91];
(4) protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91];
(5) the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340;
(6) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82];
(7) the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114];
(8) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
172 In addition, no order should be made which has "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose": Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]); Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to).
Having considered all the submissions and the applicable principles, we consider that there should be an order reprimanding the practitioner and imposing a condition on his registration.
We have come to that conclusion given the objective seriousness of the conduct, because of the necessity to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated, and to maintain public confidence in the profession.
The practitioner's conduct was serious and it involved a continued breach of trust in his relationship with a vulnerable man. His conduct was not isolated, it was opportunistic and commenced as soon as he had access to the victims card. The practitioner was in a position of trust and he breached that trust. He placed his own needs before the needs of the victim.
We have considered the time in which the offending occurred, being in 2019. We have also considered that the practitioner said he has made some reparation, but he has not filed evidence in support of this.
The practitioner failed to notify the regulatory authorities when he was charged, and when he was convicted of the offence which is in contravention of the National Law. Ignorance of his obligations is no defence.
While the practitioner has stated that he is ashamed of his actions, and that his conduct will not be repeated, the Tribunal has some concern that without a mandatory condition to seek further treatment, there is a risk the practitioner may not continue with gambling addiction treatment.
The Tribunal takes into consideration the practitioner's reflection on the effect of his conduct on the victim, his family and the profession as a whole. The practitioner has no recorded prior complaints. He has no other criminal record, apart from the subject offence.
The orders made by the Tribunal are necessary to ensure the encouragement of high standards expected of the nursing profession and compliance with the regulatory regime.
Balancing all the matters put to us by the HCCC and the practitioner, we consider that it is appropriate to reprimand the practitioner and impose a condition on his registration for treatment.
[12]
Costs
The HCCC seeks costs. The practitioner does not oppose a costs order, but notes he is financially limited in his ability to meet any costs awarded.
Clause 13 of Sch 5D of the National Law enables the Tribunal to make an order for payment of costs. The relevant principles applicable to the costs of the proceedings were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, and are that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. There is no disentitling conduct on the part of the HCCC in its conduct of the proceedings.
It is appropriate to order that the practitioner pay the costs of the HCCC.
[13]
Orders
The Tribunal orders:
1. Complaint One, that the practitioner has been convicted of a criminal offence pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW), namely the offence of Dishonestly obtain financial advantage or cause disadvantage by deception pursuant to s 192E(1)(b) Crimes Act 1900, is proved.
2. Complaint Two, that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW), is proved.
3. Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), the practitioner is reprimanded.
4. Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW), the following Conditions are to be imposed on the practitioner's registration:
1. The practitioner participate in a Gambling Treatment Program approved by the Nursing and Midwifery Council.
1. The appropriate review body for the purpose of a review under sections 163-163C of the Health Practitioner Regulation National Law (NSW) is the Nursing and Midwifery Council of NSW when the practitioner has a principal place of practise in NSW.
2. Sections 125 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply while the practitioner's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia.
3. The practitioner is to pay the costs of the HCCC.
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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
[14]
Amendments
27 May 2024 - Decision - Order 6 corrected - 'Medical Council of Australia' replaced with 'Nursing and Midwifery Board of Australia'.
[15]
Paragraph 23 - Order 6 corrected - 'Medical Council of Australia' replaced with 'Nursing and Midwifery Board of Australia'.
[16]
Paragraph 70 - Order 6 corrected - 'Medical Council of Australia' replaced with 'Nursing and Midwifery Board of Australia'.
[17]
General - Grammatical errors
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Decision last updated: 27 May 2024