Health Care Complaints Commission v Menz

Issues for determination

1. The key factual issues we must decide are: 1. Whether, as alleged, Mr Menz was convicted of an offence under s 61M(1) of the Crimes Act 1900 (NSW) (the subject conviction), as particularised in Complaint 1. 2. Whether the conduct particularised in Complaint 2, Particular 1, said to give rise to the subject conviction, occurred. 3. Whether Mr Menz misappropriated one tablet of Clonazepam on 28 December 2009. 4. Whether, without authorisation, Mr Menz supplied Clonazepam to Person B. 5. Whether Mr Menz failed to comply with a series of notices issued by the Nursing and Midwifery Board of Australia under s 61(1) of the Health Practitioners Act 2004 (NT) (the HP Act), requiring him to attend before the Board to provide an explanation about the Clonazepam allegations. 6. Whether in May 2011 Mr Menz made false declarations in form submitted to renew his registration as a nurse. 7. Whether on the basis of some or all the matters set out in (2), (3), (4), (5) and (6), Mr Menz is not a suitable person to hold registration as a registered nurse.

The conviction: Complaint 1

1. Complaint 1 alleges: On 23 October 2015, the practitioner was convicted of an offence under section 61M(1) of the Crimes Act 1900 (NSW) that on or about 20 January 2012 at Macksville in the State of New South Wales, the practitioner did assault Person A, a person then under the age of 16 years, being a 14 year old, and at the time of such assault did commit an act of indecency on him.
2. The Commission tendered in these proceedings, a certificate given under s 178 of the Evidence Act 1995 (NSW). Signed by the sentencing judge, the certificate records the fact of Mr Menz's conviction for an offence under s 61M(1) of the Crimes Act. Mr Menz has at all times asserted his innocence. However, the certificate is evidence of the fact of the conviction. It is not open to Mr Menz to challenge the fact of his conviction.
3. Complaint 1 is found proven.

The facts of the conviction: Particular 1 of Complaint 2

1. Particular 1 of Complaint 2 reads: On 23 October 2015, the practitioner was convicted of an offence under section 61M(1) of the Crimes Act 1900 (NSW) arising out of the following underlying conduct: (a) On 20 January 2012 the practitioner attended a camping trip at the […] with Person A, Person A's friend, mother and sister. (b) At that time, Person A was 14 years old. (c) The campsite was relatively close to a river and at various times the participant's swam in the river, including 'skinny dipping'. (d) Alcohol was consumed by the practitioner as well as by Person A, Person A's friend and Person A's mother. (e) The practitioner had not met Person A before the camping trip but they associated during the course of that evening and the following day. (f) At the time leading up to the commission of the offence, the practitioner suggested to Person A that they go for another swim and the victim agreed. (g) Person A swam over to the other side of the river and the practitioner followed. Both were naked at that time. (h) At that time, the practitioner grabbed Person A's testicles at which point Person A jumped back.
2. In addition to the offence of aggravated indecent assault (s 61M(1) of the Crimes Act), for which Mr Menz was convicted, Mr Menz was charged with three counts of aggravated sexual assault (s 61J(1) of the Crimes Act). In November 2014, following a trial in the District Court of NSW, the jury were discharged after being unable to agree on a verdict.
3. In a second trial before the District Court, which commenced in October 2015, the jury returned a verdict of guilty in relation to the single charge of aggravated indecent assault and a verdict of not guilty in relation to the three charges of aggravated sexual assault. Mr Menz was sentenced by the District Court to a term of two-years' imprisonment with a non-parole period of 12 months.
4. Mr Menz has at all times claimed that he was innocent of the offence of aggravated indecent assault. In evidence given in the first trial, the only particular listed in Particular 1 of Complaint 2 challenged by Mr Menz was Particular 1(h) - that he grabbed Person A by the testicles.
5. In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313, Branson J stated at [43] that while proof of a conviction is highly probative of the factual matters upon which a conviction is based there was "no absolute rule that the tribunal may not consider material which challenges the grounds on which a prior conviction was based". Her Honour stated that a conviction is strong prima facie evidence that the facts found by the court were found correctly. This places a "heavy onus", as Her Honour put it at [43], on a party seeking to persuade the Tribunal to accept facts other than those upon which the convicting court relied. Her Honour observed at [43] that this heavy onus: [W]ill, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
6. Sub-particular 1(h) of Complaint 2 was one of the facts contained in the Police Facts sheet tendered by the Crown in the proceedings in the District Court. A jury found Mr Menz guilty after a contested hearing where he was legally represented. In these proceedings, Mr Menz provided no new evidence to support his claim that he was wrongly convicted. In these circumstances, there is no basis to conclude that the heavy onus referred to by Branson J has been discharged.
7. We are satisfied that each of the facts listed in Particular 1 of Complaint 2 is proven.

Alleged misappropriation and supply of Clonazepam: particulars 2 and 3 of Complaint 2

1. The Commission alleges that in December 2009, Mr Menz misappropriated one 0.5mg tablet of Clonazepam while employed as a registered nurse (Complaint 2, Particular 2) and, without authorisation, supplied that tablet to Person B (Complaint 2, Particular 3).
2. In these proceedings we made orders prohibiting the disclosure and/or publication of the name of Person B. In December 2009, Person B and Mr Menz were members of a couple and co-workers in a health service operating in a remote community in the Northern Territory. Given the small size of that community, to reduce the risk of inadvertently disclosing Person B's identity, we decided not to name the organisation where Mr Menz was employed or the employees who made reports to the NT Board, in these reasons for decision. We will refer to Mr Menz's employer as "the Health Service".
3. On 11 January 2010, a colleague of Mr Menz notified the Nursing and Midwifery Board of the Northern Territory (the NT Board) that Mr Menz told her that he gave Clonazepam to Person B. The employee wrote that on 28 December 2009, she was working with Person B who appeared to be "weaving and drowsy" and "out of it". The employee alleged that the following day when she asked Mr Menz whether Person B had "taken something", he replied, "actually I gave her some Clonazepam to shut her up". The employee claimed that Mr Menz had obtained the Clonazepam from medication returned to the Health Service by a patient. . The employee stated that she felt compromised by this disclosure and felt that Mr Menz and Person B had become "a liability" to the Health Service.
4. Following receipt of the notification, the NT Board wrote to Mr Menz and informed him of the Clonazepam allegation and invited him to show cause why a condition should not be imposed on his registration that he "not administer Schedule 4 or Schedule 8 medication without direct supervision of a registered nurse".
5. In an email sent to the NT Board in response, Mr Menz wrote that he had "never misappropriated an S4 or S8 medication - ever" and "never administered medication without a doctor's order". On 19 April 2010, after considering that response, the NT Board imposed the foreshadowed condition on Mr Menz's registration.
6. Pursuant to ss 60(1) and 70 of the HP Act, the NT Board appointed an inspector and directed that they conduct a preliminary investigation into the Clonazepam allegations. In a statement dated 21 September 2010, provided at the request of the Inspector, the CEO of the Health Service wrote that at a meeting with Mr Menz on 29 December 2009, Mr Menz volunteered that he gave Person B a single dose of Clonazepam: [Person B] was getting so distraught and he did not know any other way to assist her, he said as it was late in the night, he did want to wake the [resident doctor] and gave her the medication without letting anyone know.
7. The CEO wrote that she decided to take no further action as she considered it a one-off case of bad judgement and, in any event, Mr Menz and Person B left the employ of the Health Service shortly after the incident. She wrote that a count of Clonazepam tablets conducted shortly after Mr Menz and Person B was 24 tablets out.
8. In a report of the preliminary investigation dated 11 November 2010, the Inspector recorded that: 1. On 22 July 2010 in the course of a telephone interview, Person B denied taking Clonazepam: "I am an enrolled nurse and had no access to the drug cupboard". 2. On 5 August 2010, in a telephone interview, Mr Menz denied administering "any medication" to Person B. During the two (unspecified) periods he was on call, he and two or three other registered nurses at various times had access to the keys of the drug cupboard.
9. In her report, the Inspector recorded her finding that it was more likely than not that Mr Menz gave Person B a single dose of Clonazepam on 28 December 2010.
10. In November 2010, the Nursing and Midwifery Board of Australia (the Board) wrote to Mr Menz and enclosed a copy of the report of the preliminary investigation and invited him to respond. On five occasions between June 2010 and March 2012, the Board issued Mr Menz with notices under s 61(1) of the HP Act directing that he appear before it to provide an explanation about the Clonazepam allegations. Mr Menz neither responded to the Board nor appeared before the Board. (The NT Nursing Midwifery Board ceased to exist in June 2010 and its functions were transferred to the Board with the introduction of the scheme of national health practitioner regulation introduced by the Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT)).
11. On 13 August 2012, the Board found that Mr Menz had: 1. Misappropriated Clonazepam from the returned medication store [of the Health Service]. 2. Supplied Clonazepam to Person B on 28 December 2009 without authorisation.
12. In addition, the Board decided to impose the following conditions on Mr Menz's registration under s 61(7)(c) of the HP Act: 1. That Mr Menz must not administer or be involved in the administration of benzodiazepine, analgesia 9, with the exception of paracetamol and anti-inflammatories, psychoactive drugs or any medication listed in Schedule 8 of the current Poisons Standard. 2. That Mr Menz must provide evidence to APHRA that notice of condition 1 has been provided to his current employer.
13. Following receipt of advice from the Australian Health Practitioner Regulation Agency (AHPRA) of the decision to impose conditions on Mr Menz's registration, the Pharmaceutical Services unit of NSW Health proceeded to conduct its own investigation into the Clonazepam allegations and various other matters relating to Mr Menz. A transcript of an interview conducted by an officer of Pharmaceutical Services conducted in February 2013 recorded Mr Menz saying that:

• Person B told him she had taken Clonazepam because she was upset about her father's death and death threats made to her.
• He was adamant that he did not take Clonazepam from the Health Service or administer it to Person B.
• At the Health Service the control of drugs was "poor" and returned drugs were "not locked up". The medicine room in the Health Service was "accessible to all".
• The members of staff who made the allegation that he had administered Clonazepam to Person B were "in a relationship". In addition, they were angry with him because he and Person B had decided to resign in circumstances where the Health Service was short staffed.

1. Despite his denials, Mr Menz agreed to the Secretary's request that orders be made under the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons and Therapeutic Goods Regulation 2008 (NSW), respectively prohibiting him from having possession of, or supplying, any prescribed restricted substance or drugs of addiction.

Consideration

1. The only issue in dispute with respect to Particulars 2 and 3 of Complaint 2 is whether Mr Menz misappropriated and supplied to Person B, one 0.5mg tablet of Clonazepam. Mr Menz claimed, and the weight of evidence supports, that on 28 December 2009 while employed at the Health Service, Person B took Clonazepam. There is no evidence to suggest Person B had been prescribed Clonazepam.
2. Mr Menz has repeatedly denied either misappropriating or supplying Clonazepam to Person B: in an email to the NT Board (April 2010); in a telephone interview with the Inspector (August 2010), and in an interview with Pharmaceutical Services (February 2013).
3. A difficulty in determining whether these particulars are established is that we have not had the opportunity to test the allegations made by the employees or Mr Menz's denial of those allegation. The objective facts - that Person B took Clonazepam on 28 December 2009, that she was distressed at the time and that Mr Menz had easy access to that drug - are consistent with but fall short of establishing that Mr Menz misappropriated and supplied Clonazepam to Person B.
4. The initiating report made to the NT Board was made two weeks after the alleged misappropriation and supply took place. On its face, the allegations appear plausible. It is not far-fetched that an employee would be concerned about the reputational damage to the Health Service caused by a colleague appeared to be drug-affected while on duty. The account given by the CEO of her conversation with Mr Menz, and her decision to take no further action because as she saw it was an error of judgement, also seems plausible. It was not until three years after the allegations were made that Mr Menz suggested that the respective claims made by the employee and the CEO were motivated by their annoyance at being left short staffed following the departure of Person B and Mr Menz.
5. On the balance of probabilities, we are satisfied that Particulars 2 and 3 of Complaint 2 are established.

Failure to comply with direction to attend before the Board: Particular 4 of Complaint 2

1. The Commission alleges that between 19 November 2010 and 12 March 2012, Mr Menz failed to comply with notifications under the now repealed s 61(1) of the HP Act requiring him to attend before the Board to provide an explanation about the Clonazepam allegations.
2. The Board wrote to Mr Menz in November 2010 and directed that he attend a meeting of the Board on 20 December 2010 to respond to the Clonazepam allegations. He did not attend. On 21 December 2010, the Board again wrote to Mr Menz requiring him to attend a further meeting on 25 Februray 2011. That meeting was re-scheduled to 25 March 2011 because of a cyclone. The Board notified Mr Menz of the rescheduled meeting and again he neither attended nor contacted the Board.
3. Each of the notices referred to above were sent to Mr Menz at an address in regional NSW. A record of a search undertaken in February 2011 revealed that that address was recorded as being Mr Menz's address on the electoral roll maintained by the Australian Electoral Office.. Mr Menz has never denied receiving notices of the meetings.

Consideration

1. Particular 4 reads: Between 19 November 2010 and 12 March 2012 the practitioner failed to comply with notifications issued pursuant to section 61(1) of the Health Practitioners Act 2004 (NT), requiring him to attend before the Northern Territory Board of the Nursing and Midwifery Board of Australia to provide a further explanation of the matters alleged in particulars 2 and 3 above.
2. Mr Menz non-attendance before the Board on 20 December 2010 and 25 March 2011, of itself is insufficient to establish this particular. The phrase "failed to comply with notifications" denotes that Mr Menz was notified of the requirement to attend before the Board.
3. There is no evidence to suggest that the notices were not sent to the address supplied by Mr Menz or that he did not receive notice of the requirement to attend meetings of the Board. We are satisfied that this element of the particular is established.
4. Particular 4 of Complaint 2 is proven.

Making false declarations in renewal forms for registration: Particular 5 of Complaint 2

1. Particular 5, Complaint 2 alleges that Mr Menz knowingly made false allegations in a registration form submitted on-line to the Board in May 2011. In the form Mr Menz answered "no" to the following questions: Has your right to practise at any facility at which health services are provided been withdrawn or restricted during the preceding period of registration, because of your conduct, professional performance or health? Have you had a complaint made about you to a registration authority or another entity having functions relating to professional services provided by health practitioners or the regulation of health?
2. In May 2011, Mr Menz was aware that a complaint had made about him to the NT Board. He had responded to that complaint in writing and had been interviewed about it by the Inspector appointed by the NT Board.
3. With respect to the first question, as noted above, on 19 April 2010 the NT Board imposed an interim condition on Mr Menz's registration. The NT Board sent Mr Menz a copy of that decision and furthermore it was discussed during interview with the Inspector in August 2010.
4. Given this history, the inescapable conclusion is that when Mr Menz completed the registration form he knowingly gave false answers to each of the questions listed above.
5. Particular 5 of Complaint 2 is established.

Is Mr Menz not a suitable person to hold registration as a nurse?

1. Complaint 2 alleges that Mr Menz is not a "suitable person to hold registration" as a nurse on the basis of each of the particulars listed in Complaint 2.
2. Section 114 of the Health Practitioner Regulation National Law (NSW) (the National Law) states: The following complaints may be made about a registered health practitioner: (a) 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) A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) A complaint the practitioner is not competent to practise the practitioner's profession. (d) A complaint the practitioner has an impairment. (e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
3. The Tribunal may suspend or cancel a registered health practitioner's registration if satisfied the practitioner is not a suitable person for registration in the practitioner's profession: s 149C(1)(d) of the National Law.
4. 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 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.
5. The meaning of the expression "not a suitable person to hold registration" was considered by the Tribunal (differently constituted) in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 (Brush) at [72], [73]: We agree with the submission made by the Commission that, in considering whether Mr Brush "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 takes 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.
6. In Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD the Tribunal (A/DCJ Boland presiding) cited Brush with approval. The Tribunal wrote (at [118]) that the interpretation of the expression "suitable person to hold registration" adopted in Brush was consistent with that used by the Queensland Court of Appeal in the context of whether or not a person was a suitable person to be granted an adult entertainment licence under the relevant legislation (see Chief Executive Department of Tourism, Fair Trading & Wine Industry Development v 4 Play (Oz) Pty Ltd [2008] QCA 267).
7. The Commission contends that the conduct particularised in Complaint 2, demonstrates a deficiency in character incompatible with the necessary traits for a person engaged in the practice of nursing. The Commission points out that the particularised conduct dates back to 2009 and occurred over an extended period.
8. With respect to Particular 1 of Complaint 2, the Commission concedes that sub-particulars (a) to (g) do not demonstrate Mr Menz's lack of suitability to hold registration but merely put in context the essential fact on which the subject conviction was based, namely that described in sub-particular (h). The Commission submits that the conduct describes a serious act of sexual violence towards a minor and is incompatible with the necessary traits of character for a person engaged in the profession of nursing.
9. With respect to the misappropriation and unauthorised supply of Clonazepam (Particulars 2 and 3), the Commission points out that it involved the supply of medication to a person, who was not a patient, in the course of Mr Menz's employment as a nurse.
10. About Mr Menz's failure to attend, as directed, meetings of the Board (Particular 4), the Commission contends that this conduct demonstrates both contempt for the regulator and a failure by Mr Menz to face his professional responsibilities.
11. With respect to the making of a false declaration in the registration form submitted by Mr Menz to APHRA, the Commission submits that this demonstrates not only disregard for his professional responsibilities but dishonesty.

Consideration

1. The question posed is whether Mr Menz is currently not a suitable person to hold registration as a nurse. Past conduct is relevant to, but not determinative of that question.
2. In our view, the conduct, which is the subject of the particulars relating to the misappropriation and unauthorised supply of Clonazepam, is not trivial but by itself does not demonstrate that Mr Menz is not a suitable person to hold registration. While the impugned conduct fell short of the standard of judgement and care reasonably expected of a nurse of Mr Menz's experience and training, and arguably might amount to "unsatisfactory professional conduct" within the meaning of the National Law, nonetheless it was a one off occurrence and there is no evidence to suggest that Person B, an enrolled nurse, did not consent to the supply.
3. With respect to the conduct relating to Mr Menz's failure to attend before the Board as directed and making false declarations in the registration form, we consider this conduct to be more relevant to the assessment of Mr Menz's suitability to hold registration as a nurse. One of the objects of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners: s 3(1)(a). The objectives of that scheme include 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: s 3(2)(a). The effective operation of that scheme rests heavily on a system of self-reporting by registered health practitioners. The integrity of the Scheme requires that persons seeking to maintain registration are candid in their dealings with and cooperate with relevant regulatory bodies.
4. In our view, the conduct described in Particulars 4 and 5 is serious in nature and demonstrates Mr Menz's disregard for his professional responsibilities under the National Law. Further, it demonstrates that he is currently not a suitable person.
5. The conduct described in sub-particular 1(h) was an essential fact in the offending conduct that led to Mr Menz's conviction. There is no evidence to suggest that the conduct was repeated. However, it was objectively serious, involving an indecent assault on a minor. In the absence of any mitigating factors or evidence that there is no material risk that the conduct will be repeated, the conduct described in sub-particular 1(h) demonstrates that Mr Menz is not a suitable person to hold registration as a nurse.
6. We find that sub-particulars 1(h) and Particulars 4 and 5 of Complaint 2, taken together, establish that Mr Menz is not a suitable person to hold registration as a nurse.

Conclusion

1. We find Complaint 1 and Complaint 2 to be proven.
2. We make the following directions: 1. By 13 October 2017, the Commission must file and serve any proposed protective orders and submissions in support. 2. By 27 October 2017, Mr Menz must file and serve his response to the Commission's proposed orders, any alternative proposed protective orders, and submissions and evidence in support. 3. By 3 November 2017, the Commission must file and serve any submissions in reply. 4. By 27 October 2017, each party must notify the Tribunal and each other whether in their opinion the issue of protective orders can be adequately determined on the basis of written submissions and without holding a further hearing as permitted by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NSW).

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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 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: 29 September 2017