Health Care Complaints Commission v Mlotshwa

The Amended Complaint

1. By Amended Complaint filed 22 July 2022 the Commission makes four complaints.
2. The background to all complaints is that: 1. the practitioner was born in Durban, South Africa on [date of birth]. By 2011, the practitioner had moved to Australia, and in 2012 he undertook work as an Assistant in Nursing after obtaining a Certificate III in "Assistant in Nursing" from the Australian Nursing and Training Services. In 2016, the practitioner obtained a Diploma in Nursing and was first registered as an enrolled nurse on 16 August 2016; 2. on 2 March 2020, the practitioner was offered a permanent, full-time position at South Western Sydney Local Health District (SWSLHD) as a Year 3 Enrolled Nurse, and he commenced in that role on 9 March 2020. He continued to hold this position until he was arrested on 8 July 2020.

Complaint One

1. Complaint One is that pursuant to s 144 of the National Law, the practitioner has been convicted of criminal offences in New South Wales.
2. The Particulars of Complaint One are that: 1. on 8 July 2020, the practitioner was charged with one offence of participate in criminal group contribute to criminal activity contrary to s 93T(1) of the Crimes Act 1900 (NSW) (Crimes Act) (First Offence). It was alleged that between 1 November 2019 and 9 November 2019, the practitioner participated in a criminal group and contributed by laundering proceeds of crime; 2. on 8 July 2020, the practitioner was charged with one offence of recklessly deal with proceeds of crime contrary to s 193B(3) of the Crimes Act (Second Offence). It was alleged that between 5 November 2019 and 6 November 2019, the practitioner dealt with proceeds of crime amounting to $143,301.85; 3. on 8 July 2020, the practitioner was charged with a second offence of recklessly deal with proceeds of crime contrary to s 193B(3) of the Crimes Act (Third Offence). It was alleged that between 7 November 2019 and 8 November 2019, the practitioner dealt with proceeds of crime amounting to $249,670.08; 4. on 4 February 2021 at Liverpool Local Court, the practitioner was convicted of the First, Second and Third Offences. 5. the practitioner was sentenced to an aggregate term of imprisonment of two years, to be served by way of an Intensive Correction Order (ICO).
3. Prior to the hearing the practitioner had not filed a Reply to the Amended Complaint.
4. At the hearing the practitioner admitted Complaint One and the Particulars thereto.

Complaint Two

1. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 138B(1)(b) of the National Law in that the practitioner contravened a provision of the National Law.
2. The sole particular of Complaint Two is that the practitioner failed to notify the National Board within 7 days that he had been charged, on 8 July 2020, with offences publishable by 12 months' imprisonment or more.
3. At the hearing the practitioner admitted Complaint Two and the Particular thereto.

Complaint Three

1. Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
2. The particulars of Complaint Three are that: 1. on 4 December 2020, the practitioner gave false or misleading information to the Nursing and Midwifery Council, by way of an e-mail from his legal representative, which stated, "Our client does not have a prior criminal history. These are the only charges in his record" in circumstances where: 1. the practitioner's criminal history prior to 2020 included the following convictions or criminal findings: 1. drive with middle range PCA, at Liverpool Local Court (2011), 2. drive with middle range PCA, at Moss Vale Local Court (2014), 3. affray, at Campbelltown Local Court (2014); 4. drive motor vehicle during disqualification period, at Blacktown Local Court (2015); (1A) on 7 December 2020 the practitioner gave false or misleading information to the delegates of the Nursing and Midwifery Council, in that during the course of proceedings pursuant to s 150 of the National Law; 1. when asked by a member about when the practitioner told his manager about the charges in Particulars (1) to (3) of Complaint One, he said "the day after - the day I think the cops came to get me" in circumstances where he failed to give notice of the charges to his employer within 7 days of being charged; 2. when a member asked the practitioner whether the charges in Particulars 1 to 3 of Complaint One were his "first offence" and put to him that he "hadn't been charged before", the practitioner responded, "correct", in circumstances where the practitioner's criminal history prior to 2020 includes the convictions or criminal findings outlined in Particular (1) of Complaint Three. 1. on 14 April 2021 the practitioner gave false or misleading information to the Commission, in that during the course of its investigation in an email by his legal representative he told the Commission that "our client does not have a prior criminal history. These are the only charges in his record" in circumstances where the practitioner's criminal history prior to 2020 including the convictions of criminal findings in Particular (1) of Complaint Three; 2. the practitioner failed to report the charges in Particulars (1) to (3) of Complaint One to his Chief Executive within 7 days of the charges being laid, contrary to cl 4.3.18 of the NSW Health Code of Conduct.
3. The Commission submits the conduct in any of Particulars (1), (1A), (2) and (3) of Compliant Three is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct.
4. At the hearing the practitioner: 1. denied Particular (1); 2. admitted Particular 1A(c); 3. denied Particular 1A(d); 4. denied Particular (2).
5. At the hearing we understood the practitioner to be admitting Particular (3) of Complaint Three. In case we misunderstood this, we will independently assess whether or not Particular (3) is established on the evidence.

Complaint Four

1. Complaint Four is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or 2. engaged in 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 the suspension or cancellation of the practitioner's registration.
2. The sole particular of Complaint Four is that the Particulars of Complaint One, Two and Three are repeated and relied on both individually and cumulatively. In the alternative, the Commission submits that, when two or more of the particulars are taken together, a finding of professional misconduct is justified.
3. At the hearing, the practitioner denied Complaint Four.

The Commission's evidence

1. The Commission filed two bundle of material consisting of some 63 documents. These documents included but were not limited to evidentiary certificates provided by the Australian Health Practitioner Regulation Agency (AHPRA) and the Council; correspondence between the Commission and the practitioner; the reasons for decision of the s 150 proceedings of the Council dated 13 January 2021 in relation to a hearing held on 7 December 2021, and the transcript of that hearing; materials provided by the practitioner to the Council; various documents produced by NSW Police and Liverpool, Moss Vale, Campbelltown and Blacktown Local Court relating to Complaint One such as court attendance notices, criminal history reports, an ERISP transcript, facts sheets, transcripts of proceedings including the sentencing hearing, an ICO and certificates of conviction; various documents produced by SWSLHD including correspondence with the practitioner
2. The practitioner did not require any Commission witness to attend the hearing for cross-examination.

Suspension of Registration

1. As noted, on 7 December 2020, the Council decided to suspend the practitioner's registration. Following a hearing, the delegates concluded that: Are the circumstances such that it is otherwise in the public interest that action be taken that affects the practitioner's practice? We asked Mr Mlotshwa about his opinion on what the public might think of a nurse committing such criminal offences. He stated that it tarnishes the image of his employer, NSW Health as well as his image as a practitioner. On whether his matter had received media attention Mr Mlotshwa said that it had not. We asked him about how his patients might view him if they were to read about his criminal offences in the local newspaper. He said that his patients would be disappointed as he has a good rapport with them. We note the complaint provides a link to a Daily Telegraph newspaper article which states that Online-scam-dee-why-caddens-liverpool-leichhardt-six-men-arrested-over-scams-and-money-launderring. We are concerned that Mr Miotshwa currently works as a community health nurse and attends patients homes alone. The allegations against him do not directly impact patient safety: they have a serious impact on public interest. We have significant concerns about the potential damage to the public perception and confidence in the nursing profession, should the public become aware of the allegations against Mr Mlotshwa. We do not believe that there are conditions able to resolve the public interest, and we are satisfied suspension is appropriate in the circumstance. The public's confidence in a practitioner is that they have high moral standards, ethical values and trust. We note that Mr Mlotshwa's criminal matter has not been finalised and that he will appear in court for sentencing on 10 December 2020. In view of the above, we are satisfied that a suspension is warranted due to the character and seriousness of the allegations against Mr Mlotshwa. CONCLUSION Having regard to our assessment of the information and evidence relevant to the above issues we conclude that Mr Mlotshwa does pose an unacceptable risk to the public interest which requires us to take action, because of the following risk factors: a. Mr Mlotshwa has been charged with serious indictable offences which carry a jail sentence b. He pleaded guilty to these offences and is awaiting sentencing c. Potential damage to the public perception and confidence in the nursing profession, should the public become aware of the allegations against Mr Mlotshwa.

The practitioner's evidence

1. The practitioner filed no documents before the hearing.
2. Initially, the practitioner did not attend the hearing. However, the Tribunal managed to contact the practitioner by telephone who then attended the hearing by AVL link. While he said that he was unwell, he was prepared to participate in the hearing, including agreeing to be cross-examined by the Commission.
3. At the commencement of his evidence the Tribunal asked him to clarify his attitude to the Complaints, and his admissions and denials are set out above.
4. At the conclusion of the hearing, the practitioner was offered the opportunity to provide written submissions to the Tribunal about Stage 1 and Stage 2 considerations, which offer was accepted. However, shortly after the hearing the practitioner informed the Registry that he no longer wished to provide any submissions.
5. As to his cross-examination, the Commission went over the events of the convictions. On the whole, we would characterise his responses as defensive, if not evasive, and the practitioner often appeared to want to argue with the Commission's advocate rather than respond to questions. Some of his explanations about his conduct in participating in the activities which led to the convictions for dealing with proceeds of crime were quite unpersuasive, and usually minimised his involvement in the offences. He did not take responsibilities for his actions, for instance by blaming his legal representative for the incorrect information in documents and blaming his friend for the money transfer incident. He did not know details or background of the offences and "just went along with it", "following orders". He characterised his actions as "stupidity" and a "lack of judgement".

Relevant Law

1. It is appropriate to set out the relevant provisions of the National Law. These are as follows.
2. Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and (b) the registration of students undertaking-- (i) programs of study that provide a qualification for registration in a health profession; (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (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; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
3. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
4. A "NSW provision" is defined in s 5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note - This definition is an additional New South Wales provision.
5. Section 139B of the National Law (which is also an additional provision for NSW), which relevantly provides: 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. (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
6. Section 139E of the National Law (again, an additional provision for NSW), provides: 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.
7. Section 144 (again, an additional provision for NSW), which relevantly provides: 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. …

Unethical conduct

1. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. At [21] and following the Tribunal stated: 21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30]. 22. The Macquarie Dictionary offers several definitions of both words which include: Improper 2. not in accordance with propriety of behaviour, manners, etc: improper conduct. Unethical 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. 23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. 24. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53]. 25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances.
2. Whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[60].

Professional misconduct

1. The Tribunal stated in Health Care Complaints Commission v Le [2021] NSWCATOD 104 that: 71. The principles relating to findings of professional misconduct were stated in Health Care Complaints Commission v Joffe [2018] NSWCATOD 121 at [69] to [75] which we paraphrase as follows: (1) Whether and to what extent the misconduct of the respondent constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This involves a consideration of the circumstances in which suspension or cancellation may be justified, albeit that such protective orders may not necessarily, as a matter of discretion, be made: Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [55]; (2) Guidance as to the circumstances in which suspension or cancellation of registration are appropriate is to be found in the judgment of Meagher JA in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do") (Basten and Emmett JJA agreeing). His Honour stated: [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. (3) Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the respondent's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. (4) Whether conduct is sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; (5) As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186, "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation". His Honour further notes: [20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …

Determining a protective order

1. The Tribunal recently summarised the relevant principles in Health Care Complaints Commission v Gupta [2022] NSWCATOD 141 at [171] which we repeat as follows: 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]. 9. 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). 10. In Health Care Complaints Commission v Abrams [2021] NSWCATOD 128 at [23] that the Tribunal set out the matters to which the Tribunal should have regard in determining an appropriate protective order, namely:

• the gravity of the misconduct;
• how long ago the misconduct occurred;
• what has occurred in relation to the practitioner since the misconduct;
• the practitioner's level of remorse and degree of insight, if any into his or her misconduct;
• what if any steps have been taken by the practitioner by way of rehabilitation;
• general encouragement of high standards; and
• specific considerations of what is required to ensure that the practitioner does not pose similar risks in the future.

Complaint One

1. The practitioner has admitted the two particulars of Complaint One.
2. Regardless of the admissions, we would have found the two particulars established, that conclusion being supported by the copious evidentiary references in the Commission's submissions.
3. Complaint 1 is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law because he contravened conditions to which his registration was subject.
4. The practitioner submitted that he was so guilty.
5. We think he was right to do so. It is well established that conditions of registration for health practitioners must be "scrupulously observed" and it is "essential" to the smooth operation of the system of regulation and discipline that practitioners comply with conditions placed on their registration: Re Dr Than Le [2001] NSWMT, 20 September 2001 at [95] followed in many subsequent cases including Health Care Complaints Commission v Saedlounia [2013] NSWMT 13 at [45]; Health Care Complaints Commission v Karalasingham [2019] NSWCATOD 23 at [31]; Health Care Complaints Commission v Reid [2018] NSWCATOD 162 at [74]; Prakash at [74].

Complaint Two

1. The practitioner has admitted the one Particular of Complaint Two.
2. Regardless of the admission, we would have found the Particular established, that conclusion being supported by the copious evidentiary references in the Commission's submissions.
3. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law because he contravened a provision of the National Law.
4. The practitioner admitted that he was so guilty.
5. We think he was right to do so. Clearly the practitioner guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law by reason of contravening a provision of the National Law.

Complaint Three

1. The practitioner has admitted Particular (1A)(c) of Complaint Three.
2. Regardless of the admission, we would have found the Particular established, that conclusion being supported by the copious evidentiary references in the Commission's submissions.
3. We turn now to determining whether or not we find Particulars (1), (1A)(d), (2) and (3) proved.

Particular (1), (1A)(d) and (2)

1. These Particulars are set out above.
2. The Commissions relies on the following evidence for each of these Particulars: 1. the practitioner's solicitor's email to the Council on 4 December 2020 "Our client does not have a prior criminal history. These are the only charges on his record"; 2. the transcript of the practitioner's evidence of 7 December 2010 before the Council; 3. the practitioner's solicitor's email to the Commission on 14 April 2021 that "Our client does not have a prior criminal history. These are the only charges on his record"; 4. the police and court records showing that: 1. the practitioner was charged on 23 April 2011 and was convicted at Liverpool Local Court on 12 May 2011 of Drive with middle range PCA (involving driving without P plates after consuming 6 cans of VB); 2. the practitioner was charged on 18 August 2014 and convicted at Moss Vale Local Court on 2 December 2014 of Drive with middle range PCA (involving driving over 100km/hour and colliding into a tree); 3. the practitioner was charged on 29 August 2014 and convicted at Campbelltown Local Court on 29 September 2014 of Affray (involving approaching a train passenger, slapping him in the face, punching him, following him off the train, continuing to punch him); 4. the practitioner was charged on 29 August 2014 with Assault (later withdrawn); and 5. the practitioner was charged on 18 February 2015 and convicted at Blacktown Local Court on 13 April 2015 of Drive Motor Vehicle During Disqualification Period.
3. We are satisfied that each of these Particulars are established.

Particular 3

1. As noted, we understood that Particular (3) was admitted. However, the Commission's submissions proceed on the basis that it was not. In case we have misunderstood the practitioner's position in relation to this Particular, we have proceeded on the basis that it was not admitted.
2. The Commission relies on the following evidence to prove this Particular: 1. the NSW Health Code of Conduct that staff must "report criminal charges and convictions against them involving offences punishable by imprisonment for 12 months or more to their Chief Executive within 7 days of the charge being laid or a conviction recorded; 2. the practitioner's position description including that the enrolled nurse must "act in accordance with the NSW Health Code of Conduct"; 3. the SWSLHD letter of 2 March 2020 offering the practitioner employment on the basis that he agreed to be bound by and comply with the NSW Health Code of Conduct; 4. the practitioner's acceptance on 4 March 2020 that "I have read, understood and accept the NSWH [1] Code of Conduct"; 5. the email of Nursing Unit Manager (NUM) Kylie Stolzenhein of 6 July 2021 relevantly stating that: Later in the day on the 8th of July Mr Mlotshwa contacted NUM via mobile and advised that he was assisting police with "enquiries" and on questioning if there was anything that the service needed to be concerned about Mr Mlotshwa advised that he was not under arrest at this point and he was assisting them with their enquiries. On the 9th of July 2020 Mr Mlotshwa attended RCHC with his mother to speak with NUM and advised that he had been assisting police with their enquires related to matter that had previously been dealt with and that no current charges had been laid. 1. the practitioner did not object to the NUM's email and did not require her for cross-examination; 2. the SWSLHD email of 19 March 2021 confirming that no notification was provided on 9 July 2020 or within a week after this date as required by the Code of Conduct; 3. the initial review that SWSLHD was unaware of the practitioner's criminal activity until his nursing registration was suspended by the Council on 7 December 2020. When the practitioner informed SWSLHD of the suspension he failed to provide the details of his offences and only advised his manager he was under investigation by Police and had a matter before the court. The details of the criminal offences first became fully known on 18 January 2021, via an email from the practitioner's solicitor; 4. the SWSLHD email of 6 January 2021 asking the practitioner's solicitor for "information relation [sic - related] [to] charges and/or convictions recorded"; 5. the email from the practitioner's solicitor to the SWSLHD on 18 January 2021 attaching the court attendance notices and amended facts; 6. the SWSLHD letter of 8 February 2021 informing the practitioner of the allegation that he failed to report his serious charges to the Chief Executive within 7 days.
3. The Commission submits that there is no evidence to support the practitioner's assertion, first raised during the hearing, that his lawyer was mistaken.
4. We are satisfied that this evidence, which was not contested by the practitioner, establishes Particular (3).

Conclusion

1. Complaint Three was that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
2. The Commission submits the conduct in any of Particulars (1), (1A), (2) and (3) of Compliant Three in combination as a course of conduct amounts to unsatisfactory professional conduct.
3. We accept that submission. There are many examples where the Tribunal has made findings of unsatisfactory professional conduct regarding health practitioners who have provided false or misleading information to the Council or the Commission: see Health Care Complaints Commission v Petros [2019] NSWCATOD 83 at [122], Health Care Complaints Commission v Moslemi [2020] NSWCATOD 2 at [69], Health Care Complaints Commission v Oladiran [2020] NSWCATOD 56 being the three most recent authorities of the 15 authorities referred to by the Commission on this issue.
4. We find Complaint Three proven.

Complaint Four

1. Complaint Four is that the practitioner is guilty of professional misconduct under s 139E of the National Law because he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration.
2. The Commission submits that Complaints Two and Three, when taken together, are sufficiently serious to amount to professional misconduct because: 1. failing to notify AHPRA about very serious charges meant that important information was withheld from AHPRA with respect to whatever assessment they may wish to undertake about his suitability or fitness to be registered as an enrolled nurse; 2. falsely claiming that the practitioner had no previous charges assured the Council and the Commission that the practitioner was a low risk first time offender (rather than a person with five previous convictions posing a potentially greater risk to the public); 3. failing to report the criminal charges to his employer meant that the practitioner continued paid employment as an enrolled nurse working with patients between July 2020 to December 2020 (while his employer remained unaware of serious charges so were unable to conduct a proper risk assessment and consider appropriate disciplinary action).
3. We agree. For the reasons advanced by the Commission we consider that the conduct the subject of Complaints Two and Three when considered together amount to professional misconduct.

The Commissions submissions

1. The Commission seeks cancellation of the practitioner's registration pursuant to s 149C(1)(c) of the National Law in that the circumstances of the offences render the practitioner unfit in the public interest to practise nursing.
2. The Commission submits: 1. the National Law does not contain a definition of "unfit in the public interest to practise" and this term should be interpreted in light of the objects and guiding principle in the National Law: Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14]; 2. whether a practitioner is unfit in the public interest to practice will require consideration of the nature of the conviction and the circumstances in which the offence was perpetrated: Health Care Complaints Commission v Turner [2016] NSWCATOD 163 at [67]; 3. whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]; 4. whether a practitioner is unfit in the public interest to practice will consider both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and where there is a close nexus between the criminal conduct and professional role and responsibilities, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner is continued to practise. The serious nature of the offences and the length of time over which they occurred, may cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a convicted practitioner lacking rehabilitation and insight: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 [17] - [23]; 5. whether a practitioner is unfit in the public interest to practice must be assessed in light of a holistic inquiry into suitability which takes into account the wider context of the practitioner's conduct, including motivation, insight into the harm caused and any attempts at remediation. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards and public confidence in the health professions: Limboro at [22];
3. The Commission submits that the circumstances of the offences render the practitioner unfit in the public interest to practise nursing because of the following factors.
4. First, the nature and gravity of the offences. The Commission submits that Parliament has made it clear that these are grave offences by setting maximum penalties of five and ten years imprisonment. The practitioner participated in a criminal group by laundering a total of $392,971.93 in proceeds of crime. The nature of the offences involves dishonesty for financial gain.
5. Secondly, the period of time since the offences were committed. The Commission submits that the practitioner committed the offences relatively recently, in November 2019.
6. Thirdly, the convictions and sentences imposed. The Commission submits that the practitioner was convicted of all three offences and received a lengthy sentence of imprisonment, to be served by way of an ICO. The practitioner was also ordered to pay $100,000 compensation (the maximum jurisdictional amount).
7. Fourthly, the practitioner's age. The Commission submits that the practitioner is 36 years old, a mature adult well aware of his obligation to comply with the criminal law.
8. Fifthly, the practitioner's behaviour after committing the offences. The Commission submits that the practitioner was not frank with police during parts of his interview, discussed below, and did not promptly inform his employer about his offences.
9. Sixthly, the potential relevance of the offence to health practice. The Commission submits that nurses are responsible for ensuring the safe keeping of patient's belongings, including any cash and valuables, including when patients are unwell, incapacitated, sleeping or unconscious. The public expects that nurses will respect the safe keeping of other people's money, rather than participate in criminal groups and money laundering, which bring the profession into disrepute.
10. Seventhly, the practitioner's explanation. The Commission submits that the practitioner's police statement and interview suggest that the practitioner engaged in the conduct because his friend asked him to and for financial gain. The practitioner received about $1,500 USA currency plus about $5,000 Australian currency as profit from the offences. The Commission submits that such conduct is incompatible with the professional standards expected of nurses.
11. Eighthly, the practitioner was not frank with police during parts of his interview and that it was only after being shown CCTV footage of himself at the Hai Ha Money Transfer that the practitioner started to make admissions.
12. The Commission submits that cancellation with a four year non-review period is appropriate because: 1. in relation to Complaint 2, in cases where the omission to report is deliberate or careless, a protective order would almost invariably be appropriate, both to reinforce the importance of reporting to the practitioner in question, and also to provide a general deterrence to other health practitioners: Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [34]; 2. even if there is no suggestion of dishonesty on the part of a practitioner in failing to make the notification, the Commissions submits that a failure to notify is still to be regarded as serious conduct: Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATOD 79 at [109]-[110]; 3. in relation to Complaint Three, the practitioner has not served any material so there is no evidence that he has accepted responsibility for his conduct or developed genuine insight; 4. the practitioner had the opportunity to serve Stage 2 material but elected not to so there is no evidence regarding any further training, rehabilitation or reformation of character; 5. the practitioner made comments during the hearing suggesting that he has not yet gained insight; 6. a lengthy non-review period is needed so the practitioner can gain a deeper understanding of his professional obligations and to signal to the profession and the public the seriousness of the conduct.

The practitioner's submissions

1. The practitioner had little to say of significance at the hearing, indicating that he "just wanted the matter dealt with", and that he would provide written submissions later. The respondent made some statements during the hearing that could be regarded as submissions. For instance, he told us that it was not fair to say his offences were deliberate to make money, but rather it was stupidity and lack of judgment. The respondent said that he had not told his employer that he had been charged on the day he was charged or the next day, but only that he was assisting the police. He told us that he had decided she didn't need to know. The respondent said that he didn't think the 2020 offences had anything to do with his work.

Conclusion

1. As the Tribunal stated in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106: 92. The public interest is served by protective orders which maintain the standing of the profession and the maintenance of public confidence in the high standards of practitioners: Prakash at [91]. 93. Protective orders also involve an element of encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]. 94. Nevertheless, although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Lee v Health Care Complaints [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. 95. As noted in Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69], there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include:

• the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction;
• the unacceptability of certain kinds of conduct; and
• the maintenance of confidence in the high standards of the profession. 96. Whether the 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].

1. Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling the practitioner's registration. Objectively, his professional misconduct is of such a serious nature that the only appropriate disciplinary order is the cancellation of his registration. Any order short of deregistration would be an inadequate response to the seriousness of his misconduct.
2. 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.
3. We consider that it is appropriate to order that the practitioner may not apply for review of the cancellation order for a period of three years.

Prohibition Order

1. The Commission also seeks a prohibition order. It submits that the Tribunal should be satisfied that the practitioner poses a substantial risk to the health of members of the public and that therefore a prohibition order should be made.
2. The Commission acknowledges that "substantial risk" is not defined in the National Law, but submits that the phrase has been interpreted by the Tribunal to mean a risk that is material and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [18]; Health Care Complaints Commission v Collins [2021] NSWCATOD 132 at [97] (to cite the two most recent authorities of the four referred to by the Commission in its submissions on this issue).
3. The question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services: Menz at [19].
4. The Commission's reasons for seeking the prohibition order are, in summary, that: 1. the practitioner demonstrated disregard for his professional obligations by continuing to work, notwithstanding that he had been charged with serious offences; 2. the practitioner was not frank with his employer, the Council or the Commission; 3. the practitioner failed to inform his employer and kept receiving a salary, presumably motivated to conceal his conduct; 4. the practitioner has previously downplayed his offending, for example his inaccuracies/minimisation in his letter to AHPRA in 2016 and his description of his involvement in an organised criminal money laundering scheme as mere "stupidity"; 5. the practitioner's ability to acknowledge errors in judgment and clinical treatment is particularly crucial for health professionals because covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions because such behaviour may pose a risk to the safety of patients; 6. a health professional who cannot be trusted to tell the truth presents a risk to the public because, without candid admissions by a health professional who may be in the wrong, the ability of other professionals to treat patients appropriately, including by remedying any original error, is grossly impaired or altogether prevented: Health Care Complaints Commission v Picones [2018] NSWCATOD 56 at [104]‑[105] 7. asserted reformation of a practitioner's character is exceptional and requires clear proof: Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 6 SR (NSW) 448 at 461; 8. there is no evidence about the practitioner's current and future employment plans and insufficient evidence to assure the Tribunal that the practitioner's character is reformed; 9. although the practitioner's name was placed on the NSW Health Service Check Register, the practitioner could seek private employment; 10. the practitioner was financially motivated to commit the 2019 offences and may be financially motivated to seek work; 11. the practitioner may seek work in areas related to nursing such as an assistant in nursing, case work, aged care, disability work, case work, youth work drug and alcohol services, which would bring the practitioner in regular close contact with patients and their valuables; 12. should the practitioner obtain employment providing any form of unregulated health service, such as the provision of personal or health care services in the community sector, that type of work takes place in the homes of patients with no on-site supervision and in a setting in which there are no controls over the security of patient valuables; 13. a prohibition order ensures that the protective purpose of the cancellation is not significantly undermined, because if the practitioner were permitted to provide health services as an assistant in nursing during the period when his registration was cancelled, it would substantially diminish the protective purpose of any cancellation order and may undermine confidence held in the profession: Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48 at [25].
5. The practitioner made no submissions against the imposition of a prohibition order. We are entitled to draw inferences from a practitioner's "silence": Health Care Complaints Commission v Chen (No 2) [2021] NSWCATOD 174 at [11]. In Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 326 the NSW Court of Appeal stated at [47]: "In Bowen-James [Bowen-James v Walton (NSWCA, 5 August 1991, unrep)], after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued: … we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts."
6. In the circumstances, we accept the Commission's submissions on this issue.

Costs

1. This is a costs jurisdiction, and ordinarily costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282.
2. The Commission has been successful in establishing all four Complaints. We see no reason why the practitioner should not be ordered to pay the Commission's costs as agreed or as assessed, particularly in the absence of any submissions to the contrary from the practitioner.
3. After the hearing, the Registry received a letter from the Commission indicating that it had written to the practitioner and served on him a schedule of its costs, in an effort to reach agreement on an order for costs in a fixed amount in the event the particulars in the complaint are proven. The Commissions indicated that the parties had been unable to reach agreement in that regard.
4. In those circumstances, and in the event the particulars were proved, the Commission sought an order pursuant to cl 13(3A) of Sch 5D of the National Law that the practitioner pay the Commission's costs in the fixed amount of $15,175.78, or alternatively as agreed or as assessed.
5. In our view, the appropriate order is that the practitioner should pay the Commission's costs as agreed or as assessed.

Orders

1. The Tribunal orders: 1. Complaint One, namely that the respondent has been convicted of criminal offences in New South Wales, is proved. 2. Complaint Two, namely that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Health Practitioner Regulation Law (NSW), is proved. 3. Complaint Three, namely that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Health Practitioner Regulation Law (NSW), is proved. 4. Complaint Four, namely that that the respondent is guilty of professional misconduct under s 139E of the National Health Practitioner Regulation Law (NSW), is proved. 5. The respondent's registration as a nurse is cancelled. 6. The respondent may not apply for review of the cancellation order for a period of three years. 7. The respondent is prohibited from providing health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) pursuant to s 149C(5) of the Health Practitioner Regulation National Law until further order on review under s 163A. 8. The respondent to pay the applicant's costs as agreed or as assessed.

Endnote

1. This is how the text appears in the acceptance; presumably it is a reference to NSW Health. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 16 November 2022 - Coversheet: Senior Member name corrected - typographical error 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: 16 November 2022