Health Care Complaints Commission v Mosca

Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Overview

1. This matter concerns an application by the Health Care Complaints Commission ('the Commission') for disciplinary findings and orders with respect to a complaint ('the Complaint') against the health practitioner, Joyce Paran Mosca, a registered nurse (also referred to in these Reasons as 'the practitioner' or 'the respondent').
2. The Complaint is comprised of three parts, with particularised grounds for each part. The Commission determined to prosecute the Complaint pursuant to s 90B(1) of the Health Care Complaints Act 1993 (NSW) ('the HCC Act'), alleging that: 1. the respondent has been convicted of two offences of Dishonestly obtain property by deception, contrary to s 192E(1)(A) of the Crimes Act 1900 (NSW) and one offence of Persons Unlawfully in possession of property, contrary to s 527C(1)(A) of the Crimes Act 1900 (NSW) ('the Offences'), being a ground for complaint pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW) ('the National Law'); 2. the respondent has been guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice of nursing, being a ground for complaint pursuant to s 144(b) of the National Law; 3. the respondent has been guilty of professional misconduct within the meaning of s 139E of the National Law, being a further ground for complaint pursuant to s 144(b) of the National Law.
3. Whilst employed as a Care Manager in an aged care facility ('the Facility'), the respondent obtained the bank cards of two elderly residents of the Facility (referred to in these Reasons as 'Patient A' and 'Patient B') and used the cards to make multiple purchases for herself in NSW and in the Australian Capital Territory over a period exceeding two years.
4. Both Patient A and Patient B were vulnerable because of their age and respective cognitive conditions. Patient A was 85 years old and had been diagnosed with Dementia. Patient B was 78 years old and had been diagnosed with Dementia and Alzheimer's disease.
5. According to the Police Facts Sheet, the respondent used Patient A's bank card 61 times between 4 May 2021 and 7 December 2022, to a total value of $5,402.21. The respondent used Patient B's bank card 116 times between 7 September 2020 and 25 August 2022 to a total value of just under $2,996.42. The bulk of transactions occurred in Yass in NSW, and other transactions occurred in the Australian Capital Territory.
6. The respondent pleaded guilty and was convicted on 14 April 2023 in the Local Court at Yass with respect to criminal offences committed in NSW. With respect to the two counts of dishonestly obtaining property by deception (by using the bank cards belonging to Patient A and Patient B to purchase items for herself), she was sentenced to a term of imprisonment of 18 months to be served by way of intensive correction in the community in accordance with s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW). With respect to the charge of having goods in her personal custody suspected of being stolen (by having Patient B's bank card still in her possession at the time of being charged on 7 December 2022), the respondent was fined $450.00 and ordered to return the property to Patient B.
7. The Commission sought orders to have the respondent's registration cancelled and to disqualify her from being registered for two years. The Commission also sought an order prohibiting the practitioner from providing health services for a period of two years, and an order for costs.
8. The respondent did not file a reply to the Commission's Complaint and did not file any written submissions for consideration. On the day before the hearing, the respondent advised that she would not be attending the hearing and submitted three character references.
9. Pursuant to s 149 of the National Law, the Tribunal may exercise disciplinary power if it finds the subject matter of the Complaint against the practitioner to have been proved, or she admits to it in writing to the Tribunal. After hearing and considering all the relevant evidence, we find the subject matter of Complaints One, Two and Three to have been proved.
10. Having regard to the respondent's deceitful conduct over a significant period of time whilst employed in a position of trust and responsibility for the care of vulnerable elderly patients, we are satisfied that she is guilty of professional misconduct justifying cancellation of her registration under s 149C(1)(b) of the National Law. We are also satisfied that the circumstances of the Offences including the practitioner's actions after her criminal conduct was discovered, render the practitioner unfit in the public interest to practise the profession of nursing, justifying cancellation of her registration under s 149C(1)(c) of the National Law.
11. We have accordingly decided to cancel her registration and to set a non-review period of 3 years effective from the date of this decision before the practitioner will be entitled to apply for a review of the cancellation order and seek to be reinstated.
12. We are also satisfied that the respondent poses a substantial risk to the health of members of the public as an unregistered nurse, and accordingly we make a prohibition order under s 149C(5) of the National Law prohibiting her from providing health services for a period of 3 years effective from the date of this decision.
13. Finally, we order the respondent to pay the applicant's costs of these proceedings.

Non-publication order

1. The Tribunal made an order on 12 April 2024 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that the disclosure and or publication of the names of any person listed in the Schedule to the Complaint is prohibited. Accordingly, in these reasons, the persons listed in the Schedule to the Complaint are referred to as 'Patient A' and 'Patient B'.

Filed on behalf of the Commission

1. In support of its Application for disciplinary findings and orders filed on 25 March 2024, the Commission relied on the following documents: 1. a bundle of documents filed on 11 June 2024 (marked for identification as "Exhibit A1"); 2. a bundle of supplementary documents filed on 19 June 2024 (marked for identification as "Exhibit A2"); 3. a further bundle of supplementary documents filed on 5 July 2024, being documents produced under Summons from RSL LifeCare on 3 July 2024 (marked for identification as "Exhibit A3"); 4. a Chronology filed on 9 July 2024 (marked for identification as "Exhibit A4"); 5. an Evidentiary Certificate dated 5 July 2024 issued by the Australian Health Practitioner Regulation Agency ('AHPRA'), filed on 8 July 2024 (marked for identification as "Exhibit A5"); 6. a copy of AHPRA's Registration Standard: Criminal History document as at 1 July 2015, handed up during the hearing on 10 July 2024 (marked for identification as "Exhibit A6"); 7. a copy of correspondence dated 20 June 2024 from the Commission to the respondent enclosing a hard copy of the documents that the Commission proposed to rely upon, as well as copies of various receipts from Australia Post confirming delivery of material to the respondent, handed up during the hearing (marked for identification as "Exhibit A7"); 8. written submissions dated 10 July 2024, handed up on the day of hearing (not marked).

Filed on behalf of the respondent

1. As already noted, the respondent sent an email to the Tribunal on 9 July 2024 advising that she would not be attending the hearing on 10 July 2024. The respondent also provided 3 character references for the Tribunal's consideration.

Procedural note

1. Upon receipt of the respondent's email of 9 July 2024, the Tribunal's Registry wrote to both parties and noted that if the respondent did not attend the proceedings, the hearing may proceed and a decision may be made in her absence. The Registry further noted that it may be in the respondent's interests to attend the hearing as listed on 10 July 2024.
2. The practitioner did not respond to the Registry's note and did not attend the hearing.
3. The Tribunal noted that Orders made on 12 April 2024 contained a notation stating: "The respondent has advised that she does not intend to defend the matter and will not be participating in the hearing".
4. Having regard to the respondent's advice to the Tribunal on at least two occasions that she did not intend to participate in the hearing, the Tribunal Panel decided to hear the Commission's application in the respondent's absence.

The Complaint

1. The Commission set out three grounds which constituted the Complaint in these proceedings: 1. that, under s 144(a) of the National Law, Ms Mosca had been convicted of a criminal offence ('Complaint One'), the particulars of which are set out below: Particulars of Complaint One On 14 April 2023 at Yass Local Court, the practitioner was convicted of criminal offences; namely: two offences of Dishonestly obtain property by deception, contrary to section 192E(1)(a) of the Crimes Act 1900 (NSW); and one offence of Persons Unlawfully in possession of property, contrary to section 527C(1)(a) of the Crimes Act 1900 (NSW). One of the relevant circumstances of the criminal conviction in particular 1 is that the victims of the offences were Patient A and Patient B, who were under the care of the practitioner. 1. that Ms Mosca is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice of nursing ('Complaint Two'), the particulars of which are set out below: Particulars of Complaint Two Between 1 August 2022 and 14 November 2022 the practitioner used a bank card belonging to Patient A, without the knowledge and consent of Patient A, to make purchases, as set out in the table annexed and marked 'Annexure A' to the Complaint. Between around 29 September 2020 and 8 August 2022 the practitioner used a bank card belonging to Patient B, without the knowledge and consent of Patient B, to make purchases, as set out in the table annexed and marked 'Annexure B' to the Complaint. 1. that Ms Mosca is guilty of professional misconduct under s 139E of the National Law, in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 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 ('Complaint Three'), the particulars of which are set out below: Particulars of Complaint Three Complaint Two is repeated and relied upon.

Issues for the Tribunal to consider and determine

1. The issues for the Tribunal to determine are: 1. whether the conduct in each of Complaints One, Two and Three is proven or admitted; 2. whether the asserted unsatisfactory professional conduct in Complaint Two is proven; 3. if Complaint 2 is proven, whether the proven unsatisfactory professional conduct is sufficiently serious to amount to professional misconduct for the purpose of Complaint Three; 4. whether, and if so in what manner, the Tribunal should exercise its disciplinary powers under Subdivision 6 of the National Law, including whether to suspend (for a specified period) or cancel the practitioner's registration, whether to impose a non-review period with respect to an order cancelling the practitioner's registration, and whether to make a prohibition order prohibiting her from providing health services for a specified period of time or permanently ; and 5. whether to order Ms Mosca to pay the Commission's costs of these proceedings.

Family and employment history

1. The respondent is currently 53 years of age, and is married with three children and one grandchild. She came to Australia from the Philippines on a student visa to study a Master of Information Technology and then transferred to nursing. One of her children is living in the Philippines and looks after the respondent's mother who also lives in the Philippines and has suffered a stroke.
2. Ms Mosca was first registered as a nurse on 27 May 2016, after obtaining a Bachelor of Nursing from the Australian Catholic University in 2015.
3. Between July 2016 and December 2016, the practitioner worked initially as an agency nurse and also as a casual nurse in a private hospital in Sydney. In December 2016 until November 2017, she worked as a full-time registered nurse at an aged care facility in Sydney.
4. In December 2017, the practitioner started working for the Facility in Yass, initially as a full-time registered nurse until January 2020. She was then promoted to the role of Care Manager at the Facility, from February 2020 until July 2021.
5. Patient A was admitted into the Facility in 2018. Patient B was admitted in March 2020.
6. In July and August 2021, the practitioner worked full-time at a different location, initially as an Acting Facility Manager and then as Facility Manager from September until December 2021. She then returned to work at the Facility as a full time Care Manager in January 2021 until her suspension pending an investigation into the alleged Offences and ultimately her resignation in February 2023.
7. The practitioner was charged on 7 December 2022 following which the Police notified RSL LifeCare of the allegations and advised that the bail conditions prohibited the practitioner from entering the Facility.
8. RSL LifeCare suspended the practitioner with pay on 8 December 2022 pending an investigation into the allegations against her, and subsequently notified the Council of the charges against the practitioner.
9. On 24 January 2023, the practitioner notified AHRPA that she had been charged with the Offences and attached a letter from her GP stating that she was suffering ongoing anxiety and depressive symptoms since being charged by Police on 7 December 2023.
10. On 9 February 2023, the practitioner tendered her resignation with RSL LifeCare.
11. RSL LifeCare subsequently notified the Nursing and Midwifery Council of NSW ('the Council') of the charges against the practitioner and advised that the practitioner had provided her resignation with effect from 9 February 2023.
12. At the time of the hearing in these proceedings, it was not known whether the practitioner has secured employment since February 2023, although it is known from a document filed in the criminal trial that she had an offer of employment from a friend, to work as a manager in one of his restaurants in Victoria.

Events leading to criminal proceedings

1. Drawing predominantly from the Police Facts Sheet, we understand that the practitioner's criminal conduct came to light as a result of events that took place on 17 November 2022 and the week immediately following.
2. On 17 November 2022, Patient A's son visited his mother at the Facility. Patient A wanted a television for her room, and her son had agreed to purchase it with her bank card. Patient A and her son searched her room but were unable to find the card.
3. The following day, Patient A's son received a bank statement showing multiple purchases from various stores in Yass and Canberra. The transactions were thought to be highly suspicious since Patient A had no means of travelling to shops to purchase items, and no way of going to Canberra for shopping. Patient A's son reported the card as being stolen and returned to the Facility to again search for the card.
4. The practitioner assisted in the search for the card and agreed to not divulge to any person that the card was missing and had been used unlawfully. We note that the practitioner had in fact used Patient A's card at Woolworths that morning. It was to be the last time she used the card, because it had been reported as being stolen and then her use of it came to light.
5. At around 6pm that night, the practitioner telephoned Patient A's son, asking to speak with him immediately. A short time later, the practitioner attended his home and handed over the bank card in the name of Patient A and said that she had "mistakenly" used the card. She asked that Police not be notified and said that she was intending to repay the money she had spent.
6. One week later, on 25 November 2022, the practitioner contacted Patient A's son and asked him to attend the Facility as she had $6000 that she wished to repay. Later that day, he attended the Facility and was led to the practitioner's office where she handed him an envelope containing $6000 in denominations of $50 and $100.
7. On 7 December 2022, the practitioner attended the Yass Police Station and was placed under arrest. While in custody, Police conducted a search of the practitioner's purse and located a bank card in the name of Patient B. When asked why she was in possession of the card, the practitioner said she was purchasing clothing for Patient B.
8. The practitioner declined to answer further questions.
9. The practitioner was charged on 7 December 2022 with two offences: 1. that, by deception, the practitioner used a bank card issued to Patient A to dishonestly obtain fuel, clothing and groceries contrary to s 192E(1)(a) of the Crimes Act 1900 ('Sequence 1', Complaint One); and 2. that the practitioner had in her custody a bank card belonging to Patient B which may be reasonably suspected of being stolen or otherwise unlawfully obtained, contrary to s 527C(1)(a) of the Crimes Act 1900 ('Sequence 2', Complaint Two).
10. The practitioner was granted bail on conditions including that she must not contact Patient A or Patient B, must not enter the Facility and must surrender her passport.
11. Sometime later, the Police contacted Patient B's son who reviewed his father's bank statements and noticed there were multiple purchases from various stores in Yass and Canberra that were suspicious. He advised Police that he was responsible for purchasing his father's clothing and that no other person had permission to possess or use his father's card.
12. The practitioner was subsequently charged with Dishonestly obtain property by deception, contrary to s 192E(1)(a) of the Crimes Act 1900 in that, by deception, she used a card number in the name of Patient B to dishonestly obtain groceries, food, petrol and alcohol ('Sequence 3', Complaint One).
13. The applicant pleaded guilty to Sequence 1 and Sequence 3 on 3 March 2023, and pleaded guilty to Sequence 2 on 14 April 2023.
14. In the Local Court at Yass, Magistrate Beattie sentenced the practitioner to 18 months imprisonment with respect to Sequence 1 and Sequence 3, to be served by way of intensive correction in the community. With respect to Sequence 2, the practitioner was fined $450.

Council's suspension of registration under s 150 of the National Law

1. Under s 150 of the National Law, the Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons, or if satisfied the action is otherwise in the public interest, suspend a health practitioner's registration or impose conditions on the practitioner's registration. Action taken under s 150 is interim in nature pending further review.
2. In this matter, on 1 February 2023, the Council received a Notice of Certain Events which had been submitted by the practitioner to AHPRA advising that she had been charged with an offence punishable by 12 months' imprisonment or more. Subsequently, the practitioner provided a Court Attendance Notice and Police Facts Sheet advising that she had been charged with "Dishonestly obtain property by deception" and "Goods in personal custody suspected being stolen (not motor vehicle)".
3. Then, on 16 February 2023, the Council received an additional notification from RSL LifeCare advising of the charges against the practitioner and advising that the practitioner had provided her resignation with effect from 9 February 2023.
4. Pursuant to s 150 of the National Law, the Council convened an urgent hearing on 6 March 2023 to consider whether, in light of the charges against the practitioner, urgent interim action was required for the health and safety of any person or in the public interest.
5. The practitioner elected to not attend the hearing which was conducted 'on the papers'.
6. The Council had for its reference a file note regarding a telephone conversation between a Council officer and the practitioner on 6 February 2023. The practitioner was noted to have said she had been advised by her lawyer not to answer any questions and that she would not be providing any information about the allegations. The practitioner said that her bail conditions required her to report to Police each Monday, Wednesday and Friday. She said that she didn't consider herself to be well enough to return to nursing work as she was suffering depression, anxiety and panic attacks, but also said that she would like to return to nursing in the future, perhaps working at a medical centre.
7. The Council considered the practitioner's positive performance appraisal in November 2022 and noted there were no concerns about her clinical practice and no record of a pattern of poor workplace conduct. Her CPD records indicated her attendance at courses including aged care standards, clinical governance and open disclosure, however, there were no reflections or insights from the practitioner about her understanding of the material in those courses.
8. The Council understood the allegations concerned a substantial amount of money and involved conduct over a significant period of time. In the Council's view, the allegations, if proven, reflected a very serious breach of judgment and responsibility, and posed a serious risk to public safety. The Council had grave concerns that there was a clear difference between the practitioner's alleged actions and her stated professional career objectives, experience and education.
9. The Council was not aware of any proposed future work arrangements for the practitioner. However, the Council considered that suspension of her registration pending the ongoing investigation was the most appropriate action to take. The Council did not consider that there were conditions that could be imposed on her registration that would sufficiently mitigate concerns with respect to both the public interest and in terms of protecting the safety of the public.
10. In coming to its decision to suspend the practitioner's registration, the Council acknowledged that it was not able to ask the practitioner directly about whether she was accessing any additional supports including counselling or pharmacologic treatment. The Council took into account a number of matters including: 1. the gravity of the charges; 2. the practitioner's alleged conduct in response to the discovery of the alleged actions against her; and 3. the apparent limited expression of remorse or reflections on the harm the alleged actions have had on the impacted residents of the Facility, their families and the general community.
11. The Council suspended the practitioner's registration with immediate effect from 6 March 2023, pursuant to s 150(1)(b) of the National Law.
12. After suspending the practitioner's registration, the Council referred the matter to the Commission for investigation pursuant to s 150D of the National Law.

Commission's investigation and application for disciplinary findings and orders

1. By letter of 29 May 2023, the Commission advised the practitioner that her alleged conduct raised a significant issue of public health or safety, warranting investigation. Further, the practitioner was advised that if substantiated, the complaints would provide grounds for disciplinary action against her. The practitioner was invited to provide her response and a copy of her current CV.
2. The practitioner responded on 9 June 2023 and provided a copy of her CV. She stated that she had pleaded guilty and was convicted of two counts of Dishonestly obtain property by deception and one count of Goods in personal custody suspected of being stolen (not m/v). In her covering email, the practitioner begged for forgiveness for her actions.
3. After conducting an investigation into the complaints referred to it, the Commission advised the practitioner on 27 September 2023 that the evidence indicated she had been charged and convicted of three criminal offences. The Commission advised the practitioner that two other complaints were being considered. We note that those other matters were not ultimately prosecuted in the proceedings before us.
4. The Commission gave the practitioner the opportunity, pursuant to s 40 of the HCC Act, to make submissions.
5. In her response on 24 October 2023, Ms Mosca stated that she did not intend to make any submissions and she did not intend to engage further in the disciplinary proceeding against her.
6. On 14 November 2023, after considering the practitioner's response, the Commission advised the practitioner that it intended to refer the complaints to the Director of Proceedings to determine whether a complaint should be prosecuted before a disciplinary body (in this case, the Tribunal).
7. On 26 February 2024, the Commission advised the practitioner that a further ground of complaint was alleged, namely improper or unethical conduct in the practice of nursing pursuant to s 139B(1)(l) of the National Law. The practitioner was invited to make submissions within 28 days. It appears that no submissions were received from the practitioner.
8. On 25 March 2024 the Commission filed its application for disciplinary findings and orders in the Tribunal with respect to the Complaint.

Guiding principle and paramount consideration

1. In all matters before it under the National Law, the Tribunal is guided by s3A which states: "The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration."
2. Accordingly, when assessing whether it is appropriate to make disciplinary orders against a practitioner, the fundamental and paramount consideration for the Tribunal is the protection of the health and safety of the public.

Orders are intended to be protective and not punitive

1. Orders are made under the National Law for the protection of the public and not for the purpose of punishing the practitioner, as pointed out by the High Court of Australia in the context of the disbarment of a legal practitioner in Clyne v NSW Bar Association (1960) 104 CLR 186 ('Clyne') at [201]-[202]: "Although it is sometimes referred to as the 'penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege."
2. The decision in Clyne has been adopted in a number of Tribunal decisions including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 ('Liu') at [42] and Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 ('Meneghetti') at [97].
3. Although the specific purpose for which orders are made is protective of the public interest and not punitive with respect to the practitioner, it is acknowledged that such orders may be punitive in their effect, and that punitive effect may be relevant in formulating a protective order: Meneghetti at [98]; Lee v Health Care Complaints Commission [2012] NSWCA 80 ('Lee') at 20 citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].

Maintaining ethical and professional standards

1. Protective orders arising from disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession: Meneghetti at [98] citing Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 ('Litchfield') at [637].

Maintaining public confidence in high standards of a profession

1. Protective orders serve to maintain public confidence in the high standards of the medical profession: Meneghetti at [98] citing Prakash v Health Care Complaints Commission [2006] NSWCA 153 ('Prakash') at [91].

Effect of deterrence

1. Protective orders also involve an element of deterrence, encouraging other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Meneghetti at [97] citing Prakash at [91].

Grounds for complaint against registered health practitioners

1. Section 144 of the National Law sets out the grounds on which 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. 1. Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. 1. Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. 1. Impairment A complaint the practitioner has an impairment. 1. Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession."

Meaning of "unsatisfactory professional conduct"

1. Section 139B(1) of the National Law sets out the meaning of "unsatisfactory professional conduct" of registered health practitioners.
2. In these proceedings, reference to "unsatisfactory professional conduct" includes circumstances where there is any other improper or unethical conduct relating to the practice of purported practice of the practitioner's profession: s 139B(1)(l).

Meaning of "professional misconduct"

1. Under s 139E of the National Law, "professional misconduct" of a registered health practitioner means the following: "(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."

Powers of the Tribunal if a complaint is proved or admitted

1. If a complaint is proved or admitted, the Tribunal may exercise its disciplinary powers as set out in s 149 of the National Law: "The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if - (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal."
2. The Tribunal's general powers to suspend or cancel a practitioner's registration are found in s 149C(1) of the National Law as set out below: "(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession."

Tribunal's power to make a prohibition order

1. In addition to its powers to suspend or cancel a practitioner's registration, the Tribunal has power to make a prohibition order against a practitioner if it is satisfied that the practitioner poses a substantial risk to the health of members of the public. The power to make a prohibition order is found in s 149C(5) of the National Law, as set out below: "(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;"

Burden of proof and standard of proof

1. The burden of proof rests with the Commission: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [3].
2. The standard of proof required to establish a complaint is the civil standard, that is, on the balance of probabilities: Liu at [40]. Because of the seriousness of the allegations and the gravity of their consequences, the Tribunal must have "a reasonable satisfaction" that the particulars of a complaint have been proved, as per Dixon J. in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw') at [362]: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."
3. Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact. However, s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW), provides that the Tribunal is not bound by the rules of evidence. Therefore, strictly speaking, neither the Briginshaw civil standard (having the particulars of a complaint proved to the reasonable satisfaction of the Tribunal) nor s 140 of the Evidence Act 1995 applies directly in decision-making by the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41.
4. However, as noted in Meneghetti at [13]-[14], the general accepted approach is that when deciding whether the evidence is sufficient to meet the civil standard of proof, the Tribunal will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding.

Use of approved standards, codes or guidelines in disciplinary proceedings

1. Under s 41 of the National Law, an approved code or guideline approved by a National Board is admissible in disciplinary proceedings.
2. Accordingly, the Code of Conduct for Nurses issued by the Nursing and Midwifery Board of Australia which sets out the professional behaviour and conduct expectations for nurses in all practice settings, is admissible in these proceedings and is a legitimate standard or benchmark against which the practitioner's conduct may be assessed or measured.
3. In these Reasons, any reference to the Code of Conduct for Nurses is a reference to the document filed by the applicant in these proceedings.

Consideration

1. After examining all the relevant evidence, we make the following findings with respect to Complaints 1, 2 and 3.

Complaint One

1. Complaint One is that the practitioner has been convicted of criminal offences, which is a ground for complaint pursuant to s 144(a) of the National Law.
2. The evidence supporting Complaint One includes: 1. bank statements relevant to Patient B's bank card showing that on 112 dates from 7 September 2020 to 25 August 2022, the practitioner used Patient B's card in Yass to dishonestly obtain groceries, food, petrol and alcohol (total value of $2,669.42); 2. bank statements relevant to Patient A's bank card showing that on 59 occasions between 2 June 2021 and 18 November 2022, the practitioner used Patient A's card in Yass to dishonestly obtain groceries, food, petrol and alcohol (total value $5,402.21); 3. the Police Facts Sheet showing that one of the relevant circumstances of the criminal conviction is that the victims of the Offences were Patient A and Patient B who were under the care of the practitioner; 4. The Court Attendance Notice establishing that the practitioner was charged by Police on 7 December 2022; 5. the Transcript, Certificate of Conviction and Intensive Correction Order establishing that the practitioner was convicted at the Local Court in Yass of the three Offences; 6. the practitioner's letter to the Magistrate (undated but presumed to have been written shortly before the sentencing hearing on 14 April 2023) admitting that she used Patient A's card and Patient B's card and pleading guilty to the Offences; 7. the practitioner's response dated 6 June 2023 to the Commission, admitting that she used the cards belonging to Patient A and Patient B and was convicted of the Offences after pleading guilty; 8. the practitioner's email of 9 March 2024 to the Commission, admitting that she was convicted of the Offences after pleading guilty.
3. We find Complaint One to be proven.

Complaint Two

1. Complaint Two relates to the practitioner's dishonest use of the cards of Patient A and Patient B to make purchases for herself in the Australian Capital Territory.
2. Complaint Two asserts that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law as she has engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
3. We firstly consider the evidence to decide whether the practitioner engaged in the alleged conduct before then evaluating whether the conduct meets the threshold of being "improper or unethical".
4. The evidence that the conduct took place includes: 1. the bank statements relevant to Patient B's card showing that on 37 occasions between around 29 September 2020 and 8 August 2020, the practitioner used Patient B's card, without the knowledge and consent of Patient B, to make purchases in the Australian Capital Territory (total value of $1,185.08); 2. the bank statements relevant to Patient A's card showing that on 24 occasions between around 1 August 2022 and 14 November 2022, the practitioner used Patient A's card, without the knowledge and consent of Patient A, to make purchases in the Australian Capital Territory (total value of $1,559.42); 3. the Police Facts Sheet showing that: 1. Patient A had no means of travelling to local shops to purchase items and no way of attending Canberra for shopping; 2. Patient B's son was responsible for purchasing Patient B's clothing and no other person had permission to possess or use Patient B's card; 1. the practitioner's letter to the Magistrate admitting that she used Patient A's card and Patient B's card; 2. the practitioner's response dated 6 June 2023 to the Commission, admitting that she used the cards belonging to Patient A and Patient B.
5. We find that the evidence establishes that the practitioner engaged in the conduct as alleged and particularised.
6. We now turn to consider whether the conduct meets the threshold of "improper or unethical conduct relating to the practice or purported practice of nursing" under s 139B(1)(l) of the National Law, to support a finding that the practitioner has been guilty of unsatisfactory professional conduct.

The meaning of "improper" and "unethical"

1. The words "improper" and "unethical" are not defined in the National Law. The assessment of what constitutes "improper" or "unethical" conduct is based upon the ordinary meaning of those words.
2. The word "improper" was considered by the High Court of Australia in Parker v Comptroller of Customs (2009) 83 ALJR 494; [2009] HCA 7 where French CJ stated: "… [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong." "
3. In Liu at [51], the Tribunal considered the meaning of "improper" with reference to the Macquarie dictionary: "The Macquarie Dictionary defines improper as follows: 1.not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2.not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3.unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4.abnormal or irregular."
4. Again, in Liu at [52], the Tribunal considered the meaning of "unethical", with reference to the Macquarie dictionary: "Unethical is defined as follows. 1.contrary to moral precept; immoral. 2.in contravention of some code of professional conduct."
5. In the professional disciplinary context, there is some overlap between "improper" and "unethical": Health Care Complaints Commission v Aref [2018] NSWCATOD 133 ('Aref') at [19].
6. The test of whether conduct is "improper" is an objective one: Liu at [54]. "Improper" conduct includes conduct that is not in conformity with standards of professional conduct that would be expected by reasonable persons with knowledge of the duties, powers and authority of a person in the position of the practitioner: Aref at [20].
7. Conduct that is "improper" has a tendency to bring the profession into disrepute or reduces public confidence in the profession: Liu at [55].
8. It is not necessary for the Tribunal to be satisfied that the conduct is intentional, to find that is "improper": Aref at [19].
9. The gravity of the conduct in question must be measured against the extent to which it departs from proper standards, and not by reference to the worst cases: Aref at [21], applying Litchfield at [638].
10. Under the Code of Conduct for Nurses, practitioners are required to abide by relevant laws. Under Principle 1, dealing with legal compliance, clause 1.2 requires nurses to practise honestly and ethically. Under Principle 4 relating to professional behaviour, nurses are to embody integrity, honesty and respect.
11. By her own admission, the practitioner knew that her conduct was wrong. In her letter to her Honour, the practitioner stated: "… I cannot pretend that I didn't know what I was doing the whole time I was using her card … I got tempted to use the card more, and, shamefully, I did. I continued my disgusting behaviour and began using the card of [Patient A] … for groceries, petrol, and foods, etc."
12. Also by her own admission, the practitioner violated the trust placed in her to look after the most vulnerable people in our society.
13. The conduct was not opportunistic but involved repeated deliberate decisions over a period of more than two years to dishonestly obtain goods by deception. On each and every occasion that the practitioner used Patient A's card or Patient B's card, she stole from persons who were in her care, the very persons she was required to protect.
14. As Care Manager, the practitioner ought to have been well aware of her obligation to not steal patients' belongings, despite her assertion that the Facility did not have a clear policy on the use of residents' cards. Clause 1.2 of the Code of Conduct for Nurses provides: "Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must: a. respect the nurse-person professional relationship by not taking possessions and/or property that belong to the person and/or their family … … c. not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration."
15. On any view, the practitioner's conduct was abnormal, irregular and plainly wrong, and easily falls within the meaning of "improper". The conduct was dishonest, deceptive and fraudulent, and in breach of the professional behaviour and conduct expected of nurses to embody integrity and honesty. Honesty is an ethical value that reflects a person's truthfulness, sincerity and openness, yet the practitioner was engaging in crimes of dishonesty against the very patients she was obliged to protect. The practitioner's conduct was thus, plainly, "unethical".
16. Further, the conduct fell well below the standard expected of a registered nurse, charged with fulfilling the duties and responsibilities within the power and authority enjoyed by the practitioner in her role. The practitioner's conduct has the potential to bring the nursing profession into disrepute and reduce public confidence in the profession.
17. The seriousness of the conduct is aggravated by a number of factors including: 1. the vulnerability of the victims due to their age and cognitive diagnoses which were known to the practitioner who was responsible for their care and welfare; 2. the practitioner was in a trusted position of leadership; 3. the length of time of the offending; 4. the volume of transactions; 5. the practitioner's ongoing deception to participate in a 'fake' search for Patient A's card, knowing the card was in her possession; 6. the practitioner's attempt to cover up her offending, saying that she had "mistakenly" used the card and asking Patient A's son to not inform the Police.
18. We find that the practitioner engaged in improper or unethical conduct relating to the practice or purported practice of nursing and is guilty of unsatisfactory conduct under s 139B(1)(l) of the National Law.
19. We therefore find Complaint Two to be proven.

Complaint Three

1. Complaint Three (constituted by the particulars of Complaint Two) asserts that the practitioner is guilty of professional misconduct pursuant to s 139E of the National Law in that the practitioner engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounts to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
2. The evidence relied upon in support of Complaint Three is the same evidence relied upon in support of Complaint Two.
3. Under s 139E(a) of the National Law, "unsatisfactory professional conduct" of a sufficiently serious nature to justify suspension or cancellation of a practitioner's registration equates to "professional misconduct". In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the Court of Appeal per Basten JA regarded professional misconduct as merely a category of unsatisfactory professional conduct which is sufficiently serious to justify suspension or cancellation.
4. The practitioner's conduct in approaching Patient A's son, asking him to not notify Police, demonstrates that she was acting surreptitiously, to avoid detection. She used the bank cards of Patients A and B knowingly, deliberately and persistently. The conduct was extensive, for more than two years, and involved a significant amount of money. The conduct was contrary to the interests of two residents in the Facility and their respective families, as well as the nursing profession and the community at large.
5. For the reasons given above, we find that the conduct in Complaint Two is of a sufficiently serious nature to meet the threshold of "professional misconduct" under s 139E of the National Law, to justify suspension or cancellation.
6. We therefore find that Complaint Three is proven.

Justification for cancellation of the respondent's registration

1. We now consider whether or not the practitioner's conduct warrants suspension for a specified period or cancellation of her registration.
2. In these proceedings, the Commission submitted that the practitioner's registration ought to be cancelled, and argued that there were two grounds to support their submission: 1. first, if the practitioner is found guilty of professional misconduct, her registration ought to be cancelled pursuant to s 149C(1)(b) of the National Law; 2. in the alternative, the circumstances of the offence for which the practitioner was convicted rendered her unfit in the public interest to practise nursing, thereby justifying cancellation of her registration pursuant to s 149C(1)(c) of the National Law.
3. In determining what protective orders are appropriate, the paramount consideration is the protection of the health and safety of the public.
4. The national scheme provides for the protection of the health and safety 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) of the National Law.
5. When making protective orders, we also have regard to the following recognised principles: 1. maintaining the standards of the profession, to preserve public confidence in the integrity of the nursing profession and thereby protect the community: Prakash at [91]; 2. deterring both the practitioner and others from engaging in similar conduct, to maintain professional standards and thereby ensure public safety and faith in the profession: Litchfield at [637]; 3. protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; 4. whilst the Tribunal's jurisdiction is primarily protective and not punitive, it is unavoidable that protective orders may be incidentally punitive: Clyne at [201]-[202]; Litchfield at [637]; Liu at [42] and Meneghetti at [97]; Lee at [20] and [31] and Meneghetti at [98].

Cancellation on the ground that the practitioner is guilty of professional misconduct under s 149C(1)(b)

1. We firstly consider our finding of professional misconduct and whether it justifies cancellation of the practitioner's registration.
2. We are of the view that the practitioner's improper and unethical conduct is so incompatible with what is an acceptable standard of behaviour for a registered nurse, that cancellation of Ms Mosca's registration is warranted under s 149C(1)(b) of the National Law.

Cancellation on the ground that the circumstances of the Offences render the practitioner unfit in the public interest to practise nursing: s 149C(1)(c)

1. Notwithstanding our finding that cancellation of the practitioner's registration is warranted on the grounds of her professional misconduct, we also consider whether her conviction and the circumstances of her offence render her unfit in the public interest to practise nursing, such that, on those alternative grounds, cancellation of her registration is also warranted.
2. A number of Tribunal cases have considered the phrase "unfit in the public interest to practise the practitioner's profession", since it is not defined in the National Law.
3. Written submissions made on behalf of the Commission helpfully summarised how the phrase is interpreted. We adopt some of those submissions as set out below: "c. whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offence 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: HCCC v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]; d. whether a practitioner is unfit in the public interest to practise 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 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 continues 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: HCCC v Wood [2020] NSWCATOD 60 at [17]-[23]; e. Whether a practitioner is unfit in the public interest to practise 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 rehabilitation. 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: HCCC v Limboro [2018] NSWCATOD 117 at [22]."
4. In its Written Reasons for Decision dated 24 March 2023, the Council found that the extent of the deception by the practitioner who occupied a senior position of trust against the most frail and vulnerable persons in the community, warranted suspension of her registration in the public interest pending referral of the matter to the Commission: "The alleged deception occurred whilst Ms Mosca was employed in a senior position of trust, with very limited practical oversight and with the organisations (sic) own documents reflecting their confidence in her professionalism and adherence to policy and procedures. We considered that the practitioner was a registered nurse in a position of leadership and management in the facility and in the local community, and it is even more critical in these circumstances that she would demonstrate the highest levels of professional conduct. The alleged victims in these circumstances are some of the most frail and vulnerable persons in the community with cognitive and age related impairments requiring the support and care of a registered health practitioner. It would be fair to consider these residents to be of high risk of experiencing financial abuse, and it would be expected a senior clinician and manager would take responsible steps to protect residents against this, and not be the perpetrator."
5. Further, the Council reflected on the right of the community and patients to be able to trust those providing care and the risk that the practitioner's behaviour posed to vulnerable elderly residents with cognitive impairments and their susceptibility to financial abuse. The practitioner was found to have significantly breached the standards of professionalism, ethics and respect for vulnerable patients which is central to the practice of nursing.

AHPRA's Registration Standard: Criminal History

1. In assessing whether the nature of the conviction and the circumstances in which it was perpetrated render the practitioner unfit in the public interest to practise nursing, we consider AHPRA's "Registration Standard: Criminal History" (1 July 2015). This standard sets out ten factors relating to a practitioner's criminal history that the National Board considers may be relevant to determining their registration. Those factors are considered below: 1. The nature and gravity of the offence and its relevance to health practice 1. In sentencing the practitioner, Magistrate Beattie noted that Ms Mosca had obtained the cards of Patient A and Patient B because of her job. Her Honour referred to the seriousness of the practitioner's repeated offending, knowing it was wrong: "…every time you used those cards you are effectively stealing from those vulnerable people. You did not stop, you just kept on using them. You say the first time you used it was a mistake and I accept you on that because you have a card from the same bank and after that you knew, and you knew every time what you were doing was wrong but you kept going with it. That is really serious." 1. Her Honour noted, further, the seriousness of the dishonesty with reference to a number of aggravated factors being the vulnerability of Patient A and Patient B, the practitioner being in a position of trust, the length of time of the offending and the number of transactions involved. 2. Apart from her actual use of the cards, the gravity of the practitioner's dishonesty is exacerbated by a number of matters that give cause for concern: 1. The practitioner's acknowledgment of her offending conduct only came about because a suspicion was raised by Patient A's son, and not because the respondent decided at her own volition to arrest her behaviour and confess to her crimes. The number of transactions accredited to her dishonest use of the cards in the names of Patient A and Patient B demonstrates that the respondent was using the cards habitually and frequently, with no sign of abatement. Had it not been for that intervening event, the conduct is likely to have continued. 2. Even though the practitioner knew she had Patient A's card in her possession, she participated in a 'fake' search with Patient A's son in his mother's room in the Facility. 3. Upon realising her dishonesty would soon be discovered, the practitioner described her usage of the card to Patient A's son as "mistaken". Even at that point of admission, the practitioner was behaving dishonestly. 4. The practitioner sought to keep her conduct concealed, by asking Patient A's son to not notify the Police. Asking Patient A's son to conceal the practitioner's own crime adds another layer of deception. 5. Despite the circumstances surrounding the discovery about her use of Patient A's card, the practitioner still held onto the bank card in the name of Patient B until it was located by Police when conducting a search of her purse. She had not sought to return that card to Patient B or voluntarily surrender it to Police. 1. As pointed out by the Council in its s 150 decision, the gravity of the offending conduct increases because the respondent was in a position of leadership and management, and was expected to model those standards. In a senior position, with very limited practical oversight as to how she carried out her duties, the respondent was trusted to care for and protect vulnerable patients and not be the perpetrator of abuse towards them: "We considered that the practitioner was a registered nurse in a position of leadership and management in the facility and in the local community, and it is even more critical in these circumstances that she would demonstrate the highest levels of professional conduct. The alleged victims in these circumstances are some of the most frail and vulnerable persons in the community with cognitive and age related impairments requiring the support and care of a registered health practitioner. It would be fair to consider these residents to be of high risk of experiencing financial abuse, and it would be expected a senior clinician and manager would take responsible steps to protect residents against this, and not be the perpetrator." 1. There is no question that the offending conduct is relevant to the practice of nursing under the National Law. The highest standards of professionalism, ethics and respect for vulnerable patients is central to the practice of nursing. 1. The period of time since the health practitioner committed, or allegedly committed, the offence At the time of these proceedings, approximately 18 months had passed since the last day on which the practitioner committed an offence by using the bank card of Patient B on 18 November 2022. Accordingly, we place a moderate amount of weight on the recency of the respondent's conduct when considering the appropriate period of disqualification from registration. 1. Whether a finding of guilt or a conviction was recorded for the offence We place a considerable amount of weight on the fact that the practitioner pleaded guilty and was convicted for the Offences. 1. The sentence imposed for the offence In imposing sentencing, the Magistrate took a number of subjective issues into account, including a Clinical Psychologist's report stating that the respondent was suffering from a mental health impairment that led to a temporary and ongoing disturbance of thought, mood, volition, deception and memory. In considering imprisonment, her Honour thought that the respondent was not a good example to stop other people from committing similar offences because of the circumstances of her mental health issues. Accordingly, her Honour considered it was appropriate for the respondent to serve her sentence in the community, under an Intensive Correction Order for 18 months, expiring on 13 October 2024. We note that under the Intensive Correction Order the practitioner is required to engage in Mental Health Counselling (as directed), however we do not have any further information on what that entails. 1. The ages of the health practitioner and of any victim at the time the health practitioner committed the offence 1. The practitioner was a mature adult aged 49 when she first started committing the offences and was aged 51 when they were discovered. She was not a person without life experience or education. Patient A was aged 85 and had been admitted to the Facility in 2018. Patient B was aged 78 and had been admitted to the Facility in March 2020. 2. The practitioner had been working as a registered nurse for more than 4 years when she first started using Patient B's card. The practitioner knew the victims were elderly, and since both Patient A and Patient B were in her care, she knew their vulnerabilities as a result of their diagnoses of Dementia. 1. Whether or not the conduct that constituted the offence has been decriminalised The conduct that constituted the Offences has not been decriminalised. 1. The health practitioner's behaviour since committing the offence The practitioner is still carrying out her obligations under the Intensive Correction Order and does not appear to have reoffended. 1. The likelihood of future threat to a patient of the health practitioner 1. The practitioner was interviewed by audio visual link on 15 March 2023 and assessed by Mr Sam Borenstein, Clinical Psychologist, for the purpose of preparing a psychological report for the criminal proceedings. Mr Borenstein opined that the practitioner was suffering a mental health impairment which led to a temporary and ongoing disturbance of thought, mood, volition, perception and memory, which impaired her emotional wellbeing, judgment and behavioural choices. Additionally, Mr Borenstein noted at the time of his report that the practitioner was receiving antidepressant medication and had been referred for psychological treatment. Mr Borenstein thought that the practitioner's likelihood of reoffending was significantly reduced because of her level of remorse and the absence of criminogenic tendencies. 2. We have attached very little weight to Mr Borenstein's assessment of the likelihood of the practitioner repeating her conduct. The practitioner declined to participate in the hearing and we were not able to ask her about the nature of mental health counselling she was undertaking, or her reflections on her conduct and her insight into the impact of her conduct on the patients, their families and the community. We were unable to assess the likelihood of her rehabilitation. 1. Information given by the health practitioner 1. The practitioner's letter addressed to the Magistrate (undated, but presumed to have been written shortly before the sentencing hearing on 14 April 2023) addressed her personal circumstances in considerable detail. It contained a statement that the practitioner regretted breaching the standards of professionalism, ethics and respect for vulnerable patients. She apologised for the "trouble" she caused to the families of Patient A and Patient B. She described her actions as "disgusting" and acknowledged she had violated the trust in her to look after the most vulnerable people in our society. 2. In our view, the letter predominantly focused on the practitioner's difficult financial circumstances to explain and seek to justify why she was tempted to use the cards. 3. In terms of explaining when the practitioner first started using Patient B's card, the practitioner attempted to deflect blame on other staff for putting lost and found items on her table without formal documentation or handover procedures. She also blamed her employer for not having a clear-cut policy on using resident's cards for their own benefit (meaning the benefit of the residents). The difficulty with those submissions is the practitioner has failed to explain how a bank card placed on her table would then find its way to be in her personal possession (whether there had been formal documentation or a handover procedure or not). Further, a policy on using resident's cards for the benefit of residents lends nothing towards explaining how such a policy would negate the behaviour of a nurse who uses a resident's card for their own personal benefit (rather than the resident's benefit). This deflection of blame suggests the practitioner has not genuinely accepted responsibility for her conduct. 4. Overall, the letter of around 20 paragraphs, is written from the perspective of the consequences for the practitioner: "So, I found out that I had the resident's cards, I continued using them for my personal expenses such as groceries, goods and petrol. I knew that continuing to use [Patient A and Patient B's] card was wrong, it was a horrible action which has changed my whole life upside down and brought unimaginable torment. The irony of all this as well is that I am now in a worse financial position than I was when all of this started." 1. The practitioner's letter dated 6 June 2023 to the Commission was quite short. It stated that she had pleaded guilty, was convicted and had been sentenced to be served by way of Intensive Correctional Order. The letter expressed her remorse for betraying the trust of the residents, the facility and the nursing profession as a whole. The letter contained the following paragraphs about her reflections: "As part of my reflective process, I am doing continuing professional development, focusing on reminding myself of the importance of trust and honesty. In August 2023 I will commence a unit of study at the Australian Catholic University - Health Care Ethics, Principles in Practice which will help me, through the reflective process, to improve my ethical values not only in my practice as a nurse, but in my life generally." 1. The practitioner's email dated 9 March 2024 to the Commission is extracted below: "Thank you for the opportunity to respond on the matter, however the Local Court in Yass already handed a decision convicting me of the crime of fraud last April 14, 2023 after I pleaded guilty. In this regard I am not sure what to say or do as I am now without a lawyer to advise me (or capable of getting one due to financial constraints). My nursing registration was suspended thus, was out of my nursing job since and currently doing part time jobs to help my husband in paying bills. I am under Intensive Correction Order for 18 months as punishment by the Magistrate in Yass Local Court of my wrongdoing which I am now undertaking. Hope this letter gives you an insight of what depressing situation I am right now. With my situation, I am so remorseful of what I have done and has affected me and my family." 1. The practitioner's email of 9 July 2024 to the Tribunal expressed remorse for her action. The correspondence does not contain any insight into the effect of her conduct upon the residents, their families, the nursing profession or the community. It is written from the perspective of the impact of the practitioner's action upon her own life, and the impact upon her family. 2. The practitioner provided copies of three references that had been prepared for use in the criminal trial, asserting that all of her referees were aware that she proposed to submit them for use in the proceedings before this Tribunal: 1. from Mr John Hedges, a character reference dated 28 March 2023, stating that he trusted her to make decisions in the best interests of his wife who was a resident of an aged care facility where the practitioner worked, and attesting to the practitioner's dedication to her work; 2. from Ms Peta-Jane Hewlett, a reference dated 20 March 2023, stating that in her opinion the practitioner's offence was "totally out of character" and describing the practitioner as compassionate, reliable and trustworthy; 3. from Ms Lynette Sainsbury, a character reference dated 23 March 2023, stating that the practitioner was a colleague and friend whose professional credibility and leadership in the workplace was outstanding, as was the standard of care that she gave to all residents. 1. We accept that the practitioner was well regarded by her work colleague. We find the character references to be of limited assistance. They were provided before the practitioner was convicted and sentenced, and have not subsequently been refreshed or tested. 1. Any other matter of relevance The practitioner's election to not engage with the Council or the Commission, or these proceedings demonstrates a reluctance to come to terms with the gravity of her criminal conduct and the impact upon the victims, their families, the reputation of the Facility, and the reputation of the nursing profession. We hold concerns that the practitioner does not have an appreciation of the conduct and behaviours expected of nurses (as articulated under the Code of Conduct for Nurses).
2. It appears to this Tribunal that the practitioner's predominant focus in her letter to the Magistrate was on the subjective circumstances of her impoverished upbringing and financial stress, as well as the impact of the consequences of her offending upon herself and her family. Overall, we are not persuaded that the practitioner has genuinely reflected on the gravity of her offending, the impact of her offending on the victims of her crime, or the reputation of the nursing profession.
3. Whether a practitioner is unfit in the public interest to practise may include consideration of whether the practitioner's criminal offence exhibits traits in the practitioner inconsistent with the practise of an honourable profession: Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 ('FLJ') at [93].
4. Applying the rationale in FLJ, we have concerns about the character traits exposed in the practitioner, particularly with respect to her attempts to mislead and hide her conduct. We have found that the practitioner's conduct breached the fundamental values of integrity and honesty under the Code of Conduct of Nurses. Her crimes of dishonesty exploited the very people she was engaged to protect, and exhibits traits in the practitioner that are inconsistent with the practise of the honourable profession of nursing.
5. Having regard to the evidence before us, and our consideration of AHPRA's factors, we find that the conviction and the circumstances of the offence render the practitioner unfit in the public interest to practise nursing, justifying as an additional ground, cancellation of her registration.

Period of non-review

1. The Tribunal has the power and discretion to set a non-review period with respect to an order cancelling a practitioner's registration. The purpose of setting a non-review period is to protect the health and safety of the public. The effect of setting a non-review period is that a practitioner may not make an application for review of the cancellation order during the non-review period: s 163A(3) of the National Law.
2. At the end of the non-review period, the practitioner is entitled to make an application to the Tribunal for reinstatement: s 163A(1) of the National Law.
3. The paramount consideration when determining the length of time set by a non-review period is the protection of the health and safety of the public. The duration of the non-review period indicates the minimum period within which the Tribunal considers the practitioner should not be able to practise their profession by sending a clear message of denouncement of the offending conduct to the practitioner, the nursing profession and the public about professional standards to be maintained.
4. We agree with the Commission's submission that a non-review period is needed in the circumstances of this case. We are of the view that the non-review period will allow Ms Mosca further time to demonstrate whether: 1. she has gained genuine insight into the gravity of her conduct and its impact upon the residents, the public, the reputation of the nursing profession; 2. she has undertaken appropriate rehabilitation to identify and address her risk factors; 3. she has completed meaningful further education, particularly to address ethical professional conduct; 4. her character is truly reformed, such that she can demonstrate her worthiness to hold registration and reliability that she will behave honestly and ethically in the future.
5. The decision on the period of time during which a practitioner may not apply for review, is dependant on the facts and circumstances of each case. The predominant consideration is the protection of the public: Lee at [23]-[24]. The non-review periods imposed in previous Tribunal decisions do not set a benchmark for subsequent cases: Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 ('Elshaimy') at [47].
6. The Commission referred the Tribunal to a number of cases where protective orders were made against nurses who have used patients' credit cards, including: 1. Health Care Complaints Commission v Shrimpton (No. 2) [2019] NSWCATOD 48 ('Shrimpton') at [13], concerning a registered nurse who had used an elderly patient's credit card to make 5 personal purchases (each under $100.00) over a period of around one week, had her registered cancelled with a 3-year non-review period imposed, as well as a prohibition order; 2. Health Care Complaints Commission v Franco [2019] [2023] NSWCATOD 86, concerning a registered nurse and Care Director who had used an elderly patient's credit card to make multiple transfers over 4 years into her own bank account totalling around $165,000.00, had her registration cancelled with a 2-year disqualification period and a prohibition order.
7. In the case before us, the practitioner used the bank cards of not one, but two, patients who were elderly and vulnerable and were in the care of the practitioner, the conduct continued for around 25 months, the volume of transactions was consistently high, the practitioner initially sought to conceal her crime and avoid arrest, and involve Patient A's son in that attempted concealment. In the circumstances, where concern for the elderly and their susceptibility to abuse (including financial abuse) is well known to be one of the highest risk factors deserving protective action in aged care, the practitioner's conduct is particularly offensive. The general public needs to be confident that they are protected from this practitioner and to be confident that the conduct is strongly denounced.
8. The practitioner declined to attend the hearing which meant that the Tribunal had no opportunity to evaluate her disposition towards her criminal conduct and no opportunity to evaluate whether her rehabilitation was likely to be successful.
9. The Tribunal's comments in Shrimpton are equally appropriate when describing the nature and circumstances of the offence with which Ms Mosca was convicted, namely, that the conduct: "… strikes at the very heart of the integrity and ethical candour that the public are entitled to expect of the nursing profession. There was an absence of propriety, honesty and integrity in her practice. The gravity of her conduct in using the credit card of a frail and elderly patient extends to the surrounding circumstances and the breach of trust it involved."
10. On balance, for the reasons set out above, we consider that a non-review period of three years is appropriate in the circumstances of this case.

Prohibition order

1. The Commission also sought a prohibition order against the practitioner under s 149C(5) of the National Law, arguing that: 1. she poses a substantial risk to the health of the public because there is a concern she could use her nursing training to seek work as an unregistered health practitioner (such as an aged carer, assistant in nursing or disability worker) working with vulnerable patients and with limited supervision of her practice; 2. if she was permitted to provide health services as an unregistered practitioner during the period when her registration is cancelled, it would substantially undermine the protective purpose of the cancellation order.
2. The phrase "substantial risk to the health of members of the public" is not defined in the National Law. It has, however, been considered by the Tribunal to be a risk that is material and real or apparent on the evidence. It is not a risk that is without substance and is not merely speculative: HCCC v Brush [2015] NSWCATOD 120 at [96] and more recently in HCCC v Collins [2021] NSWCATOD 132 at [97].
3. The Commission put forward a number of arguments concerning the risk profile of the practitioner including that: 1. there was a risk that, because the practitioner engaged in deceptive conduct for a lengthy period of time, she may engage in that conduct as an unregistered practitioner in future; 2. she had demonstrated that she is predisposed to submitting to the temptation to use bank cards belonging to other persons for her own purpose which poses a danger to patients she may have access to in another healthcare setting where those patients may have cash or credit cards or valuables, and they may be asleep, sedated, unconscious, immobile or have cognitive or communication difficulties; 3. because she had compounded her deceptive conduct by minimising and attempting to conceal her offence to avoid an adverse outcome, she could not be trusted to tell the truth which is anathema to the proper conduct of health professions.
4. We accept the Commission's submissions as expressing a reasonable concern in circumstances where we do not have before us objective evidence that the practitioner has genuine insight into her offending conduct and its impact. We also have no information to confirm that she has embarked upon a rehabilitation program to address her risk factors (other than to note that under the Intensive Correction Order, the practitioner is required to engage in mental health counselling as directed).
5. On the evidence before us, we are of the view that the practitioner's past dishonest and unethical conduct does "pose" a potential risk if that conduct were to be repeated. We are also of the view that the risk posed is real and material. Further, the concern that she poses a substantial risk to the health of members of the public is not speculative, but has substance. The risk can be mitigated during the non-review period of the cancellation order, with a prohibition order.
6. Accordingly, we consider that a prohibition order under s 149C(5) of the National Law, for a period of 3 years, is reasonable and appropriate in the circumstances.

Awarding costs against the respondent

1. Under clause 13(1) of Schedule 5D in the National Law, the Tribunal has the power to order the respondent to pay the Commission's costs. Under clause 13(3A) of Schedule 5D, the Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the applicable legal costs legislation or on any other basis.
2. The Court of Appeal has affirmed that, as a general rule, costs of proceedings before the Tribunal should follow the event (that is, the successful party is entitled to receive their costs), and mere impecuniosity is not a justifiable reason for departing from that rule: Elshaimy at [47].
3. The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40] applied by the Tribunal in several decisions including HCCC v CSM [2016] NSWCATOD 125 at [98] and HCCC v Brush (No. 2) [2015] NSWCATOD 154 at [9].
4. The Tribunal accepts there has not been any disentitling conduct by the Commission to warrant a departure from the general rule. Accordingly, we have decided to order the respondent to pay the Commission's costs as agreed or assessed in accordance with the applicable costs legislation.

ORDERS

1. We make the following orders: 1. Pursuant to s 149C(1)(b) and s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW), the respondent's registration as a health practitioner is cancelled for a period of 3 years. 2. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW), the Tribunal makes a prohibition order prohibiting the respondent from providing health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for a period of 3 years. 3. Pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the respondent is to pay the Commission's costs as agreed or assessed in accordance with the applicable costs legislation.

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: 02 August 2024