Health Care Complaints Commission v Moslemi

NCAT Occupational|2019-11-29

re Complaints Commission [2010] NSWCA 194 NSW Bar Association v Meakes [2006] NSWCA 340 Nursing and Midwifery Board of Australia ("Board") v Rachel Corderoy [2019] WASAT 48 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Re Dr Than Le [2001] NSWMT, 20 September 2001 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mina Moslemi (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) NSW Nurses and Midwives' Association (Respondent) File Number(s): 2019/00171206 Publication restriction: Nil

REASONS FOR DECISION

The Respondent was first registered as a midwife in 2004. Between 18 June 2007 and 18 June 2015, the Practitioner worked as a registered midwife for Auburn Hospital.
On 25 October 2016, following various complaints against the Practitioner a Performance Review Panel was held which imposed conditions on the Practitioner's registration effective 8 November 2016. This complaint arises out of breaches of those conditions as set out in the Applicant's complaint (as amended) as follows: COMPLAINT ONE The Practitioner is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(c) of the Health Practitioner Regulation National Law (NSW) (National Law) in that she has contravened conditions to which her registration was subject. BACKGROUND The practitioner was first registered as a midwife in Australia on 31 March 2004. She was registered as a midwife at all material times. Between 18 June 2007 and 18 June 2015, the practitioner worked as a registered midwife for Auburn Hospital. On 18 April 2016, the practitioner commenced employment at Nepean Private Hospital. On 25 October 2016 a Performance Review Panel was held which imposed conditions on the practitioner's registration effective 8 November 2016. The conditions were as follows:

ONUS

It is trite that the onus of proof rests with the Applicant, the Commission. In considering whether the onus has been discharged, the Tribunal must be comfortably satisfied that that onus has been discharged: Briginshaw v Briginshaw (1983) 60 CLR 336.
At pages 362 and 363 Dixon J held: "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 or considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal in such matter "reasonable satisfaction" should not be produced by in exact proofs, indefinite testimony or indirect inferences … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and a reasonable satisfaction which in a subtle issue may, not must, be based upon a preponderance of probability it being that the nature of the issue necessarily affects the process by which reasonable satisfaction is obtained."

NATURE OF THE JURISDICTION

The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and to maintain proper standards in the profession of midwifery. In Clyne v NSW Bar Association [1960] HCA 40, the High Court said: "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."
As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order consequent upon a finding that a complaint has been proved is said to be protected [sic] of the interests of the public at large but more particularly patients or potential patients of the Practitioner concerned. However, the public interests include indirectly the standing of the medical profession and the maintenance of public confidence in the high standards … of Practitioners. There is also 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. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards, be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s 3A of the National Law.

APPLICANT'S OPENING

In opening the Applicant provided the Tribunal with two volumes of documents containing Tabs 1-99 and advised the Tribunal that it relied on the documents provided and an agreed Statement of Facts. Although the Respondent is currently not registered as a midwife, the Applicant submitted that, had the Respondent still been a registered midwife, in light of the allegations made and the admissions to those allegations by the Respondent, the Tribunal should find the Respondent guilty of unsatisfactory professional conduct and professional misconduct. It was then submitted that had the Respondent still been a registered midwife, the Tribunal would have cancelled her registration with a non-review period of two years.
The Applicant then indicated that it would not be calling any evidence but that they had required the Respondent and Ms McCormick to make themselves available for cross-examination.
With that the Applicant closed its case.
The Respondent opened its case and indicated that the Respondent abides by the agreed Statement of Facts but seeks from the Tribunal that she not be given a non-review period in respect of her guilty finding but that a reprimand would be more appropriate.

THE ISSUES

In essence therefore, the only real issues for the Tribunal are whether or not the Respondent is guilty of a breach of conditions imposed upon her initially by the Performance Review Committee and subsequently by the Council, and if so, what orders should be made in respect of those breaches.

MS McCORMICK'S EVIDENCE

The Respondent called Ms McCormick, a registered midwife who had worked extensively with the Respondent, to give evidence as a referee on behalf of the Respondent.
In cross-examination of Ms McCormick, the Applicant sought information about how the letter of reference was created and whether the Respondent assisted in the writing of that letter. Ms McCormick indicated that she had not had any assistance from the Respondent.
Cross-examination turned to whether or not Ms McCormick was aware of the reason for the need for a reference, to which she replied that she was not told the detail but that she was told that there was an investigation into the Respondent's behaviour and that she needed a reference for that purpose. She was asked whether she had been told by the Respondent that the Respondent had conditions placed on her practising certificate, to which she replied that she had not been told.
The Tribunal asked various questions of the witness, most particularly in regard to the culture then current at the Auburn Hospital. She indicated that it was a multicultural hospital but people were a little funny with some others. Not everyone was difficult and she never had a problem. She indicated that she is an Australian but that some of the people did not like foreigners. She indicated that the hospital is very busy, understaffed, but that the Respondent always did her job and managed everything she needed to do. She described very difficult working circumstances at the Auburn Hospital. Ms McCormick described the Respondent as a competent midwife. Ms McCormick was then released.

RESPONDENT'S EVIDENCE

The Respondent was called to give evidence and be cross-examined. It must be said that large parts of the Respondent's cross-examination related to issues that had in fact been admitted by the Respondent. The Applicant indicated that this was necessary in order to give the entire picture. However, in light of the admissions made by the Respondent, it is not essential for the purposes of this decision to list all the issues raised in the cross-examination of the Respondent, as much of the responses made by her go to confirmation of her admissions.
The Respondent spent a large part of her evidence and cross-examination aimed at drawing the Tribunal's attention to the severe difficulties under which she was operating when she breached her conditions of registration. In essence, her problems arose in two respects. Part of the conditions required her to undertake various educational modules to enhance her level of understanding and competence relating to her operation as a midwife. The balance of the breaches related to her working as a midwife not always under supervision, as required by the conditions imposed upon her. She also dealt with her working in a position where she had not informed her employers of the conditions which had been imposed upon her and requiring them to be able to report to the Council in respect of her activities.
In addition, it was alleged and admitted by the Respondent that she lied to the Council and to her employer on at least four occasions, either directly herself or by instructing her lawyer to convey information which was not true.
Her evidence was to the effect that some of the educational requirements were absolutely impossible for her to comply with unless she was employed. In addition, she indicated that unless she was employed, she would not be able to undergo a performance review in a live environment but would be obliged to undergo such performance review in simulated conditions which she found very difficult. Finally, she indicated that the performance review included answering a large number of questions in a time allocation which was insufficient. In essence and in summary, the evidence given by the Respondent in defence of her position was that she could not comply with the conditions imposed upon her licence, unless she was employed and for that reason, she was forced to take employment in circumstances which were in breach of her conditions and that it was the only option available to her.
She also indicated to the Tribunal the circumstances under which she had been working in Auburn Hospital which led to the complaint. This included bullying and an interpersonal breakdown in the relationship with her immediate superior. She informed the Tribunal that she had been working very happily at Auburn Hospital until 2013, at which time a new manager was appointed who treated her poorly with an implication that the situation was one of discrimination.

APPLICANT'S SUBMISSIONS

The Applicant pointed out that Part 8 of the National Law deals with complaints concerning health practitioners. The relevant principles include: 1. The protection of public safety and health is paramount - Section 3A of the National Law; 2. The Tribunal must consider the maintenance of standards of the profession, 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]; 3. Public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered - Section 3(2)(a) of the National Law; 4. Deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; 5. 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]; 6. The Tribunal's jurisdiction is primarily protective, not punitive - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; 7. It is unavoidable that protective orders may be incidentally punitive - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31]; 8. The Commission bears the burden of proof on the Briginshaw standard, requiring reasonable satisfaction on the balance of probabilities, having regard for the gravity and importance of issues to be determined - Lindsay v Health Care Complaints Commission [2005] NSWCA 356; 9. The Tribunal is not bound by the rules of evidence - Section 38(2) Civil and Administrative Tribunal Act 2013 and clause 2 of Schedule 5D of the National Law; 10. The Tribunal is subject to rules of procedural fairness - Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [75].
The Commission submits that the following factors are particularly relevant to the practitioner's conduct: 1. the need to protect the public by reinforcing high professional standards and denouncing transgressions; and 2. the maintenance of public confidence in the profession.
The Commission seeks findings under section 149 of the National Law that the subject matter of the complaints is proven and that the practitioner is guilty of unsatisfactory professional conduct and professional misconduct.

Complaint One

The Commission submits that: 1. it is a well-established principle that conditions of registration for medical practitioners must be "scrupulously observed" - Re Dr Than Le [2001] NSWMT, 20 September 2001 at [95] followed in many subsequent cases including: Health Care Complaints Commission v Dr Saeid 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]; 2. that principle has been confirmed by the Court of Appeal - Prakash v Health Care Complaints Commission [2006] NSWCA at [74]; 3. that principle also applies to nursing - Health Care Complaints Commission v Lopez (No 2) [2014] NSWCATOD 15 at [521]; Health Care Complaints Commission v Perceval [2014] NSWCATOD 38 at [168]; 4. when a nurse breaches a condition of registration it is of a very serious nature because it demonstrates a lack of insight into the need to act scrupulously with regard to professional obligations and to show proper respect to the requirements of the Council and because it is essential to the smooth operation of the system of regulation and discipline that practitioners comply with conditions placed on their registration.
On 8 November 2016, the conditions were imposed on the practitioner's registration ("the conditions"), which are set out in the Complaint.
Complaint One amounts to unsatisfactory professional conduct because: 1. The practitioner was well aware of her conditions. On about 9 November 2016, the practitioner received the Performance Review Panel decision and the conditions. If the practitioner had any doubt about when her conditions started, she could have asked her lawyer or the Council or looked up her conditions on the AHPRA website; 2. The practitioner was well aware of what the conditions required her to do. On about 10 November 2016, the practitioner received a letter from the Council which included a requirement to discuss her conditions with her employer immediately, find a registered midwifery manager/supervisor and provide a copy of her conditions to her nurse manager; 3. The conditions are easy to understand. If the practitioner was under any doubt about what the conditions required her to do, she could have asked her lawyer, the Council or her insurer; 4. On 12 April 2016, the practitioner signed the position description to accept an offer of employment as a registered midwife at Nepean Private Hospital. Her first shift was on 18 April 2016 and the Nepean Private Hospital Code of Conduct (available to her during her employment) clearly instructed her to comply with the laws which apply to her work; 5. The NSW Health Code of Conduct (available to the practitioner during her previous employment at Auburn Hospital), instructed her "report all changes in professional registration (such as the imposition of conditions on registration) to their manager"; 6. The practitioner clearly breached her conditions because she worked as a registered midwife at Nepean Private Hospital for a lengthy period between February and May 2017 when she was not supervised and she had not told Nepean Private Hospital about her conditions; 7. The practitioner worked on 44 shifts after the conditions were imposed (7 dates in February 2017, 13 dates in March 2017, 15 dates in April 2017 and 9 dates in May 2017) so the breach is not an isolated event; 8. The practitioner was not subject to direct or indirect supervision for any of her shifts after the conditions were imposed (in breach of Condition 1); 9. The practitioner was the back-up midwife for the delivery suite for 18 of her shifts after the conditions were imposed without direct supervision (in breach of Condition 1); 10. The practitioner was the team leader in charge for 16 of her shifts after the conditions were imposed (in breach of Condition 2); 11. The practitioner kept working as a registered midwife at Nepean Private Hospital for several months after the conditions were imposed so she had ample opportunity to tell her employer about her conditions but chose not to. Nepean Private Hospital remained unaware of the conditions until notified by the Commission on 15 March 2018; 12. The practical effect of breaching Conditions 1-3 was that the practitioner provided midwifery care to patients and babies without supervision; 13. The practical effect of breaching Conditions 4 and 5 was that the practitioner's employer did not know about the conditions so could not notify the Council of any breaches of the conditions; 14. The practitioner was paid for each date that she worked as a registered midwife at Nepean Private Hospital so she received a financial benefit from continuing to work after her conditions were imposed; 15. The practitioner must have known that the conditions were imposed on her registration due to concerns about her clinical care. Patients have a right to expect that nurses who care for them will strictly comply with conditions on their registration. The practitioner chose to put her own financial interests above the interests of her patients.

Complaint Two

Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of midwifery.
It is well established that lies to the Council can constitute improper or unethical conduct. (See Health Care Complaints Commission v DAC [2017] NSWCATOD 98 at [102] and [120], Health Care Complaints Commission v Cakan [2018] NSWCATOD 5 at [136] and Health Care Complaints Commission v Hanna [2018] NSWCATOD 113 at [104] (lying to the Council's section 150 delegates) and Health Care Complaints Commission v XC [2015] NSWCATOD 9 at [103] (lying to the Medical Board and the Council appointed expert).) Lies about employment history (Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 at [88]) and concealing information from the Council can also constitute improper or unethical conduct.
Complaint Two has four particulars about false or misleading statements made on four separate dates.

Particular 1 - 26 October 2016

Particular 1 is about an email which the patient instructed her legal representative to send to the Council, the day after she attended the Performance Review Panel, to the effect that she undertook to do no further shifts at Nepean Private Hospital.
Particular 1 is: On 26 October 2016, the practitioner instructed her legal representative to make a statement to the Council that she was resigning from Nepean Private Hospital and would complete no further shifts, which was false or misleading in circumstances where she then continued her employment at Nepean Private Hospital.

Complaint Three

Complaint Three is that the practitioner is guilty of professional misconduct under section 139E of the National Law.
The evidence which establishes Complaint Three is the evidence which establishes Complaint One and Two. Complaints One and Two, and the particulars thereof, are relied upon individually or cumulatively.
Complaint Three amounts to professional misconduct because: 1. The practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; 2. The practitioner has 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.
The Commission submits that having regard to the evidence, the Agreed Facts and the admissions in the practitioner's statement, the Tribunal should find that each particular in the Amended Complaint is made out, that the subject matter of the complaint is proven and make findings of unsatisfactory professional conduct and professional misconduct.

RESPONDENT'S SUBMISSIONS

In oral submissions the HCCC made reference to the Respondent characterising her conduct as a "mistake". It was submitted that the use of the word mistake by the Respondent was not said to make light of the conduct. She used the word mistake to inform the Tribunal of her understanding of the graveness of her conduct as being an act or judgement that is misguided or wrong - which is the meaning of the word mistake.
In relation to the reference of midwife Frances McCormick - the HCCC had submitted that Ms McCormick's letter dated 1 July 2015 should be given little weight because the Respondent did not inform her of the full extent of the investigation being undertaken by Auburn Hospital. Ms McCormick said she was aware there was an investigation into the Respondent's clinical practice.
It is submitted that when a practitioner is being investigated by their employer, they are required to keep the content of the investigation confidential. They are directed not to discuss the investigation so it was not surprising that Ms McCormick did not know much more than that there was an investigation on foot. Also, it has been approximately 5 years since the commencement of that investigation and her memory may not have been clear on those details.
In relation to the references provided at Tab 9, those references were tendered to demonstrate to the Tribunal that the Respondent was able to obtain clinical references from other practitioners that attested to her skills as a midwife in light of the clinical allegations made against her in 2015. It is a matter for the Tribunal to consider the weight of these references in light of the background of these allegations and the evidence of exclusion and bullying that has come to light in this proceeding.
It is submitted that the Respondent has, in the time she has not been working as a midwife, developed considerable insight into the reasons why she was initially terminated and ultimately resigned from Auburn Hospital. The fact that she has denied the allegations of poor clinical care does not equate to her having limited insight.
In the Respondent's evidence she said she has spent many hours reflecting on why she had the problems at Auburn Hospital. She said when she first started at Auburn she was very much looking forward to caring for the midwifery patients and their babies. She said in hindsight she had a communication problem with some of the staff in the maternity unit and she now understands she should have behaved differently as she effectively isolated herself from the staff. She said she regretted she behaved in a manner that led to her being isolated. She did try to address it at the time by going to staff counselling which unfortunately didn't work. It is submitted that she has learned much from the Auburn experience in how to communicate with her colleagues. It is noted that she did not have a similar issue with her colleagues at Nepean Private Hospital.
In relation to limited evidence of insight due to allegations of poor clinical care, the Respondent continues to undertake continuing professional development in midwifery. In her oral evidence the Respondent said education has always been important to her and she has been consistently educating herself in the time she has not worked, in different aspects of patient care, for example a Masters Degree in clinical leadership. The beginnings of developing insight are demonstrated in her self-reflection log completed and received by the Nursing and Midwifery Council (NMC) in January 2015.
In her oral evidence the Respondent reflected on her error in judgement in not complying with the conditions on her registration. She said she was sorry for this conduct, embarrassed and frustrated by the NMC process regarding the education conditions and not complying with the conditions was a mistake. She said when the conditions were imposed she was: "Coming out of work, scheduled for an operation, sister dying, I wasn't myself, didn't know what to do..."
Since that time the Respondent has developed insight which, it is submitted, comes with time, lengthy reflection and engaging in positive endeavours. For example, when the Respondent was rejected from the unit of study in ethics at Deakin University she was open and keen to find another course which she did, which she completed and enjoyed.
It was clear from her oral evidence that she is now much more insightful in her understanding of why she breached her conditions and why the Tribunal can be confident this will not happen again.
The HCCC seeks a Prohibition order in the event the Tribunal determines a non-review period is appropriate. It is submitted that there is no evidence to suggest that the Respondent would work while she is not registered to practise. There is no evidence she has worked as a midwife since the NMC ordered she was "not to work until reviewed by the NMC and this condition is removed".

RESPONDENT'S SUBMISSIONS IN REPLY

The Respondent referred to the matter of Nursing and Midwifery Board of Australia ("Board") v Rachel Corderoy [2019] WASAT 48. The State Administrative Tribunal made findings at [60] to [66] that Ms Corderoy: 1. Was aware she had conditions on her registration; 2. Breached Condition 1 on her registration by administering medication without the direct supervision of a registered nurse on 13 separate dates; 3. Breached Condition 2(a) by failing to inform Health Sonic, her new employer she had conditions on her registration; 4. Breached Condition 2(b) by failing to inform the Council of the name and contact details of her new employer so the new employer was unaware to contact the Council in the event of a breach of the Conditions or unsafe practice.
At [71] to [72] the Board alleged that Ms Corderoy was dishonest in that: 1. She failed to advise Health Sonic of the Conditions prior to commencing her employment or at any stage prior to being stood down from her employment; and 2. On 25, 26 and 27 October 2017 she told Health Sonic she was not aware of the Conditions when she had previously acknowledged the conditions imposed on her registration in various emails to the Council...
The Western Australian State Administrative Tribunal ("WASAT") found the allegation that Ms Corderoy ... was dishonest are "part and parcel of the Board's allegation that Ms Corderoy breached the Conditions".
At [73]: "The Tribunal cannot be satisfied that Ms Corderoy's breach of the Conditions which occurred in connection with her profession as an enrolled nurse supports the conclusion put forward by the Board that she is not a fit and proper person to hold registration in the nursing profession. In other words, the Tribunal finds that Ms Corderoy did not behave in such a way that constitutes professional misconduct."
It is submitted that the facts of this recent case of Ms Corderoy are strikingly similar to this matter of Ms Moslemi. WASAT were required to make findings about Ms Corderoy's breach of Conditions, similar to those breached by Ms Moslemi and her dishonesty.
Whilst this Tribunal is not bound by this decision, it is submitted that this Tribunal consider the methodology used by the WASAT in the Corderoy case when considering findings to be made against Ms Moslemi.
Section 139B(1)(I) has been considered in cases such as Health Care Complaints Commission v Ryken [2016] NSWCATOD 58; Qasim v Health Care Complaints Commission [2015] NSWCA 282; King v Health Care Complaints Commission [2011] NSWCA 353; Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192 and Lindsay v Health Care Complaints Commission [2010] NSWCA 194.
Such cases suggest that this subsection has been used to allege that the conduct is improper or unethical if the conduct is sexual or is exploitative or threatening of patients. It is not suggested that the subsection is limited to these kinds of allegations, but the matters before the Tribunal are directed at Ms Moslemi's judgement at the time she breached her conditions and do not reach the threshold of unsatisfactory professional conduct.
In respect of protective orders the Respondent set out the legal principles as follows.
The Tribunal has a wide discretion and general powers under section 149A(1) of the National Law to make any one or more of a range of protective orders upon a finding that the subject matter of a complaint has been proved: 1. caution or reprimand the practitioner; 2. impose the conditions it considers appropriate on the practitioner's registration; 3. order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); 4. order the practitioner to complete an educational course specified by the Tribunal; 5. order the practitioner to report on the practitioner's practice at the times, in the way and to persons specified by the Tribunal; 6. order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
The Tribunal may also impose a fine under s 149B but only in the limited circumstances referred to in s 149B(2)(b).
In addition, the Tribunal may suspend or cancel the practitioner's registration under s 149C(1).
In Clyne v NSW Bar Association (1960) 104 CLR 186 it is stated that "protective orders are not intended to punish the practitioner but to protect the public". In NSW Bar Association v Meakes [2006] NSWCA 340 at [113] it is stated that "no order should be made which has more serious consequences for the practitioner than is reasonably necessary to promote the protective purpose".
The decision of the Medical Tribunal in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] sets out the applicable principles in determining protective orders: [88] In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) 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 - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - 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 v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]. [89] Although the Tribunal has concluded that Dr Della Bruna's conduct was of a sufficiently serious nature to justify suspension or cancellation of her registration, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the present case. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 was a decision under the Medical Practice Act 1992 (NSW) but the relevant provisions of that Act are substantially the same as the applicable provisions of the National Law and the Court of Appeal's reasoning is equally applicable to the present case. At [67] it was held: … However, it is clear that the definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify such an order of suspension or cancellation, whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss60-64, which are substantially the same as ss 149 to 149C of the National Law, which provide that the full range of disciplinary powers is available on a finding of professional misconduct. … [90] In Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3, the Medical Tribunal said at [200]: The authorities also clearly establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit, for a protective purpose, this Tribunal needs to find that the practitioner is probably permanently unfit to practice: see Ex Parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424 - 425 (Latham CJ, Dixon and Williams JJ (Rich and Starke JA dissenting)); The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987 unreported), (Kirby P, Mahoney and McHugh JJA).
In respect of protective orders, the Respondent submitted that any protective orders imposed should be meaningful, constructive and relevant to Ms Moslemi's practice as a midwife to achieve the protective purpose and submitted that a reprimand would be an appropriate order which acts as a deterrent to repetition.
The Respondent submitted that the cancellation of Ms Moslemi's registration will be pecuniary in nature, harsh, unreasonable and would not serve the public interest.
In respect of costs, in the decision Health Care Complaints Commission v XC [2015] NSWCATOD 9 at [125]-[129] the Tribunal sets out the relevant statutory provisions and legal principles to be applied in respect of costs applications in disciplinary proceedings. At [132] the Tribunal considered the practitioner's actions in conceding the complaint when determining costs.
In Health Care Complaints Commission v Rolleston [2013] NSWMT 12 (17 May 2013), the Tribunal observed, "It is the conduct in the course of the proceedings and the result, which are in our view relevant."
Whilst it is accepted that the HCCC properly brought these proceedings, it is submitted the one factor that militates against the recovery of costs in this matter is the fact that Ms Moslemi admitted to all of the Particulars prior to the hearing.
Based on the statutory provisions and legal principles to be applied in respect of costs applications in disciplinary proceedings, the Respondent submits that an order be made that each party pay its own costs.

DECISION AND REASONS

Having read the evidence contained in the exhibits provided by the Tribunal and having heard the evidence of the Respondent and having taken account of the Applicant's and the Respondent's submissions, the Tribunal is comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct.
The Tribunal is satisfied that the central issue in this case is whether the Respondent should be entitled to continue practising as a midwife and what disciplinary action would be appropriate in the particular circumstances of the matter.
In coming to this conclusion, the Tribunal was faced with the fact that a series of breaches by the Respondent were made knowingly, she having been fully aware of the conditions imposed upon her licence and lied in respect of significant issues relating to the breaches which she had knowingly undertaken by accepting work without conveying to her employer the fact and detail of her conditions and lying in order to cover that up.
The Tribunal was fully aware from the evidence provided to it of the circumstances behind the imposition of those conditions and the Tribunal had a great deal of sympathy for the Respondent by virtue of the manner in which the complaint arose, the manner in which it was dealt with by Auburn Hospital and subsequently the difficulties which the Respondent found herself in trying to comply with the conditions relating to education in circumstances where she could not find employment. That being said, the Tribunal was faced with a clear case of a breach of conditions and conduct contrary to the standards expected of a midwife of the level of experience and knowledge of the Respondent and as such, believes that the appropriate decision is that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct.
The Respondent sought to rely on the WA case of Corderoy. However, the Tribunal was of the view that that case is significantly distinguishable from this matter. In that case, the Tribunal defined the dishonesty by the failure to advise. In this case, the Respondent took active steps to lie and instructed lawyers to lie on her behalf. This is regarded by the Tribunal as significantly more serious.
The Tribunal was impressed by the various references given by colleagues and medical practitioners with whom the Respondent had worked and believes that they indicate that the Respondent is a good and competent midwife. However, as has been pointed out by both the Applicant and the Respondent, the role of the Tribunal is not only the protection of members of the public, but includes the good standing of the profession and the message that needs to be sent to members of the profession that behaviour of this nature will not be tolerated.
In the circumstances, the Tribunal is satisfied that, had the Respondent still been a registered midwife, it would have cancelled her registration and provided for a non-review period and, therefore, provides a non-review period of one year which the Tribunal believes is appropriate and necessary to send the message to the profession and the public that the protection of the standing of the profession is significant. It also allows for the Respondent to do whatever may be necessary to achieve a result that immediately on expiry of her non-review period, she will be in a position to make an application to continue to practise as a midwife.
In respect of costs, the Tribunal believes that in light of the denial of unsatisfactory professional conduct or professional misconduct, a matter which the Tribunal believed it was obliged to prove in order to achieve a non-review period that the Applicant is entitled to recover its costs of the conduct of this matter.
Accordingly, the Tribunal makes the following orders:

ORDERS 1. The Respondent is guilty of unsatisfactory professional conduct and professional misconduct. 2. The Respondent shall not be entitled to apply for registration as a midwife for a period of one year from the date of this order. The Tribunal requires the National Board with which the Respondent was registered to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. 3. The Respondent be subject to a prohibition order which will prevent her from providing the following health services on a public, private or volunteer basis until she is re-registered as a midwife: 1. medical hospital, nursing or midwifery services; 2. mental or community health services; 3. health education services. 1. The Respondent shall pay the costs of the Applicant as assessed or agreed.

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 22 May 2020 - Order 2 amended. "The Tribunal requires the National Board with which the Respondent was registered to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board" added. 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: 22 May 2020

Medical Practice Act 1992(NSW)

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Judgment (19 paragraphs)

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Legislation Cited (2)

Cases Cited (29)

Cited By (4)