Health Care Complaints Commission v Mukonoweshuro [2025] NSWCATOD 90;

1. For the reasons set out herein, we have found that the complaints are proven. Pursuant to s 149C(1)(b) and s 149C(1)(c) of the National Law, we decided to cancel the practitioner's registration, because the practitioner is guilty of professional misconduct and the circumstances of the offences render him unfit in the public interest to practice occupational therapy, with a non-review period of five years.
2. We also made an order pursuant to s 149C(5) of the National Law, prohibiting the respondent from providing health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) (HCC Act) for five years.
3. We ordered that the practitioner pay the Commission's costs as agreed or assessed in accordance with clause 13 of Schedule 5D to the National Law.

1. It is not disputed that the practitioner completed a Bachelor of Science, Occupational Therapy, with Honours, at the University of Zimbabwe on 23 July 2008.
2. He was registered as an Occupational Therapist, in Australia, on 29 August 2014. His registration included the condition that he would "only practice with supervision by a Council approved supervisor or delegate".
3. The practitioner was employed by River Health Care (Aged Care) in Mackay, Queensland, as an Occupational Therapist under supervision, between February 2017 and September 2018.
4. On 22 August 2017, the practitioner applied to the Occupational Therapy Council of Australia (the Council) for the renewal of his registration. Attached to this application was a letter of completion, which he purported was written by his supervisor, Ms Sharon Mills. Ms Mills expressed the concern that the document submitted to the Council, by the practitioner, was not the one she had signed. The practitioner denied these allegations.
5. On 15 September 2017, the Council refused the practitioner's request to issue a certificate of "practical completion" and cited the apparent discrepancies between the practitioner's account and that provided by Ms Mills. Despite this, the Council approved the practitioner's renewal but extended the period of compulsory supervision for an additional 12-month period.
6. The practitioner appealed the Council's decision in November 2017.
7. On 2 January 2018, the Council complained to the Office of Health Ombudsman, Queensland, that the practitioner "may have fraudulently altered [his] supervisor records". That complaint was referred to the Australian Health Practitioners Regulation Agency (AHPRA).
8. AHPRA appointed an investigator to assist it to determine whether the practitioner had attempted to obtain general registration using falsified documents. Ultimately, on 15 May 2019, the investigation found that there was insufficient evidence to support the allegations. No further action was taken in relation to this matter.
9. In the meantime, on 24 November 2017, the practitioner submitted to a supervised practice plan, which named Ms Jessica Nyenuh as his supervisor. However, on 28 December 2017, Ms Nyenuh terminated this practice plan. She said that she had experienced communication difficulties with the practitioner.
10. On 3 January 2018, Ms Nyenuh complained to the Office of Health Ombudsman, Queensland, that the practitioner had failed to notify his employer of the termination of the supervised practice plan. That complaint was also subsequently referred to AHPRA, and was upheld, on 14 September 2018. The practitioner was issued with a caution.
11. Subsequently, on 29 January 2018, the Council advised the practitioner of its decision to recommend a further 12 months supervised practice.
12. Nine months later, on 25 September 2018, the Council advised the practitioner that his supervised practice authorisation was withdrawn, and that he must cease all occupational therapy practice, until new supervision was arranged and approved. The Council cited inadequate documentation, including supervision logs, as the reason for its decision.
13. The practitioner applied to have the supervision requirement removed from his registration, but on 16 April 2019, the Council refused the practitioner's application.
14. The practitioner sought administrative review of that decision.
15. On 31 January 2020, the NSW Civil and Administrative Tribunal (differently constituted) dismissed the practitioner's appeal seeking a review of the Council's decision not to remove the supervision conditions on his registration.
16. In or about October 2020, a health professional, to whom we will refer as "Person A", publicly advertised for an Occupational Therapist to fill a position in his practice. Person A subsequently interviewed the practitioner for the position. However, in November 2020, Person A advised the practitioner that he was unsuccessful, due to the restrictions on his registration, but that he would otherwise have been a successful applicant.
17. Between November 2020 and February 2021, Person A received numerous and increasingly threatening phone calls and voicemail messages from the practitioner. These threats included threats of harm towards Person A and Person A's family.
18. On 9 April 2021, Person A complained to the NSW Police Force and the Commission about the practitioner's threatening conduct.
19. The practitioner was initially charged with the following offences (the charges):

(1) use carriage service to threaten to kill contrary to s 474.15(1) of the Criminal Code Act 1995 (Cth); and

(2) stalk or intimidate, intending to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

1. He failed to attend Penrith Local Court, when the matter was listed, on 7 June 2021. The magistrate issued a bench warrant for his arrest.
2. On 26 June 2021, the practitioner attended Marrickville Police Station and was arrested and transferred to Newtown Police Station.
3. The Council held a Section 150 hearing on 5 August 2021. The practitioner did not attend the hearing. The Council suspended his registration.
4. On 1 November 2021, the practitioner applied, pursuant to s 150A of the National Law, for a review of the Council's decision to suspend his registration. That application was heard on 13 December 2021. The practitioner attended the hearing. He asserted that he was not the person who had been arrested. The Council did not accept his version of events. The decision to suspend the practitioner's registration was affirmed.
5. On 27 March 2023, the respondent was convicted and sentenced in relation to these charges. He was sentenced to a Community Corrections Order for 12 months.
6. On 12 December 2023, the practitioner appealed his convictions. The appeal was dismissed.
7. On 28 October 2024, the Commission submitted its application for disciplinary orders. The matter was initially listed for hearing on 22 and 23 April 2025. The practitioner did not attend.
8. The Commission sought an adjournment pursuant to s 51 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The initial basis for the application for an adjournment was the fact that the Commission had been unable to locate the practitioner to confirm that he had notice of the hearing. The second proposed ground for adjournment was the sudden and unexpected unavailability of Counsel representing the Commission.
9. The Tribunal found that the Commission had effected valid service, in accordance with the Civil and Administrative Tribunal Rules 2014 (NSW) (CAT Rules), because it had caused documents to be delivered to two addresses identified by the practitioner. One of these is the address recorded on the electoral roll and confirmed by NSW Police as being the practitioner's last known address. The other is an address nominated by the practitioner during the previous hearing at NCAT.
10. The Commission had also attempted to communicate with the practitioner by sending documents to three different email addresses, previously identified by the practitioner.
11. However, the Tribunal decided that it was appropriate to adjourn the hearing due to Counsel's sudden unavailability. The Tribunal provided detailed Reasons for Decision, dated 21 May 2025, to the parties following that hearing.
12. This is the resumed hearing to conduct the enquiry into the Commission's complaint.

1. Section 144 of the National Law provides that the following complaints may be made about a registered health practitioner:

144 Grounds for complaint about registered health practitioner [NSW]

The following complaints may be made about a registered health practitioner -

A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.

(b) Unsatisfactory professional conduct or professional misconduct

A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.

A complaint the practitioner is not competent to practise the practitioner's profession.

A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.

1. Pursuant to s 145D of the National Law, the Commission is obliged to refer the complaint to the Tribunal, if it has formed the opinion that the complaint, if substantiated, would provide grounds for the suspension or cancellation of the practitioner's registration.
2. The Tribunal must determine three things in relation to each complaint:

(1) whether the complaint is proven;

(2) if proven, whether protective orders should be made; and

(3) whether to make a costs order.

1. The objective of the National Law is "the protection of the health and safety of the public must be the paramount consideration" (National Law, s 3B).
2. The Tribunal disciplinary powers are set out in subdivision 6 of the National Law. Section 149 provides that:

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.

1. The Commission relied on and tendered the following material, in addition to three exhibits that were tendered at the hearing on 22 April 2025. Those exhibits were:

(1) Affidavits of Lara Dolva O'Dea, dated, in reverse chronological order, 17 April 2025, 5 February 2025, and 17 December 2024, which were marked, on that occasion as Exhibits A1, A2, and A3 respectively (553 pages);

(2) Exhibit A4 - the complaint, dated 28 October 2024, and a bundle of documents titled "Health Care Complaints Commission's material", filed on 4 April 2025;

(3) Exhibit A5 - Health Care Complaints Commission supplementary material, filed on 11 March 2025 (16 pages);

(4) Exhibit A6 - evidentiary certificate from Australia Health Practitioner's Regulatory Authority (AHPRA), dated 4 April 2025, containing an extract from the National Register of Health Practitioners pertaining to the practitioner in this matter (8 pages);

(5) Exhibit A7 - email, dated 2 April 2025, from the National Information Release Unit at AHPRA to the Commission in response to the Commission's email to AHPRA, dated 2 April 2025;

(6) Exhibit A8 - Health Care Complaints Commission supplementary material filed on 17 June 2025 (27 pages);

(7) Exhibit A9 - Health Care Complaints Commission further materials - service documents, filed on 17 June 2025 (81 pages);

(8) Exhibit A10 - Affidavit of service of Sandra Falealili sworn on 18 June 2025;

(9) Exhibit A11 - email, dated 19 June 2025, from the Occupational Therapy Council of Australia to the Commission attaching 9 documents pertaining to the practitioner's qualifications;

(10) Exhibit A12 - Occupational Therapist Competency Standards 2018.

1. The Commission also relied on its written submissions titled "Applicant's outline of submissions" filed on 1 April 2025 (18 pages) authored by Joel Brook, original Counsel for the Commission.

1. The hearing was conducted as combined stage one and stage two proceedings on 19 June 2025.
2. The applicant was represented by Mr A Tembe, of Counsel, who is instructed by Ms T Matia.
3. The practitioner did not attend.

1. In its Reasons for Decision, dated 21 May 2022, the similarly constituted Tribunal set out its findings and the reasons for deciding that the applicant had provided valid service in accordance with the CAT Rules, prior to this hearing.
2. The Commission tendered further evidence of additional attempts to serve relevant material on the practitioner at this hearing (Exhibit A9). At page 3 of that Exhibit is the Affidavit of Lara Dolva O'Dea, dated 17 June 2025. Ms Dolva O'Dea attested to additional attempts to locate and serve all relevant documents on the practitioner.
3. The practitioner's criminal history, annexed to that Affidavit, reveals that the practitioner was charged with the offence of "drive, licence suspended under Section 66 of the Fines Act - First Offence", and that that matter was listed before Burwood Local Court on 13 May 2025.
4. This information is relevant, because on 13 May 2025, a process server, retained by the Commission attended Burwood Local Court, having been provided with a photograph of the practitioner extracted from the Commission's documents. Ms Dolva O'Dea attested that the photograph was taken as a screenshot from the hearing from the recording of the Section 150A hearing, held on 13 December 2021, which had been stored on the Commission's servers. That photograph is on pages 32 and 33 of Exhibit A9.
5. Ms Dolva O'Dea also attested that, on 20 May 2025, she received an Affidavit of Service deposed by Mr Sal Roppolo, Licensed Process Server (page 76 of Exhibit A9).
6. In his Affidavit, Mr Roppolo said that he identified the practitioner, with reference to the photograph he had been provided, outside Burwood Local Court at 11:23 am on 13 May 2025, and served him with the Tribunal's previous Orders, dated 21 May 2025, and all accompanying documents and a letter from the Commission, dated 12 May 2025. Mr Roppolo deposed that he served the documents by placing the documents on the ground in the presence of a man who he believed to be the practitioner. He wrote:

"At the time of service, I observed a male matching the provided photographs arrive. I approached the male and asked: "Are you Misheck Mukonoweshuro?" The male replied: "No. It's not me". I said: "I have documents to serve on you". The male replied: "No, I will not accept service of documents". I believe the male was Misheck Mukonoweshuro. I then stated: "You have been identified as Misheck Mukonoweshuro and you are hereby served". I placed all documents on the ground in his presence and departed...".

1. The process server also obtained a photograph of the individual to whom he provided the documents.
2. Ms Dolva O'Dea also attested that, on 13 June 2025, the Commission also retained a process server to effect personal service of documents to the practitioner at his last known address in Dulwich Hill. This is the same address that was recorded by the Police in respect of his recent offence.
3. At page 69 of Exhibit 9, there is an email from the NSW Police Force to the Commission about the circumstances of that offence and the conversation that occurred and was captured on body worn video, when the practitioner was apprehended. The email reports that the practitioner reported that he lives in Hurlstone Park. When further questioned, the practitioner recanted that and said he lives in Dulwich Hill, which is the address still recorded on his licence. The practitioner was recorded telling the Police Officer that he had lived there for "a couple of years".
4. An Affidavit of attempted service (page 74 of Exhibit A9) attested by Joseph Khoury, Licensed Process Server, reveals that on 10 April 2025, Mr Khoury attended the Dulwich Hill address, where he spoke to several people who advised they did not know of anyone by the practitioner's name at that address.
5. Ms Dolva O'Dea also attested that she sent further emails to the practitioner's three last known email addresses providing him with the material and suggesting he obtain legal advice. To date, the Commission has not received any response from the practitioner to any of this correspondence, nor any message to indicate that the emails had "bounced back".
6. We accept the Commission's evidence in Exhibit A9 pertaining to the further attempts the Commission has made to ensure that the practitioner has sufficient notice of hearing, the issues in dispute, and his rights in relation thereto, in part because there is no evidence to contradict it.
7. Having accepted that evidence, in addition to the reasons given on 21 May 2025, we remain satisfied that the Commission has affected valid service. Furthermore, we accept the evidence that the practitioner attended a hearing at Burwood Local Court on 13 May 2025, in response to an infringement notice sent to the Dulwich Hill address, which was the address recorded by the NSW Police Force. There is no explanation on the part of the practitioner as to why, having responded to that infringement notice, he has failed to respond to any of the correspondence sent to the Dulwich Hill address, any of his email addresses, or attempts to contact him on his mobile telephone numbers.
8. In those circumstances, we decided to proceed with the hearing notwithstanding the practitioner's non-attendance.

1. The Commission sought an order, pursuant to s 64(1)(a) of the CAT Act, prohibiting the disclosure of the name of Person A. The Counsel for the Commission submitted that Person A has been the victim of threats of violence and that a non-publication order is in the interests of his safety and protection.
2. Although it is clear that the practitioner already knows the identity of Person A, the Commission submitted that Person A had been adversely affected by the threats of violence to him and his family and that publication of his identity would result in further psychological damage.
3. We accepted that submission and ordered that pursuant to s 64(1)(a) of the CAT Act, the disclosure of the name of Person A is prohibited.

1. The Commission makes four complaints against the practitioner.

1. The Commission submits that the evidence establishes that, on 27 March 2023, the practitioner was convicted and sentenced in relation to two criminal offences.
2. The Commission relies on the Certificate of Conviction, dated 5 April 2023, signed by the Registrar of the Penrith Local Court, which confirms that the practitioner was convicted of the offences of "use carriage service to threaten to kill", in contravention of s 474.15(1) of the Criminal Code Act 1995 (Cth); and "stalk or intimidate intending to cause fear of physical or mental harm", as per s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
3. These convictions were confirmed on appeal in the Katoomba District Court on 12 December 2023, by Judge Payne (pages 261 and 264 of Exhibit A4).
4. The factual matters underpinning the findings of guilt, following the practitioner's plea of not guilty, are set out in the evidence of Person A, in the transcript of the proceedings at Penrith Local Court (Exhibit A4 commencing at page 199).
5. Person A gave evidence that he interviewed the practitioner for the position of Occupational Therapist, for the business of which he is a Director. He said the interviews were conducted by video and telephone, which meant that he had the practitioner's mobile telephone number saved.
6. Person A said that the practitioner's application was successful, in principle, but that there "were some details missing around his professional accreditation".
7. Person A gave evidence that he requested these additional details from the practitioner, which were not supplied. It was only after further requests for that information that the practitioner provided information, which caused Person A to understand that there were supervision conditions on the practitioner's registration.
8. Person A then advised the practitioner that he was unsuccessful and encouraged him to reapply, should the limitations on his registration be removed.
9. Person A gave evidence in the Local Court that a couple of months after he advised the practitioner that he was unsuccessful because of the limitations on his registration, he received a telephone call from the practitioner who appeared "angry about how he felt he was treated". He described the practitioner as "upset", "aggressive" and "threatening".
10. Person A said that he received several further phone calls later that day and throughout the night. He estimated there were approximately six or seven in number. He woke up to a number of voicemail messages. Person A said that some of those messages included content such as "People are looking for you. Someone will kill you".
11. Person A said that this continued for "a week or maybe more". He said that at some stage the messages included threats to his wife and family members. Person A said that some of the messages included words such as "Let's meet in a park and fight. I will kill you. People of Africa will kill you".
12. The prosecutor advised the Court that there were 44 of such voicemail messages. One of the phone calls included the words:

"You are destroying my good name. There is [sic] a couple of actions that I need to take. I'll have to sue you for $500,000.00 for what you did to me. The second thing is there is people that have listened to the phone call that aren't happy and they are going to kill you. I'm not sure how they are going to do it but they will".

1. The voice on the phone then rang back and said:

"One more thing, you call me 'bro'. I'm not your bro. You're white. I'm black. You can't call me brother. I'm not your brother".

"You delusional cunt, delusional white cunt. And before the end of 2021 you'll be dead. I'm not your brother. I'm your enemy. Fuck you".

1. Person A gave evidence that the practitioner's tone and demeanour escalated to the point where, on 13 February 2021, Person A received a voicemail at 11:07 pm in which the practitioner said:

"This is gonna end up in the spilling of blood, human blood. Your family is at risk right now. You are at risk. Your life is no longer. Your life, your wife's life and your kid's life. All of them are no longer safe".

1. Person A gave evidence that he received 13 further voicemails the following day. This is one of the voicemails that the Tribunal listened to. It contained the following content:

"You'll shall be an example to every white person in this country who has been racist to me. I want you to understand that I'm doing it for this reason. I want everyone who ever mocked me to understand that you have mocked me. I'm killing one of yours, one of yours. I am taking your lives to appease me, to appease the gods of Africa. I don't have to do anything. There are people who have vowed to kill you. I don't even have to look for you. They will find you. They will find you like a dog. They will find you like a rabbit. When they find you they will kill you like a dog. They will kill you like a pig".

1. He ultimately reported the conduct to the Queensland Police, because he felt threatened and intimidated.
2. The practitioner was ultimately arrested and charged and stood trial for the offences of using a carriage service to threaten to kill and stalking or intimidating intending to cause fear of physical or mental harm. The practitioner pleaded not guilty. He asserted that he was not an Occupational Therapist and he was not the same person who had committed the offences.
3. The Magistrate found, beyond reasonable doubt, that the phone calls had been made by the practitioner.
4. The Commission referred us to the NSW Police Facts Sheet (Exhibit A4 at pages 523 and 524) which pertains to an offender with the same name, date of birth and last recorded address as the practitioner. The offender's occupation is listed as masseur. The Commission submits that the only reasonable inference is that the person charged was, in fact, the practitioner.
5. Counsel for the Commission also asked us to accept that the Criminal Court found that the practitioner was guilty of the offences to the criminal standard. He submitted that the practitioner failed to demonstrate that he was not the person guilty of the offences was not accepted.
6. Judge Payne, when ruling on the appeal of the conviction, on 12 December 2023, canvassed, in some detail, the question of whether the practitioner's claim that he was not the person who committed the offence. She rejected that submission (Exhibit A4 p.266).
7. We accept that a court of higher standing, applying a more rigorous standard of proof, accepted that the offender charged and ultimately convicted of the offences was the practitioner. There is no evidence that would cause us to come to a different conclusion.
8. We are satisfied on the basis of the Certificate of Conviction and the Orders of Judge Payne in the Katoomba District Court on 12 December 2023 that the practitioner has been convicted of two serious criminal offences.
9. It follows that we are satisfied that the ground for complaint in s 144(a) of the National Law is proven.

Complaint 2 - unsatisfactory professional conduct

1. The Commission submitted that the practitioner is guilty of unsatisfactory professional conduct and relies on ss 139B(1)(b) and 139(1)(l) of the National Law.
2. It is uncontroversial, and we accept, that as a registered Occupational Therapist, the practitioner was obliged to comply with the National Law.
3. Section 139B(1)(b) provides that unsatisfactory professional conduct includes:

A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW Regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.

1. Section 130 of the National Law dictates that all Occupational Therapists are required to notify the national board of any charges or convictions, within seven days of being aware of charges with an offence punishable by 12 months imprisonment or more and within seven days of being aware of being convicted of any offence punishable by imprisonment. We are satisfied that the offence of which the practitioner was convicted is punishable by imprisonment.
2. The Commission asked the Tribunal to accept that the importance of compliance with s 130 of the National Law was considered in the Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 at [31]:

"Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover, by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct, which brought them to the attention of the police and criminal justice system in the first place..."

1. In that matter, the delay in notifying the relevant board of a conviction was held to constitute unsatisfactory professional conduct. The Commission submits that the facts in this matter are consistent with those in Holbrook's case and that we should similarly find that the practitioner is guilty of unsatisfactory professional conduct because he failed to notify the board of his conviction.
2. The Commission submitted that the practitioner was fully aware of the charges against him, at the very latest, when he was legally represented and appeared at Penrith Local Court on 13 July 2021 (Exhibit A5 p 12). The Commission further submits that the practitioner was aware that he had been convicted of the charges on 27 March 2023.
3. On 5 August 2021, an urgent Section 150 hearing was convened, after the Council became aware of the criminal charges pending against the practitioner. Despite notices being sent, the practitioner did not appear at this hearing. The Council suspended the practitioner's registration.
4. On 1 November 2021, the practitioner submitted a Section 150A application for a review of that decision, set out in reasons, dated 22 October 2021. This application was heard by a differently constituted panel of this Tribunal, on 13 December 2021. On that occasion, the practitioner attended.
5. During the review hearing, the practitioner denied that he was the person who had been the subject of the criminal charges. He also denied that he had any contact with Person A and that he was the same Misheck Mukonoweshuro, who had appeared before Penrith Local Court on 24 August 2021.
6. The Commission submits that this Tribunal should be comfortably satisfied that it was the practitioner who appeared before Penrith Local Court in response to the charges. The practitioner's submission that he was not the defendant was rejected at the hearing on 13 December 2021. The bench papers reflect that the defendant on that occasion appeared in person and was legally represented by a private solicitor.
7. The Commission gave evidence that on 8 June 2023 it enquired of AHPRA whether there were any documents or information to suggest that the practitioner had notified AHPRA of the criminal offences, charges, and convictions during the months of June or July 2021. In reply, on 27 June 2023, AHPRA confirmed that they were unable to locate any such documentation (Exhibit A4 p 292).
8. We are comfortably satisfied that the practitioner was the person who was convicted of the offences and that he was aware of this fact, because there is no evidence available that would cause us to form a different view from that expressed by Her Honour Judge Payne, when she ruled on the Appeal.
9. The Tribunal is also satisfied, on the balance of probabilities, that the practitioner failed to notify the Council of the criminal charges and of the convictions within the stipulated seven-day period. We find that failure is a contravention of s 130 of the National Law. It follows that the practitioner has breached s 139B(1)(b) of the National Law and is guilty of unsatisfactory professional conduct.

Complaint 3 - unsatisfactory professional conduct

1. The Commission complains that the practitioner engaged in unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law because he engaged in other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. The Commission submits that the practitioner intentionally provided false and misleading information to the Council, by denying that he was charged with any offence at the Section 150A hearing on 13 December 2021. In Exhibit A4 at page 59, at line 30, the practitioner is reported to have responded to the Council:

"I want to say, categorically, I did not get charged; I did not get charged with any offence...What I see is that this person is alleging that I applied for their job, right. Of which I did not apply for that job..."

1. The practitioner continued to deny any interaction with Person A_:_ "I've not had any interaction with him, right; I've not applied for his job..." (Exhibit A4, p69, line 35).
2. Further denials are evident in Exhibit A4, page 70, line 40, and page 71, line 7, where the practitioner asserted that: "Somebody else would have been involved". We have summarised the practitioner's attempts to deny culpability, in more detail, later in these Reasons for Decision.
3. The Commission referred the Tribunal to the matter of Health Care Complaints Commission v Day [2022] NSWCATOD 134 at [164] where the Tribunal, quoting Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [26], said:

"In disciplinary proceedings in relation to s 139B(1)(l) of the National Law, the determination of the question as to whether "any other improper or unethical conduct relating to the practice ... of the practitioner's profession" has occurred requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s 139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct."

1. In Health Care Complaints Commission v Bolton [2021] NSWCATOD 160, the Tribunal observed (at [86]-[87]):

"The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as "not in accordance with propriety of behaviour, manners etc." or "abnormal or irregular" and "unethical" ... and ... "in contravention of some code of professional conduct."

Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper."

1. The Commission argues that the Tribunal should be satisfied that it is highly improbable that the person who was charged and convicted was not the practitioner. We have already found that the person convicted of the offence was the practitioner in this matter for the reasons set out earlier in these Reasons for Decision.
2. The Commission also submitted that the persistent denial that he was the person involved provides false and misleading information to the Council, in the context of a complaints process directly relevant to the practice of occupational therapy.
3. The transcript of evidence from the Section 150A hearing provides clear evidence that the practitioner provided false and misleading information to the Council. We accept that this was an interaction which was directly related to the practice of occupational therapy and that it constitutes unethical and improper conduct. It follows that the practitioner is guilty of unsatisfactory professional conduct and we find complaint 3 proven.

1. The Commission complains that the practitioner is guilty of professional misconduct as defined in s 139E of the National Law.
2. Section 139E defines professional conduct as:

139E Meaning of "professional misconduct" [NSW]

For the purposes of this Law, professional misconduct of a registered health practitioner means -

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or

(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

1. We have found the practitioner guilty of unsatisfactory professional conduct. The Commission submits that the Tribunal would consider the particulars of each of complaints 1, 2, and 3 to be sufficiently serious to amount to professional misconduct on their own. In the alternative, the Commission submitted that the cumulative effect of those complaints would amount to professional misconduct.
2. Counsel for the Commission submitted that complaint 1 is one of serious criminal misconduct, involving escalating threats of violence that were made in connection with the practitioner's authority and capacity to practice occupational therapy. The offences occurred in circumstances where issues had been raised about the practitioner's compliance with the regulatory scheme and were persistent in nature. Counsel submitted that the offence could bring the profession of occupational therapy into disrepute.
3. We accept the Commission's argument with respect to this issue, because the criminal conduct, for which the practitioner was convicted, was objectively extremely serious. It occurred in the context of the practitioner's profession. It is conduct which would erode the public's confidence in the profession of occupational therapy and warrants a decisive denouncement. Threatening a prospective employer and his family with death, on several occasions, is sufficiently serious to justify the cancellation of the practitioner's registration.
4. The Commission also submits that complaint 2, if proven, highlights the practitioner's lack of transparency and his failure to comply with Professional Standards Regulations. The Commission argues that the third complaint is also one involving persistent dishonesty, despite overwhelming evidence to disprove the practitioner's assertions.
5. We have found both of those complaints proven. The practitioner's persistent lack of honesty, on several occasions, and his lack of contrition, is egregious. It is conduct that falls short of the professional standards expected of health practitioners. It compounds the offending behaviour for which he was convicted.
6. We are satisfied, with respect to complaint 1, that the practitioner's conduct was, of itself, of a sufficiently serious nature to justify the suspension or cancellation of his registration. We are also satisfied that there was more than one instance of unsatisfactory professional conduct, and that when all the complaints, which have been proven, are considered together they amount to conduct of a sufficiently serious nature to justify the practitioner's suspension or the cancellation of his registration. We find complaint 4 is proven.

1. These proceedings are proceedings under the National Law, which is the enabling legislation.
2. Sections 3 and 3A of the National Law set out the objectives of the National Law. In summary, those objectives are to establish a national registration and accreditation scheme for the regulation of health practitioners and students undertaking programs of study that provide a qualification for registration in the health profession and other things.
3. Section 3(2) provides that one of several objectives of the national registration and accreditation scheme is:

(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered...

1. The guiding principle in New South Wales is set out in s 3A of the National Law. Most relevantly, subsection (1) provides:

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.

1. The Commission seeks the cancellation of the practitioner's registration with a non-review period of five years.
2. Under s 149 of the National Law, the Tribunal has disciplinary powers with respect to a registered health practitioner, if a complaint is proven, as it is in this case. The powers include the power to suspend or cancel the registration of a practitioner, in certain cases (s 149C). Section 149C(1) of the Act relevantly provides:

149C Tribunal may suspend or cancel registration in certain cases [NSW]

(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 ...

1. Section 149C(5)(a) permits the Tribunal to prohibit the person from providing specified health services for a specified period.
2. Section 149C(7) provides that an order may also be made prohibiting an application for review of the order under Division 8, until after a specified time.
3. The power to make any order is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], the Court of Appeal, citing Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83], said:

"1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.

2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.

3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist."

1. Having found the complaints established, the Tribunal must now consider whether the circumstances of the offences for which the practitioner has been convicted render him unfit in the public interest to practice his profession.
2. To determine whether the circumstances of the criminal offences, for which the practitioner was convicted, render him unfit in the public interest to practice occupational therapy, we have considered the circumstances of the offences, as set out in the agreed facts, the sentencing remarks of the Magistrate, the appeal judgement of Her Honour Judge Payne, and the available evidence and submissions.

1. The term "public interest" is not defined in the National Law. The term was considered in the matter of Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 at [35], in which the Court held that the "public interest" is a broader concept than the protection of the health or safety of the public.
2. In that matter, Her Honour Associate Justice Harrison stated at [32], citing Hanna v Medical Council of NSW [2017] NSWCATOD 27 at [18]:

"... the 'public interest' referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the 'competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession'."

1. In Health Care Complaints Commission v Grygiel (Termination application) [2020] NSWCATOD 53, Deputy President Boland (at [151]) considered that the authorities emphasised several matters relevant to the consideration of "public interest" including "the high moral and ethical obligations on practitioners, the need to comply with regulations, and the confidence of the public in those who treat them".
2. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] Baston JA noted:

"... The purpose of any order made upon a finding that a complaint has been proved, is said to be protective 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 medical 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."

1. It is clear, therefore, that we must consider factors that go beyond any risk posed to patients or customers of the practitioner, including public confidence in the integrity of the high standards required of health practitioners. Whether a practitioner is unfit in the public interest will require consideration of the nature of the conviction and the circumstances in which the offence was perpetrated. Those circumstances can extend to the factual background and the impact of the conviction on the respondent in terms of any insight, contrition and remorse: See Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51].
2. In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [22], the Tribunal held that:

"... criminal conduct is a distinct factor when determining suitability to practise which must be assessed in light of a holistic inquiry into suitability. This assessment takes into account the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and since any investigation or sanction. 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." (emphasis added)

1. Section 149C(1)(c) does not require the practitioner to be permanently unfit for practice in the public interest. Rather, we are required to consider his current fitness to practice: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67].
2. It is clear that a registered health practitioner's offence does not need to have occurred in the practise of their field to render them relevantly unfit to practise in the public interest: Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [93].
3. We considered the factors set out in AHPRA's Registration Standard: Criminal History (1 July 2015) (Exhibit 2 at 36). As matters which may guide the Tribunal, the relevant factors include:

1. The nature and gravity of the offence or alleged offence and its relevance to health practice. ...

2. The period of time since the health practitioner committed, or allegedly committed, the offence. ...

3. Whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending. ...

5. The ages of the health practitioner and of any victim at the time the health practitioner committed, or allegedly committed, the offence. ...

7. The health practitioner's behaviour since he or she committed, or allegedly committed, the offence. ...

8. The likelihood of future threat to a patient of the health practitioner. ...

9. Any information given by the health practitioner. ...

10. Any other matter that the Board [in this case, the Tribunal] considers relevant. ...

1. To the extent that they are relevant to this matter, we set out our considerations hereunder.
2. The offence was committed in the context of the practitioner seeking employment as an Occupational Therapist. As such, we find that the circumstances of the offence were directly relevant to the practise of his profession. The offence was committed in a manner which was persistent and repetitive. The threats of violence escalated over time.
3. The offence was committed in 2021. Four years have elapsed since that time. However, in that period, the practitioner has not exhibited insight, remorse or accountability for his conduct.
4. The practitioner pleaded not guilty on the basis that he was not an Occupational Therapist and that he was not the individual who had sought employment with Person A's business. He has persistently denied that he committed the offence. He maintained that another individual with his name and date of birth, who was using his telephone, had committed the offence.
5. His arguments were rejected, and he was convicted and sentenced to a 12-month community order in respect of each offence. At the time of the offence the practitioner was 35 years of age.
6. The practitioner gave similar evidence at the Section 150A hearing.
7. From this, we infer that the practitioner has shown no remorse or insight into the seriousness of his misconduct. Rather, he has compounded it, by providing false and misleading statements to the Regulatory Authority.
8. The practitioner's dishonesty and lack of accountability demonstrates the absence of sound judgement and contrition. This undermines the potential for rehabilitation and increases the likelihood of a further threat to a patient or a member of the public.
9. The practitioner's misconduct was so serious that it poses a substantial risk to the public perception and reputation of the profession of occupational therapy.
10. We have also found that the practitioner is guilty of professional misconduct. We are satisfied that the circumstances of the offences alone render the practitioner unfit in the public interest to practise the profession of occupational therapy.
11. We have also considered the practitioner's broader dealings with the Board and Council. The practitioner's apparent unwillingness to comply with supervision requirements demonstrates, at the very least, a misunderstanding of the professional and ethical obligations required of an Occupational Therapist.
12. Mindful of our obligation to ensure that the protective order be no more punitive than necessary to achieve its purpose, we considered whether we should impose conditions upon or suspend the practitioner's registration. However, the practitioner's dishonesty with the regulatory authorities and the Court, and the absence of any evidence of contrition or motivation to rehabilitate means that the Tribunal could not have confidence that the practitioner would abide by any conditions imposed upon him. We are also not satisfied that a suspension for a specified period would be sufficient to protect the public, in this case.
13. Therefore, pursuant to s 149C(1)(c), we determined to cancel the practitioner's registration.

1. Section 149C(7) provides that the Tribunal may order that an application for review of the order under Division 8 may not be made until after a specified time.
2. The Tribunal has previously considered the purpose of imposing a non-review period pursuant to s 149C(7) in Health Care Complaints Commission v Reid [2018] NSWCATOD 162 at [660]:

"First, such an order provides for the safety of the public ensuring only those practitioners fit to practice do so. Secondly, s 149C (7) sets a period of time during which a Tribunal predicts, or attempts to predict, the time in which a practitioner may reasonably take steps to rehabilitate himself or herself. This reason has particular force when a tribunal is considering a practitioner who has drug dependency or other medical issues. Thirdly, the authorities stress the deterrent aspect of the order. That is, such an order sends a clear message of denouncement of the practitioner's conduct to other professionals."

1. Counsel for the Commission submitted that the Tribunal should be satisfied that, in this case, there is a clear need for a non-review period, to act as a deterrence to the practitioner and other health professionals. He submitted that, at the very least, the practitioner should be prohibited from applying to review his registration for a number of years. He pointed to the fact that the offence occurred four years ago and that there is no evidence that the practitioner has shown contrition or attempted any rehabilitation.
2. We consider that the nature of the offence and the practitioner's conduct since that time to be of sufficient gravity to warrant a substantial period of time to enable the practitioner to take steps to rehabilitate himself, should he choose to do so. It is important that a clear message of denouncement of this practitioner's conduct is perceived by other professionals and the public.
3. It is also important, in the public interest, that only a person who is fit to practice a health profession be permitted to do so. In our view, the practitioner will require a substantial period of time in which to demonstrate that he has developed insight into his misconduct, taken all reasonable steps to rehabilitate himself, and that he is a fit, in the public interest, to practice as an Occupational Therapist.
4. Therefore, we decided to impose a non-review period of five years.

Prohibition order pursuant to Section 149C(5) of the National Law

1. Section 149C(5) provides that if the Tribunal suspends or cancels a registered health practitioner's registration and is satisfied that the person poses a substantial risk to the health of members of the public, it may impose a prohibition order. A prohibition order under s 149C(5) may:

(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;

(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.

1. The Commission submitted that the Tribunal should be comfortably satisfied that the practitioner presents "substantial risk" to the health of members of the public. The Commission pointed the Tribunal to the matter of Health Care Complaints Commission v Jason Vuong [2022] NSWCATOD 83 at [84]- [85]:

"As is clear from the National Law there are two pre-requisites to be established if a prohibition order is to be made. First, the Tribunal must have determined that the practitioner the subject of disciplinary proceedings should have her/his registration suspended or cancelled. Secondly, the Tribunal must be satisfied that the person poses a substantial risk to the health and safety of members of the public.

In Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 at [139] the Tribunal referred to a substantial risk being a risk that is material, and real or apparent on the evidence, not without substance or speculative by reference to Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96] and Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75]. We note in Brush that the Tribunal found a "material" risk the conduct that subject of the complaint might be repeated but it was not a substantial risk and therefore declined to make the order sought.)."

1. The Tribunal has made an order that the practitioner's registration is cancelled. Having done so, we must now consider whether the practitioner poses a substantial risk to the health and safety of members of the public. The Tribunal must consider the facts of each case on their own merits in order to determine whether a substantial risk is present.
2. The Commission submitted that the practitioner's conduct indicates that he would pose a substantial risk to the health and safety of members of the public, if allowed to provide health services.
3. We considered the nature of the practitioner's offence, which was committed in the context of seeking employment as an Occupational Therapist. As previously outlined, the offence involved serious and escalating threats of death, not only to Person A but to Person's A spouse and children. The practitioner's conduct was persistent, violent, and intimidating. It caused Person A to feel threatened and distressed. We are satisfied that this caused Person A, and probably his family, harm.
4. The apparent trigger for this conduct, which is wholly unacceptable from any individual, let alone a health practitioner, was the practitioner's failure to obtain employment from Person A, whilst uncertainty remained about the practitioner's registration status.
5. We have set out our findings in relation to the seriousness of the practitioner's conduct, his lack of contrition, dishonesty, and lack of rehabilitation earlier in these Reasons for Decision. They are relevant and we reiterate them in relation to this issue. We make the following additional comments.
6. When the process server approached the practitioner outside Burwood Local Court on 13 May 2025, the practitioner again behaved in a manner which undermines the Tribunal's confidence in his ability to comply with standards of behaviour which would be appropriate for a practitioner of a health profession, by denying his identity and refusing to accept service.
7. The practitioner's persistent denial that he was the person who committed the offence, and his denial that he is an Occupational Therapist, demonstrates that he lacks insight into the seriousness of his conduct, or its effect on his victim. It reveals a lack of respect for the professional standards that a health practitioner is obliged to uphold.
8. A health practitioner is obliged to do all that he or she can to protect the health and safety or his or her patients. Person A was not the practitioner's patient, but he is a member of the public. The practitioner's conduct presented a grave risk to Person A.
9. Furthermore, the practitioner's conduct, in the broader context, suggests that he lacks sound judgement, and demonstrates his lack of respect for the law, professional regulation, disciplinary processes and standards of acceptable conduct. This, when viewed together with his offence, leads us to the conclusion that the practitioner poses a material and substantial risk to members of the public.
10. Therefore, we decided to make an order pursuant to s 149C(5) prohibiting the practitioner from providing health services for a period of five years.

1. The Commission seeks an order that the practitioner pay its costs. The practitioner made no submissions in relation to this application.
2. The Tribunal has the power to award costs, as specified in the National Law (clause 13 of Schedule 5D). Awarding of costs is a discretionary matter. The discretion must be exercised judicially. As a general rule, costs follow the event, which means that the successful party should be compensated for the expenses it has incurred. A costs order is not intended to be punitive.
3. These principles are relevant to professional disciplinary proceedings: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]- [44].
4. In this instance, the Commission has been successful in proving all the particulars and there is no evidence of any disentitling conduct by the Commission.
5. Accordingly, the Commission is entitled to a costs order in its favour.
6. The practitioner is to pay the applicant's costs as agreed or assessed under the Legal Profession Uniform Law Application Act 2014 (NSW) pursuant to clause 13 of Schedule 5D to the National Law.

(1) The complaints against the practitioner are proved.

(2) The practitioner's registration is cancelled, pursuant to s 149C(1)(b) and s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) (National Law), with a non-review period of five years.

(3) The practitioner is prohibited from providing health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for five years.

(4) The practitioner is to pay the applicant's costs, as agreed or assessed.

(5) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of Person A is prohibited. It is noted that for the purpose of this section, the reference to the name of a person includes a reference to any information, picture or other material that may identify the person or is likely to lead to the identification of the person.

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.

05 August 2025 - Paragraph 1, 27(1) and 69 amended to 474.15(1)

Paragraph 1 and 27(2) added amended the offence wording

Paragraph 6 typographical error corrected and reference to respondent not being a suitable person amended.

Paragraph 51, 53, 54, 57 and 60 amended to Ms Dolva O'Dea