Health Care Complaints Commission v Muthunesan [2021] NSWCATOD 178 | Case summary

Applicant's submissions

The Applicant provided submissions dated 14 September 2021 which are as follows: "A. INTRODUCTION [The Applicant set out the background to the complaint, the complaint and the procedural history] Absence of the respondent 17. To date the respondent has not complied with the orders of 25 June 2021. 18. The Tribunal may proceed with the hearing if it is satisfied that the respondent has been given notice of the inquiry: National Law, s 165J(3); Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151 at [3]. 19. The Commission sought that the matter proceeds undefended. With the leave of the Tribunal, the Commission sought to rely upon service documents to show that the respondent is aware of the hearing and has been served with all evidentiary material: a.. Service Bundle, comprising: i. affidavit of service dated 27 April 2021; ii. affidavit of service dated 8 June 2021; iii. email to the respondent dated 9 September 2021. Single hearing 20. It has been held that proceedings of this type may proceed in two stages - 'Stage 1' to determine whether the Complaint is proven and 'Stage 2' to determine the appropriate protective order: King v Health Care Complaints Commission [2011] NSWCA 353 at [202]-[204]. 21. However, the Tribunal may list a matter for a combined hearing should the circumstances render it appropriate, and 'character and conviction complaints are unlikely candidates' for a two stage hearings: Sudath v HCCC [2012] NSWCA 171 at [25]. 22. The Commission submits that this matter should proceed in a single hearing. Evidence in support of Complaint 23. The Commission relies upon the Commission Documents filed 3 May 2021. 24. With the leave of the Tribunal, the Commission seeks to rely upon the following additional evidentiary material obtained since the date of filing: Filed 3 June 2021 a. Evidentiary Certificate from AHPRA (to form Tab 1B). Filed 4 June 2021 b. Evidentiary Bundle, comprising: i. Statement from the respondent to the Local Court dated 18 July 2018; ii. Pre-Sentence Report ('PSR') dated 19 July 2018 iii. Victim Impact Statement dated 20 July 2018; iv. Psychological Report of Mr John McMahon dated 23 July 2018; v. Transcript of Local Court sentence proceedings dated 24 July 2018; vi. Referral for Intensive Corrections Order ('ICO') Assessment dated 24 July 2018; vii. ICO Report dated 3 September 2018; viii. Transcript of Section 150A proceedings dated 16 December 2019; ix. Criminal History dated 21 May 2021; and x. Email from the Council with Monitoring Compliance Report dated 27 May 2021. 25. The Commission submits that no procedural unfairness will arise from the inclusion of the additional material, which has been served on the respondent. The material was not held by the Commission at the time of filing and is relevant to the Tribunal's inquiry, particularly because of the respondent's lack of engagement with proceedings. B. BACKGROUND 26. The respondent was first registered as a nurse on 15 March 2016. 27. On 24 September 2017, the respondent was charged with criminal offences arising out of a series of physical altercations in a convenience store in Oxford Street, Sydney, namely: a. two offences of common assault under section 61 of the Crimes Act 1900; and b. one offence of wound with intent to cause grievous bodily harm under section 33(1)(a) of the Crimes Act 1900. 28. The following chronology sets out the subsequent criminal and disciplinary proceedings after 24 September 2017: a. on 8 February 2018, the respondent was charged with one additional offence of reckless wounding under section 35(4) of the Crimes Act 1900; b. on 28 February 2018, the respondent provided a 'Notice of Certain Events' ('NOCE') to AHPRA; c. on 20 March 2018, the offence of wound with intent to cause grievous bodily harm was withdrawn and dismissed; d. on 18 June 2018, following a hearing in the Local Court of NSW, the respondent was found guilty of the two offences of common assault and one offence of reckless wounding; e. on 24 July 2018, the respondent was formally convicted of all three offences and fined $500 for each offence of common assault (according to the chronology, but not necessarily correct); f. on 10 September 2018, the respondent was sentenced to a term of imprisonment of 18 months, to be served by way Intensive Correction Order (ICO) for the offence of reckless wounding; g. on 18 April 2019, the respondent attended a Counselling Interview with the Council; h. on 17 June 2019, s 150 proceedings were convened by the Council in the respondent's absence; i. on 31 July 2019, the respondent's appeal against his convictions was dismissed, and the convictions confirmed by the District Court. However, the term of the ICO was reduced to 14 months; j. on 16 December 2019, s 150A proceedings were convened by the Council with the respondent attending. Conditions were imposed on the respondent's registration. Circumstances of the offences 14. In finding the respondent guilty of the offences on 18 June 2018, Local Court Magistrate Miller ('LCM Miller') found the following proven beyond a reasonable doubt: a. both the respondent and the victim were in a convenience store shortly before 4am. The respondent was 'well-affected by intoxicating liquor'; b. the victim uttered the words 'fucking faggot' loud enough for the respondent, who is homosexual, to hear; c. the victim [sic - respondent] 'was enraged by these words, particularly in light of the political climate that existed at the time and the plebiscite that was due to take place imminently'; d. the respondent approached the victim; e. the victim didn't move towards the respondent at all but made a comment regarding his support of the "No" vote in the upcoming plebiscite and referring in pejorative terms to homosexual males; f. the respondent spat in the victim's face twice (the common assault offences) and a fight occurred, during which the respondent suffered a bleeding nose; g. the victim's two security guard colleagues intervened and dragged the respondent out of the store, at which time the victim punched then respondent in the side/back of the head; h. the victim then went to the back storeroom to wash his face; i. the respondent returned to the store a second time, looking for the victim. j. on this occasion, the respondent spoke with another person (an off-duty security guard, unrelated to the victim). The witness informed the respondent he was also homosexual and the respondent made a threat to 'get' the victim. The witness took the respondent out of the store to calm him down. k. the respondent returned to the store a third time and confronted the victim in the storeroom; I. a further fight broke out, with the victim pushing the respondent back into the store area. The respondent was pushed to the ground, grabbed an umbrella and struck the victim on the arm, breaking the umbrella; and m the respondent was pushed to the ground again, got up and struck the victim in the face with the broken umbrella. The victim suffered a wound to his cheek requiring 19 stitches and cuts to his ear requiring suture glue (the reckless wounding offence). … D. EVIDENCE Complaint One 33. Complaint One alleges that the respondent has been convicted of criminal offences. The respondent's conviction on 24 July 2018 can be proved to the requisite standard on the following evidence: a. Criminal History dated 21 May 2021; b. Transcript of the Local Court judgment dated 18 June 2018; c. Criminal History Check dated 16 July 2018; d. Transcript of Local Court sentence proceedings dated 24 July 2018; e. ICO Assessment Referral dated 24 July 2018; f. Transcript of the District Court appeal proceedings dated 29 July 2019; and g. Transcript of District Court appeal proceedings dated 31 July 2019. Complaint Two 34. Complaint Two alleges that the respondent is guilty of unsatisfactory professional conduct by virtue of a contravention section 130(1) of the National Law. That provision requires practitioners to report in writing within 7 days their charge or conviction for criminal offences punishable by 12 months or more imprisonment. 35. The Commission relies upon the following evidence: a. that the respondent was charged on 24 September 2017 with two offences of common assault and the offence of wounding with intent to cause GBH is established by the Police facts sheet; b. that the respondent was charged with an offence of reckless wounding on 8 February 2018 is established by an email from the Police Officer in Charge dated 16 December 2020; and c. that the respondent did not report the charges or conviction to AHPRA as required by section 130(1) is established in a letter from AHPRA dated 20 January 2020. Complaint Three 36. Complaint Three alleges that the respondent is guilty of unsatisfactory professional conduct in that he has engaged in conduct that is improper or unethical. 37. The Commission relies upon the respondent's letter and statutory declaration in identical terms, sent to AHPRA with his NOCE on 28 February 2019, in which the respondent stated, "I have no prior allegations or criminal records". 38. Contrary to the respondent's statement, the respondent had a prior criminal conviction for the following two offences on 9 February 2009, the practitioner was convicted of the following offences: a. 'drive on road etc while licence suspended' under section 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998; and b. 'use unregistered registrable Class A motor vehicle' under section 18(1) of the Road Transport (Vehicle Registration) Act 1997. E. THE RESPONDENT 39. The respondent has made no admissions to the Complaint. Further, the respondent: a. did not respond to the Commission's letter under section 40(1) of the Health Care Complaints Act 1993, setting out the allegations underlying Complaints One and Two; and b. did not respond to the Commission's letter of 4 February 2021 advising that a further allegation had been included in Complaint Three. 40. The respondent has, however, provided evidence to the Local Court, AHPRA and the Council regarding his criminal offences and failures to report them to AHPRA. These are set out below. NOCE 41. The respondent's NOCE on 28 February 2018, was accompanied by a letter and statutory declaration in identical terms, advising the following: "On the 24th September 2017, I entered a tobacconist to purchase cigarettes. While in the store I was verbally abused and discriminated against regarding my sexual orientation and appearance by another customer aged 32 years old. Unfortunately, I was unable to de-escalate the situation and a physical altercation ensued where I was forced to defend myself. Both parties were injured as a result of the altercation. Furthermore, as the 32-year-old man unfortunately was injured slightly more than I was, the police chose to charge me. I am pleading not guilty to the charges and will be going to court later in the year to fight my case. I have no prior allegations or criminal records and I have never been in a fight before. I have since stayed clear from any alcohol related areas and activity and commenced counselling for the verbal and physical violence perpetrated against me. I believe I am safe to continue working as a registered nurse despite the charges that have arisen from this unfortunate event. I am not a violent person, nor have I ever considered violence as the answer to such discrimination. I apologise for the time delay from the time of being charged to declaring this with you now, it has been an emotional and stressful time in my life. I was not working as a registered nurse at the time of the incident and haven't worked since the incident. I have recently been offered unofficial offers of employment to hospitals in my local area." 42. Also attached were 5 personal references attesting to the offending being out of character, and 3 professional references supporting the respondent's capacity to safely practice. Evidence to the Local Court 43. The respondent gave evidence in his Local Court hearing. His evidence in chief included (in summary) that: a. he had had about 5 beers before the incident; b. he heard laughter and turned towards the victim, who called him a 'fucking faggot'; c. he and the victim walked towards each other; d. the victim pushed him and then said, "I'm sick of working with you fucking faggots, I've got to work with you on Oxford Street. Good luck when the no vote goes through"; e. the victim struck him in the nose and he pushed the victim, causing them to grab each other; f. he was grabbed and pinned to the ground by two security guards; g. he was taken outside the store and was struck to the back of the head as that occurred; h. he was told to go home but asked who the victim was and where he worked. They ignored him and laughed and smirked at him; i. he informed a security guard that, "I'm a nurse. I've just been assaulted. It's not okay. This isn't okay. I want to know who he is, who he works for". j. he returned to the store on one occasion only, to find the victim; k. the attendant told him the victim was in the staff room but he could not go in there; I. he knocked on the staff room door, the victim opened it, and then the victim hit him in the mouth; m. the victim began to strangle him and during the scuffle he fell back onto the ground; n. whilst laying down, the victim stood over him and raised his arm and fist; o. he reached out and grabbed an object to defend himself, striking the victim with it. the victim screamed and held his face; p. he was taken out of the store by security before walking down the road for one to two hundred metres; q. he got his phone out to call Police, but found it was dead; r. he was crash tackled and restrained until Police arrived and arrested him; and s. he denied spitting on the victim or making a threat towards the victim saying his words had been misconstrued. 44. The respondent was cross-examined. His evidence (in summary) was as follows: a. he denied spitting on the victim, stating that "may I add to that, saliva's got a lot of bacteria and I was a registered nurse, I was nursing for a long time, it is disgusting. He could have contracted anything that I potentially would have had."; b. he maintained that he and the victim walked towards each other and the victim punched him in the face; c. he denied he was angry and was only upset after the first incident, visibly crying; d. he stated he had in fact tried to call Police after the first incident, but it was dead; e. he stated he had also tried after the second incident, because his phone can switch back on sometimes as it is old; f. he said he did not ask the security guards to call Police after the first incident because he did not think it was an emergency situation at that point, adding that, "I've worked in ICU, I've worked in haematology, if someone has a heart attack, if someone stopped breathing, if someone has a seizure, that's when you press triple-0"; g. he added that there were no Police in the vicinity at that time; h. he clarified that he did enter the store three times, on the middle occasion speaking with the independent security guard witness. He did not make any threat to this person about the victim, with his intention only being to get the victim's details; i. he maintained the victim punched him in the face on the third occasion; j. he denied hitting the victim with the umbrella more than once; k. he stated he did not hit the victim with the umbrella, only raising it to defend himself and making contact with the victim; I. he denied he was standing when this happened and maintained the victim was standing over him when this happened, being 'very aggressive and forceful'; m. he stated that he could be certain that he caused the victim's injuries; and n. he admitted that when arrested he said words to the effect of, "I'm a nurse. Like, please don't arrest me in front of all these people, please". 45. LCM Miller did not accept the respondent's evidence, stating that he had 'significant concerns' with it and finding that he was 'not an honest and reliable witness' but was rather 'attempting to tailor his evidence to suit the version that he was propagating'. 46. LCM Miller noted the respondent's evidence regarding his phone 'did not make sense' and commented on his evidence about causing the victim's injuries as follows: "It appears that it was never is in issue in the case that the strike by the defendant to the complainant on the cheek was the action that caused the injury. There appeared little doubt in any of the case, yet it was something that the defendant could simply not bring himself to admit in the witness box. 47. The respondent's evidence (in transcript form only) was also considered by Her Honour Judge O'Rourke SC ('HH O'Rourke') on appeal to the District Court. In finding that the respondent was 'not an impressive witness, nor a witness of truth', she made the following remarks: "...to my mind it did not stand up well to scrutiny. The explanation provided for returning to the shop twice, that is to seek details to report on the complainant later to me was farcical. He was evasive and deliberately vague with an inability to state what he had in his hand when he struck out at the complainant and failed to make the obvious concession, that is that his actions of striking out with an item caused the injuries to the complainant's face. This demonstrated the incredulity of his evidence." Local Court Sentence Material 48. A number of relevant documentary material was before the Local Court at the respondent's sentence on 24 July 2018. Statement to the Local Court 49. In a written statement dated 18 July 2018, the respondent informed the court that the incident had caused his life to change dramatically. He spent 2 months incarcerated, lost his career (having since been rejected from 4 nursing roles due to the charges), lost his home, and experienced significant depression, anxiety, stress, sleep disturbances and relationship difficulties. 50. The respondent stated that he sincerely regretted the incident and injuries caused to the victim and had recognised 'he likely experienced significant distress'. Prior to the offending, he had no prior criminal charges or convictions and a great respect for the law, with his involvement with police limited to nursing. 51. The respondent stated that he had now begun seeing a psychologist and was currently enrolled in a Master of Public Health in Aboriginal Health and Wellbeing and a Master of Health Management. 52. LCM Miller on sentence found that the respondent had some remorse, although it was limited, noting: "The defendant in the letter to the Court accepted responsibility for his actions, it is not a clear unambiguous expression of acceptance of responsibility for what occurred but there is an acknowledgment, there was also an acknowledgment to the Community Corrections officer as reflected in the community report. So I find that there is remorse although of course it is to a limited extent.' Additional references 53. The respondent tendered a number of character references in support. Those not separately sent to AHPRA have been included in the Evidentiary Bundle. These include two references from professional colleagues attesting to the respondent's capacity to practice safely. Pre-Sentence Report 54. The respondent was the subject of a PSR by Corrective Services NSW, in which he was assessed as a low to medium risk of re-offending. 55. The report found that the respondent had initially tried to minimalize his offending by painting the victim as the aggressor, but later appeared to take responsibility for his actions and acknowledged he could have taken alternative action. He also expressed 'some remorse' for the victim. 56. The report detailed the respondent's subjective circumstances, including that he began seeing a psychologist at age 17 due to his sexual orientation, was the victim of an armed robbery whilst working at a store in 2013, and that he claims he has undiagnosed anxiety and depression (for which it was confirmed he is prescribed an anti-depressant). 57. The respondent stated that he was moderately intoxicated on the evening of the offence but had since ceased using alcohol and was addressing his alcohol use in counselling. The respondent also acknowledged he had anger management issues. Psychological Report 58. The respondent was the subject of a report from psychologist John McMahon. 59. The report confirmed that the respondent had intermittent psychological assistance since age 17 due to his sexuality and was prescribed Lexapro 20mg. Mr McMahon's opinion was that the respondent 'meets DSM5 criteria for Generalised Anxiety Disorder and Minor Neurocognitive Disorder on the background of a Dependent Personality Disorder (Passive Aggressive Traits)' and had a 'very low risk of offending, especially if he continues to eschew heavy consumption of alcohol'. ICO Assessment Report 60. The respondent was also the subject of an ICO Assessment Report dated 3 September 2018, largely repeating the substance of the PSR. However, the author did note that the respondent had also blamed his behaviour on the social unrest surrounding the marriage plebiscite. The report found the respondent suitable for an ICO. Emails to AHPRA 61. As part of the Commission's investigation, AHPRA have provided two emails received from the respondent on 20 September 2018. 62. The respondent provided a copy of the full Police facts, witness statements, a copy of his ICO and a court results notice showing sequence 3 was withdrawn. The respondent claimed that information provided by Police had 'several key components missing - either done deliberately, accidentally or by formal process of the Police. The missing components can all be found in the witness statements'. 63. The respondent advised that the matter had been listed for a conviction appeal and claimed that, "I also have video surveillance which also discredits the witnesses'. Self-reflection log - 8 November 2018 64. On 8 November 2018, the respondent submitted a self-reflection log to the Council in advance of s 150 proceedings. When asked what he would do if faced with a similar situation, the respondent wrote, I would have let the man assault me or try to escape. Self-defence after being assaulted was my first immediate reaction to being assaulted". Counselling Interview 65. The respondent attended a counselling interview on 18 April 2019. The respondent informed delegates he had reacted to homophobia and did not instigate the fight, which was mutual. He maintained his innocence and expressed confidence his convictions would be overturned on appeal. 66. The respondent confirmed he would not act in such a way in a clinical setting and the conduct was out of character and isolated, as he usually de-escalates situations. Further, he did not usually behave aggressively when under the influence of alcohol. The respondent also advised he had been assessed as a low risk of re-offending. 67. Regarding his failure to report his charges to AHPRA, the respondent advised that he was aware of his obligation but did not do so because he was in remand for 8 weeks, thereafter tried to get back into a normal routine, and went through a 13-month back-and-forth with the Office of Children and Guardian regarding his Working With Children Check. Section 150A proceedings 68. The respondent attended a s 150A hearing on 16 December 2019 seeking to be able to return to practise. He accepted that he had not previously seen 'the error of my ways' and was trying to excuse his behaviour, but now accepted that 'my actions are inexcusable', involved 'reckless judgment on my part, reckless behaviour', and had a substantial impact on the victim. 69. The respondent was queried about whether he had undertaken anger management counselling given the likelihood of being abused or assaulted as a nurse. The respondent felt that it was not needed given it was, "a lapse in judgment at the time, heavily induced by alcohol, and yes, some provocative things were said to me and I made some very bad choices". He informed delegates that he had never been in a fight before and now acknowledged that he is 'a nurse 24/7'. 70. The respondent confirmed that he continued to consult with his psychiatrist and had a continued prescription for Lexapro 20mg. Furthermore, he now only drank in a safe environment. Evidence of practice since s 150A 71. Absent engagement from the respondent, on 20 May 2021 the Commission sought an update from the Council on his compliance with conditions. 72. On 27 May 2021, the Council provided a 'Practitioner Summary' showing the practitioner's history of correspondence with the Council Monitoring Team. Relevantly, the practitioner advised the Council on 10 June 2020 and 23 March 2021 that he was not employed as a nurse. F. UNSATISFACTORY PROFESSIONAL CONDUCT 73. The Commission submits that both Complaints Two and Three amount to unsatisfactory professional conduct. Complaint Two 74. It has been held by the Tribunal that such breaches of the National Law, once proven in fact, amount to unsatisfactory professional conduct: Health Care Complaints Commission v Kauser [2020] NSWCATOD 42 at [71 - 72]. Complaint Three 75. The terms 'improper' and 'unethical' are not defined in the National Law. In Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25, the Tribunal found the following at [67]-[69]: "The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as 1. Not "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral'; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law. 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 Byrne (1995) 193 CLR 501 at 514-515: see Health Care Complaints Commission v Phung (No. 1) (2012) 1 NSWDT at 68. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 1398(1)(1) stating at paragraphs 47 to 49: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited." 76. The Commission submits that the provision of false or misleading information regarding a practitioner's criminal history is improper and unethical because it is a breach of expected standards of practice for nurses, namely: a. Element 2 of the International Council of Nurses' Code of Ethics for Nurses, which states that, "The nurse at all times maintains standards of personal conduct which reflect well on the profession and enhance its image and public confidence"; and b. Principle 4 of the Nursing and Midwifery Board of Australia Code of Conduct for nurses', the underlying value of which is that 'Nurses embody integrity, honesty, respect and compassion'. G. PROFESSIONAL MISCONDUCT 77. Complaint Four is that the unsatisfactory professional conduct of the respondent also amounts to professional misconduct, in that it is of a sufficiently serious nature to justify suspension or deregistration: section 139E of the National Law. The Commission relies upon the particulars of Complaints Two and Three both individually and in combination. 78. In making this assessment, the Tribunal may be guided by the following principles: a. there is no category of unsatisfactory professional conduct which is not capable of forming professional misconduct: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]-[21]; b. the traditional common law definition of professional misconduct is that "which would be reasonable regarded as disgraceful or dishonourable by professional brethren of good repute and competency": Allinson v General Council of Medical Education and Registration [1984] 1 QB 750; c. professional misconduct may be made out by a deliberate departure from professional standards or 'such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration': Pillai v Messiter [No 2] (1989)16 NSWLR 197; and d. the gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. Complaint Two 79. The seriousness of the conduct underlying Complaint Two is well-established. For example, in Shrimpton the Tribunal noted at [72] that: "[I]t is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at paragraph 81." 80. That such conduct warrants protective orders was emphasised in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 where the Tribunal said at [34]: "In cases where the omission to report is deliberate or careless, a protective order would almost invariably be appropriate, both to reinforce the importance of reporting to the practitioner in question, and also to provide a general deterrence to other health practitioners." 81. In this case, the respondent admitted that he was aware of his reporting obligations but still did not report his charge for 5 months. 82. Whilst the respondent was incarcerated, he still had a duty of candour and his failure to meet this undermines the protective purpose of the reporting scheme. Furthermore, he has not provided any reason for his failure to report his convictions (although it is acknowledged he did provide a copy of his ICO and other material to AHPRA 10 days after it was imposed). Complaint Three 83. The dishonest conduct in Complaint Three is inherently serious and, as set out at [75] to [76] above, is a significant departure from professional standards. The Commission submits that by this conduct alone, and in combination with the ongoing conduct in Complaint Two, professional misconduct is made out. H. PROTECTIVE ORDERS Circumstances render the practitioner unfit in the public interest 84. The Tribunal may suspend or cancel the protective orders if the circumstances of the offence/s render the respondent unfit in the public interest: s 149C(1)(c) of the National Law. The relevant principles were recently outlined by the Tribunal in Health Care Complaints Commission v Russ [2021] NSWCATOD 5: a. the assessment is current rather than at the time of the offences, but is directed at the circumstances of the offence only: "The question for the decision-maker seeking to apply s 149C(1)(c), therefore, is whether the circumstances surrounding the relevant offence currently render the practitioner unfit to practise his or her profession in the public interest. The Tribunal must look back to the circumstances of 2018-19 and make that assessment in the present. Nonetheless, that evaluation has a narrow focus and is to be undertaken solely by reference to "the circumstances of the offence" - at [39]; b. the circumstances of the offence are broad, in keeping with the public protection purposes of the National Law. "The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances." - at [42] c. the public interest is also broad: "is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: - at [37], citing Pharmacy Council v Ibrahim [2020] NSWSC 708; 85. For the reasons set out below, the Commission submitted that the circumstances of the respondent's conviction do render him unfit in the public interest to practice nursing, and the Tribunal should cancel his registration. The reckless wounding 86. In this matter, the seriousness of the actual offence is evident from the injuries to the victim and the custodial penalty imposed. The impact of the respondent's conduct on the victim can be seen in the Victim Impact Statement tendered to the Local Court, where the victim said he has a permanent scar, suffered relationship and family stress, and experienced mood swings and depressive thoughts. 87. Whilst there was an element of provocation in this case (which did not reach the relevant threshold to be a mitigating factor within the meaning of s 21A of the Crimes (Sentencing Procedure) Act 1999), the respondent was the aggressor, returning to the store on two occasions to confront the victim; the first time making a threat about what he would do to the accused and on the second inflicting a serious wound. 88. The following summary HH O'Rourke on appeal is particularly telling: "Therefore the preponderance of the evidence in the Crown case strongly presents a picture of the appellant who has become angered at the insult directed at him by the complainant and who then acted out in anger and frustration with a determination to hurt the complainant." 89. Such behaviour is clearly inconsistent with the public's expectation of nursing practitioners. As highlighted by delegates at the s 150A hearing, 'the public has a right to trust nurses' and 'don't expect to have nurses caring for them who have been convicted of a serious criminal offence'. This is particularly relevant given the challenges of physical and verbal abuse unfortunately often experienced by nurses in practice. Character, insight and relevance of time 90. The respondent is assisted by evidence of his good character and the absence of any other prior or subsequent violent offending, upon which it could be argued that his offending was isolated and uncharacteristic. Such factors were cited by LCM Miller who found that the respondent was 'unlikely to reoffend'. 91. The respondent is also supported by apparent insight shown at the s 150A hearing, with delegates finding that he 'has shown insights into his conduct and how his actions impacted on his victim, which he previously had not displayed'. On the respondent's evidence, this insight arose due to ongoing psychological treatment undertaken to address his behaviour. 92. The Commission acknowledges that the above factors were relevant to the Tribunal's finding of fitness to practice (and the imposition of a reprimand only) in Health Care Complaints Commission v Lidman [2020] NSWCATOD 48 and Health Care Complaints Commission v Russ [2021] NSWCATOD 5. 93. However, in this case the Commission submits that little weight should be given to the respondent's insight and the passing of time since the conduct, such that the Tribunal could not be satisfied that the respondent will not act in a similar way if abused in homophobic terms by a patient (as raised by s 150A delegates). 94. The Commission relies upon the following in support of this position: a. the respondent described his actions to delegates as 'reckless', which is in contrast with HH O'Rourke's finding that he had a 'determination to hurt the complainant'; b. the respondent was subject to adverse findings of credit by both LCM Miller and HH O'Rourke; c. the respondent has previously expressed remorse for his conduct in his statement to the Local Court, which LCM Miller described as "not a clear unambiguous expression of acceptance of responsibility for what occurred" and showed only 'limited' remorse; d. despite this apparent show of remorse, the respondent thereafter continued to deny his conduct, telling AHPRA he had evidence to discredit witnesses and maintaining in his self-reflection log and at the Counselling Interview that the victim was the aggressor; e. despite acknowledging to Corrective Services that he had anger management issues, the respondent informed the s 150A delegates that he did not consider it necessary, either in the past or currently; and f. the respondent has not engaged with these proceedings to demonstrate to the Tribunal the legitimacy of his expressions of remorse and insight at the s 150A hearing, or his personal, professional and mental health progress since the s 150A hearing (despite the s 150A delegates repeatedly discussing the Commission's investigation and advising the respondent to contact the Commission for an update). 95. The Commission also relies upon the reasoning of the Tribunal in Health Care Complaints Commission v Coutinho [2020] NSWCATOD 33 at [66] where a period of one month suspension was imposed (reduced from 6 months due to prior suspension), regarding a domestic violence offence of assault occasioning actual bodily harm: "We acknowledge, as the Tribunal did in the appeal proceedings, that while the Assault offence was a serious offence, it was the first such offence committed by the practitioner. We also acknowledge that there is no evidence to suggest that there is any issue with his competence as a practitioner, or that there have been any previous complaints against him. He provides specialist dental treatment in rural and regional parts of New South Wales. However, as discussed above the Tribunal is troubled by the practitioner's continuing lack of insight as to the seriousness of his conduct on 8 July 2017, his reluctance in oral evidence to acknowledge that he had hit his wife in the face, and his continued blaming of his wife for the events on that day. That is not consistent with the need to uphold standards of practising health professionals and maintain the high regard in which they are held by their patients, their peers, and the public generally, or with the requirement that a health practitioner act both professionally and personally with integrity and respect for the law." Circumstances do render the Respondent unfit in the public interest 96. Taking into account the above, the Commission submits that the serious violence of the respondent is antithetical to the standards expected of a nurse. There is clearly a need to deter such conduct and maintain public faith in the profession and, notwithstanding the assessment of a low likelihood of reoffending, the absence of evidence of real insight keeps open the possibility the respondent may react in a similar way in the future. Professional misconduct 97. If the Tribunal is satisfied that the respondent is guilty of professional misconduct, it may suspend the practitioner's registration for a specified period or cancel the practitioner's registration. 98. Whether the Tribunal should exercise this discretion is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 99. Such an exercise requires an assessment of the conduct itself as well as any remorse or insight, shown by the respondent: Health Care Complaints Commission v King [2013] NSWMT 9. 100. The Commission submits that in this case the professional misconduct of the respondent is sufficient to warrant cancellation. Conduct 101. The Commission relies upon the analysis above at [54] to [63] as to the seriousness of the respondent's departure from expected standards of a nurse. Remorse and insight 102. As set out above at [73] to [74], the Commission submits that the respondent has shown limited remorse and insight into his offending. That same lack of insight can be seen in relation to Complaints Two and Three, with the only response provided by the respondent being his justification for not reporting his initial charges. 103. The Commission submits that the respondent's lack of insight, and his lack of engagement in these proceedings, raises significant doubt for the Tribunal that the respondent will not engage in similar conduct in the future. Cancellation and appropriate review period 104. There is a strong need to protect the public from the criminal conduct engaged in by the practitioner, as members of the public have an expectation that nurses uphold expected standards of moral and civil behaviour. Furthermore, the safety of the public is diminished by behaviour which shows a lack of candour with regulators and undermines the important role played by the reporting scheme. 105. For these reasons, the Commission submits that the respondent's registration should be cancelled and a non-review period of 12 months imposed. I. COSTS 106. The Commission seeks its costs, as assessed or agreed. 88. In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. The presumption that the successful party is entitled to their costs will generally be displaced only where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]."
The Applicant made various oral submissions to the Tribunal and pointed out that the charge of grievous bodily harm against the Respondent was removed in 2018 and amended to a charge of reckless wounding. The Applicant stated that the evidence of the Respondent in the criminal charges against him was very defensive and blaming of the victim as pointed out by the Magistrate in the Local Court Downing Centre. His evidence was contrary to the findings made by the Magistrate and the Magistrate found that he was not a reliable and honest witness.
The credit of the Respondent was subject to comment by the Magistrate and by Judge O'Rourke of the District Court of New South Wales. The Magistrate did find that there was an element of remorse on the part of the Respondent and that based on the psychological position of the Respondent the Magistrate believed that there was a low risk of re‑offending.
The Applicant accepted that the behaviour may have been isolated and one‑off but pointed out that the Respondent has not engaged at all with the Tribunal to give them a chance to assess his remorse and insight and that his overall behaviour warrants cancellation. The matter was adjourned to give the parties an opportunity to make submissions on possible orders should the Tribunal determine that cancellation of the registration of the Respondent is not appropriate and a timetable was set for that purpose.
On 1 October 2021 the Applicant filed additional submissions which are set out below: "A. INTRODUCTION 1. This matter was part-heard on Friday 24 September 2021 in the respondent's absence. 2. Leave was granted for the Commission to rely upon its Amended Complaint. 3. The following material was admitted into evidence: a) Commission Documents filed 3 May 2021 (Exhibit A). b) AHPRA Evidentiary Certificate (inserted into Tab 1b, Exhibit A). c) Additional evidentiary documents filed 4 June 2021 (Exhibit B). d) Email from AHPRA confirming registration of the respondent as at 24 September 2021 (Exhibit C). 4. The Tribunal ordered that: a) the Commission provide supplementary submissions by Friday 1 October 2021; b) the respondent provide any submissions in reply by 22 October 2021; and c) the Commission provide any submissions in reply by 29 October 2021. 5. These submissions are filed in accordance with those orders and intended to supplement the Commission's updated submissions filed 14 September 2021 ('the Written Submissions'). References to the Written Submissions hereafter are recorded as are cited in the as follows: paragraph 1 of the Written Submissions would be (WS, [1]). B. PROTECTIVE ORDERS SOUGHT 6. Should the Amended Complaint be found proved, the Commission seeks protective orders under Subdivision 6, Division 3 of Part 8 of the National Law. 7. In this matter, the Tribunal may impose the following protective orders: a) impose conditions such as a reprimand or caution and conditions if the complaint is found proven: s 149A(1); b) suspend or cancel the respondent's registration if: i. the circumstances of the offences particularised in Complaint One render the respondent unfit in the public interest to practice: s 149C(1)(c); or ii. the respondent is found guilty of professional misconduct (Complaint Four): s 149C(1)(b); c) if the Tribunal cancels the respondent's registration, order that he not be permitted to apply for a review of such an order for a period of time: s 149C(7). 8. The Commission seeks that the Tribunal cancel the respondent's registration under s 149C(1)(c) and/or s 149C(1)(b) and order that the respondent not be permitted to apply for a review of such an order for 12 months. C. WHY CANCELLATION IS APPROPRIATE 9. The Commission submits that Complaint One and Complaint Four justify cancellation, both individually and in combination. Complaint One - cancellation is appropriate 10. The Commission relies upon the reasoning at WS, [84] to [96]. 11. The Commission accepts that the Local Court Magistrate ('LCM') found the respondent was unlikely to reoffend, was a person of good character with no relevant prior convictions, and that the respondent has a psychological illness. Furthermore, the respondent has not committed any further offences and completed his intensive corrections order. 12. However, in addition to the submissions by the Commission earlier in this decision the Commission submits that the following factors demonstrate that the circumstances of the respondent's conviction do render him unfit in the public interest to practice as a nurse: a) The reckless wounding offence is extremely serious, and the antithesis of the behaviour expected of a registered nurse. b) The respondent has shown limited evidence of insight. In sentence proceedings before the Local Court, the respondent was found to have some limited insight. However, the Commission submits that any insight displayed at that time should carry little weight. This is because of the respondent's subsequent denials in an email to AHPRA, his self-reflection log and his Counselling interview. The Commission accepts that the respondent was later found by the s 150A Panel to have developed sufficient insight to return to practice under conditions. The respondent attributed such insight to his personal development and psychological treatment. However, the Commission says that the weight of that insight must be balanced against the following: i. the respondent's insight arose after his District Court appeal failed and a condition had been imposed preventing him from practicing; ii. the respondent has not made himself available so that the Tribunal can currently assess the insight said to have been shown before the 150A Panel; and iii. the respondent has not provided any evidence of ongoing psychological treatment, which is said to have assisted him in developing that insight. iv. the respondent has not made himself available so that the Tribunal can currently assess the insight said to have been shown before the 150A Panel; and v. the respondent has not provided any evidence of ongoing psychological treatment, which is said to have assisted him in developing that insight. 13. In the absence of significant insight or ongoing rehabilitation by the respondent, particularly current evidence, cancellation of the respondent's registration will appropriately protect the public from the recurrence of his offending. 14. Furthermore, whilst the Tribunal's role is not punitive, the Commission relies upon the reasoning in Health Care Complaints Commission v Do (WS, [32]) as to the public interest in general deterrence. The Commission submits that cancellation will act to deter other practitioners and to maintain public faith in the profession through denunciation and reinforcement of expected standards. Complaint Four - cancellation is appropriate 15. The Commission relies upon the reasoning at WS, [73] to [83] and [97] to [103]. 16. In relation to the conduct in Complaint Two, the Commission accepts that the respondent's failure to declare his initial charge to AHPRA (particular 1) occurred in the context of a traumatic experience and following a period of incarceration. 17. However, regardless of the circumstances any failure to disclose material information to AHPRA undermines the important public protection role played by reporting obligations. Furthermore, despite his apology the respondent has shown limited insight of this fact, as evident from his subsequent failures as alleged in particulars 2 and 3. 18. In relation to the conduct in Complaint Three, the Commission accepts that the prior offences were traffic offences and occurred a significant time before the respondent's statement and statutory declaration to AHPRA. 19. However, again the Commission submits that the respondent's apology to AHPRA shows he was at that time aware of his overriding duty of candour to regulators. Furthermore, given the respondent was writing to AHPRA regarding his charge for criminal offences, the Commission submits that the respondent would have been aware of his prior interaction with the court system at that time. 20. In totality, the respondent's conduct shows an ongoing lack of transparency and honesty with regulators. Such conduct undermines public safety and requires significant deterrence and denunciation to overcome this. Furthermore, the respondent has not engaged with the Tribunal to show that he has demonstrated insight into his conduct such that it would not reoccur in the future. 21. In these circumstances, the Commission says that Complaint Four also justifies cancellation of the respondent's registration. Non-review period of 12 months 22. The Commission submits that a non-review period of 12 months is appropriate to allow the respondent time to properly gain insight and understanding into the seriousness of his conduct. Such a period will also provide an opportunity for the respondent to demonstrate the action he has taken to address such behaviour, including ongoing psychological support. D. ALTERNATIVE PROTECTIVE ORDERS 23. Should the Tribunal find that cancellation is not appropriate, the Commission submits that the following protective orders should be imposed: a) suspension of the respondent's registration for 6 months; b) a reprimand; c) practice conditions. 24. A suspension and reprimand would enable the respondent to demonstrate any insight into his conduct whilst remaining on the register and act as both a specific and general deterrent to protect the public. 25. The Commission submits that the following practice conditions would also ensure that the public is safely protected once the respondent returns to practice: 1. Not to undertake agency nursing. 2. Not to be the nurse in charge of any shift, ward or unit. 3. Not to work as the sole practitioner on any shift, ward or unit. 4. Not to work night duty (between 10.00 pm and 6.00 am). 5. To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of returning to practice that the practitioner has provided a copy of this decision and his full practice conditions to his employer. 6. Within seven (7) days of a change in the nature or place of practice, the practitioner is to forward evidence to the Nursing and Midwifery Council of NSW that he has provided a copy of this decision and his practice conditions to his new employer. 7. To authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. He must only be employed as a nurse/midwife in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions. 8. To practice under indirect supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. (a) to nominate a supervisor for approval by the Council, within 14 days of returning to practice or as specified by the Council. (b) to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any of the following: i. failure to attend for treatment; ii. termination of treatment; or iii. a significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating practitioner/s; and c. must provide evidence to the Council of his attendance with the treating practitioner, as specified by the Council. 14. To attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any of the following: i. failure to attend for treatment; ii. termination of treatment; or iii. a significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating practitioner's; and c. must provide evidence to the Council of her attendance with the treating practitioner, as specified by the Council. 16. To attend for review by a Council-appointed psychiatrist within 3 months of returning to practise and otherwise as directed by the Nursing and Midwifery Council of NSW. The professional costs of the reviews pursuant to this condition will be met by the Council. 17. To provide a copy of the Tribunal decision and any subsequent reports and any other information relevant to his health and treatment to the treating practitioners. 18. The Nursing and Midwifery Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). 19. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia. 26. The proposed conditions largely mirror those imposed by the s 150A Panel, however the respondent has yet to practice under such conditions."

Health Care Complaints Commission v Muthunesan

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (25)

Cited By (3)