Health Care Complaints Commission v Nkanyezi [2025] NSWCATOD 140;

(1) the practitioner was convicted on 10 December 2021 at Crown Court Chelmsford in the United Kingdom of a criminal offence, in particular, one count of sexual assault on a female, which is a ground for complaint under s 144(a) of the National Law ("Complaint One");

(2) the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he contravened s 130(1) of the National Law by failing to give notice of a "relevant event" as defined in s 130(3) to the National Board, being notice that he had been charged and notice that he had been convicted of an offence punishable by imprisonment ("Complaint Two");

(3) the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice of paramedicine by failing to disclose his criminal history to Ahpra ("Complaint Three"); and

(4) the practitioner is guilty of professional misconduct under s 139E of the National Law in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or, in the alternative, engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration ("Complaint Four").

1. The practitioner's registration in the United Kingdom has now been cancelled and his Australian registration is currently suspended.
2. The Commission filed an application for disciplinary findings on 14 January 2025, seeking orders to have the practitioner's registration cancelled pursuant to s 149C(1)(b) for professional misconduct and pursuant to s 149C(1)(c) of the National Law because the circumstances of the offence render him unfit in the public interest to practise paramedicine. The Commission sought orders to disqualify him from being registered for 12 months and to prohibit him from providing health services for a period of 12 months, and an order for costs.
3. The practitioner did not file a reply to the Commission's Complaint and did not file any written submissions for consideration. On the day of the hearing, the practitioner advised that he had decided not to attend the hearing.
4. Pursuant to s 149 of the National Law, the Tribunal may exercise disciplinary power if it finds the subject matter of the Complaint against the practitioner to have been proved, or he admits to it in writing to the Tribunal. After considering all the relevant evidence, we find the subject matter of Complaints One, Two, Three and Four to have been proved.
5. We are satisfied that the practitioner's failure to notify the National Board of his charge and conviction and his deliberately dishonest renewal declarations to Ahpra reach the threshold of professional misconduct justifying cancellation of his registration pursuant to s 149C(1)(b) of the National Law. We are also satisfied that the circumstances of the offence committed by the practitioner render him unfit in the public interest to practice paramedicine justifying cancellation of his registration pursuant to s 149C(1)(c) of the National Law.
6. We have accordingly decided to cancel his registration and to set a non-review period of 12 months effective from the date of this decision before the practitioner will be entitled to apply for a review of the cancellation order and seek to be reinstated.
7. We are also satisfied that the respondent poses a substantial risk to the health of members of the public as a paramedic, and accordingly we make a prohibition order under s 149C(5)(a) of the National Law prohibiting him from providing health services for a period of 12 months effective from the date of this decision.
8. Finally, we order the respondent to pay the applicant's costs of these proceedings.

1. The Tribunal made an order on 19 May 2025 pursuant to clause 7 of Schedule 5D to the Health Practitioner Regulation National Law (NSW) that publication of the identity of Person A listed in the Schedule to the Complaint in these proceedings and that publication of the identity of Person B referred to in material filed in these proceedings, is prohibited.

Procedural note (hearing in the absence of the respondent)

1. At the request of the Presiding Member, the Tribunal's Registry wrote to both parties on 14 May 2025 and noted that if the respondent did not attend the proceedings, the hearing may proceed and a decision may be made in his absence. The Registry further noted that it may be in the respondent's interests to attend the hearing as listed on 19 May 2025.
2. The practitioner did not respond to the Registry's correspondence.
3. On the morning of the hearing, at around 10.03am, the Commission sent an email to the respondent, asking him to confirm whether he would be attending the hearing. The respondent responded by email at 10.42am, saying that he had decided not to attend.
4. The Tribunal Panel considered whether it should exercise its discretion to conduct the hearing in the absence of the practitioner. The Panel was satisfied that the practitioner had received proper notice of the hearing and that he had been advised that the hearing may proceed in his absence, with a decision made concerning the allegations in the Complaint and any protective orders considered to be appropriate. Having regard to the practitioner's lack of engagement with the proceedings, the Panel found there was no reason to believe that an adjournment would result in him attending a hearing of the Commission's application in the future. The Panel accepted that there was inevitably a potential disadvantage to a practitioner who did not attend a hearing, but it balanced that against the necessity to facilitate the just, quick and cheap resolution of the real issues in the proceedings, with the available Tribunal resources. A decision was made to conduct the hearing in the absence of the practitioner.

1. In support of its Application for disciplinary findings and orders, the Commission filed the following documents:

(1) a bundle of documents (comprising a report by the London Ambulance Service of an investigation into the conduct of the respondent, together with the respondent's criminal history as recorded by the Queensland Police Service) filed on 14 April 2025 (marked for identification as "Exhibit A1");

(2) a bundle of documents (including the Complaint, s 150 proceedings, transcript of proceedings in the Chelmsford Crown Court in December 2021, the practitioner's renewal disclosures to Ahpra, witness statements and the record of interview with the respondent at Chelmsford Police station in May 2019) filed on 23 April 2025 in two volumes (marked for identification as "Exhibit A2, Volume 1" and "Exhibit A2, Volume 2");

(3) a further bundle of documents (including affidavits of service and screenshots of the respondent's renewal applications with AHPRA) filed on 28 April 2025 (marked for identification as "Exhibit A3");

(4) a Chronology filed on 28 April 2025 (marked for identification as "Exhibit A4");

(5) further material (generally comprising correspondence between the Commission and the respondent) handed up during the hearing on 19 May 2025 (marked for identification as "Exhibit A5");

(6) an Evidentiary Certificate dated 2 May 2025 issued by AHPRA, filed on 5 May 2025 (marked for identification as "Exhibit A6");

(7) an email from the respondent on 19 May 2025 advising the Commission that he had decided to not attend the hearing (marked for identification as "Exhibit A7");

(8) written submissions dated 28 April 2025 (not marked).

1. No documents were filed on behalf of the respondent.

1. The Complaint set out four grounds and particulars which constituted the Complaint in these proceedings together with the background to each of Complaints One, Two, Three and Four.

"BACKGROUND TO ALL COMPLAINTS

In 2014, the practitioner completed a Bachelor of Paramedic Science at the University of Queensland.

On 8 February 2016, the practitioner commenced employment as a paramedic at London Ambulance Service NHS Trust in the United Kingdom.

Person A was a 25-year-old female paramedic who worked alongside the practitioner at London Ambulance Service NHS Trust.

On or around 6 May 2019, the practitioner was charged with sexual assault on Person A.

On 20 May 2019, the practitioner was first registered as a paramedic in Australia.

On 5 August 2019, the practitioner commenced employment with NSW Ambulance.

Between around 30 November 2021 and 16 January 2022, the practitioner travelled to the United Kingdom.

On 10 December 2021, the practitioner was found guilty of one count of sexual assault on a female at Chelmsford Crown Court in the United Kingdom in relation to Person A.

On 6 February 2022, the practitioner resumed his role with NSW Ambulance.

COMPLAINT ONE

Pursuant to section 144(a) of the National Law, the practitioner has been convicted of a criminal offence.

PARTICULARS OF COMPLAINT ONE

1. On 10 December 2021, at Crown Court Chelmsford in the United Kingdom the practitioner was convicted of one count of sexual assault on a female.

COMPLAINT TWO

The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner contravened section 130(1) of the National Law.

PARTICULARS OF COMPLAINT TWO

1. The practitioner failed to notify the National Board in writing, within 7 days of being charged or at any other time, that he had been charged with an offence punishable by 12 months imprisonment or more.

2. The practitioner failed to notify the National Board in writing, within 7 days of 10 December 2021, that he had been convicted of one count of sexual assault on a female.

COMPLAINT THREE

The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice of paramedicine.

PARTICULARS OF COMPLAINT THREE

1. On 24 November 2022, the practitioner provided false information to the Australian Health Practitioner Regulation Agency ("Ahpra") when he completed an application for renewal of general registration, in that he responded 'No' to the question 'Since your last declaration to Ahpra, has there been any change to your criminal history in one or more countries other than Australia that you have not declared to Ahpra?'

2. On 9 November 2023, the practitioner provided false information to Ahpra when he completed an application for renewal of general registration, in that he responded 'No' to the question 'Since your last declaration to Ahpra, has there been any change to your criminal history in one or more countries other than Australia that you have not declared to Ahpra?'

COMPLAINT FOUR

The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:

i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or

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

PARTICULARS OF COMPLAINT FOUR

1. Complaints Two and Three, and the particulars therein, are repeated and relied upon both individually and cumulatively."

Issues for the Tribunal to consider and determine

(1) whether Complaint One (the conviction) is proven;

(2) whether Complaint Two (failure to notify) (constituting unsatisfactory professional conduct) is proven;

(3) whether Complaint Three (false renewal amounting to improper and unethical conduct) (constituting unsatisfactory professional conduct) is proven;

(4) whether any proven unsatisfactory professional conduct amounts to professional misconduct (Complaint Four);

(5) whether, if the subject matter of the Complaint is proven, to exercise its disciplinary powers to make appropriate protective orders; and

(6) whether to order the practitioner to pay the Commission's costs of these proceedings.

1. The Tribunal acknowledges that it was greatly assisted by the provision of a Chronology prepared and filed by the Commission, from which we have drawn a substantial amount of information which is referred to in the following summary of relevant events leading to these proceedings.
2. The practitioner is currently 41 years of age and is married with two children. He graduated with a Bachelor of Paramedic Science at the University of Queensland in December 2014. He did not immediately register to practise as a paramedic in Australia, and worked as an Emergency Medical Technician at St John Ambulance Auckland in New Zealand from 8 September 2015 to 20 January 2016. He then travelled to the United Kingdom and became registered with the HCPC-UK and started working as a registered paramedic with the LAS on 8 February 2016.
3. He completed the London Paramedic Practice Course, including in coaching and mentoring for students undertaking a student paramedic program on 1 March 2016. He completed the LAS practice educator certificate on 31 July 2016. He continued working with the LAS during 2016, 2017, 2018 and 2019 (until his resignation on 31 July 2019).

1. Whilst working with the LAS, and before the incident on 4 May 2019 that resulted in criminal charges being laid against him, the practitioner applied for employment with NSW Ambulance (on 30 January 2019). He also applied for registration in Australia through Ahpra on 25 February 2019. He initially failed to disclose his criminal record concerning an incident in 2011 but subsequently provided a statutory declaration on 21 March 2019 to Ahpra explaining that he had been fined $200 for obstructing a Police Officer. His statutory declaration described an incident on 16 November 2011 in which he was in a vehicle while his wife was driving and she was pulled over by traffic Police for a routine stop. His young child was crying, suffering heat distress, and the practitioner interrupted the Police officer's enquiries of the practitioner's wife, following which he was charged with obstruction. He said that he did not realise it was a conviction on his record. In point of fact, we note that no conviction was recorded in relation to this incident.
2. A few weeks prior to 3 May 2019 (the date of the party at Person A's house), while still working as a paramedic in London, the practitioner was rostered to work with Person A who was 25 years old and a newly qualified paramedic with LAS. The practitioner was 35 years old at the time and occupied a more senior position than Person A. During the shift, the practitioner said he had had a "rough few months" and felt that he needed to "blow off steam". Person A invited him to a birthday party for her housemate (Person B) who was also a paramedic with LAS. The plan was to meet up any time between 8 and 10pm to have a drink at Person A's house and then go to a pub and club. Person A invited the practitioner to bring a duvet as they had offered people to stay overnight.
3. During the evening of 3 May 2019 and into the very early hours of 4 May 2019, the group went to a bar and a club. Person A's account of the practitioner's conduct during the evening culminating in his sexual assault upon her, is described in more detail under the heading "Circumstances of the Offence" below.
4. On the day following the party, 4 May 2019, Person A contacted the LAS to report the incident. The practitioner was immediately suspended from duty.
5. Person A provided a statement and an impact statement to Police on 4 May 2019. The Police contacted the practitioner on 4 May 2019 and interviewed him on 6 May 2019.
6. Soon after 6 May 2019, the practitioner was charged with sexual assault on Person A, contrary to s 3 of the Sexual Offences Act 2003 (UK). A person guilty of an offence under that section is liable, on conviction, to imprisonment for a term not exceeding 10 years.
7. The practitioner failed to notify the National Board in writing, within 7 days of being charged, or at any other time, that he had been charged with an offence punishable by 12 months imprisonment or more.
8. The practitioner did not disclose any change in his criminal history to Ahpra.
9. On 16 May 2019, the practitioner was interviewed by the LAS and denied the allegations made against him.
10. On 20 May 2019, the practitioner was first registered as a paramedic in Australia. Once registered, he was obliged to comply with the Paramedicine Board of Australia ("PBA") Code of Conduct.
11. On 29 May 2019, while suspended from LAS duties, the practitioner attended an interview with NSW Ambulance. He did not disclose any information about his charge at any point prior to, or during, his employment with NSW Ambulance.
12. He was offered employment with NSW Ambulance on 23 July 2019, and accepted the offer on 24 July 2019. He provided a resignation letter to LAS effective on 31 July 2019, and commenced employment with NSW Ambulance on 5 August 2019. After undergoing training and induction, he commenced as a paramedic intern on 7 September 2019.
13. On 29 November 2019, in his application for renewal of his registration, the practitioner answered "no" to the question: "Since your last declaration to Ahpra, has there been any change to your criminal history in one or more countries other than Australia that you have not declared to Ahpra?"

1. During 2020, the practitioner continued to work as a paramedic at NSW Ambulance.
2. On 6 February 2020, the HCPC-UK imposed an interim suspension on his paramedic registration for a period of 18 months.
3. On 16 October 2020, in his application for renewal of his registration, the practitioner again answered "no" to the question: "Since your last declaration to Ahpra, has there been any change to your criminal history in one or more countries other than Australia that you have not declared to Ahpra?"
4. Around 29 December 2020, an indictment was issued, charging the practitioner with sexual assault of Person A contrary to s 3 of the Sexual Offences Act 2003 (UK).
5. The practitioner did not notify the National Board or Ahpra of his indictment.

1. During 2021, he continued to work as a registered paramedic with NSW Ambulance. On 31 March 2021, he provided his Defence, denying touching or sexually assaulting Person A.
2. On 11 November 2021, upon renewal of his registration, the practitioner again answered "no" to the question: "Since your last declaration to Ahpra, has there been any change to your criminal history in one or more countries other than Australia that you have not declared to Ahpra?"
3. Whilst working with NSW Ambulance, the practitioner took leave (from 30 November 2021 until 5 February 2022) in order to travel to the United Kingdom and attend his criminal trial at Chelmsford County Court commencing on 7 December 2021. He pleaded not guilty. Person A and Person B gave evidence. The practitioner gave evidence on 9 December 2021.
4. On 10 December 2021, the jury found him guilty and he was convicted of one count of sexual assault on a female.
5. The practitioner did not notify the National Board in writing within 7 days of his conviction. He did not disclose any change in his criminal history to Ahpra. He did not disclose any information about his conviction to NSW Ambulance at any point during his employment with NSW Ambulance.
6. On 14 December 2021, the practitioner was sentenced to 18 months imprisonment, to be served as a 24 month suspended sentence. He was subjected to an indefinite restraining order, not to contact Person A. His name was entered on a sex offenders database for 10 years under Part 2 of the Sexual Offences Act 2003 (UK). He was ordered to pay the prosecution costs, and to pay compensation to the victim as well as a surcharge.
7. The practitioner did not appeal the conviction or the sentence.

1. The practitioner returned to Australia on 16 January 2022 and resumed working for NSW Ambulance on 6 February 2022.
2. From June 2022, he was obliged to comply with the Ahpra Code of Conduct.
3. Whilst working with NSW Ambulance, after his conviction, he again provided false information to Ahpra on his registration renewal on 24 November 2022 by answering "no" to a question asking whether there had been a change to his criminal history in one or more countries other than Australia that he had not declared. He failed to disclose his sexual assault conviction when renewing his registration with Ahpra.

1. The practitioner also did not disclose the sexual assault conviction on his registration renewal with Ahpra on 9 November 2023. He again provided false information to Ahpra by answering "no" to a question asking whether there had been a change to his criminal history in one or more countries other than Australia that he had not declared.
2. On 20 November 2023, the HCPC-UK emailed the practitioner notice of a hearing on 18 December 2023 before the Conduct and Competence Committee Panel ("the Panel") to consider whether he should be struck off. The practitioner did not respond. The Panel conducted the hearing in his absence and was satisfied that a striking off order was appropriate and proportionate in the circumstances to protect the public, maintain public confidence in the profession and maintain public confidence in the regulatory process. On 18 December 2023, the practitioner was struck off the UK Register.
3. On 28 November 2023, the practitioner worked his last shift at NSW Ambulance.
4. On 28 November 2023, Ahpra received an anonymous complaint stating that the practitioner had been convicted at Chelmsford Crown Court for sexual assault, then fled to Australia and had been practising as a paramedic without notifying the registration board or his new employer.
5. On 29 November 2023, the Paramedicine Council of NSW ("the Council") provided a copy of the complaint to the practitioner, requesting him to provide information by 1 December 2023 and to attend section 150 proceedings on 4 December 2023.
6. On 30 November 2023, the practitioner sent a resignation letter to NSW Ambulance, due to an "immediate personal matter".
7. On 1 December 2023, the practitioner emailed the Council, saying that he did not intend to attend the s 150 hearing. He attached an information form in which he stated that he was not currently working as a health professional.
8. On 4 December 2023, the Council held s 150 proceedings which are outlined below in the sub-heading "Section 150 hearing".
9. On 28 December 2023, a news article about the practitioner was published online: "London paramedic groped female coworker in her bed after night out". NSW Ambulance had no prior knowledge of the practitioner's UK criminal history until the article was published.

1. The s 150 proceedings on 4 December 2023 were held in the practitioner's absence. The hearing was therefore conducted on the papers. The Council noted that there were no previous complaints relating to the practitioner in the Australian context but noted that he had been suspended from the UK register after being convicted of sexual assault and that these matters had not been declared to Ahpra as required.
2. In considering whether it was appropriate to take action for the protection of the safety or health of the public, or otherwise in the public interest, the Council considered whether there were any conditions that could be imposed on his registration.
3. The Council considered whether the practitioner had demonstrated the required level of honesty and credibility in accordance with professional codes of conduct for health professionals. In light of the practitioner's failure to declare his conviction to Ahpra, his false declarations to Ahpra and his failure to present an explanation of those matters, the Council formed the view that it was appropriate to take action under s 150 of the National Law. The Council considered if there were conditions that could be imposed on the practitioner's registration that would sufficiently mitigate the risks to the health or safety of the public, or would mitigate concerns regarding the public interest. On the basis of information before it that the practitioner was not working as a paramedic, the imposition of conditions would not offer any protection. Accordingly, in all the circumstances, the Council decided to suspend his registration effective from 5 December 2023.
4. The Council referred the matter to the Commission under s 150D of the National Law, to be dealt with as a complaint for investigation.

1. On 17 January 2024, the Commission emailed the practitioner a letter notifying him that the complaint against him was being investigated and inviting him to provide a response and current CV.
2. On 8 April 2024, the practitioner provided a response to the Commission, confirming that he had not disclosed the sexual assault charge and conviction to Ahpra or the Council. He also confirmed he was not working as a paramedic in NSW or any other State or Territory of Australia, or outside Australia. He advised that he was working as a warehouse labourer with various labour hire agencies.
3. On 10 July 2024, at the end of its investigation, the Commission sent the practitioner a letter pursuant to s 40 of the HCC Act advising him that the Commission was of the view that he had engaged in improper and unethical conduct and that he may not be a suitable person to hold registration as a paramedic. The Commission's letter advised that the matter was being referred to the Director of Proceedings under s 39(1)(a) of the HCC Act for determination whether to prosecute a complaint before a professional body. The practitioner was invited to provide submissions on the proposed prosecution of the complaint. The practitioner did not provide a response.
4. The Commission filed its Application for disciplinary findings and orders, attaching a copy of the Complaint, on 14 January 2025.
5. The practitioner did not provide or file a response or defence to the Application.

1. The practitioner arrived at Person A's house on 3 May 2019 for the party being held for her housemate, Person B. Other paramedics also attended the party. The practitioner went, along with a group of other attendees, to a pub and then moved on to a club where they were drinking and dancing. Person A's evidence in the criminal trial was that she started to feel uncomfortable that the practitioner was staring at her and dancing too close to her. She described his dancing as "sexualised" and she asked him to stop, but he continued. Person A then asked a friend to come to her aid if the practitioner came close again.
2. Person B's oral evidence during the trial was that the practitioner was dancing at the club and Person A had said that he had touched her and she was feeling uncomfortable. She described his dancing as "sexual". He was pressing himself upon Person A from behind her.
3. Person A and others returned to Person A's house at around 3.30 or 4 am on 4 May 2019. Person A then arranged bedding for those who were staying (including the practitioner) and then she retired to the top floor where her friend, a nurse, had already gone to bed. The practitioner was invited to sleep on the ground floor along with those remaining.
4. Person A went upstairs to her bedroom where she was sharing a bed with her friend, the nurse. At 5:54am on 4 May 2019, the practitioner sent a message to Person A. The message simply said Person A's name, and she ignored the message. She then heard someone coming up the stairs to where her room was located and sat at the top of the stairs. She was aware that it was the practitioner and pretended to be asleep. She heard him moving and then was aware of his presence, sitting on the floor next to the bed. He then assaulted Person A while she was in her bed.
5. Person A described that he put his hand down inside her shorts and touched her vaginal area. She said she froze and crossed her legs. He then moved his hand up and touched her breast, moving his hand around her nipple. She again said she froze. She didn't say anything and turned away on the bed, hoping he would stop. He then put his hand down the back of her shorts and touched her vaginal area again. She said she was "scared". She hit her friend on the back to get her awake and said "Get him to stop" or "Please make him stop and get him out". She then remembers getting out of bed and screaming at the practitioner "Get out! Get out of my house!"
6. Person B's oral evidence during the trial was that Person A had run into Person B's room, screaming "Get him out, get him out, get him out". Person B said that Person A was really upset, crying and shaking. Her evidence was that the practitioner didn't look confused or surprised, but had a deadpan expression as he was leaving the house and he didn't ask Person B anything.
7. The practitioner then messaged Person A on Facebook Messenger, complaining that her friends had kicked him out. Person A replied saying "You fucking touched me while I was sleeping, you can fuck off". The practitioner repeatedly tried to call her. After Person A asked him to stop calling, he continued to message her in a deflective manner, sending her a series of messages suggesting that nothing untoward had occurred but if he had upset her, he would take the blame for that. Person A repeatedly asked him to stop contacting her. However, he continued to seek to deflect responsibility by saying "...if you put allegations like that toward me, am bound to respond. Please don't be prejudiced, Am ready to fight every allegation you mentioned with all my might mate, and I can. Be assured of that. I did nothing but help, if your night was bad and you need lay blame, by all means go ahead, I came into your house with gifts, yet you sent me out like a dog? KARMA... Reputation does precede, I do no wrong to anyone, I've not done wrong to anyone ... your night ended badly, I was not responsibly for that. Blame it on me I don't mind ... but do not pull me through your dirt ... In fact Never pull me through dirt ...".
8. In his interview with Police, the text messages were read to the practitioner and he gave context according to his own view of what had occurred. In response to Person A's message: "You fucking touched me when I was sleeping you can fuck off", he said "I'm so sorry". He told Police that he was just "giving a courtesy apology to someone who's hosted me for the night and yet kicked me out in the morning that way". He said he had wanted to talk to Person A with the intention of getting to the bottom of what happened after what he felt had been a good night. He was asked by Police what his opinion would be if, hypothetically, he saw somebody else engaging in the behaviour that had been alleged against the practitioner. His response was:

"If I saw someone sexually assaulting someone you know that's not, that's not good, it's not acceptable. It's not acceptable by society standards by any means. I'm a paramedic you know."

1. The practitioner was then asked to reply from the perspective of his own standards and viewpoint, to which he said "No it's not right" and "That should never happen to anyone".
2. The practitioner denied the allegations to Police. In his Defence Statement filed in the Crown Court, the practitioner denied a number of matters including that he was very drunk during the night in question, that he had been flirting with Person A, that he was 'grinding' with her when dancing, that he entered her room uninvited and sat on the floor next to her while she was in bed, that he touched her in the manner described or at all, and that he had apologised for sexually assaulting her.
3. His Defence Statement also asserted that Person A had invited him to sleep on her bed if he wished, that he had laid down on the bed on top of the bedcover on his right side facing away from her, that he fell asleep only to be woken by persons in the house shouting at him, that he did not know why he was being shouted at and asked to leave and that any subsequent communication between himself and Person A was an attempt by him to discover what it was that he was alleged to have done.

Relevant statutory provisions and legal principles

1. In all matters before it under the National Law, the Tribunal is guided by s 3A which states:

The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration.

1. Accordingly, when assessing whether it is appropriate to make disciplinary orders against a practitioner, the fundamental and paramount consideration for the Tribunal is the protection of the health and safety of the public.

Grounds for complaint against registered health practitioners

1. Section 144 of the National Law sets out the grounds on which complaints may be made about a registered health practitioner. Relevantly, having regard to the allegations in the case before us, we set out below ss 144(a) and 144(b):

(a) Criminal conviction or criminal finding

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

(b) Unsatisfactory professional conduct or professional misconduct

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

1. Section 139B(1) of the National Law sets out the meaning of "unsatisfactory professional conduct" of registered health practitioners.
2. For the purpose of these proceedings, we note that reference to "unsatisfactory professional conduct" includes:

(1) in s 139B(1)(b) a contravention of a provision of the National Law; and

(2) in s 139B(1)(l) any other improper or unethical conduct relating to the practice of the practitioner's profession.

Failure to give notice of a "relevant event" to the National Board constitutes "unsatisfactory professional conduct"

1. Under s 130(1) of the National Law, a registered practitioner must, within 7 days of becoming aware that a "relevant event" has occurred, notify the National Board in writing of the event.
2. A "relevant event" is defined, under s 130(3) to mean:

(1) the practitioner is charged with an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or

(2) the practitioner is convicted with an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere.

1. A practitioner's failure to notify the National Board in writing of a "relevant event" is a contravention of a provision of the National Law under s 139B(1)(b) and constitutes "unsatisfactory professional conduct".

Applications for renewal of registration and statement about criminal history

1. Under s 107(1) of the National Law, a registered practitioner may apply to the National Board for renewal of registration.
2. Under s 109(1)(b) of the National Law, an application for renewal of registration must include a statement that includes details of any change in the practitioner's criminal history that occurred during the preceding period of registration.
3. It is alleged that, in making false renewals for registration, the practitioner engaged in improper or unethical conduct in the practice of paramedicine.

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

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

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

Powers of the Tribunal if a complaint is proved or admitted

1. If a complaint is proved or admitted, the Tribunal may exercise its disciplinary powers as set out in s 149 of the National Law:

The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if -

(a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or

(b) the practitioner or student admits to it in writing to the Tribunal.

1. The Tribunal's general powers to suspend or cancel a practitioner's registration are found in s 149C(1) of the National Law as set out below:

(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied -

(a) the practitioner is not competent to practise the practitioner's profession; or

(b) the practitioner is guilty of professional misconduct; or

(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or

(d) the practitioner is not a suitable person for registration in the practitioner's profession.

1. In addition to its powers to suspend or cancel a practitioner's registration, the Tribunal has power to make a prohibition order against a practitioner if it is satisfied that the practitioner poses a substantial risk to the health of members of the public. The power to make a prohibition order is found in s 149C(5) of the National Law, as set out below:

(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following -

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

Orders are intended to be protective and not punitive

1. Orders are made under the National Law for the protection of the public and not for the purpose of punishing the practitioner, as pointed out by the High Court of Australia in the context of the disbarment of a legal practitioner in Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186 (Clyne) at 201-202:

"Although it is sometimes referred to as the 'penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege."

1. The decision in Clyne has been adopted in a number of Tribunal decisions including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 (Liu) at [42] and Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 (Meneghetti) at [97].
2. Although the specific purpose for which orders are made is protective of the public interest and not punitive with respect to the practitioner, it is acknowledged that such orders may be punitive in their effect, and that punitive effect may be relevant in formulating a protective order: Meneghetti at [98]; Lee v Health Care Complaints Commission [2012] NSWCA 80 (Lee) at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].

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

Maintaining public confidence in high standards of a profession

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

1. Protective orders also involve an element of deterrence, encouraging other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Meneghetti at [98] citing Prakash at [91].

1. The burden of proof rests with the Commission: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [3].
2. The standard of proof required to establish a complaint is the civil standard, that is, on the balance of probabilities: Liu at [40]. Because of the seriousness of the allegations and the gravity of their consequences, the Tribunal must have "a reasonable satisfaction" that the particulars of a complaint have been proved, as per Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) at 362:

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."

1. Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact. However, s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW), provides that the Tribunal is not bound by the rules of evidence. Therefore, strictly speaking, neither the Briginshaw civil standard (having the particulars of a complaint proved to the reasonable satisfaction of the Tribunal) nor s 140 of the Evidence Act 1995 applies directly in decision-making by the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41.
2. However, as noted in Meneghetti at [13]-[14], the general accepted approach is that when deciding whether the evidence is sufficient to meet the civil standard of proof, the Tribunal will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding.

Use of approved standards, codes or guidelines in disciplinary proceedings

1. Under s 41 of the National Law, an approved code or guideline approved by a National Board is admissible in disciplinary proceedings.
2. Accordingly, the Code of Conduct for Paramedics issued by the Paramedicine Board of Australia ("PBA") in June 2018 which sets out the standards for practitioner behaviour and seeks to assist and support practitioners to deliver appropriate, effective services within an ethical framework, is admissible in these proceedings. The PBA Code of Conduct is a legitimate standard or benchmark against which the practitioner's conduct may be assessed or measured.
3. Likewise, the Code of Conduct issued by Ahpra & National Boards in June 2022 sets out the standards of professional conduct the National Boards expect and is used by Boards to evaluate practitioners' conduct. The Ahpra Code of Conduct specifically states that practitioners have a professional responsibility to be familiar with, and to apply, the Code. The Ahpra Code of Conduct is admissible in these proceedings and is a legitimate standard or benchmark for assessing the practitioner's conduct.

1. After examining all the relevant evidence, we make the following findings with respect to Complaints One, Two, Three and Four.

1. Complaint One is that the practitioner has been convicted of a criminal offence, which we note is a ground for complaint pursuant to s 144(a) of the National Law.
2. The evidence supporting Complaint One includes:

(1) the transcript of the hearing on 10 December 2021 in which the jury found the practitioner guilty on the indictment;

(2) the transcript of the sentencing hearing on 14 December 2021 in the Crown Court at Chelmsford;

(3) the certificate of conviction or finding issued by the Crown Court on 14 December 2021;

(4) the Restraining Order made on 14 December 2021;

(5) the Suspended Sentence Order issued on 16 December 2021;

(6) the practitioner's email dated 8 April 2024 to the Commission in which he acknowledged tacitly that he had been charged with, and convicted of, sexual assault on a female whilst working for the LAS.

1. Complaint Two asserts that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he contravened s 130(1) of the National Law by failing to notify the National Board of his criminal charge (Particular 1 of Complaint Two) or his conviction (Particular 2 of Complaint Two).
2. Particular 1 of Complaint Two alleges that the practitioner failed to notify the National Board in writing, within 7 days of being charged or at any other time, that he had been charged with an offence punishable by 12 months imprisonment or more.
3. Particular 2 of Complaint Two alleges that the practitioner failed to notify the National Board in writing, within 7 days of 10 December 2021, that he had been convicted of one count of sexual assault on a female.
4. Under s 130(1) of the National Law, all registered practitioners including paramedics have a statutory obligation to notify the National Board in writing within 7 days of being aware of being charged with an offence punishable by 12 months imprisonment or more. That statutory obligation also requires paramedics to notify the National Board in writing within 7 days of being convicted of any offence punishable by imprisonment.
5. Practitioners are obliged to inform themselves of their regulatory requirements and a failure to do so does not excuse non-compliance: Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 (Drakopoulos) at [32]:

"...It is incumbent upon health practitioners to inform themselves of the regulatory requirements under which they practice. A failure to do so does not excuse non-compliance."

1. Regulation of the profession of paramedicine ensures the health and safety of the public and enhances the confidence of the public in the integrity and competence of the profession. Regulatory authorities such as the Paramedicine Board of Australia are able to maintain control over any practitioner who has engaged in conduct that is harmful to the profession. The importance of complying with s 130(1) was explained in Drakopoulos at [31], a case concerning a dentist's failure to notify the regulatory authority of his convictions with respect to offences involving prohibited drugs:

"... A requirement that dentists are compelled to inform the regulatory authority of any criminal charges and convictions for criminal offences, in each case of a serious nature, is a means by which the regulatory authority is able to maintain control over any practitioner who has engaged in conduct which is inimical to the proper and ethical conduct of dentists. Not only is there a requirement to provide this information as and when it occurs, but also on renewal of registration. A failure to comply with these requirements as and when compelled to do so is potentially a matter of some seriousness."

1. Failing to notify about certain types of criminal charges and convictions deprives regulatory authorities of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest stage. As explained in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 (Bolton) at [100]:

"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. Section 130 is seen as being part of the protective architecture of the National Law. Compliance with s 130 allows regulatory authorities to decide whether a practitioner's criminal history is relevant to the practise of their profession and ensure that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered: Bolton at [190].
2. Additionally, the PBA Code of Conduct sets out reporting obligations in paragraph 8.3 which states:

"Practitioners have statutory responsibility under the National Law to report matters to the National Boards: please refer to the Board's guidelines on mandatory reporting and sections 130 and 141 of the National Law ... Good practice involves:

a) being aware of these reporting obligations

b) complying with any reporting obligations that apply to practice..."

1. As an employee of NSW Ambulance, the practitioner's contract of employment required him to comply with the NSW Health Code of Conduct and the core values and principles that it promotes. Under paragraph 4.3.11, practitioners are required to "observe all laws, professional codes of conduct and ethics relating to their profession". Paragraph 4.3.18 echoes the statutory obligation to notify regulatory authorities of criminal charges and convictions. Employees must:

"Report criminal charges and convictions against them involving offences punishable by imprisonment for 12 months or more to their Chief Executive within 7 days of the charge being laid or a conviction recorded."

Evidence relied upon to establish Particulars 1 and 2 of Complaint Two

1. On 25 February 2019, the practitioner applied for registration in Australia through Ahpra.
2. On 6 May 2019, he attended an interview at Chelmsford Police. Soon after that date, he was charged by Police with sexual assault on Person A, contrary to s 3 of the Sexual Offences Act 2003 (UK). The offence was punishable by up to 10 years imprisonment and therefore attracted the obligation to disclose the charge to the National Board.
3. On 20 May 2019, he was first registered as a paramedic in Australia. Once registered, he was obliged to comply with the PBA Code of Conduct, including the reporting obligations noted above.
4. Around 29 December 2020, an indictment was issued charging the practitioner with sexual assault of Person A.
5. On 31 March 2021, the practitioner provided his Defence, denying the charge.
6. On 7 - 9 December 2021, he attended the Crown Court at Chelmsford and pleaded not guilty to the charge.
7. On 10 December 2021, the jury found him guilty.
8. On 29 November 2019, in his application for renewal with Ahpra, the practitioner answered "No" to the question "Since your last declaration to Ahpra, has there been any change to your criminal history in one or more countries other than Australia that you have not declared to Ahpra?"
9. On 16 October 2020, the practitioner again answered "No" to the same question in his application for renewal with Ahpra.
10. The practitioner did not at any time disclose any change in his criminal history to Ahpra.
11. The practitioner failed to notify the National Board in writing within 7 days of being charged or at any other time that he had been charged with an offence punishable by 12 months imprisonment or more. This is a clear contravention of s 130(1) with respect to a "relevant event" under s130(3)(a)(ii) of the National Law. Even allowing for an argument that his obligation to notify did not crystallise until he was first registered as a paramedic in Australia on 20 May 2019, the practitioner failed to notify the National Board in writing within 7 days of becoming registered.
12. Since the practitioner failed to engage with the s 150 proceedings and failed to engage with this proceeding, it is not known whether he was perhaps "hedging his bets", hoping to defend the charge and clear his name, and thereby avoid conviction. Nonetheless, the obligation to notify the National Board of the charge is clearly articulated in the National Law (as well as the PBA Code of Conduct and the NSW Health Code of Conduct) and the facts establish his contravention of the Codes and, importantly, s 130(1) of the National Law.
13. The practitioner failed to notify the National Board in writing within 7 days of 10 December 2021, that he had been convicted of one count of sexual assault on a female. On the facts, this is a contravention of s 130(1) with respect to the "relevant event" as set out in s 130(3)(b)(ii) of the National Law.
14. The contraventions by the practitioner of s 130(1) of the National Law with respect to both the criminal charge and his conviction have been established as a matter of fact. Accordingly, under s 139B(1)(b) the contravention is designated to be unsatisfactory professional conduct.
15. We therefore find Complaint Two to be proven.

1. Complaint Three asserts that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law, in that he engaged in improper or unethical conduct relating to the practice of paramedicine by failing to declare his criminal history when renewing his Australian registration through Ahpra in 2022 and 2023.
2. Under s 107 of the National Law, all registered paramedics are required to apply to renew their registration every year. The registration period is from 1 December to 30 November each year. Section 109(1) of the National Law requires an applicant to provide a statement that provides details of any change in the applicant's criminal history that occurred in the applicant's preceding period of registration.
3. Under the National Law, "criminal history" is defined to include every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of the National Law.
4. The PBA Code of Conduct sets out in paragraph 1.2 the professional values and qualities which all practitioners are expected to have:

"...there are certain professional values on which all practitioners are expected to base their practice...They must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness ..."

1. Paragraph 8.1 in the PBA Code of Conduct sets out the professional behaviour expected of all practitioners:

"In professional life, practitioners must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct."

1. The words "improper" and "unethical" are not defined in the National Law. The assessment of what constitutes "improper" or "unethical" conduct is based upon the ordinary meaning of those words.
2. The relevant principles regarding a failure to disclose under s 109 include:

(1) that it is not necessary to find that the practitioner knowingly gave false information on the renewal applications in the sense of a deliberate intention to deceive. It is sufficient to find that, at the time of completing the applications, the practitioner was aware of the criminal charges and convictions and failed to answer the relevant questions accurately: Bolton at [64].

(2) that providing false information on a renewal application is contrary to moral precepts and has been found to amount to improper and unethical conduct: Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 [28]-[42].

(3) that providing false information on a renewal application to maintain registration does not recognise the ethical obligations to be honest and candid with the registration authorities.

1. Once a contravention of s 109 of the National Law has been established as a matter of fact, s 139B(1)(b) designates the contravention as unsatisfactory professional conduct: Bolton at [65].

Evidence relied upon to establish Particulars 1 and 2 of Complaint 3

1. Once registered as a paramedic in Australia on 20 May 2019, the practitioner was obliged to comply with the PBA Code of Conduct.
2. After being convicted on 10 December 2021, the practitioner continued to work as a registered paramedic with NSW Ambulance during 2022.
3. From June 2022, the practitioner was obliged to comply with the Ahpra Code of Conduct, with obligations to be ethical and trustworthy and display qualities such as integrity and truthfulness.
4. On 24 November 2022, the practitioner provided false information to Ahpra when completing an application for renewal of his registration. He answered "No" to the question "Since your last declaration to Ahpra, has there been any change to your criminal history in one or more countries other than Australia that you have not declared to Ahpra?"
5. During 2023, the practitioner continued to work as a registered paramedic with NSW Ambulance until his final shift on 28 November 2023.
6. On 9 November 2023, he again provided false information to Ahpra when completing an application for renewal of registration. He answered "No" to the question "Since your last declaration to Ahpra, has there been any change to your criminal history in one or more countries other than Australia that you have not declared to Ahpra?"
7. The renewal form also included a declaration: "I undertake to comply with all relevant legislation and National Board registration standards, codes and guidelines".
8. The practitioner had previously explained (in March 2019) an aspect of his criminal history relating to the charge against him in 2011 for obstructing a Police Officer. He clearly would have been aware that a charge of sexual assault would be a matter to be disclosed as part of his criminal history. He had professional and ethical obligations to complete documents relating to his renewal accurately. He failed to fulfil these obligations by making deliberately false statements to Ahpra, knowing they were untrue. The conduct was dishonest and deceptive, and in breach of the professional behaviour and conduct expected of paramedics to embody integrity and honesty. The practitioner's conduct was thus, plainly, "unethical".
9. These deliberate falsehoods constitute a standard of conduct that falls well below the conduct expected of a paramedic to be honest and ethical, and to have integrity. The practitioner's conduct has the potential to bring the profession into disrepute and reduce public confidence in the profession.
10. We find that the practitioner engaged in the alleged conduct as particularised. We also find that his conduct meets the threshold of being "improper or unethical" under s 139B(1)(l) of the National Law, to support a finding that the practitioner has been guilty of unsatisfactory professional conduct.
11. We therefore find Complaint Three to be proven.

1. Complaint Four asserts that the practitioner is guilty of professional misconduct pursuant to s 139E of the National Law in that the practitioner engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounts to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
2. The evidence relied upon in support of Complaint Four is the same evidence relied upon in support of Complaints Two and Three.
3. Under s 139E(a) of the National Law, "unsatisfactory professional conduct" of a sufficiently serious nature to justify suspension or cancellation of a practitioner's registration equates to "professional misconduct". In Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [19], the Court of Appeal per Basten JA regarded professional misconduct as merely a category of unsatisfactory professional conduct which is sufficiently serious to justify suspension or cancellation.
4. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20].
5. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Litchfield at 638.
6. As a result of the practitioner's conduct:

(1) his employer remained unaware that he had been charged and convicted of sexually assaulting a paramedic for a lengthy period (from 5 August 2019 until after his resignation on 30 November 2023) and was deprived of the opportunity to ensure that other paramedics and patients were not exposed to any risk that the practitioner may repeat his offending conduct. The practitioner took leave, including carer's leave, to attend his criminal trial and the sentencing hearing. The practitioner did not disclose any information about his charge or the hearing or his conviction at any point prior to, during or after his employment with NSW Ambulance;

(2) the Council was unable to take any action to protect the public for a lengthy period;

(3) Ahpra remained unaware that the practitioner had been charged and convicted of sexually assaulting a paramedic for a lengthy period of time. Ahpra became aware on 28 November 2023, after receiving an anonymous complaint.

1. We are of the view that the practitioner's improper and unethical conduct deprived the Council and Ahpra from protecting the health and safety of the public and deprived NSW Ambulance from protecting other paramedics and its patients. The practitioner's conduct is so incompatible with what is an acceptable standard of behaviour for a registered paramedic that his conduct is of a sufficiently serious nature to meet the threshold of "professional misconduct" under s 139E of the National Law, to justify suspension or cancellation.
2. We therefore find that Complaint Four is proven.

Justification for cancellation of the respondent's registration

1. We now consider whether or not the practitioner's conduct warrants suspension for a specified period or cancellation of her registration.
2. In these proceedings, the Commission submitted that the practitioner's registration ought to be cancelled, and argued that there were two grounds to support their submission:

(1) first, if the practitioner is found guilty of professional misconduct, his registration ought to be cancelled pursuant to s 149C(1)(b) of the National Law;

(2) additionally, or in the alternative, the circumstances of the offence for which the practitioner was convicted rendered him unfit in the public interest to practise paramedicine, thereby justifying cancellation of his registration pursuant to s 149C(1)(c) of the National Law.

1. In determining what protective orders are appropriate, the paramount consideration is the protection of the health and safety of the public.
2. The national scheme provides for the protection of the health and safety of the public by ensuring that "only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": s 3(2)(a) of the National Law.
3. When making protective orders, we also have regard to the following recognised principles:

(1) maintaining the standards of the profession, to preserve public confidence in the integrity of the profession and thereby protect the community: Prakash at [91];

(2) deterring both the practitioner and others from engaging in similar conduct, to maintain professional standards and thereby ensure public safety and faith in the profession: Litchfield at 637;

(3) protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35];

(4) whilst the Tribunal's jurisdiction is primarily protective and not punitive, it is unavoidable that protective orders may be incidentally punitive: Clyne at 201-202; Litchfield at 637; Liu at [42]; Lee at [20] and [31] and Meneghetti at [97]-[98].

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

1. We firstly consider our finding of professional misconduct and whether it justifies cancellation of the practitioner's registration.
2. We are mindful of the decision made by the Conduct and Competence Committee of the HCPC (UK) on 18 December 2023 which resulted in the practitioner being struck off the UK Register. The Committee Panel was satisfied that a striking off order was appropriate and proportionate because the nature and gravity of the concerns were such that any lesser sanction would be insufficient to protect the public, maintain public confidence in the profession and maintain public confidence in the regulatory process. The Panel considered that to allow a registrant to remain in or return to unrestricted practice while they are on the sex offenders' database was incompatible with the HCPC's obligation to protect the public.
3. In the case before us, there is no evidence of remorse or remediation or insight, from which we conclude there remains an ongoing risk to the practitioner's female colleagues, patients and the public. Any sanction other than cancellation of his registration would be insufficient to protect those persons and would be insufficient to maintain public confidence in the profession.
4. We are of the view that the practitioner's improper and unethical conduct is so incompatible with what is an acceptable standard of behaviour for a registered paramedic, that cancellation of the practitioner's registration is warranted under s 149C(1)(b) of the National Law.

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

1. Notwithstanding our finding that cancellation of the practitioner's registration is warranted on the grounds of his professional misconduct, we also consider whether his conviction and the circumstances of his offence render him unfit in the public interest to practise paramedicine, such that, additionally and on those alternative grounds, cancellation of his registration is also warranted.
2. A number of Tribunal cases have considered the phrase "unfit in the public interest to practise the practitioner's profession", since it is not defined in the National Law. Whether a practitioner is unfit in the public interest to practice requires consideration of the nature of the conviction and the circumstances in which the offence was perpetrated: Health Care Complaints Commission v Turner [2016] NSWCATOD 163 at [67].
3. Written submissions made on behalf of the Commission helpfully summarised how the phrase is interpreted. We adopt some of those submissions as set out below:

"c. whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offence but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: HCCC v Karunaratne (No 2) [2018] NSWCATOD 201 at [51];

d. whether a practitioner is unfit in the public interest to practise will consider both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and where there is a close nexus between the criminal conduct and professional role and responsibilities, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continues to practise. The serious nature of the offences and the length of time over which they occurred, may cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a convicted practitioner lacking rehabilitation and insight: HCCC v Wood [2020] NSWCATOD 60 at [17]- [23];

e. Whether a practitioner is unfit in the public interest to practise must be assessed in light of a holistic inquiry into suitability which takes into account the wider context of the practitioner's conduct, including motivation, insight into the harm caused and any attempts at rehabilitation. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards and public confidence in the health professions: HCCC v Limboro [2018] NSWCATOD 117 at [22]."

1. In assessing whether the nature of the conviction and the circumstances in which it was perpetrated render the practitioner unfit in the public interest to practise paramedicine, we consider Ahpra's "Registration Standard: Criminal History" (1 July 2015). This standard sets out ten factors relating to a practitioner's criminal history that the National Board considers may be relevant to determining their registration. Those factors are considered below:

The nature and gravity of the offence and its relevance to health practice

1. In sentencing the practitioner, Mr Recorder Khalil QC presiding in the hearing of the case in the Crown Court Chelmsford, noted that the practitioner "must well have known" that he had sexually assaulted his victim. Sexual assault is regarded in Australia and the UK as one of the most serious of offences, carrying penalties ranging from fines to lengthy terms of imprisonment. His Honour referred to aggravating factors in the case including that the offence was committed in the victim's home where she should have felt safe and secure, and that the practitioner had been invited there as a trusted colleague and friend.
2. A person found guilty of an offence on conviction on indictment under section 3(4)(b) of the Sexual Offences Act 2003 (UK) is liable to imprisonment for a term not exceeding 10 years. The gravity of the offence is considered in more detail below with respect to the sentence imposed on the practitioner.
3. His Honour referred to the effect of the assault on Person A. Whilst acknowledging that she had a pre-disposition to suffer from post-traumatic stress disorder and anxiety, she had suffered an exacerbation in her pre-conditions in the immediate aftermath of the assault, and had sought counselling for her feelings of lack of self-worth and feelings of self-harm, with suicidal ideation. The assault had caused a significant upheaval in her life and she had given up her employment with the LAS.
4. The highest standards of professionalism, ethics and respect for colleagues are regarded as central to the practice of paramedicine. As set out in the PBA Code of Conduct, good relationships with colleagues and other practitioners strengthen the practitioner-patient/client relationship and enhance patient care. This is echoed in Principle 5 of the Ahpra Code of Conduct. The practitioner's conduct offended those standards and principles, and destroyed the trust that Person A had held for him, as a senior colleague. There is therefore no question that the offending conduct is relevant to the practice of paramedicine under the National Law.
5. The practitioner's conduct was contrary to the Ahpra Code of Conduct which notes at paragraph 4.9 (with respect to professional boundaries) that good practice includes that a practitioner is "clear about the professional boundaries that must exist in professional relationships for objectivity in care" and avoids "conflicts of interest, as well as under or over-involvement". Additionally, under section 5.3 of the Ahpra Code of Conduct, there is no place for harassment, including sexual harassment, in healthcare in Australia. Respect for colleagues is described as a "cornerstone of good practice", and a feature of constructive relationships between practitioners, their peers and colleagues, and with patients.
6. As submitted on behalf of the Commission, the public is entitled to expect that paramedics will never touch them unless clinically indicated and may fear entrusting themselves into the care of a practitioner convicted of sexually touching a colleague without consent. The practitioner was found to have sexually assaulted his colleague whilst in her own home, while attempting to sleep. His conduct is incompatible with the role of a paramedic, which often involves working one-on-one with colleagues, attending patients in their homes and working with vulnerable patients, including patients who are unconscious, asleep or semiconscious.

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

1. The offence was committed on 4 May 2019 and Ahpra did not become aware of the offence for around 4.5 years because the practitioner failed to disclose either his charge or his conviction.

Whether a finding of guilt or a conviction was recorded for the offence

1. We place a considerable amount of weight on the fact that the practitioner pleaded not guilty but was convicted by a jury for the offence.

1. The case was considered to be at the higher end of category 2B of the sentencing guidelines in the UK, such that his Honour had in mind a range somewhere between a high community order and two years in prison. His Honour considered the matter to be so serious that it crossed the custody threshold and said "No sentence other than prison can properly reflect that which you did to [Person A] on that occasion". However, his Honour took into account some mitigating circumstances, including that the practitioner had returned to the UK to face trial at considerable and personal cost and that he had not previously offended and had not offended in the period after the offence.
2. He was sentenced to a term of imprisonment of 18 months, suspended for a period of two years. In addition, he was fined the sum of two thousand pounds to be paid as compensation to Person A. He was ordered to pay the prosecution's costs of two thousand and eight hundred pounds, as well as a victim surcharge cost of one hundred and forty pounds. The practitioner was made subject to an indefinite restraining order, prohibiting him from ever contacting Person A directly and indirectly. His name was entered on the UK sex offenders database for 10 years.

The ages of the health practitioner and of any victim at the time the health practitioner committed the offence

1. The practitioner was aged 35 and the victim was aged 25 at the time of the offence.

Whether or not the conduct that constituted the offence has been decriminalised

1. The offence of sexual assault under s 3 of the Sexual Offences Act 2003 (UK) has not been decriminalised.

The health practitioner's behaviour since committing the offence

1. In the immediate aftermath of committing the offence, the practitioner sent a number of messages to Person A which have already been described.
2. When interviewed by Police, he denied touching Person A, claiming it was a "massive misunderstanding with a work colleague". He acknowledged that sexual assault was wrong and not acceptable by society standards. He denied sexually assaulting Person A in his Defence and suggested that Person A was lying, claiming that she had invited him to sleep on her bed. However, his conviction by a jury of his peers concluded that the practitioner's account of events was not true and found him guilty.
3. As previously noted, after committing the offence, the practitioner returned to Australia and started working for NSW Ambulance from 5 August 2019. He travelled back to the United Kingdom to attend the criminal trial and then again resumed working for NSW Ambulance as a paramedic until the discovery of his conviction and his resignation on 30 November 2023.
4. Very little is known about the practitioner's current circumstances after his resignation from NSW Ambulance other than the information disclosed in his email on 8 April 2024 to the Commission. In that email he answered "No" to a question about whether he had disclosed the sexual assault charge and his conviction to Ahpra when renewing his registration at any time before or after his return to Australia. He also answered "No" to the question asking whether he had informed the Council of the sexual assault charge and conviction. In his email, the practitioner said he was not working as a paramedic in NSW or in any other State or Territory of Australia or outside Australia. He said that he was working as a warehouse labourer with various labour hire agencies.
5. The practitioner elected to not attend the s 150 hearing, and elected to not file any defence or reply to the Commission's Application and Complaint. He also elected to not attend the hearing before this Tribunal.
6. As far as we are aware, the practitioner does not appear to have reoffended since his conviction.

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

1. The practitioner declined to participate in the hearing and we were therefore not able to ask him about the nature of any psychological counselling he may have undertaken, or his reflections on his conduct and whether he has genuine remorse for his conduct. We were unable to assess whether he has insight into the impact of his conduct on Person A and, more broadly, upon the reputation of the profession and how his conduct would be viewed by the broader community. We were unable to assess, with any confidence, the likelihood of his re-offending. However, his past sustained behaviour of failing to disclose his criminal history to his employer and to Ahpra on multiple occasions is not easily overlooked. It suggests that the practitioner is likely to fail to disclose his criminal history in an attempt to conceal his conviction if he can avoid it, to gain employment.

1. As noted above, the practitioner has not provided information in response to the matters prosecuted by the Commission.

1. The practitioner's election to not engage with the Council or the Commission or these proceedings indicates a reluctance to come to terms with the gravity of his criminal conduct and the impact upon the victim and the reputation of paramedics. We hold concerns that the practitioner does not fully understand his obligations under the National Law and does not have an appreciation of the conduct and behaviours expected of paramedics (as articulated under the PBA Code of Conduct or the Ahpra Code of Conduct).

Is the practitioner unfit in the public interest to practise paramedicine?

1. Whether a practitioner is unfit in the public interest to practise may include consideration of whether the practitioner's criminal offence exhibits traits in the practitioner inconsistent with the practise of an honourable profession: Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 (FLJ) at [93].
2. Applying the rationale in FLJ, we have concerns about the character traits exposed in the practitioner, particularly with respect to his attempts to hide his conviction. We have found that the practitioner's conduct breached the National Law and breached the fundamental values of integrity and honesty under the PBA Code of Conduct. The practitioner's repeated failures to honestly disclose his conviction demonstrate that he has traits that are inconsistent with the practise of paramedicine.
3. We place a substantial amount of weight on the nature and circumstances of the offence when considering whether the practitioner is unfit in the public interest to practice paramedicine.
4. Having regard to the evidence before us, and our consideration of Ahpra's ten factors relevant to registration standards, we find that the conviction and the circumstances of the offence render the practitioner unfit in the public interest to practise paramedicine, justifying as an additional ground, cancellation of his registration.

1. The Tribunal has the power and discretion to set a non-review period with respect to an order cancelling a practitioner's registration. The purpose of setting a non-review period is to protect the health and safety of the public. The effect of setting a non-review period is that a practitioner may not make an application for review of the cancellation order during the non-review period: s 163A(3) of the National Law.
2. At the end of the non-review period, the practitioner will be entitled to make an application to the Tribunal for reinstatement: s 163A(1) of the National Law.
3. The paramount consideration when determining the length of time set by a non-review period is the protection of the health and safety of the public. The duration of the non-review period indicates the minimum period within which the Tribunal considers the practitioner should not be able to practise their profession by sending a clear message of denouncement of the offending conduct to the practitioner, the profession of paramedicine and the public about professional standards to be maintained.
4. The practitioner declined to attend the hearing which meant that the Tribunal had no opportunity to evaluate his disposition towards his criminal conduct and no opportunity to evaluate whether he had made any effort to rehabilitate.
5. We agree with the Commission's submission that a non-review period is needed in the circumstances of this case. We are of the view that the non-review period will allow the practitioner further time to demonstrate whether:

(1) he has gained genuine insight into the gravity of his conduct and the impact it had on Person A and the reputation of paramedics;

(2) he has undertaken appropriate rehabilitation to identify and address his risk factors;

(3) he has completed meaningful further education, particularly to address ethical professional conduct;

(4) he has remained free of any further criminal conduct;

(5) his character is truly reformed, such that he can demonstrate his worthiness to hold registration and reliability that he will behave honestly and ethically in the future.

1. The decision on the period of time during which a practitioner may not apply for review, is dependant on the facts and circumstances of each case. The predominant consideration is the protection of the public: Lee at [34]. The non-review periods imposed in previous Tribunal decisions do not set a benchmark for subsequent cases: Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 (Elshaimy) at [47].
2. The general public needs to be confident that they are protected from this practitioner and to be confident that the conduct is strongly denounced.
3. On balance, for the reasons set out above, we consider that a non-review period of twelve months is appropriate in the circumstances of this case.

1. The Commission also sought a prohibition order against the practitioner under s 149C(5) of the National Law, arguing that the practitioner could seek to use his paramedic training and experience to work as an unregistered health practitioner and there is a risk that prospective employers will be unaware of his criminal history which would not necessarily be detected via a routine Australian criminal history check.
2. In circumstances when the Tribunal cancels a practitioner's registration, and is satisfied the person poses a substantial risk to the health of members of the public, it may exercise its discretion to make an order prohibiting the person from providing health services. The phrase "substantial risk to the health of members of the public" is not defined in the National Law. It has, however, been considered by the Tribunal to be a risk that is material and real or apparent on the evidence. It is not a risk that is without substance and is not merely speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96] and more recently in Health Care Complaints Commission v Collins [2021] NSWCATOD 132 at [97].
3. The question of whether a person poses a substantial risk to the health of the public is assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services: Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [19]; Health Care Complaints Commission v De Lore [2020] NSWCATOD 72 at [93].
4. In our view, if the practitioner was permitted to provide health services as an unregistered practitioner during the period when his registration is cancelled, it would undermine the protective purpose of the cancellation order, where the Tribunal holds a concern about his risk of repeating his offending conduct.
5. In assessing the practitioner's risk, we consider whether there is a likelihood that he will repeat his offending conduct with female colleagues and patients when working as an unregistered paramedic. Since the practitioner declined to attend the hearing, the Tribunal had no opportunity to evaluate his disposition towards his criminal conduct and no opportunity to evaluate whether he had made any effort to rehabilitate. We therefore took into consideration his previous conduct and behaviour including:

(1) his persistence in dancing in a sexualised manner with Person A despite her asking him to stop;

(2) his persistence in touching Person A on her genitalia and breasts despite her crossing her legs and turning away;

(3) his persistence in contacting Person A after she told him to stop;

(4) that he denied the allegation of sexual assault when interviewed by the LAS and the UK Police, pleaded not guilty to the charge in the UK criminal proceedings, and continued to assert that Person A was lying which may suggest that he has not accepted responsibility for his offending and has no insight into the impact of his conduct on Person A;

(5) that he has not shown any remorse for Person A;

(6) his concealment of the charge against him from a number of authorities, including NSW Ambulance when being interviewed for employment and Ahpra;

(7) his concealment of his conviction from NSW Ambulance and from Ahpra;

(8) his failure to make honest declarations to Ahpra about his criminal history;

(9) that there is no evidence of any effort on his part to rehabilitate following his conviction.

1. In the sentencing hearing on 14 December 2021, reference was made to the practitioner's persistence in messaging Person A in a deflective manner after the assault. We acknowledge that this eventually ceased. However, his Honour noted that there were aggravating factors to take into account, including that the offence was committed in the home of Person A where she should have felt safe and secure, and that he had been invited there as a trusted colleague and friend. We have a concern that the practitioner's denial of guilt when he must have known that he had sexually assaulted the victim (as his Honour noted), together with his sustained concealment of his conviction demonstrates that he has not fully accepted responsibility for his conduct. Additionally, there is no objective evidence of remorse or rehabilitation. As a result, the risk that he may repeat his conduct with a female colleague or patient cannot be ignored. The risk posed is real and material and is not merely speculative. It can be mitigated during the non-review period of the cancellation order, with a prohibition order.
2. Accordingly, we consider that a prohibition order under s 149C(5) of the National Law, for a period of twelve months, is reasonable and appropriate in the circumstances.

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

(1) The practitioner's registration as a health practitioner is cancelled for a period of 12 months pursuant to s 149C(1)(b) and s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW), with a non-review period of 12 months pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW).

(2) Pursuant to s 149C(5)(a) of the Health Practitioner Regulation National Law (NSW), the practitioner is prohibited from providing health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for a period of 12 months.

(3) Pursuant to clause 13 of Schedule 5D to the Health Practitioner Regulation National Law (NSW), the practitioner is to pay the Commission's costs as agreed or assessed in accordance with the applicable costs legislation.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.