On 25 October 2022 the Tribunal published reasons for its findings that the respondent Registered Nurse, Mr Jeremy Riley Nuevo, is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), and professional misconduct as defined in s 139E of the National Law: Health Care Complaints Commission v Nuevo [2022] NSWCATOD 124 (Nuevo Stage 1).
The Health Care Complaints Commission (HCCC) submitted that the appropriate protective order to make is to cancel RN Nuevo's registration, with a non-review period of one year. RN Nuevo opposed such an order, submitting that a reprimand would be appropriate. The HCCC sought an order that RN Nuevo pay its costs; RN Nuevo made no submission on costs.
The Tribunal decided to cancel RN Nuevo's registration and impose a non-review period of six months, and to order that he pay the HCCC's costs. Our reasons follow.
[2]
Background
The proceedings against RN Nuevo were commenced in the Tribunal in April 2020 by the HCCC in relation to a mandatory notification made on 4 March 2018 that he and four other RNs and one Enrolled Nurse employed by Justice Health and Forensic Mental Health Network (JH&FMHN) at Parklea Correctional Centre (PKA) were involved in the care of an inmate, Patient A, who was found deceased on 7 December 2017.
The background to the proceedings against RN Nuevo and the other five nurses is set out in Nuevo Stage 1. That decision includes discussion of the agreed and disputed facts, the evidence of RN Nuevo and each of the other nurses, and expert evidence provided on behalf of the HCCC, and identifies the various NSW Health and JH&FMHN policies relevant to the complaints. The detail is not repeated in these reasons, and these reasons assume familiarity with those earlier reasons.
In summary, Patient A, a 37 year old man with a documented medical history of epilepsy, asthma, Crohn's disease, hypertension and opioid dependence, was transferred to PKA from Sydney Police Cells on 6 December 2017, arriving at about 11.38am. In December 2017 PKA was privately managed by The GEO Group Australia Pty Ltd (GEO) on behalf of Corrective Services NSW (CSNSW). PKA houses approximately 800-900 remand, minimum and maximum security inmates. Health services at PKA were operated by JH&FMHN.
At about 2.07pm Patient A was taken from a holding cell to the Processing Area at Reception. Patient A was too unwell for reception screening assessment to be undertaken, and he was taken to the Main Clinic where he was assessed by the Drug & Alcohol Medical Officer (MO) and the Clinical Nurse Specialist D&A (CNS D&A).
The CNS D&A recorded baseline clinical observations, noting in Patient A's clinical/progress notes that he was "extremely unwell - in opiate withdrawal". The treatment plan recorded by the MO and the CNS D&A in the progress notes was that Patient A was to remain in detox, with four hourly observations, with Panadeine and Stemetil for opiate withdrawal, and to be reviewed in the morning.
The clinical handover from the morning shift JH&FMHN staff to the afternoon shift took place in the Clinic tearoom between 2.00pm to 2.30pm, when Patient A was in Reception, and he was not included in that handover. Just after the shift handover concluded the CNS D&A asked for someone to come and give an IM injection. RN Gallagher, Nurse Unit Manager (NUM) on the morning shift, administered intrasmuscular (IM) Stemetil to Patient A at approximately 2.45pm, recording that in Patient A's medication notes. At approximately 2.46pm Patient A was placed in Cell 34, one of 14 observation cells in the Main Clinic. Cells 34-39 are "Detox" cells.
At approximately 4.20pm as she was leaving for the day, the CNS D&A provided a verbal handover of Patient A to RN Stratten, who was rostered on the afternoon shift and allocated PKA Areas 3 and 5 and the Clinic. The handover provided to RN Stratten included the information that Patient A was detoxing and was unwell, that four hourly observations were required, and that the next set was due at approximately 7.00pm: Health Care Complaints Commission v Stratten [2022] NSWCATOD 126 at [135].
In the circumstances discussed in Health Care Complaints Commission v Nguyen [2022] NSWCATOD 127, RN Nguyen (also rostered on the afternoon shift) packed the Clinic medications on behalf of RN Stratten, and then administered those medications including to Patient A at approximately 7.00pm. The Tribunal was satisfied that at the time she administered the medications RN Nguyen was not aware of the need for observations due at that time, nor asked to complete them as part of the medication round that she undertook on behalf of RN Stratten: Health Care Complaints Commission v Stratten [2022] NSWCATOD 126 at [138].
RN Nuevo was rostered, as nurse in charge, on the night shift with EN Day (9.30pm-7.30am). The clinical handover from the afternoon shift to the night shift staff took place between 9.30pm-10.00pm. RN Stratten provided the handover. RN Stratten's evidence was that it occurred to her while she was driving home after her shift that observations had not been completed for one of the patients. She did not recall who it was. She intended to, but did not, call the night shift at the Clinic to say somebody needed observations.
It was not in dispute that neither RN Nuevo nor EN Day had any interaction with Patient A during the night shift. After his assessment by the MO and CNS D&A on being brought to the Clinic, the last recorded interaction by nursing staff with Patient A was the administration of medication by RN Nguyen at approximately 7.00pm on 6 December 2017.
Patient A was found deceased in his cell at approximately 7.11am on 7 December 2017. It was not in dispute that none of the nursing staff on duty on the afternoon or night shifts on 6 December 2017 had read Patient A's progress notes in which the treatment plan, which included the requirement for four hourly clinical observations, was recorded. It was not in dispute that no clinical observations were taken after the baseline observations by the CNS D&A at approximately 2.30pm on 6 December 2017.
The HCCC commenced proceedings against the five RNs (RN Nuevo, RN Stratten, RN Balagtas, RN Gallagher and RN Nguyen) and EN Day on 7 April 2020. An order was made by consent on 8 May 2020 that the six matters would be heard together with evidence in each evidence in the others. At a subsequent directions hearing the Tribunal noted that transcript of the evidence of the RNs and EN Day in the five RN matters may be used in the proceedings concerning EN Day, which, pursuant to s 165B(3) of the National Law required a differently constituted Tribunal panel. The HCCC was represented by counsel and solicitor; three of the respondents were represented by NSW Nurses and Midwives Association (NSWNMA) legal officers; and three, including RN Nuevo, were self represented. The six proceedings were the subject of case management, and by consent an Agreed Statement of Facts and Issues to be determined by the Tribunal was provided.
The Stage 1 hearing of the five RN matters including the evidence of EN Day relevant to those matters was initially listed for two weeks in September 2021. That listing was vacated when COVID-19 restrictions meant that the hearing could not proceed as an in-person hearing, and the hearing was re-listed for May 2022. Transcript was provided in July 2022.
Following on the Stage 1 findings, a further hearing was held for each of the six respondent practitioners in relation to the appropriate protective orders. The HCCC did not tender any further evidence in relation to protective orders proposed for RN Nuevo, and provided written and oral submissions on protective orders and costs. RN Nuevo provided further evidence, being a statement dated 19 December 2022, a list of self education and training between April 2021-December 2022, copies of his Performance and Development Plan for the period March 2021 - March 2023, and four character references (ex JN 3). At the hearing RN Nuevo gave further oral evidence and was cross examined, and made oral submissions.
[3]
Summary of Stage 1 Decision
There were two complaints against RN Nuevo. Complaint One alleged that he was guilty of unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law in that his conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s 139B(1)(a)), and that he had engaged in improper or unethical conduct (s139B(1)(l)). There were seven particulars, that RN Nuevo:
1. failed to read the clinical notes and health records of Patient A, in accordance with specified JH&FMHN policy;
2. failed to direct EN Day to read the Clinical Notes and Health Records, in accordance with specified JH&FMHN policy;
3. failed to implement the treatment plan ordered by the treating MO in that he failed to complete or ensure that EN Day completed the four hourly clinical observations as instructed, in accordance with specified JH&FMHN policies;
4. failed to respond appropriately or at all to Patient A's requests to see a nurse;
5. failed to accurately document and/or update Patient A's clinical notes in that he made a false or misleading entry in the medical record, in accordance with NSW Health policies;
6. failed to ensure that the oncoming morning shift nursing staff were provided with a clinical handover of Patient A, in accordance with specified JH&FMHN policies; and
7. failed to seek appropriate approval to leave early at the end of his shift, in accordance with the NSW Health Code of Conduct.
RN Nuevo admitted that he did not read Patient A's clinical notes or health records, having relied on the clinical handover, and because he was busy. He had the additional task of doing the pharmacy inventory and ordering because the pharmacy deadline for the Christmas period was the following day, and that took 4-5 hours. RN Nuevo disputed that the handover document used had included the information that Patient A was in opiate withdrawal and had IM Stemetil and PRN medications charted. He admitted that he had not directed EN Day to read Patient A's clinical notes or records, stating that she is a capable enrolled nurse and is also responsible for reading patient notes. RN Nuevo admitted that he did not implement the treatment plan requiring four hourly observations, as this was not handed over verbally or in writing by the previous shift.
RN Nuevo denied particular 4, stating that he was never asked to attend the patient cells at any time during the shift. He denied particular 5, stating that he had written in Patient A's notes "Nursing: Pt settled overnight. Nil issues raised" at the end of the shift because the patient had not called for assistance overnight and the correctional officers did not alert him or EN Day of any issues with Patient A.
RN Nuevo admitted that he failed to ensure that the morning shift staff on 7 December 2017 were provided with a clinical handover of Patient A, stating that the handover he was given was incomplete. He acknowledged that he did not get permission from the afternoon shift or day shift NUM to leave early, stating that they had had a busy night and were told to go home after handover.
The Tribunal found all seven particulars established. In reaching those findings, the Tribunal did not accept RN Nuevo's evidence that the words "Currently in Opiate W/D. IM Stemetil 12.5mg given, PRN meds charted" were not included in the handover document provided in the handover from the afternoon shift; and that if in fact those words were not included, the fact that Patient A was a new admission housed in a detox cell for whom reception screening had not been completed was sufficient to have alerted him as nurse in charge on the night shift that he, or EN Day, needed to check the clinical notes to see what care was required: Nuevo Stage 1 at [129]-[131]. In addressing the disputed evidence as to whether there was a call out by Patient A requesting to see a nurse to which RN Nuevo did not respond appropriately, the Tribunal concluded that the contact by Patient A with a correctional officer and his subsequent conversation with another officer which RN Nuevo heard was, in the context, such that RN Nuevo should have taken steps to check directly with Patient A and not rely on what he had overheard. The Tribunal was satisfied that RN Nuevo failed to respond to Patient A's request for nursing assistance: Nuevo Stage 1 at [141]-[142]. The Tribunal was also critical of RN Nuevo's documentation in Patient A's clinical notes, concluding that the entry was not accurate or comprehensive, and was an observation that RN Nuevo had not made: Nuevo Stage 1 at [143]-[145].
The HCCC's submissions did not identify in relation to the admitted conduct in particulars 1, 2, 3 and 6 which aspects of that conduct fell with either, or both, of subparagraphs (a) and (l) of s 139B(1) of the National Law. The closing submissions clarified that the conduct in particular 4 fell within subparagraph (a), and that particular 5 fell within both subparagraphs (a) and (l). The Tribunal found that RN Nuevo's failure to provide proper nursing care as admitted or found in particulars 1, 2, 3, 4 and 6 was significantly below the standard reasonably expected of a registered nurse of equivalent level of training or experience. The Tribunal found that RN Nuevo's conduct as found in relation to particulars 5 and 7, in contravention of the NSW Health Code of Conduct, was unethical. Based on those findings the conduct particularised in particulars 1, 2, 3, 4 and 6 was unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law, and that in particulars 5 and 7 was unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law: Nuevo Stage 1 at [157]-[158].
The Tribunal concluded that RN Nuevo was guilty of professional misconduct as alleged in Complaint Two, commenting:
[163]The HCCC submits that RN Nuevo's failure to attend Patient A after being told of his request to see a nurse, his failure to review Patient A's notes prompted by those requests, and his inaccurate note in Patient A's progress notes in circumstances where he was aware that Patient A had twice asked to see a nurse, in themselves justify a finding of professional misconduct. In the alternative, the HCCC submits that RN Nuevo's conduct as a whole warrants a finding of professional misconduct.
[164]The Tribunal acknowledges, as did Ms Muller, the challenges of nursing in a custodial setting. The Tribunal has noted above its concerns as to the appropriateness of diverting one of only two nursing staff on the night shift from the provision of clinical care to the task of undertaking the pharmacy inventory and ordering, occupying a substantial part of that shift. However, the Tribunal agrees with Ms Muller that provision of patient care should have been the primary focus, and none was provided by RN Nuevo, either directly or by his requesting EN Day to provide that care. The Tribunal is satisfied that the conduct established in each of particulars 4 and 5 of Complaint One, and when all the particulars are considered together, is conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. RN Nuevo is guilty of professional misconduct under s 139E of the National Law.
[4]
Protective Orders - legislation and principles
The Tribunal's powers on finding "the subject matter of a complaint against a practitioner" to have been proven are set out in Part 8, Division 3, Subdivision 6 of the National Law. The Tribunal may, under s 149A(1) of the National Law:
149A General powers to caution, reprimand, counsel etc [NSW]
(1) …
(a) caution or reprimand the practitioner;
(b) impose the conditions it considers appropriate on the practitioner's registration;
(c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);
(d) order the practitioner to complete an educational course specified by the Tribunal;
(e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal;
(f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
…
As a consequence of the finding of professional misconduct, the Tribunal's powers include, under s 149C(1)(b) of the National Law, the power to suspend or cancel RN Nuevo' registration, and if registration is cancelled, to specify under s 149C(7) a period before an application for review may be made.
The power to make any of these orders is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held:
[20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points:
1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.
2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.
3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.
[21] The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a): to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s 3A.
In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said:
[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order".
The finding of professional misconduct does not mandate the making of an order to suspend or cancel a practitioner's registration. The conduct must have the capacity to justify such an order, whether or not such an order should be made in the particular circumstances: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. In determining whether to suspend a practitioner's registration or cancel it, it is appropriate for the Tribunal to take into account the consequences of the order being considered. As Basten JA noted in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [21], unless a period of suspension is made conditional renewal of the practitioner's registration will occur automatically on completion of the period of suspension, whereas an order of cancellation will require the practitioner to justify re-registration.
[5]
Protective orders sought
The HCCC sought an order that RN Nuevo's registration be cancelled with a non-review period of one year. At the time of relevant events he had been practising as an RN for almost nine years; he was working in a supervisory capacity as nurse in charge; his conduct fell short of the expected standard in several respects and was objectively very serious, in particular his failure to see a patient who was asking to see a nurse and his misleading entry in that patient's clinical record; and his approach to the proceedings, which has demonstrated a lack of insight into the seriousness of his failures. The HCCC submitted that the objective seriousness of the conduct found under particulars 4 and 5 is sufficient to justify cancellation of RN Nuevo's registration: failing to see a patient who is asking to see a nurse, particularly in a custodial setting where no other health care practitioners will be aware of the request, and making misleading clinical notes which undermines other practitioners' ability to provide safe and effective clinical care, was completely unacceptable conduct, and should be denounced. RN Nuevo's failures were numerous and some involved dishonesty, and his evidence as to particular 4 was not truthful and demonstrates a lack of insight about the seriousness of his conduct.
RN Nuevo submitted that his registration should not be cancelled because it is not in the public interest to do so. Cancelling his registration would not protect the public because he is currently practising in a safe manner and has not had any complaints or issues in the last five years. He submitted that a reprimand would serve the purpose of warning other practitioners regarding the seriousness of his conduct and would also reassure the public generally that the standards of the profession are being upheld.
[6]
Consideration
In applying the principles relevant to determination of an appropriate protective order, the Tribunal takes into account the following matters:
1. Seriousness of the conduct:
The Tribunal regards RN Nuevo's misconduct as extremely serious. The Tribunal agrees with the HCCC that his failures were numerous, and there was an element of wilfulness and dishonesty. His failure to check on Patient A, a patient housed in a detox cell in the Clinic in accordance with JH&FMHN policy intended to facilitate access by health staff if required, and his making the inaccurate and misleading entry in Patient A's clinical notes, was extremely serious. The Tribunal agrees with the HCCC that a failure to respond to a patient's request to see a nurse was particularly serious in a custodial setting where no other health care practitioner would likely be aware of that request. And that to make misleading clinical notes has the potential to undermine other practitioners' ability to provide safe and effective clinical care. As RN Nuevo has acknowledged in his evidence to the Tribunal, he should have prioritised patient care ahead of the completing the pharmacy inventory.
1. What has happened since 2017:
RN Nuevo has been working since 2018 as RN with Northern Sydney Local Health District Health Contact Centre at Macquarie Hospital. That work involves telephone intake and assessment as a single point of access for a range of primary and community health services including hospital in the home, community nursing, aged care allied health community services and chronic disease rehabilitation services; and clinical admission of patients to those services. The telephone assessment requires him to engage with referrers, general practitioners and family members, and the clinical work requires engagement with patients and their families. He works as team leader, and his team includes registered nurses.
Conditions were imposed on RN Nuevo's registration under s 150 of the National Law in March 2018, including that he not be nurse in charge or have supervisory responsibilities. Those conditions were varied in October 2019, and now include conditions that he inform his employers of conditions and that any nursing employer agree to notify the Council of any breach of conditions or unsafe practice. RN Nuevo's evidence was that he was able to have the conditions varied with the support of his manager and colleagues.
RN Nuevo has provided detail of his continuing education since April 2021 in a range of online courses up to one hour. His evidence was that the courses have been centred on clinical documentation, handover and patient care and safety.
1. Insight and remorse:
In his statement of 19 December 2022 RN Nuevo stated that he deeply sorry for Patient A and his family and friends. He regrets and feels deep remorse for his actions on 6 December 2017 and he has learned immensely. He realises he should have asked further questions at handover and read all the patients notes immediately after the clinical handover. He accepts that he should have chosen to fulfil his clinical duties instead of the non-clinical task, and wishes he could have been more assertive in delaying the non-clinical task unless he had been relieved of his duties as nurse in charge for the night shift. He now applies best practice principles including prioritising reading patient notes and reviewing shift tasks at the start especially when he is in charge. Reflecting on that night, he should have followed up and physically checked on Patient A even when Patient A was contacted by the officers via stenophone and said he was OK.
In that statement RN Nuevo stated that the death of Patient A has profoundly impacted his life personally and professionally. In oral evidence, RN Nuevo stated that the past five years has been difficult, and he has questioned whether he can still do the job, and has sought counselling.
In cross examination RN Nuevo was asked about the Tribunal's findings on his failure to attend on Patient A, and the rejection of his evidence as to what was included on the handover sheet. RN Nuevo stated that he respects and accepts the Tribunal's findings. Looking back, even though he heard Patient A tell the officer he was OK, he should have followed up physically and checked to make sure he was OK. On the handover, he should have asked more questions of RN Stratten. He is deeply sorry for what happened, he was busy with other duties and not able to read the patient notes.
1. Character:
RN Nuevo has provided recent references by three Clinical Nurse Specialists within Northern Sydney LHD, who have known and worked with him over the past four years. They are aware of the disciplinary proceedings, and confirm the stress of those proceedings. RN Christiansen states that RN Nuevo does not underestimate the serious nature of the charges, nor does he deny his shortcomings in the situation, and states her belief that given a similar situation he would definitely respond differently. His referees state he is a hardworking and conscientious RN. The Health Contact Centre Operational Manager states that as his direct line manager she can attest to RN Nuevo's learnings and growth, and that he has demonstrated patient centred care and a willingness to learn and enhance his skills to ensure the community receives the best care.
It was readily apparent in RN Nuevo's oral evidence, and as the HCCC acknowledged, that he is remorseful for his misconduct. Based on his continuing education, and as confirmed by his referees, he has taken steps to improve his clinical knowledge to ensure that his shortcomings are rectified. That evidence, and the positive statements by his referees as to his competence and diligence, was not contested. RN Nuevo's present fitness to practice was not in issue. RN Nuevo has acknowledged and attempted to address the personal and professional issues that his failures in providing care for Patient A and the disciplinary process itself have raised for him.
That said, the Tribunal acknowledges the objective seriousness of RN Nuevo's failures in ensuring that Patient A was provided with the nursing care to which he was entitled. The failure to follow up with Patient A and the recording of misleading and inaccurate information in his notes was particularly egregious, and involved an element of wilfulness and dishonesty. While the Tribunal is confident that RN Nuevo would not in a similar situation make the same choice again between his clinical role and a non-clinical task, his conduct on the night of 6 December 2017 was unacceptable and should be denounced as such. As acknowledged in Do, protective orders must not only act as a deterrent to the individual concerned but to the general body of practitioners, and maintain public confidence that those whose conduct does not meet the required standards will not be permitted to practise.
The Tribunal agrees with the HCCC that a reprimand alone, as submitted by RN Nuevo, would not meet the protective purpose. A reprimand serves as a rebuke for the misconduct and pursuant to s 225(j) of the National Law would appear on the practitioner's record of registration maintained by the Australian Health Practitioner Regulation Agency: Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156. While such an order serves to denounce the conduct and provide deterrence, and the disciplinary proceedings themselves are denunciatory in part, the seriousness of RN Nuevo's conduct, in particular as found in response to particulars 4 and 5, requires strong denunciation and an effective deterrent.
The Tribunal agrees with the HCCC that the appropriate course is to cancel RN Nuevo's registration. The HCCC seeks an order under s 149C(7) of the National Law to impose a period of one year before an application for review and reinstatement order may be made. The purpose of such an order is that in setting a minimum period within which RN Nuevo should not be able to practise his profession it sends a message to him, to the profession, and to the public, about the seriousness of his conduct. It also holds open the possibility that he may, with demonstrated rehabilitation and reformation, be able to return to the profession at some time: Chen v Health Care Complaints Commission [2017] NSWCA 186. At the end of that period he would need to demonstrate, in an application under s 163A of the National Law for a reinstatement order so that he may be registered, that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13. At that time the Tribunal could consider whether, and if so, what, conditions should be imposed on his registration. In contrast, if an order suspending RN Nuevo's registration is made, at the end of the specified period he would be entitled to be re-registered.
In the context of the lapse of five years since the events the subject of the complaint, with no issues with RN Nuevo's practise as a registered nurse, the Tribunal considers that the length of disqualification proposed by the HCCC would go further than is required for the proper protection of the community and the proper purposes of such an order. A shorter period of six months would be appropriate.
[7]
Costs
The HCCC seeks an order that RN Nuevo pay its costs, acknowledging that the costs of preparing for and attending the five day hearing in May 2022 will be apportioned between the five RN matters. The HCCC submits that all seven particulars of Complaint One were found proven in substance, and both complaints of unsatisfactory professional conduct and professional misconduct were proven.
The Tribunal's power to make an order for costs is conferred by cl13 Sch 5D of the National Law. As a general rule, costs of the proceedings should follow the event unless there is a justifiable reason for departing from that rule: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. The particulars of the complaint were proven, and findings of unsatisfactory professional conduct and professional misconduct were made. There was no disentitling conduct in the way in which the HCCC pursued the proceedings. An order for costs should be made.
[8]
Orders
The Tribunal orders:
1. The respondent's registration is cancelled pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW).
2. A non-review period of six months is imposed on the respondent pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW).
3. The respondent is to pay the costs of the Health Care Complaints Commission, as agreed or assessed.
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 March 2023