Health Care Complaints Commission v Pang

1. Mr Pang did not provide any material or submissions for the purposes of the Stage 2 hearing, and he did not attend the hearing. At the beginning of the hearing and in view of Mr Pang's absence, the Tribunal requested the Tribunal Registry to contact him to ascertain his intentions in respect of the hearing.
2. An email sent to the Tribunal from Mr Pang and received by the Registry at 11.17 am on 23 June 2025 (the day of the hearing) indicated that he did not intend to attend the hearing, that he was prepared to accept the decision of the panel and apologised for any inconvenience caused.
3. Section 165J(3) of the National Law allows the Tribunal to proceed with the hearing in the absence of a practitioner provided that notice of the hearing has been given. We were satisfied that Mr Pang had been given notice of the hearing, was aware of the hearing and had declined the opportunity to attend. We were also satisfied that Mr Pang was aware of the range of disciplinary orders that could be imposed arising from earlier correspondence which had been sent to him by the Commission.
4. In Stage 2 we did not hear any oral evidence and only the Commission made submissions.
5. The Commission submitted that protective orders should include suspension of Mr Pang's registration for a period of 3 - 6 months. The Commission further proposed that at the conclusion of the suspension period that conditions be imposed on Mr Pang's registration. The conditions proposed by the Commission were extensive and thoughtful. The submissions made and conditions proposed reflected key deficiencies in Mr Pang's clinical practice and conduct which had been identified by the Tribunal in the Stage 1 decision.
6. On 2 July 2025, after the Stage 2 hearing and after consultation with the Nursing and Midwifery Council of NSW (the Council), the Commission filed a further iteration of proposed registration conditions. This document was titled "Applicant's Proposed Orders". It included a raft of practice conditions, addressing amongst other matters supervision, mentoring, and educational courses.
7. As we have indicated, Mr Pang made no submissions relevant to protective orders. Mr Pang resigned from his employment at the Hospital and has not worked as a nurse since August 2022. His nursing registration was suspended by the Council on 10 October 2022.

The legislative framework for making disciplinary orders

1. The powers exercisable by the Tribunal when a complaint against a health practitioner is proven or admitted are set out in Part 8, Division 3, Subdivision 6 of the National Law.
2. The following powers are provided for in s 149A(1), (4) and (5) of the National Law:

149A General powers to caution, reprimand, counsel etc [NSW]

(1) The Tribunal may do any one or more of the following in relation to the registered health practitioner -

(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.

...

(4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled.

(5) The order or condition concerned is then a critical compliance order or condition.

1. The Tribunal has further powers under s 149B and s 149C of the National Law:

149B Power to fine registered health practitioner in certain cases [NSW]

(1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units.

(2) A fine is not to be imposed unless -

(a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and

(b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest.

(3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct.

(4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council for the health profession.

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

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

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

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

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

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

1. As Mr Pang was found guilty of professional misconduct the range of protective orders which can be made includes suspension or cancellation of his registration: s 149C(1)(b) of the National Law.

1. In Stage 1 we found that the knowledge, skill, judgment and care exercised by Mr Pang in undertaking a groin examination of an adolescent patient was significantly below the relevant standard. We also found that the skill, judgment and care exercised by Mr Pang was significantly below the relevant standard by his failure to inform his team leader or NUM that during the groin examination he had touched the patient's penis and his failure to maintain appropriate clinical records by documenting the incident.
2. We also found that Mr Pang's failure to gain informed consent from the patient before touching his penis and his subsequent failure to escalate and record the incident was also unethical and improper. Further, Mr Pang's conduct in providing a false written response to his employer, the SCHN, in the course of their workplace investigations into his conduct during the groin examination, was also found to be improper and unethical.

Principles to be applied in making disciplinary orders

1. In making our decision to determine the appropriate orders, and in the exercise of functions under a NSW provision of the National Law, the protection of the health and safety of the public must be the paramount consideration: s 3B of the National Law.
2. Further, in making our decision we are required to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in ss 3 and 3A of the National Law: s 4 of the National Law.
3. Section 3(2)(a) of the National Law makes it clear that the objectives of the national registration and accreditation scheme are 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. Section 3A(1) of the National Law provides that 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.
4. This involves a consideration of the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
5. The purpose of disciplinary orders is protective rather than punitive. Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 (Litchfield) at 637.
6. 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 (Do) at [35].
7. In Do, Justice Meagher (with whom Justices Basten and Emmett agreed) at [35] referred to the importance of denunciation of misconduct as follows:

"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."

1. However, that does not mean that, once the health practitioner has been shown to have committed professional misconduct, suspension or cancellation of that practitioner's registration must inevitably follow. There is an evaluative process to be undertaken: Hampshire v Health Care Complaints Commission [2021] NSWCA 283 at [71].
2. It is relevant to consider the degree of seriousness of the conduct.

1. In the Stage 1 decision, Mr Pang was found to be culpable for ethical breaches of various kinds, and clinical conduct which fell significantly below the applicable standard of conduct for nurses. Aspects of Mr Pang's conduct put his own interests ahead of patient care and the standing of the profession. The disciplinary orders imposed must signal to the nursing profession, and to the public, that such conduct is unacceptable and must not occur within the profession. This is necessary to maintain the confidence of the public in the nursing profession which, in turn, is an essential part of protecting the health and safety of the public.
2. In Litchfield, the Court said at 638:

"The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal."

1. In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [1] and [20], Basten J said:

"1. ...The following additional observations concern the submission that the power of the Tribunal to cancel a practitioner's registration is engaged only when the Tribunal is satisfied that the practitioner is permanently or indefinitely unfit to practise.

...

20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1)."

1. The Commission seeks an order that Mr Pang's registration be suspended for a period of three to six months, and at the conclusion of the suspension period that conditions be imposed on his registration. Mr Pang made no submissions as to disciplinary orders.
2. Aspects of Mr Pang's misconduct were a serious departure from the standards expected of a nurse. His failure to obtain informed consent was unethical. His failure to escalate the incident did not align with professional standards of dealing with adverse events and open disclosure.
3. As set out in our Stage 1 decision when a person is harmed by an adverse event nurses have a responsibility to be open and honest in communicating with the person, to review what happened, and to report the matter in a timely manner. When something goes wrong nurses must recognise and reflect on what happened and report the incident. They must act immediately and that includes escalating concerns.
4. In situations such as those raised here, Mr Pang, and nurses in general, must be accountable and deterred from failures to take steps to escalate and record incidents when they occur.
5. We are satisfied that the gravity of the conduct means that Mr Pang's registration should be either suspended or cancelled. As the primary purpose of this order is to denounce the conduct of Mr Pang, in our view it is not necessary to make an order cancelling his registration the effect of which would require him to re-apply for registration.
6. We consider that a period of suspension is warranted and that the appropriate period is three months to begin from the publication of this decision.
7. An order suspending Mr Pang's registration appropriately captures the level of denunciation for the benefit of other practitioners that is warranted in this case and advances the protection of the public. This is required both in order to signal to the profession and the public the seriousness with which such conduct is viewed. Other practitioners are entitled to see the standards of their profession upheld. In addition, a purpose of the protective orders is to encourage other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so.
8. In addition, practice conditions on Mr Pang's registration at the end of the suspension period are required to address the deficiencies in his clinical and ethical practice which we identified in Stage 1.
9. We consider the central components of conditions proposed by the Commission at the Stage 2 hearing and expanded upon in a further iteration made in a document titled "Applicant's Proposed Orders" filed after the hearing to be appropriate.
10. We consider that in addition to those conditions proposed by the Commission, a condition relating to performance assessment and enhancements to educational courses and areas of discussion in mentoring are also appropriate. Apart from an additional condition relating to performance assessment and enhancements to educational courses and areas of discussion in mentoring, we have crafted conditions that reflect the document filed by the Commission with the Tribunal Registry on 2 July 2025 titled "Applicant's Proposed Orders".
11. We note that after finishing school Mr Pang obtained university qualifications and was first registered as a nurse in New South Wales in January 2019. At the time of impugned conduct in December 2021 Mr Pang had worked as a nurse at the Children's Hospital for almost three years. In context Mr Pang was a relatively junior practitioner in terms of experience and exposure to a range of workplace challenges.
12. In our view the conditions that we have found ought to be attached to Mr Pang's registration and which cover supervision, mentoring, education and performance assessment will assist, address and support his re-entry into practice so that he practises competently and ethically at the conclusion of the suspension period.

1. The Commission seeks its costs as agreed or assessed. Mr Pang made no submissions about costs.
2. The primary purpose of an award of costs is to indemnify the successful party. The Commission established that Mr Pang was guilty of both unsatisfactory professional conduct and professional misconduct.
3. In the circumstances, it is appropriate for a costs order to be made in favour of the Commission.

1. I have read the draft Stage 2 determination for Mr Pang and, with respect, I have reached a different conclusion from the majority as to the appropriate disciplinary orders required to protect the health and safety of the public.
2. For the reasons noted in my dissent to the Stage 1 decision, I accept Patient A's account as a true account of the events that occurred in the ward in the early hours of 17 December 2021.
3. I find that Mr Pang's behaviour towards Patient A represents a significant departure from the proper standards of nursing care and goes beyond the level of incompetence or inadequate care that can be remediated by conditions on his professional registration.
4. In twice touching Patient A's penis and in making inappropriate comments about Patient A's penis, I find that Mr Pang demonstrated professional misconduct of an extremely serious nature.
5. I am not satisfied that the proposed orders and practice conditions are sufficient to protect the health and safety of the public and find that Mr Pang's professional misconduct is sufficiently serious to warrant the cancellation of his nursing registration.

1. In Stage 1 of the proceedings we varied the non-publication order made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) on 5 July 2024 to include that the disclosure of the name of Patient A, his parents, his family or any information that may identify Patient A, his parents or his family is prohibited. This order remains in place and is recorded in the publication restriction of this decision.
2. We make the following orders:

(1) Under section 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) the Tribunal suspends Mr Pang's registration for a period of 3 months from the date of this decision.

(2) Under section 149A(1)(b) of the Health Practitioner Regulation National Law (NSW) the practice conditions set out in Annexure A and as annexed to this decision are imposed on Mr Pang's registration at the expiry of the period of suspension.

(3) The Nursing and Midwifery Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).

(4) Sections 125 to 127A of the Health Practitioner Regulation National Law (NSW) are to apply whilst Mr Pang's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia.

(5) Under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) Mr Pang is to pay the Health Care Complaints Commission's costs as agreed or assessed.

Under section 149A(1)(b) of the Health Practitioner Regulation National Law (NSW) ("the National Law") the following conditions are imposed on Mr Pang's (the practitioner's) registration at the expiry of the period of suspension:

(1) To practise under indirect close supervision in accordance with the Nursing and Midwifery Council of New South Wales ("the Council") Regulatory Supervision Policy (as varied from time to time) and as subsequently determined by the Council and must do the following in writing:

(a) nominate a supervisor for approval by the Council within 14 days of commencing work or as specified by the Council.

(b) authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council.

(2) Not to practise until a supervisor has been approved by the Council.

(3) Not to consult, examine, treat or perform any procedures on patients under the age of 18 years until the practitioner satisfactorily completes education approved by the Council that has the following characteristics:

(a) course(s) in relation to ethics, including "Law, Ethics and Professional Standards in nursing and midwifery";

(b) course(s) in relation to working with children and consent; and

(c) course(s) in relation to documentation.

(1) To advise the Council in writing at least seven days prior to changing the nature or place of practice.

(2) Within 14 days of a change in the nature or place of their practice, the practitioner is to forward evidence to the Council that they have provided a copy of this decision (the Stage 2 decision) to their employer.

(3) To authorise the Council to notify current and future persons or organisations at any places where they work as a health practitioner in Australia of any issues arising in relation to compliance with these conditions. They must only be employed as a health practitioner in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions.

(1) To nominate a registered nurse to act as their professional mentor for approval by the Council in accordance with the Council's Mentor Guidelines (as varied from time to time) and as subsequently determined by the appropriate review body.

(2) To be mentored for a minimum of 12 sessions, with each session being of 1 hour duration, over a 12-month period and as subsequently determined by the Council.

(3) To bear responsibility for any costs incurred in meeting this condition.

(4) At each mentoring meeting the practitioner is to include discussion of the following:

(i) code of conduct and ethics;

(ii) professional boundaries;

(iii) working with children and consent;

(iv) working with vulnerable patients;

(v) assessment;

(vi) care planning;

(vii) record keeping;

(viii) escalation of clinical incidents and incident reporting;

(ix) reflective practices.

(5) To authorise the mentor to report, in an approved format, to the Council every month about the fact of contact, and to inform the Council if there is any concern about their professional conduct or personal wellbeing.

(6) Within 30 days of the conclusion of the mentoring the Practitioner must provide a report demonstrating, to the satisfaction of the Council, that the Practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practice.

(1) To satisfactorily complete within 12 months of the date of this decision education approved by the Nursing and Midwifery Council of NSW and that has the following characteristics:

(a) type of institution: tertiary / vocational;

(b) content or learning objectives:

(i) course(s) in relation to ethics, including 'Law, Ethics and Professional Standards in nursing and midwifery';

(ii) course(s) in relation to working with children and informed consent;

(iii) course(s) in relation to nursing assessment of a child;

(iv) course(s) in relation to vulnerable patients;

(v) course(s) in relation to documentation and record keeping;

(vi) course(s) in relation to escalation of clinical incidents and incident reporting.

(2) Within 3 months of the date of this decision the practitioner must provide written evidence to the Council of their enrolment in the abovementioned courses.

(3) Within 14 days of completing each of the abovementioned courses, the practitioner is to provide written evidence to the Council from the education provider that they have satisfactorily completed the course.

(4) The practitioner is to bear responsibility for any costs incurred in meeting this condition.

(1) The practitioner is to, within 12 months of the date of this decision, undergo a Performance Assessment, which should focus on:

(a) ethics;

(b) working with children and consent;

(c) vulnerable patients;

(d) record keeping;

(e) escalation of clinical incidents and incident reporting;

(f) reflective practices.

(1) The Nursing and Midwifery Council is the appropriate review body for the purposes of Part 8, Division 8 of the National Law.

(2) Sections 125 to 127A of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia.

(1) The practitioner is responsible for the costs associated with complying with these conditions unless otherwise specified.

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.