Health Care Complaints Commission v Pittard

NCAT Occupational|2024-06-03|Before: Chiarella AM

Introduction

A Stage 1 hearing of the three complaints of the Health Care Complaints Commission (the Commission) brought against the respondent (the practitioner) was heard on 30 June 2023.
For reasons published on 6 July 2023, we found Complaints One and Three established: Health Care Complaints Commission v Pittard [2023] NSWCATOD 97 (Primary Decision).
A Stage 2 hearing was held on 3 June 2024.
For the following reasons we have decided to reprimand the practitioner.

The Complaints

The Complaints are set out in full in the Primary Decision. In summary: 1. Complaint One was that, contrary to s 144(a) of the Health Practitioner Regulation National Law (NSW) (National Law), the practitioner was convicted of criminal offences and/or made the subject of criminal findings in NSW; 2. Complaint Three was that the practitioner was guilty of unsatisfactory professional conduct under s 138B(1)(b) of the National Law in that the practitioner contravened s 130(1) of the National Law.
The particulars of Complaint Three were that the practitioner, in respect of three different offences contravened s 130(1) of the National Law in that he failed to notify the National Nursing and Midwifery Board (National Board) in writing within seven days after being charged or being found guilty with an offence punishable by 12 months imprisonment or more.

Evidence and submissions of the Commission

At the Stage 2 hearing the Commission relied on a bundle of materials filed on 20 May 2024. The effect of those materials is succinctly summarised in the Commission's submissions as follows: 4 The Commission accepts that the practitioner notified the regulator that he had been charged with criminal offences when he applied for renewal of his registration. Although this does not constitute a defence to the complaints, the Commission is of the view that it demonstrates a level of candour, albeit tardy, by the practitioner. 5 Given this information, the period of protective conditions already complied with by the practitioner, and the absence of concern about the practitioner's professional work, the Commission is of the view that reprimand, rather than suspension, is the appropriate protective order. 6 The Commission is of the view that reprimand, and not caution, is the preferred order. Compliance with the requirement to promptly advise the regulator of charges or convictions is an important safeguard in ensuring the regulator may make a timely assessment about any need for intervention.

Evidence and submissions of the practitioner

The practitioner filed a form of statement and reflection on 11 August 2023. Relevantly he states: I accept that I have failed to notify the registration body (Ahpra) within seven days as per the code of conduct, As such I have demonstrated unprofessional behaviour by failing to comply with reporting matters with a criminal punishment of to the national registration body. It was not done intentionally / purpose or as a means of hiding the criminal matters from the registration body, rather it was a lack of my understanding of my obligation to do so in the time frame of seven days. It can be shown by my annual Registration renewals when I repeatedly made Ahpra aware of all changes to my criminal record during the renewal process. In my mind I was fully complying with my obligations for reporting such matters. At no time during the subsequent Reviews (by the board) each year was I informed of this unprofessional behaviour, It is clear I misunderstood that by disclosing the changes at the renewal [period] and was not aware of my reporting requirements. In email's to the NSWNMA lawyer … I explain that I was not aware of the requirement to report charges with penalties of 12 months or more, I confide that it was not until I was brought before the [Director of Nursing] / [Human Resources at Prince of Wales Hospital], I state my mis-understanding was that I was only required to declare criminal matters to Ahpra at the time of registration renewal. This entire process has been a significant personal deterrent, throughout the criminal matter(s) concurrently running with the investigations by HCC/NM i have learnt that was incorrect and have learnt my lesson with the restrictions placed on my registration and employment, the publishing of restrictions and Findings on the Ahpra / HCCC / NCAT / Nsw health websites. The realization of my wrongdoing was further reinforced with the experience of HPCA Close monitoring over 18 months. (typographical errors as in original)
The practitioner then states that he has an understanding of the seriousness of his non-reporting, and that, as a critical care nurse whose practice is driven by policies and procedures, he now appreciates that guidelines are made to ensure patient safety and maintain good standards of Nursing and the professionalism of NSW health. He says that it is now clear to him that the Australian Health Practitioner Regulation Agency needs to be informed in a timely manner (within seven days) to ensure the organization is informed to take measures to ensure public safety, monitor and regulate the Nursing Profession and their care delivery.
The practitioner then notes that he has been approved 26 times for registration as a registered nurse, currently holds a valid Working with Children Check, and that there are no apprehended domestic violence orders or apprehended violence orders are in place against him.
He also says that the subject Complaint was the first complaint ever made against him.
He is about to receive formal acknowledgement by Prince of Wales Hospital of his 25 years of service.
The practitioner was not required for cross-examination, and the Commission submitted that we should accept the practitioner's statements.
We see no reason not to.

Consideration

The practitioner did not oppose the Tribunal issuing a reprimand as its protective order.
Nevertheless, the appropriate protective order is a matter for the Tribunal.
The principles relating to protective orders are well known. In Health Care Complaints Commission v Richards [2024] NSWCATOD 37 the Tribunal accepted that the relevant principles included the following: 1. the Tribunal must consider 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]; 2. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered: National Law, s 3(2)(a); 3. deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; 4. 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]; 5. the Tribunal's jurisdiction is primarily protective, not punitive: Litchfield at 637.
We are satisfied that a reprimand is an appropriate and proportionate protective order to make in the circumstances of this case. We do not consider that a harsher order is required to protect the public, who face no risk from the practitioner in his practice of nursing.

Costs

As we indicated at the Stage 1 hearing and again at the Stage 2 hearing, this is a costs jurisdiction. The practitioner did not submit otherwise.

Orders

The Tribunal orders that: 1. The respondent is reprimanded pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law. 2. The respondent is to pay the applicant's costs as agreed or as assessed. 3. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the persons identified in the Schedule to the Complaint, together with any information or material which could identify those persons, is prohibited.

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

Amendments 17 June 2024 - coversheet - representation: counsel for the applicants name corrected 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: 17 June 2024

At a glance

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