Health Care Complaints Commission v Raikes [2025] NSWCATOD 82;

1. The HCCC provided to Mr Raikes and the Tribunal: two bundles of documents, a chronology, an evidentiary certificate and written submissions.
2. Mr Raikes provided to the HCCC and the Tribunal a bundle of documents including: a reply to the application for disciplinary proceedings dated 30 March 2025, a written reflection, his curriculum vitae, a record of his continuing professional development, a character reference dated 28 March 2025 from his current employer in a non-health related field, and a letter dated 3 February 2023 from a clinical psychologist.
3. At the hearing on 1 May 2025 Mr Raikes also provided an email chain of 26 October 2022 between himself and his legal representative in the criminal proceedings, notices of his withdrawal from two graduate registered nurse roles dated 5 and 6 May 2022 and a phone bill for the period 5 October 2022 to 4 November 2022.
4. Also at the hearing on 1 May 2025, a combined Stage 1 and 2 hearing, both parties made oral submissions and Mr Raikes gave oral evidence and was cross examined.

1. The HCCC bears the onus of proof of the complaints: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [3]. The standard of proof in disciplinary proceedings is on the balance of probabilities with a sufficient degree of certainty having regard to the seriousness of the allegations made: see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 at [24].
2. The Tribunal may exercise disciplinary powers under the National Law if (a) it finds the subject-matter of a complaint to have been proved, or (b) the Respondent admits to it in writing to the Tribunal: s 149 of the National Law.
3. The Tribunal must first determine the issue of whether the allegations in the complaints have been proven to the required standard. If the complaints are proven the Tribunal is then required to consider and determine, what, if any, protective orders are appropriate.

1. At the hearing the HCCC applied to have the 13 December 2024 application amended to change words in the "Background to All Complaints" section to the complaints because there was an error in the words used.
2. The original wording was:

On or about 27 April 2022, the Australian Health Practitioner Regulation Agency (AHPRA) received an application from the practitioner to renew the practitioner's registration ("the Renewal Form"). In response to question number 1 of the renewal form which stated, "During your preceding period of registration, has there been any change to your criminal history that you have not declared to AHPRA?", the practitioner responded, "No".

1. The amendments sought were to remove the words "During your preceding period of registration" from the paragraph and to add the words in bold below so that the relevant paragraph instead provides:

On or about 27 April 2022, the Australian Health Practitioner Regulation Agency (AHPRA) received an application from the practitioner to renew the practitioner's registration ("the Renewal Form"). In response to question number 1 of the renewal form which stated, "Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?", the practitioner responded, "No".

1. Given the amendments sought to correct the background to provide the actual words that appeared on the relevant renewal application (p 24 Exhibit A1) and on the basis the actual words were provided to Mr Raikes and the Tribunal before the hearing (p 24 Exhibit A1) as well as that the Tribunal did not consider the change to be material, the Tribunal granted leave for the relevant amendments to be made to the "Background to All Complaints" section to the complaints in the application of 13 December 2024.

1. Complaint One is that under s 144(a) of the National Law, Mr Raikes has been convicted of a criminal offence in NSW.
2. Section 144 of the National Law relevantly provides:

144 Grounds for complaint about registered health practitioner [NSW]

The following complaints may be made about a registered health practitioner -

(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.

On 19 October 2022 at Wollongong Local Court, the practitioner was convicted of an offence, namely sexually touching another person without consent contrary to section 61KC(a) of the Crimes Act 1900 NSW.

1. Mr Raikes admits the particulars of Complaint One in his reply to the application dated 30 March 2025 which was confirmed by him at the hearing.
2. A certificate of conviction for the relevant offence dated 29 November 2023 was before the Tribunal (pp 248-250 Exhibit A1).
3. On that basis, we find that Mr Raikes has been convicted of a criminal offence and Complaint One is proven.

1. Complaint Two is that under s139B(1)(b) of the National Law Mr Raikes is guilty of unsatisfactory conduct because he has contravened a provision of the National Law.
2. The Particulars of Complaint Two are:

1. The practitioner contravened s130(1) of the National Law in that he failed to notify the National Board within 7 days of being convicted on 19 October 2022 of the offence of sexually touch another person without consent contrary to section 61KC(a) of the Crimes Act 1900.

2. The practitioner contravened section 109(1)(b) of the National law in that he made a false declaration on his nursing registration renewal form submitted on or about 27 April 2022, namely he failed to declare, when asked, any change to his criminal history, namely having been charged with an offence contrary to section 61KC(a) of the Crimes Act 1900 on 25 November 2021.

1. Mr Raikes admits the two particulars of Complaint Two in his reply to the application dated 30 March 2025 which was confirmed by him at the hearing.

1. Section 139B(1)(b) provides that a contravention by a practitioner of a provision of the National Law amounts to unsatisfactory professional conduct.
2. Section 130(1) of the National Law requires that a registered health practitioner must, within seven days after becoming aware that a "relevant event" has occurred, give the National Board established for the practitioner's profession, written notice of the event.
3. Section 130(3)(a)(ii) of the National Law includes, in the meaning of a "relevant event" if a practitioner is charged with an offence punishable by 12 months imprisonment or more.
4. Section 130(3)(b)(ii) of the National Law includes, in the meaning of a "relevant event" if a practitioner is convicted of an offence punishable by imprisonment.
5. Section 109(1)(b) of the National Law provides that an application for registration renewal must be accompanied by a statement that includes details of any change in criminal history since the practitioner was last registered. Under s 5 of the National Law "criminal history" includes every charge against the practitioner.

1. On 25 November 2021 Mr Raikes was charged with the offence for which he was subsequently convicted, an offence punishable by more than 12 months imprisonment because under s 61KC of the Crimes Act 1900 a person convicted of sexual touching without consent is liable to a penalty of imprisonment for up to five years. On that date Mr Raikes was also charged with a further related offence with a maximum penalty of 14 years which was withdrawn on 6 July 2022.
2. In submitting his online registration renewal on 27 April 2022 Mr Raikes answered "No" to the question "Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?".
3. Mr Raike's evidence was that he did not understand he had to make a notification to AHPRA before he was convicted.
4. Mr Raikes now understands the answer he provided on 27 April 2022 was false because he had been charged with two relevant offences and he admits Particular 2.2.

1. Mr Raikes was convicted of the relevant offence, punishable by imprisonment, triggering a "relevant event" on 19 October 2022 which required written notification to the National Board within seven days.
2. Mr Raikes's evidence was that he attempted to give notification over the phone on 26 October 2022, but was told he could notify via his next renewal in May 2023. AHPRA does not hold a record of that phone call. Mr Raikes' version of events is supported by an email chain between Mr Raikes and his lawyer of 26 October 2022 where he reported the outcome of the conversation and a phone bill recording a 32 minute phone call with AHPRA on the same day (exhibits R2 and R5).
3. The fact of Mr Raikes' charges and conviction came to the attention of the National Board because Mr Raikes provided notification via his next registration renewal in May 2023 in accordance with the incorrect advice he says he had received.
4. Mr Raikes was not working as a registered nurse between the period from when he was charged on 25 November 2021 to when he provided notification in May 2023 in his renewal application because he has never worked as a registered nurse.
5. Further, the character reference of Mr Raikes' current employer, who has full knowledge of Mr Raike's whole circumstances, speaks of his faith and trust in Mr Raikes.
6. Given those circumstances, we accept Mr Raikes' version of events in respect of his attempt to provide notification over the phone including because his actions were consistent with the incorrect advice he said he had received.
7. However, Mr Raikes was required to provide written notice of his conviction to the National Board within seven days of that conviction under the National Law. Mr Raikes now understands that requirement and he admits Particular 2.1.

1. Therefore, we are satisfied that Mr Raikes is guilty of unsatisfactory conduct because he has contravened provisions of the National Law in: failing to notify of his conviction in writing within the required timeframe; and, falsely declaring there was no change to his criminal history after he had been charged with relevant offences. We therefore find Complaint Two is proven.

1. The HCCC seeks protective orders only in relation to Complaint One, based on the circumstances of Mr Raikes' offending, namely that Mr Raikes' registration be cancelled under s 149C(1)(c) of the National Law and that Mr Raikes not be able to apply for registration for one year from the decision of the Tribunal under s 149C(7) of the National Law.
2. Section 149C(1)(c) of the National Law provides that the Tribunal may cancel a registered health practitioner's registration if the Tribunal is satisfied that the practitioner has been convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession.

The Respondent's relevant history and the circumstances of Complaint One.

1. In late 2021 Mr Raikes, as a mature age student aged 29 years, had completed a Bachelor of Nursing degree and held two job offers for new graduate nursing roles. He applied for registration as a nurse on 21 September 2021.
2. The offence for which Mr Raikes was convicted occurred on 14 November 2021 and he was charged on 25 November 2021. The first listing of the criminal proceedings occurred on 15 December 2021. Mr Raikes was sent notice of his registration as a nurse the following day on 16 December 2021.
3. Mr Raikes withdrew from the graduate nurse roles in May 2022.
4. The relevant circumstances of the offence for which Mr Raikes was convicted include:

(1) On the evening of 13 November 2021 Mr Raikes attended a birthday celebration for a friend and consumed approximately 20 alcoholic drinks and 10 lines of cocaine between 9pm that night and 3am the following morning.

(2) Mr Raikes and three other people then slept in the loungeroom of a friend's home. At about 7am on the morning of 14 November 2021 Mr Raikes touched and jerked the penis of a person who was asleep in that loungeroom.

1. Mr Raikes maintains he has no recollection of his actions in respect of the offence, nonetheless, he entered a plea of guilty and we are satisfied the relevant conduct occurred and that Mr Raikes' conduct was as described in the paragraph above.
2. On 19 October 2022 Mr Raikes was convicted of the offence of sexually touching a person without consent and received a seven month community correction order. In sentencing, the Magistrate required Mr Raikes to "continue to engage with mental health therapists as recommended by Mr Jones" (p 255 Exhibit A1).
3. A 20 September 2022 report of Mr Jones, a forensic psychologist was before the Local Court in the criminal proceedings. A recommendation of that report was that Mr Raikes enter into treatment "that specifically addresses sexual offences and their risk factors" (p 50 Exhibit A1).
4. Following his conviction, Mr Raikes obtained a referral for psychological services from his GP and he attended 10 sessions with a clinical psychologist. The treating psychologist did not provide treatment addressing sexual offences and their risk factors.
5. Mr Raikes is on a waitlist for two services recommended in the report of Mr Jones.
6. Mr Raikes has never worked as a registered nurse and now works in a non-health related field.
7. A 6 March 2024 report of Dr Samuels, a consultant psychiatrist was before the Tribunal in these proceedings. The report is an Independent Health Assessment of Mr Raikes and concludes (at [77], p 268 Exhibit A1):

Recommendations

Essentially Mr Raikes can be regarded as an untreated sex offender. Until he has had a further period of assessment and treatment by therapists with expertise in the area, it is difficult to make any comment about future risk particularly in relation to a nursing role. The forensic psychologist who assessed Mr Raikes on 20 September 2021 felt that he was at above average risk of future sex offending and made recommendations for treatment and in my view it is imperative that Mr Raikes undertakes such treatment before consideration is given to him returning to any nursing role.

1. At the hearing Mr Raikes underwent an extensive cross examination as to his conduct and behaviour.
2. Of relevance to the circumstances of Complaint One, in the course of the s 150 investigation conducted by AHPRA in June 2023 Mr Raikes stated he no longer used drugs and did not drink to excess following the offence. However, testing of a hair sample from approximately March 2023 gave a positive result and Mr Raikes subsequently admitted that he had consumed alcohol and cocaine at a party in April 2023.
3. We note Mr Raikes' subsequent clear drug and alcohol test for the period 12 November 2023 to 24 March 2024 (pp 171-185 Exhibit A1).
4. There was some contention as to an admission made by Mr Raikes to Dr Samuels about use of another substance, however, we accept Mr Raikes' evidence that in making the admission he was referring to use prior to the offence including because we also accept his evidence that he had generally stopped "going out" after the offence.

1. Section 3(2) of the National Law makes clear that the objectives of the National Law include protection of the public by ensuring that only practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.
2. The purpose of disciplinary powers including the power to make protective orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. That is not to deny that such orders may be punitive in effect: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31].
3. In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA stated (at [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.

1. Further, in Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA stated (at [22]):

The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided.

1. For the same reasons as set out above in respect of notification, we accept Mr Raikes' evidence that he has generally made positive changes to his life and habits since the offence with the exception of a regression in April 2023 including on the basis of the clear drug and alcohol test for the period 12 November 2023 to 24 March 2024.
2. However, nurses are required to care for sleeping, unconscious, sedated and other vulnerable people as a core requirement of their work. Mr Raikes committed the offence of sexually touching a person without consent and, in doing so he took advantage of a person who was sleeping, a vulnerable person who should have been safe. Such conduct is incongruent with nursing practise.
3. Further, the conclusion of Dr Samuels, that we accept, is that Mr Raikes is essentially "an untreated sex offender" who requires successful treatment before he can practise as a nurse.
4. Therefore we consider there is an unacceptable risk to patients because of Mr Raikes' past conduct in respect of the offence and there is insufficient evidence before us that the risk has been addressed such that sufficient rehabilitation has occurred.
5. Given the circumstances of the offence as set out in these reasons we therefore are satisfied that in the public interest, Mr Raikes is unfit to practise as a registered nurse. As a result, we consider it is appropriate for his registration to be cancelled.
6. The HCCC also seeks an order that Mr Raikes be prevented from applying for registration as a nurse for 12 months from the date of this decision. We are satisfied such an order is appropriate to allow an opportunity for Mr Raikes to engage and participate in the recommended treatment referred to by Mr Jones, the Local Court and Dr Samuels, and to further demonstrate his changed behaviour relating to drug and alcohol use.
7. Accordingly, the Tribunal will make orders cancelling Mr Raike's registration as a nurse and preventing him from applying for registration for 12 months.

1. The HCCC seeks an order that Mr Raikes pay the HCCC's costs as agreed or assessed.
2. The Tribunal has power to order costs under clause 13 of Schedule 5D of the National Law. This provision displaces, via clause 13(4) the usual rule in Tribunal proceedings that costs are only awarded in special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013.
3. The costs of proceedings of this nature before the Tribunal generally follow the event unless there has been some disentitling conduct by the HCCC in the conduct of the proceedings as set out in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [33]- [48].
4. As stated in Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 at [79] "[t]he underlying principle in relation to costs is "that of justice and fairness" where the Tribunal cited Hodgson JA in Commonwealth v Gretton [2008] NSWCA 117 at [121].
5. In Health Care Complaints Commission v Achurch (No 3) [2019] NSWCATOD 138 the Tribunal stated (at [39]):

It would not be fair for the Commission to recover its costs of pursuing a complaint in relation to which it did not ask the Tribunal to exercise any powers.

1. In these proceedings, a significant amount of time and resources at the hearing and of material for consideration of the Tribunal was required to address:

(1) the circumstances of Complaint Two:

(a) for which the HCCC did not seek the making of a protective order or the exercise of other disciplinary powers;

(b) where the Tribunal has accepted the evidence of Mr Raikes as to his conduct in respect of Complaint Two; and

(c) where Mr Raikes had admitted the particulars of both complaints at the earliest possible stage of proceedings, namely in his reply.

(2) And the HCCC's application to amend the background to the complaints because of an error on the HCCC's part.

1. Both of which are instances for which we consider the costs incurred to be unnecessary and consequently to be disentitling conduct on the part of the HCCC, for which it would not be fair to recover costs from Mr Raikes.
2. In exercising the discretion to determine apportionment of this mixed outcome we will consider the matter as a whole as it is not appropriate for the Tribunal to assess costs with mathematical precision that is "illusory": see Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] citing James v Surf Road Nominees Pty Ltd (No 2) and Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272; and Puri v Medical Council of New South Wales (No 2) [2024] NSWCATOD 122 at [14]- [15].
3. On that basis therefore, we are satisfied it is appropriate to reduce the costs awarded to the HCCC by 40% to 60% of costs as agreed or assessed.

(1) The complaints against the Respondent are proved.

(2) Under s 149C(1)(c) of the Health Practitioner Regulation National Law the registration of the Respondent as a registered nurse is cancelled.

(3) Under s 149C(7) of the Health Practitioner Regulation National Law the Respondent may not apply for a review of Order 2 for a period of one year from the date of these orders.

(4) Under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law the Respondent is to pay 60% of the Applicant's costs as agreed or assessed.

(5) The disclosure of the names of persons listed in the Schedule to the complaints is prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.

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

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.