By application for disciplinary findings and orders filed 20 October 2023, the applicant (the Commission) seeks the following orders under the Health Practitioner Regulation National Law (NSW) (National Law):
1. an order under s 149C(4)(a) of the National Law that if the practitioner were still registered the Tribunal would have cancelled his registration as a paramedic pursuant to s 149C(1)(b) and/or s 149C(1)(c) of the National Law;
2. an order under s 149C(4)(b) of the National Law that the practitioner is disqualified from being registered as a paramedic for a period of 1‑2 years from the date of the decision;
3. an order under s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled his registration as a paramedic in the National Register kept by the Board.
The matter was conducted as a combined Stage 1 and 2 proceeding on 29 February 2024.
For the following reasons, we have decided to make orders (1), (2) and (3) above. We propose to also order the practitioner to pay the Commission's costs, but will give the practitioner the opportunity to provide submissions on costs should he oppose that order.
[2]
Preliminary matter
On 6 February 2024, the Tribunal received a note from the practitioner acknowledged the Complaint brought against him and accepted the proposed disciplinary findings being sought. The note stated:
I acknowledge the Complaint against me and accept the proposed disciplinary findings being sought.
I am aware of the serious nature of this investigation. I have been punished by the NSW Magistrates Court for all driving charges. The repercussions have been immense and overwhelming. I am truly sorry for bringing disrepute to the Health Care Profession. I have since been attempting to move on with my life and look forward to this matter being finalised in February.
I do admit and accept my faults and have never denied responsibility for my actions. I am embarrassed and ashamed to have brought the health profession into disrepute.
I acknowledge the 2 orders being sought: 1(a, b, c) and 2. I believe that this process in February will finalise this entire issue that has encapsulated my life over several years now.
As you are all aware, I have removed myself from any health-related jobs/interactions as I believe that the Health industry requires persons of high regard and I have failed to maintain that standard. Again, I am sincerely apologetic for bringing the health profession into disrepute.
Given the contents of that letter, the following direction was sent to the parties on 16 February 2024 stating relevantly stating:
1. Each party is to provide to the Tribunal and each other by 4.30pm Wednesday 21 February 2024 any submissions on the Tribunal's proposals:
(a) to vacate the second day of the hearing, Friday 1 March 2024; and
(b) to conduct the hearing as a combined "Stage 1" and "Stage 2" hearing.
2. Mr Richards is to provide to the Tribunal and the Commission by 4.30pm Wednesday 21 February 2024 a short note setting out whether or not he:
(a) admits the conduct the subject of the Commission's complaints; and
(b) admits the Commission's complaints.
The Reasons for those directions were as follows:
This matter has been set down for a two day hearing on Thursday 29 February and Friday 1 March 20924.
The Tribunal has now received each parties' documents.
It appears from Mr Richards' letter to the Tribunal received on 6 February 2024, that Mr Richards does not oppose the orders being sought. The Tribunal assumes, but does not know, that given the contents of his letter Mr Richards admits the conduct the subject off the Commission's complaints and the complaints themselves. It would be useful to have clarity on this issue.
Given the contents of Mr Richards' letter, it appears to the Tribunal that only the first day of the two days allocated for the hearing will be required, and that the hearing could be conducted as a combined "Stage 1" and "Stage 2" hearing on Thursday 29 February 2024.
For the benefit of Mr Richards, a "Stage 1" hearing is where the Tribunal hears and determines whether the conduct the subject of the complaints and the complaints are established. After making its decision on those matters, a later "Stage 2" hearing is held to determine the appropriate protective order to impose on the respondent practitioner.
It is quite usual, and more economical, to hear a matter as a combined "Stage 1" and "Stage 2" hearing.
On 21 February 2024 at 7.34am, the Tribunal received a response from the practitioner, relevantly stating:
a. I also am in agreeance for the hearing to go ahead …
2. I seek a combined hearing for stage 1 and 2.
3. I give you, Ursula Armstrong, permission to write to the Tribunal to vacate the second day 1st of March
4. I do not have any objections to the provided HCCC material.
5. I approve of the proposed Statement of Agreed Facts in its entirety.
6. I intend to represent myself at the hearing.
For clarification "protective orders" pertaining to the orders being sought as written in the complaint?
…
In Regards orders 2:
a. I Christopher Richards admit conduct the subject of the Commissions complaints.
b. Further I admit the Commissions complaints.
[a) admits the conduct the subject of the Commission's complaints; and
(b) admits the Commission's complaints.
(emphasis added)
On 21 February 2024 at 3.28pm, the Tribunal received a further response from the practitioner:
To add further clarification to the orders letter sent on the 16th, I add:
I do not oppose the orders being sought.
I admit conduct the subject off the Commission's complaints and the complaints themselves.
I agree to have the hearing on one day and to combine stage one and two on the same day.
I agree that I have received the Order on the 16th of February 2023. I have also reviewed the updated and modified version sent to me by U. Armstrong from HCCC.
(emphasis added)
On 28 February 2024, the day before the hearing, the Tribunal received a further note from the practitioner:
I am aware that proceedings are to commence tomorrow the 29th of February.
Unfortunately, due to unforeseen circumstances surrounding my ability to travel to Sydney, I will not be able to attend the proceedings. I will be an apology for proceedings.
This is the earliest I've been able to notify relevant parties.
In my absence I agree that the proceedings should continue as tabled for the one day on the 29th of February 2024.
I look forward to being in communication with parties and the NCAT in relation to their findings and the closure of this case.
Please inform me if there are any other concerned parties that I need to notify.
Again, I am sorry that this is the earliest I could notify persons in writing.
We understand that the Commission advised the practitioner of the opportunity to seek an adjournment of the hearing, or the possibility of attending the hearing by AVL link. However, the practitioner did not wish to take up either of these options.
Based on all these documents, we are satisfied that:
1. the practitioner had notice of the hearing on 29 February 2024;
2. the hearing should proceed in his absence;
3. the practitioner admits the conduct underlying the Commission's complaints, including all the conduct set out in the statement of agreed facts, the copy of which was filed with the Tribunal having been signed by the practitioner;
4. the practitioner admits the complaints;
5. the practitioner has admitted all the conduct set out in the statement of agreed facts, the copy of which is filed with the Tribunal having been signed by him.
[3]
The Complaint
By Further Amended Complaint filed 23 February 2024, the Commission makes four complaints.
Complaint Three was omitted from the Amended Complaint. For convenience, we will maintain the numbering of the complaints and their particulars used in the original complaint filed on 23 October 2023.
The background to all complaints is that:
1. the practitioner completed a Bachelor of Nursing with a Bachelor of Paramedicine from the Australian Catholic University in 2017. The practitioner was first registered as a registered nurse in New South Wales in 2017. The practitioner was first registered as a paramedic in New South Wales in 2019;
2. the practitioner was employed by NSW Ambulance (NSWA) from 28 May 2018 to December 2022 and was based at Wagga Wagga Ambulance Station (the Ambulance Station).
[4]
Complaint One
Complaint One is that pursuant to s 144(a) of the National Law, the practitioner has been convicted of a criminal offence in NSW.
The Particulars of Complaint One are:
1. on 7 September 2022, the practitioner was convicted of driving a motor vehicle with mid-range prescribed concentration of alcohol in their breath or blood (first offence) contrary to s 110(4)(A) of the Road Transport Act 2013 (NSW) (RT Act);
2. on 7 September 2022, the practitioner was convicted of driving a motor vehicle with mid-range prescribed concentration of alcohol in their breath or blood (first offence) contrary to s 110(4)(A) of the RT Act;
3. on 15 November 2022, the practitioner was convicted of drive motor vehicle while licence suspended (second offence) contrary to of the RT Act;
4. on 15 November 2022, the practitioner was convicted of drive motor vehicle while licence suspended (second offence) contrary to s 54(3)(A) of the RT Act.
[5]
Complaint Two
Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the National Law.
The Particulars of Complaint Two are:
(1A) the practitioner contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being the subject of a finding of guilt on 14 July 2020 for the offence of driving a motor vehicle with a mid-range prescribed concentration of alcohol in his breath or blood contrary to s 110(4)(A) of the RT Act;
(1) the practitioner contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being charged on:
(a) on or about 3 July 2022 with the offence of driving a motor vehicle with mid-range prescribed concentration of alcohol in their breath or blood (second offence) contrary to s 110(4)(A) of the RT Act;
(b) 28 September 2022 with the offence of drive motor vehicle while licence suspended contrary to s 54(3)(A) of the RT Act;
(c) 28 September 2022 with the offence of drive motor vehicle while licence suspended contrary to s 54(3)(A) of the RT Act.
(2) the practitioner contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted of the following offences on:
(a) 7 September 2022 with the offence of driving a motor vehicle with mid-range prescribed concentration of alcohol in their breath or blood (first offence) contrary to s 110(4)(A) of the RT Act;
(b) 7 September 2022 with the offence of driving a motor vehicle with mid-range prescribed concentration of alcohol in their breath or blood (first offence) contrary to s 11 0(4)(A) of the RT Act;
(c) 15 November 2022 with the offence of drive motor vehicle while licence suspended contrary to s 54(3)(A) of the RT Act;
(d) 15 November 2022 with the offence of drive motor vehicle while licence suspended contrary to s 54(3)(A) of the RT Act.
[6]
Complaint Four
Complaint Four is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of paramedicine.
The Particulars of Complaint Four are that:
1. the practitioner failed to immediately report to the Chief Executive of NSW Ambulance Services that his NSW driver's licence was suspended on 2 July 2022, contrary to cl 17 of the Health Services Regulation 2018 (NSW) (HS Reg);
2. the practitioner failed to immediately report in writing to the Chief Executive of the NSW Ambulance Services the fact that he was charged with a driving offence on or about 3 July 2022, contrary to cl 16(2) of the HS Reg;
3. the practitioner attended the Ambulance Station and performed his rostered shifts as a paramedic without informing his colleagues or supervisor that his driving licence was suspended on 2 July 2022 on the following occasions:
1. 5 July 2022;
2. 6 July 2022;
3. 7 July 2022.
1. the practitioner drove the ambulance and transported patients when his driving licence was suspended on the following occasions:
1. on two assigned jobs on 5 July 2022;
2. [not pressed at the hearing on 29 February 2024].
[7]
Complaint Five
Complaint Five is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
The Particular of Complaint Five is Complaints Two and Four and the Particulars thereof which are repeated and relied upon both individually and cumulatively.
[8]
The Commission's documents
The following documents were admitted as evidence in the Commission's case:
1. Exhibit A: email correspondence between the parties;
2. Exhibit B: a bundle of 446 pages of materials including but not limited to correspondence between the parties; correspondence between regulators and the practitioner; the reasons for decision dated 10 November 2022 of the s 150 proceedings held on 26 October 2022; the documents before the delegates at the s 150 hearing; various professional Standards; the practitioner's CV; various court and police documents relating to the practitioner's various Local Court hearings, including transcripts of proceedings;
3. Exhibit C: a bundle of 63 pages of materials including but not limited to further court and police documents relating to the practitioner's various Local Court hearings, including references relied on by the practitioner;
4. Exhibit D: the Agreed Facts;
5. Exhibit E: the Australian Health Practitioner Regulatory Agency (AHPRA) evidentiary certificate in relation to the practitioner dated 22 February 2024;
6. Exhibit F: the AHPRA Registration Standard: Criminal History, dated 1 July 2015.
[9]
The practitioner's documents
The practitioner did not file any documents of the kind usually filed in proceedings such as these, including a "reflection" of the practitioner; professional and personal references; or reports of treating health practitioners such as psychiatrists, psychologists and drug and alcohol counsellors.
However, included in the Commission's materials were the following relevant documents of the practitioner.
First, a letter from the practitioner to the Commission dated 24 March 2023. This letter states:
I am aware of the serious nature of this investigation. Your investigation would have disclosed that, I have attended court for all charges, and have been punished accordingly. As I previously advised I have surrendered both my registrations as my position within the healthcare industry became untenable. I have been trying to move on with my life.
I do admit my faults and have taken full responsibility for my actions. I am embarrassed and ashamed to have brought the health profession into disrepute.
Please see attached letter from Cooinda Court Management in regards to my temporary employment at the facility.
In regards to the renewal of my registration in nursing; I received an email from AHPRA stating I could nominate to enlist on the sub-register during covid. I opted in via the email sent to me. I was unaware that there were further requirements. I was not intending to deceive the public or any employers. At the end of the sub-register period another email was sent and requesting a simple payment to have full registration reinstated. I followed the links and foolishly did not read the fine print within this email. I cannot stress enough the fact that it was never my intention to deceive the public or AHPRA or any authority that oversees the health industry. Retrospectively this was naïve to think that reinstating my registration was easy as it appeared to be. I did not intend to harm or act in a manner that was unsafe or unethical towards the public/patients/employers.
I did complete and try to maintain CPD requirements for both Paramedicine and Nursing.
This investigation processes run by the Paramedic and Nursing Councils and HCCC and other internal bodies have taken a huge toll on my life. I have suffered the humiliation of newspaper articles the character assassinations at the hands of authorities resulting in the publication of my name and my address further adding to the psychological stresses.
I took part in the Traffic Offenders Intervention Program. I sought psychological help in regards to alcohol use and other mental health issues that have arisen from my employment with NSW Ambulance, complying with all disciplinary actions imposed.
I understand due process, and have removed myself from any health-related jobs/interactions, I am sincerely apologetic for bringing the health profession into disrepute. I appeal for your understanding and provision of a quick resolution to this matter to allow me to rebuild my life.
Secondly, the written statement provided to a Local Court Magistrate dated 14 July 2020. That document is set out below.
Thirdly, the written statement provided to a Local Court Magistrate dated 4 August 2022. That document is set out below.
Fourthly, the written statement provided to a Local Court Magistrate dated 15 November 2022. That document is set out below.
[10]
The hearing
For the reasons set out above, the hearing proceeded in the absence of the practitioner.
At the hearing, Ms Bayley, for the Commission, amplified her written submissions dated 28 February, filed 29 February 2029.
Based on the Agreed Facts and the uncontradicted evidence before the Tribunal we make the following findings.
The matters underlined below were agreed between the parties and set out statement of agreed facts.
[11]
2013
In 2013, Christopher Roshan Richards (the practitioner) started studying Bachelor Nurse with a Bachelor of Paramedicine at the Australian Catholic University.
[12]
2014
On 19 January 2014, the practitioner was detected driving under the influence of alcohol. His breath analysis reading was 0.132. On 3 April 2014, the practitioner was convicted at ACT Magistrates Court of drive motor vehicle with alcohol in blood/breath. He was disqualified from driving for 3 months and fined $400.
[13]
2015
In 2015-2016, the practitioner continued his Bachelor of Nursing with a Bachelor of Paramedicine, including a course on health care ethics and placements at an Alcohol and Drug Service and an Emergency Department.
[14]
2017
In 2017, the practitioner completed the Bachelor of Nursing with a Bachelor of Paramedicine.
On 3 November 2017, the practitioner was first registered as a registered nurse in NSW.
From November 2017, the practitioner worked as a registered nurse at Canberra Hospital.
As a registered nurse, the practitioner knew that he was required to:
1. comply with the Code of Conduct for Nurses;
2. complete a minimum of 450 hours of practice over 5 years (recency of practice requirement);
3. notify the National Board within 7 days after being charged with an offence punishable by 12 months imprisonment or more;
4. notify the National Board within 7 days after being convicted of or being the subject of a finding of guilt for an offence punishable by imprisonment: National Law, s 130;
5. submit an annual application to renew his registration with a declaration including that he has met the recency of practice requirements and details of any change in his criminal history that occurred during his preceding period of registration: National Law, s 109.
[15]
2018
In 2018, the practitioner completed a Responsible Service of Alcohol certificate.
From 28 May 2018, the practitioner was employed by NSW Ambulance and was based at Wagga Wagga Ambulance Station (the Ambulance Station).
On 26 November 2018, the practitioner submitted his application for paramedicine registration. In response to the question "Do you have any criminal history in Australia?" the practitioner (correctly) answered "Yes" and typed "DUI - 2014. Convicted of Driving under the Influence of alcohol. Attended the ACT Magistrates Court and was penalised with a fine and a 3 month driving suspension".
[16]
2019
On 5 April 2019, the practitioner was first registered as a paramedic in NSW.
As a registered paramedic, the practitioner knew that he was required to:
1. comply with the Paramedicine Board of Australia Code of Conduct;
2. notify the National Board within 7 days after being charged with an offence punishable by 12 months imprisonment or more;
3. notify the National Board within 7 days after being convicted of or being the subject of a finding of guilt for an offence punishable by imprisonment;
4. submit an annual application to renew his registration with a declaration including that he has met the recency of practice requirements and details of any change in his criminal history that occurred during his preceding period of registration;
5. renew his paramedic registration by 30 November every year.
On 4 December 2019:
1. the practitioner submitted his application to renew his paramedicine registration (his first renewal, seeking registration for the period from 1 December 2019 to 30 November 2020);
2. in response 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?" the practitioner (correctly) answered "No".
[17]
2020
On 14 April 2020:
1. the practitioner consumed 6 full strength beers between around 11am and 1:30pm;
2. he was stopped by police at 2:21pm driving at excessive speed through an intersection;
3. he was detected driving under the influence of alcohol;
4. his breath analysis reading at 2:50pm was 0.098;
5. his driver's licence was immediately suspended;
6. he was charged with driving a motor vehicle with mid-range prescribed concentration of alcohol in his breath or blood (contrary to s 110(4)(A) of the RT Act);
7. the maximum penalty for this offence is 20 penalty units or imprisonment for 9 months or both (in the case of a first offence).
On 4 August 2020, the practitioner made a statutory declaration which relevantly stated:
On the day of the offence - I consumed alcohol (beers) with my lunch. I proceeded to drive home and was pulled over by Highway Patrol for a breath analysis. This returned a positive reading. I was on my way home - I erroneously believed I was able to drive a short distance back home. I was rostered on to work a night shift - however had made the decision at lunch time to call in sick for the shift.
After: I attended an online Drug and Alcohol driving awareness program. I successfully completed Dry July program and raised $500 as well. I sought counselling through my work place with the Staff Psychologist appointed through NSW Ambulance Service. This is still on-going as it is beneficial to me. I have apologised to colleagues for my actions.
Prior to the incident, I had attended a few traumatic jobs and also suffered from a relationship break down. These issues have been reconciled.
I understand that as a Paramedic we see a lot of issues relating to alcohol and drugs. I understand that this was a very poor reflection on the Paramedic Profession. Paramedics are there in the community to help and support persons, and I made the wrong decision to drive - knowing the full spectrum of possible bad situations that could and can arise from being under the influence of alcohol. As a result I complied with my Court Ordered sobriety period and have since managed to control the consumption of alcohol and making callous decisions.
(emphasis added)
On 14 July 2020:
1. the practitioner entered a plea of guilty at Wagga Wagga Local Court;
2. he was found guilty;
3. he was sentenced to a Conditional Release Order (CRO), without conviction, for 2 years commencing 14 July 2020;
4. his CRO included a standard condition not to commit any offences for 2 years and an additional condition to abstain from alcohol for 12 months.
5. At the hearing, the practitioner provided the Magistrate with a written statement, dated 14 July 2020, which relevantly stated:
I am writing to you today to admit my guilt and to express my remorse for my irresponsible, foolish and dangerous actions. There is no excuse for my actions and I take full responsibility for what I have done.
On the day of the offence, I decided to drive across the road to the local shops to buy some food after consuming alcohol. On my drive back to home - I was detected by NSW Police who subsequently pulled me over. I was embarrassed and ashamed of my actions. I was not thinking. 1 was foolish to believe that I would be okay to drive.
I am a Paramedic here in Wagga Wagga and I have strived hard for many years through study and training with NSW Ambulance to get to this very privileged and trusted job. I know and i have seen firsthand the destruction that alcohol can create. I have attended many incidents where alcohol has been involved and have seen the impact it has had on individuals, families and society. Knowing that I could have injured someone or worse, has been a serious point of self-reflection for me over the last 3 months. As someone who works in and serves the community - I am embarrassed and I know I have let down my friends, colleagues, family and the community.
As a paramedic, I have been placed onto extended leave throughout this process as holding a valid unconditional driver's licence is part of the job requirement. My employer has advised that I will be unable to return to work until my suspension / disqualification is complete. I am also unable to have an interlock licence as this is not an unconditional licence.
The previous day I attended a patient who was attempting suicide. Fortunately, the team I was working with - were able to save this man's life. The stress in dealing with this was on my mind at the time.
I am ashamed of my actions which have also impacted the lives of my parents. They are elderly and my Father had a stroke recently. As I have not had a licence, I have not been able to travel to look after my parents in Canberra, as I care for them on my days off. My cousin has assisting but her work and studies in International Relations and Law at the ANU make this non-sustainable.
To plan a better path for my future, I took part in the Traffic Offenders Intervention Program. This further reinforced the dangerous nature of my conduct and the myriad of impacts that could have occurred. The case studies presented through the program - allowed me to reflect on my actions and really drove home the message of not to drink and drive - ever again.
Again, I admit my guilt. I offer no excuses to my actions. I am sorry that i made the wrong decision to drive after the consumption of alcohol.
At the conclusion of the hearing, the Magistrate told the practitioner:
If you commit any other offence in the next two years you come back, almost inevitably you are convicted, then you lose your licence and then you are not able to work. But secondly the protection of the community there will be complete separation in the sense that you will not be able to drink. Now if you have a drink and that comes to the attention of the police which these things do these days, again, you can assume that you will be convicted and that means for you, you lose your job.
IT WILL BE A CONDITIONAL RELEASE ORDER WITHOUT CONVICTION FOR THE PERIOD OF TWO YEARS, ABSTAIN FROM ALCOHOL AND THE ABSTENTION IS TIME LIMITED TO 12 MONTHS.
The practitioner contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being the subject of a finding of guilt on 14 July 2020 for the offence of driving a motor vehicle with mid-range prescribed concentration of alcohol in his breath or blood contrary to s 110(4)(A) RT Act.
On 4 November 2020:
1. the practitioner submitted his application to renew his paramedicine registration (his second renewal, seeking registration for the period from 1 December 2020 to 30 November 2021).
2. In response 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?" the practitioner (correctly) answered "Suspended Divers Licence for a period of 3 months. Proceeded to Court - Nil CONVICTION recorded".
3. The practitioner attached documents including the CRO dated 14 July 2020 and his statutory declaration dated 4 August [sic] 2021 including that "On the day of the offence - I consumed alcohol (beers) with my lunch. I proceeded to drive home and was pulled over by Highway Patrol for a breath analysis. This returned a positive reading. I was on my way home - I erroneously believed I was able to drive a short distance back home. I was rostered on to work a night shift - however had made the decision at lunch time to call in sick for the shift."
[18]
2021
On 24 December 2021:
1. the practitioner submitted his application to renew his paramedicine registration (his third renewal, seeking registration for the period from 1 December 2021 to 30 November 2022);
2. in response 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?" the practitioner (correctly) answered "No".
[19]
2022
From June 2022, the practitioner was required to comply with the Shared Code of Conduct applicable to paramedics.
On 2 July 2022, while the practitioner was still subject to the CRO standard condition not to commit any offences for 2 years from 14 July 2020;
1. the practitioner had about 9 alcoholic beverages between about 6-9pm;
2. he was stopped by police about 10:20pm driving erratically (swerving toward the curb approaching a roundabout);
3. he was detected driving under the influence of alcohol;
4. his breath analysis reading at 11:12pm was 0.134;
5. his driver's licence was immediately suspended;
6. he signed the licence suspension notice;
7. he was charged with driving with mid-range prescribed concentration of alcohol (PCA) in his breath or blood (s 110(4)(A) RT Act);
8. the maximum penalty for this offence is 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).
The practitioner failed to immediately report to the Chief Executive of NSW Ambulance Services that his NSW driver's licence was suspended on 2 July 2022, contrary to cl 17 of the HS Reg.
The practitioner failed to immediately report in writing to the Chief Executive of the NSW Ambulance Services the fact that he was charged with a driving offence on or about 3 July 2022, contrary to cl 16(2) of the HS Reg.
The practitioner contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being charged on or about 3 July 2022 with the offence of driving a motor vehicle with mid-range prescribed concentration of alcohol in his breath or blood (2nd offence) contrary to s 110(4)(A) RT Act.
On 4 July 2022, the practitioner attended the Ambulance Station and undertook an on-road operational (day) shift from 5:45am to 6pm.
On 5 July 2022, while the practitioner was still subject to the CRO standard condition not to commit any offences for 2 years from 14 July 2020 and while the practitioner was also subject to the driver's licence suspension imposed by police on 2 July 2022;
1. the practitioner attended the Ambulance Station and undertook an on-road operational (day) shift from 5:45am to 6pm;
2. the practitioner attended the Ambulance Station and performed his rostered shifts as a paramedic without informing his colleagues or supervisor that his driving licence was suspended on 2 July 2022;
3. the practitioner drove the ambulance and transported patients when his driving licence was suspended on two assigned jobs;
4. about 09:10, the practitioner drove New South Wales registered Ambulance 5322 from Fernleigh Road, Wagga Wagga whist attending a job on Dalman Parkway, Glenfield Park and then to the Wagga Base Hospital on Edward Street, Wagga Wagga:
1. the practitioner was dispatched from the ambulance station at 9:08am, drove en route at 9:10am, arrived at the nursing home at 9:15am, attended a 79 year old female patient with chest pain, loaded the patient into the ambulance at 9:27am, drove to the hospital at 9:45am then departed at 10:02am;
2. the practitioner was assisted by an observer (another paramedic who was available to drive);
3. the practitioner knew that his driver's licence was suspended;
4. the practitioner did not ask the observer to drive;
5. the practitioner did not tell the observer that his driver's licence was suspended.
1. about 4:08pm the same day, the practitioner drove New South Wales registered Ambulance 5322 from Fernleigh Road, Wagga Wagga whist attending a job on Churchill Avenue, Kooringal and from here to the Wagga Base Hospital on Edward Street, Wagga Wagga:
1. the practitioner was dispatched from the ambulance station at 4:02pm, drove en route at 4:08pm, arrived at the home at 4:16pm, attended a 88 year old female patient with a suspected stroke, drove to the hospital, arrived at the hospital at 5:05pm then departed at 5:53pm;
2. the practitioner was assisted by an observer (another paramedic who was available to drive);
3. the practitioner knew that his driver's licence was suspended;
4. the practitioner did not ask the observer to drive;
5. the practitioner did not tell the observer that his drive'sr licence was suspended.
On 7 July 2022, while the practitioner was still subject to the CRO standard condition not to commit any offences for 2 years from 14 July 2020 and while the practitioner was also subject to the driver's licence suspension imposed by police on 2 July 2022;
1. the practitioner attended the Ambulance station and undertook an on-road operational (overnight) shift from 5:45pm on 7 July 2022 to 6am on 8 July 2022;
2. the practitioner attended the Ambulance Station and performed his rostered shifts as a paramedic without informing his colleagues or supervisor that his driving licence was suspended on 2 July 2022;
3. the practitioner drove the ambulance and transported patients when his driving licence was suspended on one assigned job;
4. about 8:44pm, the practitioner drove New South Wales registered Ambulance 5356 from Fernleigh Road, Wagga Wagga whilst attending a job on Sepik Road, Ashmont and from here to the Wagga Base Hospital on Edward Street, Wagga Wagga;
1. the practitioner was dispatched from the ambulance station at 8:44pm, drove en route at 8:44pm, arrived at the home at 8:52pm, attended a 54 year old female patient with convulsions/fitting, the patient declined hospital transfer, the practitioner departed at 9:27pm;
2. the practitioner was assisted by an observer (another paramedic who was available to drive);
3. the practitioner knew that his driver's licence was suspended;
4. the practitioner did not tell the observer that his driver's licence was suspended.
On 14 July 2022, the practitioner electronically signed an urgent request for 5 weeks leave without pay and typed the reason "family Carer Duties".
On 28 July 2022, the practitioner signed a statutory declaration at the Ambulance station (witnessed by a registered nurse) declaring that "Due to increasing medical concerns and treatments for my parents I have to take further time off work - leave without pay. As I am the only child of my parents - I have to assist them over the next several weeks and months to provide assistance in care and travel to and from medical appointments and assist in possible respite care options."
On or about 4 August 2022, the practitioner provided a written statement provided to the Magistrate dated 4 August 2022. That document states:
I write to you today to admit my guilt. take responsibility and to express my absolute remorse for my irresponsible, foolish and dangerous actions. I am embarrassed and ashamed of my actions and lapse in judgment.
On the night of the offence, I attended a small gathering. The intention to consume large amounts of alcohol was not there - rather a few light beers and a lift home. I did consume some light beers however stopping around 9pm. Around 1015pm that night I made a very big error in judgment and decided that I will drive home. As the facts state I was detected by NSW Police High within minutes of driving. My vehicle had also just sustained a flat tyre and I was travelling at the prescribed speed.
I am a Paramedic and I have strived hard for many years through study and to get to this very privileged and trusted job. I know the destruction that alcohol can create. I was detected DUI in 2020 after making the same mistake as I am here for today.
I am currently on leave without pay since my licence suspension. I can return to work when my licence has been reinstated.
I have also been isolated from my parents who reside in Canberra. My parents are elderly and my father had a stroke recently. This has had an additional burden on my mother. As I have not had a licence, I have not been able to travel as often to look after my parents as I care for them on my days off. Further loss of my licence would mean I would not be able to help my mother and father as their needs increase.
I took part in the Traffic Offenders Intervention Program. I found the course very insightful and engaging from a perspective outside of emergency services.
I committed to Dry July and have abstained from alcohol since. As a result of my last infraction, 1 was committed to a 12-month abstinent period, which was also verified through work.
Again, I admit my guilt. I am sorry that I made the wrong decision to drive after the consumption of alcohol. Please take into consideration my humble thoughts and reflection upon your sentencing.
On 30 August 2022, the practitioner submitted his application to renew his nursing registration (pandemic transition), seeking registration for the period until 31 May 2023. In response 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?" the practitioner (incorrectly) answered "No". In response to the question "Do you meet the recency of practice registration standard?" the practitioner (incorrectly) answered "Yes".
On 5 September 2022, the practitioner completed the Traffic Offender Intervention Program.
On 7 September 2022:
1. the practitioner entered a plea of guilty at Wagga Wagga Local Court for the driving offence committed on 2 July 2022 (the fresh offence) and then the practitioner:
1. was convicted of driving a motor vehicle (on 2 July 2022) with mid-range prescribed concentration of alcohol in his breath or blood (1st offence) contrary to s 110(4)(A) of the RT Act;
2. was disqualified for 3 months from holding any driver's licence under s 211(1)(a) of the RT Act;
3. was ordered to hold an interlock driver's licence for a period of 12 months under s 211(1)(b) of the RT Act;
4. was sentenced to a Community Correction Order (CCO) with supervision for 12 months commencing 7 September 2022 with the standard condition not to commit any offence for 12 months and an additional condition to undertake alcohol rehabilitation programs;
1. the Magistrate also revoked the CRO imposed on 14 July 2020 (because the practitioner had breached the standard CRO condition not to commit any offences for 2 years by committing the fresh offence) then convicted and resentenced the practitioner for the driving offence committed on 14 April 2020 and then the practitioner:
1. was convicted of driving a motor vehicle (on 14 April 2020) with mid-range prescribed concentration of alcohol in his breath or blood (1st offence) contrary to s 110(4)(A) of the RT Act;
2. was disqualified for 3 months from holding any driver's licence under s 211(1)(a) of the RT Act;
3. was ordered to hold an interlock driver's licence for a period of 12 months under s 211(1)(b) of the RT Act;
4. was sentenced to another Community Correction Order (CCO) for 6 months commencing 7 September 2022. The CCO included the standard condition not to commit any offence for 6 months and an additional condition to abstain from alcohol for 6 months.
The practitioner contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted on 7 September 2022 with two offences of driving a motor vehicle with mid-range prescribed concentration of alcohol in his breath or blood (1st offence) contrary to s 110(4)(A) of the RT Act.
On 9 September 2022, the acting station officer became aware of a media article dated 9 September 2022 regarding the court outcome on 7 September 2022 then a senior colleague of the practitioner made a notification to AHPRA. Before receiving this notification, AHPRA and the Council were unaware that the practitioner had been charged on 2 July 2022 and convicted on 7 September 2022.
On 19 September 2022, the practitioner received correspondence from the Paramedicine Council enclosing the notification and requesting information.
On 20 September 2022, the practitioner started working as a (casual) registered nurse at Cooinda Court Aged Care Facility then worked three 8 hour shifts. At that time, the practitioner had not worked as a nurse since May 2018.
On 26 September 2022, the practitioner received correspondence from the Nursing and Midwifery Council requesting information.
On 28 September 2022:
1. NSW Ambulance Service contacted police raising concerns that the practitioner had driven an ambulance whilst suspended on 5 and 7 July 2022;
2. Police attended the practitioner's home, cautioned him, interviewed him and the practitioner admitted driving while suspended. When asked when he drove at work, the practitioner responded with words including "Mate, because this is the second time it has happened. Still trying to fucking put all the pieces together.. did the wrong thing, … how can you do such a stupid thing…. it is embarrassing … bloody shameful … you kind of hold this public position and you do these things and you do it again. I was just trying to pick up the pieces and go right and formulate a plan as to, … how am I going to possibly go about this…. Got to call a lawyer, got to do this. I wanted to just ride it out until it got to court and see what happened. Obviously it has gone incredibly south…. Why did I drive? I didn't want to burn too much sick leave, you know, blow off four shifts. …I understood the legality of it, didn't want to let the team down";
3. the practitioner was charged with two offences of drive motor vehicle while licence suspended (prior offence) on 5 and 7 July 2022 contrary to s 54(3)(A) of the RT Act;
4. the maximum penalty for each offence is 30 penalty units or imprisonment for 6 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).
The practitioner contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being charged on 28 September 2022 with two offences of drive motor vehicle while licence suspended contrary to s 54(3)(A) of the RT Act.
On 3 October 2022, the practitioner completed an information form for the Paramedicine Council.
On 4 October 2022, the practitioner emailed the Paramedicine Council attaching information.
On 5 October 2022, NSW Ambulance made a notification to AHPRA and the practitioner completed an information form for the Nursing and Midwifery Council.
On 11 October 2022, the practitioner provided emailed the Nursing and Midwifery Council attaching information including his (undated) reflection letter and his CV.
On 19 October 2022, the practitioner received correspondence from the Councils inviting him to attend a hearing under s 150 of the National Law (s 150 hearing), providing him the documents to be considered during the hearing.
On 24 October 2022, the practitioner emailed to the Paramedicine Council seeking to postpone the s 150 hearing.
On 25 October 2022, the practitioner emailed the Paramedicine Council declining to attend the s 150 hearing.
On 26 October 2022, the Councils conducted the s 150 hearing. At that time, the outcome of the driving whilst suspended charges was unknown to the Council. The Councils imposed conditions, effective 26 October 2022, that the practitioner not work as a paramedic or registered nurse until reviewed and that he submit to hair ETG testing.
On 10 November 2022, the practitioner received correspondence from the Councils attaching the s 150 decision.
Amongst other matters, the delegates stated in the s 150 decision:
Although the DUl allegations do not appear to relate to incidents that occurred during Mr Richards' practice as a paramedic or registered nurse, we are particularly concerned that Mr Richards has demonstrated poor judgement and decision-making that puts the public at risk.
This is because of the pattern of repeated breaches of the law and the failure of Mr Richards to acknowledge the serious nature of the risk to the public with respect to driving under the influence of alcohol. This concern is particularly acute given his job as a paramedic that involves not only careful driving but attendance at accidents caused by drink drivers.
Mr Richards' decision to allegedly drive whilst suspended on 05 July 2022, whilst in the practice of his profession (paramedicine) raises a significant concern about his decision-making. It is apparent that Mr Richards also failed to inform his employer of his loss of licence and his intention to continue working indicates an intention to deceive his employer. If these allegations are true, it would appear in doing so, he made a conscious decision to break the law, to deceive his employer, and to place patients, the public and other practitioners at risk of potential harm. This decision was in the practice of his profession and in doing so Mr Richards has demonstrated poor judgement and decision-making and behaved in a way that that puts the public at risk.
In conclusion, the delegates stated:
We also consider the public interest aspects of his conduct to be serious as the offences are multiple repeats of the same conduct and include a flagrant disregard for the need to be licenced to drive that have a direct bearing on public safety.
We considered what conditions could be imposed on Mr Richards' registration that would mitigate the risks if he were to seek to continue to practise. Although conditions requiring him to work in a non-clinical role, or under supervision, would mitigate some of the direct risks to the health and safety of the public, there are no conditions that could be imposed that would mitigate against the poor decision-making, lack of insight and judgement exhibited, or address the issues of the public interest. It is our view that the public would rightly be very concerned if a practitioner, having been subject to multiple findings of guilt with respect to repeat public-risk offences, was allowed to continue to practise whilst these matters were still being deliberated on. This view is supported by the publication in the media of a piece outlining the Wagga Wagga Court magistrate heavily and publicly criticising Mr Richards, as a paramedic, having committed multiple drink driving offences.
We are satisfied that it is necessary for the protection of the public, for immediate action to be taken to limit Mr Richards to 'not to practise' in either profession. We also find it necessary to require that Mr Richards attend for an EtG (hair) test for the purpose of assessing the extent of his alcohol use. These actions are the appropriate response both for the protection of the health and safety of the public and in the public interest.
On 15 November 2022, the practitioner:
1. entered a plea of guilty at Wagga Wagga Local Court;
2. was convicted two offences of drive motor vehicle while licence suspended (prior offence) on 5 and 7 July 2022 contrary to s 54(3)(A) of the RT Act;
3. was disqualified from holding any driver's licence under s 211(1)(a) of the RT Act for 7 months commencing 15 November 2022;
4. was fined $2000.
On or about 15 November 2022, the practitioner provided a written statement to the Presiding Magistrate dated 15 November 2022, which stated:
I write to you today to admit my guilt, take responsibility and to express my absolute remorse for my irresponsible, foolish and dangerous actions. I am embarrassed and ashamed of my actions and lapse in judgment. I have brought disrepute to both Nursing and Paramedicine. I have been incredibly humbled throughout this process.
After my original offence of DUI, I was stunned shocked, embarrassed and ashamed and quite confused as to how I had allowed myself to make the same mistake. As a result, I attended work and drove the ambulance unlicenced. I attended work as I felt I needed to out of commitment to the job and commitment to the community and my fellow staff - as staffing issues are terrible at Wagga Wagga. I foolishly attended work. Since then, these charges have been laid.
I am a Paramedic with a registration in Nursing (RN) and I have strived hard for many years through study and to get to this very privileged and trusted job. I have been barred from working as a paramedic and a nurse by the Nursing and Paramedic Councils. I cannot work in the health industry until they have finalised their investigations.
I have been lucky enough to find some casual/part time work in construction. However, commuting to the job sites has been difficulty - and I understand that this is only because of my actions.
I know the destruction that alcohol can create. I was detected DUI in 2020 after making the same mistake. Alcohol was used by me as a coping mechanism during this period. I have since been able to seek psychological assistance and of course, abstained as per the court orders. This has been beneficial for me as alcohol is no longer in my life.
I am currently on leave without pay since my licence suspension. I have taken up casual work as a labourer in construction. I am required to be at various sites to assist with whatever duties need to be fulfilled. I manage to get lifts occasionally; however, I cannot meet higher attendance levels due to the lack of licence. This creates further financial strain as, like all of us, have bills and mortgage repayments to make.
I have › been isolated from my parents who reside in Canberra. My parents are elderly and my father had a stroke recently. This has had an additional burden on my mother. As I have not had a licence, I have not been able to travel as often to look after my parents as I care for them on my days off. Further loss of my licence and increasing penalties would mean I would not be able to help my mother and father as their needs increase.
I took part in the Traffic Offenders Intervention Program. I found the course very insightful and engaging from a perspective outside of emergency services.
I am currently engaged in psychological services through NSW Ambulance - Staff psychologist, whom which I have weekly appointments.
I committed to Dry July and have abstained from alcohol since. As a result of my last infraction, I was committed to a 6-month abstinent period, which I have been observing.
Again, I admit my guilt. I am ashamed and I have been humbled throughout this entire process. I have made changes in my life. I am sorry that I made the wrong decision to Please take into consideration my humble thoughts and reflection upon your deliberations.
I am sorry to bring the health profession into disrepute.
The practitioner contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted on 15 November 2022 with two offences of drive motor vehicle while licence suspended (prior offence) on 5 and 7 July 2022 contrary to s 54(3)(A) of the RT Act.
On 30 November 2022, the practitioner's paramedicine registration lapsed because he did not renew it.
On 2 December 2022, the practitioner emailed the Commission stating that he is not employed as a nurse and submitted his resignation to NSW Ambulance earlier that week.
On 13 December 2022, the practitioner emailed the Council stating that he had not renewed his paramedic registration, he had surrendered his nursing registration and he had not attended hair ETG testing.
On 15 December 2022, the practitioner received an email from AHPRA confirming his nursing registration was surrendered.
[20]
2023
On 10 March 2023, the practitioner received a letter from the Commission inviting him to provide submissions.
On 24 March 2023, the practitioner provided submissions to the Commission and attached a letter from his former nursing employer (Cooinda Court Aged Care Facility).
On 3 April 2023, the practitioner emailed the Commission stating that he was no longer working in the healthcare industry.
[21]
Submissions
The Commission's submissions are extensive, accurate, and persuasive.
They are also uncontested. Where appropriate, we will refer to those submissions in our Consideration section.
[22]
Consideration
This matter is about a paramedic who failed to notify AHPRA when he was found guilty of driving in 2020 with mid-range prescribed concentration of alcohol, who was charged and convicted of again driving in 2022 with mid-range prescribed concentration of alcohol (and failed to promptly notify AHPRA of that charge and conviction) and who was charged and convicted of driving an ambulance whilst suspended the following week (and failed to promptly notify AHPRA of that charge and conviction). The practitioner also failed to immediately notify his employer when his licence was suspended and he was charged with driving offences and transported patients on two days while his licence was suspended.
The underlying conduct in respect of each complaint is more than adequately set out above, and appears in and is admitted in the Agreed Facts.
Suffice it to say, we find each the conduct underlying each of Complaints One, Two, and Four proved, save for Particular 4(b) of Complaint Four which was not pressed.
Similarly, we find each of Complaints One, Two and Four proved.
As to Complaint Five, as noted, the Amended Complaint alleges that Complaint Five is established by reason of Complaints Two and Four and the Particulars thereof (which are relied upon both individually and cumulatively) being established.
The Commission submits, and we accept:
1. professional misconduct is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19];
2. whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]; and
3. in assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 (Litchfield) at 638.
The Commission submits that the conduct in Complaint Four is conduct that, alone or together with other conduct, is of a sufficiently serious nature to justify cancellation. This is because, the Commission submits:
1. the objectives of the national scheme include providing 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;
2. the practitioner was an experienced paramedic, and as a 33 year old adult, the practitioner must have known that it was wrong to drive any vehicle while suspended, telling police he did "the wrong thing";
3. as a paramedic who had worked for NSWA since 2018, the practitioner must have known that he was required to notify his employer about his driving charge but apparently decided to wait, telling police:
I was just trying to pick up the pieces and go right and formulate a plan as to, ... how am I going to possibly go about this..... Got to call a lawyer, got to do this. I wanted to just ride it out until it got to court and see what happen[s]
1. as a paramedic whose licence had been previously been disqualified for driving under the influence twice in NSW, the practitioner must have known that it was wrong to drive an ambulance transporting patients while his licence was suspended;
2. by withholding important information from his employer that he had been charged and suspended, NSW Ambulance was not able to take the necessary steps to protect the public;
3. as a paramedic who had been registered since 2019, the practitioner must have known that it was wrong to work his shifts while his licence was suspended but apparently decided to work rather than call in sick (telling police that he did not want to "'burn' too much sick leave", or "'blow off' four shifts".
We agree entirely. The conduct the subject of Complaint Four goes to the very heart of the role of a paramedic, and in our view constitutes professional misconduct.
[23]
Relevant principles re protective orders
In considering the appropriate protective orders, the Commission submits, and we accept, the relevant principles include 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: Litchfield 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;
6. it is unavoidable that protective orders may be incidentally punitive: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31];
7. asserted reformation of a practitioner's character is exceptional and requires clear proof: Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 6 SR (NSW) 448 at 461.
[24]
Relevant principles re protective orders re cancellation
The Commission seeks cancellation of the practitioner's registration under s 149C(1)(c) of the National Law because it submits that the circumstances of the offences render the practitioner unfit in the public interest to practise. The Commission submits, and we accept, that the relevant principles include:
1. the National Law does not contain a definition of "unfit in the public interest to practise" and this term should be interpreted in light of the objects and guiding principle in the National Law: Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 (Limboro) at [14];
2. whether a practitioner is unfit in the public interest to practice will require consideration of the nature of the conviction and the circumstances in which the offence was perpetrated: Health Care Complaints Commission v Turner [2016] NSWCATOD 163 at [67];
3. whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51];
4. whether a practitioner is unfit in the public interest to practice will consider both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and where there is a close nexus between the criminal conduct and professional role and responsibilities, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continues to practise. The serious nature of the offences and the length of time over which they occurred, may cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a convicted practitioner lacking rehabilitation and insight: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]-[23];
5. whether a practitioner is unfit in the public interest to practice must be assessed in light of a holistic inquiry into suitability which takes into account the wider context of the practitioner's conduct, including motivation, insight into the harm caused considerations, past and any attempts at remediation. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards and public confidence in the health professions: Limboro at [22];
6. for the purposes of s 149C(1)(c), there is no requirement that the offending occur in the practice of the profession: Health Care Complaints Commission v Bautista [2023] NSWCATOD 65 at [54]. The "public interest" consideration may include consideration of whether the practitioner's criminal offence exhibits traits in the practitioner inconsistent with the honourable practice of an honourable profession, the word "unfit" in s 149C(1)(c) should not be constrained to exclude a criminal conviction for crimes which have the capacity to bring the profession into disrepute and it is not necessary for a nexus to be established between the criminal offence and the practice of the profession: Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [93].
The Commission submits that the circumstances of the practitioner's offences render him unfit in the public interest to practise as a paramedic, by reference to the following factors set out in APHRA's Registration Standard:
the nature and gravity of the offences;
the potential relevance of the offences to health practice;
the period of time since the offences were committed, being offences being committed over the period 14 April 2020 and 7 July 2022;
the conviction and sentence imposed;
the age of the practitioner, the practitioner being 30-33 years old at the time of the offences, and being well aware of his obligation to comply with the criminal law;
the practitioner's behaviour after committing the offences, the Commission here noting that after committing the offence on 14 April 2020, the practitioner offended again by committed the same offence 26 months later. Then, after committing the offence on 2 July 2022 and signing the licence suspension notice, the practitioner offended again by driving while suspended only 3 days later;
the practitioner's explanations, the Commission noting that when the police interviewed the practitioner regarding driving while suspended, the practitioner explained that he "didn't want to let the team down", an explanation the Magistrate described as "preposterous". To this might be added the practitioner's statement in his statutory declaration of 4 August 2020 that "I erroneously believed I was able to drive a short distance back home" set out above.
[25]
Disqualification period
The Commission seeks a disqualification period of 1-2 years for the following reasons:
1. a disqualification period will allow further time for the practitioner to property reflect on his conduct;
2. a disqualification period will allow further time for the practitioner to engage in rehabilitation;
3. a 1-2 year disqualification period will allow the practitioner further time to demonstrate genuine insight before he is fit to return to practice:
4. a disqualification period will protect the public.
In our view, a period of disqualification at the higher end of the period sought by the Commission is warranted. This is for the following reasons.
First, the practitioner has not helped himself by failing to attend the s 150 hearing and the Tribunal hearing. This has the result that, while he says that he has "taken full responsibility for [his] actions" there has been no opportunity to test whether he has in fact accepted responsibility for his actions.
Secondly, there has been no opportunity for the Tribunal to assess the practitioner's stated remorse or to understand what if any insight he may have developed.
Thirdly, while the practitioner claims that it was "never his intention" to deceive AHPRA, he must have known that information about drink driving would be useful for AHPRA because he had already (correctly) mentioned his 2014 conviction when he submitted his original application for paramedicine registration in 2018 and he had already (albeit late) mentioned his 2020 criminal finding in his 2020 annual renewal.
Fourthly, it appears that it appears that the practitioner took a number of steps to conceal his 3 July 2022 charge and licence suspension.
Fifthly, a disqualification period of two years will make clear to the practitioner, the profession and the public the seriousness with which the Tribunal views repeated drink driving by a paramedic who then drives an ambulance transporting patients while his licence is suspended.
[26]
Conclusion
For the above reasons, we propose to make the following orders:
1. an order under s 149C(4)(a) of the National Law that if the practitioner were still registered the Tribunal would have cancelled his registration as a paramedic pursuant to s 149C(1)(b) and/or s 149C(1)(c) of the National Law;
2. an order under s 149C(4)(b) of the National Law that the practitioner is disqualified from being registered as a paramedic for a period of 2 years from the date of these reasons for decision;
3. an order under s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled his registration as a paramedic in the National Register kept by the Board.
[27]
Costs
The Tribunal has repeatedly indicated, as has the Court of Appeal, that this is a costs jurisdiction, and the ordinary rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
The Commission has been successful. The practitioner should pay the Commission's costs, as agreed or assessed.
Unless the practitioner files submissions within 14 days setting out persuasive reasons why he should not be ordered to pay the Commission's costs, we will make that order.
If the practitioner does file submissions, the Commission may reply within a further 14 days.
We propose to determine costs "on the papers" and without a hearing. If either party opposes that course they must address that issue in their submissions.
Submissions are to be limited to 3 pages.
[28]
Orders
The Tribunal orders that:
1. If the respondent were still registered the Tribunal would have cancelled his registration as a paramedic pursuant to s 149C(1)(b) and/or s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW).
2. The respondent is disqualified from being registered as a paramedic for a period of 2 years from the date of publication of these reasons for decision.
3. The National Board is required to record the fact that if the respondent were still registered, the Tribunal would have cancelled his registration as a paramedic in the National Register.
4. If the respondent opposes the Tribunal's proposal to order him to pay the Commission's costs as agreed or as assessed, he must file submissions within 14 days of the publication of these reasons.
5. If the respondent does file submissions, the Commission may reply within a further 14 days.
[29]
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: 26 March 2024