Health Care Complaints Commission v Richards

Relevant Legislation

1. It is convenient to set out below those provisions of the National Law relevant to this application.
2. Section 3 of the National Law provides, relevantly: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; … (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; …
3. Section 3A of the National Law, which is an additional provision for NSW, relevantly provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
4. Section 3B of the National Law, which is also an additional provision for NSW, relevantly provides: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
5. A "NSW provision" is defined in s 5 of the National Law as: 5 Definitions (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation.
6. Section 109(1)(b) of the National Law provides: 109 Annual statement (1) An application for renewal of registration must include or be accompanied by a statement that includes the following - … (b) details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration;
7. Criminal history is defined in s 5 of the National Law as follows: criminal history, of a person, means the following - (a) every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law; (b) every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence; (c) every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.
8. Section 130 of the National Law provides: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. … (3) In this section - relevant event, in relation to a registered health practitioner, means - (a) the practitioner is charged with - … (ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or (b) the practitioner is convicted of or is the subject of a finding of guilt for - … (ii) an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere; or
9. Section 139B of the National Law, which is an additional provision for NSW, relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
10. Section 144 of the National Law, which is an additional provision for NSW, sets out the grounds for complaint which may be made against health practitioners, including: 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. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. …
11. Section 149 of the National Law, which is an additional provision for NSW, relevantly provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if - (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal.
12. Section 149C of the National Law, which is an additional provision for NSW, (which is in the same Subdivision as s 149) provides, relevantly: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; …

Facts

1. The following facts are not in dispute unless otherwise indicated.
2. Ms Richards was first registered as an enrolled nurse on 8 February 2017 on the basis of a Diploma of Nursing completed at TAFE NSW. She worked as an enrolled nurse at the Broken Hill Health Service from early 2017 until 30 May 2017.
3. On 10 May 2017, at the completion of her shift, Ms Richards removed a credit card from a colleague's purse which was in a bag in a locker in the staff room. Ms Richards initially denied taking the credit card, but later admitted having done so. She did not use the credit card. In a self-reflection log she completed in relation to the incident she said "I have learnt my lesson. I would not do it again. I can't lose my registration. It will not happen again." Her employment with the health service was terminated on 30 May 2017. Ms Richards was not charged in relation to that incident. That incident is referred to in these reasons as the first incident.
4. On 8 May 2018 after a hearing under s 150 of the National Law, which Ms Richards did not attend, the Council imposed a condition on Ms Richards' registration that she not work as an enrolled nurse until reviewed by the Council and the condition is removed.
5. Ms Richards sought a review of that condition under s 150A of the National Law and after a s 150A hearing, which again Ms Richards did not attend, the Council's decision was affirmed.
6. The HCCC sought orders from this Tribunal in relation to Ms Richards' conduct concerning the first incident. Ms Richards did not appear before the Tribunal at the hearing of those proceedings. On 27 May 2020 the Tribunal made an order reprimanding Ms Richards in relation to the first incident and ordered her to complete a course on ethical and professional obligations approved by the Council.
7. In accordance with those orders, in December 2020 Ms Richards attended a Seminar "Know Where You Stand with Law, Ethics and Professional Standards in Nursing and Midwifery" conducted by the NSW Nurses & Midwives Association.
8. On 21 December 2021 Ms Richards was charged with three offences, namely: 1. Steal property in a dwelling house contrary to section 148 of the Crimes Act 1900 (Cth); 2. Dishonestly obtain financial advantage by deception contrary to section 192E of the Crimes Act 1900; and 3. Dishonestly obtain financial advantage by deception contrary to section 192E of the Crimes Act 1900.
9. The Australian Health Practitioner Regulation Agency (AHPRA) which receives notices of relevant events on behalf of the National Boards has no record of Ms Richards having advised it of those charges.
10. In her application to renew her registration for the 2022 to 2023 year which she completed on 18 May 2022 Ms Richards responded "No", in answer 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.
11. On 18 July 2022 Ms Richards pleaded guilty to and was convicted of each of the three offences she was charged with. Ms Richards was fined $200, ordered to pay Person A $7.65 and sentenced to a Community Correction Order of six months expiring in January 2023.
12. AHPRA has no record of Ms Richards having advised it of her convictions.
13. According to the Facts Sheet which was before the Sentencing Magistrate the circumstances of the third offence, which occurred first in time, were as follows. 1. About 1.30pm on 31 August 2021 Ms Richards picked up Person B from an address in Broken Hill and took her to the Coles supermarket in Broken Hill. 2. Person B was affected by drugs or alcohol and Ms Richards believed that Person B was happy for her to use her credit card, but Ms Richards accepted she was reckless doing so, given Person B's drug affected state. 3. Person B reported her card missing to Police and gave Police a statement of her account which showed purchases of $39.95 and $47.65 from Coles Broken Hill and $116.75 from McDonalds Broken Hill on 31 August 2021. 4. Ms Richards was sighted by CCTV at approximately 9am on 31 August 2021 drive through the drive through of McDonald's restaurant and make a purchase of $16.75 and withdraw $100 in cash. 5. Ms Richards was also sighted on CCTV purchasing items at Coles Broken Hill in the amount of $39.95 and $47.65 that day.
14. According to the Facts Sheet which was before the Sentencing Magistrate the circumstances of the first two offences, which occurred approximately three months after the third offence, were as follows. 1. Between 11 October 2021 and 10 December 2021 Ms Richards was employed by Australian Unity in Broken Hill to perform cleaning duties and other tasks required by their clients. Australian Unity's clients required assistance with daily tasks in their home due to their health declining from disability or being elderly. 2. Ms Richards attended the home of Person A, an 84 year old lady who suffered from dementia, on several dates between 23 November 2021 and 7 December 2021 for approximately one hour on each occasion to carry out cleaning tasks. 3. On 7 December 2021, as she was leaving Person A's house, Ms Richards saw Person A's debit card on the pavement outside the house. She picked up the card with the intention of returning it to Person A's carer the next day. 4. Another carer noticed the card was missing on 9 December 2021 and on 10 December 2021 it was reported missing to the manager of Australian Unity. 5. Ms Richards was employed by the Broken Hill Sturt Club for a period of several months and on 7 December 2021 was working there as a bar attendant. On that date Ms Richards used Person A's credit card to purchase items at the club for a cost of $7.65.
15. After Ms Richards convictions, there was a further hearing under s 150 of the National Law before members of the Council on 1 August 2022 which resulted in an order being made suspending Ms Richards' registration.
16. On 30 July 2022 Ms Richards sent an email to Council for the purpose of that hearing stating that she would like to keep her registration and providing an explanation of what, she said, occurred in relation to the incidents with Person A and Person B.
17. As to the incident with Person B, in her email dated 30 July 2022 Ms Richards said: On the 31st of august I was working at coles from 10am until 1pm Person B then messaged me and asked if I could pick her up from her address in Chappell lane in broken hill I said sure I've just finished work can you give me30 minutes she then agreed, I than picked her up I had my daughter in the car. Went to coles and that's when she noticed her card was used. I said to her that remember u gave me ur card to use at coles yesterday to get u some stuff she said oh yeah I remember now so I Bianca richards lent her 50!bucks as she said she had no money That previous day I meet up with [Person B] she was off her face ad I mean off her face she was on ice etc. [Person B] had about 6 other people at her house she asked me if I could go to coles for her and get her a few things so I said sure just let me no what you want n I'll get it. She gave me bank card I said oh Um ok I don't feel comfortable using this she said ull be right I trust you so I then went to coles n get her what need needed Then on the 31st if August 2021 [Person B] msged me asking if I could take her to McDonald's to get her some breakfast I said yes but have to make it quick as I have work, so I picked [Person B] up n went to McDonald's Person B used her card to get the food she then wanted cash out I said to her if u want cash out ull have to do it so she did.
18. As to the incident with Person A, in her email dated 30 July 2022 she said: And the incident with [Person A] well I found her card out the front of her house I picked it up put it in my pocket to return my supervisor that day after I found it. I was working at the Sturt [Person A's] card was red I'm with st George my card was red I remember [Person A's] card being the same colour I must of got her card out of my purse as it was in the front of my purse n so was mine I bought a meal after work from the workplace I was working at I must of used that card by mistake. I then returned the card to my supervisor that next day and told her I found it and she was going to pass it on to her supervisor.

The incident concerning Person B

1. In her statement in relation to the incident concerning Person B filed with the Tribunal (Exhibit R2), Ms Richards said: I Bianca Maree Richards would like to say my part of what happened between [Person B] and myself. I was friends with [Person B] for a short while. [Person B] rang me this one day and wanted me to pick her up and take her to the super market, so I did. When I arrived at her house she was HIGH. She asked me to go into Coles for her so I did. She wanted me to get her a packet of smokes and get money out for her. I said to her ok ill get smokes but not the money she then said no its fine I trust you I than got money out for her. Went back to the car gave her receipt. Took her to McDonalds. She wanted food so she got me to use her card and wanted money out again so I got money out for her. She was in the car at the time. So was my daughter. I then dropped her back at her house and she said have a great day ill message you later, I said ok sure. That next day she rang me and ask me if I could pick her up and take her to the bank so I said sure give me an hour please so I can get ready. [Person B] then said yes that is fine. I arrived to [Person B's] house around 11am. I took her to the bank. She said that the reason why she had to go to the bank was that someone used all her card and took all her money and she was not happy. I than said oh shit that is not good how do u no this. She then said well when she [was] high yesterday she gave someone her card and then used it and stole from her. I then said to her [Person B] how do you know that when you were with me yesterday and she said it was probably me and then said lol if it was then I needed to pay her back. I then told her everything what happened that day and her reaction was she could not remember any of it. I then said ok sure but I gave you receipts etc. she then said ok I believe you. She then messaged me that night, said she had been to the police station, and told the police what happened I said OK. I never heard from [Person B] until I had to go to court back in Broken Hill. she actually came to court with me as if nothing ever happened. I pleaded guilty as I was just over it and wanted to get it finished. The police said there was no evidence that I did it. They saw [Person B] in the car with me that day when we went through McDonalds drive thru via CCTV. I was placed on a 12 month good behaviour bond.
2. Two CCTV clips of the drive through of McDonalds in Broken Hill at approximately 9 am on 31 August 2021 were played at the hearing and Ms Richards was asked a number of questions in cross-examination about them.
3. Ms Richards agreed that the CCTV footage showed her in the driver's seat of her car at the first window of the drive through of McDonalds on 31 August 2021 using Person B's card to pay for food and to get cash out. The CCTV footage showed the front passenger seat as being empty. Ms Richards said that Person B was in the back of car, as was her daughter. She said Person B gave her the card to use and told her the PIN number. The footage shows Ms Richards putting the cash into a purse. Ms Richards said that it was Person B's purse that she put the money in. She said she picked it up from the front seat, put the cash she had withdrawn in it and then put it back on the front passenger seat. She said she gave Person B her purse back with the cash in it after she had driven out of the drive through.
4. Ms Richards also agreed that the second clip showed her again in the driver's seat of her car at a second window at McDonalds collecting food. She said all of the food she purchased was for Person B. None of it was for herself or her daughter.
5. Ms Richards conceded that Person B cannot be seen in the CCTV footage. She was asked whether she, therefore, maintained that the police had told her that they saw Person B in the car with her that day when she went through the McDonalds drive through on the CCTV footage as she stated in her statement to the Tribunal (Exhibit R2) and she said that that is what they told her. She conceded, however, that she possibly misunderstood what the police had said.
6. Ms Richards was asked to explain why, in light of her statement and evidence to the Tribunal that she had withdrawn the cash for Person B on that day, she had told Council in her 30 July 2022 email that she told Person B that if she wanted cash out she would have to do that herself and that Person B had withdrawn the cash herself. Ms Richards said that she could not remember.
7. When asked why her version of the events of this day as described in the email to Council on 30 July 2022 differed from her version of the events in her statement filed with the Tribunal and in her evidence under cross-examination, Ms Richards said "I don't know, I just can't remember".
8. Ms Richards was asked whether she was asserting that her version in her evidence to the Tribunal was truthful. She said that both her email dated 30 July 2022 and her evidence to the Tribunal were truthful. However, when it was explained to her that, as there is a contradiction between them they cannot both be true, she said "one is true". She said her version of events in her evidence to the Tribunal was true.
9. In her statement before the Tribunal Ms Richards said that she took Person B to the bank the following day. Ms Richards was asked why she had not referred to that in her 30 July 2022 email to Council. Ms Richards said she didn't remember that at the time she sent the email to Council but remembered that when she was preparing her statement for the Tribunal. While she conceded that normally a person's memory is better closer to the event in question rather than two years later, she maintained that her version of events as set out in her statement was truthful.
10. Ms Richards was asked a number of questions about her guilty plea. She said she pleaded guilty to the offence because she "wanted to get it over and done with". She said she was represented by a lawyer from the Aboriginal Legal Service. Before she entered her plea her lawyer had given her advice and explained that by agreeing to the Amended Statement of Facts which was before the Sentencing Magistrate she was accepting that that is what had occurred. She accepted that she understood that she was admitting to the elements of the offence. She said she did not have a discussion, however, with her lawyer about the fact that if she was convicted there may be consequences for her registration.
11. Ms Richards said that she pleaded guilty to the offence concerning Person B on the basis that she used Person B's card because Person B told her she could use her card, but she was reckless as to whether Person B could properly consent to her using her card because she was "high" on drugs at the time.

The incident concerning Person A

1. In her statement in relation to the incident concerning Person A filed with the Tribunal (Exhibit R1), Ms Richards said: I as working at Australian Unity back in Broken Hill I went to a lady house to care for her I then walked out of her house at the end of my shift I saw a bank card near the front door, I then picked it up put it in my hand bag to return it to my boss that next day. I didn't have time to return it that day as I had tio go to my other job that i d had which I had like an hour to get ready for Therefore, I went to theat job I purchased myself a meal not knowing that I accidently used her card and not mine by accident as they were the same color card. I than messaged my boss told her what happened, did not here back from her. I then returned the card. I did not know I used her card until I got a phone call awk after from my boss telling me I used it I then lost my job.
2. Under cross-examination Ms Richards said that she had made an honest mistake because she purchased a meal with Person A's card thinking it was her own. She said that she realised the next day that she had not used her own card because the transaction did not show up in her bank account.
3. She was asked why, when she found the card at Person A's front door, she did not simply knock on Person A's door and return the card to her. She said that she did not do that as she did not have time. She was due at the Sturt Club at 5.30pm and did not want to be late. She said that she rang her boss and told her that she had Person A's card. She could not recall whether she called her that evening or the next day, but it was before she realised she had accidentally used it. She said she returned the card the next day to the Australian Unity offices in an envelope.
4. Ms Richards was asked why, if she realised the next day she had accidentally used the card because the transaction did not appear on her bank statement, she said in her statement to the Tribunal "I did not know I used the card until I got a phone call a [week] after from my boss telling me I used it then I lost my job". She said the phone call was from her boss at the Sturt club telling her that she could not work any longer because she had used the card.

Further evidence

1. Ms Richards was taken to the orders made by the Tribunal in May 2020 following the first incident concerning taking a colleague's credit card from her locker at the Broken Hill Hospital in 2017. Those orders included an order that she undertake an Ethics course. Ms Richards confirmed that she had undertaken a course as ordered by the Tribunal.
2. She was asked what she had learned from the Ethics course she had undertaken. She said that she learned about the Nurses' Code of Conduct. When asked what she had learned about the Code of Conduct she said "what you can and cannot do as a nurse" and that "if anything happens you need to inform Council". She said she "learned her lesson" because she did not inform AHPRA about the charges laid against her and she should have. She said that was all she could remember.
3. She was asked whether she might be confusing matters because the first incident did not result in charges being laid against her and the onus is to notify AHPRA if charged or convicted of an offence. She said she now understood that.
4. When asked whether there was anything else she had learned from her Ethics course, she said "No, not that I can remember."
5. Ms Richards was asked whether she understood that, after the Tribunal's orders were made, the condition "not to practice" which had previously been imposed on her registration by Council no longer existed so that she was then free to return to nursing at that time. She said that she had not understood that. She did not think she could practise as a nurse. She thought that conditions were still in place restricting her from practising. She said she cannot recall if she made any enquiries of AHPRA as to whether she could return to practise at that time.
6. Ms Richards was taken to her application to renew her registration for the 2021-2022 year which she created in March 2021 and submitted in June 2021 where she answered "no" to the question: "During your preceding period of registration, has your right to practise at a hospital or another facility at which health services are provided been withdrawn or restricted because of your conduct, professional performance or health?" It was put to her that if she thought, at that time, that she couldn't practise she would have answered yes to that question and it was suggested to her that she did know she was free to practise nursing again at that time. Ms Richards said that she did not think she could practise and her answer to that question was mistaken.
7. Ms Richards said that she would like to go back to work as a nurse. She said that she had learned from the first incident at the hospital that she should not have taken other person's belongings and that if she did it again her entire career would be ruined.
8. She was asked whether, if that was the case, when she saw the card on the pavement outside Person A's front door she thought "I better return this so I am not in the same situation". She said she did not think that. She said she wasn't thinking at the time, she was only thinking about getting to her next job. She also said that she wasn't thinking straight at the time as she was going through some difficult family issues at the time (which she did not wish to talk openly about).
9. Ms Richards enrolled in a Bachelor of Nursing at Charles Sturt University with a view to becoming a registered nurse although she was unclear as to when she enrolled in that course. She withdrew from the course after three months because of the family difficulties she was experiencing.
10. She was asked whether, since May 2020, she has done anything else to advance her knowledge or assist her case to keep her registration. She said that she has enrolled in a Certificate III in Dental Assistance with TAFE on-line which she is currently in the progress of completing. She also said that one day she would like to become a paramedic. She would like to become a registered nurse and then do a paramedic course. She believes the skills she would gain as a registered nurse would assist her to qualify as a paramedic.
11. When asked why she wishes to be a nurse, she said that she loves to help people and make sure people are looked after. She said it is something she has always wanted to do. She said that she was an assistant nurse for 5-6 years at Broken Hill Hospital before she became an enrolled nurse.
12. The Tribunal asked Ms Richards how they could be comfortable that she would not behave in a similar way again. Ms Richards responded "I have learned my lesson. It won't happen again."
13. In answer to a question from the Tribunal as to why she behaved as she did, she said "mental health reasons" and because of the family difficulties she was experiencing.
14. When asked why she had not sought some assistance Ms Richards said "I really don't know to be honest".
15. When asked why it was so important to her to do nursing, she said it would be good to get a good job back. She would love to do it. Ever since she has been a child she has wanted to be a police officer, a nurse or a paramedic. She said she loves the health care system and it is something she has always wanted to do.

Findings in relation to Ms Richards' evidence which is inconsistent with the facts underlying her convictions

1. It is not in issue that Ms Richards was convicted of the offences of steal property and dishonestly obtaining financial advantage by deception contrary to ss 148 and 192E of the Crimes Act 1900 respectively. Ms Richards does not seek to impugn her convictions. However, for the purposes of the Tribunal assessing her fitness to practise as a nurse, Ms Richards has put forward evidence which is inconsistent with the Amended Statements of Facts upon which she was convicted and sentenced. Where a party puts the conduct underlying their conviction in issue, provided that it is not proffered for the purpose of impugning their convictions or the fairness of their trial, the Tribunal's obligation is to inquire into and make findings as to whether it occurred: Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [101]-[103].
2. In Sudath, Meagher JA, with whom Whealy JA agreed, explained: 102. …[The Tribunal] is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight.
3. We accept that Ms Richards pleaded guilty to the offences as she "wanted it over and done with". Nevertheless, Ms Richards was advised by a lawyer as to the effect of her guilty plea (although not as to any consequences it may have for her registration as a nurse) and she accepted the Amended Statements of Facts before the Sentencing Magistrate having obtained legal advice as to the consequences of doing so.
4. There are a large number of inconsistencies between Ms Richards' email to Council on 30 July 2022, her statements before the Tribunal, her evidence given under cross-examination and other evidence before the Tribunal.
5. For example, in so far as the offence concerning Person B is concerned, in her 30 July 2022 email Ms Richards said that Person B withdrew the cash at McDonalds, whereas in her statement she said that she did. She can clearly be seen on the CCTV footage doing so. She was unable to explain this inconsistency.
6. In her statement before the Tribunal Ms Richards said that she went to Coles to purchase items for Person B on 31 August 2021 before she went to McDonalds. Under cross examination she said that she thought she went to Coles first but she "really didn't know" what order events occurred in. In her 30 July 2022 email she said that she went to McDonalds before going to Coles. The CCTV footage in evidence before the Tribunal clearly shows Ms Richards at McDonalds at approximately 9am that morning and the receipts from Coles in evidence are time stamped at 1.27pm and 1.28pm that day. The CCTV footage is referred to in the Amended Statement of Facts and when taken to that Ms Richards accepted under cross-examination that she must have gone to McDonalds before going to Coles that day.
7. In her statement, Ms Richards said that she also withdrew cash for Person B at Coles but that is also inconsistent with her 30 July 2022 email and there is no evidence before the Tribunal of a cash withdrawal from Coles on the day, only receipts for purchases of grocery items and cigarettes.
8. In her statement she said that the police told her that there was no evidence that she "did it". She said the police saw Person B in the car when they went through the McDonalds drive through although she accepted in cross-examination that she may have misunderstood what the police said to her in this regard. In light of the CCTV footage which is referred to in the Amended Statement of Facts, it is simply not possible to believe that the police said there was no evidence that Ms Richards committed the offence. We also do not believe that they said they saw person B in the CCTV footage where the CCTV footage is clear that there was no one in the front passenger seat and where it is not possible to see the back seat. In cross-examination Ms Richards said that Person B was in the back seat of her car as she drove through the McDonald's drive through. However, Ms Richards did not say that in her statement, which was prepared before she had access to the CCTV footage.
9. As to the incident involving Person A, Ms Richards said in her statement that she did not know she had used Person A's card until she got a phone call from her boss (at the Sturt Club) a week later. However, in cross-examination on more than one occasion she said that she realised she had used Person A's card the next day when she did not see the transaction appear on her bank statement.
10. In light of these numerous unexplained inconsistencies and in the absence of any other evidence supporting Ms Richards' version of events we simply cannot accept Ms Richards' evidence as to the circumstances of the offences as set out in her statements or in the evidence she gave to the Tribunal under cross-examination to the extent they differ from the Amended Statements of Facts.
11. We find that the Amended Statements of Facts detail the circumstances of Ms Richards' offences.

The Complaints

1. Complaint One is that pursuant to s 144(a) of the National Law, the Respondent has been convicted of criminal offences in NSW.
2. The Particulars of Complaint One are: 1. On 18 July 2022, in the Local Court of New South Wales at Broken Hill, the practitioner entered pleas of guilty and was convicted of the following offences: a. Steal property in dwelling house (H85540956/1) contrary to section 148 of the Crimes Act 1900, namely that between 23 and 29 November 2021, the practitioner did steal a St George Bank key card in the dwelling house of Person A, at 604 Chapple Street Broken Hill; b. Dishonestly obtain financial advantage by deception (H85540956/3) contrary to section 192E of the Crimes Act 1900, namely that on 7 December 2021 at Broken Hill, the practitioner, did by deception, that is by the use of the St George Bank card of Person A, dishonestly obtain an advantage of $7.65. c. Dishonestly obtain financial advantage by deception (H85421326/5) contrary to section 192E of the Crimes Act 1900, namely that on 31 August 2021 at Broken Hill, the practitioner, did by deception, that is by using the Commonwealth Bank card of Person B without her permission, dishonestly obtain a financial advantage of $204.35.
3. In evidence before the Tribunal are copies of certificates of conviction with respect to each of these criminal offences (stealing and dishonesty offences). Ms Richards accepted under cross-examination that she did plead guilty to and was convicted of those offences.
4. In so far as Particular 1(a) of Complaint One is concerned, after the hearing, by letter dated 26 March 2024, the HCCC wrote to the Tribunal stating: During the hearing the Commission tendered a bundle of material which was marked as Exhibit A1. Contained within that material at Tab 12 (page 66) is an Agreed Facts document for the offence of Steal property in dwelling house H85540956/1….On page 2 of that document, there is a handwritten amendment that states Ms Richards "picked up the card with the intention of returning it to the victim's carer the next day". It has come to our attention that this inclusion in the agreed facts negates an element of the offence of Steal property in dwelling house, that being an intention to permanently deprive. In the circumstances, the Commission seeks to draw this matter to your attention, as it may be relevant to the Tribunal's consideration of Complaint One particular 1a, and Complaint Two particular 2a.
5. However, it is not for this Tribunal to go behind the Court's decision. The Magistrate considered the material before her and recorded a conviction in relation to that offence so must have been satisfied that the elements of the offence had been proved. There is no doubt that Ms Richards has been found guilty of and convicted of that offence.
6. We find that the evidence put forward by the HCCC proves the allegations in Complaint One on the balance of probabilities, with a sufficient degree of certainty, having regard to the seriousness of the allegations.
7. Complaint Two is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that she has contravened ss 130(1) and 109(1)(b) of the National Law.
8. The Particulars of Complaint Two are: 1. The practitioner contravened section 130(1) of the National Law in that she failed to notify the National Board in writing within 7 days of 21 December 2021 after being charged with the following offences punishable by 12 months imprisonment or more: a. Steal property in dwelling house (H85540956/1) contrary to section 148 of the Crimes Act 1900; b. Dishonestly obtain financial advantage by deception (H85540956/3) contrary to section 192E of the Crimes Act 1900; c. Dishonestly obtain financial advantage by deception (H85421326/5) contrary to section 192E of the Crimes Act 1900. 2. The practitioner contravened section 130(1) of the National Law in that she failed to notify the National Board in writing within 7 days of 18 July 2022, after being convicted of the following offences punishable by imprisonment: a. Steal property in dwelling house (H85540956/1) contrary to section 148 of the Crimes Act 1900; b. Dishonestly obtain financial advantage by deception (H85540956/3) contrary to section 192E of the Crimes Act 1900; c. Dishonestly obtain financial advantage by deception (85421326/5) contrary to section 192E of the Crimes Act 1900. 3. The practitioner contravened s109(1)(b) of the National Law when applying to renew her nursing registration for the period 1 June 2022 to 31 May 2023, in that she failed to provide details of any change in her criminal history during the preceding period of registration, namely, that on 21 December 2021 she was charged with the following offences: a. Steal property in dwelling house (H85540956/1) contrary to section 148 of the Crimes Act 1900; b. Dishonestly obtain financial advantage by deception (H85540956/3) contrary to section 192E of the Crimes Act 1900; c. Dishonestly obtain financial advantage by deception (H85421326/5) contrary to section 192E of the Crimes Act 1900.
9. Section 139B(1)(b) of the National Law provides that unsatisfactory professional conduct of a registered health practitioner includes a "contravention by the practitioner (whether by act or omission) of a provision of this Law".
10. Section 130 of the National Law stipulates that registered health practitioners must, within seven days after becoming aware that a relevant event has occurred in relation to the practitioner, give the National Board written notice of the event. A relevant event in relation to a practitioner includes that the practitioner is charged with an offence punishable by 12 months imprisonment or more or has been convicted of an offence. AHPRA receives notifications of relevant events for National Boards under the National Law.
11. Section 109(1)(b) provides that an application for renewal of registration must include details of any change in the applicant's criminal history.
12. Sections 148 of the Crimes Act provides: 148 Stealing property in a dwelling-house Whosoever steals in a dwelling-house any property shall be liable to imprisonment for seven years.
13. Section 192E of the Crimes Act provides: 192E Fraud (1) A person who, by any deception, dishonestly - (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty - Imprisonment for 10 years.
14. It is clear from the evidence that: 1. Ms Richards was registered as an enrolled nurse from 8 February 2017 to 1 August 2022 when her registration was suspended; 2. Ms Richards was charged with the stealing and dishonesty offences on 21 December 2021 which offences were punishable by 12 months' imprisonment or more; 3. Ms Richards did not notify, and contravened s 130 of the National Law in failing to notify, AHPRA within seven days that she had been charged with those offences; 4. When applying to renew her registration on 18 May 2022 Ms Richards did not provide details of a change in her criminal history, namely that on 21 December 2021 she was charged with those offences, contrary to s 109(1)(b) of the National Law; 5. Ms Richards pleaded guilty to and was convicted of those offences on 18 July 2022; 6. Ms Richards did not notify, and contravened s 130 of the National Law in failing to notify, AHPRA within seven days that she had been convicted of those offences.
15. Ms Richards accepted the allegations in Complaint Two. We find that the evidence put forward by the HCCC proves the allegations in Complaint Two on the balance of probabilities, with a sufficient degree of certainty, having regard to the seriousness of the allegations.
16. As contraventions by Ms Richards of provisions of the National Law have been established, it follows that we must find that she is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law. The Tribunal has no discretion in that regard.

Appropriate orders

1. The Complaints having been proved as set out above, it falls then to determine whether and, if so, how the Tribunal should exercise its disciplinary powers.

Section 149C(1)(c): Do the circumstances of the offences render the practitioner unfit in the public interest to practise?

1. Section 149C(1)(c) provides that the Tribunal may suspend or 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.
2. Accordingly, the question we must determine is whether the circumstances of her offences render Ms Richards unfit in the public interest to practise as a nurse.
3. The relevant authorities were summarised by the Tribunal in Health Care Complaints Commission v Morris [2022] NSWCATOD 120 at [82]-[86] as follows: "82. In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14] the Tribunal stated: 'The National Law does not contain a definition of unfitness to practise in the public interest or unsuitability for registration. These terms, like all others in the Act, are interpreted in light of the objects of the Act in s 3 and the specific objective and guiding principle in the NSW version of the National Law contained in s 3A.' 83. The following principles emerge from the Tribunal's decision in Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]: (1) The term "public interest" is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]; (2) s 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of "the practitioner's current fitness to practise": Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]-[69]; (3) In construing s 149C(1)(c) the Tribunal needs to take into account the objectives of the National Law which relevantly include "the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered". Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether, as a result of having committed an offence they have behaved so egregiously as to render the subject practitioner "unfit in the public interest to practise the practitioner's profession"; (4) The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances. 84. Whether a practitioner is unfit in the public interest to practise 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]. 85. "Public interest" also may be taken to encompass the goal of broader protection of the reputation and standing of the profession, such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within them: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]. However, we are cognisant of the remarks of Harrison J in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (albeit in the context of proceedings under s 150 of the National Law) of the concept of public interest being linked to the health and safety of the public."
4. As explained by the Tribunal in Health Care Complaints Commission v Gott [2023] NSWCATOD 54, since Morris the Tribunal has found in Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [92]-[93] that the requirement in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 at [68] referred to above that there be a nexus between the criminal conduct and the practice of the practitioner's profession does not apply in considering whether a person is unfit in the public interest to practise for the purpose of s 149C(1)(c), preferring instead the test as formulated in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56(7)(f)] and Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123(6)(b)] which were respectively as follows: "56(7)(f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits." "123(6)(b) The "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession."
5. Whether a practitioner is unfit in the public interest to practise must be assessed in light of a holistic inquiry into suitability. As the Tribunal stated in Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [22]: "… This assessment takes into account the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and since any investigation or sanction. 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. …"

Unfit in the public interest to practise - conclusion

1. In our view the circumstances of Ms Richards' offences do render her currently unfit in the public interest to practise as a nurse.
2. The circumstances of the offences are as set out in the Amended Statements of Facts. In terms of their context, it is relevant that these offences followed the first incident where Ms Richards took a colleague's credit card from a locker at the hospital where they were working for which Ms Richards was reprimanded by this Tribunal. They also occurred after Ms Richards had undertaken the Ethics course she had been ordered to attend by the Tribunal.
3. We accept that at the time of the offences Ms Richards was experiencing stress given the difficult family circumstances she was in.
4. However, while the offences can be described as being opportunistic rather than pre-meditated and involved relatively small amounts of money, concerningly each of the offences involved taking advantage of a vulnerable person: in one instance a friend who was under the influence of drugs, in the other an elderly woman for whom she was entrusted to care and who was suffering from dementia. While the offences occurred outside of a nursing context, they are nonetheless directly relevant to a nursing context where Ms Richards could again be responsible for the care of patients with different vulnerabilities.
5. In her statements to the Tribunal and her evidence under cross-examination, Ms Richards sought to minimise the seriousness of her conduct. As set out above, we do not accept her evidence to the extent it sought to do so. It is concerning that Ms Richards was not truthful in her evidence before the Tribunal. It is a fundamental requirement of nursing that one is scrupulously honest in their dealings with their work colleagues and patients. If Ms Richards could not be trusted to be truthful in her evidence before the Tribunal, we presently could not trust her to be truthful in her dealings with others.
6. A health professional who cannot be trusted to tell the truth presents a substantial risk to the public in a health services setting. Honesty is essential for health professionals because covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions. Such behaviour may pose a risk to the safety of patients: Health Care Complaints Commissions v Picones [2018] NSWCATOD 56 at [104]-[105].
7. Ms Richards' attempt to minimise the seriousness of her conduct also demonstrated to us limited remorse for her conduct and limited insight into the seriousness of what she did.
8. Ms Richards has not expressed any real remorse for the impact of her conduct on Person A or Person B. When asked what she thought Person A would have felt as a result of her offence, Ms Richards said that she would have been "devastated" because she would have needed her card to buy groceries. It was only when pressed to comment on the fact that Person A suffered from dementia that she said that Person A would not have known what was going on. She did not say that Person A would be likely to have felt Ms Richards had breached her trust.
9. When asked how the Tribunal could be comfortable she would not behave in a similar way again, Ms Richards said she had learned her lesson and would not do it again. However, that is what Ms Richards said after the first incident so we can take little comfort from her assurance in that regard.
10. Ms Richards was unable to tell the Tribunal very much about what she had learned from the Ethics course she had undertaken including what she had learned about the Nurses' Code of Conduct, and, as already mentioned, it is of concern that the offences occurred after she had already undertaken that course.
11. Ms Richards is clearly passionate about a career in caring and she is to be commended for that. However, other than the short course on Ethics she was ordered to do and having, at some stage, commenced a Bachelor of Nursing from which she needed to withdraw because of the family difficulties she was experiencing, Ms Richards has not done any other training directly relevant to nursing since the Tribunal's decision in May 2020. We recognise however that may be as a result, at least in part, of her misunderstanding as to her ability to practise as a nurse after the Tribunal's decision in May 2020 and before her suspension in 2022.
12. Given her offences and our inability to accept her evidence was truthful in relation to them, we have concerns about Ms Richards' integrity and her capacity to handle ethical situations which might arise in her work as a nurse. Patients need to have confidence that the nurses responsible for their care can be trusted to act honestly and ethically and not to take advantage of them when they are vulnerable.

Disciplinary orders - principles

1. Section 3(2) of the National Law makes it clear that the objectives of the National Law 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 purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. However, that is not to deny that such orders may be punitive in effect: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], [31].
3. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA gave the following explanation 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."
4. In the exercise of its protective jurisdiction, the Tribunal must take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and, more broadly, the protection of the community: Gayed v Walton [1997] NSWCA 121.
5. However, in Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA noted at [101]: "The adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order".

Disciplinary orders - conclusion

1. The purpose of disciplinary orders is not to punish the practitioner, but to protect the public. Ms Richards has already been punished by the Court for the offences she has committed. She submitted that nothing has happened since the time of the offences and has asked to be given a "second chance".
2. Ms Richards is to be commended for her perseverance and for attending the hearing of these proceedings. Ms Richards attended the hearing by audio visual link because she lives far from Sydney, is presently unemployed and is a single mother responsible for raising three children with no support from her previous partner. It was clearly a distressing process for her, however she was patient and courteous in responding to a lengthy series of questions under cross-examination.
3. However, unfortunately Ms Richards has demonstrated that she cannot be trusted to tell the truth and is prone to taking advantage of vulnerable people. This clearly poses a danger to patients in a hospital setting where they may be asleep, unconscious, or immobile. To the extent these patients may have cash or credit cards or other valuables with them, the risk is that these situations may present Ms Richards with fresh temptations to take advantage of vulnerable people.
4. When a member of the public enters a hospital, they need to be able to trust that the health professionals responsible for their care will uphold expected standards of ethical behaviour. We believe it would imperil the public's ability to entrust their care to the nursing profession if Ms Richards were permitted to practise as a nurse at this stage.
5. We are satisfied that it is necessary and appropriate to make an order cancelling Ms Richards' registration to protect the public, to act as a specific and general deterrent, to uphold the standards of the nursing profession, and to preserve public confidence in the profession.
6. We agree with the HCCC that a non-review period of twelve months would be appropriate in Ms Richards' case. This would give her an opportunity to reflect on our findings and to consider what other strategies she may need to put in place before she could return safely to practice. On any application for reinstatement after that time, Ms Richards will need to demonstrate to the Tribunal with independent and probative evidence that she has gained insight, has rehabilitated, can be trusted to tell the truth and is fit to practise in a way that presents no risk to patients.
7. In the event that the Tribunal was minded to suspend Ms Richards' registration, rather than cancel it, the HCCC proposed conditions which the Tribunal should consider imposing on her registration after the period of suspension expired. Ms Richards said that she would be willing to work under those conditions. However, as we have decided to cancel Ms Richards' registration, it is not necessary for us to consider those conditions further.

Costs

1. The HCCC seeks an order that Ms Richards pay its costs as agreed or assessed which was not opposed by Ms Richards.
2. This is a costs jurisdiction, and ordinarily costs should follow the event. While there is a discretion not to award costs to the successful party it must be exercised judicially "according to proper fixed principles and rules of reason and justice": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]-[44].
3. The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [9].
4. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182, the Court of Appeal identified factors that might militate against the HCCC recovering all its costs as including a lack of success in obtaining findings against the practitioner, or the HCCC's failure to establish the particulars pleaded, or some oppressive conduct on the part of the HCCC in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing.
5. On the material before the Tribunal, we do not consider there has been any disentitling conduct by the HCCC in this case that would warrant a departure from the general rule.
6. In light of the above, the orders we propose to make are as follows:

Orders 1. Pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (National Law) the registration of Bianca Richards (Respondent) as a nurse is cancelled. 2. Pursuant to s 149C(7) of the National Law the Respondent may not apply for a review of Order 1 for a period of 12 months from the date of these orders. 3. Under clause 13 of Schedule 5D of the National Law the Respondent is to pay the Health Care Complaints Commission's costs as agreed or assessed.

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: 16 April 2024