Health Care Complaints Commission v Robson

NCAT Occupational|2023-04-13|Before: Bright J

Introduction

By an Application and Complaint filed 23 September 2022, the Health Care Complaints Commission (HCCC) commenced disciplinary proceedings in the Tribunal against Ms Lisa Margaret Robson, a Registered Nurse (the Practitioner). The Practitioner was first registered on 19 October 1981. When the matter came before the Tribunal, that registration was suspended, having been suspended on 25 June 2021. The HCCC's complaint was pursuant to s 90B(1) of the Health Care Complaints Act 1993 (NSW) (the Act). The HCCC alleged that the Respondent had been convicted of a criminal offence relevant for the purposes of s 144(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), and had failed to report that finding in breach of s 130(1) of the National Law.
On 16 March 2023, the HCCC filed an Amended Application and Complaint with the Tribunal. The Tribunal was satisfied that these documents had been brought to the attention of the Practitioner. The Tribunal was also satisfied that the Practitioner did not object to the matter proceeding on the basis of the Amended Complaint. [1] The Tribunal therefore granted leave to amend the HCCC Application and Complaint, and the matter proceeded on the basis of those documents. Additional matters which might have been in issue before the Tribunal were also resolved between the HCCC and the Practitioner prior to the hearing. Relevantly, the Practitioner acknowledged notice from the HCCC that it would be seeking a cancellation of registration with a 2-year non-review period and costs on agreed or assessed basis. In response, Mr Thompson who had spoken to the Practitioner advised that she would await the Tribunal's determination but had no further submissions to make. [2]
It was agreed between the parties that the matter would proceed as a combined Stage 1 and Stage 2 hearing. This was unsurprising because in her reply dated 13 March 2023, the Practitioner admitted both Complaint 1 and Complaint 2 and the particulars for each of them as set out in the HCCC Application and Complaint as originally filed. The HCCC documents as amended did not relevantly affect those particulars.

Background

The background to each of the HCCC's complaints arises from the Practitioner's employment by Life Without Barriers as a Registered Nurse at Christie Street Group Home located in Green Point, NSW. The detail was succinctly put by Ms M Azzopardi, solicitor, who appeared for the HCCC, in her helpful written submission from which we quote: "1. These proceedings concern the criminal conduct of [the Practitioner] against her vulnerable patient [Patient A] and a failure to appropriately report that she had been charged for those offences. 2. On 13 March 2021, the Practitioner was charged with 2 counts of Common Assault pursuant to s 61 of the Crimes Act ('the Common Assaults') with Patient A being the victim of the common assaults. [3] In Gosford Local Court, [the Practitioner] was convicted and received an 18 month [conditional release order] (CRO) pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. [4] 3. The Practitioner appealed the severity of the 15 July 2021 sentence of the Common Assaults. On 25 August 2021, Gosford District Court dismissed the severity appeal and confirmed the conviction and CRO for a period of 18 months. [5] "
There was no issue that Patient A had profound vulnerabilities including dementia, schizophrenia, dysphagia, an intellectual disability, and was confined to a wheelchair and frail with limited communication skills. [6] There was also no dispute that the assaults took place against Patient A in her home, a group home, where she was under the care of the Practitioner in the ordinary course of her employment as a Registered Nurse.
On 30 April 2021, the Practitioner did submit a Notice of Certain Events to the Australian Health Practitioner Regulation Agency (AHPRA) declaring that she had been charged with an offence punishable by 12 months or more imprisonment.

The Amended Complaint

The substance of the HCCC's Amended Complaint is as follows: "Complaint One Pursuant to section 144(a) of the National Law, the practitioner has been convicted of a criminal offence in New South Wales. Particulars of Complaint One 1. On 15 July 2021, before Gosford Local Court, the practitioner was convicted of an offence of Common Assault against Patient A on 21 February 2021 at Green Point pursuant to section 61 of the Crimes Act 1900 [sequence 1]. 2. On 15 July 2021, before Gosford Local Court, the practitioner was convicted of the offence of Common Assault against Patient A on 14 February 2021 at Green Point pursuant to section 61 of the Crimes Act 1900 [sequence 2]. Complaint Two The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened section 130(1) of the National Law. Particulars of Complaint Two 1. The practitioner failed to notify the National Board within seven days of a relevant event occurring, namely that on 13 March 2021, the practitioner was charged with 2 counts of Common Assault pursuant to section 61 of the Crimes Act 1900."

The orders sought by the HCCC

The HCCC seeks by way of orders, first an order prohibiting the disclosure of the name of Patient A and that is an order that will be made. In addition, on 12 April 2023, by way of the email notice already referred to, the HCCC informed Mr Thompson then acting for the Practitioner that the HCCC would be seeking: 1. Cancellation of the Practitioner's registration pursuant to s 149C(1)(c) of the National Law with a non-review period of 2 years; and 2. An order that the Practitioner pay the HCCC's costs as agreed or assessed.
As the Tribunal has already noted, the Practitioner in her Reply filed 15 March 2023 admitted both complaints and the particulars in relation to each of them. Having been advised of the final form of the orders to be sought by the HCCC, the Practitioner notified the HCCC that she did not wish to make further submissions beyond those which will be referred to below.

The parties' evidence

The HCCC relied upon the following material: 1. A bundle of material comprising 27 separate items; 2. An AHPRA Evidentiary Certificate dated 11 April 2023; 3. A Nursing and Midwifery Council Evidentiary Certificate dated 2 February 2023; 4. An email chain being correspondence passing between Mr Benjamin Thompson and the HCCC; and 5. A further bundle of emails between Mr Benjamin Thompson and the HCCC.
The Practitioner did not appear before the Tribunal at the hearing but placed before the Tribunal a bundle of material filed 15 March 2023 which became Exhibit R1. That exhibit comprised the following: 1. The Practitioner's Reply to the HCCC's Application for Disciplinary Findings dated 13 March 2023; 2. A letter addressed to the Principal Member dated 13 March 2023; 3. A note on the letterhead of Woy Woy General Practice signed by the Practitioner's treating general practitioner; 4. A reference addressed to the Tribunal from Ms Leonie Denny, a friend of the Practitioner, dated 1 March 2023; 5. A reference from Ms Tanya Payne, a second friend of the Practitioner, dated 1 March 2023; and 6. Two emails, one addressed to each of the referees, from Mr Benjamin Thompson informing them of the nature of the Complaint to which the Practitioner was subject.

Discussion

These are proceedings where the HCCC bears the onus of proof. [7] As counsel for the HCCC acknowledged in her submission, and we accept: "Standard of Proof … 16. The applicant must prove the Complaint on the balance of probabilities. While neither the Briginshaw principle nor section 140 of the Evidence Act 1995 directly apply to the Tribunal's decision-making, the Tribunal should be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding.[ [8] ] Rules of Evidence 17 The Tribunal is not bound by the rules of evidence.[ [9] ] However, while not bound, the Tribunal remains subject to the rules of procedural fairness.[ [10] ]" (original footnotes omitted)
Turning to each of the Complaints in the Amended Complaint, the Tribunal having read the Judgment of Judge Bright in the District Court at Gosford delivered 25 August 2021, finds each of the particulars to Complaint 1 established. [11] It follows that the Tribunal is satisfied and further finds that the Practitioner has been convicted of a criminal offence in the State of New South Wales therefore attracting the application of s 144(a) of the National Law.
The evidence before us also establishes that the relevant conviction comprised two offences of common assault upon Patient A. The first of those assaults taking place on 14 February 2021 and the second on 21 February 2021. Both assaults took place at the Practitioner's place of employment. The Practitioner was convicted in the Local Court at Gosford but appealed the severity of the sentence imposed. On 25 August 2021, the sentence appeal was dismissed and the order sentencing the Practitioner to a conditional release order (CRO) for a period of 18 months was confirmed.
Complaint Two alleges that the Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the Practitioner has contravened s 130(1) of the National Law.
Section 139B(1)(b) of the National Law defines "unsatisfactory professional conduct" to include: 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.
Section 130(1) of the National Law requires that: 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 the student's health profession written notice of the event.
Section 130(3)(a)(ii) includes as a "relevant event" that, in relation to a registered health practitioner: (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; …
The Practitioner has admitted, and the Tribunal finds, that she failed to notify the Board within 7 days of the relevant event, namely being charged with common assault. The evidence provided by the HCCC independently of the Practitioner's admission establishes that the Practitioner failed to give notification within the time required. [12] Notification is an important aspect of the requirements placed upon a practitioner for a number of reasons including enabling protective actions to be taken, if necessary. The Practitioner has admitted the complaint of unsatisfactory professional conduct but independently of that admission, the Tribunal would find, as it does, Complaint 2 established.

Protective orders

As the Tribunal has found that both complaints are established, the power to make protective orders is thus enlivened. The Tribunal must consider what protective orders the circumstances of the case warrant. The paramount consideration for the Tribunal in this regard is to consider the safety of the public. That is not the only consideration as the authorities refer also to other relevant considerations, including the need to maintain standards within the relevant profession and to deter others within that profession from like conduct. [13]
Ms Azzopardi for the HCCC said at par 46 of her written submission as follows: "46. In Health Care Complaints Commission v Russ [2021] NSWCATOD 5, the Tribunal identified the following relevant principles in considering whether the circumstances of an offence rendered a Practitioner unfit in the public interest: (i) 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 standards to which human conduct is to be held (citing Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]) (at [37]). (ii) An assessment of the practitioner's current fitness to practi[s]e is required, and is not subject to a requirement of "probable permanent unfitness" (citing Chen v Health Care Complaints Commission [2017] NSWCA 196 at [67]-[69]) (at [38]). (iii) The question is whether the circumstances surrounding the offence currently render the practitioner unfit to practi[s]e in the public interest. Those circumstances include not only the actions and intentions of the Practitioner constituting the physical and mental requirements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances (at [39])."
The Tribunal agrees with that submission as to the relevant principles applicable to our determination. Counsel also drew the Tribunal's attention to Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115, a matter concerning a medical practitioner but no less relevant because the Practitioner here was at the time of the offence a Registered Nurse. That is, that the public interest among other things includes the need for patients to have confidence in the trustworthiness and high-moral and ethical values of practitioners.

The circumstances of the offences

At the time of the offence, Patient A was an in-patient of the group home. She was 63 years of age. Patient A suffered from dementia, schizophrenia, dysphagia, had intellectual disabilities and was confined to a wheelchair. Patient A had limited communication skills. Unsurprisingly, she was also frail.
The evidence led by the Police at the Practitioner's trial in the Local Court included evidence from five Assistants in Nursing (AiN) and in addition a Registered Nurse, all employed at the time at the group home. The seriousness of the offences can be seen from the Police Facts Sheet tendered in evidence, from which the following excerpts are extracted: [14] "On Sunday, 14 February 2021, the accused, H and B were all on duty from 7am. At about 7:30 am, H and B were conducting their duties which was to shower and dress residents for the day. At the time both H and B were in [another resident's] room when they both heard the victim screaming from her room which was only a few doors away. B walked down to the victim's room and re-assured her that they would be down shortly once they had finished with the other resident]. … Within a few minutes and while still in [the other resident's] room, H and B heard the accused go into the victim's room and yell, "Stop the screaming." H and B finished preparing [the other resident] and went to the victim's room who was upset and screaming out. B was trying to re-assure and calm the victim down but the victim continued to screaming and she was upset [sic]. The accused returned to [the] victim's room while H and B were also there. The accused said, "[Patient A] stop screaming." This made the victim scream louder and become more upset. At this point the Accused was witnessed by B to slap the victim on her hand. The accused then walked out of the room. In disbelief, H and B continued to prepare the victim by showering and dressing her. … About 6:50 am on Wednesday the 17th of February 2021, T had arrived to start her shift at 7am. T had just returned from leave and saw the accused out the front having a cigarette. The accused was due to finish her shift at 7am. T said to the accused, "How was the night and how is the new client? (referring to the victim)." The accused said, "She is such a pain in the arse and I can't stand her. The other day she wouldn't take her medicine and I pushed her head back and threw the tablets down her throat." … On Sunday the 21st of February 2021, the accused, S and F were all on duty from 7am. About 1:30pm that day S was in the corridor just outside the victim's room with F. Both followed the accused into the victim's room. The accused was observed to place three tablets onto a special tea spoon. At the time the victim was in a wheelchair and not appropriately sitting up which is important due to the victim suffering from dysphagia. S saw the Accused forcefully push the spoon into the victim's mouth and as a result the victim began to scream and spit out the medication. The accused was screaming, "Take it, take it." As the medication was coming out of the victim's mouth, the accused was observed to push it back into the mouth of the victim with her fingers. …"
The Tribunal agrees with the submissions of Ms Azzopardi for the HCCC and finds that: 1. The offending conduct of the Practitioner was a significant departure from the standards expected of her as a nurse; 2. The vulnerabilities of Patient A were acute. The Practitioner was aware of Patient A's vulnerabilities and charged with her care. In the circumstances, the Practitioner's conduct in relation to Patient A was abhorrent; 3. All the offending conduct occurred during the course of the Practitioner's employment as a nurse and against her own patient.
The Practitioner's offending conduct was an abuse of power against a patient with profound vulnerabilities. There is, as Ms Azzopardi submits, an inherent power imbalance between nurses and their patients. The power imbalance between the Practitioner, a highly experienced Registered Nurse, and Patient A was pronounced.
Significant in the Tribunal's considerations is the finding of Her Honour Judge Bright where she said on the Practitioner's severity appeal: "I am not satisfied that the offences are trivial. On the contrary, I regard each offence as serious example of common assault, having regard to the particular vulnerability of the Victim and the relationship between the Appellant and the Victim at the time of the offending." [15]
In response to the HCCC's Complaint, the Practitioner has provided the documentation which became Exhibit R1. That material includes the letter from the Practitioner addressed to the Tribunal and dated 13 March 2023. In that letter, the Practitioner notes that she has been a Registered Nurse for over 40 years and, until the present complaints, her record was unblemished. The Tribunal accepts that this is the case. She refers to currently suffering from anxiety and depression which she notes may be made worse by attending in person before the Tribunal. A two-line medical report appears to lend support to that contention.
The Practitioner contends that she was suffering from burn-out at the time of the offence and that her relationships with her work colleagues were strained. She notes that she is currently unemployed but has no intention of returning to the nursing profession at this time.
Her character witnesses attest to having known the Practitioner for many years and having read the Complaint, each say from their experience the conduct there described is inconsistent with their experience of her.
The contrition now expressed by the Practitioner is in contrast to the position she adopted in proceedings under s 150 of the National Law which took place on Friday 25 June 2021, where in written reasons it was noted that: "… Ms Robson told us that she will be pleading not guilty at the next court hearing. Ms Robson told us that she has not done any of the things she is being accused of, adding that she cannot even hit her own children. Ms Robson advise that she has known the victim for thirty years. She denied hitting the victim, she only held her hand to comfort her. She denied pushing a spoon in the victim's mouth and advised that the victim bit down on the spoon."
The Practitioner's lack of immediate acceptance of her conduct and her denial of it in the face of apparently overwhelming evidence of which she must by that stage have been aware, is a matter of concern to the Tribunal. At the time of that hearing, Ms Robson was apparently being treated by a psychologist on a mental health plan and had been prescribed antidepressants. No evidence of the outcome of that treatment which appears not to be ongoing was placed before the Tribunal. That absence, and the absence of any evidence that the Practitioner has undertaken any course in de-escalation or anger management when faced with challenging situations, is a matter of concern to the Tribunal.

Conclusion

As a consequence of the matters referred to above, the Tribunal finds that the Practitioner is guilty of professional misconduct and is unfit to practise as a nurse. These are proceedings where the factors leading to that finding are such that this is a case where having regard to the particular considerations discussed in Prakash v Health Care Complaints Commission, [16] the only appropriate outcome is for the Practitioner's registration to be cancelled.
The Evidentiary Certificate provided by AHPRA notes that the Practitioner's eligibility to practice is at present suspended. It follows that s 176D of the National Law applies in this case.
Section 176D relevantly provides as follows: 176D Effect of suspension [NSW] (1) If a person's registration as a health practitioner or student is suspended under this Law, the person is taken during the period of suspension not to be registered under this Law, other than for the purposes of this Part.
Section 176D falls within Part 8 of the National Law dealing with health performance and conduct, which is the part under which the present proceedings are brought. In Health Care Complaints Commission v Elliott, [17] the Tribunal noted that the effect of s 176D was that the disciplinary powers of the Tribunal applied to a suspended practitioner (who in that case as here had been suspended some years before the proceedings were heard) as though they were registered. It follows that the orders that the Tribunal will make will be orders cancelling the Practitioner's registration.

Costs

This is a jurisdiction where costs in the normal case follow the event. There is no reason to depart from that general rule here and an order that the Practitioner pay the costs of the HCCC as agreed or assessed will be made.

Orders 1. Pursuant to s 149C(1)(c) of the National Law, the Practitioner's registration is cancelled. 2. Pursuant to s 149C(7) of the National Law, an Application for Review of the Order cancelling the Practitioner's registration under Division 8 may not be made for a period of 2 years from the date of these Orders. 3. Pursuant to clause 13 of Schedule 5D of the National Law, the Practitioner pay the costs of the Health Care Complaints Commission as agreed or assessed. 4. Pursuant to s 64 of the Civil Administrative Tribunal Act 2013 (NSW), disclosure of the name of the person listed in the Schedule to the Health Care Complaints Commission's Amended Application for Disciplinary Findings and Orders filed 16 March 2023 is prohibited.

Endnotes

Exhibit 5.
Exhibit 5.
Exhibit 1, Tab 21, p 126.
Exhibit 1, Tab 21, p 125.
Exhibit 1, Tab 21, p 125.
Exhibit 1, Tab 4, p 15.
Lindsay v Health Care Complaints Commission [2005] NSWCA 356.
Civil and Administrative Tribunal Act 2013 (NSW), s 38(2).
National Law, Sch 5D cl 6(3).
Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171 at [75] (Meagher JA).
Robson v R (District Court (NSW), Bright J, 25 August 2021, unrep); Exhibit 1 at Tab 21, p 156.
Exhibit 1, Tab 2 at p 10.
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; [1997] NSWSC 29; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202; [1960] HCA 40.
Exhibit 1, Police Facts Sheet, pp 15-17 (extract).
Exhibit 1, Tab 24, p 159.
[2006] NSWCA 153 at [91] (Basten JA).
[2017] NSWCATOD 20 at [12]. 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: 21 June 2023

Civil Administrative Tribunal Act 2013(NSW)

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