The Health Care Complaints Commission (the Commission) brings proceedings for disciplinary findings and orders against Rebecca Ruming. under the Health Practitioner Regulation National Law (NSW) (the National Law).
Ms Ruming was registered in New South Wales as an enrolled nurse from 4 February 2021 to 1 July 2023. She is currently unregistered.
The application is dated 6th of September 2023 and is supported by a complaint of the same date. The complaint as originally filed contained two individual complaints.
The first complaint is that a criminal finding for a criminal offence has been made against Ms Ruming. This is brought under section 144(a) of the National Law.
On 6 December 2022 in the District Court of New South Wales at Parramatta the offence of cultivation of prohibited plants (cannabis) by enhanced indoor means in the presence of a child contrary to section 23 A(1) of the Drug Misuse and Trafficking Act 1985 was proven against Ms Ruming.
Ms Ruming had pleaded guilty to this offence. A conviction was not recorded against her, and she was dealt with by way of Conditional Release Order (CRO).
The circumstances of this offence are set out later in this decision. However, the context to this offence is that the police had received intelligence that Ms Ruming's husband was growing cannabis plants at their home. The police executed a search warrant, and Ms Ruming's husband was charged and subsequently convicted of a number of offences under the Drug Misuse and Trafficking Act 1985. The evidence before us discloses that it was Ms Ruming's husband who was the instigator in the cultivation of the cannabis plants.
The second complaint is of unsatisfactory professional conduct under section 139B(1)(b) of the National Law being a contravention by Ms Ruming of a provision of the National Law. Specifically Ms Ruming contravened section 130(1) of the National Law by failing to notify the National Board within seven days both of being charged with criminal offences and the subsequent finding of guilt against her.
The first complaint was amended at the hearing to include an additional particular that the circumstances of the offence for which Ms Ruming had been found guilty rendered her unfit in the public interest to practise. The context to this amendment is dealt with below under the heading "The Application and Complaint".
The Commission has proven the complaint that Ms Ruming has been made the subject of a criminal finding for an offence. The evidence before us comprises evidence relevant to the criminal proceedings and the Certificate of Conviction dated 6 December 2022. This complaint has never been disputed by Ms Ruming.
However, we have decided that the Commission has not proved that the circumstances of the offence for which Ms Ruming was made the subject of a criminal finding render her unfit in the public interest to practise.
We have decided that the complaint of unsatisfactory professional conduct against Ms Ruming for failures to notify the National Board is proven. Again that complaint has never been disputed by Ms Ruming.
If Ms Ruming had been registered, we would have exercised the general powers available to us under section 149A of the National Law of reprimand and caution. However, as Ms Ruming is currently unregistered, and for reasons explained later in this decision, these powers are not available to us. We have decided to make no protective orders. We have also decided not to make a costs order in favour of the Commission.
[2]
Background
Ms Ruming obtained her nursing qualification in 2020. She was registered from 4 February 2021 to 1 July 2023. She began working as an endorsed enrolled nurse on 9 August 2021 at Ramsay Health Care Australia Northside Group working in the area of mental health. She left this employment around September 2022.
On 10 May 2022 Ms Ruming lodged an application for renewal of her registration as an enrolled nurse with the Australian Health Practitioner Regulation Agency (AHPRA). In her application for renewal she made an adverse disclosure in relation to a change in her criminal history.
On 8 August 2022, the Nursing and Midwifery Council of NSW (the Council) received a complaint from AHPRA about Ms Ruming following her adverse disclosure in the application for renewal.
In response to the complaint from AHPRA on 19 September 2022 the Council convened section 150 proceedings under the National Law. In broad terms s150 proceedings enable the Council to impose conditions on, or to suspend, the registration of a nurse. for the protection of the public or where it is otherwise, in the public interest. Action taken under s 150 is interim.
The Council imposed conditions on Ms Ruming's registration including that she was not to work as an enrolled nurse until further review by the Council. It also referred the matter to the Commission under section 150D of the National Law to be dealt with as a complaint for investigation. On the 16th of January 2023, and at the request of Ms Ruming, the Council conducted further proceedings under s 150A of the National Law to review the earlier decision of the Council. The outcome of those proceedings was to affirm the earlier decision of the Council. We note that Ms Ruming did not attend the s 150A proceedings. Although the Council was aware that a conviction had not been recorded against Ms Ruming, it found that there was insufficient supporting evidence that her circumstances had changed to set aside the previous s 150 decision.
[3]
The Application and Complaint.
In its application dated 6 September 2023 the Commission sought the following orders:
1. an order under s 149C(4)(a) of the National Law that if the practitioner (Ms Ruming) were still registered, the Tribunal would have cancelled her registration;
2. an order under s149C(4)(b) of the National Law that the practitioner is disqualified from being registered in the health profession for one year from the date of the decision;
3. an order under s149C(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 her registration in the National Register kept by the Board; and
4. an order that the practitioner pay the Commission's costs as agreed or assessed under cl13 of Sch 5D of the National Law.
The original attached Complaint of the same date referenced two individual complaints against Ms Ruming, the making of a criminal finding and unsatisfactory professional conduct.
The source for the grounds for making a complaint are found in section 144 of the National Law. Relevantly s 144(a) and (b) apply in this case and provide as follows:
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.
If the Tribunal finds the subject-matter of a complaint against the practitioner to have been proved, it may exercise any disciplinary powers conferred on it by Part 8, Division 3, Subdivision 6 in relation to a registered health practitioner: s 149 of the National Law. These disciplinary powers are set out at s 149A - s 149C.
Not every proven complaint triggers a power to suspend or cancel a practitioner's registration.
The general powers to caution, reprimand, impose conditions, undergo treatment or counselling, complete an educational course, mentoring or report on a registered practitioners practice are set out in s 149A of the National Law. The power to fine a practitioner in certain circumstances is set out in s149B of the National Law.
Section 149C of the National Law sets out the circumstances in which the Tribunal may suspend or cancel a practitioner's registration.
Section 149C of the National Law relevantly provides as follows:
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 -
(a) the practitioner is not competent to practise the practitioner's profession; or
(b) the practitioner is guilty of professional misconduct; or
(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; or
(d) the practitioner is not a suitable person for registration in the practitioner's profession.
…
(4) If the person is no longer registered, the Tribunal may -
(a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and
(b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and
(c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.
A finding of unsatisfactory professional conduct under section 139B(1)(b) of the National Law does not enliven the powers to suspend or cancel a practitioner's registration.
Where a complaint is proven against a practitioner that they have been made the subject of a criminal finding for an offence, the powers to suspend or cancel their registration are only enlivened if the circumstances of the offence render the practitioner unfit in the public interest to practise their profession.
On the first day of the hearing the Commission clarified that it contended that the circumstances of the offence rendered Ms Ruming unfit in the public interest to practise. It was only by making this clear that the Commission could source a proper basis to its application in seeking the orders that it did under s 149C(4)(a), (b) and (c) of the National Law. The Commission sought and was granted leave to amend its Complaint to reflect its position.
The relevant extract of the Complaint as amended dated 8 February 2024 containing the Complaints and supporting particulars with which we are dealing is as follows:
Complaint One
Pursuant to section 144(a) of the National Law, the practitioner has been made the subject of a criminal finding for a criminal offence in NSW.
Particulars
1. On 6 December 2022 at the District Court of New South Wales at Parramatta, the practitioner was made the subject of a criminal finding that the offence of enhanced indoor cultivation of prohibited plants in the presence of a child contrary to section 23A(1) of the Drug Misuse and Trafficking Act 1985 was proven.
2. The circumstances of the offence for which the practitioner was subject of a finding of guilt render the practitioner unfit in the public interest to practi[c]e.
Complaint Two
The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that she has contravened provisions of the National Law.
Particulars
1. The practitioner contravened section 130(1) of the National Law by failing to notify the National Board within 7 days of being charged on 11 January 2022 with:
(a) Enhanced indoor cultivation of a commercial quantity of prohibited plants in presence of a child contrary to section 23A(2) of the Drug Misuse and Trafficking Act 1985.
(b) Possession of a prohibited plant contrary to section 23(1)(c) of the Drug Misuse and Trafficking Act 1985.
(c) Cultivation for a prohibited plant contrary to section 23(1)(a) of the Drug Misuse and Trafficking Act 1985.
(d) Supply of a prohibited plant contrary to section 23(1)(b) of the Drug Misuse and Trafficking Act 1985.
(e) Possession of a prohibited drug contrary to section 10(1) of the Drug Misuse and Trafficking Act 1985.
(f) Supply of a prohibited drug contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985.
which are all punishable by 12 months imprisonment or more.
2. The practitioner contravened section 130(1) of the National Law by failing to notify the National Board with 7 days that she had been subject of a finding of guilt on 6 December 2022 with:
(a) the offence of enhanced indoor cultivation of prohibited plants in the presence of a child contrary to section 23A(1) of the Drug Misuse and Trafficking Act 1985.
In proceedings before the Parramatta Local Court on 17 March 2022 the offences referred to in Complaint Two particulars 1(b) and 1(d) above were withdrawn. Ms Ruming pleaded not guilty to the remaining charges referred to in Complaint Two particulars 1(a), (c), (e) and (f), and from Parramatta Local Court was committed to the Parramatta District Court to stand trial.
Ms Ruming was legally represented in the District Court, and on 6 December 2022 she appeared before the Court in what was called a Super Call Over during which she indicated a plea of guilty for the single offence of indoor cultivation of prohibited plants in the presence of a child contrary to section 23A(1) of the Drug Misuse and Trafficking Act 1985.
With that plea the Director of Public Prosecutions directed no further proceedings to the indictment. In practical terms this meant that the remaining offences with which Ms Ruming had been charged and referenced in Complaint Two 1(a), (c), (e) and (f) of the Complaint as amended were not prosecuted before the District Court, and Ms Ruming was sentenced for the single offence which is referenced in Complaint One particular 1 and Complaint Two particular 2(a) of the amended Complaint set out above.
Specifically, Ms Ruming was sentenced in relation to the offence of cultivate nine cannabis plants indoors, exposing a child to that cultivation process.
If Ms Ruming were still registered, the only basis upon which the Tribunal could decide it would have suspended or cancelled her registration; would be if the circumstances of the offence rendered her unfit in the public interest to practise. There was no complaint by the Commission of professional misconduct or any other ground in which suspension or cancellation could be considered under section 149C(1) of the National Law.
We now turn to the issue of whether the circumstances of the offence render Ms Ruming unfit in the public interest to practise.
[4]
The District Court proceedings
On 23 November 2022 Ms Ruming's husband was sentenced by the District Court to a custodial term of five years with a non-parole period of three years and four months. He was involved in cultivating a larger number of plants and had prior criminal history in relation to similar offending which explains the severity of the sentence imposed.
Ms Ruming had originally pleaded not guilty to the offences and a trial date had been set. She provided context as to why she had entered a guilty plea at the Call Over in the District Court. She explained that she had found the criminal proceedings stressful. Her character had been put under scrutiny. The Department of Communities and Justice had conducted an assessment into her daughter's safety and well-being. Going to trial would take more time. She wanted the process over and her life back.
On 6 December 2022, a sentence hearing took place before Hanley DJC at which agreed facts were tendered.
The factual matters which underpinned the finding of guilt made against Ms Ruming are found in the sentencing remarks made by His Honour Judge Hanley SC. The relevant extract is as follows:
[Ms Ruming] and her partner lived in a property at Kellyville with her 11-year-old daughter. The police received intelligence about the co offender growing plants at the address and executed a search warrant. The co-offender attempted to run away but was arrested. Police noted the power point in the garage and the electricity supply had been utilised for the indoor hydroponic cultivation. There were nine cannabis plants, a large vertical multi-level drying rack, loose cannabis seeds, five bags of fertiliser, 15 electricity transformers, 11 lamp shades, two planner diaries which the Crown relies upon to indicate an allocation of work in relation to the co offender and [Ms Ruming] for the caring of the plants. [Ms Ruming's] fingerprints and DNA were found on the outside of the diary.
[Ms Ruming's] daughter lived upstairs in close proximity to where the plants were grown. There was an extension cord running from the bedroom to where the plants were located… the DPP, has quite properly pointed out that manner of relocating the electricity can be dangerous in relation to potential fires ,and that increases the danger to which the child was exposed.
The participation of [Ms Ruming] is adequately established in paragraph 19 of the agreed facts. It says she participated in the cultivation process by securing the house for the co offender, extending the lease, nurturing the plants, assisting in the application of artificial light and heat sources at the direction of the co offender. In that regard. I note the co offender had prior experience in committing offences of this kind.
Objective seriousness of the offence.
I take into account the number of plants. That clearly is not far above the amount designated to be a small quantity, which is five. That reduces the objective seriousness significantly. Her role would appear to be that of assisting in the caring of the plants. A minor role, and one directed by the co-offender, who had experience in this offending. The real concern is one of the elements of the offence being that she exposed her daughter to the cultivation process. I am satisfied her role, and the objective seriousness of her offending, falls toward the lower end for offences of this kind, considering the number of plants, her participation in it, and her lack of experience in such offences…
After recording Ms Ruming's prior good character his Honour stated:
…It is somewhat sad she finds herself in this position where the community have potentially been deprived of her expertise, as the COVID-19 pandemic has underlined we so clearly need.
She is a single mother. She has ceased her relationship with the co-offender. I have little evidence before me in relation to the nature of that relationship, whether it would appear to be an inappropriate one. It was inconsistent with her prior good character that she became associated with someone who has his criminal history. I am satisfied that as a consequence of that offending, that requirement for her to be an appropriate person to care for her daughter, has been significantly investigated by the Department of Communities and Justice, and that was an extremely stressful experience for her. Her child is not at risk according to that organisation.
She has also been subjected to investigation by the Nursing and Midwifery Council and the Healthcare Commission, in relation to the nature of this offending.
…It is unfortunate to see someone. with so much promise and prior good character to be involved in an offence of this kind. I suspect she was encouraged to be involved because of her relationship with the co accused. As a consequence of their offending behaviour, she has suffered considerable loss, including her capacity to work as a nurse, at least for the period from the time of her arrest until now, the fact that she has been subject to various inquiries challenging and inquiring into her capacity to be an appropriate, mother. To some extent, that is the consequence of this type of offending, which has been an additional penalty…
…Offences of this kind are unfortunately not uncommon, and generally require degree of general deterrence to dissuade other likely offenders. I am not satisfied that she is an appropriate candidate to achieve that purpose in view of her limited involvement in the offence… I would be surprised if she ever re-offended…
After referencing relevant sentencing principles, His Honour considered whether a conviction should be recorded against Ms Ruming in the light of his assessment of the objective seriousness of the offending behaviour. He stated as follows:
The consequences and implications of any sentence that would require a conviction against her, in my view would go well beyond that envisaged by the legislation and impose a penalty far more significant than appropriate for the offence, in the light of my assessment of its objective seriousness.
In his Honour's sentencing assessment, he considered other factors including the impact on Ms Ruming's career. His Honour noted that Ms Ruming had spent a considerable amount of time achieving her nursing qualification and was the type of person we needed in the community to resume that role.
His Honour was satisfied that, it would be an appropriate but rare case in light of the nature of the offence, that no conviction should be recorded against Ms Ruming. Ms Ruming was dealt with pursuant to section 9(1)(b) of the Crime Sentencing Procedure Act and was placed on a Conditional Release Order (CRO) without conviction for a period of two years.
[5]
The evidence and hearing.
Ms Ruming gave evidence that she had first met her partner when she was 16 years old. She became involved with him in 2010. He was the father to her child. She had some awareness of his prior offending. She knew about some of what he was doing in growing cannabis plants at their home but not the extent of it. She knew he used cannabis, but she did not know he had sold it. It had got out of hand, and this was where they had ended up. She did not like what her partner was doing and did not want her child exposed to the conduct. She had tried to support her partner to get away from cannabis and he had attempted rehabilitation.
Ms Ruming explained she had tried to raise the issue of the plants with her partner, but she could not see a way out of the situation. She had her daughter to think about and her partner was a good father. She wanted to nurture their relationship. She was concerned about financial stability and being able to find and afford somewhere else to live.
Ms Ruming's partner is in gaol and is not due for release until October 2026. She did not see their relationship as ongoing, but she did have contact with him and took her daughter to visit him. She had been honest with her daughter about where her father is. She had not thought too deeply about her plans upon his release as it was still some time away and instead had been focused on creating a stable home for her daughter. However, she believed she would support her partner and she hoped on his release Probation and Parole would supervise him to support him in not returning to his past activities. But she was adamant that she could not go through a process like this again, and if that meant walking away then that is what she would do.
Reflecting on the offences and her experience Ms Ruming said she was devasted and ashamed. She had found the entire process traumatic and stressful. She did not want any of the things to happen. If she could do things differently, she would have left and taken her daughter with her. At the time she was trying to keep her family together. She loved her partner. She believed at the time she had been able to protect her daughter and see that she came to no harm. She did not think about the connection between her work and what was going on at home. She focused on her job and compartmentalised the two things.
Ms Ruming had pleaded not guilty to the charges against her. Her case was to go to trial. Before her trial date, her matter was placed into a super call-over held in December 2022. There was a discussion at the call over between legal officers of the DPP and her legal team. The agreement reached was for her enter a plea of guilty, seek a CRO conditional on entering a good behaviour bond and have her matter dealt with to finality on that day. She described her plea of guilty as a "plea of convenience." She still believed she was not guilty because she did not see herself as having anything to do with the cultivation of the plants. By the time she got to the call-over, given everything she had been through, the scrutiny and judgement on her character, her own lack of judgement in her association with her partner, she wanted it over. She wanted her life back and that was why she took the plea of guilty.
Under questioning by the Commission, Ms Ruming was asked about the statement of agreed facts which she had signed, and which underpinned the offence to which she had pleaded guilty.
According to the statement of agreed facts Ms Ruming's fingerprints were found on a number of pages in two diaries. It was said that she assisted in maintaining these diaries and diarising "pick days". Her DNA was found on the outside of one of the diaries. In the other diary her name appeared in a column and each column had tasks in it. Ms Ruming was also said to have participated in the cultivation by securing the house, extending the lease, nurturing the plants, and assisting with the application of artificial light and heat sources at the direction of her husband.
Ms Ruming stated that although the diary had her name in it, she had nothing to do with it or nurturing the plants. She lived in the house; she cleaned the house, and she would have touched the diary.
[6]
Submissions by the Commission
The Commission submitted that the circumstances of the offence for which Ms Ruming had been made the subject of a criminal finding are such as to render her unfit in the public interest to practise nursing. Specific submissions were made having regard to the factors referred to in AHPRA's Registration Standard: Criminal History dated 1 July 2015.
Reflecting these factors, the Commission addressed:
the nature and gravity of the offence;
relevance of the offence to health practice;
period of time since the offence;
whether a finding of guilt was recorded for the offence;
sentence imposed;
ages of the health practitioner and any victim at the time of the offence;
the practitioner's behaviour since committing the offence;
likelihood of future threat to a patient; and
the practitioner's explanation.
Some submissions referable to these factors were not unfavourable to Ms Ruming. Others were limited in their relevance to the circumstances of the offence and Ms Ruming's own circumstances. We have focused on the salient aspects of the submissions reflecting the Commission's position.
The Commission submitted that looking at the nature and gravity of the relevant offence it is objectively serious. Parliament has made the gravity of the offence clear by setting a maximum penalty of 12 years imprisonment.
The Commission conceded that the offending was not directly connected to Ms Ruming's practice as an enrolled nurse. However, as an enrolled nurse who had worked in mental health, she would be aware of the high comorbidities between mental health issues and illicit drug use.
The Commission acknowledged that Ms Ruming's role in the offence was found to be minor compared to that of her co-offender, but there was evidence that she assisted with the cultivation of the cannabis plants, with her fingerprints and DNA being found on the outside of a planner diary which recorded an allocation of work between the parties.
The Commission submitted Ms Ruming had not wholly accepted responsibility for the offending behaviour. Specifically, it referred to previous statements she made in communications with the Council and the Commission.
In various documents submitted by Ms Ruming to the Council she stated that she "was in no way involved" and "was aware of a small portion of what was going on but was not aware of the extent of what was happening": see statutory declaration of 13 June 2022. In a reflection dated 25 August 2022, Ms Ruming stated that it was the actions of another person that has compromised her professional standing as a nurse but accepted some responsibility fell onto her to report what was happening. In another statement dated 15 January 2023, Ms Ruming stated that her plea of guilty was a "plea of convenience to the court to prevent the matter going to trial". Finally, in her s 40 submissions to the Commission dated 5 April 2023, she stated that she pleaded guilty to the relevant offence on the advice from her legal team but indicated that she maintained her innocence and was prepared to go to trial.
The sentiments expressed in these statements were echoed in the oral evidence Ms Ruming gave at the hearing.
The Commission submitted that the offence exhibits traits not consistent with the honourable practice of an honourable profession. While acknowledging that no conviction was recorded and that Ms Ruming's role in the commission of the offence was minor compared to that of her co-offender, the offence was extremely serious and endangered the safety of her child. Further, Ms Ruming displayed limited insight into her offending behaviour, reflected in her equivocal acceptance of responsibility for her actions. For these reasons, it was submitted that the Tribunal should grant the orders the Commission sought.
[7]
Relevant facets of the public interest
The term "public interest" is not defined in the National Law. It is found in various provisions of the National Law including in the objectives of the national registration and accreditation scheme (s 3(2)(e)), in association with a practitioner found guilty of criminal offences (s 149C), in determining whether to take action under s 150, in making an interlocutory order suspending a practitioner's registration (s 165L) and in determining what information should be included in the public register (s 226).
The starting point for the consideration of the "public interest" is to interpret it in the light of the purpose or objects of the National Law: see cl 7 of Schedule 7 of the National Law.
The objectives of the National Law, as set out in s 3, are as follows:
3 Objectives
(1) The object of this Law is to establish a national registration and accreditation scheme for -
(a) the regulation of health practitioners; and
(b) the registration of students undertaking -
(i) programs of study that provide a qualification for registration in a health profession; or
(ii) clinical training in a health profession.
(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; and
(b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and
(c) to facilitate the provision of high-quality education and training of health practitioners; and
(ca) to build the capacity of the Australian health workforce to provide culturally safe health services to Aboriginal and Torres Strait Islander Peoples; and
(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and
(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and
(f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
The guiding principles of the National Law are set out in s 3A:
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;
(a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that -
(i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and
(ii) contributes to the elimination of racism in the provision of health services;
Example -
Codes and guidelines developed and approved by National Boards under section 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care.
(b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;
(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.
There is an "additional NSW provision" of the National Law in s 3B:
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.
The objectives and guiding principles which are most relevant to interpreting the public interest in the circumstances of this case are the protection of the health and safety of the public, that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and that restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality."
In Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53, Deputy President ADCJ Boland considered the authorities on the "public interest" and concluded that the authorities emphasised a number of matters relevant to the scope and purpose of the legislation, those factors including "the high moral and ethical obligations on practitioners, the need to comply with regulations, and the confidence of the public in those who treat them": at [151].
In Pharmacy Council v Ibrahim [2020] NSWSC 708, the Court held that the "public interest" is a broader concept than protection of the health or safety of the public, encompassing wider community interests such as the standards to which human conduct is to be held. The following observations by Harrison AsJ in Pharmacy Council of NSW v Ibrahim at [32] and [35] are instructive:
As such, and in the context of ss3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna v Medical Board of NSW [2017] NSWCATOD 27 at [18]
… The public interest is a broader concept, encompassing wider community interests such as the standards to which human conduct is to be held…
Whether a practitioner is unfit in the public interest to practise will require the Tribunal to consider 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 respondent in terms of any insight, contrition, and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51].
It is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role. Where an offence is not committed in the course of acting in a professional role, a nuanced approach to the public interest is required. Matters such as the extent to which the reputation and trust in the nursing profession is maintained and the wider community interests in the ethical standards expected of health professionals will come to the fore. Health care professionals should be committed to the ethics of health care in having a responsibility to ease human suffering. Not cause it or be complicit in it.
So for example when health professionals are convicted of serious criminal offences involving violence, sexual assault or the sexual exploitation of children, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continues to practise: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17].
[8]
Unfit in the public interest
The proceedings in the District Court indicate that Ms Ruming did not instigate the cultivation of cannabis. This was done by her partner.
In sentencing remarks Hanley DCJ stated that in the light of his assessment of the objective seriousness of the offence, if a conviction were to be recorded against Ms Ruming, it would go well beyond that envisaged by the legislation and impose a penalty far more significant than appropriate for the offence. As referenced by his Honour the offence for which Ms Ruming was found guilty was serious, but her involvement in it was found to fall toward the lower end for offences of this type.
In our view his Honour's assessment that the objective circumstances of the offence did not warrant a conviction being recorded against Ms Ruming, is of signal importance and does not lend support to a finding that Ms Ruming is unfit in the public interest to practise.
Even accepting the extent of Ms Ruming's role as outlined in the statement of agreed facts which she sought to distance herself from, it was minor. Her involvement was not direct nor calculated. She did not embrace her partner's activities nor was she approving. It can be best be described acquiescence to her partner's activities.
To the extent Ms Ruming knew and played a role in her partner's activities there is no evidence that this affected her professional competence as a nurse. On the contrary in a Performance Development and Review conducted in August 2022 it was noted that Ms Ruming consistently received positive feedback from her colleagues and engaged well with patients.
If it were not for the activities of Ms Ruming's partner in their home, there is nothing to suggest that she would have come to the attention of justice or regulatory authorities. We accept that logistical considerations would have made it difficult for her to leave the home.
We do not accept the Commission's contention that Ms Ruming's offence exhibited traits not consistent with the honourable practice of an honourable profession. We do not believe Ms Ruming's conduct can be considered a fundamental character flaw or undermines her capacity to conduct herself ethically as a member of the nursing profession. Nor do we believe that the circumstances of the offence give rise to any concerns in respect of the protection of the health and safety of the public.
The Commission submitted that Ms Ruming had not wholly accepted responsibility for the offending behaviour. Further, she had displayed limited insight into her offending behaviour, reflected in her equivocal acceptance of responsibility for her actions.
It is not necessary for us to resolve whether Ms Ruming did or did not perform the minor role ascribed to her in the cultivation of the cannabis plants as indicated in the statement of agreed facts. As a general proposition we do not need to make unnecessary credit findings unless its relevant to the issues to be resolved in a case. In this case we are reluctant to characterise Ms Ruming's evidence about this issue as a lack of insight unless another explanation is unavailable, and it is necessary to do so to resolve a controversy.
Prior to the finding of guilt, Ms Ruming had no criminal history. On her account she changed her plea to guilty before trial in the context of negotiations between her legal advisors and prosecutors and because of the emotional toll that the proceedings had taken upon her. As a matter of practical reality, it is not uncommon for a person to enter a guilty plea in these circumstances but still believe they held no criminal intent. In our view, the equivocal acceptance by Ms Ruming of responsibility for her actions identified by the Commission does not equate to a lack of insight or remorse on her part.
We are not satisfied that Ms Ruming's evidence about this matter demonstrates that she lacks insight or is not remorseful for her role in the cultivation of the cannabis plants by her partner.
Ms Ruming's oral evidence and the manner in which she gave it demonstrated she was now well aware of how her conduct was capable of having an impact on the perception of and the standing of the profession. In our view, Ms Ruming understood the nexus between her conduct in a private sense and community perceptions of the profession. We do not see the circumstances of the offence for which she was found guilty as undermining the public's confidence in the profession.
We are not satisfied that the Commission has established particular two of Complaint One of the amended Complaint. We are not persuaded that the circumstances of the offence render Ms Ruming unfit in the public interest to practise.
In the light of this finding, the Tribunal's powers to consider suspension or cancellation under s 149C are not triggered.
[9]
Compliance with section 130
Complaint Two is about a failure to comply with section 130 of the National Law.
The evidence discloses that in May 2022 when seeking renewal of registration Ms Ruming did notify AHPRA of the charges against her but not within the time frame of seven days of being charged as specified in the National Law.
On 12 December 2022 Ms Ruming requested a review of the Council's section 150 decision. In this request she notified the Council of the outcome of the District Court proceedings held on 6 December 2022 and the finding of guilt against her. Ms Ruming also notified the Commission on 6 December 2022 that the District Court proceedings had been finalised.
Although these notifications were done within seven days, Ms Ruming did not notify the Nursing and Midwifery Board of Australia and therefore did not technically comply with section 130(1) of the National Law which requires notification to the National Board
Ms Ruming accepts that she failed to notify AHPRA of the criminal charges against her and the finding of guilt made against her within the required seven days. Ms Ruming explained that she was unaware of the requirement to notify of the charges against her within the seven-day period. At the time of being charged with the offences she was under significant stress, had to leave her home at short notice and find accommodation for herself and her child. It was not her intention to withhold this information from AHPRA and this was why she had declared a change to her criminal history.
Ms Ruming also accepts that although she provided notification to the Council within seven days about the outcome of the proceedings against her she did not notify the correct entity, AHPRA.
In effect Ms Ruming notified the correct entity of the charges laid against her but not within the required time frame specified by the National Law. In respect of the finding of guilt made against her, she notified within the required time frame but did not notify the correct entity as specified by the National Law.
We acknowledge that Ms Ruming was unaware of the specific nature and extent of notification obligations under section 130 of the National Law. We accept that Ms Ruming did take action to notify of the charges against her and the finding of guilt against her, but that her actions did not satisfy the obligations specified by the National Law. The contravention by Ms Ruming of a provision of the National Law is established.
Section 139B(1)(b) of the National Law indicates that a contravention of the National Law, in this case a breach of s 130(1), is unsatisfactory professional conduct. Particulars one and two of Complaint Two are proven, and the effect of that finding is that Ms Ruming is guilty of unsatisfactory professional conduct.
[10]
Protective orders
Ms Ruming is not registered. In this light, the scope of protective orders available to the Tribunal for an unregistered practitioner was raised with the Commission at the hearing. The Commission provided supplementary submissions on this issue and helpfully set out relevant case law.
The Commission submits that on a strict interpretation of the National Law, there is no power for the Tribunal to caution or reprimand an unregistered health practitioner. Section 146B empowers the Tribunal to caution or reprimand a "relevant health practitioner" which is defined in s 146 as a "registered health practitioner".
Decisions made by the Tribunal as to whether the Tribunal can caution or reprimand an unregistered health practitioner are unsettled. There are decisions in which reprimands have been given to unregistered health practitioners and decisions in which it has been found to be beyond power.
In Health Care Complaints Commission v Reyes [2023] NSWCATOD 57 at [121], the Tribunal found that it did not have the power to issue a formal reprimand without an active registration.
Some decisions have reprimanded an unregistered practitioner however the source of power does not appear to have been argued or identified. For example, in Health Care Complaints Commission v Jouda [2023] NSWCATOD 83 at [83] the Tribunal reprimanded a practitioner who was not registered although it does not appear to have considered its power to do so. In Health Care Complaints Commission v Dewar (No 2) [2015] NSWCATOD 23 at [2]-[3] the Tribunal indicated it would have suspended the registration of a practitioner who was no longer registered and also reprimanded the practitioner.
In Health Care Complaints Commission v Neale [2023] NSWCATOD 137, the Tribunal discussed the issue but did not reach a conclusion. The relevant extracts are at [11], [69] and [93] and are as follows:
[11] …It is difficult to suggest how reprimanding an unregistered health practitioner could enhance the protection of public health and safety. Importantly, s 149C(4) empowers the Tribunal to make protective orders with respect to unregistered health practitioners whose registration would have been suspended or cancelled if they had been "still registered". We perceive no inconsistency in, or ambiguity with respect to the legislative provisions to which we have referred. Interpreting s 149A to exclude unregistered health practitioners does not appear to promote any mischief with which they were intended to deal (Mills v Meeking (1990) 169 CLR 214; [1990] HCA 6; 91 ALR 16). Although the point does not appear to have been extensively argued, we note that in Health Care Complaints Commission v Reyes [2023] NSWCATOD 57, to which the Commission referred the Tribunal, at [121] the Tribunal concluded that it lacked the power to reprimand an unregistered health practitioner.
…
[69] The Practitioner submitted (27), and the Tribunal accepts, that a reprimand is not a "trivial or inconsequential outcome" (Peeke v Medical Board of Victoria [1994] VSC 7; Legal Services Commissioner v Maddock [2021] NSWCATOD 46). We have reservations about the impact of a reprimand on an unregistered practitioner. We also have reservations about how adequately such a reprimand "speaks" to the medical profession or the public about how conduct of the kind admitted or proved in this case is viewed by the Tribunal.
…
[93] To the extent that the Tribunal has the power to reprimand or suspend a practitioner who is not registered, which is acknowledged by the parties to be problematic, the Tribunal is not persuaded that doing so would adequately protect the health and safety of the public. Nor would doing so appropriately convey to the medical profession how seriously conduct of the kind that the Practitioner has admitted or been found guilty of is viewed by the Tribunal. Nor would suspension or reprimand sufficiently signal to the public the Tribunal's view of the seriousness of such conduct.
A useful decision of the Professional Standards Committee found that there was no power to reprimand an unregistered practitioner. In PSC Inquiry into Dr Baderudin Khamis [2017] NSWMPSC 10 at [64] to [76] and particularly [68] and [75], the following observations were made:
[68] Given that the power of the Committee in s146B(1) of the National Law is limited to a relevant health practitioner, meaning one registered under the National Law, it would appear that none of the listed items would be available to the Committee.
…
[75] In our view we do not have power to reprimand Dr Khamis, even if it would be appropriate to do so were Dr Khamis still registered. We do not make any decision in that regard. We do not believe s146B(2) can be read as direction for a condition that a reprimand issue on registration. The power is one of imposing conditions - a reprimand is not a condition.
Section 146B(1) of the National Law sets outs the disciplinary powers of a Professional Standards Committee (the Committee). It includes general powers to caution, reprimand, impose conditions and counsel. It mirrors the Tribunal's disciplinary powers as contained in section 149A(1) of the National Law.
Section 146B(2) deals with the powers of the Committee when a health practitioner is not registered. It provides:
(2) If the relevant health practitioner is not registered, a direction may still be given under this section but has effect only so as to require the conditions concerned to be imposed when the health practitioner is registered.
Section 149A(1) deals with the Tribunal's general powers to caution, reprimand, impose conditions on registration and counsel. Section 149A(3) deals with the powers of the Tribunal when a health practitioner is not registered. It provides that:
(3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only--
(a) to prevent the practitioner being registered unless the order is complied with; or
(b) to require the conditions concerned to be imposed when the practitioner is registered.
We agree with the characterisation that a reprimand is not a condition. It is a rebuke to a professional person for past wrongful conduct. It is not trivial. It has the potential for serious adverse implications. It must be recorded on the National Register: s 225(j). The National Board can remove it if it considers that it is no longer necessary or appropriate for the information to be recorded on the National Register: s 226(3). In practical terms it is recorded against the practitioner's registration. It is not a condition to be imposed when a practitioner is registered, nor does it operate as an order to prevent a practitioner from being registered unless the order is complied with.
Reviewing the Tribunal's decisions, we accept the Commission's submission that the better view is that the Tribunal cannot issue a reprimand to an unregistered practitioner. This is because the decisions in which a reprimand has been issued generally do not address the question of whether such an order is within power and those in which the Tribunal, or other decision-making body such as the Professional Standards Committee, have determined not to issue a reprimand have considered the legislative powers in reaching this conclusion.
Turning to the finding of guilt against Ms Ruming, if Ms Ruming were still registered, we would have issued a reprimand.
In our view Ms Ruming was in a difficult position. Her husband's unlawful activities took place in the home. We understand that for logistical and emotional reasons she would have found it difficult to extricate herself. We also note she was a relatively new practitioner. The degree to which she would have been exposed to a range of ethical exigencies was limited. The potential for domestic or private conduct to intersect in a broader ethical sense for a professional engaged in health services may not have been apparent to her. Nonetheless at the time she ought to have held to mind the potential impact of the unlawful activities that took place in her home could have on the standing and reputation of the nursing profession. In our view an appropriate and sufficient protective order reflective of her conduct would have been to reprimand her as a rebuke for past wrongful conduct. We are satisfied that if we had power to impose it, the imposition of a reprimand sends a strong message that upholds the reputation of the profession and maintains confidence in it by the public.
Turning to our conclusion of unsatisfactory professional conduct for failing to comply with the obligations of disclosure under the National Law, if Ms Ruming were still registered, we would have cautioned her.
This is because it is not the case that Ms Ruming took no action at all to bring the charges and the finding of guilt to the attention of what she believed to be the relevant authorities. Rather, the action she took did not strictly comply with the specific requirements of the National Law. She now knows the very specific nature and scope of those requirements. In our view an appropriate and sufficient protective order reflective of her conduct would have been to caution her as a reminder to take care in the future and to avoid a repetition.
[11]
Costs
The Commission seeks an order that Ms Ruming pay its costs as agreed or assessed.
The Commission's submissions referenced the statutory framework containing the power to award costs. It pointed to well settled case law in support of the proposition that the general rule is that costs followed the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].
The Commission submitted that if it was successful in obtaining the orders it sought, it referenced that 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. In this case there had been no disentitling conduct by the Commission to warrant a departure from the general rule. In support of this proposition the decision of Oshlack v Richmond River Council [1998] HCA 11 at [40] was cited.
There is an issue with the Commission's reliance upon the decision in Oshlack in the way it proposed. We note that Oshlack stated, "There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the [Land and Environment Court Act 1979 (NSW)] that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party.": at [40].
As we understood the Commission's position if it was not successful in obtaining the orders it sought, it was still appropriate to order costs in its favour. It submitted that the Complaint was not admitted, and the proceedings were instigated before the Tribunal because of Ms Ruming's conduct in being charged and the finding of guilt against her. Further, cross examination was required specifically because Ms Ruming had not admitted her guilt and there was no disentitling conduct by the Commission. The Tribunal had to grapple with the appropriate protective orders and part of that process was to hear evidence. It was submitted that given these matters it was appropriate for the Tribunal to exercise its discretion to award costs in favour of the Commission.
Ms Ruming made no specific submissions about costs.
The Tribunal's power to award costs is conferred by clause 13 of Schedule 5D of the National Law. The power is broadly expressed, and, as relevant to this application, states:
13 Tribunal may award costs [NSW]
(1) The Tribunal may order the complainant, if any, the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal.
…
The purpose of a costs order is compensatory not punitive. The power to award costs can be flexibly applied having regard to the circumstances of the case.
The relevant considerations and principles for the Tribunal in determining whether costs ought to be ordered are set out in Philipiah.
At [42] Emmett JA stated:
As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission 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 (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]) …
Costs are discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide the exercise of the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it: Philipiah [43] referencing Williams v Lewer (1974) 2 NSWLR 91 at 95.
[12]
Consideration
In general terms cost orders are ancillary to the disposition of substantive issues in controversy: Health Care Complaints Commission v Ake [2018] NSWSC 1170 at [11].
For costs purposes a fundamental feature of the outcome of disciplinary proceedings is that a party, usually the Commission, has had to run its case often over the practitioner's opposition to satisfy the Tribunal that the conduct of the practitioner justifies an order that registration should be cancelled for the protection of the community: Health Care Complaints Commission v Ake at [24]. As made clear by Philipiah normally unless there is some disentitling conduct, a costs order compensates the Commission for that work: at [45].
In this case the Commission has not been successful in establishing the central tenet of its claim that Ms Ruming is unfit in the public interest to practise.
The Commission held steadfast in seeking orders under s 149C(4)(a) and (b) of the National Law. Specifically, that if Ms Ruming were still registered, her registration would have been cancelled and the imposition of a disqualification period from being registered in the profession for one year. It has not been successful in securing the orders it sought.
We do not agree with the Commission's characterisation that Ms Ruming did not admit the Complaint. Ms Ruming has never denied that a criminal finding of guilt had been made against her or that she had not complied with the notification requirements as set out in the National Law.
It was not until the first day of the hearing that the Commission amended its complaint to include that the circumstances of the offence rendered Ms Ruming unfit in the public interest to practise. It was only by advancing this contention that the Commission could source a proper basis for seeking the orders that it did in its application. It is not surprising that Ms Ruming did not concede that she was unfit to practise, and we have found the Commission has not established this claim.
The Tribunal should be vigilant in the making of costs orders. We accept that the Commission has public interest obligations under the National Law to pursue matters before the Tribunal. Under s 145D(1) of the National Law the Commission is under a duty to refer a serious complaint to the Tribunal if it forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's registration.
But it is arguable that this matter could have taken another course. For example, complaints that a criminal finding for an offence and unsatisfactory professional conduct could have been brought before a Committee under Part 8, Division 11 of the National Law which is a no costs jurisdiction: ss 168 - 171G.
In the decision of Health Care Complaints Commission v Taghi Zadeh Vardough [2023] NSWNMPSC 2 (24 February 2023) the Committee dealt with a Complaint brought by the Commission against a registered nurse. On 18 September 2020, Mr Vardough visited a chemist and presented a script that he had earlier altered. He was charged with an offence under s 16(2) of the Poisons and Therapeutic Goods Act 1966 in that he had presented the script knowing it had been fraudulently altered. Mr Vardough attended court on 14 May 2021 and admitted the offence. He was found guilty, but without the court proceeding to a conviction. He entered a Conditional Release Order under s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 for a period of 18 months.
The first component of the Complaint under s 144(a) of the National Law that Mr Vardough had been made the subject of a criminal finding for an offence was established.
The second component of the Complaint was that in altering and presenting the script Mr Vardough had engaged in improper or unethical conduct relating to the practice or purported practice of nursing which amounted to unsatisfactory professional conduct under s 139B(1)(l) of the National Law. The Committee found that his conduct in altering and presenting the script was improper conduct relating to the practice of nursing and amounted to unsatisfactory professional conduct by him as a registered nurse. The Committee decided to reprimand Mr Vardough and impose conditions on his registration that he be mentored and that his employers be made aware of the decision.
The circumstances of the offence committed by Mr Vardough clearly involved improper or unethical conduct and there was direct nexus between the occurrence of the offence and the professional role. It was serious yet capable of being dealt with by the Committee.
In contrast the circumstances of the offence committed by Ms Ruming did not occur in the professional role. It raised broader issues of character and the maintenance of reputation and trust in the nursing profession. The complaint of unsatisfactory professional conduct was grounded in the contravention by her of the notification provisions of the National Law. The contravention was technical in nature and not deliberate.
It may be that the Commission made a forensic decision to pursue the matter before the Tribunal reflecting its position that if Ms Ruming had been registered it would have sought cancellation and disqualification, and aligned with that position it sought the orders that it did from the Tribunal under 149C(4) of the National Law. In turn this decision may have been influenced by the fact that the Committee does not have the power of cancellation.
The Committee may recommend that a health practitioner's registration be suspended for a specified period or that the practitioner's registration be cancelled if the Committee is satisfied the practitioner does not have sufficient physical or mental capacity to practise the practitioner's profession. If a practitioner is no longer registered, a recommendation may be made that the person be disqualified from being registered: s 146D(1) and (2) of the National Law.
The Committee makes its recommendation by referring the matter, with its recommendation and the material on which it relied in making its recommendation, to the Tribunal. The Tribunal may make an order in the terms recommended; or may make another order about the suspension or cancellation of the registration of the practitioner as it thinks proper based on the findings of the Committee. Instead of making an order under this section, the Tribunal may exercise any power of a Committee under Part 8, Division 3, Subdivision 3, s 146D(3), (4) and (6) of the National Law.
Independently of its powers relating to a practitioners' physical or mental capacity to practise, if, before or during an inquiry, the Committee forms the opinion that the complaint, if substantiated, may provide grounds for the suspension or cancellation of the registration of the relevant health practitioner; then it must terminate the inquiry and refer the matter to the Tribunal: s 171D of the National Law. This enables the Committee to refer matters that warrant consideration of the exercise of power of suspension or cancellation.
We acknowledge that the concept of "overall success" in protective proceedings is somewhat different to that in private litigation which does not have the public interest aspect, and which exists in proceedings under the National Law: Health Care Complaints Commission v Litchfield (No 3) (Costs) [2023] NSWCATOD 44 at [48].
In this case the Commission only amended the Complaint to include unfitness to practise at the hearing. The Commission was on notice from sentencing remarks made by the District Court that the objective circumstances of the offence did not warrant a conviction being recorded against Ms Ruming and that her role in the offence was regarded as minor. It was on notice of her circumstances as outlined in her s 40 submissions. The matter was dealt with over two days and in fairness to Ms Ruming a proportion of that hearing time was needed for her to absorb the significance of the amendment to the Complaint in relation to unfitness to practise and respond to it. The Commission failed to obtain a finding and establish what it alleged in relation to unfitness to practise. It was not successful in obtaining the orders that it sought.
The remaining complaint of unsatisfactory professional conduct whilst not trivial was lesser in importance or significance than transgressions of this kind. It can be characterised as a technical contravention of a provision of the National Law. It was not deliberate nor was it careless.
Ms Ruming has always made admissions about the complaints of a finding of guilt against her and unsatisfactory professional conduct. It is not the case that the Commission had to run its case over Ms Ruming's opposition to these complaints.
There appeared to be an alternate avenue available in a costs free environment to consider the complaints against Ms Ruming and no explanation or information was provided to us as to why the complaints could not have been put before a Professional Standards Committee. A decision was made by the Commission to put the matter before the Tribunal and incur costs. Those costs included briefing external Counsel. The net result is we have made no protective orders and if Ms Ruming had been registered, the orders we would have made equally would have been available to the Committee.
Considering all the circumstances and recognising that the discretion to award costs is a broad one, we are not willing to exercise the discretion to award the Commission its costs.
[13]
ORDERS
1. The Complaint that the practitioner has been made the subject of a criminal finding for an offence is established.
2. That the circumstances of the criminal finding for an offence render the practitioner unfit in the public interest to practise nursing is not established.
3. The Complaint of unsatisfactory professional conduct is established.
4. No protective orders are made.
5. No order as to costs.
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
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Decision last updated: 17 June 2024