Health Care Complaints Commission v Shipley

Application to the Tribunal

1. On 13 March 2020 the HCCC applied to the Tribunal for disciplinary findings and orders against the practitioner under the National Law.
2. Complaints One, Two and Three are that the practitioner is guilty of unsatisfactory professional conduct, under s 139B(1)(b) and (l) of the National Law.
3. Complaint One is that the practitioner engaged in improper or unethical conduct relating to the practice of her profession (s 139B(1)(l)), in that while caring for Patient A she knew or ought to have known of the specific health issues from which he suffered, and that she breached professional boundaries, the NSW Health Code of Conduct, and the Nursing and Midwifery Board of Australia Code of Conduct for Nurses by the following actions: 1. The practitioner inappropriately used the nurses-only key to access Patient A's wallet in a locked bedside drawer and used the key card to extract funds from his account totalling $14,395.00, which she used for personal purposes, and failed to repay; 2. on 1 May 2017 the practitioner had used Patient A's key card to pay for her dental appointment at a cost of $110.00, and failed to repay that amount; and 3. in around June-July 2017 when the practitioner became aware of the NSW Police investigation into the allegation that Patient A had had money taken from his account, she inappropriately continued to treat Patient A.
4. The Tribunal notes that particular 4 of Complaint One refers to an amount of $14,395.00, and the charge under s 192E(1)(b) of the Crimes Act, to $14,325.00. The bank records in evidence confirm that the former amount includes ATM fees.
5. Complaint Two is that the practitioner engaged in improper or unethical conduct relating to the practice of her profession (s 139B(1)(l) National Law) in that she knowingly gave false and misleading information to the Council delegates during the s 150 proceedings by stating that she had taken only $110 from Patient A and that she had repaid that money, and that she had stated she had no knowledge of the amounts of money alleged by NSW Police to have been obtained from Patient A.
6. Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that she contravened s 130(1) of the National Law by failing to notify the Nursing and Midwifery Board of Australia (the National Board) within 7 days of being charged on 16 January 2018 with an offence punishable by 12 months imprisonment, and contravened s 109(1)(b) of the National Law in that she failed to provide details on her registration renewal in May 2018 of having been charged with a criminal offence on 16 January 2018.
7. Complaint Four is that the practitioner is guilty of professional misconduct as defined in s 139E of the National Law. That complaint is based on two or more of the particulars of Complaint One or Complaint Two when taken together; Complaints One and Two when taken together; and the particulars of Complaints One, Two and Three when taken together.
8. The HCCC seeks the following orders: 1. Cancellation of the practitioner's registration; 2. Non-review period of three years; 3. Prohibition order to preclude the practitioner providing services as an assistant in nursing, in mental health services, and in aged care or nursing homes until such time as she is re-registered as a nurse; 4. Costs.
9. The practitioner acknowledges and accepts Complaints One and Two other than disputing the allegation that she did not repay the $110 used for her dental treatment; and she acknowledges and accepts Complaint Three and Complaint Four. She accepts the cancellation of her registration, and a three year non review period, and had no comment to make in response to the proposed prohibition order or the proposed order for costs.

The Tribunal proceedings

1. The practitioner lives in regional NSW. At her request the HCCC sent to her by email the documents on which it intended to rely, filed with the Tribunal on 18 May 2020. Those documents are substantial.
2. The practitioner had not provided a Reply or any documents in response to the Complaint. On the scheduled day of hearing, arranged to proceed by AVL, the HCCC representative informed the Tribunal that he had spoken to the practitioner on the previous Friday and that she was intending to appear by telephone. The HCCC had informed the practitioner by email of the protective orders it would be seeking. The HCCC representative had prepared written submissions, however those had not yet been sent to the practitioner or to the Tribunal.
3. The practitioner confirmed that she had received the HCCC documents electronically and read them. She understands that the HCCC is seeking orders that her registration be cancelled for three years and that she be prohibited from working as an AIN.
4. The practitioner wanted to proceed with the hearing. It became apparent that her only access to the documents on which the HCCC was relying, and on which she would be cross examined in oral evidence, was by accessing the documents individually through the email link on the phone which she was using to participate in the hearing.
5. Notwithstanding the practitioner's wish that the hearing proceed, the Tribunal formed the view that to do so when the practitioner could not readily access any of the HCCC documents in the course of the hearing would not facilitate a procedurally fair process. After discussion with the parties, the Tribunal adjourned the hearing to 6 July 2020, with directions for the HCCC to send to the practitioner a hard copy of its documents, together with its proposed protective orders and submissions, with an opportunity for the practitioner to provide a reply.
6. At a directions hearing on 1 July 2020 the practitioner confirmed that she had received the documents from the HCCC. The practitioner confirmed that an email sent on 24 June 2020 to the HCCC, and forwarded to the Tribunal, was her response to the complaints. The Tribunal confirmed that the hearing would proceed on 6 July 2020, to hear the evidence and submissions, including on penalty.
7. The hearing resumed on 6 July 2020, with the practitioner by telephone, the HCCC representative by AVL link, and the Tribunal panel by AVL and phone, and present in the hearing room.

The evidence

1. The HCCC relies on the documents filed on 18 May 2020 (exhibit A1), and evidentiary certificates relating to the practitioner's registration (ex A2).
2. The practitioner relied on her email of 24 June 2020 (ex R1), and gave sworn oral evidence.
3. In her email of 24 June 2020, the practitioner states: 1. Complaint One: she takes full responsibility for particulars 1, 2, 3, 5, 6, 8 and 9, and for particular 7 stands firm in her response that she had repaid the $110. She is deeply ashamed, she was anxious and afraid and without any support, and her actions have caused family breakdown and irreparable damage to family ties; 2. Complaint Two: she takes full responsibility for particulars 1 and 3, and maintains in relation to particular 2 that she repaid the amount of $110 the next day; 3. Complaint Three: it was a stressful time and she was dealing with multiple agencies and had fled to the country. It was at that time she failed to notify within 7 days, and automatically renewed her registration as she had for 17 years. She was not of sound mind, and feels remorse and shame, at the time she was not thinking or comprehending the outcomes; 4. Complaint Four: she acknowledges and accepts this complaint.
4. At the hearing the practitioner confirmed that she relies on that email.
5. The practitioner's oral evidence was that at the time of the events the subject of the complaint she was separated from her partner, and there were issues with physical, emotional and financial abuse. She was sleeping in her car, and on her own with no support. She did not feel protected at work, and did not feel able to ask for time off. She cannot explain why she did what she did, and feels ashamed. It will never happen again. She does not intend to work in nursing any more, and is thinking of going into foster care of Aboriginal children. Her family does not know what happened.
6. The practitioner stated that at the time she knew it was a fair amount of money. When asked whether she knew she was not supposed to take money from a patient the practitioner said she was in a hopeless place, and kept thinking she would pay it back. She intended to notify the Board and thought the Board knew of the charges. The practitioner was asked about completing her registration renewal in May 2018, and said that she was not convicted at that time and thought that she would tell them if she were convicted. In hindsight she knows she should have disclosed the charge but at the time she thought once the court case was over she would notify.
7. The practitioner was asked about the s 150 hearing, and said that she did not intentionally mislead the delegates about how much money she took. She was scared that day. The practitioner agreed that only nurses could access the patient's wallet with a key, however the drawers were not locked all the time. In October 2018 she did not tell the truth about how much money she had taken, because it was a stressful time and she wanted it over and done with. She knows it was wrong to tell the s 150 hearing that she did not know anything about the $14,000, but she was not thinking and had no support.
8. The practitioner said she stands by her statement that she repaid $110. She did not mention in her interview with police that she had repaid that money, it was insignificant to the whole amount and would not change anything. She cannot remember when she paid that money back, it would have been the next pay day, and she put the cash back in Patient A's wallet.
9. The practitioner stated that she was aware that Patient A had some problems with memory, was protective of his money, and delusional about being in poverty, and was not in a condition to be able to enter into financial agreements. The practitioner maintained that Patient A asked for receipts which she put in his cupboard or his wallet.
10. The practitioner stated that she is now basically stable in a home, and now knows there is no shame in in asking for help. In response to whether she might pose a risk to vulnerable people, the practitioner stated that she would never go back to where she was at the time.

Relevant legislation

1. Complaints One, Two and Three allege that the practitioner is guilty of unsatisfactory professional conduct, defined in s 139B of the National Law as follows: 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. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. Complaint Four is that the practitioner is guilty of professional misconduct, defined in s 139E: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
3. The general powers of the Tribunal, on a complaint being proven or admitted, are provided in s 149A of the National Law: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
4. HCCC seeks orders under s 149C(1)(b), (5) and (7) of the National Law: 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. … (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note - Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.
5. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). Due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, in making its findings the Tribunal is required to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order: Forster v Hunter New England Area Health Service [2010] NSWCA 106; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 at [135].

Patient A

1. The medical records in evidence (ex A1, tabs 43, 44) confirm that Patient A was admitted to Wyong Hospital on 8 December 2016 and discharged on 29 September 2017. The medical notes confirm (ex A1, tab 43, p 276) that on 22 February 2017 the practitioner and an occupational therapist went through Patient A's wallet to show him the contents, and that his wallet with change and a $10 note was kept in a locked drawer, and other cash ($280) was taken to the cashier. A social worker recorded that Patient A had a reasonable amount of money in his bank accounts, and his solicitor was managing his money.
2. In a statement dated 12 February 2018 (ex A1, tab 30) Dr Susil Stephen records that Patient A was admitted with a diagnosis of bipolar affective disorder, and the current episode was major depression associated with psychotic features. On examination in February 2017 Patient A had mood congruent delusions of poverty that he did not have any money, and was preoccupied with negative and nihilistic themes. Dr Stephen stated that Patient A was vulnerable to self-neglect due to poor self-care associated with his depressed mood and was also vulnerable to exploitation due to delusions of poverty and impaired decision making ability. At times Patient A was an involuntary patient, treated with ECT (ex A1, tab 43, p 229).
3. The observations as to Patient A's mood and medical treatment in the medical records in evidence support the assessment of Dr Stephen that Patient A had diminished decision making ability, and that Patient A was at times an involuntary patient in order that he could receive appropriate treatment.
4. Senior Constable McCulloch in a statement of 17 April 2018 recorded that on 27 June 2017 he attended the hospital, and attempted to speak with Patient A. In Patient A's wallet he located a piece of paper with a four digit number, which he believed to be the PIN, and could get no response from Patient A when he tried to question him about it.
5. The practitioner in oral evidence agreed that she was aware that Patient A had impaired cognitive capacity, and was protective of his money, and that he was delusional about being in poverty. The practitioner accepted that she knew or ought to have known that Patient A had memory recall problems and diminished decision making ability and judgment, and diminished insight into his financial position.
6. Particular 1 of Complaint One is established.

Practitioner accessing Patient A's account

1. The documentary evidence includes records of the transactions on Patient A's bank key card, which show 26 cash withdrawals of amounts between $200 to $700 in the period 28 February 2017 to 19 June 2017, totalling $14,352.00 (not including ATM fees). Those records correspond with the practitioner's work roster (ex A1, tab 11). The Tribunal is satisfied that the withdrawals were for the personal benefit of the practitioner, at a time when as she told NSW Police, she was going through a bad time and had family law issues (ex A1, tab 37, p 6). The practitioner used Patient A's card to pay $110 to a dentist on 1 May 2017 (ex A1, tab 36).
2. The practitioner was interviewed by NSW Police on 16 January 2018. In that interview (ex A1, tab 37) the practitioner admitted that she accessed Patient A's wallet in the locked drawer, having access to the key, and that she took the card home on occasion. The practitioner admitted to the cash transactions, and to using the card at the dentist. The practitioner is recorded as stating that Patient A offered her financial assistance, and that she would pay him back when she had a property settlement. The practitioner had not had a conversation with Patient A after he was discharged, and she was unaware that he had died in early December 2017. The practitioner stated she had taken advantage of his kindness.
3. While the practitioner told NSW Police, and the Tribunal, that she had put receipts for the transactions in Patient A's wallet, no receipts were found by NSW Police (ex A1, tab 37, p 10). The practitioner was not able to tell NSW Police when interviewed on 16 January 2018 how much she had withdrawn from Patient A's account, however she agreed it was a fair amount (p 17).
4. The practitioner has admitted that she used Patient A's bank card to pay $110 to her dentist, however she has denied particular 7 of Complaint One that she did not repay that money, and particular 2 of Complaint Two that she gave false and misleading information to the Council delegates in the s 150 hearing when she stated that she repaid that money.
5. The Tribunal does not accept the practitioner's evidence that she repaid the $110, for the following reasons. There was no mention of having repaid $110 in the interview with NSW Police on 16 January 2018. The practitioner stated in her oral evidence to the Tribunal that she repaid the $110, however she could not recall when she had done so. Her evidence was that she had not mentioned it in the NSW Police interview because it was insignificant. While the practitioner told the s 150 hearing that she had repaid the money at the next pay day (ex A1, tab 6, p 7), she was not able to confirm that in her evidence to the Tribunal. The practitioner's certainty in her oral evidence that she had repaid at least that amount, as a factor in her favour, was not consistent with her lack of recall as to when she had repaid the money, or her failure to mention that when interviewed by NSW Police.
6. The Tribunal does not accept the practitioner's explanation that Patient A knew she was withdrawing the funds. The hospital records state that on 26 June 2017 when told that money had been accessed from his bank account Patient A denied having any knowledge of the transactions stating he did not withdraw the money himself or give anyone permission to do so on his behalf, and nor did he give anyone access to his bank account (ex A1, tab 44, p 277). The medical records confirm that Patient A was protective of his money, and delusional that he was in poverty. The practitioner stated to NSW Police when interviewed on 16 January 2018 (ex A1, tab 37, p 15) that she did not think that what she had done in withdrawing half the funds in Patient A's account was right, and agreed with the proposition that what she had done was against the law: neither of which is consistent with having accessed the account with Patient A's permission. In her statement on that occasion there was no indication of any arrangement for repayment, or even whether the practitioner knew how much she had withdrawn. Even if the practitioner had discussed the matter with Patient A, the medical records, and the practitioner's acknowledgement that he had impaired cognitive capacity, cast doubt on whether Patient A was capable of consenting to any such arrangement.
7. The last withdrawal by the practitioner was on 19 June 2017. Based on the statement by Senior Constable McCulloch, Patient A's keycard was stopped, and cancelled on 23 June 2017. The practitioner told NSW Police that she stopped withdrawing money when Patient A got into a panic when the police came (ex A1, tab 37, pp 21-22). The medical records (ex A1, tab 44) confirm that the practitioner continued to be involved in care of Patient A after that time.
8. The Tribunal concludes that particulars 1, 2, 3, 4, 5, 6, 7 and 9 of Complaint One are established.
9. The NSW Health Code of Conduct and the Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia are in evidence (ex A1, tabs 40, 41). The Tribunal is satisfied that the practitioner's conduct breached clauses 4.2.1, 4.2.2, 4.2.3, 4.2.5 of the NSW Health Code of Conduct in that she did not avoid a situation giving rise to a pecuniary conflict of interest, and dealt with the finances of Patient A in circumstances that were not in his best interests, and her actions were influenced by self interest and personal gain; and that even if her explanation that Patient A knew of and agreed to the withdrawals could be accepted, she had accepted a gift that was more than a token expression of gratitude. Her conduct breached the provisions of the Board's Code of Conduct in that she did not respect the possessions and property of Patient A (Conduct Statement 3: 4), and that conduct was a breach of trust with a vulnerable person and involved a failure to maintain a professional boundary between herself and Patient A (Conduct Statement 8: 2, 3). Particular 8 of Complaint One is established.
10. The particulars of Complaint One are admitted, other than particular 7 in relation to the asserted repayment of $110. The practitioner admits she has not repaid any of the $14,325 withdrawn in cash. The Tribunal does not accept the practitioner's evidence that she repaid the $110. The particulars relied on in Complaint One are established. Complaint One is established.

Complaint Two

1. The practitioner participated in the hearing under s 150 of the National Law on 29 October 2018, held a matter of days after the criminal charges had been withdrawn. The transcript of that hearing is in evidence (ex A1, tab 6). The practitioner admitted to the Council delegates that she had borrowed $110 to assist in paying the dentist, saying she had paid that back, however denied knowing anything about the $14,000 withdrawn from Patient A's account. In response to several questions about that, the practitioner denied knowing anything about the $14,000, and referred to the fact that the charges had been withdrawn, saying "somebody's come forward or something and I was free to go".
2. That was, as the practitioner now concedes, incorrect. She had already admitted in her interview with NSW Police on 16 January 2018 to having withdrawn the funds from Patient A's account, knew at that time that the total was in the order of $14,000, and knew that she had not repaid any of that money.
3. The Tribunal is satisfied that the practitioner gave false and misleading information to the delegates of the Council in her statements that she only took $110 from Patient A, that she had repaid that money, and that she had no knowledge of the amounts withdrawn in cash from Patient A's account. The practitioner in her oral evidence to the Tribunal denied having intentionally misled the delegates, however when taken to her statements to the Council delegates that she did not know what happened to the money (ex A1, tab 6, pp 4, 6), stated that she was scared that day. She conceded in her evidence to the Tribunal that she did know that she had taken $14,000, and that the charges related to those withdrawals. The practitioner had in an email sent to the Council on 9 February 2018 stated that she accepted "full responsibility" for her actions; her repeated denial of knowledge of the $14,000 is inconsistent with having done so.
4. The Tribunal is satisfied that particulars 1, 2 and 3 of Complaint Two are established. Complaint Two is established.

Complaint Three

1. Section 130(1) of the National Law requires a health practitioner to give written notice to the National Board within 7 days of becoming aware that a relevant event has occurred, in this instance, being that she was charged with an offence punishable by 12 months imprisonment or more. The maximum penalty for a conviction of the offence under s 192E(1)(b) of the Crimes Act is imprisonment for 10 years.
2. Section 109(1)(b) of the National Law requires a practitioner to provide in their annual renewal of registration a statement that includes, among other things, details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration. The term "criminal history" is defined to mean every charge made against the person for an offence, as well as any conviction or finding of guilt.
3. The AHPRA has confirmed (ex A1, tab 39) that the practitioner did not advise AHPRA or the Board of the charge of 16 January 2018, and answered "No" in her response to the question whether there had been any change to her criminal history when she applied to renew her registration on 28 May 2018.
4. The Tribunal is satisfied that the practitioner breached s 130(1) and s 109(1)(b) of the National Law, and that Complaint Three is established.

Complaints One, Two and Three: Unsatisfactory Professional Conduct

1. Complaints One and Two allege that the practitioner is guilty of unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law, in that she engaged in improper or unethical conduct relating to the practice of her profession.
2. As discussed in Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [31], s139B(1) of the National Law begins with the words "Unsatisfactory professional conduct of a registered health practitioner includes each of the following". Paragraphs (a) to (k) set out different forms of conduct which are, by force of the section, unsatisfactory professional conduct. Paragraph (l) then provides that "[a]ny other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" is also unsatisfactory professional conduct. As the Tribunal noted, "it is arguable that the word 'other' in s 139B(1)(l) limits the operation of the provision to conduct not falling within s 139B(1)(a) to (k)".
3. The Tribunal in Achurch considered the terms "improper" and "unethical": 41. "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]).
4. In addressing Complaint One the Tribunal has found that the practitioner breached the provisions of the applicable codes of conduct, including the Board's Code of Conduct which is, as provided in s 41 of the National Law, evidence of what constitutes appropriate professional conduct or practice. The practitioner used Patient A's bank card to withdraw a substantial sum of money for her own use, on multiple occasions, and over a period of four months. Her use of the card ceased when the NSW Police became involved, and none of the money has been repaid. That conduct was both improper and unethical.
5. As found in Complaint Two, the practitioner gave false and misleading information to the Council delegates in the s 150 hearing. She had a duty to be honest and candid with the regulatory bodies, as an integral part of the proper functioning of the regulatory system. Her conduct in lying to the Council delegates was both improper and unethical: Health Care Complaints Commission v Hanna [2018] NSWCATOD 113 at [104]; Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [73].
6. Complaint Three relies on s139B(1)(b) of the National Law, which defines "unsatisfactory professional conduct" to include a contravention by the practitioner (whether by act or omission) of a provision of the National Law. The practitioner breached s 130(1) and s 109(1)(b) of the National Law. The practitioner's evidence to the Tribunal was that she thought the Board already knew about the charges, and that when she was completing her renewal application in May 2018 she thought she would notify if she were convicted. As discussed in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [27], the contravention by the practitioner of a provision of the National Law having been established as a matter of fact, that contravention is designated as unsatisfactory professional conduct, and the Tribunal has no discretion.
7. The practitioner is guilty of unsatisfactory professional conduct as alleged in each of Complaints One, Two and Three.

Complaint Four: Professional Misconduct

1. As held by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the term "professional misconduct" as defined in s 139E of the National Law does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. At [20] his Honour continued: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
2. The practitioner took advantage of an elderly patient who had multiple health issues, who was vulnerable to exploitation due to delusions of poverty and impaired decision making ability, and who was, to her knowledge, not in a position to be able to enter into financial agreements. Her misappropriation of funds from her patient occurred on multiple occasions, over four months. That conduct was, in terms used in Shrimpton at [82], "conduct of a nature which strikes at the heart of public confidence in the profession". The practitioner breached her obligations of honesty and candour to the regulatory authorities. The conduct found proven in Complaint One of itself, and when considered together with the conduct found proven in Complaints Two and Three, represent such a departure from the standards of conduct expected of a registered health practitioner, and to be of sufficiently serious nature, as to be characterised as professional misconduct within the definition in s 139E of the National Law.
3. The complaint of professional misconduct in Complaint Four is proved.

Protective Orders

1. The practitioner is guilty of unsatisfactory professional conduct, and professional misconduct. The Tribunal's powers to make orders are specified in s 149A of the National Law, and, as a consequence of the finding that the practitioner is guilty of professional misconduct, include under s 149C(1)(b) the power to cancel her registration, and under s 149C(5), the power to make a prohibition order.
2. The HCCC submits that the appropriate protective orders are: 1. An order under s 149C(1)(b) cancelling the practitioner's registration; 2. An order under s 149C(7) that an application for review of that order may not be made until after 3 years; and 3. A prohibition order under s 149C(5).
3. The HCCC submits that the practitioner's actions in taking money from a vulnerable patient, failing to notify the Board of the charges, and lying to the Council delegates, are all serious breaches of her obligations as a health practitioner. The HCCC relies on the findings of the Local Health District Misconduct Investigation Report (ex A1, tab 11) that the practitioner's actions as an enrolled nurse in a psychogeriatric unit had not only broken the safety and trust of the patients who, as a group are vulnerable and often have minimal family support, but had caused significant reputational damage to the hospital Mental Health Service and the Local Health District as a whole.
4. The HCCC submits that the practitioner's admissions in her email of 24 June 2020 were late, however accepts that they stand in her favour. A further factor in her favour is the number of years she has worked as a nurse without complaint.
5. The HCCC submits that the practitioner has not reflected on the harm caused by her to her patient or to the profession, and she has not provided any character or professional references which could evidence reform.
6. The practitioner accepts the cancellation of her registration and a non review period of three years, stating that she is deserving of that. She has reformed in her own way and in her heart of hearts, but has been unable to provide any references in support.
7. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(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. The protection of the health and safety of the public must be the paramount consideration: s 3A.
8. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
9. The finding of professional misconduct does not mean that an order under s 149C(4) must be made. The power to make any of the orders specified in s 149C is protective rather than punitive: Lee v Health Care Complaints Commission [2012] NSWCA 80.
10. The Tribunal considers that the following factors are relevant in determining what protective orders are warranted: 1. The practitioner's conduct was serious, involving a series of breaches of trust in her relationship with a vulnerable patient, and of her obligations to the regulatory authorities; 2. The practitioner not only failed to notify the regulatory authorities when she was charged, but provided false and misleading information to the Council delegates in circumstances where their duty under s 150 of the National Law was to consider appropriate steps for the protection of the health or safety of persons, and the public interest; and 3. While the practitioner has stated that she is ashamed of her actions, and that her conduct will not be repeated, her expressed concern in her evidence to the Tribunal was for the impact on herself and her family, who are unaware of her conduct. There was no reflection evident on the effects of her conduct on her patient or on the profession as a whole.
11. The Tribunal acknowledges, as does the HCCC, that the practitioner had 16 years' experience without complaint before her actions of 2017. She is confident that her circumstances have changed so that she will not in future find herself in the position she was in at that time. However, the Tribunal is troubled by the fact that the conduct occurred over an extended period of time and involved multiple breaches of the practitioner's professional obligations. The Tribunal is satisfied that in the interests of protecting the public from any harm that might be caused, in particular should the practitioner's circumstances change, and the general deterrence and maintenance of public confidence in the profession, the order sought by the HCCC for cancellation of the practitioner's registration should be made.
12. In the absence of any demonstrated steps towards remediation, or reflection, the Tribunal agrees that the practitioner should be precluded from applying for re-registration for a period of three years. That period is a minimum period within which she should not be able to practise her profession, thus sending a message to her, the profession and the public about the seriousness of her breach of professional standards. It also holds open to the practitioner the possibility that she may, with demonstrated rehabilitation and reformation, be able to return to the profession at some time: Chen v Health Care Complaints Commission [2017] NSWCA 186.
13. The HCCC also seeks an order under s 149C(5) of the National Law, which provides: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
14. The term "health services" is defined in s 5: health service includes the following services, whether provided as public or private services - (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services.
15. The Tribunal must be satisfied that the practitioner poses "a substantial risk to the health of members of the public" before it can consider whether a prohibition order should be made. That is a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75].
16. The Tribunal is satisfied that in the absence of demonstrated steps to reform, or genuine reflection on the seriousness of her conduct, there is a real risk of breach of trust and exploitation should the practitioner again be in difficult personal circumstances and in a situation of caring for a vulnerable patient or person. The prohibition order should be made in the terms sought by the HCCC, with the addition of disability services.
17. The HCCC seeks an order that the practitioner pay its costs of the proceedings. Clause 13 of Sch 5D of the National Law enables the Tribunal to make an order for payment of costs. The relevant principles applicable to the costs of the proceedings were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, and are that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. There is no disentitling conduct as on the part of the HCCC in its conduct of the proceedings. It is appropriate to order that the practitioner pay the costs of the HCCC.
18. The HCCC indicated that it would be seeking an order in a fixed amount, for its costs up until 26 May 2020, and requested an opportunity for submissions on such an order. The orders below include that opportunity.

Orders

1. The orders of the Tribunal are: 1. Pursuant to a finding of professional misconduct, the Respondent's registration as an enrolled nurse is cancelled from the date of this decision under s 149C(1)(b) of the Health Practitioner Regulation National Law; 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law, the Respondent is not to make any application for review of the cancellation of her registration for a period of three years from the date of this decision; 3. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law, the Respondent is prohibited from providing services as an assistant in nursing, in disability or mental health services, or in aged care homes or nursing homes, unless and until such time as she is registered as an enrolled nurse; 4. The Respondent is to pay the costs of the Health Care Complaints Commission, in a fixed amount, to be determined in accordance with the following directions: 1. The Health Care Complaints Commission is to provide to the Tribunal and the Respondent submissions as to the amount, and quantification of the basis, of costs sought in the proceedings, within 14 days of the date of these orders; 2. The Respondent is to provide to the Tribunal and the Health Care Complaints Commission any submissions in response to those submissions, within 14 days of the date of receiving the submissions of the Health Care Complaints Commission; 3. The parties' submissions are to include any submission as to whether a hearing is required on the costs application; 4. Subject to considering any such submissions, the Tribunal proposes to dispense with a hearing and determine the question of costs on the basis of the documents provided.

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: 09 November 2020