Health Care Complaints Commission v Vega

BACKGROUND

1. The Tribunal refers to its decision in HCCC v Vega [2015] NSWCATOD 62. The findings made in relation to the Complaints and Particulars are set out in that decision, as is the background material in relation to this matter.
2. The Tribunal found that the Complaints against Mr Vega were proven. He assaulted an elderly woman in his care at Nepean Hospital. The assault was sexual in nature in that Mr Vega touched the patient on and inside her vagina. He also attempted to influence a colleague in relation to the evidence she would provide to the Hospital during its investigation of this incident.
3. The Tribunal was satisfied that his conduct constituted professional misconduct of the most serious kind. Mr Vega breached his ethical responsibilities and abused the trust residing in him as a member of the nursing profession.

The Commission's submissions

1. The Commission stressed the seriousness of Mr Vega's professional misconduct, by making the following points:

• The maintenance of boundaries between patient and nurse is a long and well-established principle of nursing practice.
• Patient A's circumstances made her particularly vulnerable.
• Patient A was assaulted (sexual in nature) by the Respondent.
• Such behaviour is entirely contrary to the public's expectation of nurses and the care shown by members of the nursing profession to their patients.
• The Respondent breached his ethical responsibilities and abused the trust residing in him as a member of the nursing profession.
• It is hard to imagine a more serious level of abuse than a sexual assault of a vulnerable 89-year-old woman who is ill in hospital and requiring nursing care.
• The Respondent also sought to influence the information his colleague would provide to the Hospital, presumably in an attempt to prevent a genuine investigation of the allegations against him and with the aim of avoiding the personal and professional consequences of his actions.

1. The Commission also noted that Mr Vega acknowledged, "It is accepted that if the Tribunal were comfortably satisfied that the respondent either touched Patient A on her vagina or touched Patient A inside her vagina then such conduct would satisfy the definition of professional misconduct. Such conduct would constitute a gross betrayal of patient trust and be a deliberate departure from the accepted standards of the profession."
2. The Commission proposes that Mr Vega's registration be cancelled that he not be eligible to seek a review of that decision for a period of three years. The Commission also submits that the Respondent poses a substantial risk to the health of members of the public thus satisfying the test for a Prohibition Order as set out in section 149 C (5) of the National law.

Mr Vega's submissions

1. On 27 November 2015 Mr Vega provided written submissions. He stated, "The Respondent seeks that there be no protective and ancillary orders made following the judgement of the Tribunal on 29 June 2015 until the appeal to the Supreme Court of New South Wales against the decision has been determined. The Respondent submits that the conditions that are currently in place on the Respondents registration would provide sufficient protection to the public whilst the appeal is being determined."
2. Mr Vega declined to make a formal substantive submission in relation to the issues relevant to the making of protective orders on the basis that "to do so would be contrary to his rights of an appeal which seek to set aside the findings of the Tribunal."
3. On 12 March 2016 the Respondent's solicitor advised the Tribunal that the stay order made by Campbell J had been discharged. No advice was provided in relation to the status of the appeal. The letter stated, "We are instructed to advise the Tribunal of the following in relation to the 'Stage 2' submissions: In circumstances of the findings of the Tribunal, the Respondent declines to be heard."

The Tribunal's Decision

1. Mr Vega's conduct was disgraceful. He assaulted a particularly vulnerable elderly woman. The assault was sexual in nature in that he inappropriately touched her on and inside her vagina. He did so under the guise of providing her with nursing care and at a time when she was physically unwell and requiring care and support.
2. Not only was Mr Vega's conduct in relation to Patient A very serious misconduct, he also attempted to influence a colleague in relation to the information she would provide to Nepean Hospital in its investigation of the incident. The Tribunal did not consider him to be a truthful witness and his personal and professional integrity remains questionable.
3. Mr Vega has not accepted his wrongdoing and has not expressed remorse or contrition. There is no evidence that he has any insight into the seriousness of his misconduct nor has he provided any evidence that he has taken steps to address his professional misconduct.
4. In making orders under the National Law, the paramount consideration for the Tribunal is the protection of the health and safety of the public.
5. The Commission submits that this can be achieved by the cancellation of Mr Vega's registration. Mr Vega submits that making any orders is not appropriate while his appeal is on foot and suggests that the conditions currently on his registration provide sufficient protection for the public.
6. The Tribunal notes that when the appeal was first made it appeared to have been lodged in the wrong forum, in the Court of Appeal registry. However, Mr Vega obtained a stay of proceedings in the Supreme Court and his submissions refer to an appeal to be heard by the Supreme Court, so this issue has presumably now been remedied.
7. Mr Vega has not provided the Tribunal with a copy of the Appeal or any information in relation to its progress. He has not provided evidence as to the likely timeframe for the appeal to be determined and the Tribunal is reluctant to leave a decision as to protective orders in abeyance for an unspecified period of time, given considerations of public health and safety, as well as the requirements of the New South Wales Civil and Administrative Tribunal Act which require the Tribunal to act in a timely and efficient manner.
8. The Tribunal does not accept the contention that concluding the hearing and making protective orders prejudices the Respondent's appeal. It might be said, should the appeal be successful, that time and resources have been expended unnecessarily in relation to the Stage 2 hearing, however, any such concern has been minimised by the fact that Stage 2 was conducted by way of written submissions only.
9. Conditions were imposed on Mr Vega's registration, by the Nursing and Midwifery Council, following section 150 proceedings in August 2013. These conditions, amongst other things, prevent Mr Vega from providing nursing care to female patients in any practice setting. They also require that he practise under supervision and not work alone.
10. While the current conditions may prevent Mr Vega from repeating the professional misconduct which occurred with Patient A, those conditions will cease to operate with the decision of the Tribunal. S150H of the National Law relevantly provides that conditions imposed by a Council under section 150 have effect until the disposal of the complaint about the registered health practitioner.
11. In addition, the need to protect the standing of the nursing profession and to deter other practitioners from similar misconduct requires action be taken by the Tribunal. The protection of the public includes not only taking action to prevent a repetition of the misconduct by Mr Vega, but discouraging others from engaging in such behaviour, as well as safeguarding the reputation of the nursing profession and fostering the confidence and trust the public should be able to have in the profession and the regulation of the profession.
12. For these reasons and given the seriousness of Mr Vega's misconduct, the Tribunal is satisfied that it is appropriate to cancel his registration.
13. Mr Vega should not be eligible to apply for a review of the cancellation order for a period of four years from the date of this decision. The period of time before which a review of a cancellation order can be made, should allow a practitioner the opportunity to reflect on his behaviour, come to an understanding of the nature and seriousness of his misconduct, undertake ethical training or other relevant professional development activities and develop the requisite contrition and remorse.
14. The Tribunal has limited confidence in Mr Vega's ability to achieve this kind of remediation given he has not acknowledged his misconduct and consequently lacks insight into the seriousness of his ethical failings. In the present circumstances it is unlikely Mr Vega will begin to appropriately reflect on his conduct in the immediate future and accordingly a period of some years is required to afford him adequate opportunity to address his misconduct and undertake a process of remediation.
15. The Tribunal notes the Commission's proposal in relation to the review period. The Tribunal operates as an expert body, consisting of senior members of the nursing profession as well as a community representative and senior lawyer, and is entitled to make its own assessment of the time needed for Mr Vega to effect meaningful remediation as a nurse. In Mr Vega's circumstances the Tribunal considers that a period of four years is appropriate.
16. If Mr Vega seeks re-registration, he should, amongst other things, address his suitability to be re-instated to the Register by demonstrating he fully understands the significance of his actions and shows appropriate remorse. He may be assisted in achieving this by undertaking personal therapy or professional counselling, as well as ethical training and other relevant professional development.
17. The Tribunal is also satisfied that at present Mr Vega poses a substantial risk to the health of members of the public and considers it appropriate to prohibit him from providing a range of health services in accordance with section 149 C (5) of the National law. It would not be appropriate for Mr Vega to provide any support or carer services in the community, outside of a formal nursing role, involving elderly or otherwise vulnerable people.
18. The Tribunal also reprimands Mr Vega in the strongest possible terms.

Costs

1. The Commission sought an order that the Respondent pay the Commission's costs. Mr Vega made no submissions in relation to costs.
2. The Commission referred the Tribunal to the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342. That decision provides authority for the proposition that as a general rule the costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule.
3. In addition, the court pointed out that the practitioner in that case could have made admissions as to professional misconduct when notified of the complaints, but chose not to do so. Emmett JA stated, "The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner."
4. The Tribunal considers that in all the circumstances of this case, the Commission is entitled to an order that the Respondent pay its costs in relation to the proceedings. 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: 06 April 2016