Health Care Complaints Commission v Whittle

Legal Principles

1. Section 3A of the National Law provides that "in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration".
2. The finding of professional misconduct exposes the Respondent to the possibility of his registration being suspended or cancelled, but that outcome is not automatic: Chen v Health Care Complaints Commission [2017] NSWCA 186, 95 NSWLR 334. The Tribunal's choice of appropriate order is a "matter of degree and judgment" (see, e.g. Sabag v Health Care Complaints Commission [2001] NSWCA 411, at [82]).
3. The Commission relied upon the following legal principles: 1. Section 3A of the National Law provides that "in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration". 2. Pursuant to s 149 of the National Law, the Tribunal has disciplinary powers in respect of a registered health practitioner if a complaint is proved or admitted. Those powers include the powers under section: 1. s 149A to caution, reprimand, counsel etc; 2. s 149B to fine a registered health practitioner, in certain cases; and 3. s 149C to suspend or cancel registration, in certain cases. 1. Section 149C of the National Law states, 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. … (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.
4. On the basis of our findings in our Decision the Commission seeks cancellation of the respondent's registration under s 149C.
5. Whether or not the misconduct is sufficiently serious to warrant cancellation or suspension depends on the circumstances of the individual case (Health Care Complaints Commission v Andrews (No 2) [2021] NSWCATOD 208).
6. Our attention was also drawn to the decision in Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202 in which it was emphasised that the power to make any of those orders is protective rather than punitive.
7. In Lee v Health Care Complaints Commission [2012] NSWCA 80 it was held as follows: [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards. (per Barrett JA with whom Macfarlan JA and Tobias AJA agreed)
8. In Health Care Complaints Commission v Do [2014] NSWCA 307 it was held that: [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. (per Meagher JA with whom Basten HA and Emmett JA agreed)
9. Earlier in Prakash v Health Care Complaints Commission [2006] NSWCA 153 Justice Basten had observed (at [91]) that: The purpose of any order consequent upon a finding that a complaint has been proved is said to be protected [sic] of the interests of the public at large but more particularly patients or potential patients of the Practitioner concerned. However, the public interests include indirectly the standing of the medical profession and the maintenance of public confidence in the high standards … of Practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other Practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards, be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted.
10. The application of section 149C(1)(c) of the National Law was also recently considered in the Tribunal in Health Care Complaints Commission v Russ [2021] NSWCATOD 5. Russ was cited with approval by the Tribunal, in Health Care Complaints Commission v Muthunesan [2021] NSWCATOD 178 (at [84). In Muthunesan the Tribunal set out the approach adopted in Russ as follows: [84] … a. the assessment is current rather than at the time of the offences, but is directed at the circumstances of the offence only: "The question for the decision-maker seeking to apply s 149C(1)(c), therefore, is whether the circumstances surrounding the relevant offence currently render the practitioner unfit to practise his or her profession in the public interest. The Tribunal must look back to the circumstances of 2018-19 and make that assessment in the present. Nonetheless, that evaluation has a narrow focus and is to be undertaken solely by reference to "the circumstances of the offence" - at [39]; b. the circumstances of the offence are broad, in keeping with the public protection purposes of the National Law. "The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances." - at [42] c. the public interest is also broad: "is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: - at [37], citing Pharmacy Council v Ibrahim [2020] NSWSC 708.
11. In respect of the claim for costs the Commission relies on clause 13 of the National Law and Health Care Complaints Commission v Philipiah [2013] NSWCA 342, at [42]-[46] where the principles applicable to an award of costs were discussed, the starting point being the general rule that costs in the Tribunal should follow the outcome. Costs orders are discretionary. Costs are not intended to punish an unsuccessful party.

Stage One Decision

1. In our Decision from the stage one proceedings we concluded that there was established four breaches of the National Law, each being unsatisfactory professional conduct. Given the serious nature of each of those breaches we were satisfied and found that the Respondent had been guilty of professional misconduct when considered together to justify suspension or cancellation of the Respondent's registration pursuant to s 139E.
2. For present purposes, we note that: 1. the Respondent's conduct the subject of the Decision was not in conformity with standards of professional conduct and practise of a registered nurse (at [116]); 2. the breaches of the conditions previously imposed on the Respondent: 1. were serious; 2. manifested themselves over a period of time; and 3. involved significant failures (at [117]); 1. the conduct as particularised in Complaint 1 of the complaint was 'completely unwarranted and unacceptable' (at [119]); 2. the physical contact by the Respondent on a female colleague which occurred on 22 and 23 June 2020, was very serious misconduct and amounted to unsatisfactory professional conduct (at [120]); and 3. the conduct described in Particulars 6 to 9 of Part B of the complaint was: 1. demeaning and hurtful; 2. without justification; and 3. conduct of sufficient seriousness to amount to unsatisfactory professional conduct (at [121]).

Gravity of the Professional Misconduct

1. The Applicant submitted before us that the Respondent's conduct was sufficiently serious to warrant cancellation. In support of this submission the Applicant relied upon the matters set out above and our findings that: 1. the Respondent was at all relevant times aware of the conditions applicable to his practise; 2. the breaches of the conditions imposed on the Respondent were serious; 3. the breaches of some conditions manifested over a long period of time; 4. the breaches of some of the conditions involved significant failures in respect of measures aimed at improving the Respondent's performance.

Remorse and Insight

1. Despite the Commission's attempts to engage the Respondent in stage one or stage two, the Respondent failed to attend to assist the Commission in its investigations and has chosen not to participate in the proceedings before us.
2. The Commission submits that it is available to the Tribunal to interpret the Respondent's failure to participate as a lack of contrition or a failure to take responsibility for his actions. We accept that submission.
3. In this regard, the Respondent's conduct continues to be below the standard expected of a registered nurse.
4. At the time of the established misconduct, the Respondent was an experienced nurse who knew, or ought to have known, that his conduct was inappropriate and contrary to professional standards.
5. In the absence of any response from the Respondent, there is no evidence before us as to any insight by the Respondent as to the seriousness of his conduct and we can have little confidence that he is unlikely, in the future, to again conduct himself in the manner the subject of the complaints found against him.

General Deterrence

1. In our view, this is a matter where general deterrence as identified in the cases we refer to above has a significant role to play. There is a need to make plain that the conduct the subject of our findings is not acceptable in the work environment, the hospitals where all nurses, health professionals and patients should be free from the types of conduct identified in this case.
2. There is also a need to protect the public from practitioners who fail to comply with specific conditions imposed on a practitioner's registration for the protection of the public, as was the case here.
3. There is, in our view, a need for the public to be assured that nurse practitioners will be held to account if they fail to uphold expected standards of moral and civil behaviour.

Cancellation

1. For the reasons set out above, and taking into account all the matters in our Decision, we have concluded that the Respondent's registration should be cancelled. In coming to that view we are conscious of the potential adverse effects on the Respondent from our decision but we are of the view that that is the only appropriate outcome in the circumstances of this case.

Non-Review Period

1. Given our conclusion to cancel the registration of the Respondent's registration we come to consider the order sought by the Commission that there also be imposed on the Respondent a non-review period of three years.
2. We agree that a non-review period should be imposed.
3. In the absence of evidence before us to assess this claim, such as the current personal circumstances of the 65-year-old Respondent, whether he will take steps to obtain guidance as to how he should conduct himself in the future, or whether he will in the near future be seeking employment again as a registered nurse, it is difficult to readily arrive at a suitable length of that period.
4. In the hearing we asked the Commission to justify the period of three years sought. Counsel for the Commission emphasised the following factors: 1. the Respondent was already the subject of conditions at the time of the conduct established in these proceedings; 2. the conduct established showed that he remained an overall risk; 3. the Respondent has failed to demonstrate remorse or to provide any evidence that he is able to remediate his behaviour; 4. the seriousness of the conduct and our earlier findings.
5. In the end, given the Respondent's age, and with a view to allowing a reasonable period for the Respondent to potentially work again as a registered nurse in the future, we decided that a non-review period of two and a half years is in all the circumstances appropriate and we shall so order.

Costs

1. In the exercise of our discretion we also order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law. Although the Commission failed to establish a breach of some of the conditions imposed on the Respondent's registration, that did not materially affect the overall outcome requiring, in our view, an adjustment to the general rule that costs should follow the event.

Orders

1. We make the following orders: 1. The registration of the Respondent is cancelled with effect from the date of this decision. 2. The Respondent shall not be entitled to apply for re-registration for a period of two and a half years from the date of this decision. 3. The Respondent shall pay the Applicant's costs as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2022