McPherson v Health Care Complaints Commission

NCAT Occupational|2024-02-26

reinstatement application - whether onus established - whether reformation and insight established Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448; [1967] 1 NSWR 357 Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106 Haber v Health Care Complaints Commission [2018] NSWCATOD 16 Health Care Complaints Commission v McPherson [2022] NSWCATOD 158 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 Ng v Health Care Complaints Commission [2018] NSWCATOD 105 Ristevski v Medical Council of NSW [2016] NSWCATOD 18 Category: Principal judgment Parties: Peter McPherson (Applicant) Health Care Complaints Commission (Respondent) Representation: Solicitors: NSW Nurses and Midwives' Association (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2023/00356388 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, publication or broadcast of the name of any victim mentioned or involved in these proceedings is prohibited.

REASONS FOR DECISION

On 9 November 2023, Peter McPherson ("Mr McPherson", "the Applicant" or "the practitioner") applied to the Tribunal under s 163B of the Health Practitioner Regulation National Law (NSW) ("the National Law") for review, seeking a reinstatement order so he could apply for re-registration as a registered nurse. In his application to the Tribunal, Mr McPherson stated as grounds for the application, that he is now entitled to apply to NCAT for an order for reinstatement to the register of nurses. He is wishing to re-apply for a nursing registration.

Background

On 6 December 2022, in proceedings brought by the Health Care Complaints Commission (the "HCCC"), this Tribunal ("the Tribunal") made findings that Complaint 1 of unsatisfactory professional conduct under s 139B(1)(l) of the National Law and 2 of professional misconduct under s 139E of the National Law were made out: Health Care Complaints Commission v McPherson [2022] NSWCATOD 158 ("the 2022 Decision"). The 2022 Decision records that Mr McPherson appeared in those proceedings. He gave oral evidence and answered questions. Mr McPherson partly admitted the particulars of the two complaints.
On 6 December 2022, the Tribunal cancelled Mr McPherson's registration and made orders that he not apply for return to the register for 6 months, and an order that he pay the costs of the HCCC.
The background to those proceedings was summarised in the 2022 Decision at [5] as follows: "5. The background to both complaints is that: (1) the practitioner completed a Bachelor of Nursing at the Australian Catholic University in 1999. He was first registered as a nurse on 15 December 1999. The practitioner obtained a Master of Mental Health Nursing from the University of Newcastle in August 2020 and was employed as a registered nurse at the Children's Hospital at Westmead (Children's Hospital) in December 2010; (2) on 11 November 2019, the practitioner was working in Hall Ward, an inpatient mental health unit, at the Children's Hospital. Patient A, a female aged 15 years, was an inpatient on the ward being treated for anorexia nervosa, obsessive compulsive disorder and anxiety. Patient A displayed aggressive behaviour towards the practitioner when she struck the practitioner to the head and face following a verbal exchange in circumstances where Patient A did not finish her breakfast meal within the allocated time."
The two Complaints are: "(1) Complaint One is that the practitioner is guilty of unsatisfactory professional conduct within the meaning of s 4 of the Act in that he: (i) has demonstrated that the knowledge, skill, judgement possessed, or care exercised, by the nurse is significantly below the standard reasonably expected of a nurse of an equivalent level of training and experience; and/or (ii) has been guilty of improper or unethical conduct relating to the practice of nursing."
It was alleged that the practitioner used his left hand to push the patient and then using both hands, pushed the patient causing her to be propelled through the air and falling. The practitioner was then alleged to have used inappropriate language towards the patient. These allegations are set out in the following particulars at paragraphs [6]-[7] and [11]-[12] of the 2022 Decision. "Complaint One 6. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law. 7. The Particulars of Complaint One are that: (1) on 11 November 2019, the practitioner, while working in the ward, used unreasonable force towards Patient A when he: (a) used his left hand to push Patient A away from himself and the open door at the Nurses Station; and then (b) used both hands to push Patient A, resulting in Patient A being propelled through the air until she landed on the floor on the right side of the corridor; (2) following the events set out above at Particular 1, the practitioner used inappropriate language towards Patient A when he: (a) called Patient A an "arsehole"; (b) stated words to the effect of "I knew you would carry on and make a big fuss … where do you want to do the tube, we can do it right here, you're going to get the tube and I will put it in whether you like it or not"; (c) stated words to the effect of "you may still need the tube inserted". … Complaint Two 11. Complaint Two is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 12. The Particulars of Complaint Two are: (1) Particular 1 of Complaint One individually; (2) Particulars 1 and 2 of Complaint One cumulatively."
Mr McPherson admitted Particular 1 of Complaint One. Mr McPherson denied Particulars 2 (a) and (b). He admitted Particular 2 (c). The Tribunal found Particular 1 proved. It found Particular 2 (a) was not established (incorrectly referred to as Particular 1 (a) in the 2022 Decision) and Particulars 2 (b) and (c) established. Mr McPherson submitted he was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law.
Mr McPherson admitted Complaint Two during the hearing.
A Cancellation order was made following findings of professional misconduct admitted by Mr McPherson at [44] of the 2022 Decision: "44. We agree with that admission as: (1) according to Patient A's account of events the practitioner pushed her "really hard" and "I flew and fell and hurt my left knee and right wrist"; having viewed the CCTV footage, the statement "I flew" was not exaggerated. There appears to be a considerable weight disparity between the practitioner and Patient A and CCTV2 shows Patient A having been thrown through the air then landing on the corridor floor; (2) according to the practitioner's account of events "I pushed her away from me down the hallway …it was a vigorous push … it resulting in her stumbling backwards, sideways and falling onto her backside down the hallway"; (3) we accept the Commission's submission that: (a) the pushing was excessive and unnecessary; (b) the practitioner could have used a hand to shield himself and moved away; (c) the practitioner had other available safe options (including verbal de-escalation, asking for assistance from his nursing colleagues, using his duress alarm, closing the door and calling for backup from the Eating Disorder Team)' (d) the pushing was contrary to the Code of Conduct; (4) the Commission's expert found the conduct the subject of Particulars 1(a) and (b) and Particular 2(b) and (c) to be significantly below the standard reasonably expected of a practitioner with equivalent training or experience."
The Tribunal accepted the HCCC's submissions at [48] of the 2022 Decision: "48. In addition, we accept the Commission's submissions that Particular 1 of Complaint Two (being the conduct the subject of Particular 1 of Complaint One) individually amounts to conduct of a sufficiently serious nature to justify suspension or cancellation because: (1) the practitioner was well qualified, having completed a Bachelor of Nursing in 1999; (2) the practitioner had ample experience as a registered nurse (he had worked at Concord Hospital in 2000-2003; at Westmead Children's Hospital in 2003-2004 and 2008-2010; at Orange Base Hospital in 2010-2017; (3) the practitioner had ample experience with difficult patients, including emergency patients at Westmead, "detoxing: patients at Orange and adolescent mental health patients in the Hall Ward) (4) the practitioner had ample (approximately 4 years') experience at the Hall Ward since 2015; (5) the practitioner had ample experience with challenging behaviours; patients in the Hall Ward have a broad range of disorders ranging from major depression to early onset psychosis, psychological disorders, autism spectrum and developmentally delayed patients with challenging behaviours; (6) the practitioner was the team leader on the day; (7) the practitioner had been allocated team leader on approximately 70% of his shifts; (8) the practitioner had already completed relevant training before the incident; (9) the practitioner was an experienced registered nurse who had worked in adolescent mental health since at least 2015, often in the position of team leader, so should have already had in place appropriate strategies and plans for managing escalations in behaviour of seriously ill adolescent patients; (10) the practitioner was familiar with Patient A, knew she had recently elbowed another staff member in the ribs, was aware that the patient had been physically aggressive, had access to her safety plan and was aware of her triggers."
The HCCC neither consents to nor opposes the practitioner's application for reinstatement. It is also 'neutral' as to whether any conditions should be placed upon the practitioner's registration.
The HCCC seeks its costs of the proceedings.
Mr McPherson opposes the requirement for conditions to be placed upon his registration should the Tribunal make a reinstatement order. He also opposes the Tribunal making a costs order in favour of the HCCC.

Relevant legislation

The powers of the Tribunal on a review under s 163B of the National Law are as follows: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order - (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if - (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.
These proceedings are not a re-hearing of the 2022 Decision to cancel Mr McPherson's registration as a nurse, or the order that he not seek re-registration for a period of 6 months. In conducting this review, the Tribunal cannot review the original decision, or any findings made in connection with the making of that decision: National Law, s 163C(2). The task of this Tribunal is to determine the appropriateness, at the time of the review, of the order concerned: s 163C(1).
The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16, the Tribunal stated (at [12]) the principles in the following terms: "12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of 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 (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42][;] Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to [a] former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance[:] Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is 'in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made': [Ameisen] at [24]. (7) It is not 'a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future'. The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]."
In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 ("Ng"), the Tribunal stated at [30]-[31]: "30. In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: '[A]n applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness.' 31. In that case, the Medical Tribunal also stated at [42]: '[T]he ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession.'"
We note that the fixing of the non-review period of 6 months by the Tribunal in 2022 does not necessarily mean that the Tribunal had at that time formed a fixed view that things would have changed by the end of that period. The purpose of such an order is to indicate the minimum period within which the Tribunal then considered the person should not be able to practise his or her profession, while holding open the possibility that an application for re-registration thereafter will at least be considered: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [22].
As noted in Ng at [29], the standard of proof is the civil standard, on the balance of probabilities. 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) 77 NSWLR 495; [2010] NSWCA 106; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66.
The role of the HCCC in these proceedings is to act as contradictor to test the evidence, to bring evidence itself where appropriate, and to assist the Tribunal with submissions: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155. The HCCC neither consents nor opposes this application. In oral submissions the HCCC said it takes a "neural" position.
The HCCC submits the following factors are in favour of reinstatement. Mr McPherson has demonstrated remorse and has apologised for his November 2019 conduct. He clearly understands that his behaviour was wrong and unnecessary. Mr McPherson has taken steps towards furthering his education and remaining connected to the profession following the 2019 incident. He has obtained a Masters of Mental Health Nursing from the university of Newcastle. He continued to be compliant with Continuing Professional Development (CPD) requirements for the years 2018-2019, 2019-2020, 2020-2021, 2021-2022 and 2022-2023. Mr McPherson has undertaken at the time of this hearing 13 of the 20 units required for the 2024 calendar year. His topics of study have included Ethics and Professional Standards, working with children and understanding vulnerable children and a two-day workshop in Domestic and family violence response training.
The HCCC contends the following matters of concern: 1. The repeated nature of the conduct; 2. the practitioner has lodged limited character/professional reference evidence; 3. there is an absence of evidence establishing fitness to practice; 4. the practitioner demonstrates poor insight/understanding of the cause of the conduct; and 5. consideration needs to be given to the practitioner working in an adolescent mental health unit, or similar type setting.
Mr McPherson contends that he has carefully read the 2022 Decision. He has demonstrated genuine insight into his conduct and remorse. Mr McPherson accepts that his behaviour fell well short of the standards expected of a member of the nursing profession and caused harm to a vulnerable patient. Following the November 2019 incident, he has taken steps to remediate his practice through education and counselling.
Mr McPherson contends that through education and counselling he is able to ensure that he will not engage in similar conduct again. He submits he is a fit and proper person to be reinstated as a registered nurse.
Mr McPherson contends that conditions on his registration are not necessary. He submits that he "can safely go back to practice and can ease back in without conditions". However, if the Tribunal considers conditions are appropriate Mr McPherson contends that any supervision should be indirect. If counselling is required, that the counsellor be a practitioner of his choice and reviewable by the Nursing and Midwifery Council of NSW. He contends that no limit should be placed on the hours he is able to work.

The Tribunal reinstatement proceedings

The hearing took place on 26 February 2024 for one day. Mr McPherson was represented by a solicitor from the NSW Nurses and Midwives' Association. The HCCC was represented by a solicitor advocate.
Mr McPherson relied upon material filed on 8 December 2023 - 65 pages (Ex A) and written submissions.
The HCCC filed and served bundles filed on 15 January 2023 - 187 pages (Ex 1), a supplementary bundle filed on 16 February 2024 - 145 pages (Ex 2) and a further supplementary bundle filed on 21 February 2024 - 76 pages (Ex 3). The HCCC relied on written submissions.

Mr McPherson's evidence

Mr McPherson is currently working shifts at Bunnings warehouse and participating in a handyman business.
In his statement of 16 December 2023, which Mr McPherson adopted under oath at the hearing, he said that he has carefully reviewed the 2022 Decision and the resulting orders as made by the Tribunal. Mr McPherson accepts he had "rightly" been found guilty of unsatisfactory professional conduct and professional misconduct as a result of his actions in November 2019, especially the use of unreasonable force against patient A.
Since November 2019 and following the 2022 decision, Mr McPherson has had time to reflect on his unsatisfactory professional conduct and professional misconduct. He says he is deeply ashamed and regretful of his behaviour, especially in the context of him being a senior registered nurse working in a mental health unit caring for a young and vulnerable patient who was depending on him to help her therapeutically. He recognises that his conduct was completely unnecessary in the circumstances and there are other ways in which he could have managed and engaged with patient A. Mr McPherson identified the following ways in which he could have done that: 1. taken more time with the patient and displayed empathy and caring; activating a duress alarm; 2. moving away from the area and calling for assistance; 3. better managing his own mental health and well-being; 4. being more understanding of patient A's illness; and 5. maintaining a personal awareness of the power imbalance present in the relationship.
In his oral evidence he provided the following reflection of how he would deal with a similar situation today: "I would step back, take more time with the client. Part of the scenario was patient A was an inpatient. I did not give the client enough space. I should have taken time to pause and think about what the best course of action was. That would be give the patient more time, delegate others to move on with the ward routine and call for assistance."
Mr McPherson said at the time of the November 2019 incident he had been showing signs of burnout. Consequently, he should have made changes to his daily living to address his daily presentation. Since identifying these shortcomings, Mr McPherson has improved his diet and sleep. He participates in daily meditation and undertakes regular exercise. Mr McPherson also said that he has experienced positive effects in his outlook and health generally. He regularly engages with his general practitioner about his health and well-being and has been engaging in sessions with a psychologist.
In cross-examination Mr McPherson was asked questions about his Curriculum Vitae he put before the Tribunal (Ex A1 tab 4). Mr McPherson has undertaken some work in the disability sector. He denied any complaints were made concerning his work during that time. Mr McPherson was asked if it occurred to him that he should have put a reference from these employers over the period of 2021- 2023 before the Tribunal. He said that it had not occurred to him, but, he was sure they would have provided a good reference.
Mr McPherson denied that he was not ready to return to the nursing profession and that he has started the process with the union for reinstatement soon after the six month exclusionary period.
Mr McPherson confirmed that on 7 December 2017, he was found guilty to a charge of common assault committed against his wife. He was dealt with by the court under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), being found guilty without proceeding to conviction and directed to enter into a good behaviour bond for 6 months. Mr McPherson said he reported this offence to AHPRA. He agreed that he was counselled by the Nursing and Midwifery Council following his self-reporting of this incident. He was counselled to reflect on the profession's codes of conduct and ethics and the way his behaviour may reflect on the nursing profession. Mr McPherson was also counselled on the importance of self-care and recommended to further develop his practice of meditation.
Mr McPherson agreed that he consulted with Dr David Luke for therapy in May 2020. He attended all sessions and participated fully. Mr McPherson was unable to recall what extenuating circumstances in his personal life has negatively impacted upon him, but told Dr Luke those circumstances had resolved. Importantly, in relation to the November 2019 incident, Dr Luke found Mr McPherson to be a "very insightful man and prior to this incident has managed his anger well". Mr McPherson said he had consulted Dr Luke because "I believed it was beneficial for me personally".
Mr McPherson said he was referred by Dr Liew, his general practitioner, to get a mental health plan because he could not pay for a psychologist. This was in answer to a question that the clinical notes refer to him being "advised by lawyer to seek BOIMH referral". He agreed that between June 2019 - June 2020 he did not see a psychiatrist. Mr McPherson agreed with the proposition that in June 2023, he consulted with Dr Liew to support this application and said, "to some degree, yes."
Mr McPherson agreed that in June 2019 he was doing 12 hour shifts that led to some "burn out", although at the time he did not recognise it. His diet and sleep were "poor" and he was not exercising. Mr McPherson said he now sleeps well, exercises and has improved his diet. He did not accept that limiting hours of work would be appropriate to reduce burnout now. This is because of the improvements he has made in his life. We accept his evidence.
Mr McPherson was not able to explain why, at the time of the November 2019 incident he did not activate the duress alarm, nor call for assistance. But on reflection he should have done so.
In re-examination Mr McPherson said he had encountered violence in his work on countless occasions, "it was common". He said he has de-escalated the situation on each occasion, except the November 2019 incident.
Mr McPherson said he was consulting with a Mr McNicol, psychologist from November through December 2023. He confirmed the report of Mr McNicol dated 21 November 2023 which records six telehealth consultations between 21 September 2023 to 21 November 2023.
We accept Mr McPherson as an honest and reliable witness.

Evidence of Bruce Gary

Mr Gary is a nurse and has provided a character reference dated 23 October 2023. He affirmed and adopted the statement. Mr Gary worked with Mr McPherson for eight years between 2011 to 2019. He has not worked with him since. Mr Gary said he was surprised with the particulars of the complaint. He describes the November 2019 incident as being out of character for Mr McPherson and has read the 2022 Decision and also the complaints. This weighs in Mr McPherson's favour.
We find Mr Gary to be a reliable witness and accept his evidence.

Evidence of Shane O'Rourke

Mr Shane O'Rourke is a registered nurse and has provided a character reference for Mr McPherson dated 22 October 2023. He affirmed and adopted the character reference and confirmed that he has read the 2022 Decision and the complaint. Mr O'Rourke said that in him speaking with Mr McPherson after the event he has never denied the circumstances and accepted responsibility.
Mr O'Rourke speaks of Mr McPhersons professional attitude towards his work as a nurse and his empathetic nature towards patients, his family and co-workers. He supports Mr McPherson being reinstated as a nurse. This weighs in Mr McPherson's favour.
Nothing in the cross-examination disturbed Mr O'Rourke's evidence.
We find Mr O'Rourke to be a reliable witness and accept his evidence.

Evidence concerning treatment and counselling

We have taken into consideration Dr Liew's report dated 23 November 2023 evidencing Mr McPherson having been referred for ongoing psychological support. He attended six sessions with another four which were planned. Mr McNicol produced a report dated 21 November 2023. Mr McNicol confirms Mr McPherson attended six sessions. His progress concerning depression, anxiety and stress on the Depression Anxiety and Stress Scale (DASS) is described as "normal". Mr McPherson has responded well to treatment and further sessions are recommended.
We have also considered the BOIMHC Mental Health assessment dated 8 April 2022 and reviewed regularly by Dr Liew. Mr McPherson was treated for anxiety and anger management.

The 2022 findings

As noted above, this review is not a rehearing of the decisions made in 2022 or the findings made in connection with the making of those decisions. However, in order to determine whether Mr McPherson has discharged the onus of demonstrating the reformation of character referred to in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448; [1967] 1 NSWR 357, so that the Tribunal can be satisfied that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, the Tribunal notes the following findings from the 2022 Decision at [57]-[59]: "57. Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling the practitioner's registration. Objectively, his professional misconduct is of such a serious nature that the only appropriate disciplinary order is the cancellation of his registration. Any order short of deregistration would be an inadequate response to the seriousness of his misconduct. 58. We have come to that conclusion given the objective seriousness of the conduct, because of the necessity to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated, and to maintain public confidence in the profession. 59. At the time of the incident Patient A was a 15-year-old young woman suffering from anorexia nervosa. She had been admitted into Ward Hall as a voluntary patient under the provisions of the Mental Health Act 2007 (NSW) following increasing aggression on a day program. This occurred on a background of worsening eating disorder cognitions including compulsive exercise, hiding food and purging."
The Tribunal went on to find at [61]-[63]: "61. The fundamental issue for the Tribunal is that any patient attends hospital for treatment and care. That includes treatment and care from nurses who are obliged under the Nursing and Midwifery Board of Australia Code of Conduct to: • practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession (cl 1.2); • provide safe, person-centred and evidence-based practice for the health and wellbeing of people (cl 2); • provide leadership to ensure the delivery of safe and quality care and understand their professional responsibility to protect people (cl 2.1); and • embody integrity, honesty, respect and compassion (cl 4). 62. By his actions on 11 November 2019, the practitioner fundamentally failed to fulfill these obligations. Far from being treated ethically, safely, respectfully and compassionately, Patient A was flung across a corridor with considerable force by a nurse, in a place where she was supposed to be treated, protected and cared for. 63. And, to paraphrase the opinions of the Commissions' expert Ms Martin, the practitioner: • Should have known that mealtimes were likely to lead to anxiety and distress and should have provided understanding and encouragement to Patient A; • broke the therapeutic relationship between nurse and patient by using nasogastric feeding as a punitive measure; • did not display clinical leadership; and • did not display genuine care or concern and breached professional boundaries."
We have taken into consideration that the practitioner has admitted his wrongdoing and demonstrated remorse and apologised for his conduct. This weighs in his favour.
The practitioner has undertaken further studies and obtained a master's degree. This weighs also in his favour. He has undertaken a further review of the ethics expected of a nurse, the relevant codes of conduct and how his prior conduct has breached those codes and where his behaviour crossed various boundaries and thresholds in terms of the delivery of a safe and purposeful therapeutic relationship expected of patients, the nursing profession and the public. The practitioner has reflected on his conduct and demonstrates reformation. He participated in an appropriate way in these proceedings and did not attempt to minimise his prior conduct. Cancellation no longer remains appropriate. This is because we are satisfied that the practitioner has taken sufficient steps to improve his knowledge, education and reformation of character which in our view is suitable to return to the practice of nursing. In making this finding we have taken into consideration the submissions of both parties and the HCCC's submission that it neither consents nor opposes the application for reinstatement.
We are also satisfied that the practitioner through counselling and professional services has identified the changes he needed to make in terms of his general health well-being and lifestyle. He has continued with that treatment and we accept his evidence in respect of the positive changes he has made to his life. We are also confident that the conduct of the practitioner was out of character particularly in terms of the matters set out in the evidence of Mr Gary and Mr O'Rourke. We are satisfied that the practitioner has shown clear proof that he has established himself as a different person.
We have taken into consideration the 2017 common assault charge regarding the practitioners then wife. We accept the 2019 conduct cannot in itself be described as an isolated incident when also considering the 2017 conduct. However, these two incidents are the only circumstances that relate to the practitioner's momentary loss in him appropriately managing a stressful situation. We have considered the totality of the practitioner's criminal history and workplace incidents. In doing so, there are two incidents of aggression, or violence, namely the 2017 and 2019 incidents. In our view they can each be considered as two isolated incidents. This is consistent with both the practitioner's and the character evidence discussed above.
We declined to draw an inference that the practitioner was not able to obtain references from more recent employers following the 2022 decision. We accept the practitioner's evidence that he did not turn his mind to doing so. However, if he did, he believed those character references would have weighed in his favour.
We have taken into consideration the HCCC's submissions that the reports and notes of Dr Liew should be considered with some caution. We find that the reports of Dr Liew indicate that the practitioner was regularly visiting his General practitioner for ongoing review of his mental health and also with the assistance of Mr McNicol. We accept the practitioner's evidence that he was limited in terms of some of the treatment he was able to obtain due to financial reasons. However, Mr McNicol and Dr Liew shows that the practitioner was a willing participant in ongoing treatment in relation to his mental health and general well-being. In the report of 23 November 2023, Dr Liew recommended another four sessions of treatment with Mr McNicol. We accept the practitioner's evidence that he continues ongoing treatment with Mr McNicol and Dr Liew.
Considering all of the factual material and evidence before us, we are satisfied that the practitioner has established the requisite onus.

Conditions of reinstatement

In deciding to reinstate the practitioner's registration the HCCC proposed the following workable conditions be imposed. Mr McPherson does not support any conditions, but should the Tribunal decide conditions are required, he will comply with them. We find, at least at this time, conditions are reasonable and necessary for the protection of the public. This is because Mr McPherson has not worked as a registered nurse for over three years. He may face difficulties adjusting to a new workplace and returning to nursing practice given the lapse of time. Supervision conditions will protect the public during this period of adjustment. The following conditions are imposed on the practitioner as follows: 1. To advise the Nursing and Midwifery Council of NSW in writing at least seven days prior to changing the nature or place of practice. 2. Not to practise as the sole practitioner or practitioner in charge. 3. To practise under indirect supervision in accordance with the Nursing and Midwifery Council of NSW supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. 1. To nominate a supervisor for approval by the Nursing and Midwifery Council of NSW within 14 days of commencing work, or as specified by the Council. 2. To authorise the approved supervisor to provide written reports to the Nursing and Midwifery Council of NSW at quarterly intervals, or as specified by the Council. 1. To authorise the Nursing and Midwifery Council of NSW to provide proposed and approved supervisors with a copy of this decision which imposed this condition and a copy of the private conditions on the practitioner's registration. 2. To attend for treatment by a general practitioner of the practitioner's choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in the health status (including a significant temporary change). 1. must provide the Nursing and Midwifery Council of NSW with the professional details of the treating practitioner/s. 1. To attend for treatment by a psychologist of the practitioner's choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in the health status (including a significant temporary change). 1. must provide the Nursing and Midwifery Council of NSW with the professional details of the treating practitioner/s.
We are satisfied the practitioner can be trusted to comply with these conditions, such that there is no substantial risk of working in health services in the future.

Costs

The HCCC seeks an order that Mr McPherson pay its costs of these proceedings. Mr McPherson opposes a costs order being made. He submits that he has not engaged in any conduct that would warrant a costs order being made.
The Tribunal's power to order costs, as conferred by Sch 5D cl 13 of the National Law, in the context of an application for a reinstatement order and given the role of the HCCC in such proceedings, was discussed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. At [87] of that decision, the Tribunal concluded: "87. … A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused."
As was the case in Ristevski, in this application the HCCC proceeded in an appropriate way. The Tribunal concludes that an order that Mr McPherson pay the costs of the HCCC should be made.

Orders

The orders of the Tribunal are: 1. Pursuant to s 163B of the Health Practitioner Regulation National Law (the National Law) a reinstatement order is made in respect of Peter McPherson (the practitioner) subject to the following conditions: 1. To advise the Nursing and Midwifery Council of NSW in writing at least seven days prior to changing the nature or place of practice. 2. Not to practise as the sole practitioner or practitioner in charge. 3. To practise under indirect supervision in accordance with the Nursing and Midwifery Council of NSW supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. 1. To nominate a supervisor for approval by the Nursing and Midwifery Council of NSW within 14 days of commencing work, or as specified by the Council. 2. To authorise the approved supervisor to provide written reports to the Nursing and Midwifery Council of NSW at quarterly intervals, or as specified by the Council. 1. To authorise the Nursing and Midwifery Council of NSW to provide proposed and approved supervisors with a copy of this decision which imposed this condition and a copy of the private conditions on the practitioner's registration. 2. To attend for treatment by a general practitioner of the practitioner's choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in the health status (including a significant temporary change). 1. must provide the Nursing and Midwifery Council of NSW with the professional details of the treating practitioner/s. 1. To attend for treatment by a psychologist of the practitioner's choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in the health status (including a significant temporary change). 1. must provide the Nursing and Midwifery Council of NSW with the professional details of the treating practitioner/s. 1. The Nursing and Midwifery Council of NSW is the appropriate review body in respect of Order (1) of these orders. 2. In the event that the practitioner resides other than in New South Wales then ss 125-127A of the National Law shall apply. 3. The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to the application as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

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: 17 July 2024

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