Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 48, 57, 65

Health Practitioner Regulation National Law (ACT) ss 3, 5, 39, 195

Work Health and Safety Act 2011 s 33

Cases cited: Health Care Complaints Commission v Gahan [2021] NSWCATOD 40

Health Care Complaints Commission v Howe [2010] NSWMT 12

Health Care Complaints Commission v Marks [2021] NSWCATOD 151

Nursing and Midwifery Board of Australia v Gardner [2021] SACAT 29

Nursing and Midwifery Board of Australia v Herzog [2020] SACAT 117

Nursing and Midwifery Board of Australia v Mura   [2019] VCAT 393

Nursing and Midwifery Board of Australia v Sellen  [2020] QCAT 318

1. The respondent is reprimanded.
2. The respondent's registration is cancelled and he is disqualified from applying for registration as a registered health practitioner for 12 months from today's date.
3. The respondent is prohibited from providing any health service involving the provision of care to persons in aged care or disability care, including as an aged care worker or disability support worker for 24 months.
4. The respondent pay the Board's costs of these proceedings on a party/party basis at the Supreme Court of the ACT scale, in an amount to be agreed or failing agreement, to be assessed by the Tribunal.

1. This case concerns the actions of a registered nurse who also worked as a disability support worker for a private company. In this second role, the nurse left a severely disabled client unaccompanied in his car in the middle of summer for over an hour. This fact was discovered by a third party who was able to break into the vehicle and alert police. The nurse was convicted for his actions. Subsequently, the Nursing and Midwifery Board of Australia (the Board) filed an application for disciplinary action with this Tribunal.
2. On 29 September 2022 I delivered the Tribunal's oral reasons. Paragraphs 3 to 54 below are from the reasons I delivered on this date as transcribed, with editing to add case references and remove slips of the tongue and infelicities of expression.
3. On 4 May 2022 the Tribunal determined that the respondent nurse had engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the Health Practitioner Regulation National Law (ACT) (the National Law).
4. This section defines such conduct as:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

...

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. This order was made by the Tribunal following proposed consent orders filed by the parties.
2. We commend the nurse's actions in reaching this agreed position with the Board.
3. The conduct which led to the board filing its application for disciplinary action in this Tribunal was extremely serious. The facts in issue are not disputed, the parties having filed an agreed statement of facts with the consent orders. This document replicates an agreed statement of facts tendered in the Magistrates Court as a result of the nurse being prosecuted for his conduct of 28 January 2020.
4. As, very appropriately, an order was made on 28 January 2022 that there be no publication of details which may identify any person to whom an allegation relates, other than the nurse, the tribunal will only refer to the individual the nurse was caring for on the day of the conduct, as the client. A later decision dealt with the nurse's application for suppression of his name. This application was refused on 9 February 2022.

(a) The respondent worked at a residential disability care home. On 28 January 2020 he commenced his shift which included caring for a client who suffers from a severe intellectual disability (including an inability to verbally communicate), diabetes, scoliosis, and severe epilepsy. The client is non-verbal, has no dexterity or fine motor movement in his hands and is wholly reliant upon others for daily living including for eating, drinking, washing, dressing, toileting, showering, walking, etc. Under his home' care plans, the client is required to be under 24-hour supervision.

(b) The respondent drove himself and the client from the residential care home in a minivan to an activity at Black Mountain. At some stage during this outing from the residential care home, the nurse drove himself and the client to the nurse's home. The nurse entered his home and left the client in the van. The van's rear windows could not be opened. Due to his disabilities, the client was unable to unlock the van, open the van's doors, or take off his seatbelt.

(c) Around 9:00am, a member of the public observed the client in the back seat, hunched over and rocking back and forth. He observed the front passenger windows were down approximately 4-5 centimetres. Around 10:20am, this same person returned to his parked vehicle and observed that the client was in the same position and appeared to be groggy. He alerted another person who called the police. He also pushed on the front window and opened the van from the inside. He felt a wave of heat escape the vehicle when he opened the door. The client was slumped forward. His tongue was hanging out with saliva rolling off it. He was wearing trackpants and woollen gloves.

(d) Sometime after the police arrived the respondent attended the vehicle. The nurse appeared to be confused and drowsy, was unresponsive and had puffy eyes. He said that he had left the client for five minutes. He also said the client had juice poppers in the van. Police found the juice boxes in the front of the van. The client could not reach or hold them due to his disabilities.

1. The nurse was working as a disability support worker when the conduct occurred not as a registered nurse. This does not prevent the Tribunal considering his conduct under the National Law. We note that the definition of professional misconduct in the National Law specifically refers to conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not. Additionally, the Code of Conduct for Nurses (Code) which we will examine in more detail below, notes that the Code's principles apply to any work where a nurse uses nursing skills and knowledge, whether paid or unpaid, clinical or non-clinical. Further, the Code prescribes that involvement by a nurse in unlawful behaviour may amount to professional misconduct.
2. We note that during the Magistrates Court hearing the nurse's lawyer told Magistrate Theakston that with his nursing qualifications Mr Deeranyika was well aware of the client's needs.
3. Finally, there have been numerous decisions involving health practitioners found to have engaged in professional misconduct for conduct in which they engaged outside their profession. An example is Nursing and Midwifery Board of Australia v Gardner.[1] In any event, the nurse in this case has not challenged the Board's application in this case. His lawyers did assert in written submissions that "the connection [of their client's conduct] to the profession of nursing was slight."[2]

1. The nurse was convicted in the ACT Magistrates Court, following his guilty plea, for failing to comply with a work health and safety duty, category 3 offence, contrary to section 33 of the Work Health and Safety Act 2011 (ACT).
2. The Tribunal agrees with the Board's submission that it did not need to revisit this conviction in making our determination under the National Law. We note that this approach is consistent with that taken by earlier tribunals hearing occupational disciplinary matters under the National Law and also that taken by other courts where earlier criminal convictions have not been questioned in matters involving review of immigration decisions.
3. In the absence of an appeal overturning the conviction, it is appropriate that this Tribunal accepts the conviction's occurrence.

1. In addition to constituting a criminal offense, the nurse's conduct also breached the Code which the Board has adopted pursuant to section 39 of the National Law.
2. In terms of the application of the Code, it notes:

The principles of the code apply to all types of nursing practice in all contexts. This includes any work where a nurse uses nursing skills and knowledge, whether paid or unpaid, clinical or non-clinical. This includes work in the areas of clinical care, clinical leadership, clinical governance responsibilities, education, research, administration, management, advisory roles, regulation or policy development. The code also applies to all settings where a nurse may engage in these activities, including face-to-face, publications, or via online or electronic means.

1.2 Lawful behaviour > > Nurses 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. Nurses must > > ...

1. not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration, and

Nurses apply person-centred and evidence-based decision-making, and have a responsibility to ensure the delivery of safe and quality care...

1. On 5 July the Tribunal heard the parties' submissions on the protective orders which should follow a finding that the nurse's conduct on 28 January 2020 constituted professional misconduct.
2. The Board sought:

(a) that the practitioner receives a reprimand;

(b) that his registration be cancelled and he be prohibited from reapplying for registration for two years;

(c) that he be prohibited from providing any health service involving the provision of care to persons in aged care or disability care, such as an aged care worker or disability support worker until he is registered as a health practitioner under the National Law; and

(d) costs.

(a) That he be reprimanded.

(b) That he undertakes a program of education approved by the board including safe practice in working with people with disabilities and ethical and legal responsibilities of registered nurses.

(c) That he be suspended for three months.

(d) That he be prohibited from providing any health service to persons in aged care or disability care for two years.

(d) That he be subject to supervision for a year.

(e) That he pay a fine of $2,000.00.

(f) That no costs order be made.

1. One of the key objectives of national registration and accreditation as detailed in section 3(2)(a) of the National Law is that the scheme provides for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.
2. Section 3(3) provides that one of the guiding principles of the scheme is that restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
3. That is, the scheme's purpose is not to be punitive. Safety of the public is the paramount consideration.
4. Section 65(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) details that the following matters must be considered by the Tribunal in making occupational disciplinary orders, such as are sought in this matter:

(a) Whether the person took reasonable steps to avoid the action (the contravention) that is the ground for occupational discipline.

(b) Whether occupational discipline has previously been used against the person for a similar act.

(c) Whether the person has taken steps to mitigate the effect of the contravention.

(d) The impact of the contravention on any other person.

(e) The likelihood that the person will act in a way that is a ground for occupational discipline in the future.

(f) Whether the entity bringing the application has applied for particular occupational discipline to be used and, if so, the kind of occupational discipline applied for.

1. Pursuant to section 65(4) of the ACAT Act, the tribunal may consider any other relevant matter.
2. Looking at the factors above, we do not consider that the nurse took reasonable steps to avoid the conduct that is the subject of the application. We note his explanation of being unwell which led to him driving the client to his home so he could obtain medication and use his bathroom. This does not explain why the nurse did not contact a manager to report his ill-health or take the client into his home if there were no colleagues available to provide assistance.
3. There have been no other previous applications for disciplinary action against the nurse.
4. While we note the nurse's evidence of undertaking various training modules in an attempt to gain further education and training, we also take account of the Board's submission that much of this training appears to be a requirement of the ACT Government for the nurse's current employment at a correctional facility. This does not detract from the potential benefits of such training but minimises a little this being viewed as positive steps taken by the nurse to mitigate the effect of the contravention.
5. We have also considered the impact of the nurse's conduct on the client. While the medical evidence provided was that he did not appear to suffer any long term physical harm due to being left in a hot car for eighty minutes or so without fluid, the psychological implications of this action are unknown.
6. While we would hope and perhaps anticipate that after his prosecution and this action that the likelihood of the nurse acting in a way that is a ground for occupational discipline in the future is slim, we are not certain of this. The Tribunal considers that the nurse's actions on 28 January 2020 demonstrates seriously defective decision-making and a disregard for the client's most fundamental needs. He failed to consider the client's extreme vulnerability in leaving him in his car. Put simply, he put his own needs in front of his client's. The nurse has also not expressed what he could have done differently on that date.
7. We have also found it difficult to assess the nurse's insight into the serious nature of the incident. In part this is due to him providing different versions of key details of the incident on 28 January 2020. It concerned us that a letter from the nurse tendered at the protective orders hearing included a statement that he had left the client "with the windows halfway winded down" and that he "believed" that he left the client for "30-40 minutes".[3]
8. We note that paragraphs 8 and 9 of the agreed statement of facts lodged in the Magistrates Court and tendered in this tribunal detail that the nurse left the client unattended in the vehicle for at least 80 minutes based on when a third party, who ultimately called the police, first saw the client and when he found the client still in the vehicle on checking again later that morning. Paragraph 8 also includes the agreed fact that the front passenger windows of the vehicle were lowered approximately 4-5 cm, not halfway down.
9. Given these two facts, critical in terms of the potential risk to the client, were admitted by the nurse in the agreed statement of facts, we are concerned that the letter tendered has contrary information that is more favourable to the nurse. This also follows the nurse giving different details of the time he left the client to the police and to Worksafe ACT.
10. This suggests a lack of honesty from the nurse or at best, a carelessness with the truth, which leads us to consider that there remains a risk to the public. We were also not satisfied after the hearing that the nurse fully appreciated the risks posed to the client from his conduct. He seemed to focus on the fact that the client did not appear to have any significant health issues after the incident. It does not show a recognition of the high risks to the client of the time restrained in a hot car in the middle of summer including the risk of seizures. It also shows a failure to appreciate the potential psychological impact on the client of being left alone as he was.
11. The tribunal additionally has a role in protecting the public through deterring other practitioners from engaging in similar conduct as the nurse in these proceedings. It is important that public confidence in the profession is maintained and that high professional standards are fostered. This has been stated in many decisions including Health Care Complaints Commission v Howe.[4]
12. In terms of orders about future education which could require the nurse to provide a reflective practice report demonstrating understanding of managing legal and ethical obligations in working with people with disabilities, the Tribunal notes that no specific course was identified by the nurse and the Board advised that it was not aware of any training which would meet this specific objective. The Tribunal also agrees with the Board's submission that even if such a course could be identified it does not appear to address the issue of the nurse's critical decision-making skills and how to respond to a crisis, which appears to be at the core of his conduct.
13. We acknowledge that the Board has not detailed any other complaints about the nurse's conduct prior to or since the conduct in question. Further, while the Tribunal has some sympathy with the nurse's submission that he had been registered for less than two years at the time of the conduct and was relatively unsupervised in his disability support worker role, we also consider that leaving a highly vulnerable client in a car for 80 or more minutes, particularly in the middle of summer, is such a gross departure from appropriate care of the client that inexperience or lack of supervision does not explain or justify his conduct.
14. Given the complete vulnerability of the client, who was supposed to receive 24-hour supervision, coupled with the potential for serious harm to have occurred due to him being left in a car in the middle of summer without access to proper ventilation and liquid, the tribunal considers that there should be a period of time in which the nurse is unable to practice. The Tribunal considers that a disqualification order is appropriate in this case rather than suspension, given the significant risk of the nurse's conduct to the client's health and well-being. We also consider the Board should make an assessment of whether the nurse should be re-registered rather than this automatically occurring after a suspension period has passed.
15. We further order pursuant to section 66(2) of the ACAT Act that the nurse is disqualified from applying for registration from the Board for a period of 12 months.
16. While each case clearly turns on its own facts, the Tribunal has considered a number of other recent decisions involving protective orders where serious misconduct has been found. In the decision of Nursing and Midwifery Board of Australia v Herzog, the South Australian Civil and Administrative Tribunal disqualified the nurse for four months after she had admitted her conduct of forging prescriptions and obtaining medication without a valid script due to her ongoing substance abuse.[5] In that case the inexperienced nurse pleaded guilty to the criminal charges laid. The South Australian Civil and Administrative Tribunal also took account of the disadvantages and significant adverse consequences she had already suffered as a result of her own conduct, including public embarrassment, loss of employment, and financial loss.
17. For also misappropriating drugs for her own use as well as having been convicted of common assault and contravening an Apprehended Violence Order, the nurse respondent in Health Care Complaints Commission v Gahan[6] was disqualified for 12 months.
18. In Nursing and Midwifery Board of Australia v Sellen[7] the Queensland Civil and Administrative Tribunal disqualified the nurse respondent from applying for registration for six months after the complainant suffered serious injury from the respondent's physical assault of her. In that case the nurse pleaded guilty to three charges in the district court.
19. In these cases the nurses had also undergone a period of suspension prior to the disciplinary hearing.
20. In the decision of Health Care Complaints Commission v Marks, the NSW Civil and Administrative Tribunal disqualified a nurse, with over a decade's experience nursing from applying for registration for two years due to conduct in relation to caring for two patients.[8] The tribunal noted :

... in all the circumstances the misconduct of the respondent as particularised in the Complaints is so serious that it must call into question her competency to practice nursing safely, and her commitment to the health, welfare and safety of her patients. This is compounded by the fact that the respondent was the nurse in charge[9]

in respect to the first patient covered by the complaint. Unlike this matter, the nurse did not provide any explanation for her conduct or participate in the proceedings and had surrendered her registration.

1. In Nursing and Midwifery Board of Australia v Mura, the nurse's conduct resulted in 36 convictions, including for theft from a hospital and dishonestly obtaining medical supplies.[10] It was also alleged that she was intoxicated while on duty. The Victorian Civil and Administrative Tribunal disqualified the nurse, with over 20 years' experience nursing from applying for registration for two years.
2. The Tribunal also considers a prohibition order is appropriate in this case restricting the nurse from working in this sector for two years. Residents in aged care or disability support homes facilities are amongst the most vulnerable in our community. The nurse himself did not oppose this order being made. His lack of critical thinking, insight and honesty, lead us to consider that it is not appropriate that he works in the sectors for this time.

1. The Board has sought its legal costs in written submissions filed. Section 48 of the ACAT Act provides that the parties to an application must bear their own costs unless the ACAT Act otherwise provides or the Tribunal otherwise orders. Section 57 of the ACAT Act details that an authorising law may set out the powers of the tribunal, and the decisions it may make under the authorising law. The Tribunal's power to hear and determine applications involving members of health professions falling under the national registration scheme comes from the National Law. As such, it is an authorising law, contemplated by section 57 of the ACAT Act setting out the powers and decisions the tribunal may make.
2. Section 195 of the National Law gives guidance to the Tribunal in considering costs in providing that the Tribunal may make any order about costs it considers appropriate for the proceedings. As such, it gives the Tribunal a discretion in relation to costs orders.
3. The Board's application for disciplinary orders has been granted against the nurse. The Tribunal considers it appropriate that in such circumstances the Board should receive an order for costs.
4. The Tribunal notes that the requirement for a full hearing on the characterisation of the nurse's conduct was removed due to the nurse's agreement with the board on this issue and also due to the inclusion of the Statement of Agreed Facts. As detailed, the nurse should be commended for this and this action should have reduced the quantum of the Board's costs significantly.
5. In the circumstances, the Tribunal is satisfied that the nurse should pay the Board's costs of these proceedings on a party/party basis at the Supreme Court of the ACT scale, in an amount to be agreed or failing agreement, to be assessed by the Tribunal.

[1] [2021] SACAT 29

[2] Respondent's Summary of Argument on Sanction dated 23 June 2022 , page 8

[3] Apology letter to the Tribunal, attachment to Respondent's Summary of Argument on Sanction dated 23 June 2022

[4] [2010] NSWMT 12

[5] [2020] SACAT 117

[6] [2021] NSWCATOD 40

[7] [2020] QCAT 318

[8] [2021] NSWCATOD 151

[9] Health Care Complaints Commission v Marks [2021] NSWCATOD 151 at [63]

[10] [2019] VCAT 393