The Board submitted that the commission of the criminal offences constitutes professional misconduct, being incompatible with being a fit and proper person to be registered as a nurse, and that the respondent's failure to notify the Board as required by s 130 constitutes unprofessional conduct. The respondent declined to participate in the proceedings or to put in any written submissions and the Tribunal determined to proceed in her absence.

• The respondent behaved in a way that constituted professional misconduct in respect of her criminal conduct; and
• The respondent has behaved in a way that constitutes unprofessional conduct in respect of her failure on two occasions to comply with s 130 of the National Law.

Health practitioners - Complaint by the Nursing and Midwifery Board of Australia - Professional misconduct and unprofessional conduct - Criminal offences involving violence (unrelated to work) and failure to notify the Board of convictions or charges - standard of proof - Tribunal not bound by factual basis on which criminal court dealt with matter - Reprimand, registration cancelled and disqualified from applying for registration for 2 years

Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (Schedule 2) s 193

South Australian Civil and Administrative Tribunal Act 2013 s 39

Rajagopalan v Medical Board of South Australia [1998] SASC 7142

Rajagopalan v Medical Board of South Australia [1997] SASC 636

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

Carpenteri v Registrar of Firearms [2021] SCSA 27

Medical Board of Australia v Tunbridge [2020] SACAT 34

Craig v Medical Board of South Australia [2001] SASC 169

Nursing and Midwifery Board of Australia v Symons [2020] SACAT 8

Marin v Chiropractors Board of Australia [2020] SASCFC 74

Honey v Medical Practitioners Board of Victoria [2007] VCAT 526

The Tribunal prohibits the publication of the names of, or any material tending to identify, the victim of the assault by the respondent or any witness who provided a statement concerning the assault. This prohibition does not extend to the name or identity of the respondent or her partner.

1. This matter concerns disciplinary proceedings against Lesley-Ann Gardner, an enrolled nurse.

2. The Nursing and Midwifery Board of Australia (the Board) alleges that Ms Gardner has behaved in a way that constitutes professional misconduct. The allegations arise from events on 20 October 2018 when Ms Gardner engaged in violent conduct in a public place. This conduct led to her conviction and sentence in the Magistrates Court for serious offences.

3. Upon hearing of her pleas of guilty to these offences, the Board took immediate action against Ms Gardner on 13 November 2019 by suspending her registration. That suspension remains in force.

4. On 13 August 2020 the Board referred the allegations of professional misconduct to this Tribunal under s 193 of the Health Practitioner Regulation National Law (South Australia) (the National Law).[1] The matters referred embrace the criminal conduct and convictions and also breaches of s 130 of the National Law.

5. Ms Gardner has essentially declined to participate in these proceedings. She has made it clear that she has no intention or wish to attend a hearing of the allegations. She has been served with full details of the allegations and the substance of the evidence relied on by the Board. She has declined an invitation to file any material or submissions. It is appropriate to proceed in her absence. At the invitation of the Board, the Tribunal agreed to determine the matter on the papers.[2]

6. We have assigned exhibit numbers to the following materials which are relied upon by the Board:

Exhibit C1: Booklet entitled "Board's Material" filed 30 September 2020.

Exhibit C2: Complete copy of affidavit at page 137 of C1.[3]

Exhibit C3: Complete copy of affidavit at page 139 of C1.[4]

Exhibit C4: Booklet entitled "Board's Supplementary Materials" filed 19 January 2021.

Exhibit C6: Affidavit of Tracey Marie Hutchinson sworn 6 November 2020.

Exhibit C7: Affidavit of Eveline Olivia Rygorowicz sworn 30 October 2020.

7. It is for the Board to prove its allegations. The standard of proof in disciplinary proceedings is proof on the balance of probabilities, having regard to the Briginshaw principle.[5] This principle was explained by a plurality of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[6] as follows:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

8. The Tribunal is entitled to adopt, in its discretion, findings of a court,[7] but it is not bound by the factual basis upon which a criminal court may have dealt with a matter (Carpenteri v Registrar of Firearms [2021] SASC 27 at [29] - [34]. The Tribunal has before it in this case witness statements and other evidence that does not appear to have been before the Magistrate when he sentenced. The Magistrate received a Statement of Agreed Facts. We are not satisfied of the adequacy or accuracy of that Statement. We make findings of fact on the evidence before us.

9. We note the gravity of the allegations against Ms Gardner and the potentially serious consequences for her. Applying the above principles, we are comfortably satisfied of the following findings of fact.

10. Ms Gardner is 29 years of age. She was first registered as an enrolled nurse on 20 February 2017.

11. On 22 January 2020 Ms Gardner was convicted and sentenced in relation to two offences which occurred on 20 October 2018. She had previously entered guilty pleas. The first offence related to fighting with an unknown person in a public place. The second related to assault causing harm committed shortly afterwards on a person we shall refer to as AB.

12. The latter stages of both incidents were caught on mobile phone footage which is in evidence before the Tribunal.[8] The Tribunal has also received signed statements from AB, his partner, and two independent witnesses to the incidents.[9] We generally accept these statements as honest and reliable accounts. We rely particularly on the evidence of the independent witnesses.

13. On 21 October 2018 Ms Gardner attended a venue in the Adelaide CBD with her partner Mr Heaney. After leaving this venue they became involved in an incident with the passengers of a taxi. The taxi was stopped in traffic on Hindley Street. The passengers apparently called out to Ms Gardner "inappropriately". Mr Heaney approached the taxi and threw about four punches into the rear left passenger window of the taxi. He returned to the footpath and continued walking eastwards, passing AB and his partner who were also walking east.

14. Less than a minute later, the taxi was again stopped in traffic a short distance further east. Heaney approached the taxi again and threw about 11 punches into the left rear passenger window. Gardner also approached and threw a similar number of punches into the window. She was eventually pulled away by Heaney and the taxi drove off. There is a suggestion in the agreed facts that punches were thrown out of the window by the passengers and that it is unknown who threw the first punch. Even if we assume this to be so, it makes little difference to the nature of Ms Gardner's involvement. Ms Gardner approached the taxi where her partner was already involved in an altercation and the video evidence shows Ms Gardner throwing rapid and repeated punches towards a passenger seated in the taxi.

15. AB observed them fighting with the person in the taxi. They then started walking along the footpath ahead of AB and his partner. According to an independent witness, whose evidence we accept, AB said words to the effect that they should not be carrying on like that, that they were acting like idiots, and that they should go home.

16. Mr Heaney then turned around and punched AB a number of times to the head, causing him to fall to his knees. AB was unable to protect himself. Whilst he was kneeling and still being attacked or held by Mr Heaney, Ms Garner then kicked him forcefully in the face a number of times. The video footage shows Ms Gardner repeatedly and viciously kicking an obviously defenceless man.

17. When arrested, Ms Gardner claimed to police that AB had first "king-hit" Mr Heaney and that she had kicked AB in order to defend Mr Heaney. We totally reject that claim. The evidence proves to our complete satisfaction that the attack on AB was not provoked by any physical aggression on AB's part. The sentencing Magistrate stated to Ms Gardner and Mr Heaney:

So your night out had a serious impact upon someone who is entirely an innocent bystander in my view.[10]

We would independently come to the same conclusion on the evidence before us.

18. There is a suggestion in the Statement of Agreed Facts which was before the Magistrate that there had been an altercation between AB and Ms Gardner's friend as they left the nightclub. We make no such finding on the evidence before us. Even if that had been so, however, it would be of little relevance to the issues before us. On any view of the matter, Ms Gardner viciously and for no good reason attacked a defenceless man, causing serious injury.

19. When the Board gave notice in November 2019 of proposed immediate action and invited submissions from Ms Gardner, her response again asserted that she was acting in defence of her partner after AB had "king-hit" Mr Heaney.[11] We do not regard this as a truthful account.

20. The injuries suffered by AB were serious. The material before the Tribunal included photographs of the facial injuries.[12] Medical evidence establishes that he had severe swelling around his right eye, a subconjunctival haemorrhage, swelling around the left eye and abrasions on his knees.[13] He complained of headache and bilateral eye pain. He was unable to open his right eye and had reduced vision in both eyes. A CT scan revealed non-displaced fractures to the nasal bone, right sided orbital fractures, a fracture to the laminar papyracea (being the smooth , oblong bone plate in the skull), orbital floor fractures, and intra orbital emphysema associated with proptosis (bulging of the eye). He was provided with analgesia and antibiotics.[14]

21. AB had 15 weeks off work as a result of his injuries, causing significant financial distress for his family. He described in his victim impact statement the non-physical effects of the assault. He stated that he now "watches his back" and no longer goes out in big crowds or socialises outside of the home.[15]

(a) Convicted of the offence of fighting with an unknown person in a public place and was fined $180.00; and

(b) Convicted of the offence of assault causing harm and sentenced to imprisonment for a period of four months and six days, which sentence was suspended upon her entering into a bond to be of good behaviour.

23. AHPRA became aware of the criminal charges against Ms Gardner by way of notification from police. AHPRA advised Ms Gardner of this notification by letter dated 6 December 2018. Ms Gardner had failed to notify AHPRA of the charges against her within seven days[16] as required by s 130 of the National Law. This is a serious breach, which also formed part of the matters referred to this Tribunal under s 193.

24. Ms Gardner apologised for this breach by letter dated 11 January 2019. She indicated that she was now aware of her responsibilities.

25. After she was convicted and sentenced on 22 January 2020 Ms Gardner again failed to notify AHPRA within seven days as required by s 130 of the National Law. It is true that AHPRA had already been advised by police on 29 October 2019 of her guilty plea[17] and that she had confirmed this information on 11 November 2019,[18] but she was still required to advise of her later conviction on 22 January 2020. When Ms Gardner responded to correspondence from AHPRA on 1 April 2020,[19] she provided a copy of the Agreed Facts from the criminal matter but still did not advise that she had been convicted and sentenced. Her failure to give notice of the conviction was also the subject of the referral to the Tribunal.

26. The Board submits that the commission of the criminal offences constitutes professional misconduct. We so find. The behaviour of Ms Gardner on the night in question was inconsistent with her being a fit and proper person to be registered as an enrolled nurse. Her conduct was incompatible with the characteristics and behaviour to be expected of a member of a caring profession. The conduct was such as to bring the profession of nursing into serious disrepute. It was inconsistent with the Board's Code of Conduct and fell substantially below the standard of conduct to be expected of any enrolled nurse.

27. The Board submits that the breaches of s 130 of the National Law constitute unprofessional conduct. That is clearly so. We regard them as serious breaches which also impugn Ms Gardner's commitment to her professional responsibilities.

28. We consider it appropriate to have regard to the combined effect of the referred conduct. We find it to constitute professional misconduct.

29. In November 2019 Ms Gardner provided a response to AHPRA to which reference has previously been made.[20] In that response, she stated that she took full responsibility for her actions. However, she gave an account of the events that we have rejected as untrue. Ms Gardner stated that the events were not a true indication of her character. She was a hard-working young mother. She said that she would continue to dedicate time to her personal and professional development and wished to be the best role model she could be.

30. Ms Gardner also provided a letter to the magistrate at the time of sentencing. She accepted "full responsibility" for her conduct, expressed "sincere remorse for my irresponsible and dangerous actions", and apologised to AB. She referred to the fact that she had sought help from a clinical psychologist and was committed to her own personal development. We have regard to the totality of this letter. It is unfortunate, however, that Ms Gardner has not participated in these proceedings so that these matters could be updated and further explored.

31. Ms Gardner provided to AHPRA some character references from family and friends.[21] They speak of her commitment to her nursing career and her young family. She is said to be a person of compassion and kindness. It is suggested that the incidents were out of character.

32. It is clear that the persons who provided these references may have been provided with a less than accurate account of the incidents in question. Nonetheless, we take the references into account and give them such weight as is appropriate.

33. The material before the Magistrates Court also included a report of Dr Pam Carroll, Clinical Psychologist dated 16 December 2019.[22] Ms Gardner saw Dr Carroll for treatment on nine occasions from November 2018 to June 2019. Ms Gardner discontinued the treatment due to pregnancy and morning sickness and the pressures of caring for a young child.

34. At the initial session, Dr Carroll assessed that she was experiencing mild depression, moderate anxiety and extremely severe stress. This is not surprising so soon after her arrest on serious charges. Dr Carroll records that Ms Gardner reported a difficult childhood and a previous psychiatric diagnosis of borderline personality disorder. Dr Carroll assessed Ms Gardner as having "significant symptoms of trauma warranting intervention", and "emotional regulation difficulties".

35. She reports that Ms Gardner engaged meaningfully in treatment which was focussed primarily on emotional regulation skills, "healthy adult thinking", and couples skills building. The emotion of anger was specifically addressed. Ms Gardner regularly expressed her commitment to improving her behaviour.

36. Dr Carroll opined that Ms Gardner would benefit from "ongoing psychological intervention to support her emotionally moving forward, consolidate her new learning and prevent relapse". There is no evidence to suggest that such further treatment has occurred.

37. The purpose of disciplinary action is entirely protective and does not involve any element of punishment. The purposes for which disciplinary action may be imposed have been discussed in many cases and need not be restated here.[23] The Tribunal has recently reviewed some of the authorities in Medical Board of Australia v Tunbridge [2020] SACAT 34 at [19]-[24].

38. As Ms Gardner has not participated in these proceedings, we have been unable to make a properly informed assessment of her insight or contrition or her current fitness to practise. It is not apparent from the material before us that the obvious deficiencies of character and behaviour have been adequately addressed. There remains an unacceptable risk of further misconduct should Ms Gardner be permitted to return to practice. Given the seriousness of the conduct, and its inherent inconsistency with fitness to practise, we consider it inevitable that Ms Gardner's registration as an enrolled nurse must be cancelled.[24]

39. The Board submits that Ms Gardner should be disqualified from applying for registration as a health practitioner for a period of two years from the date of this order. We take into account that she has already been suspended for a period of about 18 months as a result of immediate action taken by the Board.

40. We impose a disqualification for a further period of two years. We consider this period appropriate in order to:

• - bring home to Ms Gardner and other members of the profession that such conduct is inconsistent with fitness to practise, will not be tolerated, and will be met with substantial sanctions.
• - Reassure the public that standards within the nursing profession will be maintained and the public will be protected from unsuitable practitioners
• - Allow Ms Gardner time to address the character flaws (and underlying mental health issues) which have led to her registration being cancelled and to demonstrate over a sustained period that this has occurred.

41. In other circumstances, we may have imposed a longer period of disqualification for conduct of this seriousness. However, in view of Ms Gardner's relatively young age and her inexperience as a nurse, and her professed desire to address the underlying issues, we are content to adopt the approach urged by the Board in its submissions. We make it clear that Ms Gardner will not automatically be able to return to practice after two years. That is the period after which she may apply to the Board for registration. She will need to convince the Board that she is then a fit and proper person to be registered.

42. Given the seriousness of the conduct, we also reprimand Ms Gardner.

43. The Board has sought an order for the costs of the proceedings and there is no basis upon which that can be resisted.

(a) The Tribunal decides pursuant to s 196(1) of the National Law that the respondent has behaved in a way that constitutes professional misconduct in respect of her conduct on 20 October 2018.

(b) The Tribunal decides pursuant to s 196(1) of the National Law that the respondent has behaved in a way that constitutes unprofessional conduct in respect of her failure on two occasions to comply with the provisions of s 130 of the National Law.

(e) Ms Gardner is disqualified from applying for registration as a health practitioner for a period of two years from the date of this order.

45. Ms Gardner is ordered to pay the costs of the Board to be agreed or fixed by the Tribunal.

46. The Tribunal prohibits the publication of the names of, or any material tending to identify, the victim of the assault by the respondent or any witness who provided a statement concerning the assault (save that this prohibition does not extend to the name or identity of the respondent or her partner, Mr Heaney).

[1] The National Law is found in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA).

[2] The panel convened for the limited purpose of viewing the video evidence.

[3] Pages of this affidavit were inadvertently omitted from C1.

[4] Pages of this affidavit were inadvertently omitted from C1.

[5] Rajagopalan v Medical Board of South Australia [1998] SASC 7142, affirming Debelle J in Rajagopalan v Medical Board of South Australia [1997] SASC 6363; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362-363.

[6] [1992] HCA 66; (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane and Gaudron JJ at 170-171.

[9] C1 at p 93, 97 and 139 respectively.

[16] Of her arrest and charge which occurred on 21 October 2018.

[23] Craig v Medical Board of South Australia [2001] SASC 169 at [41] - [48]; Nursing and Midwifery Board of Australia v Symons [2020] SACAT 8 at [50] - [51]; Marin v Chiropractors Board of Australia [2020] SASCFC 74 per Kourakis CJ at [73].

[24] See Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 at [43], [49]-[51].