Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 Hearing dates: On the papers Date of orders: 05 June 2020 Decision date: 05 June 2020 Jurisdiction: Occupational Division Before: J Millbank, Senior Member E Angel, Senior Member S Kennedy, Senior Member L Wrightson, General Member Decision: (1) Pursuant to a finding that the practitioner is unfit in the public interest to practise the profession of nursing, the practitioner's registration as a nurse is cancelled under s 149C(1)(c); (2) Pursuant to s 149C(5) of the National Law, the practitioner is prohibited from providing a health service as defined by s 4(a),(c),(f),(g),(h) of the Health Care Complaints Act 1993 (NSW), including but not limited to, working as an Assistant in Nursing, Personal Care assistant, disability support worker or as a counsellor, until such time as he is permitted to register as a nurse; (3) Pursuant to s 149C(7) of the National Law, the practitioner may not apply for a review of the above orders for a period of three years; (4) The respondent to pay the applicant's costs of these proceedings in the amount of $4000. Catchwords: TRADES AND PROFESSIONS – Nursing – criminal convictions – drug possession –drug supply – firearms offences – failure to notify of criminal convictions Legislation Cited: Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Michael Stephen Wood (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) No participation from Respondent File Number(s): 2019/00216740 Publication restriction: Nil. REASONS FOR DECISION Background 1. Mr Wood has been a registered nurse since 2014. The practitioner's registration has been suspended since July 2017. This matter arises from what appears to be a long-standing drug dependence, principally to methamphetamine, and the conduct of Mr Wood in subsequently selling illicit drugs to support his habit. 2. The practitioner has been the subject of multiple criminal convictions in recent years. These convictions were for the supply of prohibited drugs and possession of equipment to administer a prohibited drug (the August 2016 convictions), supply of prohibited drugs (the November 2017 convictions), firearms offences and supply of prohibited drug (the May 2018 convictions) and a further drug supply charge (July 2018 conviction). 3. The practitioner was subject to intensive corrections orders, conditional release orders, and, ultimately, a term of imprisonment. The Hearing and Issues 1. Complaint 1 is that the practitioner has been the subject of criminal convictions within the meaning of s 144(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), concerning the November 2017, and May and July 2018 convictions. 2. Complaint 2 is that the practitioner is guilty of unsatisfactory professional conduct within s 139B(1)(b) of the National Law by reason of contravention of s 130(1) of the National Law (requiring the notification of criminal charges, and criminal convictions), for failing to notify the Australian Health Practitioner Regulation Agency (AHPRA) of the November 2017, May and July 2018 convictions, and of the August 2016 charges as well as charges in June 2017 (that gave rise to the May and July 2018 convictions). There is no complaint of professional misconduct. 3. The practitioner did not respond to the Health Care Complaints Commission (HCCC) investigation and did not take any part in these proceedings. 4. The last involvement of the practitioner with regulators was an application by him in March 2018 to lift the suspension on his registration. The practitioner did not then file any material, attend a health assessment or attend the hearing to determine his application which was held shortly afterwards in May 2018. The Nursing and Midwifery Council of NSW (the Council) determined that the suspension should continue. 5. Evidentiary materials and NCAT hearing notices and directions were served upon the respondent's last known address and email address. 6. The matter came for hearing in May 2020 in the midst of COVID-19 restrictions. The Deputy President determined that the matter should be considered on the papers. The HCCC filed written submissions seeking an order of cancellation of the practitioner's registration pursuant to s 149C(1)(b) and (c) of the National Law, a three year non-review period, a prohibition order preventing the practitioner from working as an Assistant in Nursing while his registration is cancelled and costs in the fixed sum of $4000. 7. The issues to be determined are: * Are the complaints proved? * If so, what are the appropriate orders? * Whether the HCCC is entitled to costs. Proof of Complaints 1. The Tribunal is independently satisfied that both complaints are proved to the required standard. The evidentiary materials include the certificates of conviction, sentencing remarks and signed agreed statements of facts from the relevant criminal proceedings. This evidence is clearly sufficient to make out Complaint One. 2. There was also in evidence a criminal history report generated on 20 April 2020 by the NSW Police concerning the practitioner, which disclosed criminal offences which were not the subject of the complaint. These further offences concern charges in late 2018 of drug possession, supply and driving while illicit drugs present in the blood, and demanding property with menaces. While these matters were not particularised as part of the complaint, they are relevant to the protective orders as they affect our assessment of the risk that the practitioner poses to the health of the public. 3. Complaint Two is evidenced by a letter from AHPRA detailing the history of contact from the practitioner, including screen shots of his online contact with them. This demonstrates that the practitioner did notify AHPRA of the August 2016 charges, but did not do so within the required time (rather, it was some seven months later), and did not make any other notification concerning the other charges and convictions. 4. These breaches of s 130(1) of the National Law are proved to the required standard and fall by definition within the s 139B(1)(b) statutory provision on unsatisfactory professional conduct. 5. Duties of candour to professional regulators are extremely important to enable our health system to function and to protect the health and safety of the public. The delay in notification meant that the Council was not able to take protective action until July 2017, when it suspended the practitioner's registration as a result of s 150 proceedings. At that point in time the practitioner had been dependent on methamphetamines for around two or three years, and dealing in illicit drugs for at least one year. During some of that period the practitioner was working as a registered nurse. This delay in notification placed the public at significant risk. It also prevented the Council from being able to support and assist the practitioner, for example through conditional practice and a health pathway. Unfit in the public interest to practise 1. The National Law provides under s 149C(1) that the Tribunal may suspend or cancel a practitioner's registration if: (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; 1. It is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role, however where there is no nexus a more careful inquiry into the public interest factors may be required. There may be instances in which 'public interest' is taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences involving violence, sexual assault or the sexual exploitation of children, for example, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within them. 2. While we were not presented with any evidence that the practitioner consumed drugs while at work or was affected by drugs while working as a registered nurse, it is nevertheless likely that the practitioner's use of methamphetamines and other illicit drugs over such a prolonged period affected his ability to practise safely and competently and that the safety of his patients was put at risk. 3. Moreover through his actions in selling highly addictive illicit drugs within his community, the practitioner adversely affected the health and safety of the public. In sentencing remarks in one of the criminal proceedings the Judge referred to methamphetamines as a 'scourge' upon the community because of their devastating health and welfare effects, and we echo that concern here. 4. We find therefore that there is a close nexus between the criminal conduct and professional role and responsibilities, even though the charged conduct did not occur in the workplace. 5. In addition, the public interest of trust in the nursing profession is engaged by the nature and circumstances of these offences. The practitioner was convicted of supply as well as the use of methamphetamine, as well as other drugs, and of firearms offences. The serious nature of the offences, and the length of time over which they occurred, would cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a professional with such criminal convictions, unless there was very compelling evidence that he had since rehabilitated and reformed. There is no such evidence of rehabilitation here. The practitioner did not offer any evidence, as he did not participate in the proceedings and there was no opportunity to assess his current state of mind or attitude towards the offences. 6. The Tribunal was very concerned that the practitioner did not appear to have any insight into the dangerous nature of his conduct, and did not behave with candour in his dealings with regulators and other authorities. The criminal sentencing remarks and history of criminal convictions demonstrate that while awaiting sentence in the first set of criminal proceedings, the practitioner had in fact embarked on a further set of offences. Likewise, the practitioner, citing a lengthy period of residential rehabilitation, applied in 2018 for a review of his suspension, but by the time the hearing was convened a short time later, had been charged with further criminal offences. 7. Because of both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession of nursing, we find that the practitioner is unfit in the public interest to practise. Appropriate Protective Orders 1. The HCCC sought an order cancelling the practitioner's registration, a non-review period of three years, and a prohibition order preventing him from working as an Assistant in Nursing while his registration remained cancelled. 2. An order of cancellation is not in our view available under s 149C(1)(b) as there was no finding of professional misconduct. No complaint of professional misconduct was originally made by the HCCC, and the truncated nature of the proceedings meant that there was no opportunity for the complaint to be amended by leave or for the Tribunal to add to the complaint through its own motion in a procedurally fair manner. 3. An order of cancellation is however available under s 149(1)(c), and indeed our finding that the practitioner is unfit in the public interest to practise requires that such order be made. 4. Determining whether the higher threshold of substantial risk to health of members of the public is met, justifying the imposition of a prohibition order, is a more difficult task. A prohibition order should only be made where there is some basis to find that there is a possibility that the practitioner will engage in the provision of unregistered health services and place the public at substantial risk through so doing. In this matter there is no evidence of the practitioner's future employment plans because he has not participated in the proceedings. 5. We do find that there is a substantial risk to the health of members of the public because the last available evidence demonstrated that the practitioner was using and supplying a very dangerous illicit drug, handling firearms unlawfully, and misleading regulators. Mr Wood has faced further criminal charges since applying to have his suspension from practice lifted in 2018, indicating that at a time when he was prepared to put himself forward to the regulator as thoroughly reformed (and at that time intending to return to nursing), he was at best overly optimistic about his own rehabilitation, and at worst dishonest about ongoing criminal offending. 6. We rely upon our collective professional experience to take note of the risk that nurses who are deregistered or present a danger to the public ─ whether through drug dependence, dishonesty or lack of competence ─ not infrequently leave hospital settings to seek work in the aged care and disability sectors. Patients in those sectors are particularly vulnerable because of the combination of their own health status and the fact that care may be provided in institutional settings or in the patient's own home with lesser safeguards or oversight than would be available in hospitals. 7. For this reason we have framed the prohibition order in somewhat broader terms than that sought by the HCCC, to cover the provision of these kinds of care services. We have also included counselling services, given that the practitioner previously worked in a mental health unit and could utilise this experience to seek employment in that field. 8. The setting of a non-review period can signal to the profession and the public the seriousness with which professional misconduct or criminal conduct is judged, but also gives guidance to the practitioner on the period of time which the Tribunal believes will be necessary for them to demonstrate rehabilitation and/or remediation in order to base a possible application for review to return to practise. 9. In this instance the offences are very serious, numerous, and occurred over a long period. Moreover, as we have indicated above, we believe that public confidence as well as public safety would require a substantial period of reform and rehabilitation before the practitioner could be considered safe to practise. 10. For these reasons we find that a three year non-review period as requested by the HCCC is an appropriate period. 11. For the benefit of the practitioner, should he wish to return to nursing at a later point, we stress that the passage of time alone is not enough to ground an application for reinstatement to registration. When three years has passed the onus will be for Mr Wood to demonstrate, to a differently constituted Tribunal, that he has used that time to pursue serious and sustained actions required to regain the trust of the public and the profession. 12. Evidence of a period of abstinence from illicit drugs, such as through random periodic urine test or a hair analysis test, would very likely be regarded as relevant. However such evidence may, without more, still be insufficient to satisfy a later Tribunal that the practitioner could safely return to practise. This is because our findings in this decision rest on breaches of legal and ethical duties that go beyond the drug dependence itself. The supply of highly addictive illicit drugs, the firearms offences, the lack of candour with regulators and lack of engagement with these proceedings are all cause for grave concern about the practitioner's attitude towards public safety and his professional responsibilities as a nurse. Costs 1. The Tribunal were conducted efficiently by the HCCC, which was successful in its case. The applicant is entitled to its costs. 2. The HCCC filed an itemised list of its costs in the proceedings and we are satisfied that $4000 is an appropriate, indeed modest, sum. Orders 1. Pursuant to a finding that the practitioner is unfit in the public interest to practise the profession of nursing, the practitioner's registration as a nurse is cancelled under s 149C(1)(c); 2. Pursuant to s 149C(5) of the National Law, the practitioner is prohibited from providing a health service as defined by s 4(a),(c),(f),(g),(h) of the Health Care Complaints Act 1993 (NSW), including but not limited to, working as an Assistant in Nursing, Personal Care assistant, disability support worker or as a counsellor, until such time as he is permitted to register as a nurse; 3. Pursuant to s 149C(7) of the National Law, the practitioner may not apply for a review of the above orders for a period of three years; 4. The respondent to pay the applicant's costs of these proceedings in the amount of $4000. ********** 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: 05 June 2020