Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Richards [2020] NSWCATOD 61 Hearing dates: 27 May 2020 Date of orders: 27 May 2020 Decision date: 27 May 2020 Jurisdiction: Occupational Division Before: J O'Meally AM RFD, Principal Member D Armitage, Senior Member L Carlin, Senior Member A Gray, General Member Decision: (1) The respondent is reprimanded. (2) The respondent is satisfactorily to complete an ethics course focusing on ethical and professional obligations approved by the Nursing and Midwifery Council of New South Wales within six (6) months of commencing work as a nurse/midwife in Australia or as specified by the Council. (a) Within two (2) weeks of being notified that the course is approved, the practitioner must provide evidence to the Council of enrolment in the specified or approved course. (b) Within four (4) weeks of completing the specified or approved course, the practitioner is to provide documentary evidence of satisfactory completion to the Council. (3) The respondent shall pay the applicant's costs as agreed or assessed. Catchwords: PROFESSIONS AND TRADES – health care professionals – nurses – act of dishonesty – removal of credit card from colleague's handbag in nurses' locker room – credit card not used – unsatisfactory professional conduct – professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Bianca Richards (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) No appearance by Respondent File Number(s): 2020/00014000 Publication restriction: Nil. REASONS FOR DECISION 1. PRINCIPAL MEMBER O'MEALLY: This is an application by the Health Care Complaints Commission (the applicant) seeking orders in relation to the conduct of Bianca Richards (the respondent). 2. The respondent did not appear in person or otherwise before the Tribunal. Nevertheless, it has been established that she had proper notice of all documents relied upon by the applicant and proper notice of the orders it seeks. 3. The facts we are to consider are not significantly, if at all, in dispute. 4. It is appropriate at this stage that we remind ourselves that these proceedings are not punitive. We are to consider the safety of the public and discourage conduct of the type that is alleged against the respondent. It is also appropriate to note that we must be comfortably satisfied that the allegations have been established. See Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. 5. As said, the facts are not in dispute. On the evening of 10 May 2017 the respondent, who was then working as an enrolled nurse at Broken Hill Hospital, finished her shift at about midnight and then entered the nurses' locker room where she noticed that the door to one of the lockers was accessible. Inside she saw a handbag and a wallet. She removed a credit card from the wallet and took it from the premises. The respondent asserts the locker door was open. There is other evidence that the locker was closed with a key in it. In our view the difference in immaterial. A credit card was removed by the respondent and it is that conduct we are considering. 6. The next morning the owner of the credit card noticed it was missing and reported that fact. Enquiries were made of the respondent concerning the removal of the credit card. Initially she denied that she was responsible, but subsequently admitted it. 7. It is upon those facts that the applicant seeks a finding that the respondent was guilty of unsatisfactory professional conduct and professional misconduct. 8. A great deal of material has been placed before us but we think it unnecessary to refer to much of it. This is because the facts are not really in dispute. 9. It is appropriate at this stage to note that before proceedings were instituted in the Tribunal the respondent was invited to appear before the Nursing and Midwifery Council of New South Wales. There were several attempts by the Council to engage with her and the respondent failed to participate. In respect of these failures she gave a variety of reasons. Those reasons are set out in material exhibited before us. In due course the Council, in her absence, made an order imposing conditions. 10. Those conditions were, "[t]he registrant", that is the respondent, "must not work as an enrolled nurse (Division 2) until reviewed by the Nursing and Midwifery Council of New South Wales and this condition is removed". It is also relevant to note that following the event, and an internal investigation, her employment at the Broken Hill Hospital was terminated. 11. The respondent does not dispute any of the relevant facts alleged against her. She does, however, deny that her conduct amounted to unsatisfactory professional conduct or professional misconduct. She has, however, put nothing before us in support of her denial. 12. In an email of 16 November 2018 the respondent wrote to Christine Mudliar, an Investigations Officer with the applicant, in which, among other things, she said, "I finished my shift at 2400 hours, then I walked into the crew room (tea room) where the lockers are kept. I then saw a locker with a handbag in it. I then removed a colleague credit card out of there(sic) wallet which was in there(sic) handbag I then went home. That next morning on 11 May 2017 I got a phone call from Zoey Tonkin, the NUM in charged(sic) and asked me if I removed it, I said no. I then rang Zoey after I took my kids to school told her that I did. I said to her I don't know why I'd done it and that I didn't use the card." 1. The respondent completed what is called 'A Self-Reflection Log', issued by the Nursing and Midwifery Council of New South Wales. In that document the respondent said, "On 10 May 2017 I, Bianca Richards, was working in a surgical ward at Broken Hill Hospital. I commenced my shift at 1600 hours that day and finished at 2400 hours. Then I walked into the locker room I then saw a locker which was opened at the time. I looked inside the locker, saw a handbag with a purse in it, I removed the credit card. I then got a telephone call from the patient floor manager that was on duty the next morning. I told her what happened. I then returned the credit card. I did not use it. I have learnt my lesson, I would not do it again". 1. These are but two instances where the facts alleged by the applicant have been accepted by the respondent. 2. It has been submitted by the applicant that the respondent was guilty of both unsatisfactory professional conduct and professional misconduct, and in support of those submissions we have been referred to various documents issued by the Nursing and Midwifery Board of Australia, and by New South Wales Health. For the purpose of determining whether the conduct of the respondent amounted to unsatisfactory professional conduct or professional misconduct, we think it unnecessary to refer to those documents. 3. It is always gravely wrong to take possession of another's property. We are satisfied that the conduct of the respondent in removing the credit card from her colleague's wallet amounted to unsatisfactory professional conduct of such a nature that it also amounts to professional misconduct. The respondent has offered no explanation to justify her conduct. 4. The orders sought by the applicant are that: 1. The respondent be reprimanded (s 149A of the National Law) 2. That the respondent complete an ethics course (s 149A of the National Law) 3. That the respondent be subject to mentoring and supervision (s 149A of the National Law) 4. That the respondent pay the applicant's costs. 1. We are satisfied that it is appropriate to make orders 1, 2 and 4. 2. The act of removing her colleague's credit card, even though it was not used, is worthy of a reprimand. 3. In respect of order 2, we think it appropriate to note that the respondent continually and persistently failed to engage with the applicant and the Council. We regard those failures as indicating that her acceptance of the seriousness of, and her approach to, the matter has been grossly inadequate. On many occasions she failed to attend appointed meetings and failed to attend today's hearing after arrangements were made for her to attend by telephone. 4. In respect of the third order sought, our reluctance to make it is based upon the fact that her misconduct was not related to nursing practice and we do not see that order as appropriate or of assistance. 5. Accordingly, we make these orders: 1. The respondent is reprimanded. 2. The respondent is satisfactorily to complete an ethics course focusing on ethical and professional obligations approved by the Nursing and Midwifery Council of New South Wales within six (6) months of commencing work as a nurse/midwife in Australia or as specified by the Council. 1. Within two (2) weeks of being notified that the course is approved, the practitioner must provide evidence to the Council of enrolment in the specified or approved course. 2. Within four (4) weeks of completing the specified or approved course, the practitioner is to provide documentary evidence of satisfactory completion to the Council. 1. The respondent shall pay the applicant's costs as agreed or assessed. 1. Before we adjourn I ask my colleagues if any wants to add anything. 2. SENIOR MEMBER ARMITAGE: No. 3. SENIOR MEMBER CARLIN: No. 4. GENERAL MEMBER GRAY: No. ********** 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: 11 June 2020