Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Cecil [2020] NSWCATOD 121 Hearing dates: 15, 16 October 2020 Date of orders: 30 October 2020 Decision date: 30 October 2020 Jurisdiction: Occupational Division Before: O Shub, Senior Member J O'Baugh, Senior Member I McQualter, Senior Member J Barker, General Member Decision: (1) The Respondent having been found guilty of a criminal charge of theft and larceny is guilty of professional misconduct. (2) The Respondent is guilty of unsatisfactory professional conduct and professional misconduct in respect of the actions perpetrated by her. (3) The registration of the Respondent is cancelled with effect from the date of this Order. (4) The Respondent shall not be entitled to apply for registration as a nurse for a period of 2 years from the date of this order. (5) The Respondent shall be subject to a prohibition order which will prevent her from providing the following health services on a public, private or volunteer basis until she is registered as a nurse: (a) medical, hospital, nursing or midwifery services; (b) mental community health services; (c) health education services; (d) any services in respect of which she will be exposed to patients or people in a healthcare facility. (6) The Respondent shall pay the costs of the Applicant as agreed in the sum of $10,000.00. Catchwords: Professions and trades – registered nurse – criminal charge and conviction against nurse – theft and larceny – diagnosis of disorder – determination of impairment Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Health Practitioner Regulation National Law (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Bannister v Walton (30 April 1992, CA, unreported) Chen v Health Care Complaints Commission [2017] NSWCA 186 Clyne v NSW Bar Association [1960] HCA 40 Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Azizi [2016) NSWCATOD 94 Health Care Complaints Commission v Buys (No 3) [2020] NSWCATOD 102 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Alex Simring [2010] NSWMT 7 Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 Health Care Complaints Commission v Litchfield (1977) 41 NSWLR 630 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Luque [2019] NSWCATOD 129 Health Care Complaints Commission v Luque [2019] NSWCATOD 129 Health Care Complaints Commission v Menz [2017] NSWCATOD 141 Health Care Complaints Commission v Picones [2018] NSWCATOD 56 Health Care Complaints Commission v Shrimpton (No.2) [2019] NSWCATOD 48 Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lindsay v Health Care Complaints Commission [2005] NSWCA 356 Nursing and Midwifery Board of Australia v Kumar (Review and Regulation) [2019] VCAT 1099 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v HCCC [2015] NSWCA 282 Texts Cited: Code of conduct for nurses, issued by the Nursing and Midwifery Board of Australian Code of Ethics for Nurses in Australia, issued by the Australian College of Nursing Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Alena Tatatau Cecil (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) G Gallagher (Respondent) File Number(s): 2020/00160488 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the details of Patients A and B are suppressed and may not be published. REASONS FOR DECISION 1. On 27 January 2010 the practitioner was first registered as a registered nurse. Prior to working as a registered nurse the practitioner worked as an assistant in nursing for seven years. In 2011 the practitioner commenced working as a registered nurse at The Tweed Hospital, Northern NSW Local Health District ("the hospital"). On 19 August 2019 her employment was terminated. COMPLAINT 1. The Practitioner: COMPLAINT ONE has been convicted of criminal offences within the meaning of s144(a) of the National Law. PARTICULARS OF COMPLAINT ONE 1. On 26 September 2018, at the Tweed Heads Local Court, the practitioner was convicted of ten counts of the offence of "actual offence – dishonestly obtain property by deception", contrary to s192E(1)(a) of the Crimes Act 1900 ("the ten counts") and two counts of "actual offence — larceny", contrary to s117 of the Crimes Act 1900 ("the two counts") 2. On 26 September 2018 for the two counts of "actual offence — larceny", the practitioner was sentenced to a Community Corrections Order for a period of two years commencing on 26 September 2018, and for the ten counts of "actual offence – dishonestly obtain property by deception", the practitioner was sentenced to a 12 month term of imprisonment commencing on 26 September 2018 by intensive corrections order and community service work for 200 hours. 3. The convictions in particulars (1) and (2) were in relation to the following conduct of the practitioner in relation to Patient A and Patient B, who were patients in the palliative care ward of the hospital, and both were elderly, unwell and vulnerable: (a) On or about 7 February 2018 the practitioner stole Patient A's purse while Patient A was in her hospital room and while Patient A asked the practitioner why she was going through Patient A's bedside drawer. (b) On or about 7 March 2018 the practitioner stole Patient B's wallet from his room. When the practitioner stole Patient B's wallet, it contained original photos of his wife who had passed away. The practitioner did not return these items to Patient B for a significant period of time, but prior to 26 September 2018. (c) After stealing the purse of Patient A and wallet of Patient B, the practitioner used the credit cards she had stolen from them as set out in Annexure A. (d) On 2 April 2018 the NSW Police attended the practitioner's residence and asked her about her vehicle being at the Caltex StarMart Service station, where one of the transactions in Annexure A on 8 February 2018 occurred. The practitioner responded by giving false information that her vehicle would have been parked in her garage and she was overseas at the time. (e) The practitioner did not to inform her employer of the criminal charges and convictions in particulars (1) and (2) within 7 days of the charge being laid or criminal conviction being recorded as required by clause 4.3.18 — NSW Code of Conduct — Policy Directive PD2015_049. (f) The practitioner stole approximately $200 cash in total from Patient A's purse on 7 February 2018 and Patient B's wallet on 7 March 2018. COMPLAINT TWO is guilty of unsatisfactory professional conduct within the meaning of s139B(1)(b) in that he (sic) has contravened a provision of the National Law. PARTICULARS OF COMPLAINT TWO 1. The practitioner contravened s130(1) of the National Law by failing to notify the National Board within 7 days of being aware on 27 May 2018 of being charged OR 15 April 2018 with an offence punishable by 12 months' imprisonment. 2. The practitioner contravened s130(1) of the National Law by failing to notify the National Board within 7 days of being convicted on 26 September 2018 of offences punishable by 12 months' imprisonment. NATURE OF THE JURISDICTION 1. The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and to maintain proper standards in the profession of nursing and midwifery. 2. In Clyne v NSW Bar Association [1960] HCA 40 at 201‑202, the High Court said: "Although it is sometimes referred to as the penalty of disbarment it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view for the protection of those who require protection and from the professional point of view in order that abuse of privilege may not lead to loss of privilege." 1. As observed by Beston JA in Prakash v Health Care Complaints Commission [2006] NSW CA 153 at [91]: "The purpose of any order consequent upon a finding that a complaint has been proved is said to be protected [sic] of the interests of the public at large but more particularly patients or potential patients of the Practitioner concerned. However, the public interests include indirectly the standing of the medical profession and the maintenance of public confidence in the high standards … of Practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other Practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards, be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s3AS of the National Law." THE ISSUES 1. In essence, therefore, the only real issues for the Tribunal are whether or not the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law, guilty of unsatisfactory professional conduct under section 139(1)(b) and (l) of the National Law and guilty of professional misconduct under section 139E of the National Law, and if so, what orders should be made in respect of those breaches. 2. The Tribunal was provided with a bundle of documents containing Tab 1 to 44 ("Exhibit 1") and a bundle of documents provided by the Respondent containing Tab 1 to 20 ("Exhibit 2"). EVIDENCE OF THE APPLICANT 1. The Applicant in Exhibit 1 provided a report by Dr JG Reddan, a consultant psychiatrist, relating to the assessment which she conducted at the request of the Applicant into the mental capacity or impairment of the Respondent. The evidence of the consulting psychiatrist is detailed and addressed the large number of issues raised by the Respondent in respect of her mental capacity, any disorders in her mental capacity and any impairment. The report also addressed the issues raised by the forensic psychologist appointed by the Respondent to provide an expert report (Patrick Sheehan). 2. In respect of the evidence of the Applicant, the evidence given by Dr Reddan confirms that in her view the Respondent, while clearly having had a troubled and difficult life, does not suffer from any of the disorders referred to by her or suggested by Mr Sheehan (a psychologist appointed by the Respondent). The evidence of Dr Reddan is clearly summarised in the submissions made by the Applicant at the close of the hearing and accordingly will not be repeated in this summary. However, the Tribunal found her evidence to be convincing and objectively acceptable. The Tribunal are comfortably satisfied that the evidence given by Dr Reddan supports the allegations made by the Applicant against the Respondent and outweighs the evidence of Mr Sheehan contained in his report. Dr Reddan was cross‑examined by the Respondent's counsel but Dr Reddan remained firm in her views. 3. Following the cross‑examination of Dr Reddan, the Applicant closed its case and the Respondent opened its case. EVIDENCE OF THE RESPONDENT 1. The Respondent advised that the only evidence given on her behalf would be by the Respondent herself and that the Respondent would not be calling Mr Sheehan to give evidence. 2. In her evidence the Respondent admitted that she had appeared before the Court and been found guilty of the charges laid against her. She confirmed the contents of Exhibit 2. 3. In defence of the complaint against the Respondent by the Applicant, the Respondent sought to rely on the report of Mr Sheehan and to rely on the fact that her behaviour was uncharacteristic, that the Respondent has various mental disorders and that at the time of the offences or currently, she is suffering from a mental condition under s32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). 4. The report of Mr Sheehan does refer to various mental disorders such as alcohol abuse disorder. 5. The Tribunal did not have the benefit of hearing from Mr Sheehan and of his being subjected to cross‑examination by the Applicant but the Tribunal is comfortably satisfied that it is appropriate to accept the evidence of Dr Reddan and to reject any suggestion that the Respondent is impaired for purposes of the hearing. 6. The Respondent was cross‑examined at some length with the main areas of cross‑examination addressing the failure by the Respondent to notify either her employer, the Nursing & Midwifery Council and the Australian Health Practitioner Regulation Authority (HPRA) within seven (7) days of a charge being laid against her in respect of the thefts perpetrated by her and within seven (7) days by the conviction of the Court of her. 7. While the evidence of the Respondent was to the effect that she was not aware of an obligation to notify within seven (7) days of the charge or the conviction, the Respondent did indicate that she had read the Code of conduct for nurses, issued by the Nursing and Midwifery Board of Australia, and Code of Ethics for Nurses in Australia, issued by the Australian College of Nursing, but believed that her obligation was to notify AHPRA when applying for re‑registration in the year following the charge and conviction. The Respondent's evidence was to the effect that she was suffering from severe stresses, financial, work‑related and family‑related, and that her behaviour in respect of the charge was a result of her inability to deal with those stresses. 8. The Respondent stated in her evidence that her failure to notify the various authorities was not an attempt to deceive but was due to a lack of knowledge on her part about her obligation to notify within seven (7) days of the charge or conviction. The Respondent was cross‑examined on this issue. She confirmed every year when re‑registering she notified AHPRA that she had had no change in her criminal status. The Respondent was therefore asked whether she understood why AHPRA would want to know that information. It was put to her that she knew it must be important to AHPRA to have that information and that she would at some stage have to notify of the charge. She admitted that, but said she didn't have an understanding that, she had to report on the charges and conviction in 2018. 9. It was put to her that when she was charged in May 2018 she did not inform AHPRA or her employer for the whole year or indicate that she might be the person who took the cards and that was because she was trying to hide it from them. She responded that one might say that but she apologised for that. She was asked whether she disagreed. She responded that she agreed and that it was wrong but the cross‑examiner indicated to her that she needed to be careful before she answered that question and put to her again whether she agreed that she was wanting to hide it. She then disagreed that she was trying to hide it. She stated that she was wrong but she was waiting for her re‑registration in 2019. 10. The Respondent was referred to Tab 11, page 14, and asked whether in the first paragraph she agreed that she said to Mr Sheehan that she feared she might lose her registration and her career, to which she responded that she probably did. She was referred to Tab 43, page 14, and asked whether she agreed that she told Ms Bergman of Living Well Psychology & Counselling that she was concerned about losing her registration. She stated that she may have said that. It was then put to her that in about March the Hospital were informed by somebody, and she agreed. It was put to her that in April when she completed the notice to AHPRA she only ticked the box which indicated restricted practice and she was asked why she did not tick the box two boxes above that indicated that she had been convicted of a criminal offence. She indicated that she had misunderstood and that in 2019 she was not practising at all so she didn't tick that box. 11. The cross‑examination turned to the information provided to Ms Bergman of Living Well and in particular that she informed Ms Bergman that she took the bankcard of Patient A to buy a ticket to visit her son in New Zealand. The Respondent sought to explain this away as she had not used the bankcard to pay for a ticket to New Zealand, by suggesting that Ms Bergman may have interpreted that from other things. 12. The Respondent was asked questions about the visit by the Police and explained that she was not charged on that visit but that she was invited to an interview. 13. Questions were put to the Respondent by the Tribunal as to what she had told the Police when they visited her at her residence and that she had said that she did not visit a petrol filling station to fill her car on the day that the card was used at the filling station. The explanation that she gave was that she was overseas on that day and that her car was in the garage. She was questioned on this fact and confirmed that she had been there and filled the car. She was asked why she lied to the Police. The explanation which she gave was that her children were in the house asleep and that she did not want to admit to the Police in front of them that she had been to the filing station and used the stolen card. CRIMINAL HEARING 1. The papers provided to the Tribunal included a transcript of the criminal hearing before Magistrate Dunlevy on 26 September 2018. The criminal charge and conviction have been admitted by the Respondent and the Tribunal took note of various statements by the Magistrate in his decision. The Magistrate stated at Tab 35, page 2, line 25: "In coming to my decision today I have taken into account the Police facts which reveal appalling behaviour on your part. The facts reveal at least two recognised aggravating factors; those being that the commission of these offences involved the abuse of a position of trust and, the second being, that the victims were vulnerable people due to their age and infirmity". 1. He also stated at page 3, line 11: "I have listened carefully to the submissions from both parties and given the seriousness of your offending and in particular the aggravating factors, there is simply no basis upon which I could decline to record a conviction. The offences are your first offences and there are some mitigating factors but they are not trivial offences and there are no extenuating factors. And so you have not shown cause as to why a conviction should not be recorded, as is required under the sentencing laws of New South Wales". 1. Also at page 3, line 39, he stated: "I am also satisfied that your personal rehabilitation would be better served by serving your term of imprisonment in the community, so those two factors do not exclude an intensive correction order. I have noted that you are suitable for community work as it is now called, so the additional condition that I'm going to be adding to your intensive correction order is that you are to perform community service." APPLICANT'S SUBMISSIONS 1. The Applicant provided written closing submissions which are similarly set out in full below: 1. The respondent admits each of the particulars of complaint one. The respondent admits the facts of the particulars of complaint two. As set out in the opening submissions of this matter by the Commission, each of the two complaints should be found proved. The Commission relies on its opening submissions. The Tribunal can be comfortably satisfied that each of the complaints is proved. Mr Sheehan's report 2. Neither the respondent nor the Commission rely on the opinion of Mr Sheehan. Mr Sheehan was not made available for cross-examination by the respondent. Mr Sheehan has not read Dr Reddan's report. Mr Sheehan assessed the respondent at a time when she was hiding her actions from her employer and did not disclose this, it is submitted, to Ms A. Berman or it seems to Mr Sheehan (who states, "The current criminal matters have not threatened her employment at this point"). As Dr Reddan, a medical practitioner of 40 years' experience (over 30 plus years as a psychiatrist with prior forensic training) told the Tribunal, she is much better placed than Mr Sheehan to assess, test, and diagnose the respondent. Dr Reddan stated that Mr Sheehan did not provide a sufficient evidentiary base to arrive at his psychological diagnoses. Dr Reddan noted that psychologists are not trained to conduct mental state examinations and there is none documented in his report. Mr Sheehan's opinion, to the extent the Tribunal relies on it, should be given little to no weight in the circumstances. Evidence of Dr Reddan 3. Dr Reddan's key conclusions and opinions in her report were not successfully challenged in cross-examination. In her oral evidence before the Tribunal she stated: 23. Her evaluation of the respondent was directed both to the time of the conduct in 2018 and at the time of her assessment in 2020. 24. Based on Dr Reddan's review of documents including Mr Sheehan's report, her mental state examination of the respondent, and the respondent's answers to her (and Dr Reddan's observations of how she related her history), she arrived at her conclusions. 25. The respondent told Dr Reddan that she stole from the patients because of financial need. 26. Although the respondent was ashamed of her conduct and regretted it she still some two years later saw herself as the victim. 27. When asked by Mr Gallagher if the financial cost of her alcohol use may have contributed to her theft, Dr Reddan replied, "I took a detailed history of how she came to be stealing — that involved financial problems. They were not of one source...the source of her financial problems was from a number of places." 28. One aspect of her spending was quite understandable (e.g. putting her children through school, providing financial assistance to family members). But another aspect was unwise. Poor judgment including in relation to spending does occur in people without mental diagnoses and is part of the human condition, it is not wise to medicalise that behaviour. Even deviant behaviour may not be due to a disorder. 29. In reply to Mr Gallagher's question about whether the combination of stressors could have led to a depressive disorder, Dr Reddan stated that the respondent's primary problem is not a mood disorder. The respondent is not disinterested in relationships or lacking in motivation, and what she has is unmet dependency needs rather than a mood disorder. She has been motivated in herself and her circumstances. 30. Similarly, Dr Reddan did not consider her alcohol use to even approach physiological dependence. 31. During her assessment of the patient in January 2020 the respondent was still struggling with an expectation from family members to provide for them financially. 32. The respondent did not suggest to Dr Reddan that the stress of her job contributed to her conduct. Dr Reddan noted that the respondent told her that her performance reports at work were more than satisfactory. She did not consider the types of patients and the ward in which the respondent was working was either a factor or an acceptable factor for her behaviour. It should be noted that the respondent in her submission to the HCCC at tab 21 did attribute her conduct to her work stress. 33. Dr Reddan was asked by Mr Gallagher if the high expectations of trying to live as a Christian contributed to her behaviour and Dr Reddan responded that the respondent told her that she had lost her spiritual connection at the time of the conduct. 34. Of the 16 or so factors Mr Gallagher put to Dr Reddan as being difficult to overcome Dr Reddan concluded that while it might have led to emotional disturbance, you still have to understand how it leads to stealing and in the respondent's case Dr Reddan approached it in a different context. Mr Gallagher then asked her if it was possible that at the time of the offending the respondent was suffering from a depression, Dr Reddan said, "if she had one it was mild but it does not explain her offending behaviour." 35. Dr Reddan was of the opinion that the main drivers to her conduct were financial, but her other problems were her sense of deprivation. She did not have a lot of insight in relation to that sense of deprivation and how it can underpin her behaviour. 36. Dr Reddan was asked numerous questions about whether her conduct was a `cry for help', whether she was expecting to be caught. Dr Reddan quite sensibly dismissed that suggestion and pointed to various factors in this specific case which would suggest that was not the case. That the respondent might continue to view her unethical and illegal conduct as a cry for help supports Dr Reddan's conclusion that she still views herself as the victim. 37. Dr Reddan said that the risk of this specific conduct recurring is not high but did not express a concluded view about it, noting "I could be wrong about this" as she was focussed more on disorders which may have contributed to the conduct, and she concluded a mood disorder did not. The respondent would nevertheless benefit from some specific financially counselling and education around assertiveness (in the context of men and in other areas of her life). Whatever employment position she goes back to she will have access to money and the expectations of others will increase. 38. When asked what contributes to the risk of reoffending being lower in the respondent's case Dr Reddan noted that she could not say what it is a result of but "all I can say if we try to look objectively — she didn't self-notify as far as I know to the Council and I always think ... it is a helpful sign of a deeper understanding". 4. The Commission submits that the aggravating behaviour of the respondent is that: 23. she lied to the police about her whereabouts on 8 February 2018. The respondent admitted this at the outset of cross-examination. Yet when it was raised with her again by the Tribunal she cavilled with the proposal, suggesting that somehow she was trying to protect her children or that she must have mistaken the dates, that she was waiting to have a proper interview or that she was ashamed to tell the truth in front of her children. But as the Tribunal pointed out she positively asserted a falsehood to the Police instead of keeping silent. The Tribunal can be satisfied as admitted that the respondent knew she was misleading the Police about her car and her whereabouts, she knew she had stolen their money, she was trying to avoid the consequences of her behaviour. 24. she continued treating one of the patients while and after spending her money and the patient raising concerns about her card going missing; 25. she was not open and honest with Ms Bergman about spending the bankcard on a flight to New Zealand. When one examines Ms Bergman's notes the only mention there of her using the bank card is on a flight to New Zealand. Similarly, she was not open and honest with Dr Reddan about what she spent the patient's money on. 5. The practitioner has not displayed adequate insight or reflection in her responses to date concerning the above aggravating factors. 6. The respondent's submissions to date have focussed on her traumatic background, her work stress for example. The Commission submits that these factors cannot satisfactorily explain her behaviour in this case, let alone justify it. If the respondent maintains this view then the risk to the public persists. 7. The Commission submits that the Tribunal should find that the respondent's conduct was driven by her financial stressors and lack of impulse control as she told Mr Sheehan, as Ms Bergman noted in her June 2020 report and as Dr Reddan concludes in her report. Her spending habits with the patients' money supports this, and she accepted that none of the items she purchased were essential. The respondent did not spend the money paying off loans, debts, or bills — most of her transactions were on fuel, food/groceries, party supplies, cigarettes and other discretionary purchases. In August 2018 the respondent told Mr Sheehan that she was unable to provide a detailed understanding of the thinking process that drove her decision, but was able to describe a number of stressors temporally associated with the offences, namely financial stressors with expenses including her daughter's birthday presents. The respondent stated that her take-home pay at the time was between $2,500-$3,000 per fortnight. This was a reasonable income. The respondent was asked in cross examination whether, looking back now, she agreed that the only reason she took the patient's money and credit cards was her financial stress and lack of impulse control in relation to money, and she agreed. The respondent 8. Nurses are subject to great obligations of trust and required to maintain high standards towards their patients partly because of the relationship that they are temporarily placed in with respect of their patients which may permit them a significant degree of power over those patients. That high level of obligation is all very much in the public interest. Her conduct, to use the sentencing Magistrate's words, is appalling behaviour. The Magistrate went on to note that submitted Police facts reveal at least two recognised aggravating factors; those being that the commission of these offences involved the abuse of a position of trust, and the second being that the victims were vulnerable people due to their age and infirmity. 9. The respondent admitted that she knew her conduct was unethical, wrong, and illegal prior to it occurring and while it occurred, and she did it anyway. She knew, having cared for the patients prior to her conduct, that they were vulnerable. The respondent caused harm to Patient A when she deprived him of his deceased wife's only remaining photographs for a significant period. 10. The clinical records for Patient B are at tab 42. He was an 88-year-old male admitted to the hospital on 5 March 2018 (see at page 8) with respiratory issues. At page 57 a history is taken that his wife died 13 years prior. On page 63 it notes that he has very limited social networks and most of his family and friends have died. He was socially isolated and reported not coping at home. 11. The ED assessment of Patient A can be found at tab 31. The respondent assessed Patient A on 6 March (page 27), 7 March (page 26), 8 March (page 24), 9 March 2018 (page 23), and her progress notes for 10 March are at pages 48-49. This final note is made after the respondent stole from Patient A and used her credit card and money. It is after the notes record on 9 March 2018 that the patient was concerned about her missing wallet, had called the police and her bank (pages 48 and 49 again). See further the progresses note for 9 March at page 49 and page 50 for 8 March. 12. The clinical records for Patient B are at tab 41. Patient B was brought into the hospital on 6 February 2018 (p 62 is the ambulance entry). The respondent had direct care for and assessed Patient B on 6 and 7 February 2018, that is she assessed her on the day before and on the day she stole from her (page 1). On 6 February she assessed her multiple times. Her progress notes are at page 38 for example. The practitioner was aware of the patient's general condition from having assessed her and spoken to her. At page 28 of tab 41 there is a reference to the patient being frail, aged, living alone and not managing. She is reported to have had mental health issues. 13. From the outset when becoming aware that the patients were concerned about their missing possessions, and on being found out by the police on 2 April the respondent has been motivated to avoid losing her job. She failed to inform her employer from 8 February 2018 and kept receiving a salary for about one and a half years until August 2019. When these issues were put to her in cross-examination and her motivation to hide her behaviour, she unreasonably did not concede her motivations, at times conflating her requirement to report to AHPRA with her independent ethical and legal duty to her employer. The respondent's evidence here was unimpressive. The practitioner deliberately breached the NSW Health Code of Conduct by hiding her conduct, charges and conviction from her employer, such Code by which she agreed to abide when commencing work within the LHD. 14. Practitioners are expected to be aware of and follow the Nursing and Midwifery Board of Australia's Code of Conduct and it is not an acceptable submission that the respondent did not make herself aware of it. The Tribunal should consider the Code of Conduct when assessing the standard expected by the practitioner: s41. 15. The respondent was aware in May 2018 through to April 2019 that she had a general obligation to report her criminal history to AHPRA. It is submitted that the respondent consciously contravened the provisions of the Nursing and Midwifery Board of Australia's Code of Conduct and s130 of the National Law to delay the consequences of her behaviour. There should be no scope for the respondent to say she was not educated about her requirements or had not read the Code, because the conduct is so fundamentally contrary to her profession that it does not require education and she had a general awareness of her obligation to report her criminal history to AHPRA. Practitioners are reasonably expected by the profession and the public to have read and be aware of the Code of Conduct governing their profession, particularly by a practitioner who had been a registered nurse for seven years at the time of the conduct, and an assistant in nursing for many years prior to that. 16. The Tribunal should have some concerns about the respondent's answers in cross-examination that she properly understands why such prompt disclosure to the National Board is necessary. The respondent told Mr Sheehan in August 2018 that she knew that a conviction would compromise her nursing registration. When this was put to her in cross examination for reflection, she cavilled with the proposal that she was concerned about her nursing registration as opposed to her employment. The respondent in September 2018 told Ms Bergman that she will lose her nursing registration because of her conviction. Again, she questioned whether Ms Bergman's notes reflected her understanding at the time. She took no steps to contact AHPRA or the Council to clarify her obligations. 17. The Tribunal in HCCC v Dr Alex Simring [2010] NSWMT 7 observed: 94 The Tribunal does not regard the breach as either trifling or merely technical. 95 The Tribunal finds that the respondent knew he had an obligation to notify but did not inform himself of the extent of that obligation. The Tribunal does not consider it a matter of little significance. There are many obligations imposed on a medical practitioner concomitant with the very significant rights and privileges which also attend that role. The Tribunal is satisfied that it was within the respondent's contemplation that the Board would be interested in knowing that he had been convicted of these very serious offences. That he proposed to put off notifying the Board until sometime when it suited him is not, in the Tribunal's view, insignificant. (Emphasis added) 18. This all occurred while she was hiding her conduct (not just the conviction or charge) from her employer. When she saw Ms Bergman in October 2018 there is no mention by Ms Bergman at all that the respondent has not told her employer about the theft (not just the conviction or charge). In April 2019 the motivator to inform AHPRA was her hospital suspension. And when she did notify AHPRA, the form mentioned her hospital suspension but omitted her charges and conviction. 19. As the Tribunal noted in Health Care Complaints Commission v Menz [2017] NSWCATOD 141 at [67], the effective operation of the national registration and accreditation scheme, established by the National Law for the regulation of health practitioners, is dependent upon a system of self-reporting by registered health practitioners. The integrity of that scheme requires that health practitioners are not only candid in their dealings with and fully cooperate with relevant regulatory bodies but are aware of their reporting obligations under the National Law. 20. In HCCC v Amalakumar [2019] NSWCATOD 173 at [34] the Tribunal stated: "It is important for the maintenance of the integrity of the system for the disciplining of health practitioners set up by the National Law that practitioners comply with the reporting obligations which form part of the system in cases where the omission to report is deliberate or careless, a protective order would almost invariably be appropriate, both to reinforce the importance of reporting to the practitioner in question, and also to provide a general deterrence to other health practitioners". 21. The Commission submits that the respondent from 27 May 2018 up to the time when she was suspended knew she had some obligation to report her charges and conviction to the Board but deliberately concealed her conduct from those around her, including the authorities, and at a minimum was wilfully blind as to the extent of her obligation. Protective orders 22. Many cases come before this Tribunal where the conduct the subject of the conviction is not intentional or has tangential connection to their professional practice. The Commission's complaint against the respondent is serious in that it involved deliberate conduct, conduct motivated by dishonest motives, and was in the course of her profession where she was in a position of trust over vulnerable patients. 23. The right to practise nursing affords to a practitioner privileges and opportunities that are not available to others. Clinical capacity is by no means the only consideration to which regard is to be had in determining whether a person is appropriate to practise (Bannister v Walton (30 April 1992, CA, unreported)). The relationship of a nurse to their patient and their profession is one which touches on matters such as diligence and professionalism, ethical practice, care and judgement. The practitioner disregarded such matters. 24. Insofar as the Commission relies on the respondent's conduct as proof of her character, that conduct must be evaluated in the context of the motive which accompanies it (Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448). Misconduct driven by greed or some other base or corrupt motive speaks far worse of the respondent's character than the misconduct of the well intentioned zealot. No such noble motives exist in this case. The practitioner's character by her conduct in this case, over the period February 2017 up to April 2019 was entirely dishonourable. 25. The respondent's actions in hiding and not being open with the regulator and employer is condemned by this Tribunal: 23. the protection of the health and safety of the public must be the paramount consideration when looking at how a practitioner responds to a regulator; 24. our system of health regulation cannot achieve the paramount objective of protecting the health and safety of the public without the co-operative and candid involvement of health practitioners (HCCC v Luque [2019] NSWCATOD 129 at [71]); 25. it goes to the core of professional conduct that a practitioner can be trusted to be truthful by their supervisors, professional body and regulators (HCCC v Picones [2018] NSWCATOD 56 at [65]); 26. the ability to acknowledge errors in judgment and clinical treatment is particularly crucial for health professionals because covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions because such behaviour may pose a risk to the safety of patients (HCCC v Picones [2018] NSWCATOD 56 at [104]); 27. a health professional who cannot be trusted to tell the truth presents a risk to the public because, without candid admissions by a health professional who may be in the wrong, the ability of other professionals to treat patients appropriately, including by remedying any original error, is grossly impaired or altogether prevented (HCCC v Picones [2018] NSWCATOD 56 at [104]‑[105]); 28. engaging with the professional regulator and all forms of disciplinary inquiry with diligence and honesty are fundamental requirements of any professional (HCCC v Picones [2018] NSWCATOD 56 at [103]); 29. lying or concealing information from an LHD may indicate that the Tribunal cannot be confident that the practitioner will adhere to conditions (HCCC v Picones [2018] NSWCATOD 56 at [101]) or that the practitioner lacks the level of integrity that justifies being trusted to comply with relevant laws and conditions (HCCC v Azizi [2016) NSWCATOD 94 at [250]). 26. In HCCC v Do [2014] NSWCA 307, the Court of Appeal held that the Tribunal had fallen into appealable error by focusing only upon the risk of reoccurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct, nor the full implications of the findings that the practitioner's skill and judgement had fallen significantly below the standard reasonably expected: [39]. In so doing the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by ss3A and 4 of the National Law: [40]. 27. The gravity of the practitioner's misconduct must be measured, not by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal (HCCC v Litchfield (1977) 41 NSWLR 630 at 638. In this vein, the practitioner's written reliance on the value of the theft or her personal circumstances which as submitted cannot justify her conduct. To do so would be to give some credence to a lack of ethics, poor judgment and poor decisions on the practitioner's part when there is, according to Dr Reddan, no underlying disorder which links to that conduct. 28. The authorities state that reformations of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a practitioner has exhibited serious deficiencies in her standards of conduct and attitudes it must require clear proof to show that some years later, she has established herself as a different person (Ex p Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461). Ms Bergman's report of 23 June 2020 and Dr Reddan's report of January 2020 suggest that while there has been some insight into the full impact of her conduct, it is both superficial and at an early stage. 29. The notes of Ms Bergman reveal very little discussed about the act of the theft itself. In cross-examination the respondent stated her memory of the theft was poor and what she spent some of the money on limited. There appears to be a gap in history from the respondent to Ms Bergman about the theft. The theft is clearly not a focus of their counselling sessions — the professional and personal consequences of her decision and her upbringing are their focus. Ms Bergman saw the respondent for their seventh appointment on 23 June 2020, having previously seen her in May 2019, about one year later. On that date Ms Bergman reported that: Her impulse control and ongoing financial stress drove her theft. That since commencing treatment the respondent has made limited progress due to ongoing litigation — that is over seven sessions over two years she has made limited progress. 30. On reviewing the subject of discussion in the treatment records of Ms Bergman, and the conclusion of Dr Reddan is that the respondent still views her conduct from the prism of her being the victim, and so the risk to the public continues. 31. Whether due to financial factors or otherwise, since May 2019 the respondent has done very little in terms of psychological assistance and has sought out no professional financial counselling. In her letter dated 12 August 2020 she states, "I am happy to do further study on Nursing Code of Conducts and AHPRA registrations" but does not explain why she has not done this or any ethical training yet. 32. The respondent's unresolved financial and other stressors are not issues which the profession or the public expects should fall on patients — these are matters which were within the knowledge and capability of the practitioner as a health practitioner, with exposure to mental health services, to address. The National Law requires under s3A for the paramount purpose of this Tribunal when exercising its functions to be the protection of the health and safety of the public. 33. The respondent told the Commission on 23 December 2019 (tab 21 exhibit 1) that she "must emphasise that I am suffering from a mental illness and I am undertaking psychological help in this respect as well as undertaking my Court punishment for 2 years". But she had not had any psychological help since recently other than two consultations on 8 November 2018 and then 2 May 2019. This was at least partly misleading, even if it was due to her financial circumstances. The respondent's financial circumstances have not improved. 34 That is not to say that the respondent is not ashamed and embarrassed for what she has done. But that is not enough in the Commission's submission to protect the health and safety of the public. The respondent also emphasised the personal impact on her from this matter. Whilst these are unfortunate consequences for the respondent, it must be emphasised that her circumstances are caused solely by the fact that she engaged in a course of misconduct of a serious kind, justifying a finding by this Tribunal. To this extent her authorship of her own misfortune is irrelevant in determining what protective orders should be made. The Tribunal recently adopted a similar approach to protective orders in Health Care Complaints Commission v Buys (No 3) [2020] NSWCATOD 102 at [17]. 35. Most of the respondent's referees do not state that they have read the complaint nor do many of them seem to even be aware of it. They are from friends and family or non‑professional associates and are not independent. There are no referees from colleagues or health professionals who she has worked with who can attest to her character in that setting. The referee letters from the respondent should be given limited weight. 36. Further the respondent has not engaged in education surrounding ethics and despite advice from multiple people, she has not explored the option of financial counselling including through free services in the community such as the Salvation Army as suggested by Dr Reddan. 37. The only order which can address the Court of Appeal's requirements from HCCC v Do is cancellation of registration with a non-review period. 38. The Commission submits that a two-year non-review period of the cancellation order is necessary for both a general deterrence perspective to uphold the standards of the profession and the (sic) restore the confidence in the public, is also a reasonable time period in which the respondent can undertake ethics education, financial counselling and the other psychological counselling suggested by the various practitioners, given the financial difficulties that the respondent has faced engaging with such services. If the practitioner is a fit and proper person to request a reinstatement order at that time she can apply for it. In fixing a non-review period it should be noted that: 23. the Tribunal is not required to take into account the fact that a respondent has been suspended from practice for a period: Qasim v HCCC [2015] NSWCA 282 at [73]; 24. the Tribunal should not consider the public interest in deterrence served by the criminal processes (HCCC v Duggan [2015] NSWCATOD 142 at [60] citing HCCC v Litchfield (1997) 41 NSWLR 630); 25. the setting of a non-review period is not to punish the practitioner but to protect the public. NSW Court of Appeal jurisprudence has indicated that the fixing of a period of non-review has a 'twofold operation' in that it firstly indicates a minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and secondly it holds open to the practitioner the possibility of return to the profession at a later time (Chen v Health Care Complaints Commission [2017] NSWCA 186 at [88] applied in Health Care Complaints Commission v Luque [2019] NSWCATOD 129); 39. If the Tribunal makes a cancellation order it is empowered to consider and make a prohibition order: s 149C(5) of the National Law. 40. The Commission submits that the evidence of the respondent, in particular that she is unable to fully accept that she was trying to hide and cover up her conduct, and the limited treatment she had directed to her dependency issues, her financial problems, and what Dr Reddan describes as her to in light of the recent conclusions of (sic) Reddan and Ms Bergman indicate the risk to the public from practitioner's underlying circumstances and financial stresses continues. There is a significant risk to the health of the public in professions other than registered nursing. 41. In Nursing and Midwifery Board of Australia v Kumar (Review and Regulation) [2019] VCAT 1099, a nurse had engaged in financially predatory conduct resulting in her becoming a beneficiary of the estate of a 92-year-old patient with no other family members. A prohibition order was made to prevent her from repeating that conduct in the guise of an aged care worker, even after she was deregistered as a nurse. 42. In Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 the respondent stole one patient's bank card and used on two occasions for personal purposes such as groceries. In Health Care Complaints Commission v Shrimpton (No.2) [2019] NSWCATOD 48 the Tribunal made a prohibition order noting: 23. The Commission also submits that there is a substantial risk that if Ms Shrimpton made a mistake that compromised the health of a patient which she considered may compromise her ability to continue as an assistant in nursing, she would not prioritise the health of the patient and could not be trusted to candidly disclose that error to her supervisors It is argued that this puts a patient's health at risk. 24. We accept these submissions. Ms Shrimpton targeted her fraud towards a frail, aged and vulnerable patient. Further we had the benefit of hearing evidence from the patient's son as to the effect and impact that Ms Shrimpton's conduct had on him. In our view his evidence epitomised the underlying legislative principle of the protection of the health and safety of the public. Her misleading conduct towards him satisfies us that she presents a substantial risk to the health of members of the public. 25. Additionally, and as submitted by the Commission, in our view a prohibition order ensures that the protective purpose of the cancellation of Ms Shrimpton's registration is not significantly undermined. This is because if Ms Shrimpton were permitted to provide health services as an assistant in nursing during the interim period when her registration was cancelled, it would substantially diminish the protective purpose of any order that cancelled her registration and may undermine confidence held in the profession. (emphasis added) 43. A prohibition order can be ordered to address both specific deterrence and general deterrence. The Tribunal should consider whether a prohibition order is necessary to effectively protect the public at least until she can convince the Tribunal otherwise. As set out in the Commission's opening submissions, the professions to which such a prohibition order attach are where the respondent would be dealing with vulnerable and sick patients with limited resources: as an assistant in nursing, in mental health work or in an aged care home or nursing home until such time as she is registered as a nurse. These patients need greater protection at least until the respondent can satisfy the Tribunal that she has addressed these deficiencies to practise safely. This is what the public would expect. The respondent in her submissions at tab 21 of exhibit 1 emphasises the fear and trauma she experienced in her job as a nurse. She concludes that her working long hours may have contributed to her offence. That the respondent as recently as December 2019 held this view must be of concern to the Tribunal insofar as she might seek to work in other non-registered heaIth professions. 44. Finally, the Commission seeks a fixed sum costs order as agreed between the parties in the amount of $10,000. The Tribunal is empowered to order this pursuant to schedule 5D, clause 13(3A) of the National Law. RESPONDENT'S SUBMISSIONS 1. The Respondent handed up written submissions which are set out below: 1. These submissions are made on behalf of the Respondent in respect to the aforementioned hearing held before the honorable members of the Tribunal on 15 October 2020. 2. In terms of the two complaints brought by the Commission in respect to the Health Practitioner Regulation National Law (National Law) it is conceded that there is sufficient evidence for the Tribunal in terms of section 149C(1)(c) of the National Law and section 139B(1)B in order to establish to the required standard a finding that supports the commission's position, noting; a. The Commission bears the burden of proof on the Briginshaw standard, requiring reasonable satisfaction on the balance of probabilities, having regard for the gravity and importance of issues to be determined: Lindsay v Health Care Complaints Commission [2005] NSWCA 356; b. The Tribunal is not bound by the rules of evidence: Section 38(2) Civil and Administrative Tribunal Act 2013 and clause 2 of Schedule 5D of the National Law; 3. In terms of the evidence before the Tribunal the Respondent was taken through the essential elements making up the complaint and made admissions under oath sufficient to make out the requisite findings as sought by the commission. Protective Orders 4. The Respondent submits in effect as to what protective orders should be put in place acknowledging that in determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to section 3A of the National Law. 5. In Health Care Complaints Commission v Shrimpton (No 2) 2019 NSWCATOD 48, [at 9], it was noted; As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective: see s3A National Law. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s3(3)(c) National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at 34. 6. In terms of submissions on behalf of the Respondent the ultimate submission is that conditions can be placed on the registration of the Respondent in order to fulfil the obligations for the Tribunal in order to protect the public. The provisions of section 149C are couched in terms of a discretionary nature providing the Tribunal with the opportunity to make such orders as deemed necessary to fulfil its function. 7. The Respondent relies on her evidence provided both documentary and in oral form at the hearing before the Tribunal 15 October 2020. Reference was made in the opening submissions of the Health Care Complaints Commission at paragraph 25 which speaks to the determination of what disciplinary actions accord with the protective objective. We shall submit on those considerations in light of the evidence adduced. Evidence of Dr Redd[e]n 8. In terms of the evidence heard by the Tribunal the evidence of Dr Jill Redd[e]n both by virtue of her written report and cross examination revealed a significant and complex matrix of factors which were evident in the Respondent's life in or around the time of the offending which contributed to the offending. a. A list of factors was put to the Doctor and as being significant factors which included but were not limited to; b. The Respondent's background of abuse and exposure to family violence as a child; c. Work pressures, in particular long hours with reference to 18 hours shifts, working in a supervisory position and in wards with inherent risks such as working with Alzheimer's patients (ultimately described as normal by Doctor Redd[e]n); d. [Redacted for privacy reasons.] e. The cultural financial pressures and expectations of having to provide for an extended family including her mother and others in Fiji and the flow on effects and taking on further overtime to facilitate that; f. The pressure of education and further learning also in the context of cultural expectations of upskilling; g. Family Court proceedings regarding custody of her children; h. The use of alcohol and gambling; i. Her isolation and loneliness leading to being taken advantage of by various men; j. Emotionally being cheated on by those various men; k. Disciplinary issues with her children and her daughter being bullied at school necessitating the need for changing of schools which was also financially difficult, and l. Her mother staying over for periods of time up to a number of months being a further financial strain through a lack of contribution from her. 9. All of these factors were considered by the Doctor and conceded by her that they were certainly part of a complex matrix of factors however the Doctor considered that explanation is often confused with exculpation. 10. The Respondent is not seeking to put these matters in front of the Tribunal in terms of exculpation however does provide it as a background or explanation as to why she may have found herself in a position where the temptation to relieve the financial pressures at the time became overwhelming for her. 11. In terms of her overall assessment of the Respondent's conduct it was observed and confirmed by the Doctor that the conduct was not such that it is out of control and did not amount to any impairment. Further she was unable to assign any form of disorder for which the conduct could be attributed to. 12. The Commission makes the submission that the offending occurred wholly in the context of a financial motivation to use the money stolen from patients A and B for her own discretionary use ignoring the complex factual matrix of the underlying issues. 13. Ultimately when asked by the Commission, Dr Redd[e]n made the observation that; 'the final outcome was a result of a number of factors'. A significant factor was financial but she could not say there was totally due to that. 14. When asked about whether the conduct displayed by the Respondent was or could be determined to be out of character Doctor Redd[e]n referred to the fact that she had not reviewed any or was not aware of any previous relevant history which suggested recidivism. 15. Doctor Redd[e]n noticed that the risk of reoffending in her assessment was low and that she did display emotions of shame, regret and remorse. She observed that the presence of emotions in particular, remorse does involve empathy for the victim and an understanding of pain of the victim. Further that to have any emotion means that we must have insight. She considered that the Respondent does have insight into the effects of her offending although qualified that by saying that it was superficial. 16. In terms of what that meant she referred to it as being not sophisticated. 17. In terms of the risk of reoffending the Doctor noted that the consequences of her behaviour being highlighted to her now through not only the criminal process but also the disciplinary process for which she is before the Tribunal can have the effect of lessening the likelihood of a repeated offence. 18. She confirmed that even if the Respondent had a shallow understanding of the aspects of her behaviour it didn't mean that her risk of her conduct reoccurring was high. 19. She qualified this by saying that the message had been clearly given and received. 20. It was suggested that Ms Cecil's conduct may have been 'a cry for help' which was dismissed. It was never asserted that that came from the Respondent. It was question in cross-examination to probe the possibility. 21. The Doctor confirmed that the Respondent would benefit from further psychological counselling in terms of cognitive behavioural therapy and the management of finances in particular. She further commented that therapy can assist into her insight of offending however that she did not display any conduct that was antisocial. Evidence of Ms Cecil 22. Ms Cecil gave little evidence in chief respect to her case. She tended (sic) her bundle of documents which she relied upon and swore to this being true and correct. She immediately made herself available for cross examination and questioning by both the Health Care Complaints Commission representative and the members of the Tribunal. In terms of her evidence it was squarely put to her that the offending was based on her financial needs at the time and her motivations to steal from patients was one of our financial nature. 23. She was open and honest in her exchanges with the questions put to her. 24. In terms of concessions she ultimately conceded that she could not attribute her offending to the pressures of being a single mother at the time. 25. She confirmed that she had worked in mental health and was well aware of mental health treatment and resources however conceded that she had no insight to get early treatment. She said that she was struggling financially and she had an inability to seek help. She did say that that (sic) she had an issue with impulse control at the time. In terms of her use of the credit cards stolen from patients A and B concessions were made that she stopped using them when they we're cancelled. 26. She displayed quite a lot of confusion around the issue of reporting and the dates of which she was served by the police documents and her obligation to report charges pursuant to the code of conduct as was her obligation. 27. In respect to her reporting obligations she maintained the fact that she was not aware of the requirement to report police charges within seven days however that was not offered as an excuse. She provided evidence that she thought her reporting obligation extended only to her yearly registration as opposed to those put to her in cross examination. 28. Ultimately however she did make the concession that she had been trying to hide the fact that she had been charged from her employer and confirmed that the reason that her employer found out about the charges was after her court sentencing and that it was reported to her employer by the police. 29. She was asked a question by the principle member as to her comments to the police regarding her being overseas at the time that her car was seen at the Caltex service station at Banora Point. Her concession was frank in that she said that she was stressed but had lied to the police because her children were inside the house and she didn't want them to know anything about what was going on. 30. In terms of some of her responses she did say that she didn't recall certain conversations or discussions. Given the transition of time from those dates her memory deficiencies were not unusual in the context of the questions being asked to recall certain conversations or discussions. When the questions were rephrased or couched in terms of an event rather than discussion she was able to recall the issue and directly addressed that for the Tribunal. In that respect the recollections were not in any form an attempt at trying to divert or not answer the question. 31. She was further asked by a member whether her offending conduct was pre-planned or opportunistic and offered up the answer that it was opportunistic in that she saw the patient's wallets and took them. 32. In terms of her knowledge base of her ethical obligation she did say that she had read the nurses code of conduct however she did reinforce again that she was honestly not aware of the need to report anything until her yearly registration was due. 33. When asked about a deficiency in one of her answers in respect to whether her conduct was unethical and wrong clarification was required however after clarification she confirmed that she did know that the conduct was wrong and that she was not leaving that out of her evidence. 34. In terms of insight she noted that her conduct led to her losing the trust and confidence of the patients whether it was a small amount or a large amount and that her conduct was a breach of the care and that she has lost the trust of the community. 35. The Respondent was asked questions in relation to her further studies in Human Resource Management and whether she had done any continuing professional development in relation to her nursing. She confirmed that she had gone to further courses relating to her nursing studies following her suspension including attending a seminar in Ballina at a cost of $65 . This does show a commitment to her nursing career despite the fact that she had been terminated from her employment and her registration suspended at the time. 36. She was asked a question in relation to whether she had done any ethical reading on her own time. She was frank and honest in her answer in saying 'no' that she had not. This again shows a willingness to make concessions and answer questions honestly for the Tribunal. 37. In terms of her overall presentation to the Tribunal and her answers asked under cross examination by the Health Care Commission and also by the members, the submission is that despite there being some misunderstandings as to the questions, upon clarification she answered them appropriately with candour and frankness, making concessions against her own interests which displayed a high level of honesty. 38. The Respondent was asked a question in re-examination as to why she had not undertaken further psychological counselling from the 2nd of May 2019 to June 2020. She confirmed that the issue had been due to financial constraints. Her psychologist charges $170 per session ,the Medicare rebate accounts for approximately $30 of that, and that she has to pay the gap on that and has been unable to afford it. 39. When asked about financial counselling, she confirmed that she had been trying to do it on her own with budgeting and watching You-tube videos. 40. Since the advent of Covid-19 the government has issued further counselling sessions under Medicare which are free, she confirmed that she is availing herself of those sessions. 41. The Respondent was asked a question in relation to her understanding of the serious nature of the offending in terms of the difference between the legality of the situation versus the ethical situation. She was taken to an excerpt from her submissions to the Tribunal where she talks about the objective seriousness of the offence. Once again she referred to the fact that she had lost the trust of her patience and the community. The Assessment of appropriate order 42. The evidence before the Tribunal in respect to her written material confirmed that the Respondent is genuinely a person of good character. This is supported by references tendered to the Tribunal from those that know her including members of her church and work community. 43. In respect to the seriousness of the misconduct there is evidence in the form of her expressions of shame, regret and remorse which displaying insight as to the effect upon the patients from whom she stole . As outlined by the psychiatrist Dr Redden any emotion is one that shows a level of insight and in particular remorse shows and empathy with the victim. 44. There is no doubt that whether it be a small amount or large amount stealing from a patient of any kind is an offence of the most serious nature. This has been considered by the Tribunal before in Health Care Complaints Commission v Shrimpton (No.2) [2019] NSWCATOD 48 at [13]-[14]; The Tribunal stated that such conduct "strikes at the very heart of the integrity and ethical candour that the public are entitled to expect of the nursing profession. There was an absence of propriety, honesty and integrity in her practice. The gravity of her conduct in using the credit card of a frail and elderly patient extends to the surrounding circumstances and the breach of trust it involved. 45. There can be no submission on behalf of the respondent in this case that in any way shape or form that the offending is not serious. 46. In terms of further assessment the Tribunal can assess whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the Respondents normal qualities or character. It is submitted that in the present case the Respondents conduct was indeed out of character. She provides evidence that she is involved in a Church community and attempts to live a Christian life. She refers to and it was noted by Dr Redden that her faith has strengthened overtime since the date of the offences. 47. There is no evidence before the Tribunal that this misconduct makes up a pattern of offending or lends itself to an inference that this is an inherent flaw in her character. 48. In terms of motivation as to what gave rise to the misconduct it was noted by Dr Redden that the primary issue was financial however that it was not totally financial. The submission is that there was a high level of stress applied to the Respondent's life in around the time of the offending much of it due to her own choices and circumstances however these have not been offered as an excuse for the offending but offered as an explanation or context for the background of her motivations. 49. It is submitted that if these other issues were addressed by the imposition of appropriate conditions on her registration that future incidences of recurrence can be eliminated. 50. In terms of her underlying qualities of character shown by previous or other conduct we refer to her evidence tendered and previous submissions made in letters to the Midwifery Council on her behalf in that she is a person who has doggedly overcome adversity in her life which commences from being exposed to family violence at a young age in an impoverished country to undertaking continual study in self‑improvement in order to complete various levels of education starting with certificates for Assistance In Nursing and then undergraduate studies leading to registration as a nurse. 51. In assessing her conduct post the proven episode of misconduct, the submission is that she has at all times being fully engaged with the process in relation to her suspension of registration and termination of her employment. In terms of her conduct in the hearing she presented herself to the Tribunal and the Health Care Complaints Commission in an open and candid manner in order that she could be fully cross examined as to her understanding and insight of her conduct. This displayed a level of engagement an openness which supports now that she is a person who demonstrates that the public and professional confidence can be reposed in her to uphold the high standards of moral rectitude required of a health practitioner. 52. In terms of the process of disciplinary action; the criminal proceedings and the termination of her employment the submission is that the experience of living through the circumstances and process have amounted to a significant awareness and insight as to her own issues, motivations and conduct. It was noted by Dr Redden that the very issue of being caught, subsequently charged and disciplined can sufficiently in itself lower the risk of reoffending. In her own words Dr Redden said words to the effect of 'the message was clearly received.' Ultimate Submission on Orders 53. In terms of the Respondent's position and orders sought she understands that an order of a protective nature is absolutely imperative given her previous conduct. To that end it is submitted that orders imposing conditions upon her registration which deal with the underlying complex matrix of factors involved in her life can ensure the elimination of a recurrence of a subsequent repeat of the offending conduct. 54. In terms of what those conditions are the respondent leaves that to the Tribunal. 55. It is noted that the Commission seeks to have the Respondent's registration cancelled with a non- review period of two years to be applied. If the Tribunal is against the Respondent's position in seeking conditions to be imposed upon her registration then she would seek that her registration be suspended for a period of time to allow her a reasonable period to demonstrate rehabilitation and insight or if it is to be cancelled that the non-review period be backdated to the time at which she was suspended under the section 150 proceedings. 56. The Respondent agrees to an order for costs to the value amount of $10,000.00. DECISION AND REASONS 1. Having read the evidence contained in the exhibits provided to the Tribunal, having heard the evidence of the Applicant and the Respondent and having taken account of the Applicant's submissions, the Respondent's submissions, the record of the criminal trial and conviction against the Respondent, the Tribunal is comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct and that she has been found guilty of a criminal charge. 2. The Tribunal is satisfied that the central issue to be determined in this case is whether the Respondent should be entitled to continue practising as a registered nurse and what disciplinary action would be appropriate in the particular circumstances of the matter. 3. In considering appropriate disciplinary findings, the Tribunal had regard to a number of factors. These included the transcript of the trial before the Criminal Court and the decision of the Magistrate in the criminal proceedings, the evidence of Dr Redden and of Mr Sheehan in respect to her behaviour and the complaint against her including her actions since the transgressions were identified and a charge was brought against her. 4. In coming to its conclusion, the Tribunal was faced with the fact that a series of breaches were made by the Respondent knowingly, she having been fully aware of the criminal charges and the conviction against her and having lied in respect of significant issues relating to the investigation of the matter such as lies told to the Police when interviewing her and which were clearly, in the view of the Tribunal, undertaken in order to avoid being charged. The Tribunal does not accept the explanation by the Respondent that she thought that she only had to report the matter to AHPRA on renewal of registration. The Respondent confirmed to the Tribunal that she had read the Code of Conduct for Nurses and on the basis that that obligation was clearly dealt with, the Tribunal rejects that explanation. Section 130(1) and (3) of the National Law and the Code of Conduct at paragraph 1.1(a) and (e) impose clear and unarguable obligations on nurses. 5. In addition, paragraph 7.1(e) requires nurses to take action including a mandatory or voluntary notification to AHPRA if a nurse knows or reasonably suspects that they or a colleague have a health condition or impairment that could adversely affect their ability to practise or put people at risk. The significant part of the Respondent's defence claimed that the Respondent had an impairment, and even if that view by the Tribunal has been rejected, the Respondent knowing what on her version she knew or should have known about the stresses and strains under which she was operating, that there was an obligation on her to notify AHPRA and that would not on any view be only at the time of re‑registration. 6. The Tribunal was made aware of various views relating to the difficulties in the Respondent's life, issues of stress, of depression and was asked to consider those diagnoses as an explanation for her behaviour in this matter. While the Tribunal accepts that the Respondent might well suffer or at the time suffered from some form of depression and stress, it did not accept that this excuses her behaviour. The Tribunal relies on the evidence of Dr Reddan in rejecting those explanations as an excuse for her behaviour. 7. Exhibit 2 provided by the Respondent contained references by various family members and friends. In addition, after closing of the Respondent's case, by consent, an additional reference was provided by Dr Jacqueline Wilson who had worked with the Respondent. While these references attest to the good character and competence of the Respondent, the Respondent in cross‑examination confirmed that the personal references were given without the referees being aware of the charges and in respect of the reference by Dr Wilson, counsel for the Respondent was unable to confirm that Dr Wilson was so aware. In response to a question by the Tribunal as to whether the referees were aware of her conviction, the Respondent stated that none of the referee writers knew she had those convictions. 8. The Tribunal holds the view that her behaviour was particularly offensive in that she was dealing with vulnerable patients who were elderly and lonely without any significant support structure and she showed a remarkable lack of understanding of the harm that she was doing to others. 9. In the circumstances, the Tribunal is comfortably satisfied that the Respondent's registration should be cancelled and provide for a non‑review period of two (2) years which the Tribunal believes is appropriate and necessary to send a message to the profession and the public that the protection of the public and the standing of the profession are significant. It also allows the Respondent to do whatever may be necessary to achieve a result that on expiry of her non‑review period she will be in a position to make an application to continue to practise as a nurse should she decide to do so. In coming to this view the Tribunal had regard to the decision in HCCC v Do [2014] NSWCA 307 where the Court of Appeal held that the Tribunal had fallen into appealable error by focussing only upon the risk of re‑occurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct nor the full implications of the finding that the practitioner's skill and judgment had fallen significantly below the standard reasonably expected. In so doing the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by s3A and 4 of the National Law. 10. In respect of costs, the Applicant and the Respondent have agreed that an appropriate costs order would be a fixed sum of $10,000.00 payable by the Respondent. 11. Accordingly, the Tribunal makes the following orders: ORDERS 1. The Respondent having been found guilty of a criminal charge of theft and larceny is guilty of professional misconduct. 2. The Respondent is guilty of unsatisfactory professional conduct and professional misconduct in respect of the actions perpetrated by her. 3. The registration of the Respondent is cancelled with effect from the date of this Order. 4. The Respondent shall not be entitled to apply for registration as a nurse for a period of 2 years from the date of this order. 5. The Respondent shall be subject to a prohibition order which will prevent her from providing the following health services on a public, private or volunteer basis until she is registered as a nurse: 1. medical, hospital, nursing or midwifery services; 2. mental community health services; 3. health education services; 4. any services in respect of which she will be exposed to patients or people in a healthcare facility. 1. The Respondent shall pay the costs of the Applicant as agreed in the sum of $10,000.00. ********** 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: 30 October 2020