Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v McCarthy [2021] NSWCATOD 201 Hearing dates: 7-8 October 2021; 22 October, 5, and 12 November 2021 (written submissions) Date of orders: 9 December 2021 Decision date: 09 December 2021 Jurisdiction: Occupational Division Before: The Hon F Marks Principal Member Dr L Gregory Senior Member M Rowles Senior Member B Seth General Member Decision: (1) We find that each of Complaints One, Two, Three and Four has been made out (2) The proceedings are stood over to a date to be fixed for the Stage 2 hearing, with liberty to apply in this regard. Catchwords: HEALTH – professional registration and discipline – complaints – nurse – failure to report criminal offences and convictions – held removed ATM card and forcibly obtained PIN number and withdrew monies from account of patient without consent – held lied to NSW Police and in criminal court proceedings – finding of professional misconduct –– proceedings stood over for Stage 2 hearing to determine appropriate protective orders. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a of 2009 ss 41,130, 139B, 139E,144, 165H Cases Cited: Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521 Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Care Complaints Commission v Do [2014] NSWCA 307 Chen v Health Care Complaints Commission [2017] NSWCA 186 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Percy McCarthy (Respondent) Representation: Counsel: S McCarthy (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Macarthur Law Group (Respondent) File Number(s): 2021/00048430 Publication restriction: Non-publication order with respect to the name of Patient A referred to in the proceedings and to any information which may tend to identify that person. reasons for decision Background 1. These proceedings are constituted by an Amended Complaint filed by the applicant Health Care Complaints Commission in which allegations of misconduct under the Health Practitioner Regulation National Law ("the National Law") are made against the respondent Percy McCarthy arising out of her practice as a registered nurse. 2. The Amended Complaint is in the following form The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 (NSW) and section 145A of the Health Practitioner Regulation National Law 2009 (NSW) ("the National Law"). HEREBY COMPLAINS THAT Ms Percy McCarthy of (address omitted) ("the practitioner"), whilst a nurse when formerly registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as a nurse in New South Wales on 25 August 2003. The practitioner was employed as a registered nurse at the Hospital for Specialist Surgery, Bella Vista ("HSS"). Between 8:30pm on 16 March 2018 and 7:30am on 17 March 2018 the practitioner was the team leader on the night shift at the HSS. Patient A, a 75 year old woman, attended the HSS in the afternoon of 16 March 2018 for a colonoscopy. After the colonoscopy, Patient A was released to the surgical ward of the HSS for recovery. On 27 March 2018, the practitioner was charged by New South Wales Police Force ("the Police") with the following offences under the Crimes Act 1990 (NSW) ("the Crimes Act"): 1) Aggravated Robbery 2) Knowingly Deal with Proceeds of Crime 3) Dishonestly Obtain Financial Advantage by Deception The matter was committed to the District Court of New South Wales. The Indictment presented in the District Court contained the following offences under the Crimes Act: Count 1: Aggravated Steal from Person and Use Corporal Violence Count 2: Dishonestly Obtain Financial Advantage by Deception Count 3: Dishonestly Obtain Financial Advantage by Deception (attempt) The practitioner entered a plea of not guilty to each count. The matter proceeded to trial at Parramatta on 20 June 2019 before Judge Herbert. On 27 June 2019, the Jury returned verdicts of not guilty on Count 1 and guilty on Counts 2 and 3; the practitioner was formally convicted of Counts 2 and 3. On 16 August 2019, the matter was listed for sentenced before Judge Herbert in the District Court at Sydney. On that day, Judge Herbert sentenced the practitioner to a non-custodial sentence of a Community Correction Order ("CCO") on each count. The CCOs were impose for a period of two years, to date from 16 August 2019 to 15 August 2021 and contained the following conditions: 1) Be of good behaviour – not to commit any offence 2) Appear before Court if required to do so 3) Submit to the supervision by a Community Corrections Officer at Blacktown Community Corrections District Office 4) Complete a total of 500 hours of Community Service Work (250 hours for each offence) The Court made the following findings of fact on sentence: i. Between the time that Patient A's family had left the hospital on 16 March 2018 and the time that the practitioner left the hospital following her shift on 17 March 2018, the practitioner had obtained: a. Patient A's ANZ Bankcard and Police Credit Union Card; and b. Patient A's Personal Identification Number ("PIN") ii. Immediately after leaving the hospital, the practitioner drove to a nearby shopping centre and attended an ATM. The practitioner attempted, but did not succeed, to withdraw $1,000 from the ANZ Bank Card of Patient A. The practitioner withdrew $1,000 using the Police Credit Union Card of Patient A. COMPLAINT ONE Pursuant to section 144(a) of the National Law, the practitioner has been convicted of two criminal offences in NSW. PARTICULARS OF COMPLAINT ONE 1. On 27 June 2019, in the District Court at Paramatta, the practitioner was found guilty by a jury following trial and subsequently convicted of the following offences on the Indictment: Count 2: Dishonestly Obtain Financial Advantage by Deception Count 3: Dishonestly Obtain Financial Advantage by Deception (attempt) COMPLAINT TWO Is guilty of unsatisfactory professional conduct pursuant to section 139B(1)(b) of the National Law in that the practitioner has contravened section 130(1) of the National Law. PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to notify the National Board within 7 days of a relevant event occurring, namely that on 27 March 2018, the practitioner had been charged with the following offences under the Crimes Act: 1) Aggravated Robbery 2) Knowingly Deal with Proceeds of Crime 3) Dishonestly Obtain Financial Advantage by Deception 2. The practitioner failed to notify the National Board within 7 days of a relevant event occurring, namely that on 27 June 2019, the practitioner had been convicted of the following offences: Count 2: Dishonestly Obtain Financial Advantage by Deception Count 3: Dishonestly Obtain Financial Advantage by Deception (attempt) COMPLAINT THREE Is guilty of unsatisfactory professional conduct pursuant to section 139B(1)(I) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. PARTICULARS OF COMPLAINT THREE 1. Between the evening of 16 March 2018 and the morning of 17 March 2018, whilst on shift at the HSS the practitioner: (a) Had possession of two personal banking cards belonging to Patient A, without authority or consent of Patient A. Namely, a ANZ Banking Card and a Police Credit Union Card ("the cards"). (b) Obtained possession of the cards after removing them from the purse of Patient A which had been kept in her room. (c) Forcibly sought the corresponding PINs to the cards from Patient A. Specifically, by holding Patient A down by her arms whilst repeatedly asking her for the PIN to the cards. (d) Obtained the PIN to at least one of the cards. 2. On 27 March 2018, the practitioner voluntarily participated in an Electronic Record of Interview with a Suspected Person ("ERISP") with the Police. The practitioner was dishonest in her dealings with the Police, reflective in the version of events she proffered in the ERISP, in stating: (a) She had seen Patient A at around 12:00AM on 17 March 2018 and Patient A appeared to be confused. She called for the nurse allocated to Patient A, and handed Patient A to that nurse near the ice machine, she did not have time to find her bed or room. (b) At the end of her shift, she drove to the nearby shops and parked her car in the car park. When she exited the car, an "old lady" approached her and asked her for help to withdraw $1,0000 for her, so that she could go to the hospital. (c) The lady gave her one card with the PIN written on a piece of paper. She walked towards the shops from the car park together with the lady who waited at the entrance of the shops. (d) Initially, the practitioner said that after she withdrew the $1000 cash, she did not put any money in her wallet, rather held the money to give it to the lady. After viewing CCTV footage of the ATM, the practitioner then told police that she put the money in her bag and then gave it to the lady when she exited the shopping centre. 3. On 25 June 2019, the practitioner elected to give evidence at trial and was cross-examined. The practitioner proffered a dishonest version of events at trial, in stating: (a) When she saw Patient A near the ice machine at the HSS, she walked Patient A back to her room, but she did not enter it, rather had stood at the door of the room and then got the nurse allocated to Patient A. (b) The lady who approached her in the car park at the shops gave her two cards. The first card she tried at the ATM did not work, however the second card did. (c) After taking out $1,000 cash from the ATM on one of the cards, she placed the cash in her bad and walked out of the shops. The lady was standing by the car still. She walked to the car and gave the lady the money from the ATM. COMPLAINT FOUR is guilty of professional misconduct pursuant to section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FOUR 1. Complaint Three and the particulars of that complaint is repeated and relied upon individually; 2. Complaints Two and Three the particulars of those complaints are repeated and relied upon cumulatively. 1. The respondent filed a Reply to the Amended Complaint. In essence, the respondent admitted the fact of the criminal convictions alleged in the Amended Complaint but relied upon a number of observations made by the sentencing Judge when passing sentence on her. These were to the effect that The amount taken was $1000, the attempt was for $1000 In all the circumstances, the Court finds the objective seriousness of offences is below mid-range of objective seriousness and would be within lower range Offender was assessed as a low risk of reoffending and that she was suitable for Community Service Work The Offence is out of character The Court is satisfied that the offender is unlikely to reoffend The Offender was suffering from Depression and Anxiety now but these are situation responses as a result of her offending 1. In addition, the Reply referred to the sentencing Judge's remarks that if the respondent had only been prosecuted for the offences of which she was found guilty they would have been dealt with in the Local Court. 2. The matters referred to in [3] and [4] were also repeated in connection with the matters contained within Complaint One. 3. The Reply conceded the allegations in Complaint Two but stated by way of explanation that the respondent's husband had been informed by the human resources manager at the hospital on 28 March 2018 that she would be notifying the National Board that the respondent had been charged with the offences set out in Complaints One and Two, and that as at that date she had just been released on bail and was "under enormous stress and anxiety and was not thinking straight." Furthermore, her mobile phone had been confiscated and she was unable to access her emails. 4. With respect to Complaint Three the respondent's Reply agreed that she was guilty of unsatisfactory professional conduct but denied the Particulars because firstly she had been acquitted of the more serious charge of stealing from the patient and using corporal violence to do so and secondly the sentencing Judge had noted that the Court was unable to determine at what time or under what circumstances the respondent came into possession of the cards. However, in her Reply the respondent conceded that the court had found that she had obtained the cards belonging to the patient and the personal identification number (PIN) for at least one of those cards whilst the respondent was at the hospital. Furthermore, the respondent conceded that the Court had found that she had given "an innocent, but false explanation as to circumstances under which she came into possession of the cards and made the withdrawals." 5. With respect to Complaint Four, the respondent conceded that she was guilty of professional misconduct but disputed the underlying factual basis, such disputation covering the same matters as referred to in dealing with the earlier Complaints. 6. Accordingly, the underlying factual issues which need to be resolved are confined to those which we have identified above. In general terms they relate to the circumstances in which the respondent failed to notify the National Board of the fact that she had been charged with criminal offences which is the subject of Complaint Two and whether she removed the cards from the patient and forcibly sought the PINs from the patient. However, in order to consider whether and to what extent the respondent is guilty of the misconduct alleged against her it is also necessary to have regard to the overall factual circumstances. 7. At the request of the parties, we have made a non-publication order with respect to the name of Patient A. In order to protect that order we shall refer to the sons and the daughter-in-law of Patient A by their first names only, without intending any disrespect. 8. The parties requested that the hearing of these proceedings be conducted in two stages. The first stage involves a determination by the Tribunal of whether and to what extent the respondent is guilty of the Complaints and the Particulars thereof made against her by the applicant. These reasons for decision deal with this first stage of the proceedings. The second stage will involve a determination of whether any protective orders should be made consequent upon any findings of misconduct. The evidentiary background and standard of proof 1. Both parties filed documentary material which was admitted into evidence in the proceedings. In addition, a number of persons and the respondent gave oral evidence and we viewed certain CCTV footage. We shall refer to this evidentiary material to the extent that it is relevant to our determination of these proceedings. 2. In determining whether and to what extent any factual matters alleged by the applicant are found proven we proceed on the basis that the civil standard of proof applies, namely on the balance of probabilities, but tempered by the serious nature of the allegations made against the respondent. This involves the application of the Briginshaw standard which has been universally applied as part of the jurisprudence of this Tribunal in dealing with matters of this kind. We adopt the generally accepted approach that we must be "comfortably satisfied" on the balance of probabilities that any such matter has been established. 3. The Amended Complaint contains a number of factual assertions by way of "Background to all Complaints." The respondent did not challenge these factual matters, although she referred to additional factual matters in her Reply which we have summarised in [3] to [8] above. We have available to us underlying documentation which corroborates the matters set out in that factual background. These include a copy of the Indictment filed in the District Court of NSW and a Certificate of Conviction of the respondent issued out of the same court. We find all of those matters proven to the requisite standard. We shall refer to the additional matters raised by the respondent where necessary during the course of these reasons for decision. Complaint One 1. This Complaint relies on the provisions of section 144 (a) of the National Law which is in the following terms 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. 1. We have already found to the requisite standard that the respondent was found guilty and convicted of the two Counts referred to in this Complaint. Accordingly, it follows that by reason of section 144(a) this is a matter which may be the subject of a complaint about the respondent, and we find this Complaint proven. Complaint Two 1. This Complaint relies on the provisions of sections 130(1) and 139B(1)(b) of the National Law which are in the following terms 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) In this section— relevant event means— (a) in relation to a registered health practitioner— (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment; or …………………………………… 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. 1. The respondent conceded that she had not informed the National Board of either the fact of the criminal charges laid against her or the fact of her conviction for the offences of which she was found guilty. With respect to the former, the respondent said in evidence that the human resources officer at the hospital where she was employed had telephoned her husband on 15 March 2018 after she had been granted bail and was being driven home by her husband. She was able to listen to the telephone call in the vehicle. The human resources officer said that she had contacted "the Council" and informed someone about the fact that she had been charged with the offences. The narration contained in an affidavit affirmed by the respondent made for the purpose of these proceedings is different in that the human resources officer is asserted to have said that she was in the process of contacting the Nursing Registration Board to report the "complaint to them about the incident." In each case the respondent asserted that she was under the impression that the notification of the criminal charges had been made on her behalf, and it was not necessary for her to make any notification herself. 2. It was the evidence of the respondent that she was aware of the need to inform the National Board of the fact that the criminal charges had been made, and that she had been convicted. Indeed, in her affidavit tendered in these proceedings the respondent said that if the human resources officer "had not contacted me and said that she was notifying the nursing board, I would have contacted them and notified them about same." The respondent also said in her affidavit that she did not inform the National Board of the fact of her convictions because "I was under stress at that time and was not thinking straight." She conceded that she had not personally attended to either notification. 3. We accept the evidence of the respondent that she was under severe stress following the fact that she had been charged, and that she thought that notification by the human resources officer had discharged her responsibility to do so. However, that explanation does not apply to the respondent's admitted failure to notify the National Board of the fact of her convictions. As the applicant submitted, the obligations created by section 130(1) are in the nature of "strict liability" obligations, and questions of intention and motivation do not arise in determining whether the obligations have been breached. 4. We proceed on the basis that the criminal charges made against the respondent and the findings of guilt and convictions for two of those charges are of a kind which satisfy the provisions of a "relevant event" for the purpose of section 130(1)(a) of the National Law, and that the respondent failed to make notification as required by that subsection. Accordingly, we find the Particulars of this Complaint proven to the requisite standard, but note the explanations provided by the respondent as to the circumstances pertaining to her failure to notify the fact that she had been charged, and the fact of her convictions. Surrounding circumstances may arguably impact upon the consideration of appropriate protective orders, a matter which we will consider during the course of the stage 2 hearing. However, we do not regard those circumstances as militating against a finding that the respondent is guilty of unsatisfactory professional conduct in consequence of those breaches. 5. This Tribunal has had occasion to comment on the importance of compliance with the provisions of section 130 of the National Law. In Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 at [31] the Tribunal said Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place. In our view Mr Holbrook's delay was a contravention of the National Law. We are satisfied that his delay in notification constitutes unsatisfactory professional conduct. 1. This matter was the subject of further comment in the Tribunal in a matter dealing with a dental practitioner, but we regard those comments as being equally relevant to a nursing practitioner. In Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 the Tribunal said 31 The dental profession is a regulated profession, designed to ensure inter alia the health and safety of the public and to enhance the confidence of the public in the integrity and competence of the profession. A requirement that dentists are compelled to inform the regulatory authority of any criminal charges and convictions for criminal offences, in each case of a serious nature, is a means by which the regulatory authority is able to maintain control over any practitioner who has engaged in conduct which is inimical to the proper and ethical conduct of dentists. Not only is there a requirement to provide this information as and when it occurs, but also on renewal of registration. A failure to comply with these requirements as and when compelled to do so is potentially a matter of some seriousness. 1. The charges levelled against the respondent, and the convictions recorded against her were all serious matters pertaining to her practice as a nursing professional. It is incumbent upon health practitioners to inform themselves of the regulatory requirements under which they practice. A failure to do so does not excuse non-compliance. In these circumstances the findings which we have made that the respondent has contravened section 130 (1) of the National Law must result in her being found guilty of unsatisfactory professional conduct. Complaint Three 1. We have previously noted that the respondent disputes that she obtained possession of the cards of Patient A after removing them from her purse, and that she had forcibly obtained details of the PINs of both cards. The evidence of Patient A 1. Patient A has died and the only information available to us which is relevant to these proceedings is contained in a signed statement which she made to NSW Police dated 21 March 2018. 2. Patient A recalled having been taken back to her hospital room after a medical procedure which involved a local anaesthetic at about 8:30pm on 16 March 2018. She recalled her daughter-in-law, Fiona being present. After a while she went to sleep. Patient A said in her statement I thought I was dreaming. I was shaking my head thinking it was a dream and it was the anaesthetic. I could feel someone hurting me and holding me down. I could feel someone holding me down on the bed or on the ground. I was trying to get away, and I did get away from the person at times. I could feel someone pinning me down by my arms and my legs. They are pushing down on my legs and arms. No one was saying anything to me, they just sounded anxious about what they are doing to me. I was so frightened. While I was being held down, I heard a female voice, getting agitated and she asked me for my PIN number. She said "can I have your pin number?" I said, "No, you can't have my PIN number." She asked me again, "can I have your pin number?" I don't remember giving my PIN number to the lady, but I was quite delirious. While this was happening, there was very minimal lighting coming from the corridor, and the lights were off inside my room. The female voice sounded like an older woman, but I'm not sure, she sounded more mature. 1. Patient A described the nurses who were looking after her as being "dark, with dark hair." 2. Patient A said that there was no written record of her PIN numbers anywhere in her bag or wallet. She said her wallet had been placed in her handbag and had been wrapped up by Fiona in some clothing and hidden in a cupboard in her room. She said she needed her bag with her so she could pay for everything after her operation. 3. Patient A said that she woke at about 5:30 am the following day. She had noticed that she was hurt and that her left arm was bleeding and there was a lot of blood. She said that she was "covered in my own faeces, and my breast was exposed, and my nightie was up around my waist." Arrangements were made for the nursing staff to clean her and attend to her wound. She noticed that her bag was upside down on the floor. Patient A called her son Michael who came to the hospital with Fiona. Her other son, Matthew visited her later that day. Her sons told her that she appeared to be bruised as if she had been assaulted. They checked her bag and wallet and noticed that her ANZ Bank card and Police Credit Union card were missing, as was approximately $50 in cash. She said that she was the only person that had access to both accounts and knew her PIN number. She had not given permission to anyone to use those accounts. 4. Patient A attended a plastic surgeon on 19 March 2018 to repair the cut in her left arm. She said that at that stage "I have several large, dark purple coloured bruises on both of my arms, legs and I have a few bruises on my back. I am sore everywhere. The bruises on my body are not typical of the procedure that I went in for." 5. The statement of Patient A was read to the District Court of NSW criminal proceedings brought against the respondent. The evidence of Fiona 1. Patient A's daughter-in-law, Fiona made a signed statement to NSW Police on 6 April 2018. She visited Patient A in the hospital on the afternoon of the procedure, and before she was taken from her room Fiona hid her handbag which contained her purse "under the cabinet, where the wheels sit, so it was hard to find.". Fiona remained at the hospital until Patient A was taken back to her room. She observed that Patient A "was fine", she had a small bandage on her left wrist, but she did not see any bruising to her arms or body. She noted that all of the bed railings were up to protect Patient A from falling out of bed. 2. Fiona said that she again attended the hospital between 8 am and 8:30 am the following day after receiving an urgent telephone call from Patient A made to her husband, Michael. She noticed that Patient A "appeared stressed and upset. One of her breasts was hanging out of her hospital gown, she was covered in faeces, her left forearm was bleeding, the skin was pulled off where it was bleeding, the bottom half of her gown was lifted around her waist. Patient A said to her "They held me down, they had me cornered" Fiona said that she noticed several dark and large bruises on patient A's forearms and upper arms. When she asked Patient A about the bruises she responded "She held me down and tied me down. The nurse was angry at me, the nurse was cranky at me because I was a naughty girl. The nurse was yelling at me." 3. Fiona then said that she noticed that the bag of Patient A was "out on the floor, upside down, and not in the place where I hid it." 4. Fiona gave oral evidence concerning these matters in the District Court of NSW Criminal Jurisdiction on 20 June 2019 and was cross examined on that evidence on behalf of the respondent who was the defendant. This evidence is confirmatory of the material set out above. The evidence of Michael 1. Patient A's son Michael made a signed statement to NSW Police on 16 April 2018. He said that he had received a phone call from Patient A about 6:15 am on 17 March 2018. He described his mother as sounding "freaked out". She asked him to come and get her saying that "they're attacking me, they're holding me down, they're hurting me." He arranged with his wife, Fiona to attend on his mother because he had work commitments. He arrived at the hospital between 10:30 am and 11 am and at that stage his brother Matthew was there. They searched for her handbag and were told by Fiona that she had found it and placed it in some drawers beside patient A's bed. They noticed that the money and cards were missing from her wallet. They were later informed that $1000 had been withdrawn from the Police Bank card from a RediBank ATM at Norwest Marketown at 7:39 that morning. 2. Michael said that he noticed that there was black bruising on his mother's arms and forearm and finger marks around the side of the neck and on her lower back. 3. Michael gave oral evidence concerning these matters in the District Court of NSW Criminal Jurisdiction on 20 June 2019 and was cross examined on that evidence on behalf of the respondent who was the defendant. This evidence is confirmatory of the material set out above. The evidence of Matthew 1. Patient A's son Matthew made a signed statement to NSW Police on 16 April 2018. He said that he had visited his mother on 16 March 2018 and saw her after she was being wheeled into her hospital room following her procedure. He said he spoke to her, and she appeared to be "a little bit groggy." She "was wearing a hospital gown which came down to just above her elbows. I didn't see any visible injuries on her arms apart from a little bit of bruising on her forearm which is quite normal for her as she bruises easily." 2. Matthew said that before leaving his mother he noticed that her purse was in the bottom drawer of a chest of drawers next to her bed. He stayed with his mother for about two hours, and she was mostly asleep. However, when she spoke to him, he said her voice was clear. He left the hospital between 8 pm and 9 pm that day. 3. Matthew said that he went to the hospital about 7:30 am the following day after receiving a telephone call from Fiona. He said he saw his mother sitting in bed with a nappy on, wearing a nightgown, but surrounded by faeces. He noticed that her purse was on the floor in the left-hand far corner behind the bed head. He said "I also noticed the bottom drawer was open. This was the drawer where her purse was in the night before." He noticed that his mother had a large cut on her left arm which was not present when he had seen her the night before and that she also had bruises on her chest that "look like finger bruises, as if someone had pressed on her." That bruising was also not present on the previous night. His mother said to him "I was on my way home, they were holding me down and had to be restrained, I don't know what I've done wrong." 4. In his statement Matthew confirmed that his mother looked through her purse and noted that her cash and two cards were missing. 5. Matthew gave oral evidence concerning these matters in the District Court of NSW Criminal Jurisdiction on 20 June 2019. This evidence is confirmatory of the material set out above. In addition, Matthew gave evidence that he was unaware of the PIN numbers of his mother's cards. Statements by nursing staff 1. As will be seen, the involvement of various members of the nursing staff on duty at the hospital on the night of 16 March 2018 and the following morning is critical to the resolution of the factual controversy concerning this Complaint. 2. Registered Nurse Joanne Ocampo made a written statement to NSW Police on 5 April 2018. She was rostered on the night shift on 16 March 2018 between 9:30 pm and 7:30 am the following morning. The respondent was her team leader on that shift and other nurses were Alyssa Guibone and "Hazelou", whose family name we know is Arzaga. She first saw Patient A at about 7 pm during handover from the day shift. Patient A was in her bed, the four side rails were up and she was told that the patient would need assistance going to the toilet. Patient A was awake and said that she wanted to go to the bathroom. Ms Ocampo told her that she would arrange for a nursing assistant, Jinzhi to attend to this. 3. Significantly, Ms Ocampo did not notice any bruising or dark patches on the arms, body or legs of Patient A who was wearing a hospital gown and a bandage on her left arm. The skin had been torn whilst she was in recovery. 4. At around 10 pm Ms Ocampo assisted Patient A to go to the bathroom, returned to her bed and put down one of the side rails in case she needed to go to the bathroom again. At that stage she noticed "some bruising" on patient A's upper arm and forearm but did not ask her how the bruising had happened. Patient A did not complain of any pain or make any other complaints at that time. 5. At around 1 am Ms Ocampo saw the respondent standing with Patient A in front of the nurses' station 2 and holding an ice pack. The respondent asked her what room Patient A came from and then offered to take her back to her room, 339. She said she saw the respondent walk Patient A back towards room 339 but did not follow because she was attending to another patient. 6. At about 2:45 am Ms Ocampo was informed that the occupant of room 338 had complained that Patient A was knocking on his wall. Hazelou told her that she had gone to her room and had seen Patient A standing in front of her wardrobe, knocking on the door and saying "let me out!" Hazelou put her back into her bed. 7. Ms Ocampo next saw Patient A at around 5 am as she was conducting her final round. She was asleep in bed but noticed that there were faeces on the sheets, her gown, and the carpet leading towards the bathroom. Whilst she was assisting to clean her, she said that "this is when I really noticed the bruising on her arms." She showed this to Hazelou but did not make any enquiries of Patient A as to how this had occurred. 8. Even though her shift had finished at around 7 am, Ms Ocampo stayed on the ward chatting till past 7:30 am. She was informed that the respondent had left prior to 7:20 am. 9. Ms Ocampo gave oral evidence concerning these matters in the District Court of NSW Criminal Jurisdiction on 24 June 2019 and was cross examined on that evidence on behalf of the respondent who was the defendant. This evidence is confirmatory of the material set out above. 10. Hazelou Arzaga, an Assistant in Nursing made a written statement to NSW Police on 5 April 2018. She worked the same evening shift as the respondent and attended with Ms Ocampo for the handover. She noted that Patient A had a skin tear on her left arm, which was bandaged, but otherwise did not see any bruising or marks on her body. 11. At around 11:30 pm Ms Arzaga assisted Ms Ocampo to go to the bathroom. At that stage she noticed "small patches" on patient A's arms. She said "Some looked like bruises, and others looked like red marks that would turn purplish." 12. At around 1:30 am Ms Arzaga saw the respondent walking back from room 339, which was occupied by Patient A. The respondent informed her that she had guided Patient A back to her room because she did not know where her room was, and she was wandering around. 13. At around 2 am Ms Arzaga assisted Patient A to the toilet. At that stage she said she noticed a few patches of bruising on her arms. She walked back to the nurses' station and saw the respondent sitting there. 14. At around 5 am Ms Arzaga assisted Ms Ocampo to clean up Patient A who had soiled herself. She left at about 7:20 AM and noted that Patient A was asleep in her bed. 15. Ms Arzaga gave oral evidence concerning these matters in the District Court of NSW Criminal Jurisdiction on 24 June 2019 and was cross examined on that evidence on behalf of the respondent who was the defendant. While giving that evidence Ms Arzaga was asked to describe the area where she saw the small purplish patches at around 11:30 pm and said that it was just below Patient A's right elbow. Significantly, in that evidence Ms Arzaga confirmed that she had seen the respondent coming back from the room of Patient A at a time which could have been between 1 am and 1:30 am and that the respondent had said words to her to the effect that she had guided Patient A to her room because she didn't know where her room was, and she was wandering around. 16. Alyssa Guibone, registered nurse, made a written statement to NSW Police on 5 April 2018. She worked the same night shift as the respondent. At around 1 am on 17 March 2018 Ms Guibone saw a patient whom she came to know was Patient A walking towards the nurse station 1. After going into another room to check a chart, Ms Guibone said that she saw the respondent standing with Patient A and take her into room 339. She herself did not go to that room nor could she say how long the respondent was in the room with that patient. 17. Ms Guibone gave oral evidence concerning these matters in the District Court of NSW Criminal Jurisdiction on 24 June 2019 and was cross examined on that evidence on behalf of the respondent who was the defendant. This evidence is confirmatory of the material set out above. Ms Guibone also gave oral evidence in these proceedings. She again confirmed that she saw the respondent take Patient A into her room. 18. Jon Balbin is a registered nurse employed at the hospital. He made a written statement to NSW Police on 11 April 2018. Mr Balbin worked the day shift on 17 March 2018 and was called to the room of Patient A by Fiona between 8 am and 9 am that day. He noticed that Patient A had a big skin tear of about 5 cm on her left forearm which required extensive dressing, as well as "a small skin tear near her left wrist about 2 cm in size which was covered by Steri-Strips" and was a neat dressing. There was a notation that the small tear had been made whilst the patient was in recovery, but no mention of the larger skin tear in her clinical notes. Dr Farzan Bahin 1. Dr Farzan Bahin is a specialist gastroenterologist who carried out the procedure on Patient A on 16 March 2018. In a written statement to NSW Police dated 10 April 2018 Dr Bahin said that on the day after the procedure he noted a bandage over her left forearm but did not recall seeing any bruising on her arms. He was aware that Patient A subsequently underwent a skin debridement by a plastic surgeon. 2. Dr Bahin gave evidence in the criminal proceedings, largely directed to whether Patient A might be confused after the procedure as a result of the general anaesthetic, whether she was likely to have been bruised during the procedure and whilst being moved from the operating table to her bed, and the period during which bruising might appear. With respect to the first matter his evidence was that he would expect in a patient with the comorbidities of Patient A that any confusion might last for 6 to 8 hours. With respect to the remainder of his evidence, his evidence was based on conjecture, and we do not apprehend that it is of assistance in resolving the factual controversies in these proceedings. 3. Dr Bahin gave evidence in these proceedings. He was asked specifically whether and to what extent pressure and trauma would cause tearing of Patient A's skin. Dr Bahin noted that Patient A had been diagnosed with myelodysplasia, and this rendered her more susceptible to bruising. Nevertheless, he said that a fair amount of pressure would be required to cause tearing to her skin. He noted that her platelet count was between 80 and 90, and a normal count was 150. He said that it would take a fair amount of force to create bruising if the platelet count was above 50. Dr Bahin was asked to speculate about whether a fall could create bruising to which he agreed. He was also asked whether taking blood pressure could also cause bruising. In this regard Dr Bahin noted that it was usual to measure blood pressure over the biceps and not on the forearm, which was the site of the larger tearing of patient A's skin. 4. Dr Bahin said that Patient A had told him that the incident had occurred when she was asked to hand over her card, there was a struggle when she refused, and her skin had been torn in that struggle. Patient A did not inform him when the incident occurred, and she did not name the perpetrator. Dr Charles William Lee 1. Dr Lee has general practitioner qualifications and since 2008 has been employed by NSW Police to provide medical evidence. He gave oral evidence in the proceedings in the District Court and was cross examined. Dr Lee examined Patient A on 22 and 27 March 2018, with particular reference to the state of her skin, and the extent of blue discolouration which he "took to be bruising." Dr Lee found bruising on both sides of patient A's neck. He described it as being situated at the front of the neck on each side in a diagonal from the jaw towards the lower neck in the centre. There were also signs of discolouration which Dr Lee assumed to be bruising on patient A's torso halfway along the length of the breastbone and slightly to the left of the midline together with a cluster of circular areas on the left side of the upper back and also on the lower back at about the level of the 10th rib. He also found extensive discolouration of the skin on the right upper arm just above the elbow which he measured as being an area of 10 cm x 15 cm, together with a large area of discolouration on the right lower arm. Initially, Dr Lee was unable to examine the left arm because it was extensively bandaged but he took that opportunity on 27 March 2018 when the bandages were removed by a specialist plastic surgeon. He observed an area of dark blue discolouration on the left arm and further discolouration on the back of the lower left arm together with a small area of scabbing on the upper left arm. 2. Dr Lee said in evidence that he did not obtain a narrative from Patient A as to what happened to her, but he had read a statement from another person, who was not identified. 3. It was the opinion of Dr Lee that the severity of the bruising which he had observed was such that it would have been noticed if it was present when Patient A was first admitted into hospital. He said that the fact that the bruising was in clusters, that it was not evenly or symmetrically distributed suggested "that there must have been significant trauma to cause that." It was his opinion that the bruising to the neck was unlikely to have been caused by falling or banging against something and the flap injury to the left arm or the outer portion of the left arm was suggestive of blunt force trauma. In giving this evidence Dr Lee conceded that it was difficult to be categorical about the cause of injuries of this kind, but it was not of a type that would be expected from spontaneous bleeding, a bleeding disorder or a clotting disorder, and was unlikely to be caused from "trivial trauma". The evidence dealing with the withdrawal of monies from the ATM 1. We have available to us evidence that demonstrates that an attempt was made at a RediATM situated at 4 Century Circuit, Bellavista/Baulkham Hills, to withdraw $1000 from a financial institution card of Police Bank Ltd issued in the name of Patient A at 7:48 am on 17 March 2018, which was declined due to an incorrect PIN, and that a further attempt to withdraw the same sum from the same card at 7:49 am that day was successful. We understand that these matters are not in contention in these proceedings. 2. Included in the evidence in these proceedings is CCTV footage taken from the ground floor lobby of the area outside the hospital and the area around the ATM taken from cameras associated with a Gloria Jean's facility, and Norwest Marketown facility, including a fixed camera showing the ATM from which the monies were withdrawn. The footage commences with a person who is admitted by the respondent to be her walking away from the hospital reception area on 17 March 2018 at 7:27 am, walking through the Norwest Marketown car park area towards the ATM, spending a few minutes at the ATM, walking away from the ATM putting what appears to be cash into her wallet and then into her bag, and walking out into the car parking area. A little time later the respondent is seen re-entering the shopping area, and then finally leaving it placing something into a rubbish bin on her way out. She is then seen to walk back into the car parking area and at that stage the CCTV recording finishes. The respondent's evidence Statement to police 1. On 27 March 2018 the respondent was interviewed by officers of NSW Police, concerning "an aggravated robbery which occurred on 16 March 2018." She was asked to explain what happened during her shift at the hospital which she said started "at 8.30" that day. In describing generally what happened the respondent said that there was one "confused patient" who was "coming around" (presumably to the nurses' unit) at around "12.00-ish" whom she handed over to a nurse who took her back to her bed. After her shift finished, she went to Baker's Delight in the Norwest shopping centre. She said that there was this old lady there, by the car park, who approached me and said Love, uh, can I have some help. And I said, what help. She was having a little… band aid on her hand. And… fully dressed up with a coat and all that. And I said… being a nurse, I was tired as well, I said, I was a bit concerned. (she said) I need to get a taxi can you help me. I said I don't know the taxi number, I have to look up. And she said, oh, I can't see. She was wearing sunnies. And… she said can you give me some money. I said, I don't have any money on me. I had, but I didn't want to give. … she said…. I have my card, can you draw some money for me. I said, I don't have time. Please honey, I have to, I have to go to the hospital. And she gave me the card and the number, I said, have my keys with me, how much do you want me to draw. She said, can you get me $1000. So I went to the bank, I drew, I did not know where the machine was, because I only go to the ATM bakery, and I come back. And I gave the money back, took, took my car keys back. ….. I got my bread and went home. 1. Later in the interview the respondent identified herself in a series of photographs which she was informed that been taken from CCTV footage. She was adamant that after leaving the ATM she did not put the money which she had withdrawn into her wallet she was carrying but gave it to the lady whom she described as wearing a jacket and a sling in her hand, which was bandaged. She said that she was only given one card, and that the lady had written the pin number on a piece of paper and wrapped it around the card. She said that the lady had remained at the entrance to the shopping centre waiting for her to withdraw the money. She identified the lady as being of average build, Caucasian and spoke with an Australian accent. 2. The respondent was questioned specifically about her interaction with Patient A. She was adamant that she did not know which room this patient occupied, that she had not entered that patient's room, she had not touched the patient other than to lead her by the hand to a nurse, Joanne, and that she had nothing further to do with her after handing her over to Joanne. 3. The respondent was informed in the course of the interview that officers had located $450 in cash in her purse, alleged to have been part of the cash withdrawals of $1000. The respondent denied this. 4. Later in the course of the interview the respondent was shown the CCTV footage. She acknowledged that this showed that she had placed the cash which she had withdrawn into her bag and said that she had forgotten about this. 5. The respondent later confirmed that the lady for whom she said she had withdrawn the money was not Patient A. Evidence in the District Court 1. The respondent gave sworn evidence in the District Court criminal proceedings brought against her. 2. The respondent was asked to give her recollection of her interactions with Patient A. She said that she first saw her wandering around near the kitchen area of the nursing unit in a confused state. She attempted to make contact with another nurse, Joanne who was busy, so she took the patient to her room. The respondent said "I stood at the door and I said "sit on your bed, I'll send a nurse to look after you."" The respondent then left to look after a patient to whom she was attending. The respondent was adamant that she did not enter the room of Patient A. 3. When referred to her police record of interview where the respondent had said that she had handed Patient A over to another nurse to take her back to her room, the respondent said that her recollection on that occasion had been faulty, and after thinking over her police statement she recollected that she had taken Patient A to her room because it's a "usual thing for us as nurses to help each other when you have patients who…..need extra care, we help each other." 4. The respondent said that she had no other interaction with Patient A on that shift. 5. When asked to give her recollection about what happened in the car park on the Saturday morning respondent said that after she parked her car in the Norwest parking area, she was approached by a lady wearing sunglasses, a jacket and a handbag with a sling on her arm. The lady asked for some money and then asked her to take her "card" with a PIN number wrapped around it and withdraw some money for her. She said she needed to take a taxi to the hospital. The respondent said that she took pity on the lady and walked quickly to the ATM where she found that there were two cards wrapped in a paper containing a PIN number. She said she put the first card into the ATM but the PIN did not work with it. She then put the second card into the ATM and withdrew "the money", put it in her bag and came out. She saw the lady standing by her car, gave her the money and then went to Bakers Delight to buy a croissant and went home. 6. When asked to explain why, in her police record of interview, the respondent had only referred to one card, she said in her evidence that she only referred to one card because "one card was the one which gave the money out. I didn't think about the other card but later I realised the one card which I did not use did not give any money, so I used the second card." 7. The respondent gave evidence that she again worked at the hospital that Saturday night, and Patient A was assigned to her. The respondent attended to her that shift without incident. She was aware about complaints made by the family of Patient A that her cards had been stolen but did not connect this with "the shopping centre incident" because a "totally different lady" was involved. 8. In cross examination it was put to the respondent that her description of the lady wearing a sling given in her evidence was different to that contained in the police record of interview where she had described the lady as having a little bandaid on her hand. It was also put to her that it would be implausible for the lady to withdraw $1000 for the purpose of taking a taxi to a hospital, the nearest hospital being where the respondent worked, some five minutes' drive away. Furthermore, it was put to the respondent that it was implausible that she would give her car keys to a complete stranger who was aware of the place where the vehicle was parked. It was suggested that the respondent was fabricating her evidence, especially as the card which she used to withdraw the money allegedly given to her by the lady in the car park was the card of Patient A. The respondent denied that she was lying. 9. In her record of police interview the respondent had explained why she had $450 in cash in her wallet by reference to monies which had been given to her children for their birthdays and at Christmas. She endeavoured to explain why she still had that money in cash as at March the following year by referring to the cost of an outing with children which did not take place. 10. The respondent was also taken in cross examination to the conflict between her evidence that at no time had she entered the room of Patient A and that of her two colleagues who had given evidence that they had seen her entering the room and her colleague who had seen her come out of the room. 11. Despite all these matters the respondent asserted that her version of the relevant events as given in her sworn evidence in the District Court was true. The evidence of the respondent in these proceedings 1. The respondent gave evidence in these proceedings and was cross examined. She was asked to describe the circumstances in which she had come to have Patient A's ATM cards. In referring to meeting Patient A walking around the corridor of the unit the respondent said A. When - at around 1.30 when the patient was walking around, and she had two cards in her hand wrapped up with the paper. And she said, "I - I'm" - normally my - I mean, she said, "My sister helps me with my banking and all because I can't go and I can't travel much, but my sister had an accident. She fell and she broke her arm, so there's no one to help me." I thought it was genuine at that time. And I said, "Okay, what do you want?" "I need money," she said. And I said, "How much do you want?" She said, "I need $1,000." And I said, "Okay, I'll help you." So she handed me the card and then a piece of paper wrapped around two cards with a PIN number on it and I - I took it from her. She gave it to me, I took it from her and I said, "I'll bring it back for you." So then when I took it, she calmed down. That's when she was - she went back to her room. That stopped her from walking around. Which I shouldn't have done. At that moment, I thought I'm helping the patient. But I did not go through the notes or read anything, what is the condition of the patient, but I did it out of - I can't even explain why I did it, but ….. 1. The respondent was then asked whether she had forced Patient A to give her the cards and she responded A. No, she gave it to me. She gave it. I didn't make her give it, she said, "Can you help me?" 1. The respondent also denied holding the patient Q. Did you at any time hold the patient? A. No, I did not hold the patient. Because she was able to walk, I did not hold the patient. I just guided her. I just put my hand behind her. I guided her, but I did not hold the patient. 1. The respondent then gave the following account of subsequent events Q. What did you do after that? A. After that I carried on doing all my chores and work and finished the shift. And I thought the - the shopping centre's close to the hospital; I went there. I drew the money, come back and giving to the client. I thought, I'd go home, finish, because I was tired after the night shift. And I thought, I'm coming back to the shift, I have to give it - give it back to the patient when I come back to the shift rather than coming back at that time. So I went home. I did my shopping, and at the shopping centre, first, I drew the money. Then normally I go there to get some croissants for my children for Saturday morning as a treat. So I went there, and after drawing the money, I went back to the car and realised I did not get the croissants. I came back into the shopping centre, got my croissants, went back home, and then came on shift. And I heard from the afternoon nurse what had happened, that the family said that someone stole the card and they've complained to the police. And it was written in the notes, as well in the afternoon notes, I read it clearly, and I thought, oh, my goodness, they have a complaint to the police. And I went to the - because she was my client that night, I looked after her in 312. Q. On the 17th she was your patient. Is that right? A. On the 17th she was not my patient, but the 17th night going into the 18th, she was my patient. Because they said she was confused and all that so they - so they brought her close to the nurses' station, and she was my patient. I looked after her. So, that night after the handover, after I read the notes of the afternoon staff, clearly what's written there, I went and gave the card and the money to the patient and I said, "I'm returning your card." But I did not notify anyone. I thought if anyone calls and asks me, like, my manager or the nurse unit manager, I tell them that I've given it back, yes, I did it. But no one asked me. I thought they would find the money and the card and it will be solved. Q. Did you at any time see any bruises on the patient? A. I did not have a chance of examining on the 17th while I was..(not transcribable)..I saw her hands was all bruised, but I didn't have a close examination. But on the 18th, I did see some bruises on her hand, and the bandage was still wrapped. And the nurse handed over to me the dressing of the skin tear which was - which had happened in the recovery or..(not transcribable)..which they had a bit of - what is this - what to say - that they had a bit of argument kind of a thing, but that happened in the OT or in the recovery. But there was an incident written already that it had happened in the recovery, so the family was aware of it as recover of the skin tear which was there on the patient's left arm. 1. The respondent was asked in cross examination why she had accepted the story given to her by Patient A concerning the withdrawal of the monies when she had found Patient A wandering in the corridor in a confused state. Q. So, you're telling me as a nurse of some qualification, 15 years' experience A. Yeah. Q. that you took the word of a patient you considered to be confused, is that correct? You took the word of a patient you considered to be confused at 1.30 in the morning in the hallway of hospital, is that correct? A. No, no, no, she confused because Q. Yes. No. Sorry. If you let me repeat the - what I'm asking you A. Yeah. Q. is did you think it was appropriate, given your experience A. Yeah. Q. to take on its face or believe what the patient was telling you in terms of the request for the money, a patient who you knew to be confused? A. Yeah. I thought it was appropriate action to do when I did it. Q. I'll suggest to you that, for a nurse of your training and experience, that cannot be the case, and it ought not be the case. What would you say to that? A. Well, I should have - I should have analysed it better, like, a bit more, because I was, you know, in rushes doing my things and I took her word for it and I - and I thought I was helping her. As I - as I say again and again, I thought that was really a good act of helping her, which it was not. Q. You gave evidence earlier that you would expect your staff and your team to report incidents to you. A. Yeah. Q. Did you report this incident anywhere? Did you write it down, make a note? A. No, I did not. 1. The respondent was questioned in cross examination about the veracity of her evidence that she had returned the money to Patient A at the start of the next shift Q. You also gave evidence earlier today that you returned to the hospital, HSS, the following day, and I believe you said that you A. Yes. Q. gave the cards and the money back to patient A. Was that your evidence today? A. Yes, yeah. Q. I understand that Mr Michael (surname deleted) gave evidence yesterday in these proceedings that the cards and money was not, in fact, returned until four weeks after, at least four weeks after, March 2018. Do you recall that evidence? A. Yes, he did, yeah. Q. I suggest to you, Ms McCarthy, that it is not correct that you returned the cash and the cards the following day, but A. But how did she - how did she get it after that many days, then? If I did not return to her on the same day, how did she get it that many days later? Q. Ms McCarthy, I'm asking the questions, if that's all right. A. Yeah. It's - Mrs Sarah McCarthy, I would like to say that when I returned to work on the 17th evening at 9.30, going into 18, that's when I saw the previous nurse's notes written, everything in detail, that the - that the family had complained to the police and all, and I was - I - I really was nervous at that. "This has gone to the police," and I returned the money and the card to the patient, and I said, "Here. What you asked, I've given it to you, but your family has complained to the police," and I thought if my nurse unit manager or other management call me and ask me, I'll say I have returned it. Q. So instead, in response to reading the notes, you thought it would be a good idea to say nothing. Did you tell anyone at HSS at that time A. No. Q. that you had the cards? A. No, I did not say anything. I returned to the patient. If I was questioned, I will say what had happened, but at no point of time I was questioned or asked anything. Q. Ms McCarthy, respectfully, you were questioned by the police, and as we've been through, you gave a response to the police that's wholly inconsistent with your evidence today. A. Yes. That was by the police, but by the hospital, I wasn't questioned at all. I was working for another week after this incident. 1. Later, in cross examination the respondent gave the following evidence Q. Mrs McCarthy, why didn't you tell anyone, including the patient's family, that you had returned the money? A. I did not have any opportunity to see the patient's family because it was late. I mean, I worked the night shift and - I did not tell anyone because I'd seen the police information around there, and I was really nervous that that had happened, and I thought she'll tell the family that she's got the money and the card. Q. Sorry, there's actually two questions. So why then when you were questioned by police did you not tell them that you returned the money? A. That's - you know, when they came to my house, it was a real shock, and the - and the police lady who took me, she said, "We know everything what you have done. You've bashed up the patient." That shocked me. I thought, "No, that did not happen." And that was a real shock to me. I thought if I say anything like that they - they will say that, yes, I have done that. So I just - I just was very nervous. I was - I was - I was shaken because there was, what, ten, 15 police at my house, and that was a very scary moment for me, and I - and my world fell apart at that moment of time. Q. Thank you, Mrs McCarthy. The final thing that I would put to you is the reason why you didn't tell the police in 2018 was because it didn't happen. Would you agree with that? A. No, it's happened. I told them I gave the money back to the lady in the shopping centre, but this - I do not say this incident because the lady said, "We know everything what you've done. You have bashed up the patient." That shocked me. 1. In cross examination the respondent was asked to explain why the version of events which she had given in evidence in these proceedings as to the circumstances in which she obtained access to patient A's ATM cards and withdrew $1000 from an account differed from the versions of events related by the respondent to NSW Police during the initial interview and given under oath in her evidence before the District Court of NSW. Before setting out her explanation we confirm that a certificate under section 128 of the Evidence Act has been provided to the respondent with respect to this evidence. We set out the following exchange between the applicant's counsel and the respondent Q. So, are you telling me and this tribunal that you lied under oath to the District Court of New South Wales? A. Yes, I did. Q. Following on from that, that you lied to New South Wales Police during the ERISP interview? A. Yes, I did. 1. In re-examination the respondent gave the following evidence in answer to questions from her solicitor Q. Why did you lie about giving it to that lady? A. Because I did not have the money on me, because I returned it to the patient to say that I had given the money, but I don't - I didn't take it, because there was no need for the money. I was - I was earning enough, and I had a good life, I didn't want that money. So I had returned it that, so I said, "Somebody" - one or the other way, I had returned the money. Q. Now, when Ms Sarah McCarthy asked you about your giving evidence to the police, giving that statement to the police, and giving evidence at the District Court, do you agree that you gave the wrong information? Is that right? A. Yes. Q. Can you clarify as to why you did that? A. Because I was - the hospital did not investigate or do anything. I would have told if the hospitals had asked my managers, would have asked - there was no - any investigation by the hospital. But nothing had happened, and all of a sudden ten to 15 police swarmed my house, they just were recording and all that. That shocked me. I thought I would be put behind bars, and I would not be able to come back to see my children, or - I was - I was terrified. Q. So are you saying that is the same reason as to why you gave that information about returning the funds to a lady, and also lying to the Court, is that right? A. Yeah. 1. Significantly, the respondent was asked the following question by her solicitor, and her answer is relevant to her awareness that her professed involvement in the use of Patient A's ATM card constituted misconduct Q. Initially you said that you shouldn't have done that. Why is that? A. I shouldn't have done that at all. I, as a professional nurse, I shouldn't have taken that. But there was so much stress that I was handling so many things, I thought she's - she's confused walking around, just looking for - I'll help her out. I thought I was helping her, but - but I did not mean to do that, and I shouldn't have done that - that thing. I let my profession. I've - I have caused so much of pain to the family by doing this by me thinking it was help, which is not. And I'm very, very sorry for what has happened. And I've never done anything like this before, so I have muddled it up. 1. Later, in answer to a question from the Tribunal the respondent gave the following evidence Q. Ms Percy McCarthy, if you don't mind the hospital that you worked at, what was the normal practice for handling patients' valuables such as money, et cetera? A. Normally when they come, if they have cash on them, we - if they wanted to give it to us, they keep it in the safe, or else they have it on them and they - and it's - and they handle it. Q. Okay. So if you're keeping it in the safe, there'd be some sort of recording process around that I would assume? A. Yes. Yeah. Yeah. Q. That would normally involve a couple of staff members, I would assume? A. Yes. Two staff. Two staff really sign off, and then - that is if they are willing to give it to us to keep it in the safe, or else they have it on themselves. 1. The respondent was then asked by the Tribunal further questions with respect to the safekeeping of Patient A's monies Q. Ms McCarthy, you didn't have any conversation then with the patient about whether she'd be safe in keeping $1,000 in cash in her handbag? A. No, I did not ask any questions, but because I saw the - the reports in the afternoon saying that the family went to this - I mean, complained to the police and all that. I thought I'd rather give it and the family would see return the money. So I thought I'd give it to her, and she would tell the family that she got back the money. I left it in her hands. 1. During the course of her cross examination the respondent was taken to paragraph 26 of her affidavit prepared for the purpose of these proceedings which referred to her work as a registered nurse since 2000 and stated, inter alia, "I have no history of any criminal activity during my years of service." She gave the following evidence Q. You make a comment at 26 that you have "no history of any criminal activity during my years of service". Is that correct? A. Yes. Q. Can I take you to page 51 of the reply bundle. A. Yeah. Q. Do you see there, it's a criminal infringement notice history and the only entry on the page is shoplifting, value less than or equal $2,000, and it's dated 14 November 2011. Do you see that? A. Yeah. Q. Would you consider shoplifting to be criminal activity Mrs McCarthy. A. That was an accident which had - which the standing machine had done. Yeah. Q. Mrs McCarthy, in general, would you consider shoplifting to be criminal activity? A. Yes, yeah. Q. And were you practising as a registered nurse in 2011? A. Yes, I was. Yeah. Q. So I just wanted to put to you that your comment there, that you have no history of any criminal activity during your years of service isn't true, is it? A. Well, I checked with the - with the police, with the record. They said this doesn't need to be notified. I got a - the clearance Q. No, sorry..(not transcribable)..I'm not suggesting that you had a need to notify, I'm just saying that your statement that you had no history of any criminal activity is not - not entirely correct, is it? A. Yeah. Findings with respect to the factual circumstances surrounding Complaint Three 1. We now come to consider what factual findings we should appropriately make having regard to the evidentiary material which we have set out above and the relevant standard of proof which we have earlier described. As is obvious, much depends upon our acceptance or otherwise into evidence of the statement of Patient A as to whether her cards were taken from her without her consent or knowledge, and as to whether the identification of her PIN numbers was extracted from her using force. Patient A did not identify the respondent as the perpetrator of these activities. But she did identify that person as a nurse. Whether or not it can be determined that the respondent was the perpetrator will depend upon a consideration of those circumstances which we are entitled to find proven having regard to all of the evidence. This is commonly referred to as circumstantial evidence being evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred. 2. There is a succinct reference to the relevant principles which guide the determination of factual issues based on circumstantial evidence in the joint judgement of Gibbs CJ and Mason J (as his Honour then was) in the High Court of Australia in Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521. At [16] their Honours made the following observations, which we apply in the context of the discussion of civil cases as referred to therein 16. It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v. Vines [1952] HCA 19; (1952) 85 CLR 352, at p 358 ; and Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82, at p 104 ). The statement by Lord Wright in Caswell v. Powell Duffryn Associated Collieries, Ld. (1940) AC 152, at p 169 , that "There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish" is obviously as true of criminal as of civil cases. The process of reasoning in a case of circumstantial evidence gives rise to two chances of error: "first from the chances of error in each fact or consideration forming the steps and second from the chance of error in reasoning to the conclusion": Morrison v. Jenkins [1949] HCA 69; (1949) 80 CLR 626, at p 644 . It seems to us an inescapable consequence that in a criminal case the circumstances from which the inference should be drawn must be established beyond reasonable doubt. We agree with the statement in Reg. v. Van Beelen (1973) 4 SASR, at p 379 , that it is "an obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about the existence of which you are in doubt". (at p536) 1. There is no doubt that the respondent gained possession of the cards of Patient A. She withdrew money from one of her accounts using one of those cards. The significant question for determination is how the respondent came to have possession of those cards. The totality of the evidence to which we have referred demonstrates that initially the cards were kept in the purse of Patient A, and her purse was kept in her handbag. That handbag was hidden by Fiona under a cabinet in Patient A's room and was subsequently found by Fiona the next morning on the floor of the room. Leaving aside for the moment the version of events given for the first time by the respondent in evidence in these proceedings, it becomes necessary to determine whether we can be satisfied to the requisite standard how the cards ended up in the possession of the respondent when she used one of them to withdraw $1000 from the ATM. 2. Two of the nurses gave evidence that they saw the respondent take Patient A to her room at around 1 am to 1:30 am on Saturday, 17 March, 2018, and that she entered that room. One other nurse gave evidence that she saw the respondent come out of Patient A's room at around the same time. The only evidence to the contrary is that of the respondent. For reasons which we shall shortly develop we are not prepared to accept the evidence of the respondent unless it is clearly corroborated by other acceptable evidence. We are comfortably satisfied that the respondent gained access to the room of Patient A during that time, whilst Patient A was in that room. 3. We now turn to deal with the statement of Patient A. We acknowledge that the respondent has had no opportunity of challenging this statement because of the untimely death of Patient A. We also acknowledge that Patient A's statement is a narrative of sensations experienced by her, and that she was unable to identify the person who was involved, other than being a nurse. In considering these matters, and in making findings with respect to them we take into account that there is corroborative evidence with respect to many of the matters in the statement of Patient A. On balance we are comfortably satisfied and find that 1. during that night Patient A felt that a person who was a nurse was holding her down and hurting her. There is corroborative evidence of injuries sustained by Patient A consistent with her having been forcibly held down, to which we shall shortly refer. 2. a person with a female voice asked her in an agitated state for the PINs of her ATM cards. This is consistent with Patient A describing the person holding down as being a nurse, and as being dark and having dark hair. 3. Patient A did not have a record of the PINs in written form in her purse or bag. This was the evidence not only of Patient A but of her family. 4. the ATM cards were removed from the room of Patient A. Apart from the evidence of the respondent to which we shall shortly refer, there is simply no other evidence linking the presence of the cards in the room and the possession of those cards by the respondent some six hours later. Apart from the evidence of the respondent, there is no other tenable explanation as to how the respondent came to be in possession of not only the cards but the PIN number of the card from which the monies were withdrawn other than that the cards were taken from Patient A by the respondent, and she acquired the PIN number. Apart from the evidence of the respondent the only evidence is that of Patient A that she was forced to disclose her PIN number. 5. by reference to her own evidence and the evidence of Fiona, Michael, Matthew, nurses Ocampo, Arzaga and Balbin and Doctors Bahin and Lee, as at the morning of 17 March 2018 Patient A displayed bruising indicative of trauma and consistent with her having been held down on her arms which was not present during the previous evening. In so finding we reject any suggestion made on behalf of the respondent that the bruising might have been caused when Patient A endeavoured to get out of her bed or fell during the night because there is simply no evidence that would elevate these causes beyond mere conjecture. This evidence corroborates the description of what befell her contained in the statement of Patient A. It is consistent with her having been held down by a person as related in her statement. 6. the perpetrator of these events was the respondent. She is the only person who had accessed the room of Patient A in circumstances where there is no explanation as to why she was there, she is the only person who was later seen to be in possession of the ATM cards apart from Patient A, and she used one of the cards to withdraw $1000. There is simply no evidence of any other person having possession of the cards at any relevant time. 1. In making these findings we note that Patient A made statements which were generally consistent as to what happened to her to NSW Police, Fiona, Michael, Matthew, Mr Balbin and Dr Bahin. 2. In making these findings, we reject each and every piece of evidence of the respondent which is inconsistent with them. The respondent has given dramatically inconsistent evidence as to the circumstances in which she obtained the cards and the disposal of the cash taken from the ATM. It is obvious that the versions given by the respondent to the NSW Police and to the District Court are in themselves inconsistent, and the inconsistencies of these versions with the evidence of the respondent in these proceedings borders on the incredulous. A rereading of the various factual versions is sufficient per se to demonstrate that it would be unsafe to rely on any evidence given by the respondent about these matters. 3. In written submissions the respondent's solicitor sought to justify her conduct in having provided false information to NSW Police in her interview conducted on 27 March 2018 on the basis that she had been informed by police officers that "we know you bashed the patient." It was asserted that this statement caused the respondent to be "fearful", and in turn caused her to lie to the police. This submission is corroborated by the evidence given by the respondent in these proceedings as may be seen in the last answer given by her in that part of the transcript which we have extracted at [95] above. The transcript of the interview with NSW Police is available to us. It occupies 56 typed pages. At page 3 the investigating police officers ask the respondent to set out her version of what occurred at the commencement of her shift on 16 March 2018. She referred in summary terms to what happened during the shift, mentioning only a minimal involvement with Patient A. She then proceeded to describe the circumstances in which she had met an old lady with a band-aid on her left arm in the car park in the shopping centre who had asked her for some help in withdrawing $1000 from an ATM. This description occurs at page 5 of the transcript. The interview then proceeds to deal with subsequent events involving the respondent. It is not until an expansive factual matrix has been covered by the police officers concerned that, commencing at page 41, a series of allegations are put to the respondent concerning her involvement with Patient A. At page 45 it was put to the respondent that she had held Patient A down and asked her for her PIN numbers and caused injuries to her. 4. In circumstances where the respondent had given a version of events during the course of the police interview which she later admitted was false well before any allegation was made by police officers that she had assaulted Patient A, it cannot be said that this allegation caused the respondent to lie to the police. This submission has no basis in fact, and we reject it. 5. In submissions the respondent's solicitor relied on a report of Mr Chafic Awit, psychologist dated 14 August 2019 to the effect that the respondent was then suffering from generalised anxiety and depression following the laying of criminal charges against her as explaining that these conditions "affected her decision-making and as such the respondent was not able to think clearly" at the time that she gave her evidence in the District Court criminal proceedings. In that report Mr Awit set out a number of "symptoms" suffered by the respondent which he said were consistent with a "Generalised Anxiety Disorder due to the aftermath of the current offences before the court." These included excessive worry, which the respondent had difficulty in controlling associated with "feeling on the edge, being easily fatigued, difficulty concentrating, irritability and sleep disturbance." He said that the anxiety "causes distress and impairment in social, occupational, and other important areas of functioning." 6. We do not regard the evidence of Mr Awit as being capable of explaining the circumstances in which the respondent gave detailed evidence in the District Court proceedings about how she came to meet a lady wearing a sling in the car park, and engaged in a detailed conversation with her concerning the withdrawal of monies from an ATM and the withdrawal of those monies which she gave to that lady. This detailed explanation is not indicative of a person who had difficulty concentrating or difficulty in functioning. This detailed explanation is, on the evidence of the respondent in these proceedings, a detailed fabrication of what occurred. We reject this submission. 7. The respondent's solicitor referred to a further report from Mr Awit dated 4 August 2021 which he asserted described the respondent as being in full remission from her anxiety and major depressive disorders, and therefore able to provide "an honest account of what happened without the effect of her anxiety", referring to the evidence given by the respondent during the course of these proceedings. That report is stated to have been written for the purpose of these proceedings. Whilst it does confirm that the respondent is no longer suffering from any anxiety or major depressive disorder, no comment is made about the ability or propensity of the respondent to provide evidence before us. The conclusion that remission from these conditions will ipso facto lead to the respondent now providing "an honest account" is the solicitor's conclusion. There is nothing contained in this report of Mr Awit to sustain that conclusion. We reject this submission. 8. We add for completeness that to the extent that the findings that we have made are inconsistent generally with the submissions made on behalf of the respondent, we reject those submissions. 9. We also refer to the evidence of the respondent that she gave the cards and the $1000 in cash to Patient A on the evening of 17 March 2018. This evidence is totally inconsistent with evidence that the monies were in fact returned, but some 4 to 6 weeks later. 10. Our assessment of the lack of credibility of the respondent's evidence is corroborated by her erroneous evidence that she had never previously been the subject of any criminal activity, in circumstances where she had committed an offence of shoplifting. Have the particulars of Complaint Three been made out? 1. Before considering whether the conduct of the respondent which we have found to have occurred constitutes unsatisfactory professional conduct we first refer to two Codes of Conduct published by the Nursing and Midwifery Board of Australia, which we are entitled to take into account by reason of section 41 of the National Law. 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession. 1. The Code of Conduct for Nurses contains provisions dealing with professional integrity. It states in part that "Nurses embody integrity, honesty, respect and compassion." Under a subheading entitled "Lawful behaviour" the following appears Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must respect the nurse-person professional relationship by not taking possessions and/or property that belong to the person and/or their family 1. The Code of Professional Conduct for Nurses in Australia (2018) emphasises the primary responsibility of Nurses to provide safe and competent nursing care. Any circumstances that may compromise professional standards, or any observation of questionable, unethical or unlawful practice, should be made known to an appropriate person or authority…….. 1. This Code also emphasises the inherent power imbalance which exists within the relationship between people receiving care and nurses, that make those persons in their care vulnerable and open to exploitation. The Code also emphasises that the conduct of nurses "maintains and builds public trust and confidence in the profession at all times". 2. It is not necessary for us to again recite the conduct of the respondent which has been found by us to have been proven with respect to her interaction with Patient A. The mere recitation of this conduct demonstrates that it is anathema to the very brief reference we have made to the Codes of Conduct referred to above. It is also anathema to what the public is entitled to expect from care provided by the nursing profession whilst hospitalised. 3. Complaint Three alleges a breach by the respondent of the provisions of section 139B(1)(l) of the National Law. We set out the provisions of Section 139B(1) in full because subsection (1)(l) refers to "any other conduct", being conduct which does not fall within the prior subsections 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of— (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. (d) Failure to comply with decision or order of Committee or the Tribunal A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner. (e) Contravention of requirement under Health Care Complaints Act 1993 A contravention by the practitioner of section 21A(3), 34A(4) or 63G(4) of the Health Care Complaints Act 1993. (f) Accepting benefit for referral or recommendation to health service provider Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for— (i) referring another person to the health service provider; or (ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter. (g) Accepting benefit for recommendation of health product Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product, but does not include accepting a benefit that consists of ordinary retail conduct. (h) Offering a benefit for a referral or recommendation Offering or giving a person a benefit as inducement, consideration or reward for the person— (i) referring another person to the registered health practitioner; or (ii) recommending to another person that the person use a health service provided by the practitioner or consult the practitioner in relation to a health matter. (i) Failure to disclose financial interest in giving referral or recommendation Referring a person to, or recommending that a person use or consult— (i) another health service provider; or (ii) a health service; or (iii) a health product; if the practitioner has a financial interest in giving that referral or recommendation, unless the practitioner discloses the nature of the interest to the person before or at the time of giving the referral or recommendation. (j) Engaging in overservicing Engaging in overservicing. (k) Supervision of assistants Permitting an assistant employed by the practitioner (in connection with the practitioner's professional practice) who is not a registered health practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill. (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. For completeness, we observe that the "improper" and "unethical conduct" of the respondent asserted by the applicant to have occurred in the context of these proceedings is not of a kind which is referred to in any of the previous provisions of section 139B(1). 2. The characterisation of conduct which may be described as improper or unethical for the purpose of this provision was considered by this Tribunal in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [86] and following in terms which we adopt for the purpose of these proceedings 86 The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as "not in accordance with propriety of behaviour, manners etc." or "abnormal or irregular" and "unethical" as 1. "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." 87 Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper. 88 In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]-[49]: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes [1995] HCA 1; (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited. 1. The factual findings which we have made include the following conduct by the respondent 1. obtaining possession of the ATM cards of Patient A without her consent 2. forcibly obtaining details of the PIN number of one of those cards from Patient A in circumstances which caused the patient both physical and mental damage 3. withdrawing the sum of $1000 from one of the cards without the consent of Patient A 4. lying to NSW Police 5. lying on oath when giving evidence in the District Court of NSW all as particularised in Complaint Three. 1. We find to the requisite standard that the conduct set out above constitutes improper and unethical conduct relating to the practice or purported practice of nursing by the respondent and that she is guilty of unsatisfactory professional conduct. 2. We add that if we had not concluded that the respondent had obtained possession of the cards without the consent of Patient A, had not forcibly obtained details of the PIN number, or had not withdrawn the monies from the card without consent of Patient A, we would nevertheless have concluded that by virtue of the fact that the respondent lied to NSW Police and lied on oath when giving evidence in the District Court of NSW, coupled with the fact that, as asserted by the respondent she agreed to withdraw the monies at the request of Patient A without taking appropriate steps to report what she was doing and to ensure that the return of the monies was appropriately documented and recorded would also, in the aggregate, have constituted unsatisfactory professional conduct. 3. It follows that we find to the requisite standard that Complaint Three has been made out. Is the respondent guilty of professional misconduct? 1. This matter is the subject of Complaint Four, which relies upon and is based upon all of the misconduct particularised in Complaint Three. 2. Professional misconduct is defined in section 139E of the National Law 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The discriminating factor which changes unsatisfactory professional conduct to professional misconduct is that it is sufficiently serious to justify suspension or cancellation of registration. Suspension or cancellation of registration is part of the armoury of protective orders that this Tribunal may make consequent upon a finding of professional misconduct. The orders which can be made must be protective in nature, having regard to the health and safety of the public. The underlying principles have been succinctly summarised in the New South Wales Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307. Meagher JA (Basten and Emmett JJA agreeing) said: [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [36] In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." [37] In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. Some assistance in exercising the value judgment which is inherent in determining whether unsatisfactory professional conduct is sufficiently serious to constitute professional misconduct is provided in the judgment of Basten JA (Leeming JA agreeing) in the NSW Court of Appeal in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct..." 1. We proceed on the basis that it is appropriate to consider all of the substantive findings that we have made concerning Complaint Three in the aggregate. In so stating we should not be taken to have determined that there are no individual findings which in themselves would justify a determination that the respondent is guilty of professional misconduct. Indeed, the respondent's misconduct with respect to Patient A as particularised against her is of a most serious nature. 2. We should make it clear that in determining whether the conduct of the respondent may be characterised as professional misconduct justifying cancellation or suspension of registration, such a characterisation is not necessarily determinative of any consequential appropriate protective orders which we might make at the conclusion of the Stage 2 hearing. Our concern for present purposes is to determine whether or not the conduct is such that cancellation or suspension is warranted. In determining this matter, we have regard to the protection of the public, the maintenance of public confidence in the integrity of the profession, and the deterrent effect both on the respondent and on other members of the nursing profession. 3. Each of the matters set out in [125] above constitutes conduct which is so incompatible with those notions of honesty and integrity and what is acceptable behaviour in caring for patients inherent in standards reasonably expected by the public to have been observed by a member of the nursing profession that they justify a conclusion that cancellation or suspension of registration is warranted. The public must be protected against members of the nursing profession who have exhibited such conduct. Cancellation or suspension of registration is also justified in order to maintain public confidence in the integrity of the profession, and to provide a deterrent effect both on the respondent and on other members of that profession. For completeness we would conclude that the matters set out in [127] above would also justify cancellation or suspension of the respondent's registration. 4. We conclude therefore that the respondent is guilty of professional misconduct as alleged in Complaint Four. Conclusion and orders 1. We find that each of Complaints One, Two, Three and Four has been made out 2. The proceedings are stood over to a date to be fixed for the Stage 2 hearing, with liberty to apply in this regard. ********** 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: 09 December 2021