Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v McCarthy (No 2) [2022] NSWCATOD 14 Hearing dates: 31 January 2022 Date of orders: 11 February 2022 Decision date: 11 February 2022 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) Pursuant to section 149C(4)(a) of the Health Practitioner Regulation National Law (the National Law), the Tribunal decides that if the respondent were still registered it would have cancelled her registration as a nurse practitioner. (2) Pursuant to section 149C(4)(b) of the National Law the respondent is disqualified from being registered as a nurse practitioner for a period of 4 years from the date of these orders.. (3) the review body under section 163A is the Tribunal. (4) the respondent is prohibited from providing health services as defined in section 4 of the Health Care Complaints Act pursuant to section 149C(5) of the Health Practitioner Regulation National Law until further order on review under section 163A. (5) the Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2, 3, and 4 above. (6) the respondent is to pay the costs of the applicant to be assessed in default of agreement having regard to the matters referred to in [60] of this decision, and with respect to which we grant liberty to apply which must be exercised within two months of this date. 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 – registration cancelled – non-review period of four years – prohibition of providing health services – costs order made Legislation Cited: Health Care Complaints Act 1993 s 4 Health Practitioner Regulation National Law (NSW) No 86a of 2009 ss 3A,130,139B,139E,144, 149A,149C,163A Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 Health Care Complaints Commission v Percy McCarthy [2021] NSWCATOD 201 Lee v Health Care Complaints Commission [2012] NSWCA 80 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): 2021/48430 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. By an Amended Complaint the applicant in these proceedings, the Health Care Complaints Commission alleged that the respondent Percy McCarthy was guilty of unsatisfactory professional conduct and professional misconduct as those terms are defined in the Health Practitioner Regulation National Law 2009 ("the National Law"). At the conclusion of a stage 1 hearing we found the respondent guilty of both unsatisfactory professional conduct and professional misconduct. See Health Care Complaints Commission v McCarthy [2021] NSWCATOD 201 (the stage 1 decision). 2. These reasons for decision deal with our findings in relation to a stage 2 hearing to determine what protective orders should be made following the findings referred to above. It is convenient to set out the factual background to the complaints made against the respondent as contained in the Amended Complaint 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 sentence 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 imposed 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. 1. The Amended Complaint contained four Complaints. Complaint One alleged that the respondent had been convicted of two criminal offences in NSW, pursuant to section 144(a) of the National Law. This provides in essence that a conviction for a criminal offence may be the subject of a complaint made under the National Law. Complaint Two alleged that the respondent was guilty of unsatisfactory professional conduct under section 139B (1) (b) of the National Law because she had contravened section 130(1) of that Law in having failed to notify the National Board within seven days of having been charged with a number of criminal offences. Complaint Three alleged that the respondent was guilty of unsatisfactory professional conduct because she had engaged in improper or unethical conduct relating to her practice as a nurse. The factual allegations centred around the circumstances in which the respondent had gained possession of two personal banking cards belonging to Patient A, her attempt to withdraw monies from one account and her withdrawal of $1000 from another account, false information which allegedly been provided to the police and false evidence given at her criminal trial in the District Court of NSW. Complaint Four alleged that the respondent was guilty of the more serious charge of professional misconduct by reference to the same factual allegations made in Complaint Three. 2. In the stage 1 proceedings the respondent conceded that she was guilty of the matters referred to in Complaints One and Two but proffered an explanation as to why she had failed to notify the National Board. 3. In our stage 1 decision we summarised the position taken by the respondent with respect to Complaints Three and Four in the following terms 7 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." 8 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. 1. After considering the available evidentiary material we made the following factual findings and observations 106 …………………. 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. …………………………………….. 108 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. 1. The observations made in [108] were based on evidence given by the respondent during the hearing before us concerning the circumstances in which she had acquired the banking account cards from Patient A. She said that she had met Patient A walking around the corridor of the nursing unit at around 1.30 am and the patient gave her two cards and asked that she withdraw $1000 for her because she needed money. This was the first occasion on which the respondent had proffered this version of events which was totally inconsistent with the respondent's statement to the police and the sworn evidence she had given in the criminal proceedings before the District Court. 2. In the course of our stage 1 decision, we also referred to two Codes of Conduct in the following terms 117 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. 118 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 119 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........ 120 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". 1. We concluded that the conduct of the respondent was in breach of these Codes 121 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. 1. In determining that the respondent was guilty of unsatisfactory professional conduct we stated 125 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. 126 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. 1. In concluding that the respondent was guilty of professional misconduct we stated 135 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……………. What protective orders are appropriate? 1. As the available protective orders under the National Law are determined by our finding that the respondent is guilty of both unsatisfactory professional conduct and professional misconduct it is appropriate that we set out relevant extracts from the definitions of both these terms as they appear in that Act 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. 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. It follows from the definition of professional misconduct that we have found that the conduct of the respondent is of a sufficiently serious nature to justify suspension or cancellation of her registration. 2. The range of available protective orders are contained in section 149A(1) of the National Law: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner— (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 1. Because of the finding of professional misconduct which we have made we are also empowered by section 149C of the National Law to cancel or suspend the respondent's registration. Section 149C provides 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. 1. The underlying principles which apply to a determination of what are appropriate protective orders have been succinctly summarised in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307. Meagher JA (Basten and Emmett JJA agreeing) said at [35] to [37]: "[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) 95 NSWLR 334; [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. In considering appropriate protective orders we are required to determine whether the respondent can safely practise as a nurse. We emphasise that it is no part of this consideration to punish the respondent for her misconduct, although, as is well acknowledged, protective orders may have a consequential punitive effect. The factual background to the determination of protective orders 1. Our determination of appropriate protective orders is informed by the principles which we have set out above which in turn embody the provisions of section 3A of the National Law. 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. There needs to be some understanding of why a nurse of almost 15 years' experience misconducted herself in such a serious manner and a considered assessment of whether the respondent might again engage in misconduct in the practice of her profession. We are unable to conclude that the respondent can continue to practise as a nurse safely without that understanding. 2. There is limited evidentiary material available to us which provides any insight into why the respondent conducted herself in the manner which we have found to have occurred. She proffered an explanation why she did not inform the National Board of the fact that she had been charged with the several offences and that she had been convicted of the several offences referred to in Complaint Two. She understood that her former employer would notify the Council and she had not notified the fact of her conviction because she was under "extreme stress" at the time. We accept these explanations as indicating explicable reasons for this conduct. 3. However, there is no information available to us which provides any explanation for the serious conduct which is the subject of Complaints Three and Four. The information provided by the respondent to the police consisted of a denial of any involvement with Patient A. Her evidence given before the District Court was to the effect that she had had some involvement with Patient A within the hospital ward, but no involvement with her in withdrawing the monies from the ATM. This evidence differed significantly from the information provided to the police. It was only whilst giving evidence before us in the stage 1 hearing that the respondent said for the first time that she had been given the ATM cards by Patient A. No satisfactory explanation has been given by the respondent why she has given three significantly different versions of what occurred, but she has said at the time of giving each version that that represented the truth of what occurred. On each occasion the respondent has said that she was trying to assist the unidentified lady in the versions given to the police and before the District Court, and that she was trying to assist Patient A in the version given before us. In the first two versions the respondent said that she had given the monies withdrawn to the lady. This is completely at odds with the third version that the respondent had given the money to Patient A later that evening while working the night shift. We have found that version also to be untrue. The purpose of revisiting these factual inconsistencies is that they eschew any altruistic motive on the part of the respondent. 4. These conclusions reflect the sentencing remarks of her Honour Judge Herbert in the District Court of NSW who said The offender is a person who was working in a position of trust which she abused to obtain the bankcards and personal identification number of a patient who was in the hospital where she worked. The offender took advantage of her vulnerable circumstances to be able to commit the offences. There must have been a degree of premeditation in obtaining the cards and the PIN, these present offences are not just opportunistic. 1. The respondent relied upon a substantive affidavit sworn 20 August 2021 for the purpose of these proceedings. In that affidavit the respondent denied that she had physically assaulted Patient A and demanded that she be given the PIN information relating to the ATM cards. She said that Patient A had given her the cards, asked her to withdraw $1000 and she had given those monies to the patient on the same day whilst working the night shift. 2. At [106] of the stage 1 decision we made the following findings (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. We also said 108 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. 1. In reflecting on her conduct in her affidavit the respondent said in part 22 I am very sorry for what I did, I am very sorry for what the victim and her family had to go through. I can only imagine what the victim had gone through. I really regretted what I did, if only I could turn back time, I would. 23 I had learned a great deal from this event. It is something I would not want to go through it again. I have learned from my mistakes, and I vouched not to repeat it again. 1. In her affidavit the respondent referred to the impact that her conduct had had on her family. 2. We do not understand the respondent to have said in her affidavit or in her oral evidence during the course of the stage 1 hearing what motivated her to engage in the misconduct which we have found to have occurred. This might be partially explained by the fact that the respondent had denied up to the time of the criminal proceedings that she had taken the cards from Patient A and had always asserted that any monies withdrawn have been handed over without delay. On one view, it might be difficult for a person who has been found guilty of conduct which she or he has always denied having occurred to provide a reason. In the circumstances of these proceedings, we must make a determination without the benefit of this information. 3. We have been provided with two reports of Chafic Awit, a Registered Psychologist tendered by the respondent. Mr Awit's first report is dated 14 August 2019 and appears to have been prepared for the purpose of the District Court criminal proceedings. Mr Awit noted that the respondent had no prior offences, which is incorrect as we noted in our stage 1 decision. The respondent had previously been found guilty of shoplifting. He was informed by the respondent that the offences with which she was charged were "out of character for her." 4. Mr Awit diagnosed the respondent as suffering from a number of symptoms which he said were consistent with diagnoses of Generalised Anxiety Disorder and Major Depressive Disorder "due to the aftermath of the current offences before the court." 5. Significantly, Mr Awit noted that the respondent and her family "had suffered significantly" since having been charged with the offences. He concluded that it was "clear and evident to see" that the respondent had been suffering from the symptoms of the conditions which he had diagnosed and concluded that with ongoing treatment her condition should improve considerably. He said that the respondent had agreed to engage in a treatment plan with him involving fortnightly Individual Psychological sessions for at least a period of six months. This plan would include Cognitive Behaviour Therapy aimed at reducing her anxiety and emotional difficulties, the receipt of skills to help her cope with stress and "problem-solving skills." 6. That report provides no insight into any reason why the respondent might have engaged in the misconduct with which she was charged. 7. Mr Awit provided a second report dated 4 August 2021 for the stated reason of these proceedings, noting that the respondent was seeking to "overturn the HCCC ban on her nursing registration." He said that the opinions expressed in that report were based on his ongoing assessment of the respondent and a review of certain documentation. 8. Having reviewed the respondent's symptoms Mr Awit concluded that she was no longer suffering from Generalised Anxiety Disorder or Major Depressive Disorder. He again noted that the respondent and her family had "been through a difficult period" as a consequence of the criminal proceedings and her conviction. We observe that these comments are directed more to the respondent as a victim of her own conduct and contain no insight into the reasons why the respondent engaged in that conduct. 9. In her evidence the respondent said that she had engaged in treatment with a psychologist for a period of six months but did not name the psychologist. In his second report Mr Awit makes no reference to any treatment undergone by the respondent since the time of his first report. There is a passing reference to the fact that he considered "an analysis of the offending behaviour" but no description of any kind of that behaviour and certainly no analysis of any kind. This renders his conclusions of no assistance in the determination of these proceedings. 10. For completeness we set out part of the conclusion of Mr Awit in his second report It is the professional opinion of the writer that Ms McCarthy is at low risk of reoffending. The offence appears out of character for her. She has suffered significantly from this experience and has expressed her remorse and shame in relation to her decisions and behaviour. The writer is of the professional opinion that Ms McCarthy does not pose a threat if she were to return to working within a similar field… 1. This is a bare assertion made without reference of any kind to any of the underlying matters relevant to the expression of such a "professional opinion." There is no attempt to analyse why the respondent engaged in the conduct which she did, there is no attempt to assess any such analysis against the respondent's character and there is no hint of any contribution by Mr Awit of a "professional" or other kind to inform the basis for the conclusion. We conclude that the opinion of Mr Awit to be of no assistance in the determination of these proceedings. This conclusion is reinforced by the fact that Mr Awit was clearly not provided with any information concerning the factual findings which we made in the stage 1 decision concerning the respondent's conduct. 2. We add for completeness that the respondent provided three positive character references which in general terms attested to her being a person with strong religious beliefs, devoted and committed to her family and friends, a caring nursing professional and that her crimes were out of character. In circumstances where we are unable to identify the reasons why the respondent engaged in the conduct which is the subject of these proceedings, these references do not assist in evaluating what protective orders should be made. Conclusions as to protective orders 1. The applicant submitted that the appropriate protective order was cancellation of the respondent's registration. The respondent submitted that she should again be permitted to resume her career as a nurse, albeit with the possibility of conditions. It was submitted on her behalf that she had "acknowledged her mistake", had been unable to practice for three years, had sought counselling and had not committed any offences since the events which gave rise to these proceedings. 2. The applicant's misconduct was of a most egregious kind. She took advantage of an elderly, vulnerable patient who was under her care and whose health and safety she was required to protect. She caused physical harm to that patient in engaging in conduct which is the antithesis of the characteristics and traits of a professional nurse. She destroyed the confidence the public is entitled to expect of a professional nurse that patients will be safe whilst in their care and their property will also be safe. She breached the relevant Codes of Conduct which we have earlier set out. The respondent's conduct was premeditated. 3. These observations are compounded by the number of instances where the respondent has admitted lying, firstly in a statement given to NSW Police and secondly on oath whilst giving evidence before the District Court of NSW. We again refer to our conclusion at [108] in our stage 1 decision extracted at [6] above. 4. The respondent submitted that she is a reformed person and is unlikely to misconduct herself again. She said that she had not reoffended within the last three years. This overlooks the fact that she has not practised as a nurse during this period. 5. The burden of establishing this submission rests on the respondent, albeit to the civil standard. Guidance as to the approach to be taken to a consideration of such a submission is provided by appellate authority. In Lee v Health Care Complaints Commission [2012] NSWCA 80 in the NSW Court of Appeal, Barrett JA (Macfarlan JA and Tobias AJA agreeing) referred to these matters at [72] to [73]: "[72] Finally on this aspect, there is the point that emerges from the decision of this Court in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630. Gleeson CJ, Meagher and Handley JJA there noted (at 637) that, despite the passage of four and a half years since the last complaint of misconduct, there was no explanation offered that would make it unlikely the misconduct would reoccur or to suggest that the practitioner had become a changed person. They said: 'In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW)(Pt 2) 275 at 286: "... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man"' [73] A finding of reformation thus cannot be made by reference merely to the passage of time without renewed misconduct." 1. We conclude that the respondent, whilst professing contrition and remorse has done so in the context of seeing herself and her family as victims of her misconduct. We do not understand her to have provided us with any insight into the reasons for her behaviour. There is no evidence that her treating psychologist, whoever that may have been, has assisted the respondent to gain insight into her behaviour and to acquire coping mechanisms to minimise the risk of any misconduct in the future. In these circumstances it would be unsafe for us to rely solely on the respondent's own assertions that she will never engage in conduct of this kind again, and we reject this submission. 2. The respondent also submitted that in lieu of cancelling her registration we should permit her to continue to be registered as a nurse on the basis that she would not be permitted to engage in clinical practice and that her involvement would be limited to a teaching role. We reject this submission. Firstly, registration as a nurse with a restriction on performing any clinical practice so as to only permit her to engage in teaching nursing students would be so incongruous as to be inappropriate. Secondly, our assessment of the misconduct of the respondent is such that it would be inappropriate for her to be involved in teaching nursing students. 3. We conclude that overall, the respondent has behaved so egregiously in the practice of her profession as to render her unfit to practise nursing safely, that by reason of the criminal convictions she is unfit in the public interest to practise her profession as contemplated by section 149C(1)(c) and that these matters have been exacerbated by the seriousness and extent of her untruthfulness. These defects of character also result in the respondent not being a fit and proper person to practice as a nurse. It follows that the appropriate protective order is to cancel her registration. We observe that such an order will provide an appropriate deterrent effect both to the respondent should she choose to seek registration as a nurse in the future and to other members of the nursing profession who might otherwise be tempted to engage in conduct of this kind. Such an order will also assist in enhancing the confidence of the public in the integrity of the profession. Prohibition order 1. The applicant submitted that in all the circumstances the Tribunal should make a prohibition order pursuant to section 149C(5) of the National Law (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note— Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. 1. This reference to "health services" is a reference to the definition of that expression is contained in section 4 of the Health Care Complaints Act 1993 health service includes the following services, whether provided as public or private services— (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)–(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act. 1. The applicant submitted that by reason of the nature and extent of the misconduct of the respondent as found by us in these proceedings it would be in the public interest that she be prohibited from providing services of the kind set out in the above definition, because they involved interaction with members of the public. 2. We note that in her sentencing order Judge Herbert imposed the following condition of the two-year Community Correction Order made by her on 16 August 2019 d) The offender is to submit to supervision from Community Corrections and this is to pay particular attention to the suitability of any work undertaken by the offender as she should not have a role in caring for vulnerable people. 1. In her affidavit of 20 August 2021, the respondent deposed that she had been "recently employed as a support staff in aged care facility" but that employment had ceased "because of my conviction." She said that she had been careful not to make the same mistakes while performing this work elderly persons. The respondent annexed to this affidavit an email from NDIS dated 28 July 2021 which stated that by reason of her conviction of two counts of "Dishonestly obtain financial advantage etc by deception" the respondent was presumptively disqualified from performing work under the scheme because she was "presumed to pose a risk of harm to people with disability." 2. We note with concern that on this evidence the respondent has prima facie engaged in work caring for vulnerable people in breach of the Community Correction Order 3. We have previously concluded that there is no evidence of any reason why the respondent engaged in this criminal activity, there is no cogent evidence that she has engaged in any rehabilitative process, and we are not persuaded that she is unlikely to engage in the same or similar activities in the future. Because it is clear that engaging in health services may expose vulnerable members of the public to the respondent, we shall make the orders sought by the applicant. Non-review order 1. Section 163A of the National Law allows a person whose registration is cancelled to apply to have that order reviewed 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of— (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made— (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section— decision-making entity means the following— (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division, Subdivision 5 of Division 3 or section 155C (1) (f); (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court; (f) a review body in New South Wales, when deciding a matter under section 127A. relevant order, in relation to a person, means any of the following orders made by a decision-making entity— (a) an order that the person's registration as a registered health practitioner or student is suspended; or (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or (c) an order that conditions be imposed on the person's registration in a health profession. 1. By section 149C(7) of the National Law we are permitted to fix a minimum period before a person whose registration has been cancelled may apply for a review of that order (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. The applicant suggested an appropriate period would be between three and four years. The respondent submitted that if we were to cancel her registration, the appropriate period would be much shorter. 2. In Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 this Tribunal considered the determination of an appropriate non-review period in the following terms 57 The applicant submitted that an appropriate non-review period would be four years. This period is habitually fixed by reference to the minimum time assessed to be appropriate to enable a practitioner to undertake some form of rehabilitation or re-education process, to undergo treatment if relevant, and the like. In circumstances where we cannot conclude with any certainty why the respondent engaged in the conduct which he did and whether he has any propensity to engage in similar conduct again, it is difficult to assess an appropriate non-review period. In all the circumstances we will adopt the assessment of the applicant as being reasonable…………. 1. Whilst the facts in Drakopoulos were significantly different from those which apply to these proceedings, nevertheless we adopt the same approach. There are no scientific means of determining whether and to what extent a person may successfully engage in a process of rehabilitation so as to render her or him safe to recommence practice as a health practitioner. This is particularly so in the circumstances of the respondent who stated that she engaged in some form of treatment for a period of six months but provided no details. And as we have previously observed the respondent has displayed no insight into why she had engaged in the egregious misconduct which is at the heart of these proceedings. In all the circumstances we assess four years as being an appropriate period. This will allow for a period of self-contemplation and reflection, as well as permitting the respondent to engage in appropriate rehabilitative processes and treatment. Costs 1. The applicant sought an order for its costs. This is a costs jurisdiction. The respondent did not oppose the making of a costs order. We note that the stage 1 proceedings were set down for hearing for two days. We were unable to commence the hearing at 10 AM on the first day because the legal representative of the applicant was unable to be present for reasons associated solely with a discretionary personal decision taken by that person. In the circumstances it would be unfair that the respondent be compelled to pay any of the applicant's costs associated with anything which occurred on 6 October 2021 prior to 2 PM that day, being the time at which the hearing commenced. We understand further that the person who was to represent the applicant was "in-house counsel" and that no costs in the nature of a brief on hearing were involved. It would also be unfair if the respondent was required to pay any costs of the applicant arising from time taken by the person who was unable to appear in preparing for the actual hearing. We shall make an order for costs but grant liberty to apply in the event that the parties are unable to come to some agreement on quantum having regard to the matters which we have referred to above. Orders 1. Consequent upon the findings which we have made we make the following orders 1. Pursuant to section 149C(4)(a) of the Health Practitioner Regulation National Law (the National Law), the Tribunal decides that if the respondent were still registered it would have cancelled her registration as a nurse practitioner. 2. Pursuant to section 149C(4)(b) of the National Law the respondent is disqualified from being registered as a nurse practitioner for a period of 4 years from the date of these orders.. 3. the review body under section 163A is the Tribunal. 4. the respondent is prohibited from providing health services as defined in section 4 of the Health Care Complaints Act pursuant to section 149C(5) of the Health Practitioner Regulation National Law until further order on review under section 163A 5. the Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2,3, and 4 above. 6. the respondent is to pay the costs of the applicant to be assessed in default of agreement having regard to the matters referred to in [60] of this decision, and with respect to which we grant liberty to apply which must be exercised within two months of this date. ********** 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 Amendments 21 March 2022 - Pursuant to Rule 9 of the Civil and Administrative Tribunal Regulation 2013 Orders (1) and (2) are amended. All other Orders remain. Reasons for this change have been sent to the parties. 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: 21 March 2022