Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Singh [2022] NSWCATOD 63 Hearing dates: 11 March 2022 Date of orders: 16 June 2022 Decision date: 16 June 2022 Jurisdiction: Occupational Division Before: A Britton, Deputy President V Gibson, Senior Member S Schulz-Robinson, Senior Member R Kusuma, General Member Decision: (1) Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) Mr Singh's registration as a nurse is cancelled. (2) Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW) Mr Singh may not apply for review of the cancellation order for a period of 12 months. (3) Mr Singh is to pay the Commission's costs, as agreed or assessed. Catchwords: HEALTH — Professional registration and discipline — Professional misconduct — exercise of power to cancel practitioner's registration Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Ex parte Lenehan (1948) 77 CLR 403 Health Care Complaints Commission v Singh [2021] NSWCATOD 191 Lee v Health Care Complaints Commission [2012] NSWCA 80 Texts Cited: Nil Category: Consequential orders Parties: Health Care Complaints Commission (Applicant) Bhuvaneshwar Singh (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2021/00025053 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and/or publication of the name of Patient A is prohibited. REASONS FOR DECISION 1. In a decision handed down in November 2021, we found registered nurse, Mr Bhuvaneshwar Singh, guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW) (the National Law): Health Care Complaints Commission v Singh [2021] NSWCATOD 191 (the Decision). These reasons address whether it is appropriate to exercise the discretion to make disciplinary orders in respect of Mr Singh and, if so, the form of orders that should be made. 2. The conduct found by us to amount to professional misconduct occurred on 4 January 2020, while Mr Singh was working at an aged care facility (the Facility) as nurse-in-charge of the morning shift. That conduct concerned Mr Singh's assessment, management and care of ninety-nine-year-old Patient A following an unwitnessed fall. 3. The Commission urges us to order the cancellation of Mr Singh's registration and to bar him from seeking review of that order for a period of 12 months. Mr Singh urges us not to cancel his registration and states that he acknowledges and will take steps to rectify "all his mistakes". 4. For the reasons that follow, we have decided to make the order sought by the Commission. These reasons should be read in conjunction with the Decision. Principles governing the exercise of the power to make protective orders 1. Where a complaint made under the National Law is admitted or proven, the Tribunal may exercise any of the powers in Subdiv 6, Div 3 of Pt 8 of the National Law. They include the powers to caution, reprimand and to impose conditions on a practitioner's registration. Where, as here, the Tribunal is satisfied that a practitioner is guilty of professional misconduct, it may suspend or cancel the practitioner's registration: s 149C(1) of the National Law. 2. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA observed at [20] that, in making protective orders, the task of the decision-maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. 3. In exercising the power to make disciplinary orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. The purpose of that power is protective not punitive. 4. Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) commented at [13] that "incompetent professional care is not necessarily an indicator of a defect in character": In many cases incompetence will be capable of rectification by undertaking further training and possibly obtaining further experience in a supervised role. That possibility allows that unsatisfactory professional conduct may be dealt with by the imposition of conditions, or by a period of suspension. However, whether such orders will be sufficient is a matter for the disciplinary tribunal to determine in each case. 1. At [14] Basten JA went on to comment: There may well be cases in which, in the proper exercise of its discretion, based upon the findings it has made, the Tribunal would err in failing to cancel a practitioner's registration; in other cases, cancellation may be seen as an unreasonable or disproportionate exercise of the power conferred on the Tribunal. (Footnotes omitted) Submissions The Commission 1. The Commission's primary submission is that the Tribunal could not be satisfied that Mr Singh recognises that the conduct the subject of the complaint, was materially deficient as found by the Tribunal, and therefore, that it is unlikely to be repeated. Therefore, argues the Commission there are no "solid and substantial grounds" (Ex parte Lenehan (1948) 77 CLR 403 at 422) which would enable the Tribunal to conclude that Mr Singh would act differently in the future. In support the Commission points to the history of Mr Singh's response to the complaint: 1. On 7 January 2020, a few days after Patient A's fall, Mr Singh sent an email to the nursing agency with whom he was then contracted. In that email, Mr Singh identified no concerns with the care and management he had provided Patient A and concluded: "I am gutted with this whole incident and the attitude of the Service Manager [of the Facility] of putting me under immense pressure starting from writing factually incorrect and selective statement on behalf of her care staff." 1. On 10 January 2020, Mr Singh through the nursing agency, provided a response to the Facility about his management of Patient A's fall. In that response, he did not identify any concerns with his conduct, describing his assessment of the patient as "thorough", and attributed blame to the Facility and its staff. 2. In an interview with the Facility on 22 January 2020, Mr Singh failed to acknowledge any shortcomings on his part in his care and management of Patient A. 3. In an email sent to the Commission on 2 February 2020, in response to the complaint made by the Facility to the Commission, Mr Singh identified no concerns with his care, and again described his assessment of Patient A as "thorough". 4. In an email sent on 7 May 2020 to the NSW Nursing and Midwifery Council (the Council), in support of his application for review of the condition imposed by the Council on his registration a few months earlier that he work under "direct supervision", Mr Singh wrote: "Every single day I think of that incident and replays in my mind. What could I have done different? Why that happened in the first place? What could I have done to revert that error of judgment? In hindsight I feel that I should have recorded the client obs more frequently. … The more and harder I think about the above the same answer I get every time in my mind. In my head to toe assessments there was absolutely no signs of any injuries or suspected fracture, I am forced to think, was there another incident or fall occurred in the afternoon?". 1. In an email to the Commission sent on 13 May 2020 in response to the complaint, Mr Singh provided much the same response he gave to the Council as summarised above. 2. In an email to the Commission sent on 15 August 2020 after having read the report prepared by the Commission's expert, registered nurse, Ms Deborah Armitage, Mr Singh stated that he could have "handled the situation in a far better way". He did not elaborate. 3. On the first day of the Stage 1 hearing before the Tribunal, Mr Singh said that he is "not debating or arguing anything against [the complaint]". However, when taken by the Tribunal to the particulars of the complaint, he disputed many of the allegations. On the last day of the hearing Mr Singh provided the Tribunal with a letter confirming that he disagreed with most of the complaint. 1. We add to this list, Mr Singh's answer to a question from the Tribunal during the Stage 1 hearing, that he would "do nothing differently" if he had his time over again. Mr Singh's submissions 1. Mr Singh urged the Tribunal not to cancel his registration. He said that he now accepts "all his mistakes" and is happy to do whatever the Tribunal directs to ensure those mistakes are not repeated. In support, Mr Singh points to the series of on-line professional development courses he completed in September 2021, including courses on falls management and prevention and hip fractures. 2. In the Stage 2 hearing, Mr Singh said that having read the Decision he now acknowledges some of the shortcomings in his conduct. For example, that he should have remained in the room and supervised Patient A's transfer to bed after the fall (see, Decision [57]-[62]); and followed the Facility's falls policy by observing Patient A after the fall and recording those observations (see, Decision [71]-[92]). 3. Mr Singh said that at the time of Stage 1 hearing he was distracted by family and financial issues and unable to focus on his response to the complaint. His "thinking was not clear". Conclusion 1. Here, the task of determining the appropriate form of disciplinary orders was made difficult because of the limited material provided by Mr Singh to assist us to decide whether there was a risk that the conduct we found amounted to misconduct, might be repeated. 2. While Mr Singh was respectful to the Tribunal throughout these proceedings and endeavored to answer all questions asked, we were left with the impression that he was somewhat disengaged with the proceedings. This may be as a result of what Mr Singh described as "not thinking clearly", the family and financial problems he alluded to throughout the proceedings, or, as aspects of his presentation at the hearing suggested, an inability to engage on account of experiencing symptoms of depression. Whatever the explanation, on the available material we could not be satisfied that the objective of the proper protection of the community could be achieved by an order less restrictive than cancellation. 3. Apart from those mentioned at [13] above, it is unclear what Mr Singh considered to be the "mistakes" he says he now accepts and will not repeat. This makes it difficult to determine whether those mistakes were caused by a lack of knowledge, poor judgement or lack of care, separately or in combination. More to the point it makes it difficult to determine whether those mistakes are capable of rectification by further training, mentoring and/or supervision. 4. A further difficulty is that Mr Singh provided no material to enable us to assess whether as he appeared to suggest, that his conduct with respect to Patient A was an aberration. The limited information he provided about his employment history, did not include any statements by former supervisors or colleagues, which support his claim that he is, and throughout his career enjoyed a reputation for being, a diligent, conscientious, and caring nurse. We do not draw an adverse inference from Mr Singh's failure to adduce such material. Nonetheless, it means that we are unable to assess whether the conduct found to amount to misconduct was not representative of the standard of care, judgement and skill exercised by Mr Singh throughout his nursing career. 5. For these reasons we could not be satisfied that Mr Singh's misconduct will not be repeated or that conditions could be formulated to mitigate that risk. It follows that an order to cancel Mr Singh's registration must be made. 6. We agree with that a non-review period of 12 months is appropriate. Costs 1. There is no factor which justifies a departure from the "general rule" that Mr Singh must pay the Commission's costs. We order that Mr Singh pay the Commission's costs, as agreed, or assessed. Orders 1. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) Mr Singh's registration as a nurse is cancelled. 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW) Mr Singh may not apply for review of the cancellation order for a period of 12 months. 3. Mr Singh is to pay the Commission's costs, as agreed or assessed. ********** 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: 16 June 2022