Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Richardson [2022] NSWCATOD 148 Hearing dates: 28 September 2022 Date of orders: 22 November 2022 Decision date: 22 November 2022 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Prof M Chiarella AM, Senior Member S Daly, Senior Member B Seth, General Member Decision: 1. Complaint One, namely that the respondent has been convicted of criminal offences in New South Wales, is proved. 2. Complaint Two, namely that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Health Practitioner Regulation Law (NSW), is proved. 3. Complaint Three, namely that the respondent is guilty of unsatisfactory professional conduct under s 164G(2)(a)(1)(l) of the National Health Practitioner Regulation Law (NSW), is proved. 4. Complaint 4, namely that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c)(i) of the National Health Practitioner Regulation Law (NSW), is proved. 5. The respondent's registration as a nurse is cancelled. 6. The respondent may not apply for review of the cancellation order for a period of six months from the date of these reasons. 7. The Tribunal proposes to order the respondent to pay the applicant's costs as agreed or as assessed. 8. If the practitioner opposes costs, he must provide submissions to the Tribunal and the Commission by 6 December 2022. 9. The Commission may reply by 20 December 2022. Catchwords: PROFESSIONS AND TRADES – health care professional – nursing – where no appearance by respondent – effect of domestic violence offences Legislation Cited: Crimes Act 1900 (NSW) - s 59(1) Crimes (Sentencing Procedure) Act 1999 (NSW) - s 10(1)(b) Practitioner Regulation National Law (NSW) – ss 130(1), 139B, 144(a), 149A, 149C , 150, 150C and 164G(2) Cases Cited: Clyne v New South Wales Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 Health Care Complaints Commission v Kennedy [2017] NSWCATOD 72 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Murray (No 3) [2019] NSWCATOD 125 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 Lucire v Health Care Complaints Commission [2011] NSWCA 99 New South Wales Bar Association v Evatt (1968) 117 CLR 177 NSW Bar Association v Meakes [2006] NSWCA 340 Pharmacy Council v Ibrahim [2020] NSWSC 708 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Robert Richardson (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (No appearance) File Number(s): 2022/00126829 Publication restriction: The Tribunal made an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the disclosure to any person or entity of the names, addresses or any other identifying information of the persons referred to as Person A and Person B in the Schedule to the Complaint. REASONS FOR DECISION Summary 1. These proceedings concern a complaint brought by the Director of Proceedings of the Health Care Complaints Commission (Commission) against Mr Robert Richardson (practitioner). The Commission seeks protective orders under ss 149A and 149C of the Health Practitioner Regulation National Law (NSW) (National Law). 2. The practitioner is a registered nurse. On 7 September 2020, his registration as a nurse was suspended by the Nursing & Midwifery Council of New South Wales (Council). 3. By Application for Disciplinary Findings and Orders filed 3 May 2022, as later amended, the Commission seeks cancellation of the registration of the practitioner as a nurse. 4. A combined "Stage 1" and "Stage 2" hearing was held 28 September 2022. 5. In summary: 1. Complaint One alleges that the practitioner has been made the subject of a criminal finding pursuant to s 144(a) of the National Law; 2. Complaint Two alleges that the practitioner is guilty of unsatisfactory professional conduct pursuant to s139B(1)(b) of the National Law in that he contravened s 130(1) of the National Law; 3. Complaint Three alleges that the practitioner is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law in that he contravened s 164G(2) (a) of the National Law; 4. Complaint 4 alleges that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c)(i) in that the practitioner breached a condition of his registration. 1. For the following reasons we find: 1. each complaint is established; 2. the practitioner's registration as a nurse should be cancelled; and 3. the practitioner should not be permitted to seek a review of the order of cancellation for a period of six months. Procedural matters 1. The practitioner did not appear at the hearing. He had appeared at one directions hearing, but after non-compliance with directions, on 16 September 2022 the List Manager (The Hon J Boland AM) ordered that the matter proceed as an undefended matter, although she allowed the practitioner until 23 September 2022 to make an application to vary that order. 2. No such application was made. 3. At the commencement of the hearing, the Commission's advocate Mr Mitchell tendered an affidavit of Mr Paul Noonan sworn 13 September 2022. [1] Based on that affidavit, and other materials in the Tribunal's documents that Mr Mitchell took us to, we were satisfied that the practitioner had notice of the hearing and that, in the absence of any request for an adjournment from the practitioner, the matter should proceed. 4. Nevertheless, during the course of the next hour we rang the practitioner on two occasions, leaving messages inviting him to participate in the hearing, attending by telephone. 5. The practitioner did not return our calls. 6. Then, at the conclusion of the hearing, we allowed the practitioner a period of two weeks to file written submissions, but regrettably he did not do so. As will be seen, this had had implications in terms of the protective order we have decided to impose. That is because the Tribunal is entitled to draw inferences from the failure of a practitioner to attend the hearing and from his "silence": Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 at [42] – [50]; Lucire v Health Care Complaints Commission v Health Care Complaints Commission [2011] NSWCA 99 at [124] – [141]; NSW Bar Association v Meakes [2006] NSWCA 340 at [70] – [78]. 7. We note that in Wingate the NSW Court of Appeal, per Basten JA, with whom McColl JA and Harrison AJA agreed, stated at [47]: In Bowen-James [Bowen-James v Walton (NSWCA, 5 August 1991, unrep)], after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued: … we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts. The Commission's materials 1. In addition to Exhibit 4, the Commission filed three bundles of documents. 2. The first bundle [2] was filed on 23 August 2022. This bundle consists of 39 tabulations which include a serious of sets of written reasons for decision of the Nursing & Midwifery Council of New South Wales (Council) in respect to proceedings conducted pursuant to s 150 of the National Law; correspondence between the Commission and the practitioner; documents produced by NSW Police; extracts of transcript of proceedings an investigation report paid by the Southern NSW Local Health; codes of conduct and medical records. 3. The second bundle [3] was filed on 23 September 2022. This bundle consists of 7 tabulations and contains documents to be included in or substituted for other documents in Exhibit 1. 4. The third bundle [4] was filed on 26 September 2022. This bundle consists of 8 tabulations and contains seven file notes prepared by Council officers and correspondence. The practitioner's materials 1. No materials at all had been filed by the practitioner. Complaint One 1. Complaint One is that, pursuant to s 144(a) of the National Law, the practitioner has been made the subject of a criminal finding in the State of New South Wales. 2. The background to Complaint one is The practitioner was first registered as a registered nurse in 1997. He was employed as a registered nurse at Braidwood Multi-Purpose Service Hospital from around August 2006 until September 2020, including from March 2014 as a Nurse Manager. On 25 May 2020 the practitioner was arrested and charged with 3 offences of assault occasioning actual bodily harm contrary to section 59(1) of the Crimes Act 1900. On 26 October 2020 the practitioner was found guilty of 1 offence assault occasioning actual bodily harm contrary to section 59(1) of the Crimes Act 1900, but without proceeding to conviction, and directed to enter into a Conditional Release Order for 18 months pursuant to s9(1)(b) of the Crimes (Sentencing Procedure) Act 1999. 1. The sole particular of Complaint One is that on 26 October 2020, at the Local Court of NSW, Queanbeyan the practitioner was made the subject of a criminal finding that an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) (Crimes Act) was proven. Is the Particular of Complaint One established? 1. We are satisfied that the Conditional Release Order of 26 October 2020 proves the Particular. That order relevantly states: You are found guilty, but without proceeding to a conviction, are directed to enter into a Conditional Release Order for 18 months pursuant to Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 to commence on 26 October 2020. Is Complaint One proven? 1. Section 144(a) of the National Law provides: 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. Accordingly, having found the Particular to Compliant One established, we are satisfied that Complaint One is proven, namely that, the practitioner has been made the subject of a criminal finding in the State of New South Wales. Complaint Two 1. Complaint 2 is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner has contravened s 130(1) of the National Law. 2. The background to Complaint Two is that: On 25 May 2020, the practitioner was charged with 3 offences of assault occasioning actual bodily harm contrary to section 59(1) of the Crimes Act 1900. The charges are for offences punishable by 12 months imprisonment or more, namely 5 years. ("the charges") On 26 October 2020 at the Local Court of NSW, Queanbeyan the practitioner was found guilty of 1 count of assault occasioning actual bodily harm contrary to section 59(1) of the Crimes Act 1900, but without proceeding to conviction, and directed to enter into a Conditional Release Order for 18 months pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999. 1. The only particular of Complaint Two that is pressed is Particular (1) which is that the practitioner contravened s 130(1) of the National Law in that he failed to notify the National Board within 7 days of being charged with the following offence that is punishable by 12 months' imprisonment or more on 25 May 2020: three counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. Is Particular (1) of Complaint Two established? 1. Section 130(1) of the National Law states that: 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. 1. The Commission submits that: 1. a 'relevant event' under s130(3)(a)(i) of the National Law includes when a practitioner is charged with an offence punishable by 12 months imprisonment or more; 2. the offence of assault occasioning actual bodily harm, carried with it at the time of the charge (and to this date) a maximum sentence of 5 years imprisonment; 3. the charges of 25 May 2020 were 'relevant events' which required the practitioner to notify the National Board within 7 days, namely by 1 June 2020. 1. The Commission relies on the following evidence: 1. The evidence of the Australian Health Practitioner Regulation Authority (AHPRA) at Tab 22 of Exhibit One that it has no record of any correspondence from the practitioner or any 'Notice of Relevant Event" documentation on its system; 2. the letter from AHPRA addressed to the Commission dated 10 December 2020 at Tab 23 which further confirms that AHPRA held no records of the practitioner disclosing his criminal charges at that time; 3. the Record of Interview between Bill Thomas and the practitioner which took place on 12 June 2020 and which is located at Tab 34. At page 34 of the record of interview, after Mr Thomas raised with the practitioner that he had been advised of 'criminal matters' concerning the practitioner, the practitioner stated: 'Yes, and I've had to disclose that, but first and foremost, I had to go to my family and friends, my mutual friends of the person and tell them what happened. I then had to -and my brothers and I had told them – and I also have to attend – I had to attend today. And then I've got to notify AHPRA Nursing and Midwifery Council.' 1. The Commission submits that this is evidence that as at 12 June 2020 the practitioner had not notified AHPRA of the charges. 2. There is otherwise no evidence before the Tribunal that suggests the practitioner ever advised the National Board of the criminal charges. 3. The Commission submits that Particular 1 is comfortably established. 4. We agree. In the absence of any submissions or evidence from the practitioner we find Particular (1) of Complaint Two established. Is Complaint Two proven? 1. Complaint 2 is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner has contravened s 130(1) of the National Law. 2. Section 139B (1)(b) of the National Law defines 'unsatisfactory professional conduct' to include: 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. Given that we have found Particular (1) of Complaint Two established, namely that he contravened s 130 of the National Law, it follows that we find Complaint Two proven. Complaint Three 1. Complaint Three is that practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner has contravened s164G(2) of the National Law/Regulation. 2. The background to Complaint Three is that: On or around 22 June 2020 the Nursing and Midwifery Council of New South Wales (`the Council') sent a notice to the practitioner pursuant to s164G of the National Law requiring further information about a complaint. On or around 17 August 2020 the Council sent a notice to the practitioner pursuant to s164G of the National Law requiring further information about a complaint. 1. The Particulars to Complaint Three are: 1. the practitioner contravened s 164G(2) of the National Law by failing to comply with a notice sent to the practitioner on or about 22 June 2020. 2. the practitioner contravened section 164G (2) of the National Law by failing to comply with a notice sent to the practitioner on or about 17 August 2020. Are the Particulars to Complaint Three established? 1. On or around 22 June 2020, the Council sent a notice by email to the practitioner pursuant to s 164G of the National Law requiring further information about a Complaint. The notice relevantly stated: Before 9am on Monday 29 June 2020 you must provide the following documents: a. Information Declaration Form (enclosed); b. A one-page reflection on the issues raised c. A performance appraisal from your manager(s) d. evidence of your Continuing Professional Development (CPD). 1. On 17 August 2020, the Council sent a notice by email to the practitioner pursuant to s 164G of the National Law requiring further information about a Complaint. That notice relevantly stated: Before 9am on Monday 24 August 2020 you must provide the following documents: a. Information Declaration Form (enclosed); b. Police Fact Sheet c. Court documents d. A response to your non-attendance at the hair drug test and health assessment. Please send this information to us before 9am on 24 August 2020 or as soon as it becomes available to you. 1. There is no evidence to suggest that the practitioner complied with either notice by the time stipulated in the notice, or at any time. Neither is there any evidence that the practitioner provided a reasonable excuse for the failure to comply. 2. The Commission accepts that the practitioner may have had some difficulty in complying with the request to provide evidence of his CPD as required by the notice dated 22 June 2020 given that he was suspended from work at the time of the notice being served. The Commission further accepts that the practitioner likely did explain this difficulty to a program officer at the Council during a telephone call on 6 April 2020. However, the Commission submits that this phone call pre-dated the s 164G notice being issued, and, in any event, does not excuse the practitioner's failure to produce the balance of the documents requested in the notice. 3. The issue of whether the practitioner complied with the s 164G notices was considered by the Council during the s 150 hearing on 7 September 2020. The Council made findings that "Mr Richardson failed to respond to a request under s 164G of the National Law from the Council for further information about the criminal charges on two occasions." 4. The findings of the Council dated 16 September 2020 are further relied upon by the Commission to establish that as of 7 September 2020 the Council had not received the documents requested in the notices dated 22 June 2020 and 17 August 2020. 5. The Commission accepts that there is some evidence of the practitioner communicating to the Council on 30 June 2020 that he was not able to access his emails. 6. The Commission submits that any concerns of the Tribunal as to whether the practitioner in fact received the notices served by email to his Gmail address, can be ameliorated by: 1. the file note at Tab 11 of Vol 1 from Erin Hoyer, a Program officer at the Council, which records that an email was sent to the practitioner on 22 June 2020 attaching the s164G letter; 2. other evidence of the practitioner making contact with the Council via another email address on occasions prior to, and subsequent to the notices being sent. 1. Section 164G(2)(a) of the National Law provides: 164G Council may require further information from practitioner or student [NSW] … (2) A registered health practitioner or student must not— (a) without reasonable excuse, fail to comply with a requirement under this section; or … Maximum penalty—20 penalty units. 1. For the above reasons, the Commission submits that the two instances of the practitioner contravening s 164G(2)(a) of the National Law as particularised in Complaint 2 are established. 2. We agree. In the absence of any submissions or evidence from the practitioner we find the Particulars of Complaint Three established. Is Complaint Three proven? 1. Section 139B(1)(b) of the National Law is set out above. 2. Given that we have found Particular (1) of Complaint Two established, namely that the practitioner contravened s 164G(2) of the National Law, it follows that we find Complaint Three proven. Complaint Four 1. Complaint Four is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c)(i) of the National Law in that the practitioner has breached a condition of his registration. 2. The background to Complaint Four is that on or around 29 June 2020 the Council imposed a condition, pursuant to s 150C of the National Law, on the practitioner's registration requiring the practitioner to undergo hair drug testing on or before 7 July 2020. 3. The sole Particular of Complaint Four is that the practitioner contravened the condition to undergo hair drug testing on or before 7 July 2020 by failing to attend for drug testing on or before 7 July 2020, or at any time. Is the Particular of Complaint Four established? 1. On 29 June 2020, following the s 150 proceedings on the same day, the Council imposed conditions pursuant to s 150C of the National Law on the practitioner's registration. The conditions included condition 12 which stated: To attend by 7 July 2020 for hair drug testing as directed by the Nursing and Midwifery Council of NSW. The test will require head hair with a minimum length of 3cm and a. comply with any instructions provided by the Council in relation to hair testing. b. the costs of this assessment will be met by the Council. 1. The s 150 proceedings were convened to address a complaint to the Council that included allegations that the respondent had an addiction to methamphetamine and had attended work affected by drugs. 2. The practitioner was advised of the conditions by the Council by a phone call from a program officer at the Council on the morning of 30 June 2020, a letter dated 30 June 2020 and a further email dated 30 June 2020. 3. A copy of the letter dated 30 June 2020 was again provided to the practitioner on 22 July 2020. 4. The Council made arrangements for Garran Laverty to collect a hair sample from the practitioner. The Council pre-paid for the testing. The Council directed the respondent on 30 June 2020 to call Garran Laverty as soon as possible and arrange for a hair collection date. 5. The Commission submits that the practitioner has not submitted to hair drug testing as directed by the Council, by 7 July 2020, or at all. The Commission relies on the following evidence: 1. the file note of the conversation between the monitoring officer at the Council and Garran Laverty dated 9 July 2020 where states that Garran Laverty confirmed the practitioner did not attend for a hair drug test; 2. the email from Lynette Mercieca at Laverty Pathology to the Council dated 30 June 2020 where she states that she had not received a phone call from the practitioner as to the hair test; 3. the file note from a program officer from the Council documenting a conversation with the practitioner on 24 March 2021 whereby the practitioner advised that he did not intend to submit to a hair drug test; and 4. the email from the program officer at the Council dated 24 March 2021 which refers to a phone conversation that morning between the author and practitioner where it is noted that the practitioner stated he was not willing to undergo a hair drug test. 1. The Commission submits that there can be no question that the practitioner received the communications from the Council as to the requirement to submit to hair testing and was aware of condition 12, given that he reported to his treating psychologist David Guthrey: 1. on 7 September 2020, that he had to provide hair samples for drug analysis and had no issue with doing so; and 2. on 21 September 2020, that the Council had requested hair samples and he was happy to comply. 1. We agree. In the absence of any submissions or evidence from the practitioner we find the Particulars of Complaint Four established. Is Complaint Four established? 1. Complaint 4 is that the practitioner is guilty of unsatisfactory professional conduct under s 139(1)(c)(i) of the National Law in that the practitioner breached a condition of his registration. 2. Given that we have found the Particulars of Complaint Four established, it inevitably follows that we find Complaint Four proven. Protective Orders 1. The Commission's submissions may be summarised as follows. 2. First, the paramount consideration in proceedings such as this is protection of the public: National Law, 3A. In addition, other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201, 202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184. 3. Secondly, in NSW Bar Association v Meakes [2006] NSWCA 340 at [114], Basten JA set out the following as the important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order: 1. the order reminds other members of the profession of the public interest in the maintenance of high professional standards; 2. the order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence; and 3. by speaking to the public at large, the order seeks to maintain confidence in the high standards of the profession. 1. Thirdly, those statements of principle were further refined by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: the objective extends to protecting the public from not only the practitioner's misconduct but also similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession: by setting and maintaining standards and, where appropriate, 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". 1. Fourthly, the Tribunal may suspend or cancel the practitioner's registration if it is satisfied that he has been convicted for an offence and the circumstances of the offence render him unfit in the public interest to practice as a nurse: National Law, s 149(1)(c). 2. Fifthly, in Health Care Complaints Commission v Russ [2021] NSWCATOD 5, the Tribunal identified the following relevant principles in considering whether the circumstances of an offence render a practitioner unfit in the public interest: 1. the term "public interest" is a broader concept that the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]) (at [37]; 2. an assessment of the practitioner's current fitness to practice is required, and is not subject to a requirement of "probable permanent unfitness": Chen v Health Care Complaints Commission [2017] NSWCA 196 at [67]-[69]) at [38]; 3. the question is whether the circumstances surrounding the offence currently render the practitioner unfit to practice in the public interest. Those circumstances include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances: Chen at [39]). 1. Sixthly, the circumstances of the offence the subject of Complaint One, render the practitioner unfit in the public interest to practise as a nurse for the following reasons: 1. the circumstances of the offence are sufficiently serious to render the practitioner unfit to practise. Conduct of domestic violence is intrinsically serious, antithetical to the conduct of nursing and of a kind which should be found to render the respondent unfit to practise; see too Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [87]; 2. unfitness of the practitioner to practise is not cured by the mere passage of time without renewed misconduct: Lee v Health Care Complaints Commission [2012] NSWCA 80. There is no evidence before the Tribunal to assess the practitioner's current fitness to practise. Specifically, there is no evidence of the respondent's current: 1. level of insight (if any) into the conduct; 2. degree of remorse; 3. awareness of the conduct being unacceptable; 4. support systems; or 5. psychological or psychiatric functioning. 1. nor is there is any evidence before the Tribunal of steps taken by the respondent towards rehabilitation, reformation or further education. There is also no evidence dealing with the respondent's conduct post the proven episode of misconduct. Consideration 1. It is implicit in the Commission's submissions that the reason cancellation is sought is because of the conduct the subject of Complaint One. 2. The offence the subject of Complaint One was Assault Occasioning Actual Bodily Harm contrary to s 59(1) of the Crimes Act. In summary, the circumstances of the offending (taken from the Court Facts Sheet) are that: 1. on 23 May 2020, Person A ended a relationship with the practitioner; however, she still needed to reside at the property for a few more days before finding alternate accommodation; 2. on 24 May 2020, Person A spent the evening out before returning home. The practitioner was in bed. Person A began to make a cup of tea in the kitchen before the practitioner walked in irate and yelled at her. The practitioner called Person A 'Babylons hoar' [sic] and 'slut'. Person A reciprocated the abuse back at the practitioner; 3. the practitioner was holding a horse whip, about a metre in length. 4. the practitioner requested that Person A admit she was cheating on him. When she refused, the practitioner used the end of the horse whip a total of three times to hit Person A on her right leg. Each time this caused Person A immediate pain and resulted in both red markings and bruising on her right lower leg, right upper thigh and just under her buttock; 5. Person A went into a bedroom within the home and closed the door. She used her phone to call triple zero, however the practitioner followed her into the bedroom and removed her phone and ran outside. Person A used the practitioner's phone to call his mother. A short time later, Person B, arrived at the location and had a short conversation with Person A in which she had disclosed she had been whipped by the practitioner; 6. after Person B left, Person A locked herself in the home so she could collect her belongings. About 15 minutes later, the practitioner returned. As the doors were locked, he smashed the laundry window to get access to the home. The practitioner chased Person A around the home whilst still holding the horse whip. 1. As noted, the practitioner was found guilty of the offence without conviction and sentenced to a Conditional Release Order for 18 months. 2. For the reasons summarised above the Commission seeks an order that the practitioner's registration be cancelled for a period of 12 months. 3. It is well established that: 1. whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; 2. although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Lee v Health Care Complaints [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. 3. no order should be made which has "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose": Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; Meakes at [113]); Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to); 4. the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; Meakes at [113]-[114]; 1. The Commission submits that domestic violence is intrinsically serious, antithetical to the conduct of nursing and of a kind which should be found to render the respondent unfit to practice. Here the Commission relies on Haasbroek. 2. In Haasbroek the practitioner, was a doctor. He was convicted of assault occasioning actual bodily harm against Person B, who was a relative of his wife, Person A. On appeal the District Court found the practitioner guilty of the charge, but without proceeding to conviction dismissed the matter pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. Later, following an altercation between Person A and the practitioner, the police were called to the family home in Leeton. On 20 February 2015, a final AVO for the protection of Person A and the eldest two children of their marriage was made against the practitioner for a period of 12 months. 4. Later still, in June 2015, the practitioner came to the former matrimonial home to spend time with the children. A dispute occurred between the practitioner and Person A. Person A was pushed by the practitioner onto the bed and he swore at her. The practitioner was charged with common assault and contravention of the AVO. On 13 November 2015, the practitioner was convicted in the Local Court of common assault, breach of the AVO and intimidation. The presiding Magistrate, in sentencing for the assault charge, placed the practitioner on a good behaviour bond for 12 months, and imposed similar bonds for the other two offences. An appeal was dismissed. 5. Like the practitioner in this matter, Dr Haasbroek did not notify the relevant Board of his convictions as required under the National Law. 6. In Haasbroek Tribunal decided to reprimand Dr Haasbroek. In doing so, it accepted that he was genuinely remorseful, had sought professional assistance to manage his behaviour and accepted his specialist's opinion that the risk that Dr Haasbroek would offend again was low. In addition, the Tribunal found that there was no deliberate or reckless conduct by the practitioner in failing to notify the Board of his criminal charges and convictions. 7. All that said, each case turns on its own facts, matters and circumstances. We consider that a period of cancellation is appropriate. We suspect that had the practitioner appeared, exhibited remorse and demonstrated some insight into his conduct it is possible that we may have imposed a lesser protective order, such as suspension or a reprimand. However, the practitioner did not appear and the Commission correctly submits that there is no evidence before the Tribunal to assess the practitioner's current fitness to practice, including his current level of insight (if any) into his conduct and his degree of remorse. 8. In particular, we note that the practitioner has failed to engage with Council; has failed to engage with Tribunal; has breached the Code of Conduct and has failed to attend for hair drug testing. Objectively, practitioner's conduct is of such a nature that the only appropriate disciplinary order is the cancellation of his registration. 9. We have come to the conclusion, given the objective seriousness of the conduct, that to maintain public confidence in the profession, the appropriate protective order is a short period of cancellation. 10. That period should be a period of six months from the date of these reasons. Costs 1. This is a costs jurisdiction, and ordinarily costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282. 2. As the Commission has been successful, we propose to order the practitioner to pay the Commission's costs as agreed or as assessed. 3. However, we have not heard from the practitioner on the issue. If the practitioner opposes costs, he should provide submissions to the Tribunal and the Commission within two weeks, and the Commission should reply within a further two weeks. 4. If it becomes necessary for the Tribunal to determine this issue, we propose to decide the matter "on the papers", and without a hearing. If either party opposes that course they should address that matter in their submissions Orders 1. The Tribunal orders: 1. Complaint One, namely that the respondent has been convicted of criminal offences in New South Wales, is proved. 2. Complaint Two, namely that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Health Practitioner Regulation Law (NSW), is proved. 3. Complaint Three, namely that the respondent is guilty of unsatisfactory professional conduct under s 164G(2)(a)(1)(l) of the National Health Practitioner Regulation Law (NSW), is proved. 4. Complaint 4, namely that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c)(i) of the National Health Practitioner Regulation Law (NSW), is proved. 5. The respondent's registration as a nurse is cancelled. 6. The respondent may not apply for review of the cancellation order for a period of six months from the date of these reasons. 7. The Tribunal proposes to order the respondent to pay the applicant's costs as agreed or as assessed. 8. If the practitioner opposes costs, he must provide submissions to the Tribunal and the Commission by 6 December 2022. 9. The Commission may reply by 20 December 2022. ********** Endnotes 1. The affidavit was marked as Exhibit 4. 2. This bundle was marked as Exhibit 1 3. This bundle was marked as Exhibit 2 4. This bundle was marked as Exhibit 3 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 30 November 2022 - paragraph 85, sentence 2 changed from inappropriate to appropriate DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2022