Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v McPherson [2022] NSWCATOD 158 Hearing dates: 14 November 2022 Date of orders: 6 December 2022 Decision date: 06 December 2022 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member I McQualter, Senior Member Dr L Hunt, Senior Member B Seth, General Member Decision: 1. Complaint One, namely that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Health Practitioner Regulation Law (NSW), is proved. 2. Complaint Two, that the practitioner is guilty of professional misconduct under s 139E of the of the National Health Practitioner Regulation Law (NSW), in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration, is proved. 3. The respondent's registration as a nurse is cancelled. 4. The respondent may not apply for review of the cancellation order for a period of six months. 5. If either party opposes an order that the practitioner pays the Commission's costs as agreed or as assessed, they are to provide submissions to the Tribunal and the other party within 7 days from the date of publication. 6. The other party may reply within 14 days from the date of publication. Catchwords: PROFESSIONS AND TRADES – health care professional – nursing – where practitioner admits he is guilty of unsatisfactory professional conduct and professional misconduct – appropriate protective orders Legislation Cited: Health Practitioner Regulation National Law (NSW) - ss 3, 3A, 5, 138, 139B, 139E, 144, 149A and 149C Mental Health Act 2007 (NSW) Cases Cited: Health Care Complaints Commission v Abrams [2021] NSWCATOD 128 Health Care Complaints Commission v Azzam [2021] NSWCATOD 106 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Gupta [2022] NSWCATOD 141 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Le [2021] NSWCATOD 104 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Ly [2010] NSWMT 20 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 Health Care Complaints Commission v Tran [2021] NSWCATOD 82 New South Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Peter McPherson (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) NSW Nurses and Midwives Association (Respondent) File Number(s): 2022/00196900 Publication restriction: A non-publication order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) is made in respect of the person identified as Person A in the Schedule attached to the Complaint. REASONS FOR DECISION Introduction 1. These proceedings concern a complaint brought by the Director of Proceedings of the Health Care Complaints Commission (Commission) against Mr Peter McPherson (practitioner). The Commission seeks protective orders under ss 149A and 149C of the Health Practitioner Regulation National Law (NSW) (National Law). 2. The matter conducted as a combined Stage One and Stage Two proceeding on 14 November 2022. 3. For the following reasons: 1. we found Complaints One and Two proven; 2. we decided to cancel the practitioner's registration as a nurse; and 3. order that the practitioner may not apply for review of the cancellation order for a period of six months. The Complaint 1. By Amended Complaint filed during the hearing on 14 November 2022 the Commission makes two complaints. 2. The background to both complaints is that: 1. the practitioner completed a Bachelor of Nursing at the Australian Catholic University in 1999. He was first registered as a nurse on 15 December 1999. The practitioner obtained a Master of Mental Health Nursing from the University of Newcastle in August 2020 and was employed as a registered nurse at the Children's Hospital at Westmead (Children's Hospital) in December 2010; 2. on 11 November 2019, the practitioner was working in Hall Ward, an inpatient mental health unit, at the Children's Hospital. Patient A, a female aged 15 years, was an inpatient on the ward being treated for anorexia nervosa, obsessive compulsive disorder and anxiety. Patient A displayed aggressive behaviour towards the practitioner when she struck the practitioner to the head and face following a verbal exchange in circumstances where Patient A did not finish her breakfast meal within the allocated time. Complaint One 1. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law. 2. The Particulars of Complaint One are that: 1. on 11 November 2019, the practitioner, while working in the ward, used unreasonable force towards Patient A when he: 1. used his left hand to push Patient A away from himself and the open door at the Nurses Station; and then 2. used both hands to push Patient A, resulting in Patient A being propelled through the air until she landed on the floor on the right side of the corridor; 1. following the events set out above at Particular 1, the practitioner used inappropriate language towards Patient A when he: 1. called Patient A an "arsehole"; 2. stated words to the effect of "I knew you would carry on and make a big fuss … where do you want to do the tube, we can do it right here, you're going to get the tube and I will put it in whether you like it or not"; 3. stated words to the effect of "you may still need the tube inserted". 1. In his Reply the practitioner admitted the Particular (1) of Compliant One, but denied Particular (2), although in his statement he appears to admit Particular (2)(c). 2. In his Reply the practitioner stated that whether or not Complaint One was proved was a matter for the Tribunal to determine. 3. During the hearing, the practitioner admitted Complaint One. Complaint Two 1. Complaint Two is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 2. The Particulars of Complaint Two are: 1. Particular 1 of Complaint One individually; 2. Particulars 1 and 2 of Complaint One cumulatively. 1. In his Reply, the practitioner stated that whether or not the Particulars of Complaint Two were established and whether or not Complaint Two was proved was a matter for the Tribunal to determine. However, at the hearing admitted Compliant Two and the Particulars thereto (to the extent that he had admitted the Particulars to Complaint One). 2. During the hearing, the practitioner admitted Complaint Two. Evidence The Commission's evidence 1. The Commission filed two bundles of material consisting of some 80 documents. These documents included but were not limited to evidentiary certificates provided by the Australian Health Practitioner Regulation Agency and the Council; correspondence between the Commission and the practitioner; various NSW Health Codes of Conduct, Guidelines and Policies; the clinical records of Patient A; witness statements of registered nurse (RN) Renée Yeadon and RN Nicole Lance; the reasons for decision dated 30 May 2020 of the s 150 hearing of 18 May 2020 and related documents, including the practitioner's "self-reflection"; the expert report of Carol Martin dated 23 June 2021 and related materials; s 40 materials and CCTV footage of the events the subject of the Complaints. 2. The practitioner did not require any Commission witness to attend for cross-examination. The practitioner's evidence 1. The practitioner's evidence was a folder of some 12 documents relevantly including his Reply; his statement of 12 October 2022; his CV; his record of Continuing Professional Development; evidence of his completion of a Master of Mental Health Nursing; evidence of his completion of a two-day course titled "Predict, Assess & Respond to Aggressive/Challenging Behaviour"; references and related documents. 2. The Commission required the practitioner to attend for cross-examination. Relevant Law and applicable principles Relevant Law 1. It is appropriate to set out the relevant provisions of the National Law. These are as follows. 2. Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for- (a) the regulation of health practitioners; and (b) the registration of students undertaking- (i) programs of study that provide a qualification for registration in a health profession; (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 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. A "NSW provision" is defined in s 5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note — This definition is an additional New South Wales provision. 1. Section 139B of the National Law (which is also an additional provision for NSW), which relevantly provides: 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— … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 139E of the National Law (again, an additional provision for NSW), provides: 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. Relevant principles to be applied Unethical conduct 1. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. At [21] and following the Tribunal stated: 21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30]. 22. The Macquarie Dictionary offers several definitions of both words which include: Improper 2. not in accordance with propriety of behaviour, manners, etc: improper conduct. Unethical 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. 23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. 24. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53]. 25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances. 1. Whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[60]. Professional misconduct 1. The Tribunal stated in Health Care Complaints Commission v Le [2021] NSWCATOD 104 that: 71. The principles relating to findings of professional misconduct were stated in Health Care Complaints Commission v Joffe [2018] NSWCATOD 121 at [69] to [75] which we paraphrase as follows: (1) Whether and to what extent the misconduct of the respondent constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This involves a consideration of the circumstances in which suspension or cancellation may be justified, albeit that such protective orders may not necessarily, as a matter of discretion, be made: Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [55]; (2) Guidance as to the circumstances in which suspension or cancellation of registration are appropriate is to be found in the judgment of Meagher JA in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do") (Basten and Emmett JJA agreeing). His Honour stated: [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. (3) Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the respondent's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. (4) Whether conduct is sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; (5) As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186, "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation". His Honour further notes: [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. … Determining a protective order 1. The Tribunal recently summarised the relevant principles in Health Care Complaints Commission v Gupta [2022] NSWCATOD 141 at [171] which we repeat as follows: 1. the protection of public safety and health is paramount; National Law, s 3A; 2. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a); 3. the Tribunal must consider the maintenance preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; 4. protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]; 5. the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340; 6. 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]; 7. 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]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114]; 8. whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag at [82]. 9. 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]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]); Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to); 10. in Health Care Complaints Commission v Abrams [2021] NSWCATOD 128 at [23] that the Tribunal set out the matters to which the Tribunal should have regard in determining an appropriate protective order, namely: * the gravity of the misconduct; * how long ago the misconduct occurred; * what has occurred in relation to the practitioner since the misconduct; * the practitioner's level of remorse and degree of insight if any into his or her misconduct; * what if any steps have been taken by the practitioner by way of rehabilitation; * general encouragement of high standards; and * specific considerations of what is required to ensure that the practitioner does not pose similar risks in the future. Stage One Consideration Complaint One 1. The practitioner has admitted Particular 1 of Complaint One. 2. Particular 1 consists of two sub-particulars, (a) and (b). Regardless of the practitioner's admissions, we would have found the two sub-particulars established, that conclusion being supported by the copious evidentiary references in the Commission's submissions. 3. As to Particular 2 of Complaint One, the practitioner: 1. denied Particulars 2(a) and (b); and 2. admitted Particular 2(c) 1. In relation to Particular 2(c), we would have found the particular established, that conclusion being supported by the copious evidentiary references in the Commission's submissions. 2. We turn to Particulars 2(a) and (b), which may be considered together. 3. The Commission primarily relies on the Patient A's contemporaneous handwritten statement of 11 November 2019 in which she stated: I was screaming and crying as I was shocked and in pain. Renee came and pulled the alarm thing and asked me where it hurt and said to Peter it was a forceful push. She then went to get more help and Peter was standing next to me. He called me an asshole and I started crying even more and he said that might teach you to not push people around and as I was crying he said I knew you could carry on and make a big fuss and he said where do you want to do the tube, we can do it right here, you're going to get the tube and I will put it in whether you like it or not. 1. The Commission submits that Patient A is credible because her statement: 1. is clear and frank (including an admission against her own interest that she pushed the practitioner); 2. about what happened before the push are corroborated by other evidence; 3. about what happened after the push are corroborated by other evidence; 4. is credible about where the conversation occurred; 5. is credible about when the conversation occurred; 6. is credible about the topic of the conversation; 7. about what happened after the conversation are corroborated by other evidence; 8. is corroborated in that, soon after the push, the practitioner had a conversation with RN Yeadon suggesting he was still insistent about the tube but RN Yeadon stopped him because she was instead focussed on the patient first being reviewed by a medical officer; 9. is corroborated in that CCTV3 appears to show Patient A upset by the conversation and the practitioner appears to accept that his (to the extent admitted) conversation with the patient was inappropriate 1. In addition, the Commission submits that the practitioner conceded that he was frustrated, impatient and that he thought Patient A was stalling, exaggerating her injury and continuing the tactics she had used that morning. Accordingly, the Commission submits that it is credible that, having physically lashed out at a patient whom the practitioner thought was avoiding/stalling/delaying her breakfast/bolus, the practitioner would then also verbally lash out at the same patient. 2. For all these reasons, the Commission submits that Patient's A account of events should be preferred over the practitioner's denials of the conduct. 3. The practitioner though his legal representative did not dispute that Patient A was truthful. However, he submits that the practitioner too has been truthful throughout the course of events following the incident and has also given evidence that is honest and consistent. The practitioner concedes that he made a grave error and suffers deep remorse, while acknowledging that he is not the victim. He says that he is genuinely sorry. 4. We consider that Particular 2(b) is established. That is because it was also broadly consistent with Patient A's care management plan, namely that: If [Patient A] is unable to complete meal within time frame, she will need to complete bolus exchange + 50% penalty for missed or incomplete portions … If [Patient A] is unable to complete bolus orally, can have PRN Olanzapine to assist If [Patient A] is still unable to complete bolus orally, will need [nasogastric tube] to be inserted … 1. However, we do not find Particular 1(a) established. That is principally because the language "arsehole/asshole" seems inconsistent with any other statement of the practitioner. 2. Accordingly, we find Particulars 1(a) and (b) and Particulars 2(b) and (c) of Complaint One established. 3. Complaint 1 is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law because he contravened conditions to which his registration was subject. 4. The practitioner submitted that he was so guilty. 5. We agree with that admission as: 1. according to Patient A's account of events the practitioner pushed her "really hard" and "I flew and fell and hurt my left knee and right wrist"; having viewed the CCTV footage, the statement "I flew" was not exaggerated. There appears to be a considerable weight disparity between the practitioner and Patient A and CCTV2 shows Patient A having been thrown through the air then landing on the corridor floor; 2. according to the practitioner's account of events "I pushed her away from me down the hallway …it was a vigorous push … it resulting in her stumbling backwards, sideways and falling onto her backside down the hallway"; 3. we accept the Commission's submission that: 1. the pushing was excessive and unnecessary; 2. the practitioner could have used a hand to shield himself and moved away; 3. the practitioner had other available safe options (including verbal de-escalation, asking for assistance from his nursing colleagues, using his duress alarm, closing the door and calling for backup from the Eating Disorder Team)' 4. the pushing was contrary to the Code of Conduct; 1. the Commission's expert found the conduct the subject of Particulars 1(a) and (b) and Particular 2(b) and (c) to be significantly below the standard reasonably expected of a practitioner with equivalent training or experience. Complaint Two 1. Complaint Two is simply that the practitioner is guilty of professional misconduct under s 139E of the National Law because he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. 2. The practitioner admitted this Complaint during the hearing. Again, we consider that he was right to do so. 3. We repeat our comments at [44](3) and (4). 4. In addition, we accept the Commission's submissions that Particular 1 of Complaint Two (being the conduct the subject of Particular 1 of Complaint One) individually amounts to conduct of a sufficiently serious nature to justify suspension or cancellation because: 1. the practitioner was well qualified, having completed a Bachelor of Nursing in 1999; 2. the practitioner had ample experience as a registered nurse (he had worked at Concord Hospital in 2000-2003; at Westmead Children's Hospital in 2003-2004 and 2008-2010; at Orange Base Hospital in 2010-2017; 3. the practitioner had ample experience with difficult patients, including emergency patients at Westmead, "detoxing: patients at Orange and adolescent mental health patients in the Hall Ward) 4. the practitioner had ample (approximately 4 years') experience at the Hall Ward since 2015; 5. the practitioner had ample experience with challenging behaviours; patients in the Hall Ward have a broad range of disorders ranging from major depression to early onset psychosis, psychological disorders, autism spectrum and developmentally delayed patients with challenging behaviours; 6. the practitioner was the team leader on the day; 7. the practitioner had been allocated team leader on approximately 70% of his shifts; 8. the practitioner had already completed relevant training before the incident; 9. the practitioner was an experienced registered nurse who had worked in adolescent mental health since at least 2015, often in the position of team leader, so should have already had in place appropriate strategies and plans for managing escalations in behaviour of seriously ill adolescent patients; 10. the practitioner was familiar with Patient A, knew she had recently elbowed another staff member in the ribs, was aware that the patient had been physically aggressive, had access to her safety plan and was aware of her triggers. Stage Two Consideration The Commission's submissions 1. The Commission seeks an order that the Tribunal cancel the practitioner's registration in that he is guilty of professional misconduct because: 1. the conduct involved a substantial departure from fundamental obligations of a nurse; 2. the practitioner harmed a patient; 3. the practitioner must have known the fundamental obligation to treat patients with respect and not use unreasonable force; 4. the conduct occurred in relation to a young vulnerable female involuntary mental health patient at the Hall Ward where the practitioner was working as the team leader; 5. despite the practitioner's experience and skills, Patient A's safety was compromised and physical harm was caused to a vulnerable and unwell adolescent; 6. the practitioner has been involved in another incident, that being the 2017 assault of his wife, [not for publication]. Police took out an apprehended violence order for her protection. The practitioner was found guilty of common assault and the court directed him to comply with a six-month good behaviour bond; 7. following the 2017 conduct, the practitioner completed a counselling course with Relationships Australia; 8. following the 2017 conduct, the practitioner completed professional counselling at the Council; 9. the 2019 conduct occurred notwithstanding that the practitioner had completed both a counselling course and professional counselling; 10. if the practitioner were to again lose control of his behaviour when responding to provocation, patients in his care would be at risk of harm; 11. it is difficult for the Tribunal to confidently predict how the practitioner would respond to provocation in future; 12. cancellation is required to protect the public due to the serious nature of the incident and the practitioner's departure from acceptable standards; 13. protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession; 14. while it is commendable that the practitioner has apologised for his conduct, it is a matter for the Tribunal to assess whether he has demonstrated genuine insight and true reformation of character; 15. even if the Tribunal is satisfied that the practitioner's remorse is genuine, the gravity of his conduct points to cancellation of his registration; 16. even if the Tribunal is satisfied that there is less need for specific deterrence, there nonetheless remains a need for general deterrence, and the need to indicate to the public the seriousness with which this type of conduct is viewed by the Tribunal; 17. any order short of cancellation would be an inadequate response to the objective seriousness of the conduct, because of the necessity to emphasise to other practitioners that such serious conduct is unacceptable and will not be tolerated and to maintain public confidence in the nursing profession. 1. The Commission submits that the Tribunal should order that the practitioner not be permitted to apply for re-registration for a period of 12 months. The practitioner's submissions 1. The practitioner submits that what occurred on 11 November 2019 was a "momentary lapse", and that the "humane way" for the imposition of a protective order would be suspension of his registration for a period of six months. 2. In his statement of 12 October 2022, in summary the practitioner relevantly states that: 1. he accepts responsibility for his actions and the resultant outcome of those actions; 2. reflecting now on his health and well-being around the time of the incident; he now believes that he may have been in need of a break and some leave; 3. in future he will be mindful of how his own health and wellbeing may impact upon his care of his patients; 4. he has now attended 6 to 8 sessions of psychological counselling to "unpack what caused me to behave in the way [he] did on the day of the incident" which he says was out of character with how he has conducted myself over the course of his life and career. He wants to ensure that nothing like this ever happens again; 5. he been showing signs of burnout such as intolerance of others, irritability, overeating, poor sleep patterns and low job satisfaction. Being an experienced clinician, he says that he should have been aware of this and should have sought help or taken action long before this event; 6. he will never repeat the mistake of delaying seeking help and engaging in self-care; 7. he accepts that as a result of his actions Patient A suffered injury and a possible setback to her treatment for her serious illness; 8. he deeply regrets any harm that my actions have caused to Patient A and her family. He wishes to apologise to Patient A for his actions; 9. he concedes that it was duty to be Patient A's carer and that he failed in this instance. 1. In addition to these matters, the practitioner indicated in his oral evidence that he has now "certain strategies" in place to prevent a recurrence of his conduct. Those strategies are yoga and meditation. 2. Furthermore, in 2020 the practitioner completed of a Master of Mental Health Nursing, and in 2022 a two-day course titled "Predict, Assess & Respond To Aggressive/Challenging Behaviour". 3. We note the references filed by the practitioner. Consideration 1. As the Tribunal stated in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106: 92. The public interest is served by protective orders which maintain the standing of the profession and the maintenance of public confidence in the high standards of practitioners: Prakash at [91]. 93. Protective orders also involve an element of encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]. 94. Nevertheless, 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]. 95. As noted in Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69], there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include: * the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction; * the unacceptability of certain kinds of conduct; and * the maintenance of confidence in the high standards of the profession. 96. Whether the seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 1. Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling the practitioner's registration. Objectively, his professional misconduct is of such a serious nature that the only appropriate disciplinary order is the cancellation of his registration. Any order short of deregistration would be an inadequate response to the seriousness of his misconduct. 2. We have come to that conclusion given the objective seriousness of the conduct, because of the necessity to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated, and to maintain public confidence in the profession. 3. At the time of the incident Patient A was a 15-year-old young woman suffering from anorexia nervosa. She had been admitted into Ward Hall as a voluntary patient under the provisions of the Mental Health Act 2007 (NSW) following increasing aggression on a day program. This occurred on a background of worsening eating disorder cognitions including compulsive exercise, hiding food and purging. 4. As the Commission's expert Ms Martin stated in her report: Mealtimes can be highly anxiety-provoking and distressing for patients with eating disorders. It is therefore important that nurses provide encouragement and understanding. 1. The fundamental issue for the Tribunal is that any patient attends hospital for treatment and care. That includes treatment and care from nurses who are obliged under the Nursing and Midwifery Board of Australia Code of Conduct to: * 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 (cl 1.2); * provide safe, person-centred and evidence-based practice for the health and wellbeing of people (cl 2); * provide leadership to ensure the delivery of safe and quality care and understand their professional responsibility to protect people (cl 2.1); and * embody integrity, honesty, respect and compassion (cl 4). 1. By his actions on 11 November 2019, the practitioner fundamentally failed to fulfill these obligations. Far from being treated ethically, safely, respectfully and compassionately, Patient A was flung across a corridor with considerable force by a nurse, in a place where she was supposed to be treated, protected and cared for. 2. And, to paraphrase the opinions of the Commissions' expert Ms Martin, the practitioner: * should have known that mealtimes were likely to lead to anxiety and distress and should have provided understanding and encouragement to Patient A; * broke the therapeutic relationship between nurse and patient by using nasogastric feeding as a punitive measure; * did not display clinical leadership; and * did not display genuine care or concern and breached professional boundaries. 1. For these reasons we consider that it is appropriate to cancel the practitioner's registration. 2. Balancing all the matters put to us by both parties, we consider that it is appropriate to order that the practitioner may not apply for review of the cancellation order for a period of six months. 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. If either party wishes seeks some other order, they should provide submissions to the Tribunal and the other party within two weeks, and that party should reply within a further two weeks. 4. If it becomes necessary for the Tribunal to determine this issue, and here we hope the good sense of the parties will prevail and consensual resolution will be reached, 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 is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Health Practitioner Regulation Law (NSW), is proved. 2. Complaint Two, that the practitioner is guilty of professional misconduct under s 139E of the National Health Practitioner Regulation Law (NSW), in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration, is proved. 3. The respondent's registration as a nurse is cancelled. 4. The respondent may not apply for review of the cancellation order for a period of six months. 5. If either party opposes an order that the practitioner pays the Commission's costs as agreed or as assessed, they are to provide submissions to the Tribunal and the other party within 7 days from the date of publication. 6. The other party may reply within 14 days from the date of publication. ********** 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 09 December 2022 - Typographical error amended 19 December 2022 - typographical errors amended 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: 19 December 2022