Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Whittle [2022] NSWCATOD 163 Hearing dates: 24 November 2022 Date of orders: 9 December 2022 Decision date: 09 December 2022 Jurisdiction: Occupational Division Before: H J Dixon, Senior Member Dr L Hunt, Senior Member S Daly, Senior Member Dr C Berglund, General Member Decision: (i) The Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the Health Practitioner Regulation National Law 2009 (NSW) in that the Respondent has engaged in improper and unethical conduct relating to the practice or purported practice of nursing. (ii) The Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the Health Practitioner Regulation National Law 2009 (NSW) in that the Respondent has contravened section 164G(2)(a) of the Health Practitioner Regulation National Law 2009 (NSW). (iii) The Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(e) of the Health Practitioner Regulation National Law 2009 (NSW) in that the Respondent has contravened section 34A of the Health Care Complaints Act ('the HCC Act'). (iv) The Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the Health Practitioner Regulation National Law 2009 (NSW) in that the Respondent has contravened conditions to which the practitioner's registration was subject. (v) The Respondent is guilty of professional misconduct under section 139E of the Health Practitioner Regulation National Law 2009 (NSW) in that the Respondent has: (i) Engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. Catchwords: Professions and trades – health care professional – nursing – whether practitioner guilty of unsatisfactory professional conduct and professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013; Health Care Complaints Act 1993; Health Practitioner Regulation National Law (NSW); Cases Cited: Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 95 NSWLR 334 HCCC v Fisher [2016] NSWCATOD 62 HCCC v Phung (No 1) [2012] 1 NSWDT Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v Litchfield (1997) NSWLR 630' [1997] NSWSC 297 Health Care Complaints Commission v Morsingh [2021] NSWCATOD 1315 Health Care Complaints Commission v Segal [2022] NSWCATOD 71 Neat Holdings Pty Ltd v Karajin Holdings Pty Ltd (1992) 110 CLR 445 Sullivan v Civil Aviation Authority (2014) 226 FCR 555 Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCATAP 66 Texts Cited: NSW Health Code of Conduct Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Richard Whittle (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (No appearance) Counsel: S McCarthy (Applicant) File Number(s): 2022/00138644 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 persons identified in Schedules A and B attached to the Complaint of the Director of Proceedings Health Care Complaints Commission dated 13 May 2022 Reasons for decision Introduction 1. This proceeding concerns a complaint brought by the Director of Proceedings of the Health Care Complaints Commission (the Commission) against Mr Richard Leo Whittle (the Respondent). By an application for Disciplinary Findings and Orders filed 13 May 2022, the Commission seeks orders that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. 2. At the instance of the Commission the matter was conducted as a Stage 1 proceeding on 24 November 2022. 3. The Respondent is a registered nurse. On 7 December 2020, his registration was suspended by the Nursing & Midwifery Council of New South Wales (the Council). 4. The matter proceeds before the Tribunal on Thursday 24 November 2022 by way of an undefended hearing. The Respondent has been served with all relevant documents. The Commission relies on the affidavit of Monique Sylvia Azzopardi dated 18 November 2022 (the "Azzopardi Affidavit") in respect of the Commission's unsuccessful attempts to elicit a response from the Respondent in respect of these proceedings. 5. At the commencement of the hearing on 24 November 2022 the Tribunal made an order pursuant to s 64 of the Civil and Administrative Tribunal Act being satisfied that it was desirable to do so to protect the names of the persons giving evidence and to encourage the disclosure of conduct which require investigation. Background 1. The Respondent is a 65-year-old Registered Nurse. He first registered as a registered nurse in 1978 on the basis of a general nursing qualification obtained at Concord Hospital. He obtained another general nursing qualification at the Repatriation General Hospital in 1998. 2. The Respondent came to the attention of the Council in November 2018, when conditions imposed on his registration were transferred from AHPRA Tasmania due to a change of his principal place of practice to NSW. 3. The Respondent was most recently employed at the Taree Mental Health Unit in New South Wales. 4. On 29 July 2020, the Council received a complaint from the Respondent's employer, Hunter New England Local Health District (HNELHD). HNELHD claimed that the Respondent had: 1. allegedly sexually harassed and objectified female staff and patients, and bullied and intimidated staff; 2. been suspended pending a formal investigation into the allegations of misconduct; 3. was on leave due to a stress-related illness. 1. On 5 August 2020, the Section 150 Review committee of the Council referred the matter to s 150 proceedings due to the serious nature of the allegations against the Respondent. Section 150 is a reference to s 150 of the Health Practitioner Regulation National Law (NSW) ('the National Law') which provides as follows: 150 Suspension or conditions of registration to protect public [NSW] 1. A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- 1. by order suspend a registered health practitioner's or student's registration; or 2. by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or 3. by order impose on a student's registration the conditions the Council considers appropriate. 1. A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens- 1. the complaint about the practitioner or student is disposed of; 2. the suspension is ended by the Council. 1. If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must- 1. suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and 2. refer the matter to the Tribunal as a complaint. 1. A Council for a health profession may take action under this section- 1. whether or not a complaint has been made or referred to the Council about the practitioner or student; and 2. whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. 1. Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. 2. A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. 3. If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who- 1. is not a registered health practitioner or student in the health profession for which the Council is established; and 2. has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 1. An urgent hearing before the delegates of the Council was held on 13 August 2020. The proceedings were held on the papers. 2. The outcome of those proceedings was that the Respondent's registration was suspended pursuant to s 150(1)(a) of the National Law with effect from 13 August 2021. 3. The Respondent's employment was later terminated by his employer HNELHD on 22 September 2021 with immediate effect. 4. On the grounds set out below the Commission submits that the Respondent's conduct over an extended period amounted to both unsatisfactory professional conduct and professional misconduct. The Complaint (as amended) 1. The Complaint by the Commission is particularised as follows. Complaint One The practitioner is guilty of unsatisfactory professional conduct under s 1398(1)(I) of the National Law in that the practitioner has: engaged in improper and/or unethical conduct relating to the practice or purported practice of nursing. Background to Complaint One The practitioner was first registered as a Registered Nurse (RN) in 1978 after obtaining a General Nursing qualification at Concord Hospital. Since 2005, the practitioner has worked in eleven (11) different Local Health Districts and/or hospitals in New South Wales, the Australian Capital Territory and Tasmania. In 2017, a complaint about the practitioner was made to the Australian Health Practitioner Regulation Agency ('AHPRA'). On 18 October 2018, in addition to a caution, the Tasmanian Board of the Nursing and Midwifery Board of Australia imposed nineteen (19) conditions on the practitioner's practice. These conditions are set out at Schedule C to the Complaint. The practitioner started employment with the Hunter New England Local Health District ('HNELHD') in August 2017. From February 2019 to July 2020 the practitioner was employed at Manning Base Hospital ('the hospital'). During this time, the practitioner primarily worked in the Manning Mental Health Unit ('the MMHU'). On 29 July 2020 the HNELHD complained to AHPRA. The complaint was referred to the Commission for investigation. Particulars of Complaint One Part A: Actions concerning female colleagues 1. On one or more occasion between 1 and 31 May 2020 during afternoon shifts at the MMHU, the practitioner made inappropriate comments to Colleague A, a 31-year-old female, new graduate nurse, including words to the following effect: 1. "Obviously you can carry children, you've got five - what if I gave you $10,000 and you could surrogate for me?;" 2. "What if we just went on a romantic getaway?;" 3. "We could just go on a date;" 4. "Well after the date I could just take you back and sedate ya;" 5. And that the practitioner, "needed to be around her." 2. On 22 June 2020 between 1900 and 1959 hours at the MMHU nurses' station, Colleague A was sitting down on a chair. The practitioner was using a metal detector to admit a new patient to the unit. After finishing scanning the new patient, the practitioner acted inappropriately toward Colleague A when he walked over to where Colleague A was seated and: (a) waved/scanned a metal detector over the top of her stomach and laughed; and (b) said words to the effect of, "I was just looking for your birth control for later." 3. Later that evening on 22 June 2020 at the MMHU, Colleague A was in the medication room, facing towards a computer. The door to the medication room was behind her. The practitioner acted inappropriately toward Colleague A when he leaned through the door to the medication room and: (a) on more than one occasion, made small, light pinching touches on her bottom; (b) said words to the effect of, "What? There's fluff there!" and (c) laughed when another colleague, Colleague F, said to him words to the effect of "What are you doing? That's inappropriate." 4. On 23 June 2020 between approximately 1500 and 1607 hours, at the afternoon handover in the interview room opposite the nurses' station at the MMHU, the practitioner acted inappropriately when he: (a) roughly grabbed Colleague A's bottom with one hand; (b) pushed his finger into Colleague A's "bottom crack"; and (c) laughed when Colleague A said words to the effect of, "Are you right?" in response to the conduct alleged at sub-particulars 4a and 4b. 5. On three separate occasions between 1 May 2020 and 30 June 2020 at the MMHU, the practitioner spoke inappropriately when he made comments to Colleague B about Colleague C, saying words to the effect of: (a) "/ wouldn't mind having a piece of that, wouldn't you?" at the nurses' station, after Colleague C walked away; (b) "I like her outfit because it hugs her figure" after Colleague C walked into the nurses' station; (c) "What I would like to do with her". Part B: Other comments and actions toward colleagues 6. On one or more occasions between February 2019 and June 2020 at the MMHU, the practitioner acted inappropriately toward Colleague D, a 30 year old female nurse from Nepal, when he: (a) made disparaging comments about Colleague D's professional abilities because she was from a culturally and linguistically diverse background; (b) made comments to Colleague D or to other staff about her, saying words to the effect that Colleague D: (i) "Was from a poor country"; and / or (ii) Had tuberculosis; (c) ignored or dismissed Colleague D's authority when she was nurse in charge; (i) Including saying words to the effect of, "You don't need to know­ I've been working here for 20 years. I know how it works. You don't need to know," when she asked the practitioner what was happening [on shift]; (d) intimidated Colleague D by: (i) speaking to her loudly; (ii) asking her irrelevant questions during handover. 7. On 21 June 2020 at approximately 1415 hours, at the MMHU, the practitioner spoke inappropriately about Colleague D to one or more staff members, in that he used words to the effect that Colleague D: (a) was a "dangerous and unqualified nurse;" (b) "Doesn't know anything;" (c) was a "foreigner who shouldn't be in charge because of her lack of English skills." 8. Between 13 April and 3 May 2020, at the MMHU nurses' station during a colleague's birthday celebration which took place after the afternoon handover between 1530 hours and 1630 hours, the practitioner spoke inappropriately to Colleague D, saying words to the effect that: (a) she could work at the hospital for two days and spend the other three days performing cleaning jobs for him at his house as a maid; (b) he would allow her and her daughter to live in his dog's kennel. 9. Between 30 and 31 May 2020 at the MMHU, the practitioner acted disrespectfully toward staff and patients in that: (a) on 30 May 2020 at afternoon handover, the practitioner interrupted Colleague B's handover four (4) times to gossip about another staff member; (b) on 30 May 2020 after the events alleged at particular 9a, the practitioner loudly exclaimed, "What the fuck is this mess? I can't believe you've let him do this shit!" in relation to a mess that a patient made in the observation area, while the patient was under Colleague B's care; (c) after the events alleged at particular 9b, the practitioner spoke about these events to other staff in the presence of Colleague B. 10. On one or more occasion between February 2019 and June 2020 at the MMHU, the practitioner acted inappropriately toward his nursing colleagues when he: (a) took lengthy tea breaks, at times up to an hour long, without advising or checking with the nurse in charge; (b) demanded the first break, often disregarding the nurse in charge's schedule. PART C: Views expressed about patients 11. Between 1 and 31 May 2020 at the MMHU the practitioner spoke inappropriately about Patient A in that he said words to the effect that: (a) he found inpatient Patient A attractive and cute; (b) he needed to "set that [sub-particular 9.a.] aside and treat her [Patient A] aggressively with medication." 12. Between 1 and 31 May 2020 at the MMHU, approximately one week after the conduct alleged at Particular Eleven (11), the practitioner spoke inappropriately about Patient B in that, after Patient B walked around the ward in tights, he said to Colleague B words to the effect that: (a) The practitioner "liked what he saw". PART D: Interactions with patients 13. Withdrawn. 14. Withdrawn. 15. Between February 2019 and 30 June 2020 at the MMHU, the practitioner acted inappropriately toward patients in that: (a) the practitioner had confrontations with some inpatients; (b) confrontations between the practitioner and inpatients required de­ escalation; (c) withdrawn; (d) the practitioner's verbal interactions with Patient D left her crying or very upset; (e) the practitioner screamed at patients words to the effect of, "Shut up - don't come out of your rooms!"; (f) the practitioner spoke rudely to Patient C when administering her medication. PART E: Creation of false and misleading document 16. On 23 June 2020 at about 1858 hours, the practitioner sent an email to the Nursing and Midwifery Council containing the words "Copy of signed doc as requested." The email attached a PDF document called 'Will 11.pdf'. Within the single PDF document was a Supervised Practice form, with the section Practitioner Acknowledgment (HP10) signed by Mr Whittle on 19 June 2020 and a Nomination of Supervisor (HPN10) form ('the form') that purportedly contained the signature of Colleague E dated 23 June 2020. The content of the document attached to the email was false and/or misleading in that: (a) Colleague E's name is spelt incorrectly; (b) The signature on the form is not Colleague E's signature; (c) Colleague E did not sign the form; (d) Colleague E did not complete the form; (e) Colleague E did not sign any documentation provided to the Council; (f) Colleague E did not provide his signature on any documentation provided to the Council. 17. The conduct in any of particulars of Complaint One are repeated and relied upon individually and cumulatively as a course of conduct involving improper and/or unethical conduct amounting to unsatisfactory professional conduct. Complaint Two The practitioner is guilty of unsatisfactory professional conduct under section 1398(1)(b) of the National Law in that the practitioner has contravened section 164G(2)(a) of the National Law. Background to Complaint Two The background to Complaint One is repeated and relied upon. On 6 August 2020, the Nursing and Midwifery Council sent the practitioner a letter in relation to the complaint against him ('the letter from the Council'), and advised of Section 150 proceedings occurring on 13 August 2020. The letter from the Council enclosed the following documents: (a) Original complaint (b) Guidelines for Curriculum Vitae (c) Information Declaration Form (d) Fact Sheet -About the Council (e) Fact Sheet - What Happens if a Complaint is Made About You? (f) Fact Sheet - Confidentiality and privacy In accordance with section s164G of the National Law, the letter from the Council advised that the practitioner must respond by 0900 hours on 13 August 2020. The letter from the Council directed the practitioner to provide the following documents in response: (a) Information Declaration Form, (b) Reflections on the issues raised, (c) Current curriculum vitae, in accordance with the guidelines enclosed, and (d) Evidence of Continuing Professional Development. Particulars of Complaint Two 1. Between 6 and 13 August 2020, the practitioner failed to comply and/or failed to provide a reasonable excuse to comply with directions in the letter from the Council that was sent to him on 6 August 2020. Complaint Three The practitioner is guilty of unsatisfactory professional conduct under section 1398(1)(e) of the National Law in that the practitioner has contravened section 34A of the Health Care Complaints Act ('the HCC Act'). Background to Complaint Three The background to Complaint One is repeated and relied upon. On 8 April 2021 the HCCC issued a Notice to Give Information pursuant to s 34A(1) of the HCC Act ('the Notice'). The Notice required the practitioner to respond by 1700 hours on 21 April 2021 and requested that he provide a response to the allegations as particularised in Complaint One. Particulars of Complaint Three 1. Between 8 and 21 April 2021, the practitioner failed to comply and/or failed to provide a reasonable excuse to comply with the Notice that was sent to his email address on 8 April 2021. Complaint Four The practitioner is guilty of unsatisfactory professional conduct under section 1398(1)(c) and/or (I) of the National Law in that the practitioner has: 1. contravened a condition to which the practitioner's registration was subject, and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Background to Complaint Four The background to Complaint One is repeated and relied upon. On 16 November 2018 by email, AHPRA: 1. provided to the practitioner notice of the imposition of the conditions; 2. informed the practitioner that the conditions on his registration were effective immediately; 3. informed the practitioner that, 'if you are at work, you need to leave and not return until a supervisor has been approved;' 4. informed the practitioner that, 'If you are rostered to work over the weekend, you will need to inform your employer that you cannot work these shifts;' 5. provided the practitioner with a copy of the conditions on his registration. AHPRA referred the practitioner to the Council on 16 November 2018. On 23 November 2018, by email and express post, the Council provided the practitioner with a letter and checklist for compliance with practice conditions. The correspondence enclosed and/or attached the following documents: a) Common Restrictions Practitioner declaration (HPC), b) Undertake formal education Nomination of formal educator (HPN24), c) Limitations on Practice Practitioner acknowledgment (HP7), d) Limitations on Practice Senior person acknowledgment (HPS7), e) The Board's Supervision guidelines for nursing and midwifery (July 2015), f) Supervised Practice Practitioner acknowledgment (HP10), g) Supervised Practice Nomination of supervisor (HPN10), h) Supervised Practice Supervisor acknowledgment (HPNA10), i) Attend for Mentoring Practitioner acknowledgment (HP16), j) Attend for Mentoring Practitioner acknowledgment (HPN16). On 28 November 2018 the practitioner returned signed copies of the following documents to the Council acknowledging that he was aware of the conditions on his registration. The documents were dated 27 November 2018: a) Common Restrictions Practitioner declaration (HPC), b) Limitations on Practice Practitioner Acknowledgment (HP7), c) Supervised Practice Practitioner Acknowledgment (HP10), d) Attend for Mentoring Practitioner Acknowledgment (HP16). On 28 November 2018, the practitioner was on leave from employment at the HNELHD. He was unable to continue working at his present hospital as they were unable to provide him with supervision in order to comply with Condition 8. The practitioner remained on leave until alternative employment was located for him at the MMHU. On 13 August 2020, the Council convened proceedings under s150 of the National Law. The practitioner's registration was suspended on 8 September 2020. Particulars of Complaint Four 1. Between 16 November 2018 and 7 December 2018, the practitioner recklessly and/or knowingly contravened Condition 4 of his registration as set out in Schedule C to this Complaint in that he failed to undertake and successfully complete an approved program of education. 2. Between 16 November 2018 and 7 December 2018, the practitioner recklessly and/or knowingly contravened Condition 5 of his registration as set out in Schedule C to this Complaint in that he failed to nominate an education course, assessment or program within 21 days of the date the conditions were imposed on his registration. 3. Between 16 November 2018 and 17 May 2019, the practitioner recklessly and/or knowingly contravened Condition 6 of his registration as set out in Schedule C to this Complaint in that he failed to complete approved education within six (6) months of the notice of the approval of the education. 4. Between 16 November 2018 and 8 September 2020, the practitioner recklessly and/or knowingly contravened Condition 7 of his registration as set out in Schedule C to this Complaint in that he failed to provide: a) evidence of successful completion of approved education; and b) a report demonstrating that the practitioner has satisfactorily reflected on the issues that gave rise to the condition requiring education, and how the practitioner incorporated the lessons learned in the education into his practice. 5. Between 11 February 2019 and 17 April 2019, the practitioner recklessly and/or knowingly contravened Condition 8 of his registration as set out in Schedule C to this Complaint in that he worked as a registered nurse at the MMHU for approximately 384 hours across 46 shifts without supervision. 6. Between 18 April 2019 and 26 July 2019, the practitioner recklessly and/or knowingly contravened Condition 8 of his registration as set out in Schedule C to this Complaint in that he worked as a registered nurse at the MMHU for approximately 350 hours across 58 shifts without supervision. 7. Between 27 July 2019 and 26 June 2020, the practitioner recklessly and/or knowingly contravened Condition 8 of his registration as set out in Schedule C to this Complaint in that he worked as a registered nurse at the MMHU on approximately 1386 hours across 171 shifts without supervision. 8. Between 8 November 2018 and 17 April 2019, the practitioner recklessly and/or knowingly contravened Condition 9 of his registration as set out in Schedule C to this Complaint in that the practitioner did not, within 21 days of the notice of the imposition of the condition: a) nominate on the approved form (HPN10) a primary supervisor and at least one alternate supervisor; and b) ensure any nomination was accompanied by an acknowledgment on the approved form (HPNA10), from each nominated supervisor that they were willing to undertake the role of the supervisor and are aware that AHPRA will seek reports from them. 9. Between 11 February 2019 and 17 April 2019, the practitioner recklessly and/or knowingly contravened Condition 10 of his registration as set out in Schedule C to this Complaint in that he worked as a registered nurse at the MMHU for approximately 384 hours across 46 shifts without a Council-approved supervisor. 10. Between 27 July 2019 and 26 June 2020, the practitioner recklessly and/or knowingly contravened Condition 10 of his registration as set out in Schedule C to this Complaint in that he worked as a registered nurse at the MMHU on approximately 1386 hours across 171 shifts without a Council-approved supervisor. 11. Between 11 February 2019 and 26 June 2020, the practitioner recklessly and/or knowingly contravened Condition 12 of his registration as set out in Schedule C to this Complaint in that the practitioner: a) was not mentored by another registered health practitioner in relation to appropriate professional behaviour and communication; and b) worked 2240 hours without mentoring. 12. Between 11 February 2019 and 26 June 2020, the practitioner recklessly and/or knowingly contravened Condition 13 of his registration as set out in Schedule C to this Complaint in that the practitioner did not complete a minimum of fifty-two mentoring sessions of one hour duration over a one-year period. 13. Between 7 December 2018 and 26 June 2020, the practitioner recklessly and/or knowingly contravened Condition 14 of his registration as set out in Schedule C to this Complaint in that the practitioner did not, within 21 days of the notice of the imposition of the condition: a) nominate on the approved form (HPN16) a person(s) to be approved to act as mentor; and b) ensure any nomination was accompanied by an acknowledgment from each nominated mentor on the approved form (HPNA16). 14. Between 11 February 2019 and 26 June 2020, the practitioner recklessly and/or knowingly contravened Condition 16 of his registration as set out in Schedule C to this Complaint in that the practitioner did not, within 21 days of becoming aware of the termination of the mentoring relationship, provide a new mentor nomination in accordance with requirements as set out at Particular 14. 15. Between 11 February 2019 and 26 June 2020, the practitioner recklessly and/or knowingly contravened Condition 17 of his registration as set out in Schedule C to this Complaint in that the practitioner did not, within 21 days of the conclusion of the mentoring relationship, provide to the Board a report demonstrating, to the satisfaction of the Board: a) that the practitioner has reflected on the issues that gave rise to the condition requiring he attend for mentoring; and b) outlining how the practitioner has incorporated the lessons learnt in the mentoring into his practise. Complaint Five The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. Background to Complaint Five The background to Complaints One, Two, Three, and Four are repeated and relied upon. Particulars of Complaint Five 1. Complaint One justifies a finding of professional misconduct. In the alternative, when two or more of the Complaints are taken together, a finding of professional misconduct is justified. The Evidence 1. In support of the grounds the Commission relied on 10 statements made by various colleagues and supervisors of the Respondent with knowledge of the events complained of. The Commission also tendered into evidence a volume of supporting material going to the issues the subject of the complaint. 2. As the Respondent did not respond to the evidence served on him, and did not participate in the proceedings, the evidence relied upon is, in effect, unchallenged. The Substance of the Complaints 1. The Complaint raises five complaints with lengthy particulars, detailing a variety of individual events of varied degrees of objective seriousness. However, the five complaints as broadly classified by the Commission's Counsel, Ms McCarthy, fall into the following three categories: 1. Firstly, improper and unethical conduct in the practice of nursing (Complaints One and Four). This conduct can be summarised as: 1. sexual harassment of colleagues and patients; 2. bullying and harassment of colleagues; 3. harassment of patients; 4. inappropriate treatment of patients; 5. creation of a false and misleading document (that pertained to a condition of registration); and 6. failing to comply with directions. 1. Secondly, failure to comply with or provide an adequate reason for not complying with notices and / or directions from the National Board, the Commission, and / or the Australian Health Practitioner Regulation Agency ("AHPRA") in respect of the practice of nursing (Complaints Two, Three, and Four). This conduct includes: failing to participate adequately or at all in the s.150 hearing; failing to provide documents when compelled to; and contravening conditions of registration. 1. Thirdly, professional misconduct arising out of Complaint One and/or two or more of Complaints One to Four (Complaint Five). 1. The Commission also submitted that if the Tribunal is satisfied that there is sufficient evidence to establish Complaint One Part A, Part B, Part C, and Part E, then Complaint Five is also made out and that if the Tribunal is also satisfied that one and/or, any or all of Complaints Two, Three and Four are also made out, in addition to Complaint One, then Complaint Five is again made out. Legal Principles 1. The Commission's Counsel set out in the written submission filed on behalf of the Commission the following legal principles. 2. Although the ordinary principles in respect of sexual harassment and bullying are not "at play" in this jurisdiction, when considering the legal principles that apply to the Respondent's case, the Commission submits that it is important to remember the observations of her Honour Justice Lucy McCallum in Vitality Works Australia Pty Ltd v Yelda (No 2) (at [125]): '…[that conduct] could not amount to sexual harassment because its sexualised message was not "explicit". The sexualisation of women in the workplace often isn't. Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome. The power of implication is well understood in the field of defamation: cf Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [8]-[12]. In the nature of things, sexual implication is perhaps the most powerful of all. The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries.' 1. Similarly, it was submitted, although there is no uniform definition of what constitutes bullying in Australia, it is relevant to note that it has been observed by the Fair Work Commission of Australia to include, '…intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up on, isolation, freezing out, ostracism, innuendo, rumour-mongering, mobbing, mocking, victim-blaming and discrimination…' (Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 at [99]) 1. The Commission submits that this is the context that ought to be considered when assessing whether or not certain aspects of the Respondent's behaviour was contrary to his professional obligations under the National Law. 2. The Commission submits that the 'Code of conduct for nurses' proscribes that nurses are to act with professional integrity (Principle 4), specifically (at 4.1.d) a nurse is to: …avoid sexual relationships with persons with whom they have currently or had previously entered into a professional relationship. These relationships are inappropriate in most circumstances and could be considered unprofessional conduct or professional misconduct. 1. The Nursing and Midwifery Board's 'Registered Nurse Standards for Practice' state at Standard 2: 'The RN… [2.1] establishes, sustains and concludes relationships in a way that differentiates the boundaries between professional and personal relationships.' 1. The issue of sexual touching of patients was considered in the context of a general practitioner in the Health Care Complaints Commission v Segal [2022] NSWCATOD 71. In that case, the Tribunal observed (at [164]): '…hugging and touching by a GP, outside of the ambit of what is necessary by way of physical examination, is almost always inappropriate and ill-advised.' 1. The NSW Health Code of Conduct (the "Health Code") states 'respect' as one of its core values. This includes that NSW Health employees: …treat our colleagues and patients with dignity and respect, and care about those around us. 1. The Health Code also states: We have zero tolerance for bullying and no-one, no matter how senior, is exempt. 1. Counsel then submitted that the Tribunal in these proceedings is not required to satisfy the tests in respect of sexual harassment. However, the test, and indeed the legal and cultural context of conduct of a sexual nature today, is (relying on Chen v Health Care Complaints Commission [2017] NSWCA 186; 95 NSWLR 334 per Basten JA at [20]) squarely relevant to the 'evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct'. 2. In respect of the applicable legal principles generally it was submitted that the Tribunal has general jurisdiction to hear and determine disciplinary matters for registered health practitioners pursuant to the National Law, the Health Care Complaints Act and the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). As set out in s 3A of the National Law the protection of the health and safety of the public is the paramount consideration. 3. The civil standard of proof, namely, the balance of probabilities, applies to matters before the Tribunal. The strength of the evidence necessary to establish a matter on the balance of probabilities may vary according to the nature or gravity of the fact to be proved (Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-31; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445). 4. It was submitted that taking into consideration the seriousness of the allegations against the Respondent, the Tribunal ought to inform itself by reference to evidence or other materials which properly support the findings being made in the knowledge of the seriousness of those findings, and their potential for significant impact upon a party (Health Care Complaints Commission v Segal [2022] NSWCATOD 71 at [5] citing, Sullivan v Civil Aviation Authority (2014) 226 FCR 555; [2014] FCAFC 93 and Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53). 5. In the present case, the Commission carries the onus of proof. Unsatisfactory Professional Conduct 1. Complaints 1 to 4 are allegations of unsatisfactory professional conduct. 2. Unsatisfactory professional conduct of registered health practitioners generally is defined by s.139B(1) of the National Law. Relevantly, in respect of the Complaints 1 to 4, it states, (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of— (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. … (e) Contravention of requirement under Health Care Complaints Act 1993 A contravention by the practitioner of section 21A(3), 34A(4) or 63G(4) of the Health Care Complaints Act 1993. … (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. It is relevant to observe that in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160, this Tribunal observed: [86] The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as "not in accordance with propriety of behaviour, manners etc." or "abnormal or irregular" and "unethical" as 1. "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." [87] Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper. [88] In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]-[49]: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited. [89] It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at [81]. (Emphasis added in the submission). 1. What constitutes professional misconduct is prescribed by s 139E of the National Law, which states: For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The overarching purpose of s.139E was described by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307. His Honour observing: [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. (Emphasis added). 1. The Commission also drew attention to the analysis by his Honour Justice Basten in Chen: [20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. … 1. In respect of conduct of a sexual nature and the National Law the Tribunal observed in Health Care Complaints Commission v Morsingh [2021] NSWCATOD 1315 that: [146] All patients, including young women, are entitled to expect, when they attend a medical appointment, that they will not be touched for purposes unconnected with medical diagnosis or treatment, particularly sexually. Patients ought to be safe and feel safe in a medical practitioner's rooms during a consultation. There is a strong public interest in upholding these basic expectations, which underpin the Code of Conduct and the Guidelines on sexual boundaries. 1. The Applicant submits that the Respondent's conduct which is the subject of these proceedings is no exception. 2. In relation to the specific complaints in these proceedings, the following additional statutory provisions are relevant: 3. Complaint Two: s 164G(2)(a) of the National Law which states: 164G Council may require further information from practitioner or student [NSW] (1) A Council for a health profession may, by written notice given to a registered health practitioner or student registered in the profession, require the practitioner or student to give to the Council, within a reasonable period specified in the notice, further information about any complaint or other matter concerning the practitioner or student. (2) A registered health practitioner or student must not— (a) without reasonable excuse, fail to comply with a requirement under this section; 1. Complaint Three: s 34A(1) of the HCC Act which states: 34A Power of Commission to obtain information, records and evidence (1) If the Commission is investigating a complaint and is of the opinion that a person is capable of giving information, producing documents (including medical records) or giving evidence that would assist in the investigation, the Commission may, by notice in writing given to the person, require the person to do any one or more of the following— (a) to give the Commission, by writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation) and within such time as is reasonable, and in the manner, specified in the notice, any such information of which the person has knowledge, (b) to produce to the Commission, in accordance with the notice, any such documents, (c) to appear before the Commissioner or a member of staff of the Commission authorised by the Commissioner at a time and place specified in the notice that is reasonable and give any such evidence, either orally or in writing, and produce any such documents. 1. In respect of complaints against a registered health care practitioner the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of the National Law if, pursuant to s.149: 1. it finds the subject-matter of a complaint against the practitioner have been proved; or 2. the practitioner admits to it in writing to the Tribunal. 1. The powers conferred on the Tribunal in terms of sanction are set out at ss.146B to 146E of the National Law. The Commission explained that those issues will be addressed during stage two. Breach of Conditions 1. We deal first with the alleged breaches in respect of Complaint 4. The complaints arise from conditions that were imposed on the Respondent following the transfer of conditions imposed on his registration by AHPRA Tasmania in November 2018. At the time the Respondent was put on notice that he was required to review the conditions imposed on his registration, let the required people know about his conditions, to find a registered practitioner to act as his supervisor/mentor and to complete the necessary forms in that regard, and to provide course details for approval and to notify his change of address. 2. The Nursing and Midwifery Council at the time also notified the Respondent about the National Board Guidelines which included principles of supervision. The Guidelines recorded that each supervisee (person being supervised) has a professional responsibility to work within the limits of their competence and that supervised practise had to take place in a setting that meets the criteria outlined in the Guidelines. 3. A letter of 23 November 2018 from the Nursing and Midwifery Council of NSW provided the Respondent with a checklist for compliance with his practise conditions. On 28 November 2018 the Respondent returned signed copies of the required documents. The Commission contends that the signing of these documents amounted to an acknowledgement on the part of the Respondent that he was aware of the conditions on his registration. We accept that submission and find that the Respondent was at all relevant times aware of the conditions applicable to his practise. 4. The issue of non-compliance with the conditions imposed on his registration was addressed by the delegates of the Council in the s 150 proceedings conducted on 13 August 2020 and their written reasons of 8 September 2022. There was concern about non-compliance with conditions 4, 5, 8, 9, 10, 12, 13 and 14. 5. The relevant conditions said to have been breached for the purposes of these proceedings can be grouped within 3 categories, namely, non-compliance with further education requirements (Conditions 4 to 7); practising without an approved supervisor (Conditions 8 to 10); and practising without an approved mentor (Conditions 12, 13, 14, 16 and 17). Education Conditions 1. We are satisfied and find that the Respondent was in breach of the education conditions (Conditions 4 to 7) as set out in the Complaint as particularised above. The Respondent did not provide evidence to claim otherwise. Supervision Conditions 1. On 11 February 2019 the Respondent commenced working at the Manning Hospital. Various conditions were applicable to his employment at that hospital. 2. The Commission contends that during the period 11 February 2019 and into 2020 the Respondent was in breach of Condition 8 of his conditions (which required that he had to be supervised by another registered health practitioner when practising as a registered nurse) in that he worked as a registered nurse at the Mental Health Unit of that hospital for a considerable period of time without supervision. The Commission contends that he was also in breach of Condition 10 in that he worked as a registered nurse at the Mental Health Unit for a separate period (a considerable number of hours) without Council approved supervision. 3. Next, the Commission claims that during the period 18 April 2019 to 26 July 2019 the Respondent breached Condition 8 of his conditions. The Commission points to evidence that the Respondent worked as a registered nurse at the Mental Health Unit for approximately 350 hours across 58 shifts without supervision during the relevant period. The evidence in respect of this alleged breach, which we accept, is that the Respondent nominated the colleague as a supervisor on 23 October 2019. The colleague accepted the nomination on 27 October 2019. On 5 November 2019 the Respondent was reminded that it was necessary to have the CV and CPD of the nominated colleague provided for consideration by the Council. 4. On 6 January 2020 and again on 10 March 2020 the Respondent was put on notice of non-compliance with Conditions 4 to 7, 8 to 11 and 12 to 17 and that he was practising without an approved supervisor. 5. On 13 April 2020 the Respondent provided the Council with certain information (a CV and other supporting documents) in respect of his nominated supervisor. 6. Sometime later the Respondent in the course of a discussion with a representative of the Council concerning the conditions on his registration and his non-compliance with those conditions indicated that he would meet with his nominated supervisor to request her continuing professional development (CPD) log and that that would be provided to the Council by no later than 15 May 2020. The Respondent eventually provided this log on 1 June 2020. 7. On 17 June 2020 the Council informed the Respondent that the Council had reviewed his nominated supervisor's CV and CPD to determine her suitability to act as his work supervisor but concluded that, based on the information he had produced, the supervisor was not found suitable to act as his work supervisor and that, therefore, she was not approved to act as his supervisor. 8. The Respondent was also requested to nominate another registered nurse in any of the positions mentioned in the correspondence by close of business 24 June 2020 and to provide the relevant CV and CPD log for the Council to review. 9. We are satisfied and find that at least during part of the period 27 July 2019 to 26 June 2020 the Respondent was knowingly practising without supervision as required by Condition 8. We recognise that because of the regional nature of the employment there was some difficulty for the Respondent to obtain the necessary supervision but, on balance, we are of the view that he did not take sufficient initiative in that regard to ensure that he met the relevant conditions and that he was, and remained, in breach. 10. Condition 9 required the Respondent within 21 days of notice of the condition to nominate a primary and alternate supervisor. 11. We are satisfied and find that the Respondent knowingly failed to comply with Condition 9. 12. Condition 10 was to the following effect: "In the event that no approved supervisor is willing or able to provide the supervision required the Practitioner must cease practise immediately and must not resume practise until a new supervisor has been nominated by the Practitioner and approved by AHPRA in consultation with the Chair of the Board". 13. It is not clear how this condition is relevant because during the nominated period there is no evidence of a nominated and "approved supervisor" who was not willing or able to provide supervision. We are not satisfied that this claimed breach has been established. Mentoring Conditions 1. The Commission contends that the Respondent was in breach of Condition 12 in that he worked for a considerable number of hours between the period 11 February 2019 to 26 June 2020 without the necessary mentoring required on him. 2. The Commission further contends that the Respondent was in breach of Condition 13 of his conditions between the period 11 February 2019 and 26 June 2020 in that he did not complete a minimum of 52 mentoring sessions of 1 hour duration over a 1-year period. 3. In this regard, the Commission relies on a statement of the person described as Nominated Mentor 1. It is clear from that evidence that this colleague was prepared to act as the Respondent's mentor but had no experience of being a mentor, and in some respects considered that it was necessary that the Council could have played a more active role in ensuring that the mentoring could take place, including the return of reports. This colleague also says that he/she felt somewhat out of his/her depth at the relevant time. 4. In the circumstances, we are not prepared to find that the non-compliance with this condition was entirely the fault of the Respondent. However, the condition required the Respondent to have a minimum of fifty-two one-hour sessions over a period of one year and that did not occur. We therefore find this condition was also breached. 5. The Commission then alleges that the Respondent breached Condition 16 of his conditions in that he did not, within 21 days of becoming aware of the termination of the mentoring relationship, provide a new mentor nomination in accordance with the requirements of those conditions. In this regard the Commission relies upon a file note made in relation to a conversation with the Respondent on 20 July 2020 prepared by a senior representative of the Council. The file note records that the Respondent advised at that time that he was currently on sick leave and did not plan to return to his workplace at Taree. The file note records that the Respondent advised that he had been meeting weekly with someone in a mentoring type of relationship. They had been keeping records of those meetings. He was advised that the Council would be happy to approve that colleague as a mentor and should he leave Taree Hospital that colleague could remain his mentor but they were required to have a plan for regular sessions together. That colleague would need to submit to the Council some evidence of these meetings monthly. The file note records that the Respondent was very happy with that approach. 6. As we record above, the Council in August 2020 suspended the registration of the Respondent and as a result he did not continue to work. 7. Condition 16 required the Respondent to provide a new nomination of a mentor for approval "in the event an approved mentor is no longer willing or able to provide the mentoring required". The evidence pointed to in support of a breach of this condition does not identify the 'approved' mentor who was no longer willing or able to act in that capacity. We therefore are not satisfied that a breach of this condition has been made out. 8. Condition 17 is then relied upon. It required the Respondent to do certain things within 21 days "of the conclusion of the mentoring relationship" and says in support that the Respondent provided no evidence of his having done so. 9. In the absence of a clear identification of the mentoring relationship which 'concluded' we are not satisfied that the evidence supports this alleged breach. Complaint 1, Part E, Creation of a False and Misleading Document 1. We deal with this complaint somewhat out of order but it appears to relate to the sequence of events that followed after the Respondent's nominated supervisor was not approved by the Council on 17 June 2020. The Respondent was advised to this effect in a letter from the Council dated 17 June 2020 and informed to nominate a supervisor by close of business 24 June 2020 with supporting documentation. 2. On 18 June 2020 the Respondent had a discussion with a representative of the Council in which he advised that he had discussions with the "newly appointed clinical nurse educator" who had agreed to act as the Respondent's supervisor, and hence the Respondent would be nominating him as his supervisor. The Respondent was reminded that he would need to submit this proposed supervisor's CV and CPD log for assessment and that the Respondent will be receiving supervision and mentor nomination forms. 3. On 19 June the Council representative emailed the Respondent enclosing the relevant forms they had discussed. The Respondent was advised that the Council expected the following documents by close of business 23 June 2020: * Supervisor Nomination Form, completed and signed by you and your nominated supervisor; * the Supervisor's CV; * the Supervisor's CPD log. 1. On 19 June 2020 a document entitled "Supervised practise, Practitioner acknowledgment (HP10)" was provided to the Council by the Respondent. The signature on that document does not appear to be a natural signature of the Respondent which appears on other documents and is in our view more likely of an electronic version. 2. On 23 June 2020 the Respondent received from his nominated supervisor a resume and learning history CPD. On the same day the Respondent sent to the Council the documents received from his nominated supervisor for the urgent attention of the person with whom he had been having the discussions. However, they were not provided together with the relevant forms requiring completion by the nominated supervisor. 3. A very short time later on the same day (3:23 pm), the Council wrote to the Respondent by email thanking him for providing the CPD log and the resume of his nominee. The Council noted that they had received the nomination form on 19 June from the Respondent but the form was only partly completed and had not been completed by the Respondent's nominee. 4. The Council requested that he please provide the form to his nominee to complete and then return it to the Council by the next day, 24 June 2020. The relevant partly completed forms were returned to the Respondent. 5. A very short time later at 6:58 pm on 24 June 2020 (the deadline) the Respondent sent to the Council by email with attachments and a document described as "Copy of signed doc as requested". There is attached to that email the document we refer to at paragraph 78 above HP10 dated 19 June 2020 with the supposed signature of the Respondent. The same document contains an HPN10 form described as "Supervised practise Nomination of supervisor" to be completed and signed by the person nominated. It required that practitioner's declaration as the nominated person and it contains next to the section described as "Practitioner's signature" a name purporting to be that of the nominee next to the date, 23/06/2020. It appears to us that this too was an electronic signature purporting to be that of the nominated supervisor. Not all the paperwork had yet been completed as required. 6. On 25 June the Council emailed the Respondent and copied in his nominee supervisor and attached a copy of what was described as "your partially completed supervision nomination form". The Respondent was requested to please discuss with his nominee to complete the third page, that is, the "Supervisor acknowledgment" page. The Respondent was told that his proposed nominee had been copied in on the email and if he required any further information would he please contact the officer within the Council. Although the particular form that is referred to in the email of 25 June 2020 has not been attached to that email tendered in evidence it appears likely that it is the document submitted by the Respondent to the Council on 23 June 2020 at 6:58 pm which, of course, contains the alleged signature of the nominee in the HPN10 form. 7. On 1 July 2020 the Council wrote to the Respondent by email. He was thanked for providing the details of his nominated supervisor. He was told that the Council had considered the matter and the proposed supervisor was not approved as the Respondent's supervisor. The proposed supervisor was copied in on the email. 8. There is a gap in the evidence before us. Although the document is not in evidence it appears likely that the nominated supervisor did send through the "Supervisor acknowledgment" document (HPN10) with a signed declaration that was requested in the email of 25 June 2020. The Council seems to have proceeded on the basis that all necessary paperwork had been completed for its assessment and thus was the subject of the advice to the Respondent and the nominated supervisor on 1 July 2020. 9. In the circumstances the question is was there created a false and misleading document suggesting that the Respondent's nominated supervisor's signature was unlawfully or improperly used or whether there is a more excusable explanation for what was occurring. 10. The nominated supervisor has provided a statement in these proceedings and he deals with this issue in his statement as follows: After I provided (the Respondent) with a copy of my CV, I heard nothing further from him about the matter until I received an email from (the Council's representative) from the Health Professional Councils Authority. (The Council's representative) had sent (the Respondent) an email, which I was copied into, and requested that I complete the third page of an attached document titled the "supervisor acknowledgment" form. After I read the email and the attached document, it occurred to me that I had never received any supervisor paperwork or forms from (the Respondent), and that I had not filled out any form for him either. Despite this, I noticed that page two of the document included a signature in the "practitioner's signature" space which read "the purported signature of the proposed supervisor". I remember being confused because it was not my full name, and it was not my signature. I assert that I did not sign nor provide my signature for any documentation provided by (the Respondent) to the NSW Nursing and Midwifery Council in June 2020, or any other time. I did not raise the issue of my purported signature directly with (the Respondent). Soon after I received the relevant email from (the Council's representative), I notified my service manager, and informed him that I had received an email from the Council which included a document purportedly signed by me but that I did not fill out nor sign myself. (My service manager) acknowledged my concern but instructed me to "hold off" for the time being … 1. The witness does not address the completion of the form he was separately requested to complete and which, in our view, he likely did, even after noticing his purported signature. 2. It appears to us that the deadline for nomination was looming and the Respondent was scrambling to try and get the necessary forms to the Council by the nominated deadline. It further appears that at the relevant time the nominated supervisor became aware of the fact that a name, purportedly his, had been applied to the form. At the time he is likely to have separately signed a different form supporting the application. The Council appears to have accepted that the forms were all in order because until all the paperwork was completed it did not assess the proposal. The Council then reviewed the forms and materials provided but came to the view that the nominated supervisor could not be approved. 3. In the circumstances it does not appear that the Respondent in any way benefited from the steps that he took to try and achieve a nominated and approved supervisor by the relevant date. The nominated supervisor did not seek to refuse the nomination even though he had identified the signature in the section requiring his declaration as not his before it seems he provided a separate form to the Council. There is no evidence to suggest that he wished to depart from that declaration, particularly in the circumstances where he is likely to have completed the balance of the form. The Respondent also had the agreement of the nominated supervisor to act as supervisor and had been provided with his CV and CPD to pass on to the Council. 4. A finding that the Respondent created the particular documents in these circumstances in a false and misleading way is a serious step to take. Clear proof is required and, as pointed out in Neat Holdings v Karajin Holdings Pty Ltd referred to above, that requirement is not directed to the standard of proof but rather should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct. 5. A finding of improper or unethical conduct must also have regard for the particular circumstances in which the conduct is said to have occurred. The Respondent ought not to have acted as he did without the approval of the nominated supervisor or without explanation to the Council. It is a serious matter to represent that the nominated supervisor had made the declaration to which the purported signature was attached without that person's knowledge. It is also important that the Council can rely on the authenticity of documents of this kind provided by registered practitioners. In the circumstances set out above, and recognising the standard of proof that must be achieved, we find that in an effort to provide all the relevant material to the Council by the relevant deadline the Respondent engaged in improper or unethical conduct by reason of the completion of these forms. The circumstances may be relevant to our consideration of the overall conduct of the Respondent in the next stage of the proceedings. Complaint 1 1. We will now deal with the events in 2020 which are part of Complaint 1 as particularised in some detail. We deal with the conduct of the Respondent in the order in which it is particularised in relation to Complaint 1. Dealing first with Part A in respect of which there are 5 particularised events and offending conduct. 2. It is important in our view not to view each of these events in isolation but to also look at them over a period of time and the cumulative effect they had on those at which the comments and physical acts were directed. 3. We have reviewed the evidence in relation to each of the Particulars in Part A and find that the conduct alleged is made out. 4. The conduct described in Particulars 1 to 4 of Part A was directed at a 33-year-old female registered nurse who started work in the Mental Health Unit of Manning Hospital in or around May 2020. She has provided two written and signed statements in these proceedings to which we have had regard and we accept her evidence. 5. The impact of some of the Respondent's behaviour is set out in the evidence of this work colleague who was subjected to his unacceptable behaviour. Thus, in respect of Part A Particular 2 she describes his conduct as follows: On 22 June 2020, I was working an afternoon shift in the MHU. There was a new patient admitted to the ward and as part of the process we scan them with a metal detector to ensure they do not have anything harmful on them. (The Respondent) took the metal detector and swiped it over the front of my body and then laughed and said words to the effect of "I was just looking for your birth control". I recall that (another) RN was present during this, and that we were in the nurses station in the MHU. The nursing station is located in the centre of the two areas of the ward and can be seen from both the open ward area and the observation unit. Later on 22 June 2020, I was working with (the other) RN in the MHU and (the Respondent) started making little touches on my bottom in a pinching gesture. (She) said something about his behaviour and he responded with words to the effect of "there's fluff on your bottom". (The other) RN witnessed this and said words to the effect of "that's inappropriate you can't do that". I remember (the Respondent) responded … by laughing and he walked off. 1. The conduct in Particular 2 was regarded as most concerning at the time by the Respondent's work colleague and that was even before the later conduct that was engaged in on 22 and 23 June 2020. 2. In respect of the conduct described in Particular 4 the colleague who was subjected to this treatment described the Respondent's actions as a "rough grab, she panicked and walked out of the room, she was shocked and was in disbelief at his conduct". The colleague was left feeling uncomfortable and she tried her best to avoid the Respondent thereafter. 3. In respect of the complaints in Part A Particular 5 which describe comments made by the Respondent to a work colleague about one of the doctors in the Unit it does not appear that any of these comments were known to the relevant doctor but were made behind her back. They are nonetheless below the standard of conduct to be expected of a registered nurse practising in a public hospital. 4. In respect of Part B of Complaint 1 we have also reviewed the evidence and find that the conduct complained of as particularised has been established on the evidence and we so find. 5. The conduct described in Part B Particulars 6, 7 and 8 was directed at a 32-year-old overseas born well qualified nurse who has provided two signed statements in these proceedings to which we have had regard and we accept her evidence. 6. In respect of Particular 8 the comments made to this nurse colleague who was helping with cleaning up after a birthday celebration, her evidence tendered in the Tribunal is that after the Respondent had made the comments complained of she became so upset and angry that she did not have any words to say to him in response. She says that at that moment she remained quiet and calm and walked to the staff bathroom and cried alone before exiting to the staff room where she continued to cry. She was then comforted by a colleague. 7. In respect of Particular 9 of Part B we have had regard for the evidence of the nurse described as Colleague B in these proceedings which we accept. 8. In respect of Particular 10 of Part B we can understand the concerns of the Respondent's colleagues about this claim but are not satisfied that evidence is sufficient to support the claim. 9. In respect of Part C of Complaint 1 we have reviewed the evidence and accept that the conduct alleged in Particulars 15(e) and (f) complained of occurred and we so find. The degree of seriousness of this conduct, in light of the very brief evidentiary basis supporting the claim, is difficult to determine and we place limited weight on this breach. 10. In respect of the particularised complaints in Part D of Complaint 1 we have reviewed the evidence and are satisfied that the Commission has established an evidentiary basis for us to make findings that the conduct occurred, and we so find. Complaint 2 1. We are satisfied that on the evidence the Commission has established the failure on the part of the Respondent to comply with his obligations under s 164G(2)(a) of the National Law. He was required under the relevant section to provide a response to the complaint that was made and became the subject of s 150 proceedings which occurred on 13 August 2022. The Respondent failed to comply or to provide a reasonable excuse to comply with the directions in the letter to him of 6 August 2022, and we so find. Complaint 3 1. This complaint concerns a claim that the Respondent has contravened s 34A of the Health Care Complaints Act which provides as follows: 34A Power of Commission to obtain information, records and evidence (1) If the Commission is investigating a complaint and is of the opinion that a person is capable of giving information, producing documents (including medical records) or giving evidence that would assist in the investigation, the Commission may, by notice in writing given to the person, require the person to do any one or more of the following -- (a) to give the Commission, by writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation) and within such time as is reasonable, and in the manner, specified in the notice, any such information of which the person has knowledge, (b) to produce to the Commission, in accordance with the notice, any such documents, (c) to appear before the Commissioner or a member of staff of the Commission authorised by the Commissioner at a time and place specified in the notice that is reasonable and give any such evidence, either orally or in writing, and produce any such documents. (2) (Repealed) (3) Information and documents may be given or provided to the Commission in compliance with this section despite any other Act or law (but not despite a provision of Division 8 of this Part or Division 6B of Part 2 or Part 2A of the Health Administration Act 1982). (4) A person who is subject to a requirement under subsection (1) must not, without reasonable excuse, fail to comply with the requirement. Maximum penalty – 200 penalty units. Note – Failure of a health practitioner to comply with a requirement under subsection (4) may constitute unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW). 1. The Particulars of this complaint are that on 8 April 2021 the Commission issued a notice to give information pursuant to that section to the Respondent requiring him to respond by 21 April 2021 and requested that he provide a response to the allegations as particularised in Complaint 1. 2. The Commission claims that between 8 April and 21 April the Respondent failed to comply or to provide a reasonable excuse to comply with the notice sent to him on 8 April 2021. On the evidence we are satisfied that that failure has been established and find that the Respondent contravenes s 34A of the HCC Act. Complaint 5 1. The Commission claims that the Respondent is guilty of professional misconduct under s 139E of the National Law in that he has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. Conclusion 1. In determining what is reasonable conduct by a professional such as the practitioner the remarks of the Court of Appeal in Health Care Complaints Commission v Litchfield (1997) NSWLR 630; [1997] NSWSC 297 are apposite: The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. 1. The Tribunal is in all matters before it under the National Law guided and informed by s 3A. Section 3A provides as follows: 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. In considering the conduct of the Respondent which has been established objectively, as we are required to do, we have also borne in mind the seriousness of findings we make and the potential impact on the Respondent. 2. We are nonetheless satisfied that the Respondent's conduct the subject of our findings was not in conformity with standards of professional conduct and practise of a registered nurse. It was not conduct that would be expected of a person in that position (see, e.g., HCCC v Phung (No 1) [2012] NSWDT 1; HCCC v Fisher [2016] NSWCATOD 62). 3. We regard the breaches of the conditions imposed on the Respondent which we have found as serious. The breaches manifested themselves over a period of time. They involved significant failures in respect of measures aimed at improving his performance, and measures through supervision and mentoring to improve or monitor his performance. He was put on notice of the breaches on more than one occasion but was very slow to respond. 4. In our view, those breaches are sufficiently serious to justify a finding of unsatisfactory professional conduct. 5. In respect of Complaint 1, the conduct as particularised was, in our view, completely unwarranted and unacceptable. Nursing colleagues should not have to be subjected to this type of behaviour. 6. The physical contact by the Respondent on a female colleague which occurred on 22 and 23 June 2020, we regard as very serious misconduct and, in our view amounted, to unsatisfactory professional conduct. 7. The conduct which has been established as Particulars 6 to 9 of Part B was demeaning and hurtful and without justification. We are of the view that this was conduct of sufficient seriousness to amount to unsatisfactory professional conduct. 8. The conduct as particularised in Complaint 1, Part C, Particulars 11 and 12, being comments made by the Respondent to a colleague about a medical practitioner and a patient was unacceptable. The comments were not directed at those persons. We do not think that they are of sufficient seriousness to amount to unsatisfactory professional conduct. Having said that we do not suggest that the conduct can in any way be tolerated or that other disciplinary steps could not be taken for such conduct. 9. In respect of Complaints 2 and 3 the obligations imposed on health practitioners to comply with the requirements of s 164G of the National Law are designed to enable proper operation of the National Law and compliance with the standards of practice required. In our view the contraventions of s 164G(2)(a) of the National Law and s 34A(1) of the HCC Act amount to unsatisfactory professional conduct of a serious kind. 10. We have thus concluded that there has been established four breaches of the National Law, each being unsatisfactory professional conduct. Given the serious nature of each of those breaches we are satisfied and find that the Respondent has been guilty of professional misconduct when considered together to justify suspension or cancellation of the Respondent's registration pursuant to s 139E. 11. We are thus satisfied that the conduct that the Respondent has engaged in in Complaint 1 amounted to unsatisfactory professional conduct under s 139B(1)(l) of the National Law in respect of Part A and B, Particulars 1, 2, 3, 4, 5, 6, 7, 8 and 9 as it was improper conduct. 12. We are satisfied that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he has contravened s 164G(2)(a) of the National Law. 13. We are satisfied that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(e) of the National Law in that the Respondent has contravened s 34A of the Health Care Complaints Act. 14. We are satisfied that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law in that the Respondent has contravened a number of the conditions to which the practitioner's registration was subject. 15. Taken together we are, in the circumstances, satisfied that the Respondent engaged in unprofessional conduct as set out in the complaints. 16. The matter will now be listed for further hearing to consider the Applicant's claim for orders that the Respondent's registration be cancelled pursuant to s 149C(1)(b) of the National Law, with a non-review period of three years and that he pay the Commission's costs. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2022