Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Scheggetman [2023] NSWCATOD 48 Hearing dates: 27 March 2023 Date of orders: 18 April 2023 Decision date: 18 April 2023 Jurisdiction: Occupational Division Before: O Shub, Senior Member S Smiltnieks, Senior Member Dr L Gregory, Senior Member R Wellington, General Member Decision: (1) An order under s 149C(4)(a) of the National Law that if the practitioner was still registered the Tribunal would have cancelled his registration. (2) An order under s 149C(4)(b) of the National Law that he is disqualified from being registered in the profession of nursing for 12 months. (3) An order under s 149C(4)(c) of the National Law that the Nursing and Midwifery Board of Australia is required to record the fact that if the practitioner was still registered the Tribunal would have cancelled his registration in the National Register kept by the Board. (4) An order under clause 13 of Schedule 5D of the National Law that the Respondent pay the Applicant's costs as agreed or assessed. (5) An order under ss 64(1)(a) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), that publication of the names of Person B and Patient A referred to in this decision is prohibited, and publication of the evidence in paragraphs 1 and 2 of Tab 9 of Exhibit 1 is prohibited. Catchwords: OCCUPATIONS – nurses – misconduct and discipline – professional misconduct – criminal charge and conviction – failure to notify – larceny and theft Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3B, 149C(4), Sch 5D cl 13 Civil and Administrative Tribunal Act 2013 (NSW), ss 64(1)(a), 64(1)(c) Crimes Act 1900 (NSW), ss 117, 192E(1)(b), 192J Cases Cited: Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Samuel Gerrit John Scheggetman (Respondent) Representation: Counsel: I Chatterjee (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2022/00268583 Publication restriction: Pursuant to ss 64(1)(a) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the names of Person B and Patient A referred to in this decision is prohibited, and publication of the evidence in paragraphs 1 and 2 of Tab 9 of Exhibit 1 is prohibited. REASONS FOR DECISION 1. The reasons for the complaint brought by the Applicant appear from the Complaint lodged with the Tribunal under Case No. 2022/00268583 dated 8 September 2022. COMPLAINT 1. In its Complaint, the Health Care Complaints Commission: "HEREBY COMPLAINS THAT Mr Samuel Gerrit John Scheggetman ("the practitioner") of BERMAGUI, in the State of New South Wales being a nurse formerly registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as a nurse in New South Wales on 1 June 2020. At all relevant times, the practitioner was employed as an enrolled nurse by Southern NSW Local Health District ("SNSWLHD") at Bega Hospital. On 25 June 2020, the practitioner worked a shift at Bega Hospital in his capacity as an enrolled nurse. On 25 June 2020, Person B attended Bega Hospital to visit and care for her husband ('Patient A'). Patient A was an inpatient at Bega Hospital and being treated in relation to his dementia. On 25 June 2020, Person B left her handbag unattended in Patient A's hospital room, while she took Patient A for a walk. While Person B's bag was unattended, the practitioner stole property belonging to Person B. On 6 July 2020, Patient A died. On 12 July 2020, the practitioner was charged with the following offences ('the dishonesty offences'): * 1x Larceny pursuant to section 117 of the Crimes Act 1900 (NSW) ('the Crimes Act'), * 7x Dishonestly Obtain Financial Advantage By Deception pursuant to section [192E(1)(b)] of the Crimes Act, and * 1x Dealing with Identification Information pursuant to section 192J of the Crimes Act. On 15 September 2020, the practitioner entered a plea of guilty to all dishonesty offences and was sentenced at Bega Local Court. The practitioner was convicted, a fine of $7200 was imposed and he received a Community Correction Order ('CCO') of three years. A compensation order was made for the practitioner to pay Person B $300. On 19 October 2020, the District Court at Bega heard a severity appeal lodged by the practitioner. The District Court confirmed the conviction and the CCO but reduced the fine imposed by the Local Court from $7,200 in total, to $2,400 in total. COMPLAINT ONE Pursuant to section 144(a) of the National Law, the practitioner has been convicted of a criminal offence in NSW. PARTICULARS OF COMPLAINT ONE 1. On 15 September 2020, before Bega Local Court, the practitioner was convicted of committing Larceny on 25 June 2020 at Bega pursuant to section 117 of the Crimes Act [sequence 1]. 2. On 15 September 2020, before Bega Local Court, the practitioner was convicted of committing Dishonestly Obtain Financial Advantage By Deception on 25 June 2020 at Bega pursuant to section [192E(1)(b)] of the Crimes Act [sequence 2]. 3. On 15 September 2020, before Bega Local Court, the practitioner was convicted of committing Dishonestly Obtain Financial Advantage By Deception on 25 June 2020 at Bega pursuant to section [192E(1)(b)] of the Crimes Act [sequence 3]. 4. On 15 September 2020, before Bega Local Court, the practitioner was convicted of committing Dishonestly Obtain Financial Advantage By Deception on 25 June 2020 at Cobargo pursuant to section [192E(1)(b)] of the Crimes Act [sequence 4]. 5. On 15 September 2020, before Bega Local Court, the practitioner was convicted of committing Dishonestly Obtain Financial Advantage By Deception on 25 June 2020 at Cobargo pursuant to section [192E(1)(b)] of the Crimes Act [sequence 5]. 6. On 15 September 2020, before Bega Local Court, the practitioner was convicted of committing Dishonestly Obtain Financial Advantage By Deception on 25 June 2020 at Bermagui pursuant to section [192E(1)(b)] of the Crimes Act [sequence 6]. 7. On 15 September 2020, before Bega Local Court, the practitioner was convicted of committing Dishonestly Obtain Financial Advantage By Deception on 25 June 2020 at Bermagui pursuant to section [192E(1)(b)] of the Crimes Act [sequence 7]. 8. On 15 September 2020, before Bega Local Court, the practitioner was convicted of committing Dishonestly Obtain Financial Advantage By Deception on 25 June 2020 at Bermagui pursuant to section [192(1)(b)] of the Crimes Act [sequence 8]. 9. On 15 September 2020, before Bega Local Court, the practitioner was convicted of committing Deal with Identity Information with an Intention to Commit an Indictable Offence on 25 June 2020 at Bega pursuant to section 192J of the Crimes Act [sequence 9]. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened section 130(1) of the National Law. PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to notify the National Board within seven days of a relevant event occurring, namely that on 12 July 2020, the practitioner was charged with the following offences: a. 1x Larceny pursuant to section 117 of the Crimes Act; b. 7x Dishonestly Obtain Financial Advantage By Deception pursuant to section [192E(1)(b)] of the Crimes Act; and c. 1x Dealing with Identification Information pursuant to section 192J of the Crimes Act. 2. The practitioner failed to notify the National Board within seven days of a relevant event occurring, namely that on 15 September 2020, the practitioner was convicted of the following offences: a. 1x Larceny pursuant to section 117 of the Crimes Act; b. 7x Dishonestly Obtain Financial Advantage By Deception pursuant to section [192E(1)(b)] of the Crimes Act; and c. 1x Dealing with Identification Information pursuant to section 192J of the Crimes Act." NATURE OF THE JURISDICTION 1. The nature of the jurisdiction of the Tribunal is to protect the public and to maintain proper standards in the profession of nursing. The effect of any decision is not to punish the Respondent. 2. In Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202; [1960] HCA 40 the High Court said: "Although it is sometimes referred to as 'the penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view for the protection of those who require protection and from the professional point of view in order that abuse of privilege may not lead to loss of privilege." 1. Section 3B of the Health Practitioner Regulation National Law (NSW) ("the National Law"), provides that: 3B 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. The interests of the public includes patients or potential patients of the Practitioner concerned. 2. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "… The purpose of any order consequent upon a finding that a complaint has been proved is said to be protective of the interests of the public at large but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of … practitioners. There is also 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. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." 1. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s 3B of the National Law. THE ISSUES 1. On 12 July 2020, the Respondent was charged with the following offences ("the dishonesty offences"): 1. One count of larceny pursuant to section 117 of the Crimes Act 1900 (NSW) ("the Crimes Act"), 2. Seven counts of dishonestly obtain financial advantage by deception pursuant to section 192E(1)(b) of the Crimes Act, and 3. One count of dealing with identification information with the intention of committing an indictable offence pursuant to section 192J of the Crimes Act. 1. On 15 September 2020, the Respondent entered a plea of guilty to all of the dishonesty offences and was sentenced at Bega Local Court. 2. In addition, the Complaint alleges that the Respondent failed to notify the National Board within seven days of the charges referred to above, and failed to notify the National Board within seven days of the Respondent being convicted of those offences. 3. The convictions and the failure to notify are the two issues which require consideration. 4. The Applicant, in its submissions to the Tribunal, seeks a cancellation order with a one year non‑review period to protect the public, and relies on the conviction for stating that the Respondent is not a fit and proper person to be registered as nurse. It appears the main issue for the Tribunal is to determine whether, in light of the circumstances of the offence and the surrounding evidence contained in Exhibit 1 consisting of Tabs 1 to 25 (excluding Tab 9), the Tribunal is comfortably satisfied that the Respondent is not a fit and proper person to be registered as a nurse. APPLICANT'S EVIDENCE 1. The Applicant relies on the bundle of documents filed by the Applicant with Tabs 1 to 25 but excluding Tab 9. Exhibit 1 contains documents in support of the Complaint and in particular a transcript of the severity of the appeal before Judge Haesler in the District Court of New South Wales and His Honour's ex tempore judgment. 2. In light of the admission by the Respondent that he is guilty of the Complaints that have been brought against him, the Tribunal does not propose to list all documents contained in Exhibit 1. The Tribunal will record the submissions made by the Applicant further in this decision and will deal with those issues at that time. RESPONDENT'S EVIDENCE 1. The Respondent produced no particular evidence to support his position in light of the fact that he has conceded the Complaints against him in full, save that in respect of his failure to notify the Australian Health Practitioner Regulation Agency (AHPRA) within seven days of the charge being laid and the conviction being recorded, that he was not aware of the obligation to notify AHPRA. 2. At the hearing, it was put to the Respondent that approximately $600.00 of the purchases he made on Person B's card went to cigarettes and alcohol. The Respondent stated that he did not drink very much, and conceded he had bought the alcohol for the purposes of on selling. He stated he smokes about 50 cigarettes per day. 3. The only additional information provided by the Respondent was the contents of his letter addressed to the Presiding Magistrate, a copy of which was received by the Registrar on 31 January 2023 and is Exhibit 2 in this matter. In that letter, the Respondent wrote: "To the Presiding Magistrate, I am writing this letter to express my sincere apology and deepest remorse for the insidious act of larceny that I have committed. I feel an enormous amount of shame and embarrassment for this irresponsible, irrational and immoral act. There is no excuse for my actions, and I accept full responsibility for what I have done. I realise the seriousness of these offences for which I am truly sorry and deeply regret. I have studied hard to become an Enrolled Nurse and I fear that all my efforts have gone to waste through my foolish criminal act. To become a nurse registration requires stringent background and police checks. I may be refused registration due to a criminal conviction. I have been referred by my General Practitioner and have taken steps to attend a psychologist for counsel and a mental health plan. I have had a lot of time to reflect on what the potential impact of my criminal act upon my present career and future as it could severely impact on both." 1. In addition, on 24 March 2023, the Respondent provided a response to the Complaint in which the only issue he raised was to indicate that, in respect of his failure to notify AHPRA of the charges or his conviction, he was not aware that he was obliged to do so. APPLICANT'S SUBMISSIONS 1. The Applicant provided written submissions to the Tribunal which are set out below. "A. INTRODUCTION 1. These proceedings concern conduct by … [the Respondent], on 25 June 2020. [The Respondent] was at the relevant time registered as an enrolled nurse, and on duty at Bega Hospital. Inpatient at the hospital at the relevant time was [Patient A], who had been admitted the previous night. [Patient A] is identified in the Complaint as '[Patient] A', and was being treated for dementia. 2. [Patient A]'s wife, [Person B] (identified in the Complaint as 'Person B') was visiting [Patient A], and in the course of the visit, took [Patient A] for a walk, leaving her handbag (that contained cash and credit cards) in the hospital room. 3. While on his shift, [the Respondent] stole from [Person B]'s handbag the sum of $300, and a Commonwealth Bank savings card, as well as a Commonwealth Bank credit card, when (presumably) [Patient A] and [Person B] were out of the room. He then used those cards to make approximately 19 purchases that afternoon, between around 4:13 pm to 6:01 pm that totalled at least $1,189. 4. [Person B] became aware of the theft later that evening, when alerted by her bank to suspicious activity on her cards. 5. On 6 July 2020, [Patient A] passed away …. 6. [The Respondent] was subsequently charged on 12 July 2020 with 1 count of larceny, 7 counts of dishonestly obtaining a financial advantage, and 1 count of dealing with identification to commit an indictable offence. 7. [The Respondent] entered pleas of guilty to all of the offences, and was initially sentenced (on 15 September 2020) to a 3 year community corrections order, and a fine of $7,200, by the Bega Local Court. He was also ordered to repay the $300 to [Person B]. 8. The fine was reduced on a severity appeal to the District Court (on 19 October 2022) to $2,400. 9. [The Respondent] subsequently disclosed the convictions on a renewal of his registration on 10 April 2021. 10. [The Respondent] is no longer registered as an enrolled nurse, having not pursued the renewal of his registration. B. The Complaint 11. Two complaints are made against [the Respondent]. Complaint One concerns [the Respondent's] convictions for the nine offences identified above. The circumstances of that offending are such that the Commission contends that the Tribunal should order, pursuant to section 149C of the Health Practitioner Regulation National Law (NSW) ("National Law") that: 11.1. If [the Respondent] was still registered, the Tribunal would have cancelled his registration; 11.2. [The Respondent] is disqualified from being registered in the health profession for 12 months; and 11.3. The National Board is required to record the fact that if [the Respondent] were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 12. Complaint Two concerns [the Respondent's] failure to disclose the charges, and his subsequent conviction, within 7 days of each event, [contrary] to section 130, National Law. C. Onus 13. The Commission as complainant bears the onus of proof in this matter. 14. In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52]. 15. Further, it is generally accepted in proceedings such as these that the principles identified in Briginshaw v Briginshaw (1938) 60 CLR 336 apply; that is, that the Tribunal must be mindful of the nature and seriousness of the allegation to be proved with the result that the Tribunal must be 'comfortably satisfied' that the allegations are made out on the balance of probabilities (see for instance Wilcox at [53]). 16. Here, the Tribunal will be comfortably satisfied that the factual matters in Complaints One and Two are made out as: firstly, those complaints are wholly admitted by [the Respondent] in his reply dated 25 March 2023; and secondly on the materials in any event, and objectively, [the Respondent] has plainly been convicted of the relevant offences (see Certificate of Conviction). D. Complaint One 17. The Commission can bring a complaint by reason of a practitioner's conviction for a criminal offence by reason of section 144(a), which relevantly states: 144 GROUNDS FOR COMPLAINT ABOUT REGISTERED HEALTH PRACTITIONER The following complaints may be made about a registered health practitioner-- (a) A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. 18. On the Tribunal being satisfied of the fact of conviction, the Tribunal is empowered to make disciplinary orders including (subject to the terms of section 149C(1)(c)) as to suspension or cancellation of registration. Relevantly, section 149C states: 149C TRIBUNAL MAY SUSPEND OR CANCEL REGISTRATION IN CERTAIN CASES (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied-- […] (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or [...] (emphasis added by author of the quoted text) 19. In Health Care Complaints Commission v Russ [2021] NSWCATOD 5, the Tribunal identified the following relevant principles in considering whether the circumstances of an offence rendered a practitioner unfit in the public interest: i. The term 'public interest' is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held (citing Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]) (at [37]). ii. An assessment of the practitioner's current fitness to practice is required, and is not subject to a requirement of "probable permanent unfitness" (citing Chen v Health Care Complaints Commission [2017] NSWCA 196 at [67]-[69]) (at [38]). iii. The question is whether the circumstances surrounding the offence currently render the practitioner unfit to practice in the public interest. Those circumstances include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances (at [39]). 20. As the Tribunal observed in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [57(7)(f)] (in the context of s 150 proceedings): 'A consideration of the public interest will always include the need for patients to have confidence ... that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits.' 21. The relevant circumstances of these offences are set out in the Fact Sheet, which … relevantly contains the statement of facts that [the Respondent] plead guilty [to], and was sentenced on the basis of. 22. Of some relevance are the transcripts of sentencing by the Local Court and the District Court, and in particular the fact that in the District Court, the severity of the penalty imposed was reduced by reason of an expectation that [the Respondent]'s conduct would lead to his de-registration. 23. The offences which [the Respondent] committed were intrinsically serious. They involved acts of dishonesty that were an egregious breach of the ethical standards required of a medical practitioner and the general law, and an abuse of the respondent's position as a health practitioner, by taking advantage of the public's trust in the medical profession and the presumption that nurses will act honestly. Further they involved persons who were highly vulnerable, and it is of some significance that [Patient A] passed away a short while later, and [Person B] would necessarily have had to deal with the loss of the funds and the attendant concerns at a time of significant difficulty for her. 24. There is some limited material … from [the Respondent]. To his credit he admitted the offences in the Local Court, and does so before this Tribunal. However, he has not tendered any references in support and while he asserts various circumstances to explain his conduct, has not put on any corroborative evidence. While there is reference to [psychological] issues, there is no evidence (in any form) from a psychologist. 25. The material put on by [the Respondent] does not adequately (or indeed at all) explain why [the Respondent] engaged in obviously criminal behaviour, and certainly would not satisfy the Tribunal that such conduct may not re-occur. It is sufficiently objectively serious to warrant cancellation in order to maintain the standards of the profession. E. Complaint Two 26. As identified above, statutory obligations exist on practitioners to report certain events. Relevantly, section 130, National Law provides: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) In this section— 'relevant event' means— (a) in relation to a registered health practitioner— (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment; … 27. A failure to comply with the National Law in itself can amount to unsatisfactory professional conduct. Relevantly, section 139B, National Law provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally (1) 'Unsatisfactory professional conduct' of a registered health practitioner includes each of the following— […] (b) 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. [...] 28. It appears from his reply that [the Respondent] was unaware of his obligations. The liability imposed by section 130 does not however require intention, and [the Respondent] otherwise appears to admit the complaint. 29. His lack of knowledge as to the obligations is of course relevant to what disciplinary orders are appropriate and it is relevant to note that no disciplinary orders are sought as a consequence of this Complaint, which is otherwise confined to seeking a finding of unsatisfactory professional conduct. F. Disciplinary Orders 30. In exercising a function under the National Law, "the protection of the health and safety of the public must be the paramount consideration": National Law, s 3A. Section 4 requires the Tribunal "to exercise its functions having regard to the objectives and guiding principles" set out in section 3. 31. The "task" undertaken by a Tribunal in making protective orders (albeit in the context of the Medical Practice Act 1992 (NSW) but adopted numerous times in the context of the National Law) has been described as "[centring] not on punishment as such but on the protection of the public and the maintenance of proper professional standards" (Lee v HCCC [2012] NSWCA 80 per Barrett JA at [21]). 32. Broadly speaking five matters can be identified of general relevance: 32.1. Any need to protect the public, and in particular the future patients of the practitioner, against further misconduct by the practitioner; 32.2. The need to protect the public through general deterrence (of other practitioners); 32.3. The need to protect the public by reinforcing high professional standard and denouncing transgressions; 32.4. The maintenance of public confidence in the profession; and 32.5. The desirability of making available to the public any special skills possessed by the practitioner. 33. In Lee, Barrett JA adopted (at [20]) the comments of Basten JA in Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83] that: 1 The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2 That is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order. 3 The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 34. As to matters such as maintenance of standards and the general standing of the profession, and as noted in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the considerations include: '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.' 35. As such, the effect of any orders made on the respondent (including for instance their impact on his finances or reputation) are only indirectly relevant, for instance by way of the effect of such orders on the likelihood of a repetition of the impugned conduct. As the Tribunal noted in Health Care Complaints Commission v Buys (No 3) [2020] NSWCATOD 102 at [17]: 'The respondent also emphasised that he had been punished by the publicity which had surrounded the finding of professional misconduct which had been made against him, the impact that this had had on his family and his practice, and the damage sustained to his reputation in the local area where he had been practising. Whilst these are unfortunate consequences for the respondent and his family, it must be emphasised that his circumstances are caused solely by the fact that he engaged in a course of misconduct of a serious kind, justifying a finding that it constituted professional misconduct. To this extent his authorship of his own misfortune is irrelevant in determining what protective orders should be made.' 36. As to the setting of a period of prohibiting an application for re-registration, the Tribunal in Health Care Complaints Commission v Lupe [2019] NSWCATOD 129 noted that (at [94]): 'The setting of a non-review period is not to punish the practitioner but to protect the public. NSW Court of Appeal jurisprudence has indicated that the fixing of a period of non-review has a 'twofold operation 'in that it firstly indicates a minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and secondly it holds open to the practitioner the possibility of return to the profession at a later time: Chen v HCCC [2017] NSWCA 186; HCCC v Do [2014] NSWCA 307.' 37. However, any protective orders made by the Tribunal should not result in 'more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the legislation' (Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88] citing NSW Bar Association v Meakes [2006] NSWCA 340 at [114]). 38. There can be little doubt that at the time of the offending, [the Respondent] was not a fit and proper person to be a registered [health] practitioner. 39. The applicable Code of Conduct expressly identifies that nurses are required to comply with the law, and in particular that they must 'respect the nurse-person professional relationship by not taking possessions and/or property that belong to the person and/or their family"' (at p 6, [par] 1.2.a). 40. It [is] relevant to note here that registration amounts to the profession holding a person out to the public as a `person worthy of their confidence'. [1] This entails that the person has demonstrated integrity, trustworthiness, high moral and ethical values and a capacity to comply with relevant regulatory requirements and codes of practice. [2] 41. The circumstances of the relevant offending reveal defects of character and integrity, and while reformations of character can occur they are the exception not the norm, with clear proof of reformation required: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [72] (Barrett JA, MacFarlane JA and Tobias AJA agreeing). 42. Cancellation is therefore warranted, and a prohibition period in all the circumstances of 12 months is appropriate. G. Costs 43. The Commission seeks its costs." (All references to Tabs and pages in the Applicant's material have been omitted.) 1. Following the closing of the evidence, the Applicant made some additional submissions indicating that the Applicant believes that the allegations which are the subject of the Complaint are very serious and that it would not take much empathy to understand that Person B was very vulnerable and in a difficult position. The Applicant stated that it was difficult to see that this was a momentary lapse of thinking. The theft took place before the end of the Respondent's shift then followed two hours of extensive spending and a thought process to purchase alcohol and to on‑sell this alcohol. 2. The Applicant submitted that the Respondent abused Person B's trust when it is so important for a nurse to be seen as trustworthy and his behaviour shows a complete lapse of trust. 3. The Applicant submitted that in order to consider any protective order other than cancellation, the Tribunal has to be satisfied that the Respondent's actions on that date were such an aberration that, in order for the Tribunal to come to that conclusion, there should have been psychiatric evidence to support it. RESPONDENT'S SUBMISSIONS 1. The Respondent indicated there was nothing that he was able to submit to advance the matter. DECISION AND REASONS 1. The Tribunal having read the evidence contained in all of the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and the evidence given by the Respondent, having reviewed the various additional documents which were tendered, and having considered the submissions made by the Applicant, is satisfied that the complaints made by the Applicant against the Respondent as set out in the Complaint is proven and that the Respondent has been found guilty of a criminal offence. 2. In the circumstances, it remains for the Tribunal to consider whether or not the Respondent is a person who is not fit to be registered as a nurse. In order to come to that conclusion, the Tribunal deems it necessary to consider the submissions of the Health Care Complaints Commission set out above. 3. The Tribunal is comfortably satisfied that, in respect of Complaint One, the Respondent has been convicted of the offences listed in the Complaint, and as such Complaint One is proven. 4. In respect of Complaint Two, the Respondent has admitted that he failed to notify AHPRA in respect of the charges brought against him and the subsequent conviction for those offences within the seven day requirement under the National Law. His only defence to Complaint Two was that he was not aware of his obligation to do so. 5. In coming to its conclusion, the Tribunal is fully aware of, and agrees with, the submissions of the Applicant as to the purpose and role of the Tribunal in complaints of this nature against a practitioner, and is aware that the Tribunal's obligation is to ensure the safety of the public while at the same time also protecting the good name of the profession. As the Tribunal has no quarrel with the submissions made by the Applicant, it is not necessary for it to repeat the nature of the arguments brought against the Respondent. 6. In addition, the Tribunal has regard to the fact that its role is protective and not punitive, but should also operate as a deterrent for other members of the profession. 7. In this respect, the Tribunal had regard to the fact that the Respondent demonstrated a great deal of remorse and insight in respect of his actions and while the Respondent did create an impression that such behaviour was not likely to re‑occur, the Tribunal believed that the nature of the behaviour in respect of very vulnerable clients was of such a serious nature as to warrant an order that had the Respondent been registered as a nurse the Tribunal would have cancelled his registration. The Tribunal did consider the fact that a severe reprimand might have been sufficient in respect of the Respondent, but the behaviour was such that it was serious and, in a sense, calculated. In the circumstances, the Tribunal believes that it is essential for the protection of the public for the Respondent to have time to reflect on what he has done and essential for an appropriate message to be sent to members of the profession that behaviour of this nature cannot be tolerated and that vulnerable people need to be protected by nurses and not subject to abuse. 8. The Tribunal was therefore comfortably satisfied that the appropriate message requires a decision that had the Respondent been registered the Tribunal would have cancelled his registration. 9. In the circumstances, the Tribunal makes the following orders. ORDERS 1. An order under s 149C(4)(a) of the National Law that if the practitioner was still registered the Tribunal would have cancelled his registration. 2. An order under s 149C(4)(b) of the National Law that he is disqualified from being registered in the profession of nursing for 12 months. 3. An order under s 149C(4)(c) of the National Law that the Nursing and Midwifery Board of Australia is required to record the fact that if the practitioner was still registered the Tribunal would have cancelled his registration in the National Register kept by the Board. 4. An order under clause 13 of Schedule 5D of the National Law that the Respondent pay the Applicant's costs as agreed or assessed. 5. An order under ss 64(1)(a) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) that publication of the names of Person B and Patient A referred to in this decision is prohibited,and publication of paragraphs 1 and 2 of Tab 9 of Exhibit 1 is prohibited. ********** Endnotes 1. Dawson v Law Society of New South Wales [1989] NSWCA 58 (Mahoney JA). 2. Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115, [56]. 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: 18 April 2023