Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Bautista [2023] NSWCATOD 65 Hearing dates: 26 April 2023 Date of orders: 22 May 2023 Decision date: 22 May 2023 Jurisdiction: Occupational Division Before: H J Dixon SC, Senior Member A Cummins, Senior Member J Harrington, Senior Member R Kusuma, General Member Decision: (1) Under s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW), the registration of the Respondent is cancelled. (2) Under s 149C(7) of the Health Practitioner Regulation National Law (NSW), a non-review period of 12 months is imposed. (3) Under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the Respondent is to pay the Applicant's costs as agreed or assessed. Catchwords: OCCUPATIONS – nursing – misconduct and discipline – criminal conviction – failure to notify of charges and conviction Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Crimes Act 1900 (NSW), s 61M(2) Health Care Complaints Act 1993 (NSW), s 90B(1) Health Practitioner Regulation National Law (NSW), ss 3A, 5, 55, 109, 130, 139B, 144, 149C, Sch 5D cl 13, Sch 7 cl 7 Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 335; [2017] NSWCA 186 HCCC v Chowdhury [2015] NSWCATOD 65 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 Health Care Complaints Commission v Lidman [2020] NSWCATOD 48 Health Care Complaints Commission v Morris [2022] NSWCATOD 120 Health Care Complaints Commission v Sbirziola [2022] NSWCATOD 118 Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Rey Adiarte Bautista (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (no appearance) File Number(s): 2022/00313402 Publication restriction: On 26 April 2023, a non-publication order was made by the Tribunal under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of the name of Person A or the mother of Person A set out in the Schedule to the complaint. Reasons for decision 1. By amended application dated 24 April 2023, the Health Care Complaints Commission ("the Commission") applied for a disciplinary finding and order under the Health Practitioner Regulation National Law (NSW) ("the National Law") specifically relevant to the profession of nursing against Rey Adiarte Bautista ("the Respondent"). 2. The Director of Proceedings of the Commission had determined to prosecute a number of complaints against the Respondent pursuant to s 90B(1) of the Health Care Complaints Act 1993 (NSW) alleging that the Respondent had been convicted or made the subject of criminal findings pursuant to s 144(a) of the National Law and has been guilty of unsatisfactory professional conduct within the meaning of s 139B(1) of the National Law. Orders Sought 1. Apart from a non-disclosure order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) which has been issued by the Tribunal on 26 April 2023, the Commission seeks the following orders: 1. cancellation of the Respondent's registration pursuant to s 149C(1)(c) of the National Law with a non-review period of 12 months; 2. an order that the Respondent pay the Commission's costs as agreed or assessed under clause 13 of Schedule 5D of the National Law. 1. The matter was set down for hearing on 26 April 2023. Prior to the hearing, the Respondent notified the Tribunal that he did not intend to defend himself or provide any form of material because he was, in effect, admitting the complaints against him. The Respondent did not appear on the day of the hearing but we were satisfied that he had been given adequate notice of the proceedings and hearing date and the materials to be relied upon by the Commission. Complaints 1. The Commission relies on three complaints in support of its application for the orders referred to. Briefly stated, the application is concerned with a practitioner approximately 59 years old who was previously registered as a nurse: 1. who was charged and then on 4 November 2021 convicted of the indecent assault of his then 12-year-old female family member in January 2012; 2. who failed to notify the National Health Practitioner Board ("the National Board") of his charge and conviction; and 3. who failed to declare his criminal history when he applied to renew his registration. 1. Complaint One is that the Respondent was convicted in the Local Court of a criminal offence, being one count of indecent assault of a person under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The offence was punishable by imprisonment of 12 months or more. The Respondent was, however, ordered to enter into a Community Correction Order for a period of two years, commencing on 4 November 2021. At the time of the conviction, the Respondent was employed at a nursing agency in a suburb of Sydney. 2. Complaint Two is that the Respondent is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(b) and 144(b) of the National Law in that he contravened s 130(1) of the National Law by failing to notify the National Board within seven days of the relevant charges laid against him on 13 July 2020. That offence charged carried a maximum penalty of 12 months imprisonment or more, and required disclosure to the National Board within seven days of a practitioner becoming aware of that event. 3. Following the conviction for the offence referred to in Complaint One, which is punishable by imprisonment, the Respondent was required to disclose to the National Board that conviction within seven days. 4. It is alleged that the Respondent failed to notify the National Board within seven days when charged on 31 July 2020 with the offence the subject of Complaint One, and further failed to notify the National Board within seven days of being convicted on 4 November 2021 of the offence referred to in Complaint One. 5. Complaint Three is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the National Law. 6. On 23 April 2021, the Respondent lodged a renewal application with the Australian Health Practitioner Regulation Agency (AHPRA) to renew his registration as a registered nurse. 7. The Commission particularises this complaint on the basis that the Respondent failed to disclose details of any change in his criminal history that occurred during the period of registration when lodging his renewal application on 23 April 2021, in contravention of s 109(1)(b) of the National Law. Relevant Legislative Provisions 1. The relevant provisions of the National Law relied upon are as follows: 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. … (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; … 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following — … (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. 109 Annual statement (1) An application for renewal of registration must include or be accompanied by a statement that includes the following — … (b) details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration. 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner — (a) Criminal conviction or criminal findings 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. 149C Tribunal may suspend or cancel registration in certain cases [NSW] (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. … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. Complaint One 1. The offence of which the Respondent was convicted occurred in 2012 prior to the Respondent's registration as a nurse, although he appears to have commenced studying nursing in or around 1992 or 1993. 2. The Respondent was eventually registered as a nurse in December 2017. 3. However, the Respondent was convicted of the offence of which he was charged whilst registered as a nurse. 4. The Commission submitted that the pre-registration offending was conduct which, if it had been known to the National Board at that time, would have rendered the Respondent not a fit and proper person for general registration in the profession, which is one of the criteria for refusing registration under s 55(1)(h) of the National Law. The Commission then points to s 144(a) of the National Law, which provides that a practitioner who "has … been convicted", does not specify any time period for when the conviction occurred before, during or after the person's registration. 5. The Commission therefore argues that interpreting the phrase "has ... been convicted" in s 144A of the National Law includes a registered practitioner who has been convicted of pre-registration offending, an interpretation it was said to be also consistent with s 3A and clause 7(1) of Schedule 7 of the National Law, the latter provision providing that the interpretation that will best achieve the purpose or object of the National Law is to be preferred to any other interpretation. 6. The Commission argued that it would be contrary to the public interest if the Tribunal was precluded from making protective orders against a registered practitioner who has been convicted of historical offences, noting that generally a conviction may not occur until long periods after offending. 7. In our view, this analysis is the correct one. 8. On the evidence before the Tribunal, we accept that Complaint One has been established. The Respondent was charged and convicted of a criminal offence punishable by 12 months imprisonment or more. Complaint Two 1. Complaint Two is that the Respondent is guilty of unsatisfactory professional conduct in that he failed to notify the National Board within seven days of his charge and conviction. 2. This complaint is based on s 139B(1)(b) of the National Law insofar as it provides that unsatisfactory professional conduct of a registered health practitioner includes a "contravention by the practitioner (whether by act or omission) of a provision of this Law". 3. As will be seen from the section quoted above, s 130(1) of the National Law relevantly provides that registered health practitioners must give the National Registration Board written notice within seven days of being aware of being charged with a punishable offence by 12 months imprisonment or more, and also provides that the registered health practitioner must give the National Registration Board written notice within seven days of being aware of being convicted of an offence punishable by imprisonment. 4. The Commission drew attention to, and emphasised in support of this complaint, the following: 1. the importance that practitioners comply with the reporting obligations which form part of the system for the maintenance of the integrity of the system of regulation and for the disciplining of health practitioners set up by the National Law (relying on Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [34]); 2. the duties of candour to professional regulators are extremely important to enable the system to function and to protect the health and safety of the public (relying upon Health Care Complaints Commission v Lidman [2020] NSWCATOD 48 at [20]); 3. once there is evidence that the practitioner contravened the notification requirements of the National Law, a finding of unsatisfactory professional conduct will automatically follow (relying upon Health Care Complaints Commission v Amalakumar at [22]-[27]); 4. the provisions requiring notification of certain types of criminal charges to the National Board are significant tools in the regulatory framework and are part of the protective architecture of the National Law, compliance of which allow regulatory authorities to decide whether particular criminal conduct is relevant to the practice of the relevant profession. 1. In Health Care Complaints Commission v Amalakumar, the Tribunal rejected the submission by the relevant practitioner that there was a discretion as to whether a contravention of the kind set out in s 139B(1)(b) of the National Law constitutes unprofessional conduct. The Tribunal held that once the contravention by the practitioner of the provision of the National Law has been established as a matter of fact, the section designates that contravention as unsatisfactory professional conduct. 2. On the evidence before us, we are satisfied that it has been established that: 1. on 31 July 2020, the Respondent was charged with one count of indecent assault of a person then under 16 years of age without consent or reasonable excuse contrary to s 61M(2) of the Crimes Act; 2. the Respondent was required to notify the National Board of the criminal charge within seven days because that offence carried a maximum penalty of 12 months imprisonment or more; 3. the Respondent failed to notify the National Board within seven days of the charges laid on 31 July 2020 or at all; 4. the Respondent knew, or ought to have known, that he should report the charges but decided to wait until his renewal; 5. as a result of the failure, the regulatory authorities were ignorant of the Respondent's charge and he continued to work as a registered nurse for a period of 18 months after the charge; and 6. following the conviction of the Respondent on 4 November 2021 of the charge, he was required to notify the National Registration Board of that conviction within seven days but failed to do so, and as a result of that failure, the regulators were ignorant of his conviction and so were unable to take action to protect the public immediately following that conviction, remaining unaware of the criminal conduct until a police officer lodged a complaint on 31 January 2022. 1. We are thus satisfied and find that, on the evidence, the Commission has made good Complaint Two, namely that the Respondent contravened s 130B(1)(b) of the National Law in each of the two respects raised in the complaint and those contraventions amounted to unsatisfactory professional conduct. Complaint Three 1. Complaint Three is concerned with subsequent conduct on the part of the Respondent which amounts, so it was contended, to a false renewal of his registration in 2021. 2. The Commission submitted that on the evidence, it was established that: 1. on 23 April 2021, the Respondent lodged a renewal application with AHPRA to renew his registration as a registered nurse; 2. the Respondent failed to disclose details of any change in his criminal history that occurred during the preceding period of registration, in that, in response to the question "since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA", the Respondent selected "no"; 3. the answer was false because the Respondent had been charged with the indecent assault charge, the subject of Complaint One. As a result of that failure, the National Registration Board was unaware that he was facing a serious charge of indecent assault of a child under 16 years and his registration as a nurse was renewed for the next registration year and the Respondent continued to work as a registered nurse up to 14 February 2022. 1. The National Law defines "criminal history" in s 5 to include "every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law". 2. We note from the renewal application documentation referred to above that in the portion dealing with "Consent", it is provided that the Respondent authorised AHPRA and the National Registration Board to carry out a nationally coordinated criminal history check for the purposes of assessing his application and that there was an acknowledgement that "a complete criminal history, including resolved and unresolved charges, spent convictions and findings of guilt for which no conviction was recorded, would be released to AHPRA and the National Board." 3. We are satisfied that a charge had been made against the Respondent for an offence and hence there had occurred a change to the Respondent's criminal history, namely that he had been charged with the offence the subject of Complaint One. 4. We are also satisfied that the failure on the part of the Respondent to disclose details of the change in his criminal history that occurred during the proceeding period of registration when lodging his renewal application on 23 April 2021 was in contravention of s 109(1)(b) of the National Law and that that contravention made the Respondent guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law. 5. 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 must uphold the highest standards of honesty and integrity in their dealings with those authorities: HCCC v Chowdhury [2015] NSWCATOD 65 at [81]. Seriousness of Conduct and Breaches 1. In our view, the overall conduct with which these complaints are concerned reveal serious breaches on the part of the Respondent of his obligations as a registered nurse. 2. In our view, and we find, that the offence with which he was convicted was serious given that the Respondent was in a position of trust and that, as the sentencing Magistrate recorded, the Respondent knew what he was doing at the time in respect of a young girl and knew that what he was doing was wrong. 3. The conduct in 2012 left the young girl, the subject of his conduct, vulnerable, helpless, and confused. 4. Although the offending conduct occurred prior to his registration as a nurse, it must be viewed in light of the fact that, as a registered nurse, he would inevitably be responsible for providing nursing care which involved physical contact with patients, both young and old. 5. The conduct of the Respondent after the assault in 2012 is also relevant. Although the offence was committed in 2012, the Respondent thereafter conducted himself in an unacceptable manner. He continued to demonstrate attraction towards this younger person for some years by persistently complimenting her and making her feel uncomfortable. Years later, he also pursued the victim by placing a letter on her car declaring his feelings for her. He also continued to attribute responsibility, or some responsibility, for what he did to his victim and continued to imply or suggest that she had "led him on". 6. In our view, Complaint Two must be regarded as a serious breach particularly when combined with his conduct the subject of Complaint Three, which involved a false declaration as to his criminal history which remained undetected for some time. That conduct was not inadvertent or based on ignorance. 7. Although the Magistrate Court did not impose a custodial sentence but instead imposed a Court order, namely a Community Corrections Order for two years, it was ordered that the Respondent must not commit any offence and must appear before the Court if called to do so, and, in addition, the Court made a Child Protection Register Order. Although the Respondent had already been subject to an Apprehended Violence Order granted by the police in 2019, and a final Apprehended Violence Order granted by the police in 2020, naming Person A, his victim, as the person in need of protection, the Court also extended the order for a further two years from 4 November 2021 to further protect Person A. The Court clearly regarded the Respondent as insufficiently reformed in relation to Person A. Protective Orders 1. In considering the protective orders which are sought in this case, it is relevant to have regard for the Respondent's explanations which, the Commission argues, display a failure to take responsibility for his actions over a period of years, and show a lack of insight together with attempts to blame Person A for his conduct. In our view, the evidence supports that submission. 2. Although the Respondent in his notification to the Tribunal on 24 February 2023 stated that he sincerely apologised to all parties involved regarding his mistakes "advertently or otherwise", he and his wife had mutually decided that he would admit and agree with the complaints "to at least diminish another form of trauma" which had affected his whole family as a consequence of his recent conviction. 3. The Respondent advised the Tribunal that he had not worked or attempted to work since the aftermath of his conviction and he had decided to completely leave the nursing profession or any health-related profession once and for all. 4. The Respondent stated that he did not intend to defend himself or provide any form of material as an excuse because of his mistakes and human errors. 5. Although in these remarks the Respondent shows some appreciation of his misconduct, there is insufficient evidence before us to conclude, with confidence, that he has fully appreciated the significance of his misconduct against his victim, the significance of his failures in recognising his obligations the subject of Complaints Two and Three, and we cannot be confident that he has reformed such that, if he were to reconsider his position to practise nursing, the public would be adequately protected. 6. In order to suspend or cancel registration, s 149C(1)(c) of the National Law requires an assessment and satisfaction by the Tribunal that "the circumstances of the offence" render the practitioner "unfit in the public interest to practise" the practitioner's profession. 7. The meaning of "unfit … to practise" is not defined in the National Law. Whether a practitioner is "unfit" is to be decided at the time of the hearing, and the circumstances of the offence and all circumstances impacting upon current fitness are relevant considerations. 8. In Health Care Complaints Commission v Morris [2022] NSWCATOD 120, the Tribunal summarised (at [82]-[85]) some of the relevant authorities concerning the interpretation of s 149C(1)(c) of the National Law thus: "82. In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14] the Tribunal stated: 'The National Law does not contain a definition of unfitness to practise in the public interest or unsuitability for registration. These terms, like all others in the Act, are interpreted in light of the objects of the Act in s 3 and the specific objective and guiding principle in the NSW version of the National Law contained in s 3A.' 83. The following principles emerge from the Tribunal's decision in Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]: (1) 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: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]; (2) s 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of the "practitioner's current fitness to practise": Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]-[69]; (3) In construing s 149C(1)(c) the Tribunal needs to take into account the objectives of the National Law which relevantly include "the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered". Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether, as a result of having committed an offence they have behaved so egregiously as to render the subject practitioner "unfit in the public interest to practise the practitioner's profession"; (4) The circumstances of an offence 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. 84. Whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]. [85] "Public interest" also may be taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within them: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]. However, we are cognisant of the remarks of Harrison J in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (albeit in the context of proceedings under s 150 of the National Law) of the concept of public interest being linked to the health and safety of the public." 1. The precise meaning of the phrase "in the public interest" requires further attention in light of the decision of the Court of Appeal in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 ("Pridgeon"), where it was held (at [68]) in respect of that phrase used in s 150 of the National Law as follows: "First, in the context of Subdivision 7, the reference to the "public interest" should be understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted. In the present case, the relevant public interest must be in the conduct by Dr Pridgeon of his profession as a medical practitioner. There may, arguably, be some wider, unspecified public interest in limiting the potential for the rule of law to be undermined by conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine which the National Law regulates. However, the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned." 1. It will be seen that in respect of the relevant public interest, the Court drew a distinction between conduct by a practitioner as a medical practitioner, and conduct that is unrelated to the practice of medicine which the National Law regulates, being conduct, in that case, potentially in defiance of an order of a court undermining the administration of justice. 2. That distinction in our view is important particularly when, as required by s 149C(1)(c): 1. the circumstances of the offence are to be considered; 2. there must be a sufficient relatedness between those circumstances so as to "render" the practitioner unfit; and 3. the fitness or otherwise must be in the public interest "to practise" the practitioner's profession. 1. The full scope and potential impact of the judgment in Pridgeon has been examined in some detail (and in a most helpful manner) by the Tribunal in Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [61]-[94]. We agree that it does not appear that the Court in Pridgeon sought to overturn earlier approaches to the meaning of the phrase. The Court did not state that the offending conduct must have occurred in the practise of medicine. 2. In the current matter, in our view, the circumstances of the offence, sexual abuse of a young vulnerable girl, sufficiently relate to the practice of nursing where practitioners would inevitably be responsible for providing nursing care which involves physical contact with patients, both young and old, with a definite and proper understanding of the professional boundaries which need to be maintained. 3. In our view, we are satisfied that the public interest is best served by the cancellation of the Respondent's registration as a nurse. 4. In the circumstances, we are of the view that we grant the order of cancellation sought by the Commission under s 149C(1)(c) of the National Law in circumstances where we are satisfied that the Respondent is unfit in the public interest to practise. 5. In coming to that view, we are conscious of the need for both general and specific deterrence and for a level of denunciation by the Tribunal of the conduct committed by the Respondent which has now been established in Complaints One, Two, and Three. We are also satisfied that a non-review period is appropriate. Such a non-review period is not to punish the Respondent but to protect the public. 6. The non-review period should also carry with it both individual and general deterrence, a purpose of sending a message to the Respondent, the public and the profession about professional standards and the seriousness of the breach: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [88]. The Commission argued that the non-review period should firstly provide for the safety of the public ensuring only those practitioners fit to practise do so, secondly, that it should set a period during which the Tribunal attempts to predict the time in which a practitioner may reasonably take steps to rehabilitate, and thirdly, it should send a clear message of denunciation of the practitioner's conduct to other professionals: as elaborated upon in Health Care Complaints Commission v Sbirziola [2022] NSWCATOD 118 at [60]. 7. Of particular relevance to our view is that, on the evidence, the Respondent has not fully accepted responsibility for what occurred and has demonstrated a lack of insight that the public and professional confidence can be reposed in him to uphold and observe the high standards of moral rectitude required of a registered nurse. 8. The Respondent has also not provided any evidence establishing that he has completed treatment to address "his personality functioning", as determined by specialised opinion in evidence, especially his reluctance to take responsibility for his actions and ongoing attempts to blame his victim, or his ethical and professional responsibilities as a registered nurse. 9. We are aware that the Respondent is otherwise, it appears, of good character and has been generous in donating a kidney to his sister. 10. The Commission contended that a non-review period of 12 months will allow sufficient time for self-reflection as well as permitting the Respondent to engage in appropriate rehabilitative treatment. We agree and are satisfied, taking all matters into consideration that a non-review period of 12 months should be ordered. Costs 1. The Commission seeks an order that the Respondent pay the Commission's costs as agreed or assessed. In our view, that is an appropriate order following the general rule that costs of proceedings before the Tribunal should follow the event, and there was no disentitling conduct by the Commission to warrant a departure from the general rule. Orders 1. Under s 149C(1)(c) of the Health Practitioners Regulation National Law (NSW), the registration of the Respondent is cancelled. 2. Under s 149C(7) of the Health Practitioners Regulation National Law (NSW), a non-review period of 12 months is imposed. 3. Under clause 13 of Schedule 5D of the Health Practitioners Regulation National Law (NSW), the Respondent is to pay the Applicant's costs as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 May 2023