Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Franco [2023] NSWCATOD 86 Hearing dates: 24 May 2023 Date of orders: 19 June 2023 Decision date: 19 June 2023 Jurisdiction: Occupational Division Before: T Simon, Principal Member L Hunt, Senior Member J Haines, Senior Member Dr R Leontini, General Member Decision: (1) If the respondent were still registered, the Tribunal would have cancelled her registration. (2) The respondent is disqualified from being registered in the profession of nursing for a period of 2 years from these orders. (3) The Nursing and Midwifery Board of Australia is to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. (4) The respondent is prohibited from providing any health service as defined in section 4 of the Health Care Complaints Act 1993 (NSW) until such time that she is re-registered as a registered nurse. (5) The respondent is to pay the Health Care Complaints Commission's costs of the proceedings, as agreed or assessed. Catchwords: HEALTH – professional registration – enrolled nurse – conviction – appropriate protective orders – prohibition orders – costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Crimes Act 1900 (NSW), ss 192E(1)(b), 193C Evidence Act 1995 (NSW), s 178 Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW), ss 144(a), 149A-149C, 150, Sch 5D cll 2, 13 Cases Cited: Bauskis v Liew [2013] NSWCA 297 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Choi [2017] NSWCATOD 82 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Roxana Franco (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2023/00008063 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the name of the patient set out in the complaint is prohibited. Reasons for decision 1. The Health Care Complaints Commission (HCCC) has referred a complaint to the Tribunal for orders under the Health Practitioner Regulation National Law (NSW) (National Law) against Roxana Franco, a former registered nurse. 2. The complaint is made under s 144(a) of the National Law, that Ms Franco has been convicted of a criminal offence in NSW. Non-appearance of Ms Franco 1. The HCCC appeared at the hearing, Ms Franco did not. 2. Ms Franco was in jail at the time of the hearing. In earlier orders made on 17 February 2023, the Tribunal included the following note: "It is noted that Ms Franco indicated, at the directions hearing on 17 February 2023, that she does not intend to participate in these proceedings. She has, however, been given the opportunity to change her mind about that, at a future date, and file documents and appear at the hearing should she wish to do so. Ms Franco said that she understands that orders may be made in these proceedings which are averse to her interests." 1. On 4 May 2023, the HCCC sent a letter to Ms Franco asking various questions, including whether she had received the documents of the HCCC and whether she intended to participate in the hearing (Exhibit 4). In a written response dated 10 May 2023, Ms Franco replied that she would not be participating in the hearing and requested that the request for AVL be removed from the correctional centre's AVL system (Exhibit 5). Ms Franco also confirmed that she agreed to the consideration of both the alleged conduct and the proposed protective orders being dealt with in the same hearing. Ms Franco confirmed that she would not be providing a response to the HCCC's materials. That response was forwarded by the HCCC to the Registry. On 23 May 2023, the Registry informed the parties: "The correspondence from the respondent stating that she does not want to attend the hearing is noted. On that basis the Registry will cancel the AVL hearing with the correctional centre. However, if the respondent changes her mind and seeks to attend the hearing, she is to notify the Registry immediately to organise an AVL link." 1. Neither the Tribunal nor the HCCC received any further communication from Ms Franco. 2. On the basis that it was apparent from the letter dated 10 May 2023 that Ms Franco was aware of the hearing and that, despite being offered the opportunity, she did not provide documents in the proceedings or want to attend the hearing, we decided to proceed with the hearing in Ms Franco's absence. Non-publication order 1. In the orders made on 17 February 2023, the Tribunal also made an order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting the disclosure of the name of the person listed in the Schedule to the complaint attached to the application, together with any information or material which is likely to lead to the identification of that person. In that regard we have referred to the person as "the patient" in these reasons. The complaint 1. Section 144 of the National Law relevantly provides as follows: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. 1. In the initial referral to the Tribunal, the HCCC referred two complaints. In the amended application, received by the Tribunal on 4 May 2023, the HCCC only pressed one of the complaints which was that Ms Franco had been convicted of the criminal offence of 'Dishonestly obtain financial advantage or cause disadvantage by deception' contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). 2. Clause 2 of Sch 5D of the National Law provides: 2 Proceedings generally [NSW] In proceedings before it, … the Tribunal is not bound to observe the rules of law governing the admission of evidence but may inform itself of any matter in the way it thinks fit. 1. In Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106, Macfarlan JA (with whom McColl JA and Sackville AJA agreed) held (at [22]-[23]): "22 In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid). 23 Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2)." 1. In Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127], Leeming JA (with whom Basten and Gleeson JJA agreed) stated: "… neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT." 1. Ms Franco did not participate in the proceedings, and accordingly the evidence on which the HCCC relied was unchallenged. In Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208, the Appeal Panel noted at [54] that courts will ordinarily accept unchallenged evidence unless it is "inherently illogical or unreliable" or "based on an incorrect or incomplete history or upon unproven assumptions" (referring to Bauskis v Liew [2013] NSWCA 297). The Conviction 1. A court attendance notice created on 26 November 2020 required Ms Franco to attend Campbelltown Local Court on 13 October 2021 (Exhibit 1, p 24). 2. The details of the offences on the court attendance notice are set out as being: 1. Dishonestly obtain financial advantage or cause disadvantage by deception between 12:01am on 19 October 2015 and 11:59pm on 7 August 2020 contrary to section 192E(1)(b) of the Crimes Act (charge 1). 2. Deal with property proceeds of crime value of the property $100,000.00 or more between 12:01am on 8 September 2016 and 11:59pm on 7 August 2020 contrary to section 193C(1) of the Crimes Act (charge 2). 1. The applicant's criminal history report discloses that charge 2 was withdrawn (Exhibit 1, p 55). 2. A certificate of conviction (Evidence Act 1995 (NSW), s 178) (Exhibit 1, p 52) confirms that on 6 May 2022, Ms Franco was convicted of dishonestly obtaining financial advantage etc by deception contrary to s 192E (1) (b) of the Crimes Act. 3. The certificate of conviction confirms that Ms Franco was sentenced to a term of imprisonment for 2 years commencing on 2 May 2022 and concluding on 1 May 2024 with a non-parole period of 15 months commencing on 2 May 2022 and concluding on 1 August 2023. Ms Franco was also ordered to pay $100,000 to the estate of the patient, who was deceased by the time of sentencing. 4. On that basis, we find that Ms Franco has been convicted of a criminal offence and the complaint is proven. Orders Sought 1. The HCCC proposes that the following orders should be made by the Tribunal in relation to the complaint. 1. An order under section 149C(4)(a) of the National Law that if the practitioner were still registered the Tribunal would have cancelled her registration. 2. An order under section 149C(4)(b) of the National Law that the practitioner is disqualified from being registered in the health profession for two years from the date of the decision. 3. An order under section 149C(4)(c) of the National Law that the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled her registration in the National Register kept by the Board. 4. An order under sections 149C(5) and 149C(5A) of the National Law that the practitioner is prohibited from providing any health service as defined in section 4 of the Health Care Complaints Act 1993 (NSW) until such time that she is re-registered as a registered nurse. 5. An order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed. 1. Sections 149A-149C of the National Law set out the orders that the Tribunal can make once it has been found that the complaint against the practitioner has been proved. 2. The power to make those orders is protective rather than punitive. 3. Section 3(2)(a) of the National Law provides that one of the objectives of the national registration scheme is: 3 Objectives … (2) … (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; … 1. In Lee v Health Care Complaints Commission [2012] NSWCA 80, the Court of Appeal held (at [20]-[21]): "20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 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 effects 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. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." 1. In Health Care Complaints Commission v Do [2014] NSWCA 307, where the Court of Appeal said (at [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." Cancellation of Registration and Disqualification Period 1. Relevantly, section 149C(4) of the National Law provides as follows: 149C Tribunal may suspend or cancel registration in certain cases [NSW] … (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. 1. Having considered the evidence, and for the reasons that follow, we find that had Ms Franco been still registered we would have cancelled her registration Background and circumstances of the offending 1. On 11 September 2020, Cecilia Cox, a manager at the NSW Ageing and Disability Commission referred a report regarding Ms Franco to the HCCC (Exhibit 1, p 11). The Ageing and Disability Commission had received a report that it has been alleged that while Ms Franco was engaged as a Care Manager at a residential aged care facility, she had commenced management of the financial affairs of the patient. In a further email dated 22 September 2020 (Exhibit 1, pp 12-13), Ms Cox provided file notes of enquiries that had been made with the residential aged care facility, the patient, and the bank which held the patient's account. She also stated that she would be referring the matter to police. 2. On 16 November 2020, the Nursing and Midwifery Council of New South Wales gave notice under s 150 of National Law advising that Ms Franco's registration has been suspended under s 150(1) (a) of the National Law (Exhibit 1, pp 14-15). Attached to the notice are written reasons for that decision (Exhibit 1, pp 16-23). The reasons disclose that it was found that Ms Franco posed a risk to public health and safety and that it was in the public interest to act because there were concerns about Ms Franco's professional integrity and her failure to maintain professional boundaries. The decision notes concern regarding Ms Franco taking over and managing the financial affairs of the patient who was an elderly and vulnerable person and whether there was informed consent on his part. 3. Included in the HCCC's documents is the admission form for the patient into the residential aged care facility (Exhibit 1, p 29). The date of the patient's admission to the aged care facility was 30 April 2014. The patient would have been 72 years old at that time. In the box marked 'person for notification', it has noted "Roxana Franco". Next to Ms Franco's name is crossed out another name which appears to be Rose, with the second name not legible. Under relationship is written 'care director.' Next to that entry is written 'friend' which has also been crossed out. 4. The form also notes the following diagnoses for the patient: * Schizo-affective disorder; * Depression; * Anxiety; * Hypotensive episodes; * Dizziness; * Giddiness; * Shortness of breath on exertion; and * Hearing impairment. 1. The HCCC's documents include a letter to the HCCC, dated 24 September 2020, from Abraham Nyanzero, the Executive Director of the residential aged care facility at the time (Exhibit 1, pp 71-73). Mr Nyanzero states that according to the patient he was not related to Ms Franco in anyway and that he has first met her when he moved into care in 2014. The patient also told Mr Nyanzero that his finances had been managed by the Public Guardian for a period and that they had assisted him to sell his house. The patient stated that Ms Franco offered to assist him with finances, and that he had agreed, but that he could not remember the exact date when he consented to the agreement. Mr Nyanzero also states that Ms Franco had stated that she was a family friend and had no legal documents to handle the patient's funds. 2. In a statement dated 9 March 2021, Constable Tom Nicholls states that from the conversations he had with the patient and Mr Nyanzero, it appeared to him that sometime in about 2015, the patient was convinced by Ms Franco to stop NSW Public Trustee and Guardian from managing his finances and instead for Ms Franco to manage his finances (Exhibit 1, pp 34-40). Constable Nicholls continues: "Since entering into that arrangement [the patient] provided a bank card to FRANCO for her to use at a Commonwealth Bank Branch. The purpose of the bank card was for FRANCO to use for paying for goods and services that the nursing home was not able to provide as part of their regular care services. At some point during the arrangement, [the patient] had stopped received bank statements so he was unaware of what transfers were occurring. [The patient] explained to me that since Franco stopped working for Kilbride Nursing Home, he received a Commonwealth Bank statement which showed his pensioner security account to have very low funds under $3000, much lower than he expected. [The patient] explained to me that around June 2015 he expected there was about $140,000 to $150,000 as a result of his house being sold to fund his accommodation at Kilbride Nursing Home and as he was being debited fortnightly to stay at Kilbride Nursing Home, he should have had more than enough funds to cover all of his expenses." 1. A notebook record of the statement given by the patient to Constable Nicholls on 12 October 2020 has also been provided to the Tribunal (Exhibit 2, pp 6-10). Relevantly, the patient stated: "I arranged for Roxanna to have her pay $9700 for any funeral through Guardian Funerals. I never arranged with Roxanna or anyone else to buy an electric chair for $3500. I never arranged with her or anyone to pay a dentist $1800 in February 2017. I never arranged with her or anyone to pay The Salvation Army for such high amounts of money. I never transferred out of my account for "savings", and I never gave anyone permission to transfer such a large amount out of my account. Between 19 October 2015 and 7 August 2020, the practitioner did, by deception, make unauthorized withdrawals from Patient A's Commonwealth Bank pensioner security account and dishonestly obtained a financial advantage and caused a financial disadvantage, namely total funds belonging to Patient A of $180,613.50." 1. The HCCC's documents also contain a psychiatric report, dated 5 February 2022, prepared by Dr Richard Furst for the purposes of the sentencing hearing of Ms Franco (Exhibit 2, pp 11-17). Dr Furst notes that Ms Franco had pleaded guilty to the offence of 'Dishonestly obtain financial advantage by deception'. The reports notes that Ms Franco is married and that she described being close to her husband and that there was no suggestion of domestic violence, excessive drinking on infidelity on his part. Ms Franco also does not drink or use drugs, and had no prior charges or convictions. Ms Franco had never been diagnosed with a major mental illness, however met the criteria for generalised anxiety disorder. Ms Franco had a lengthy history of anxiety following adverse health events. The anxiety symptoms included generalised worry, worry about her daughters, fear of failure and other physical symptoms. In relation to the offences, she stated that she met the patient at the aged care facility, and they became fairly close. Dr Furst states that Ms Franco was living beyond her means and acknowledged her actions were wrong and regretted her offending actions. Dr Furst records that Ms Franco stated: "looking back, I wish I would have made better decisions and not harmed him [the patient]… I'm not a bad person. I know he's a good person I want to pay him back". The seriousness of the offence and conduct 1. The offence with which Ms Franco was convicted was serious given that she was in a position of trust and the patient was a vulnerable elderly man. The offence she committed carries a maximum penalty of 10 years imprisonment (with a 2 year jurisdictional limit in the Local Court). We have been provided with the sentencing remarks made by the sentencing Magistrate (Exhibit 1, pp 47-51). The sentencing remarks reveal that the sentencing hearing had earlier been stood down to afford Ms Franco some further time to obtain a loan to pay the money's taken. The sentencing Magistrate was informed that those efforts were unsuccessful. The following extract of the sentencing remarks demonstrate the seriousness with which the offence was regarded by the Court: "… Ms Franco suffice to say this offence is a very serious abuse of a relationship that you had cultivated over a period of time within the environment that you found yourself as a care provider in a nursing home to [the patient]. It is noted that the breach and the abuse of that relationship and the fraudulent actions by yourself according to the statement of facts and the transaction history commenced on 17 October 2015. Only a few months after it is apparent that [the patient] had ceased his arrangements with the Public Trustee and Guardian from managing his finances and handed them over in a trusting manner with you. It is noted that you continued to abuse this position of trust for a period of nearly five years. It is noted that over that period of five years there is recorded in the transaction history which is part of the statement of facts 112 separate transactions, and the greatest of which was for just less than $20,000 or $19,568, but there were eight other transactions of $3,000 or more. The maximum penalty for this offence is ten years imprisonment. I know and I am aware of my jurisdictional limit of two years which according to Doan's case which was recently confirmed again by the Court of Criminal Appeal, the jurisdictional limit is only something to be taken into account once the Court has determined the appropriate penalty. The objective seriousness of the offence is assessed by reference to the elements of the offence and the statutory maximum which is ten years imprisonment. As I have already said, that is the legislative guidepost. The following features have been identified as influencing the assessment of the gravity of the crime, which is the amount of money involved, and this is quite significant, $165,000, and what I note in regards to that is when the victim became aware of it his account had dwindled to $3,000. In other words, less than 2% of his moneys, if one takes into account $165,000 fraudulently taken from him, he had less than 2% left. Whether the loss is irretrievable, while there is no evidence before me that the victim can possibly retrieve the money, it was a personal arrangement between himself and yourself, and whilst the matter was adjourned with the possibility of you being able to repay that in some form or other, that has not come to fruition, so it is irretrievable. The length of time over which the offences are committed, and here as I said there is 112 different transactions over a period of nearly five years. There were many opportunities for you to cease this behaviour, to realise the wrong that you were committing and perhaps to right that wrong. The motive for the crime here appears to be completely financial, for you to provide a better life for yourself and your family. There was no debt that you were trying to repay, there was no gambling addiction or drug addiction that you were trying to deal with. It was pure motivation of spending the money on yourself and your family. The degree of planning and sophistication is another factor the Court needs to take into account, and here if seems to be fairly simple, once you had gained the trust of the victim for some reason, he was not maintaining any supervision over the transactions, and it was only when he received notice that he was down to $3,000 that he became aware of the fraud committed by you. It was merely a transfer, access to his account and transferring of the money to your own benefit. A fifth element to be taken into account in assessing the gravity of the crime is to conclude whether there is an accompanying breach of trust, and I have already referred to that. You had gained this man's trust and he put his trust in you and you abused that position. As I said, the impact upon the victim is also relevant. I do not have any further information about him except that he was in the nursing home, he had a substantial amount of money available to him and that has dwindled to a very small amount. … Taking into account the discount for the plea of guilty which I have set at 20% because it was well prior to the hearing date, I would have started with a sentence of 40 months imprisonment. Reduced by 20% that would leave me with a term of imprisonment of 32 months which as I said earlier exceeds the jurisdictional limit of this Court by some eight months. Due to the limits of my sentencing powers, I do sentence you to that jurisdictional limit of two years imprisonment. …" 1. The sentencing remarks demonstrate that the offending was serious enough to warrant a sentence of 32 months imprisonment but that it was limited by the 2 year jurisdictional limit. 2. Having considered the material before us, we are also of the view that Ms Franco's offending is of a serious nature, extent and duration. Ms Franco, who was in a position of trust, withdrew funds over a long period of time from a vulnerable elderly patient in her care. The patient was 73-78 years of age at the time of the offending and his medical history indicates he had a diagnosis of depression and anxiety. 3. While the sentencing Magistrate referred to 112 transactions totalling an amount of $165,000, the HCCC submits that the evidence suggests a higher amount was involved. The HCCC provided various bank records (Exhibit 3). They include records of a Westpac and St George Bank account which belonged to Ms Franco and a Commonwealth Bank account which belonged to the patient. Those records disclose 118 transactions totalling $180,613.50 over 4 years and 10 months. 4. In relation to the amount of $9,700, the records show that amount was withdrawn from the patient's Commonwealth Bank account and deposited into Ms Franco's St George Bank account on 18 September 2015. The transfer is described as "Guardian Funerals". The HCCC conceded that the evidence demonstrates that in relation to that transaction, the patient may have authorised it. That is because in the email sent from Ms Cox on 22 September 2020 (referred to at [29] above), Ms Cox records in a file note after a visit to the patient: "He said that she was meant to buy him clothes and organise his funeral Jeena advised him that his funeral has been paid for" 1. The notes from Constable Nicholls (extracted at [34] above] also support that the patient asked Ms Franco to pay $9,700 for any funeral through Guardian Funerals. 2. However, there is no evidence to demonstrate that Mr Franco ever paid out the monies from her account to Guardian Funerals. 3. Even if we were to accept that Mr Franco had authorised the payment of $9,700 for the patient's funeral arrangements, there is no evidence to suggest that he authorised the subsequent amounts that were transferred from his account to Ms Franco's account, many of which are described as 'sundries'. Even taking into consideration the lower amount of $165,000, the amount dishonestly obtained by Ms Franco is a substantial amount of money. 4. Ms Franco's offending conduct caused significant harm to a vulnerable elderly patient in her care. 5. As the sentencing Magistrate stated, by the time the transfers were uncovered, the patient had less than 2% of his money left in his account. At the time of sentencing the loss had not been retrieved, despite an adjournment being granted to allow Ms Franco to make enquiries to obtain a loan. 6. The conduct of Ms Franco left the patient, the subject of her conduct, distressed. The police fact sheet notes: "The victim only became aware of the missing funds after he had recently received a Commonwealth Bank statement and noticed that he had less than $3,000 left in his account which was highly unexpected and caused him great distress and as a result he altered Estia Health Staff." 1. It should also be noted that while the order for compensation made by the sentencing Magistrate was for an amount of $100,000, that was because that is the jurisdictional limit of the Local Court. However, the sentencing Magistrate did remark that the amount was far less than the amount the subject of the charge. There is no evidence before us which would suggest that any of the amounts has been paid to the estate of the patient since the making of the compensation order. 2. In summary, the offence and the circumstances in which it was committed are serious. Breaches of professional obligations 1. Further, as a registered nurse and Care Director, Ms Franco was responsible for safekeeping belongings and funds of the patient. 2. Section 41 of the National Law provides the following: 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession. 1. Clause 1.2 of the Nursing and Midwifery Board of Australia Code of Conduct for Nurses, effective 1 March 2018 (the Code), required that (Exhibit 1, p 190): "1.2 Lawful behaviour Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must a. respect the nurse-person professional relationship by not taking possessions and/or property that belong to the person … c. not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration …" 1. Clause 4.5 of the Code relates to financial arrangements and gifts and relevantly required that (Exhibit 1, p 197): "4.5 Financial arrangements and gifts It is necessary to be honest and transparent with people. To ensure there is no perception of actual or personal gain for the nurse, nurses must: … b. only accept token gifts of minimal value that are freely offered and report the gifts in accordance with local policy c. not accept, encourage or manipulate people to give, lend, or bequeath money or gifts that will benefit a nurse directly or indirectly d. not become financially involved with a person who has or will be in receipt of their care, for example through bequests, powers of attorney, loans and investment schemes …" 1. Ms Franco's offending was inconsistent with her professional and ethical obligations and contrary to various standards and codes. Other matters 1. There are also other relevant matters which in our view warrant cancellation of Ms Franco's registration as a practitioner: 1. The offence was committed from 2015 until it was discovered in 2020. It appears that Ms Franco's offending only stopped in August 2020 because the patient became concerned, and the bank cancelled his card. 2. Ms Franco remains in prison and there has not been a significant time which has elapsed from when the offending occurred. 3. Ms Franco told Dr Furst that she was motivated to financially provide for her daughters, but that she had stable accommodation, adequate income and a supportive husband. Ms Franco was paid as a full time Care Director at Estia. Ms Franco resigned from Estia and a letter of appointment to Advantaged Care dated 25 November 2019 indicates that her total salary package was $153,820.00 (Exhibit 1, p 141). Yet she continued to offend into 2020. 1. The serious nature of Ms Franco's offending would cause members of the public to fear placing themselves, or their loved ones, in Ms Franco's care. 2. In our view, the complaint must be regarded as a serious breach particularly when combined the fact that the conduct occurred over a long period of time and was not inadvertent or based on ignorance. 3. For those reasons, we are of the view that in the circumstances, and for the protection of the public and the maintenance of proper professional standards, Ms Franco's registration should be cancelled if she were still registered: National Law, s 149C(4)(a). 4. In our view, a period of 2 years is an appropriate period for disqualification: National Law, s 149C(4)(b). Ms Franco should have known her conduct was wrong. Obtaining money by deception of a patient in her care is a very serious matter. There is limited evidence before us to demonstrate the steps Ms Franco has taken to ensure that she does not repeat her offending in the future. Ms Franco remains in jail until at least August 2023. A disqualification period of 2 years will allow sufficient time for Ms Franco to complete appropriate treatment, if she has not already done so, and demonstrate that she is attempting to make reparation to the estate of the patient. 5. Further, we are of the view, for the protection of the public, that an order should be made for the National Board to record in the National Register kept by the Board the fact that the Tribunal would have cancelled the person's registration: National Law, s 149C(4)(c). Prohibition Order 1. If the Tribunal would have suspended or cancelled the practitioner's registration, the Tribunal then also has the power to make a prohibition order if it is satisfied that the practitioner poses a substantial risk to the health of members of the public. 2. Section 149C(5), (5A) of the National Law provides as follows (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note— Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. 1. Before considering whether to make a prohibition order, the Tribunal must be satisfied that Ms Franco poses "a substantial risk to the health of members of the public". That is a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75]. 2. Dr Furst, in his psychiatric report, made recommendations for a treatment for Ms Franco to remain under the care of a GP, engage in a mental health care plan for referral to clinical psychologist or anxiety clinic and receive medication. 3. In relation to her progress, the report noted that Ms Franco's husband remained supportive at the time, and she also has friends and support from her local church. 4. The report notes that the reasons for her offending are not clear, however it appeared that her anxiety disorder, including the cognitive distortions of overestimating her risk of dying and excessive worry about her health, her children and what they needed, maintained her offending behaviour throughout the course of the period of her offending between 2015 and 2020. 5. Dr Furst regarded Ms Franco's general risk of reoffending as significantly lower than the average offender. However, her main risk, were she to offend again, would likely be some form of dishonesty offence. Dr Furst was of the view that the treatment he had recommended would likely be "protective regarding lowering" Ms Franco's future risk of re-offending. 6. Dr Furst's report was prepared for the purposes of sentencing and was written on 5 February 2022, over a year ago. We have no evidence before us about whether Ms Franco has undertaken any of Dr Furst's recommendation regarding further treatment. 7. While Dr Furst notes that Ms Franco told him that she regretted her offending actions, we have no evidence from Ms Franco directly to demonstrate her insight and remorse or how she has addressed any of the factors that may have led to her misconduct. We also have no evidence regarding Ms Franco's relationships since she was sentenced or what support she may have. 8. Without that information, we consider that Ms Franco would pose a substantial risk to the health of members of the public. Ms Franco is first eligible for parole on 1 August 2023. The sentencing remarks indicate that despite withdrawing the amounts from the patient's account, she has accrued a credit card debt of $50,000, and despite making attempts to obtain loans, she has been unable to pay back any of the amounts taken from the patient. Those financial pressures, together with the lack of evidence about the steps she had taken to deal with her anxiety, mean that Ms Franco may be tempted to gain access to patient money for herself or her family if she is permitted to work with vulnerable patients in the future. 9. For those reasons, we are of the view that it is appropriate to make the protective order disqualifying Ms Franco from being registered in the profession of nursing for a period of 2 years. Costs 1. The Commission seeks an order that the Ms Franco pay the Commission's costs as agreed or assessed. 2. The Tribunal has power to order costs, as conferred by clause 13 of Schedule 5D of the National Law. As a general rule, costs of proceedings before the Tribunal follow the event unless there has been some disentitling conduct by the HCCC in the conduct of the proceedings: Health Care Complaints Commission v Philipiah [2013] NSWCA 342. 3. The HCCC proceeded with this referral in an appropriate way and there was no disentitling conduct in the way that the HCCC conducted the proceedings. Orders 1. If the respondent were still registered, the Tribunal would have cancelled her registration. 2. The respondent is disqualified from being registered in the profession of nursing for a period of two years from these orders. 3. The Nursing and Midwifery Board of Australia is to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. 4. The respondent is prohibited from providing any health service as defined in section 4 of the Health Care Complaints Act 1993 (NSW) until such time that she is re-registered as a registered nurse. 5. The respondent is to pay the Health Care Complaints Commission's costs of the proceedings, 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 Amendments 27 June 2023 - Paragraph 20 amended – "convicted of a criminal finding for an offence" changed to "convicted of a criminal offence". Paragraph 44 amended – In the first sentence, "there is evidence to suggest" changed to "there is no evidence to suggest". Paragraph 60 amended – "would have suspended or cancelled the person's registration" changed to "would have cancelled the person's registration". 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: 27 June 2023