Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Pittard [2023] NSWCATOD 97 Hearing dates: 30 June 2023 Date of orders: 06 July 2023 Decision date: 06 July 2023 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Prof E M Chiarella AM, Senior Member D Armitage, Senior Member Dr R Leontini, General Member Decision: (1) Complaint One is established. (2) Complaint Three is established. (3) Costs are reserved. Catchwords: OCCUPATIONS – nurses – misconduct and discipline – unsatisfactory professional conduct – underlying conduct admitted Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 130, 139B(1)(b), 144 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Justin John Pittard (Respondent) Representation: Counsel: C Akthar (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2023/00015294 Publication restriction: Nil REASONS FOR DECISION Introduction 1. This was the Stage 1 hearing of the three complaints of the Health Care Complaints Commission (the Commission) brought against the respondent (the practitioner). 2. During the course of the hearing, Complaint Two was withdrawn. 3. For the following reasons, we find Complaints One and Three established. 4. The matter will be listed for directions in preparation for a Stage 2 hearing. Evidence 1. The principal evidence relied on by the Commission was its bundle of materials filed on 26 June 2023, which was admitted without objection and marked as Exhibit 2. 2. Exhibit 2 included but was not limited to various documents relating to the respondent's various attendances at the Local Court of NSW (including but not limited to court attendance notices, facts sheets and witness statements, and correspondence relating to the various proceedings), various documents relating to the s 150 proceedings conducted by the Nursing and Midwifery Council (the Council) against the respondent, and Codes published by the Nursing and Midwifery Board (the Board). 3. No documents were filed by the practitioner. He did however attend the hearing, where he was sworn and gave some brief oral evidence. Where relevant, that evidence will be referred to below. Complaint One 1. Complaint One reads as follows: COMPLAINT ONE Contrary to section 144(a) of the National Law, the practitioner was convicted of criminal offences and/or made the subject of criminal findings in NSW. BACKGROUND TO COMPLAINT ONE The practitioner first registered as a nurse in 1998 after obtaining a Bachelor of Nursing. The practitioner has been employed at Prince of Wales Public Hospital since 8 August 1998 and is currently employed in the Adult Intensive Care Unit (ICU). On 1 July 2007, the practitioner was charged with drive vehicle recklessly/furiously speed/manner dangerous, contrary to section 42(2) of the Road Transport (Safety and Traffic Management) Act 1999 (H 32381587). The maximum penalty for this offence was 9 months imprisonment and/or 20 penalty unit. On 17 June 2016, the practitioner was charged with the offence of assault occasioning actual bodily harm (domestic violence related), contrary to section 59(1) of the Crimes Act 1900 ('the offence; H 61595734). The maximum penalty for the offence was 7 years imprisonment. The practitioner was sentenced to a Conditional Release Order for 18 months, without conviction, in accordance with section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999. On 7 May 2018 the practitioner was convicted of the offence and sentenced at Sutherland Local Court. The practitioner appealed to the Sydney District Court. The appeal was heard on 8 November 2018. PARTICULARS OF COMPLAINT ONE 1. On 8 November 2018 at the Sydney District Court, the practitioner was found guilty of the offence of assault occasioning actual bodily harm (domestic violence related), namely when he forced his 7-year-old daughter to bite her 8-year-old sister on her lower left arm, on the evening of 16 June 2016, contrary to section 59(1) of the Crimes Act 1900. 1. The practitioner gave sworn evidence to the Tribunal admitting the conduct set out in the Particulars to Complaint One. However, he informed the Tribunal, and the Commission accepted, and the Tribunal finds, that he was not convicted of this offence. 2. Section 144 of the Health Practitioner Regulation National Law (NSW) (the National Law) relevantly provides: 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 circumstances, we find that Complaint One is proved, in that contrary to s 144(a) of the National Law, the practitioner was made the subject of criminal findings in NSW. Complaint Three 1. Complaint Three reads as follows: COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 138B(1)(b) of the National Law in that the practitioner contravened section 130(1) of the National Law. BACKGROUND TO COMPLAINT THREE The background to Complaint One in respect of H 61595734 is repeated and relied upon. On 22 May 2018, the practitioner was charged (H 70749667) with an offence punishable by 12 years imprisonment or more, namely assault occasioning actual bodily harm (domestic violence related), contrary to section 59(1) of the Crimes Act 1900. The maximum penalty for this charge was seven years imprisonment. On 26 November 2020, the practitioner was charged with three offences punishable by 12 months imprisonment or more, in relation to charge number H 75822620: a. Contravene prohibition or restriction in an apprehended domestic violence order, contrary to section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. The maximum penalty for this charge was two years imprisonment; b. Common assault (domestic violence related), contrary to section 61 of the Crimes Act 1900. The maximum penalty for this charge was two years imprisonment; c. Stalk or intimidate intending to cause fear of physical or mental harm (domestic violence related), contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The maximum penalty for this charge was five years imprisonment. PARTICULARS OF COMPLAINT THREE H 61595734 1. The practitioner contravened section 130(1) of the National Law in that he failed to notify the National Nursing and Midwifery Board (the National Board') in writing within seven days of 17 June 2016 after being charged with an offence punishable by 12 months imprisonment or more, namely assault occasioning actual bodily harm (domestic violence related) contrary to section 59(1) of the Crimes Act 1900. 2. The practitioner contravened section 130(1) of the National Law in that he failed to notify the National Board in writing within seven days of 8 November 2018 after being subject to a finding of guilt for an offence punishable by 12 months imprisonment or more, namely assault occasioning actual bodily harm (domestic violence related) contrary to section 59(1) of the Crimes Act 1900. H 70749667 3. The practitioner contravened section 130(1) of the National Law in that he failed to notify the National Board within seven days of 22 May 2018 after being charged with an offence punishable by 12 months imprisonment or more, namely assault occasioning actual bodily harm (domestic violence related), contrary to section 59(1) of the Crimes Act 1900. H 75822620 4. The practitioner contravened section 130(1) of the National Law by failing to notify the National Board within seven days of 23 November 2020, after being charged with the following offences punishable by 12 months imprisonment or more: i. contravening a prohibition or restriction in an apprehended domestic violence order, contrary to section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007; ii. common assault (domestic violence related), contrary to section 61 of the Crimes Act 1900; iii. stalking or intimidation intending to cause fear of physical or mental harm (domestic violence related), contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The conduct in any Particulars in Complaints 2 and 3 are repeated and relied upon individually and cumulatively as amounting to unsatisfactory professional conduct. 1. The practitioner gave sworn evidence to the Tribunal admitting the conduct set out in the Particulars. However, he did not admit that Complaint Three was established. 2. Section 138B(1)(b) of the National Law relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (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. 1. As we have noted, the practitioner admitted that conduct underlying Complaint Three. In other words, he admitted that on the four occasions described above he contravened s 130(1) of the National Law. He will argue that he in fact informed the Board of being charged with the four offences, but that he was late in doing so. As we told the practitioner during the hearing, that is a matter he may wish to raise at the Stage 2 hearing. 2. The respondent has shown much candour. 3. Nevertheless, given his admissions of the Particulars and the definition of unsatisfactory professional conduct in s 139B(1)(b) of the National Law, it is axiomatic that Complaint Three is proved. Conclusion 1. For the above reasons, we find Complaints One and Three proved. Costs 1. The Commission seeks its costs. 2. We will reserve our decision on costs pending the outcome of the Stage 2 hearing. Other 1. As indicated above, this matter will be stood over for directions in readiness for a Stage 2 hearing at which we will determine the appropriate protective order to be made. 2. For the reasons we explained in the hearing, the practitioner is encouraged to seek legal advice about the material he should place before the Tribunal at the Stage 2 hearing. Orders 1. The Tribunal orders that: 1. Complaint One is established. 2. Complaint Three is established. 3. Costs are reserved. ********** 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 28 August 2023 - paragraph [17]. typographical error 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: 28 August 2023