Health Care Complaints Commission v Torroba [2023] NSWCATOD 109
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Torroba [2023] NSWCATOD 109
Hearing dates: 1 – 2 June 2023
Date of orders: 26 July 2023
Decision date: 26 July 2023
Jurisdiction: Occupational Division
Before: H J Dixon SC, Senior Member
J Haines, Senior Member
J Harrington, Senior Member
J Kearney, General Member
Decision: (1) The Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW).
(2) The Respondent is guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW).
(3) Pursuant to s 149C of the Health Practitioner Regulation National Law (NSW), the Respondent's registration as a health practitioner is suspended for a period of nine months.
(4) Pursuant to s 149A of the Health Practitioner Regulation National Law (NSW), there is imposed in relation to the Respondent's registration as a nurse the following conditions.
The practitioner must:
1a. not practise as a registered nurse until a mentor has been approved by the Council;
b. undertake mentoring by the approved mentor in accordance with the Council's Compliance Policy – Mentor (as varied from time to time) and the Mentor Approval Position Statement, and as subsequently determined by the appropriate review body;
c. meet with the mentor for a minimum of one hour on a monthly basis for a minimum period of three months, and thereafter at a frequency to be determined by the Council;
d. provide a mentoring plan, which is developed with the mentor and outlines the specific objectives and outcomes of the mentoring arrangement, for approval by the Council within fourteen (14) days of receiving written approval of the mentor;
e. at each monthly meeting with the mentor, discuss at least the following topics:
i. professional behaviour and boundaries, including Code of Conduct and use of social media; and
ii. ethics and professional practice;
f. authorise the approved mentor to provide written reports to the Council at quarterly intervals, or as specified by the Council;
g. authorise the Council to provide the approved mentor with a copy of the Tribunal's decision in this matter.
2. Not practise until a supervisor has been approved by the Nursing and Midwifery Council of NSW.
3. Not undertake agency nursing.
4. Not be the nurse in charge of any shift, ward or unit.
5. Forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of the date of imposition of these conditions, that the practitioner has provided a copy of full conditions to his nursing employer/s.
6. Within seven (7) days of a change in the nature or place of practice, forward evidence to the Nursing and Midwifery Council of NSW that he has provided a copy of full conditions to the nursing employer/s.
7. Authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions.
8. Only be employed as a nurse in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions.
(5) The Respondent shall pay the Applicant's costs under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) as agreed or assessed.
Catchwords: OCCUPATIONS – nurses – misconduct and discipline –whether practitioner guilty of unsatisfactory professional conduct and professional misconduct – cancellation of registration or suspension with conditions
Legislation Cited: Health Care Complaints Act 1993 (NSW), s 90B(1)
Health Practitioner Regulation National Law (NSW), ss 139B(1)(l), 139E, 144(d), 149A, 149C(1)(b), Sch 5D cl 13
Cases Cited: Amaca Pty Ltd (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151
Browne v Dunn (1893) 6 R. 67
Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186
Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122
Health Care Complaints Commission v Bolton [2021] NSWCATOD 160
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53
Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66
Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263; [2022] NSWCA 60
Qasim v Health Care Complaints Commission [2015] NSWCA 282
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Emil Martin Torroba (Respondent)
Representation: Solicitors:
Health Care Complaints Commission (Applicant)
New South Wales Nurses and Midwifes' Association (Respondent)
File Number(s): 2022/00362671
Publication restriction: It is noted that the Tribunal on 23 December 2022 issued a non-publication order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) in respect of the persons identified as Colleagues and Person D in the Schedule to the Complaint.
Reasons for decision
1. By application for disciplinary findings and orders dated 1 December 2020, and as amended by leave of the Tribunal on 1 June 2023, the Health Care Complaints Commission ("the Commission") sought orders against Emil Martin Torroba ("the Respondent") as follows:
1. Cancellation of the Respondent's registration pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) ("the National Law") with a non-review period of 1-2 years;
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 Director of Proceedings of the Commission had determined to prosecute the complaint against the Respondent pursuant to s 90B(1) of the Health Care Complaints Act 1993 (NSW) alleging that the Respondent had been guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law and/or professional misconduct within the meaning of s 139E of the National Law and/or the Respondent has an impairment under s 144(d) of the National Law. In the proceedings before us, the Commission did not press any claim in respect of impairment against the Respondent.
Complaints as Amended
1. The Commission raised two complaints against the Respondent as follows:
1. Complaint One alleges that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the Respondent has engaged in improper and/or unethical conduct relating to the practice or purported practice of nursing. The amended complaint was supported by seven particulars of complaint which we set out below.
2. Complaint Two alleges that the Respondent is guilty of professional misconduct under s 139E of the National Law in that the Respondent has:
1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or
2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of a practitioner's registration.
In support of this complaint, the Commission relied upon six particulars pleaded in respect of Complaint 1, which we deal with below.
Background to All Complaints
1. The Respondent, born in 1973, obtained a Bachelor of Nursing from the University of Western Sydney in 2009 and was first registered as a Registered Nurse (RN) in 2010. From 2010 to 2011, the Respondent worked in the New Graduate Program in the emergency department at Westmead Hospital. From 2011 until 2017, the Respondent continued working as a nurse in the emergency department at Westmead Hospital. From 2017 until his resignation on 17 March 2021, the Respondent worked as a nurse in the Health care for Older People Earlier Unit ("HOPE unit"), and the Old Persons Review and Assessments ward ("OPERA ward"), within the Geriatric Medicine Department at Westmead Hospital ("the hospital").
Background to Complaint One
1. In November 2020, the Respondent was employed as a Senior Registered Nurse in the OPERA ward. At various times, the Respondent was the Team Leader on the ward.
2. The complaints concern conduct on the part of the Respondent directed at three female colleagues who are described in these proceedings as Colleague A, an enrolled nurse born in 1999 who commenced working in the OPERA ward in March 2020, Colleague B, an enrolled nurse born in 1997 who commenced working in the OPERA ward in early 2019, and Colleague C, a registered nurse who commenced working in the OPERA ward in August 2019.
3. There operated a Facebook Messenger group for some nurses of the OPERA ward where staff discussed shifts, asked for overtime, etcetera. It was not an official message group but staff, including managers, used it to communicate from time to time.
4. At some stage, the Respondent created a Facebook message group with Colleague A and Colleague B. Colleague C also participated in this group. It was the use of this specific Facebook message group which gave rise to Particular 2 in Complaint One, to which we will return to in due course.
Particulars to Complaint One
1. The particulars as amended relied upon by the Commission are as follows:
"1. Between 1 August 2019 and 6 October 2019, while working at the OPERA ward, the practitioner made inappropriate comments to Colleague C, in that the practitioner:
a. said words to the effect of: "You look like a person that would fuck like a rabbit";
b. addressed Colleague C as "rabbit" in place of her given name.
1A. Between about 1 August 2019 and 6 October 2019, while working at the OPERA ward, the practitioner acted inappropriately in that:
a. on more than one occasion he pinched Colleague C on her buttocks;
b. on more than one occasion he smacked Colleague C on her buttocks.
2. Between November 2019 and December 2020, the practitioner sent inappropriate messages using Facebook Messenger to Colleague A, Colleague B and/or Colleague C that included:
a. at least 28 sexually explicit images, including women photographed in sexually suggestive positions and images depicting naked women and male genitals;
b. a video depicting a female body wearing surgical masks over her breasts, with the written words "Be sure to wear your mask correctly!";
c. an image depicting a man pointing at the camera, with the written words "Why don't vegetarians moan during sex? Because they don't want to admit that a piece of meat makes them happy".
3. Between about 30 March 2020 and 15 November 2020, while working at the OPERA ward, the practitioner acted inappropriately in that:
a. on more than one occasion, the practitioner hugged Colleague A without Colleague A's consent;
b. on more than one occasion, the practitioner ran his hand down Colleague A's arm or back;
c. he made inappropriate comments to Colleague A in relation to the practitioner's personal sex life.
4. On 16 November 2020 between 0730 and 0800 hours at the hospital, the practitioner, while walking past Colleague A standing at a desk in the OPERA ward, acted inappropriately in that he:
a. put his hand on Colleague A's buttocks;
b. squeezed Colleague A's buttocks.
5. On 20 November 2020 at approximately 1535 hours, the practitioner inappropriately sent a message using Facebook Messenger to Colleague B, that included the words:
'Just don't say anything'.
in circumstances where, earlier that same day, Person D, a Human Resources Business Partner at the hospital, had verbally notified the practitioner of the incident outlined in Complaint One, particular 4 including that he not discuss the incident with any other person.
6. By his conduct in Particulars 1 to 5, individually or in any combination, the practitioner failed to comply with:
a. the Nursing and Midwifery Board 'Code of Conduct for Nurses' (March 2018);
b. the NSW Health Code of Conduct (December 2015).
The conduct in any of Particulars 1 to 5 is repeated and relied upon individually or in combination with other particulars for the purposes of s 139B(1)(l)."
Particulars of Complaint Two
1. Complaint Two is particularised as follows:
"1. Particulars 1, 1A, 2, 3, 4 and 5 of Complaint One on their own justifies a finding of professional misconduct.
2. In the alternative, when two or more of any of Particulars 1, 1A, 2, 3, 4 and 5 in Complaint One are taken together, a finding of professional misconduct is justified."
Statement of Agreed Facts
1. The parties agreed an extensive set of agreed facts, recorded in writing and tendered into evidence as follows:
"The Practitioner's Background
1. The practitioner was born [in] 1973.
2. In 1994, the practitioner worked as a Patient Care Technician at Osceola Regional Hospital in Florida USA.
3. In 2003, the practitioner worked as a disability carer at Edmen Agency.
4. In 2006, the practitioner worked as a Casual Pool Undergraduate Nurse at Westmead Hospital.
5. In 2009, the practitioner completed a Bachelor of Nursing at the University of Western Sydney.
6. On 5 February 2010, the practitioner was registered as a nurse in New South Wales.
7. On 8 February 2010, the practitioner began working as a registered nurse at Westmead Hospital through the New Graduate Program.
8. In 2011, the practitioner began working at Westmead Hospital as a full-time registered nurse in the emergency department.
9. From 2017, until his resignation on 17 March 2021, the practitioner worked as a nurse in the Health care for Older People Earlier Unit ('HOPE unit') and the Old Persons Review and Assessments Ward ('OPERA ward') within the Geriatric Medicine Department at Westmead Hospital."
The Complaint
10. On 15 August 2019, Colleague C began working in the OPERA ward at Westmead Hospital.
11. The practitioner was a Senior Registered Nurse in the OPERA ward when Colleague C started working there.
12. Colleague C regarded the practitioner as a colleague. She recalls that he introduced himself to her as 'Uncle Emil - a big soft teddy-bear'.
Particular 1
13. Between 15 August 2019 and 6 October 2019, Colleague C and the practitioner were working together on a morning shift. Colleague C was walking back from the nursing station when the practitioner stopped her in the corridor and said 'I'm going to call you rabbit'.
14. Colleague C asked 'why?' The practitioner said 'because you look like you would fuck like a rabbit'. He then began calling her 'rabbit'.
Particular 1A – not admitted
Particular 2
15. Between November 2019 and December 2020, the practitioner sent inappropriate messages using Facebook Messenger to Colleagues A, B and/or C.
16. On 22 May 2020, the practitioner sent 22 sexually explicit and obscene images on the group chat that included women photographed in sexually suggestive positions and images depicting naked women and male genitals.
17. On 11 June 2020, the practitioner sent a sexually explicit and obscene video on the group chat that depicted a naked body squashing the face of another person, with the caption 'I can't breath [sic]'.
18. On 20 July 2020, the practitioner sent a sexually explicit and obscene video on the group chat depicting a female body wearing surgical masks over her breasts, with the written words 'Be sure to wear your mask correctly!'.
19. On 28 July 2020, the practitioner sent a sexually explicit and obscene image on the group chat that depicted male and female genitals with the caption 'Results from the first Corona Vaccin [sic] seem to be positive'.
20. On 8 August 2020 at 3:02pm during his shift, the practitioner sent a sexually suggestive and obscene image on the group chat that depicted a female without underwear with the caption 'very irresponsible of her … she is not wearing a face mask!!'.
21. On 14 August 2020, the practitioner sent a sexually suggestive and obscene image on the group chat that depicted two cats and a burger looking in between a woman's legs with the caption 'I don't see the resemblance … me neither … I totally see it'.
22. On 26 August 2020, the practitioner sent a sexually suggestive and obscene image on the group chat that depicted a man pointing at the camera with the caption 'Why don't vegetarians moan during sex? Because they don't want to admit that a piece of meat makes them happy'.
23. On 27 August 2020 at 3:40pm during his shift, the practitioner forwarded the above sexually suggestive image on the group chat.
24. On 20 September 2020, the practitioner sent a sexually suggestive and obscene image on the group chat that depicted two women with large breasts and exposed cleavage, with the caption 'Which of these two have the better eyes?'.
25. On 24 September 2020, the practitioner sent a sexually suggestive and obscene image on the group chat that depicted actor Jack Nicholson with the caption 'So I'm banging this Asian chick I picked up at the bar and the whole time she's screaming this other guys [sic] name … who the hell is this "Ron hole"'.
26. On 2 October 2020, the practitioner sent a sexually explicit and obscene image on the group chat that depicted a person hosing a woman, naked from the waist down with the caption 'When the last guy she dated was from Penrith'.
27. In October 2020, the practitioner sent an obscene image on the group chat depicting a woman with the caption 'Looks like she studied all night for her hepatitis test and still got a C'.
28. On a date between November 2019 and December 2020, the practitioner sent five sexually explicit and obscene images depicting, variously, a penis and naked female body.
Particular 3
29. On 30 March 2020 Colleague A started working as an Enrolled Nurse at the OPERA ward. The practitioner was a Senior Registered Nurse on the same ward. Colleague A regarded the practitioner as a colleague, although he was sometimes the appointed team leader.
30. On more than one occasion, the practitioner hugged Colleague A without Colleague A's consent.
31. On more than one occasion, the practitioner ran his hand down Colleague A's arm or back.
32. The practitioner often talked to Colleague A about personal things. He talked about how much he hated his wife and how unhappy he was. He talked about his sex life. This conversation made Colleague A feel uncomfortable. She tried to end the conversations as soon as possible.
Particular 4
33. On 16 November 2020 Colleagues A and B were working the morning shift together. They were attending to the 8am medication run. The practitioner had just finished a night shift. As the practitioner was leaving, he touched Colleague B on the shoulder.
34. The practitioner then put his hand on Colleague A's bottom and squeezed it.
35. On 19 November 2020 Colleague A lodged an incident report against the practitioner.
Particular 5
36. On 20 November 2020, Person D informed the practitioner of the allegations made by Colleague A and he was directed not to contact the parties involved in the incident.
37. At 1:26pm on 20 November 2020, the practitioner sent the following messages to Colleague B on Facebook Messenger:
'I am so annoyed man',
'Accusations of me being inappropriate',
'Human Resources now involved',
'I am so annoyed'.
38. At 3:35pm on 20 November 2020, the practitioner sent a message to Colleague B on Facebook Messager that said, 'Just don't say anything'.
Particular 6
39. The NSW Health Code of Conduct applied to the practitioner at the time. In conducting himself in the manner as outlined in particulars 1-5, the practitioner has breached the following clauses of the Code:
4.1.2 Treat all other members of staff (irrespective of whether they are at the same level of seniority, or more senior or junior) in a way that promotes harmonious and productive working relationships, and a collaborative teamwork approach;
4.1.3 Not bully or harass other staff, patients or members of the public, or discriminate against them on the basis of their sex, race, ethnic or ethno-religious background, marital status, pregnancy, disability, age, homosexuality, transgender or carers' responsibilities;
4.2.3 Ensure that their actions and decisions are not influenced by self-interest or considerations of personal gain or other improper motives;
4.3.8 Comply with all lawful and reasonable directions given by their managers or other members of staff authorised to give them;
4.3.9 Comply with all applicable NSW Health policies and procedures, and those of the NSW Health agency where they work;
4.3.11 Observe all laws, professional codes of conduct and ethics relating to their profession;
4.3.13 Avoid conduct that could bring NSW Health or any of its staff, patients or clients into disrepute, including when using social media;
4.3.14 Act in a way which protects and promotes the interests of NSW Health and the particular NSW Health agency where they work.
40. The practitioner has failed to comply with the NSW Health Policy on Prevention and Management of Workplace Bullying in NSW Health which stipulates sexual harassment as unacceptable workplace behaviour. Sexual harassment is 'unwelcome conduct of a sexual nature by which a reasonable person would be offended humiliated or intimidated. Sexual harassment is unlawful and can be reported to NSW Police. Relevantly, sexual harassment includes behaviours such as:
a. Sending obscene communications or displaying sexually suggestive materials
b. Sexually explicit jokes
c. Intrusive questions or suggestive remarks about a person's sexual or private life
d. Unwelcome touching'.
41. The practitioner has also failed to comply with the Nursing and Midwifery Board of Australia Code of Conduct for Nurses, relevantly clauses 1.2 Lawful behaviour and 3.4 Bullying and Harassment.
Investigation
42. On 23 November 2020, the NSW Western Sydney Local Health District (WSLHD) formally notified the practitioner of the allegations of misconduct.
43. On 24 November 2020, the practitioner responded to the allegations via email.
44. On 4 December 2020, the practitioner provided a written response addressing the allegations outlined in the 23rd November correspondence.
45. On 9 December 2020, the NSW WSLHD notified the practitioner of additional allegations of misconduct.
46. On 15 December 2020, the NSW WSLHD notified the practitioner of further additional allegations of misconduct.
47. On 17 December 2020, the practitioner attended a misconduct interview with the Head of Human Resources at Westmead Hospital and the Deputy Director of Nursing at Mount Druitt Hospital.
48. On 17 March 2021, the practitioner terminated his employment at Westmead Hospital.
49. On 10 July 2021, the Director of Nursing and Midwifery at Westmead Hospital made a mandatory notification to the Nursing and Midwifery Council ('the Council') regarding the practitioner's conduct. The investigation conducted by Westmead Hospital found the allegations substantiated.
50. On 26 July 2021, the practitioner attended a s 150 hearing [under the National Law] before the Council.
51. On 27 July 2021, the Council concluded that the practitioner posed a risk to public health or safety and it was in the public interest that the following conditions be imposed on the practitioner's registration:
1) To practice under the direct supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body.
a) To nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council.
b) To authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council.
2) Not to practise until a supervisor has been approved by the Nursing and Midwifery Council of NSW.
3) Not to undertake agency nursing.
4) Not to be the nurse in charge of any shift, ward or unit.
5) To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of 27 July 2021, that the practitioner has provided a copy of full conditions to his nursing employer/s.
6) Within seven (7) days of a change in the nature or place of practice, the practitioner is to forward evidence to the Nursing and Midwifery Council of NSW that he has provided a copy of full conditions to the nursing employer/s.
7) To authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. He must only be employed as a nurse in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions.
52. On 29 September 2021, the Commission sent a s 28 letter to the practitioner.
53. On 26 April 2022, the Commission sent a s 40 letter to the practitioner.
54. On 31 May 2022, the practitioner requested a review of Council's s 150 decision and the conditions imposed on his registration.
55. On 11 July 2022, the practitioner attended a s 150A hearing (under the National Law) before the Council.
56. On 26 July 2022, the Council decided to affirm the conditions already in place on the practitioner's registration due to 'the seriousness of the complaint, the matter having been referred to the Director of Proceedings, as well as the practitioner's lack of insight and what appears to be a lack of remediation taken by the practitioner to amend his behaviour'.
57. On 1 December 2022, the Commission filed an Application for Disciplinary Orders against the practitioner."
(footnotes omitted)
Evidence Tendered in the Tribunal
1. The Commission tendered into evidence the following:
1. A bundle of documents filed and served on 13 April 2023;
2. The Statement of Evidence of Colleague C dated to April 2023;
3. A Statement of Evidence of Russell Roxburgh, a nurse unit manager of the OPERA ward dated 17 March 2023 with a diary note attachment for 8 October 2019;
4. Additional documents including the evidentiary certificate from Australian Health Practitioner Regulation Authority ("AHPRA");
5. A Statement of Eleni Georgiadis dated 29 May 2023 with attachments;
6. A bundle of additional documents including a letter to the Respondent regarding the termination of his employment dated 8 July 2021.
1. The Respondent tendered a bundle of documents into evidence being:
1. A reply to the application for disciplinary proceedings dated 24 March 2023 containing a number of admissions to the particulars;
2. A document entitled "Reflection" of March 2023;
3. Two character references, one from Mr Shae Chambers dated 8 March 2023 and another from Mr Ervin Haga dated 7 March 2023;
4. A medical treatment plan, a document setting out the Respondent's education and work history and the names of previous referees, a certificate of completion of training in sexual harassment dated 22 September 2021 and details of his enrolment at a course conducted by the University of Melbourne on professional boundaries which is to commence in November 2023.
Relevant Legislative Provisions
1. The relevant provisions of the National Law relied upon are as follows:
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 --
…
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, "professional misconduct" of a registered health practitioner means–-
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Improper or Unethical Conduct
1. In Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [86]-[89], this Tribunal (as differently constituted) observed:
"86. The words 'unethical' or 'improper' are not defined in the National Law. The Macquarie Dictionary defines 'improper' relevantly as 'not in accordance with propriety of behaviour, manners etc.' or 'abnormal or irregular' and 'unethical' as 1. 'contrary to moral precept; immoral'; and 2. 'in contravention of some code of professional conduct.'
87. Assistance in determining what is meant by 'improper' can also be gained from what the High Court of Australia said of the word 'impropriety' in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
88. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]-[49]:
'The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows:
"Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case."
This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited.'
89. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at [81]."
Overarching Purpose of s 139E
1. The overarching purpose of s 139E was described by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307. His Honour observed 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."
1. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, Basten JA held (at [20]):
"There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. …"
1. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was also considered by the Tribunal (as differently constituted) in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. The Tribunal stated at [25]-[26]:
"25. The use of the word 'or' in s 139(1)(I) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct.
26. In our view, the test of 'unethical conduct' has both objective and subjective elements. The word 'unethical' connotes moral opprobrium. The term 'unethical conduct' implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances."
(emphasis omitted)
Particular 1A
1. The Respondent denies the conduct alleged in Particular 1A. Mr Roxburgh in his written statement recorded that he remembered that at some stage in 2019, the registered nurse, Colleague C, came into his office and said that the Respondent had been "inappropriate to her". This was the first time Colleague C had made a complaint about the Respondent to Mr Roxburgh, her Nursing Unit Manager (NUM). He recorded that he could not recall exactly what she alleged but he found a diary note he wrote at the time dated 8 October 2019 which he annexed to his statement. Mr Roxburgh stated that his notes indicated that Colleague C complained that the Respondent had "touched her twice" during her shift the previous Sunday. He remembered that he told Colleague C that he would talk to the Respondent and advising her that she could contact the employer's "EAP".
2. Mr Roxburgh then referred to his note that recorded that he spoke to the Respondent the same day. He could not recall the exact conversation and whether or not the Respondent admitted to touching Colleague C. He remembers telling the Respondent that it was not acceptable and "to keep his hands to himself". By interpreting his notes, Mr Roxburgh says he believed that he would have asked the Respondent if he understood what he was saying and that the Respondent confirmed that he did.
3. Mr Roxburgh did not escalate the complaint to HR. He stated that he regarded his chat with the Respondent as an "informal warning". He said that he can only assume that he left the situation as it stood with an understanding from the Respondent that this was a one-off incident and further action would be taken if further incidents occurred. He said that his recollection is that Colleague C was satisfied with this, but it is not made clear when and in what context that conversation occurred.
4. Mr Roxburgh said he never received any other substantive complaints about the Respondent in terms of his behaviour. He never saw the Respondent saying or doing anything inappropriate. The Respondent may have been involved in banter on the ward, he said, that bordered on inappropriate but this was always shut down pretty quickly by him or someone else.
5. The diary note of 8 October referred to by Mr Roxburgh records that he spoke with the Respondent concerning "unwanted contact/touching". The notes include:
"Please no, just do not = easier for all.
No matter intent - if not welcome = unwanted.
Easy = Hands off.
? okay = Yes"
1. Mr Roxburgh was not required for cross examination and his statement was admitted into evidence without objection.
2. We are satisfied that on 8 October 2019, the Respondent was spoken to by Mr Roxburgh, his NUM, and that the informal warning he received put him on notice that touching colleagues was not acceptable conduct.
3. On 29 November 2020, Colleague B made a report to her superior concerning an incident that she said occurred on the morning of 16 November 2020. She reported in an email that around 7:30 am, she and Colleague A were standing in between the nurses' station and certain beds. As she was looking at her computer, the Respondent approached her and grabbed her shoulder stating that he was leaving as he had finished night shift. She then observed that as the Respondent said goodbye to Colleague A, she witnessed the Respondent grab Colleague A's bottom and squeeze it. The Respondent then walked straight out of the ward.
4. Colleague B described that she observed Colleague's A response as looking frozen and that Colleague A became very anxious and stated that she was uncomfortable, upset and that this had not been the first time the Respondent had touched her inappropriately. Colleague A was then encouraged to speak with her current manager and to put in an incident report, which occurred.
5. The events as so described by Colleague B were amplified in a transcript of interview with the human resources representatives of the hospital on 3 December 2020 in investigating the complaint.
6. Colleague C was also interviewed on 4 December 2020 concerning the complaint made about the Respondent's conduct in relation to Colleague A. Colleague C was acting as a support person for Colleague A and at the commencement of the interview, Colleague C stated to the interviewers from HR that she was not sure whether Colleague A knew at that point "that it had happened to me as well". Colleague C described that Colleague A was very upset when she reported to Colleague C the incident concerning the Respondent. The interviewer, Person D, later said in the interview that, "So, obviously, you have explained that [Colleague A] was quite distressed about the situation and, you just mentioned that you have had a similar incident?" Colleague C responded, "Yep".
7. Although there is some reference to the Respondent's earlier conduct in this interview given by Colleague C, and it appears that there was a reference to "touching", and that it was "inappropriate", there is no detail in this interview of the nature of this touching.
8. Ms Kelly, who appeared for the Commission in these proceedings, acknowledged that this record of interview does not provide any direct reference to the allegation as framed in Particular 1A about "smacking" or "pinching" Colleague C on her buttocks.
9. Colleague C made a written statement for the purposes of these proceedings on 2 April 2023. She described that at some stage during the first three weeks of her employment in OPERA ward, whilst walking back to the nursing station, the Respondent stopped her and made the offensive remarks the subject of Particular 1. Sometime later during the first three-week period when Colleague C became upset at work after making a mistake, the Respondent inquired about what was wrong and appeared to offer some assistance if there were any more issues.
10. Colleague C then stated in her statement as follows:
"After that, [the Respondent] started pinching or smacking my bum when he walked past me on the ward. This would happen in public areas on the ward and I do not know if people saw it or not. It got to the point that when I was working at the computer on wheels near the nursing station that I would position my bottom towards the wall in case the Respondent walked by. I did not react when Emil did this I would freeze or tell him that I had to go and do something else or that I was busy. I suffered a sexual assault when I was 15 years old and Emil's actions brought back a lot of memories for me. Eventually, I reported Emil to my Nurse Unit Manager, Russell Roxburgh. Russell said he would deal with it. I think Russell spoke to Emil but he did not report it to HR or anything. I did not really go into this much with [Person D] in my interview because I was cautious about getting Russell into trouble."
1. The reference to "[Person D]" is the reference to the HR manager who conducted the interview on 4 December 2020. Colleague C's statement then proceeded to record that:
"After Russell had spoken to [the Respondent], things were really uncomfortable on the ward with him. About a week later, I contacted [the Respondent] on Messenger and asked him if we could meet for coffee so we could put the issue to bed. We arranged to meet before my shift that afternoon which started at 1:30 pm. We met at 1:00 pm at Zoukis at the hospital at 1:00 pm. I told [the Respondent] to the effect of he had made me feel uncomfortable and I told him about my history. He said to the effect of – 'I understand and I apologise'. I remember I cried during this meeting. We did not discuss the rabbit comment. I remember Emil called himself 'Uncle Emil - a big soft teddy-bear' during this conversation too."
1. Colleague C then recorded in her statement that:
"[The Respondent] never touched me inappropriately after that. I remember that when we were working together, he would tell me, 'I have done it again'. He told me he had met another nurse down in HOPE Emergency Department. He did not say what he did exactly but he did say she was going to report him. I keep saying to him 'You have got to stop - you are going to get in trouble'."
1. Colleague C's statement of 2 April 2023 was admitted into evidence without objection and she was not required for cross examination.
2. In respect of Particular 1A, the Respondent in cross-examination on more than one occasion denied touching Colleague C on her bottom. He said it was not true and questioned how it occurred. He also denied that he ever smacked her.
Particular 2
1. In a statement given to the Commission and signed by Colleague B on 14 March 2022, she stated that the Respondent created a Facebook message group with her and her colleague, Colleague A on 15 July 2020. She recorded that she recalled that the Respondent created it "one day when he saw [Colleague A] and I being silly on the ward. [The Respondent] soon started sending explicit videos and jokes to [Colleague A] and I. I responded once or twice, on one occasion saying something to the effect of 'I wish I had a body like that'. [Colleague A] did not really respond except one time she wrote, 'Emil, r u okay omg? [sic]'. [Colleague A] left that chat group at some stage."
2. The recipients of the emails, images and messages did not, it appears, at any stage respond to the Respondent to indicate that what he was doing was unacceptable to them.
3. In her record of interview with the human resources business partner of the hospital during the investigation of the Respondent's conduct, Colleague B stated, for example, in relation to the image of a female, described by Colleague B as "a lady with a very nice body, and, and she had masks on her breasts and, her genital regions, the only words of encouragement throughout the whole thing that I gave was, I wish I had a body like that, which is fair enough."
4. Colleague C took the approach to this material that she did not respond to those sorts of things at all. She stated in a record of interview with the human resources business partner of the hospital during the investigation that the approach she took was that if you ignore things like this, eventually they are going to stop.
5. Amongst the offensive images portrayed in the Facebook messages, one finds also, on occasion, a communication of a different kind, an inquiry about a Colleague's wellbeing. For example, on 9 October 2020, the Respondent inquired about how Colleague C was doing following the funeral of her brother on 7 October 2020, an exchange she described as "so [the Respondent] was probably checking in".
6. In cross-examination, the Respondent indicated in relation to the explicit material sent by him he had no intention of offending the recipients. He said that he was no longer in group chats and no longer used derogatory language.
7. The Respondent also described the exchanges with his colleagues as "joking around" and "being collegiate".
Consideration of Particular 1A
1. The Tribunal was left with a position that the statement of Colleague C was admitted into evidence unchallenged (including the paragraph quoted at [33] above) because it was not the subject of any cross-examination by the solicitor appearing for the Respondent.
2. However, the Respondent on more than one occasion in his cross examination expressly denied, and therefore contradicted the evidence, that he had engaged in the conduct referred to by Colleague C and as alleged in Particular 1A, albeit in not precisely the same language.
3. The conduct alleged in Particular 1A is of a serious nature. The standard of proof required of the Commission in these proceedings, which bears the onus of proof, is on the balance of probabilities. As was held in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 at [2] (per Mason CJ, Brennan, Deane and Gaudron JJ) :
"… That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v. Briginshaw:
'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...'."
(footnotes omitted).
1. In Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53, Judge Boland held at [135]:
"… I am satisfied that the authorities while acknowledging disciplinary proceedings may be akin to criminal proceedings do not support the proposition that the criminal standard of proof is applicable or that there is a third standard of proof. I also note that these proceedings, unlike disciplinary proceedings under the Legal Profession Uniform Law 2014 are not, save for exceptions set out in s 67 of the CAT Act, subject to the requirements of the Evidence Act 1995 (NSW). It appears to me adherence to the principles espoused by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd ensures the Tribunal has due regard for the gravity of the allegations in reaching its findings on the evidence."
1. We regard the conduct raised against the Respondent in Particular 1A as grave allegations of a very serious nature.
2. The question confronting us concerning unchallenged but then contradicted evidence was addressed by the Court of Appeal in Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 ("Ghosh") and more recently in Amaca Pty Ltd (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 ("Amaca").
3. In Amaca at [34]-[37], his Honour Beech-Jones JA, with whom Brereton JA and Mitchelmore JA agreed, analysed the issue by reference to what is said to be a "rule" in Browne v Dunn (1893) 6 R. 67 by reference first to the judgement of his Honour Brereton JA in Ghosh as follows:
"34. After describing these two aspects of the 'rule', Brereton JA in Ghosh cited a passage from the judgment of Hunt J, as his Honour then was, in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 18. Brereton JA then stated:
'70. The passage in Precision Plastics Pty Ltd v Demir [(1975) 132 CLR 362 at 372] to which [Hunt J in Allied Pastoral Holdings] referred was the following, which suggested that it might be legal error not to accept unchallenged and uncontradicted evidence which was not inherently implausible:
"The respondent was asked in her examination-in-chief: 'How long did you intend to continue working?' and replied: 'I like to work very much. Until the age of 55 years old. Of course, until the last day until I died I like to work as far as work is concerned.' If it had been intended to suggest that she was not speaking the truth she should have been cross-examined on this matter so that she might have had an opportunity of explanation (cf Browne v Dunn (1893) 6 R. 67 at 76-77), but she was not in fact cross-examined on her answer. The Respondent's evidence that she intended to work until she reached the age of fifty-five was not inherently incredible. She had in fact been engaged in employment for most of the time during which she had been in Australia before the accident, and had only given up employment when it was necessary to care for her child. In these circumstances, in my opinion, the jury, acting reasonably, were bound to accept her evidence, uncontradicted and unchallenged in cross-examination, that she had the present intention of working until she reached the age of fifty-five."
71. I accept that the first aspect of the rule was not offended, because Dr Ghosh was plainly on notice that the Council took issue with the opinions of the doctors upon whom she relied. However, the second aspect of the rule still had work to do. I nonetheless also accept that the second aspect of the rule did not mean that the Tribunal was legally bound to accept the uncross-examined evidence of the doctors relied upon by Dr Ghosh. However, the fact that they were not cross-examined, and that their opinions thus stood unchallenged, though not uncontradicted, should at the least have weighed in their favour - rather than, as the Tribunal appears to have thought, against them. ...
72. Were this merely a matter of preferring one expert lo another, it would not be an error of law, and would not attract a grant of leave if required. But in this case not only was uncross-examined evidence rejected, and challenged evidence accepted, where there was a strong body of evidence in favour of the unchallenged position, but the Tribunal does not appear to have given any significance to the circumstance that the witnesses favourable to Dr Ghosh were not cross-examined, but, to the contrary, appears to have regarded the circumstance that they were not called as adverse to their acceptance. Subject to granting leave to appeal, if leave be required, I would uphold this ground. (emphasis added)'
35. In Ghosh, Simpson AJA agreed with this passage (at [137]).
36. Nothing in Ghosh purports to lay down a rule of law that in all cases, or even "ordinarily", evidence which is not the subject of cross-examination must be accepted. Such a proposition was expressly rejected by Brereton JA in Ghosh at [71]. Further, the passage from the judgment of Gibbs J, as his Honour then was, in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27 ('Precision Plastics') set out in Ghosh at [70] does not support that proposition either. In Precision Plastics Gibbs J upheld a finding of this Court that a damages award by a jury was unreasonably low. In the quoted passage, his Honour was comparing the undisputed evidence of the injured plaintiff as to her future intention to work with the amount that was awarded. His Honour did not purport to state that the jury would have erred in law had they rejected the plaintiff's evidence on that topic. In any event, the above passage from Azzopardi illustrates the differences between the basis for reviewing a jury verdict and an appeal which is restricted to an error, question or point of law.
37. Ghosh was an appeal from the NSW Civil and Administrative Tribunal and, as such, was restricted to a question of law (at [12]). The error of law identified in Ghosh was the failure of the Tribunal in that case to give 'any significance to the circumstance that the witnesses favourable to [the appellant] were not cross-examined' and instead 'regarded ... the circumstance that they were not called as adverse to their acceptance' (at [72]). The primary judge made neither error in this case. In the passage set out at [23] above, her Honour expressly acknowledged the potential significance of the witnesses having not been cross-examined. Her Honour did not regard the failure to call them as adverse to Amaca's case. Amaca also complains about her Honour's failure to further state how the fact that the witnesses were not cross-examined was considered. To an extent, her Honour did that by noting that the evidentiary dispute did not concern their credit or integrity and accepting that no advantage was derived, nor disadvantage suffered, in comparing evidence given in the witness box with evidence given in written form …."
1. In the current matter, when the Respondent in cross examination emphatically denied that there had been any touching of Colleague C, Ms Kelly did not and, no doubt given the sparsity and generalised nature of the evidence in Colleague C's statement, was unable to put to the Respondent the precise details of when the alleged conduct occurred by reference to a specific date, or the precise place where it occurred, or the circumstances in which it occurred.
2. The particulars in Particular 1A also are not confined to a single act but pleaded as occurring over a period of some three months in 2019 and make reference to the conduct happening on more than one occasion. It is not particularised how many occasions it is alleged the Respondent was pinching, or on how many occasions there was smacking.
3. The situation that arose before us was clearly unsatisfactory. We are, however, not satisfied that the Commission has established Particular 1A to the requisite standard required for misconduct of the kind particularised. We have also borne in mind in coming to that view that the Respondent in all other respects readily admitted his conduct.
4. In addition, as is apparent from what we have set out at [19]–[35] above, the very first occasion that the allegation of "pinching or smacking" occurs is in the statement of Colleague C in April 2023 and at no time was the conduct described as such either to her NUM, Mr Roxburgh, or raised by Mr Roxburgh against the Respondent and neither was conduct of this nature described in the interview of Colleague C by the human resources department of the hospital at the time.
5. It is necessary in our view to bear in mind that there is a difference between "touching", and "slapping" or "pinching".
6. It is not inherently implausible that the Respondent did at some point touch Colleague C and that such touching was, as reported, inappropriate. That is a factor supporting acceptance of that evidence. However, it is not as readily apparent that the more serious conduct of "slapping" or "pinching" is inherently plausible in the context of the relationships between the Respondent and the three Colleagues we have referred to and described above, and which had otherwise been described only as "touching".
7. As appears from the Respondent's conduct against Colleague A, which we deal with below, we accept that some form of touching occurred and that he was warned about some form of inappropriate "touching" by Mr Roxburgh. We also accept that the failure to cross-examine Colleague C is a factor in favour of acceptance of her evidence about "pinching" or "smacking".
8. However, the absence of specificity to which we have referred in Particular 1A, and in the statement of Colleague C on which it is based, together with the express denials of the conduct alleged, lead us in the end to the conclusion that the conduct as particularised has not been established to the requisite standard, given its seriousness. We are not bound to accept the evidence of Colleague C as set out in her statement by reason of it not being challenged at the time of tender.
9. We are not concerned simply with unchallenged evidence of Colleague C by reason of her statement being admitted into evidence and there being no cross examination. The conduct she described was denied and thus stood contradicted when the Respondent was cross examined. He readily admitted the other particularised conduct but firmly denied this particular. We did not form the view that the Respondent was being untruthful in his evidence in this regard.
Consideration of Particular 1
1. We regard the conduct of the Respondent in Particular 1 as admitted as highly offensive and unacceptable. It beggars belief that an experienced registered nurse would consider that comments of this kind should be treated as some form of joke. We accept the evidence that Colleague C was offended and hurt by this conduct.
Consideration of Particular 2
1. Although the inappropriate messages using Facebook Messenger to Colleagues A, B and C which included the material particularised in Particular 2 started by way of some friendly banter and was not objected to by those colleagues, we regard the conduct as serious misconduct, a position accepted by the Respondent in the proceedings.
2. There is no room for this type of messaging to be sent to nursing colleagues whilst at work.
3. It appears that Facebook facilitated this type of conduct and even though some of the words added to the captions appeared to be intended as some form of humour, highly objectionable humour we may add, they could not possibly objectively be regarded as acceptable in circumstances where they were accompanied by pictures of females in a demeaning and inappropriate position.
Consideration of Particular 3
1. We regard the conduct in Particular 3, as admitted, as improper in the Respondent's workplace.
Consideration of Particular 4
1. It is clear that the Respondent had in 2019 received a warning, although "informal", from his NUM Mr Roxburgh in respect of keeping his hands away from other colleagues and was not to do so in the future. He thus engaged in this conduct in the full knowledge that it was unacceptable.
2. Although the Respondent, in the end, admitted this conduct and initially sought to deny it, we are satisfied that this particular has been established and that it amounts to improper conduct. The demonstration and explanation given by the Respondent in cross examination about how this incident, as he recollected it, may have occurred was totally unconvincing.
Consideration of Particular 5
1. It is not clear to us on what basis the Respondent's employer was empowered to order the Respondent not to discuss the incident raised on 20 November 2022 with any other person, nor how the alleged non-compliance with this requirement arises for disciplinary action by the Commission. In addition, the Respondent testified, and we accept, that in messaging Colleague B he was unaware that that colleague would be a witness. The Respondent has admitted this complaint, but we are not prepared to place any weight on it for the purposes of an overall assessment of his conduct.
Consideration of Particular 6
1. We accept, as the Respondent has admitted, that the conduct particularised in Particulars 1, 2, 3 and 4 individually or in combination demonstrate a failure to comply with the codes of conduct binding on the Respondent.
2. The Commission argued that we should treat some of the admitted conduct as "unethical" as that was a more serious form of misconduct. It is clear that the proven misconduct was a reckless flouting of professional standards and to that extent unethical.
3. We are satisfied, and find, that the Respondent's admitted conduct was improper conduct, and to a degree unethical, fell far short of the standards to be accepted by a nurse practitioner, and amounted to unsatisfactory professional conduct. Taking into account the particulars as admitted and found, we are of the view that given the seriousness of the misconduct and that it was engaged in over a period of time, it amounted to professional misconduct that justifies suspension or cancellation of the Respondent's registration.
4. We have, as a result, given serious consideration to cancelling the Respondent's registration given:
1. the seriousness of the misconduct and it not simply being an isolated occurrence;
2. his position as a senior practitioner directing his unacceptable conduct at junior practitioners;
3. the demeaning nature of the exchanges involving females in the Facebook Messenger group referred to;
4. the fact that the Respondent still seeks to attribute some responsibility for his conduct on his nursing colleagues; and
5. the need for specific and general deterrence, together with a need for denunciating this conduct: see Health Care Complaints Commission v Do at [9].
1. On the other hand, factors in favour of suspension in our view include the following:
1. The Respondent has admitted all of the particulars except Particular 1A, which was disputed and not found to be established.
2. The Respondent cooperated with the Commission, agreed the facts which obviated the need for proof of some matters, and also cooperated in the hearing without the need for witnesses to be called.
3. The Respondent has been remorseful and ashamed of his conduct, a position repeatedly confirmed by him to the Council and the Tribunal.
4. The Respondent has shown some insight into the inappropriateness and unacceptable nature of his conduct and stated on a number of occasions that he would work towards avoiding a repeat of such conduct.
5. The Respondent has taken a number of steps to ensure that the type of conduct he engaged in is not repeated. He has completed an initial course on the principles of sexual harassment and how to avoid such conduct and is enrolled in a more extensive course with the University of Melbourne. That course deals specifically with professional boundaries.
6. Consultant psychiatrist, Dr Glenys Dore in her report to the Nursing and Midwifery Council dated "11 January 2021 [sic]" (Dr Dore assessed the Respondent on 6 January 2022), having considered all matters including that the Respondent had accepted full responsibility for his inappropriate actions, records that the Respondent had presented at his assessment as reflective, insightful and deeply remorseful about his behaviour, had engaged in a process of remediation and rehabilitation, had developed a much clearer framework for understanding professional ethics, conduct and appropriate boundaries and that his mental health had stabilised. Dr Dore concluded that all those factors mitigate the likelihood that there will be a recurrence of his conduct in the future.
7. Dr Dore in summary concluded that the conduct was predominantly involving professional boundary transgressions with junior female colleagues but the likelihood of a repetition of that behaviour currently appeared low given the mitigating factors outlined above.
8. The Respondent has undertaken counselling in order to stabilise his mental condition and behaviour.
9. In the s 150 proceedings conducted by the Council, the Council did not regard the Respondent as being of such a risk that it was necessary to suspend his registration and he was allowed to continue to practise under strict conditions. In relation to this approach by the Council, the Commission submitted that the powers available to the Tribunal in these proceedings need to consider wider issues including deterrence. We accept that submission. However, in considering whether the Respondent posed an immediate risk to the public or particular persons, a requirement of s 150 of the National Law (see Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263; [2022] NSWCA 60 at [56]), the Council did not take the view that the Respondent should be prevented from practising with specific conditions attached to his registration.
10. The Respondent has lost his employment, which clearly provides a significant lesson with significant and adverse personal and financial consequences for conduct of this kind.
11. The references he provided to the Tribunal speak positively of the Respondent. Mr Chambers in his reference of 8 March 2023 spoke of the Respondent's conduct during COVID-19 PCR testing over a period of time in July 2021 to March 2022. He described the Respondent as an advocate for improving and maintaining patient satisfaction and experience, even during the peak of the COVID-19 pandemic and the significant workload strains this placed on every team member. He wrote that the Respondent was great at communicating and sharing the workload with his fellow employees.
12. Mr Haga who had worked with the Respondent for a period of approximately 13 years regarded him as highly skilled and intelligent and his clinical and patient skills were, in his view, extremely proficient. He also acknowledged some generosity on the part of the Respondent towards his fellow staff members. He was of the view that the complaints raised against the Respondent were not in his usual character.
13. There is no probative evidence that conduct of the nature established before us was carried out outside of the Respondent's relationship with colleagues and the chat group. The unacceptable conduct was confined to nursing colleagues with whom he was friendly and did not directly affect any patient.
14. The Respondent has said that he is off social media, a medium which clearly facilitated the exchange of the offensive material.
15. The Respondent has expressed the desire to apologise to colleagues and the failure to do so to date appears to be, at least in part, due to the instruction he received not to communicate with witnesses.
16. In our view, and in the absence of the matters referred to at subparagraphs (3)-(9) and (13)-(15) above, we would have cancelled the Respondent's registration.
1. However, on balance, and because of all the factors outlined above, we are prepared to suspend the applicant's registration with conditions.
2. We regard a period of suspension of nine months as necessary in the circumstances. It will permit the Respondent to complete his University of Melbourne course and allow for further reflection on his conduct. It will also enable him to work on a CPD plan to ensure that his practice is current.
3. We are, however, also of the view that conditions should be imposed on the Respondent's registration. The conditions currently attaching to the Respondent's registration are as follows:
"1. To practice under the direct supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body.
a) to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council,
b) to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council.
2. Not to practise until a supervisor has been approved by the Nursing and Midwifery Council of NSW.
3. Not to undertake agency nursing.
4. Not to be the nurse in charge of any shift, ward or unit.
5. To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of 27 July 2021, that the practitioner has provided a copy of full conditions to his nursing employer/s.
6. Within seven (7) days of a change in the nature or place of practice, the practitioner is to forward evidence to the Nursing and Midwifery Council of NSW that he has provided a copy of full conditions to the nursing employer/s.
7. To authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. He must only be employed as a nurse in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions."
1. The Respondent testified that he had applied for a job with numerous prospective employers without success. He understood from responses that the employers were unable to employ the Respondent with the current conditions in place.
2. The Respondent also earlier sought to have the conditions reversed or altered by the Council without success although he did not, it appears, provide to the Council evidence of the adverse impact on being able to find employment.
3. It appears that the principal issue standing in the way to future employment is Condition 1.
4. In our view, at the end of the suspension period and having completed his additional training, the Respondent should have a reasonable opportunity of being employed and able to practise.
5. The protective nature of our jurisdiction should in this instance, in our view, seek to allow such an outcome.
6. Accordingly, we are of the view that Condition 1 of the current conditions should not be imposed but instead the following condition:
1. The practitioner must:
1. not practise as a registered nurse until a mentor has been approved by the Council;
2. undertake mentoring by the approved mentor in accordance with the Council's Compliance Policy – Mentor (as varied from time to time) and the Mentor Approval Position Statement, and as subsequently determined by the appropriate review body;
3. meet with the mentor for a minimum of one hour on a monthly basis for a minimum period of three months, and thereafter at a frequency to be determined by the Council;
4. provide a mentoring plan, which is developed with the mentor and outlines the specific objectives and outcomes of the mentoring arrangement, for approval by the Council within fourteen (14) days of receiving written approval of the mentor;
5. at each monthly meeting with the mentor, discuss at least the following topics:
1. professional behaviour and boundaries, including Code of Conduct and use of social media; and
2. ethics and professional practice;
1. authorise the approved mentor to provide written reports to the Council at quarterly intervals, or as specified by the Council;
2. authorise the Council to provide the approved mentor with a copy of the Tribunal's decision in this matter.
1. In circumstances where the Respondent has sought professional help and is willing to be guided by study to correct his behaviour, we are satisfied that this condition, together with the remaining conditions, are sufficient.
2. In coming to the overall view as to the appropriate protective nature of the jurisdiction that we exercise, we are of the view that the measures outlined above satisfy the requirements of general and specific deterrence and the general denunciation of the Respondent's conduct.
3. We are of the view that a strong message should be sent to both the Respondent and other practitioners that "banter" and "mucking around" in the way in which he conducted himself, and as evidenced in this case, are unacceptable. Conduct of this kind, if repeated, will put his future practice and livelihood at risk.
Costs
1. We have an unfettered discretion in respect of the awarding of costs: see Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do at [51]).
2. Although we have not agreed to cancellation and to that degree the Respondent has been successful in part, we, nonetheless, are of the view that the appropriate order in this case is that the Respondent should pay the costs of the Applicant as agreed or assessed.
Orders
1. The Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW).
2. The Respondent is guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW).
3. Pursuant to s 149C of the Health Practitioner Regulation National Law (NSW), the Respondent's registration as a health practitioner is suspended for a period of nine months.
4. Pursuant to s 149A of the Health Practitioner Regulation National Law (NSW), there is imposed in relation to the Respondent's registration as a nurse the following conditions.
The practitioner must:
1 a. not practise as a registered nurse until a mentor has been approved by the Council;
b. undertake mentoring by the approved mentor in accordance with the Council's Compliance Policy – Mentor (as varied from time to time) and the Mentor Approval Position Statement, and as subsequently determined by the appropriate review body;
c. meet with the mentor for a minimum of one hour on a monthly basis for a minimum period of three months, and thereafter at a frequency to be determined by the Council;
d. provide a mentoring plan, which is developed with the mentor and outlines the specific objectives and outcomes of the mentoring arrangement, for approval by the Council within fourteen (14) days of receiving written approval of the mentor;
e. at each monthly meeting with the mentor, discuss at least the following topics:
i. professional behaviour and boundaries, including Code of Conduct and use of social media; and
ii. ethics and professional practice;
f. authorise the approved mentor to provide written reports to the Council at quarterly intervals, or as specified by the Council;
g. authorise the Council to provide the approved mentor with a copy of the Tribunal's decision in this matter.
2. Not practise until a supervisor has been approved by the Nursing and Midwifery Council of NSW.
3. Not undertake agency nursing.
4. Not be the nurse in charge of any shift, ward or unit.
5. Forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of the date of imposition of these conditions, that the practitioner has provided a copy of full conditions to his nursing employer/s.
6. Within seven (7) days of a change in the nature or place of practice, forward evidence to the Nursing and Midwifery Council of NSW that he has provided a copy of full conditions to the nursing employer/s.
7. Authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions.
8. Only be employed as a nurse in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions.
1. The Respondent shall pay the Applicant's costs under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) as agreed or assessed.
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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
26 July 2023 - Paragraphs 29, 33, 34 – Amended to anonymise Person D in accordance with non-publication order.
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: 26 July 2023