Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Deeley v Health Care Complaints Commission [2023] NSWCATOD 167 Hearing dates: 16 August 2023 Date of orders: 17 November 2023 Decision date: 17 November 2023 Jurisdiction: Occupational Division Before: C Mulvey, Senior Member S Smiltnieks, Senior Member C Sippel, Senior Member A Gray, General Member Decision: (1) Pursuant to s 163B of the Health Practitioner Regulation National Law (the National Law) a reinstatement order is made in respect of Robert Deeley (the practitioner) subject to the following conditions: a. the Applicant is not to be the nurse in charge of any shift, ward or unit; b. the Applicant is not to work as the sole practitioner on any shift; c. the Applicant is to practice under indirect close supervision in accordance with the Nursing and Midwifery Council of New South Wales (Council) Regulatory Supervision Policy (as varied from time to time) and as subsequently determined by the Council and: - must nominate a supervisor for approval with the Council 14 days prior to commencing work or as specified by the Council; - must authorise the approved supervisor to provide written reports to the Council (which meet the standards required by the Council) at quarterly intervals, or as specified by the Council for a minimum cumulative period of 12 months and until the Council advises the Applicant otherwise in writing. d. the Applicant is not to practice until a supervisor has been approved by the Council and has been provided with a copy of this decision; e. the Applicant is to forward evidence to the Council within 7 days of his employment as a nurse, or any change in his employment, that he has provided a copy of this decision to his employer; f. the Council is the appropriate review body to review these conditions; g. to authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at any places where the Applicant works as a health practitioner in Australia of any issues arising in relation to compliance with these conditions. (2) The Nursing and Midwifery Council of New South Wales is the appropriate review body in respect of order (1) of these orders. (3) In the event that the practitioner resides other than in New South Wales then s 125-127A of the National Law shall apply. (4) The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to the application as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: OCCUPATIONS – nurses – reinstatement application – whether onus established – whether reformation, rehabilitation and insight established Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 Haber v Health Care Complaints Commission [2018] NSWCATOD 16 HCCC v Deeley [2010] NSWNMT 34 Ng v Health Care Complaints Commission [2018] NSWCATOD 105 Ristevski v Medical Council of NSW [2016] NSWCATOD 18 Category: Principal judgment Parties: Robert Deeley (Applicant) Health Care Complaints Commission (Respondent) Representation: Solicitors: Applicant (self-represented) Health Care Complaints Commission (Respondent) File Number(s): 2023/0023405 Publication restriction: Nil REASONS FOR DECISION 1. On 19 January 2023, Robert Deeley ("Mr Deeley", "the Applicant" or "the practitioner") applied to the Tribunal under s 163B of the Health Practitioner Regulation National Law (NSW) ("the National Law") for review, seeking a reinstatement order so he could apply for re-registration as an enrolled nurse. In his application to the Tribunal, Mr Deeley stated as grounds for the application, that it was over 13 years from the date of the decision made in 2010 preventing him from making an application for review of the cancellation of his registration as an enrolled nurse. Since that time he has completed a Bachelor of Nursing degree which demonstrates him having gained new skills and knowledge and a commitment to his career as a nurse. He is now wishing to re-apply for nursing registration. Background 1. On 2 December 2010, in proceedings brought by the Health Care Complaints Commission (the "HCCC"), the Nurses and Midwives Tribunal of NSW ("the NMT") made findings that Complaint 1 of unsatisfactory professional conduct and 2 of professional misconduct were made out: HCCC v Deeley [2010] NSWNMT 34 ("the 2010 Decision"). The decision records that Mr Deeley did not appear in those proceedings. However, it would appear in the text of the decision at [94] to [101] he gave oral evidence and answered questions. Mr Deeley did not attend the first day of the hearing as he said he had work commitments. As set out below, he admitted the particulars of the two complaints. 2. On 2 December 2010, the Tribunal cancelled Mr Deeley's registration and made orders that he not apply for return to the register for 4 years, and an order that he pay the costs of the HCCC. 3. The background to those proceedings was summarised in the 2010 Decision at [27]-[28] as follows: "27. The South Eastern Sydney Illawarra Health Service wrote to the Registrar of the Nurses and Midwives Board (Board) on 4 September 2007 advising that there were allegations regarding the falsification of timesheets… 28. During a disciplinary hearing on 23 January 2007 the Respondent admitted he had made claims for shifts he had not worked and was immediately suspended. On 6 February 2007 he resigned from the nursing pool." 1. The two Complaints are: (1) Complaint One is that the practitioner is guilty of unsatisfactory professional conduct within the meaning of s 4 of the Act in that he: 1. has demonstrated that the knowledge, skill, judgement possessed, or care exercised, by the nurse is significantly below the standard reasonably expected of a nurse of an equivalent level of training and experience; and/or 2. has been guilty of improper or unethical conduct relating to the practice of nursing. PARTICULARS OF COMPLAINT ONE 1 At all relevant times the nurse was listed on the New South Wales Roll of Nurses. 2 Between January 2005 and January 2007, the nurse worked as a casual enrolled nurse in the Mirrabook Unit at Shellharbour Hospital. 3 Between 18 February 2006 and 11 January 2007 the nurse misappropriated monies from South Eastern Sydney Illawarra Area Health Service (SESIAHS) by: a. claiming on timesheets to have worked on the dates and for the hours set out in the attached schedule to the complaint, when he had not; b. dishonestly obtaining the signature of a supervising registered nurse in authorisation of his falsified timesheets, as set out in the attached schedule to the complaint; c. being paid for those hours claimed but not worked, as set out in the attached schedule to the complaint. (2) Complaint Two is that the practitioner is guilty of professional misconduct within the meaning of s 4 of the Act in that, he: (i) has demonstrated that the knowledge, skill, judgement possessed, or care exercised, by the nurse is significantly below the standard reasonably expected of a nurse of an equivalent level of training and experience; and/or (ii) has been guilty of improper or unethical conduct relating to the practice of nursing. PARTICULARS OF COMPLAINT TWO As per Complaint One. 1. The cancellation order was made following findings of professional misconduct that the Applicant had, between 18 February 2006, and 11 January 2007, misappropriated approximately $12,292.89 from SESIAHS, by: 1. claiming on timesheets to have worked on the 55 occasions set out in the Schedule to the Complaint, which he had not; 2. dishonestly obtaining the signatures of 7 separate supervising registered nurses in authorisation of his falsified timesheets; 3. being paid for those hours claimed but not worked. 1. Mr Deeley made the following submissions as recorded in the 2010 Decision: "119. The Respondent submitted that the Tribunal should give consideration to the fact that he had been an EN since 2000, he had considered himself to be a talented nurse and that he 'loves' his job. He stated that he believed that he brightened the day of the residents of the aged care facility in which he currently worked. 120. The Respondent agreed that he had 'stuffed up' but did not agree that he made false claims for all 55 shifts particularised by the HCCC. He stated that he had 'let down a lot of people' by his actions and that he now had to live with the consequences. 121. The Respondent stated that he would accept whatever the Tribunal decided. The Respondent agreed that he should have let the Tribunal know he was not attending on 26 October 2010 or provided more notice regarding his inability to attend on 25 October 2010. The Respondent confirmed that he was aware as at around 13 October that he was rostered to work on 25 and 26 October 2010. 122. The Respondent stated he had no submission to make in response to the HCCC costs submission regarding special circumstances." 1. The Respondent neither consents to nor opposes the Applicant's application for reinstatement. 2. The Respondent seeks its costs of the proceedings. Mr Deeley did not oppose the Tribunal making a costs order in favour of the Respondent. Relevant legislation 1. The powers of the Tribunal on a review under s 163B of the National Law are as follows: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following— (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order— (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 1. These proceedings are not a re-hearing of the 2010 Decision to cancel Mr Deeley's registration as a nurse, or the order that he not seek re-registration for a period of 4 years. In conducting this review, the Tribunal cannot review the original decision, or any findings made in connection with the making of that decision: National Law, s 163C(2). The task of this Tribunal is to determine the appropriateness, at the time of the review, of the order concerned: s 163C(1). 2. The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16, the Tribunal stated (at [12]) the principles in the following terms: "We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of 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 (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42][;] Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to [a] former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance[:] Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is 'in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made': [Ameisen] at [24]. (7) It is not 'a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future'. The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]." 1. In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 ("Ng"), the Tribunal stated at [30]-[31]: "In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: '[A]n applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness.' In that case, the Medical Tribunal also stated at [42]: '[T]he ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession.'" 1. We note that the fixing of the non-review period of 4 years by the NMT in 2010 does not necessarily mean that the NMT had at that time formed a fixed view that things would have changed by the end of that period. The purpose of such an order is to indicate the minimum period within which the NMT then considered the person should not be able to practise his or her profession, while holding open the possibility that an application for re-registration thereafter will at least be considered: Chen v Health Care Complaints Commission [2017] NSWCA 186. 2. As noted in Ng at [29], the standard of proof is the civil standard, on the balance of probabilities. In making its findings, the Tribunal is required 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: Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66. 3. The role of the HCCC in these proceedings is to act as contradictor to test the evidence, to bring evidence itself where appropriate, and to assist the Tribunal with submissions: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155. The HCCC neither consents nor opposes this application. The HCCC submits the following factors are in favour of reinstatement. Mr Deeley has undertaken and completed a Bachelor of Nursing Degree which demonstrates diligence and a willingness to learn and gain new skills and knowledge as well as a commitment to his career as a nurse. He has worked as an EN or in aged care for approximately 20 years, 15 of which postdate the conduct which gives rise to the cancellation. A character reference provided by Mr Sandeep Patel indicates Mr Deeley's skills and approach and that he is respected in his current workplace in an aged care facility. Mr Deeley's mental health has significantly improved since the events relating to the 2010 decision. 4. A number of matters are raised as factors which might tend against reinstatement by the HCCC. These include a letter by Mr Deeley which lacks reflection regarding his prior conduct. A history of fraudulent or dishonest behaviour referring to events in 2003 to 2004, when Mr Deeley made 12 false declarations to Centrelink regarding his income. Dishonest behaviour of Mr Deeley with respect to this Complaint. A theft of Christmas lights from a Bunnings warehouse store in 2015. The costs that were made in the 2010 Decision were not paid by Mr Deeley, which the HCCC says is relevant to the Tribunal's assessment of his reformation of character and future reliability. 5. Reference was made to paragraph [134] in the 2010 Decision: 'The Respondent has shown a high level of disregard for the processes of the Tribunal. On one level it could be said that the Respondent spun a continuous string of untruths to put off the ultimate determination of this matter by the Tribunal.' The HCCC contends, the Tribunal should be cautious on this application to ensure we are satisfied the Applicant has reformed his character. 6. The HCCC also put before the Tribunal, as it is required to do so pursuant to s 163C(3) of the National Law, complaints made about the Applicant. In mid-2003, the Applicant was the subject of a complaint referred to the HCCC for investigation concerning inappropriate internet usage. The complaint was terminated by the HCCC in late 2004. The reasons for the termination are not known. In early 2005, a complaint was referred to the HCCC relating to a failure to submit an annual declaration to the Nurses and Midwives Board. That issue was rectified by the Applicant and the complaint was terminated by the HCCC in mid-2005. A complaint regarding a fraud conviction was referred to the HCCC. The exact history of that complaint is not known. However, the complaint related to one conviction of receiving a financial advantage from a Commonwealth entity (Centrelink fraud) in 2004. Between 2003 and 2004 the Applicant failed to declare income on 8 separate occasions, and under-declared on 4 further occasions, resulting in an overpayment to him of $3,906.09. 7. An anonymous complaint arose about the Applicant, working alone overnight at an aged care facility and allegedly administering medication to a resident with no supervision. An internal investigation was undertaken which details various staffing issues for the days to which the subject of the complaint related, and provided more information about safety measures put in place at the facility. The complaint was then terminated by the HCCC. 8. The HCCC contends that limited weight on these prior complaints should be given in this application when considering the Applicant's present fitness. This is because each of the complaints are between fifteen to twenty years old, and two of them were terminated by the HCCC. The HCCC contends that the key relevance lies in the dishonest conduct underlying the Applicant's Centrelink fraud conviction, which demonstrates that the Applicant has a history of dishonest behaviour. In accordance with our obligation pursuant to s 163C(3) of the National Law we have taken into consideration these complaints in our determination. We agree with the submissions made by the HCCC and have placed limited weight on the Complaints. Some weight has been given to the Centrelink fraud incident as it does relate to a prior history of the Applicant's dishonest behaviour. Tribunal proceedings 1. The hearing of Mr Deeley's application was initially listed on 5 June 2023. The hearing was adjourned at the request of the Applicant. The hearing took place on 11 August 2023 for one day. Mr Deeley was not represented by a solicitor nor counsel. The HCCC was represented by a solicitor advocate. 2. Mr Deeley relied upon material filed 29 March 2023 (Ex A), a bundle filed 11 May 2023 (Ex B) and the initiating application filed 19 January 2023 (Ex C). 3. The HCCC filed and served a Bundle on 1 May 2023 (Ex 1) which included an evidentiary certificate 5 May 2023 inserted at page 5, documents relating to the original proceedings in the Tribunal, and the applicable registration standards and Code of Conduct. Two court attendance notices were admitted (CAN H41049531) (Ex 2) and (CAN H58537030) (Ex 3). Mr Deeley said had not been served with the two court attendance notices. However, he was aware of the contents of the same. He was a provided a copy at the bar table and did not object to the two notices being admitted in the HCCC's case. 4. Mr Deeley appeared in person at the Tribunal's hearing rooms at Sydney. As did, Ms Rogers, solicitor advocate for the HCCC. Mr Deeley's evidence 1. In his statement of 14 March 2023, which Mr Deeley adopted under oath at the hearing, he said that he is a single father of 2 children and seeks to continue his professional career as a Registered Nurse. Over four years, he completed the course requirements of a Bachelor of Nursing at the University of Wollongong in 2022. In 2016, he was working at a residential aged care facility during the time in which he carried out his studies. He remains in that employment. Mr Deeley says that nursing has been a passion of his since completing his HSC in 1999. Mr Deeley lives with his mother and helps care for his intellectually disabled brother. His two children, now aged 16 and 18 years of age, also live with him and his extended family. 2. Mr Deeley has been in his current employment for 7 years. He is the Facility Manager at the aged care facility. His duties include such things as rostering staff, assessment and care planning for residents, attending and running management meetings and organising registered nurse and care staff. Mr Deeley is not responsible for clinical duties as there is a clinical leader employed at the facility. He reports to the General Manager and the Chief Executive Officer and Board of Directors at the facility. Mr Patel, who provided a character reference and gave evidence in these proceedings, was the Facility Manager at the time when Mr Deeley was the Care Manager at the facility. 3. In his evidence in chief Mr Deeley said he separated in 2009 from his then wife. The separation included a contentious and difficult custody battle over his 2 children for a period of 5 years. He said his children were removed from New South Wales. He was experiencing depression and significant financial stress. His deregistration also caused significant anxiety and led to further financial stress contributing to his separation. 4. The Tribunal asked Mr Deeley to reflect on his prior conduct. He said 'I was a bloody fool. My aspirations were to be a nurse. I hurt colleagues along the way, whom I was close to. I need to have the trust of colleagues to be a good nurse… it is important to have trust of colleagues to work in part of a team.' He went on to say 'If trust between colleagues is not there it can lead to dishonesty and poor health care outcomes for patients.' He said what he did was out of line ethically and he allowed his personal stressors to break boundaries which were not in keeping with the Code of Conduct of a nurse and the profession. He said he recognised it is important to adhere to the Code of Conduct to ensure quality care can be provided and to ensure the public can have trust in a profession to provide such care. 5. Mr Deeley said that he has demonstrated that he can be a reliable practitioner in that he has continually worked in aged care, while not providing clinical care he has managed staff within the facility, attended and participated in training of those staff and his own. He said he has recognised his failings and ensures, as it relates to paperwork, 'I keep things documented correctly so that there can be no further incident of any fraudulent activity.' 6. Mr Deeley said in reflecting on both the standards for a registered nurse and legal ramifications with respect to a breach of the Code of Conduct he recognises his actions were wrong. He acted fraudulently and his personal reputation 'was shattered which cast doubts over the reputation of other colleagues and the profession.' 7. In relation to the other related matters, such as the Centrelink fraud, he was confused with the way in which he had to report his income which led to him being overpaid. 8. In relation to an offence of larceny in 2015, he said he had just got his children back after a long and protracted difficult court battle. They wanted Christmas lights and at that time he did not have the money to pay for them. He got caught stealing and regrets his actions in that regard. 9. Mr Deeley said in relation to dealing with financial stressors now he does not have credit cards and if a purchase is not within his budget and he cannot afford something, he will go without. He now works within his budget and only purchases things which he can afford. 10. We note that the two sets of Christmas lights and cable clips were to the value of $146.90. Mr Deeley pleaded guilty to that offence. 11. Exhibit 2 relates to a Court attendance notice concerning a charge under the Commonwealth Criminal Code for using a carriage service to menace/harass/offend. The events related to an incident on 7 February 2010 at Ettalong Beach between 6.45 p.m. and 9.05 p.m. The facts of the offence relate to Mr Deeley sending a number of text messages to the victim's phone which can only be described as distasteful, offensive and no doubt sent to menace and harass the victim. Mr Deeley said that the event related to a friend of his receiving calls from the victim. He 'got involved and stupidly started messaging' the victim. He said he has learnt that his conduct is harassment and he is particularly mindful of how he communicates. He said he was 29 at the time of the offence. He is now 41 years of age and recognises the immaturity in which he participated and engaged in that conduct. 12. In cross-examination Mr Deeley was asked questions about his Curriculum Vitae he put before the Tribunal (Ex B). In his employment history he had not included his employment at the Mirrabook Unit. He said he had not included a reference to his employment at the Mirrabook Unit at Shellharbour Hospital because it was embarrassing. He agreed that if he was relying upon this Curriculum Vitae to obtain job applications it would be a breach of the health Code of Conduct and the Code of Conduct for nurses in not including his experience in that regard. Mr Deeley accepted that it is only he who is responsible for his behaviour and conduct in fraudulently making claims for work and completing timesheets he did not undertake the work for. He denied that he falsely reported to Centrelink and said that he was not ever relying upon Centrelink income. Reporting to Centrelink in relation to unemployment benefits was new to him. His pay period overlapped and he had to work out the daily rate and the tax amount to report to Centrelink which he did not do correctly. He rejected that he fraudulently reported to Centrelink because he was under financial stress. However, he then agreed that he had reported to Centrelink that it was the wrong thing to do. And when asked that question he said it was not and disagreed when it was asked if he was reporting incorrectly. Mr Deeley's evidence was confusing in this regard. However, it appeared he was not fully understanding the questions and the Tribunal had to ask him a number of times to clarify his answers, which was of no real assistance to us. We do not find he was being untruthful in his evidence but was having difficulty understanding the questions put to him. 13. In relation to the offences under the Commonwealth Criminal Code, Mr Deeley was truthful in his evidence and conceded that his text messages to the victim would have caused hurt to the person and harassed them. He agreed it was a highly inappropriate thing to do and particularly for a trusted nurse. In that regard he agreed by answering 'definitely' to a question about whether the messages he had sent to the victim were inconsistent with the beliefs and values of a nurse. He agreed that his conduct was bullying and harassing and was not conduct becoming of a nurse. However, he disagreed that such conduct could encroach into his professional life. There is no evidence that it has in the past. It is unlikely to in the future, particularly given Mr Deeley's reflection on his past behaviour. We accept his evidence in this regard. 14. Mr Deeley accepted that his prior conduct in all aspects of the matters concerning the 2010 Decision, the theft at Bunnings, his dealings with Centrelink and also the text messaging incident were all matters which could damage the reputation of the nursing profession. He said that his conduct evidenced that he did not act with integrity, and such conduct is not appropriate when caring for people in a position of vulnerability, such as those in aged care. When asked whether his past behaviour now presents a risk to vulnerable patients, he answered that he disagreed with that proposition, because he has learnt from his mistakes and has 'changed'. 15. In re-examination Mr Deeley said that he recognises and takes responsibility for his past conduct. However, he submitted that a significant period of time has passed since his prior offending. Indeed, the last incident occurred in 2015, some 8 years ago, when he was charged with larceny at Bunnings. Mr Deeley said that he has not had any mental health episode, nor has he been treated for depression for many years. He has undertaken further studies which include re-engaging with ethics, the Code of Conduct and the professional obligations of a nurse which he must be accountable for if he is to continue in the nursing profession. He said he would comply with the proposed conditions that the HCCC has considered might be appropriate should his registration be reinstated. He concluded by saying he recognises that having registration as a nurse is not 'a given' that he has to earn it and hold it with a great deal of integrity. He believes he has changed and he is able to carry out the role of a nurse in a respected way which is expected of the profession and the public generally. When reflecting on the text messages he sent, he stated that it was a one off event. He has not spoken like that since that time and when reading through the messages he said it makes him look 'quite pathetic' and that at that time he thought it was acceptable to talk to people in that manner. Since that time he recognises his failings and would not engage in such conduct again. Evidence of Sandeep Patel 1. Mr Sandeep Patel provided a character reference for Mr Deeley dated 17 March 2023, which he affirmed in his evidence in chief. Mr Patel said that Mr Deeley was employed as a personal care assistant in October 2016. Over time Mr Deeley progressed to a team leader, which role he achieved by demonstrating his leadership, attention to detail and skills. In May 2022, Mr Deeley was promoted to a Care Manager, working closely with Mr Patel and a registered nurse, who provided clinical care. Mr Patel said that Mr Deeley demonstrated an ability to obtain essential information, accurately assess that information and document a plan concerning residents' care needs in the aged care facility's records. He ensured that residents' care was given a priority by the facilities clinicians and supported their activities of daily living. He referred to Mr Deeley's professional approach to staff within the facility. In that regard he said Mr Deeley assisted and provided guidance to employees with his knowledge and encourages staff to research and reference topics of health relating to aged care. Mr Patel speaks favourably of Mr Deeley's demonstrated rapport between residents, staff and their families. In conclusion, he said he has no concerns with Mr Deeley's 'working abilities' and speaks highly of his ability to manage nursing studies with his professional obligations concerning employment at the aged care facility. 2. Mr Patel wrote a second letter on 4 May 2023 which records that he was aware of the 2010 Decision at the time he wrote his first character reference. Notwithstanding that decision, Mr Patel encouraged Mr Deeley to apply for his reregistration following him completing his Bachelor of Nursing Degree at the University of Wollongong. This is because Mr Deeley was described by Mr Patel as a person who brings a positive approach when delivering person centred care to residents at the aged care facility. Mr Deeley also demonstrated leadership and support to his colleagues, whilst continuing to excel in his ability to gather, formulate and implement change for residents' care. 3. In cross-examination Mr Patel's evidence was not disturbed. He said that he fully trusted Mr Deeley and found that he was responsible in carrying out all aspects of his role. During the time in which Mr Patel worked with Mr Deeley he was not aware of any complaints or performance management issues. He described all those working with him as 'loving him' and that he provided a care environment with no issues concerning trust. 4. The matters concerning the Centrelink fraud, the use of a carriage service to harass and menace and the Bunnings larceny conviction were put to Mr Patel. Despite being made aware of those matters, Mr Patel did not resile from his favourable view and support of Mr Deeley's character. 5. We find Mr Patel to be a reliable witness and accept his evidence. Evidence of Dr Verman Dela Cruz 1. Mr Deeley relies upon a Medical Certificate of Dr Verman Dela Cruz dated 7 March 2023. In that regard Dr Dela Cruz opines that Mr Deeley's mental health 'has improved a lot and he has not needed to take medication for it since 2015.' This is consistent with Mr Deeley's evidence that he has not been treated for any mental health related condition, including anxiety and/or depression, since 2015. This weighs in his favour. Discussion and findings The 2010 findings 1. As noted above, this review is not a rehearing of the decisions made in 2010 or the findings made in connection with the making of those decisions. However, in order to determine whether Mr Deeley has discharged the onus of demonstrating the reformation of character referred to in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448; [1967] 1 NSWR 357, so that the Tribunal can be satisfied that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, the Tribunal notes the following findings from the 2010 Decision at [125]: "… While the Tribunal could accept that from time to time a 'one off' error may occur, the conduct of the Respondent is repeated over an extended period of time and involved a pattern of deceptive behaviour and the falsification of documentation. There is no doubt that this conduct was premeditated. …" 1. The Tribunal went on to find at [129] – [134]: "129. The Tribunal is of the view that the conduct of the Respondent is of a sufficiently serious nature to warrant the removal of the Respondent's name from the Roll. The Tribunal accepts the submissions made by the HCCC in this regard. 130. This is not a matter where the public safety has been put at risk by the Respondent. It is, however, a matter that has brought the profession into disrepute, and demonstrates that the Respondent abused the trust reposed in him by his employer and his colleagues. The Tribunal also plays a role in deterring conduct of a similar nature. 131. The breach of the trust placed in the Respondent was of [sic] substantial. He preyed upon his colleagues and, in particular, upon inexperienced colleagues and placed them in a difficult position. 132. There is nothing in the evidence or the conduct of the Respondent that would allow the Tribunal to conclude that conditions on the Respondent's practice would be sufficient to fulfil the role of this Tribunal. The Tribunal is of the view that the appropriate order is to remove the Respondent's name from the Roll. 133. There are a number of aggravating factors the Tribunal has considered in fixing a time for which the Respondent may not be enrolled. 134. The Respondent has shown a high level of disregard for the processes of the Tribunal. On one level it could be said that the Respondent spun a continuous string of untruths to put off the ultimate determination of this matter by the Tribunal. From the contents of the affidavits of service made by the process servers, who made numerous attempts to serve the initial complaint on the Respondent, to the most recent events the Tribunal is of the view that there is little in the conduct of the Respondent that would allow the Tribunal to repose confidence in the Respondent to comply with conditions. Further, the Tribunal would not be confident that the Respondent will remedy the defects identified by findings in this matter in a short period of time." 1. Honesty is fundamental to nursing which is set out in the ICN Code of Ethics for nurses, requiring that nurses demonstrate professional values such as respect, trustworthiness and integrity. We are satisfied that the practitioner has demonstrated that he is reformed, particularly where the findings made by the Tribunal in the 2010 proceedings are not such that we could make for the following reasons. The practitioner has accepted his prior conduct was a breach of both his personal integrity and the integrity of the profession generally. He recognises that he placed his colleagues in difficult positions and breached their trust. He recognises that this conduct can ultimately lead to a breakdown in the provision of continuity of care to members of the public by nurses. 2. The practitioner's most recent conviction related to the 2015 Bunnings larceny charge. We accept the practitioner's explanation for his conduct. We are satisfied that the acrimonious Family Court proceedings have concluded. Mr Deeley recognises that he must maintain a budget concerning his finances and accepts if he cannot afford something, he does not purchase that item. His financial position is improved since 2015. This weighs in his favour. We have placed significant weight on the favourable reference of Mr Patel. Considerable weight has also been placed on the practitioner's stable mental health and that there has been no requirement for any medical intervention for treatment for depression since 2015. 3. The practitioner has undertaken further studies and obtained a Bachelor of Nursing Degree. This weighs in his favour. As part of that course, he has undertaken a further review of the ethics expected of a nurse, the relevant codes of conduct and how his prior conduct has breached those codes and where his behaviour crossed various boundaries and thresholds in terms of the trust expected both of his peers, colleagues and the public. The practitioner has reflected on his dishonesty and how his character has been reformed. He participated in an appropriate way in these proceedings and did not attempt to minimise his prior conduct in any way. Cancellation no longer remains appropriate. This is because we are satisfied that the practitioner has taken sufficient steps to improve his knowledge, education and reformation of character which in our view is suitable to return to the practice of nursing. In making this finding we have taken into consideration the submissions of both parties and the HCCC's submission that it neither consents nor opposes the application for reinstatement. Considering all of the factual material and evidence before us, we are satisfied that the practitioner has established the requisite onus. Conditions of reinstatement 1. In deciding to reinstate the practitioner's registration the HCCC proposed the following workable conditions be imposed. Mr Deeley said should he be successful in his application he agreed with the conditions as proposed by the HCCC as being appropriate. We find, at least at this time, those conditions are reasonable and necessary for the protection of the public. They are to be imposed on the practitioner as follows: a. the Applicant is not to be the nurse in charge of any shift, ward or unit; b. the Applicant is not to work as the sole practitioner on any shift; c. the Applicant is to practice under indirect close supervision in accordance with the Nursing and Midwifery Council of New South Wales (Council) Regulatory Supervision Policy (as varied from time to time) and as subsequently determined by the Council and: - must nominate a supervisor for approval with the Council 14 days prior to commencing work or as specified by the Council; - must authorise the approved supervisor to provide written reports to the Council (which meet the standards required by the Council) at quarterly intervals, or as specified by the Council for a minimum cumulative period of 12 months and until the Council advises the Applicant otherwise in writing. d. the Applicant is not to practice until a supervisor has been approved by the Council and has been provided with a copy of this decision; e. the Applicant is to forward evidence to the Council within 7 days of his employment as a nurse, or any change in his employment, that he has provided a copy of this decision to his employer; f. the Council is the appropriate review body to review these conditions; g. to authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at any places where the Applicant works as a health practitioner in Australia of any issues arising in relation to compliance with these conditions. 1. We are satisfied the practitioner can be trusted to comply with these conditions, such that there is no substantial risk of working in health services in the future. Costs 1. The HCCC seeks an order that Mr Deeley pay its costs of these proceedings. Mr Deeley did not oppose a costs order being made. The Tribunal's power to order costs, as conferred by Sch 5D cl 13 of the National Law, in the context of an application for a reinstatement order and given the role of the HCCC in such proceedings, was discussed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. At [87] of that decision, the Tribunal concluded: "… A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused." 1. As was the case in Ristevski, in this application the HCCC proceeded in an appropriate way. The Tribunal concludes that an order that Mr Deeley pay the costs of the HCCC should be made. Orders 1. The orders of the Tribunal are: 1. Pursuant to s 163B of the Health Practitioner Regulation National Law (the National Law) a reinstatement order is made in respect of Robert Deeley (the practitioner) subject to the following conditions: a. the Applicant is not to be the nurse in charge of any shift, ward or unit; b. the Applicant is not to work as the sole practitioner on any shift; c. the Applicant is to practice under indirect close supervision in accordance with the Nursing and Midwifery Council of New South Wales (Council) Regulatory Supervision Policy (as varied from time to time) and as subsequently determined by the Council and: - must nominate a supervisor for approval with the Council 14 days prior to commencing work or as specified by the Council; - must authorise the approved supervisor to provide written reports to the Council (which meet the standards required by the Council) at quarterly intervals, or as specified by the Council for a minimum cumulative period of 12 months and until the Council advises the Applicant otherwise in writing. d. the Applicant is not to practice until a supervisor has been approved by the Council and has been provided with a copy of this decision; e. the Applicant is to forward evidence to the Council within 7 days of his employment as a nurse, or any change in his employment, that he has provided a copy of this decision to his employer; f. the Council is the appropriate review body to review these conditions; g. to authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at any places where the Applicant works as a health practitioner in Australia of any issues arising in relation to compliance with these conditions. 1. The Nursing and Midwifery Council of New South Wales is the appropriate review body in respect of order (1) of these orders. 2. In the event that the practitioner resides other than in New South Wales then s 125-127A of the National Law shall apply. 3. The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to the application as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2023