Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Verdugo [2024] NSWCATOD 2 Hearing dates: 21 and 22 February 2023 Date of orders: 08 January 2024 Decision date: 08 January 2024 Jurisdiction: Occupational Division Before: R Lethbridge SC, Senior Member C Sippel, Senior Member S Smiltnieks, Senior Member J Barker, General Member Decision: 1. That the tribunal finds the Respondent Mauricio Alejandro Verdugo guilty of unsatisfactory professional conduct pursuant Sections 139B(1)(a) and 139B(1)(l) of Health Practitioner Regulation National Law (NSW). 2. That the tribunal finds the Respondent Mauricio Alejandro Verdugo guilty of Professional Misconduct pursuant to Section 139E of the Health Practitioner Regulation National Law (NSW) 3. That pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the name of the patient referred to in the schedule attached to the Amended Complaint as Patient A. 4. That the Commission's application for costs of the proceedings be stood over to be dealt with at the conclusion of Stage 2 of these proceedings. 5. That these proceedings be re-listed for directions as to its progress to a Stage 2 hearing. Catchwords: Health – Nursing – Unsatisfactory Professional Conduct – Professional Misconduct – where practitioner engaged in a sexual act with a patient under his care under a hospital high dependency unit – findings at Stage 1 to proceed to Stage 2 consideration Legislation Cited: Health Practitioner Regulation National Law (NSW). Evidence Act 1995 (NSW). Civil and Administrative Tribunal Act 2013 (NSW). Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336. Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41. Chen v Health Care Complaints Commission [2017] NSWCA 186. Gautam v Health Care Complaints Commission [2021] NSWCA 85. Gersbach v Gersbach [2018] NSWSC 1685. Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173. Health Care Complaints Commission v Goyer [2019] NSWCATOD 121. Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 38. Lucire v Health Care Complaints Commission [2011] NSWCA 99. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. R v Byrnes & Hopwood (1995) 183 CLR 501. Re W (Sex Abuse; Standard of Proof) (2004) FLC 93-192. Sullivan v Civil Aviation Authority [2014] 226 FCR 555. WK v SR (1997) FLC 92-787 at [47]. Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mauricio Alejandro Verdugo (Respondent) Representation: Counsel: C Akthar (Applicant) A Wilson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Fourtree Lawyers (Respondent) File Number(s): 2022/00196139 Publication restriction: The publication of the name of Patient A is prohibited under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW). REASONS FOR DECISION Introduction 1. On 5 July 2022, the Health Care Complaints Commission (the Commission) commenced disciplinary proceedings in the Tribunal seeking orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Mr Mauricio Alejandro Verdugo (the Practitioner). The Practitioner was, at the time the matters complained of arose, registered as an Enrolled Nurse. The Evidentiary Certificate provided by the Australian Health Practitioner Regulation Agency (Ahpra) established that the Practitioner's registration lapsed on 2 July 2021 and there had been no application for renewal since that date. At the time the Practitioner's registration lapsed it was subject to a condition placed upon it on 10 October 2019 by the Nursing and Midwifery Council of NSW (the Council) which precluded work as an enrolled nurse until reviewed by the Council. 2. On 20 February 2023, the Commission filed with the Tribunal an Amended Complaint. The amendments sought were to correct two dates contained in the Original Complaint; neither date being controversial, the amendment was allowed. The hearing proceeded on the basis of the Commission's Amended Complaint to determine at Stage 1 of the hearing process whether the Commission's complaints were proven. Background 1. The Practitioner, 41 years of age, obtained a Diploma of Nursing in 2014 and was first registered to practice as a nurse on 23 January 2015. The Practitioner had worked at the Henley Unit, Macquarie Hospital. He was employed as an Enrolled Nurse in the High Dependency Unit of the Gosford Mental Health Inpatient Unit at Gosford Hospital at the time the statements giving rise to these proceedings were made. A mandatory notification as a consequence of those statements was received on 5 July 2019 from the Central Coast Local Health District. 2. The notification reported complaints first made in April 2019. The complaints related to the period November / December 2018 and included that the Practitioner entered a bathroom in the hospital high dependency unit at his place of employment with a female patient (Patient A) and closed the door for approximately 4 minutes. Patient A said that a sexual act had taken place. The Practitioner denied any wrongdoing. 3. The parties agreed that between 28 November 2018 and 4 December 2018, Patient A was an involuntary in-patient in the high dependency unit at Gosford Hospital. It was further agreed that during the period of admission between 28 November 2018 and 4 December 2018, the Practitioner provided nursing care to Patient A. 4. Patient A was re-admitted as an involuntary patient to the hospital high dependency unit on 3 April 2019. Following that re-admission, the Practitioner again provided nursing care to Patient A. It was during this admission that on the date of the admission Patient A first made statements to Nurse Practitioner Ms Kate Davis, alleging facts which if established would constitute misconduct of a sexual nature by the Practitioner. That conduct was said to have occurred during Patient A's earlier admission to the hospital in November 2018 and between 28 November 2018 and 4 December 2018. 5. The disclosure to Ms Davis was reported on 5 April 2019 to Ms Laura Christie, a Nurse Practitioner who was the Nursing Unit Manager at the Gosford Mental Health Inpatient Unit. It was common ground before the Tribunal that in the period 3 April 2019 to 9 April 2019, Patient A made similar complaints to other members of the nursing staff concerning the conduct of the Practitioner during the earlier admission to the hospital. 6. Following these complaints, the NSW Police Force was informed of the allegations and the Practitioner was placed on special paid leave from 10 April 2019 pending a formal investigation. The evidence before the Tribunal established that Police had been unable to obtain any statement from Patient A. The evidence before the Tribunal also leads to the inference that nothing has changed in relation to that matter and police investigations since that date have been suspended. 7. Proceedings under s 150 of the National Law were convened and a decision by the Council delivered on 12 August 2019. The Council found that it had not been established that it was appropriate to take action under s 150(1) of the National Law for the health or safety of any person or otherwise in the public interest. Separately, however, to the hearing which led to that determination the Central Coast Local Health District had commissioned a misconduct investigation report from Weir Consulting Pty Ltd. That report authored by Ms Christa Ludlow dated 1 August 2019 became available. As recommended by the first s 150 Committee that the matter be re-considered upon receipt of the report, a second s 150 hearing took place on 10 October 2019. As a consequence, on 30 October 2019, that committee ordered that pursuant to s 150(1)(b) of the National Law a condition be placed on the Practitioner's registration to the effect that he not work as an Enrolled Nurse until reviewed by the Council. As set out above, the Practitioner's registration lapsed on 2 July 2021 with that condition still in place. The Commission's Complaint and the Orders Sought 1. The Commission seeks orders in the following terms: 1. An order under s 149C(4)(a) of the National Law that if the Practitioner was still registered the Tribunal would have cancelled his registration; 2. An order under s 149C(4)(b) of the National Law that he is disqualified from being registered in the health profession for 5 years; 3. An order under s 149C(4)(c) of the National Law that the Board is required to record the fact that if the Practitioner was still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board; 4. A prohibition order prohibiting the Practitioner from providing a health services as defined in s 4 of the Health Care Complaints Act 1993 for the same period as the non-review period imposed; 5. An order under Clause 13 of Schedule 5D of the National Law that the Practitioner pay the Commission's costs as agreed or assessed. 1. In addition, the Application filed sought a non-disclosure order with respect to the witnesses listed in the Schedule attached to the Complaint which was filed contemporaneously with it. A schedule in the same terms was annexed to the Commission's Amended Complaint, both named Patient A as the person's name it was sought not be disclosed. 2. The orders sought by the Commission at the close of the hearing deviated from those sought in the Complaint originally filed with the Commission. The amendments arise as a consequence of the Practitioner no longer being registered to practice as a nurse and sensibly no point was taken on the Practitioner's behalf by counsel who appeared for him in relation to those differences. 3. On 3 February 2023, a Reply to the Application for Disciplinary Findings was filed on the Practitioner's behalf. Except with respect to the non-publication order sought by the Commission, all other orders both in their original form and as amended sought by the Commission were opposed. 4. Omitting the formal parts, the Commission's Amended Complaint comprised two (2) complaints and particulars in the following terms: Complaint One 1. The Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law, in that the Practitioner has: 1. Engaged in conduct that demonstrates the judgment possessed, or care exercised, by the Practitioner in the practice of nursing is sufficiently below the standard reasonably expected of a Practitioner of an equivalent level of training or experience; and/or 2. Engaged in improper or unethical conduct relating to the practice or purported practice of nursing; Each of the Particulars (i) to (iv) in themselves justifies a finding of unsatisfactory professional conduct. Particulars of Complaint One 1. During the period 28 November 2018 and 4 December 2018, while Patient A was an involuntary in-patient in the hospital, the Practitioner failed to observe professional boundaries when he engaged in inappropriate touching with Patient A including: 1. On one occasion, when the Practitioner sat next to Patient A on the bed in her room with his leg touching her leg; 2. On one occasion, when the Practitioner put his hand on the leg of Patient A without any clinical reason to do so; 3. On one occasion, when the Practitioner allowed Patient A to hold her finger to his shoe while sitting in Patient A's room. 1. During the period 28 November 2018 and 4 December 2018, while Patient A was an involuntary in-patient in the hospital, the Practitioner failed to observe professional boundaries in that he shared personal sexual information with Patient A including: 1. That he had an "open" sexual relationship with his wife; 2. That his wife did not like sex. 1. During the period 28 November 2018 and 4 December 2018, while Patient A was an involuntary in-patient in the hospital, the Practitioner failed to observe professional boundaries in that he engaged in inappropriate conversation with Patient A including: 1. That he and his wife were considering adopting Asian children and may be they could also adopt her; 2. That Patient A could live in his backyard in his home; 3. That he knew Patient A's phone number details and residential address; 4. That he would try to visit Patient A on days when he was not allocated to work in the hospital high dependency unit; 5. That Patient A should use the word "pineapple" in order to get the Practitioner's attention if she felt unsafe in the ward. 1. On 4 December 2018, between 9.26 am and 9.31 am, while Patient A was an involuntary in-patient in the hospital, the Practitioner failed to observe professional boundaries when he engaged in a sexual act with Patient A namely when Patient A performed oral sex on him in the bathroom of the hospital high dependency unit in circumstances where the bathroom door was closed. Complaint Two 1. The Practitioner is guilty of professional misconduct under s 139E of the National Law in that the Practitioner has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration, 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 the Practitioner's registration. Particulars of Complaint Two 1. Complaint One, Particular (iv) is relied upon individually. 2. Complaints One and Two and the Particulars thereof are relied upon cumulatively. 1. In the Reply filed on his behalf, the Practitioner denied the matters alleged in Complaints One and Two and each of the particulars said to establish each of those complaints. The relevant law Sections of the National Law said to be breached 1. Section 139B(1)(a) and (l) of the National Law are in the following terms: 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: (a) conduct sufficiently below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by a practitioner in the practice of the practitioner's profession is sufficiently below the standard reasonably expected of a practitioner of an equivalent level of training or experience; (b)-(k) [omitted] (l) other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 139E provides as follows: 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 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. The evidence relied upon by the parties 1. The Commission relied upon a Bundle of Documents tabulated 1 to 41. Those documents, subject to objections, one aspect of which is specifically dealt with in these reasons, were admitted into evidence as Exhibit 2. 2. The Practitioner relied upon the following material: 1. The Code of Ethics for Nurses in Australia which became Exhibit 3; 2. The NSW Health Policy Directive, Sexual Safety - responsibilities and minimum requirements for mental health services which became Exhibit 4; 3. A report received by the Tribunal from Dr Olav Nielssen, dated 4 February 2023, together with letters of instructions and Appendices A to K which became Exhibit 5; and 4. The Witness Statement of the Practitioner, sworn on 20 January 2023, along with appendices which became Exhibit 6. 1. One area of the Commission's evidence to which the Practitioner took objection was references within it to a number of prior patient complaints of inappropriate behaviour of a sexual nature concerning the Practitioner while working at the nursing facility of a prior employer. The conduct was identified in the material before the Tribunal. That material contained no direct evidence by way of statement or otherwise from the complainants or those to whom any complaint was directly made. The material before the Tribunal, however, was sufficient to establish that one of the complainants had a history of making false allegations against staff. Further, that material established that none of the complaints had progressed to a point where any adverse finding was made with respect to the Practitioner. 2. The Evidence Act 1995 does not apply to proceedings before the Tribunal. [1] It follows that there may be circumstances where evidence of the type objected to would be admitted. However, the "evidence" objected to was hearsay upon hearsay material. It was potentially highly prejudicial and related to complaints which had not led to any adverse findings being made about the Practitioner's conduct. If allowed what would remain were a series of allegations of prior misconduct, not established and where the Practitioner had no reasonable capacity to challenge the maker of the statement or cross-examine the parties to whom statements were made. The Practitioner's objection was upheld and an Agreed List of the Material covered by the Tribunal's Ruling became Exhibit 7 in the proceedings. The process of the hearing at Stage 1 1. Counsel for the Commission submitted, and the Tribunal agrees, that as these are Stage 1 proceedings, the first step to be undertaken by the Tribunal is to consider as required by s 149(a) of the National Law whether on the evidence the subject matter of the complaint is proven and unsatisfactory professional conduct is established. In the event that unsatisfactory professional conduct is established then the Tribunal where, as is the case in these proceedings, professional misconduct is also alleged must consider whether within the meaning of s 139E of the National Law that is also established. 2. The basis upon which the Commission alleges unsatisfactory professional conduct is set out in the particulars already recited. Although not specifically stated in the legislation, "unsatisfactory professional conduct" may be established by a series of specific particulars of conduct which separately or together satisfy the test. [2] 3. The approach to the evidence necessary to establish conduct significantly below a reasonable standard is well-established and has been held to comprise the following process: Determining whether the "knowledge, skill or judgment" possessed by the practitioner, or the "care exercised" by the practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be obtained: and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below the standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such. [3] The test to determine these matters is objective [4] and the Commission bears the onus of proof. 1. Section 139E of the National Law does define "professional misconduct" and permits a single instance or a series of instances of "unsatisfactory professional conduct" when taken together to amount to conduct attracting the application of the section. As counsel for the Commission submits in Chen v Health Care Complaints Commission, Basten JA (Leeming and Payne JJA agreeing) articulated the test for misconduct in the following terms: [5] 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. The standard of proof to be applied by the Tribunal 1. The Tribunal is not bound by the rules of evidence and therefore s 140 of the Evidence Act 1995 does not bind its deliberations. However, this does not mean that this Tribunal is unrestrained in weighing the evidence placed before us and making findings of fact on the basis of that evidence. As is now well-established by authority which binds us, the approach which we must take is that the Tribunal must be "comfortably satisfied" that each complaint alleged by the Commission has been established on the balance of probabilities. The Tribunal must have regard to matters including the seriousness of the complaint the potential seriousness of the consequences of its proof for the Practitioner. [6] 2. At the commencement of the hearing, counsel for the Practitioner quite properly submitted that it would not be argued that if established the conduct alleged against the Practitioner would require significant sanction. Any complaint involving sexual impropriety by a nurse practitioner involving a patient under his or her care would almost certainly fall into that category being a complaint, if established, of considerable seriousness. That would certainly be the case here where Patient A is involved if the fourth particular is established. Consequently, counsel for the Practitioner further submitted and the Tribunal agrees reflecting the seriousness of the complaints made here was that any finding proven will have long-term effects and remain with the Practitioner for life. 3. The standard of proof necessary to establish "comfortable satisfaction" to the requisite level of proof necessary before this Tribunal has been the subject of considerable judicial consideration of how the gravity of matters alleged is to be taken into account. 4. In Briginshaw, [7] Dixon J (as he then was) said in relation to the standard of proof in civil matters as follows: But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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 to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. 1. The relevance of the seriousness of the conduct alleged to the strength of the evidence necessary to establish it was considered in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, [8] where in their joint judgment, Mason CJ, Brennan, Deane and Gaudron JJ said: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. 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 or cogent or strict proof is necessary "where so serious a matter as fraud is to be found" [authorities omitted]. 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. 1. The application of the Briginshaw test in matters involving sexual impropriety has been considered by the Full Court of the now Federal Circuit and Family Court of Australia where the Court has said: In children's matters under Part VII of the Family Law Act where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial judges' find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof that they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony or indirect inferences are insufficient to ground a finding of abuse. [9] 1. The Tribunal is also mindful of decisions of the Full Court of that Court when considering the weight to be attached to expert evidence of psychiatrists and psychologists where they have had no opportunity to see or hear from the relevant actors. That is the case in these proceedings in relation to the expert report of Dr Olav Nielssen which became Exhibit 5 in the proceedings. In relation to such evidence, the Full Court has said: [10] In Re W & W (Abuse Allegations; Expert Evidence) (2001) FLC 93-085, Nicholson CJ and Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at [147], "… there are grave dangers in reliance upon expert evidence in such circumstances". 1. The Tribunal intends no criticism of Dr Nielssen who not having seen Patient A has qualified his opinions appropriately. Indeed, no objection is taken to his report. However, it remains a matter of caution to be exercised in placing weight upon the opinions expressed by Dr Nielssen in relation to, for example, the degree of disturbance of Patient A's state of mind and the possible consequences of her diagnosis as recorded when he did not have the benefit of contemporaneous examination. 2. Most recently the degree of satisfaction to be applied in this Tribunal when matters of sexual impropriety are alleged was considered by the Court of Appeal in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [87]-[88]: [87] In any event, that phrase [comfortably satisfied] correctly encapsulates the test and is commonly used in the context of proceedings such as the present: Kumar v Legal Services Commissioner [2015] NSWCA 161 per Leeming JA at [60] (with whom Basten JA agreed): "[60] Mr Kumar denied all this, on his oath, and was cross-examined on it. But there was and is no plausible explanation inconsistent with deliberate dishonesty. The fact that the explanation was advanced for the first time on the third day of the hearing, years after the event, reinforces my conclusion. I am conscious that the finding is extremely damaging to Mr Kumar; indeed, it is destructive of his professional career and professional status and reputation. Such a finding should only be made in accordance with s 140 of the Evidence Act 1995 (NSW) and the principles in Briginshaw v Briginshaw. But I am more than comfortably satisfied that such a finding should be made." [88] The Tribunal made express findings about the seriousness of the conduct which were not only open but hardly surprising. It was conduct that amounted to sexual impropriety directed to a vulnerable and emotionally dependent parent of a young patient with a complex and difficult condition. To quote Leeming JA in Kumar (a case where the Tribunal did not specifically refer to Briginshaw): "[63] Not lightly would it be inferred that the Tribunal approached its task in a way which was inconsistent with applying the correct standard of proof. A fair reading of its reasons makes it plain that the Tribunal was conscious of the seriousness of the allegations and the correspondingly heightened need to be satisfied that they were made out." 1. These are proceedings where the Tribunal, having regard to the authorities referred to above must and has had regard to the nature of the available evidence, the seriousness of the allegations and their potential consequences and therefore "the heightened need" that we are satisfied to an appropriate level that they are made out. 2. Counsel for the Practitioner in his submissions referred the Tribunal to the decision of Garling J in Gersbach v Gersbach, [11] where his Honour said at [393]: [393] It would be an unsatisfactory basis for the resolution of these proceedings for the Court to simply prefer one account over another solely on the basis of a witness's demeanour whilst giving evidence. A careful observation of each of the lay witnesses whilst they were giving evidence, particularly the plaintiff, the defendant and Ms O'Brien, showed that the experience of giving evidence was itself traumatic. After all, the individual lives of these family members and their combined family life was being put on public display. It cannot have been an easy experience for any of the family members. To resolve the evidentiary differences, it is appropriate to proceed by analysis of the evidence, including reference to the surrounding context, and all other relevant matters and circumstances. It is appropriate to search for and identify any corroboration which may exist, or may be expected to exist. 1. These are proceedings where it is not possible to compare the "evidence" of the primary actors, Patient A and the Practitioner. The Tribunal did have the benefit of seeing the Practitioner and assessing his demeanour when giving evidence. On the other hand, the Practitioner was deprived of the opportunity to challenge the primary source of the evidence led against him through cross-examination. That disadvantage must be taken into account as significant. Consistency in the terms in which an allegation is made remains a relevant factor but the weight that can here be attached to it alone must be significantly diminished. 2. The Tribunal therefore agrees with counsel for the Practitioner. He submitted that the position before this Tribunal was analogous to the position which faced Garling J in Gersbach. He pointed to the submission there made that the plaintiff's case was strengthened by the consistency in the complaint made. Counsel for the Practitioner submitted that just as was found to be the case in Gersbach, the consistency of the complaint should yield to other factors. He pointed to the facts in Gersbach where the likely truthfulness of the plaintiff was tainted by her being a regular user of crystal methamphetamine. Patient A has recorded history of drug abuse. Another relevant similarity between the plaintiff in Gersbach and Patient A was submitted to be there both suffering from borderline personal disorders and the consequences of those conditions affecting the reliability of statements made by them. Counsel's written submissions dated 6 March 2023 at [8]-[16] points to areas of the evidence before the Tribunal said to support these submissions. The Tribunal accepts that that evidence establishes that Patient A had been diagnosed with borderline personality disorder and that in relation to her drug use it was at the times set out in the evidence pointed to by counsel where she denied those, those denials were untruthful. [12] 3. It is to this aspect of the Practitioner's case that the evidence of Dr Nielssen is relevant and while his opinions must be qualified for the reasons already set out, that evidence remains relevant. There is therefore a need carefully to consider the weight to be attached to the evidence said to corroborate Patient A's statements. Discussion The statements made by Patient A 1. There is no sworn evidence nor statement adopted by Patient A or authored by her before the Tribunal. The conduct of the Practitioner giving rise to the complaints here arises from records of statements made by her to nursing staff who were called as witnesses. The evidence discloses that a number of attempts were made to obtain direct evidence from Patient A. Those attempts were made by officers of NSW Police and by Ms Christa Ludlow the author of a misconduct investigation report undertaken on behalf of Central Coast Local Health District. References to those attempts appear in the Commission's evidence. [13] In the circumstances, the Tribunal is satisfied that reasonable attempts were made to obtain direct evidence from Patient A. While no adverse inference can be drawn from the absence of evidence in that form, its absence is a matter going to the overall weight which can be attached to the existing evidence of statements made by Patient A. 2. The first statements by Patient A raising matters of concern were made to Nurse Practitioner Ms Davis, when Patient A was first admitted to the hospital high dependency unit on 3 April 2019. Ms Davis' witness statement which attaches a typed record of what was said appears annexed to that witness statement. [14] In part, Annexure A recounts the following: … She reported, "feeling / being 'groomed'" by this male "probably for this purpose". "He spent lots of time with me in my room. I would ask him to tell me stories like where he was from." She described one time he sat with her on the bed and his leg was touching hers, "I got the impression from what he was saying that maybe he or his wife had a history of trauma." She reported another time where they were spending time in her room, she reported, "I just held my finger on his shoe to feel grounded and close to him." She stated he disclosed personal information about him and his wife (named her) and the relationship, including alluding to his or her history of trauma with his wife being sexually / intimately "cold". Thereafter, they had an open-type relationship. She couldn't really recall at the time when he told her about the open relationship, later thinking it might have been just prior to the act or during." "He was in HDU quite a bit in the beginning but then there was a period where I would only see him briefly when he came in and out.", "He was cold.", "Said he wasn't allocated in HDU, but I'll try to come over." She reported that leading up to the act she felt like she had displeased him and needed to somehow please him. She reported that one day, "He came into my room and said, 'It's time.', and said we can go into the bathroom as there is no camera there." She reported, "I automatically assumed the position girls do. It's not like he was holding my head there. I'm not sure how it came about, whether I offered or he asked." She reports this was only once, "It didn't last long, maybe 2 or 3 minutes as he was nervous." She reports, "I'm not sure if it will be in the notes, you can check if you like, they may have said that I was singing out, 'pineapple', it was a 'safe word' he said I could say." She said, "He chose that because it's yellow like the sun and likes the summer fruit." He reportedly disclosed he and his wife were thinking of adopting Asian children and she stated to him she wished she could be adopted, "as I have no one", and she states he spoke about "maybe adopting me". She stated he told her, "I know your address. I have your phone number." She did not state that this was in a threatening manner. 1. On 9 April 2019, the Nurse Unit Manager, Ms Laura Christie, to whom Ms Davis had reported what was said to her by Patient A, interviewed Patient A. Also present was Ms Melissa Vella, a clinical coordinator at the hospital. Ms Christie's notes and a typed transcript of those notes appear in the evidence. [15] It is unnecessary to set out the detail of that interview. However, Patient A's statements remained relevantly consistent in a number of respects with the statements that she had initially made to Ms Davis. Patient A also made further statements during her second admission to another Nurse Practitioner Ms Deborah Morris. A statement by Ms Morris formed part of the Commission's evidence. Ms Morris recounts that she recalls Patient A having been an in-patient a few times before the relevant admission in April 2019. On 8 April 2019, Ms Morris was working the evening shift and towards the end of her shift she recalls being approached by Patient A at the nurses' station and asked whether she could be spoken to privately. Ms Morris agreed and during that conversation she gives evidence that Patient A said to her that she had had oral sex with a male nurse the last time she was admitted to the hospital. Ms Morris recalls that she was told that the nurse's name was Maurice. [16] Ms Morris' evidence is recorded in Appendices 'A' and 'B' to her statement being an interview with Ms Ludlow and a statement she gave to Police. 2. Nurse Practitioner, Ms Kate Davis, gave evidence before the Tribunal and was cross-examined. She had provided the statement to Police. She recounts in the Commission's evidence statements made to her by Patient A on 3 April 2019. The content of the conversation was recorded by the witness in writing on 4 April 2019 and appears in the Commission's evidence. [17] Counsel for the Practitioner did not challenge the accuracy of Ms Davis' record of what said to her; nor could there be any other reason to doubt its accuracy. The Tribunal is therefore satisfied that Patient A made the statements recorded by Ms Davis on 3 April 2019. 3. Nurse Practitioner, Ms Deborah Morris, gave evidence before the Tribunal. She said that the following exchange took place between she and Patient A on 8 April 2019: On 8 April 2019, I was working afternoon shift from 1.30 pm to 10.00 pm. I was in the nurses' station in the High Dependency Unit (HDU) when [Patient A] who was one of the patients came up to the window and said, "Debbie, can I speak to you please? Privately." I said, "Yes." I left the nurses' station and approached [Patient A] in the lounge area of the HDA. [Patient A] said, "I don't want to get anyone into trouble. But I have to tell you that a male nurse had oral sex with me in the bathroom. It was consensual." I said, "When did it happen?" [Patient A] said, "On my last admission last December." I said, "Where did this oral sex occur?" [Patient A] pointed to the end of the bathroom down the end of the hallway on the right. I said, "Who was the male nurse involved?" [Patient A] said, "Mauricio." I said, "What did he look like?" [Patient A] said, "The short Philippino male. I feel like I have been betrayed. I feel that he was grooming me over the past week before it happened. He said to me that I could come and live with him in the backyard." I said, "Are you sure it was oral sex?" [Patient A] said, "Yes, I put his penis in my mouth. It was quick. I don't want to get him into trouble. It was consensual. Can I speak to Laura about this?" [18] 1. The substance of the conversation between Patient A and Ms Morris was reported to Ms Christie, the Nursing Unit Manager, on the same date. [19] 2. The accuracy of Ms Morris' evidence of the conversation which took place between she and Patient A was not challenged and the Tribunal accepts that Ms Morris' evidence as to the conversation is accurate. 3. Nurse Practitioner, Ms Catherine Wildman, gave evidence that on 9 April 2019, Patient A approached her in the hospital high dependency unit and told her that she had been interviewed by Police with respect to an incident that occurred at the hospital. Ms Wildman gave a statement to Police on 10 May 2019. In that statement at [6], [7] and [8], Ms Wildman gave evidence in the following terms: [6] At 9.30 pm on 9 April 2019, I started my shift at work. I was working in the High Dependency Unit. I was working with Fiona Lynch and Shaun Kiernan. I recall just after one of my early rounds on checking the patients, I was in the nurses' station when [Patient A] approached the nurses' station. I came out of the nurses' station because I know [Patient A] does not like being spoken to through glass. I walked to the door and opened it and walked into the dining area where [Patient A] stood. [Patient A] said, "May I please have something to eat and drink? I didn't eat or drink during the day because the Police and Laura came to speak to me with Kate." I said, "Are you okay?" [Patient A] said, "I'm okay. It was to get a statement from me about what had happened. When I was brought down the hallway to come into the ward when I was admitted I saw him. I know he still works here but I haven't seen him working the ward since I have been here. On my last admission I was in the bathroom and he came into the bathroom whilst I was there. He pulled his pants down. I did that to him. [As she said this she pointed to my groin area.] It was consensual. I understand that because I am under the Mental Health Act, I don't have the capacity to consent. He had joked with me in that admission that he would take her home and she could live with him. We joked about me living in a cage in the backyard." [7] Several times during the conversation [Patient A] said, "Have I done the right thing?" Each time I reassured her that she was right in telling the Police and Laura about this. [Patient A] further said, "I want to tell someone what had happened because I'm worried that he may take advantage of younger and more vulnerable women. If I don't say anything it may happen to other people in his care." [8] I cannot recall the entire conversation with [Patient A] as it went on for about 30 minutes. At the completion of the conversation, I immediately made a record of it in her electronic medical record. Throughout the conversation I reassured [Patient A] that she was safe. At no stage did she disclose to me who the person was." 1. There was no challenge to the accuracy of Ms Wildman's evidence of what passed between she and Patient A on 9 April 2019. The Tribunal accepts that evidence. [20] 2. Nursing Unit Manager, Ms Christie, gave evidence before the Tribunal and was cross-examined. Ms Christie gives evidence of sighting the security footage from CC-TV within the Inpatient Unit which during the morning of 4 December 2018 showed Patient A and the Practitioner entering a patient bathroom. That CC-TV footage was placed in evidence before the Commission. 3. As earlier noted, Ms Christie also interviewed Patient A on 9 April 2019 in the company of Ms Melissa Vella, clinical coordinator of the Inpatient Unit. Ms Christie gives evidence that she made a written record of the conversation which took place during that interview. As we have said, there is a consistency, although not entirely, between the statements made by Patient A to Ms Christie on 9 April 2019 and when first made to Ms Kate Davis on 3 April 2019. The Commission accepts that Ms Christie's evidence has accurately recorded the statements made to her by Patient A during the interview on 9 April 2019. 4. It follows from what has been set out above that the Tribunal is comfortably satisfied that Patient A made the statements in interview with the Nurse Practitioners Kate Davis, Deborah Morris, Catherine Wildman and Laura Christie as recorded by each of them. The Tribunal agrees that to some extent there is consistency in Patient A's recorded statements. Counsel for the Commission included the following table in his written submission which he said, and the Tribunal agrees, indicates a consistency in Patient A's account of her alleged inappropriate contact with the Practitioner in her conversations with Nurse Unit Manager Ms Christie and Nurse Practitioners Ms Davis, Ms Morris and Ms Wildman. Content NUM Christie RN Davis RN Morris RN Wildman Adopting Children Yes Yes Adopting her Yes Yes Yes Yes Wife not liking sex Yes Yes Open relationship Yes Trauma Yes Yes Patient phone number Yes Yes Patient address Yes Yes Oral sex Yes Yes Yes Yes Bathroom location on right Yes Yes Yes Yes Short duration Yes Yes Yes 1. The table does not address Particulars 1(a), (b) and (c) of Complaint One; nor does it address Particulars 3(b), (d) and (e) of that complaint. 2. The Tribunal had available to it the hospital records including contemporaneous notes made by the Practitioner of his interaction with Patient A at relevant times. There was also the CC-TV footage already referred to which depicted the Practitioner and Patient A at times during the period it was said by her that oral sex had taken place in the bathroom. That CC-TV footage depicted the corridor outside the relevant bathroom and showed the Practitioner and Patient A entering and exiting the bathroom and what took place relevant to the complaint in the corridor prior to their entering whilst they remained inside and after they both exited the bathroom. That evidence proved extremely useful. It enabled the Tribunal to compare what was recorded, for example, in progress notes and otherwise said by the Practitioner to have taken place at the time the most serious of the matters complained of took place with what actually can be seen to have taken place at least during part of the relevant period. 3. Cross-examination of the nurse practitioners elicited from Ms Christie that a male nurse practitioner working one-to-one with a female patient including behind a closed door in a bathroom was not prohibited by relevant nursing policies. The absence of such a prohibition was confirmed by Ms Christa Ludlow whose report commissioned by the Central Coast Local Health District was in evidence and confirmed Ms Christie's evidence in this regard. 4. Ms Ludlow's report comprised a 63-page statement containing her analysis of the evidence she took and otherwise received and her conclusions based on that evidence. [21] Counsel for the Practitioner took objection to and was successful in having ruled inadmissible various parts of the evidence on which Ms Ludlow based her conclusions. Counsel for the Practitioner also submits and the Tribunal agrees that there was evidence before us not made available to Ms Ludlow relevant to the conclusions she reached. Whether or not Ms Ludlow might have reached a different conclusion without the material rejected and with the benefit of the additional material to which she was referred in cross-examination is not a matter which requires consideration by this Tribunal. The fact that Ms Ludlow on different material from the material before this Tribunal came to conclusions adverse to the Practitioner can have no probative weight in relation to the assessment we must make. The findings and opinions therefore expressed by Ms Ludlow are of value as a matter of history only. The conclusions we have reached are based upon an analysis of the evidence led before us including the admissible evidence before Ms Ludlow, but place no weight upon the analysis and findings in Ms Ludlow's report. What to make of Patient A's statements? 1. After admission on 3 April 2019, Patient A was examined by Dr Anthony Mason a senior medical officer who saw her at 12.59 pm. His progress notes record the following with respect to Patient A: [22] Review Drug induced mania secondary to ICE use Pressured Disinhibited – was not wearing underwear in public Labile Agitated Pressure of speech Impression manic Delusions about neighbours Delusion phone has been stole Plan chlorpromazine literate upwards Regular diazepam as agitated despite harmful use of drugs Form 1 – ill 1. Shortly before that examination, junior medical officer Dr Luke Viglione noted Patient A's psychiatric history to include diagnoses of severe borderline personality disorder and substance use disorder including benzodiazepines, opiates, THC, other stimulants. [23] 2. Ms Laura Christie's statement notes at [7]: [Patient A's] records show that when she arrived at the hospital on 28 November 2018 both her mental health and general physical health were poor. She was in a chaotic state and her thinking was disorganised. In addition to her mental health needs she was incontinent and had infected wounds on her arms. She was considered a high risk of falls. She needed help with activities of daily living such as showering and toileting. 1. Ms Christie's evidence is supported by progress medical notes which were before the Tribunal, for example, a note taken by junior medical officer Ms Lara Tereshchenko on 28 November 2018 which noted, among other things: Reportedly patient arrived at GP in wet nightgown, walked there through rain. Was complaining about incontinence related to ? rats. Patient was very pressured speech, labile. Very forthcoming with information however deviates inappropriately. 1. Patient A's borderline personality disorder diagnosis was also recorded. [24] 2. Dr Nielssen who reviewed hospital notes including those referred to above expressed the following opinion as to Patient A's mental state during her admission in the period 3 to 9 April 2019 in the following terms: The medical records show that Ms A was either in a state of toxic delirium or recovering from a psychotic episode during her second admission to the psychiatric ward of Gosford Hospital from 3.4.19. She was detained in the hospital under the Mental Health Act and closely observed because of concern for her safety. Her treating psychiatrist made the diagnosis of 'manic psychosis' secondary to the recent use of a relatively large quantity of methamphetamine, of 1.5 grams over several days. The medical certificates note the presence of persecutory delusions, thought disorder, labile mood and pressured speech, confirmed by nursing observations made in the days after the admission. The medical records also refer to the presence of a chronic and disabling form of mental illness, which features an unstable personality, a polysubstance use disorder and episode of either delirium or psychosis in which Ms A presented confused, disorganised in her communication and expressed persecutory beliefs. 1. Dr Nielssen's report noted the consequences of a borderline personality disorder and said as follows: The term 'borderline' is taken from the psychoanalytical concept of 'borderline psychotic' because of the often severe distortions of interpretation of events, which can resemble psychosis illness. The relevance of EPD is in the distortion of interpretation of communications, which typically results in inaccurate accounts of conversations and inaccurate interpretation of emotional reactions of other people. Those distortions can affect the reality of both recollection of events and any history elicited from people affected by the condition. A second common feature of the disorder is the fear of abandonment, which is manifested in care eliciting behaviour, such as threaten suicide, and can also manifest in false claims of victimisation as a way of attracting attention and eliciting sympathy and concern. 1. He said subsequently: [25] As set out above, BPD is associated with a pattern of distortion and interpretation of interpersonal communications and emotional responses, which can result in both unreliable memory and also deliberately false statements in order to avoid abandonment and to express anger at perceived rejection. 1. Dr Nielssen was not cross-examined so the accuracy of the opinions he expresses are not challenged. The weight that the Tribunal is able to give to those opinions is, however, subject to the limitation already noted that Dr Nielssen did not examine Patient A. His opinions rely upon the notes of third parties but those notes do not permit unless clearly stated the level of seriousness or associated conditions which affected or may have affected Patient A to be accurately ascertained. His opinions must be considered general to the condition diagnosed but not necessarily conclusive when specific to Patient A throughout each admission. The qualification is supported by two examples of interactions by the Practitioner with Patient A, both of which occurred on 4 December 2018. A progress note timed at 8.34 am notes, in part, the following: [26] Spoke with [Patient A] in common areas [courtyard and dining room] present on approach, good eye contact, hard to disengage at times. Appropriately dressed, appeared settled. Bright and reactive, compliant with medication, good eye contact, oriented to time and place. Nil overt psychosis noted, nil delusions voiced. Difficult to disengage. Appropriate tone and volume, pressured speech at times. Nil TOSH / SI stated. Consumer was awake at start of shift, compliant with medication, compliant with staff request and instruction, attended breakfast, adequate food and fluid intake, dishevelled in appearance. Demanding, requires reassurance ++ engaging well with co-patients. Nil further issues ATOR. 1. On the same date at 11.21 am, the Practitioner noted the following in relation to Patient A: [27] Compliant with staff request and instruction, was asked to shower and complied, dressing on R-Forearm have been taken off, wound is dry and healing appropriately. PRn Endone given at 00.00 hours with good effect. Has been lying in bed, requires re-assurance ++ P/c with ex-partner this morning (Patient A ended up hanging upon him), stated she felt proud of herself for doing so. Nil overt psychosis noted. Nil delusions voided. Good eye contact. Appropriate volume and tone of conversation. R/v by RMO re oral thrush and grass rash on calves, milstat charted for oral thrush, nil treatment for rash – no rash present. 1. The evidence does not enable the Tribunal to find that throughout each of Patient A's admissions to the hospital high dependency unit, the conditions from which she suffered were manifested with an intensity that meant that statements made by her in relation to her interaction with the Practitioner must be treated as elaborate fantasies. Counsel for the Practitioner is correct to point out that some statements do exhibit that characteristic. For example, in the notes made by Ms Laura Christie on 9 April 2019, Patient A's statement that, "We talked about him and his wife importing young girls who are underage into the country who needed care." And to Ms Catherine Wildman to the effect that, "he" was going to take her home and keep her in a cage in the backyard as a slave with two other "imported Asian women". It is, however, the case that it would be unsafe without more for this Tribunal to find elements of the Commission's case established where they rely solely upon statements made by Patient A because those statements are consistent when recounted on a number of occasions or to a number of reporters. The Practitioner's evidence 1. The Practitioner filed a Statement responding to the Commission's Complaint. In that statement at [13], the Practitioner gives evidence that the termination of his employment "… coincided with the breakup of my marriage and my leaving the family home". He also says at [16] that as at the date of making his statement, he had no intention of returning to nursing or seeking registration as a health practitioner under the National Law. The Practitioner in his statement denies the particulars alleged by the Commission and hence any inappropriate behaviour. He does point to the fact that several of the particulars now alleged were not matters raised in the investigation conducted by Ms Christa Ludlow but nothing turns on that for the reasons we have already set out. At the conclusion of his statement, he takes the opportunity to correct a number of previous statements made by him during earlier interviews. 2. The Practitioner also gave oral evidence and was cross-examined. His answers were not always direct and in some cases were non-responsive. 3. An element of the Practitioner's case was the submission that the likelihood that oral sex took place on 4 December 2018 as alleged on behalf of the Commission was substantially reduced due to the fact that Patient A was, to the Practitioner's knowledge, suffering from oral thrush. The evidence before the Commission establishes that Patient A was on 4 December 2018 examined by Dr Jobin Singh. The commencement of that examination can be reliably timed as the CC-TV records available show the Practitioner and Dr Singh entering Patient A's room at 10.10 am on that day. Patient records also establish that as a consequence of Dr Singh's examination of Patient A, she was prescribed the medication Nilstat at 10.44 am on that date. To further support this contention counsel for the Practitioner referred to progress notes contained in the hospital records. First he referred to a progress note made on 2 December 2018 by Nurse Practitioner Stuart Biddulph where Mr Biddulph notes: [28] Client CO self-diagnosed 'oral thrush'. Specifically CO sore throat. She states has Hx of same plus recurrent gum ulcers. NAD on superficial oral inspection. Noted that client is currently using steroidal inhaler budesonide and nasal spray mometesone. The Tribunal understands the acronym "NAD" to have a number of meanings including 'no abnormality detected', 'no apparent distress', 'no appreciable disease' and variations of those descriptors. No follow-up examination / treatment is suggested. Used in the context in which Nurse Practitioner Mr Biddulph has used it, it is likely that in his opinion on a superficial oral inspection following Patient A's complaint, he determined there was no appreciable disease or no abnormality detected. Whatever the case, the notes do not indicate that Patient A's complaint was taken any further at that time. 1. Secondly, he pointed to a progress note made by Nurse Practitioner Ms Dawn Fleming who noted on the afternoon of 3 December 2018 at 1711 hours, the following: [29] [Patient A] has requested to see the RMO several times to see her wound to make sure it is not infected, and also to have a look at her mouth which she believes she has thrush due to medications. 1. Patient A was under the Practitioner's care during the course of 3 December 2018. That is, it appears in the period between Nurse Practitioner Mr Biddulph making his note of 2 December 2018 and Nurse Practitioner Ms Fleming making her progress note on 3 December 2018. The Commission's material establishes that on that date he made progress notes at 1017 hours, 1221 hours and 1502 hours. [30] Those progress notes make no reference to any complaint by Patient A that she was suffering from oral thrush. Those notes in sequence read: Addendum by Vertigo, Mauricio (EN) on 03 December 2018 10:17 Pleasant on approach Flight of ideas, pressured speech Demanding at times Oriented to time and place Nil ADLS Tangential at times Labile, constant re-assurance wanted Attended b.Fast, adequate food and fluid intake Engaging well with co-patients Compliant with medication Attention seeking with staff (apologising to staff saying, 'have I upset you, are you mad at me, I'm sorry') Approaching staff for re-assurance Nil further issues ATOR Addendum by Vertigo, Mauricio (EN) on 03 December 2018 12:21 Spent time in courtyard with staff Pleasant on approach Flight of ideas Good eye contact Compliant with staff request and instruction Hard to disengage Engaging well with co-patients and staff Dress R-Forearm in tact Nil further issues ATOR Addendum by Vertigo, Mauricio (EN) on 03 December 2018 15:02 [Patient A] has been engaging well on ward with co-patients Compliant with staff request and instruction Attended lunch, adequate food and fluid intake Compliant with medication R/v by doctors Stated that she has been "soothing my brain" – "I've been exercising and self-managing with my learned skills" She void, "I am a hypochondriac at times" Nil overt psychosis noted Nil delusions voiced Nil further issues ATOR The Tribunal understands the acronym "ADLS" to refer to 'activities of daily living'. These commonly refer to daily self-care activities including bathing, dressing and undressing, toileting, functional mobility (eg ambulating, getting in and out of bed) and eating. The acronym "ATOR" used in each of the notes above meaning 'at the time of reporting'. [31] 1. Progress notes made on the morning of 4 December 2018 are in the following terms: MH Inpatient Engagement and Observations [Patient A] Author: Vertigo Mauricio (EN) Progress Note Inpatient Engagement and Observation Note Observation Level Level 2 Engagement Undertaken (ie location, what was the interaction or intervention) Spoke with [Patient A] in common areas (courtyard and dining room) Pleasant on approach, good eye contact, hard to disengage at times, appropriately dressed, appeared settled. Current Mental State (ie response to engagement, symptoms, general activity level, risk issues) Bright and reactive, compliant with medication, good eye contact, oriented in time and place, nil overt psychosis noted, nil delusions voiced. Difficult to disengage, appropriate tone and volume, pressured speech at times, nil TOSH/SI stated. General Comments (ie concerns from patient and/or staff perspective, current impression of patient presentation) Consumer was awake at start of shift, compliant with medication, compliant with staff request and instruction, attended b.fast - adequate food and fluid intake, dishevelled in appearance, demanding, requires re-assurance++, engaging well with co-patients, nil further issues ATOR. 04/12/2018 08:34:00 The Tribunal infers the acronym "TOSH/SI" in the context used means 'thoughts of self-harm / suicidal intent'. 1. At 11.21 am on the same date, it is useful to repeat that the Practitioner noted as follows: Commenced on Level 3 obs. Compliant with staff request and instructions. Was asked to shower and complied. Dressing on R-Forearm have been taken off. Wound is dry and healing appropriately. PRn Endone given at 00:00 hours with good effect. Has been lying in bed requires re-assurance ++ P/c with ex-partner this morning, [Patient A] ended up hanging upon him. Stated she felt proud of herself doing so. Nil overt psychosis noted. Nil delusions voided. Good eye contact. Appropriate volume and tone of conversation. R/v by RMO re Oral Thrush and grass rash on calves. Milstat charted for oral thrush, nil treatment for rash (no rash present). RIB at ATOR. Nil further issues ATOR. Subsequently, the Practitioner noted at 12.46 pm that the prescription for Endone had been given at 10.41 am with good effect rather than at 00:00 hours as noted earlier. 1. In his interview with Ms Ludlow, when the allegation that he had oral sex with Patient A was raised, the Practitioner's response was in part as follows: [32] Absolutely, that definitely didn't happen. I was aware that the patient at the time - she had oral thrush, Dr Jobin at the time carried out the diagnosis I guess. He checked her. He needed a nurse so I went with him. We checked her. And he said, 'Look, she has oral thrush. Make sure she doesn't try and lick or touch or do anything with anyone, …' - at the time as well she would try and handshake you and then grab your hand and lick it. Well, she knew she had oral thrush because the doctor had mentioned it to her. 1. In the s150 proceedings, where the Practitioner gave evidence that after breakfast, which it was suggested to him occurred between 8.30 am and 9.00 am, the following took place: [33] So after breakfast then there's meetings with doctors, psychologists and things like that where nurses sort of sit in. It's - actually on that day. I do remember that Dr Jobin Singh which was the RMO at the time at Gosford Mental Health. Went and checked this patient due to her having oral thrush and was apparently licking her hands and trying to like shake people's hands so he asked me to go in with him because a doctor needs another nurse present --- And later during his evidence the practitioner said in relation to the diagnosis of Patient A's oral thrush as follows: [34] Ms Fuller: So that was the day of this particular incident? The Practitioner: Yeah, so that's - I believe the same day, yeah. Well yes because it's on the camera footage me and him walking in. Ms Fuller: And that's prior to the time in the bathroom? This was in her room? The Practitioner: Yeah, yeah. It was in her room so - yeah, I say yeah. Ms Fuller: Yes, and it's before the time of the footage showing you in the bathroom. The Practitioner: I believe so. I would say so. Jobin would've arrived - like cause he arrived around 9.00 am so I reckon he would've done his rounds by then. 1. In his witness statement before the Tribunal, the Practitioner corrected that evidence as to its timing. That correction conceded that Dr Jobin Singh had seen the patient and diagnosed the condition of oral thrush during examination which commenced at 10.10 am. That is, after the Practitioner and Patient A had spent time together in the bathroom during which Patient A's complaint arose. The truthfulness of the Practitioner's evidence as to when he became aware that Patient A was suffering from thrush was challenged by counsel for the Commission. In answer to that challenge the Practitioner said words to the effect of, "From my memory we were told she had oral thrush when she was handed over --- she was licking people." He conceded there was no mention of this in either the progress notes made by him or the progress notes on handover. 2. The Tribunal finds that Patient A was diagnosed with oral thrush on 4 December 2018 at about 10.10 am. Prior to that diagnosis, Patient A stated, as noted, a belief that she was suffering from that condition. Relevant to the Practitioner's claim that his interaction with Patient A on 4 December 2018 was affected by a belief that she was either suffering from or claiming to suffer from oral thrush. The Tribunal notes the following: 1. That when raised by the Practitioner as an element which might strongly support his denial of the truthfulness of Patient A's evidence he misstated, to his advantage, the timing of his knowledge of the diagnosis; 2. When the timing of the diagnosis did not support his case the Practitioner changed his position and maintained in his oral evidence that his memory was that he was told at the shift handover that Patient A had oral thrush. That was not a fact that was previously mentioned during the Practitioner's interview with Ms Ludlow or in his evidence in the s 150 Inquiry, both of which took place within 9 months of the alleged incident in the bathroom taking place; 3. Neither the Practitioner's notes nor the notes of other nurse practitioners on shift with him on 4 December 2018 note, prior to seeing Dr Singh, complaint by Patient A with respect to oral thrush; 4. The progress notes referred to by counsel for the Practitioner establish statements by Patient A with respect to oral thrush. Although it is open to differing interpretation, the note made by Nurse Practitioner Mr Biddulph may support oral thrush being detected, but more likely it reflects the opposite. The later note by Nurse Practitioner Ms Fleming notes Patient A's request to see the resident medical officer on several occasions with respect to her wound and "also to have a look at her mouth which she believes she has thrush due to medications"; and 5. The Practitioner's own progress notes from 3 December 2018 which appear to fall between the progress note made by Nurse Practitioner Mr Biddulph and Nurse Practitioner Ms Fleming make no reference to any mention by Patient A that she was suffering from oral thrush. The absence of any reference is consistent with the cursory examination of Nurse Practitioner Mr Biddulph failing to identify the condition on 2 December 2018. 1. The Tribunal does not accept the Practitioner's evidence that he was told that Patient A was suffering from oral thrush on the shift changeover on 4 December 2018. That evidence smacks of recent invention. His initial position being part of his evidence on two prior occasions having been established to be inaccurate. But whether or not that is the case, the Tribunal is satisfied that whatever the state of the Practitioner's knowledge as to complaints made by Patient A concerning her suffering from oral thrush, that knowledge, if any, did not bear upon the Practitioner's state of mind on 4 December 2018 to inhibit or make it any less likely that the Practitioner would or did engage in the conduct Patient A alleges took place in the bathroom of the hospital high dependency unit on that date. Complaint One Particulars to Complaint One Particular 1(a) 1. The statement giving rise to this particular was first made by Patient A on the date of her admission in April 2019 and recorded by Nurse Practitioner Ms Kate Davis on 4 April 2019. The tribunal agrees with counsel for the Practitioner's submission that Ms Davis' notes should be taken as the most reliable account of what Patient A in fact said. The Tribunal also finds that the statements made to Ms Davis must be considered having regard to the hospital records which disclose Patient A's condition and diagnosis on admission to the hospital high dependency unit on the same date. Those notes include: MSE [mental state examination] on admission following Dr Mason and team, the impression was of a pre-existing diagnosis of borderline personality disorder with drug induced mania. And later: Her effect could be described as labile and restricted. She displayed a tangentle and circumstantial type of thought form. With regards to content, she described some paranoid ideas towards her neighbours. And later under the heading, 'Assessment', the following appears: [35] During the review, Patient A was found to be disinhibited, thought disordered with flight of ideas, rambling, difficult to interpret, rhyming, labile, laughing at times inappropriately, sarcastic … 1. Ms Davis' note made on 4 April 2019 of what was said on admission by Patient A is not entirely consistent with her accounting of it to Ms Ludlow. [36] As counsel for the Practitioner submits, the account lacks detail and to the extent that there is detail, the account recorded on 4 April 2019 differs from the account given by Ms Davis in her statement to Ms Ludlow on 9 April 2019. The Tribunal also takes into account the submissions made by counsel for the Practitioner. As a consequence, the Tribunal finds that Particular 1(a) is not established. Particular 1(b) 1. The conduct alleged in this particular appears to arise for the first time on 9 April 2019. The Practitioner denies the allegation. As counsel for the Practitioner submits, the interview between Ms Christie and Ms Ludlow does not advance relevant detail as to the circumstances surrounding the alleged touching. The Tribunal accepts the Practitioner's denial and it follows Particular 1(b) is not made out. Particular 1(c) 1. The allegation is recorded in the notes made by Nurse Practitioner Ms Kate Davis on 4 April 2019. Patient A is said to have stated: I just held my finger on his shoe to feel grounded and close to him. 1. Nurse Practitioner Ms Catherine Wildman in her police statement recounts a conversation with the Practitioner where he said, recalling the events of the earlier admission, that there was an occasion when in company with a social worker, Patient A had attempted to touch his feet and the feet of the social worker, Ms Lauren Winch. The Practitioner said that the issue was reported. [37] 2. A progress note by Ms Winch makes no reference to the conduct described by the Practitioner. [38] Counsel for the Practitioner submits that it was incumbent upon the Commission to call Ms Winch. He submits that the Tribunal should draw an adverse inference from Ms Winch's absence as a witness. Counsel for the Commission in an additional submission disputed that contention. It is, however, unnecessary to decide that issue. Patient A's complaint is not specific as to when the alleged conduct occurred. A contemporaneous progress note by the Practitioner appears to support his version of events, that is, his denial of any inappropriate conduct. That footnote reads: Pt [patient] requests to touch clothing, ie buttons or shoes, request denied and became teary, labile, and misinterpreting responses. 1. The available evidence in relation to this allegation highlights the disadvantage faced by the Practitioner. A contemporaneous progress note notes conduct which is consistent with his denial being truthful. In circumstances where the maker of the allegation cannot be cross-examination, the Tribunal is not able to reach the appropriate level of satisfaction which would enable it to prefer the evidence led by the Commission. The Tribunal finds that Particular 1(c) is not established. Particulars 2(a) and 2(b) 1. Both particulars deal with statements claimed by Patient A to have been made by the Practitioner both of which were, if made, inappropriate and in breach of the relevant code of conduct requiring nursing staff to maintain professional boundaries in any relationship with a patient. 2. Counsel for the Commission relies upon the CC-TV footage to establish opportunity consistent with the first of the statements comprised in Particular 2(a) which was recorded by Nurse Practitioner Ms Kate Davis on 4 April 2019. However, as counsel for the Practitioner points out, Ms Davis' record indicates that Patient A was unable to say when the statement was made with any certainty. The second statement comprising Particular 2(b) was first made in conversation between Patient A, Nurse Unit Manager Ms Laura Christie and Clinical Coordinator Ms Melissa Vella on 9 April 2019. That allegation falls in the following passage taken from the typed record of interview made on that date: [39] On my first admission, he helped me a lot, he helped me shower when I was incontinent. He was present a lot of showers, toileting, it was helpful to have him outside. He created a groomed environment. Put his hand on my leg (pointed to calf) before my mattress was put on the floor. I was alone for 1-2 hours after admission. Suggested that he was a trauma patient. His wife Anna has disassociated trauma: his wife had confusion about sex, that his wife did not like sex, thought it was dirty. 1. The interview took place at Patient A's request and contains more detail in relation to some incidents already alleged. Perhaps in support of her statement that the Practitioner "created a groomed environment", Patient A claims that he informed her that he was a trauma patient himself. She also, naming his wife, alleges that the Practitioner informed her that his wife "… has disassociated trauma". The use of these terms and reference to "grooming" do not in the Tribunal's opinion increase the likelihood that the Practitioner made the statements alleged. Patient A's history establishes multiple admissions and it follows being placed in situations where terminology of the type allegedly used by the Practitioner might well have been picked up. The use of the terminology "disassociated trauma" is an enhancement by Patient A upon her original disclosure to Nurse Practitioner Ms Kate Davis recorded on 4 April 2019 where Patient A is alleged to have said, "I got the impression from what he was saying that maybe he or his wife had a history of trauma." Ms Davis notes Patient A's uncertainty as the timing of these statements. On 4 December 2018, the Practitioner spent 13 minutes in Patient A's room. If the statements alleged in Particulars 2(a) and 2(b) were made by the Practitioner on that date then there was clearly opportunity. Counsel for the Commission is also critical of the Practitioner's evidence about what in fact did occur during that period of time. He submits that that evidence was vague and lacked an adequate explanation of what in fact took place. There is some substance in that criticism. 2. Counsel for the Practitioner contends that the existence of opportunity does not establish the fact that the events complained of took place. The Tribunal agrees. Patient A's statements as to what was said during that 13 minute period appears to have sharpened between her first making allegations reported on 4 April 2019 and repeating those allegations on 9 April 2019. For example, in relation to what was allegedly said by the Practitioner with respect to he and his wife suffering from trauma including the use of the apparent medical terminology "disassociated trauma". It is also during that latter interview that Patient A repeats the allegation that the Practitioner referred to "importing young Asian girls who were under-age into the country who needed care" and "that he and his wife would adopt Patient A, she could live in the cage in the garden". These statements are arguably fantastic and difficult to understand being said with the intent of grooming the receiver. 3. Despite the Tribunal acknowledging some justification in some criticism of Patient A's evidence of what in fact took place during the 13 minutes he spent in Patient A's bedroom on 4 December 2018, he maintained his denial that he said the words alleged. The Practitioner was also faced with the significant disadvantage that he was denied any ability at all to challenge what was reported to be said by Patient A. It is primarily for that reason added to the other matters to which we have referred that the Tribunal is unable to find Particulars 2(a) and 2(b) established to its comfortable satisfaction. Particulars 3(a) and 3(b) 1. These particulars are dealt with together as they arise from the same passage of conversation when first reported and when subsequently restated. The allegation is first reported in the notes made by Nurse Practitioner Ms Kate Davis on 4 April 2019. She notes: He reportedly disclosed he and his wife were thinking of adopting Asian children and she stated to him she wished she could be adopted, "as I have no one", and she states he spoke about "maybe adopting me". [40] 1. The allegation is repeated in the notes recorded by Nursing Unit Manager, Ms Laura Christie in her interview with Patient A on 9 April 2019. Ms Christie records: We talked about him and his wife importing young girls who are underage into the country who needed care. … He said he and his would adopt [Patient A], she could live in the cage in the garden. [41] 1. The Practitioner denies the allegations and maintained his denial during cross-examination. Counsel for the Practitioner noted that the allegations were dealt with in the Practitioner's statement of evidence and during his interview with Ms Christa Ludlow. [42] The allegations are on their face inconsistent with, for example, the fact that the Practitioner's uncontradicted evidence is that at the time he and his wife had two children. There was no need to import children and keeping them in cages seems an unlikely statement to be made consistent with appropriate care for them. Similarly as with the particulars alleged in Particulars 2(a) and 2(b), the Practitioner's evidence as to his lifestyle, his religious beliefs and upbringing and those of his then wife may raise doubts about the veracity of Patient A's statements which themselves as counsel for the Practitioner points out are implausible as indicating matters of factual intent by the Practitioner. There is strength in counsel's submissions made at [63] of his written submission dated 6 March 2023. Added to those matters and the evidence already referred to, counsel for the Practitioner notes that the allegation, Particular 3(b), has been recorded differently over time. For example, recorded on 9 April 2019 by Nurse Unit Administrator Ms Laura Christie, it differs quite substantially from the recording made by Ms Kate Davis of the allegation in her police statement. [43] Significantly perhaps in the police statement recording Ms Davis' recollection, there is reference to the Practitioner saying he was, "… going to have a cage in the backyard for the children and they would be slaves". I said, "I wouldn't mind being in a cage, at least I would belong, you know." That statement differs from the statement originally recorded by Ms Davis and already referred to. When made to Nurse Practitioner Ms Catherine Wildman, it is recorded in her police statement as: [44] … he joked with me in that admission that he would take her home and she could go live with him. We joked about me living in a cage in the backyard. 1. Counsel for the Practitioner submits that the Practitioner's denials should be preferred and gives various reasons as to why that should be the case. The Tribunal agrees with the substance of those submissions and again has regard to the substantial disadvantage faced by the Practitioner in not being able to challenge the recorded statements of Patient A through cross-examination. It follows that the Tribunal is not satisfied that Particulars 3(a) and 3(b) are made out and so finds. Particulars 3(c), 3(d) and 3(e) 1. Particulars 3(c), 3(d) and 3(e) are all denied by the Practitioner. They arise in circumstances where, for example, in the case of Particular 3(d), there is objective evidence arguably inconsistent with the validity of the statement made by Patient A. The Tribunal also accepts the submissions made by counsel for the Practitioner which challenge the veracity of the statements made by Patient A. Added to those matters is the disadvantage faced by the Practitioner in again not being able to challenge the veracity of those statements through cross-examination of Patient A. for example, in the case of Particular 3(c), the denial of the Practitioner's counsel's ability to probe the context in which that matter may have arisen if in fact it did is important. Did the Practitioner use the words alleged or could it be that the Practitioner made to Patient A or was overheard by Patient A to say those details would be recorded in the hospital files. If it were the latter then a possible interpretation by Patient A is that the Practitioner knew her address and phone number. Consequently, the Tribunal finds that Particulars 3(c), 3(d) and 3(e) are not established to the Tribunal's satisfaction. Particular 4 1. Particular 4 alleges that the Practitioner engaged in sexual act with Patient A, namely that Patient A performed oral sex on him in the bathroom of the hospital high dependency unit between 9.26 am and 9.31 am on 4 December 2018. The door of the bathroom was closed at the time. 2. The CC-TV footage of 4 December 2018 establishes that Patient A and the Practitioner both entered the same bathroom in the hospital high dependency unit and are present in their together from 9.26 am until 9.31 am. It is also the fact that the bathroom door was closed during that period of time. Patient A's version of the events which took place during that period correctly identifies the relevant bathroom. Further, as submitted by counsel for the Commission, Patient A's version as to what transpired inside the bathroom is consistent as to oral sex taking place in statements made by her to each of the Nurse Practitioners, Ms Kate Davis, Ms Deborah Morris, Ms Catherine Wildman, and Nurse Unit Manager Ms Laura Christie. 3. In the case of three of those witnesses, namely Nurse Practitioners Davis and Morris, and Nursing Unit Manager Christie, Patient A is reported to have said the duration of the oral sex was short. The timing of 2 to 3 minutes is noted at one point. The description of the time during which the alleged act took place and the note of 2 to 3 minutes fits with the objective evidence of the period during which both Patient A and the Practitioner were both in the bathroom. The Practitioner has never denied being alone in the bathroom with Patient A on the day in question. However, the objective evidence enables the Tribunal to take the matter one step further to find it established that Patient A's statement as to the location of the relevant bathroom is established by the objective evidence. Further, it is open to the Tribunal and the Tribunal finds that Patient A's statements as to the duration of the sexual act, if it occurred, would fit within the time she spent with the Practitioner on that date. The objective evidence also establishes that at the relevant time the door of the bathroom was closed. Patient A's demeanour as described by the Practitioner and as established by the CC-TV footage 1. A pictorial depiction of the CC-TV footage at various times appeared in the Weir Consulting Misconduct Report. That pictorial representation appears at pp.42-55 of Exhibit 6. The Tribunal had available to it the actual CC-TV footage if required. However, no issue was taken with the commentary contained in the report adjacent to each pictorial representation which was also timed. Consequently, the Tribunal is satisfied that that commentary accurately represents the events actually depicted on the CC-TV. 2. When the allegation was first raised with him in his interview with Ms Christa Ludlow, the Practitioner's response was "that definitely didn't happen". The basis of that certainty included as we have set out earlier, the Practitioner's incorrect statement as to the timing of when Patient A was diagnosed with oral thrush. The diagnosis no longer remains credible as a justifiable support for the Practitioner's denial. Further, the Tribunal refers to its earlier finding that it cannot be satisfied that whatever the state of the Practitioner's knowledge of Patient A suffering from oral thrush, it would have prevented him from engaging in oral sex with Patient A. When asked for his recollection of what actually transpired in the bathroom the Practitioner is reported to have said: [45] I entered to give her towels and a gown. I also do remember adjusting the hot and cold water. That took longer than normal, because she was sitting on the floor leaning on the cistern of the toilet sort of thing – is that what it's called? The cistern? The toilet bowl? So, she was sitting on the floor leaning on the toilet bowl saying it was too cold, too cold to have a shower, too cold too cold. I remember telling her many times, 'Look, you've urinated yourself. You've got cuts on your legs that are getting infected. You're clothes are wet from urine. You need to get it changed.' Not just myself but many other nurses were trying to encourage her to have a shower obviously throughout the day. She threw herself on the floor. She said that the water was too cold. I remember turning the hot on and turning to talk to her like that to say, 'Look, it's fine. Just get it. You'll be done in 15 minutes, blah blah blah.' … Then I went out to the linen closet, grabbed another gown, a patient gown, came back in gave her the patient gown, spoke with Katie, which was the other RN telling her about the room being soiled and dirty and al this sort of stuff. Then I went off with Katie. We closed the door because the room was soiled and I think we asked a cleaner to come … 1. Later in his interview the following passage occurs: [46] Ms Ludlow: So you were saying that the time you were in the bathroom with her you were adjusting the hot and cold and --- The Practitioner: Because she was on the floor screaming out, 'too cold, too cold, too cold, too cold'. I said, 'Look, it's fine, it's not cold.' I also do remember saying, 'Look we're in the middle of summer it's not actually cold.' Also this patient had - she would say what she was thinking and feeling which was very hard to try and speak with someone because she actually wouldn't sort of stop for you to actually get in. Probably a bit like what I am now but what I mean is that if she was itchy, she would say, 'itchy here, yeah okay, itchy here, I can feel a breeze coming in, cold over there, I'm cold at my knee …' 1. The Practitioner also said that whilst in the bathroom with Patient A where the CC-TV footage depicts Nurse Practitioner Ms Kate Davis stopping at the bathroom door at approximately 9.30 am: [47] That's when I was in the shower and I said that she – and I remember telling Sandy as well. She would've called out to try and find out where that patient was, which at the time would've been in the shower with me and probably opening the knobs or talking to her or telling her. I probably would've said, 'We're in here.' or 'We're here.' or something like that. 1. In his evidence during the s 150 inquiry, the Practitioner gave similar evidence with respect to the showering incident as he did in answer to questions from Ms Ludlow. [48] During that evidence the Practitioner made the following statement: Yeah, she, she was - well, well we had - I'm pretty sure the shift previously had tried to get her to shower because shed soiled herself in bed and from, from her - well before we came on shift, they'd be trying to get her to shower and sort of - she would crawl to the bathroom and sort of crawl back and, and she was very reluctant to have a shower so it took a lot of encouragement, a lot of - you know, 'Look, have a shower and I'll grab you some breakfast.' or you know, bribing so to speak. 1. More specifically in relation to Patient A's conduct when the Practitioner was involved in relation to showering he gave the following evidence: [49] The Practitioner: So, at the end of the day I was just trying to help her out. Ms Clarke: So, did she settle after the shower? The Practitioner: She showered, she crawled back out because she didn't want to walk so she would just crawl which made it very difficult - you know, to deal with the patient. Ms Clarke: Yes. The Practitioner: I think I made her bed because she had soiled it. We tried to convince her to put the mattress back on the bed but she slept on the floor. I think I gave her some extra towels and then she went into her room. I don't think she had breakfast. I think we tried to ask her to have breakfast or something like that but again, with patients in HDU, part of the course that a routine - it never really happens. 1. The CC-TV footage which is motion activated covers the period from 6.08 am to 10.10 am. There is no footage of Patient A crawling in the corridor. Further, to the extent that Patient A moves to and from the shower, her appearance is in a casual state. While not conclusive as to Patient A's state of mind, the depiction of her demeanour does not suggest upset or agitation. 2. Mental health nursing observation charts with respect to Patient A were available for 4 December 2018. In the period from 6.30 am to 10.00 am, they note as follows: 0600 – up and about 0630 – dining room 0830 – dining room 0900 – dining area 0930 – shower 1000 – bed 1. The Practitioner's own note timed at 11.21 am is set out earlier in these reasons and gives no indication of the difficulties he gives evidence he encountered on that morning with Patient A. Rather, a reasonable interpretation of both that document and the mental health observation chart notes are inconsistent with the behaviour alleged by the Practitioner. The Practitioner in evidence before the Tribunal said that a male nurse being alone in a bathroom with a female patient behind a closed door is an unusual event which does not occur often in the hospital high dependency unit. He told the Tribunal that this was the first ever instance of this scenario involving himself on the hospital high dependency unit. Given the Practitioner's knowledge of Patient A's behaviour, for example her attempt to be over-familiar with staff including the Practitioner himself, the Tribunal finds that there is an unexplained inconsistency between what was noted as to Patient A's demeanour and her showering at the time, the depiction of that in the CC-TV and the Practitioner's very different version of events. The Practitioner's version of events is further not supported by evidence that he mentioned it to any member of staff contemporaneously. 2. On matters which the Tribunal considers important, the evidence of Nurse Practitioner Kate Davis does not support the Practitioner's version of events. For example, the Practitioner refers to Patient A being on the floor screaming out, "Too cool, too cold, too cold." Ms Davis does not support that occurring whilst she was either in the passage outside the bathroom at the bathroom door. If as the Practitioner says and the evidence establishes he was alone in a closed bathroom with an adult female patient experiencing difficulties managing her and whose conduct involved shouting out, the Tribunal finds it disturbing and contrary to the Practitioner's case that when the opportunity afforded itself he did not ask for assistance from Ms Davis. Rather, it appears from the CC-TV and the evidence otherwise that Ms Davis was there assured by what in fact she could hear that there was no need to enter the bathroom. Given her evidence to the Tribunal and her previous statements the Tribunal is satisfied that if Ms Davis had any concern whatsoever that Patient A was behaving in the manner depicted by the Practitioner she should have entered the bathroom. Counsel for the Commission in his written submission pointed to the statement Ms Davis made during her interview with Ms Ludlow to the following effect: [50] There's no way --- there's absolutely no way, if you've got a female in HDU that's needing a lot of assistance, there's no way you wouldn't put females out there … You wouldn't put yourself in that position. It's not necessary. 1. The evidence given by Ms Davis in interview with Ms Ludlow was adhered to by her in the witness box. She conceded that such conduct was not prohibited but it was apparent that she considered it at best unwise. In his written submission, counsel for the Commission noted the Practitioner's claim repeated in his evidence on 21 February 2023 that while he was in the bathroom with Patient A he heard Ms Davis call out from outside the bathroom and he answered her. Ms Davis was not, as counsel for the Commission notes, questioned about that matter; but having regard to what Ms Davis had in fact said in evidence, that may well have been an appropriate forensic decision. The Tribunal finds that the absence of that evidence adds weight to the Commission's case. 2. The inability of the Practitioner to challenge Patient A in relation to this, the most serious of the allegations, made against the Practitioner is a significant factor. It is also significant that the conduct alleged is a very serious departure from conduct to be expected from a Nurse Practitioner. The Tribunal has taken into account the seriousness of the conduct alleged and also the seriousness of the effect of the Tribunal finding it proven will have in relation to the Practitioner's future going forward. However, this is a case where despite those significant factors weighing against the Tribunal finding the conduct proven we are satisfied to a high degree that Particular 4 is made out and the Tribunal so finds. 3. In coming to that conclusion we have placed weight upon the fact that the objective evidence which cannot be contradicted affords a situation where the conduct consistently alleged by Patient A could have taken place. It took place in the bathroom she identified which is consistent again with the CC-TV depicting the bathroom being entered by Patient A and the Practitioner. Patient A's evidence as to the length of time that the sexual act took does not rely upon her recorded statement alone but is also supported as able to have occurred in the timeframe the objective evidence establishes that she and the Practitioner were alone in the bathroom. We have also placed weight upon the fact that the Practitioner's immediate response as to why any sexual act was not likely to have taken place as recorded in the allegations of Patient A fell away because it was not supported by the objective evidence available to the Commission. 4. There is then the inconsistency between Patient A's conduct / demeanour as depicted in the CC-TV footage of her leaving her room, in the corridor and entering the bathroom and the events which are then said by the Practitioner to have immediately taken place which included a screaming objection. The independent written evidence contained in the progress notes made at or about the time the event was said to have taken place as well as the Practitioner's own notes do not record Patient A's alleged incontinence, soiling herself or reference to her difficult showering behaviour. In particular, the Tribunal finds it simply not credible that if Patient A had behaved in the manner said to have been the case by the Practitioner that would not have been noted by him and in all probability raised by him in contemporaneous conversation with one of his colleagues on the same shift. The Tribunal has also referred to the weight it places upon the CC-TV depiction of the conduct by Nurse Practitioner Kate Davis outside the bathroom door and otherwise as depicted in the corridor which does not support the Practitioner's version of events. Findings on Complaint One and Complaint Two 1. The Tribunal having found that the fourth particular alleged by the Commission has been established and having regard to the discussion earlier in these reasons as to the circumstances in which unsatisfactory professional conduct may be found under ss 139B(1)(a) and 139B(1)(l) of the National Law, the Tribunal finds as follows: 1. That the Practitioner is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law in that his conduct in the practice of nursing is significantly below the standard reasonably expected of the Practitioner having regard to his level of training and experience; and 2. That the Practitioner is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(l) of the National Law in that he engaged in improper and unethical conduct relating to his practice as a nurse. 1. Having found that the Practitioner is guilty of unsatisfactory professional conduct it now falls for the Tribunal to consider and determine whether the Practitioner is also guilty of professional misconduct under s 139E of the National Law as alleged by the Commission in Complaint Two. The Practitioner in permitting and no doubt encouraging Patient A to engage in a sexual act with him is guilty of a gross violation of the standards expected of all Nurse Practitioners whatever their level of experience might be. Plainly the conduct in which the Practitioner engaged with Patient A is unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancelation of the Practitioner's registration or as the Commission now asks a finding that if the Practitioner had been registered those consequences would flow. The Tribunal finds the Practitioner guilty of professional misconduct. 2. The Tribunal will make the order for non-publication of Patient A's name as sought by the Commission and consented to on behalf of the Practitioner. Otherwise there will be a direction that the matter be re-listed for Stage 2 determination. 3. The issue of costs which was agitated in the written submissions by counsel for the Commission will be stood over to be dealt with at the conclusion of Stage 2 proceedings where the appropriate costs order can be made having regard to both stages of the proceedings. Orders 1. The Tribunal makes orders and directions in the following terms: 1. That the tribunal finds the Respondent Mauricio Alejandro Verdugo guilty of unsatisfactory professional conduct pursuant Sections 139B(1)(a) and 139B(1)(l) of Health Practitioner Regulation National Law (NSW). 2. That the tribunal finds the Respondent Mauricio Alejandro Verdugo guilty of Professional Misconduct pursuant to Section 139E of the Health Practitioner Regulation National Law (NSW). 3. That pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the name of the patient referred to in the schedule attached to the Amended Complaint as Patient A. 4. That the Commission's application for costs of the proceedings be stood over to be dealt with at the conclusion of Stage 2 of these proceedings. 5. That these proceedings be re-listed for directions as to its progress to a Stage 2 hearing. ********** Endnotes 1. Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; Sullivan v Civil Aviation Authority [2014] 226 FCR 555 at 108; and Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 38 at [14]. 2. Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102]. 3. Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [25]. 4. Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [82]. 5. Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. See also R v Byrnes & Hopwood (1995) 183 CLR 501 at pp.514-515. 6. Briginshaw v Briginshaw (1938) 60 CLR 336 and Gautam v Health Care Complaints Commission [2021] NSWCA 85 per Payne JA at [85] (Leeming JA at [1] and Simpson AJA at [118] agreeing). 7. Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. 8. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450. 9. WK v SR (1997) FLC 92-787 at [47]. 10. Re W (Sex Abuse; Standard of Proof) (2004) FLC 93-192 per Kay, Holden and O'Ryan JJ at [38]. 11. [2018] NSWSC 1685. 12. Exhibit 6, the witness statement of the Practitioner at Appendices pp.533, 539, 630, 631 and 694. 13. Exhibit 2, Tabs 14-24 inclusive and Tab 37. 14. Exhibit 2, Tab 26 at Annexure 'A'. 15. Exhibit 2, Tab 25 at Annexures 'E' and 'F'. 16. Exhibit 2, Tab 28 at Appendices 'A' and 'B'. 17. Exhibit 2, Tab 25 at Annexure 'E' and Tab 26 at Appendix 'A'. 18. Exhibit 2, Tab 28 at Appendix 'B'. 19. Exhibit 2, Tab 25 at Annexure 'C'. 20. Exhibit 2, Tab 29 at Appendix 'A'. 21. Exhibit 2, Tab 5. 22. Vertigo Witness Statement ("VWS") at p.775. 23. VWS at p.776. 24. VWS at pp.639-640. 25. Exhibit 5, p.6. 26. Exhibit 6, p.642. 27. Exhibit 6, p.641. 28. Exhibit 6, p.613. 29. Exhibit 6, p.610 (Fleming) and p.613 (Biddulph). 30. Exhibit 6, pp.611-612. 31. Exhibit 6, pp.611 and 612. 32. Exhibit 2, Tab 7, p.8, L188. 33. Exhibit 2, Tab 34, p.13, L28 and p.14, L1. 34. Exhibit 2, Tab 34, p.36, L37 to p.37, L4. 35. Exhibit 6, pp.653-654. 36. Compare Exhibit 6, p.277 and p.292. 37. Exhibit 2, Tab 29, p.7. 38. Exhibit 6, p.629. 39. Exhibit 6, p.240. 40. Exhibit 6, p.277. 41. Exhibit 6, p.240. 42. Exhibit 6, p.140, L117 to p.141, L115. 43. Compare Exhibit 6, p.240 and p.315. 44. Exhibit 6, p.354. 45. Exhibit 2, Tab 7, pp.9-10, extract from L227-L256. 46. Exhibit 2, Tab 7, p.11, L294 to p.12, L301. 47. Exhibit 2, Tab 7, p.15, L420 to p.16, L424. 48. See, for example, Exhibit 2, Tab 34, p.15, L20 to p.18, L25. 49. Exhibit 2, Tab 34, p.32, L9-24. 50. Exhibit 6, p.292, L307 to p.293, L314 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: 08 January 2024