Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dudhela v Health Care Complaints Commission [2024] NSWCATOD 35 Hearing dates: 22 February 2024 Date of orders: 22 March 2024 Decision date: 22 March 2024 Jurisdiction: Occupational Division Before: S Dunn, Senior Member T Anderson, Senior Member D Robertson, Senior Member A Gray, General Member Decision: (1) Pursuant to s 163B(1) of the Health Practitioner Regulation National Law (National Law), the application is dismissed. (2) The Applicant is to pay the Health Care Complaints Commission's costs as agreed or assessed. Catchwords: OCCUPATIONS – reinstatement application – whether Applicant has discharged onus of proof Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 163A, 163B, 163C, Sch 5D cl 13 Cases Cited: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Brown v Health Care Complaints Commission [2015] NSWCATOD 40 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Health Care Complaints Commission v Dudhela [2021] NSWCATOD 59 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Mayr v Health Care Complaints Commission [2023] NSWCATOD 148 Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 Mooney v Medical Council of NSW [2024] NSWCATOD 24 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Ristevski v Medical Council of NSW [2016] NSWCATOD 18 Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 Category: Principal judgment Parties: Mehul Dudhela (Applicant) Health Care Complaints Commission (Respondent) Representation: NSW Nurses and Midwives' Association (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2023/00348689 Publication restriction: Nil REASONS FOR DECISION Introduction 1. This is an application by the Applicant, Mr Mehul Dudhela, for review of an order made by the Tribunal on 11 May 2021 cancelling his registration as a nurse. Mr Dudhela seeks a reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) (National Law). 2. On 11 May 2021 the Tribunal found that complaints of unsatisfactory professional conduct against Mr Dudhela were made out and that Mr Dudhela's conduct the subject of the complaints amounted to professional misconduct. The Tribunal cancelled Mr Dudhela's registration and made an order that Mr Dudhela could not apply for a review of the cancellation order for a period of 18 months from the date of its orders: Health Care Complaints Commission v Dudhela [2021] NSWCATOD 59 (HCCC v Dudhela). 3. The Health Care Complaints Commission (HCCC) appeared as a contradictor in these proceedings. The HCCC neither opposed nor consented to Mr Dudhela's application. Relevant Legislative Provisions 1. Under s 163A of the National Law a person may apply for a review of an order that the person's registration as a health practitioner be cancelled. Section 163A(2) provides that an application for review may not be made while the terms of the order provide that an application for review may not be made. 2. Section 163B of the National Law provides, relevantly, as follows: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following— (a) dismiss the application; … (c) make a reinstatement order; … (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. … (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 1. Section 163C of the National Law sets out the purpose, manner and scope of a review. It provides, relevantly: 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division. Relevant Principles 1. As ss 163C(1) and 163C(2) of the National Law make clear, the review is not a review of the original decision to cancel the practitioner's registration, but is a review to determine the appropriateness of the cancellation order as at the date of the hearing of the application. As Brereton JA, with whom Bell P (as His Honour then was) agreed, stated in Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [17] (footnotes omitted): [17] In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application. In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, the paramount consideration being the protection of the health and safety of the public. 1. The approach to be taken in considering an application for a reinstatement order under the National Law has been set out in numerous decisions of the Tribunal including recently in Mayr v Health Care Complaints Commission [2023] NSWCATOD 148 at [9]–[12]. As the Tribunal observed in Mayr, in Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13, Adams J noted that the general principles to be followed had been correctly identified by the Tribunal below in Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 at [7]-[8] as follows (internal case citations omitted): "[7] The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms: 12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; (5) There is no public interest in denying forever the chance of redemption and rehabilitation to [a] former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance; (6) "Clear proof" is required to establish that there has been a reformation of character. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made"; (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the Applicant. [8] In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated: 30. In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: [A]n Applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. 31. In that case, the Medical Tribunal also stated at [42]: [T]he ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession." 1. In Mooney v Medical Council of NSW [2024] NSWCATOD 24 the Tribunal explained at [18]: Several formulations have been put forward as ways of predicting how a person will behave in future. Have they gained insight? Have they proved that they have overcome a defect in character? Are they now a 'fit and proper person' to be registered? Essentially the question is whether [the practitioner] has proved that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]. 1. In Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 at [13] the Tribunal said: [13] We must approach the matter of reinstatement with a healthy scepticism - see Ex parte Tziniolis, Re the Medical Practitioner Act (1966) 84 WN (Pt 2) (NSW) 275 at 286 (Walsh J). As was noted by the High Court a long time ago in Re Lenehan [1948] HCA 45 at [27] (Latham CJ, Dixon and Williams JJ) when a lawyer applies for reinstatement to the relevant roll of practitioners, they are in a more disadvantageous position than an original applicant because they must displace the decision as to probable permanent unfitness which was the basis of their removal. While they may be restored to the roll after they have been struck off, the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds. This approach has been adopted in New South Wales and is appropriate to health practitioners seeking to be reregistered as practitioners - see Dawson v The Law Society of New South Wales [1989] NSWCA 58 at [12] (Mahoney JA). … 1. The standard of proof is the civil standard of proof, that is, on the balance of probabilities to the level of satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Given that the National Law is directed at the protection of the public, the Tribunal must be satisfied to a robust level: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 at [39] and the cases there referred to. Complaints and the Tribunal's findings 1. On 26 May 2017, while working in the Acute Mental Health Unit at a Sydney hospital, Mr Dudhela was part of a nursing team on night shift responsible for providing care to Patient A, a patient with a history of suicidal ideation. Earlier that day, a psychiatric registrar directed that Patient A be monitored on "level 3" observations, which required half hourly observations. During that night Patient A took his own life. 2. Mr Dudhela was one of five nurses on duty that night. Separate disciplinary proceedings were brought against each of those nurses. 3. The particulars of the complaints against Mr Dudhela are set out in the Tribunal's decision in HCCC v Dudhela at [37]. In summary, the complaints were that Mr Dudhela did not conduct sufficient observations of Patient A, not personally sighting him after 11pm that evening and being unaware, after 12.30am, whether any other nurse was taking half-hourly observations. Further, Mr Dudhela recorded in Patient A's notes that he was "settled" or "observed to be asleep" when he had not actually observed Patient A. 4. Mr Dudhela admitted all of the particulars of the complaint, other than one. The Tribunal found all particulars of the complaints to be proved. 5. The Tribunal found at [59]–[61]: 59.Particular 1 relates to Mr Dudhela purportedly conducting observation rounds of Patient A and recording that he was settled when he did not personally sight Patient A. He did not maintain the proper observation levels for Patient A and compounded his poor practice with fraudulent documentation. These failures put Patient A's safety directly at risk. 60.Particulars 2 (a), (b) and (c) relate to Mr Dudhela making a progress note about Patient A which was not based on his observations and was inaccurate. It was a serious failure of care and judgment by Mr Dudhela. 61.As the nurse specifically allocated to Patient A, Mr Dudhela had responsibility for him during the nightshift. Patient A was an extremely vulnerable patient. He had made previous attempts at suicide. He was on level 3 observations requiring nursing staff to take observations every 30 minutes during the night shift. Yet Mr Dudhela conducted no observations of Patient A after 11:00 pm 1. It further found: 66. …Further, Mr Dudhela's brief and inaccurate documentation of Patient A's presentation during the shift potentially represented that, like checking observation levels, his documentation practice was inattentive and haphazardly routine. 67.We find that given Mr Dudhela did not look at Patient A himself after 11:00pm it was significantly below the relevant standard for Mr Dudhela to then write a progress note at about 6:20am asserting "Pt observed to be asleep during each rounds". We find particular 2(d) established. 68.Particular 3 is directed towards Mr Dudhela's failure to conduct sufficient observations of Patient A in circumstances where Patient A had a history of suicidal ideation and was on level 3 observations. Further, Mr Dudhela was unaware whether any other nurse was taking half-hourly observations of Patient A and was aware of a practice among nursing staff of only taking hourly level 3 observations during night shifts. 69.The conduct of Mr Dudhela was the subject of a comprehensive analysis in the expert report. The expert evidence set out in this report was not challenged in a meaningful way. The report concluded that Mr Dudhela's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and invited strong criticism. 70.The expert's report referenced the Code of Ethics and the Code of Professional Conduct for Nurses in Australia. The expert's opinion was that maintaining observations as directed by a medical officer is a clear-cut basic function and responsibility of a mental health nurse. Mr Dudhela's failure to maintain Patient A's observation levels and falsely signing for rounds he did not complete compromised Patient A's safety, was unethical, neglected his duty of care and directly breached the foundations of nursing. 71.Further, as Patient A's allocated nurse Mr Dudhela had contravened the Hospital's mental health observation policy. This policy clearly instructed that an observation of patients on level 3 was to be maintained by the nurse assigned to care for the patient during the shift. 72.We find that Mr Dudhela's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and amounts to unsatisfactory professional conduct under s 139B(1)(a) of the National Law. … 76. Mr Dudhela's conduct was improper and unethical because he recorded an observation of Patient A that he knew did not occur. He compounded this by making an inaccurate progress note. It was contrary to both the Code of Ethics for Nurses in Australia and the Code of Professional Conduct for Nurses in Australia. … 83.Mr Dudhela made an entry indicating an observation of Patient A at 11:30pm which had not in fact taken place. He did not personally conduct any observations for Patient A over an eight hour period or take any steps to ensure they occurred. He made a progress note suggesting that Patient A was asleep during all rounds in circumstances where he had last sighted the patient almost seven hours previously. He was unaware whether the patient was sleeping during the hourly rounds and he was aware that the half-hourly rounds did not occur. 84. We find that the unsatisfactory professional conduct displayed by Mr Dudhela is of a sufficiently serious nature to justify suspension or cancellation of his registration and constitutes "professional misconduct" under s 139E of the National Law. We are satisfied that the complaint of professional misconduct as detailed in Complaint Two is proved. 1. In considering the appropriate protective orders the Tribunal stated at [91]–[95] and [101]–[103]: 91. The Commission submits and we accept that Mr Dudhela has shown limited insight, particularly as it concerned his role as the nurse allocated to Patient A. 92.In a workplace interview conducted on 23 June 2017 Mr Dudhela claimed that the role of the allocated nurse was "just for the documentation". During the s 150 hearing he again described the role of allocated nurse as "just for documentation." This theme was somewhat repeated in his Reply to the Complaint where he stated that patients were allocated to nurses for the review of patient records, documentation of patient progress during the shift and updating patient records in preparation for handover to the morning staff. 93.It was submitted on Mr Dudhela's behalf that this was the usual procedure on the night shift and he was not attempting to minimize his role as the allocated nurse. 94.However, and as submitted by the Commission, Mr Dudhela claimed that he did not reflect on the usual practice prior to Patient A's death, but it appears that he raised his concern with a clinical nurse educator, received decent advice to "do what's right" and follow policy, and then carelessly disregarded that advice and continued to follow the poor practice at the ACMHU. 95. Regardless of what the usual practice may have been Mr Dudhela was the allocated nurse for Patient A. In our view, at its core, this involves providing care to the patient and escalating any concerns. The evidence demonstrates that before making his progress notes at 6:20am, apart from one observation of Patient A at 11:00 pm, all Mr Dudhela did in the care he provided was to read Patient A's notes. Notes which overwhelmingly indicated that Patient A was at risk of suicide. … 101. Mr Dudhela's conduct is serious. He breached the Hospital's mental health observation policy, prioritized his work on education slides and abandoned Patient A's level 3 observations. He relied on other staff members to do the observations of Patient A and failed to speak up against the culture of observing patients hourly instead of half-hourly. He failed to provide fundamental care for Patient A. He failed to ensure Patient A's safety and wellbeing. 102. At the time of Patient A's death Mr Dudhela had been a registered nurse for five years. He had significant experience in mental health nursing. Yet, in his conduct he demonstrated an absence of care, propriety, honesty and integrity relating to the practice of nursing. 103. Mr Dudhela worked in a mental health unit in a hospital. It was a secure and specially-designed environment. Patient A went to the Hospital for help. He was subsequently admitted as an involuntary patient. He should have been safe. Mr Dudhela's conduct posed a direct risk to the safety of a vulnerable involuntary mental health patient. This risk was ultimately realised. Material Relied Upon 1. Mr Dudhela put very little evidence before the Tribunal in support of his application. His evidence originally comprised a bundle of documents (Exhibit A1) containing: 1. A statement titled "Self-reflection since 11 May 2021"; 2. A statement titled "Self-reflection since 27 May 2017" which, we were told, was a statement made by Mr Dudhela for the purposes of the disciplinary proceedings; 3. A Curriculum Vitae (CV) as at 16 October 2023; 4. Copies of a Certificate III in Individual Support (Ageing) issued on 7 March 2023 by H&H Accredited Training Pty Limited, a Certificate IV in Disability issued on 6 April 2023 by H&H Accredited Training Pty Limited, a Certificate of Attendance at a virtual webinar "Law and Ethics in Practice" on 12 July 2023 conducted by the NSW Nurses and Midwives' Association (NWMA) and a Certificate of Attendance at a virtual webinar "Nursing and Midwifery Board (NMBA) Code(s) of Conduct" on 19 July 2023 conducted by the NWMA; 5. An undated "letter of recommendation" addressed to "To Whom It May Concern" from Ms Kate Lovett, Managing Director of H&H Accredited Training Pty Limited. 1. On the day before the hearing Mr Dudhela also provided to the Respondent and the Tribunal two Continuing Professional Development (CPD) Logs which he had prepared himself, one covering the 2018 to 2020 years, the other covering the 2021 to 2023 years (Exhibit A2). 2. The HCCC relied upon: 1. A bundle of documents which were before the Tribunal in the disciplinary proceedings (Exhibit R1); 2. The transcript of the proceedings on 17 November 2020 and 18 November 2020 in HCCC v Dudhela (Exhibit R2); 3. A further bundle of documents containing copies of the International Council of Nurses Code of Ethics for Nurses revised 2021, the NMBA Code of Professional Conduct for Nurses in Australia, the NMBA/AHPRA Code of Conduct for Nurses and Code of Ethics for Nurses in Australia (Exhibit R3). 1. As the CPD Logs had been prepared by Mr Dudhela and were served only the day before the hearing, the HCCC requested, and leave was granted to, Mr Dudhela to provide certificates confirming whether certain of the courses listed in the Logs were completed. 2. The following order was made at the hearing: The Applicant is given leave to provide to the Respondent and the Tribunal the documents mentioned in paragraph 21 (f) of the Respondent's Written Submissions dated 22 February 2024 and a copy of the Certificate IV in Aged Support referred to by the Applicant in cross-examination together with an explanation as to which entries in the CPD Reports (Exhibit A2) comprise units of a Certificate Course undertaken by the Applicant and which comprise stand alone CPD courses. 1. The Applicant provided to the Respondent and the Tribunal in accordance with those orders: 1. A letter addressed to the Tribunal dated 28 February 2024 from the Director of Care at St. Sergius Aged Care confirming that Mr Dudhela had undertaken in-service education sessions "Defensible Nursing Documentation" and "Communication, Referral and Documentation" on 24 March 2018 and 17 June 2020 respectively, copies of a Certificate IV in Ageing Support issued by Ambition Training Institute on 20 January 2020, a Certificate of completion issued by Alison on 8 May 2023 in respect of a three hour course titled "How to be an Ethical Whistleblower", a Graduate Diploma of Nursing issued on 22 August 2020 by the University of Tasmania and a further copy of the Certificate III in Individual Support (Ageing) issued on 7 March 2023 by H&H Accredited Training Pty Limited; 2. Updated CPD Logs for the 2018 to 2020 and 2021 to 2023 years identifying which entries in those reports comprised units of a Certificate Course undertaken by the Applicant and which comprised stand alone CPD courses. Mr Dudhela's evidence 1. In his statement titled "Self-reflection since 11 May 2021", Mr Dudhela said that in the time since his registration has been cancelled he has continued to reflect on his conduct on 26 May 2017 and "the tragic incident with Patient A". 2. He said: This tragic event with Patient A is a constant reminder to me of the immense responsibility I have to ensure the patients I care for in the future receive safe and quality care. It has instilled in me a deep sense of commitment to improving myself as a healthcare professional. I have recognised the significance of continuous self-improvement, and professional development. During the time I have not been registered, I have actively sought out opportunities to enhance my skills and knowledge and ensure that I stay up to date with current nursing practices. 1. He said that he accepts the Tribunal's decision to cancel his registration. He referred to various aspects of the Tribunal's decision and accepted: 1. He did not write accurate notes; 2. He did not follow NSW Health Policies: Engagement and Observation in Mental Health Inpatient Units (Observation Policy) and Health Care Records - Documentation and Management; 3. He followed poor nursing practice when he agreed to observations being attended to on an hourly basis and not as they should have been done in accordance with the Observation Policy and he did not advocate for Patient A; 4. He relied on other staff members to do his work and demonstrated an absence of care, propriety, honesty and integrity; 5. In so doing he did not comply with various aspects of the International Code of Ethics for Nurses, the Nurses Code of Conduct and the Standards for Practice for Registered Nurses. 1. He said he continues to deeply regret his conduct on 26 May 2017, and the effect it had on Patient A and his family. 2. He explained that since his registration was cancelled he has been working in a non-nursing role as a trainer including, since September 2020, at H&H Accredited Training. 3. He said: I have fully embraced my role as a trainer and assessor at H&H Accredited Training using the knowledge I have learned about ethics in nursing, professional responsibility and accountability not only for my personal and career development, but also as a guide for the students I teach in various community education courses. Central to my teaching approach has been the emphasis on documentation, policy, and procedure compliance. These aspects I have learnt, are the foundation for competent and ethical nursing practice. Through evolving reflective practice, I now understand the importance of cultivating a culture of accountability and advocacy in the nursing community. Through my teaching, I strive to share what I have learnt to empower the students not only with technical knowledge, but also with the moral and ethical compass necessary to navigate the complexities of healthcare. I encourage the students to challenge outdated practices, advocate for patients, and the importance of adherence to policies and procedures. This has become a cornerstone of my teaching philosophy. Furthermore, I have recognised the significance of continuous self-improvement and professional development. I have actively sought out opportunities to enhance my own skills and knowledge, ensuring that I stay abreast of the latest developments in the field of community nursing. This commitment to lifelong learning has not only enriched my teaching, but has also set an example for the students, inspiring them to invest in their ongoing education. 1. Mr Dudhela then set out the training he has undertaken including a Certificate III in Individual Support (Ageing) and a Certificate IV in Disability and set out a summary of the knowledge he has gained and skills he has learnt as a result of the training he has undertaken in aged care and disabilities. 2. He concluded: As I reflect on my journey, I am filled with a sense of purpose and gratitude. Through my own lessons learned, I am guiding students and helping them understand the critical importance of documentation, policy, and procedure compliance. I am really enjoying teaching and would like to continue nurse education if I am allowed to apply for nursing registration. Looking ahead, I am excited about the opportunities to continue making a positive impact on the lives of students and, by extension, the patients they will care for. Each day presents a chance to reinforce the principles of ethical nursing practice, ensuring that the lessons learned from my past experiences form part of the nursing community's future. My journey as a trainer and assessor in community care, reinforced my passion for nursing and equipped me with the necessary skills and knowledge to continue educating healthcare professionals. 1. At the hearing Mr Dudhela gave the following evidence. 2. He said that he fully acknowledged the Tribunal's decision. He said that his nursing practice was very poor on the night of Patient A's death. He said he failed to undertake proper observations for the patient and did not "do the documentation correctly". He said he had no excuse for his conduct. He said he deeply regretted what happened for the patient and his family and deeply regretted his actions on that night. 3. He said he continually reflects on why it happened, how he can improve himself and how he can ensure it would not happen again. He described it as a "life- long learning". 4. He said that after conditions were placed on his registration by the Nursing and Midwifery Council of NSW (Council) following the "incident" in 2017, he had worked as a registered nurse at a nursing home, St Sergius Aged Care, under those conditions. He said he had a mentor during that time, Ms Susanna McGuire, who had provided a lot of support to him and helped him develop his aged care nursing skills. 5. He said that he had undertaken education which had helped him understand the importance of complying with hospital policies and completing accurate documentation. 6. He said that the Committee Members of the Council who conducted the s 150 Proceedings in 2018 had recommended to him that he consider working in Aged Care rather than in Mental Health and he had taken that advice seriously and that he undertook training in Aged Care as a result of that advice. He said that training had helped him a lot both with his nursing skills and with his documentation skills. He said that working with the support of his mentor had helped him improve his practice. 7. After his registration was cancelled, because he could not practise, he completed his Certificates in Individual Support (Ageing) and Disability and then became an employment trainer and assessor. He said that he has now assisted approximately 300 students to complete their courses and with work placement. This has enabled him to stay connected with the nursing industry. 8. He said that since the "2017 life lesson" he feels more "emotionally mature". He said he has developed "critical thinking analysis tools" which he uses daily with his students. He has also done courses in legal ethics and compliance and he has taken it very seriously. He said that he would "never let the same thing happen again in [his] life". 9. He said that the "incident" with Patient A happened because of poor nursing practice. He said if he had followed policy and procedures it would not have happened and he recognises he has done harm to Patient A and his family. 10. He said that now, in any situation he is in, he thinks before he takes action and in future if he needed assistance he would contact a mentor or management to assist him. 11. He said the culture in the hospital he was working in at the time of the incident was poor, but that he was "a part of it". He said he was advised by the nursing educator to do "what was right" and he didn't because he "lacked courage". He said he would never do that again. He said he was confident that he would "stand up" and report any unethical nursing practices in future. He would take it very seriously and if he found himself working in a workplace which was not safe he would report it and document it. He said he would now have the courage to protect the patient. 12. He said the courses he has undertaken have given him a lot of insight and will help him to comply with the law. He now understands whistleblower protections and he now understands he could be a whistle blower if he found himself in a poor culture in nursing again. He said he hadn't known that before he undertook a course on whistleblowing. 13. He said in any situation in future he would always keep the "patient at the centre". He said he did not do that with Patient A and failed in his basic duty of care. In his future practice he would always "make sure they [patients] were safe". 14. He said that if he was reinstated he felt confident that he would be able to work again at the Nursing Home where he worked before his registration was cancelled, St Sergius Aged Care. He is still in contact with that organisation because he has supported students into placements there. He said he believes they would be happy to support him because they know his history and the contribution he has made. Given his experience as a trainer, he would also like to train staff there too. 15. He wishes to return to practice as a registered nurse in aged care settings. He wants to "go back on the floor and connect with the residents" and provide nursing care for them. He said he is passionate about education and his long-term goal is to be an educator, but he believes that in order to do that he needs to go back to practice to gain skills he can then teach to others. 16. Under cross-examination Mr Dudhela conceded that his record keeping practice for Patient A on 26 May 2017 also reflected his record keeping practice for other patients at that time and that the culture of making hourly (rather than half hourly) observations for patients on level 3 observations during night shift was the same for other patients on that level of observations. 17. It emerged in Mr Dudhela's evidence that he is working three days a week at H&H Accredited Training and has recently commenced working as a part-time trainer at Macquarie Training College and Wesley Mission. He is training students undertaking Aged Care and Disability courses at both. 18. It was put to Mr Dudhela in cross-examination that the undated letter of recommendation from Ms Lovett was a reference he requested she provide to assist him to obtain those positions. Mr Dudhela said that that was not the case. He said that he told Ms Lovett he was making an application to the Tribunal for reinstatement, gave her a "brief history of what had happened", explained that his registration had been cancelled because of his "poor practice" and asked her for a letter of support about his conduct as an assessor. He did not provide Ms Lovett with a copy of the Tribunal's decision in the disciplinary proceedings, but said that he would have if she had asked for it. He said that until he requested the letter Ms Lovett had not previously been aware that findings had been made against him by the Tribunal. Ms Lovett's letter 1. In an undated letter addressed to "To Whom it May Concern", Ms Lovett, the Managing Director of H&H Accredited Training states: It is with great confidence that I write this letter of recommendation for Mehul Dudhela. Mehul has been an important part of our organisation for over 3 years. His role has been to mentor students, colleagues, and administration staff members during this period. Honesty, integrity, calm disposition, and ethical practices are key to being a successful trainer/assessor in our industry, Mehul displays all of these and more. Each new trainer / assessor is supported by him to being (sic) their career with us under the guidance of someone that focuses on these important aspects of the care sector in which we are mindful of with each student. Mehul is confident in delivering all aspects of aged care and adheres to the principles thoroughly, he is a strong advocate for the elderly and teaches these throughout each of his lessons and support to his students and staff training. The Parties' submissions The Applicant's submissions 1. Ms Doust submitted on behalf of Mr Dudhela that: 1. Mr Dudhela has continued to reflect on his conduct and fully understands his conduct on the night of 26 May 2017 was professional misconduct; 2. The "incident" is a constant reminder to him of the paramount responsibility he has to the care and safety of his patients; 3. He has been deeply committed to improving himself professionally and in his life overall; 4. He has demonstrated "sound and meaningful" insight into the fact that he engaged in professional misconduct; 5. He continues to be ashamed by his limited insight at the time which lead to his conduct on the night shift. He now understands his conduct was inexcusable; 6. Mr Dudhela has completed substantial and relevant continuing professional development including CPD that would improve his clinical skills and challenge and develop his critical thinking skills and ethical values and approximately 42 hours of CPD concerning ethics which is transferrable to the practice of nursing. This CPD, it was submitted, has given him structure and guidance for his future workplace values and principles. He now understands the relevance of the Code of Conduct, the Code of Ethics and the Standards for Practice and that they are fundamental to nursing values and performance; 7. He can now see his lack of courage and failure to advocate for Patient A was unacceptable and, having completed education on how to be an ethical whistleblower, if placed in a similar situation again he would, without hesitation, draw on his critical thinking skills and advocate for his patients following the policies and procedures for safe patient care; 8. Mr Dudhela has demonstrated true remorse and genuine insight into his failings on 26 May 2017 and the importance of clinically sound and ethical nursing practice. 1. It was submitted that the Tribunal should take into account the "character reference" from Ms Lovett, in particular her statement that: Honesty, integrity, calm disposition, and ethical practices are key to being a successful trainer/assessor in our industry, Mehul displays all of these and more. 1. It was submitted that the Tribunal should be satisfied that Mr Dudhela has developed "a worthiness and reliability" and that we should be satisfied that Mr Dudhela will not place his patients, or the nursing profession, in this position again. The Respondent's submissions 1. The HCCC neither opposed nor consented to Mr Dudhela's reinstatement application. 2. In its submissions the HCCC pointed the Tribunal to a number of considerations it said the Tribunal should take into account in determining whether it was satisfied that a reinstatement order was appropriate. Those considerations, amongst others, are dealt with below. Consideration 1. Mr Dudhela desires to return to practice as a registered nurse in an aged care setting where he feels he can make a meaningful contribution. Ultimately he wishes to teach, but he wishes to go back to practice at this stage to gain further practical experience he can then draw on in his teaching. He is clearly passionate about pursuing such a career. 2. Over eighteen months having passed since the Tribunal's orders were made, it is open to Mr Dudhela to seek a review of the order cancelling his registration under s 163A of the National Law. 3. Mr Dudhela has the onus of proof in these proceedings and, as the HCCC submitted, the onus is a heavy one. The onus is on Mr Dudhela to demonstrate to the Tribunal that, having engaged in conduct of such a serious nature, he can now be trusted to return to practise in a way that presents no risk to the safety of the public and their confidence in the profession. Clear proof is required that he has gained insight and that he will not behave in future in a way that causes risk to patients or may bring the profession into disrepute. The Tribunal is to exercise the power to reinstate with great caution, only on solid and substantial grounds, and is to approach its task with a "healthy scepticism". The paramount consideration is the protection of the public. 4. Mr Dudhela's conduct in failing to maintain observations as directed, a clear-cut basic responsibility of a mental health nurse, and in falsely signing for rounds he did not complete was extremely serious. Mr Dudhela was an experienced nurse with significant experience in mental health nursing and yet he put the safety of an extremely vulnerable patient at risk. He has rightly accepted the Tribunal's findings against him in this regard and accepts that his conduct was inexcusable. 5. It is clear to the Tribunal that Mr Dudhela has reflected on his conduct at the time of Patient A's death. 6. The evidence shows that Mr Dudhela has undertaken a significant amount of professional development, both before and after the cancellation of his registration. Before the cancellation of his registration he undertook a Certificate in Ageing Support and a Graduate Diploma of Gerontological Nursing. 7. Since the cancellation of his registration he has also undertaken a significant amount of professional development training including various on-line and other courses related to aged care nursing, disability nursing and teaching skills. As part of his Certificate III in Individual Support (Ageing) which he completed in March 2023 (by way of credit transfer for 10 of the 13 Units of Competency) he completed a component titled "Work legally and ethically" which, he says, was a 16 hour component. He has also undertaken a two hour "Law and Ethics in Practice" webinar conducted by the NMWA, a two hour webinar "Nursing and Midwifery Board (NMBA) Code(s) of Conduct" and a three hour webinar on whistleblowing. Assuming the "Work legally and ethically" component of his Certificate III did take 16 hours (which cannot be independently verified on the material before us), this amounts to 23 hours of training relevant to or transferrable to ethics in the practice of nursing. 8. Mr Dudhela is to be commended for undertaking significant professional development including courses on ethics which directly relate to the very serious errors of judgment that he made. However, undertaking training such as this is one thing, putting into practice the lessons taken from it is another. 9. Mr Dudhela says, and we accept, that he deeply regrets his conduct and the effect it had on Patient A and his family. However, at the hearing Mr Dudhela accepted in cross-examination that his conduct on the evening of 26 May 2017 was not limited to Patient A. It is of significant concern to us that Mr Dudhela did not express (and does not appear to have otherwise expressed) remorse for the effect his conduct may also have had on other patients. 10. Mr Dudhela says that he has gained insight, developed "critical thinking analysis tools", feels more "emotionally mature" and would never behave in a similar way again. 11. However, apart from the letter of recommendation from Ms Lovett, all that is before the Tribunal is Mr Dudhela's own uncorroborated evidence in this regard. 12. Ms Lovett's letter of recommendation is undated and it is not addressed to the Tribunal. However, even if we accept Mr Dudhela's evidence that he told Ms Lovett that he was seeking reinstatement and asked for a letter from her for the purposes of this application, all that he says he told Ms Lovett in that regard was that his registration had been cancelled for "poor practice". He did not tell her the details of his conduct leading to his registration being cancelled or of the Tribunal's very serious findings against him. In those circumstances we can give very little weight to Ms Lovett's letter. 13. The Tribunal has before it no independent evidence of how Mr Dudhela's behaviour has changed since the order cancelling his registration and/or how he has put into practice what he has learnt from the relevant courses he has undertaken. 14. Mr Dudhela worked at St Sergius Aged Care for approximately three years after conditions were imposed on his registration and before it was cancelled. He worked under a mentor/supervisor, Ms Susanna McGuire. Mr Dudhela said that Ms McGuire had helped him improve his practice. However, no evidence from Ms McGuire has been provided to the Tribunal. 15. The conditions imposed on Mr Dudhela's registration by the Council prior to the cancellation order being made required monthly supervisory reports to be provided to the Council, however (albeit such reports would clearly cover the period prior to the cancellation order) none of those reports have been put before the Tribunal. 16. Mr Dudhela said that, if reinstated, he would be confident that he could again work at St Sergius. However, no evidence was provided to the Tribunal from anyone from St Sergius Aged Care supporting this statement or his reformation of character. 17. In her letter dated 28 February 2024 confirming in-service education Mr Dudhela undertook before his registration was cancelled, Ms Zaytseva, the Director of Care at St Sergius Aged Care, stated that Mr Dudhela's engagement in these sessions reflected "his dedication to professional development and maintaining high standards of patient care". However, no leave was sought by Mr Dudhela to provide any further character references, so the Tribunal proposes to disregard this observation. We note, however, that even if we were to take it into account, given we have no information as to how well Ms Zaytseva knows Mr Dudhela or whether she is aware of the Tribunal's findings in the disciplinary proceedings and given the generality of the observation, it would be wholly insufficient to persuade us of Mr Dudhela's rehabilitation. 18. It emerged during the course of Mr Dudhela's evidence at the hearing that the CV that he included in the bundle of materials he relied upon contained a typographical error. It stated that Mr Dudhela ceased working at St Sergius Aged Care in September 2020, rather than November 2020. Mr Dudhela also needed to correct his oral evidence given in this regard. It also emerged that Mr Dudhela had, since the time he prepared his CV in October 2023, commenced working at Macquarie Training College and Wesley Mission. We accept that the typographical error in Mr Dudhela's CV was a genuine mistake. We also accept that Mr Dudhela's original evidence in this regard was given under a genuine mistake. Further, we do not consider that, by omitting to include details of his work at Macquarie Training College and Wesley Mission Mr Dudhela was seeking to mislead the Tribunal in any regard. However, the fact that Mr Dudhela needed to correct his CV and that his CV was some four months out of date demonstrated to us that Mr Dudhela did not take particular care in putting his documentation together for the Tribunal. 19. In circumstances where poor documentation practices are in issue, this lack of attention to detail does not give us confidence that Mr Dudhela has clearly understood just how important it is to have clear and accurate documentation particularly in a nursing context. 20. Mr Dudhela wishes to return to practice in an aged care setting where he would be responsible for the care of vulnerable patients. Where we must exercise great caution and where the protection of the public is our paramount concern, the Tribunal cannot simply take Mr Dudhela's "word for it" that he can be trusted to practise in a way that presents no risk to the safety of those patients. 21. Mr Dudhela has not satisfied his onus of proving that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession. We simply cannot be satisfied on the very limited evidence before us that it is appropriate for us to make the reinstatement order that Mr Dudhela seeks. 22. As we propose to dismiss Mr Dudhela's reinstatement application, it would also be open to us to make an order under s 163B(5) of the National Law that Mr Dudhela is not to make a further application for review of the order cancelling his registration for a further specified period of time. The HCCC submitted that a non-review period of two years would be appropriate. 23. We note that a non-review period of two years would be greater than the non-review period set by the Tribunal in cancelling Mr Dudhela's registration. We do not propose to make such an order in this case. It is, accordingly, open to Mr Dudhela to make another application for reinstatement when he believes it is appropriate to do so. However, Mr Dudhela must be aware that he is unlikely to be successful on any further reinstatement application if he does not present independent and probative evidence to the Tribunal of his insight, his rehabilitation and his fitness to practise in a way that presents no risk to the safety of patients. Costs 1. In exercising the power to award costs under cl 13 of Schedule 5D of the National Law, the general rule is that "costs follow the event": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. 2. Ms Doust submitted on behalf of Mr Dudhela that, in this case, no order as to costs should be made and pointed to the decision of Brown v Health Care Complaints Commission [2015] NSWCATOD 40 which in turn refers to the case of Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 where no order as to costs was made. Donnelly was considered at some length in the case of Ristevski v Medical Council of NSW [2016] NSWCATOD 18 where at [82] the Tribunal concluded: What emerges from the review of the cases raised by the applicant where no order was made is that the public interest respondent who is given leave to appear in answer to a reinstatement application should not assume that the Tribunal will compensate it for their participation, at least where the applicant's application is successful. Some attention will be given by the Tribunal to the way the respondent conducted itself in the proceedings (a usual matter in all cases involving costs disputes). Where the participation is seen as unsatisfactory or of little or no value, it may be disposed not to order costs. 1. At [87] the Tribunal concluded: … A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused. 1. In conducting a review of a relevant order under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the HCCC as a public interest contradictor: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 at [51]. 2. Ms Doust submitted that while Mr Dudhela's conduct was serious it "was not serious enough to tip the balance for a costs order in favour of" the HCCC. However, that is to misstate the test. It was not suggested that the HCCC has engaged in any disentitling conduct in the manner in which it has appeared as contradictor in Mr Dudhela's reinstatement application. The HCCC has conducted its case entirely appropriately and the Tribunal has been assisted by its appearance. The fact that, as Ms Doust submitted, the HCCC limited the evidence it served in these proceedings largely to documents served in the disciplinary proceedings is not a reason to depart from the general rule that costs should follow the event (indeed that is likely to reduce the costs Mr Dudhela may be required to pay) and we can see no other reason for doing so. Orders 1. Pursuant to s 163B(1) of the Health Practitioner Regulation National Law (National Law), the application is dismissed. 2. The Applicant is to pay the Health Care Complaints Commission's costs as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 22 March 2024