Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v GGO [2024] NSWCATOD 50 Hearing dates: 11 April 2024 Date of orders: 19 April 2024 Decision date: 19 April 2024 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member L McDermott, Senior Member L Shabella, Senior Member R Leontini, General Member Decision: (1) The respondent's registration is cancelled. (2) The respondent may not apply for review of order (1) above for one year from the date of this decision. (3) There is no order as to the costs of the proceedings. (4) The disclosure of the names of the following persons, together with any information or material which could identify these persons, whether by itself or with other information and material, is prohibited: (a) the victim of the offence under s 61KC(a) of the Crimes Act 1900 (NSW) of which the respondent was convicted on 26 November 2021; (b) the respondent's ex-wife; (c) the respondent's three children. (5) For the purposes of these proceedings, the name of the respondent is anonymised as GGO. (6) Subject to order (8), the disclosure of the name of the respondent, together with any information or material which could identify the respondent, whether by itself or with other information and material, is prohibited. (7) Subject to order (8), access to and disclosure of documents and evidence filed with the Tribunal in these proceedings is restricted to the parties and their legal representatives. (8) Orders (6) and (7) do not preclude the applicant or any of its officers or employees from disclosing: (a) the respondent's name; (b) the decisions, reasons for decision and orders of the Tribunal in these proceedings; (c) documents and evidence filed with the Tribunal in these proceedings; and (d) information about the proceedings, decisions, documents and evidence referred to in (b) and (c) above to any of the entities in the Schedule in connection with the applicant's exercise of its functions under the Health Practitioner Regulation National Law (NSW) (as amended or substituted from time to time) and all regulations and rules made under or in connection with those Acts (as amended or substituted). Schedule 1. The Australian Health Practitioner Regulation Agency. 2. The Paramedicine Council of New South Wales. 3. The Paramedicine Board of Australia. Catchwords: HEALTH — professional registration and discipline — paramedic — convictions for offences — failure to notify the Paramedicine Board of Australia of prescribed matters — whether constitutes unsatisfactory professional conduct — what protective orders should be made Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Civil and Administrative Tribunal Act 2013 (NSW), s 64 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14 Crimes (Sentencing Procedure) Act 1999 (NSW), s 8 Crimes Act 1900 (NSW), ss 61I, 61KC, 578A Health Practitioner Regulation National Law (NSW), ss 3, 3A, 4, 5, 77, 130, 139B, 144, 149, 149C, 165H, 165M, Sch 5, cl 2 Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Wood [2020] NSWCATOD 60 Health Care Complaints Commission v ZXY [2021] NSWCATOD 136 Lee v Health Care Complaints Commission [2012] NSWCA 80 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) GGO (Respondent) Representation: Counsel: A Petrie (Applicant) Solicitors: M Rogers / N Lawless (Health Care Complaints Commission) (Applicant) Respondent (self-represented) File Number(s): 2023/00333592 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the following persons, together with any information or material which could identify this person, whether by itself or with other information and material, is prohibited: (1) the victim of the offence under s 61KC(a) of the Crimes Act 1900 (NSW) of which the respondent was convicted on 26 November 2021; (2) the respondent's ex-wife; (3) the respondent's three children; (4) the respondent. REASONS FOR DECISION Overview 1. In these proceedings the applicant, the Health Care Complaints Commission (which is also referred to as the HCCC), is seeking findings against the respondent, GGO, a paramedic (who is also referred to as the practitioner), that he has been convicted of criminal offences and is guilty of unsatisfactory professional conduct within the Health Practitioner Regulation National Law (NSW) (National Law), and the making of consequential protective orders. 2. We have decided to make: 1. the following findings: 1. that the respondent has been convicted of offences within s 144(a) of the National Law; 2. that the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(b) of the National Law; 1. the following orders: 1. the respondent's registration is cancelled; 2. the respondent may not apply for review of order in para (a) above for one year from the date of this decision. 3. there is no order as to the costs of the proceedings; 4. the disclosure of the names of the following persons is prohibited: 1. the victim of the offence under s 61KC(a) of the Crimes Act 1900 (NSW) of which the respondent was convicted on 26 November 2021; 2. the respondent's ex-wife; 3. the respondent's three children; 4. the respondent; 1. for the purposes of these proceedings, the name of the respondent is anonymised as GGO; 2. subject to certain exceptions, the disclosure of the name of the respondent is prohibited, and access to and disclosure of documents and evidence filed with the Tribunal in these proceedings is restricted to the parties and their legal representatives. The factual background 1. The respondent was first registered as a paramedic on 8 March 2019. He was employed by NSW Ambulance from 2 July 2012 as a trainee and then intern paramedic. On 11 December 2015, he completed a Diploma of Paramedical Science (Ambulance) and commenced working as a paramedic on a permanent basis from 26 March 2016. As at 5 May 2019, he was employed as a paramedic at Ettalong Station. 2. On 27 March 2020, the respondent was charged with three counts of sexual intercourse without consent on 5 May 2019 contrary to s 61I of the Crimes Act (the sexual assault charge). 3. On 14 May 2020, the Paramedicine Council of New South Wales (the NSW Council) suspended the respondent's registration effective from that date. 4. On 29 September 2021, the respondent was indicted for the offence of sexual touching another person without consent on 5 May 2019 under s 61KC(a) of the Crimes Act (the first offence). 5. On 30 September 2021, the respondent pleaded guilty to the first offence. 6. On 26 October 2021, the Local Court of New South Wales at Gosford (the Local Court) made an apprehended domestic violence order (the ADV order) against the respondent for a period of two years under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act). 7. On 26 November 2021, the District Court of New South Wales at Sydney (the District Court) convicted the respondent of the first offence (the first conviction) and sentenced him to a community correction order for a period of two years from that date pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act). 8. On 9 April 2022, the respondent was charged with the offence of contravening a restriction of the ADV order on 8 April 2022 contrary to s 14(1) of the CDPV Act (the second offence). 9. Prior to 31 January 2023, the respondent pleaded guilty to the second offence. 10. On 31 January 2023, the Local Court of New South Wales at Gosford convicted the respondent of the second offence (the second conviction) and sentenced him to a community correction order for a period of 14 months from that date pursuant to s 8 of the CSP Act. The proceedings The procedural history 1. On 20 October 2023, the applicant commenced these proceedings against the respondent by filing an application for disciplinary findings and orders, in which the respondent is referred to as the practitioner, and which relevantly provides: "3. ORDERS SOUGHT The applicant seeks the following orders: 1. Cancellation of the Respondent's registration, pursuant to s 149C(1)(c) of the National Law, with a non-review period of 1-2 years. 2. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law. … GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(b), and has been convicted or made the subject of a criminal finding section 144(a) of the National Law." 1. On 8 March 2023, the respondent filed: 1. his reply to application for disciplinary findings; 2. an application for miscellaneous matters dated 4 March 2024 seeking an order for the non-publication of his name (the GGO application). 1. On 13 March 2023, the Tribunal constituted by a Deputy President made an order that the disclosure of the name of the respondent is prohibited and his name is to be anonymised pending any further order of the Tribunal. The complaint 1. The Complaint relevantly provides: "COMPLAINT ONE Pursuant to section 144(a) of the National Law, the practitioner has been convicted of a criminal offence in NSW. PARTICULARS OF COMPLAINT ONE 1. On 26 November 2021, at Sydney District Court, the practitioner was convicted of an offence of sexually touching another person without consent, contrary to section 61KC(a) of the Crimes Act 1900. 2. On 31 January 2023, at Gosford Local Court, the practitioner was convicted of an offence of contravening a prohibition or restriction in an apprehended domestic violence order, contrary to section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the National Law. PARTICULARS OF COMPLAINT TWO 1. The practitioner contravened section 130(1) of the National Law by failing to notify the National Board within 7 days of being charged on 27 March 2020 with three offences of sexual intercourse without consent, contrary to section 61I of the Crimes Act 1900." The reply 1. In his reply the respondent has relevantly replied as follows: "Complaint 1 – Admit Complaint 2 – Admit Complaint 2 particulars – Admit I was contacted within 7 days by NSW Ambulance inspectors who presented me with a letter of suspension. I didn't contact anyone as I was a mess being charged with 3 counts of sexual assault in which wasn't true. I did sexually touch x 2 the female but not 3 x times sexual Assault. On 6th April I was attacked by a shark. Not contesting anything. Just some acts. I don't EVER want paramedical Registration or any other registration in health for the rest of my life." The hearing 1. On 11 April 2024, the hearing took place. Ms A Petrie of counsel represented the applicant. The respondent represented himself. 2. The applicant relied on the following documents which were admitted into evidence without objection: 1. the documents filed on 18 March 2024 other than the application for disciplinary findings and orders, which were marked as exhibit A1; 2. the certificate of the Australian Health Practitioner Regulation Agency (AHPRA) dated 3 April 2024, which was marked as exhibit A2; 3. the document entitled Registration Standard: Criminal History dated 17 May 2018 of the Paramedicine Board of Australia (the National Board), which was marked as exhibit A3. 1. The respondent did not rely on any documents other than his reply and his application for miscellaneous matters. 2. The applicant relied on its written submissions dated 11 April 2024 (the HCCC submissions) and its counsel made oral submissions. 3. The respondent made oral submissions. 4. At the conclusion of the hearing, we reserved our decision. The issues 1. The issues that we are required to determine in these proceedings, given the admissions of the respondent, are relatively narrow. We note that, as the respondent has admitted the complaints in writing in his reply, by reason of the operation of s 165H of the National Law, it is unnecessary for the Tribunal to conduct an inquiry into the complaint. However, as we are required under s 165M(5) of the National Law to comply with s 165M(2) it is necessary that we are independently satisfied the facts relied on to establish that the particulars in the complaint are proved. 2. The following issues arise for determination: 1. whether the respondent has been convicted of the criminal offences in New South Wales particularised in complaint one; 2. whether the respondent engaged in the conduct constituting complaint two, and any such conduct constitutes unsatisfactory professional conduct; 3. whether, and if so in what manner, the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law; 4. the costs of the proceedings; 5. whether the disclosure of the name of certain persons should be prohibited and the name of the respondent should be anonymised. 1. Before considering these issues, it is appropriate: 1. to set out the key provisions of the National Law; 2. to explain the applicable legal principles: 1. for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law; 2. for the exercise of the power of the Tribunal to cancel the registration of the practitioner and to specify a non-review period; 3. for the exercise of the power of the Tribunal to make a non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The key provisions of the National Law 1. Part 1 (ss 1-10) contains provisions dealing with preliminary matters. Section 3 specifies the objectives and guiding principles of the National Law, and relevantly provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for— (a) the regulation of health practitioners; and … (2) The objectives of the national registration and accreditation scheme are— (a) to provide for 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; and … 1. Section 3A specifies the particular objective and guiding principle of the National Law in New South Wales, and provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Section 4 specifies how functions under the National Law are to be exercised, and provides: 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A. 1. Section 5 contains definitions, and since the enactment of the National Law has relevantly provided: 5 Definitions In this Law— … criminal history, of a person, means the following— … (c) every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law. 1. Part 8 Division 1 Subdivision 3 (ss 128-132) contains provisions dealing with the obligations of registered health practitioners and students. Section 130 deals with the obligation to give a National Board notice of certain events, and relevantly provides: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. … (3) In this section— relevant event, in relation to a registered health practitioner, means— (a) the practitioner is charged with— … (ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or 1. Part 8 Division 1 (ss 138-139I) contains provisions dealing with preliminary matters in relation to health, performance and conduct. Section 139B contains a definition of unsatisfactory professional conduct of a registered health practitioner, and relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … 1. Part 8 Division 3 Subdivision 1 (ss 144-144G) contains provisions dealing with making complaints. Section 144 deals with the grounds for a complaint about a registered health practitioner, and relevantly provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. 1. Part 8 Division 3 Subdivision 6 (ss 149-149E) contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies the circumstances in which these disciplinary powers may be exercised, and provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner … if— (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal. 1. Section 149C specifies the powers of the Tribunal to suspend or cancel registration in certain cases, and relevantly provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or … The applicable legal principles The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law 1. In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [19]-[21], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." 1. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], Meagher JA (with Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: "[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88]. The exercise of the power of the Tribunal to cancel the registration of the practitioner and to specify a non-review period 1. In Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [21]-[22], Basten JA (with Leeming JA at [23] agreeing) considered the operation of s 149C of the National Law: "[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. …" 1. In Chen at [88], Payne JA (with Basten JA at [1] and Leeming JA at [23] agreeing) considered the operation of s 149C(7) of the National Law: "[88] … a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order." 1. The Tribunal has applied the following principles in determining whether a practitioner is unfit in the public interest to practise the practitioner's profession within s 149C(1)(c) of the National Law: 1. the National Law does not contain a definition of "unfit in the public interest to practise" and this term should be interpreted in light of the objects in s 3 and the specific objective and guiding principle in s 3A of the National Law: Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14]; 2. whether a practitioner is unfit in the public interest to practise will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]; 3. it is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role, however where there is no nexus a more careful inquiry into the public interest factors may be required. There may be instances in which 'public interest' is taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences involving violence, sexual assault or the sexual exploitation of children, for example, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]. The exercise of the power of the Tribunal to make a non-publication order under s 64 of the NCAT Act 1. The relevant power of the Tribunal to restrict the publication of certain matters in proceedings before it is found in s 64 of the NCAT Act which relevantly provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), … (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. In Health Care Complaints Commission v ZXY [2021] NSWCATOD 136 (ZXY) at [121] the Tribunal noted that the authorities on the making of non-publication orders in disciplinary proceedings under the National Law stress that unless there are special or out of the ordinary circumstances the principles of open justice should prevail; but the Tribunal has found a real risk that disclosure of the practitioner's name could lead to suicide has overridden the general principles of open justice. The Tribunal at [134]-[135] over the opposition of the HCCC made a non-publication order after undertaking a risk assessment on the evidence and finding that the practitioner's health and well-being override open justice principles. Whether the respondent has been convicted of the criminal offences in New South Wales particularised in complaint one 1. The evidence establishing the first conviction and the second conviction includes the certificate of conviction for each. 2. In view of this evidence and the admission of complaint one in his reply, we are satisfied that the respondent has been convicted of the particularised criminal offences in New South Wales. Whether the respondent engaged in the conduct constituting complaint two, and any such conduct constitutes unsatisfactory professional conduct 1. Section 77(3)(c) of the National Law requires that an application for registration in a health profession approved by a National Board must relevantly require an applicant to disclose the applicant's "criminal history" which in para (c) of the definition of this expression in s 5 includes "every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law". 2. The offence of sexual assault under s 61I of the Crimes Act has a maximum penalty of imprisonment for 14 years. 3. The evidence establishing the failure of the respondent to notify the National Board of the sexual assault charge with 7 days is the court attendance notices for the sexual assault charge and the letter dated 25 February 2022 of AHPRA enclosing his electronic application for renewal of his registration dated 4 November 2019 in which he states that there has been no change in his criminal history. 4. In view of this evidence and the admission of complaint two and the particulars of complaint two in his reply, we are satisfied that the respondent contravened s 130(1) when read with para (a)(ii) of the definition of "relevant event" s 130(3) of the National Law and engaged in unsatisfactory professional conduct within s139B(1)(b) of the National Law. Whether, and if so in what manner, the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law Introduction 1. While the respondent accepted that it was appropriate for his registration to be cancelled and for an order for a non-review period of one year to be made, it is necessary for the Tribunal to be satisfied that this is an appropriate protective action. 2. Before considering this issue, it is appropriate to summarise the evidence and submissions of the applicant. The evidence of the applicant 1. The evidence establishing the circumstances of the first and second offences include: 1. the documents submitted to the District Court including the statement of agreed facts, the sentencing assessment report, the judge's sentencing judgment and the certificate of conviction; 2. the documents submitted to the Local Court including the facts sheet and the certificate of conviction. The submissions of the applicant 1. In the HCCC submissions, the applicant made the following submissions: 1. the circumstances of the first offence render the respondent unfit in the public interest to practise as a paramedic for the following reasons: 1. the nature and gravity of the offence: Parliament has made it clear that this is a grave offence by setting a maximum penalty of 5 years imprisonment. The sexual touching offence involved the respondent, after having already been told by the victim that she was "sick of people touching her", approaching her, sitting behind her with his legs either side of her, reaching his hand up her leg and touching the outside of her underwear, and simultaneously putting his other hand through the back of her dress to try to touch her breast. As described by the sentencing judge, the sexual touching offence occurred during a "persistent course of conduct in pursing the [victim] in a sexual way on the evening of the offence" even "despite having been plainly rebuffed by the victim". The respondent also admitted to the use of a prohibited drug on the night of the offence, namely cocaine; 2. the period of time since the offence was committed: the offending occurred almost 5 years ago, and the conviction occurred around 2 and a half years ago. Whilst the offence is no longer immediately recent, the amount of time that has passed is not such that the impact of the conviction on the respondent's fitness for registration is significantly diminished; 3. the conviction and sentence imposed: the respondent, as a first time offender, was convicted of the offence and sentenced to a community corrections order for 2 years, with supervision conditions; 4. the respondent's behaviour after committing the offence: the respondent apologised to the victim for misreading the situation in a recorded phone conversation approximately 7 months after the offending. Approximately 10 months after the offending, the respondent denied there had been any sexual activity between himself and the complainant when asked by the police. The respondent failed to notify the National Board within 7 days of being charged, and in fact did not ever make a notification of the charges, although he was suspended by his workplace shortly after being charged. The respondent raised at the sentencing proceedings that poor mental health relating to his relationship breakdown contributed to the offending. However, there is limited evidence in relation to attempts to treat his mental health, such as ongoing psychological assistance, other than letters from his general practitioner outlining his prescribing of sertraline and diazepam for anxiety back in 2021. The respondent included an apology to the victim in his letter to the District Court at sentencing and stated that he was solely responsible for what occurred that night. Further, the second offence was committed approximately 5 months into his community corrections order for this offence; 5. the respondent's explanation: In the sentencing assessment report, the respondent is said to have minimised his behaviour by emphasising the influence of his alcohol and cocaine use on the night of the offence. This report also noted the respondent expressed in a psychological assessment that an accumulation of stressors occurred in the lead up of the offending, including an increase in difficult work circumstances, a "terrible" relationship with his ex-wife, "denial" about the end of their relationship and fear of losing his children; 6. the potential relevance of the offence to health practice: a paramedic's responsibilities regularly include touching patients who may be unwell, intoxicated, incapacitated or unconscious. Often these patients are in a state of heightened vulnerability. A strong understanding of appropriate boundaries and consent are vital to the practice of paramedicine. The Code of Conduct (which is admissible evidence of what constitutes appropriate professional conduct for the profession) outlines, under the heading "professional values and qualities": "Practitioners must be ethical and trustworthy. Patients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion." The respondent's conduct is inconsistent with the professional and ethical obligations expected of a paramedic; 1. the circumstances of the second offence render the respondent unfit in the public interest to practise as a paramedic for the following reasons: 1. the nature and gravity of the offence: Parliament has made it clear that this is a serious offence by setting a maximum penalty of 2 years imprisonment. In this instance, the respondent breached the condition that he not-contact the victim unless via email and only in relation to the children, by making offensive allegations of a sexual nature regarding her personal life in front of one of their children. The remarks were offensive, involved misogynistic language and yelling, were made outside the respondent's property on a busy roadway, and were directed as statements made to the child about her mother. Not only was the victim shaken by the events, she was fearful for the safety of their children. The child who was present also described being scared of the respondent because of the yelling, and trying to run away because she was frightened. The gravity of the offending lies not only in the seriousness of the conduct, but also the practitioner's wilful breach of two court orders: the ADV order and the community corrections order which he received in relation to the first conviction; 2. the period of time since the offence was committed: this offence occurred approximately 2 years ago. The conviction occurred in January 2023. The time that has passed has not diminished the relevance of the offending to the respondent's fitness to practice as a paramedic; 3. the conviction and sentence imposed: the respondent again was convicted and received a further community corrections order for 14 months; 4. the respondent's behaviour after committing the offence: the respondent initially denied the conduct in his interview with police and was adamant that there had been no swearing in front of the children, and that he would "never use that kind of language". The respondent later pleaded guilty, and in a letter to the Local Court apologised to the victim, stating his actions were "disrespectful", acknowledging the potential to harm the victim and their daughter, and the safety in their co-parenting responsibilities. The respondent also completed a White Ribbon Knowledge Assessment "Prevention of Violence Against Women for Workplaces". The respondent has not been charged with any further offences since this time; 5. the respondent's explanation: the respondent has not provided any specific explanations for the conduct, but did accept responsibility in his letter to the Local Court at sentence; 6. the potential relevance of the offence to health practice: the gravity of this offence lies not only in the serious conduct itself, but also the wilful breach of two court orders. The latter raises concerns generally about the respondent's compliance with the various requirements placed on registered health practitioners. The nature of the conduct, being both an instance of domestic violence, and involving the use of misogynist language, is also inconsistent with the Code of Conduct, in particular the items listed under the hearing "cultural safety for all communities"; 1. considered together, the first and second convictions show a disregard for the law and a disturbing pattern regarding the respondent's attitude towards women. This is a relevant consideration in relation to both the Tribunal's consideration of whether the circumstance of the offending render the respondent unfit in the public interest to be registered as a paramedic for the following reasons: 1. the behaviour is inconsistent with the high standard expected of paramedics regarding understandings of consent, boundaries and respect for women, and as such may present a risk to future patients; and 2. the nature of the conduct has the ability to diminish of public confidence in the profession if not appropriately condemned; 1. there is no evidence of the respondent before the Tribunal that alternative protective orders, such as suspension or conditions, would appropriately protect the public. 1. In her oral submissions counsel for the applicant submitted the Tribunal should order a non-review period of one year. Consideration 1. In view of our findings and his admissions of complaints one and two in his reply, we are satisfied that we are entitled pursuant to s 149 of the National Law to exercise the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law against the respondent. 2. In determining whether, and if so in what manner, we should exercise the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law, we have had regard to the submissions of the applicant in [53] above which we accept raise relevant circumstances. 3. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in [36] to [41] above, and the matters set out in [51] above, we are satisfied that it is appropriate to cancel the respondent's registration pursuant to s 149C(1)(b) of the National Law and to fix a non-renewal period of one year pursuant to s 149C(7) of the National Law. The costs of the proceedings 1. The applicant advised it was no longer seeking an order for the costs of the proceedings against the respondent. 2. In view of this position of the applicant, it is appropriate to make an order that there be no order as to the costs of the proceedings. Whether the disclosure of the name of certain persons should be prohibited and the name of the respondent should be anonymised Introduction 1. Before considering this issue, it is appropriate to summarise the evidence and submissions of the parties. The evidence of the parties The evidence of the applicant 1. The evidence of the applicant includes the following documents: 1. reports by the respondent's general practitioner and a psychologist prepared for the proceedings in the District Court for the first offence which record the mental health issues experienced by him; 2. the email of the respondent to an Investigation Officer of the applicant sent on 30 May 2023 in which he states "I am struggling with my mental health issues". The evidence of the respondent 1. The GGO application includes the following information under the section entitled "Grounds for Application": "… I have 3 kids who have been struggling and bullied about my sexual touching but being called names like "rapists kids" even my daughter in year 7 was asked by a group of kids "did your dad rape your mum to have you" it's heartbreaking. They are good kids and don't deserve this. It's destroying their confidence and affecting their mental health and they didn't want to even talk to me until the last few months where we are building our relationship again. I love my kids so much and this kills me. Has made me suicidal. … My kids are bullied. Called Rapist dad. My mental health is not Ok, been through so much. PTSD Anxiety Depression Social anxiety Suicidal Thoughts … Publishing my name will be detrimental to my health, my kids lives and I beg that my name can be left out for my aboriginal kids sake. I live in a small community but with this published I will have to leave. I can't put myself through this all over again, it wouldn't be possible for me to take anymore abuse, and judgment. Everyone already things I am a terrible person and yep I did a terrible thing but I do everything I can to be a better man everyday for myself and my kids." The submissions of the parties The submissions of the applicant 1. In the HCCC submissions, the applicant made the following submissions: 1. the evidence as it currently stands does not establish something special, exceptional, or out of the ordinary; 2. it does not oppose non-publication of the respondent's name because any reference to the name of the respondent or his ex-wife would also likely identify their children contrary to s 15A(1) of the Children (Criminal Proceedings) Act 1987 (NSW) (CCP Act); 3. the victim of the first offence is already the subject of a statutory non-publication order which prevents her name from being published pursuant to s 578A of the Crimes Act. A specific non-publication order may not be required to protect the victim's identity, but rather the Tribunal can ensure the existing order is not breached by not naming this person or providing details that may tend to identify her in its judgment. 1. In her oral submissions, counsel for the applicant in chief submitted that a non-publication order should be made in respect of the respondent's ex-wife and children and the victim of the first offence. In reply, she referred to ZXY and submitted that the mental health issues of the respondent were sufficient to justify a non-publication order in respect of his name. The submissions of the respondent 1. In her oral submissions, the respondent referred to the stress of the proceedings and his mental health. Consideration 1. We observe that in determining this issue the Tribunal is entitled to "inform itself of any matter in the way it thinks fit" pursuant to cl 2 of Schedule 5D of the National Law. 2. We are satisfied on the basis of the evidence that it is appropriate to make a non-publication order in respect of the respondent, his ex-wife and children and the victim of the first offence to ensure that there is no inadvertent contravention of s 578A of the Crimes Act in the case of the victim and s 15A(1) of the CCP Act in the case of the children. 3. Notwithstanding the absence of expert evidence as to the current state of the respondent's mental health, we are satisfied on the basis of the evidence that it is also appropriate to make a non-publication order in respect of the respondent and anonymise his name to reduce the risk of the publication of this decision exacerbating his mental health issues. 4. It is appropriate that there be an exception to non-publication order to enable the disclosure of the respondent's name, the decisions, reasons for decision and orders of the Tribunal in these proceedings, documents and evidence filed with the Tribunal in these proceedings, and information about the proceedings, decisions, documents and evidence to AHPRA, the NSW Council and the National Board. Orders 1. We make the following orders: 1. The respondent's registration is cancelled. 2. The respondent may not apply for review of order (1) above for one year from the date of this decision. 3. There is no order as to the costs of the proceedings. 4. The disclosure of the names of the following persons, together with any information or material which could identify these persons, whether by itself or with other information and material, is prohibited: 1. the victim of the offence under s 61KC(a) of the Crimes Act 1900 (NSW) of which the respondent was convicted on 26 November 2021; 2. the respondent's ex-wife; 3. the respondent's three children. 1. For the purposes of these proceedings, the name of the respondent is anonymised as GGO. 2. Subject to order (8), the disclosure of the name of the respondent, together with any information or material which could identify the respondent, whether by itself or with other information and material, is prohibited. 3. Subject to order (8), access to and disclosure of documents and evidence filed with the Tribunal in these proceedings is restricted to the parties and their legal representatives. 4. Orders (6) and (7) do not preclude the applicant or any of its officers or employees from disclosing: 1. the respondent's name; 2. the decisions, reasons for decision and orders of the Tribunal in these proceedings; 3. documents and evidence filed with the Tribunal in these proceedings; and 4. information about the proceedings, decisions, documents and evidence referred to in (b) and (c) above to any of the entities in the Schedule in connection with the applicant's exercise of its functions under the Health Practitioner Regulation National Law (NSW) (as amended or substituted from time to time) and all regulations and rules made under or in connection with those Acts (as amended or substituted). Schedule 1. The Australian Health Practitioner Regulation Agency. 2. The Paramedicine Council of New South Wales. 3. The Paramedicine Board of Australia. ********** 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: 19 April 2024