Health Care Complaints Commission v Clemente [2024] NSWCATOD 56

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Clemente [2024] NSWCATOD 56 Hearing dates: 22 April 2024 Date of orders: 01 May 2024 Decision date: 01 May 2024 Jurisdiction: Occupational Division Before: S Dunn, Senior Member S Jreige, Senior Member Dr S Schulz-Robinson, Senior Member F Taylor, General Member Decision: The Complaint against Mr Clemente is proved. Catchwords: HEALTH — professional registration and discipline — registered nurse — practitioner pleaded guilty and convicted of criminal offence Legislation Cited: Crimes Act 1900 (NSW), s 91K Health Practitioner Regulation National Law (NSW), s 144 (a), s 149C(1)(c), s 149C(5) Health Care Complaints Act 1993 (NSW), s 4 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Sean Clemente (Respondent) Representation: Counsel: J Brook (Applicant)

Solicitors: L Sutherland (Health Care Complaints Commission) (Applicant) Respondent (self-represented) File Number(s): 2024/00020013 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. This is an application to the Tribunal by the Health Care Complaints Commission (HCCC) for disciplinary findings and orders against the Respondent, Sean Clemente, following a determination by the Director of Proceedings of the HCCC to prosecute a Complaint against him. Mr Clemente was registered as a nurse on 27 March 2020. His registration was suspended by the Nursing and Midwifery Council of NSW (Council) on 25 January 2023. 2. The Complaint against Mr Clemente is that pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW) (National Law) he has been convicted of a criminal offence in NSW. 3. The HCCC bears the onus of proof of the Complaint. The standard of proof in disciplinary proceedings is on the balance of probabilities with a sufficient degree of certainty having regard to the seriousness of the allegations made, which is recognised as the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 at [24]. 4. If the Tribunal finds the Complaint against Mr Clemente to have been proved, the HCCC seeks an order pursuant to s 149C(1)(c) of the National Law cancelling Mr Clemente's registration with a non-review period of two years and an order under s 149C(5) prohibiting Mr Clemente from providing health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for the same period as any non-review period imposed. 5. The hearing before the Tribunal on 22 April 2024 concerned "Stage One" only of the proceedings, namely whether the Particulars of the Complaint against Mr Clemente have been proved. "Stage Two" of the proceedings, which will deal with the issue of appropriate protective orders, will be the subject of a further hearing on 29 August 2024. 6. In these reasons the Applicant is referred to as the Applicant or the HCCC and the Respondent is referred to as the Respondent or Mr Clemente.