Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Davies [2024] NSWCATOD 109 Hearing dates: 22 – 23 February 2024 Date of orders: 26 July 2024 Decision date: 26 July 2024 Jurisdiction: Occupational Division Before: A Britton, Deputy President M Smith, Senior Member I Mosher, Senior Member B Seth, General Member Decision: (1) Mr Davies is guilty of professional misconduct. (2) Mr Davies' registration as a paramedic is cancelled under s 149C(1)(b) of the Health Practitioner Regulation Law (NSW). (3) Mr Davies is to pay the Health Care Complaints Commission's costs of these proceedings as agreed or as assessed under the Legal Profession Uniform Law Application Act 2013 (NSW). (4) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the names of Person A and Person B is prohibited. Catchwords: HEALTH PRACTITONER — practitioner admits to unsatisfactory professional conduct under ss 139(1)(l), 109(1)(c) and 130 of the Health Practitioner Regulation National Law (NSW) and professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW) HEALTH PRACTITONER — appropriate form of disciplinary orders under Subdiv 6, Div 3 of Pt 8 of the National Law (NSW) Legislation Cited: Crimes Act 1900 (NSW), s 61KC(a) Health Practitioner Regulation National Law (NSW), ss 109(1)(c), 130, 139B(1), 139B(1)(b), 139B(1)(l), 139E, 149A, 149C(1), 150; Subdiv 6, Div 3 of Pt 8 Legal Profession Uniform Law Application Act 2013 (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Nominal Defendant v Smith [2015] NSWCA 339 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46 Texts Cited: Macquarie Dictionary, online ed, accessed 1 July 2024 P McClellan, "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655 Paramedicine Board of Australia Code of Conduct, June 2018 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Craig Davies (Respondent) Representation: Counsel: S Maybury (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Alexanders Lawyers (Respondent) File Number(s): 2023/00281583 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the names of Person A and Person B is prohibited. REASONS FOR DECISION 1. In December 2020, Mr Craig Davies, then 27, was suspended from his employment with St John Ambulance following a complaint of "inappropriate sexual behaviour" made by a 17-year-old colleague (Person A). Mr Davies had been appointed to act as mentor for Person A, a trainee Emergency Medical Technician. Mr Craig Davies was first registered as a paramedic in late 2019. 2. On 10 March 2021, following proceedings under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law), with Mr Davies' consent the Paramedicine Council of New South Wales (the Council) imposed a condition on his registration that he not practise as a paramedic. Eight days later, the Council amended those conditions by restricting Mr Davies' paramedicine practice to non-clinical roles. 3. In November 2021, Mr Davies was convicted by the NSW Local Court of "sexually touch another person without consent" (Crimes Act 1900 (NSW), s 61KC(a)). In June 2022, the NSW District Court upheld an appeal brought by Mr Davies and quashed that conviction. 4. In September 2023, following investigation of a complaint about Mr Davies referred by the Council, the Commission lodged a complaint with the New South Wales Civil and Administrative Tribunal (NCAT). 5. For the reasons that follow, we have decided to cancel Mr Davies' registration as a paramedic. Outline of the Complaint 1. The Complaint filed by the Commission on 4 September 2023 (the Complaint) consists of four individual complaints. Complaint 1 1. By Complaint 1, the Commission alleges that Mr Davies engaged in unsatisfactory professional conduct under s 139B(1)(l) of the National Law by: 1. on 18 October 2020: 1. over a period of about three hours inappropriately touching Person A without Person A's consent (Particulars 1, 2) 2. making inappropriate comments of a sexual nature to Person A including asking whether he was interested in experimenting in homosexual sex (Particular 3) 1. on 13 November 2020, while driving with Person A: 1. touching Person A's thigh (Particular 4) 2. making inappropriate comments of a sexual nature (Particular 4(c)) 1. on 13 November 2020, while standing in the driveway of Person A's home: 1. hugging Person A for about 15 seconds (Particular 5(a)) 2. stroking Person A's hair (Particular 5(b)) 1. by the above conduct, breaching the Paramedicine Board of Australia Code of Conduct June 2018 (the Code of Conduct) (Particular 6). Complaint 2 1. By Complaint 2, the Commission alleges that Mr Davies engaged in unsatisfactory professional conduct under s 139B(1)(l) of the National Law by: 1. on 27 October 2020, inappropriately sending a lewd TikTok video to Person A (Particular 1) 2. on 1 November 2020, inappropriately sharing an image with Person A depicting a patient with an item stuck in his rectum (Particular 2) 3. breaching the Paramedicine Board of Australia Code of Conduct by the above conduct (Particular 3). Complaint 3 1. By Complaint 3, the Commission alleges that Mr Davies engaged in unsatisfactory professional conduct under s 139B(1)(b) of the National Law by: 1. in contravention of s 109(1)(c) of the National Law in his renewal for registration, failing to declare that on 4 December 2020 he had been suspended from, and on 16 December 2020 terminated from, St John Ambulance (Particular 1)) 2. in contravention of s 130 of the National Law, failing to notify the National Board within seven days of being charged with the offence of "sexually touch another person without consent" under Crimes Act, s 61KC(a) (Particular 2). Complaint 4 1. By Complaint 4, the Commission alleges that Mr Davies is guilty of professional misconduct under s 139E of the National Law. Reply to complaint 1. In a reply lodged with NCAT on 7 December 2023, Mr Davies admitted each of the four complaints and the particulars on which those complaints were based. Agreed facts 1. The following summary is primarily taken from the statement of agreed facts filed by the parties on 16 February 2024. Complaint 1 Particulars 1, 2 and 3: the Bathurst 1000 1. In October 2020, Mr Davies and Person A travelled together to the Bathurst 1000, an annual car race held in Bathurst, New South Wales. At that event in their respective roles with St John Ambulance, Mr Davies and Person A provided first aid services. Most of the allegations of inappropriate touching in the Complaint occurred during the early hours of 18 October 2020 at the Bathurst 1000. For convenience we refer to that period as the evening of 17 October 2020. 2. During the Bathurst 1000, which ran for four days, Mr Davies, Person A and several other paramedics stayed at shared accommodation provided by St John Ambulance at Abercrombie House. Mr Davies and Person A shared a room with a colleague, Person B, who left on the morning of 17 October 2020. On that morning, Mr Davies and Person A had planned to watch Netflix program, Money Heist, on Mr Davies' laptop. However, the program could not be downloaded because of Wi-Fi problems. 3. At 12:30am on 18 October 2020, after socialising with other colleagues, Mr Davies and Person A returned to their room. While lying on Mr Davies' bed, the two watched Money Heist on Mr Davies' laptop. During that time, Mr Davies: 1. placed his left arm around Person A's back 2. touched Person A's left upper thigh using his left hand in a stroking motion 3. used his left hand to lift the left side of Person A's shirt slightly upwards 4. rubbed Person A's left hip 5. pulled the elastic strap of Person A's underwear out from his trousers and continued pulling that strap to the extent that it caused Person A significant discomfort 6. ran his left hand between Person A's trousers and his boxer shorts and used his hand to rub the area from Person A's hip to mid-thigh region 7. touched Person A's lateral and anterior upper thigh, with his hand being approximately 10cm away from Person A's penis 8. continued to rub his hand rapidly up and down Person A's thigh between Person A's underwear, and 9. touched Person A's pubic hair with his thumb. 1. Person A did not consent to this touching. 2. After this, Person A went to his own bed and curled up into a ball. Mr Davies then went over to Person A's bed and: 1. put his arm around Person A 2. placed his entire body against Person A's body 3. placed his groin against Person A's right leg, and 4. slowly humped and grinded Person A's right thigh with his groin as his body was hugged over Person A. 1. While in Person A's bed, Mr Davies talked about having sex with a man and masturbation. In addition, Mr Davies offered to engage in mutual masturbation. Mr Davies repeatedly asked Person A whether he wanted to have sex with him. On each occasion Person A declined. 2. On 19 October 2020, Mr Davies and Person A left Bathurst and returned to Sydney. Sharing inappropriate images: Complaint 2 1. On 27 October 2020, Mr Davies sent Person A a TikTok video showing a scout being woken up by a scout master licking the scout's anus. 2. On 1 November 2020, Mr Davies sent Person A an SMS message containing a photograph of a patient assigned to Mr Davies with an item stuck in his rectum. Mr Davies drives Person A home: Complaint 1, Particular 4 1. On 13 November 2020, Mr Davies drove Person A home from St John's Headquarters. Mr Davies touched Person A's thigh and used the side of his left fist to pump Person A's thigh. 2. In addition, Mr Davies made a series of inappropriate comments of a sexual nature, including: 1. "Aren't you a stinky boy" 2. "Now you have met all the St John gays" 3. "Aren't you a pretty cute innocent boy" 4. "When I was in London I hooked up with [a St John's colleague]. He is one of the four guys l went all the way with" 5. When Person A said, "This is the new road that got widened", Mr Davies looked down at his groin and said words to the effect of "Do you know what else has widened?", and 6. When driving past sprinklers, Person A said, "Be careful that it doesn't hit your car" to which Mr Davies replied, "it would be really wet wouldn't it". 1. Each of the above comments were about sexual conduct or said in a way that was intended to constitute sexual innuendo. 2. On arriving at Person A's home, Mr Davies and Person A stood in the driveway of Person A's home. Mr Davies hugged Person A for about 15 to 20 seconds and put his hand on Person A's hair and stroked it. Mr Davies' evidence in these proceedings 1. In an affidavit prepared for these proceedings, Mr Davies admitted to the conduct the subject of the Complaint. He said that the reason he prepared that statement was to explain what he was thinking at the time and how the impugned conduct occurred, not to justify that conduct. Evening of 17 October 2020 1. Mr Davies said that before watching Money Heist with Patient A on the evening of 17 October 2020, Person A had made numerous references to 'Netflix and chill'. Mr Davies said that he had understood that term to be a colloquial term for watching a video and engaging in casual sex. 2. In his affidavit, Mr Davies said that Person A's numerous references to 'Netflix and chill' led him to believe that Person A wanted to engage in sexual exploration. He said that when he started to touch Person A, he believed he had his consent to do so. He said he now understood that he was mistaken in that belief. 3. In cross-examination, Mr Davies disagreed with the proposition that it was commonplace for young people to use the expression 'Netflix and chill' in a joking manner and not to use it to refer to casual sex. Mr Davies said that before October 2020 he had only ever heard that expression used to refer to casual sex. 4. Mr Davies agreed that before the evening of 17 October 2020, Person A did not expressly say that he wanted to have a sexual relationship with him. Mr Davies said he drew that inference by his use of the term 'Netflix and chill'. Mr Davies said he "100% agreed" that the meaning of that term is dependent on "tone and context". 5. In cross-examination, when questioned about the claim made in his affidavit that before the evening of 17 October 2020, Person A "made numerous references to 'Netflix and chill', Mr Davies initially said Person A had used that expression on three occasions. Later when taken to the record of the interview conducted on 7 December 2020 by an investigator appointed by St John Ambulance, Mr Davies agreed that Person A used that expression on one occasion. He said that in the lead up to the Bathurst 1000, he and Person A had been talking a lot about the Netflix programs they liked. In that interview, Mr Davies said that he could not recall Person A referring to 'Netflix and chill' on the evening of 17 October 2020. He said he recalled Person B using that term. 6. Mr Davies said that he was confused when Money Heist finished and Person A returned to his bed, rolled into a ball and was visibly upset. Mr Davies asked, "Are you OK?" and when Person A did not respond, he then asked, "would you like a hug?". When Person A did not reply, he went to Person A's bed and hugged him. While they were hugging, Person A tearfully disclosed being assaulted as a child. Mr Davies said he tried to offer his support, but he was unclear about the connection between those incidents and Person A's 'Netflix and chill' proposition. 7. Mr Davies agreed that when Person A returned to his bed, he said, "you don't like being touched", and Person A replied, "I don't like being touched." Mr Davies then continued to "slowly hump and grind" Person A's right thigh with his body hugged over Person A. When asked to explain why he did so, Mr Davies said he was confused about the 'Netflix and chill' comments and Person A's disclosures about his family history. Mr Davies agreed that after Person A said, "I don't like being touched", he should have stopped and by that stage his judgment was probably clouded by desire and his arousal. 8. Mr Davies said the reason he talked about sex and masturbation with Person A and repeatedly asked whether he wanted to engage in sexual activity was that he wanted to understand what Person A had meant by engaging in 'Netflix and chill' and to determine if Person A wanted to engage in casual sex. Mr Davies said that when he did not receive confirmation of consent, he stopped discussing the topic and touching Person A. 9. In cross-examination, Mr Davies agreed that he could have simply asked Person A whether he consented to being touched. He denied that the reason he failed to do so was that he feared the answer. Mr Davies said he now understood that he did not have Person A's consent to touch him in the manner he did. 10. In answer to a question about the reliability of his memory of the events on the evening of 17 October 2020, Mr Davies said that, in his opinion, his memory of that evening was better when he prepared the affidavit in December 2023 than when he was interviewed by the investigator three years earlier. He said during that interview he was very tired and had just come off blocks of nightshifts. He said he could not recall what he said in that interview. 11. In a statement given to NSW Police in December 2020, Person A said that while being touched by Mr Davies during Money Heist, in an effort to deter him, he put his weight through his left elbow onto Mr Davies' forearm. When questioned about the claim made by Person A, Mr Davies said he had no recollection of that. 12. Mr Davies agreed that in a conversation on the morning of 18 October 2020, Person A had said, "I am not interested in sex right now, I just want to live my life", and that by encouraging Person A to have sex and by saying, among other things, "have anal sex you might like it", he had abused his position of authority and trust. However, Mr Davies disagreed that his comments could be characterised as "badgering" and said he had been attempting to "get absolute clarity". He agreed that those comments were "manifestly inappropriate". Mr Davies explained that having gone through a crisis of his own sexuality and being Christian, he mistakenly believed this to be a "universal experience". 13. In a letter to the Commission dated 16 August 2022, in response to the Complaint, Mr Davies' solicitor submitted that in circumstances where Mr Davies had been found not guilty by the District Court of the charge of "sexually touching another person without consent" it would be unjust for the Commission to take any further action. The solicitor pointed out that: 1. in the Local Court trial, Person A: 1. agreed that before 18 October 2020, Mr Davies had never touched him inappropriately 2. said that before going back to their room to watch Money Heist, he had used the term, 'Netflix and chill' as "a joke" 3. agreed that he understood the term 'Netflix and chill' to mean having casual sex 1. a few hours after the "alleged sexual touching incident", Person A sent an SMS to Mr Davies "just wanted to say thanks for inviting me to Bathurst and taking care of me while I was there. I had a great time" 2. on 21 October 2020, in an SMS to Mr Davies, Person A said, "can't believe I am saying is ... but I miss Abercrombie". 1. In cross-examination, Mr Davies said that he could not recall that letter or discussing it with his solicitor. 2. In re-examination, Mr Davies said that his understanding of the concept of consent had changed since the events of the subject of the Complaint. He said he now appreciated it was necessary to be given express verbal consent before proceeding to engage in any sexual conduct with another person. Inappropriate images sent to Person A: Complaint 2 1. Mr Davies said that he and Person A often exchanged their respective TikTok feeds. He agreed that it had been "grossly inappropriate" to send the scout master video but claimed that he did not know that that video was on the TikTok feed sent to Person A. He said that video was automatically generated by an algorithm used by TikTok over which he had no control. Mr Davies agreed that he should have been more careful when sharing his TikTok feed with Person A. 2. With respect to the image of a patient with an item in his rectum, Mr Davies said at the time he considered that it was appropriate to send that image to Patient A to "generate clinical discussion". He denied that the reason he sent that image was because he thought it was funny or had a sexual connotation. Failure to notify: Complaint 3 1. In the affidavit prepared for these proceedings, Mr Davies said that on 4 December 2020, when informed by an officer of St John Ambulance that he had been suspended from his employment pending investigation of a complaint about him, he asked whether he was required to inform NSW Ambulance and the Australian Health Practitioner Regulation Agency (AHPRA) about the complaint. The officer said it was not a police matter, "just an internal process," and he was not required to inform NSW Ambulance or AHPRA of the complaint. 2. Mr Davies said that when he later met with the duty operational manager and disclosed that he had been suspended and terminated from St John Ambulance, he was not informed that he needed to make a report to NSW Ambulance and AHPRA. He said he now understands that it was his responsibility to comply with his registration obligations which included advising AHPRA of his suspension and termination from St John Ambulance. 3. With respect to his conviction on 8 November 2021 by the NSW Local Court, Mr Davies said he acknowledged that he was required to, but failed, to report that conviction to the National Board. He pointed out that on 12 November 2021, he reported that conviction to the Health Professional Councils Authority (the administrative body that supports the health professional councils in NSW), the Commission, and NSW Ambulance. Should protective orders be made? Submissions: the Commission 1. The Commission urges the Tribunal to cancel Mr Davies' registration for a period of two years and contends that its proposed order is appropriate for the following reasons. 2. First, despite claiming in his affidavit that he accepted "full responsibility" for his conduct, in these proceedings Mr Davies attempted to minimise his culpability and to "victim blame". Mr Davies' claim that Person A made numerous references to 'Netflix and chill' before the evening of 17 October 2020 was simply "a lie" which fell away on gentle prompting during cross-examination. Notably, in the interview conducted by the St John Ambulance investigator in December 2020, Mr Davies agreed that Person A had not used the expression 'Netflix and chill'. 3. As to the allegation of victim blaming, the Commission points to the statement Person A gave to Police in December 2020 in which he claimed that on 17 November 2020 Mr Davies said, "technically you are at fault for what happened at Bathurst … when you said 'Netflix and chill', you were asking for sex". 4. Second, Mr Davies' conduct on the evening of 17 October 2020 was serious in nature. His actions in touching Person A throughout the episode of Money Heist were, at best, reckless. By placing the weight of his body through his elbow onto Mr Davies' forearm, Person A had made it abundantly clear that the touching was unwelcome. By the time he returned to his bed after watching Money Heist, Person A had put beyond doubt that Mr Davies' overtures were unwelcome. Nonetheless, Mr Davies persisted. Mr Davies' claim that at that point he remained confused must be rejected. The Commission contends that Mr Davies' conduct amounts to "wilful assault", made the more serious because he was about 10 years Person A's senior and, as his mentor, occupied a position of authority and trust. 5. A further example of the implausibility of Mr Davies' claim of regretting his conduct on the evening of 17 October 2020 was his action, 10 days later, of sending Person A sexualised images by SMS and then four weeks later inappropriately touching and making sexual comments to Person A. The Commission submits that Mr Davies' claim that he sent the image of the patient with the item in his rectum for clinical purposes, and his claimed belief that it did not carry any sexual connotation, is simply "a lie". Submissions: Mr Davies 1. It was argued for Mr Davies that the Tribunal should accept that he is genuinely remorseful for his actions. The inconsistencies in his evidence are to be understood in the context of the passage of time since the subject events occurred and these proceedings being the first time Mr Davies has given evidence about those events. 2. Person A's use of the expression 'Netflix and chill' is relevant to Mr Davies' state of mind on the evening of 17 October 2020, and not, as the Commission contends, evidence that Mr Davies fails to accept responsibility for his conduct. The Tribunal should find, as claimed by Mr Davies, that the expression 'Netflix and chill' is street talk for casual sex. Mr Davies' claim that he was confused by Person A's use of that expression is plausible and should be accepted. 3. Unquestionably, it is argued for Mr Davies, that he was a pest and should have backed off earlier than he did. However, his conduct is consistent with that of a person who mistakenly believed their interest in exploring sexual activity was reciprocated by the person the subject of their interest. 4. It is contended for Mr Davies that the Tribunal should give little weight to the record of the interview conducted in December 2020 because it was neither signed nor adopted by Mr Davies. At best, that record is a summary of that interview. When that interview was conducted, Mr Davies was exhausted having just completed a block of nightshifts. 5. It is contended that the Tribunal should accept that Mr Davies is remorseful for his conduct and its impact on Person A, and now has a better understanding of what constitutes consent and the need to obtain express consent for any form of sexual activity. While older than Person A, Mr Davies was nonetheless a relatively young man coming to grips with his sexuality. 6. With respect to the TikTok scout master video, the Tribunal should find, as claimed, that Mr Davies had no control over the content contained in the feed sent to Person A. 7. It is submitted for Mr Davies that his failure to comply with his reporting obligations under the National Law was neither intentional nor wilful. 8. With respect to the form of protective orders, it is contended for Mr Davies that while serious, the conduct the subject of the Complaint was for a short period and not at the high end of the range, rather just below the mid-range. While a departure from the standard of conduct reasonably expected by the community of health practitioners, it was not an egregious departure from that standard. 9. The conduct the subject of the Complaint does not raise concerns about Mr Davies' skill and experience as a practitioner. As evidenced by the numerous certificates of appreciation issued to Mr Davies and tendered in these proceedings, Mr Davies was held in high regard as a paramedic. Citing the following passage from the judgment of Fullagar J in Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46 at 290 (Ziems), it was submitted for Mr Davies there is no nexus between his ability to practise as a paramedic and the conduct the subject of the Complaint: "Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister: see, e.g. In re Davis [1947] HCA 53; (1947) 75 CLR 409. But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former." 1. In considering the appropriate form of disciplinary orders, it is submitted that the Tribunal should take into account that the conditions imposed on his registration have meant that Mr Davies has been unable to practise as a paramedic for over three years. In addition, he has been prejudiced by the delay by the Commission in prosecuting the Complaint. That delay was not the result of any action or omission by Mr Davies. 2. In reply, the Commission submits that the fact that the conduct was not related to Mr Davies' practice as a paramedic makes it more serious. A deficiency in practice in appropriate cases can be rectified by training. However, the conduct the subject of this complaint raises questions about Mr Davies' moral integrity. Consideration 1. Mr Davies has admitted to the subject matter of the Complaint in writing to the Tribunal. As a consequence, we may exercise any of the powers in Subdiv 6, Div 3 of Pt 8 of the National Law, which include cautioning, reprimanding and/or imposing conditions on his registration: National Law, s 149A. In addition, because Mr Davies has admitted that he is guilty of professional misconduct, the power to suspend or cancel his registration may be exercised: National Law, s 149C(1). 2. Before considering whether the discretion to make disciplinary orders should be exercised, and, if so, the type of orders that should be made, it is necessary to deal with the Commission's submission that the claim made by Mr Davies in the affidavit prepared for these proceedings — that before the evening of 17 October 2020, Person A "made numerous references to 'Netflix and chill'" and those references "wrongly led me to believe that [Person A] wanted to engage in sexual exploration" — was "a lie". The Commission contends that Mr Davies tailored his evidence in these proceedings after hearing Person A's evidence in the Local Court proceedings about his use of the expression 'Netflix and chill'. 3. We accept, as he claimed, that in October 2020 Mr Davies understood the term 'Netflix and chill' to mean watching a film or television show and having casual sex with a person. That is consistent with the meaning given by the Macquarie Dictionary, online ed, accessed 1 July 2024: "Colloquial (an invitation ostensibly to visit someone to watch a movie and relax but taken as a coded invitation to engage in sexual activities.)". That meaning is also consistent with Person A's understanding of that term. In the Local Court proceedings, when asked about his understanding of that term, Person A said: "A. Yeah. It - it's a joke. It's - it's a very common joke that we say, like, yeah. Q. What was the joke? Can you explain it to us? A. 'Netflix and chill' is, like, it's a joke with a sexual innuendo where it's - yeah. Do you want more explanation? Q. Yes. A. Yeah, so essentially you say, '"Netflix and chill"' and typically it used to have a - a context that you would watch Netflix and then have sex, however it's very much, like, within, like, youth culture to be a joke now. Every time you watch Netflix you just - people say it as a joke." Tcpt, Local Court proceedings, 8 November 2011, p 31(23)-(33). 1. In support of the contention that Mr Davies lied by claiming that Person A had used the term 'Netflix and chill' on numerous occasions before the evening of 17 October 2020, the Commission points to: 1. the record of the interview conducted by the St John's investigator on 7 December 2020, which records Mr Davies agreeing with the proposition that before 17 October 2022, Person A had not used that term 2. the statement made by Mr Davies in cross-examination that he can now remember Person A using the expression 'Netflix and chill' on only one occasion. 1. In our view, it puts it too high to contend that Mr Davies deliberately made a false statement in his affidavit about Person A's use of the term 'Netflix and chill' on numerous occasions before the evening of 17 October 2020 for these reasons. 2. First, Person A said that he used the term 'Netflix and chill' on more than one occasion before the evening of 17 October 2020. In the statement he gave to Police on 1 December 2020, Person A said: "I laughed out 'Netflix and chill' as a common joke between myself and various members of St John." (Emphasis added.) Person A's evidence in the Local Court proceedings was to the same effect. When questioned about the use of that term, Person A referred to "conversations before [18 October 2020] where it was said and things like that" (Emphasis added.) Tcpt, Local Court proceedings, 8 November 2021, p 53(9)-(10). 3. Second, that Mr Davies made inconsistent claims about the number of times Person A used the term 'Netflix and chill' does not necessarily mean that he did so for the nefarious reason suggested by the Commission. An alternative explanation is that his memory is unreliable. It is trite that human memory does not operate like a photocopy machine. In Nominal Defendant v Smith [2015] NSWCA 339 at [82], Leeming JA commented that the observation made by Justice McClellan that memories are unstable and malleable and vulnerable to suggestion (P McClellan, "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655 at 664 and 665) was uncontroversial and "supported not merely by one's ordinary experience but also by a body of psychological evidence". While it is possible that the inconsistencies in his evidence about Person A's use of the term 'Netflix and chill' indicate, as the Commission contends, that Mr Davies knowingly gave untruthful evidence, equally it may be the result of the passage of time since the subject events occurred together with the emotional nature of the intervening events, including the Local Court conviction and the District Court appeal. 4. Finally, we are not comfortably satisfied that, as is contended by the Commission, Mr Davies knew that Person A had used the expression 'Netflix and chill' in an ironic sense. Notably in the Local Court proceedings, Person A said that it was not until 13 November 2020, when he met Mr Davies for a bike ride, that he told Mr Davies that he was joking when he used the expression 'Netflix and chill'. 5. However, even if it is accepted that Person A's use of that term, coupled with his silence while being touched by Mr Davies throughout Money Heist, was conduct reasonably capable of being misconstrued, his subsequent actions of returning to his own bed, rolling into a ball, being visibly upset and saying he did not like being touched, made it abundantly clear that Mr Davies' conduct was unwelcome. It understates its seriousness to characterise Mr Davies' conduct from that point on as that of "a pest". Mr Davies' conduct was demonstrably unwelcome. Mr Davies' claim that, after Person A returned to his own bed, the reason he asked him a series of questions about sex and his sexuality was to "gain clarity" cannot be accepted. It is painfully apparent that the reason Mr Davies persisted in not only questioning Person A about sex but humping and grinding his groin into Person A's thigh was for his own sexual gratification. 6. Even if it is accepted that the comments Mr Davies made to Person A on 17 November 2020 were typical of the sexual banter he, Person A, and other members of St John Ambulance commonly engaged in, given the events that had occurred four weeks earlier at the Bathurst 1000, it could not be said that those comments were merely a continuation of that "typical banter". Mr Davies knew, or ought reasonably to have known, that those comments were both inappropriate and unwelcome. 7. On the available material, we could not be positively satisfied that when Mr Davies sent his TikTok feed to Person A on 27 October 2020 he knew, or ought reasonably to have known, that it contained the scout master video. On the other hand, we find Mr Davies' claim that he sent the image of a patient with an item in his rectum for "clinical purposes" to be glaringly improbable. 8. It is no small matter for a health practitioner to fail to comply with their reporting obligations under by the National Law. To achieve a key objective of that scheme, the protection of the health and safety of the public, the national registration and accreditation scheme established by the National Law relies upon scrupulous adherence to those reporting obligations by health practitioners. Nonetheless, the explanation given by Mr Davies for his failure to comply with those obligations is reasonable and plausible. The conduct the subject of the Complaint 3, in our view, is of a less serious nature. 9. The National Law directs that in exercising the power to make protective orders, the health and safety of the public is the paramount consideration. The jurisdiction exercised is protective not punitive. The criminal justice system provides the forum for the latter when appropriate. As Basten JA explained in Prakash v Health Care Complaints Commission [2006] NSWCA 153, at [101] "[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order". 10. Mr Davies agrees that the admitted unsatisfactory professional conduct amounts to professional misconduct, that is, conduct of a "sufficiently serious nature" to justify an order for suspension or cancellation. An admission or finding of professional misconduct does not require an order for suspension or cancellation to be made. Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 ("Chen") said at [14]: "[14] There may well be cases in which, in the proper exercise of its discretion, based upon the findings it has made, the Tribunal would err in failing to cancel a practitioner's registration; in other cases, cancellation may be seen as an unreasonable or disproportionate exercise of the power conferred on the Tribunal." (footnotes omitted) 1. Applying these principles, we have decided that it is appropriate and necessary for the proper protection of the public that Mr Davies' registration be cancelled. 2. Dealing first with the submission made for Mr Davies that Ziems is authority for the proposition that an order for cancellation is inappropriate because there is no nexus between Mr Davies' ability to practice as a paramedic and the impugned conduct, we make these observations. 3. First, by Complaints 1 and 2, Mr Davies has admitted that the conduct the subject of those complaints amounted to "unsatisfactory professional conduct" within the meaning of s 139B(1)(l) of the National Law: "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" (Emphasis added.) 4. Second, if nonetheless Mr Davies is suggesting that that conduct is "personal misconduct" in the sense used by Fullagar J in Ziems we cannot agree. Ziems concerned a practising barrister who was convicted of manslaughter, having caused the death of a person while driving whilst intoxicated. Mr Ziems was sentenced to a term of imprisonment. That conduct was unrelated to Mr Ziems' practice of law. 5. Third, in any event, the comments made by Fullagar J on which Mr Davies relies related to the regulation of legal practitioners and must be seen in that context. The issue raised was whether, having regard to his conviction and sentence, Mr Ziems remained a "fit and proper person" to be a member of the NSW Bar. The Supreme Court held that he was not. By majority, the High Court, Fullagar J, Kitto and Taylor JJ allowed the appeal. 6. The High Court in Ziems was considering a different regulatory scheme to that established by the National Law. When, as here, there is an explicit and detailed statutory scheme, applying statements drawn from cases dealing with different occupations governed by different regulatory schemes is of limited assistance: Chen at [59] (Payne JA). 7. Finally, once conduct is found to be or admitted to amount to unsatisfactory professional conduct, an order to suspend or cancel a practitioner's registration can be made provided that conduct is "sufficiently serious" to justify such an order. Basten JA explained in Chen at [20]: "[20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …" (footnotes omitted) 1. In exercising the discretion to cancel Mr Davies' registration, we have taken into account that, as a consequence of conditions imposed on his registration, Mr Davies has been prevented from working as a paramedic for several years. In those circumstances, arguably, a reprimand may be sufficiently protective of the public by denouncing Mr Davies' misconduct and to underscore to him, the profession and the public of the standards expected of paramedics. 2. However, on the available material we could not be reasonably satisfied that there is no real and material risk that Mr Davies' misconduct might be repeated. First, we do not agree, as contended by the Commission, that his evidence given in these proceedings demonstrates that Mr Davies lacks any insight into the extent to which his conduct was inappropriate and its impact on Person A. Nonetheless, we find his insight to be limited. Second, Mr Davies' claim of having gained insight and being genuinely remorseful for his actions is not well supported by other evidence. There is scant evidence about the steps taken by Mr Davies to prevent a repeat of the impugned conduct. The only evidence of rehabilitation were answers given to questions asked by the Tribunal, in which Mr Davies said that he had been seeing a psychologist monthly for about 12 to 18 months from March 2021 and that counselling had assisted him to "unpack his false perceptions" of the events of 17 October 2020. Without a report from that psychologist or some other expert evidence, Mr Davies' self-assessment that he has been assisted by that counselling can be given limited weight. 3. We have decided not to exercise the power to impose a non-review period as urged by the Commission. If Mr Davies is able to obtain evidence of rehabilitation, he ought not be prevented from seeking review of the cancellation order. Our decision should not be taken to indicate that, in our opinion, Mr Davies might be able to obtain that evidence. As stated, on the available material we are not satisfied that there is no real and material risk of the misconduct being repeated, largely because of Mr Davies' demonstrated lack of insight and a tendency to minimise his culpability for his egregious conduct towards Person A. Given the paucity of evidence of rehabilitation it is simply not possible to say when, if ever, Mr Davies will be able to establish that there is no real and material risk that the misconduct might be repeated. 4. Although we have decided to not impose a non-review period, it is to state the obvious that, to persuade a review body at some time in the future to exercise the power to make a reinstatement order, Mr Davies must prove to its satisfaction that he has developed the necessary insight and to have rehabilitated himself so that it can be confident that there is no real or material risk that the misconduct will be repeated. That is a substantial evidentiary hurdle for him to surmount and, because this jurisdiction is protective, it is appropriate that it be so. Costs 1. Mr Davies properly concedes that there is no factor which might justify a departure from the "general rule" that he pay the Commission's costs. 2. We order that Mr Davies pay the Commission's costs, as agreed or assessed. Orders 1. Mr Davies is guilty of professional misconduct. 2. Mr Davies' registration as a paramedic is cancelled under s 149C(1)(b) of the Health Practitioner Regulation Law (NSW). 3. Mr Davies is to pay the Health Care Complaints Commission's costs of these proceedings as agreed or as assessed under the Legal Profession Uniform Law Application Act 2013 (NSW). 4. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the names of Person A and Person B is prohibited. ********** 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: 26 July 2024