Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Lewis [2024] NSWCATOD 112 Hearing dates: 28 September 2023 Date of orders: 30 July 2024 Decision date: 30 July 2024 Jurisdiction: Occupational Division Before: T Simon, Principal Member M Gorman, Senior Member T Coombs, Senior Member F Taylor, General Member Decision: (1) If Mr Lewis was still registered, the Tribunal would have cancelled the respondent's registration pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW). (2) The National Board is required to record the fact that if Mr Lewis was still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW). (3) Mr Lewis is disqualified from being registered in the nursing profession for a period of 18 months pursuant to s 149C(4)(b) of the Health Practitioner Regulation National Law (NSW). (4) Mr Lewis is to pay the Health Care Complaints Commission's costs of the proceedings, as agreed or assessed pursuant to cl 13 of Sch 5D of the Health Practitioner Regulation National Law (NSW). (5) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of the patients referred to as Patient A and Patient B in the schedule to the complaint is prohibited. (6) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the name of the patients contained in the ward register contained at page 41 of Exhibit 1 is prohibited. Catchwords: HEALTH — professional registration — registered nurse — conviction — unsatisfactory professional conduct — the practitioner's fitness to practice nursing — appropriate protective orders — prohibition orders — costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dean Antony Lewis (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2023/00185734 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of the patients referred to as Patient A and Patient B in the schedule to the complaint is prohibited. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the name of the patients contained in the ward register contained at page 41 of Exhibit 1 is prohibited. Note: 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. Reasons for decision 1. The Health Care Complaints Commission (HCCC) has referred two complaints to the Tribunal for orders under the Health Practitioner Regulation National Law (NSW) (National Law) against the respondent, Denis Lewis, a former registered nurse. 2. The first complaint is that on 2 March 2022, Mr Lewis was convicted of 4 offences by the Local Court of the following criminal offences: 1. On 15 November 2021, Mr Lewis stole morphine which was under his control by virtue of his employment as an enrolled nurse. 2. On 15 November 2021, Mr Lewis made an entry in a register, that he was required by law to keep, that he knew to be false. 3. On 16 November 2021, Mr Lewis stole morphine under his control by virtue of his employment as an enrolled nurse. 4. On 16 November 2021, Mr Lewis made an entry in a register that he was required by law to keep, that he knew to be false. 1. The second complaint is that Mr Lewis has been guilty of unsatisfactory professional conduct or professional misconduct because he has contravened section 130(1) of the National Law by failing to notify the National Board that he had been charged before a New South Wales Court with an offence punishable by 12 months or more, within 7 days of becoming aware of the fact. 2. Mr Lewis did not appear at the hearing. In the directions made by the Tribunal on 18 August 2023, the Tribunal noted: Mr Lewis has previously indicated that he does not intend to file any material and that he does not intend to defend the complaint. He has indicated that he would like to attend the hearing via AVL. The Health Care Complaints Commission is to email to the Tribunal its position with respect to Mr Lewis' desire to attend the hearing by AVL within the next week, and a decision will be made by the Tribunal in relation to that issue on the papers and communicated to the parties. 1. Mr Lewis was subsequently provided with an AVL link to observe the hearing which had initially been listed for 11 September 2023. When the matter came before us on 11 September 2023, Mr Lewis did attend on the AVL link. It became apparent at the outset of the hearing that the applicant had sent the documents they intended to rely on, to Mr Lewis by email, but that they had not been served on him in hardcopy. We adjourned the matter to allow for service of the documents on Mr Lewis and such service was affected by courier and subsequently by process server (Exhibit 6). When the matter was again listed before us for the hearing on 28 September 2023, Mr Lewis was again provided with an AVL link and did not participate in the AVL. In a letter from Mr Lewis received by the applicant on 20 September 2023 (Exhibit 7), Mr Lewis acknowledged that he has received a parcel from the HCCC but was no longer able to receive emails or phone calls and was no longer able to participate in any further proceedings except via postal service. Mr Lewis did not advise the Tribunal that he no longer wanted to be notified of hearing's by email. In any case, the affidavit of the process server annexes a letter from the HCCC dated 14 September 2023, which was served as part of the documents and clearly indicates that the hearing had been adjourned to 28 September 2023 at 10am. 2. We are satisfied that Mr Lewis was on notice of the hearing and elected not to participate in these proceedings. On that basis we proceeded to hear the matter in his absence. Complaint 1 – Criminal Conviction 1. Section 144 (a) of the National Law provides as follows: 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. A certificate of conviction (Evidence Act 1995 (NSW), s 178), dated 11 April 2022, has been provided by the HCCC (Exhibit 1, pp 122 – 125). The certificate confirms that the practitioner was convicted of four offences. Two of the offences were for larceny as a public servant contrary to s 159 of the Crimes Act 1900 (NSW) and the other two offences were for making a false/misleading entry in register or record required, contrary to the Poisons and Therapeutic Goods Regulation 2008 (NSW), s 177(1). 2. In relation to the four offences, it was found that on each of the days of 15 and 16 November 2021, Mr Lewis who was employed as an enrolled nurse at Wyong Hospital Emergency, stole morphine which was under his control by virtue of his employment and made an entry in a register that he was required to keep, that he knew to be false in a material. 3. On that basis, we find that the practitioner has been convicted of a criminal offence and the first complaint is proven. Complaint 2 - Unsatisfactory Professional Conduct 1. Section 144(b) of the National Law provides as follows: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— … (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. 1. Section 139B(1)(b) provides that contravention by a practitioner of a provision of the National Law amounts to unsatisfactory professional conduct. 2. Section 130(1) of the National Law requires that a registered health practitioner must, within 7 days after becoming aware that a relevant event has occurred, give the National Board established for the practitioner's profession, written notice of the event. Section 130 (3)(a)(ii) includes, in the meaning of a relevant event if a practitioner is charged with an offence punishable by 12 months imprisonment or more. Mr Lewis was charged with an offence punishable by more than 12 months imprisonment. Pursuant to s 159 of the Crimes Act 1900 (NSW), a person charged with larceny by persons in public service, is liable to imprisonment for ten years. 3. In an email dated 5 May 2022 (Exhibit 1, pp 94 – 95), the Australian Health Practitioner Regulation Agency confirms to the HCCC that Mr Lewis did not provide notice of the relevant event in the previous 12 months. On that basis we find the complaint of unsatisfactory professional conduct is proven. Orders Sought 1. The HCCC proposes that the following orders should be made by the Tribunal in relation to the complaint. 1. An order under s 149C(4)(a) of the National Law that if the respondent was still registered, the Tribunal would have cancelled the respondent's registration pursuant to s 149C(1)(c) of the National Law; 2. An order under s 149C(4)(b) of the National Law that the respondent is disqualified from being registered in the health profession for 1-2 years; 3. An order under s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the respondent was still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board; 4. An order that the respondent pay the costs of the Commission as agreed or assessed under clause 13 of Schedule 5D of the National Law. 1. Sections 149A-149C of the National Law set out the orders that the Tribunal can make once it has been found that the complaint against the practitioner has been proved. 2. The power to make those orders is protective rather than punitive. 3. Section 3(2)(a) of the National Law provides that one of the objectives of the national registration scheme is: (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; … 1. In Lee v Health Care Complaints Commission [2012] NSWCA 80, the Court of Appeal held (at [20]-[21]): "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 (and of this Court on appeal) 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, the Court of Appeal said (at [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." Cancellation of Registration and Disqualification Period 1. Relevantly, section 149C(4) the National Law provide as follows: 149C Tribunal may suspend or cancel registration in certain cases [NSW] … (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. 1. Having considered the evidence, we find that if Mr Lewis was still registered, for the protection of the public and the maintenance of proper professional standards we would cancel his registration. 2. The police facts (Exhibit 1, p 127) state that Mr Lewis has been employed as an enrolled nurse at Wyong Hospital since 2023 and worked in the emergency department for approximately 10 years. In October 2021 a new emergency department was opened within Wyong Hospital and a new CCTV system, with cameras, was introduced over the acute clean utility room. That room was where all the prescribed medications were dispensed from. The fact sheet sets out the following incidents: 1. On 15 November 2021 Mr Lewis was observed on CCTV footage to be within the clean utility room along with a registered nurse. Mr Lewis commenced filling a syringe with 1ml from the morphine vile into an already filled syringe of 9ml of saline. He then stepped back behind the registered nurse who was completing administrative work on the computer in relation to administering the drug to the patient. Whilst behind the nurse Mr Lewis shook the filled syringe in his left hand. He then simultaneously placed the syringe into his left pocket and used his right hand to remove a saline filled syringe from his right pocket. The saline syringe was then placed back in place of the morphine and administered to the patient. Mr Lewis signed the drug register as a witness that the syringe drawn up was the prescribed amount of morphine. 2. On 16 November 2021 Mr Lewis was again assisting with drawing up 1ml of morphine into 9ml of saline with a registered nurse, during the process the registered nurse witnessed a swap of syringes. When the patient who was prescribed the morphine did not receive any relief from pain and was required to have pain relief readministered a short time later, the witness raised her concern with a supervisor. Again, on 16 November, Mr Lewis signed the drug register as a witness that the syringe drawn up was the prescribed amount of morphine. 1. On 16 November 2021, Mr Lewis had a meeting, as part of an internal investigation with supervisors from NSW Health and made admissions to stealing morphine and self-administering it for pain relief. He was stood down and his employment was terminated once the internal investigation was finalised. The respondent did not renew his nursing registration with the Australian Health Practitioner Regulation Agency (AHPRA). 2. Mr Lewis was convicted for each of the four offences and was sentenced to an aggregate term of imprisonment of 15 months to commence on 2 March 2022 and expiring on 1 June 2023. The term of imprisonment was to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentence) Act 1999 (NSW). Mr Lewis was also ordered to pay a fine of $1,200. 3. In our view, the misconduct is serious. It was not an isolated incident. Mr Lewis deceived his colleagues, the hospital and patients, by stealing medication that was intended for patients. In an email to his nurse manager (Exhibit 1, p 33) Mr Lewis indicates that his motivation was because he had physical pain that was becoming "insufferable". However, that in our view is not a satisfactory reason to self-administer pain relief that was not prescribed for him. Mr Lewis was also dishonest. He falsified the drug register, by recording that patients A and B had received the correct dosage of morphine, when they hadn't. That denied the patients access to prescribed pain medication and created risks to the patients' safety. Further he put himself in a situation where he was under the influence of morphine while working. In the same email to his nursing manager, he states: The first time I substituted Morphine, the relief was immediate and I was able to perform my work. 1. The misconduct occurred relevantly recently in November 2021. Mr Lewis entered pleas of guilty to the charges at the first opportunity and remains unregistered, having surrendered his nursing registration on 5 July 2022. The documents reflect that Mr Lewis does express remorse, including in the transcript from the local court sentence hearing on 2 March 2022. 2. The Sentencing Assessment Report (Exhibit 1, p 130) dated 18 February 2022 noted that Mr Lewis had a treatment plan from his General Practitioner, and that Mr Lewis was engaged (and willing to remain engaged) with his GP on a regular basis to treat his injuries and manage pain that led to him using morphine. Mr Lewis denies drug misuse including analgesics and denies having a drug addiction at the time of the offence or at the time of sentence. 3. Mr Lewis has chosen not to engage in these proceedings and did not respond to the Nursing and Midwifery Council's request for information under s 164G of the National Law and did not participate in the s 150 hearing. The fact that he has not engaged with investigations and these proceedings only gives us limited understanding of his remorse and insight. 4. Section 41 of the National Law provides: 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession. 1. The NSW Health Code of Conduct PD_2015_04943 (exhibit 2, pp 15 – 16) relevantly provides that staff must: 4.2.3 - Ensure that their actions and decisions are not influenced by self-interest or considerations of personal gain or other improper motives … 4.3.1 - At all times act in a way which is consistent with NSW Health's duties of care to its patients and clients, and its obligations to provide a safe and supportive environment on its premises for patients and their family members 4.3.2 - Not be under the influence of alcohol or drugs when commencing work and while at work 1. Mr Lewis has had no prior complaints made against him. 2. However, we remain of the view that he does not meet the standards of ethical and professional conduct expected of a nurse. The circumstances of his offending render Mr Lewis unfit in the public interest to practise nursing. Mr Lewis stole a schedule 8 medication intended for patients, self-administered it whilst on duty, and then created a false entry in the drug register. Those circumstances sufficiently relate to the practice of nursing, especially given Mr Lewis is required to assist in the administration of such medication to hospital patients. There is also a lack of evidence as to Mr Lewis' current level of insight and prospects of rehabilitation. 3. Mr Lewis' conduct adversely impacts on the profession of nursing and is incompatible with the personal qualities essential for the practice of nursing and brings the profession into disrepute. 4. We find that the public interest is best served by the cancellation of the respondent's registration as a nurse. Period of Disqualification 1. The HCCC seeks an order under s 149C(4)(b) of the National Law that the respondent is disqualified from being registered in the nursing profession for 1 to 2 years to reflect: * general deterrence * specific deterrence * denunciation of the conduct * protection of the public * opportunity for rehabilitation. 1. In our view, a period of 18 months is an appropriate period for cancellation. Mr Lewis should have known his conduct was wrong. There is limited evidence of the respondent's insight and rehabilitation progress, including, whether he has addressed any psychological or drug issues he was facing. As we have stated above, the complaints, which we have found proven are serious and put Mr Lewis' patients at risk. 2. A period of 18 months in which Mr Lewis cannot reapply for registration will allow some time for Mr Lewis to commence appropriate treatment. Costs 1. The HCCC seeks an order that the practitioner pay the HCCC's costs as agreed or assessed. 2. The Tribunal has power to order costs, as conferred by clause 13 of Schedule 5D of the National Law. Generally, costs of proceedings before the Tribunal follow the event unless there has been some disentitling conduct by the HCCC in the conduct of the proceedings: Health Care Complaints Commission v Philipiah [2013] NSWCA 342. 3. The HCCC proceeded with this referral in an appropriate way and there was no disentitling conduct in the way that the HCCC conducted the proceedings. On that basis, we make the order for costs. Orders 1. The Tribunal makes the following orders. 1. If Mr Lewis was still registered, the Tribunal would have cancelled the respondent's registration pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW). 2. The National Board is required to record the fact that if Mr Lewis was still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW). 3. Mr Lewis is disqualified from being registered in the nursing profession for a period of 18 months pursuant to s 149C(4)(b) of the Health Practitioner Regulation National Law (NSW). 4. Mr Lewis is to pay the Health Care Complaints Commission's costs of the proceedings, as agreed or assessed pursuant to cl 13 of Sch 5D of the Health Practitioner Regulation National Law (NSW). 5. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of the patients referred to as Patient A and Patient B in the schedule to the complaint is prohibited. 6. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the name of the patients contained in the ward register contained at page 41 of Exhibit 1 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: 30 July 2024