Health Care Complaints Commission v Lawson [2024] NSWCATOD 136
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Lawson [2024] NSWCATOD 136
Hearing dates: 24 April 2024
Date of orders: 30 August 2024
Decision date: 30 August 2024
Jurisdiction: Occupational Division
Before: C Mulvey, Senior Member
K Douglas, Senior Member
C Sippel, Senior Member
F Taylor, General Member
Decision: (1) Complaint One, that the practitioner has been convicted of two counts of an offence pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW), namely the offence of using a carriage service to solicit child abuse material between 2 January 2018 and 30 September 2018 and between 25 December 2016 and 15 March 2021 contrary to section 474.22(1) of the Criminal Code Act 1995, is proved.
(2) Complaint Two, that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW), is proved.
(3) Pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW), the practitioner' registration as nurse is cancelled.
(4) Pursuant to s 149C(7) of the National Health Practitioner Regulation Law (NSW), the practitioner may not apply for review of the cancellation order for a period of 3 years.
(5) Pursuant to s 149C(5) of the National Health Practitioner Regulation Law (NSW), the practitioner must not provide a health service, as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for a period of 3 years from the date of these orders.
(6) The practitioner is to pay the costs of the Health Care Complaints Commission.
(7) The disclosure of the names of persons listed in the Schedule to the Complaint is prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.
Catchwords: HEALTH — registered health practitioner — whether conduct found to amount to unsatisfactory professional conduct — appropriate form of protective orders — prohibition order
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Criminal Code Act 1995 (CTH)
Health Care Complaints Act 1993 (NSW)
Health Practitioner Regulation National Law (NSW)
Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Gupta [2022] NSWCATOD 141
Health Care Complaints Commission v Shipley [2020] NSWCATOD 128
Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10
Qasim v Health Care Complaints Commission [2015] NSWCA 282
Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
John Thomas Lawson (Respondent)
Representation: Health Care Complaints Commission (Applicant)
Respondent (self-represented)
File Number(s): 2023/00442052
Publication restriction: The disclosure of the names of persons listed in the Schedule to the Complaint is prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.
REASONS FOR DECISION
1. The Health Care Complaints Commission ("HCCC") has applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) ("the National Law") against John Thomas Lawson (aka John Thomas Maunder), an Enrolled Nurse ("the practitioner").
2. The proceedings arise from complaints made pursuant to ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 (NSW) ("the HCC Act") and s 145A of the National Law. The complaint alleges that the practitioner is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law.
3. The complaint relates to a breach of s 130(1) of the National Law, in that, the practitioner failed to notify the National Board, within seven days of having been charged:
1. on 4 February 2021 with two counts of intentionally sexually inciting a child, 10 years or older and under 16 years to sexually touch the person contrary to s 66DB(b) of the Crimes Act 1900,
2. on 4 February 2021 with one count of intentionally sexually touching a child, 10 years or older and under 16 years contrary to s 66DB(a) of the Crimes Act 1900,
3. on 4 February 2021 with one count of grooming a child under 14 years for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act 1900,
4. on 12 April 2021, charged with two counts of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995.
1. The complaint secondly relates to a breach of s 130(1) of the National Law, in that, the practitioner failed to notify the National Board, within seven days of having been made the subject of criminal finding punishable by 12 months imprisonment or more:
1. on 25 August 2022, the practitioner was found guilty by a jury in the District Court of New South Wales at Parkes of two offences of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995.
1. The complaint thirdly relates to a breach of s 130(1) of the National Law, in that, the practitioner failed to notify the National Board, within seven days of having been convicted before a New South Wales Court with two counts of an offence punishable by 12 months imprisonment or more ("the Conviction"):
1. on 15 February 2023, the practitioner was convicted in the District Court of New South Wales of two counts of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995.
1. The Tribunal ordered that the proceedings be set down for a hearing to be conducted in one stage. That means the Tribunal is to determine whether the complaint is proven and what protective orders should be made as a consequence of the Tribunal's findings.
2. The hearing was listed as an in-person hearing. Leave was given for the practitioner to appear by video.
3. The HCCC was represented by Mr J Mitchell A Kelly, a solicitor within the Legal Services division of the HCCC. The practitioner appeared in person briefly by video. He said he did not want to participate in the hearing. He consented to whatever orders the Tribunal might make with no admissions. The practitioner did not file any evidence. The practitioner's view provided at the commencement of the hearing was consistent with an email he sent to the HCCC on 11 March 2024 in which he stated "… I am not filing any material on you and furthermore consent without admission to the order being made. I am hoping this can be handled administratively rather than a hearing. …"
4. The practitioner did not give oral evidence.
5. The HCCC relied upon a bundle of material filed on 13 February 2024 (496 pages), a transcript of the criminal proceedings hearing (25 August 2022) filed on 17 April 2024, an affidavit of Rebecca Clucas filed 23 March 2024, and an evidentiary certificate filed 17 April 2024. A chronology and written submissions filed on 26 April 2024 were also relied upon.
6. The HCCC did not call any witnesses. The practitioner was not cross-examined.
7. The Tribunal may exercise the disciplinary powers conferred by Subd 6, Div 6 of Part 8 of the National Law if (a) it finds the subject-matter of a complaint to have been proved, or (b) the practitioner admits to it in writing to the Tribunal: s 149 of the National Law.
8. The combined Stage 1 and 2 hearing and these reasons relate to the issue of whether the allegations in the complaints have been proven to the requisite standard, and whether any conduct found to have occurred constitutes unsatisfactory professional conduct. If the complaints are proven and a finding of unsatisfactory professional conduct is made against the practitioner, the Tribunal is then required to consider, and determine, what if any protective orders are appropriate.
9. The HCCC bears the onus of proving the complaints against the practitioner, on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 of Sch 5D of the National Law). The approach to be adopted by the Tribunal in making findings of fact in respect of matters in dispute was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52]-[53] in the following terms:
52. In medical disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]).
53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations.
Background
1. The practitioner was employed by Life Without Barriers ("LWB") to work in various roles between July 2014 and August 2017. Between the period of May 2015 to July 2017 the practitioner was working as what was then called a residential clinician connected to the LWB Intensive Therapeutic Care ("ITC") program, at residential houses in western NSW. The LWB ITC program provided residential care for children and young people who are under the parental responsibility of the Minister for the Department of Justice and Community Services ("DCJ") in Out of Home Care ("OOHC"). The residential care programme was for children over 12 years and young people with complex needs who could not be supported by living with a foster carer.
2. The duties of a residential clinician included: providing therapeutic and personal support to children and young people; attending court and doctors' appointments; providing advice; and engaging in conversations in relation to personal and therapeutic matters for the young person as well as therapeutic support. The practitioner worked as a residential clinician providing these types of services to:
* Person B (then aged 14) between April 2017 and June 2017; and
* Person C (then aged 16) between February 2016 and June 2017.
1. Between July and August 2017 the practitioner worked as a LWB support worker. Relevantly, during July and August 2017, the practitioner worked as Person B's support worker.
2. As a residential clinician at LWB, the practitioner had access to Person B and Person C's files which included their dates of birth, documents pertaining to the person's trauma, their OOHC history, and contemporaneous records of their experience with LWB. A statement provided by Person B to NSW Police evidences the practitioner calling her 'Honey' and 'Hun'. He contacted her on Snapchat after he ceased to be Person B's caseworker in 2020 and 2021. The practitioner was also friends with Person C on Snapchat. Snapchat is an instant messaging service which allows the exchange of pictures/photographs which are available for only a short time before the image becomes inaccessible to the recipient.
3. On the night of 12/13 January 2018, the practitioner took a photograph of Person C asleep on a lounge and sent the photograph to Person C by Snapchat with a caption saying "soring biarch lol".
4. Between 2 January 2018 and 30 September 2018, when Person C was 17 years of age, the practitioner contacted Person C on Snapchat on multiple occasions. During those conversations, the practitioner:
(a) Told Person C she was 'beautiful',
(b) Offered to pierce Person C's nipples;
(c) Asked Person C to send him a photo of her "boobs" and the space between them16;
(d) Said to Person C the words: 'that's close to my age, why don't you just date me' or 'You are only 17 you may as well date me'' in the context of Person C dating a 32-year-old at the time;
(e) After Person C told the Respondent she had a freckle on her "boob", the Respondent asked Person C to send him a photo of her "boob" with a freckle on it so he could keep an eye on it; and
(f) Told Person C that she had "boobs" big enough to hold a longneck bottle between her "boobs" without having to use her hands.
1. The practitioner obtained employment as an enrolled nurse with Bathurst Base Hospital on 29 January 2019.
2. The practitioner was first registered as an Enrolled Nurse (Division 2) on 11 April 2019. His registration was suspended by the Nursing and Midwifery Council of New South Wales on 30 March 2021.
3. On dates unknown between 25 December 2016 and 15 March 2021, when Person B was under 18 years old, Person B and the practitioner communicated over Snapchat. During those conversations:
(a) Person B told the practitioner she was self-harming;
(b) Person B thanked the practitioner for what he did for her when she was in his care;
(c) Person B said to the practitioner: 'I looked on you as a father figure in my life' In reply, the practitioner told Person B that he had been looking at her stories on Snapchat and that person B was developing into a beautiful, hot sexy woman;
(d) The practitioner said to Person B: 'Send me a photo of your tits'.
(e) The practitioner told Person B that she could go live with him, his wife and kids; and
(f) The practitioner wrote to Person B telling her that her "tits" were getting really big and asked her for a picture of them.
1. On 4 February 2021, the Respondent was apprehended and charged by NSW Police with the following:
(a) Two counts of intentionally sexually touch a child, 10 years or older and under 16 years contrary to 66DB(a) of the Crimes Act 1900.
(b) One count of intentionally inciting a child 10 years or older and under 16 years to sexually touch the person contrary to section 66DB(b) of the Crimes Act 1900.
(c) One count of grooming a child under 14 years for unlawful sexual activity contrary to section 66EB (3) of the Crimes Act 1900.
1. The HCCC made various attempts to contact the practitioner. The local health district was advised that the practitioner's working with children check clearance ("WWCCC") had been cancelled. A request was made for the practitioner to provide a copy of the cancellation letter from the Children's Guardian concerning the cancellation of his WWCCC. The practitioners employment with the local health district was suspended.
2. On 29 March 2021, the Nursing and Midwifery Council held s 150 proceedings. The practitioner did not attend the proceedings nor provide submissions.
3. On 12 April 2021, the Nursing and Midwifery Council issued written reasons for its decision to suspend the Respondent's Registration.
4. On 20 May 2021, the HCCC sent a letter to Ahpra via email requesting any record of the respondent notifying that body of the criminal charges of 4 February 2021.
5. On 3 June 2021, Ahpra sent an email to the HCCC advising that it was unable to locate any information that recorded the practitioner notifying Ahpra of a relevant event.
6. On 21 July 2021, the charge of grooming a child under 14 years for unlawful sexual activity was withdrawn.
7. Following a trial in August 2022, where the practitioner gave evidence, a jury on 25 August 2022 returned verdicts of guilty to both charges of soliciting child abuse material.
8. On 13 February 2023, Acting Judge J Williams, Judge of the District Court of NSW, made the following orders:
The practitioner is convicted of 2 offences of use carriage service to solicit child abuse material;
A sentence of 2 years imprisonment;
Pursuant to s20(1)(b) of the Crimes Act 1914 (CTH), the offender is to be released today on the condition that the offender enters into a recognisance, self, in the sum of $2,000, subject to the following conditions:
i. The offender is to be of good behaviour for 3 years; ii. The offender is to be placed under the supervision and guidance of the Community Corrective Services for 2 years. The offender is to obey all reasonable directions that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.
ill. The offender is not to travel overseas or interstate without permission of CCS.
1. A certificate of conviction issued by the District Court of NSW dated 2 March 2023 records the Conviction and sentence.
2. There is no evidence that the practitioner notified the HCCC, at any stage, of the charges, or, the Conviction.
The Complaints
1. There are two complaints.
2. Complaint One is that pursuant to s 144(a) of the National Law, the practitioner has been convicted of a criminal offence in NSW. The practitioner on 15 February 2023, was convicted in the District Court of New South Wales of two counts of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995.
3. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct pursuant to s 139(B)(1)(b) of the National Law, in that the practitioner has contravened s 130(1) of the National Law. That is because the practitioner:
Failed to notify the National Board, within seven days of having been charged:
1. on 4 February 2021 with two counts of intentionally sexually inciting a child, 10 years or older and under 16 years to sexually touch the person contrary to s 66DB(b) of the Crimes Act 1900,
2. on 4 February 2021 with one count of intentionally sexually touching a child, 10 years or older and under 16 years contrary to s 66DB(a) of the Crimes Act 1900,
3. on 4 February 2021 with one count of grooming a child under 14 years for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act 1900,
4. on 12 April 2021, charged with two counts of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995.
1. Secondly, the practitioner failed to notify the National Board, within seven days of having been made the subject of criminal finding punishable by 12 months imprisonment or more:
1. on 25 August 2022, the practitioner was found guilty by a jury in the District Court of New South Wales at Parkes of two offences of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995.
1. Thirdly, the practitioner failed to notify the National Board, within seven days of having been convicted before a New South Wales Court with two counts of an offence punishable by 12 months imprisonment or more ("the Conviction"):
1. on 15 February 2023, the practitioner was convicted in the District Court of New South Wales of two counts of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995.
1. The HCCC seeks the following orders:
1. The practitioner has been convicted of a criminal offence pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW), namely two counts of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995, is proved.
2. The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW), is proved.
3. Pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW), the practitioner's registration as a nurse is cancelled.
4. Pursuant to s 149C(7) of the National Health Practitioner Regulation Law (NSW), the practitioner may not apply for review of the cancellation order for a period of 2-3 years.
5. Pursuant to s 149C(5) of the National Health Practitioner Regulation Law (NSW), the practitioner must not provide a health service, as defined in s 4 of the National Health Practitioner Regulation Law (NSW) for a period of 2-3 years from the date of these orders.
6. The disclosure of the names of persons listed in the Schedule to the Complaint is prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013
7. The practitioner pay the HCCC's costs.
Evidence
1. The following summary is based on the unchallenged statements and bundle of documents relied upon by the HCCC. Noting that the practitioner refused to file any material, nor give oral evidence, our findings have been made based upon the HCCC written material and documents.
Complaint One
1. The certificate of conviction issued by the District Court of NSW dated 2 March 2023 records that on 15 February 2023, Judge J Williams made the following orders against the practitioner in relation between 2 January 2018 and 30 September 2018, at Bathurst in the State of New South Wales, did solicit material using a carriage service and the material is child abuse material, namely a photograph of the breast of [redacted], a person who was then under the age of 18 years, namely 17 years and between 25 December 2016 and 15 March 2021, at Bathurst in the State of New South Wales, did solicit material using a carriage service and the material is child abuse material, namely a photograph of the breast of [redacted], a person who was then under the age of 18 years.
2. The practitioner was convicted and sentenced to a term of imprisonment of 2 years to commence 15 February 2023 and expiring on 14 February 2025, to be served in the community on conditions.
3. The practitioner did not admit the complaint.
4. We find that the subject conviction is a criminal offence within the meaning of s 144(a) of the National Law. We also find that the practitioner was convicted of that offence on 15 February 2023. The conviction was not appealed.
5. Complaint One is proved.
Complaint Two
1. The practitioner made no admissions.
2. The evidence reveals, and, we find, the practitioner was charged with the following offences, all of which are punishable by 12 months imprisonment or more, and, he failed to notify the National Board, within seven days of:
1. on 4 February 2021 the practitioner was charged with two counts of intentionally sexually inciting a child, 10 years or older and under 16 years to sexually touch the person contrary to s 66DB(b) of the Crimes Act 1900,
2. on 4 February 2021 the practitioner was charged with one count of intentionally sexually touching a child, 10 years or older and under 16 years contrary to s 66DB(a) of the Crimes Act 1900,
3. on 4 February 2021 the practitioner was charged with one count of grooming a child under 14 years for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act 1900,
4. on 12 April 2021, the practitioner was charged with two counts of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995.
1. We also find, the practitioner failed to notify the National Board, within seven days of having been made the subject of a criminal finding punishable by 12 months imprisonment or more:
1. on 25 August 2022, the practitioner was found guilty by a jury in the District Court of New South Wales of two counts of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995.
1. We also find, the practitioner failed to notify the National Board, within seven days of having been convicted before a New South Wales Court of two counts of an offence punishable by 12 months imprisonment or more ("the Conviction"):
1. on 15 February 2023, the practitioner was convicted in the District Court of New South Wales of two counts of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995.
1. We find the particulars of Complaint Two proved.
2. For the reasons set out below, we also find the failure of the practitioner to comply with s 130(1) of the National Law amounts to unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law. Complaint Two is proven.
Discussion and findings
1. In considering the particulars of Complaint One, the Tribunal notes that under s 149 of the National Law, the important aspect of the complaint is its "subject-matter", which "provides the jurisdictional gateway for the Tribunal to exercise its disciplinary powers": Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315, at [34]. Wilson J held at [36]-[37]:
36. It is clear that the subject matter of the complaint may or will be broader than individual particulars of it, and include those matters of fact advanced in support of it. That must be so having regard to the overall aims and objectives of the National Law, and the wide procedural powers given to the Tribunal. In particular, the Tribunal's power to inform itself in any way it sees fit, and to determine any complaint it considers should be determined, regardless of the complaint advanced, is inconsistent with a narrow reading of the Tribunal's power to range beyond the particulars of a complaint.
37. The role of the Tribunal is to conduct an inquiry into a complaint made against a health practitioner, informed as it thinks necessary, and determining any complaint it considers arises on the material before it. There can be no basis in such circumstances to consider the Tribunal bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced.
1. For the reasons in [42]-[46], the particulars of Complaint One are established.
2. For the reasons in [47]-[51], the particulars of Complaint Two are established.
Whether the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law as alleged.
1. The HCCC alleges that the conduct as particularised in Complaint Two constitutes unsatisfactory professional conduct under s 139B(1)(b) of the National Law:
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) 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. In Health Care Complaints Commission v Shipley [2020] NSWCATOD 128 ("Shipley") the Tribunal described the evaluative task required by s 139B(1)(b) in the following terms:
66. Complaint Three relies on s139B(1)(b) of the National Law, which defines "unsatisfactory professional conduct" to include a contravention by the practitioner (whether by act or omission) of a provision of the National Law. The practitioner breached s 130(1) and s 109(1)(b) of the National Law. The practitioner's evidence to the Tribunal was that she thought the Board already knew about the charges, and that when she was completing her renewal application in May 2018 she thought she would notify if she were convicted. As discussed in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [27], the contravention by the practitioner of a provision of the National Law having been established as a matter of fact, that contravention is designated as unsatisfactory professional conduct, and the Tribunal has no discretion.
1. The Tribunal has found the particulars in Complaint Two are established. The practitioner has contravened a provision of the National Law, and that contravention is designated as unsatisfactory professional conduct, and the Tribunal has no discretion.
2. The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law as alleged in Complaint Two.
Stage Two Consideration
Submissions
HCCC submissions
1. In circumstances where the Tribunal makes a positive finding of professional misconduct (as is sought by the HCCC), it is submitted the Tribunal should cancel the practitioner's registration and prohibit him from re-applying for registration for between 2 – 3 years. The HCCC further contends that the practitioner should be prohibited from providing a health service in accordance with the meaning set out in s 4 of the HCC Act.
2. The HCCC submits that given the gravamen of the allegations against the practitioner; the need to protect the public through general deterrence (of other practitioners); the need to protect the public by reinforcing high professional standards and denouncing transgressions; and the maintenance of public confidence in the profession, there is need for action by way of orders under the National Law.
3. The HCCC contends that the conduct was serious which is reflected in the imposition of a 2 year custodial order. The practitioner abused his position as a clinician and support worker when caring for vulnerable young persons. The Conviction is regarded by the community as serious and would cast doubt on the trustworthiness and integrity of the practitioner, whether or not children were involved. However, the conduct is aggravated in circumstances where the two victims were children and vulnerable on a background of trauma in an OOHC setting.
4. The conduct of the practitioner in requesting photographs of breasts from children is inconsistent with the practice of nursing and the Code of Conduct. The pracaitioner knew the victims were children. He was aware of their traumatic background, yet still, he was not able to conduct himself in a professional or proper manner. He breached the trust of the young persons and also the expectations of the profession and community.
5. To ensure a means of censuring the practitioner's conduct and sending a strong message, both specifically to the practitioner but also to other practitioners more broadly, the orders at [40] are sought.
The practitioner's submissions
1. The practitioner gave no evidence, he made no submissions. He did not explain his behaviour, nor demonstrate any insight into his offending. He has not demonstrated how he will conduct himself in the future if he was to remain registered as a nurse. He has not shown nor demonstrated any remorse.
Consideration
1. The practitioner is guilty of unsatisfactory professional conduct. The Tribunal's powers to make orders are specified in s 149A of the National Law.
2. The HCCC submits that the appropriate protective orders are set out at [40].
3. The practitioner submits to the orders of the Tribunal with no admission as to the facts.
4. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3 of the National Law. The most directly relevant of those principles is that in s 3(2)(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. The protection of the health and safety of the public must be the paramount consideration: s 3A.
5. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said:
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. In Health Care Complaints Commission v Gupta [2022] NSWCATOD 141 at [171]-[172] the Tribunal restated the relevant principles in determining a protective order:
171 As the Tribunal recently stated in Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATOD 79 at [58], paraphrasing Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 at [101], the relevant principles in determining a protective order have been stated on many occasions and include the following:
(1) the protection of public safety and health is paramount; National Law, s 3A;
(2) public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a);
(3) the Tribunal must consider the maintenance preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91];
(4) protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91];
(5) the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340;
(6) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82];
(7) the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114];
(8) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
172 In addition, no order should be made which has "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose": Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]); Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to).
1. Having considered all the submissions and the applicable principles, we consider that there should be an order made cancelling the practitioner's registration as a nurse and prohibiting him from re-applying for 3 years. We have also concluded that the practitioner should be prohibited from providing any health service for the same period.
2. We have come to that conclusion given the objective seriousness of the conduct, the disturbing breach of trust between the practitioner's position as a residential clinical and support worker, and because of the necessity to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated. This has the effect of maintaining public confidence in the profession.
3. The practitioner's conduct was serious and it involved a breach of trust in his professional relationship with vulnerable children. His conduct was not isolated, it was opportunistic and commenced during a period when he was responsible the care of the children and also after that period. The practitioner was in a position of trust and he breached that trust. He placed his own needs for sexual gratification before the needs of vulnerable children.
4. We have considered the time in which the offending occurred, being from 2016 to 2021. There is no evidence that the practitioner has made any reparation. He has not admitted the particulars of the Complaint.
5. The practitioner failed to notify the regulatory authorities when he was charged with notifiable offences and also when he was convicted of the relevant offence which is in contravention of the National Law. Ignorance of his obligations is no defence. We have taken into consideration that his failure to do so was not an isolated incident. It was repeated.
6. There is no evidence from the practitioner about whether his conduct will not be repeated. This is of concern.
7. The practitioner has no recorded prior complaints. He has no other relevant criminal record, apart from the subject conviction. The Tribunal does not have any evidence pertaining to whether the practitioner has reflected on the effect his conduct had on the victims and the profession as a whole. The inference is he has not done so.
8. The orders made by the Tribunal are necessary to ensure the encouragement of high standards expected of the nursing profession and compliance with the regulatory regime.
9. Balancing all the matters put to us by the HCCC, we consider that it is appropriate to cancel the practitioner's registration as a nurse, prohibit him from reapplying for 3 years and also prohibit him from providing a health service, as defined by s 4 of the HCC Act.
Costs
1. The HCCC seeks costs. The practitioner does not oppose a costs order.
2. Clause 13 of Sch 5D of the National Law enables the Tribunal to make an order for payment of costs. The relevant principles applicable to the costs of the proceedings were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, and are that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. There is no disentitling conduct on the part of the HCCC in its conduct of the proceedings.
3. It is appropriate to order that the practitioner pay the costs of the HCCC.
Orders
1. The Tribunal orders:
1. Complaint One, that the practitioner has been convicted of two counts of an offence pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW), namely the offence of using a carriage service to solicit child abuse material between 2 January 2018 and 30 September 2018 and between 25 December 2016 and 15 March 2021 contrary to section 474.22(1) of the Criminal Code Act 1995, is proved.
2. Complaint Two, that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW), is proved.
3. Pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW), the practitioner' registration as nurse is cancelled.
4. Pursuant to s 149C(7) of the National Health Practitioner Regulation Law (NSW), the practitioner may not apply for review of the cancellation order for a period of 3 years.
5. Pursuant to s 149C(5) of the National Health Practitioner Regulation Law (NSW), the practitioner must not provide a health service, as defined in s 4 of the National Health Practitioner Regulation Law (NSW) for a period of 3 years from the date of these orders.
6. The practitioner is to pay the costs of the Health Care Complaints Commission.
7. The disclosure of the names of persons listed in the Schedule to the Complaint is prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.
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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
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Decision last updated: 30 August 2024