Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Morato [2024] NSWCATOD 143 Hearing dates: 16 April 2024 Date of orders: 13 September 2024 Decision date: 13 September 2024 Jurisdiction: Occupational Division Before: A Starke, Senior Member A Cummins, Senior Member N Story, Senior Member B Seth, General Member Decision: (1) Pursuant to s 149(A)(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimanded the respondent for his improper conduct relating to the practice of nursing and his improper or unethical conduct in providing false and misleading information relating to the practice of nursing as particularised in Schedule A to these Reasons. (2) Pursuant to s 149(A)(1)(b) of the Health Practitioner Regulation National Law, the conditions set out in Schedule B to these Reasons are imposed on the respondent's registration. (3) Each party is to pay their own costs of the proceedings. Catchwords: OCCUPATIONS – Nursing – Application for disciplinary findings and orders where practitioner found guilty of unsatisfactory professional conduct – Practitioner formally reprimanded – Conditions imposed on the practitioner's registration. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Clyne v NSW Bar Association (1960) 104 CLR 186 Complaints Commission v Karalasingham [2007] NSWCA 267 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 HCCC v Brush (No. 2) [2015] NSWCATOD 154 HCCC v CSM [2016] NSWCATOD 125 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield [1997] NSWSC 297 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Ly [2010] NSWMT 20 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Tran [2021] NSWCATOD 82 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission [2011] NSWCA 99 NSW Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Oshlack v Richmond River Council [1998] HCA 11 Parker v Comptroller of Customs (2009) 83 ALJR 494 Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Calvin Dianco Morato (Respondent) Representation: Counsel C Akthar (Applicant) Solicitors Health Care Complaints Commission (Applicant) Nurses and Midwives Association (Respondent) File Number(s): 2023/00429142 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and or publication of the names of the persons listed in the Schedule to the Complaint against the respondent 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 Introduction and overview 1. In this matter, the Health Care Complaints Commission asked the Tribunal to make disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) ("National Law") with respect to a complaint against Calvin Dianco Morato (also referred to as "the respondent" or "the practitioner") whose registration as a registered nurse is currently suspended. 2. In essence, the relevant factual circumstances giving rise to the complaint occurred on Saturday, 29 October 2022, shortly before midnight whilst the practitioner was the registered nurse on duty in an aged care facility ("the Facility"). A resident in the Facility experienced a fall and suffered a serious injury ("the Incident") which subsequently required hospitalisation and an operation to repair/fix a fracture of the neck of her left femur. 3. The Incident came to light at 8am the following Monday morning when care staff assessed the resident as experiencing pain and noticed changes in the resident's mobility, with her left leg being shortened and rotated inwards. Review of CCTV footage revealed the resident lying on the floor of the corridor to the dementia ward in the Facility at 11.52pm on 29 October 2024 and also captured Mr Morato's actions in response to finding the resident on the floor. 4. An internal investigation by the practitioner's employer, Australian Unity, substantiated allegations that he had failed to complete any relevant assessments of the resident immediately after her fall, failed to complete an incident report and failed to notify colleagues or managers of the fall. Further, the investigation substantiated the allegation that when asked by the Clinical Care Manager whether he had witnessed or reported anything occurring during his shift, the practitioner indicated there had been no falls. Subsequently, when asked about the Incident, the practitioner admitted that he had willingly misled management. 5. Mr Morato's employment with Australian Unity was suspended with pay on 3 November 2022 while the investigation took place. The practitioner participated in a formal interview and provided a written response to the allegations formulated by the investigator. His employment was terminated with 3 weeks' notice shortly after the investigation was finalised, not long after 16 November 2022. 6. On 1 December 2022, the Nursing and Midwifery Council of New South Wales ('the Council') became aware of the Incident and the allegations determined by the workplace investigation. The Council was aware that Mr Morato was working for a nursing agency in the aged care sector, with the possible attendant risk of not being supervised. That risk, alongside concerns that Mr Morato had not been honest or forthcoming in relation to the Incident, led the Council to refer Mr Morato for proceedings under s 150(1) of the National Law, to consider whether urgent interim action was warranted to protect public health and safety. 7. An urgent hearing before the Council on 12 December 2022 heard evidence from the practitioner. The Council considered that his professional practice posed a risk to public health and safety and that the risk could not be addressed by the imposition of conditions. Accordingly, the Council suspended his registration under s 150A(1)(a) of the National Law. Under s 150(2) of the National Law, the suspension has effect until the Complaint is disposed of (upon conclusion of these proceedings). 8. Pursuant to s 150D of the National Law, the Council referred the matter to the Commission to be dealt with as a complaint for investigation ('the Complaint'). 9. Pursuant to s 90B(1) of the Health Care Complaints Act 1993 (NSW), the Director of Proceedings of the Commission determined to prosecute the Complaint against the Practitioner before this Tribunal. 10. The Complaint is comprised of two parts. Complaint One relates to the practitioner's failure to treat the Incident as a possible serious fall, failure to carry out a number of assessments and notifications (which are particularised) and failure to document a number of matters (which are also particularised). Complaint Two relates to the practitioner falsely informing his Manager that he was not aware of the Incident. 11. In its application, the Commission alleged the practitioner engaged in improper or unethical conduct relating to the practice or purported practice of nursing with respect to both Complaints One and Two, and is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law. 12. The Commission sought a finding of unsatisfactory professional conduct and also sought the following protective orders: 1. a reprimand of the respondent pursuant to section 149A(1)(a) of the National Law; 2. the imposition of conditions on the respondent's registration pursuant to s 149A(1)(b) of the National Law. 1. The Commission bears the burden of proof in these proceedings. 2. The practitioner has admitted in writing the subject matter of the Complaint. In written submissions filed on behalf of the practitioner in these proceedings, it is wholly accepted that his admissions are sufficient for the Tribunal to exercise its powers to make orders under s 149A of the National Law. However, the practitioner has submitted that in considering any appropriate protective orders, no order made in execution of the protective purpose should have more serious consequences for the practitioner than is reasonably necessary. 3. There is an issue in dispute between the parties with respect to the appropriateness (or otherwise) of particulars pleaded in paragraphs 4 and 5 of Complaint One. Particular 4 pleads that the practitioner's conduct in particulars 1 to 3 is contrary to his obligations under the Nursing and Midwifery Board of Australia's "Registered Nurse Standards for Practice" (2016) ("Standards of Practice"). Particular 5 pleads that the practitioner's conduct in particulars 1 to 3 was contrary to his obligations under the "Falls Management Procedure" in place at the Facility at the time of the Incident. 4. The practitioner's position is that, pursuant to s 41 of the National Law, a code or guideline approved by a National Board is admissible as evidence of what constitutes appropriate professional conduct or practice for the health profession, but is not a separate or discrete obligation from the failures to undertake the care pleaded in particulars 1 to 3. 5. The Commission's position in written submissions is that failures to comply with the Standards of Practice and/or the Falls Management Procedure (as distinct from failures to comply with the National Law) are capable of being pleaded as a particular. However, in oral submissions, the Commission accepted the application of s 41 of the National Law in relation to the Practice Standards and do not press that point. The issue remains in dispute with respect to the Falls Management Procedure, with the Commission asserting in supplementary written submissions that the failure to comply with that Procedure is a conceptually distinct additional particular to be pleaded. 6. The Commission initially also sought an order that the respondent pay the Commission's costs as agreed or assessed under clause 13 of Schedule 5D of the National Law. However, the revised position of the Commission is that they no longer seek an order for costs. 7. After hearing and considering all the relevant evidence, we are satisfied that the facts pleaded in Particulars 1 to 3 of Complaint One and the Particular pleaded in Complaint Two have been established, and find the practitioner guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law. For the Reasons that follow, we have decided to reprimand the respondent and to impose conditions on his registration. 8. We also order each party to bear their own costs of the proceedings. Prohibition order 1. Due to the confidential nature of evidence concerning the resident identified in the Complaint against the respondent, the Tribunal made an order on 16 April 2024 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that the disclosure and or publication of the names of persons named in the Schedule to the Complaint is prohibited. Material and evidence before the Tribunal Filed on behalf of the Commission 1. The Commission relied on the documents served and filed on 21 March 2024 which were admitted into evidence and marked for identification as "Exhibit A1". 2. During the hearing, the Commission handed up draft Conditions to be imposed on the practitioner's registration (marked for identification as "Exhibit A2") on the understanding that some amendments were likely to be suggested on behalf of the practitioner. 3. During the hearing, the Commission handed up written submissions dated 15 April 2024 (not marked). 4. After the hearing, the Commission filed supplementary written submissions dated 17 April 2024 (not marked). Filed on behalf of the respondent 1. The respondent relied on the documents served and filed on 2 April 2024 which were admitted into evidence and marked for identification as "Exhibit R1". 2. After the hearing, the respondent filed written submissions in reply dated 17 April 2024 (not marked). 3. After the hearing, on 17 April 2024, the respondent also filed marked up draft conditions proposed to be imposed on the practitioner's registration. These marked up draft conditions were accepted into evidence after the hearing and the document has been marked for identification as "Exhibit R2". 4. Also after the hearing, on 17 April 2024, the respondent submitted an Annexure detailing the continuing professional development (CPD) courses undertaken by the practitioner during 2023 and January 2024. This Annexure was accepted into evidence after the hearing and has been marked for identification as "Exhibit R3". Oral evidence and submissions at the hearing 1. The practitioner gave oral evidence and was cross-examined during the hearing. 2. Both parties made oral submissions. The Complaint 1. In its application for disciplinary findings and orders, the Commission set out the grounds that constituted the Complaint in these proceedings. The Complaint set out the Background to Complaint One which was relied upon and repeated with respect to Complaint Two. "Background In 2006 the practitioner graduated in 2006 from St Gabriel College in the Philippines with a Bachelor of Science in Nursing. On 4 October 2011 the practitioner was first registered to practice as a registered nurse in New South Wales. Between September 2006 and June 2016 the practitioner lived and worked as a nurse in the Philippines and New Zealand. In June 2016 the practitioner relocated to Australia and began practising as a registered nurse in New South Wales. The practitioner commenced working at the facility on 24 April 2019. On 29 October 2022, 93-year-old Patient A was a resident at the facility. She had a recent history of falls while residing at the facility and was considered to have a high risk of falls due to her diagnosis of dementia. On 29 October 2022 the facility had a Falls Management Procedure in place, a copy of which was annexed to the Complaint." "Complaint One That the practitioner, being a nurse registered under the National Law, is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Particulars of Complaint One 1. On 29 October 2022, in circumstances where the practitioner knew or ought to have known that Patient A had a recent history of falls and was a falls risk, the practitioner, after discovering Patient A on the floor of the dementia corridor, failed to treat his attendance on Patient A as a possible serious fall. 2. On 29 and 30 October 2022, after discovering Patient A on the floor of the dementia corridor, the practitioner failed to: 1. call for assistance; 2. assess whether it was safe to move Patient A from her position; 3. assess whether it was necessary to use a lifting hoist to move Patient A from her position; 4. contact the person nominated as Patient A's emergency contact to advise them of her fall; 5. notify anyone else working in the facility of Patient A's fall; 6. inform the medical practitioner on duty at the facility of Patient A's fall; 7. ensure ongoing monitoring of Patient A after her fall, both by himself and other staff members; and 8. complete an incident reporting form in relation to Patient A's fall. 1. On 29 and 30 October 2022, after discovering Patient A on the floor of the dementia corridor, the practitioner failed to document the following in Patient A's customer care record on the facility's electronic management system: 1. the date and time of Patient A's fall; 2. the location of Patient A's fall; 3. a description of Patient A's fall; 4. Patient A's appearance following the fall; 5. Patient A's response to the fall; 6. Patient A's temperature, pulse, respirations, and blood pressure following the fall; 7. the practitioner's neurological observations of Patient A; and 8. whether there was any evidence of injury to Patient A. 1. The practitioner's conduct in particulars (1) – (3) above is contrary to his obligations under the Nursing and Midwifery Board of Australia's 'Registered Nurse Standards for Practice' (2016) specifically: 1. Clause 1.6; 2. Clause 6.1; and 3. Clause 6.5. 1. The practitioner's conduct in particulars (1) – (3) above were contrary to his obligations under the Falls Management Procedure in place at the facility in October 2022." "Complaint Two The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Particular of Complaint Two On 1 November 2022 the practitioner informed the Clinical Care Manager at the facility that he was not aware that Patient A had fallen during his shift on 29 October 2022 when he knew this information to be false." Issues for the Tribunal's consideration 1. Regardless of the practitioner's admissions, the issues for the Tribunal's consideration are: 1. to make a finding as to whether particulars 4 and 5 with respect to Complaint One are appropriately included as pleadings or are matters to be used as evidence of what constitutes appropriate professional conduct or practice for the profession of nursing; 2. to make findings as to whether the practitioner is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law; 3. to decide whether, and if so in what manner, the Tribunal should exercise its disciplinary powers under s 149A of the National Law; 4. if the Tribunal exercises its disciplinary power to caution or reprimand Mr Morato, to decide the terms of that caution or reprimand; 5. if the Tribunal exercises its disciplinary power to impose conditions on Mr Morato's registration, to decide the terms of those conditions; 6. to decide the terms of a costs order. 1. Before considering these issues, it is appropriate that we: 1. set out the applicable provisions of the National Law; 2. explain the applicable legal principles for the exercise of disciplinary powers under s 149 of the National Law to reprimand the practitioner and impose conditions on his registration, and award costs under cl 13 of Sch 5D of the National Law; 3. summarise the evidence and the submissions of the parties. Relevant provisions of the National Law Objectives of the legislation 1. Section 3 of the National Law sets out the objectives of the legislation: "3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for— (a) the regulation of health practitioners; and … (2) The objectives of the national registration and accreditation scheme are— (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and …" Guiding principle: Protection of the health and safety of the public is the paramount consideration 1. Section 3A sets out the guiding principle of the national registration scheme and s 3B specifies that in the exercise of functions under the National Law in New South Wales, the protection of the health and safety of the public must be the paramount consideration: "3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." 1. Section 4 specifies how functions under the National Law are to be exercised, and provides: "4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A." Meaning of "unsatisfactory professional conduct" 1. Section 139B sets out the various types of conduct of a registered health practitioner that is considered to be "unsatisfactory professional conduct". In the case before us, the complaint against the respondent is that he was guilty of unsatisfactory professional conduct under s 139B(1)(l) in that he has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Section 139B(1)(l) relevantly provides: "139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession." Meaning of improper or unethical conduct 1. The words "improper" and "unethical" are not defined in the National Law. The assessment of what constitutes "improper" or "unethical" conduct is based upon the ordinary meaning of those words. In the professional disciplinary context, there is some overlap between the two: Health Care Complaints Commission v Aref [2018] NSWCATOD 133 ('Aref') at [19]. 2. In these Reasons under the heading "Consideration", we look at relevant cases where the meaning of "improper" and "unethical" has been considered, to assess whether the practitioner's conduct constitutes "unsatisfactory professional conduct" under s 139B(1)(l). Disciplinary powers may be exercised if a complaint is proved or admitted 1. Part 8, Division 3, Subdivision 6 of the National Law contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies that the Tribunal may exercise any power conferred on it by Subdivision 6 if a complaint is proved or admitted, and relevantly provides: "Subdivision 6—Disciplinary powers of Tribunals [NSW] 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if— (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal." 1. The Tribunal's powers to caution or reprimand a practitioner or to impose conditions it considers appropriate on the practitioner's registration are found in s 149A, as set out below: "149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner— (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal." Tribunal's power to award costs 1. Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides: "13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013." The applicable legal principles Importance of the subject matter of the complaint 1. Section 149 of the National Law has been described as the "jurisdictional gateway" for the Tribunal to exercise its disciplinary powers, and the important aspect of the complaint is its "subject matter": Liu v Health Care Complaints Commission [2018] NSWSC 315 at [34] per Wilson J. Disciplinary orders are protective, and not punitive 1. Disciplinary orders are made under the National Law for the protection of the public and not for the purpose of punishing the practitioner, as pointed out by the High Court of Australia in the context of the disbarment of a legal practitioner in Clyne v NSW Bar Association (1960) 104 CLR 186 ('Clyne') at [201]-[202]: "Although it is sometimes referred to as the 'penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege." 1. The decision in Clyne has been adopted in a number of Tribunal decisions including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 ('Liu') at [42] and Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 ('Meneghetti') at [97]. 2. Having said that, orders may be punitive in their effect as recognised by the New South Wales Court of Appeal. In Lee v Health Care Complaints Commission [2012] NSWCA 80 ('Lee') at [19]-[21], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the Tribunal's disciplinary powers: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1.The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2.That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3.The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." Maintenance of proper professional standards and protecting the public from similar misconduct 1. The objective of protecting the health and safety of the public also includes protecting the public from similar misconduct or incompetence of other practitioners, and upholding confidence in the standards of the profession. These objectives were emphasised in Health Care Complaints Commission v Do [2014] NSWCA 307 ('Do') at [35]: "[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." Maintaining ethical and professional standards 1. Protective orders arising from disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession: Meneghetti at [98] citing Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 ('Litchfield') at [637]. Maintaining public confidence in high standards of a profession 1. Protective orders serve to maintain public confidence in the high standards of the medical profession: Meneghetti at [98] citing Prakash v Health Care Complaints Commission [2006] NSWCA 153 ('Prakash') at [91]. Effect of deterrence 1. Protective orders also involve an element of deterrence, encouraging other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Meneghetti at [97] citing Prakash at [91]. Orders should not have more serious consequences than is reasonably necessary 1. Disciplinary orders should not have more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88]. "[88] … We acknowledge that no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the legislation: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]." Evaluation of the seriousness of the conduct when considering appropriate orders 1. An evaluation of the seriousness of the conduct and the nature and extent of the harm that might be caused if the conduct were to be repeated, is an appropriate consideration when imposing protective orders, as explained in Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]: "[123] The health and safety of the public is the paramount consideration and our task is protective not punitive. Any order designed to protect the public from a repeat of the conduct that is the subject of a complaint which has been found proven, requires an evaluation of the seriousness of that conduct and the nature and extent of any justifiably apprehended harm that might be caused if it were to be repeated. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose: NSW Bar Association v Meakes [2006] NSWCA 340 at [113]." The hearing: Evidence and submissions The practitioner's oral evidence 1. When asked to provide his reflections on the Incident and his conduct, the practitioner firstly expressed regret, acknowledging that he had a duty of care to the resident, and that he felt shame for what he had done. The practitioner said he had learned a lesson and that, after the Incident, he had tried to correct the situation, to seek support and corrective learning with continuing professional development (CPD). 2. Under cross-examination, he had no hesitation in admitting that he had not followed procedures, knowing that it was wrong at the time, and that he had been complacent. His evidence was that he had not been feeling well which led to his complacency, but acknowledged that was no excuse for his conduct. 3. On the subject of not feeling well, the practitioner said that although he didn't feel well, he still went to work because it is difficult for replacement staff to be allocated. He said that he felt he was able to work his shift. He also said that he sees his GP about stress and asks for a medical certificate if he needs to have a break. However, his evidence was that if he didn't feel well in the future, he would call in sick. 4. When questioned about the evidence he gave in the s 150 proceedings before the Council, that he had not been watching TV after finding the resident on the floor, the practitioner said that after putting the resident in a chair, he was also watching TV because he was with the resident. He said that during the s 150 hearing he was stressed and unable to think clearly, and that his best recollection at the time was that he was not watching TV. He said he had not deliberately lied in that hearing. 5. The practitioner readily admitted that he had lied about the Incident when first questioned by staff in the Facility because he was afraid of disciplinary action. When asked whether he had considered the consequences, he said that he was sorry for the resident because he had failed in his duty. He acknowledged that the resident's quality of life was more important than disciplinary action against him. He also said that, he would tell the truth in future. 6. In re-examination, the practitioner's evidence was that there were 120 residents in the Facility, and 70 in the village, with only one nurse on duty. His shift was due to start at 9.30pm. He had woken at around 8.30pm and called the agency to see if there was someone to replace him. 7. In response to a number of enquiries from the Tribunal Panel about his general routine whilst working night shifts, the practitioner asserted that he was naturally a "night person", saying that he is more awake at night which is why he prefers to work night and afternoon shifts. He has been working night shifts for more than 3 years because of his experience. 8. The Tribunal Panel asked the practitioner to articulate the nursing practice that he would engage in if faced with a similar circumstance in the future. His response included that he would assess the patient from head to toe for injury, haematomas and wounds, check vital signs, and make neurological observations. He added that he would seek help, including using a hoist to help move the patient, and document the incident. He also said that he would inform colleagues, hand over to incoming staff on the next shift, and inform the patient's family and treating doctor. The Commission's submissions 1. Referring to the practitioner's evidence, the Commission submitted that: 1. the practitioner felt genuine remorse and had frankly admitted that he was complacent in response to Patient A's fall, but had demonstrated limited insight into the contributory factors for his conduct; 2. the evidence as to whether the practitioner felt unwell or tired and the stress he experienced if a replacement staff member could not be found, together with uncertainty in his evidence as to how he would approach a similar situation differently in future, indicates the need for his return to practice to be supported in order to meet those challenges; 3. the practitioner tended to focus on the consequences to him of his conduct rather than the consequences to the patient, and fear of disciplinary action drove him to be deliberately untruthful (the subject matter of Complaint Two). 1. There was no suggestion by the Commission that the practitioner intentionally caused harm, but the delay in Patient A receiving care because of the practitioner's lack of provision of quality care due to complacency and erroneously thinking it was part of the patient's behaviour to be on the floor, were matters of concern. 2. The Commission submitted that the practitioner's response to Patient A's fall and his disregard of procedures in place, coupled with his wilful lie in order to avoid disciplinary action, substantiates the need for protective conditions to be imposed when his suspension is lifted and he resumes practice. It was argued that protective conditions would support the practitioner and also give the Council visibility of his return to practice, ensuring the community has confidence that adequate oversight is in place to mitigate risk. Submissions on behalf of the practitioner 1. The key submission was that the practitioner's admission of the Complaint was sufficient for the Tribunal to exercise its disciplinary powers. 2. However, it was submitted that if the Tribunal considered it is appropriate for conditions to be imposed on the practitioner's registration, they should be limited to those that are only absolutely necessary. It was contended that lengthy conditions create a barrier against a practitioner's return to practice. 3. In written submissions, it was contended that the outcome for the practitioner 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]. 4. It was contended that the practitioner had been unfailingly honest in his evidence, and had demonstrated insight into the contributory factors to his conduct by acknowledging that he had become complacent after working on night shift for a long time and not feeling well at the time. It was further contended that, nonetheless, the practitioner had demonstrated commitment to his work by 'pushing on' despite not feeling well, and that this is common in the culture of the nursing profession. 5. It was submitted that the Tribunal should take into account that the practitioner had taken steps to remedy issues in his practice including the completion of substantial and relevant education, particularly in circumstances where he had not been working as a registered nurse. 6. It was further submitted that, by being able to return to clinical practice, the practitioner could implement what he has learned through education, reflection and the disciplinary process. Consideration Issue: The Pleadings 1. As noted in the introduction, an issue regarding particular 4 of Complaint One is no longer pressed by the Commission. The only outstanding issue regarding the pleadings would appear to concern the application and effect of particular 5 with respect to Complaint One. 2. The respondent's position is that Particulars 4 and 5 are not appropriately pleaded as particulars. 3. The Tribunal is not bound by the way in which a complaint is particularised since its role is to conduct an inquiry into a complaint, informed as it thinks necessary. In Liu v Health Care Complaints Commission [2018] NSWSC 315, the Supreme Court of New South Wales per Wilson J at [37] explained that: "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. The New South Wales Court of Appeal in Lucire v Health Care Complaints Commission [2011] NSWCA 99 ('Lucire') at [43] per Basten JA (McColl JA and Sackville AJA agreeing) referred to the uncertainty that can arise as a result of imprecise pleading since it is impossible to know the parameters of the case to be presented: "This form of [imprecise] pleading has been commented on by the Court on previous occasions: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [27]-[31]. It inevitably gives rise to a degree of uncertainty as to the precise matters relied upon by the complainant and it is impossible to know the parameters of the case to be presented. Furthermore, it is not possible for the Tribunal to deal with such a complaint by finding it proven or otherwise: it can only deal with the case particular by particular. Whether any particular which is upheld constitutes unsatisfactory professional conduct, individually or in combination with other particulars, and whether any such particular constitutes professional misconduct, either individually or in combination with others, must be carefully identified in the findings of the Tribunal. As a result, the findings are likely to be complex, with a further risk that interested parties will not be able to identify readily and with precision what conclusions have been reached by the Tribunal and, where protective orders are made, to which breaches of conduct they relate." 1. The Court of Appeal noted further, in Lucire, at [45] per Basten JA, the risks associated with imprecision which can lead to false issues, evidence extending to matters which are not really relied upon, and confusion of the ultimate orders: "Failure to formulate the complaint in appropriate terms is not a matter of pedantry or formalism. Imprecision can readily lead to false issues, evidence extending to matters which are not really relied upon and, as already noted, confusion as to the effect of the ultimate orders." 1. The issue in this case is not so easily characterised as a lack of precision in the pleadings. Rather, the purpose and effect of pleading each of the "Standards for Practice" and the "Falls Management Procedure" as additional matters to be proved, appear to create false and unnecessary issues. 2. In the respondent's submission, those documents ought be regarded as evidence upon which the Commission relies to prove Particulars 1 to 3. 3. Section 39 of the National Law empowers National Boards to develop and approve codes and guidelines to provide guidance to the health practitioners it registers: "39 Codes and guidelines A National Board may develop and approve codes and guidelines— (a) to provide guidance to the health practitioners it registers; and (b) about other matters relevant to the exercise of its functions." 1. If a National Board develops a code or guideline, it must ensure there is wide-ranging consultation about its content: s 40 of the National Law. 2. Section 41 of the National Law then provides that a code or guideline approved by a National Board is admissible in proceedings under the National Law as evidence of what constitutes appropriate professional conduct or practice for the health profession: "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 [emphasis added] of what constitutes appropriate professional conduct or practice for the health profession." 1. Turning first to the "Standards for Practice" pleaded in Particular 4, we regard this document as a code or guideline as envisaged under s 39 of the National Law, and we assume that its content was the subject of wide-spread consultation as required under s 40 of the National Law. 2. We accept the submissions made on behalf of the practitioner with respect to the admissibility of the "Standards of Practice" as evidence of what constitutes appropriate professional conduct or practice for the nursing profession. It is a document to be used as evidence of what constitutes appropriate professional conduct or practice, to prove the matters pleaded in Particulars 1 to 3. 3. We now consider the "Falls Management Procedure" pleaded in Particular 5 as a separate obligation from the failures to undertake the care outlined in Particulars 1 to 3. On the material before the Tribunal, this procedure does not have the status of a code or guideline contemplated under s 41 of the National Law. It has application for the care of residents in the Facility and staff are required to adhere to it. The document stipulates: "The following procedure must [emphasis added] be followed after a fall has occurred. The RN in charge is responsible for the delegation of tasks." 1. Particulars 2(a) to (h) and Particulars 3(a) to (h) identify a number of matters that the practitioner failed to do and those matters are identical in substance to a number of tasks set out in the Procedure itself. The Commission asserted that following the Falls Management Procedure is conceptually distinct from the conduct in Particulars 1 to 3. This argument was not expanded upon with sufficient clarity to address how, conceptually, the practitioner's failure to follow the steps set out in a procedure was different from a number of the same failures specifically pleaded in Particulars 1 to 3. 2. The respondent's counter argument is that the procedure informs what is safe and appropriate professional nursing practice and is not a separate or discrete obligation from the failures to undertake the care pleaded in particulars 1 to 3. Having regard to the facts and evidence as presented in this case, we do not regard the Falls Management Procedure as one that creates an additional obligation upon the practitioner in terms of the National Law. 3. From an evidentiary perspective, we regard the Falls Management Procedure as a threshold or standard of nursing care expected at the Facility, against which the practitioner's conduct can be assessed. In the absence of a peer or expert report, the Procedure provides the evidentiary basis for establishing whether the practitioner's conduct and practice can be characterised as a "failure" as pleaded in Particulars 1 to 3. As assessment can then be made as to whether the conduct is "improper or unethical", to meet the test of s 139B(1)(l) of the National Law. Issue: Complaint One 1. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1) of the National Law in that he engaged in improper or unethical conduct relating to the practice or purported practice of nursing. 2. Particulars 1 to 3 set out the failures in the practitioner's conduct which are in essence that: 1. he failed to treat his attendance on Patient A as a possible serious fall in circumstances where he knew or ought to have known that the patient was a falls risk; 2. he failed to assess the patient and assess whether it was safe to move her from her position, failed to call for assistance and failed to notify anyone else working at the Facility at the time, failed to contact the resident's emergency contact person to advise them of her fall, failed to ensure ongoing monitoring of the patient and failed to complete an incident report; 3. he failed to document the Incident in the Facility's electronic management system which would have recorded the date, time and location of the resident's fall, the resident's appearance and response to the fall, the resident's temperature, pulse, respirations and blood pressure, any neurological observations and whether there was any evidence of injury to the resident. 1. In his Reply to the Commission's application for disciplinary findings, the respondent admitted particulars pleaded in paragraphs 1, 2 and 3 in relation to Complaint One, with the exception of sub-particular 2f (which was admitted with qualification). Sub-particular 2f pleaded that the practitioner failed to inform the medical practitioner on duty at the Facility of Patient A's fall, however there was no medical practitioner on duty at the time of the resident's fall and the immediate aftermath. 2. As already noted, under s 149 of National Law, the Tribunal may exercise its disciplinary powers if a complaint is proved or admitted. In this case, where the practitioner has made full and frank admissions in relation to Particulars 1 to 3 of Complaint One, the Tribunal is nonetheless required to make a finding in relation to the complaint of "unsatisfactory professional conduct". 3. Regardless of the admission, it is relevant to consider the practitioner's conduct and any statements of admission to determine whether the conduct meets the threshold of being "improper or unethical" to satisfy a finding of "unsatisfactory professional conduct". 4. The relevant Standards for Practice identified by the Commission in Particular 4 that we regard as evidence that the practitioner's conduct fell significantly below expectations are: 1. Standard 1.6: [The registered nurse is expected to] "maintain accurate, comprehensive and timely documentation of assessments, planning, decision-making, actions and evaluations"; 2. Standard 6.1: [The registered nurse is expected] "to provide comprehensive safe, quality practice to achieve agreed goals and outcomes that are responsive to the nursing needs of people"; 3. Standard 6.5: [The registered nurse is expected] "to practise in accordance with relevant nursing and health guidelines, standards, regulations and legislation". 1. In this case, the practitioner failed to treat Patient A's fall as a serious fall, failed to undertake the assessments and monitoring that would normally be undertaken, and failed to properly document the Incident. He entirely failed to provide safe, quality practice. His conduct did not meet any of the three identified standards under the Standards for Practice. 2. We make the same evaluation of the practitioner's conduct with respect to the Falls Management Procedure referred to in Particular 5. The practitioner failed entirely to undertake the tasks expected of him, having regard to his level of training and experience. 3. In addition to the practitioner's oral evidence in these proceedings, we have considered his written reply to the workplace allegations and the evidence he gave in the s 150 hearing before the Council. 4. In his reply of 8 November 2022 (one week after the Incident) to the workplace allegations, he apologised for not documenting matters but stated that he actually completed relevant assessments and made neurological observations of the patient: "I apologise for not documenting the relevant assessments. I am so sorry that it won't happen again. I did, however, complete the relevant assessment as I completed neuro obs for her [the resident]. [The resident] did not complain of any pain when I palpated her hips. There was no leg shortening at the time. [the resident] wanted to go back to her room. I transferred [the resident] to her wheelchair but she then moved back to her lounge chair. I realised that without documentation, I did not have any relevant notes." 1. In the s 150 hearing, the practitioner admitted that he did not follow the Facility's procedures when managing the resident's fall, did not complete the appropriate documentation and did not notify his colleagues. He said that he thought the resident was on the floor as a consequence of her behaviour, being a patient suffering from dementia, and unable to orient herself regarding her environment. He acknowledged that he was shocked when he saw the resident on the floor and he picked her up contrary to procedure and put her in a chair. He said that he knew it was not the right procedure and that he was not supposed to do what he did. 2. The practitioner acknowledged to the Council that he did not undertake a proper assessment, but asserted that he did undertake some observations on the resident, checking her from head to toe, palpating her hips and checking her blood pressure, pulse, saturation level, temperature, respiration and the glaucoma scale (with reference to the eyes being opened, the motor response, verbal response). He said that when he told the resident to hold his hand, she understood that direction and did so. He said that he asked her if she had any pain and the response appeared to be in the negative and the patient said she wanted to go back to bed. 3. However, no records of these assessments were provided by Mr Morato. 4. Also in the s 150 hearing, Mr Morato said that he had reported other incidents many times and that what occurred on 29 October 2022 was an exception. He said that it was a single incident and that this was the only time that he did not follow procedure. 5. He accepted full responsibility, saying in the s 150 hearing: "I'm responsible. I'm responsible for my actions. It's just me. I made a mistakes (sic). I own it up. I blame myself. I'm accountable for my action. No one else. It's myself on my own." 1. Accordingly, we are satisfied that the facts pleaded in Particulars 1 to 3 of Complaint One have been established. Issue: Complaint Two 1. With respect to Complaint Two, the practitioner admitted the particulars pleaded in paragraph numbered 1. When questioned on 1 November 2022 about the events that occurred on Saturday, 29 October 2022, he deliberately misled management by saying that there had been nothing to report due to no falls occurring. 2. In his response to the workplace investigation, he stated: "When the Clinical Care Manager phoned me on 1 November 2022, she specifically asked me if AIN'S reported there was any falls report last Friday or Saturday I replied 'no'. She mentioned that [the resident] was on bed and might suspected hip fracture. I willingly misled her that no falls occurred. I was in a state of anxious (sic) when I heard the news about the resident. I am so sorry for not being honest and the consequences for my employer, the resident and her family." 1. In his closing comments in the workplace investigation, the practitioner openly admitted his dishonesty: "I am really sorry about for (sic) my wrong conduct. I have learned an important lesson for me which I will not forget. I should always be honest. I got scared at the time and acted wrongly. I acted out of character." 1. In the hearing before the Council, Mr Morato admitted his mistakes. When challenged that he had not been truthful when questioned about the events on 29 October 2022, he said that he was "terrified" and "reactive" because he felt "uneasy" when he went home after his night shift on Sunday and had not told anyone about the fall. 2. On the evidence before us, we are satisfied that the facts pleaded in the particular of Complaint Two have been established. Issue: Whether the conduct was improper or unethical constituting unsatisfactory professional conduct 1. We turn now to consider whether, with respect to each of Complaint One and Complaint Two, the practitioner's conduct was improper or unethical conduct relating to the practice or purported practice of nursing, constituting unsatisfactory professional conduct under s 139B(1)(l) of the National Law. 2. The words "improper" and "unethical" are not defined in the National Law. The assessment of what constitutes "improper" or "unethical" conduct is based upon the ordinary meaning of those words. In the professional disciplinary context, there is some overlap between the two: Health Care Complaints Commission v Aref [2018] NSWCATOD 133 ('Aref') at [19]. 3. The word "improper" was considered by the High Court of Australia in Parker v Comptroller of Customs (2009) 83 ALJR 494; [2009] HCA 7 where French CJ stated: "… [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong." " 1. In Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151, the Tribunal considered whether a psychologist had engaged in improper or unethical conduct. The Tribunal said there was no reason to suppose that the dictionary definitions of "improper" and "unethical" should be given a different meaning in the National Law. Accordingly, the dictionary definition of the words was adopted at [56]: "The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral; 2. in contravention of some code of professional conduct." " 1. In Liu at [51], the Tribunal again considered the meaning of "improper" with reference to the Macquarie dictionary: "The Macquarie Dictionary defines improper as follows: 1.not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2.not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3.unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4.abnormal or irregular." 1. In professional disciplinary proceedings, the term "impropriety" is taken to mean a breach of the standards of conduct that would be expected of a person in the position of the alleged offender: Liu at [54]. 2. Again, in Liu at [52], the Tribunal considered the meaning of "unethical", with reference to the Macquarie dictionary: "Unethical is defined as follows. 1.contrary to moral precept; immoral. 2.in contravention of some code of professional conduct." 1. It is not necessary to exhaustively consider the meaning of "improper or unethical conduct" as it encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession: Liu at [55]. 2. The test of whether conduct is "improper" is an objective one: Liu at [54]. It is not necessary for the Tribunal to be satisfied that the conduct is intentional, to find that is "improper": Aref at [19]. 3. Applying an objective test, "improper" conduct includes conduct that is not in conformity with standards of professional conduct that would be expected by reasonable persons with knowledge of the duties, powers and authority of a person in the position of the practitioner: Aref at [20]. 4. The gravity of the conduct in question must be measured against the extent to which it departs from proper standards, and not by reference to the worst cases: Aref at [21], applying Litchfield at [638]. Complaint One 1. On any view, the practitioner's conduct with respect to Complaint One was abnormal, irregular and plainly wrong, and easily falls within the meaning of "improper". 2. The practitioner's conduct fell significantly below the standards of conduct expected of a practitioner with equivalent training and experience. 3. The seriousness of the conduct is aggravated by the fact that the practitioner knew the resident was vulnerable due to her age, cognitive diagnosis and assessment as being a falls risk, and he was responsible for her nursing care. 4. The practitioner's conduct has the potential to bring the nursing profession into disrepute and reduce public confidence in the profession and the standard of nursing care in aged care facilities generally. The treatment of vulnerable patients in aged care facilities is heavily scrutinised in the public arena. If details of his conduct were known in the community, it would likely cause damage to the reputation of the profession, and reduce public confidence in the profession and the Facility, and potentially other aged care facilities. 5. We therefore find that the practitioner's conduct relating to the practice or purported practice of nursing was improper. We find Complaint One, that the practitioner was guilty of unsatisfactory professional conduct, to be proven. Complaint Two 1. By his own admission, the practitioner knew that his conduct in providing false information about the Incident was wrong. It is clear, without needing to consider whether the practitioner had a consciousness of impropriety, that his conduct was dishonest, as well as being intentional and deliberate. 2. The practitioner's conduct was in breach of the professional behaviour and conduct expected of nurses to embody integrity and honesty. Honesty is an ethical value that reflects a person's truthfulness, sincerity and openness, yet the practitioner deliberately lied to avoid disciplinary sanctions, without considering the consequences for Patient A whose quality of life and life expectancy were negatively impacted by his failure to provide the quality of care required. The practitioner's conduct was thus, plainly, "unethical". 3. To the extent that, applying the analysis in Liu, the conduct can be described as "abnormal", "incorrect", "erroneous", "wrong", and "inappropriate for the occasion", it was also "improper". 4. We find that the practitioner's conduct was both "improper" and "unethical". 5. We therefore find Complaint Two, that the practitioner was guilty of unsatisfactory professional conduct, to be proven. Issue: Exercise of disciplinary powers 1. In the circumstances of this case, we have determined that it is appropriate to exercise disciplinary powers in the form of a reprimand and by imposing conditions on his registration. 2. In making that determination, we have considered all the material before us, including the practitioner's written and oral evidence, acceptance of his accountability for the Incident, the continuing education he has undertaken since being suspended, and the professional references provided in support of his professional expertise. Continuing Professional Development 1. At the date of the hearing, the practitioner had been suspended for a period of one year and four months. Since his suspension, he has been working as a disability carer, although not in the capacity of a registered nurse. He has undertaken a number of continuing professional development (CPD) courses during 2023 and January 2024, and completed around 65 hours of education in the following areas: 1. Registered Nurse Standards for Practice; 2. Code of Conduct for Nurses; 3. Falls Assessment and Management; 4. Recognition, assessment, and escalation for deterioration; 5. Clinical patient assessment (including vital signs, neurovascular observations); 6. Communication and documentation. 1. In our view, in giving his oral evidence, the practitioner demonstrated adequate knowledge of the procedure and standard of practice expected of him in a similar circumstance. He appears to have reflected on the Incident and appears to be knowledgeable on the quality of care to be provided, and the importance of following procedures, which may be reflective of the CPD he has undertaken since being suspended. Professional references 1. A reference was provided by Mr Wez Malabanan who had been Mr Morato's Senior Clinical Care Manager from January 2021 until September 2021 at the Facility. Mr Malabanan stated that he had received a copy of the Complaint against Mr Morato and had reviewed the particulars, but he had not discussed the specifics of the Complaint with the respondent. Based on his experience working with the respondent, Mr Malabanan considered Mr Morato to be a reliable and competent registered nurse. His reference was in the following terms: "During this period, Mr Morato demonstrated dedication and professionalism in his role. He exhibited a commitment to providing high-quality care to patients, showing compassion and empathy in his interactions. He also worked effectively within our healthcare team, contributing positively to the overall care and well-being of our residents. In terms of his professional capabilities, Mr Morato was knowledgeable and skilled in his role as a registered nurse. He maintained a high standard of clinical practice and consistently adhered to relevant guidelines and protocols." 1. Mr Malabanan's reference supports the practitioner's assertion that his conduct which was the subject of Complaint One appears to have been an isolated instance and was "out of character" for him. The practitioner has been observed by the Senior Clinical Care Manager to be competent and diligent, and trusted to adhere to relevant protocols in providing quality nursing care. 2. Another professional reference was provided by Ms Maryam Chikwanha in support of the practitioner. Ms Chikwanha was employed as a Clinical Director during the period from 31 August 2023 when Mr Morato was employed as a Support Worker at Frontier Lifestyle. Ms Chikwanha said that she had been informed by Mr Morato of the ongoing investigation in his previous role at the Facility. Her reference was in the following terms: "The qualities he displayed whilst on the job showed that he was hard working, reliable, competent and diligent. He was also very kind, confident and respectful of the participants. At no point whilst working with Calvin did I question his ability to provide good quality care nor did I witness any behaviour that would deem (sic) as dangerous or inappropriate according to company policy and standards." 1. Both referees attest to the practitioner's character as being respectful and compassionate towards patients. We have taken these references into account and given them a small amount of weight when considering the ambit of conditions to apply to his registration, to support his return to nursing. The practitioner's acceptance of his accountability 1. Mr Morato is extremely remorseful about his actions and took full accountability for his conduct. Issue: The Reprimand 1. The practitioner's conduct was unacceptable and should be publicly declared to be wrong, with a formal reprimand. 2. In denouncing the conduct, the reprimand will serve to: 1. deter other practitioners from making similar mistakes, encouraging them to recognise the importance of complying with professional standards and the risks of failing to do so; 2. maintain proper ethical and professional standards, both for the protection of the public but also for the protection of the nursing profession; 3. uphold public confidence in the quality of care and standards expected of the profession. 1. The terms of the reprimand are set out in Schedule A to these Reasons. Issue: Conditions to be imposed on the practitioner's registration 1. The practitioner's response to Patient A's fall and his disregard of procedures in place, coupled with his wilful lie to seek to avoid disciplinary action, substantiates the need for his return to practice to be supported in the form of conditions to be imposed on his registration. 2. In our view, the practitioner did not properly assess his wellness for duty on the evening in question, and exercised poor judgment in deciding that he was able to work despite not feeling well. This may be an indication of the chronic stress and exhaustion that may accompany the practice of nursing as is so often generally publicly reported. The fact that he called the agency to attempt to find a replacement nurse supports this proposition. 3. The imposition of appropriate conditions will give: 1. the Council visibility of the practitioner's return to practice, towards ensuring the community has confidence of adequate oversight to mitigate risk; 2. the practitioner further education and training in the areas specific to the identified risks; 3. the practitioner supervision and mentoring over the period of his reintroduction to practice, where he can deploy his training under practical circumstances. Proposed Revised Conditions (agreed between the parties) 1. After consultation with the Nursing and Midwifery Council of New South Wales, the Commission proposed a number of draft conditions to be imposed on the practitioner's registration. 2. On behalf of the respondent, the New South Wales Nurses and Midwives Association proposed a number of revisions to the Commission's draft conditions. We understand the revised conditions set out below represent the agreed position reached between the parties: Proposed Revised Conditions (agreed between the parties) "The following conditions are imposed pursuant to s. 149A (1) (b), and (f) of the Health Practitioner Regulation National Law (NSW) from the date of these orders. [1] To advise the Nursing and Midwifery Council of NSW in writing at least seven (7) days prior to changing the nature or place of practice. [2] To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of commencing employment, that the practitioner has provided a copy of the Tribunal decision to his nursing employer/s. [3] To only be employed as a nurse in circumstances where the employer has agreed to notify the Nursing and Midwifery Council of NSW of any breach of the conditions or unsafe practice, and exchange information with the Council related to compliance with the conditions. [4] The respondent must not: [a.] Be the nurse in charge of any shift, ward, or unit. [b.] Have supervisory responsibilities for any other nurse. [c.] Work as the sole practitioner on any shift, ward, or unit. [5] The respondent is to practice under the indirect supervision of a Registered Nurse in accordance with the Nursing and Midwifery Council of NSW regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. [a.] The respondent is to nominate a supervisor for approval by the Nursing and Midwifery Council of NSW within 14 days of commencing work as specified by the Nursing and Midwifery Council of NSW. [b.] The respondent is to authorise the approved supervisor to provide written reports to the Nursing and Midwifery Council of NSW at monthly intervals, or as specified by the Nursing and Midwifery Council. [c.] The supervisor must: [i.] Not have any conditions on his/her registration. [ii.] Be on-site and available for reasonable access to provide advice if required by the respondent; and [iii.] Able to check in on the respondent during a shift to ensure the responsibilities delegated to the respondent are being met. [6] To nominate an experienced Registered Nurse to act as his professional mentor for approval by Nursing and Midwifery Council of NSW in accordance with the Nursing and Midwifery Council of NSW's Compliance Policy- Mentor (as varied from time to time) and as subsequently determined by the appropriate review body. [a.] The mentoring must comprise a minimum of 6 sessions with each session being of 1 hour duration occurring over a 3-month period. [b.] At each mentoring meeting the practitioner is to include discussion of the following: [i.] Any issues arising from his transition back to nursing, such as staffing levels and support and training from managers. [ii.] Appropriate handover procedures. [iii.] Appropriate record-keeping. [iv.] Incident response and management. [v.] Self-care. [c.] To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct or personal wellbeing. [d.] To authorise the Nursing and Midwifery Council of NSW to provide approved mentors with a copy of the decision which led to the imposition of this condition. [7] To satisfactorily complete within 12 months of [date of decision] education approved by the Nursing and Midwifery Council: [a.] The practitioner must provide evidence to the Nursing and Midwifery Council of NSW of enrolment in approved courses on the following topics: [i.] Registered Nurse Standards for Practice. [ii.] Code of Conduct for Nurses. [iii.] Falls Assessment and Management. [iv.] Recognition, assessment, and escalation of deterioration. [v.] Clinical patient assessment (incl. vital signs A-G, GCS neurovascular observations). [vi.] Communication and documentation. [b.] Within one month of completing an approved course, the practitioner is to provide documentary evidence of satisfactory completion to the Council. [c.] The practitioner is to be responsible for any costs incurred in meeting this condition. [8] To be responsible for the cost associated with complying with the conditions. [9] These conditions may be altered, varied, or removed by the Nursing and Midwifery Council of NSW and the Nursing and Midwifery Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW). [10] Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia." 1. Having regard to ss 3 and 3A of the National Law and the principle that disciplinary orders should not have more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law, we are satisfied that the Proposed Revised Conditions address the need for supervision and mentoring, ongoing CPD requirements in the areas of risk identified, and review conditions. If followed, they will enable the practitioner to practice as a nurse to the standards expected without risk to the community. 2. Apart from replacing the word "respondent" with "practitioner" (for consistency), and inserting the words "The practitioner is" at the commencement of each of paragraphs numbered [1], [2], [3], [6], [6c], [6[d], [7] and [8], the conditions agreed in substance between the parties to apply to the practitioner's registration, are set out in Schedule B to these Reasons. Issue: Costs 1. Under clause 13(1) of Schedule 5D in the National Law, the Tribunal has the power to order the respondent to pay the Commission's costs. Under clause 13(3A) of Schedule 5D, the Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the applicable legal costs legislation or on any other basis. 2. The Court of Appeal has affirmed that, as a general rule, costs of proceedings before the Tribunal should follow the event (that is, the successful party is entitled to receive their costs), and costs are not intended to penalise an unsuccessful party: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44]. 3. The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40] applied by the Tribunal in several decisions including HCCC v CSM [2016] NSWCATOD 125 at [98] and HCCC v Brush (No. 2) [2015] NSWCATOD 154 at [9]. 4. As previously noted, the Commission no longer seeks an order that the respondent pays the Commission's costs. The respondent seeks an order that each party pays their own costs of these proceedings. 5. Nonetheless, without asserting that there has been disentitling conduct by the Commission, the respondent made submissions on a technical point concerning referral of the prosecution of a complaint under s 90(B)(1) of the Health Care Complaints Act 1993. On 30 October 2023, the definition of "disciplinary body" in that Act was amended with the effect that a complaint could be referred to either "a responsible tribunal" or "a Professional Standards Committee". 6. In written submissions in reply, the Commission asserted that, at the time that the determination to prosecute was made (27 October 2023), the Director of Proceedings did not have the power to refer a prosecution to any disciplinary body except the Tribunal. 7. Clearly, by the time the Complaint was signed (on 24 November 2023), the legislative amendments were in force such that the prosecution could have been referred to either this Tribunal or a Professional Standards Committee. The respondent acknowledged that the Director of Proceedings is not bound to consult within any specified timeframe regarding a determination to prosecute a complaint. 8. In our view, there was no 'disentitling conduct' on the Commission's part. Indeed, the respondent also acknowledged that the matter was brought before the Tribunal "unusually quickly". On that basis, there remains no issue impacting on our decision to order each party to pay their own costs of the proceedings. ORDERS 1. Accordingly, we make the following orders: 1. Pursuant to s 149(A)(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimanded the practitioner for his improper conduct relating to the practice of nursing and his improper and unethical conduct in providing false and misleading information relating to the practice of nursing as particularised in Schedule A to these Reasons. 2. Pursuant to s 149(A)(1)(b) of the Health Practitioner Regulation National Law, the conditions set out in Schedule B to these Reasons are imposed on the practitioner's registration. 3. Each party is to pay their own costs of the proceedings. ********** Schedule A-B (90813, pdf) 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: 13 September 2024