Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ahuja (No. 2) [2024] NSWCATOD 177 Hearing dates: 14 October 2024 Date of orders: 04 November 2024 Decision date: 04 November 2024 Jurisdiction: Occupational Division Before: H J Dixon SC, Senior Member S Smiltnieks, Senior Member A Cummins, Senior Member F Taylor, General Member Decision: (1) Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) the registration of Ms Sudiksha Ahuja as an Enrolled Nurse is cancelled with a non-review period of 12 months. (2) Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW) Ms Sudiksha Ahuja is prohibited from providing health services as defined in s 4 of the Health Care Complaints Act 1993 for a period of 12 months. (3) The Respondent is to pay the costs of the Applicant pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) as agreed or assessed. Catchwords: OCCUPATIONS – nursing in aged care – Stage II – improper conduct towards resident in facility – unsatisfactory professional conduct – professional misconduct – necessary protective orders – costs to follow event Legislation Cited: Civil and Administrative Tribunal Act, s 64 Health Care Complaints Act 1993, s 4 Health Practitioner Regulation National Law (NSW), ss 139B, 149C, Sch 5D cl 13 Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; 106 NSWLR 383 Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Luque [2019] NSWCATOD 129 Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 Health Care Complaints Commission v Moses (No 2) [2019] NSWCATOD 190 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complains Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 Health Care Complaints Commission v Tran [2021] NSWCATOD 82 Health Care Complaints Commission v Yildirim (No 2) [2022] NSWCATOD 100 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Shelley v Nurses and Midwives Tribunal of NSW & Anor [2007] NSWSC 1240 Texts Cited: None Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Sudiksha Ahuja (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) NSW Nurses and Midwives' Association (Respondent) File Number(s): 2023/00266005 Publication restriction: It is noted that on 23 August 2024 the Tribunal made an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act prohibiting the disclosure of the names of persons identified in the order. reasons for decision 1. On 23 August 2024, the Tribunal handed down its decision in the Stage I hearing of the application dated 17 August 2023 and made orders that the Respondent was guilty of unsatisfactory professional conduct and professional misconduct (see [2024] NSWCATOD 128) ("Reasons"). 2. These reasons deal with Stage II of the application to consider what protective orders, if any, should be made as a result of the established conduct and must be read in conjunction with the Reasons published on 23 August 2024. 3. At the commencement of this Stage II hearing we were advised that the Respondent would not be attending by reason of her current medical conditions. The Respondent resides in Victoria and based on medical advice should not be travelling interstate. 4. We gave the Respondent's Solicitor the opportunity to obtain instructions as to whether the Respondent wished to make an application for an adjustment to enable her to attend a hearing at a later date. The Respondent did not wish to make that application and we proceeded in her absence whilst she was represented by her Solicitor. Protective Orders Sought 1. The Applicant seeks an order pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) ("the National Law") that the Respondent's registration be cancelled with a non-review period of 6 to 12 months in that she has been found guilty of professional misconduct. 2. The Applicant also seeks a non-review period of 6 to 12 months, and further a prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as in the non-review period imposed. 3. The Applicant also seeks an order under clause 13 of Schedule 5D of the National Law that the Respondent pays its costs as agreed or assessed. 4. The Respondent submitted that a reprimand and a period of suspension of 6 to 12 months would meet the protective purpose of the National Law. The Respondent opposed the making of a protective order. 5. The Tribunal must therefore deal with the following issues: 1. whether the conduct of the Respondent as found in the Reasons justify cancellation of her registration ("the cancellation issue"); 2. in the event that a cancellation order is to be made, whether it should be accompanied with a non-review period, and the length of such a period ("the non-review period issue"); and 3. whether a prohibition order is, in the circumstances, warranted ("the prohibition order issue"). Background 1. As the Reasons reveal, the Tribunal was satisfied that the Respondent was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in improper or unethical conduct relating to the practice of nursing in respect of her conduct on 9 December 2021 directed at a vulnerable patient in a residential aged care facility (Complaint 1). 2. The Tribunal also found that the Respondent was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that in or around 2 March 2022 she engaged in improper or unethical conduct relating to the practice of nursing when she attempted to collude with another practitioner in respect of the investigation into her alleged conduct on 9 December 2021 carried out by the Murrumbidgee Local Health District (Complaint 2). 3. The Tribunal was satisfied that the conduct the subject of the complaints, as established, was sufficiently serious to amount to professional misconduct under the National Law. Policy and Key Protective Principles 1. Having found that the Complaints were established, and that the Respondent is guilty of professional misconduct, the Tribunal's power to make protective orders under s 149C of the National Law in the form of suspension or cancellation of registration is enlivened. 2. In exercising its powers, the Tribunal must observe the objectives and guiding principles of the National Law, the paramount consideration being to ensure the protection of the health and safety of the public (s 3B, formerly s 3A). 3. In Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do"), Meagher JA (with whom Basten and Emmett JJA agreed) held at [35]: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. The protective objectives under the National Law thus encompass considerations of specific and general deterrence, as well as upholding public confidence in the standards of the profession, including by denouncing misconduct as unacceptable (Do at [35] and [39]). 2. The relevant principles to be applied have also been set out in a number of decisions of the Tribunal. For example, in Health Care Complaints Commission v Duggan [2015] NSWCATOD 142, the Tribunal approached the issue as follows at [42]-[43]: "The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions. In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection": (a) Any need to protect the public against further misconduct by the practitioner; (b) The need to protect the public through general deterrence (of other practitioners); (c) The need to protect the public by reinforcing high professional standard and denouncing transgressions; (d) The maintenance of public confidence in the profession; (e) The desirability of making available to the public any special skills possessed by the practitioner." 1. In Health Care Complaints Commission v Bradley [2022] NSWCATOD 47, the relevant principles, as stated on many occasions by earlier decisions of the Tribunal considering the making of protective orders, were stated to include the following (at [101]): "(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 of standards of the profession, 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 Wales 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 judgment: 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]; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]-[114];" 1. We bear in mind in this case the principles set out at (7) that no order should be made which has more serious consequences for the practitioner than is reasonably necessary for the protective purpose of the Tribunal's jurisdiction: see also Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to). 2. The finding of professional misconduct exposes the Respondent to the possibility of her registration being suspended or cancelled, but that outcome is not automatic: Chen v Health Care Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 at [14] per Basten JA. The Tribunal's choice of appropriate order following a finding of professional misconduct involves a "matter of degree and judgment" of seriousness sufficient to warrant deregistration (see, e.g. Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]). 3. In Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65, the Tribunal considered the question of denouncement of misconduct and the impact of a reprimand. It was held at [104]-[105]: "The real issue is whether a suspension, as opposed to a reprimand, adequately serves to denounce Dr Kesserwani's conduct. A reprimand is self-evidently a "lighter" disciplinary measure than suspension. There is no doubt that Dr Kesserwani's conduct ought to be denounced. These proceedings are, in effect, denunciatory. An order to issue Dr Kesserwani with a reprimand, which will appear on the public record of his registration maintained by the Australian Health Practitioner Regulation Agency, also serves to denounce his conduct. While in exercising the power to make disciplinary orders, the protection of the health and safety of the public is the paramount consideration, nonetheless the form of order must be proportionate (which takes into account the public interest) and individualised (which takes into account the actual person upon whom measures are imposed). In our view, the orders proposed by Dr Kesserwani serve to denounce his conduct and, in addition, take into account the objective and subjective features of this case. In addition, they take into account that four and a half years have now passed since the Council imposed a series of conditions on Dr Kesserwani's registration with which he has fully complied." 1. Further, in Health Care Complaints Commission v Yildirim (No 2) [2022] NSWCATOD 100, the Tribunal drew attention to the need to also take into account an individualised and proportioned approach at [17]: "There can be no argument that Mr Yildrim's conduct must be denounced. The issue is whether as the Commission implicitly submits, any order short of cancellation, fails to achieve that objective. In exercising the power to make protective orders, the form of order must be proportionate (which takes into account the public interest) and individualised (which takes into account the actual person upon whom measures are imposed): Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [105]. We have concluded that in the circumstances of this case, cancellation would amount to what Basten JA described in Chen at [14], as an "unreasonable or disproportionate exercise of the power" conferred on the Tribunal." 1. In Health Care Complains Commission v Robinson [2022] NSWCA 164 it was held at [31] (per Kirk JA): "The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. The conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances": Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. Thus the Tribunal can make an order less severe than suspension or cancellation even though it has previously found that the conduct was sufficiently serious to justify such a remedy: Karalasingham at [67]; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [65]; note similarly EFA at [163]-[164]. For example, it may be that the subjective circumstances of the practitioner militate against such an order: note EFA at [171]-[172]." 1. The reference to EFA in that passage is a reference to the decision of the Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; 106 NSWLR 383. 2. The Applicant stressed the relevant principles which the Tribunal should apply, namely, the maintenance of standards of a profession, preservation of public confidence in the profession and the protection of the community, the latter to be achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered. It also emphasised the principle of general deterrence and the purpose of protecting the public from similar misconduct of others. It contended that asserted reformation of a practitioner's character is exceptional and requires clear proof. 3. The Applicant then also emphasised the approach as summarised by the Tribunal in Health Care Complaints Commission v Moses (No 2) [2019] NSWCATOD 190 at [28]: "It is well-established that the orders which this Tribunal is empowered to make consequent upon a finding of professional misconduct are protective in nature, and consistent with the provisions of the National Law which are directed to the protection of the public from the misconduct of health practitioners. There are four elements to the consideration of what are appropriate protective orders. The first is the protection of the public from the conduct of the practitioner. The second if the deterrent effect which a protective order will have on the future conduct of a practitioner. The third is the deterrent effect which such an order will have on the conduct of other practitioners, so as to dissuade them from engaging in the same or similar misconduct. The fourth element is the enhancement of the integrity of the practitioner's profession and the confidence that the public may have in the practise of that profession." Respondent's Evidence 1. The Respondent tendered without objection two medical reports, a Facebook message, Google Search Results of the Respondent, media articles published of her conduct the subject of the Tribunal's decision in Stage I and copies of numerous online comments directed at the Respondent following publication of the Reasons. 2. The Respondent did not provide a statement or other documentary evidence providing details of her work since 9 December 2021, or demonstrating insight, contrition or steps taken since then to ensure that she is now capable of practising at a standard expected of an Enrolled Nurse. Cancellation Issue 1. The Applicant supported its claim for cancellation on the following grounds: 1. The need for denouncement in circumstances where the Respondent was entrusted with the care of aged and vulnerable patients, her conduct as found by the Tribunal was deliberately aimed at a vulnerable patient and caused agitation and distress and was thus the antithesis of the standards required of a practitioner in such an environment. 2. Secondly, the Tribunal cannot be satisfied that the Respondent has demonstrated genuine insight into her conduct in circumstances where both before and at the Tribunal hearing in Stage I she attempted to minimise her conduct, at all times denied that the conduct complained of was unsatisfactory or unprofessional conduct or professional misconduct and did not present any evidence to the Tribunal accepting responsibility for her conduct. 3. Thirdly, the Tribunal cannot be satisfied that the Respondent's character is truly reformed arguing that the Respondent must have known that her conduct was wrong and had the potential to cause harm. She was not open and frank with those enquiring as to what occurred. Further, the Applicant relies on the collusive conduct the subject of Complaint 2 to seek to misrepresent what in fact occurred and further that a number of her answers and explanations given as to what in fact occurred were not accepted by the Tribunal and were inconsistent with the evidence of other witnesses. 4. Fourthly, the Tribunal cannot be satisfied that the Respondent has completed what is said to be "meaningful rehabilitation" in circumstances where the Respondent had acknowledged prior to the hearing in Stage I that she would benefit from further education. During the investigative process the Respondent did, according to her Solicitors, indicate that she had undertaken various dementia support courses and would continue to seek out further education in this area but the Respondent provided no evidence to the Tribunal as to the completion of such training, or the contents of the courses said to have been undertaken. The Applicant argued that it was unclear whether further education would effectively minimise the risk of further misconduct in the future given that the Respondent had, prior to the incident, already completed a Diploma of Nursing, was aware of the Code of Conduct applicable to her practice and had learned about Doll Diversion Therapy. 5. Fifthly, cancellation was needed to deter other practitioners from similar misconduct and to uphold the high professional standards in the profession in circumstances where the conduct was a serious departure from the standards expected of an Enrolled Nurse which has the potential to bring the profession into disrespect. 1. The Respondent argued in summary that the suspension, together with a reprimand, would be the appropriate protective order: 1. In relation to the gravity of the conduct, it was a one-off aberrant occurrence and there was no history of such behaviour on an ongoing basis. The Tribunal should view the conduct as less serious as, for example, a physical assault on a patient. 2. The trauma experienced by the patient by reason of this conduct was of relative short duration. 3. The collusion found by the Tribunal should be seen as a polite request not accompanied by a threat or demands and therefore on the lower end of seriousness. 4. The Respondent had been subjected to a barrage of online abusive, and in some cases crude posts by many persons across the country and from overseas following the publication of the Reasons. The Respondent pointed to a brief psychology report and argued that she was greatly affected by the media coverage resulting from the Tribunal decision and suffers from the feelings of anxiety as a result. The decision of the Tribunal in Stage I, and the impact on the Respondent resulting from the widely publicised decision, should be taken into account by the Tribunal in its consideration of the need for specific deterrence. The impact on the Respondent must have had a sobering effect particularly in circumstances where the online reporting of the Tribunal's decision (and all the abusive responses directed at the Respondent) would be on the record forever. 1. In those circumstances, cancellation plus a reprimand would meet the protected purpose of the Tribunal's discretion. Cancellation 1. We accept the Applicant's submission that the factors outlined above in support of the claim for cancellation of the Respondent's registration warrant cancellation. 2. The misconduct being intentional and directed at a person who was most vulnerable was of a sufficiently serious nature to justify cancellation or suspension. 3. Although the findings and the Tribunal's Reasons amounted to strong denouncement of the Respondent's conduct, we are of the view that cancellation will reinforce the position. Cancellation will be a further public statement of the unacceptability of the Respondent's conduct in the particular environment in which she was working with frail and very vulnerable patients in care. 4. An order short of cancellation in the circumstances of this case will not, in our view, achieve the objective of strong denouncement. We recognise that the Reasons and findings have rendered the Respondent subject to public online criticism and abuse. It is regrettable that the Respondent has been subjected to such abuse in this form. We accept that the comments directed at the Respondent will no doubt have had a sobering effect on her and others who practise with a duty of care owed to vulnerable aged patients. However, we do not think that it is for members of the public, some of whom are based overseas with no immediate recognisable interest in the matter, to supplant the Tribunal's role in denouncing the conduct. 5. We accept that the Complaints stem from conduct on 9 December 2021 and the related conduct on 2 March 2022 and were, in a sense, one off. Practitioners can make a mistake, or exercise poor judgment. Whether the mistake or poor judgment warrants cancellation must, however, be examined by reference to acceptance and awareness of the wrongfulness of the conduct by the practitioner and measures taken to avoid such conduct in the future. 6. Although the Respondent showed glimpses of insight, understanding and remorse in her responses to the MLHD investigation (Reasons at [114], [115] and [118]) the genuineness of those responses could not be tested before us and in our view do not go far enough. Those statements also have to be considered in light of other statements. 7. It is significant that in the Stage I hearing the Respondent still tried to justify her conduct on 9 December 2021 on the basis that what she and the AIN-B were doing had some legitimate purpose, including of entertaining the residents in the facility. That approach does not readily reflect genuine acceptance of the wrongfulness of the conduct. 8. Although the Respondent's current personal circumstances prevented her from attending the hearing, the absence of evidence from her as to genuine insight in the circumstances outlined by the Applicant leads us to conclude that we cannot be satisfied that the Respondent has fully come to grips with the seriousness of her conduct, and the level of departure from acceptable standards of practice. The lack of evidence of insight adds to a risk of conduct in the future below acceptable standards. 9. According to a submission made on behalf of the Respondent to the Health Care Complaints Commission Investigating Officer dated 25 August 2022 the Respondent did undertake various dementia support courses since the complaints were raised against her. The details of the contents of the courses are not before us. We also do not have evidence from the Respondent herself as to what she learnt from the courses and if, and how, they have assisted her in reforming her conduct. 10. The absence of evidence or details of what the Respondent has done to achieve meaningful change in her practice, or is doing to achieve meaningful change or rehabilitation to ensure her future conduct meets the requisite standards also weighs in favour of cancellation. The misconduct dates back to 2021 and early 2022. The Respondent has continued to work in nursing since then. From around July 2022 the Respondent did work as a part-time enrolled nurse in aged care in Victoria and resigned from her last role on 29 August 2024. The Respondent has not provided evidence of satisfactory performance in her subsequent employment following her dismissal from the facilities where the offending conduct occurred. 11. Further, specific and general deterrence are important factors in favour of cancellation in this case. The message to the Respondent, and to other practitioners, must be that the conduct as found is the antithesis of the standard required of health professionals owing a duty of care to patients, particularly those who may be frail and challenged physically or mentally. The conduct was substantially below the standard expected of an Enrolled Nurse. 12. In our view, the four elements to be considered by the Tribunal as identified in Health Care Complaints Commission v Moses (No 2) quoted above are satisfied in this case and each supports cancellation. 13. We do not accept the Respondent's submission to view the seriousness of the conduct in comparison with physical assault, or the absence of threats in relation to the threat of collusion. In our view, that is not an appropriate measure of judging the seriousness of what in fact occurred and the impact on the patients in the facility. 14. Accordingly, we are satisfied that the Respondent's registration as a registered health practitioner should be cancelled. Non-Review Period Issue 1. The purpose of a non-review period is to protect the public. 2. The Tribunal is permitted by s 149C(7) of the National Law to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order (Chen v Health Care Complaints Commission [2017] NSWCA 186 at [88] per Payne JA, Basten and Leeming JJA agreeing). 3. The Applicant submitted that a non-review period of 6 to 12 months would be to protect the health and safety of the public. It submitted that fixing a non-review period does not lend itself to an arithmetical process. It is a process of instinctive synthesis in which relevant factors are identified and then weighed as a whole using the specialist experience and knowledge of the Tribunal (see Shelley v Nurses and Midwives Tribunal of NSW & Anor [2007] NSWSC 1240 at [37] – [39]). 4. As to setting the period in which an application for re-registration is prohibited the Tribunal in Health Care Complaints Commission v Luque [2019] NSWCATOD 129 at [94] ("Luque") noted: "The setting of a non-review period is not to punish the practitioner but to protect the public. NSW Court of Appeal jurisprudence has indicated that the fixing of a period of non-review has a 'twofold operation' in that it firstly indicates a minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and secondly it holds open to the practitioner the possibility of return to the profession at a later time: Chen v HCCC [2017] NSWCA 186; HCCC v Do [2014] NSWCA 307." 1. The Applicant submitted that a period of 6 to 12 months non-review period is needed to send a clear message of denouncement of the Respondent's proven professional misconduct and will allow the Respondent further time to demonstrate whether she has gained genuine insight, complete relevant rehabilitation and demonstrate reformation of character so she can practise honestly and ethically as required by the applicable Code of Conduct. Further, such a period will act as a deterrent to other members of the profession and maintain public confidence and professional standards. 2. The Respondent's position is effectively that there should only be a suspension of 6 to 12 months and should be preferred by the Tribunal to allow the Respondent rehabilitation and a suitable period away from the profession. 3. The difficulty with the Respondent's position is that at the expiry of a period of suspension there is no need for any further evaluation as to whether the Respondent has demonstrated the necessary insight, rehabilitation and full acceptance of her conduct. The Tribunal currently does not have the requisite confidence in respect of those issues to allow the Respondent to continue practising at the end of a suspension period without further evaluation. There is insufficient evidence before us to form a view that at the end of a period of suspension the position will have changed. 4. The Respondent did argue that suspension for a period of 6 to 12 months would allow reflection, encourage the Respondent to seek mentoring, education in relation to care of the elderly, and standards of ethics. 5. The mistakes and poor judgment exercised by the Respondent do not mean that she cannot learn to avoid repeating the mistakes in the future, or exercise better judgment. 6. The fact that the Respondent made the mistakes and exercised poor judgment also does not mean that she cannot again, in the future, be registered to practice if she is able to demonstrate that she has learnt and is unlikely to ever repeat the conduct the subject of the Complaints. 7. We think that a period longer than 6 months will achieve the balance and dual purpose identified in Luque quoted above. The period does hold open to the practitioner the possibility of return to the profession at a later time. 8. In our view, a non-review period of 12 months is appropriate in this case. 9. The orders are thus, in our view, not unreasonable or disproportionate. The orders are reasonably necessary to protect the health and safety of the public. 10. The Tribunal clearly cannot impose on the Respondent any obligation to take such steps as are necessary in order to achieve the desired standards required of her. We, however, encourage the Respondent during the non-review period to reflect further on her conduct and actively undertake measures to allow her to meet the requisite standards when applying for registration at the end of the non-review period if that is the course she wishes to take. Prohibition Order 1. The Applicant seeks a prohibition order under s 149C(5) of the National Law. The Tribunal has a discretion to make such an order when it suspends or cancels the practitioner's registration and is satisfied that the practitioner poses a "substantial risk" to the health of members of the public. 2. As s 149C(5) makes clear, the Tribunal's satisfaction must be that the Respondent poses a substantial risk. 3. The phrase "substantial risk" is not defined in the National Law and has been considered by the Tribunal as a risk that is material and real or apparent on the evidence, and not a risk that is without substance or speculative (see, for example, Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [18]). 4. A prohibition order should only be made where there is some basis for the Tribunal's satisfaction that there is a possibility that the practitioner will engage in the provision of unregistered health services and thereby place the public at substantial risk through so doing. 5. It should also be borne in mind that a prohibition order ensures that the protective purpose of cancellation of registration is not significantly undermined. 6. In the present case, the Tribunal is informed that as of September of this year the Respondent was seeking employment in nursing work. This was, of course, after the publication of the Reasons. 7. In relation to this issue, we find that: 1. The Respondent is currently still seeking work in nursing. 2. Although there is no evidence of the type of work the Respondent is seeking, in our experience, a nurse whose registration has been cancelled may well seek work in aged care and disability sectors including in some instances in a patient's own home with few safeguards or oversight that would otherwise be the case. Such work will inevitably involve the provision of health services as defined in s 4 of the Health Care Complaints Act 1993. 3. The Respondent has not assured the Tribunal that she would make full disclosure to an employer of the extent of her misconduct and findings of the Tribunal so as to allow appropriate supervisory mechanisms to be put in place to protect the public. 4. The Respondent has not persuaded the Tribunal that she has full insight into her conduct and that she is now capable of practising honestly and ethically, and consistent with her duty of care, in regard to aged patients. 5. The absence of a prohibition order is likely to substantially undermine the protective purpose of the cancellation and non-review period which is to be imposed on the Respondent. 6. Accordingly, there is a real possibility that the Respondent will engage in the provision of unregistered health services. 1. Given the findings referred to above, we are satisfied that the Respondent poses a substantial risk as to the health and safety of members of the public and the test in s 149C(5)(a) of the National Law is satisfied. 2. A prohibition order will therefore be made to that effect for a period of 12 months. Costs 1. The Applicant seeks an order for costs. The Tribunal has the power to order that the practitioner is to pay its costs and the general rule is that costs will follow the event (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] – [46]). 2. The Respondent did not actively seek to oppose an order for costs. 3. In our view, there is no disentitling conduct on the part of the Applicant to warrant a departure from the general rule, and accordingly, there will be an order that the Respondent pay the Applicant's costs as agreed or assessed. Orders 1. Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) the registration of Ms Sudiksha Ahuja as an Enrolled Nurse is cancelled with a non-review period of 12 months. 2. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW) Ms Sudiksha Ahuja is prohibited from providing health services as defined in s 4 of the Health Care Complaints Act 1993 for a period of 12 months. 3. The Respondent is to pay the costs of the Applicant pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) as agreed or assessed. ********** 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: 04 November 2024