Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151 Hearing dates: 16-17 September 2014 Decision date: 18 December 2014 Jurisdiction: Occupational Division Before: I Newbrun, Principal Member, C Selkirk, Nurse Member, I McQualter, Nurse Member, S Liew, Lay Member Decision: 1. Pursuant to section 149C(4)(a) of the National Law, the tribunal decides that if Mr Hutchinson were still registered as an enrolled nurse it would have cancelled his registration on the register of health practitioners, in relation to enrolled nurses, kept by the Nursing and Midwifery Board of Australia and maintained by the Australian Health Practitioner Regulation Agency (AHPRA). 2.Pursuant to section 149C(4)(b) of the National Law, Mr Hutchinson is disqualified from being registered as an enrolled nurse or nurse in the nursing profession for a period of one year from the date of these orders. 3.Pursuant to section 149C(4)(c) of the National Law, the tribunal requires the Nursing and Midwifery Board of Australia to record, in the National Register kept by that Board, the fact that the Tribunal would have cancelled Mr Hutchinson's registration as an enrolled nurse. 4. The tribunal orders that at least one year elapse, from the date of these orders, before Mr Hutchinson may make an application for a review under s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law) to the Civil and Administrative Tribunal of New South Wales (NCAT) to be registered as an enrolled nurse or nurse on the register of health practitioners maintained by AHPRA. 5. The tribunal orders that Mr Hutchinson pay the HCCC's costs of these proceedings, as agreed or assessed. Catchwords: Administrative law-Civil and Administrative Tribunal (NSW)-Occupational division-Health Practitioner List-Complaint against enrolled nurse-Unsatisfactory professional conduct and professional misconduct-Commission of criminal offences for dishonesty-Failure to disclose criminal convictions, and making of false statements, to nurse registration authorities- Whether enrolled nurse unfit in the public interest to practice nursing-Whether enrolled nurse not a suitable person to hold registration as an enrolled nurse-Enrolled nurse disqualified from being registered as an enrolled nurse or nurse for one year. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a; Health Practitioner Regulation National Law Regulation; Nurses and Midwives Act 1991 NSW, now repealed; Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; Health Care Complaints Commission v Litchfield (1997) 41 NSW LR 630; A Solicitor v Council of the New South Wales Law Society [2004] HCA 1; Prothonotary of the Supreme Court of New South Wales v P [2003] NSW CA 320; NSW Bar Association v Cummins [2001] NSW CA 284; NSW Bar Association v Somosi [2001] NSW CA 285; Ex parte Tziniolis; Re Medical Practitioner's Act (1966) 67 SR (NSW) 448; Pillai v Messiter (No 2) (1989) 16 NSWLR 197; In Re Davis [1947] 75 CLR 409; Prothonotary of the Supreme Court of NSW v Hendrik Jan Van Es [2014] NSW CA 169; Health Care Complaints Commission v Wingate [2007] NSW CA 326; Council of the New South Wales Bar Association v Power [2008] NSW CA 135; Health Care Complaints Commission v Bartolazo [2013] NSWDT 4; Health Care Complaints Commission v Lee [2012] NSW CA 80; Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSW CA 102 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) David Hutchinson (Respondent) Representation: Health Care Complaints Commission (Applicant) D Hutchinson (Respondent in person) File Number(s): 1420093 Reasons for Decision Introduction 1This matter, before the Occupational Division, is an inquiry into a Complaint lodged with NCAT by the Health Care Complaints Commission (HCCC) against David Hutchinson, an Enrolled Nurse formerly registered under the Health Practitioner Regulation National Law (NSW) (the National Law). The panel of NCAT conducting the inquiry comprised a presiding member who is an Australian lawyer, a registered nurse member, a registered enrolled nurse and a lay member who is not a nurse. Below we set out the decisions of the tribunal, our reasons for those decisions and the orders made by the tribunal. 2What the tribunal decided * The tribunal found the subject-matter of complaints one, two, three, four and five in this matter proved and the complaints proved. * Pursuant to section 149C(4)(a) of the National Law, the tribunal decided that if Mr Hutchinson were still registered as an enrolled nurse it would have cancelled his registration on the register of health practitioners, in relation to enrolled nurses, kept by the Nursing and Midwifery Board of Australia and maintained by the Australian Health Practitioner Regulation Agency (AHPRA). * Pursuant to section 149C(4)(b) of the National Law, Mr Hutchinson is disqualified from being registered as an enrolled nurse or nurse in the nursing profession for a period of one year from the date of these orders. * Pursuant to section 149C(4)(c) of the National Law, the tribunal requires the Nursing and Midwifery Board of Australia to record, in the National Register kept by that Board, the fact that the Tribunal would have cancelled Mr Hutchinson's registration as an enrolled nurse. * The tribunal orders that at least one year elapse, from the date of these orders, before Mr Hutchinson may make an application for a review under s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law) to the Civil and Administrative Tribunal of New South Wales (NCAT) to be registered as an enrolled nurse or nurse on the register of health practitioners maintained by AHPRA. * The tribunal orders that Mr Hutchinson pay the HCCC's costs of these proceedings, as agreed or assessed. Issues arising at the commencement of the hearing 3Mr Hutchinson was not present at the hearing and nor did he make himself available by telephone. At no stage was he legally represented. The tribunal decided to proceed with the inquiry in his absence. The tribunal decided to proceed because it was satisfied that Mr Hutchinson had been given notice of the inquiry (see s 165J(3) of the National Law), he had been served with the HCCC's proposed evidence in relation to the Complaint, and he had failed to make himself available by telephone, so as to participate in the hearing. It is noted that on 15 September 2014 Mr Hutchinson informed the tribunal that he would be available to participate in the inquiry by telephone from Queensland. In this context it should be stated that the Queensland parole authorities had refused permission to Mr Hutchinson to travel to Sydney to attend the enquiry. The procedural history of these proceedings up to the hearing should now be set out. 4On 21 March 2014 a directions hearing was held. At that time Mr Hutchinson was serving a jail sentence at Cooma Correctional Centre and was due to be released on parole in early May 2014. During the directions hearing the tribunal spoke to Mr Hutchinson by telephone. Directions were made for the service of evidence by the parties and the matter was listed for further directions on 27 June 2014 to determine whether Mr Hutchinson could attend the hearing in person or would need to participate in the hearing by some other means. Mr Hutchinson stated that he anticipated that a condition of his parole was that he reside at his sister' s address at 51 Koochin Avenue, Nerangba, Queensland. The proceedings were listed for hearing on 14 and 15 July 2014 at 10 AM. 5On 11 June 2014 Mr Hutchinson sent an email to the tribunal stating that he was living in Bundaberg and was unable to get to Sydney for the hearing, and enquired whether there was "anywhere in Brisbane that I could do video link. I do not have access to Skype from home." Later that day the tribunal sent an email to Mr Hutchinson stating, inter-alia, "Parties are required to attend the hearing on 14 and 15 July in person, unless the Tribunal has given leave to appear by video link or phone." 6On 27 June 2014 a directions hearing was held. The tribunal spoke to Mr Hutchinson by telephone. At that time Mr Hutchinson was residing in Queensland. He informed the tribunal that he could not financially afford to travel to Sydney for the hearing scheduled on 14 and 15 July 2014. Mr Hutchinson informed the tribunal that the earliest he could attend the proceedings in Sydney would be 15 September 2014. By consent, and in the circumstances, the tribunal vacated the earlier hearing dates and the proceedings were set down for hearing on 16-18 September 2014. 7At the commencement of the enquiry on 16 September 2014, the HCCC tendered a signed statement of Ms J Dinihan, solicitor employed by the HCCC, dated 16 September 2014. In that statement, Ms Dinihan referred to the following events: * On 11 September 2014 the HCCC sent a letter to Mr Hutchinson, by registered post and also by email, referring to the three volumes of material that had previously been served on him by the HCCC, and requesting him to provide a written response to the HCCC prior to the hearing regarding any objections that he had to the material previously served and whether he would be seeking a two-stage hearing * On 11 September 2014 Mr Hutchinson sent an email to Ms Dinihan confirming receipt of the HCCC's letter of 11 September 2014 and stating, "Also to let you know that the parole board is not making a decision until tomorrow about my travel." * On 14 September 2014 Mr Hutchinson sent an email to Ms Dinihan stating, "On Friday afternoon at 5 PM, the Parole office phoned me to advise that my request to travel to NSW for the NCAT hearing was not granted. I will be seeing parole on Monday at 12 noon I will get a letter to fax to NCAT. I am not sure if the hearing can go ahead without me, I hope it can go ahead. Otherwise we will have to get another date, and because I have just lost over $500 in travel and with Christmas fast approaching it would be February or even after 15 May which is when my parole period ends." * On 15 September 2014, the HCCC sent an email to Mr Hutchinson advising, inter alia, that, "The hearing can proceed in your absence. However, if you decide that you want the hearing to go ahead in your absence, or for any reason you do not give evidence, the Commission will submit that without your evidence, the Tribunal may more comfortably draw inferences against you, find the complaints proved and make the orders sought by the Commission." 8On 15 September 2014 Mr Hutchinson sent an email to the tribunal registry stating, "I have a hearing starting on Tuesday 16th Sept, as you are aware I am on Parole. The parole board phoned me on Friday at 5 PM to advise that my request to travel was NOT approved. I am still in Bundaberg QLD. I don't know if the hearing can go ahead without me? I don't know what to do." 9In reply, later on 15 September 2014 the tribunal registry sent an email to Mr Hutchinson stating, "The hearing will proceed tomorrow as scheduled. As you are unable to attend in person, you may attend by phone. Please advise the tribunal of a contact number that you can be contacted on at 10 AM tomorrow." Later that day Mr Hutchinson sent an email to the tribunal registry, in reply, stating, "Thank you my number is 07 4159 0498." 10On 16 September 2014, in open court, the principal member of the tribunal sought to telephone Mr Hutchinson on the telephone number that he had previously provided the tribunal as his contact number. Mr Hutchinson did not answer the telephone call. The principal member left a voice recorded message requesting Mr Hutchinson to make contact with the tribunal as soon as possible. The principal member, again in open court, telephoned Mr Hutchinson's mother, in Queensland and made contact with her. She stated, inter-alia, that she had spoken to Mr Hutchinson on Sunday, 14 September 2014. The mother stated that she had ascertained that Mr Hutchinson had been in contact with his sister who resided in Brisbane. The mother stated that it was her opinion that Mr Hutchinson was depressed and she was concerned for his welfare. The principal member requested the mother to inform Mr Hutchinson that he should make contact with the tribunal as soon as possible. The tribunal then adjourned the enquiry until 10am, 17 September 2014. At no time during the course of the enquiry on 16-17 September 2014, following these phone calls, did Mr Hutchinson, nor anyone on his behalf, seek to make contact with the tribunal. 11On 16 September 2014, after the enquiry had been adjourned to the following day, Ms J Dinihan sent an email to Mr Hutchinson stating that the tribunal had adjourned the enquiry until 10am, 17 September 2014 and at that time, the tribunal was minded to proceed in his absence if he did not answer his previously provided telephone numbers. The tribunal registry also sent an email to Mr Hutchinson in similar terms to the email of Ms Dinihan. 12On 17 September 2014, at 1:37pm, Ms J Dinihan sent an email to Mr Hutchinson stating, "Please note that the Tribunal hearing commenced this morning. I attach a copy of submissions relied upon by the Health Care Complaints Commission. The Tribunal urges you to contact it by telephone on (02) 9377 5711 as soon as possible if you would like to participate in the hearing." 13At the conclusion of the hearing on 17 September 2014 the tribunal made these directions for the further conduct of the inquiry: (1)HCCC to file and serve any further written submissions by 26 September 2014. (2)The Respondent to file and serve any written submissions in reply by 17 October 2014. (3)Respondent to have liberty to apply to the Tribunal to make any application he deems fit by 17 October 2014. (4)HCCC to file and serve any written submissions in reply by 24 October 2014. (5)Liberty to apply, on 3 days notice, to either party, to restore matter to hearing list by 24 October 2014. 14In the above circumstances, the tribunal decided to proceed with the enquiry on an ex parte basis. It is noted that Mr Hutchinson at no time up to and including 17 October 2014 made any application to the Tribunal (see the 3rd direction made by the tribunal on 17 September 2014). The Amended Complaint and what has to be proved 15At the enquiry, on 17 September 2014, the HCCC was granted leave to file and rely upon an Amended Complaint, which had been served on Mr Hutchinson on 7 August 2014. The tribunal was satisfied that no prejudice could be caused to Mr Hutchinson by allowing the HCCC to proceed with that Amended Complaint, in view of the content of the HCCC's material previously served on Mr Hutchinson. 16The HCCC's Amended Complaint contained five separate complaints. Those complaints, including the particulars of each complaint, can be summarised as follows: * Complaint One: on 12 February 2013 Mr Hutchinson was convicted of four criminal offences within the State of New South Wales, being dishonesty offences carried out between 14 December 2007 and 3 May 2008, and on 15 April 2009 Mr Hutchinson was convicted of 64 counts of stealing within the state of Tasmania, carried out between 9 January 2009 and 14 March 2009. Under section 149C(1) (c) of the National Law the tribunal may suspend or cancel registration of a health practitioner if "the practitioner has been convicted of or made the subject of the criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practice the practitioner's profession." The HCCC submitted that under section 149C(1) (c) the circumstances of the above criminal offences rendered Mr Hutchinson unfit in the public interest to practice his profession of an enrolled nurse. * Complaint Two: Mr Hutchinson is guilty of unsatisfactory professional conduct, within the meaning of section 139B(1)(b) and (l) of the National Law, in that he contravened section 130 of the National Law and/or engaged in improper or unethical conduct relating to the practice or purported practice of nursing, by: - failing to disclose to the Nursing and Midwifery Board of Australia (the National Board) that he had been charged before a New South Wales Court on 18 May 2012 with offences punishable by 12 months imprisonment or more, within seven days of becoming aware of the fact; - by failing to disclose to the National Board that he had been convicted on 12 February 2013 with offences punishable by imprisonment (the NSW offences referred to above); - by failing to notify the former New South Wales Nurses and Midwives Board (the former Board) that he had been convicted of 64 counts of stealing on 15 April 2009 (the Tasmanian offences referred to above) within seven days after those convictions were recorded, in contravention of section 42B of the Nurses and Midwives Act 1991 (NSW) (now repealed) * Complaint Three: Mr Hutchinson is guilty of unsatisfactory professional conduct, within the meaning of section 139B(1)(a) and (l) of the National Law, in that he has: -engaged in conduct that demonstrates that the knowledge, skill or judgement possessed, or care exercised, by him in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; -engaged in improper or unethical conduct relating to the practice or purported practice of nursing. The particulars said to support this complaint related to false statements made by Mr Hutchinson in his application for registration and later annual return forms to the former Board in 2002, 2004, 2005, 2007, 2008, 2009, and false statements made by him to the Australian Health Practitioner Regulation Authority (AHPRA) and/or the National Board in his application for renewal of registration. The false statements related to Mr Hutchinson stating to these bodies that he had not been convicted of any offences and that he did not have a criminal history. * Complaint Four: Mr Hutchinson is guilty of professional misconduct within the meaning of section 139E of the National Law in that he has: -engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or -engaged in unsatisfactory professional conduct on a number of occasions which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. The particulars said to support this complaint repeated the particulars of Complaint Two and Three. * Complaint Five: Mr Hutchinson is not a suitable person to hold registration as a nurse under the National Law. The particulars said to support this complaint referred to Mr Hutchinson's previous dishonesty related convictions in New South Wales and Tasmania, together with certain dishonesty offences committed in Western Australia and New South Wales in 1991, and also referred to his prior failures to disclose, and false statements made, to the National Board and former Board in respect to the past criminal charges and convictions. 17The role of this tribunal is to consider the evidence put before us as it relates to the subject-matter of each of the complaints set out in the Amended Complaint. The HCCCC bears the onus of proof in relation to the five complaints referred to in the Amended Complaint. The standard of proof is the balance of probabilities but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. It is only if the tribunal has found that the subject-matter of a complaint has been proved that it may take action in relation to it and consider whether or not to make a protective order. 18Section 3A of the National Law provides that, " In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration". Section 3A reflects the common-law position as stated by the New South Wales Court of Appeal in Health Care Complaints Commission v Litchfield (1997) 41 NSW LR 630 at 637: "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." The evidence 19The following evidence was tendered and received into evidence at the enquiry: (1)Exhibit A: the statement of Ms J Dinihan dated 16 September 2014 (2)Exhibit B: a copy of an email from Ms J Dinihan to Mr Hutchinson dated 16 September 2014 (3)Exhibit C: copies of 2 emails between Mr Hutchinson and the tribunal registry on 15 September 2014, and a copy of 2 emails from the tribunal registry to Mr Hutchinson dated 16 September 2014 (4)Exhibit D: volumes one and two of documents served by the HCCC on Mr Hutchinson; volume 1 contained documents behind each of tabs 1-28 and volume 2 contained documents behind each of tabs 29-56 (5)Exhibit E: volume 3 of documents served by the HCCC on Mr Hutchinson; this volume contained the Amended Complaint, and Tasmanian police documents (6)Exhibit F: a copy of an email from Ms J Dinihan to Mr Hutchinson dated 17 September 2014 (7)Exhibit 1: documents served by Mr Hutchinson on the HCCC and filed with the tribunal on 24 June 2014 being: (a)Letter from Mr Hutchinson dated 4 June 2014 (b)Letter of service from The Avenue Hospital dated 19 June 2012 (c)Certificate of Service from Ramsey Health dated 19 June 2012 (d)Letter of Darren de Vries, Nurse Unit Manager, dated 13 June 2014 (e)CPD Points from 1 June 2011 to 31 May 2012 (f)Statement of Attainment of Mr Hutchinson in respect to Diploma of Nursing (Enrolled/Division 2 Nursing) dated 12 December 2011 (g)Certificate of Attendance of Mr Hutchinson in respect to completion of the Introduction to High Acuity Nursing Short Course completed between 30 March 2011 to 13 April 2011 (h)Certificate of Attendance of Mr Hutchinson relating to Ramsey Health Care PreceptorPlus Training Workshop dated 7 December 2010 (i)Certificate of Participation of Mr Hutchinson relating to his completion of the Ramsey Health Care Train the Trainer Program 2011 20Mr Hutchinson was born on 25 May 1970 and is now aged 44 years. He first registered as an enrolled nurse in New South Wales on 8 October 2002. His qualifications included a Certificate IV in Nursing, Meadowbank TAFE, and Certificate IV in Nursing, Central Sydney Area Health Service, 2002. He was registered as a nurse on the National Register of Health Practitioners from 1 July 2010 to 31 May 2013 (failed to renew) and has not been registered since that latter date. 21It is important to set out the contents of Mr Hutchinson's letter dated 4 June 2014 (Exhibit A): "I have wanted to be a nurse since I had open heart surgery in 1988, but because I did not complete year 12 I could not get into university. In 2001 age 31 I applied and was accepted into the Enrolled Nurses program with Central Sydney Area Health. During the course I change my surname only and took my stepfather's name, because my birth father had contacted me and I wanted no contact with him. On completion of my course I went to the board to become registered this was the first time I was asked about criminal history, I had just finished one year of study and did not want to find out I could not work because of something I had done over 20 years before. I answered no to the question. Every time I started work on a new hospital they did a police check and I always came back clean even when I worked in WA in 2003-2005, which is where my record was from 1991. In 2006 my partner had knowingly given me HIV and after that the relationship became very violent. It was at this time I left nursing on the second November 2006 and I did not return until 10 March 2010. It was during this time that I committed further crimes. At no time was I nursing, I have never had a complaint made against me as a nurse. Since I returned to nursing in 2010 in Melbourne I have attended all in- services, and I have completed every course that an Enrolled Nurse can do including the IV Medication course though the paperwork for this course is still with my last NUM in Melbourne it has not been filed with the nurses board because of my arrest in 2012. I was only 2 weeks away from completing Victoria work-safe course, but I was the OH&S officer for the critical care at the Avenue Private. I know I lied on my renewal forms since becoming a nurse. My crimes have never involved violence nor have it involved a hospital, nurse, or patient. The time I had off nursing I was able to get my life back, I only returned to nursing once I was fit in my head to do so. I am a great nurse, it is something I wanted for a very long time. Please do not take this away from me. I will apply (sic comply) with any restriction the board places on me, but please do not take my licence away." (italics supplied by tribunal) 22It is reasonable to infer from Exhibit A that Mr Hutchinson admits that: (i)He made a false statement to the former Board, at the time of applying for registration as an enrolled nurse in September 2002, when he answered "No" to the question posed in the application, "Have you been convicted of any offence/infringement in or outside of New South Wales?" (An admission of Particular 1 of Complaint Three) (ii)He had a criminal record dating back to at least 1991. (iii)Between leaving nursing on 2 November 2006 and 10 March 2010 he committed further criminal offences; it is noted that the New South Wales dishonesty offences were committed between 14 December 2007 and 29 April 2008, and the Tasmanian offences were committed between 29 January 2009 and 14 March 2009. (An admission of the Particulars of Complaint One) (iv)He lied on his renewal forms since becoming a nurse. (An admission of Particulars 2-9 of Complaint Three) 23The tribunal refers to the copy letter from the HCCC to Mr Hutchinson dated 14 May 2013 pursuant to section 40 of the Health Care Complaints Act 1993 in which the following matters, pertaining to Mr Hutchinson, were particularised: * each of the 2013 New South Wales convictions, including the Form 1 matters * the Tasmanian convictions * the March 1991 false pretences convictions (6 counts) (fine of $1500), which offences occurred in Western Australia * the December 1991 fraud convictions (50 counts) (sentence of 13 months imprisonment) and stealing convictions (five counts) (sentence of five months imprisonment), which offences occurred in Western Australia * the failure to disclose to the former Board and AHPRA, since 2002 through to 2012, his criminal history, including the fact of being charged and/convicted of relevant criminal offences 24The tribunal also refers to Mr Hutchinson's copy letter dated 17 May 2013 in reply to the letter of the HCCC dated 14 May 2013, in which he makes relevant admissions. It is stated by Mr Hutchinson, inter-alia: "..All facts in the letter are correct, and I know I lied on my record forms about my criminal history and for this I have no excuse other than I wanted to be a nurse since 1986 after I had open heart surgery.. and my history (crime) was..10 years before I was a nurse, and I did not want it to stop me becoming a nurse. In November 2006 I stopped nursing and did not return until March 2010. I had 3 ½ years away from nursing because in 2006 I was in a relationship where my partner would hit me and also knowingly gave me HIV. I also became addicted to drugs mainly Ice. I could not work because my drug addiction took control of my life. I last used drugs on the 12th June 2008 and left my relationship the same day. In 2009 I stole money from a hotel I was working in, as I was going to use it for drugs. I never did because I was arrested. Once released from jail I moved to Melbourne for a fresh start. I started work again as a nurse after 4 years away from nursing. To this date I have not used drugs nor have I broken the law in the last 4 years. I went through a horrible time 2006-2009 and have learnt my lesson and have paid for what I have done. Since returning to nursing I have completed over 400 hours in study. I had completed my IV course, but was arrested before I could post in my paperwork. I completed a six week HDU course with Monash Uni and my employer The Avenue Private Hospital. I also worked for the last 12 months in HDU and CCU. I am a preceptor and also completed Train the Trainer and do the CPR yearly training and assessments on nurses. I have done everything that I am allowed to do as an EN. I also upgraded my certificate IV to a Diploma in 2011. I was also the OHS&S member for critical care at The Avenue Private. The board is welcomed to speak with my boss at the time Darren de Vries NUM Lawson Ward. I am very sorry for everything I have done and for not telling the board about my history. All I can say is that I love nursing. I am a great nurse. I have never had a complaint at work. And that at the time these crimes were committed I was not working as a nurse. I am begging the board to allow me to keep nursing. Nursing is the best thing I have done, and really wish to continue with it next year." (italics supplied by tribunal) 25Exhibit D contains various categories of documents including: * New South Wales police brief of evidence (fraud and money laundering), including a criminal history record, relating to the New South Wales criminal charges and convictions * New South Wales District Court, Criminal Jurisdiction, related documents * Devonport Court of Petty Sessions, Tasmania, related documents * AHPRA material * Nursing and Midwifery Council of New South Wales related documents * Correspondence passing between the HCCC and Mr Hutchinson * Documents provided by New South Wales Corrective Services, Attorney General and Justice Complaint One-on 12 February 2013 Mr Hutchinson was convicted of four criminal offences within New South Wales, and on 15 April 2009 was convicted of 64 counts of stealing within the state of Tasmania 26Under section 149C(1) (c) of the National Law the tribunal may suspend or cancel registration of a health practitioner if "the practitioner has been convicted of or made the subject of the criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practice the practitioner's profession." 27It is helpful to set out some relevant legal principles in relation to unfitness to practise. There is a body of case law in Australia relating to disciplinary proceedings where it is contended that a professional person is not a "fit and proper" person to practise their profession by reason of, amongst other things, past criminal behaviour. In A Solicitor v Council of the New South Wales Law Society [2004 ] HCA 1 at 20, the High Court of Australia stated, in relation to disciplinary proceedings brought against a solicitor in respect to certain criminal offences, "Furthermore, even where it does not involve professional misconduct, a person's behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practise." 28In Prothonotary of the Supreme Court of New South Wales v P [2003] NSW CA 320 at paragraph 17, it was stated: "Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non-compliance with legal and civic obligations: NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, 289; NSW Bar Association v Somosi [2001] NSWCA 285; (2001) 48 ATR 562." 29The documentary evidence before the tribunal, tendered by the HCCC, establishes that on 12 April 2013, Solomon DCJ, in the District Court of NSW, following pleas of guilty by Mr Hutchinson, convicted him of four counts contained in an indictment; three counts of dishonestly obtaining a financial advantage between 14 December 2007 and 29 April 2008 in sums of $7000, $12,000 and $9000, and one count of knowingly dealing with the proceeds of crime, being $112,500, between 14 December 2007 and 2 May 2008. That latter monetary figure covered the transactions related to counts 1 to 3 on the indictment as well as certain transactions referred to in matters listed on a Form 1. There were 9 further matters taken into account on the Form 1. Mr Hutchinson was sentenced to imprisonment for three years to date from 16 May 2012 and to expire on 15 May 2015. A non-parole period of two years was set to date from the commencement of the sentence and to expire on 15 May 2014. Mr Hutchinson served this sentence and commenced his parole on 15 May 2014, leaving the Cooma Correctional Centre at that time. 30Further, as to the circumstances of the New South Wales offences (the NSW offences were committed between 14 December 2007 and 29 April 2008), the tribunal refers to the statement of agreed facts, dated 12 February 2013 and signed by the Crown prosecutor (Exhibit D, Tab 25, pages 24 to 26) which stated that in relation to the first three counts on the indictment, as well as the 9 matters on the Form 1, Mr Hutchinson had fraudulently made applications for lines of credit in the names of other persons without their permission. The lines of credit were approved, credit was provided, and Mr Hutchinson utilised the relevant account to arrange payments to 3rd parties. The statement indicated that each of the persons in whose name the applications were made were known to Mr Hutchinson in various capacities, such as being his mother, his stepfather, friends or work colleagues. 31The tribunal notes that Mr Hutchinson had stated, in his letter dated 17 May 2013 to the HCCC, that after he temporarily ceased nursing in November 2006 he became addicted to drugs, mainly Ice (methylamphetamine), and could not work because this addiction took control of his life. He stated that he last used drugs on 12 June 2008. This statement as to last drug use in June 2008 was repeated by Mr Hutchinson to Dr Stephen Allnutt, psychiatrist, on 27 March 2013. The report of Dr Stephen Allnutt, psychiatrist, dated 5 April 2013, notes the history provided by Mr Hutchinson that at the time of commission of the NSW offences he was abusing and was addicted to methylamphetamines. The doctor referred to the fact that Mr Hutchinson had committed the offences to fund his drug addiction. The doctor refers to the fact that Mr Hutchinson had been positively tested for HIV in 2006 having acquired the condition from his former partner. The report was tendered at the sentencing hearing of Mr Hutchinson in the District Court of New South Wales on 12 April 2013. His Honour Judge Solomon accepted that Mr Hutchinson was addicted to the above drug and that the offences were committed in order to fund that drug habit. The tribunal accepts this finding of the sentencing court. 32The tribunal notes that in Exhibit D, Tab 49, page 102, being a bundle of documentary records from NSW Corrective Services regarding Mr Hutchinson, a copy document dated 21 May 2012 headed "Alcohol and other drugs information sheet", there is no reference to Mr Hutchinson's alleged use of addictive drugs between November 2006 and subsequently; the document merely refers to the use of speed in 1993 and, in respect of alcohol, a "last drink on New Year's Eve".. In a further document, at page 181, headed "Case note report" and dated 21 May 2012, it is stated, "Saw Inmate this morning inmate stated that he has not used any substances in many years, inmate last used alcohol on news eve a couple of drinks and had speed in 1993.." The tribunal notes that the information contained in these documents were provided by Mr Hutchinson to the prison authorities shortly after he was charged with the New South Wales offences. Despite this information, the tribunal maintains its finding, expressed in the previous paragraph, that Mr Hutchinson committed the New South Wales offences to fund a drug habit. 33In relation to the New South Wales offences, as stated above, it is noted that these offences were committed to fund a drug habit. Nevertheless, as submitted by the HCCC, these offences involved a betrayal of a range of people close to Mr Hutchinson, including his family, friends, and in particular, people who Mr Hutchinson had met through his nursing work in a hospital (see Exhibit D, Tab 25, page 131). The tribunal accepts the submissions of the HCCC that the New South Wales offences were serious, having the consequence that the victims suffered the shock and stress of being confronted with a large bill for credit that they had never obtained, and had to go to the trouble of proving that the debt was not truly theirs. As His Honour Judge Solomon stated, the New South Wales offences, committed over a period of about 4 ½ months, involve significant planning. It is noted that Mr Hutchinson pleaded guilty to the New South Wales offences on the second day of his trial. 34The tribunal now turns to the circumstances surrounding the commission of the Tasmanian criminal offences. The documentary evidence before the tribunal, tendered by the HCCC, establishes that on 15 April 2009 in the Devonport Court of Petty Sessions, Tasmania, Magistrate TJ Hill convicted Mr Hutchinson of 64 counts of stealing from his employer during the period from about 9 January 2009 to 14 March 2009, contrary to section 234 of the Criminal Code Act, 1924 (Tasmania), in sums amounting to about $29,000 in total. Mr Hutchinson was sentenced to 13 months imprisonment to date from 19 March 2009. It is not known from the documentary evidence before the tribunal whether Mr Hutchinson served the full 13 months of that term of imprisonment; in oral submissions the HCCC stated that the tribunal could be comfortably satisfied that he had served a minimum of 6 to 8 months imprisonment in Tasmania. 35In Exhibit E, tab 2, being the Tasmanian police prosecutor' s statement of facts relating to the Tasmanian offences, it is stated that Mr Hutchinson had been employed since October 2008 as a night auditor for a number of businesses owned and operated by Federal Holdings Tasmania Pty Ltd. Mr Hutchinson was employed to collect the daily takings from these businesses. It was identified that since the end of January 2009 Mr Hutchinson had stolen money during his duties as a night auditor on at least 64 occasions. In about mid-March 2009 the police sought to make contact with Mr Hutchinson in Tasmania but ascertained that he had fled the state to Melbourne. Mr Hutchinson was arrested on 18 March 2009 in Melbourne for the stealing offences and he made admissions to the police. The police located some $15,860 in cash in his possession. Mr Hutchinson had stated in his letter dated 17 May 2013 to the HCCC that in 2009 he stole money from a hotel he was working in "as I was going to use it for drugs. I never did because I was arrested." The tribunal notes that the commission of the Tasmanian offences began at the end of January 2009. The tribunal does not accept that Mr Hutchinson committed the Tasmanian offences to purchase drugs for his own use and refers to its previous finding that Mr Hutchinson ceased using drugs in June 2008. 36In relation to the Tasmanian offences, being at least 64 in number, they were committed over a period of about 6 weeks between the end of January 2009 and mid-March 2009. It can be inferred that most of these thefts were clearly premeditated. The thefts were from Mr Hutchinson's employer. 37The next issue which the Tribunal must consider is whether the above-stated circumstances of the New South Wales and Tasmanian offences "render the practitioner unfit in the public interest to practice the practitioner's profession" as referred to in section 149C(1)(c) of the National Law. 38In relation to the "public interest element" within section 149C(1)(c), the HCCC submitted that, "one factor peculiar to this case is: nursing is a collegiate profession. Absent clear and compelling evidence of rehabilitation (not merely the absence of offending, but evidence that the respondent's character has changed from one of dishonesty to one of honesty), the tribunal would not make an order that would hold the respondent out as an appropriate person to occupy a registered nurse' s position in a hospital or other collegiate environment. The respondent has (via "identity theft") defrauded former colleagues in the past. Any collegiate work environment operates on trust; a busy and stressful work environment such as a hospital or other health care facility, where weighty responsibilities are discharged by its workers, particular so. Nurses and other healthcare workers are entitled to assume that they do not run the risk of becoming a victim of fraud, when they befriend a co-worker and/or share personal details of theirs with that co-worker." The tribunal accepts these submissions. 39The tribunal notes the work references from Darren de Vries, Nurse Unit Manager at The Avenue Hospital, provided by Mr Hutchinson in these proceedings. They confirm that Mr Hutchinson is a competent enrolled nurse. However, they do not address Mr Hutchinson's past dishonest behaviour as revealed in the commission of the New South Wales and Tasmanian offences. 40The circumstances of the offences relate to dishonest behaviour by Mr Hutchinson. In relation to the offences, Mr Hutchinson defrauded friends, family and work colleagues in the health profession and stole cash monies from his employer. It is fundamental that enrolled nurses and registered nurses are scrupulously honest in their dealings with their work colleagues and patients. The commission of the offences by Mr Hutchinson are incompatible with the personal qualities essential for the practice of nursing. At the time of commission of the offences he was clearly unfit in the public interest to practise nursing. The Tribunal notes that over five years has elapsed since Mr Hutchinson committed the Tasmanian offences. However, the mere passing of time does not demonstrate that previously absent fitness to practise nursing has been restored. In Health Care Complaints Commission v Litchfield (1997) 41 NSW LR 630 at 637 it was stated by the Court: "As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioner's Act (1966) 67 SR (NSW) 448 at 461: "Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that changes occurred merely because some years of gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man." 41There was no persuasive evidence that satisfied the Tribunal that since the commission of the offences there was anything to indicate that Mr Hutchinson had become fit again in the public interest to practise nursing. In the absence of evidence that Mr Hutchinson has reformed his character, the Tribunal is comfortably satisfied that Mr Hutchinson was and currently is unfit in the public interest to practise nursing pursuant to section 149C(1) (c) of the National Law. Complaint Two-unsatisfactory professional conduct under section 139B(1)(b) and (l) of the National Law; failure to disclose NSW criminal charges and convictions to the National Board, in contravention of section 130 of the National Law; and failure to notify the former Board of the Tasmanian criminal convictions, in contravention of section 42B of the Nurses and Midwives Act 1991 (NSW) (now repealed) 42"Unsatisfactory professional conduct" of a registered health practitioner is defined under section 139B(1) to include the following conduct: (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. ..... (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 43Under section 130 of the National Law, it is stated: (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board that registered the practitioner or student written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) In this section- "relevant event" means- (a) in relation to a registered health practitioner- (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment .... 44Under section 42B(1)(a) of the Nurses and Midwives Act 1991, now repealed, it was stated: (1) A nurse or midwife must notify the Board in writing within 7 days after: (a) the nurse or midwife is convicted of an offence or made the subject of a sex/violence criminal finding for an offence, in this State or elsewhere, giving details of the conviction or criminal finding and any penalty imposed for the offence. 45The National Law commenced on 1 July 2010. Mr Hutchinson was charged with the New South Wales offences on or about 18 May 2012. He was formally convicted of those offences on or about 12 February 2013. Clearly, under section 130 of the National Law, he was obliged to give the National Board notice of those events which he failed to do. Accordingly, the tribunal finds Mr Hutchinson guilty of unsatisfactory professional conduct in relation to the non-disclosure of the NSW offences, pursuant to section 139B(1)(b) of the National Law. 46The tribunal also finds that Mr Hutchinson failed to notify the former Board of the fact of the Tasmanian convictions in breach of section 42B(1)(a) of the Nurses and Midwives Act 1991, now repealed. Mr Hutchinson was convicted of those offences on or about 15 April 2009. Again, the National Law commenced on 1 July 2010. The question arises whether the breach of section 42B(1)(a) relevantly falls under section 139B(1)(b) or (l) of the National Law. 47Section 139B(1)(b) of the National Law provides that unsatisfactory professional conduct of a registered health practitioner includes "(b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention." In turn, relevantly for this complaint particular, the provision of the National Law that would be the subject of the "contravention" would be section 130 of the National Law, which provision requires the health practitioner to notify the National Board of criminal convictions. The obvious question that arises is on what basis can Mr Hutchinson be found to have contravened section 130, which came into operation on 1 July 2010, when he relevantly failed to notify the former Board of his Tasmanian convictions in April 2009. To determine this question, the HCCC has submitted that it is necessary to have regard to clause 30 of the Health Practitioner Regulation National Law Regulation, which commenced on 1 July 2010. 48Clause 30 provides: (1) This clause applies if- (a) the National Agency receives a notification about a registered health practitioner or student; and (b) the subject matter of the notification happened while the practitioner or student was registered in a health profession under a corresponding prior Act. (2) Proceedings may be taken under Part 8 of the Law in relation to the registered health practitioner's or student's behaviour while registered under the corresponding prior Act as if the person were registered under the Law by the National Board established for the health profession. (3) However, subclause (2) applies only to the extent- (a) a notification about the registered health practitioner's or student's behaviour could have been made under the corresponding prior Act; and (b) proceedings of that type could have been taken under the corresponding prior Act. 49It is clear that on 7 June 2012 the National Agency (AHPRA) received a notification about Mr Hutchinson in relation to his prior criminal record for "fraud" which embraced the Tasmanian convictions (which were formally made on or about 15 April 2009); see Exhibit D, Tab 3, page 7. One is also able to infer that Mr Hutchinson was registered as an enrolled nurse "under the corresponding prior Act" at the time of the Tasmanian convictions, namely the Nurses and Midwives Act 1991; see Exhibit D, Tab 2, page 1. 50It is also clear, turning to subsection (3) of clause 30, that a notification about Mr Hutchinson's Tasmanian convictions could have been made "under the corresponding prior Act" at the time of the Tasmanian convictions, namely the Nurses and Midwives Act 1991; Part 5 of that latter Act was titled, "Complaints and disciplinary proceedings" and under section 44 (1) (a) a complaint could be made against a health practitioner if that person had been convicted of an offence, and, further, under that Act proceedings similar in nature to proceedings under Part 8 of the National Law could be taken. 51Accordingly, clause 30 (2) effectively provides that the HCCC can take proceedings under Part 8 of the National Law (which includes section 139B(1)(b) and the various complaints procedures) in relation to Mr Hutchinson's failure to notify the former Board in relation to the Tasmanian convictions (being his "behaviour while registered under the corresponding prior Act") "as if the person were registered under the Law by the National Board established for the health profession". It would appear that clause 30(2) has the effect of retrospectively applying the provisions of the National Law, such as section 130, to the impugned "behaviour while registered under the corresponding prior Act". Accordingly, Mr Hutchinson's failure to notify the former Board in relation to the Tasmanian convictions is deemed to be a contravention of section 130 of the National Law and, consequently, Mr Hutchinson is guilty of unsatisfactory professional conduct pursuant to section 139B(1)(b) of the National Law. 52Alternatively, it was submitted by the HCCC that Mr Hutchinson's failure to disclose being charged with the New South Wales offences, the failure to disclose the fact of the New South Wales convictions, and the failure to notify the former Board of the Tasmanian convictions, also constituted unsatisfactory professional conduct under section 139B(1)(l) of the National Law because it was "unethical conduct relating to the practice or purported practice of the practitioner's profession". 53It was submitted that Mr Hutchinson's failures in these respects did relate to the practice of nursing because compliance with the law regulating the nursing profession, namely section 130 of the National Law and section 42B(1)(a) of the former Nurses and Midwives Act 1991, was intimately connected with the practice of the nursing profession. The tribunal accepts these submissions. An enrolled nurse or registered nurse practising their profession must act ethically not just in relation to the clinical component of their work but also in respect to their wider obligations as an enrolled nurse or registered nurse which includes compliance with the relevant laws regulating their profession. Such laws including notification procedures relating to criminal charges and convictions, apply to the enrolled nurse or nurse whether such conduct occurs or does not occur during their work in such capacity. 54The tribunal notes Mr Hutchinson's past written statements to the HCCC and written submissions in the proceedings in respect to his reasons for failing to disclose his past criminal history to the former Board and National Board. For example, in his letter dated 17 May 2013 to the HCCC he stated, ".. I know I lied on my renewal forms about my criminal history and for this I have no excuse other than I wanted to be a nurse since 1986.. and my history (crime) was... over 10 years before I was a nurse, and I did not want it to stop me becoming a nurse... I am very sorry for everything I have done and for not telling the board about my history. All I can say is that I love nursing, I am a great nurse. I have never had a complaint at work. And that at the time these crimes were committed I was not working as a nurse..." 55In Mr Hutchinson's written submissions to the tribunal in these proceedings (Exhibit 1, Document 1) he stated, "On completion of my course I went to the board to become registered this was the first time I was asked about criminal history, I had just finished one year of study and did not want to find out I could not work because of something I had done over 20 years before. I answered no to the question. Every time I started work in a new hospital they did a police check and they always came back clean even when I worked in W.A. in 2003-2005, which is where my record was from 1991... I know I lied on my renewal forms since becoming a nurse. My crimes have never involved violence nor have it involved a hospital, nurse, or patient.." 56The above statements of Mr Hutchinson indicate that he was prepared to lie to the former Board and National Board about his past criminal history so as to maintain his registration as an enrolled nurse. At one level he has sought to justify his failure to disclose his past criminal history on the basis that he is a very competent enrolled nurse and that his past criminal history had nothing to do with his work as an enrolled nurse. Mr Hutchinson's statements and submissions do not recognise his ethical obligations to be honest and candid with the relevant nursing registration authorities about his criminal history and nor do they recognise that an enrolled nurse's criminal history for dishonesty offences might possibly impact upon their work as an enrolled nurse. The tribunal does not regard Mr Hutchinson's statements and submissions as providing any relevant justification for his unethical conduct in failing to disclose his past criminal history to the nursing registration authorities. 57Accordingly, the tribunal also finds, and is comfortably satisfied, that Mr Hutchinson is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law by reason of his failures to notify the former Board and the National Board of the Tasmanian and New South Wales convictions respectively. Complaint Three- unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law; the making of false statements to the former Board and AHPRA in relation to past convictions and criminal history 58Under section 139B (1) of the National Law "unsatisfactory professional conduct" of a registered health practitioner includes: (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. ... (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 59The tribunal finds that on the evidence before it Mr Hutchinson made false statements to the former Board and AHPRA in relation to his past convictions and criminal history as particularised in paragraphs 1 to 9 under the heading "Particulars to Complaint Three" in the Amended Complaint. 60The HCCC submitted that those deliberate false statements constituted unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law. The tribunal is of the view that such false statements clearly constituted unsatisfactory professional conduct under section 139B(1)(l) because such conduct was unethical conduct relating to the Hutchinson's profession of nursing; we also refer to our reasons, under Complaint Two, in relation to the finding of unsatisfactory professional conduct under section 139B(1)(l) of the National Law. It is less clear whether such conduct constituted a breach of section 139B(1)(a) of the National Law and the tribunal does not find it necessary to resolve that question. Accordingly, the tribunal finds, and is comfortably satisfied, that Mr Hutchinson is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in respect of his making false statements to the former Board and AHPRA in relation to his past convictions and criminal history. Complaint Four-professional misconduct under section 139E of the National Law; failure to disclose NSW criminal charges and convictions to the National Board, in contravention of section 130 of the National Law; failure to notify the former Board of the Tasmanian criminal convictions, in contravention of section 42B of the Nurses and Midwives Act 1991 (NSW) (now repealed); made false statements to the former Board and AHPRA in relation to past convictions and criminal history 61In the Amended Complaint, in relation to Complaint Four, which alleges professional misconduct, the HCCC repeated the particulars of Complaint Two and Three and stated that they were relied upon, individually and cumulatively. 62Section 139E of the National Law provides: For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 63It is helpful to set out some relevant legal principles relating to professional misconduct. 64In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 the NSW Court of Appeal was dealing with an appeal from a decision of the Medical Tribunal of NSW. The Medical Tribunal had found a medical practitioner should be removed from the register for "misconduct in a professional respect" (the then relevant statutory provision). At the time of the hearing of the appeal against the Medical Tribunal's decision a new legislative provision had been enacted dealing with "professional misconduct". The new provision was inapplicable to the appeal. His Honour stated, without deciding, that the new statutory test for "professional misconduct" "may introduce for consideration a wider class of conduct than has hitherto been regarded as relevant". 65Concerning the appeal, Kirby P stated that relevant "misconduct" may include: "gross negligence ....particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient". His Honour further stated at 200: "Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner." 66In Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638C, the NSW Court of Appeal stated, "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal." 67In In Re Davis [1947] 75 CLR 409, the High Court of Australia upheld the decision of the Supreme Court of New South Wales that the appellant was not a fit and proper person to be a barrister. In that case, the appellant, having been approved for admission as a barrister by the Barristers Admission Board was in 1946 admitted as a barrister by the Supreme Court of New South Wales. In 1947 that Court disbarred the appellant on the ground that in 1935 he had pleaded guilty to an indictment for breaking, entering and stealing and that he had failed to disclose this fact to the Court or to the Board or to the persons from whom he obtained certificates of good fame and character. 68In that case, Latham CJ stated, at 416: "Upon an application for removal of the name of a legal practitioner from the roll, the question which has to be determined by the Court is whether he is a fit and proper person to remain as a member of the profession... In exercising this jurisdiction the Court may consider any conduct of the barrister which is relevant to the question of whether he is a fit and proper person to continue to be a barrister. In determining this question immediately recent and more distant behaviour may be taken into account. It is not possible to draw a line at some point of time and to prevent the Court from looking behind that line. When a question arises in 1947 as to whether a person is a fit and proper person to continue as a barrister it is not irrelevant to consider facts which happened in 1934, 1944, or 1946. Such facts may be most informative as to his character. When a considerable period of time has elapsed past facts should be considered in the light of the lapse of time, and weight should be given to the subsequent behaviour of the person concerned. In this case, however, the applicant was not only guilty of a grave criminal offence in 1934, and in 1944, and again as recently as 1946, he induced two solicitors to give him certificates of character without disclosing to them that he had been convicted of that criminal offence, and he presented to the Board certificates so obtained. It would not be reasonable to require a candidate to disclose to the Board, or even to persons whom he approached with a request for certificates, every wrongdoing of his life. But a conviction for housebreaking is so obviously a relevant matter when character is under consideration that there can be no room for doubt in the present case as to the duty to disclose it both to the Board and to the persons from whom he obtained certificates of character. It was submitted that the appellant, by his good behaviour since 1934, had redeemed himself, and that it was not unreasonable for him to take the view in 1944 and 1946 that he was then a person of good fame and character. It may be that he had by that time become a person of good fame, i.e., of good reputation among those who then knew him. But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and may subsequently become a man of good character. If the appellant had frankly disclosed to the Board and to the two solicitors the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character. It was further argued for the appellant that even if the Court had jurisdiction to consider matters which arose prior to the approval given by the Board, yet the Court ought not to have disbarred him, but should have been content to impose a limited suspension or to administer some form of reprimand or censure. It is impossible, in my opinion, to say that the Court was wrong in determining to disbar the candidate. He committed a very serious offence and concealed it in circumstances when it was his duty to disclose it..." 69In Prothonotary of the Supreme Court of NSW v Hendrik Jan Van Es [2014] NSW CA 169, at paragraph 39, the Court of Appeal stated: "The importance of the obligation of candour may be seen in Re Davis [1947] HCA 53; (1947) 75 CLR 409, where Latham CJ's and Dixon J's judgments contain some measure of sympathy for the circumstances in which Mr Davis committed a crime years before, but none at all for his failure to disclose it in the course of his application. The obligation emphasised in Re Davis has not diminished subsequently: see HealthCare Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323 at [43] and Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 at [16]. That obligation was breached, repeatedly, by Mr van Es, on the morning of the Ethics examination and again in his dealings with senior officers of the Association. He did not tell the whole truth; in fact he actively and repeatedly sought to conceal the truth by telling lies. 70In HCCC v Bartolazo [2013] NSWDT 4, the former Dental Tribunal of NSW determined a complaint against a dentist who had falsely stated to the Dental Board and the Department of Immigration that he did not have any criminal convictions. The tribunal stated: "128 The Tribunal is satisfied that Dr Bartolazo's conduct is sufficiently serious to be characterised as professional misconduct. Dr Bartolazo repeatedly provided false and misleading information in a way which demonstrates persistent deceit and/or disregard for the law and ethical standards. He did this in the context of signing documentation which impacts directly on the practice of dentistry in Australia. He also demonstrated a serious lack of recognition of the consequences of his behavior for the standing of the dental profession in Australia and his duty of care for his patients. 129There was a potential for a conflict to arise between Dr Bartolazo's own interests in securing an Australian visa and his registration as a dentist in New South Wales and the public interest. Dr Bartolazo failed to appreciate the need to honestly and scrupulously provide information to the Dental Board and the Australian government. Dr Bartolazo's conduct can be characterized as a breach of public trust. The Tribunal has no confidence Dr Bartolazo could be relied upon to disclose matters which were adverse to him professionally." 71As stated previously, in the Amended Complaint, in relation to Complaint Four, which alleges professional misconduct, the HCCC repeated the particulars of Complaint Two and Three and stated that they were relied upon, individually and cumulatively. 72The tribunal has found that the particulars of Complaint Two have been proven on the evidence before it and that those proven particulars constitute unsatisfactory professional conduct. Again, those proven particulars included Mr Hutchinson's failure to disclose the NSW criminal charges and convictions to the National Board, in contravention of section 130 of the National Law and his failure to notify the former Board of the Tasmanian criminal convictions, in contravention of section 42B of the Nurses and Midwives Act 1991 (NSW) (now repealed). Mr Hutchinson's failures to disclose those matters were dishonest and occurred over a significant period from about April 2009 to about February 2013. The written statements and submissions provided by Mr Hutchinson to the HCCC and to the tribunal explaining this dishonest conduct do not justify this conduct in any meaningful way. In the view of the tribunal, the unsatisfactory professional conduct, in relation to Complaint Two of the Amended Complaint, representing dishonest conduct over a significant period, is of a sufficiently serious nature to justify suspension or cancellation of Mr Hutchinson's registration as an enrolled nurse. Accordingly, the tribunal finds, and is comfortably satisfied, that such unsatisfactory professional conduct, relating to Complaint Two, also constitutes professional misconduct by Mr Hutchinson. 73The tribunal has also found that the particulars of Complaint Three have been proven on the evidence before it and that those proven particulars constitute unsatisfactory professional conduct. Again, those proven particulars included Mr Hutchinson's making of false statements to the former Board and AHPRA in relation to past convictions and criminal history. Mr Hutchinson's false statements in those respects were dishonest and occurred over a significant period from about September 2002 to about May 2012. Again, the written statements and submissions provided by Mr Hutchinson to the HCCC and to the tribunal explaining this dishonest conduct do not justify this conduct in any meaningful way. In the view of the tribunal the unsatisfactory professional conduct, in relation to Complaint Three of the Amended Complaint, representing dishonest conduct over a significant period, is of a sufficiently serious nature to justify suspension or cancellation of Mr Hutchinson's registration. Accordingly, the tribunal finds, and is comfortably satisfied, that such unsatisfactory professional conduct, relating to Complaint Three, also constitutes professional misconduct by Mr Hutchinson. 74The tribunal also finds, that when considered together, the instances of unsatisfactory professional conduct proven in relation to Complaints Two and Three, also amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Hutchinson's registration as an enrolled nurse. Accordingly, the tribunal finds, and is comfortably satisfied, that those instances of unsatisfactory professional conduct, when considered together, also amount to professional misconduct of Mr Hutchinson. Complaint five - the practitioner is not a suitable person to hold registration as a nurse under the National Law 75Section 149C of the National Law provides: (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied- ..... (d) the practitioner is not a suitable person for registration in the practitioner's profession. ... (4) If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. 76The tribunal notes that Complaint Five in the Amended Complaint provides that "The practitioner is not a suitable person to hold registration as a nurse under the National Law". The particulars set out in the Amended Complaint under Complaint Five as supporting the complaint that Mr Hutchinson is not a suitable person to hold registration as a nurse under the National Law, are, in summary, as follows: * The NSW dishonesty offences committed between December 2007 and May 2008, in relation to which Mr Hutchinson was convicted in February 2013 * The Tasmanian dishonesty offences committed between January 2009 and March 2009, in relation to which Mr Hutchinson was convicted in April 2009 * In 1991, in Western Australia, Mr Hutchinson was convicted of six counts of false pretences, five counts of stealing and 50 counts of fraud, in the Perth Court of Petty Sessions. Also in 1991, Mr Hutchinson was convicted of one count of stealing in the Waverley Local Court in New South Wales (The tribunal notes that these 1991 offences were not included in any of the Particulars under Complaints One to Four) * Mr Hutchinson failed to disclose the fact of being charged and convicted of the NSW dishonesty offences to the National Board * Mr Hutchinson failed to disclose the Tasmanian convictions to the former Board * Mr Hutchinson made false statements to the former Board in his application for registration in September 2002, in that he did not disclose his criminal history * Mr Hutchinson made false statements to the former Board in his annual return forms in 2004, 2005, 2007, 2008, and 2009, in relation to his criminal history * Mr Hutchinson made false statements to AHPRA and/the National Board in his application for renewal of registration as an enrolled nurse in 2010, 2011 and 2012, in relation to his criminal history 77The tribunal notes that there is no specific definition of the phrase "suitable person" within the National Law. However, it is relevant that section 55 National Law provides: (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if- ... (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession 78The tribunal refers to its earlier reference, under Complaint One, to the decision of Prothonotary of the Supreme Court of New South Wales v P [2003] NSW CA 320. In that decision, reference was made to the decision of the New South Wales Court of Appeal in New South Wales Bar Association v Cummins [2001] NSWCA 284 where it was stated by Spigelman CJ: "56 There is authority in favour of extending the terminology "professional misconduct" to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of "professional misconduct" overlaps with and, usually it is not necessary to distinguish it from, the terminology of "good fame and character" or "fit and proper person". 79The tribunal finds that the fact of the 1991 offences, and consequent convictions for those offences, have been proven on the evidence tendered before the tribunal. 80The tribunal has previously found, in relation to Complaint One, that Mr Hutchinson, by reason of the circumstances of the New South Wales and Tasmanian offences, was and remains unfit in the public interest to practise nursing, pursuant to section 149C(1)(c) of the National Law. As stated above, the substance of Complaint Five in the Amended complaint is that, by reason of not only the New South Wales and Tasmanian offences but also the 1991 offences and Mr Hutchinson's false statements and failures to disclose his past criminal history to the former Board and the National Board from 2002 to 2012, he is not a suitable person for registration in the nursing profession. It is clear that the totality of these particulars under Complaint Five, which particulars have been proved to the comfortable satisfaction of the tribunal, indicate and confirm that Mr Hutchinson has a character flaw relating to dishonesty which is incompatible with the practice of nursing. The tribunal has previously referred to the fact that the New South Wales offences involved frauds committed by Mr Hutchinson upon his work colleagues. It has also referred to the wider obligations of a nurse, outside clinical work, to honestly provide information relating to any criminal history to the nursing authorities when required to do so, which obligations were not discharged by Mr Hutchinson over a lengthy period of time. The tribunal is comfortably satisfied that the particularised dishonest behaviour under Complaint Five renders Mr Hutchinson not a suitable person for registration in the nursing profession, pursuant to section 149C(1)(d) of the National Law. Protective orders 81Mr Hutchinson failed to participate in these proceedings to deal with the evidence against him, and answer the questions the representative of the HCCC and the questions this tribunal may have wished to ask of him. Such questions would no doubt have included questions as to Mr Hutchinson's possible reformation of character and any insight into the relationship between his dishonest behaviour, the subject of the Complaints, and his practice of nursing. On the evidence before the tribunal it is clear that Mr Hutchinson lacks such insight. 82Further, the letters and written submissions provided by Mr Hutchinson to the HCCC and the tribunal, referred to previously, indicate that he has preferred his own interests in remaining a registered enrolled nurse to the interests of the nursing registration authorities in receiving honest information about any past criminal behaviour committed by him. In this respect, on the evidence before the tribunal, there is a risk that in the future Mr Hutchinson would again prefer his own interests in maintaining registration as an enrolled nurse and fail to honestly answer questions posed to him by the nursing authorities in relation to his criminal history. 83The tribunal confirms its previously stated view that Mr Hutchinson has committed serious criminal offences. His dishonest conduct spans a lengthy period of time. Mr Hutchinson's last failure to honestly disclose his past criminal history to the National Board was in 2012. The Tribunal has noted Mr Hutchinson's contrition and remorse for his past conduct. The tribunal notes there is a need, through its protective orders, to maintain confidence in the nursing profession. 84The tribunal has decided that Mr Hutchinson is guilty of professional misconduct, is unfit in the public interest to practice his nursing profession, and is not a suitable person for registration in that profession. 85The tribunal emphasises, as previously stated, that the overriding principle governing these proceedings is the protection of the public. As stated by Barrett JA in Health Care Complaints Commission v Lee [2012] NSW CA 80, at paragraph 20: "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. .... 21The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." 86It is noted that Mr Hutchinson's registration as an enrolled nurse lapsed on 31 May 2013 when he failed to renew his registration. In the view of the tribunal, and pursuant to section 149C(4)(a) of the National Law, had Mr Hutchinson been registered as an enrolled nurse at the time of these proceedings, it would have cancelled his registration. The tribunal, pursuant to section 149C(4)(b) of the National Law, decides that Mr Hutchinson is disqualified from being registered in the nursing profession for a period of one year from the date of its orders. Pursuant to section 149C(4)(c) of the National Law, the tribunal shall require the Nursing and Midwifery Board of Australia to record, in the National Register kept by that Board, the fact that the Tribunal would have cancelled Mr Hutchinson's registration as an enrolled nurse. 87The tribunal further decides that one year should elapse from the date of its orders before Mr Hutchinson can make an application for a review under section 163A of the National Law to NCAT to be registered as an enrolled nurse or nurse on the register of health practitioners maintained by AHPRA. The view of the tribunal is that Mr Hutchinson requires at least one year to reflect upon the tribunal's Reasons for Decision and develop insight into his past behaviour and its relationship with his duties of honesty and candour in the nursing profession, in order to be able to demonstrate those matters in any future review under section 163A of the National Law. Costs 88Costs are sought on behalf of the HCCC. As the successful party the HCCC is entitled to its costs. It has done nothing to preclude an order for the full costs that it is entitled to. Mr Hutchinson should pay the HCCC's costs of the proceedings, as agreed or assessed. The tribunal's orders * Pursuant to section 149C(4)(a) of the National Law, the tribunal decides that if Mr Hutchinson were still registered as an enrolled nurse it would have cancelled his registration on the register of health practitioners, in relation to enrolled nurses, kept by the Nursing and Midwifery Board of Australia and maintained by the Australian Health Practitioner Regulation Agency (AHPRA). * Pursuant to section 149C(4)(b) of the National Law, Mr Hutchinson is disqualified from being registered as an enrolled nurse or nurse in the nursing profession for a period of one year from the date of these orders. * Pursuant to section 149C(4)(c) of the National Law, the tribunal requires the Nursing and Midwifery Board of Australia to record, in the National Register kept by that Board, the fact that the Tribunal would have cancelled Mr Hutchinson's registration as an enrolled nurse. * The tribunal orders that at least one year elapse, from the date of these orders, before Mr Hutchinson may make an application for a review under s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law) to the Civil and Administrative Tribunal of New South Wales (NCAT) to be registered as an enrolled nurse or nurse on the register of health practitioners maintained by AHPRA. * The tribunal orders that Mr Hutchinson pay the HCCC's costs of these proceedings, 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: 18 December 2014