Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mortlock [2015] NSWCATOD 136 Hearing dates: 3 August 201522 September 2015 (final submissions) Date of orders: 04 December 2015 Decision date: 04 December 2015 Jurisdiction: Occupational Division Before: A Britton, Principal Member G Tolhurst, Professional Member C Selkirk, Professional Member P Hooker, Lay Member Decision: 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law) the Tribunal decides that if Mr Mortlock were still registered it would have cancelled his registration. 2. Pursuant to s 149C(4)(b) of the National Law, the Tribunal decides Mr Mortlock is disqualified from being registered as a nurse for a period of 36 months from the date of this decision. 3. Pursuant to s 149C(4)(c) of the National Law, the Tribunal requires the National Board with which Mr Mortlock was registered to record the fact that the Tribunal would have cancelled Mr Mortlock's registration for a period of 36 months from the date of this decision. 4. Pursuant to s 149C(5) of the National Law, Mr Mortlock is prohibited from providing the following health services unless and until he is re-registered as a nurse: (a) Medical, hospital, nursing or midwifery services (b) Mental health services (c ) Community health services (d) Health education services (e ) Welfare services necessary to implement and services referred to in paragraphs (a) to (d). 5. Mr Mortlock must pay 80 per cent of the Commission's costs of the proceedings as agreed and failing agreement liberty to restore before the Tribunal. Catchwords: ADMINISTRATIVE LAW — Civil and Administrative Tribunal (NSW) — health practitioner — whether practitioner guilty of unsatisfactory professional conduct — whether practitioner guilty of professional misconduct — appropriate disciplinary orders where finding made that practitioner is guilty of professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Lee v Health Care Complaints Commission [2012] NSWCA 80 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) L Mortlock (Respondent) Representation: Counsel: P Griffin SC (Applicant) Solicitors: Health Care Complaints Commission (Applicant) L Mortlock (Respondent in Person) File Number(s): 1520082 Publication restriction: See [7] of these Reasons REASONS FOR DECISION 1. Mr Leslie Mortlock is in his late 30s and first registered as an enrolled nurse in 1997. He worked for about eight years in the paediatric ward of a regional hospital in NSW (the Hospital). Mr Mortlock's employment was ultimately terminated, following an allegation made by the mother of a former 16-year-old patient, that he was in a sexual relationship with her daughter. In the course of investigating that allegation, it was discovered that Mr Mortlock had been accessing, without authorisation the Hospital files of a number of female patients aged between 11 and 16 and communicating via Facebook with a former patient, who was also a minor. 2. In September 2013, following receipt of the report of the Hospital's investigation, the Nursing and Midwifery Council of NSW (the Council), decided to suspend Mr Mortlock's registration as an enrolled nurse under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law). 3. In December 2014, Mr Mortlock surrendered his registration to the Nursing and Midwifery Board of Australia under s 137 of the National Law. In a statutory declaration made on 3 December 2014, Mr Mortlock undertook not to seek re-registration as a nurse or to practise as a nurse in Australia. 4. The Health Care Complaints Commission (the Commission) referred three complaints (the Complaints) about Mr Mortlock to the Civil and Administrative Tribunal of New South Wales (NCAT). The gravamen of the Complaints was the sexual relationship with the former patient referred to above, who in these Reasons we will refer to by the pseudonym "Patient A". The Complaints also included allegations about Mr Mortlock's conduct in relation to other former patients, said to have occurred between May 2010 and November 2013. 5. The Commission contends that the conduct particularised in the Complaints constitutes "unsatisfactory conduct" and/or "professional misconduct" (ss 139B and 139E of the National Law). 6. For the reasons set out below we have decided to: 1. Order that if Mr Mortlock were still registered as nurse we would have cancelled his registration (s 149C(4)(a) of the National Law) 2. Disqualify Mr Mortlock from being registered as a nurse for a period of three years from the date of this decision (s 149C(4)(b) of the National Law) 3. Prohibit Mr Mortlock from providing various "health services" for a period of three years from the date of this decision (ss 149C(5)(b) and 149C(5A) of the National Law). Suppression orders 1. In the course of these proceedings we made orders under cl 7 of sch 5D to the National Law to, among other things, prohibit the disclosure, or publication of, the name of Mr Mortlock's former patients and any relatives named in the Complaint. Given that the conduct the subject of the Complaint occurred in a small regional town we also decided not to refer in these Reasons to the name to the town, or the hospital where Mr Mortlock was employed. 2. In addition, we gave consideration to whether by referring in these Reasons to Mr Mortlock by name, the identity of those persons who are the subject of the suppression order referred to above might be disclosed. After reviewing our Reasons for decision, we concluded that this was unlikely and therefore decided not to extend the suppression order to Mr Mortlock. Mr Mortlock admits the Complaints 1. On 1 July 2015, the NSW Nurses Association notified the Tribunal that Mr Mortlock admitted all but one of the particulars of the Complaint referred by the Commission to the Tribunal (Complaint 2, particular 2). 2. On 28 July 2015, the Commission provided the Association with an amended Complaint. Apart from the name of the person the subject of Complaint 2, particular 2, the terms of the amended Complaint were identical to the original Complaint. In a letter dated 3 August 2015, the Association notified the Commission that Mr Mortlock admitted all of the particulars of the amended Complaint. 3. At the commencement of the hearing we gave the Commission leave to amend the Complaint. For convenience, in these Reasons we refer to the amended Complaint as "the Complaint". Mr Mortlock's participation in these proceedings 1. Mr Mortlock neither attended nor was represented at the hearing before us to determine the Complaints. At his request, we granted Mr Mortlock the opportunity to make written submissions about the Commission's application for costs. Background to the Complaints 1. As noted, the trigger for the Complaint was the report made to the Hospital in March 2013 by the mother of Patient A. The mother, who in these Reasons we will refer to by the pseudonym "Person BB", alleged that Mr Mortlock was engaged in a sexual relationship with her (then) 16-year-old daughter, who 12 months earlier had been a patient of the paediatric ward where Mr Mortlock worked. 2. On receiving that report, the Hospital stood down Mr Mortlock and commenced an investigation. In the course of that investigation, it was discovered that between June 2010 and September 2012, Mr Mortlock had accessed, without authorisation, Hospital records of six female paediatric patients. Investigators also discovered that for over two years Mr Mortlock had been communicating through Facebook with a former patient, Patient D. That communication commenced in mid-2011 when Patient D was 15 years of age. 3. The Hospital terminated Mr Mortlock's employment in September 2013. The relationship with Patient A 1. In February 2012, then 15 year old Patient A, spent two days as an inpatient at the Hospital for treatment of an infection. Mr Mortlock was rostered to work two shifts during that period. 2. A few months later, Mr Mortlock and Patient A commenced a close personal relationship, which continued for about nine months. When interviewed by Police in April 2013, Mr Mortlock claimed that the relationship did not commence until after Patient A turned 16 in mid-2012. He denied having sexual intercourse with Patient A, but admitted to some physical conduct: "kissing and hugging". Patient A corroborated those claims. 3. When interviewed by Hospital investigators in May 2013, Mr Mortlock said his relationship was more of "a friendship because [Patient A] was obviously only 16". He agreed that Patient A had sent him photos of her in various stages of undress but claimed he deleted them "pretty much straight away". 4. In a statement given to the Commission in June 2014, Patient A stated that she first "broke up" with Mr Mortlock in or about February 2013 when her parents found out about the relationship. On her account, Mr Mortlock initiated contact four months later. They started "dating again" and a sexual relationship developed. She stated that she ended the relationship in late 2013 when she discovered Mr Mortlock had been "seeing other girls". 5. In a statement given to the Commission in June 2014, Person BB alleged that shortly after her daughter was discharged from Hospital in February 2012, she discovered that Mr Mortlock had been communicating via Facebook with, and given his phone number to, Patient A and her younger sister, Person AA. She spoke with Mr Mortlock a few times about his relationship with her daughter and told him she was a "very mixed up little girl" who had experienced "a lot of trauma" and asked him to end the relationship. She claimed Mr Mortlock reassured her he would respect her wishes. 6. Person BB stated that in February 2013 she confronted Mr Mortlock and demanded that the relationship cease. She said she decided to report the relationship to police in April 2013 when she learned Mr Mortlock and Patient A had been sending each other photos of themselves and had "done more than just hold hands and kiss". * During the section 150 hearing conducted in September 2013, Mr Mortlock admitted: * He contacted Patient A in mid-2012 after meeting her at the local shopping centre * They "started talking" around the end of September 2012, and a month later met up and "hugged and kissed" * In November 2013 at her request he gave Patient A a ring he was wearing * Patient A's parents approached him in November 2013 and asked him to stop seeing their daughter * Person BB told him her daughter had a "bad past" and a lot of issues with boys and became "very easily attached to people" and to "be careful" * He sent photos of himself to Patient A. He said he could not recall if he was naked in any of the photos but could not "absolutely say" he was not. 1. During the section 150 hearing, in answer to a question about whether at the time he had misgivings about his relationship with Patient A, Mr Mortlock replied: I think it kind of did pop into my head that the relationship was never a good idea, but I think the other thing was I kind of had an instance of being impatient in the time down the track, and when I kind of in a way convinced myself that, yeah, she was 16 and then when we're kind of talking, we kind of seemed to relate, we kind of seemed to click. 1. Later, when asked about his understanding of "professional boundaries" Mr Mortlock replied: Basically hindsight is a wonderful thing, and actually there was now, but obviously I have breached my professional boundaries. Basically in regard to this kind of thing, her being (indistinct) she was a patient of mine, that she should remain a patient of mine, and that online friendships, relationships outside of that, there is a patient relationship, it's obviously wrong and we shouldn't have gone to go there. Accessing patient records 1. Mr Mortlock admits accessing the electronic records held by the Hospital of six former female patients between June 2010 and September 2012. When asked at the section 150 hearing why he did so, Mr Mortlock replied that he was interested in "… see[ing] what's happened to them … [to] see if there was any change in diagnosis". He also stated some were long-term patients and he had a "personal interest" in their progress. 2. In a statement dated 16 May 2014, Hospital investigator, Mr Michael Parry wrote that on discovering that Mr Mortlock had used the log on identity numbers of other staff members to check Patient A's records after her discharge from Hospital, he decided to investigate whether Mr Mortlock had accessed the records of other patients after their discharge. In undertaking that task Mr Parry: * Identified those female patients between the ages of seven and 14 who had been admitted to the paediatric ward where Mr Mortlock was working at around the same time as he accessed Patients A's records (17 September 2012 and 6 March 2013) * Selected six patients at random from that list * Found that after their discharge, Mr Mortlock had accessed Hospital records of all but one of those patients, by using either his log on number or that of another staff member. 1. In a letter to the Council dated 27 September 2013, Mr Mortlock wrote that he had accessed the records of both male and female discharged patients "out of curiosity" and to follow up on their progress. He also admitted to using the log on numbers of other staff and claimed he did so for reasons of convenience because the other staff member was already logged on to the Hospital's electronic record keeping system. He wrote that he now understands that his actions were inappropriate and breached patient confidentiality. Communicating with Patient D via Facebook 1. Mr Mortlock communicated through Facebook with Patient D for over two years, commencing when Patient D was 15 years of age. 2. When interviewed by Hospital investigators in May 2013, Mr Mortlock stated the reason he had been corresponding with Patient D was because he was concerned about her health and whether she was coping with a chronic physical condition which had led to multiple hospital admissions. Mr Mortlock described his relationship with Patient D as "more of an acquaintance than a friend". He stated it was different to his relationship with Patient A with whom he just "clicked". 3. In a statement provided to the Commission, mental health nurse, Ms Ruth Reynolds stated that Mr Mortlock had asked her about Patient D on a number of occasions. She said that she gained the impression from their discussions that Mr Mortlock knew Patient D outside the Hospital context, through a family or sporting association. She denied, as alleged by Mr Mortlock, requesting that he contact Patient D via Facebook to ask if she was complying with her medication. She recalled cautioning Mr Mortlock about having patients as Facebook friends and suggesting that he "unfriend" Patient D. Giving gifts to Patients B and G 1. Mr Mortlock admits to sending small gifts to Patients B (aged seven) and G (aged eight), respectively a teddy bear and bracelet, after they were discharged from hospital. After Patient G's discharge, Mr Mortlock commenced a relationship with her mother. 2. In a letter to the Council dated 27 September 2013, Mr Mortlock stated that he commonly gave small gifts to male and female patients. Issues for determination 1. The key issues we must decide are: * Whether some or all of the conduct particularised in the Complaints occurred * If so, whether some or all of that conduct constitutes "unsatisfactory professional conduct" * If so, whether some or all of that conduct constitutes "professional misconduct" * If so, whether any disciplinary orders should be made under the National Law. Scope of the Complaints 1. The weight of evidence indicates that the conduct particularised in the Complaints, is not the only conduct which might constitute "unsatisfactory professional conduct" by Mr Mortlock. For example, the finding by the Hospital investigators that Mr Mortlock accessed, without authorisation, the patient records of all but one of the six patients selected at random, suggests that this was not the occasion he did so. Similarly, the statements given to the Commission by Patient A and her mother, suggest that the relationship with Patient A extended beyond the nine months referred to in the Complaints. 2. However, our task is to conduct an inquiry into the Complaints referred by the Commission. Accordingly, in deciding whether Mr Mortlock's conduct constitutes unsatisfactory professional conduct or professional misconduct we have not taken into account any conduct that falls outside the scope of the Complaints. Did the conduct occur? 1. Mr Mortlock admits to all of the conduct particularised in the Complaints. There is ample evidence to support each of the allegations made. We are comfortably satisfied that all of the conduct particularised in the Complaint occurred. Is Mr Mortlock guilty of unsatisfactory professional conduct? 1. The Commission contends that the conduct particularised in the Complaint constitutes "unsatisfactory professional conduct" within the meaning of ss 139B(1)(a) and 139(1)(l) of the National Law: Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the … 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. Does Mr Mortlock's conduct in relation to Patient A constitute unsatisfactory professional conduct (Complaint 1, particulars 1, 2 and 4)? 1. Mr Mortlock admits that this conduct contravenes the NSW Ministry of Health Code of Conduct (the Code of Conduct), Policy Directives PD2005_626 and PD2012_018 and the Code of Professional Conduct for Nurses in Australia of the Nursing and Midwifery Board of Australia (the Code of Conduct for Nurses). 2. Issued in May 2005 the Code of Conduct states in part: All staff will carry out their duties to the best of their ability and to follow the highest standards of conduct. … 1.4 Personal relationships with patients and clients I will not have personal relationships with patients or clients that result in any form of exploitation, obligation or sexual gratification. … 1.5 Sexual relationships with patients or clients I will not exploit my relationship of trust with patients or clients in any way because I recognise that such behaviour is a breach of professional and ethical boundaries and amounts to serious misconduct. I will not have a sexual relationship with a patient or client during the professional relationship. 1. Part 2 of the Code explains: 1.4 Personal relationships with patients/clients Relationships with patients/clients, as referred to in this section, may be social, sexual or other types of relationships (eg financial) and may not be acceptable conduct. Any of these kinds of relationships may result in some form of exploitation of a patient/client or involve some form of obligation or expectation being created in the patient/client. Staff must be aware that there is a power imbalance and that unconscious processes are at work in relationships with patients, clients and their cares Staff must be aware that many patients or clients may be particularly vulnerable through having experienced abuse or exploitation in the past. … 1.4 Sexual relationships with clients and patients Various Professional Boards set standards of behaviour for health professionals in their relationships with clients or patients … These standards apply during, and in many cases, after the professional relationship has ended. The term 'sexual .relationship' is not restricted to sexual intercourse. A 'sexual relationship' includes any form of physical contact, whether initiated by the patient/client or staff member and regardless of whether there is consent, which has as its purpose some form of sexual gratification, or which might be reasonably interpreted by the patient or client as having that purpose. Sexual relationships with children constitute a criminal offence under the NSW Crimes Act 1900. ... 1. The Code of Conduct for Nurses relevantly states: Conduct Statement 8 Nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care Explanation 1. An inherent power imbalance exists within the relationship between people receiving care and nurses that may make the persons in their care vulnerable and open to exploitation. Nurses actively preserve the dignity of people through practised kindness and respect for the vulnerability and powerlessness of people in their care. Significant vulnerability and powerlessness can arise from the experience of illness and the need to engage with the health care system. The power relativities between a person and a nurse can be significant, particularly where the person has limited knowledge; experiences pain and illness; needs assistance with personal care; belongs to a marginalised group; or experiences an unfamiliar loss of self-determination. This vulnerability creates a power differential in the relationship between nurses and persons in their care that must be recognised and managed. … 5. Sexual relationships between nurses and persons with whom they have previously entered into a professional relationship are inappropriate in most circumstances. Such relationships automatically raise questions of integrity in relation to nurses exploiting the vulnerability of persons who are or who have been in their care. Consent is not an acceptable defence in the case of sexual or intimate behaviour within such relationships. … 1. When the subject relationship commenced Patient A had just turned 16. Months earlier Patient A was in the paediatric ward of the Hospital and in the care of Mr Mortlock. Mr Mortlock was 20 years her senior. The weight of evidence indicates that Mr Mortlock initiated the relationship which continued for at least 10 months. 2. An aggravating feature of Mr Mortlock's conduct was his failure to end the relationship after being requested to do so by Patient A's parents and being told of their concerns for their daughter's vulnerability on account of a "troubled past". 3. The Code of Conduct for Nurses states that sexual relationships between nurses and former patients automatically "raise questions of integrity in relation to nurses exploiting the vulnerability of persons who … have been in their care" and are inappropriate in "most circumstances". There were no mitigating factors that might make "appropriate" Mr Mortlock's actions in engaging in a relationship with Patient A — a young, vulnerable former patient. 4. It almost goes without saying that Mr Mortlock's conduct in engaging in a sexual relationship with Patient A constitutes improper conduct relating to the practice of nursing. We find the conduct particularised in Complaint 1, particulars 1, 2 and 4 constitutes improper conduct within the meaning of s 139B(1)(l) of the National Law. Given that finding it is not necessary to address whether that conduct also constitutes unsatisfactory professional conduct within the meaning of s 139(1)(a) of the National Law. Does Mr Mortlock's action in accessing patient hospital records constitute unsatisfactory professional conduct (Complaint 2, Particular 1)? 1. Mr Mortlock admits to accessing the Hospital records of six former patients after they were discharged from Hospital. He admits he did not access the records for a clinical reason but rather "out of curiosity". 2. Even if that explanation is accepted, Mr Mortlock's actions constitute a failure to comply with his obligations to maintain patient confidentiality and to access and use patient records only for authorised purposes (see for example, Code of Conduct PD 2012_018 at [4.5]). His actions in using the log on numbers of colleagues to access that information demonstrates disregard for the need to maintain the integrity of the Hospital's records and a further example of unprofessional conduct. 3. We find that by accessing patient records without authorisation and, on occasion using the log on numbers of colleagues to do so, separately and in combination, demonstrates that the judgment possessed and care exercised by Mr Mortlock in the practice of his profession was significantly below the standard reasonably expected of an enrolled nurse of an equivalent level of experience, namely a nurse of 16 years standing. We find Mr Mortlock guilty of unsatisfactory professional conduct within the meaning of s 139(1)(a) of the National Law. Does Mr Mortlock's conduct in communicating through Facebook with Patient D and Person AA constitute unsatisfactory professional conduct (Complaint 1, Particular 4 and Complaint 2, Particular 2)? 1. As noted, Mr Mortlock communicated through Facebook with Patient D and Patient A's younger sister, Person AA. In each case the communication took place over a significant period: 10 months in the case of Person BB and over two years in the case of Patient D. 2. In assessing the nature and gravity of this conduct, we have not addressed whether it constitutes "grooming", as this was not alleged in the Complaint. (In using the word grooming we adopt the meaning given by the NSW Ombudsman in Defining Reportable Conduct, Practice Update 2013/1: "[A] pattern of conduct that is consistent with grooming the alleged victim for sexual activity [where] there is no other reasonable explanation for it".) Nonetheless, it provides a further stark example of Mr Mortlock's failure to maintain professional boundaries in the nurse-patient relationship, especially where the former patient, or their relative, is a minor. In addition, it constitutes a contravention of the Code of Conduct for Nurses, Conduct Statement 8. 3. Even if, as Mr Mortlock claims, he had no ulterior motive for pursuing the on-line relationship with Person AA and Patient D, his decision to do so constitutes a serious error of judgement and a failure to maintain proper professional boundaries. We find this conduct demonstrates that the judgment possessed and care exercised by Mr Mortlock in the practice of his profession was significantly below the standard reasonably expected of a practitioner of an equivalent level of experience. We find Mr Mortlock guilty of unsatisfactory professional conduct within the meaning of s 139(1)(a) of the National Law. Does Mr Mortlock's conduct in giving gifts to Patient B and G constitute unsatisfactory professional conduct (Complaint 2, particulars 3, 4)? 1. Like the Commission's expert, Ms Jordan, who in a report dated 17 August 2014 set out her opinion of the appropriateness or otherwise of Mr Mortlock's conduct, we have misgivings as to whether giving small gifts to Patients B and G constitutes unsatisfactory professional conduct. Apart from the giving of gifts, there is no evidence that Mr Mortlock contacted or had any further dealings with either patient after they were discharged from hospital. 2. We have not been taken to anything in the Codes relied on by the Commission which expressly prohibits nurses giving small gifts to either current or former patients. 3. In our view, the giving of gifts to former patients is ill-advised, especially where the person is a minor. It provides a further example of Mr Mortlock's failure to recognise the need to maintain professional boundaries, but in our opinion does not constitute unethical or improper conduct. While it demonstrates judgement and care below the standard reasonably expected of a practitioner of an equivalent level of experience to Mr Mortlock, we are not satisfied on balance that it demonstrates judgement and care that falls "significantly short" of that standard. 4. We are not satisfied that this conduct constitutes unsatisfactory professional conduct. Is Mr Mortlock guilty of professional misconduct? 1. Relying on the conduct particularised in Complaints 1 and 2, individually and cumulatively, the Commission contends that Mr Mortlock's conduct constitutes "professional misconduct". Professional misconduct of a registered health practitioner is defined by s 139E of the National Law to mean: (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. Is the conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Mortlock's registration? 1. In evaluating whether the conduct we found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances which bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, the existence of any mitigating factors and an assessment of where the conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. The gravity of the impugned conduct is not to be measured by reference to the worst cases, but by reference to the extent it departs from proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. 2. Of the conduct found to constitute unsatisfactory professional conduct, Mr Mortlock's actions in engaging in a sexual relationship with Patient A in our opinion, is the most serious (Complaint 1, particulars 1, 2 and 4). Engaging in a sexual relationship for a significant period with a 16 year-old former patient, in circumstances where Mr Mortlock was on notice of her parents' concern about the girl's vulnerability not just on account of her age but because of a difficult past, demonstrates a callous disregard for the girl's interests and a gross violation of practitioner/patient boundaries. We have no hesitation in finding that conduct to be "sufficiently serious" to warrant suspension or cancellation. 3. We find that conduct taken together with the balance of the conduct found to constitute unsatisfactory professional conduct, also constitutes professional misconduct. 4. We find Mr Mortlock guilty of professional misconduct within the meaning of s 139E of the National Law. What if any disciplinary orders should be made? 1. Headed "Disciplinary Powers of Tribunals" Part 8, Division 3, Sub Division 6 of the National Law sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and impose conditions on the practitioner's registration. Where, as in this case, a person is guilty of professional misconduct and is no longer registered as a health practitioner, the Tribunal may: 149C Tribunal may suspend or cancel registration in certain cases [NSW] ... (4) If the person is no longer registered, the Tribunal may; (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. 1. The Tribunal is directed that in exercising its functions under the National Law, the protection of the health and safety of the public must be the paramount consideration (s 3A of the National Law). 2. Wright J in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] summarised the principles underlying the purpose of orders made under Part 8, Division 3, Sub Division 6: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) 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 - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - 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 v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. Orders sought by the Commission 1. The Commission seeks the following: (1) A decision made under s 149C(4)(a) of the National Law that if Mr Mortlock were still registered as a nurse the Tribunal would have cancelled his registration; (2) An order made under s 149C(4)(b) of the National Law that Mr Mortlock is disqualified from being registered as a nurse for a period of three years from the date of this decision (s 149C(4)(b) of the National Law); (3) An order made under ss 149C(5) and 149C(5A) of the National Law that Mr Mortlock is prohibited from providing the various "health services" for a period of three years from the date of this decision or until he becomes registered whether provided as public or private services: (a) Medical, hospital, nursing or midwifery services; (b) Mental health services; (c) Community health services; (d) Health education services; (e) Welfare services necessary to implement and services referred to in paragraphs (a) to (d). 1. It does not automatically follow that where a practitioner who is not currently registered is found guilty of professional misconduct that an order must be under s 149C(4)(a). It is but one of a suite of orders available where a practitioner is found guilty of misconduct. While the safety of the public is the paramount consideration, any order made must nonetheless be commensurate with the seriousness of the conduct found to constitute unsatisfactory professional misconduct. 2. As noted, in a statutory declaration made on 3 December 2014, Mr Mortlock declared he had surrendered his registration as a nurse and undertook not to seek re-registration or to practise as a nurse in Australia. Nonetheless, for the following reasons we have decided that it is appropriate to make the orders sought by the Commission. First, the undertaking given by Mr Mortlock is not enforceable. Second, making the orders sought signals to the profession the risk of failing to comply with professional standards (see Prakash v Health Care Complaints Commission at [91]). Third, while the decision to surrender his registration and to undertake not to practise as a nurse in the future suggests that Mr Mortlock recognises the gravity of the offending conduct, there is no evidence to indicate that Mr Mortlock has taken steps to reduce the risk that that conduct might be repeated. Should a prohibition order be made? 1. Section 149C(5) of the National Law gives the Tribunal power to make a prohibition order: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order") do any one or more of the following- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. (emphasis added) 1. The power conferred by 149C(5) can be exercised where, as in this case, the person is no longer registered and the Tribunal makes a decision under s 149C(4), that it would have suspended or cancelled the person's registration if the person were still registered. Section 5 of the National Law defines "health services" to include the following services, whether provided as public or private services: (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; … (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); ... 1. The power to make a prohibition order can only be exercised if we are satisfied that Mr Mortlock poses a substantial risk to the health of members of the public. In the absence of any evidence of rehabilitation or evidence that the conduct is unlikely to be repeated, we are comfortably satisfied that Mr Mortlock poses a substantial risk to members of the public. 2. Apart from the directive that the protection of the health and safety of the public is the paramount consideration, the Act gives no guidance on the factors to be taken into account in deciding whether the power to make a prohibition order should be exercised. In our opinion, consistent with the line of authority that the purpose of disciplinary orders is protective not punitive, any order made under s 149C(5) must be measured and proportionate to the risk posed by the practitioner. 3. Mr Mortlock has worked almost exclusively in the area of paediatrics since he commenced work as an enrolled nurse in 1997. Therefore it has not been tested whether if he were to work with adults he might fail to maintain proper professional boundaries. Absent some evidence that if he were to work with adults Mr Mortlock would be likely to observe professional boundaries and respect the confidentiality of patient records we have decided not to restrict the scope of the prohibition orders to "health services" provided to persons under 18 years of age. Should an award for costs be made? 1. The Commission applies for its costs of the proceedings. Mr Mortlock opposes that application. His primary submission is that each party should bear their own costs, and, in the alternative, that he be required to pay half of the Commission's costs. 2. The power to award costs in proceedings where a complaint has been referred for determination under the National Law, is found in cl 13 of Schedule 5D to the National Law: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner … at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. … 1. Mr Mortlock requested and was given leave to make written submissions on the issue of costs. In making our decision we have taken into account the submissions made by the Commission at the hearing and, in addition, the written submissions received from both parties following the hearing. 2. Mr Mortlock submits that his following actions warrant a departure from the "usual rule" that costs "follow the event": 1. surrendering his registration as a nurse in December 2014 and undertaking not to apply to be restored to the register of nurses or to practice as nurse. 2. admitting of all of the particulars of the amended Complaint. 3. informing the Tribunal well in advance of the hearing that he would not be participating in the hearing. 4. complying with all directions made by the Tribunal. 1. Mr Mortlock cites in support Health Care Complaints Commission v Rolleston [2013] NSWMT 12 (Rolleston) and Health Care Complaints Commission v Bard [2013] NSWNMT 15 (Bard), where, despite the respective complaints being upheld, the "usual rule" was not applied. In Rolleston, the Tribunal ordered that both parties bear their own costs noting that at an early stage of the proceedings the respondent practitioner had indicated he had no intention of practising medicine in the future, did not propose to renew his registration when it fell due and would not be defending the proceedings. In Bard, the Tribunal ordered the respondent practitioner to pay half of the Commission's costs. In Bard the Tribunal noted at [172] that the facts of that case were distinguishable from Rolleston because while initially the practitioner did all she could to bring the proceedings to an end, she did not "ultimately concede all or any of the complaints made against her in the Complaint". 2. Mr Mortlock submits it is relevant that he was deprived of the opportunity to consider whether to apply to the Tribunal to vacate the hearing because of the Commission's error in the drafting of the original complaint, namely, identifying the wrong patient in Complaint 2, particular 2. That error he argues was compounded by the Commission's failure to provide him with the amended Complaint until two days before the hearing. 3. The Commission contends that fairness dictates that as the unsuccessful party Mr Mortlock should bear the liability for costs and he has failed to demonstrate that some other order is appropriate: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at (Oshlack) [134]. The Commission argues that in circumstances where it has not acted improperly or in a manner that unnecessarily prolonged proceedings, it should not be penalised by not receiving a full costs order when it is simply discharging its statutory obligation by referring a complaint to the Tribunal. 4. The Commission contends that the facts of this case are distinguishable from Rolleston where the Tribunal found that the practitioner had "done all that can be reasonably expected of him to finalise the proceedings in an expeditious manner": at [84]. While the Commission acknowledges that Mr Mortlock admitted the particulars of the Complaints it points out that he failed to inform the Tribunal whether he agreed with its characterisation of the conduct or the protective orders it sought. In those circumstances it was simply not open to the Tribunal to decide whether to exercise the power to dispense with conducting an inquiry. The Commission contends that the following steps would need to be taken by a respondent practitioner before the Tribunal could give consideration to exercising its powers to dispense with a hearing under s 165H of the National Law: 1. Admit all of the particulars of the complaints. 2. Concede that the admitted complaints amounted to professional misconduct. 3. Agree to an agreed statement of facts. Consideration 1. The Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) considered the exercise of the discretion to award costs and accepted at [42] that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event". See also Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]; and, in relation to a similar but not identical cost provision, Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 (Lucire) and Ohn v Walton (1995) 36 NSWLR 77 at p 79. The Court of Appeal accepted nonetheless that factors may exist that might militate against the successful party recovering all of its costs: Philipiah at [42]; Lucire at [48]-[52]. 2. The authorities have emphasised that while the discretion not to award costs to the successful party is unfettered it must nonetheless be exercised judicially. The discretion is a judicial one and "must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion": Philipiah at [43]. The Court of Appeal observed in Philipiah at [43] that it is "not easy to state the precise principles" that are to guide a decision maker in exercising the discretion over costs. The discretion is only to be exercised where there are materials upon which to exercise it (Philipiah at [43]; Williams v Lewer (1974) 2 NSWLR 91 at 95). 3. The presumption to award costs to the successful party in proceedings is generally only displaced where there has some "disentitling conduct" by the successful party: Oshlack at [40]. In Lucire at [49] – [53], the Court of Appeal identified three factors that militated against the Commission recovering all its costs in that matter: 1. First, the Commission's lack of success in obtaining findings against the practitioner in respect of professional misconduct. 2. Second, the Commission's failure to establish each of the particulars pleaded. 3. Third, oppressive conduct on the part of the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire at [48] - [52]). 1. As the Commission correctly points out, as the successful party it has a "reasonable expectation" of receiving its costs Oshlack at [134]. The issue to be determined is whether the factors identified by Mr Mortlock warrant a departure from the presumption that the successful party is ordinarily entitled to recover its costs. 2. Of significance, in our view, is the error contained in the original Complaint. The Commission was on notice since receiving Mr Mortlock's statement of 22 June 2015 that he admitted all of but Complaint 2, particular 2 of the original Complaint. He was not given the amended Complaint until the eleventh hour. As a consequence, the Tribunal was not informed that Mr Mortlock admitted all of the particulars of the amended Complaints until the commencement of the hearing. 3. Mr Mortlock contends that if he had been given sufficient notice of the amended Complaint, he would have been in a position to consider whether to request the Tribunal to exercise its powers under s 165H of the National Law to dispense with holding an inquiry. 4. The operation of s 165H was considered by Boland J in Health Care Complaints Commission v Khan [2014] NSWCATOD 83 at [25] – [30]. Her Honour observed at [25] that admission of a complaint does not obviate the need for the Tribunal to "independently examine the complaint to determine appropriate protective orders, and to provide reasons for any protective orders flowing from the admitted complaint". 5. It does not follow that where a party admits to the whole of a complaint that the Tribunal must exercise its power not to conduct an inquiry. It simply means the pre-condition to the exercise of that power conferred by s 165H has been satisfied. 6. There is strength in the Commission's submission that even had Mr Mortlock requested that we exercise our power not to conduct an inquiry we may have been reluctant to do so given had not informed us whether the admitted conduct constituted unsatisfactory or professional misconduct and/or commented on the form of protective order sought by the Commission. 7. Nonetheless, the error in the original complaint meant that Mr Mortlock was deprived of the opportunity to make that request. Taken together with Mr Mortlock's actions in advising the Tribunal in advance of the hearing that he admitted to the conduct particularised in the original complaint (apart from Complaint 2, particular 2), and after receiving the amended Complaint promptly informing the Tribunal that he admitted all its particulars, we believe it appropriate not to order that Mr Mortlock pay all of the Commission's costs. In reaching that decision we note that apart from the error in the original Complaint the Commission's conduct of the proceedings was exemplary. 8. In the interest of completeness, we address whether our decision not to adopt the Commission's characterisation of Complaint 2, particulars 3 and 4 (the giving of gifts to former patients) should be taken into account in any order for costs. The characterisation of that conduct was a discrete issue and involved a relatively small proportion of the time at the hearing. In those circumstances we have decided that it does not provide a basis to reduce the costs payable to the Commission. 9. The task of apportioning costs where a finding is made that factors exist that militate against the making of the "usual order" is notoriously difficult. This case is no exception. Having regarding to our comments above we believe the costs payable to the Commission should be reduced by a small proportion and for that reason we have decided to order that Mr Mortlock pay 80 per cent of the Commission's costs. Orders 1. Pursuant to s 149C(4)(a) of the National Law the Tribunal decides that if Mr Mortlock were still registered it would have cancelled his registration. 2. Pursuant to s 149C(4)(b) of the National Law, the Tribunal decides Mr Mortlock is disqualified from being registered as a nurse for a period of 36 months from the date of this decision. 3. Pursuant to s 149C(4)(c) of the National Law, the Tribunal requires the National Board with which Mr Mortlock was registered to record the fact that the Tribunal would have cancelled Mr Mortlock's registration for a period of 36 months from the date of this decision. 4. Pursuant to s 149C(5) of the National Law, Mr Mortlock is prohibited from providing the following health services unless and until he is re-registered as a nurse: (a) Medical, hospital, nursing or midwifery services (b) Mental health services (c ) Community health services (d) Health education services (e ) Welfare services necessary to implement and services referred to in paragraphs (a) to (d). 5. Mr Mortlock must pay 80 per cent of the Commission's costs of the procceedings as agreed and failing agreement liberty to restore before the Tribunal. 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 December 2015