Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Greive [2016] NSWCATOD 28 Hearing dates: 21 December 2015 Date of orders: 16 March 2016 Decision date: 16 March 2016 Jurisdiction: Occupational Division Before: Y Grant, Senior Member K Andersson-Noorgard, Professional Member B Monley, Professional Member R Lorschy, Lay Member Decision: 1. The Tribunal would have cancelled the Respondent's registration if he was still registered. 2. That the Respondent be disqualified from being registered as a Nurse for a period of 18 months. 3. That the National Board is to record in the National Register that the Tribunal would have cancelled the Respondent's registration. 4. That the Respondent be subject to a prohibition order which will prevent him from providing the following health services on a public, private or volunteer basis 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 the services referred to in paragraphs (a)-(d). 5. Costs: The Tribunal makes an order that the Respondent pay the Complainant's costs in the proceedings. 6. The Tribunal makes the Suppression Order pursuant to Schedule 5D, Clause 7 of Health Practitioner Regulation (National Law) NSW to protect the identity of Patient A including anything that may tend to identify her. Catchwords: Professional boundaries of a Registered Nurse in care of patient in Mental Health Unit. Legislation Cited: Health Practitioner Regulation (National Law) NSW Cases Cited: Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3 Gianoutsos v Glykas (2006) 65 NSWLR 539 at 547-9 In re Dry Suman Sood [2006] NSW MT 1 at 10 Polglaze v Veterinary Practitioners Board of New South Wales [2009] NSWSC 347 at [31] Health Care Complaints Commission v Fraser [2014] NSWCA TOD 29 HCCC v Guo [2011] NSWMT 29 (15 November 2011) HCCC v Shah [2013] NSWMT 1 (12 March 2013) Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200 Health Care Complaints Commission v Dr Jamison [2014] NSWCA TOD 56 at [102] Lee v HCCC [2012] NSWCA 80 at [34] Clyne v New South Wales Bar Association (1961) 04 CLR 186 at 201-202 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637 NSW Bar Association v Meakes [2006] NSWCA 340 at [114] Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82] Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] and [39] Re Dr Parajuli [2010] NSWMT 3 at [32] Saville v Health Care Complaints Commission [2006] NSWCA 298 at [45] Prakash v Health Care Complaints Commission [2006] NSWCA 153 Health Care Complaints Commission v Perroux [2011] NSWDC 99 at [18] Heath Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA at [67]. Qidwai v Brown (1948) 1 NSWLR 100 Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [52]-[54] HCCC v Dinaker [2009] NSWMT 8 Ohn v Walton (1995) 36 NSWLR 77 HCCC v Dr Della Bruna [2014] NSWCA TOD 31 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Mike Siebe Greive (Respondent) Representation: Counsel: Health Care Complaints Commission (Complainant in person) W Hunt (Respondent) File Number(s): 1520178 REASONS FOR DECISION Introduction 1. These proceedings arise because the Director of Proceedings, Health Care Complaints Commission ('HCCC'), ("the Complainant"), having consulted with the Nursing and Midwifery Council of New South Wales, in accordance with ss.39(2) and 90B(3) of the Health Care Complaints Act 1993 and s.145A of the Health Practitioner Regulation National Law (NSW) ('the National Law') has alleged that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of s.139B of the National Law. 2. There are two Complaints brought against the Respondent: Complaint 1: He has been guilty of unsatisfactory professional conduct within the meaning of s.139B(1)(a) and (1) of the National Law in that he has engaged in improper or unethical conduct relating to his practice (s.144(b) of the National Law) on the basis of the particulars pleaded in relation to Complaint 1. Complaint 2: He has been guilty of professional misconduct within the meaning of s.139E of the National Law in that he has engaged in improper or unethical conduct relating to his practice (s.144(b) of the National Law), relying on the particulars pleaded in relation to Complaint 1, individually and cumulatively. 1. Complaint 2 relies on the cumulative effect of the proof of the particulars 1-5 of Complaint 1. 2. The Complainant seeks the following orders: (1) An order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of Patient A in the attached Complaint dated 10 September 2015. In the event the complaint/s against the Respondent are proved or admitted: (1) Orders pursuant to s.149A (Powers to caution, reprimand, impose conditions on registration, etc), s.149B (Power to impose a fine) and/or s.149C (Powers to suspend or cancel registration, make a prohibition order etc) of the National Law. (2) Costs. The Standard of Proof 1. The Complainant bears the onus of proof with respect to the two complaints prosecuted in these proceedings, namely unsatisfactory professional conduct and professional misconduct. 2. The standard of proof is the civil standard but subject to Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3. That is, by reason of the seriousness of the allegations and the gravity of the consequences, the Tribunal must be comfortably satisfied that the matters in the Complaint have been established. 3. The Court of Criminal Appeal has cautioned against use of 'comfortably satisfied' as implying that matters must be proved according to a higher standard than that of the balance of probabilities: Gianoutsos v Glykas (2006) 65 NSWLR 539 at 547-9, applied by the Medical Tribunal in In re Dry Suman Sood [2006] NSW MT 1 at 10. 4. At common law there are only two standards of proof, the civil standard of proof on a balance of probabilities, and the criminal standard of proof beyond reasonable doubt: Polglaze v Veterinary Practitioners Board of New South Wales [2009] NSWSC 347 at [31]. 5. The Briginshaw standard is not a third standard of proof; rather, it is concerned with the quality and sufficiency of the evidence necessary to discharge the civil standard. The effect of a written submission 1. Section 165H of the National Law provides: "No enquiry needs to be conducted into a Complaint referred to the Tribunal under this Law if the registered health practitioner or student who is the subject of the Complaint admits the subject matter of the Complaint in writing to the Tribunal." 1. The Complainant contends that, in the circumstances of this matter, the Tribunal can rely on the very limited admissions (where made) by the Respondent to establish certain matters alleged by the Complainant. Having said that, recognising that the Respondent's "admission" is so general, the Complainant contends that the Tribunal can be comfortably satisfied that the Complainant has proved its contentions in any event. In the Respondent's email of 4 January 2015 he stated simply "There is really nothing that I can reply with, I am guilty, completely broken, devastated and suicidal. I have nothing left" and signed his name to the email. 2. The Tribunal will need to consider whether particulars which have been established in relation to each of Complaint 1 ground findings of unsatisfactory professional conduct. As to Complaint 2, the Tribunal will be obliged to consider whether the admitted or proved particulars of Complaint 1 are of a sufficiently serious nature as to constitute professional misconduct for the purposes of complaint 2. The Complaints 1. For completeness, the Complaint brought against the Respondent and signed by the Acting Director of Public Prosecutions on 10 September 2015 is extracted below. "The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of New South Wales in accordance with s.39(2) and 90B(3) of the Health Care Complaints Act 1993 and s.145A of the Health Practitioner Regulation National Law (NSW) ("the National Law"). HEREBY COMPLAINS THAT Mr Siebe Greive of 168 Sherbrook Road, Asquith NSW 2077 being a nurse formally registered under the National Law COMPLAINT 1: is guilty of unsatisfactory professional conduct under s.139B(1)(a) and (1) of the National Law in that the practitioner has: (i) engaged in conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the Practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Background The practitioner was placed as a casual registered nurse at the Hornsby Hospital Adult Mental Health Unit ('the Unit') by Global Disability and Health Care Services. Patient A was admitted to the Unit on 20 September 2013 for treatment of a manic episode and discharged on 8 October 2013. The Practitioner provided direct care to Patient A on 23 and 25 September and 1 October, 2013. PARTICULARS OF COMPLAINT 1 1. During her admission to the Unit Patient A passed some notes to the Practitioner indicating her desire for continuing contact with the Practitioner after her discharge from the Unit. The Practitioner: (a) failed to acknowledged that he had received the notes from Patient A to a supervisor or another member of the treatment team; failed to seek guidance about how to appropriately respond to Patient A's request for continued contact from his supervisor or a senior colleague and/or inappropriately acceded to Patient A's request for continued contact after her discharge. 2. Between 8 October and 24 November 2013, and after Patient A's discharge from the Unit, the Practitioner failed to maintain proper professional boundaries with Patient A in that he: (a) contacted Patient A; (b) arranged to meet with Patient A to return her personal property (keys) that she had left behind at the Unit; (c) disclosed personal details to Patient A, relating to his plans to travel to Cambodia, including his date of departure; (d) failed to inform his supervisor about his ongoing contact with Patient A. 3. Between 8 October and 2 December 2013 the Practitioner entered into an inappropriate personal relationship with Patient A, which included: (a) frequent telephone contact and meetings in person with Patient A between 8 October and 24 November 2013; (b) travelling by air to Cambodia on the same flight as Patient A on 25 November 2013; (c) sharing holiday accommodation and travelling around Cambodia with Patient A between 25 November and 2 December 2013. 4. The Practitioner failed to consider Patient A's safety and her physical and mental well-being in circumstances where she suffered from a serious mental illness and had only recently been discharged from the hospital in that he: (a) invited or encouraged Patient A, or acquiesced in her decision to travel to Cambodia where access to mental and other health services would be difficult; (b) departed for Australia on 2 December 2013 and left Patient A in Cambodia. 5. Between about 8 October and 2 December 2013 the Practitioner entered into an inappropriate sexual relationship with Patient A. COMPLAINT 2: is guilty of professional misconduct under s.139E of the National Law in that the practitioner has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration; or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficient serious nature to justify the suspense or cancellation of the Practitioner's registration. Background The background for Complaint One is repeated. PARTICULARS OF COMPLAINT 2 Complaint One and the Particulars thereof are repeated and relied upon both individually and cumulatively." 1. In considering the orders to be made, the Tribunal was mindful that not only did the orders to be made need to ensure, as far as practicable, that the Respondent not reoffend but also that they will have an educative purpose for other health professionals, patients and the public in general. Relevance of the opinions of the Nursing Members of the Tribunal 1. The Complainant submitted that, subject to the legal directions of the Principal Member, all members of the Tribunal have both the capacity and the obligation to determine the relevant facts and make findings according to the evidence. 2. The Complainant further submitted that there is a particular further role marked out from those Members of the Tribunal who share the same professional qualifications as the practitioners. Health Care Complaints Commission v Fraser [2014] NSWCATOD 29 is persuasive as to the proposition that the professional members of the disciplinary body are entitled to use their own specialist experience in forming opinions about whether there has been a departure from the relevant standard of conduct. In Fraser at [238], the Tribunal observed: "…we do not overlook the primary reason for the constitution of the Tribunal that includes two professional members of the same division as the practitioner the subject of the proceedings. That primary reason is so that the specialist members of the Tribunal can apply their knowledge and expertise to the evidence before them (see Kalil v Bray [1977] 1 NSWLR 356 per Street CJ at [261]-[262]; Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213 at 224). However, prudence will dictate that where there is a "genuine difference of view within the body of the profession concerned", such a conflict is best resolved by the adducing of expert evidence before the Tribunal (Kalil v Bray per Moffitt P). Although the decisions to which we have referred were determined prior to the introduction of the National Law, we are satisfied that the principles espoused in those decisions remain apposite to proceedings under the National Law." 1. The Complainant invited the Tribunal to place significant weight on the opinions expressed by the expert peer reviewer, Registered Nurse Warren Shaw, both in his report and his oral evidence. Those opinions can properly be supplemented by the expert views of the relevant professional members of the Tribunal. Admissions/concessions made by the Respondent 1. This matter was initially an inquiry under s.167(1) of the National Law. The practice in similar situations where major concessions have been made by the respondent health professional, albeit prior to the commencement of the Tribunal hearing, is that the Tribunal independently examines the conduct underlying the conceded complaint or complaints (see HCCC v Guo [2011] NSWMT 29 (15 November 2011); HCCC v Shah [2013] NSWMT 1 (12 March 2013)). 2. The Respondent admitted to both Complaints 1 and 2 and the particulars set out therein, except insofar as he denied Complaint 1, particular 4(c), stating that he denied he invited or encouraged Patient A in her decision to travel to Cambodia where access to mental and other health services will be difficult. He did however acquiesce in Patient A's decision to travel to Cambodia. 3. By reason of s.167(2) of the National Law, it was not necessary for an inquiry to be conducted. However, the Tribunal was of the opinion that it was necessary to be independently satisfied to the requisite civil standard that the complaints were proved, and to consider appropriate protective orders to be made by the Tribunal as a result of the concessions made by the Respondent. Relevant Law – Unsatisfactory professional conduct and professional misconduct 1. Section 139B(1)(a) and (l) of the National Law provide as follows: "139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following: (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." 1. Section 139E is in the following terms: "139E Meaning of "professional misconduct" [NSW] 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." 1. Section 149A is in the following terms: "149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner- (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. (2) The Tribunal may do any one or more of the following in relation to the student- (a) caution or reprimand the student; (b) impose the conditions it considers appropriate on the student's registration; (c) order the student to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the student to complete an educational course specified by the Tribunal. (3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only- (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered. (4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled. (5) The order or condition concerned is then a "critical compliance order or condition" ." 1. Section 149B is in the following terms: "149B Power to fine registered health practitioner in certain cases [NSW] (1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units. (2) A fine is not to be imposed unless- (a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and (b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest. (3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct. (4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council for the health profession." 1. Section 149 is in the following terms: "149C Tribunal may suspend or cancel registration in certain cases [NSW] (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- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a 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 practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied- (a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (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. (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. Note: Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order- (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time." 1. Schedule 5D is in the following terms: "SCHEDULE 5D – Proceedings before Professional Standards Committees or the Tribunal [NSW] Note: This Schedule is an additional New South Wales provision. 7 Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)- (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published- (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the person presiding. (3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to- (a) a person who requested the direction; and (b) the complainant or the registered health practitioner or student concerned, as appropriate; and (c) another person the person presiding thinks fit. (4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (5) A person who contravenes a direction given under this clause is guilty of an offence. Maximum penalty- (a) in the case of a corporation, 150 penalty units; or (b) in any other case, 20 penalty units." 1. The Health Care Complaints Act 1993, s.90B is in the following terms: "90B Functions of Director of Proceedings (1) The following functions of the Commission are to be exercised only by the Director of Proceedings in relation to any complaint referred to the Director by the Commission: (a) to determine whether the complaint should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution, (a1) if the Director determines that the complaint should be prosecuted before a disciplinary body by the Commission, to prosecute the complaint before the disciplinary body, (b) to intervene in any proceedings that may be taken before a disciplinary body in relation to the complaint. (2) In addition, the Director of Proceedings has any other functions conferred or imposed on the Director by or under this or any other Act. (2A) Without limiting subsection (2), the Director of Proceedings may exercise any other functions conferred or imposed on the Commission by another Act and delegated to the Director under section 84. (3) The Director of Proceedings: (a) may at any time consult with a professional council in relation to the exercise of any of the Director's functions, and (b) must consult with the appropriate professional council (if any) before determining whether or not a complaint should be prosecuted before a disciplinary body. (3A) If the Director determines that a complaint should not be prosecuted before a disciplinary body, the Director may refer the complaint back to the Commission for action to be taken under section 39 (1) (c)-(g). (3B) The Director may refer a complaint back to the Commission for further investigation under Division 5 of Part 2 if the Director: (a) is unable to determine whether the complaint should be prosecuted before a disciplinary body, or (b) is of the opinion that further evidence is required to enable the Director to prosecute the complaint before the disciplinary body. (3C) If a complaint has been referred to the Commission for further investigation under subsection (3B), sections 39(2) and 40 apply in relation to the complaint only if the Commission, at the end of the further investigation of the complaint, proposes to take any of the following action: (a) charge the person whose conduct appears to be the subject of the complaint or include another person as a person whose conduct appears to be the subject of the complaint, (b) add to, substitute, amend or delete any of the specific allegations comprising the complaint (including add an allegation arising out of an investigation of the complaint that may not be the particular object of the complaint). (4) The exercise by the Director of Proceedings of any function referred to in subsection (1) is taken to be the exercise of that function by the Commission. (5) While holding the office of Director of Proceedings, a person is not to exercise any function of the Commission other than a function referred to in subsection (1) or (2A)." Complainant's Evidence 1. The Complainant filed and served a Bundle of Documents identified as Exhibit A1 on both the Tribunal and the Respondent prior to the commencement of the hearing. (a) The written statements were from: (i) the party who initially lodged a Complaint with the Complainant, Ms Judy Berman; (ii) witness statements from Patient A, annexing mobile telephone screenshots dated 14 May 2014; (iii) a statement from Ms Juliette Griffin dated 5 February 2015; and (iv) a statement of Ms Alison van Heeswijk dated 5 February 2015. (b) There was a report provided by the expert witness, Mr Warren Shaw, dated 24 November 2014, together with a copy of his curriculum vitae. Mr Shaw currently occupies the position of Area Nurse Manager of MedHealth Services for the North Coast Area Health Services. Mr Shaw adopted his report under oath when he gave evidence in the hearing by way of a telephone hook-up. He further answered questions from the Members of the Tribunal. The Complainant asked several questions but the Respondent declined to ask any questions of Mr Shaw. 1. The Complainant, in its written submissions, stated that it relied in general on the assessments of the peer reviewer, to establish Complaint 1, stating that RN Shaw's reports set out the manner in which there was a departure from the relevant Standards and Code and the level of criticism that each departure attracts. 2. The Complainant invited the Tribunal to consider that the principal allegation at Complaint 1 is that the Respondent: "... engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience ..." And: "... engaged in improper or unethical conduct relating to the practice or purported practice of nursing." 1. The Complainant's counsel indicated that the matters above formed the gravamen of the Complainant's contentions in this matter. The Complainant further submitted that the individual matters as particularised in the complaint (as either admitted, proved, or both) are signposts to a general lack of judgment and/or exercise of care and/or improper and unethical behaviour by the Respondent, which was a significant departure from the standard reasonably expected of a nurse of the Respondent's level of experience and training. 2. The Complainant relied on observations in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200. Kirby P (as he then was) described the test for professional misconduct as follows. He said: "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 a profession. Something more is required. It includes the deliberate departure from accepted standards, or such serious negligence as, although not deliberate, to portray indifference and abuse of privileges which accompany registration as a medical practitioner." 1. Further, at 201, Kirby P said: "The public needs to be protected from delinquents and wrongdoers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules, or indifferent as to the rudimentary professional requirements. Such people should be removed from the Register or from the relevant roll of Practitioners, at least until they can demonstrate that the disqualifying imperfections have been removed." The Complainant acknowledged that while these cases referred to doctors, that similar principles applied, by analogy, in relation to standards applicable to registered nurses. Respondent's Evidence 1. The Respondent attended the hearing and gave sworn oral evidence before Tribunal, including making an admission in respect of all of the particulars in Complaint 1, save for particular 4(c) of Complaint 1, insofar as he denied he 'invited' or 'encouraged' Patient A in her decision to travel to Cambodia where access to mental and other health services would be difficult. He did, however, admit that he 'acquiesced in' Patient A's decision to so travel to Cambodia. The Respondent further admitted Complaint 2 and the particulars thereof. 2. The Tribunal had before it the email response from the Respondent dated 12 May 2014 which was in reply to the Complainant's letter of 7 May 2014 seeking an explanation with respect to the complaint that the Respondent had a social sexual relationship with a patient who was admitted to the Mental Health Unit in which he was employed and for whom he had cared. In that letter the Respondent contended that Patient A was a woman who wanted to keep in contact with him after she left the Mental Health Unit in which he worked and he did not want this to happen and that he had told her that it would be inappropriate, but she nevertheless kept on sending him notes asking to see him and inviting him out to dinner, even after she had left the Unit. The Respondent wrote that he had contacted Patient A because he felt she would be hurt by him avoiding her and he needed to return the keys that she had left in the Unit. He further submitted that he hoped that in seeing her he would have stopped the whole situation. He further contended that she invited him on a holiday to which he replied 'No' and informed her that he was going on a holiday at the same time. He acknowledged that he had informed her of the date of his departure and the flight, and that she in turn booked herself onto the same flight. He further contended that it was difficult for him to get away from her once they arrived in Cambodia as she had never been to Cambodia before and he had. He pleaded her forceful personality and neediness as reason why he maintained the relationship in circumstances where he would have preferred not to continue the relationship. 3. The Respondent acknowledged that he had ceased his nursing career and would never work again in the field. He acknowledged he had made a mistake and was living in fear ever since and that he had not informed anyone in the Unit about his contact. He further acknowledged that he was aware he should have told his supervisor who, in all probability, would have helped him to deal with it properly. He cited the fact that he was working as a casual registered nurse and was not in permanent employment at any hospital or any organisation. He further referenced his experience as having worked at Hornsby Hospital, Royal North Shore Hospital, The Hills Clinic and for some time at the Forensic Hospital at Malabar. He sought mercy and an opportunity to be able to put this incident behind him and live his life 'without this constant fear, please'. 4. The Complainant then wrote to the Respondent on 13 May 2014 requesting further information, and on 15 May 2014 the Respondent replied by email. In the Respondent's email of 15 May he again stated that Patient A had made contact with him and that he had tried to get away from her, but that she had kept on making contact with him. He suggested his text messages to her were probably about him working, albeit he acknowledged it was difficult to recall some 6 months later. He stated that he had not had any contact with Patient A since 2 December when he left Cambodia where she was staying at the time. He suggested that he did not realise what kind of personality disorder she had and that he had done his best not to be involved with her, but not realising what she was really like and not imagining that she would cancel her holiday to go and book another holiday with someone who did not even want her to join him. Again, he pleaded for the opportunity to put the whole experience – 'total nightmare' – behind him. 5. The Complainant again emailed the Respondent on 16 May seeking further and better particulars regarding the complaint. There was no further correspondence from the Respondent until 4 January 2015. In the Respondent's email of 4 January 2015 he stated simply "There is really nothing that I can reply with, I am guilty, completely broken, devastated and suicidal. I have nothing left.", and signed his name to the email. The Tribunal regarded this as a full admission, nevertheless sought to particularise the admission when the Respondent appeared before the Tribunal. This resulted in the Respondent admitting all the particulars of each of the complaints, except with respect to the exception so far as he denied Complaint 1, particular 4(c), stating that he denied he invited or encouraged Patient A in her decision to travel to Cambodia where access to mental and other health services will be difficult. He did, however, acquiesce in Patient A's decision to travel to Cambodia. Principles Regarding Protective Orders 1. The principle sections that provide the Tribunal may exercise any power conferred on it by subdivision (6) of Division 3 of Part 8 of the National Law, in relation to proven claims against registered health practitioners, are ss.149A, 149B and 149C. 2. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public (see s.3A of the National Law). The Tribunal should also consider the current unfitness, rather than limiting consideration to permanent unfitness, in considering deregistration (Health Care Complaints Commission v Dr Jamison [2014] NSW CATOD 56 at [102]). 3. It is generally acknowledged that since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of a particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection (see Lee v HCCC [2012] NSWCA 80 at [34]). 4. In determining whether the Complaints are made out, and imposing any consequential orders, this Tribunal is exercising protective, not punitive jurisdiction. Protective orders are made in order to protect those members of the public who require protection and, "from the professional point of view, in order that the abuse of privilege may not lead to a loss of privilege": Clyne v New South Wales Bar Association (1961) 04 CLR 186 at 201-202. 5. The protective nature of disciplinary proceedings against professionals was emphasised by the New South Wales Court of Appeal in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, where the Court said: "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." 1. Similarly so, in New South Wales Bar Association v Meakes [2006] NSWCA 340 at [114] Basten JA listed the following important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order: (a) The order reminds other members of the profession of the public interest in the maintenance of high professional standards. (b) The order may give emphasis to the unacceptability of the kinds of conduct involved in the disciplinary offence. (c) By speaking to the public at large the order seeks to maintain confidence in the high standards of the profession. 1. Basten JA also stated, in Meakes (at [101]) that "High standards of honesty and integrity [are required] in accordance with general law principles governing professional responsibility." 1. Whether the gravity of the misconduct is such that there is no appropriate alternative to cancellation is a matter of degree and interpretation (see Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]). 2. It is clear that deregistration may be required in serious cases of professional misconduct in order to adequately achieve the objectives of minimising the risk of reoccurrence and of deterring other practitioners from engaging in such conduct and thereby maintaining public confidence in the profession (see Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] and [39]; Health Care Complaints Commission v Llitchfield [1997] 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission [2006] NSWCA 298 at [45] and Prakash v Health Care Complaints Commission [2006] NSWCA 153, Santow JA at [64] and Basten JA at [101]). 3. The Complainant submitted that the Tribunal should not give any significant weight to the personal impact of the orders it makes on the respondent. The Complainant noted that it has frequently been observed that although orders in this jurisdiction are protective rather than punitive in intent, appropriate protective orders will sometimes occasion a punitive result. 4. The Complainant's general contention is that the Respondent has demonstrated no real insight into his failings or any evidence of rehabilitation from his lack of understanding of and proper compliance with the regulatory regime, designed to both protect the public and maintain the high standards of the profession of nursing. The Complainant contended that no suite of protective orders short of cancellation/disqualification would properly address the concerns raised by the Respondent's failings as proved. TRIBUNAL FINDINGS Complaint 1, Particular 1 1. The Complainant had obtained the Nursing Observation Charts of Patient A which showed that the Respondent had direct care of Patient A on 23 September 2013, 25 September 2013 and 1 October 2013 and call charge records detailing text messages sent from his mobile telephone to Patient A between 17 October 2013 and 16 November 2013. The Tribunal accepted the Respondent's admission in respect of Particular 1 of Complaint 1. The Tribunal accepted the report of the expert reviewer, Warren Shaw and it was unchallenged by the Respondent in written submissions or in questioning or cross examination of Mr. Warren by the Respondent when Mr. Warren gave evidence at the Tribunal by teleconference. 2. The expert reviewer stated in his report of 24 November 2014: "The Respondent's assertion that Patient A "wanted to keep in contact with him by sending him notes" after leaving the Unit suggests his passivity in the developing relationship. Many health professionals, particularly in acute mental health facilities, are faced with managing circumstances where patients under their care inadvertently misinterpret the personal relationship as an emerging personal one. His responsibility as a health professional would have been to not contact nor provide his contact details to a patient under his care. Upon receiving contact he should have sought guidance from his supervisor about the best method to convey to patient A that such contact was inappropriate before ceasing further contact." 1. The expert witness further noted that failure on the part of the Respondent to notify his supervisor of the contact with Patient A demonstrates a lack of transparency on his part in relation to the emerging personal relationship. 2. The Respondent admitted to the Tribunal that he had: (a) failed to disclose he had received notes from Patient A; and also (b) failed to seek guidance on the same. 1. The Tribunal is of the opinion that the Respondent's failure to advise his supervisors of these communications was unsatisfactory professional conduct and hence the Tribunal finds the Respondent is guilty of the offence of unsatisfactory professional conduct. 2. That is, the Tribunal finds Complaint 1, Particular 1 to be proved to the requisite standard. Complaint 1, Particular 2 – Failure to maintain professional boundaries in: contacting Patient A, arranging to return keys to Patient A, and disclosing travel details 1. The Respondent admitted to the Tribunal that he had contacted Patient A and further had arranged to meet and did meet Patient A to return personal property (keys) that had been left in the Unit. He further disclosed to Patient A details concerning his intended travel to Cambodia and failed to inform his supervisor about his ongoing contact with Patient A. 2. The Respondent admitted that he had initiated personal contact with Patient A after her discharge and arranged to contact her outside of the professional relationship. The Tribunal noted that while in his submissions before the Tribunal he stated that Patient A was "forceful" the Tribunal is of the opinion that this does not change the fact that it was he, as a registered nurse, who initiated the contact and needed to resist improper overtures even from "forceful patients". Furthermore he did not comply with local policy on the return of patient possessions which had been left on the ward or did not inform his supervisors of his proposed course of action. 3. The Tribunal accepts the evidence of Mr Warren Shaw, when he stated that: "The Respondent's account that he met with Patient A to return her keys would be considered highly inappropriate. Ideally, a patient's personal belongings should be noted on admission and returned to the patient on discharge, in the circumstances where this does not occur mental health patient units would have a number of strategies that can be used to return a patient's belongings depending upon where the patient is discharged to. These strategies might include asking a patient or a carer to collect the items, arranging for community-based services to deliver them, or sending items by courier or registered post. In any event, the process would include negotiation with the patient or carer by the inpatient unit with appropriate recording in the patient's medical record." 1. The reviewer further noted that as there was no record of any such arrangement for the Respondent to return the items to Patient A, the absence of any transparency regarding the Respondent's strategy to return the keys, suggested opportunistic contact with Patient A on his part. The Tribunal agrees with this assessment. 2. The Tribunal formed the view that the conduct of the Respondent in disclosing personal details to Patient A regarding his upcoming travel to Cambodia was sufficient to enable Patient A to book and travel on the same day and flight. The Tribunal noted that while the Respondent may not have intended Patient A to use these details to book a trip to Cambodia, the provision of such details and the intensity of the contact between Patient A and the Respondent at this time, as evidenced by text messages, should have alerted the Respondent to a potential risk of this nature. 3. The expert peer reviewer noted that Patient A had informed friends and family that she would be travelling overseas with a health professional who had cared for her during her inpatient state at the Unit was consistent with her confusion between the professional and personal role of the Respondent in relation to her. 4. The Tribunal accepts the view expressed by the expert witness, Mr Warren Shaw, that: "The Respondent's disclosure of holiday plans to Patient A represents a significant violation of his professional boundaries with a patient formerly under his care. Disclosure of personal information such as contact details, holiday plans and so on would only serve to confuse Patient A with regard to the Respondent's professional role." 1. The Tribunal is of the opinion that the Respondent's failure to maintain professional boundaries in: contacting Patient A, arranging to return keys to Patient A, and disclosing travel details is unsatisfactory professional conduct and hence the Tribunal finds that the Respondent is guilty of the offence of unsatisfactory professional conduct. 2. Accordingly, the Tribunal finds Complaint 1, Particular 2 to be proved to the requisite standard. Complaint 1, Particular 3 – Respondent entered into an inappropriate personal relationship with Patient A including frequent telephone contact, travel by air to Cambodia and sharing holiday accommodation and travelling around Cambodia with Patient A 1. The Respondent admitted to the Tribunal that between about October 8 and 2 December 2013 he had entered into a personal relationship with Patient A. This relationship was developed over personal meetings, phone calls and text messages, flying to Cambodia with Patient A (even though he stated he did not wish this to occur) and sharing accommodation and internal travel whilst in Cambodia. The Tribunal noted that the Respondent continually initiated and re-initiated contact via text messages on a regular basis with Patient A. In evidence before the Tribunal, the Respondent acknowledged that he had said to Patient A that "he could get in a lot of trouble for this", indicating that he was aware of his responsibilities as a registered nurse but nevertheless continued with the contact. 2. The Respondent, in his evidence to the Tribunal, stated that Patient A was forceful in her interactions and in so doing the Respondent demonstrated his lack of insight in attributing responsibility to Patient A for his conduct in acquiescing to travelling to Cambodia and sharing accommodation throughout this holiday. The Tribunal is of the opinion that such an admission is tantamount to a conscious decision to ignore his professional responsibilities as a registered nurse in permitting the commencement and conduct of a personal relationship with a patient immediately following discharge from the Unit in which she had been cared for by the Respondent. 3. The Tribunal adopts the observations of the peer reviewer when he stated: "That to engage someone with Patient A's psychiatric history in such a confusing relationship and then travel abroad to a country presumably where services either are not known or non-existent, represents a flagrant disregard for the safety of Patient A." 1. The peer reviewer further noted that the Respondent's election to conduct this relationship abroad further reinforced his opinion that the Respondent's motivation was to establish and exploit an intimate relationship with Patient A far from the scrutiny of his social and professional networks. 2. That is, the Tribunal finds Complaint 1, Particular 3 to be proved to the requisite standard. Complaint 1, Particular 4 – Failed to consider Patient A's safety and her physical and mental wellbeing when acquiescing in Patient A travelling to Cambodia and departing for Australia on 2 December 2013, thereby leaving Patient A in Cambodia 1. The Respondent admitted to the Tribunal that he had failed to consider Patient A's safety and physical and mental wellbeing in that he had acquiesced in Patient A's decision to travel to Cambodia where access to health care would be limited. 2. The expert witness, Mr Warren Shaw, stated it was extremely inappropriate for the Respondent to engage socially with Patient A after a professional relationship had commence in the inpatient setting of the Unit and that the Respondent's assertion that he "just wanted to be someone that she could talk to about her experience on this unit" is an implausible attempt to validate his post-discharge contact with Patient A. The expert witness stated: "Whilst providing opportunity for 'debriefing' following a significant episode of being unwell and subsequent admission may be a valid and worthwhile component of the therapeutic continuing of care, this would occur within the constraints of a structured therapeutic relationship such as within the Community Mental Health Service follow-up, psychiatrist appointments and so on. To couch inappropriate post-discharge contact in this way is an attempt to re-affirm it as an informal and secretive 'pseudotherapeutic' alliance extending beyond his professional relationship that occurred with her on the Unit. However, the Respondent did not have the delegation nor authority to engage in such contact. The Respondent did not record this activity clinically or formally, nor inform his supervisor of the relationship." 1. The reviewer interpreted this as an indication of the Respondent's acknowledgement that this was both outside his role and worthy of public criticism and discipline. 2. The Tribunal noted the reviewer was particularly concerned that the Respondent's suggestion that he did not realise what kind of personality disorder Patient A suffered from and accordingly had no expectation that she would cancel her booked holiday to go and book another holiday with him in circumstances where he had not invited her to share the holiday. The peer reviewer noted whether he (the Respondent) had any insight into a diagnosis of personality disorder or not, or had any understanding of her (Patient A's) behaviour remains irrelevant in terms of supporting a rationale for what was an inappropriate relationship. Additionally, any assertions regarding her impulsiveness or otherwise or his self-disempowerment leading to his passivity to avoid travelling abroad with her in no way provides any justification for allowing the transformation of their professional relationship within the inpatient Unit, into an intimate and sexual one. Furthermore, the reviewer formed the view that the Respondent's comments demonstrated a diminished level of personal and professional insight regarding his attitudes and behaviours towards vulnerable mental health patients. The Tribunal further accepts the views of the peer reviewer when he stated that: "There would also be an expectation that a nurse would report and disclose any deviation from the professional relationship as soon as it was recognised and seek guidance about the best method to re-establish professional boundaries". 1. The Tribunal is of the opinion that the Respondent's failure to consider Patient A's safety and her physical and mental wellbeing when acquiescing in Patient A travelling to Cambodia and departing for Australia on 2nd December 2013, thereby leaving Patient A in Cambodia, was unsatisfactory professional conduct and the Tribunal finds that the Respondent is guilty of the offence of unsatisfactory professional conduct. Complaint 1, Particular 5 – Respondent entered into an inappropriate sexual relationship with Patient A 1. The Respondent admitted that he had entered into an inappropriate sexual relationship with Patient A between 8 October and 2 December 2013. 2. The Tribunal is of the opinion that these actions were a gross breach of the Respondent's professional obligations to his patient and an example of inappropriate exploitation of a vulnerable individual who had been the subject of his professional care. 3. The Tribunal is strongly critical of the development, over time, of inappropriate over-familiarity and intimacy, that the Respondent allowed to occur, if not fostered between himself and the recently discharged patient A. The Respondent did not disclose any issues of concern to him to the treating team or seek counsel from more experienced colleagues. 4. It is the Tribunal's opinion that the Respondent in so doing ignored his obligations to maintain professional boundaries and displayed a lack of professional insight about the power imbalance and vulnerability of mental health patients, particularly in relation to their carers. 5. The Tribunal noted that the Respondent had avoided contact with third parties during the relationship and promoted the opportunity to continue the relationship abroad. This, together with the Respondent's disinclination to respond directly to questions about the relationship was consistent with the Respondent's awareness of the gravity of his boundary violations and the criticism they would attract from his professional peers. 6. The Tribunal accepts the evidence of the peer reviewer that such escalation of events represented a predatory exploitation of Patient A to meet the Respondent's own personal needs. 7. The Tribunal is of the opinion that the Respondent had entered into an inappropriate sexual relationship with Patient A and that such conduct is unsatisfactory professional conduct. Hence, the Tribunal finds that the Respondent is guilty of the offence of unsatisfactory professional conduct. 8. That is, the Tribunal finds Complaint 1, Particular 5 to be proved to the requisite standard. Complaint 2 1. The Tribunal is comfortably satisfied that the proved individual and cumulative instances of unsatisfactory professional conduct are sufficiently serious to constitute professional misconduct. 2. The correct approach to determining whether professional misconduct has been established is, it is submitted, set out in the following passage from the Tribunal's decision in Health Care Complaints Commission v Perroux [2011] NSWDC 99 at [18]: "The issue is whether, when the Respondent's contraventions are considered as a whole they are of a sufficiently serious nature to justify suspension or deregistration: s.37 Medical Practice Act 1992, s.139E Health Practitioner Regulation National Law (NSW). Characterisation is not to be determined by backward reasoning, first determining the appropriate outcome and then characterising the conduct placed on the outcome. The definition of professional misconduct is focused on the nature of the conduct which must have the capacity to justify such an order whether or not such an order should be made in a particular case: Heath Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA at [67]. Whereas the characterisation of conduct depends upon the "seriousness" of the conduct, additional considerations are relevant to determine outcome, principally the need to protect the health and safety of the public: s.2A(3) of the Act." 1. The Tribunal accepts the Complainant's submission that the unsatisfactory nature of the Respondent's response to the allegations served to characterise the unsatisfactory professional conduct as being of a sufficiently serious character to amount to professional misconduct. 2. This is particularly so given the departures from standards significantly impacted on Patient A and raises very real questions concerning the Respondent's attitudes to ethical standards and responsibility for patient well-being. 3. Professional misconduct may involve "moral turpitude", but need not do so: Qidwai v Brown (1948) 1 NSWLR 100, per Priestley JA at 104; for example, conduct that is not a deliberate departure from accepted standards but which portrays indifference and an abuse of the privileges associated with registration as a medical practitioner may constitute "misconduct in a professional respect": Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at 200. 4. When the Tribunal considered the cumulative effect of all the findings of unsatisfactory professional conduct in respect of Complaint 1, Particulars 1-5, it had little difficulty in forming the conclusion that the Respondent was guilty of professional misconduct in that when the instances are considered together, they amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration. 5. Accordingly, the Tribunal finds that the unsatisfactory professional conduct demonstrated by the Respondent is of a sufficiently serious nature to justify cancellation of the Respondent's registration and so equate to professional misconduct. 6. The Tribunal noted that the matters that must be established before an order to remove can be made, were collected in the decision of Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [52]-[54] where, in the course of argument: "Ms Adamson accepted the requirement to establish "permanent unfitness to practise" did not mean that it was necessary for the Law Society to prove that in those circumstances whatever will the solicitor be fit to practised. She accepted that the existence of the jurisdiction to re-admit a person whose name has been removed from the roll shows that the "permanent" could not have that shade of meaning. Rather, in my view, it has the shade of meaning of being likely to be unfit to practice for the indefinite future. Some cases have recognised that shade of meaning explicitly: Maddocks at [38] per Kirby P; Ritchard at [4] per Kirby P, both of which passages are cited by Spigelman CJ in Cummins at [25] and [27]. If the Tribunal or Appeal Panel is of the view that a person is presently unfit to practice, but after a particular period of time will be once again fit to practise, then suspension for that period of time is the appropriate order. Suspension is achieved by orders under s.171C(1)(b) and (c). Removal from the role is appropriate only when a legal practitioner is unfit to practice, and suspension for a particular period is not appropriate." 1. Having regard to the recent decision of this Tribunal in HCCC v Dr Della Bruna [2014] NSWCA TOD 31, the present Justice Wright presiding as to proof of professional misconduct and the prospect of cancellation of registration. 2. Having regard to all of the above, the Tribunal is comfortably satisfied that the proved individual and collective instances of unsatisfactory professional conduct are sufficiently serious to amount to professional misconduct. Suppression Order 1. The Tribunal was asked to make a Suppression Order pursuant to Section 64 of the Civil and Administration Tribunal Act 2013. The Power to make that Order is found in Schedule 5D, Clause 7 of the National Law. The Order was not opposed. The Tribunal is satisfied it is appropriate to make such an order to protect the identity of Patient A, including anything that may tend to identify her. Prohibition Order 1. The Complainant submitted that if the Tribunal determined the Respondent's proved conduct was intentional and for personal benefit (in some fashion) the imposition of a Prohibition Order under s.149C(5A) of the National Law would be justified to fully protect the public. 2. A Prohibition Order can only be made if the Tribunal either suspends or cancels the Respondent's registration under s.149C(2) or (3), or if the Tribunal makes a Disqualification Order under s.149C(4) of the National Law. In the present case the Complainant invited the Tribunal to make orders pursuant to s.149C(3) against the Respondent. It is then open to the Tribunal to consider imposing a Prohibition under s.149C(5A). The National Law states that the Tribunal must be satisfied that a person "poses a substantial risk to the health of members of the public" prior to making a Prohibition Order under s.149C(5) or s.149C(5A). 3. The Complainant submitted that a Prohibition Order should be made if a Cancellation/Disqualification Order is not sufficient to protect the public. 4. The Complainant further submitted that as the evidence demonstrated a lack of insight on the part of the Respondent; that this means that he may continue to make poor decisions based on his own limitations and lack of proper mentoring. 5. The test to be applied requires the risk to be "substantial" and is focused directly on the "health of members of the public" as opposed to the broader "health and safety of the public" (see s.3A of the National Law). The Complainant further contends if findings are made in respect of the two complaints, there would be a sufficient basis to make a protection order, as sought. The Tribunal's findings on a Prohibition Order 1. The Tribunal is satisfied that a Prohibition Order can be made in circumstances where it proposes the suspension of the Respondent's registration for a period of 18 months. The Tribunal is satisfied that the Respondent poses a substantial risk to the health of members of the public and accordingly, proposes to make a Prohibition Order pursuant to s.149C(5A). 2. The Tribunal formed the view that the noticeable lack of professional insight displayed by the Respondent throughout the course of the hearing and in his conduct giving rise to the complaints were of sufficient concern to the Tribunal to necessitate the making of a Prohibition Order in order to ensure that the substantial risk thereby posed was suitably curtailed. 3. The Respondent did not supply any documents about his undergraduate education or his ongoing education or training, post registration. Nor was he able to illuminate with particularity the details of his education and training post-registration. Upon being questioned by the members of the Tribunal, the Respondent informed the Tribunal that the facilitator of his last placement was of the opinion: "That I was not up to standard ... but passed me anyway ... I got through at the end, I was signed off". 4. While the Respondent suggested that he had passed his assignments, mostly with credits and distinctions, he further indicated that he had not undertaken a general ward rotation during his graduate year. The Respondent indicated that he had completed his graduate year at Dubbo and was moved through the Mental Health, Methadone Clinic – for two months and the community. The Respondent further indicated that he had not been offered work on completion of his graduate year placement, but attributed this to his desire to return to Sydney to be with family. 5. The Respondent informed the Tribunal that he at no stage had applied for work, i.e. not completed an application for work as a nurse, but rather had simply made enquiries of the Nursing Unit Manager at the Mental Health Unit at Hornsby because he was comfortable there, having done a placement during his training. The Nursing Unit Manager informed him that she had just employed staff and had no vacancies. Thereafter, the Respondent joined an Employment Agency and in his words, since then "I have gotten heaps of work". 6. The Tribunal was concerned that during the Respondent's last placement in his third year as a student, there was some question as to whether or not he was performing to a reasonably high standard in readiness for registration, yet he did not appear to see this as an issue when questioned by the Tribunal and was somewhat dismissive in his comment: "I got through and I was signed off". 7. The Tribunal was concerned that the nature of the rotations undertaken in his graduate year – Mental Health, Drug and Alcohol and Community – may not have provided the Respondent as a newly registered nurse, with a sound educational base. A four months rotation in a mental health ward may not have exposed him to the many and varied requirements of an inpatient ward; and thereby not providing the Respondent with the opportunity to develop an understanding of his new role as a registered nurse. 8. Similarly, the type of rotations undertaken by the Respondent during this period was not optimal for the development of a full array of nursing skills. 9. It is also of concern to the Tribunal that the Respondent had never applied for a nursing position, per se, above and beyond his enquiries of the Nursing Unit Manager of the mental health ward at Hornsby before registering with an Employment Agency. As a consequence, the Respondent had not gone through the process of applying for and being interviewed and assessed as appropriate to work in such a specialised area, that is, he had never had to meet the specific employment criteria of a mental health nursing role and accordingly appeared to have a limited understanding of what was expected of a Registered Nurse working in a mental health ward. 10. The Tribunal was further concerned to note that the Respondent had not undertaken any specific training in mental health nursing, other than the extended experience he had obtained through placement in the Mental Health Unit at Hornsby by the Employment Agency. The Respondent informed the Tribunal that none of the education that he had independently undertaken to maintain his continuing professional development points was in the area of mental health, or included mental health topics. The Respondent stated he had completed "Code of Ethics, Medication Administration ... things like that, you can use them across the board ... general things". 11. The Tribunal formed the view that the Respondent's lack of understanding and education in mental health restricted his ability to appreciate that Patient A's behaviour was illness based. The Tribunal was concerned that the Respondent attributed her behaviour to a forceful personality, without recognising this as a feature commonly found in patients diagnosed with Patient A's mental illness. 12. In response to questions from the Tribunal concerning ongoing continuing professional development, the Respondent replied that he had not received feedback nor support or mentoring around his nursing skills since he had completed his graduate year, because at all times he had been working for a Nursing Agency which does not provide for ongoing training or mentoring. 13. The Tribunal was of the opinion that this lack of peer/management review had rendered the Respondent vulnerable to making poor decisions based on little knowledge of the care and treatment of mental health patients. 14. In summary, the Tribunal was concerned that the Respondent posed a substantial risk to the health of members of the public in his evident lack of understanding of what he does not know, and the consequences of practising nursing in an area where he is obliged to deal with patients where the power imbalance between carer and patient is even more acute, given the fragility of the patient. 15. The Tribunal was concerned that the Respondent had chosen a path in his career that did not place on him ongoing educational expectations or any form of mentoring or guidance. He had chosen to work in this way and to work without guidance, feedback or professional improvement/ development and monitoring. This modus operandi precluded him from maintaining and developing his awareness of the importance of respecting and maintaining professional standards and in particular boundaries especially in the early years of his role as a registered nurse. 16. Accordingly, the Tribunal formed the view that in order to maintain the health of members of the public, it was necessary to impose a Prohibition Order on the Respondent to constrain the substantial risk he posed to the health of the members of the public through his lack of professional insight and ability to recognise the need when to seek guidance or assistance in the conduct of his profession. 17. Accordingly, the Tribunal makes a Prohibition Order in the following terms: "The Respondent be subject to a Prohibition Order which prevents him from providing the following health services on a public, private or volunteer basis until he is reregistered 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 the services referred to in paragraphs (a)-(d)." Costs 1. The Complainant also seeks an order that the Respondent pay the Complainant's costs. Under clause 13, Schedule 5D of the National Law, the responsible Tribunal may order the registered health practitioner concerned, or any other person entitled to appear, to pay costs to another person, as decided by the Tribunal. 2. The circumstances in which costs should be awarded was considered by the New South Wales Medical Tribunal in HCCC v Dinaker [2009] NSWMT 8. Clause 13 of Schedule 5D to the National Law is, for all relevant purposes, in the same terms as the repealed clause 13 of Schedule 2 to the Medical Practice Act 1992. The Tribunal summarised the relevant principles as follows: "(a) A successful party to litigation has a reasonable expectation of being awarded costs against the unsuccessful party. (b) Fairness dictates that the unsuccessful party typically bears the liability for costs unless it is demonstrated that some other order is appropriate. (c) It is for the losing party to establish a basis for any departure from the usual rule, however, the purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made. (d) The discretion to depart from the usual rule is unfettered, however, a Tribunal ought not exercise its discretion against a successful party arbitrarily or capriciously or on no grounds at all. The discretion must be exercised judicially and according to rules of reason and justice, not according to private opinion, benevolence or sympathy. (e) Generally, the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party." 1. This summary is consistent with the reasoning of the New South Wales Court of Appeal in Ohn v Walton (1995) 36 NSWLR 77. In that case the Court, comprised of Gleeson CJ, Power JA and Cole JA, held that the principles to be applied by the Medical Tribunal in the exercise of its discretion to award costs under Regulation 27 are similar to those applied by a Court in similar circumstances, so that costs should follow the event, unless the circumstances of the case require the exercise of discretion not to do so [sections.79B, 81A, 85E]. 2. Gleeson CJ stated, at s.79B, that the nature of an order for costs applies equally: "[T]o civil litigation, summary proceedings and disciplinary proceedings. This does not mean that the discretionary considerations relevant to those proceedings are identical. However, the subject of the discretion, that is an order for costs, has the same nature, and that guides the exercise of the discretion." 1. The Tribunal, is of the opinion that the criteria outlined above have been met in the current case and accordingly an order for costs in favour of the Complainant against the Respondent will be made Finding 1. The Tribunal finds that Complaints 1 and 2 are made out and that the Respondent is guilty of both unsatisfactory professional conduct and professional misconduct. Orders Made 1. The Tribunal would have cancelled the Respondent's registration if he was still registered. 2. That the Respondent be disqualified from being registered as a nurse for a period of 18 months. 3. That the National Board is to record in the National Register that the Tribunal would have cancelled the Respondent's registration. 4. That the Respondent be subject to a Prohibition Order which will prevent him from providing the following health services on a public, private or volunteer basis, until he is re-registered as a nurse: 1. Medical, hospital, nursing or midwifery services. 2. Mental health services. 3. Community health services. 4. Health education services. 5. Welfare services necessary to implement the services referred to in paragraphs (a) to (d). 1. Costs – the Tribunal orders the Respondent to pay the Complainant's costs in the proceedings. 2. The Tribunal makes a Suppression Order pursuant to Schedule 5D, Clause 7 of Health Practitioner Regulation (National Law) NSW to protect the identity of Patient A including anything that may tend to identify her. 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: 21 March 2016