Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Woods [2016] NSWCATOD 52 Hearing dates: 7 December 2015 Date of orders: 05 May 2016 Decision date: 05 May 2016 Jurisdiction: Occupational Division Before: A Britton, Principal Member S Kennedy, Occasional Member L Carlin, Occasional Member A Johnston, Occasional Member Decision: (1) That if Mr Woods were still registered as an enrolled nurse the Tribunal would have cancelled his registration (s 149C(4)(a) of the National Law). (2) That the Nursing and Midwifery Board of Australia be required to record in the National Register that the Tribunal would have suspended or cancelled Mr Woods' registration (s 149C(4)( c)). (3) That Mr Woods be disqualified from being registered as an enrolled nurse for a period of 12 months from the date of this decision (s 149C(4)(b) of the National Law). (4) Within 14 days of the date of this decision the Commission must file and serve brief submissions in support of its application for costs. (5) Within 28 days of receiving the Commission's submissions on costs Mr Woods must give to the Commission and the NCAT any submissions in reply. (6) Within 14 days of the date of this decision the parties must notify the Tribunal and each other whether they consent to the issue of costs, being determined "on the papers". Catchwords: ADMINISTRATIVE LAW — Civil and Administrative Tribunal (NSW) — health practitioner — use of "excessive force" in dealing with a violent patient — whether practitioner was acting in self-defence — 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) Mental Health Act 2007 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Health Care Complaints Commission v Do [2014] NSWCA 307 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 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 HCCC v Jamieson [2014] NSWCATOD 56 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant ) Steven James Woods (Respondent) Representation: Counsel: S Talbert (Applicant) Solicitors: Health Care Complaints Commission (Applicant in person) Steven James Woods (Respondent in person) File Number(s): 1520152 Publication restriction: It is prohibited to disclose the name of, or any information, or other material that identifies or is likely to lead to the identification of "Patient A". REASONS FOR DECISION 1. While working a night shift at the Mental Health Intensive Care Unit at Hornsby Hospital in April 2014, former enrolled nurse, Steven Woods, was involved in an altercation with an acutely unwell patient. The patient, who had a history of being violent towards and threatening to staff, is alleged to have attacked Mr Woods and another member of staff. Mr Woods claims to have no memory of the incident. Following investigation NSW Health found that the allegations that Mr Woods had physically and verbally attacked the patient were substantiated. Mr Woods was stood down from his position and in July 2014 he resigned from NSW Health. 2. In 2015, the Health Care Complaints Commission (the Commission) referred two complaints about Mr Woods for determination to the Civil and Administrative Tribunal of New South Wales (NCAT). At hearing leave was granted to the Commission to amend the Complaints. (For convenience we will refer to the amended complaints as "the Complaints"). The gravamen of the Complaints was Mr Woods' conduct during the alleged incident in April 2014 referred to above (the incident). 3. On 3 November 2015, Mr Woods surrendered his registration as an enrolled nurse. He claims not to have worked as an enrolled nurse since the alleged incident and to have no intention of returning to nursing. 4. For the reasons that follow we find all but one of the particulars of the Complaints proven. In addition, we find Mr Woods guilty of both "unsatisfactory conduct" and "professional misconduct" (ss 139B and 139E of the Health Practitioner Regulation National Law (NSW) (the National Law)). We decided to make orders declaring that if Mr Woods were still registered we would have cancelled his registration as an enrolled nurse. In addition, we decided to disqualify him from being registered as an enrolled nurse for a period of 12 months from the date of this decision. Suppression orders 1. Orders have been made under cl 7(1) of sch 5D to the National Law prohibiting the disclosure of the name of, or any information, picture or other material that identifies or is likely to lead to the identification of the patient involved in the incident. In these Reasons we will refer to the patient by the pseudonym "Patient A". Mr Wood's participation in these proceedings 1. Before the substantive hearing two directions hearings were held. Neither was attended by Mr Woods. At the final directions hearing on 27 November 2015, NCAT Deputy President, Her Honour Acting Judge Boland, raised with the Commission her concern that Mr Woods may not have received notice of the hearing, and a copy of the Complaints and the documents on which the Commission intended to rely. Her Honour directed the Commission to file an affidavit setting out its attempts at service on Mr Woods. 2. In an affidavit affirmed on 2 December 2015, a solicitor employed by the Commission, Nicole Williams, stated that on 10 August 2015 Mr Woods was served with, and signed for, a copy of the Commission's application to NCAT and the Complaint. In addition, Ms Williams stated that on 16 November 2015 she wrote to Mr Woods at a Queensland address provided by a subpoena service company engaged by the Commission enclosing the documents on which the Commission intended to rely at the hearing. 3. Shortly before the hearing Mr Woods contacted NCAT Registry staff and advised he would be attending the hearing by phone. 4. At hearing Mr Woods explained that he had no permanent address and was moving between Broome and Perth. He confirmed that he had received a copy of the Complaint sometime in August and, more recently, further documents from the Commission. 5. We were satisfied based on the information provided by Mr Woods, together with the evidence provided by the Commission, that Mr Woods had received all the documents the Commission intended to rely on at the hearing. 6. At hearing we offered Mr Woods the opportunity to request an adjournment given that he had only recently received the Commission's documents and because his personal circumstances made participation in the hearing difficult. He stated he wanted the matter "over and done with" and had no intention of returning to nursing. He repeated that statement when told that if the Complaints were found proven disciplinary orders could be made. 7. As the hearing progressed it became apparent that Mr Woods believed these proceedings were in the nature of criminal proceedings and he was compelled to attend. On learning that the Tribunal did not have power to compel his attendance he advised that he no longer wished to participate and ended the conference call. He attended the hearing for about one and half hours. 8. After careful consideration we decided not to adjourn the proceedings because we were satisfied that Mr Woods had received reasonable notice of the hearing and a reasonable opportunity to consider the evidence before the Tribunal. Critically, we formed the view that it was unlikely that Mr Woods would attend if the hearing were adjourned to a future date. Issues for determination 1. The key issues we must decide are: 1. Whether the conduct particularised in the Complaints occurred. 2. If so, whether any conduct found proven constitutes "unsatisfactory professional conduct". 3. If so, whether some or all of that conduct constitutes "professional misconduct". 4. If so, whether disciplinary orders should be made. 1. The Commission bears the burden of proving the Complaints on the balance of probabilities. The evidence necessary in cases such as this where the allegations, if found proven, carry potentially serious consequences such as the practitioner's loss of livelihood was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, by exclusion that is, not "slender and exiguous proofs" (per Rich J at p 350), nor "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at p 362). The conduct the subject of the Complaint 1. The conduct said to constitute both unsatisfactory professional conduct and professional misconduct is particularised in Complaint 1 in the following terms: BACKGROUND TO COMPLAINT ONE At all relevant times, the practitioner was an enrolled nurse practising at the Adult Mental Health Unit (AMHU) at Hornsby Ku ring Gai Hospital. Patient A was an inpatient in the Mental Health Intensive Care Unit (MHICU) within AMHU. Between 9 April 2014 and 10 April 2014, the practitioner was rostered on shift at the AMHU. Patient A was in a secluded room within MHICU. PARTICULARS OF COMPLAINT ONE 1. At around 00:15 hours on 10 April 2014 the practitioner: (a) used excessive force in responding to an assault by Patient A in that he: (i) punched the patient in the head two or three times; (ii) applied force to the patient causing the patient to lose balance and fall to the floor; (b) failed to assist in de-escalating the incident involving Patient A and/or withdraw in that he: (i) had to be physically restrained by the nurse-in-charge from continuing to try to reach Patient A; (ii) responded inappropriately to Patient A's verbal insults including with words to the effect of "you still want to do this"; (c) [withdrawn] (d) kicked Patient A to the left side of his head with his right foot while patient was lying on the floor. Did the conduct particularised in Complaint 1 occur? Background to the incident 1. On 2 April 2014 Patient A was involuntarily admitted to the Mental Health Intensive Care Unit at Hornby Hospital (the Unit) under the provisions of the Mental Health Act 2007 (NSW). On admission he was reported as being manic, hostile, agitated, disinhibited and aggressive despite receiving high doses of antipsychotic medication. He was diagnosed with Disorder/Schizoaffective Disorder and poly substance abuse issues. (See Discharge Referral, 1 May 2014.) 2. Between 2010 and 2014 Patient A had a number of involuntary admissions to the Unit. Multiple reports were made during those admissions of Patient A assaulting or threatening to assault staff. 3. In addition, throughout his admission in April 2014 there were a number of reports of Patient A assaulting or threatening to assault staff. On 2 April 2014, for example, his treating psychiatrist recorded in the Hospital's Seclusion and Restraint Register (the Register), that Patient A "…Spat at staff. Remains abusive and threatening. Knocked staff on to the door frame". Later that day he was reported to have "Kicked two staff, punched one staff on neck". A couple of days later the treating psychiatrist recorded that Patient A exhibited "Increasing level of agitation. Violent thoughts. Threatening to kill staff. Remains high risk of aggression". An entry made the following day was in a similar vein: "Remains unpredictable, easily getting agitated, banging windows, swearing". Mr Woods was present during some of these incidents. Accounts of the incident 1. The following facts are taken largely from the records of interview conducted by investigators appointed by the Hospital shortly after the incident and statements prepared by the participants involved in the incident in October 2014. 2. On 9 April 2014, Mr Woods worked the night shift at the Unit. According to RN Tamse, the nurse in charge of that shift, he and Mr Woods attended upon Patient A at 0010 hours because he was very agitated and was disturbing other patients. He was banging windows, the bedroom wall, slamming cupboard doors and making a lot of noise. Patient A had already received his medication but it was apparently ineffective in calming him down. Mr Tamse described Patient A as being "hypermanic, pressured and floridly psychotic". Mr Tamse and Mr Woods went to his room to attempt to speak to Patient A and give him with the option of moving to "the Seclusion unit" to help him sleep. 3. Patient A initially agreed to move but became agitated and refused when told he could not take his pillow and blanket. The nurses then told Patient A that they would leave him alone. Mr Tamse stated that as he and Mr Woods turned to leave, Patient A began to throw punches at them. He said that he thought Patient A had punched Mr Woods a number of times then Mr Woods punched him back two or three times. According to Mr Tamse, Patient A had been "flying punches" and Mr Woods "copped most of the punching". This led to a struggle between the two men. Mr Tamse noticed blood on Patient A's face. During the incident, Mr Woods also received a wound to his face, over one of his eyes. 4. While this was happening Mr Tamse hit the duress alarm and forced Patient A and Mr Woods apart. He restrained Mr Woods, telling him, "Stop it, stop it, man. That's enough". 5. Two more staff then entered the room in response to the duress alarm: RN Stevens and RN Mutekede. By this time, Patient A was sitting on the floor with blood flowing from a head wound. 6. RN Stevens claims that when he entered Patient A's room he saw Mr Tamse holding Mr Woods against the wall. According to Mr Stevens, both Mr Woods and Patient A were angry and exchanging insults at each other. At this stage, Mr Woods was standing near the door of Patient A's room. Patient A then yelled another insult and Mr Woods reacted by moving towards Patient A who was still on the floor and kicking him in the head. Mr Stevens immediately told Mr Woods to get out of the room. 7. Mr Mutekede claimed when he entered the room he saw Mr Tamse restraining Mr Woods and heard Mr Woods saying, "You can't do that to me. You think you can beat anyone. You should not do that to staff". Patient A was on the floor. Mr Woods was very angry and said to Patient A, words to the effect "You still want to do this?" and was trying to move towards Patient A. Patient A was threatening Mr Woods and at one point said, "I'm going to get you". According to Mr Mutekede he heard Mr Woods saying things like, "I didn't intend to do this" and other apologetic things. Suddenly, however, he saw Mr Woods move towards Patient A, lift his right foot and kick him to the left side of his head. He immediately restrained Mr Woods and tried to move him out of the room. Shortly after, Mr Tamse and RN Green, the supervisor, entered the room. Mr Woods then left the room. 8. According to Mr Mutekede, Mr Woods was very apologetic after the incident and said, "I'm so sorry guys. I am sorry. I just couldn't handle myself. I was very angry. I feel a victim, you know." 9. Mr Green was the after-hours supervisor on the night of the incident. He came into Patient A's room at the end of the altercation and heard Patient A accusing Mr Woods of punching and kicking him. Mr Green took Mr Woods to his office and asked whether he needed medical attention. Mr Woods was still upset and told Mr Green, "He hit me first, but I got two or three good shots back at him". Mr Green, evidently recognising that this was an admission against his own interest and that Mr Woods may need legal advice, immediately told Mr Woods, "Don't tell me anymore." 10. Mr Woods participated in an interview with Hospital investigators on 15 April 2014. In essence, Mr Woods claimed that after interacting with Patient A concerning the noise he was making, he was backing out of the room and Patient A charged at him. He claimed that he attempted to restrain him but that Patient A "rained blows to my head". He had no recollection of any physical contact aside from grabbing at Patient A's head in an attempt to restrain him. In a statement dated 13 October 2014, prepared at the request of the Commission, Mr Woods gave an account of the incident which was largely consistent with the account he gave during the interview conducted shortly after the incident. Did Mr Woods use excessive force in responding to an assault punched Patient in the head two or three times? 1. There is strong evidence that Mr Woods punched Patient A and later also kicked him in the head and traded verbal insults with Patient A. Mr Woods did not give evidence at the hearing, did not cross-examine witnesses and, on his own account has little memory of the incident. We can, therefore, be satisfied on the balance of probabilities that both the punching and kicking occurred. 2. However, these bald facts do not tell the whole story. It is necessary to have regard to the circumstances in which these actions occurred: namely in the context of an initial attack by a highly agitated patient with a history of using and threatening to use violence against staff. Patient A was described as being powerfully built and estimated to weigh 120 kilograms. It falls to the Commission to establish whether, on the balance of probabilities, having regard to those circumstances, that Mr Woods used "excessive force" in responding to the assault, specifically by punching Patient A. 3. In evaluating that claim, while it is not determinative it is useful to consider whether, had Mr Woods been charged with assault, the defence of self-defence would be available. A person, including a nurse, is entitled to defend him or herself against attack or threatened attack. A person is entitled to use reasonable force; force that is proportionate to the threat as the victim perceives it to be: see Zecevic v Director of Public Prosecutions (1987) 162 CLR 645. Reasonable use of force in self-defence is a complete defence to a charge that alleges a person has unlawfully assaulted another person. 4. In a criminal prosecution, once reasonable evidence of self-defence is presented expressly or by implication (and that evidence may come from any source, not only the accused person), the prosecution bears the onus of proving beyond a reasonable doubt that the accused was not acting in self-defence or was doing so but used excessive force in so doing. 5. Mr Woods has taken little part in this case and has presented no evidence. He has repeatedly stated he has no recollection of events after being "charged at" by Patient A. As a matter of fairness then, it falls to the Tribunal to analyse the evidence including those aspects of it that may favour Mr Woods. 6. Patient A had a history of violence due to his mental illness and abuse of amphetamines and other drugs. He was highly agitated on the evening of the incident despite being medicated. Mr Tamse's account that Patient A attacked Mr Woods and himself is plausible and cogent. It is reasonable to infer that when Mr Woods first punched Patient A, he did so not just in anger or retaliation but because he believed it necessary to defend himself and Mr Tamse from further attack. 7. It was reasonable for Mr Woods to perceive Patient A to be a genuine physical threat to him and Mr Tamse. Arguably, the first punch could be seen to be the use of force proportionate to the threat as perceived by Mr Woods. 8. Nonetheless, the assessment of whether the force used in all the circumstances was excessive cannot be assessed only by reference to whether Mr Woods considered it reasonable and necessary to defend himself and his colleague. Consideration must also be given to whether in all the circumstances, objectively assessed those actions were excessive. While the first punch delivered by Mr Woods was arguably a proportionate response in the circumstances, by continuing to punch Patient A in the face, we find Mr Woods used excessive force. 9. We are satisfied, on the balance of probabilities that Mr Woods used excessive force in responding to an assault by punching Patient A in the head at least twice. Did Mr Woods use excessive force in responding to an assault by applying force to Patient A causing him to lose balance and fall to the floor? 1. The Commission alleges that Mr Woods "used excessive force … in that he applied force to the patient causing the patient to lose balance and fall to the floor" (Complaint 1, Particular 1(a)(ii)). We understand this allegation to be a reference to the first part of the incident, while Mr Tamse was present. 2. In a statement dated 29 October 2014, Mr Tamse wrote at [13] that he saw Mr Woods punch Patient A in the face "two or three times within the space of a second". He wrote "the punch appeared to make Patient A lose balance and fall to the floor landing on this bottom". In the interview conducted on 15 April 2014 he gave a slightly different account: "[Patient A] launched an attack and I was trying to grab his – I think his left –left arm. … Then we fell. Like I was on his left side and I forgot everything and I just needed to separate them. (See transcript of interview of Mr Tamse, 15 April 2014, p 4, ll 21, 22.) 1. In a report prepared at the request of his supervisor at 9am on the day of the incident, Mr Tames made no mention of Patient A losing his balance or falling to the floor. 2. There were no other witnesses to the alleged fall. Although there is CCTV footage of staff entering and leaving Mr Woods' room, there is no footage of what occurred in the room (see statement prepared by Mr Green, 20 November 2014). The Commission did not ask Mr Tamse to address the inconsistency between the claim made in his statement of Patient A falling to the floor after being punched by Mr Woods and the claim made during the interview conducted shortly after the incident where he did not expressly attribute the fall to Patient A being punched by Mr Woods. Nor was he asked to explain the omission of any mention of Patient A falling to the floor in the note made within hours of the injury. 3. The available evidence supports a finding that at some point during the incident Patient A probably fell to the floor. Mr Tamse's most recent claim that he fell as a result of losing his balance after being punched is plausible. Nonetheless, without some explanation for the reason for these differing accounts, the Commission has failed to discharge the evidentiary onus of establishing on the balance of probabilities that Mr Woods "used excessive force … in that he applied force to the patient causing the patient to lose balance and fall to the floor". In reaching this conclusion we are not suggesting that Mr Tamse gave an untruthful account but rather that we are unable to determine which of the differing accounts should be accepted. Given the passage of time between the initial interview and being the preparation of the October 2014 statement together with the traumatic nature of the incident, it is not surprising that there was some variation in the accounts given by Mr Tamse. Did Mr Woods have to be physically restrained to prevent him from continuing to try to reach Patient A? 1. Messrs Mutekede and Stevens corroborate Mr Tamse's claim that he was forced to intervene and restrain Mr Woods from continuing to punch Patient A Each claim that on entering the room they saw Mr Tamse holding Mr Woods apparently to restrain him from going near Patient A. We are satisfied on the balance of probabilities that, as claimed, Mr Woods had to be physically restrained to prevent him from trying to reach Patient A. Did Mr Woods respond inappropriately to Patient A's verbal insults including saying words to the effect "you still want to do this"? 1. Messrs Mutekede and Stevens each claim that when they entered the room Patient A and Mr Woods were trading insults at each other and Patient A was verbally threatening Mr Woods. Mr Tamse made a similar claim. We find that Mr Woods verbally insulted Patient A and said words to the effect "you still want to do this?". We also find as contended by the Commission that these actions were inappropriate. Did Mr Woods kick Patient A to the left side of his head with his right foot while Patient A was lying on the floor? 1. Messrs Mutekede and Stevens each claim that they saw Mr Woods kick Patient A in the head after Mr Tamse left the room to obtain medical supplies to treat Patient A's head wound. We find this conduct occurred. Did Mr Woods fail to assist in de-escalating the incident involving Patient A and/or withdraw? 1. It falls to the Commission to establish that Mr Woods not only did the things particularised above — needing to be physically restrained, verbally insulting and kicking Patient A in the head — but also that by doing these things he failed to assist to de-escalate and/or withdraw from the incident. 2. By the second part of the incident when Messrs Mutekede and Stevens responded to the duress alarm, Patient A no longer posed a threat to either Mr Woods or his colleagues. While the situation remained volatile, Mr Woods' actions in attempting to "get at" and verbally and physically attack Patient A, self-evidently meant he failed to assist in de-escalating the incident. Summary 1. Particular 1(a)(ii) of Complaint 1 is not proven. The balance of Complaint 1 proven. Is Mr Woods guilty of "unsatisfactory professional conduct"? 1. The Commission contends that the conduct particularised in Complaint 1 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 knowledge, skill or judgment possessed, or care exercised, judgment possessed, 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 the impugned conduct demonstrate that the judgment possessed, or care exercised by Mr Woods, fell significantly below the standard reasonably expected of an enrolled nurse of an equivalent level of training or experience? 1. This question requires us to (i) identify the standard of judgement or care expected of a nurse of Mr Woods's skill and experience (the relevant standard) and (ii) evaluate whether the impugned conduct demonstrates that the judgement possessed, or care exercised, by Mr Woods fell "significantly below" that standard. 2. At the time of the subject incident Mr Woods was 54 years of age and had approximately eight years' experience in acute mental health facilities. On 2007 he obtained a TAFE Certificate 4 (with distinction), "Endorsed Enrolled Nurse". He was first registered as an enrolled nurse in March 2008. Expert opinion 1. At the request of the Commission, Mr Michael Blair was asked to provide an opinion about Mr Woods' conduct during the incident. Mr Blair has worked as a mental health nurse for four decades and holds a Masters degree in Nursing. 2. In a report dated 13 January 2015, Mr Blair wrote that when confronted by a physically violent patient, a mental health nurse is permitted to use "minimal force to restrain" the patient. He considered that Mr Woods' claim of responding to Patient A's charge by placing him in a "super head hold" — grabbing hold of Patient's head and pushing it down — does not represent a departure from the standards expected of an enrolled nurse. However, in Mr Blair's opinion, Mr Woods' subsequent actions, namely punching Patient A in the head and verbally abusing Patient A, went beyond what could be considered "reasonable restraint" in the circumstances. 3. Mr Blair outlined in his report what he asserted are the standards expected of a mental health nurse dealing with a physically aggressive patient: 1. If assaulted, to use minimum force to restrain the patient. 2. If involved in a physically violent exchange to take direction from the nurse in charge and assist in the de-escalation of the patient. If unable to do this, to withdraw from the area and to not further inflame the situation. Likewise if verbal insults are directed towards the nurse. 3. Never threaten a patient, particularly an acutely disturbed mental health patient. The mental health nurse should focus on primary goals of engagement as taken from the NSW Health Policy regarding Aggression Seclusion and Restraint and pay regard to the Zero Tolerance to Violence policy in the workplace PD 2005 315 which emphasises "effective clinical management and compassionate care". 1. In Mr Blair's opinion, Mr Woods' conduct as described in Complaint 1 represented a significant departure from the standard expected of an enrolled nurse working in an intensive care unit of a mental health facility. That conduct attracted his "strong criticism". Our assessment 1. The assessment of whether Mr Woods' conduct fell significantly below the standard reasonably expected of a nurse practitioner of an equivalent level of training or experience to Mr Woods requires consideration of the circumstances in which the incident occurred. As noted, Patient A had a history of using violence towards staff. Immediately before the incident Patient A was reported as being in a highly agitated state and acting in an aggressive manner. Matters escalated to such an extent that Messrs Tamse and Woods had decided to place Patient A in seclusion. There is no suggestion that in the circumstances this course of action was inappropriate. 2. There can be no argument that the circumstances Mr Woods found himself in on the evening of the incident were explosive. We agree with Mr Blair that if, as claimed, on being charged by Patient A Mr Woods' placed Patient A in a "headlock" that response was probably proportionate and measured in the circumstances. However, his subsequent actions of punching, kicking and verbally abusing Patient A went well beyond the use of force necessary for self-protection. 3. Despite the challenging situation that confronted Mr Woods, we find the actions particularised in the Complaint found proven individually and collectively demonstrate that, on that occasion, the skill and judgment he possessed and care exercised fell significantly below the standard reasonably expected of a practitioner of his level of training and experience. 4. We are satisfied that the conduct described in Complaint 1, particulars 1(a)(i), 1(b) and 1(d), constitutes unsatisfactory professional conduct within the meaning of ss 139B(1)(a) of the National Law. Given this finding it is not necessary to determine whether, as the Commission contends, that conduct also constitutes unsatisfactory conduct within the meaning s 139B(1)(l) of the National Law. Is Mr Woods guilty of professional misconduct? 1. The Commission contends that Mr Woods is guilty of "professional misconduct", which is defined by s 139E of the National Law to mean: 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. Is the conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Woods' registration? 1. In evaluating whether the conduct found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that 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 that 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 the subject of the complaint, we find Mr Woods' act of kicking Patient A to be the most concerning. By that time Patient A no longer posed a threat to either Mr Woods or his colleagues. It was an unwarranted and gratuitous act and had the potential to seriously injure Patient A. We have no hesitation in finding that that act was "sufficiently serious" to warrant suspension of Mr Woods' registration as an enrolled nurse. 3. In our opinion, Mr Woods' conduct in punching Patient A was serious but less so because at least initially there was a reasonable basis for Mr Woods to perceive that he and Mr Tamse were in danger. Nonetheless, taken as a whole the succession of punches he delivered in our opinion was "sufficiently serious" to warrant suspension. In addition, Mr Woods' attempts to continue to reach Patient A, presumably to continue to assault him, necessitating the intervention of Mr Tamse, was sufficiently serious to warrant suspension. 4. Mr Woods' verbal abuse of Patient A had the potential to inflame a highly emotive situation and place Patient A, Mr Woods and his colleagues at risk. It fell short of the standards expected of a member of the nursing profession. While of itself it may not have been "sufficiently serious" to warrant suspension, in our opinion when aggregated with the balance of the conduct found proven, Mr Woods' act of verbally abusing Patient A amounts to conduct of a sufficiently serious nature to justify suspension of Mr Woods' registration. Summary 1. The conduct described in Complaint 1, particulars 1(a)(i), 1(b) and 1(d) and (d), constitutes professional misconduct within the meaning of ss 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 to impose conditions on the practitioner's registration. Where, as in this case, the practitioner is found guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration. 2. In exercising its functions under 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). 3. In Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD Wright J 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 orders: 1. That if Mr Woods were still registered as an enrolled nurse the Tribunal would have cancelled his registration (s 149C(4)(a) of the National Law). 2. That the Nursing and Midwifery Board of Australia be required to record in the National Register that the Tribunal would have suspended or cancelled Mr Woods' registration (s 149C(4)( c)). 3. That Mr Woods be disqualified from being registered as an enrolled nurse for a period of 12 months from the date of this decision (s 149C(4)(b) of the National Law). 1. There is no evidence to suggest that before the incident Mr Woods had, or had been suspected of, acting in a verbally or physically aggressive manner towards patients. According to Mr Green, Mr Wood's supervisor on the night of the incident he had never seen Mr Woods "lose his cool" or use excessive force with any patient and had not had any incidents of unprofessional conduct of that nature brought to his notice. In an undated reference, a nurse unit manager wrote that he had worked closely with Mr Woods and "apart from this one occasion Steven has performed his duties to a very high standard and has worked well in a very challenging and testing environment". (See Exhibit A1, Tab 24). In October 2012, a nurse unit manager gave Mr Woods a glowing reference writing that he "had extensive experience in an acute [mental health] setting and demonstrated excellent de-escalation skills". He wrote he would "absolutely" re-employ Mr Woods if the opportunity arose. (See Exhibit A 1, Tab 10.) 2. Apart from the limited information given by Mr Woods, we have no information about his circumstances since the incident. He claims that since the incident he has not worked as an enrolled nurse and has led an itinerant lifestyle. 3. A possible explanation for Mr Woods' conduct on the night of the subject incident is that the blow to his head contributed in some way to his uncharacteristic behaviour. However, on the available material and in the absence of any medical evidence, it is not possible to reliably determine what caused Mr Wood's uncharacteristic conduct on the night of the incident. 4. Notwithstanding our finding that Mr Woods' conduct was sufficiently serious to justify suspension or cancellation, it does not follow that such an order must be made. (See, HCCC v Jamieson [2014] NSWCATOD 56 at [100].) Cancellation and suspension or, as in this case, a decision that an order cancelling or suspending the practitioner's registration would have been made are but some of the orders available where a health practitioner is found guilty of misconduct. While the safety of the public is the paramount consideration, any disciplinary order must nonetheless be commensurate with the seriousness of the impugned conduct and take into account the likelihood of it being repeated. While the purpose of disciplinary orders is not punitive they serve nonetheless as markers to the practitioners as to the consequences that may flow where there has been a significant departure from professional standards. 5. Mr Woods has surrendered his registration and claims to have no intention of returning to nursing. This raises the question of whether in these circumstances the orders sought by the Commission are unnecessarily punitive. After careful consideration we have decided they are appropriate for the following reasons. First, there is no reliable evidence to support a finding that, as claimed, Mr Woods does not intend to return to nursing. Without the orders sought by the Commission it would be open to Mr Woods to immediately apply to be restored to the register of nursing. There is no evidence that if he did return to nursing the conduct the subject of the complaint is unlikely to be repeated. Second, given the gravity of the conduct in our view it is appropriate that orders be made that signal to the profession that the assault of a patient represents an egregious departure from professional standards such as to warrant suspension or cancellation. 6. For these reasons we conclude that the orders sought by the Commission are appropriate and measured and make those orders. Should an award for costs be made? 1. The Commission seeks an order for costs and at hearing made a submission in support of its costs application. Mr Woods had left the hearing by that time. 2. In our view fairness to Mr Woods demands he be given an opportunity to respond to the Commission's application after having the opportunity to consider our decision and reasons. It may be that he does not avail of himself of that opportunity but nonetheless we consider he should be given that opportunity. 3. We make the following orders: 1. Within 14 days of the date of this decision the Commission must file and serve brief submissions in support of its application for costs. 2. Within 28 days of receiving the Commission's submissions on costs Mr Woods must give to the Commission and the NCAT any submissions in reply. 3. Within 14 days of the date of this decision the parties must notify the Tribunal and each other whether they consents to the issue of costs, being determined "on the papers". I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** 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 Amendments 20 May 2016 - Corrected typographical errors on the Cover sheet and in paragraphs 45, 46, 47, 48 and 52. 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: 20 May 2016