Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Marsh [2016] NSWCATOD 155 Hearing dates: 12 August 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Occupational Division Before: R Titterton, Senior Member A Currie, Professional Member D Armitage, Professional Member J Floyd, General Member Decision: The respondent's registration as a registered nurse be cancelled Catchwords: Health Practitioner – Nurse – where nurse convicted of the murder of supervisor - not suitable to hold registration as a nurse Legislation Cited: Civil and Administrative Tribunal Act 2013. Crimes Act 1900 (NSW). Crimes (Sentencing Procedure) Act 1999 (NSW). Evidence Act 1995 (NSW) Health Care Complaints Act 1993 Health Practitioner Regulation National Law NSW No 86a Cases Cited: Gayed v Walton [1997] NSWSC 279 Health Care Complaints Commission v O'Hagan [2010] NSWNMT 37 Health Care Complaints Commission v Pierce [2010] NSWNMT 1 Health Care Complaints Commission v Schmich [2009] NSWNMT 19 Health Care Complaints Commission v Simring [2007] NSWNMT 7 Health Care Complaints Commission v Nair [2013] NSWMT 19 Health Care Complaints Commission v Vincent [2012] NSWNMT 2 Health Care Complaints Commission v Hagan [2010] NSWNMT 37 Health Care Complaints Commission v Howe [2010] NSWMT 12 Health Care Complaints Commission v Khan [2016] NSWCATOD 32 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Priyamanna No 2 [2016] NSWCATOD 3 Lee v Health Care Complaints Commission [2012] NSWCA 80 Marsh v R [2015] NSWCCA 154 NSW Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 R v Elliott and Blessington [2006] NSWCCA 305 R v Marsh [2012] NSWSC 208 Re Dr Parajuli [2010] NSWMT 3 Ziems v the Prothonotary (1957) 97 CLR 279; [1957] HCA 46 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Walter Ciaran Marsh (Respondent) Representation: Counsel: P Aitken (Appellant) Solicitor: K Latimer (Appellant) File Number(s): 1620077 REASONS FOR DECISION Summary 1. By Application for Disciplinary Findings and Orders dated 1 April 2016, the Health Care Complaints Commission (the Commission) seeks orders, pursuant to s 149C of the Health Practitioner Regulation National Law NSW No 86a (the National Law), that: 1. The respondent's registration as a registered nurse be cancelled. 2. The respondent may not make any application for a review of that order for a period of 50 years from the date of the order; 3. The respondent be permanently prohibited from providing any health service. 4. The respondent pay the Commission's costs of the application. 1. For the reasons that follow, the Tribunal has decided to cancel the respondent's registration as a registered nurse. Complaint 1. The Commission, having consulted the Council in accordance with s 39(2) of the Health Care Complaints Act 1993 and s 145 of the National Law, complains that: 1. The respondent has been convicted of a criminal offence (Complaint One). 2. The respondent is not suitable to hold registration as a registered nurse. (Complaint Two). 1. The background to each complaint is that: 1. On 14 November 2011, in the Supreme Court of New South Wales, the respondent was found guilty of the offence of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). 2. On 9 March 2012, the respondent was sentenced to imprisonment for life under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. On 9 July 2015, the New South Wales Court of Criminal Appeal dismissed an appeal by the respondent against his conviction and granted leave to appeal against his sentence, but dismissed the appeal. The respondent 1. The respondent did not appear at any directions hearing, nor at the hearing of the matter. The Tribunal was satisfied that he had notice of the hearing, and that the hearing should proceed in his absence. 2. As the Commission relied on written submissions at the hearing which had not been provided to the respondent, at the conclusion of the hearing the Tribunal directed the Commission to provide a copy of its submissions to the respondent, and allowed the respondent time in which to file any submissions in response. As at the date of preparing these reasons, no submissions had been received from the respondent. Preliminary 1. As is noted, the basis of which the application of the Commission is made is that the respondent was found guilty of the offence of murder. The victim was his supervisor at Royal North Shore Hospital. Following a trial by jury, he was found guilty and convicted of murder, and sentenced to life imprisonment: R v Marsh [2012] NSWSC 208. Appeals against conviction and sentence were refused by the Court of Criminal Appeal: Marsh v R [2015] NSWCCA 154. 2. The murder took place in premediated and shocking circumstances, and was described by the trial judge as, "viewed objectively", a "terrible crime that was at the top of the range of murder". 3. The Tribunal was asked to make non-publication orders in respect of the victim's identity, so as to spare her family any further distress. Given that the victim was identified publicly at the trial, and subsequently in the reported decisions of the trial judge on sentence and by the Court of Criminal Appeal on appeal, the Tribunal sees no utility in making a non-publication order. The crime itself was a matter of some notoriety. Nevertheless, recognising the distress that further discussion of the events may cause the victim's family, the Tribunal will refrain from identification of the victim in these reasons, and will refer to her as "the victim" or "Person A". Evidence Complaint One 1. The Tribunal had before it a certificate issued by the Supreme Court of NSW pursuant to s 178 of the Evidence Act 1995 (NSW). The certificate states that the respondent relevantly states that the respondent, having been charged with murder, having pleaded not guilty on 23 September 2011, and was subsequently found guilty on 14 November 2011. 2. Section 178 of the Evidence Act relevantly provides: 178 Convictions, acquittals and other judicial proceedings (1) This section applies to the following facts: (a) the conviction or acquittal before or by an applicable court of a person charged with an offence, (b) the sentencing of a person to any punishment or pecuniary penalty by an applicable court, (c) an order by an applicable court, (d) the pendency or existence at any time before an applicable court of a civil or criminal proceeding. (2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court: (a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question, and (b) stating the time and place of the conviction, acquittal, sentence, order or proceeding, and (c) stating the title of the applicable court. (3) A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate. (4) A certificate given under this section showing the pendency or existence of a proceeding is also evidence of the particular nature and occasion, or ground and cause, of the proceeding, if stated in the certificate. (5) A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate. 1. Based on this evidence, the Commission submits that Complaint One is made out. 2. The Tribunal accepts this submission, and finds that the respondent has been convicted of a criminal offence, namely murder. Complaint Two 1. The Commission submits that the respondent's conduct in the murder, as set out in the extract from Price J's judgment at Annexure "A" to the Complaint, established that that the respondent is not a suitable person to hold registration as a nurse. The Commission submits, in essence, that the respondent developed an animosity towards Person A, who was a nurse manager and the respondent's supervisor at Royal North Shore Hospital. His "meticulously planned", "extraordinarily cruel" and "terrible crime" was described as being at the top of the range of the offence of murder by the trial judge, and an "act of barbarity". The trial judge found that the respondent had "neither expressed remorse or shown contrition for the offence" (par [48]) and that: "it is plain that the offender has the real potential to violently harm a person who he perceives might seriously interfere with his plans, or who otherwise to his mind causes him significant distress. I am satisfied beyond reasonable doubt that there is a risk that the offender could offend again by killing such a person. I consider that the offender's prospects of rehabilitation are poor." (at par [53]). 1. The Commission relies on the circumstances of the murder and the findings as to the future danger to the public identified by Price J (and based on expert psychiatric opinion, see par [50]), to establish that pursuant to s 144(e) of the National Law the respondent is "otherwise not a suitable person to hold registration in the practitioner's profession". 2. The Commission submits that the meaning of "not a suitable person" is not defined in the National Law, but that assistance can be obtained in the interpretation of that term from s 55 of the National Law, which sets out a number of circumstances in which a board of a health profession can decide whether a person is not a suitable person to hold registration in the profession. These relevantly include an impairment that may affect capacity to practice to the extent that it may place public safety at risk, the criminal history disclosing that the person is not an appropriate person to practice or for any other reason that person is not a fit and proper person or is unable to practice competently and safely. 3. The Commission submits that in Health Care Complaints Commission v Vincent [2012] NSWNMT 2, the Medical Tribunal considered whether someone convicted of child pornography offences was a suitable person to practice nursing and referred to Health Care Complaints Commission v Pierce [2010] NSWNMT 1, a decision dealing with whether the person was of good character in the context of fitness to practice (see par [46]). Relevant factors included: 1. Whether the misconduct could be satisfactorily explained as an error of judgment rather than a defect of character; 2. The intrinsic seriousness of the misconduct in terms of fitness to practice; 3. Whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities or character; 4. The motivation which may have given rise to the proven episode of misconduct; 5. The underlying qualities of character shown by previous and other conduct; and 6. Whether the practitioner's conduct post the proven episode of misconduct demonstrates the public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a nurse. 1. The Commission also referred to Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17]. There the court stated: A series of propositions as to the law clearly have appeared from the cases and I will briefly summarise them. (1) The onus is on the claimant to show that the opponent is not a fit and proper person. It is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236. However Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 shows the particular standard that must be applied when working out the civil onus of proof. (2) An order striking off the Roll should only be made when the probability is that the solicitor is permanently unfit to practice: Prothonotary v Richard (NSWCA 31.7.1987 per McHugh JA) and see NSW Bar Association v Maddocks (NSWCA 23.8.1988). (3) The fact that the opponent has a conviction for a serious offence is not necessarily sufficient reason for an order striking that person off the Roll; see Ziems v Prothonotary [1957] HCA 46; (1957) 97 CLR 279, 283. (4) The fact of conviction and imprisonment is, however, far from irrelevant and may be regarded as carrying a degree of disgrace itself. See Ziems case at 288. (5) The Court needs to consider the conduct involved in the conviction and see whether it is of such personally disgraceful character that the opponent should not remain a member of an honourable profession: Re Weare [1893] 2 QB 439, 446; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 (QCA). (6) The fact that the opponent pleaded guilty to the charge will usually be counted in her favour: NSW Bar Association v Maddocks. Though we do not assume that all pleas of guilty necessarily show remorse, it is significant that in the instant case Keleman DCJ said that it did. (7) Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non-compliance with legal and civic obligations: NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, 289; NSW Bar Association v Somosi (2001) 48 ATR 562. (8) The concept of good fame and character has a twofold aspect. Fame refers to a person's reputation in the relevant community, character refers to the person's actual nature: McBride v Walton (NSWCA 15.7.1994 per Kirby P); Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455, 459. (9) The attitude of the professional association is that the application is of considerable significance. (10) The question is present fitness, not fitness as at the time of the crime: Prothonotary v Del Castillo [2001] NSWCA 75 at para 71. 1. The Commission submits that these criteria were recently restated in Health Care Complaints Commission v Simring [2007] NSWNMT 7, a case involving complaints of conviction for offences, unsatisfactory professional conduct/professional misconduct and not of good character and were, along with Pierce, decided under the NSW legislation that pre-dated the National Law: see the discussion of the fitness principles in Health Care Complaints Commission v Schmich [2009] NSWNMT 19 at pars [33]-[37]. 2. The Commission submits that the trust in nurses is the same as that placed in medical practitioners: see Health Care Complaints Commission v O'Hagan [2010] NSWNMT 37 at [8]. 3. In relation to the conduct of the respondent, the Commission submits that the seriousness, particular circumstances and planning of the murder and its motivation all suggest that fellow health practitioners would be particularly at risk, as well as patients and other members of the public who were perceived to cause him significant distress or seriously interfere with his plans. The respondent's lack of remorse and denial of guilt points compellingly to an underlying defect of character such that there would be no confidence that public and professional confidence could ever be reposed in him. 4. The Commission submits that the failure of the respondent to attend, give evidence and be available for cross-examination permits the Tribunal to draw adverse inferences against a respondent due to the absence of relevant oral or documentary evidence that could only come from him. It is submitted that the offence committed by the respondent demonstrates that he does not possess the character and attitude appropriate for a registered nurse. 5. Further, it is submitted that the Respondent should not be given the benefit of the doubt given that he has not committed any offences more recently. A conclusion of reformation cannot result because of the passage of time in of itself: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [69]. In any event, the respondent has been in custody since 19 May 2010 (see R v Marsh at [49]), a period of over six years. He has not practiced nursing in that time. Relevant Law 1. It is appropriate to now set out the relevant provisions of the National Law. These are as follows. 2. Section 3, which provides: 1. 3 Objectives and guiding principles 2. (1) The object of this Law is to establish a national registration and accreditation scheme for-- 3. (a) the regulation of health practitioners; and 4. (b) the registration of students undertaking-- 5. (i) programs of study that provide a qualification for registration in a health profession; 6. (ii) clinical training in a health profession. 7. (2) The objectives of the national registration and accreditation scheme are- 8. (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and 9. (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and 10. (c) to facilitate the provision of high quality education and training of health practitioners; and 11. (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and 12. (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and 13. (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. 14. (3) The guiding principles of the national registration and accreditation scheme are as follows-- 15. (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; 16. (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; 17. (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. A "NSW provision" is defined in s5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note: This definition is an additional New South Wales provision. Relevant principles 1. The relevant principles to be applied include: 1. The disciplinary powers of the Tribunal are set out in s 149 of the National Law. The Tribunal has a range of powers which appear in ss 149A and 149B. 2. The paramount consideration in proceedings such as this is to protect the public: s 3A of the National Law; Re Dr Parajuli [2010] NSWMT 3 at [31]; 3. The jurisdiction of the Tribunal is protective in nature, and not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. 4. In the exercise of its protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the that profession and the protection of the community: Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113]. 5. The purpose of the proceedings include the need to deter others from engaging in similar conduct: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]: . . . it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services. Are the Complaints established? 1. The Tribunal finds that each of Complaints One and Two are established. 2. Complaint One is established given the evidence before the Tribunal of the respondent's conviction for the offence of murder. 3. Complaint Two is also established. The Tribunal accepts that a nurse: 1. who "meticulously plans" an "extraordinarily cruel" and "terrible crime"; 2. who commits a murder described as being at the top of the range of the offence of murder by the trial judge and an "act of barbarity"; 3. in circumstances in which the victim was his supervisor and therefore the criminal offence was clearly related to the practice of the respondent's profession, 4. where the respondent "neither expressed remorse or shown contrition for the offence" and it was "plain that the offender has the real potential to violently harm a person who he perceives might seriously interfere with his plans, or who otherwise to his mind causes him significant distress", is not a suitable person to hold registration as a registered nurse. Should the respondent's registration as a nurse be cancelled? 1. Given that Complaint Two is proven, and that the respondent is not a suitable person to hold registration as a nurse, the Tribunal is satisfied that the respondent's registration as a nurse should be cancelled. 2. The Tribunal also finds that the establishment of Complaint One constitutes a further (or alternative) basis on which to cancel the respondent's registration as a nurse. Should an order be made pursuant to s 149C(7) of the National Law? 1. The Commission seeks an order pursuant to s 149C(7) of the National Law the respondent not be permitted to review the cancellation for a period of 50 years from the date of the order. 2. The Tribunal noted at the hearing that the respondent was serving life imprisonment, under (what is now known as) the "truth in sentencing" legislation. The Tribunal queried whether seeking such an order, in circumstances where the respondent was incarcerated for the rest of his life, was symbolic, and of no real utility. In addition, the Tribunal noted that the respondent at trial was found to have been born on 21 September 1960. Accordingly, at the time of these proceedings, he was 56 years old. Again, the Tribunal doubted the utility of making an order which would be effective until the respondent was 106 years old, and well beyond the life expectancy of an Australian male. 3. The Commission submitted that such an order was not simply symbolic, and reflected the protective nature of the jurisdiction being exercised. The Commission submitted that: the paramount consideration in proceedings such as this is to protect the public: it is not the focus of such proceedings to punish the practitioner. Accordingly, the Tribunal's jurisdiction must be exercised bearing in mind the need to foreground issues of public safety. It has also been held that, in addition to the protection of the public being the paramount consideration, other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: . . . In NSW Bar Association v Meakes [2006] NSWCA 340 at [114], Basten JA set out the following as the 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 kind 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. The Commission noted that the exercise of the protective jurisdiction may result in a punitive effect in some cases, and operate to have a deterrent effect: Health Care Complaints Commission v Hagan [2010] NSWNMT 37 at [9]. The Commission relied on Ziems v the Prothonotary [1957] HCA 46; (1957) 97 CLR 279 as authority for the proposition that there was an underlying assumption that a practitioner should not be held out as fit and proper person to the public while serving a sentence of imprisonment. 2. There was a very helpful discussion about this issue recently in Health Care Complaints Commission v Priyamanna No 2 [2016] NSWCATOD 3. The Tribunal there stated: The Review Period . . . 41 The imposition of an order under s 149C (7) is, by reason of the language employed in the provision, a matter of discretion. The National Law contains no guidance as to how the discretion under the section should be exercised. Clearly, as with the exercise of any discretion, it should not be exercised capriciously or for an improper purpose, rather it must be exercised judicially. Each matter must be considered on its own unique facts and circumstances. 42 It appears to us that there are a number of circumstances to be weighed in the balance when making, or not making, an order under s 149C (7). First, at one end of the spectrum, it may be argued that, having regard to the principles applied when considering whether or not to make an order under s 163B (3), where a practitioner must demonstrate at the time of the application that he or she is an appropriate person to be re-instated to the Registrar, that an order under s 147C (7) may be unnecessary. A practitioner will generally require cogent evidence of matters such insight, remorse, and/or the undertaking of remedial education, to be successful in a review application. If unsuccessful, the former practitioner will generally incur the imposition of a costs order. It may be argued that these factors impose a self-regulating regime such that a practitioner will consider carefully his or her likelihood of success prior to instituting a review application. In other cases the practitioner may have surrendered his or her registration and/or expressed a firm intention never to practise again. Thus it is arguable that in some factual circumstances the making of any order under s 149C (7) is unnecessary. 43 Secondly, at the other end of the spectrum, a practitioner's conduct may be so gross, perhaps including established criminal conduct, that it is unlikely he or she will ever be considered fit to practise and a long period, before any application for re-instatement may be made, should be imposed. The imposition of a long period before any review may be instituted should ensure the safety of the public, have a deterrent effect, and send a strong public message that the Tribunal is cognisant of maintaining the integrity of the profession. 44 Thirdly, in the case of practitioners involved in inappropriate prescribing and/or poor or non-existent record keeping, lack of clinical skills, knowledge or judgment or other unethical conduct, a time period which allows sufficient time to complete education courses may be appropriate. The restraint on applying for review for a lengthy period may lead to the practitioner losing his or her clinical skills, and being unable to meet continuing professional requirements for registration including meeting any Recency of Practice standards. Another relevant consideration is the time period that will elapse from the filing of a review application until final determination of the matter, particularly where, for example, a council for a profession seeks to be made a party to the application and opposes re-instatement. In noting this factor as relevant to the discretion we are conscious of the objects of the Civil and Administrative Tribunal Act 2013 (NSW) (see s 3(d) and s 36 (4)). 45 Fourthly, an appropriate time period may be determined after evaluation of psychiatric or psychological evidence indicating a minimum period of therapy necessary to render the practitioner again fit to practise. In such case a Tribunal will be assisted in formulating its orders based on a consideration of such evidence. 46 The Court of Appeal has, understandably, eschewed the use of a table of comparable decisions or a formulaic approach to determining appropriate orders in disciplinary proceedings. The approach to be adopted is set out by Barrett JA in Lee v Health Care Complaints Commission [2012] NSWCA 80 as follows: In cases of the present kind, therefore, this Court should proceed on the basis that: (a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern; (b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct"; (c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers; (d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle; (e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the 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; and (f) the Medical Tribunal, as a specialist tribunal, brings special skill and experience to the task of formulating protective orders. 1. These principles were considered in Health Care Complaints Commission v Khan [2016] NSWCATOD 32. In that case, the (medical) practitioner was 77 years old; his registration had been suspended following the death of an eight year old child who suffered septic shock on a ruptured appendix. The Tribunal decided not to impose a period before which the practitioner could not seek a review of the order. The Tribunal stated: Period before the practitioner may apply for re-instatement. 112 The Health Care Complaints Commission asked that we make an order precluding the practitioner from seeking a review of the order cancelling his registration for a period of two years. No submissions were made to us why two years, or some other period, would be an appropriate restraint on the practitioner applying to the Tribunal. 113 We note the making of such an order is a matter of discretion, which must be exercised judicially. In this case the practitioner is now aged 77 years and has not practised for almost three years. We accept Dr Langeluddecke's opinion that he is unfortunately likely to suffer greater cognitive decline as he ages. We also give weight to Dr Wijeratne's opinion that online CME is not a substitute for practice. We were informed by Mr Barnes that the practitioner does not intend to practise again, although there was no evidence such as a statutory declaration from the practitioner to that effect. 114 At times there is very good reason for the Tribunal to make an order under s 149C (7). Such an order can prohibit vexatious or inappropriate applications. The order may reflect a period of time in which a practitioner may need to take remedial steps to cure or alleviate the circumstances that brought him or her before the Tribunal. The order may also reflect the seriousness with which the Tribunal views the practitioner's conduct and to ensure the safety of the public by precluding the practitioner from practising for a defined period. 115 Here we are satisfied that it is highly unlikely the practitioner will ever, because of his age, medical condition and lack of ongoing professional development, seek to be re-instated to the register. These matters impose a significant obstacle and deterrent to the practitioner applying for re-instatement. We do not in these circumstances find it is either necessary or appropriate to make an order under s 149C (7). Consideration 1. For the following reasons, the Tribunal does not propose to make an order under s 149C (7). 2. The first and primary reason is that the role of the Tribunal in these proceedings is to protect the public: it is not to punish the practitioner: Litchfield; Health Care Complaints Commission v Schmich [2009] NSWNMT 19 at [51]. The public is now adequately and appropriately protected by the respondent's incarceration. The various authorities referred to by the Commission, in so far as they involve criminal convictions, do not assist, as they do not encompass circumstances where the offender is never to be released. For instance, in Health Care Complaints Commission v Nair [2013] NSWMT 19 the Medical Tribunal considered the conduct of a neurosurgeon who was charged with murder, and later pleaded guilty to manslaughter, and two counts of supplying a prohibited drug. He was sentenced in 2011 to a period of imprisonment of a little less than eight years, with a non-parole period of five years. The Medical Tribunal cancelled his registration on 2 December 2014 and ordered that he not be entitled to make an application for a review of his registration until 31 December 2019. The Tribunal notes that this period exceeds the non-parole period by some three years and prevented the applicant from seeking a review until his head sentence had expired. But the effect of the order is that, if released on parole, the offender would have had to wait an appropriate period before renewing his registration. 3. It is to be noted that the respondent has been sentenced to life imprisonment pursuant to s 19A of the Crimes Act. As was noted in the Second Reading Speech introducing that section: The new section 19A will ensure truth in sentencing. Under this new scheme, the maximum sentence for murder for all offenders will be penal servitude for life, which is defined in the legislation to mean for the offender's natural life. As a result of the operation of new section 19A, the term of imprisonment the offender receives will be that which he or she actually serves. The need for executive intervention is thus removed. Consequently, the grave and understandable community concern in relation to the release of offenders at a time other than that specifically nominated by the judge when the offender is sentenced will be addressed. Therefore the community, victims and everyone concerned with a particular offence will know the time at which they need be concerned about that person's release. 1. The significance of the respondent being sentenced under s 19A is, as the former Chief Justice the Hon J Spigelman AC noted in in R v Elliott Blessington [2006] NSWCCA 305 at [12]) is that "life now means life or virtually so." 2. As was noted in Priyamanna No 2, there are categories of case where the making of any order under s 149C (7) is unnecessary. The examples given in that decision included cases where the practitioner may have surrendered his or her registration, or expressed a firm intention never to practise again. This too is such a case, in the sense that the respondent will never practice again, as he will spend the rest of his life in prison. As was noted by the Court of Appeal in Lee, since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the 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. We repeat, the respondent will spend the rest of his life in prison. Therefore, there are no measures needed to ensure that his future behaviour as practitioner be shaped in a certain way. 3. The Tribunal is not persuaded that it is appropriate or necessary to make an order pursuant to s 147C of the National Law, and declines to do so. For the same reasons appearing above, the Tribunal not persuaded that it is appropriate or necessary to order that the respondent be permanently prohibited from providing any health service. Costs 1. The Commission seeks its costs. This is a costs jurisdiction, and costs normally follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75 at [40]. 2. As the Commission has been successful, the Tribunal proposes to make an order that the respondent pay its costs, as agreed or assessed. The respondent has leave to file submissions if he seeks some other order, including that no order as to costs should be made. Such submissions should be made within 14 days after the publication of these reasons. The Commission may reply within a further 14 days if necessary. Any further decision as to costs will be made on the papers. Orders 1. The Tribunal orders that: 1. The respondent's registration as a registered nurse be cancelled. 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: 16 December 2016