Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mackie [2018] NSWCATOD 174 Hearing dates: 24 September 2018 Date of orders: 25 October 2018 Decision date: 25 October 2018 Jurisdiction: Occupational Division Before: O Shub, Principal Member Ms Elizabeth Angel, Senior Member Ms Maureen McGovern, Senior Member Mr Adam Johnston, General Member Decision: The Respondent is guilty of Unsatisfactory Professional Conduct and Professional Misconduct and the following orders were made: 1. The Respondent is not permitted to provide any health services until such time as he is registered as a Registered Nurse. 2. The Respondent is not permitted to apply for registration as a Registered Nurse for a period of four years from the date of this order. 3. The Respondent is to pay the Applicant's costs of the complaint in the sum of $7,200.00. The Tribunal notes that the Tribunal would have cancelled the Respondent's registration in the National Register kept by the Board, if the Respondent had still been a registered nurse. Catchwords: PROFESSIONS AND TRADES - health care professionals – nurses - Registered nurse -Professional boundaries - Eating disorder - Mental health patient - Contact after discharge - Inappropriate access to clinical records - Personal and intimate relationship with patient Legislation Cited: Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) Health Records and Information Privacy Act 2002 (NSW) Mental Health Act 2007 Cases Cited: Bowen James v Walton (NSW Court of Appeal, 5 August 1991) Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336 Fraser v Health Care Complaints Commission [2015] NSWCA 421 Gaed v Walton (1997) NSWSC 279 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Engel Jones [2011] NSWNMT 233 Health Care Complaints Commission v Howe (2010) NSWMT 12 Health Care Complaints Commission v Jane Waddell (No 1) [2012] NSWNMT 17 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Scully [2011] NSWNMT 28 Health Care Complaints Commission v Sunjic [2008] NSWNMT 12 Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 Lucire v Health Care Complaints Commission [2011] NSWCA 99 NSW Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission (2006) NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mr Paul Mackie (Respondent) Representation: Solicitor: Health Care Complaints Commission (Applicant) No Appearance (Respondent) File Number(s): 2018/00160030 Publication restriction: Non-publication Order with respect to the identity of, and in relation to, Patient A Reasons for decision 1. The proceedings arise out of complaints brought by the Health Care Complaints Commission (HCCC) having consulted with the Nursing and Midwifery Council of New South Wales in accordance with s.39(2) and s.90B(3) of the Health Care Complaints Act 1993 and s.145A of the Health Practitioner Regulation National Law (NSW) (National Law), whereby the Applicant complains that the Respondent, being a Registered Nurse formerly registered under the National Law, is guilty of Unsatisfactory Professional Conduct and Professional Misconduct. 2. The Respondent obtained his Bachelor of Nursing Degree and was registered with Australian Health Practitioner Regulation Agency (AHPRA) as a Registered Nurse. In November 2010, the practitioner completed a Master's Degree in Mental Health Nursing. 3. Between January 2015 and January 2017, the practitioner was employed at the Gosford Mental Health Unit (Unit) of Gosford Hospital (Hospital) which is part of the Central Coast Local Health District (CCLHD). The practitioner undertook one day workshops on sexual safety for mental health patients on 30 March 2015 and 27 October 2016. 4. On 25 December 2016, Patient A, a 28 year old female patient, was admitted to the Unit. On 5 January 2017, she was discharged from the Hospital into the care of her biological mother and to be monitored by the CCLHD Community Mental Health Service. 5. As part of the mental health team in the Unit, the practitioner directly cared for Patient A from 25 December 2016 to 30 December 2016. 6. The Respondent did not attend the hearing and was not represented at the hearing. 7. The Applicant produced affidavits sworn by the Applicant's solicitor which indicated that the Respondent was fully aware of the hearing and that he had been given every opportunity to appear and to be represented at the hearing. However, the Respondent had indicated that he had no intention of appearing at the hearing or being represented. 8. The Respondent was registered with the Nursing and Midwifery Council of New South Wales from 31 July 2008 to 1 July 2010 and following the transition to national registration on 1 July 2010, the Respondent was registered as a Registered Nurse from July 2010 until 16 March 2017 when the Respondent surrendered his registration. Such registration with AHPRA. 9. At the commencement of the hearing the Applicant indicated that minor amendments were made to the complaint. The Applicant advised the Tribunal that the amendments to the original complaint filed with the Registry were communicated to the Respondent and despite the Respondent having been given an opportunity to object to the amendments which were largely insignificant, no objection was received by the Applicant. This was confirmed in an affidavit by the solicitor representing the Applicant and, in the circumstances, the Tribunal was satisfied that the matter could proceed on the basis of the amended complaint. 10. The Applicant tendered a bundle of documents containing Tabs 1 to 31 as Exhibit 1, an affidavit by Mr Shah confirming service of the documents on the Respondent as Exhibit 2, a letter from the Australian Nursing and Midwives Association dated 18 June 2018 addressed to the Applicant in terms of which the Applicant was advised that under cover of a letter from the Commission dated 11 May 2017 the Commission acknowledged that the Respondent had voluntarily surrendered his registration. It also contained a letter from the Respondent to the Applicant stating that he had received a copy of the Application for Disciplinary Findings and Orders for NCAT Proceeding No. 2018/00160030, that he had read the Complaints 1 and 2 and that he admits the particulars of Complaint 1 and Complaint 2. He stated that as he is no longer registered as a nurse and does not intend to work again as a nurse in the future in order to reduce any costs order made against him he would not be participating in the NCAT proceedings any further. 11. In addition, the Applicant tendered an affidavit by Mr Shah dated 21 September 2018 in which it was confirmed that on 6 August 2018, the Applicant emailed the Respondent with the Tribunal's notice of the hearing date in the matter, on 24 August 2018. The Applicant sent an email to the Respondent informing him of the Commission's intention to have the complaint amended and annexed a copy of the amended complaint. On 10 September 2018, the Applicant sent two emails to the Respondent attaching copies of his registration history and a copy of the Commission's proposed amended complaint. On 14 September 2018, the Applicant sent an email to the Respondent notifying him of the Commission's proposed protective orders and emailed the Respondent with a copy of the Commission's written submissions. The Applicant has received no response to those emails from the Respondent. COMPLAINT 1. The Applicant complained that the Respondent being a registered nurse formerly registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, 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; ii. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. BACKGROUND TO COMPLAINT ONE In 2008 the practitioner obtained his Bachelor of Nursing degree and was registered with AHPRA as a Registered Nurse. In November 2010 the practitioner completed a Master's degree in Mental Health Nursing. Between January 2015 and January 2017 the practitioner was employed at the Gosford Mental Health Unit (the Unit) of Gosford Hospital (the hospital) which is part of the Central Coast Local Health District (CCLHD). The practitioner undertook one day workshops on sexual safety for mental health patients on 30 March 2015 and 27 October 2016. On 25 December 2016 Patient A, a 28 year old female patient was admitted to the Unit. On 5 January 2017 she was discharged from the hospital into the care of her biological mother and to be monitored by the CCLHD Community Mental Health service. As part of the mental health team in the Unit, the practitioner directly cared for Patient A from 25 December 2016 to 30 December 2016. PARTICULARS OF COMPLAINT ONE 1. During Patient A's admission to the Unit after 25 December 2016 the practitioner failed to maintain proper professional boundaries with Patient A in that the practitioner: a. on 1 or 2 January 2017 inappropriately asked Patient A for a card with her contact details on it; b. inappropriately asked Patient A if she used Facebook; c. on or about 1 or 2 January 2017 inappropriately provided Patient A with his business card containing his email and mobile phone details; d. inappropriately informed Patient A that he offered life coaching and/or that he had "special counselling skills". 2. On 1 January 2017 at the hospital the practitioner inappropriately accessed Patient A's clinical record for non-clinical purposes in circumstances where: a. he had ceased directly caring for Patient A on 30 December 2016 who was under the care of other health practitioners in the Unit; b. the practitioner was not working in the Unit; c. his use of Patient A's clinical record breached Health Privacy Principle 10 of the Health Records and Information Privacy Act 2002. 3. On or about 3 January 2017 the practitioner failed to maintain proper professional boundaries with Patient A in that he inappropriately engaged in an online friendship with Patient A though social media. The practitioner: a. inappropriately sent Patient A a friend request on Facebook while Patient A was a patient in the Unit and after his direct care of Patient A had ceased; b. inappropriately used the information he obtained in the course of his clinical duties to engage in the online friendship. 4. From the date of Patient A's discharge from the hospital on 5 January 2017 until about early February 2017 the practitioner failed to maintain proper professional boundaries with Patient A in that he inappropriately communicated with Patient A by text message and pursued a personal and intimate relationship with her in that the practitioner: a. responded to a text message from Patient A on 5 January 2017 asking him how he was by stating he wanted to see Patient A in person; b. on 7 January 2017 offered to send Patient A a nude photo of himself by text message; c. on 7 January 2017 asked Patient A by text message to send him a picture of herself and also stated "maybe inappropriate [smile emoji]"; d. on 7 January 2017 stated by text message "wt u doin tonite?"; e. on 7 January 2017 shared his location with Patient A by text message; f. on 8 January 2017 stated by text message "If you want when [Community Mental Health nurse] finish (sic) we can meet? [kiss emoji]"; g. on 8 January 2017 stated by text message "If ever u want Im here" despite Patient A telling the practitioner "I can't see you at the moment I really need to focus on my recovery [heart emoji]"; h. on 8 January 2017 stated by text message "Thinking of you [heart eyes emoji]"; i. on 8 January 2017 sent a picture of himself by text message wearing his nursing scrubs with the caption "pic of me starting work... 4 ur memory [heart emoji]"; j. on 8 January 2017 asked by text message "Do u mind if I drop by ur mum['s] [house] after wk? I got a couple of things I want to give you [blush smiley emoji]"; k. on 8 January 2017 stated by text message "U don't want me to come ok... Just let me know... I got [items of Patient A's] u left here..."; I. between 7 and 8 January 2017 informed Patient A by text message of his work hours in the context of him meeting her and when Patient A queried if he had time to do so, replied "Yes for you... of course"; m. between 7 and 8 January 2017 replied to Patient A's text message ("I shouldn't be talking to you [sad emoji] I can't let you pick me up") by stating "I'm here [Patient A's nickname] [eye wink emoji] where should I meet u?"; n. between 7 and 8 January 2017 told Patient A by text message to "come to me" and after she replied "can", the practitioner stated "Good [kiss emoji]"; o. between 7 and 8 January 2017 stated by text message "I'm here now ;) I really want to see u, talk with u"; p. between 7 and 8 January 2017 stated by text message "Mwah X"; q. between 7 and 8 January 2017 stated by text message "I might sneak in ur bedroom [kiss emoji]"; r. between 7 and 8 January 2017 told Patient A by text message that she took too long to reply to his text messages; s. had no clinical reason to engage in this communication with Patient A; t. was aware that Patient A was still a patient of the CCLHD mental health service. 5. On 5, 6 and 7 January 2017 the practitioner failed to maintain proper professional boundaries with Patient A in that he engaged in personal and romantic activities with Patient A throughout the day. The practitioner: a. attended Patient A's mother's house in the evening on 5 January 2017 and spent time with Patient A and her mother after Patient A told him that she was reluctant to meet with him and did not want him to attend her mother's house; b. was aware or ought to have been aware that Patient A's mother had mental health problems and was a regular client of the hospital; b1. allowed or did not prevent Patient A from kissing him at Patient A's mother's house on or about 5 January 2017; c. inappropriately invited Patient A on 5 and/or again on 6 January 2017 to his house to spend time with him at his home; d. inappropriately walked on the beach together with Patient A on 6 and 7 January 2017; e. inappropriately had coffee with Patient A at a public café on 6 January 2017; f. inappropriately had lunch with Patient A at a public place on 6 January 2017; g. inappropriately cooked a meal for Patient A at his home on 6 January 2017; h. inappropriately watched movies with Patient A at his home on 6 January 2017; i. inappropriately encouraged or suggested, and permitted, Patient A to stay at his home overnight on 6 January 2017; i1. inappropriately had physical and/or sexual contact with Patient A in that he slept together with Patient A at his home on 6 January 2017; j. had no clinical reason to engage in these activities with Patient A. 6. After the practitioner was informed on or about 8 January 2017 that the hospital was aware of his contact with Patient A he inappropriately continued to communicate with Patient A in that the practitioner: a. communicated with Patient A on or about 12 January 2017 by phone during which Patient A told him she was drunk, called him a bad registered nurse and stated to him that his registration should be taken away; b. visited Patient A in the hotel on or about 12 January 2017 to talk with her and sat on a bed with Patient A in the hotel room. 7. After a formal request from the hospital to the practitioner on about 13 January 2017 not to communicate with Patient A in any way the practitioner inappropriately continued to communicate with Patient A: a. sometime in early February 2017 after receiving a text message from Patient A indicating she was at a hospital emergency department, he replied to her and gave her his opinion about her treatment; b. failed to disclose his communications and contact with Patient A to his employer. 8. The conduct in each of particulars (1), (2), (3), (4), (5), (6) and/or (7) is repeated and relied upon in combination as a course of conduct involving failure to maintain proper professional boundaries with Patient A amounting to unsatisfactory professional conduct. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in 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 the suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT TWO As for Complaint One. PARTICULARS OF COMPLAINT TWO 1. Complaint One and the particulars thereof are repeated and relied upon both individually and cumulatively. EVIDENCE 1. The Applicant opened its case and indicated that it had no intention of calling any witnesses to give oral evidence unless the Tribunal was minded to call for oral evidence. 2. The Applicant indicated that it would rely on the documents contained in Exhibit 1 and in particular on the report of Leanne Evans (investigations officer, HCCC) dated 5 October 2017 and clarification of various aspects of her report dealt with in a file note of 12 October 2017. In summary, the report states that each particular alleged against the Respondent indicates that the Respondent's behaviour fell significantly short of what could be expected of a registered nurse of the level of experience which the Respondent has and invites her strong criticism. 3. There being no call for the expert to give oral evidence and there being no witnesses required for cross-examination, the Applicant closed its case and the Applicant provided the Tribunal with written submissions. APPLICANT'S SUBMISSIONS 1. By an Application and Complaint signed 15 May 2018 and amended at the hearing the Health Care Complaints Commission has brought proceedings under the Health Practitioner Regulation National Law against Mr Paul Mackie, former registered nurse. On the first day of the hearing the Commission sought to amend the complaint (Complaint). The Complaint as amended concerns the respondent's breach of professional boundaries with a mental health patient, Patient A. The allegations concern both improper communications and physical contact. 2. The Complaint consists of the first (Complaint One) alleging unsatisfactory professional conduct and the second (Complaint Two) alleging professional misconduct, as relevantly defined in the National Law. The underlying conduct in both complaints is set out in Complaint One, composed of seven individual particulars. 3. The onus is on the Commission to prove the Complaint to the civil standard, that is, on the balance of probabilities, with the evidence in support of the Commission's case to be assessed in accordance with the principles in Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336. The respondent's position / evidence 1. The respondent by letter dated 18 June 2018 admits the particulars of Complaint One and Complaint Two (and provided to Tribunal at directions hearing on 3 August 2018) before the amendments to the Complaint. The respondent does not specifically admit or deny he is guilty of unsatisfactory professional conduct or professional misconduct. The respondent has not responded to the particulars in the amended Complaint despite having been given an opportunity to do so. The effect of the Respondent not giving evidence 1. In Bowen James v Walton (NSW Court of Appeal, 5 August 1991), the Court of Appeal drew upon the protective nature of the jurisdiction to distinguish disciplinary proceedings from criminal proceedings where a "right to silence" applies. Similar issues were raised by Justice Basten in Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 at [42]-[50]. 2. However in Lucire v Health Care Complaints Commission [2011] NSWCA 99, the Court of Appeal, comprising McColl JA, Basten JA and Sackville AJA reviewed the authorities and found as follows: A specialist Tribunal is not obliged to draw an adverse inference in the absence of an explanation from the respondent. Such an obligation would be inconsistent with the entitlement of the Tribunal to take into account the circumstances in which the failure to offer an explanation arose, including the importance of the matter in the proceedings and the potential adverse consequences for the practitioner of failing to proffer an available explanation: (132]-1141]. (emphasis added) 1. The Tribunal in Health Care Complaints Commission v Jane Waddell (No 1) [2012] NSWNMT 17 at [49] observed: What seems clear from the authorities is that while there is no positive obligation on the Tribunal to draw an adverse inference from the absence of oral evidence by a respondent, there is a tension between a respondent's decision not to give sworn evidence and an obligation of candour on the part of a health practitioner in disciplinary proceedings. 1. In Waddell (No.1) at [50] the Tribunal also held: As aforesaid, the burden of proof is upon the Complainant, and this does not shift in any way because of the circumstances that unfolded during the course of the hearing. However, it does create difficulties when evaluating the weight to be given to sworn and tested evidence as opposed to unsworn and untested evidence. Further, it is necessary to be clear as to what inferences may be made where a range of propositions have been put to witnesses in cross examination that are not subsequently met with the corollary of the Respondent's sworn evidence. Cross-examination, of itself, is not evidence. 1. The respondent has declined to participate in proceedings before this Tribunal, citing costs considerations. He was legally represented when he made that submission. 2. In the event the Tribunal is not satisfied as to any matter the subject of the Complaints, which is within the knowledge of the Respondent, the HCCC submits that the Tribunal should draw an adverse inference against him in that regard, given his decision not to give evidence was based on future costs considerations alone. 3. Further, it is submitted that the Tribunal should, consistent with the authorities referred to above, express some criticism of the respondent for failing to give evidence considering "the importance of the matter in the proceedings and the potential adverse consequences for the practitioner of failing to proffer an available explanation". Patient A is mentally unwell and unable to give evidence and the respondent is the only person who can explain his behaviour and steps taken since. The respondent 1. The respondent obtained his Bachelor of Nursing in July 2008 and a Masters of Mental Health Nursing in November 2010 (Tab 19 HCCC documents, page 2 - "19.2"). He was first registered with the former Nurses and Midwives Board of NSW on 31 July 2008 without conditions. From 27 February 2017 until 16 March 2017 he was ordered not to work as a nurse until the condition was reviewed. At the respondent's request, his registration was removed from the National Register in March 2017. He is not currently registered. 2. The respondent commenced working at Gosford Hospital in January 2015 and worked there in a fulltime capacity until January 2017, having previously worked in other hospitals' mental health units (19.2). Prior to his contact with Patient A, the respondent had undertaken a "Sexual safety workshop; day long sexual safety training for mental health" on 27 October 2016 (19.5), training on practicing as a trauma informed nurse, in house training on working with people who have a borderline personality disorder diagnosis on 2 June 2016, training on the Code of Conduct on 8 April 2016 (19.6) and a full day workshop on sexual safety in clinical inpatient units on 30 March 2015 (19.7). He had also been to courses on domestic violence. Each of these are relevant to this case. 3. In early 2017, after his conduct which lead to this Complaint was investigated, the respondent's name was placed on the Service Check Register (21.75). In early January and February 2017 a risk assessment was undertaken by the Central Coast Local Health District ("CCLHD") (21.27) with recommendations made that the respondent be placed under supervision until an investigation was completed (21.29). This followed an interview with the CCLHD on 3 February 2017 (21.63) the transcript of which he signed as true and correct (21.74). 4. The respondent tendered his resignation with the CCLHD by email on 10 March 2017 (21.75). He declined to attend an investigations findings meeting scheduled for 14 March 2017. The CCLHD Director of Nursing thereby accepted the investigation findings as substantiated and informed the respondent of this by letter on 13 March 2017. 5. The respondent was interviewed by the delegates of the Nursing and Midwifery Council of NSW ("the Council") on 27 February 2017 (23.1). On 24 March 2017 the delegates of Council imposed a condition on the respondent's registration, that he not work as a registered nurse until review by the Council and the condition is removed (22.8). Patient A 1. On 25 December 2016 (30.2) Patient A was 28 years old when she was voluntarily admitted under the Mental Health Act 2007 (30.82) to the Gosford Mental Health Unit of Gosford Hospital. She had a significant mental health history (30.7, 30.14, 30.67 and 30.71) and presented with "suicidal ideation" after an altercation with her mother concerning Patient A's alcohol use (see 30.66 for more details). Patient A informed the hospital that she felt unsafe to go back home (30.18) and had been hurt at home by family. 2. Patient A had multiple previous presentations. She had a history of self-discharging from drug rehabilitation, inpatient admissions and detoxes (30.63), and as recently as 19 December 2016. She was also noted to be homeless and a sex worker who had consumed excessive quantities of alcohol in the past. At hospital she was identified as having an "unstable social situation with no accommodation" (30.13) and having substance abuse issues. 3. Patient A underwent an assessment on admission (30.14) and the medical officer's plan was for her to stay in hospital for a "crisis admission" for 24-48 hours (30.15). She was identified as possibly having a "personality structure of borderline type with sensation seeking and impulsivity with an unstable sense of self" (30.68 and 30.106). Complaint One 1. This Complaint alleges that the respondent's conduct in seven particulars was significantly below the standard expected of a nurse of equivalent training and experience, and that same conduct was also improper or unethical. Section 139B of the National Law does not preclude, expressly or impliedly, that the same conduct may be a breach of more than one category of s139B, save that the respondent must be afforded procedural fairness to understand which category is alleged for each particular (Fraser v Health Care Complaints Commission [2015] NSWCA 421). In this matter it is as set out in the complaint - each of the particulars is conduct alleged to be a breach of s139B(1)(a) and (I). 2. The Commission also sets out in the final particular of Complaint One (as amended) that the conduct in the preceding particulars are relied on together to demonstrate that the practitioner's course of conduct was a breach of professional boundaries with Patient A. This is supported by the expert's opinion that the overall conduct (breach of professional boundaries) is improper and unethical (11.8: sections 12.1-12.2). 3. The respondent was a registered nurse who interacted with Patient A at the hospital. During the relevant period to this complaint, the respondent worked the evening shift at the hospital from 25-28 and 30 December 2016 (21.32‑35,37), the day shift until 1730 hours on 29 December 2016 (21.36) and the evening shifts on 1 and 2 January 2017 (21.39-40). The respondent did not work on 2-6 January 2017 (21.46). His entries in the clinical records are at (tab 30) pages 90, 91, 102/103, 108, 112, 113/114. 4. The Commission alleges in Complaint One that: 1. while caring for Patient A at the hospital, 2. while Patient A was at the hospital but the respondent was not caring for her, and 3. after Patient A was discharged from the hospital, the respondent breached professional boundaries with Patient A. The conduct occurred from 25 December 2016 until sometime in February 2017. 1. The Commission relies on the expertise of Mr John Ferguson, registered nurse as to the appropriate standard to be met by a nurse of the respondent's training and experience, and whether the conduct is improper or unethical according to the various nursing codes and guidelines. Mr Ferguson's first report is dated 5 October 2017 and can be found at tab 11 of the Commission's material. His supplementary report received on 4 March 2018 is at tab 14 in which he clarifies the level of his criticisms. Particular 1 1. The Commission alleges that while Patient A was in the hospital the respondent inappropriately asked her for a card with her contact details on it, whether she used Facebook. The Commission also alleges that on another occasion gave Patient A a business card with his contact details on it, and then indicated by his business card for life coaching that he offers life coaching (21.2, 21.49 and 23.4). Patient A told a hospital nurse that the respondent had told her (when she was in hospital) that he had "special counselling skills" (5.2:10). 2. The respondent told the CCLHD on 3 February 2017 that his feelings overtook his thinking when he asked Patient A for her card with her contact details on it (21.66) and accepts that that is when he "crossed the line". He later stated that when he gave her his business card he was "partially aware that I was treading dangerously" (21.68). He stated to the CCLHD that in doing so, he "wanted to meet up with her for a chat because "I, look, I liked her". In a later written response he confirmed this: 21.59. 3. By asking Patient A about whether she used Facebook he intended to contact her and did do so the next day. The Commission submits that he began to groom Patient A for an inappropriate relationship. There was no clinical basis for these interactions. The respondent informed the delegates of the Nursing and Midwifery Council of NSW ("the Council") at a hearing on 27 February 2017 that he wanted to continue their friendship when Patient A was out of the hospital (22.5 and 23.4), aware that it was a breach of professional boundaries. He stated that at the time he "justified it to myself' by thinking that "maybe [they would] meet for coffee". He states the discussion happened "around" Monday (2 January). 4. The respondent expressly admits this particular. The Tribunal can be satisfied independently of its proof. The Commission's expert is critical of this conduct (11.3: 2.4). He also describes it as improper and unethical: 14.1: 2.1. Particular 2 1. The respondent did not provide care to Patient A in the mental health unit that Patient A was in on 1 January 2017 (21.64). The respondent accessed Patient A's electronic record at the hospital on 1 January 2017 (21.64). On 1 January 2017 he was working in the High Dependency Unit while Patient A was in the General Acute Ward (21.67). The respondent states he would not have been directly caring for her on 1 January 2017 when he accessed her file and that accessing her file was "probably not very clinically indicated" (21.67). 2. Health Privacy Principle 10 (HPP 10) in the Health Records and Information Privacy Act 2002 (NSW) states: Only use health information for the purpose for which it was collected or for a directly related purpose, which a person would expect. Otherwise, you would generally need their consent to use the health information for a secondary purpose. 1. By his admission that accessing and use Patient A's clinical file was not clinically indicated, and that he has not asked for the patient's consent to use the information for a secondary purpose (i.e., a non-clinical purpose), the respondent has breached HPP 10. 2. The respondent expressly admits this particular. It is a breach of the NSW Health Code of Conduct (27.13: 4.4.2) in that he used the work system for non-work related purposes. The Tribunal can be satisfied independently of its proof. The Commission's expert is critical of this conduct (11.4: 3.2-3.5, 11.8: 11.0-11.2). He also describes it as improper and unethical: 14.2: 4.1. Particular 3 1. Patient A told the hospital that while she was there the respondent added her to his Facebook account (21.6 and 21.65). Patient A stated that she believes that the respondent used the information he obtained in the course of his clinical duties to make this request and that she is concerned for her safety with him knowing all of her history and information now (21.6). While the patient's belief on this matter is irrelevant it is her version of events that she did not otherwise inform the respondent of these details nor did she believe she obtained these details on another occasion. The respondent admits to sending a friend request to Patient A, on 3 January 2017 while she was in hospital but after his period of care for her ended. 2. The respondent in his interview with the CCLHD denied accessing her records to gain personal information generally (21.67). The respondent's only knowledge of Patient A at the time of the Facebook request on 3 January was through his clinical duties, including his accessing of her patient record on 1 January 2017 and earlier. This information allowed him to access her name, address and date of birth. 3. The respondent expressly admits this particular. It is a breach of the NSW Health Code of Conduct (27.13: 4.4.2 and 27.14: 4.6.1). The Tribunal can be satisfied independently of its proof. The Commission's expert is critical of this conduct (11.4: 3.2-3.5). He also describes it as improper and unethical: 14.4: 12.1 and 13. Particular 4 1. The practitioner accepts that he exchanged text messages with Patient A after her discharge, and accepted as such when he spoke to the CCLHD (21.69). Patient A expressed her feeling of vulnerability with these exchanges at 21.6: "I feel exposed and unsafe". 2. As to the specific text messages the Commission particularizes, the evidence of them is in the following tabs: 1. The text message exchange in question is at tab 21.11 where he states "I would like to see u (sic)". 2. At 21.69 the respondent notes he was at work when he sent the message offering to send a nude photo and thought it was "a bit of a joke". Patient A sets this out in her handwritten notes at 21.5 where she states "He offered to send me a nude photo. This was on Saturday while he was on shift". The specific text message has not been disclosed to the Commission. 3. At tab 21.19 Patient A confirms this in her handwritten notes at 21.5 where she states "He then sent (sic) his location and requested mine". 4. The applicant referred the Tribunal to the string of amounts at pages 17, 22, 23, 25, 26, 15, 16, 19, 10, 20 and 21. 5. Patient A confirms this in her handwritten notes at 21.5 where she states "He is persistent and complains at how long I take to reply". But also see the respondent's messages at tab 21.17 and 21.19 where the respondent checks in with Patient A if she does not respond within 20 minutes. The Commission's expert Mr Ferguson comments on the inappropriateness of this in his report at 11.8:13 6. Patient A was discharged from the hospital on 5 January 2017. The respondent told the CCLHD that at the time he did not have much personal insight and "wasn't aware of the implications" (21.69), and despite his experience and further training thought that because she was no longer a patient, it was okay to exchange these text messages. As the interviewer from the CCLHD notes and the respondent seems to accept, even if a patient is discharged from the hospital they are still a very active patient in the community (21.70 at 118). The respondent did not explain why he held that belief. 1. The respondent expressly admits this particular. The Tribunal can be satisfied independently of its proof. The Commission's expert is critical of this conduct (11.3:3.1, 11.6: 8.1-8.4, and 11.7:9.0-9.3). He also describes it as improper and unethical: 14.4: 12.1 and 13. Particular 5 1. Particular 5 concerns the respondent's inappropriate romantic and physical interactions with Patient A after her discharge from hospital. The interactions ceased in intensity after Patient A, on or about 7 or 8 January 2017 messaged the respondent to tell him that she cannot see him and that she "really need[s] to focus on [her] re-coy ". The respondent informed the Council that after his meetings with Patient A the subject of particular 5, Patient A "got really, really drunk because of what she'd done to me" (23.10:21) and was suicidal. 2. The respondent admits this particular. As to the sub-particulars: 1. The respondent states that on Thursday, 5 January 2017 he was "a bit run down and [had] a bit of a cold and flu" (23.4:25). That night he attended Patient A's mother's house (23.6:22) and watched a movie together. He was asked by the Council whether Patient A invited the respondent to her house and he answered, "No, well, there was a few back and forth texts and she said, "It's okay. You can come over"". (23.7:2) At tab 21.4 Patient A sets out in her handwritten notes that the respondent stayed with her and her mother watching a movie from about 2145 hours until 0100 hours the next morning and then went home. She sets out on that page her reluctance to have him over. The respondent confirms this account at 21.59. 2. See 30.14: "...after an altercation with her biological mother (who is also very well known to the service with multiple section 22 presentations...") and also note the text message Patient A sent to the respondent at 21.13 where she states "my mum has a habit if (sic) turning up at Gosford"). And see as well Mr Ferguson's comment on this at 11.5: 5.3. 3. (b1) The respondent volunteered this information to the LHD -see 21.69:103 and to the Council - see 23.8: 35. Patient A has not confirmed it but it is an admission by the respondent against the respondent's interest and should be given weight. 4. The respondent states that he invited Patient A to his house on or about 6 January 2017 (23.6:25). He also states that they texted each other about Patient A coming to his house on 5 January 2017 (23.9:10). He was aware when he made that request that the previous night Patient A and he had kissed (23.8:35) while at Patient A's mother's home. He indicated to the Council that at the time he made the invitation, he "wanted to pursue a personal relationship with her" (23.9:4). He confirms this account at 21.59. 5. The respondent states that he walked on the beach with Patient A on or about 6 January 2017 (23.6:25) and went shopping, bought food and then went back to the respondent's house (23.9:25). He confirms this at 21.59. 6. At tab 21.5 Patient A sets out in her handwritten notes that she and the respondent had coffee together on or about 6 January 2017. 7. At tab 21.5 Patient A sets out in her handwritten notes that she and the respondent had lunch together on or about 6 January 2017. 8. At tab 21.5 Patient A sets out in her handwritten notes that the respondent cooked a meal for her at his home on or about 6 January 2017. The respondent confirms this at 21.59. 9. At tab 21.5 Patient A sets out in her handwritten notes that she and the respondent watched a movie together at his home on or about 6 January 2017. The respondent confirms this at 21.59. 10. (and i1) The respondent admitted to the Council that he invited Patient A over to his house: 23.9:25 and Patient A in her handwritten notes confirms she slept over the night at the respondent's house (21.5 and 21.59). She states that she "realise(s) that his intentions are sexual". The respondent admits that he invited Patient A to stay the night at his house while at his house (23.9:29) and while there states that they "slept together" (23.9:33). The respondent told the Council that after this night she responded to him because of "the fear of what she'd done" (23.10:6) and that she told him that she "got really really drunk because of what she'd done to me" (23.10:21). The Council asked him later if, when he met Patient A at the hotel room, they were "sleeping together at that time" and he replied "No … we were sitting on the bed, but we weren't in bed. No. So there was no kind of - there was no chemistry that was happening at that - on that particular.... We were just talking about what had happened" (23.11: 30). Patient A told a nurse at the hospital that no sexual contact occurred (31.25) but this is an admission by the respondent against the respondent's interest and should be given weight. The Commission submits that Patient A may have been trying to protect herself by stating this. The respondent was available to give evidence but chose not to while Patient A is unwell and not available. The Commission submits that the totality of the evidence and the respondent's admission means these two sub‑particulars should be found proved. 11. The respondent accepts he "was not using [his] good judgment" (23.5:7) and had no clinical reason to engage in the above activities. 1. The respondent expressly admits this particular. The Tribunal can be satisfied independently of its proof. The Commission's expert is critical of this conduct (11.5:5.1-5.6 and 11.6: 6.0-7.5). He also describes it as improper and unethical: 14.2: 6.1, 7.1, and 8.1. Particular 6 1. The respondent told the Council that after Patient A informed him that she was drinking heavily and staying in a hotel, he went to visit her and spoke to her (23.10:25). He states this was on a Thursday which was 12 January 2017 (23.10:37). Patient A had told him the previous Sunday that she did not want to see him. The respondent was sitting on the hotel bed with Patient A talking (23.11:30). The respondent confirms this account at 21.59. 2. The practitioner was aware that the hospital knew of his contact with Patient A at that stage (23.5: 15). However he states nothing happened "officially" until Friday (13 January) when a risk assessment was conducted (see 21.27). It is irrelevant that the hospital did not formally sanction the respondent - it needed to gather material and conduct a formal investigation. What is relevant is that he knew the Patient A had made the hospital aware of his conduct - she was sufficiently concerned to do so - and that she wanted to focus on her recovery. He continued to communicate with her and visited her while she was (according to the respondent) inebriated. 3. The respondent expressly admits this particular. The Tribunal can be satisfied independently of its proof. The Commission's expert is critical of this conduct (11.7:10-10.3). Particular 7 1. At the CCLHD interview on 3 February 2017 the respondent was asked if he was still having communications with Patient A (21.70), given he was told not to on 13 January 2017 (21.51) and the respondent replied: "Hmm... hmm... Can I plead the fifth? I choose not to answer that question". 1. An open interpretation of that answer in the circumstances of the discussion with the LHD is that the respondent continued to communicate with Patient A despite clear directions from the hospital not to. In any case, the evidence of the communications, contrary to the direction of his employer, is at 23.6:35‑44, 26.7:4-5 and 23.12:6-21. 2. The respondent expressly admits this particular. The Tribunal can be satisfied independently of its proof. The Commission's expert is critical of this conduct (11.7:10.1-10.3). He also describes it as improper and unethical: 14.3: 11.1‑11.2. Unsatisfactory Professional Conduct 1. The Commission submits that the conduct the subject of each individual particular in Complaint One is improper and unethical and significantly below the standard. It relies on the various policy documents, the expert evidence and the acceptance by the respondent during various interviews of the impropriety of his conduct. 2. The Commission relies on the expert report of Mr Mark Ferguson to establish that both categories of the complaint amount to unsatisfactory professional conduct under the National Law. 3. The Code of Conduct for nurses at tab 24 and its companion on professional boundaries at tab 25 and the Code of Ethics at tab 26 are codes or guidelines approved by a National Board for the purposes of s41 of the National Law and so can be used as evidence of what constitutes appropriate professional conduct or practice for a registered practitioner. The respondent by his actions as set out in Complaint One has breached numerous aspects of these codes and guidelines and meets the definition of sexual misconduct set out at tab 25.2 of the guidelines. 4. The NSW Health Code of Conduct at tab 27 is also an appropriate reference point for nurses working in the public health system as to their ethical obligations. 5. The respondent was motivated at all relevant times to further a personal, inappropriate relationship with Patient A, at the expense of Patient A, who was vulnerable by reason of her admission as a mental health patient and her specific background. The respondent, a senior nurse with relevant training in avoiding such conduct, should have known better. In taking into account the above material, the inescapable conclusion is that the respondent's conduct in each of the individual particulars amounts to unsatisfactory professional conduct. Professional Misconduct 1. In Health Care Complaints Commission v Sunjic [2008] NSWNMT 12, the Tribunal in the course of determining that a registered nurse was guilty of both unsatisfactory professional conduct and professional misconduct based on the nurse entering into a sexual relationship with a former patient extracted the following: [81] In Jacobsen v Nurses Tribunal (unreported Dunford J BC9705032), the Court found professional misconduct even where the nurse had ceased the nurse-patient relationship and had organised for another nurse to take over treatment. The case concerned a mental health nurse who became responsible for the case management of a patient with whom he was acquainted and who had a history of mental illness. The nurse arranged to have the patient move into his house as boarder. He formally terminated the professional relationship he had with the patient by passing on her management to another nurse. On the instructions of his supervisors, he terminated the boarder relationship and she obtained other accommodation, but he still maintained a personal relationship with the plaintiff, which subsequently developed into a sexual relationship. [82] The Court held that "The plaintiff had entered into a sexual relationship with an ex-patient, of whom he knew much that was confidential to the professional relationship, and who was likely to suffer from future mental illness. This fact alone was serious enough to elevate the nature of the conduct from unsatisfactory professional conduct to professional misconduct as it undoubtedly offended against the foundations of the nurse/patient relationship and justified the removal of the plaintiff's name from the register". 1. In Health Care Complaints Commission v Scully [2011] NSWNMT 28, the Tribunal extracted with approval an extract from Health Care Complaints Commission v Engel Jones [2011] NSWNMT 233: The Tribunal has an obligation to assist in maintaining public confidence in the nursing profession and to confirm for nurses (and midwives) that that their professions standards will be maintained. The order that the Tribunal makes in the circumstances of this case must reflect the fact that mental health patients are perhaps the most emotionally vulnerable patients a nurse may treat and that the ethical standards of nurses need to be steadfastly maintained in relation to them. Keeping the professional boundary between themselves and their patients is a matter that is well understood and practised by most mental health nurses." Both those cases involved the relevant Tribunal determining that nurse practitioners were guilty of professional misconduct on the basis of inappropriate relationships with former patients. The breach of boundaries will necessarily be more extreme in each of the prevailing circumstances of this matter: a. Current patient, b. Trusting therapeutic relationship breached, c. Exploitation of particularly vulnerable client, and d. Encouragement in degrading and prima facie criminal conduct. 1. The respondent engaged in inappropriate, romantic, physical and sexual conduct with a vulnerable patient when he ought to have known, if he did not in fact know, that the patient was still a patient of the CCLHD and still required active treatment. The practitioner was still employed at the CCLHD and still had obligations towards Patient A to protect her health and at minimum to cause her no harm. 2. The National Law provides that professional misconduct is 1. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. 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. The conduct in the particulars in Complaint One are of varying seriousness but the Commission's submission is that particulars 4, 5, and 6, of themselves amount to professional misconduct. Otherwise the particulars of unsatisfactory professional conduct when considered together amount to professional misconduct. Protective orders 1. Should Professional Misconduct in Complaint Two be found by the Tribunal, the Commission submits that the appropriate protective order is disqualification. The respondent is not presently registered having surrendered his registration in March 2017. 2. The respondent expressed remorse early on, to both the CCLHD and the delegates of the Council. He understood that he had brought shame to the profession and may have impacted Patient A. The Council delegates however concluded that they did not "consider that [the respondent] provided any evidence to give them assurance that an episode of this nature would not occur again in the future". This is reflected in the interview with the respondent at tab 23.15.3 where the respondent is asked why his training and experience did not come into play for Patient A. He is unable to answer that satisfactorily. The respondent however has no intention of returning to nursing and as such it cannot be assumed that he has sufficient insight into his conduct. By the absence of his presence at this hearing, the respondent has not provided this Tribunal with any context for his insight or lack of insight and understanding of the origins of his misconduct and hence any assurance that it will not reoccur should similar motivations arise. 3. At the time of the Council interview on 27 February 2017 the respondent indicated he had not disclosed the subject matter of this complaint to any health professionals (23.13-14). It was only because Patient A disclosed "recent overfamiliarity" with the respondent to her 'counsellor' that the respondent was 'caught out' (31.26). This 'counsellor', Nurse Paul Clay, has provided a statement to the Commission (5.2:8-10) setting out what Patient A told him about the respondent. Patient A had been asked by Mr Clay to write a letter setting out what happened (5.2:13 and 31.26) which is the document produced at tab 21.2. 4. The respondent has not engaged with the specific concerns and conduct expressed to be serious by the Commission in its complaint (see responses at tab 17 and tab 19) or provided this Tribunal with sufficient confidence that he has insight into the genesis of the behaviour and what needs to be done in the future to ensure it does not repeat itself. The respondent when he was first "caught" after Patient A reported him to her community mental health nurse, was interviewed by the CCLHD. In that interview he failed to disclose all of the conduct the subject of Complaint One. It was only before the delegates of the Council that the more complete extent of his misconduct was discovered. The respondent indicated to the delegates of the Nursing and Midwifery Council of NSW in interview that at the time of the conduct the subject to Complaint One, he was suffering home and work stress. The delegates expressed concern that despite these stresses, the respondent, "an experienced and senior nurse failed to realise the seriousness of dealing in this way and pursuing an incredibly vulnerable and unwell client" (22.6). The delegates stated that they were concerned about the "serious effect that this episode could have for [Patient A's] continuing treatment". Patient A was subsequently admitted to the hospital (31.22). 5. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637-638 the Court of Appeal held that the Tribunal's jurisdiction must be exercised bearing in mind the need to protect the public and to maintain high standards in the profession. In NSW 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: 1. The order reminds other members of the profession of the public interest in the maintenance of high professional standards. 2. The order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. 3. By speaking to the public at large, the order seeks to maintain confidence in the high standards of the profession. 1. While the respondent is not currently practicing and has given a statutory undertaking not to practice again, there are other factors which are recognised in the above authorities which require, in the Commission's submission, strong protective orders in this case. 2. Importantly and primarily the complaint against the respondent is that he groomed Patient A, a vulnerable patient and engaged in a romantic and physical relationship with her knowing she was at risk of further mental harm. The respondent drove and initiated most of the conduct. Patient A, a vulnerable patient, should not in any way be held responsible for the respondent's breach of his professional boundaries. The respondent ignored Patient A's requests and concerns, and that of the hospitals. The respondent deliberately breached his duties to the profession, the hospital and the patient. The respondent cannot rely on inexperience nor is there any other cogent explanation before this Tribunal to justify his behaviour. 3. Independent of the above is the need for this Tribunal to restore confidence in the nursing profession by publicly sanctioning the conduct. In Health Care Complaints Commission v Do [2014] NSWCA 307, the Court of Appeal held that the Tribunal had fallen into legal error by focusing only upon the risk of reoccurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct, nor the full implications of the findings that the practitioner's skill and judgement had fallen significantly below the standard reasonably expected: [39]. In so doing the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by ss 3A and 4 of the National Law: [40]. 4. The protective orders in this case must apply these principles. Vulnerable patients and their families, including Patient A, and the professionals in this area are the direct beneficiaries of the Tribunal's judgment and orders. The Commission seeks the following protective orders, pursuant to s149C(4) in light of the seriousness of the conduct and the respondent's specific circumstances: 1. Note that if the respondent were still registered the Tribunal would have suspended or cancelled the person's registration 2. Order that the respondent is disqualified from being registered in the health profession for a period of three to five years from the date of these orders; and 3. Order that the Nursing and Midwifery Board of Australia record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. 1. The Commission submits that without the respondent submitting to cross-examination, without the Tribunal being in a position to be reassured that the genesis of this behaviour has been understood and addressed or safeguards put in place, the respondent is a substantial risk to members of the public in a different role to nursing. This was the view of the Council in 2016 when it made the order effectively suspending him from practice. Little has changed since then and the respondent has elected not to offer an explanation to this Tribunal. The respondent's experience, qualifications and background permit him to work in many other health services which can interact with members of the public. Such an order is protective of both the public specifically in relation to the practitioner and generally in relation to the deterrence such an order provides to those members of the profession who might seek to harm vulnerable patients. The Commission submits that a prohibition order should be made in the following terms: 1. The respondent practitioner is prohibited from providing any health services until such time as he is registered as a nurse. 1. Section 149E of the National Law makes the Tribunal the review body for the purposes of re-instatement. The Commission submits that the Tribunal should be the review body for the purposes of any review of the prohibition order. Costs 1. The Commission seeks its costs in the event the complaints are proved. The Commission has not engaged in any disentitling conduct which has caused unnecessary expense or resources or affected the way in which the hearing was conducted. Although the Commission sought a late amendment, this was on the basis of admissions already made by the respondent. The Commission consented at the directions hearing of this matter to have the matter proceed on the papers but this was not deemed necessary by the List Manager. 2. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [45], the Court of Appeal noted on the question of costs in that case: The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. 1. In this matter the respondent has not admitted professional misconduct. It has been necessary for the Commission to present the evidence, and the seriousness of the conduct alleged, to prove its complaint. Independent of this, the Commission bears the onus to prove its case. In circumstances where the conduct is proved and amounts to professional misconduct the Commission seeks an order for its costs. The Statutory Matrix 1. Relevantly, s.139B (part only) and s.139E of the National Law are in the following terms. Meaning of "unsatisfactory professional conduct" of Registered Health Practitioner generally [NSW]: 139B meaning of "unsatisfactory conduct of Registered Practitioner" is: 1. Unsatisfactory professional conduct includes each of the following: a. Conduct that demonstrates that 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; and b. Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 139E meaning of "professional misconduct" (NSW) for the purposes of this law "professional misconduct" of a registered health practitioner means: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. 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. The Standard of Proof 1. Before commencing our examination of the evidence given in the proceedings it is appropriate to set out the relevant principles which will govern our determination of the factual issues. 2. It is generally accepted that we are required to be "comfortably satisfied" that the matters in the complaints have been established on the balance of probabilities. A well-known principle established in Briginshaw v Briginshaw (1983) HCA 34; (1983) 60 CLR 336. 3. Briginshaw involved a consideration of the proof of adultery in family law proceedings. We find the following observation of Dickson at [368] - [369] of assistance albeit that it applied to considerations of adultery, "Upon an issue of adultery in a matrimonial cause, the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survives, a careful scrutiny and appear precise and not loose and inexact. Further circumstantial evidence cannot satisfy a sound judgment of a stated fact if it is susceptible of some other not-improbable explanation. But if the proof is produced when subjected to these tests, satisfy the Tribunal of fact that the adultery alleged was committed, it should so find." 1. We shall approach the determination of whether the Respondent is guilty of unsatisfactory professional conduct or professional misconduct in the manner which he conducted himself when treating Patient A in the early evening of 7 July 2015. Protectective Jurisdiction of the Tribunal 1. Section 3A of the National Law states: "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." 1. The jurisdiction of the Tribunal is protective rather than punitive. The Tribunal's jurisdiction is to be exercised both for the protection of the public, and for the protection of the profession. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 613. 2. The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. 3. In exercising the protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the profession, preserving public confidence in the profession and the protection of the community: Gaed 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]; Health Care Complaints Commission v Litchfield (1997) NSWSC 297; (1997) 41 NSWLR 630 at [637]. Decision and Reasons 1. The Tribunal had before it the evidence produced by the Applicant which included the interviews with the Respondent and other evidence referred to in this decision. The Tribunal had before it the complaint made by the Applicant alleging unsatisfactory professional conduct and professional misconduct on the part of the Respondent and particularised the basis for those complaints in seven sets of particulars. The Respondent had admitted to each of the particulars included in Complaint 1 and 2 but had not admitted to the fact that his behaviour constituted unsatisfactory professional conduct or professional misconduct. Having regard to the admissions made in respect of each and every particular of the Respondent's conduct the Tribunal was comfortably satisfied that the Respondent's behaviour constituted unsatisfactory professional conduct and professional misconduct and in the circumstances found the complaints brought against the Respondent proven. 2. The Tribunal was aware that the Respondent had voluntarily surrendered his registration and given an undertaking not to seek employment as a registered nurse in the future. It was necessary therefore for the Tribunal to consider whether it was necessary for the Tribunal to make orders in respect of the Respondent's ability to work as a registered nurse in the future. The Tribunal was satisfied that it is appropriate for orders to be made preventing the Respondent from seeking registration as a registered nurse for a period of time both in order to protect the public from the Respondent acting in the capacity of a registered nurse in any health related environment and to protect the reputation of the nursing profession and send a message to other members of the profession that behaviour of the type exhibited by the Respondent is not acceptable and would be sanctioned. 3. It should be pointed out therefore that if the Respondent were still a registered nurse the Tribunal would have cancelled the Respondent's registration. 4. The Applicant has sought an order for costs and provided the Tribunal with a schedule of costs incurred in order to avoid an assessment of costs and disbursements. The Applicant has referred the Tribunal to Schedule 5D of the National Law pursuant to which the Tribunal may fix the amount of costs or make an order for assessment. The Applicant argues that it is appropriate for the Tribunal to fix the amount of costs as the Respondent is unlikely to participate in an assessment and in any event the requirement of an assessment would simply have the effect of incurring additional costs. 5. The Applicant's schedule of costs totals an amount of $8,876.62 and the Applicant has sought an order for payment of the Applicant's costs in the sum of $8,000.00. 6. Having reviewed the schedule of costs and the disbursements listed therein, the Tribunal believes that it is appropriate to reduce the claim for photocopying documents by a minimum of half the amount claimed at 50 cents per page and to remove any costs incurred in respect of amendments to the complaint. The Applicant was prepared to reduce the bill by the sum of $876.00 and the Tribunal believes that it is appropriate to reduce the costs by a further $800.00 to take account of the excessive charge for photocopying and for seeking instructions in respect of an amendment. Accordingly, the Tribunal is prepared to allow an amount of $7,200.00 in respect of costs. ORDERS 1. The Respondent is guilty of Unsatisfactory Professional Conduct and Professional Misconduct and the following orders were made: 1. The Respondent is not permitted to provide any health services until such time as he is registered as a Registered Nurse. 2. The Respondent is not permitted to apply for registration as a Registered Nurse for a period of four years from the date of this order. 3. The Respondent is to pay the Applicant's costs of the complaint in the sum of $7,200.00. The Tribunal notes that the Tribunal would have cancelled the Respondent's registration in the National Register kept by the Board, if the Respondent had still been a registered nurse. ********** 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: 29 October 2018