Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Szulik [2018] NSWCATOD 188 Hearing dates: 10 October 2018 Date of orders: 27 November 2018 Decision date: 27 November 2018 Jurisdiction: Occupational Division Before: O Shub, Principal Member Dr S Schulz-Robinson, Senior Member Ms K Eyre, Senior Member Ms A Gray, General Member Decision: The Respondent is guilty of Unsatisfactory Professional Conduct pursuant to s139B of the National Law and of Professional Misconduct pursuant to s139E of the National Law. Accordingly, the Tribunal makes the following orders: (1) The Respondent is disqualified from being registered in the health profession for a period of four years from the date of these orders. (2) The Respondent is prohibited from providing any health services until he obtains a reinstatement order from the Tribunal. (3) The Respondent is to pay the costs of the Applicant in the agreed sum of $10,000. The Tribunal notes that if the Respondent were still registered, the Tribunal would have cancelled the Respondent's registration. Catchwords: Registered nurse; Registration surrendered; Professional boundaries; Mental health patient; Inappropriate access to clinical records; Personal and intimate relationship with patient Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Gad v HCCC [2002] NSWCA 111 Health Care Complaints Commission v A NURSE [2010] NSWNMT 31 Health Care Complaints Commission v Dr Gow (Suppression order) [2008] NSWMT 3 Health Care Complaints Commission v Khan [2014] NSWCATOD 83 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Ngo [2015] NSWCATOD 143 Health Care Complaints Commission v DAC [2017] NSWCATOD 48 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Roland Von Marburg [2012] NSWMT 5 Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 Health Care Complaints Commission v Perry [2015] NSWCATOD 76 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Sharah [2015] NSWCATOD 99 Health Care Complaints Commission v Tan [2016] NSWCATOD 77 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Lee v HCCC [2012] NSWCA 80 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mr John Richard Szulik (Respondent) Representation: Solicitor: Health Care Complaints Commission (Applicant) NSW Nurses and Midwives' Association (Respondent) File Number(s): 2018/00127719 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 sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 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 practitioner provided nursing care to Patient A from the 1st admission through to her 4th admission at the CAMHS Unit. At all times during the practitioner's interaction with Patient A as set out in Complaint One, the practitioner was aware that Patient A was vulnerable including by reason of her acute mental illness. Preliminary issue – whether the enquiry should be terminated 1. At the commencement of the hearing, an application was made by the Respondent for termination of the enquiry, the basis for which appears from the submissions on behalf of the Respondent which are as follows: 1. It is submitted that this inquiry should be terminated by NCAT in accordance with the power conferred under Schedule 5D, Clause 12(1)(a)(ii) of the Health Practitioner Regulation National Law (NSW) No. 86a. 2. This part of the National Law makes it clear that NCAT has the power to terminate an inquiry if the person about whom the complaint is made ceases to be a registered health practitioner or student. 3. The Respondent was previously registered as a nurse. On 11 March 2015, the Nursing and Midwifery Council (NMC) placed a condition on the Respondent's registration that he not work as a nurse following the receipt of a notification. 4. The Respondent subsequently did not renew his registration as a nurse when it fell due on 31 May 2015. 5. The Respondent attended the Health Care Complaints Commission on 18 February 2016 for the purpose of providing information relating to the allegations made about his conduct as a nurse. 6. In light of his acknowledgements regarding his inappropriate relationship with Patient A, the Respondent provided a statutory declaration to the HCCC (on 18 February 2016) undertaking that he would not seek registration as a nurse again and that he would not practise nursing again. A copy of this statutory declaration is annexed and marked "A". 7. The Respondent has not worked in any health related role since he ceased working for Bloomfield Hospital in January 2015. 8. There is no risk posed to the public by the Respondent as he is not practising as a nurse, nor wanting to practice as a nurse or work in a health related role. 9. A decision to terminate the inquiry would be consistent with the decision of NCAT in Health Care Complaints Commission v Perry [2015] NSWCATOD 76 where the HCCC submitted that the fact that the practitioner was not currently registered, had stated his intention not to practice in the future, the fact that the subject matter of the complaint may be taken into account by AHPRA in any future application for registration, and the fact that the Commission could seek to have the proceedings reinstated or file a new complaint were all reasons why the inquiry should be terminated. 10. In these circumstances, it is submitted that to hold an inquiry serves no protective purpose, only a punitive one. 11. Further, it is submitted that to continue such an inquiry would not be in the public interest and would be inconsistent with the objects of the Civil and Administrative Tribunal Act (NSW) 2013, particularly with reference to: 3 Objects of Act … (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and 1. As per the decision in Health Care Complaints Commission v Khan [2014] NSWCATOD 83 at 56 and 57, the Tribunal should consider that if this matter was heard, that: "56 If this matter was heard by the Tribunal, a consequence would be that other serious professional misconduct matters, where a practitioner's conduct may put the health and safety of the public at risk could be unnecessarily delayed. This would be inimical to s 3 (c). 57 Should the matter proceed to a hearing both parties, and indirectly the public) would incur significant costs. Finite judicial resources would be engaged and professional time of the occasional members lost. This would be contrary to s 3 (d)." 1. The decision in the matter of Health Care Complaints Commission v XC [2015] NSWCATOD 9 found that "There is no doubt that it may, in certain circumstances, be appropriate for a Tribunal to determine it is not in the interests of the public for a complaint to be heard (See Schedule 5D cl 12). Each case will turn on its own facts and circumstances. Of course admissions, appropriately made, may also well be relevant to the question of costs." 1. Given the lengths the Respondent has gone to to distance himself from the profession of nursing as well as the early admissions he made to the HCCC in relation to the subject matter of the Complaint, it is submitted that it is not in the public interest for this matter to be heard. 2. The Tribunal have the discretion under section 165H of the Health Practitioner Regulation National Law (NSW) No. 86a to determine that no inquiry need be held into a complaint if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal. 3. Annexed hereto and marked "B" is a letter from the Respondent to the Tribunal whereby he admits the subject matter of the Complaint and accepts that he is guilty of professional misconduct. 4. Given the admissions made by the Respondent, it is submitted that there is no requirement for the Tribunal to examine the particulars of the complaints that are conceded by the Respondent by way of hearing: Health Care Complaints Commission v XC [2015] NSWCATOD 9 at 74. Preliminary Issue - should the respondent's name be suppressed 1. In addition, an application for a non-publication order of the Respondent's name or subject matter of the complaint and the reasons for that application are set out in the Respondent's submissions as follows: 1. Schedule 5D, Clause 7(1)(b)(iii) of the Health Practitioner Regulation National Law (NSW) No. 86a provides 7 Release of information (NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)- … (b) direct that all or any of the following matters are not to be published- … (iii) the name and address of a registered health practitioner or student; … (v) the subject-matter of a complaint. 1. At the time of the allegations, the Respondent and Patient A were both resident in a regional town of NSW. 2. It is the position of the Respondent that the friendship he had with Patient A was something that was known to Patient A's family and friends as well as colleagues who were working within the same facility. 3. The Respondent has an unusual and identifiable name. There is potential that the publication and disclosure of his identity and/or the subject matter of the Complaint would inferentially result in the identification of Patient A within that community. 4. Additionally, there is a possibility that the personal health information of Patient A, including the fact that she was a patient within the Child and Adolescent Mental Health Unit, may be unintentionally disclosed by the publication of the above information. It is submitted that such a risk is unacceptable. 5. The findings of the Nurses and Midwives Tribunal in the decision of HCCC v A NURSE [2010] NSWNMT 31 are relied on in relation to this application. In this matter it was stated: "the Tribunal accepts the victim's mother's evidence that it is very difficult to maintain anonymity and privacy in the small rural community where they live, and that any public identification of the Nurse would seriously risk leading to exposure of the children" 1. The Applicant opposed the application for termination of the inquiry and the application for a non-publication order. 2. The basis for the Applicant's opposition is set out in the Applicant's submissions as follows: 1. By submissions dated 8 June 2018, the respondent made an application to the NSW Civil and Administrative Tribunal that: 1. an inquiry into the complaint in these proceedings be terminated pursuant to Schedule 5D, clause 12(1)(a)(ii) of the Health Practitioner Regulation National Law (NSW) ("the National Law"); or 2. an inquiry into the complaint in these proceedings not be held pursuant to s165H of the National Law; and 3. a non-publication order be made in the respondent's name and/or the "subject matter of the complaint", pursuant to Sch 5D, clause 7(1)(b)(iii) of the National Law. 1. At the directions hearing in this matter on 20 July 2018 Her Honour Judge Boland ordered that at the commencement of the hearing on 10 October 2018, the application under Sch 5D cl 12 (to terminate the inquiry) would be heard as a preliminary matter along with the application for a non-publication order. These submissions set out the Commission's position on both applications. 2. For an application under Sch 5D cl 12 of the National Law to succeed, the application must show that it is not in the public interest for the inquiry or appeal to continue. The prima facie position is that the inquiry does proceed. Section 3A of the National Law requires the protection of the health and safety of the public to be the paramount consideration in such an application. This is reinforced in s7 of the National Law, which states that "In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation". As this is a protective jurisdiction under beneficial legislation with an express limitation under s3A, the public interest must be at the forefront of the Tribunal's mind. 3. Guiding the interpretation of s3A and these applications is the Court of Appeal's decision in Health Care Complaints Commission v Do [2014] NSWCA 307 which in essence confirms that the objective of the section is not only protection of the public from this practitioner but includes protecting the public from similar conduct by other practitioners. 4. The main factors in support of the Commission's position are: 1. The limited relevance of the respondent's submission on costs and resources; 2. The seriousness of the conduct; 3. The respondent's young age; 4. The limited weight to be placed on the respondent's admissions; 5. The need for public protection from the respondent in the future; 6. The need for public deterrence and public protection as set out in Health Care Complaints Commission v Do (2014) NSWCA 307. Costs and resources 1. The Commission submits that with the Tribunal already being constituted, with the parties present and prepared for the hearing (in particular with detailed submissions from the Commission on the complaint) this aspect of the applicant's submission should be given limited weight. The seriousness of the conduct 1. The seriousness of the conduct alleged warrants the continuation of these proceedings in the public interest. The Commission's complaint concerns boundary violations against a minor, including sexualised conduct and physical contact, but primarily inappropriate visits to Patient A's home and communication with her in the absence of her parents. It also concerns dishonesty and lack of candour on the part of the respondent 2. In Health Care Complaints Commission v Duggan [2015] NSWCATOD 142, Mr Duggan faced allegations of gross boundary violations with three patients and applied to have the inquiry not go ahead. In the Tribunal's judgment, it referred to HCCC v Litchfield (1997) 41 NSWLR 630, concerning the degree of trust patients placed in their doctors (in that case), in particular reference was made to the "opportunities afforded [practitioners] for such contact for proper therapeutic purposes and not otherwise" and what patients and right thinking members of the profession "expect" from their colleagues. This case has similar considerations. 3. The Tribunal in Duggan observed that: 47. It is our view that terminating these proceedings based upon the practitioner's willingness to surrender his registration would fall into the same error [referred to in Do]. Here the very serious nature of the misconduct alleged, and the factual dispute as to events and their clinical justification, mean that an inquiry is required. The respondent's young age 1. The respondent is currently 35 years old and there is no evidence before the Tribunal of his future employment intentions outside of nursing. 2. In Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 the Tribunal heard an application from osteopath Mr Duggan. At the time of the application, Mr Duggan who had up to 40 years' working life ahead of him undertook not to re-apply for registration as a 'health practitioner'. This was a wider undertaking than the respondent's in this case. In Duggan, the Tribunal referred to a number of similar decisions and at [51] noted three 'features common' to the cases, including that "(c) the practitioner has often been aged 60 or over and has, or will, retire from work altogether". 3. The Commission submits that the inquiry should continue because while the respondent has undertaken not to seek registration as a nurse, this does not prevent him from working in other health related fields. The respondent's admissions 1. The respondent's short letter to the Tribunal dated 9 May 2018 and his letter from his lawyers on 7 September 2018 regarding his admissions are insufficient to satisfy the Tribunal that an inquiry should not continue. They do not address the particulars in substance and the Tribunal cannot be satisfied that they demonstrate sufficient insight or understanding on the part of the respondent. 2. At RS 9 the respondent refers to and relies on the decision in Perry as apposite to his own position. In Perry the Tribunal at [17] referred to the respondent's "full" admissions. In Health Care Complaints Commission v Sharah [2015] NSWCATOD 99 at [32]-[33] the Tribunal noted: While the respondent conceded [the complaints], he disputed a number of the particulars relied upon. This was not a case of full and frank admissions of the particulars as seen in some of the cases where the discretion not to proceed has been exercised favourably to the respondent. Further, there was the contest that remained over the allegations [of touching] made by Patient A. The allegations were very serious, and it was in the public interest, in our opinion, for those allegations to be ventilated and dealt with. 1. Here the respondent has not made full and frank admissions and there remain contradictions in his accounts as yet unexplained by the respondent. 2. In Health Care Complaints Commission v Tan [2016] NSWCATOD 77 the Tribunal rejected the practitioner's application that no inquiry be conducted and noted that the mere recitation of the particulars does not provide a complete and accurate account of the serious conduct of the Respondent as conceded by him. 3. The respondent in this case has not recited the particulars individually or addressed them individually in any substance. 4. Throughout the course of the Commission's investigation the respondent: 1. did not put into writing the specific allegations to which he admits or does not and in either case has not explained his conduct or insight; 2. downplayed his relationship with Patient A and has sought to explain some of his serious conduct by reference to Patient A and/or Patient A's mother's behaviour; 3. did not admit certain allegations, including a specific and serious allegation that he was found lying on top of Patient A; 4. did not indicate genuine remorse for the position he has put Patient A and/or her mother in, instead has expressed remorse for his situation and the outcome. The need for public protection from the respondent in the future 1. Protective orders must be made by reference to the facts and circumstances of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner (and of other professionals) is shaped in a way that is consistent with that protection: see Lee v HCCC [2012] NSWCA 80 at [34]; HCCC v Ngo [2015] NSWCATOD 143 at [126]. In determining the appropriate order the Tribunal is also required to consider the whole of the practitioner's conduct: Gad v HCCC [2002] NSWCA 111 at [55]. 2. Section 149C(4) permits a Tribunal to continue to hear, make findings as to proof and findings as to consequential orders of suspension or cancellation, where a respondent is no longer registered at the time of hearing: sec 149C(4)(a). The respondent's election not to practice is not a barrier to the proceedings continuing where the Tribunal has the power to order a period of disqualification from being registered if cancellation would have resulted: Sec 149C(4)(b). The extent of the protective orders in s149C may require an inquiry to determine and convey the seriousness of the risk posed by the practitioner and his conduct, to the profession and public. Public deterrence and protection 1. The respondent in his submissions focusses on his individual circumstances. While the respondent mentions the 'public interest', his submissions (as referred to below) do not address the public protection principles set out in Health Care Complaints Commission v Do [2014) NSWCA 307 at [35]. 2. The respondent relies at RS 13 on the decision of the Tribunal in Khan. Khan is distinguishable given the practitioner's age, that the allegations only concerned clinical prescribing breaches and record keeping, and the Commission and the Council concurred with the decision not to prosecute. 3. Although at RS 9 the respondent refers to and relies on the decision in Perry as apposite to his own position, the case is distinguishable in that the application in that case was supported by the Commission, and in any case the findings on the application were adverse to the practitioner. In Duggan at [49] - [50] the Tribunal referred to Perry and other decisions where an inquiry was not held, and noted the importance of the Commission consenting to such an application and that "this means that the HCCC has itself already undertaken a consideration of the protection of the health and safety of the public, including addressing matters such as the seriousness of the alleged conduct, likelihood of it being proved, and submissions made by the practitioner". 1. In respect of the non-publication order, the Applicant opposed the application on the basis set out in the Applicant's submissions: 1. The respondent's application for a non-publication order is two-fold: 1. to the respondent's name; and 2. 'the subject matter of the complaint'. 1. The respondent's submissions do not explain the ambit of the latter in any detail. The subject matter of the complaint does not raise any exceptional or out of the ordinary circumstances which might identify Patient A widely. 2. The Commission opposes the application. The Commission relies in particular on the statement of Patient A's mother where she indicates that the circumstances are known only to very limited people. 3. The Tribunal's discretion to make a non-publication order under the National Law is broad but is to be exercised under s3A, that is with the protection of the public to be given paramount significance. This extends to the protection of the wider community, and the nursing profession (HCCC v Do) and the seriousness of the conduct is relevant to the Tribunal's discretion on such an application. 4. There is a prima facie presumption under the National Law that the Tribunal will sit in public: Health Care Complaints Commission v DAC [2017] NSWCATOD 48 at [6]. This is reflected in s49(1) of the CAT Act. Under the objects of the Tribunal under the CAT Act, reference is made to the Tribunal needing to "promote public confidence in tribunal decision-making in the State..." 5. In HCCC v Dr Gow (Suppression order) [2008] NSWMT 3 the Tribunal declined to make a NPO concerning Dr Gow and the Tribunal's published reasons for its final decision. The Tribunal's reasons for declining to make a NPO included that it would be inconsistent with its protective function, and that it is (at [21]): [I]nherent in the protection of the public that information about the practitioner be available should a potential patient wish to enquire as to whether the practitioner had been the subject of an order under the Act or should a patient wish to make a complaint. The Medical Tribunal also upholds the standards and reputation of the profession in ensuring that the public retains confidence in the medical profession. 1. The Tribunal declined to make the order notwithstanding that Dr Gow was not working, had no intention to work as a doctor again, and there was no prospect that he would repeat the conduct that drove the complaints: at [19]. 2. The respondent submits that both he and Patient A reside in a "regional town". This is a factor neither unique nor special to disciplinary proceedings. In disciplinary proceedings, the identity of the patient is generally not exclusively known to the respondent. In Health Care Complaints Commission v Dr Roland Von Marburg [2012] NSWMT 5 at [40] the fact that the respondent was a senior, specialist practitioner (ENT surgeon) and lived in a country town was not accepted as being out of the ordinary. 3. In any case the "regional town" in this matter is the city of Orange which has a population of approximately 40,000 people and eight secondary schools' one of which Patient A attended. Patient A's mother in her statement sets out her position that even if the respondent were named in the decision, it would still be difficult to identify Patient A. 4. The respondent bears the onus to satisfy the Tribunal that his application should succeed. In the Commission's submission he has not done so. Any application for a non-publication order must give paramount consideration to the safety and health of the public. By prohibiting the respondent's name from publication the impact of any findings and orders is diminished. It also prevents the conduct and orders from being considered by future health employers should the respondent seek to work in another health related field, whether or not a prohibition order is made. Decision on preliminary issue 1. In respect of the application to terminate the enquiry, the matter was heard by the Principal Member alone and determined by the Principal Member. 2. The Tribunal noted the undertaking given by the Respondent that, having not renewed his registration as a registered nurse when it fell due on 31 May 2015 and having accepted that he is guilty of misconduct and given an undertaking not to seek registration as a nurse again in Australia and/or not to practice nursing again in Australia, that there was no need to incur the unnecessary costs and time involved in continuing with the enquiry. The Applicant also submitted that if an enquiry were to proceed, it could proceed based on the papers alone. 3. The Tribunal holds the view that an application under Schedule 5D clause 12 of the National Law requires the Applicant to show that it is not in the public interest for the enquiry to continue. The prima facie position is that the enquiry does proceed. Section 3A of the National Law requires the protection of the health and safety of the public to be the paramount consideration in such an application. This is reinforced in s7 of the National Law which states that in the interpretation of a provision of this law, the interpretation that will best achieve the purpose of this law is to be preferred to any other interpretation. As this is a protective jurisdiction under beneficial legislation under an express limitation under s3A the public interest must be at the forefront of the Tribunal's mind. In the matter of Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] the Court of Appeal held: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk or his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and where appropriate by cancelling the registration of practitioners who are not competent or otherwise not fit to practice including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. The Tribunal had regard to the submissions made by the Commission and having regard to the submissions made in respect of the costs of resources the seriousness of the conduct, the Respondent's young age, the Respondent's admissions, the need for public protection from the Respondent in the future and the public deterrents and protection aspects the Tribunal was satisfied that the largest part of the costs and resources had already been incurred at the time the application was heard by the Tribunal. Insofar as the seriousness of the conduct is concerned, the Tribunal had particular regard to the matter of Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 where Mr Duggan faced allegations of gross boundary violations which places the Respondent on all fours with the matter of Duggan. In respect of the Respondent's young age, the Tribunal again found that the Respondent in this matter was on all fours with the age of Mr Duggan in that case. 2. In particular, the Tribunal took note of the fact that the undertaking given by the Respondent was not to seek registration as a nurse which does not therefore limit or prevent the Respondent from seeking work in other health related fields. Without an enquiry and a published decision the Respondent, future regulatory authorities and employers may not be aware of the seriousness of the conduct alleged and proved. The public would not be protected and the Respondent's conduct would be hidden from view. Accordingly, based on the matters addressed in this decision and based on the submissions made by the Applicant in respect of all relevant issues, the Tribunal is comfortably satisfied that the matter should proceed to an enquiry. 3. In respect of the application for a non‑publication order in respect of the Respondent's name and/or subject matter of the complaint, the Tribunal determined that this is an issue not for a preliminary decision but as part of the complaint itself and accordingly this application was deferred to commencement of the hearing. Applicant's case 1. The Applicant opened its case and tendered Volumes I and II into evidence together with various documents to be inserted in Exhibit 1 (Volumes I and II). 2. The Applicant complained that: Mr John Richard Szulik ("the practitioner") of 1 Shannon Street MOLONG NSW 2866 being a Registered Nurse formerly registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 1396(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. Each of the particulars in Complaint One relating to the practitioner's inappropriate breach of professional boundaries with Patient A justify separate findings of unsatisfactory professional conduct or in the alternative, a cumulative finding of unsatisfactory professional conduct. Background of Complaint One The practitioner trained as an Enrolled Nurse from 2004 and completed a Mental Health for Enrolled Nurses program in 2005. In 2010 after completing a Bachelor of Nursing degree the practitioner was registered as a registered nurse. In March 2013 the practitioner commenced working as a registered nurse at Bloomfield Hospital (the hospital), a general mental health hospital in Orange under the Western NSW Local Health District. For the majority of 2014 the practitioner was working as a Registered Nurse in the Children's and Adolescent Mental Health Service (CAMHS) Unit of the hospital. From 23 August 2014 the practitioner was relocated from the CAMHS Unit to the Adult Acute (Men's) unit at the hospital. As at 31 March 2014, Patient A (born in May 1997) was a minor and had an extensive history of mental health and eating disorder treatment. She was admitted to the CAMHS Unit on the following dates in 2014: 31 March 2014 - 12 May 2014 (1st admission) 26 May 2014 - 7 July 2014 (2nd admission) 16 July 2014 - 17 July 2014 (3rd admission) 11 August 2014 - 12 August 2014 (4th admission) 25 November 2014 - 11 May 2015 (5th admission) The practitioner provided nursing care to Patient A from the 1st admission through to her 4th admission at the CAMHS Unit. At all times during the practitioner's interaction with Patient A as set out in Complaint One, the practitioner was aware that Patient A was vulnerable including by reason of her acute mental illness. Particulars of Complaint One 1. During Patient A's second admission the practitioner failed to maintain proper professional boundaries with Patient A in that he discussed non-clinical, sexual matters with Patient A who was a minor. The practitioner: a. inappropriately informed Patient A about his own sexual activity with his wife; b. inappropriately informed Patient A about the first time he had had sex and that he was 17 years old; c. inappropriately requested Patient A disclose her own sexual activity to him; and d. failed to prioritise Patient A's mental well-being in circumstances where she suffered from a serious mental illness; e. failed to seek guidance about how to appropriately respond to Patient A including from his supervisor or a senior colleague. 2. Shortly after Patient A's second admission, the practitioner attended the workplace of Patient A's mother in a personal capacity with the practitioner's young child. The practitioner: a. inappropriately gave Patient A's mother his contact details for the purpose of it being conveyed to Patient A; b. inappropriately requested Patient A's mother disclose his contact details to Patient A; c. inappropriately requested Patient A's mother ask Patient A to contact him; and d. failed to reinforce to Patient A's mother that Patient A's ongoing nursing care would be provided for by a community team. 3. From at least 3 August 2014 until about 11 November 2014, the practitioner failed to maintain proper professional boundaries with Patient A in that he maintained regular email contact with Patient A in his personal capacity. The practitioner: a. had no clinical reason to be in contact with Patient A after her discharge from the CAMHS unit and had no authority from his employer to communicate with Patient A; b. formed or reinforced a personal relationship with Patient A through his regular email contact with her; and c. inappropriately asked Patient A frequently about her weight and her eating behaviours particularly in circumstances where he ought to have been aware that Patient A was sensitive about her weight and that during Patient A's admission to the hospital it was not his usual practice to ask her about her weight; d. inappropriately told Patient A on more than one occasion that she was taking too long to respond to his emails; e. inappropriately volunteered on 3 August 2014 to attend Patient A's family home; f. inappropriately told Patient A on 3 August 2014 about another patient at CAMHS Unit including making personal and derogatory comments about that patient and her eating habits; g. inappropriately told Patient A on 10 November 2014 that he was willing to listen to her and offer advice to her when needed; h. inappropriately engaged in flirtatious, casual or intimate communication by email with Patient A including: i. informing her about his personal life and activities; ii. asking Patient A about when she finishes work; iii. agreeing to see Patient A at her place of work; iv. encouraging Patient A to email him; v. stating "Just at [Patient A's place of work] now to get groceries but you are not here? vi. stating 'What do you weigh? If you don't tell me you have to send the nudes!!"; vii. stating "Tell me what you weigh...It's my birthday!! I may have to ring [Patient A's place of work] and say [Patient A] was very rude to me...Loll" viii. stating "So you enjoying your lesbian getaway? At least you are eating fish right? Lol"; ix. stating "You have a good memory when you want to!" x. stating "You are great to have a conversation with!! It's all one sided!!" xi. stating "Ooh cranky frigit (sic) pants!"; xii. stating "...congrats on ur p's (sic) wasn't sure what you meant at first though you were being rude loll"; xiii. stating "Also would like to see your car and you as I haven't seen it yet, and haven't seen you in like ages!"; xiv. stating "Hey there how have you been? Thought I would of heard from you!"; and i. failed to prioritise Patient A's mental well-being in circumstances where she suffered from a serious mental illness; j. failed to disclose his communications with Patient A to his employer, seek guidance about how to appropriately cease contact with Patient A and/or to refer her to community mental health services. 4. Between 4 August 2014 and 20 August 2014 the practitioner failed to maintain proper professional boundaries with Patient A in that he inappropriately called and/or text messaged Patient A by her personal mobile phone on five occasions. The practitioner: a. had no clinical reason to be in contact with Patient A after her discharge from the CAMHS unit and had no authority from his employer to communicate with Patient A; and b. formed or reinforced a personal relationship with Patient A through his phone contact with Patient A; and c. failed to disclose his communication with Patient A to his employer, seek guidance about how to appropriately cease contact with Patient A and/or to refer her to community mental health services. 5. Between 21 August 2014 and 22 September 2014 the practitioner failed to maintain proper professional boundaries with Patient A in that he inappropriately contacted Patient A's mother by mobile phone on nine occasions. The practitioner: a. had no clinical reason to be in contact with Patient A's mother after Patient A's discharge from the CAMHS unit and had no authority from his employer to communicate with Patient A's mother about Patient A; b. reinforced a personal relationship with Patient A through his phone contact with Patient A's mother; and c. failed to disclose his interactions with Patient A's mother to his employer, seek guidance about how to appropriately cease contact with Patient A's mother about Patient A and/or to refer her to community mental health services. 6. After Patient A's second admission the practitioner failed to maintain proper professional boundaries with Patient A in that he inappropriately communicated with Patient A by regular Snapchat text and photo messages. The practitioner: a. had no clinical reason to be in contact with Patient A after her discharge from the CAMHS unit and had no authority from his employer to communicate with Patient A; b. formed or reinforced a personal relationship with Patient A through his regular Snapchat communication with her; and c. inappropriately sent pictures of himself to Patient A; d. inappropriately asked Patient A to send him pictures of herself; and e. failed to prioritise Patient A's mental well-being in circumstances where she suffered from a serious mental illness; f. failed to disclose his interactions with Patient A to his employer, seek guidance about how to appropriately cease contact with Patient A and/or to refer her to community mental health services. 7. After Patient A's second admission the practitioner failed to maintain proper professional boundaries with Patient A in that he inappropriately attended a movie with Patient A alone. The practitioner: a. had no clinical reason to be in contact with Patient A after her discharge from the CAMHS unit and had no authority from his employer to communicate with Patient A; b. reinforced his personal relationship with Patient A through this social and non-clinical activity; and c. inappropriately drove Patient A to the cinema; d. inappropriately drove Patient A to her family home from the cinema; and e. failed to prioritise Patient A's mental well-being in circumstances where she suffered from a serious mental illness; f. failed to disclose his interaction with Patient A to his employer, seek guidance about how to appropriately cease contact with Patient A and/or to refer her to community mental health services. 8. After Patient A's second admission and from about July 2014 until September 2014 the practitioner failed to maintain proper professional boundaries with Patient A in that he inappropriately attended Patient A's family home on a regular basis at least twelve times, between one to three times a week. The practitioner: a. had no clinical reason to be in contact with Patient A after her discharge from the CAMHS unit and had no authority from his employer to communicate with Patient A or attend her place of residence; b. formed or reinforced his personal relationship with Patient A through this social and non-clinical activity; c. was aware that Patient A had a boyfriend; d. did not disclose to the hospital that he was visiting Patient A's family home; and e. inappropriately spoke to Patient A and/or Patient A's mother about his wife, his sexual activity with his wife, and his family life; f. inappropriately on at least two occasions brought his two year old son with him to Patient A's family home; g. inappropriately stole 'Resource' nutritional supplements from the hospital to bring to Patient A at her family home on at least one occasion; h. inappropriately sat close to Patient A on a couch in about September 2014 and was laughing with and touching Patient A in a playful manner; i. inappropriately watched movies with Patient A including while both he and Patient A were sitting together on a couch alone; j. inappropriately on occasion attended the family home when no one else but Patient A was present; k. inappropriately on occasion attended the family home when no one else but Patient A and her younger sister was present; and I. failed to prioritise Patient A's mental well-being in circumstances where she suffered from a serious mental illness; m. failed to disclose his interactions with Patient A to his employer, seek guidance about how to appropriately cease contact with Patient A and/or to refer her to community mental health services. 9. On 20 August 2014 the practitioner attended a meeting with representatives of the Local Health District (LHD) concerning his personal contact with Patient A. At this meeting, the practitioner was told by his employer to cease his contact with Patient A. The practitioner was also told to be more aware of boundaries with patients, particularly young patients. The practitioner was also temporarily relocated out of the CAMHS Unit to an Adult Acute (Men's) Unit at the hospital and advised about this on 21 August 2014. The practitioner: a. had no reason to be in contact with Patient A after this meeting or had no authority from his employer to communicate with Patient A or attend her place of residence; b. continued to contact Patient A by email, phone, Snapchat and/or visit Patient A at her family home from about 20 August 2014 until at least 11 November 2014; c. continued to contact Patient A's mother by phone seven times in August after the meeting, including a call of about 10 minutes duration on 21 August and four calls on 22 August, and a further two times in September; d. failed to prioritise Patient A's mental well-being in circumstances where she suffered from a serious mental illness; e. failed to disclose his interactions with Patient A to his employer, seek guidance about how to appropriately cease contact with Patient A and/or to refer her to community mental health services. 10. In about mid-October 2014, the practitioner failed to maintain proper professional boundaries with Patient A at Patient A's family home. The practitioner: a. had no clinical reason to be in contact with Patient A after her discharge from the CAMHS unit and had no authority from his employer to communicate with Patient A or attend her place of residence; b. reinforced his personal relationship with Patient A through this social and non-clinical activity; and c. inappropriately sat close to Patient A on a couch, was laughing with Patient A, and playfully slapping Patient A with his hands; d. inappropriately watched a movie on the couch with Patient A which had sexual content; e. inappropriately lay on top of Patient A on the couch with his head facing Patient A's head and had has hands on her upper body; f. failed to prioritise Patient A's mental well-being in circumstances where she suffered from a serious mental illness; g. failed to disclose his interaction with Patient A to his employer, seek guidance about how to appropriately cease contact with Patient A and/or to refer her to community mental health services. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Each of the particulars in Complaint Two justify separate findings of unsatisfactory professional conduct or in the alternative, a cumulative finding of unsatisfactory professional conduct concerning the practitioner's attempts to conceal, mislead or deceive others about his personal relationship with Patient A. BACKGROUND TO COMPLAINT TWO As for Complaint One. PARTICULARS OF COMPLAINT TWO 1. On 20 August 2014 the practitioner attended a meeting with the LHD concerning his earlier personal communication with Patient A. At this meeting the practitioner was advised to cease his contact with Patient A. The practitioner was also told to be more aware of boundaries with patients, particularly minors. At the meeting the practitioner gave false or misleading information and/or concealed material information in that the practitioner: a. stated that he had only had one contact with Patient A outside of work when this was false; b. stated that his only contact with Patient A outside of work was through Snapchat when this was false as he had had frequent communication with Patient A including via Snapchat, had contacted her by phone on five occasions including two hours prior to the meeting, had contacted Patient A by email from at least 3 August 2014 and had visited Patient A's family home; c. stated that his only contact with Patient A was two weeks prior and that there had been no contact since when this was false; d. stated that in his only contact with Patient A he advised Patient A that he could not communicate with her as he was a nurse and she was his patient when this was false or misleading; e. stated that Patient A initiated Snapchat communication with him when that was false; f. concealed that he had given his contact details to Patient A's mother at Patient A's mothers place of work for the use of Patient A to contact him; g. concealed that he had visited Patient A's family home; h. concealed his email communications with Patient A; i. concealed his phone communications with Patient A. 2. Shortly after the practitioner's meeting with the LHD on 20 August 2014, the practitioner attended Patient A's family home and in the presence of Patient A and Patient A's mother: a. told Patient A and/or her mother that he was afraid of losing his job because of his communications with Patient A; b. inappropriately suggested to Patient A and Patient A's mother that they should delete all evidence of their communications or words to a similar effect. 3. The practitioner was interviewed by the LHD on 14 December 2015. At the meeting the practitioner gave false or misleading information and/or concealed material information at the meeting in that the practitioner a. was aware that his improper personal relationship with Patient A was the subject of the discussion; b. stated that he had only had one contact with Patient A outside of work as at the first meeting with the LHD on 20 August 2014, when this was false; c. stated that his only contact with Patient A outside of work at the time of his 20 August 2014 meeting with the LHD was through Snapchat when this was false; d. the practitioner stated that Patient A initiated Snapchat communication with him when that was false; e. stated that he had only used one email address to communicate with Patient A when that was false; f. stated that at his meeting on 20 August 2014 that he was not reminded of his obligations towards patients and to be aware of boundary issues with young people when that was false; g. stated that he had been moved to the Adult Acute (Men's) Unit after 20 August 2014 because he had asked to be moved when that was false. 4. The practitioner was interviewed by the Health Care Complaints Commission on 18 February 2016. At the meeting the practitioner gave false or misleading information and/or concealed material information at the meeting in that the practitioner: a. was aware that his improper personal relationship with Patient A was the subject of the discussion; b. stated that he never intentionally visited Patient A at her place of work when that was false or misleading; c. stated that Patient A had made first contact with him via email when he had told the LHD on two occasions that it was via Snapchat; d. stated that he did not communicate with Patient A via phone calls. COMPLAINT THREE 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 COMPLAlNT THREE As for Complaint One. 1. The Applicant sought to amend Complaint Three by the deletion in paragraph 4(d) of the complaint the words "prior to the 20 August 2014 with the LHD when that was false". There was no objection to the amendment and the amendment was granted. In addition, the Applicant advised the Tribunal that paragraph 4(c) of Complaint Two would not be pressed. Decision on application for suppression of Respondent's name 1. The Tribunal then referred to the application made by the Respondent for a suppression order and determined that in light of the evidence contained in Exhibit 1 and having heard and been presented with submissions by the Respondent and the Applicant in respect of the reasons for the suppression order, that the application for the suppression of the name of the Respondent should be dismissed for the following reasons: 1. Absent any special circumstances, it is in the Public Interest for the identity of the practitioner to be known. 2. There is a prima facie presumption under the National Law that proceedings will be held in public. 3. There are no special circumstances that would cause the Tribunal to suppress the name of the Respondent. 4. The Tribunal dismissed the Respondent's application for a suppression order. Submissions regarding complaint 1. The Applicant then closed its case and handed up written submissions regarding the complaint which are set out in the following paragraphs: 1. By an Application and Complaint signed 20 April 2018 the Health Care Complaints Commission has brought proceedings in the Tribunal under the Health Practitioner Regulation National Law ("National Law") against Mr John Szulik, former registered nurse. 2. In the Complaint are three notices of complaint, the first ("Complaint One") and second ("Complaint Two") alleging unsatisfactory professional conduct and the third ("Complaint Three") alleging professional misconduct, as relevantly defined in the National Law. The underlying conduct is set out in Complaints One and Two, composed of fourteen individual particulars. The respondent engaged in a deliberate, harmful, and sustained erosion of boundaries with Patient A, a minor, inside and outside of the hospital where he worked and Patient A was admitted. 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 to be assessed in accordance with the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The issues 1. The central issue in the case is whether the Respondent is guilty of unsatisfactory professional conduct and/or professional misconduct. 2. If the Respondent is found so guilty what if any are the appropriate orders. The respondent's position / evidence 1. The respondent by letter dated 9 May 2018 admits the "subject-matter of the Complaints and accept(s) that [he is] guilty of professional misconduct". The Commission set out a series of allegations to the respondent by letter dated 30 June 2017 (tab 41, HCCC documents). In response, his lawyers on his behalf stated in a letter dated 23 August 2017 (tab 42) that the respondent: 1. conceded he had an inappropriate close personal friendship with Patient A; 2. maintained his innocence in relation to the allegations of "criminal conduct"; 3. admits "in substance the allegations that form the basis of the proposed referral..." 1. In a letter dated 9 September 2018, the respondent by his lawyers admitted the particulars of the Complaint and that he was guilty of professional misconduct. Despite the uncertainty in the evidence, the respondent's lawyers elected not to agree to the Commission's suggestion to prepare an agreed statement of facts for the Tribunal. The Commission has therefore set out in these submissions the evidence for the Complaint in detail to assist the Tribunal. 2. The Applicant's submissions are very extensive and go to some extent to matters which are not in issue. 3. The respondent is legally represented. He has elected: 1. not to test and call any of the Commission's witnesses for cross-examination; 2. not to lead any independent evidence; 3. not to give evidence in person at the hearing; 4. to surrender his registration as a nurse; 5. to apply to the Tribunal to terminate this inquiry in light of the above. The respondent 1. The respondent obtained his Bachelor of Nursing in 2009 (HCCC tab 38, page 2 "38.2"). He was first registered with AHPRA as an enrolled nurse on 30 March 2003 and a registered nurse on 11 February 2010 (see Council evidentiary certificate and also 40.4: line 1 and 6). 2. The respondent worked as an endorsed enrolled nurse (including at Bloomfield Hospital) from 2004-2009 (38.2). He worked in Orange mental health from 2008 until the date of the events concerning this complaint, first working there as a registered nurse in February 2010. He commenced working as a registered nurse at Bloomfield Hospital in March 2013 (40.4: line 14). He had no special qualifications in mental health (40.5: 6). The respondent resigned his employment with the LHD on 22 December 2015 (19.2). The respondent did not apply for registration when it was due (15.9). The respondent is not currently registered with AHPRA. Patient A 1. At the time of her admission to Bloomfield Hospital in March 2014, Patient A was 16 years old (50.2). She had a 4-5 year history of Binge-Purge- Restrict type anorexia nervosa (53.4). She was the eldest of two children to separated parents with her mother having a new partner. Patient A was living with her mother, and enrolled in year 11 at a local high school. She was struggling with her attendance (53.4). She had multiple admissions to the Child and Adolescent Mental Health Service (CAMHS) Unit (19.1), a specialist mental health unit for children and adolescents (40.7). She was under the care of psychiatrist Dr Susan Blinkhorn. The respondent did not speak to Dr Blinkhorn often about Patient A (40.13). 2. The respondent's clinical interactions with Patient A were rarely one-on-one (40.8). he was aware that Patient A had self-harmed and suffered disordered eating - he viewed her as a vulnerable person (15.10), Ms Victoria Lovecchio at the hospital (the respondent's supervisor) reported that during Patient A's second admission, staff at the hospital had reported to her that the respondent had spent significantly more time with Patient A than with other patients (9). 3. Patient A's report of the respondent's improper interactions with her (aside from the initial Snapchat communication) are first recorded in the hospital records on 13 January 2015 (56.1). This tab contains more of Patient A's reporting of the incidents the subject of this complaint. Complaint One 1. Complaint One sets out 10 particulars of conduct which are alleged at page 1 of the complaint to be both "significantly below the standard" expected of a nurse of equivalent training or experience, and "improper or unethical". The respondent by his lawyers states that he admits to the particulars of this Complaint, albeit without responding to each particular individually or providing explanation for his earlier denials. As these particulars are all admitted there is no utility in repeating the submissions made by the Applicant in respect of these particulars. Particular 1 1. The Tribunal can be satisfied independently of its proof. The Commission's expert is critical of this conduct as noted above and by reason of it breaching the Code of Conduct and proper nursing standards is improper and unethical. Particular 2 1. Patient A's mother has made a statement annexing two earlier statements (5). The first dated 3 December 2015 (5.3) states at the third dot point that: "John attended my workplace and asked me to pass on his contact details to Patient A (name suppressed)". 1. In Patient A's mother's signed statement to NSW Police, she states that the respondent came to visit her at work with his son and asked her if she could give Patient A his contact details (5.6: paragraph 10). Patient A's mother's recollection of this incident, in this paragraph, is detailed and credible. The respondent on the other hand has chosen not to cross-examination Patient A's mother and he has chosen not to give evidence or to serve a signed, sworn statement. 2. Patient A in her statement to the Police (10.3: 15) states that her mother told her the respondent wanted her to email him as he wanted to give her support. Patient A also states (paragraph 17) that in an email to the respondent, she mentioned that the respondent wanted her to email him: "I told John mum had said he wanted me to email him". The respondent's version of events should be rejected in these circumstances and is consistent with the respondent blaming Patient A and her mother for the circumstances he finds himself in (see generally, tab 17). 3. The respondent admits giving Patient A his contact details (email address and phone number). Whatever the intention of the respondent (i.e., to provide support to Patient A), by act and omission the respondent did nothing to reinforce to Patient A's mother that any care of Patient A would be handled not by him but by a community mental health team. 4. The Commission's expert is critical of the respondent stating that the conduct is significantly below the standard and invites her strong criticism. She notes that even on the respondent's earlier version of events, the respondent failed to reinforce professional boundaries and provide reassurance that Patient A's community team could provide her with ongoing treatment. Particular 3 1. This particular concerns inappropriate email contact the respondent maintained with Patient A between Patient A's third and fifth admission. This conduct is admitted by the Respondent and does not require to be expanded upon. 2. The Commission's expert is critical of this conduct (33.5-9) as noted above and by reason of it breaching the Code of Conduct and proper nursing standards is improper and unethical. Particular 4 1. The Commission alleges that in August 2014 the respondent inappropriately called and messaged Patient A on her personal mobile. This is admitted by the Respondent and does not need to be expanded upon. 2. The Commission's expert is critical of this conduct (33.9) as noted above and by reason of it breaching the Code of Conduct and proper nursing standards is improper and unethical. Particular 5 1. The Commission alleges that between August 2014 and September 2014 the respondent inappropriately called Patient A's mother on her personal mobile on nine occasions. This is admitted by the Respondent and needs no further expansion. 2. The Commission's expert is critical of this conduct (33.10) as noted above and by reason of it breaching the Code of Conduct and proper nursing standards is improper and unethical. Particular 6 1. At 9.2 the school counsellor at Patient A's former school states that she informed the respondent's supervisor that the respondent sent a snapchat message to Patient A on 7 August 2014. The respondent admitted that he knew his communication was improper. 2. The Commission's expert is critical of this conduct (33.10-12) as noted above and by reason of it breaching the Code of Conduct and proper nursing standards is improper and unethical. Particular 7 1. Patient A recalls that the respondent drove Patient A to the cinema, bought his and Patient A's ticket, and after the movie drove her back to her family home. The respondent has admitted this particular and it requires no further detail. 2. The Commission's expert is critical of this conduct (33.12) as noted above and by reason of it breaching the Code of Conduct and proper nursing standards is improper and unethical. Particular 8 1. The respondent admits the allegations in Particular 8 and the Commission's expert is critical of this conduct (33.12-18) as noted above and by reason of it breaching the Code of Conduct and proper nursing standards is improper and unethical. Particular 9 1. Ms Victoria Lovechhio (the respondent's supervisor) states that she made a contemporaneous file note of her meeting with the respondent on 20 August 2014 (9). In her notes she mentions that after telling the respondent that his one Snapchat communication with Patient A was inappropriate: "I stated to John that he needed to be more aware of boundary issues with the young people in general. I also informed him that I would be making contact with "(the school)" myself to find out more information" (9.2). 2. After a discussion with Ms Victoria Lovechhio (the respondent's supervisor) telling him that his Snapchat communications with Patient A were inappropriate, the Respondent admits that he continued to contact Patient A. 3. The Commission's expert is critical of this conduct (33.19) as noted above and by reason of it breaching the Code of Conduct and proper nursing standards is improper and unethical. Particular 10 1. It is alleged that the respondent when he last attended Patient A's family home had inappropriate physical contact with Patient A and was told to leave and not return. The respondent does not in his LHD interview or the Commission interview mention the circumstances of him ceasing to attend the family home. However, he has admitted each of the particulars contained in Complaint 1 and accordingly, the Commission's expert is critical of this conduct as noted above and by reason of it breaching the Code of Conduct and proper nursing standards is improper and unethical. Complaint Two 1. Complaint Two sets out four particulars of conduct which are alleged at page 10 of the complaint to be both "significantly below the standard" expected of a nurse of equivalent training or experience, and "improper or unethical". Broadly, the conduct concerns his misleading or false statements to, and concealing information from the LHD and/or the Commission. The respondent by his lawyers states that he admits to the particulars of this Complaint without responding to each particular individually or providing explanation for any earlier denials. Particular 1 1. The evidence of this meeting is at tab 9 which in effect is that the respondent gave false or misleading information or concealed information during the meeting. This is admitted by the Respondent and needs no further detail. 2. The Commission's expert is critical of this conduct (33.17-18) and by reason of it breaching the Code of Conduct and proper nursing standards it is improper and unethical conduct of a nurse. Particular 2 1. Patient A records that shortly after the respondent mentioned that he had been spoken to by Ms Victoria Lovecchio, he indicated that he was afraid of losing his job and suggested that all the communications should be deleted. 2. In response his lawyer on his behalf admitted the allegations "in substance". As noted above, the respondent through his lawyers has also admitted each of the particulars in the complaint. The Commission's expert is critical of this conduct (33.20) as noted above and by reason of it breaching the Code of Conduct and proper nursing standards is improper and unethical. Particular 3 1. The Respondent admits that at the interview with the LHD he gave false and misleading information. 2. According to the expert, the respondent acted improperly and unethically by reference to the Code of Conduct. Particular 4 1. The Respondent admits that in the Commission's interview with the respondent which occurred on 18 February 2016 he gave false and misleading evidence. 2. The expert states that the respondent acted improperly and unethically in misleading the Commission at this late stage. Improper or unethical 1. The applicant addressed the Tribunal on the meaning of improper or unethical conduct in some detail. Having regard to the Respondent's admission of unethical conduct it is not necessary for the Tribunal to repeat those submissions. 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 (to a lesser degree) the acceptance by the respondent during various interviews of the impropriety of some his conduct. 2. The Commission relies on the expert report of Ms Maria Marabong to establish that both categories of the complaint amount to unsatisfactory professional conduct under the National Law. The opinion of Ms Marabong has not been challenged. 3. The respondent was motivated at all relevant times to further a personal 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, 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. Again, the Respondent has admitted that he is guilty of professional misconduct and accordingly it is not necessary for the Tribunal to repeat the detailed submissions on this issue. Protective orders 1. Should the Commission establish Professional Misconduct, the Commission submits that the appropriate protective order is disqualification. The respondent is not presently registered having surrendered his registration in March 2017. 2. In HCCC 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: * The order reminds other members of the profession of the public interest in the maintenance of high professional standards. * The order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. * 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 nursing, and has given a statutory undertaking not to practice nursing 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. The respondent engaged in inappropriate, physical and flirtatious conduct with a vulnerable minor and patient, when he knew by reason of his work that the patient still required treatment, was a patient of the LHD or still required active treatment by the LHD in the community. The practitioner knew all these things and continued to act in the way he did, until he was caught. Even when he was caught he continued his conduct when advised not to. There is no suggestion in the evidence that his conduct would have stopped by the respondent's own actions. To this day the respondent has not been forthright about aspects of his conduct. His bare admissions in a single line from his lawyers should not satisfy this Tribunal that the respondent has understanding, acceptance or insight. He continues to try to shield his conduct from the light of an inquiry by seeking the inquiry be terminated. 3. The respondent has not expressed remorse for the impact of his conduct on Patient A. He focusses on the 'trauma' to himself (15.30) and his family (see 17 generally and see 40.78-80), rather than on Patient A and her family. Yet the respondent deceived his partner as to what he was doing, which included visiting a 17 year old girl in her home sometimes alone and without the knowledge of her parents. Patient A and her family cannot be to blame for this. 4. When speaking to the Commission on 18 February 2016 at one point during the interview with the Commission he states in exasperation (40.70): MR KOFKIN: So she's making this up? This is a complete fabrication? MR SZULIK: Well, the whole allegations are a complete fabrication, so... 1. The effect of the conduct on Patient A is set out in the records at tab 57 and 5.2: paragraph 17 and 5.8: paragraph 23. The respondent told the LHD that despite Patient A's own and the hospital's concerns about her mental health, he was not worried about her (15.27). This is despite some emails in which Patient A expressed herself to the respondent to be unwell (see for example, tabs 27 and 28). The respondent did nothing about this and in fact by his conduct in this complaint may have made matters worse for Patient A. 2. The respondent has, particularly before the LHD sought to protect himself and defend the indefensible. 3. The respondent attributes some of his conduct to his mental state at the time (see 15.4) but there is no evidence to support such a condition or it being a contributing factor. The text messages and emails, evidence of the ongoing contact between the respondent and Patient A, and his ongoing attempts to hide the truth by pressuring Patient A and her mother and concealing information, support the view that the respondent had no hesitation or doubt about what he was doing. The respondent was given the opportunity to seek external EAP assistance by the hospital in August 2014 (see tab 9 where Ms Lovecchio offers him EAP support) and it seems he did not take this up. Even if the respondent's mental state was an issue for him at the time, there is no independent evidence of what it is and so it should not play any role in the Tribunal assessing protective orders because it cannot explain any of his behavior in this Complaint. 4. The respondent has tried to diminish his behavior at times. He describes what he has done to Patient A as "mistakes" suggesting some misunderstanding or confusion. 5. The respondent in one interview noted that Patient A's mother did not protest him being at their house. Leaving to one side the issue of the power and knowledge imbalance in this situation, it is concerning that the respondent tries to shift the onus to act responsibly on Patient A's mother. Patient A recalls her mother occasionally arranging for the respondent to come over. Patient A's mother explains that she did not think he was doing anything wrong, he never did anything that made her suspicious (5.7: paragraph 16). This is entirely consistent with the respondent influencing and persuading Patient A and her family to accept him into their house, as if he was providing some form of community care/support when he knew this should be provided by others. As Patient A's mother states: "I thought at the time he was attending the house he was a caring nurse" (5.4). Patient A's stepfather recalls Patient A's mother worrying that she did not want to say no to the respondent's offer to attend their house as "he was offering to help" (8.3: paragraph 8). 6. The respondent has made Patient A feel remorseful for reporting him. At tab 56 Patient A is reported to say the following to staff: 1. Page 2: "She wished her body didn't react that way yesterday when she seen him so that staff wouldn't have found out". 2. Page 6: "[Patient A] telling staff she doesn't want to get into trouble by talking further as he has a wife and a young child". 3. Page 7: "Don't tell anyone... it doesn't matter... I don't... deserve it". 1. By the absence of his presence at this hearing or a statement, the Tribunal is deprived of the opportunity to assess whether he currently has any understanding, acceptance or insight, and if so, the extent of it. The respondent has not engaged with the specific concerns expressed 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 behavior and what needs to be done in the future to ensure it does not repeat itself. 2. Independent of the above is the need for this Tribunal to restore confidence in the nursing profession by publicly sanctioning the conduct. In this case the conduct occurred towards a vulnerable patient, by reason of her age, mental health and social circumstances. In HCCC 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]. The protective orders in this case must apply these principles. 3. The Court of Appeal's comments in HCCC v Do about assessing the seriousness of the conduct and protective orders bearing on the standards of the profession, warrant a finding of cancellation of the respondent's registration (or in this case a disqualification order). The Commission seeks the following protective orders, pursuant to s149C(4) in light of the seriousness of the conduct, 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 respondent is currently a substantial risk to members of the public in a different role to nursing. The respondent's actions towards a minor and ongoing attempts at justification must be of concern to the Tribunal. Without the respondent making attempts to confront his behavior, either by seeing health professionals for assistance or providing a statement setting out his understanding and acceptance, the Tribunal must have concerns about the respondent's risk to the public in other health related fields. The respondent's experience, qualifications and background permit him to work in many other health services which 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 would seek to harm vulnerable patients according to the authoritative principles from HCCC v Do. 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 he obtains a reinstatement order from the Tribunal. 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. The Commission consented at the directions hearing of this matter to have the matter proceed in a limited fashion but this was not deemed necessary to decide at the time 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. Because the respondent has not made specific admissions, 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. 2. The Tribunal's power to award costs is contained in Sch 5D of the National Law. 3. The Commission submits that the Tribunal should fix costs in an amount pursuant to cl 13(3A), being $10,000 which represents an almost 50% discount on the costs incurred by the Commission and the Respondent agrees that the costs should be awarded to the Applicant in the sum of $10,000. The Respondent's Case 1. The Respondent opened its case and advised the Tribunal that there would be no witnesses called. The Respondent relied on the brief submissions which it had made in regard to the reasons for stopping the hearing, as its basis for its defence. 2. With that the Respondent closed its case and advised the Tribunal that they would not be making any submissions in addition to those contained in the application for the investigation to be stopped. Decisions and Reasons 1. The Tribunal had available to it Exhibit 1 provided by the HCCC with various statements, transcripts, expert opinions and other documents and limited information available to it from the Respondent. The Tribunal had regard to the admissions made by the Respondent in respect of the complaint, the particulars of the complaint and the concession made by the Respondent that he was guilty of professional misconduct. Accordingly, the only issue for the Tribunal to determine was whether or not the Respondent was in fact guilty of professional misconduct and whether in the Tribunal's view the Respondent was also guilty of unsatisfactory professional conduct. 2. The Tribunal having considered all of the facts, it was of the opinion that the submissions made by the Applicant reflected an appropriate analysis of the various elements of the Respondent's behaviour and that taken in its entirety the Tribunal was comfortably satisfied that the Respondent is guilty of Unsatisfactory Professional Conduct pursuant to s139B of the National Law and of Professional Misconduct pursuant to s139E of the National Law. Accordingly, the Tribunal makes the following orders. Orders 1. The Tribunal orders that the Respondent is disqualified from being registered in the health profession for a period of four years from the date of these orders. 2. The Respondent is prohibited from providing any health services until he obtains a reinstatement order from the Tribunal. 3. The Respondent is to pay the costs of the Applicant in the agreed sum of $10,000. The Tribunal notes that if the Respondent were still registered, the Tribunal would have cancelled the Respondent's registration. ********** 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: 27 November 2018