Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 Hearing dates: 31 August 2018 Date of orders: 08 February 2019 Decision date: 08 February 2019 Jurisdiction: Occupational Division Before: Dr J Lucy, Senior Member L Schalk, Senior Member G Tolhurst, Senior Member G Alder, General Member Decision: 1. The Tribunal, having found that the respondent has been convicted of offences in the State of New South Wales and that the respondent is guilty of unsatisfactory professional conduct, orders that: a. the Health Care Complaints Commission is within 28 days of the date of this order to file and serve written submissions in respect of appropriate protective orders and costs; b. The respondent is, within 49 days of the date of this order, to file and serve written submissions in respect of appropriate protective orders and costs; c. The Health Care Complaints Commission is, within 7 days of receipt of the respondent's submissions, to file and serve written submissions, if any, in reply; d. The proceedings are to be listed for a further half day of hearing to determine the outcomes of the proceedings on a date to be fixed by the Registrar. Catchwords: PROFESSIONS AND TRADES - Health care professionals – Nurses – Where nurse admitted to having been convicted of drug offences – Where nurse admitted to contravening the National Law by failing to notify the regulator of criminal charges and by failing to provide details of the change in her criminal history when applying for registration renewal – Whether the misleading statements on nurse's renewal applications capable of constituting "other improper or unethical conduct" within s 139B(1)(l) of the National Law – Whether admitted criminal conduct and contraventions of the National Law makes the nurse "otherwise" not suitable to hold registration - Meaning of s 144(e) of the National Law – Whether supplying prohibited drugs makes nurse unsuitable to hold registration where she is remorseful for her conduct Legislation Cited: Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Choi [2017] NSWCATOD 82 Health Care Complaints Commission v Geary [2018] NSWCATOD 15 Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 Health Care Complaints Commission v Jung [2018] NSWCATOD 53 Health Care Complaints Commission v Kennedy [2017] NSWCATOD 72 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 Health Care Complaints Commission v Marsh [2016] NSWCATOD 155 Health Care Complaints Commission v Menz [2017] NSWCATOD 141 Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 Health Care Complaints Commission v Turner [2016] NSWCATOD 163 Law Society of NSW v Webb [2018] NSWCATOD 55 Texts Cited: Macquarie Dictionary Online (2019, Macmillan Publishers Australia) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Simone Achurch (Respondent) Representation: Counsel: N Evans and P Aitken (Applicant) Solicitors: Health Care Complaints Commission Legal Officer (Applicant) No appearance for the Respondent File Number(s): 2018/44352 REASONS FOR DECISION 1. Ms Achurch was found guilty of the offence of resisting a police officer in the exercise of duty in 2014 and convicted of two offences of drug supply in 2016, whilst registered as a nurse. She failed to disclose the charges against her and the criminal findings to the Australian Health Practitioner Regulation Agency ("AHPRA") and made false statements about her criminal history in her registration renewal applications. 2. The Health Care Complaints Commission ("the Commission") applied for disciplinary orders against Ms Achurch. 3. We have found that the complaint that Ms Achurch has been convicted of offences in the State of New South Wales has been made out. We are also satisfied that she is guilty of unsatisfactory professional conduct in that she contravened provisions of the Health Practitioner Regulation National Law (NSW) ("National Law") when she failed to disclose the charges and convictions and that she engaged in improper or unethical conduct when she made false statements on her renewal applications. We are not satisfied that the Commission has established its fourth complaint, that she is otherwise not suitable to hold registration. The hearing 1. Ms Achurch did not appear at the hearing. At the beginning of the hearing, Ms Evans, for the Commission, informed the Tribunal that Ms Achurch had emailed her instructing solicitor that morning. In the email, Ms Achurch said that her child was sick and that she would not be attending the hearing and asked the Commission's solicitor to email her the orders. 2. The Tribunal telephoned Ms Achurch at the hearing, but she did not respond. Nor had she responded to the Commission's emails to her that morning, suggesting that she might appear by telephone. She did not contact the Tribunal to inform it she could not attend. 3. In the absence of a request for an adjournment, we decided not to adjourn. This is consistent with the course taken in similar circumstances in Health Care Complaints Commission v Turner [2016] NSWCATOD 163, where a nurse did not attend the hearing, and did not apply for an adjournment. 4. In circumstances where Ms Achurch had effectively acknowledged that she had engaged in the conduct the subject of the complaints in her reply to the application, we considered that it would facilitate the just, quick and cheap resolution of the real issues in the proceedings for us to proceed to determine Ms Achurch's liability on the basis of the evidence and submissions before us (see Civil and Administrative Tribunal Act 2013, s 36(1)). We decided we would then determine the appropriate orders in a second stage of the proceedings, which would give Ms Achurch an opportunity to provide further written and oral material relevant to the orders we should make. Complaints 1. The Commission has made four complaints against Ms Achurch. 2. The standard of proof required to establish these complaints is the civil standard. By reason of the seriousness of the allegations and the gravity of their consequences, the Tribunal must have "a reasonable satisfaction" that the particulars of the complaint have been proved (see Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34). 3. Ms Achurch accepted responsibility for the conduct the subject of the Commission's complaints in her reply to the Commission's application for disciplinary findings. She wrote: "I WRITE TO HCCC TO ACCEPT AND ACKNOLWEDGE RESPONSIBILITY OF THE FOLLOWING COMPLAINTS (1, 2, 3, 4) MADE AGAINST MYSELF." Complaint One: Convictions 1. Complaint One is made pursuant to s 144(a) of the National Law and is that Ms Achurch has been convicted of offences in the State of New South Wales. It alleges that on 7 October 2016, Ms Achurch was convicted of criminal offences in New South Wales, being two counts of supplying a prohibited drug, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The first conviction was for supplying 53.2 grams of methylamphetamine on 24 September 2014 and the second was for supplying 55.7 grams of methylamphetamine on 5 November 2014. 2. We are satisfied, based on the Certificate of Conviction dated 27 February 2017, that this compliant is established. Complaint Two: Contraventions of National Law 1. Complaint Two is made against Ms Achurch under s 144(b) of the National Law. It alleges that she has been guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that she contravened provisions of the National Law. 2. The substance of the complaint is that Ms Achurch contravened the National Law by failing to notify AHPRA that she had been charged with offences carrying a maximum sentence of twelve months' imprisonment or more, and that she failed to provide details of any change in her criminal history as required when applying for renewal of her registration. "Criminal history" is defined to include convictions, pleas of guilty and charges for an offence (National Law, s 5). Background to Complaint Two 1. The Commission relied upon the following background to this complaint. 2. Ms Achurch was first registered as a nurse on 19 February 2009 and her registration lapsed on 30 June 2017, because she did not renew it. 3. On 26 March 2014, Ms Achurch was charged with the offences of assault of police officer in execution of duty and resist or hinder police officer in the execution of duty. The first offence was punishable by five years' imprisonment and the second by twelve months' imprisonment. 4. On 27 April 2014, Ms Achurch applied for renewal of her registration as a nurse. She did not provide any details of any change in her criminal history. 5. On 15 September 2014, the assault charge was dismissed and the resist or hinder police charge was discharged under a conditional release order pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. Ms Achurch was placed on an 18 month good behaviour bond. 6. On 27 February 2015, Ms Achurch was charged with four counts of supplying a prohibited drug (indictable quantity), one count of supplying a prohibited drug on an ongoing basis and one count of knowingly take part in the supply of a prohibited drug, contrary to s 25(1), 25A and 25(1) of the Drug Misuse and Trafficking Act 1985. 7. On 25 March 2015, when applying for renewal of her registration, Ms Achurch did not provide details of any change in her criminal history. 8. On 7 October 2016, Ms Achurch pleaded guilty and was convicted of two counts of supply a prohibited drug, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985. She did not inform AHPRA of the convictions. 9. Ms Achurch was sentenced to an aggregate term of three years' imprisonment with a non-parole period of 18 months. Particulars of Complaint Two 1. The Commission alleges that Ms Achurch contravened s 109(1)(b) of the National Law in that, in applying for renewal of her registration on 27 April 2014 and 25 March 2015, she failed to provide details of any change in her criminal history in circumstances where she had been charged with criminal offences on 26 March 2014 and 27 February 2015, respectively. 2. The Commission alleges that Ms Achurch contravened s 130(1) of the National Law in that she failed to notify AHPRA within seven days of being charged, on 27 February 2015, with the following offences that are punishable by twelve months imprisonment or more: four counts of supplying a prohibited drug (indictable quantity), one count of supplying a prohibited drug on an ongoing basis and one count of knowingly take part in the supply of a prohibited drug, contrary to s 25(1), 25A and 25(1) of the Drug Misuse and Trafficking Act, respectively. 3. The Commission also alleges that Ms Achurch contravened s 130(1) of the National Law in that she failed to notify AHPRA within seven days of being convicted, on 7 October 2016, of two counts of supply a prohibited drug pursuant to s 25(1) of the Drug Misuse and Trafficking Act. Findings in respect of Complaint Two 1. We are satisfied, based upon the record of Ms Achurch's criminal history dated 2 February 2017, the certificate of conviction dated 27 February 2017, the AHPRA screenshots of Ms Achurch's renewal applications dated 27 April 2014 and 25 March 2015, and the email correspondence between officers of AHPRA and the Commission, dated 10 July 2017, that this complaint is established and that Ms Achurch contravened ss 109(1)(b) and 130(1) of the National Law as alleged. She is therefore guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law. Complaint Three: Other improper or unethical conduct 1. Complaint Three is that Ms Achurch is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in other improper or unethical conduct relating to the practice or purported practice of nursing. 2. The particulars of Complaint Three are that Ms Achurch made false and misleading statements on her renewal applications on 27 April 2014 and 25 March 2015 by falsely answering "no" to questions concerning changes in her criminal history, and the existence of any undisclosed criminal history. 3. There is a question as to whether, as a matter of law, this conduct is capable of falling into the category of "other" improper and unethical conduct within s 139B(1)(l). On one view, the conduct the subject of Complaint Three also forms the basis for the allegations (and the findings) that Ms Achurch contravened s 109(1)(b) of the National Law. 4. Section 139B(1) begins with the words "Unsatisfactory professional conduct of a registered health practitioner includes each of the following". Paragraphs (a) to (k) set out different forms of conduct which are, by force of the section, unsatisfactory professional conduct. Paragraph (l) then provides that "[a]ny other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" is also unsatisfactory professional conduct. It is arguable that the word "other" in s 139B(1)(l) limits the operation of the provision to conduct not falling within s 139B(1)(a) to (k). 5. We invited submissions from the parties on the proper construction of s 139B(1)(l) the National Law and its application in these proceedings. The Commission provided detailed submissions, whilst Ms Achurch did not respond. 6. The Commission contended that Complaint Three is predicated on a separate aspect of Ms Achurch's conduct from that the subject of Complaint Two, being the provision of false and misleading information on her renewal forms. Section 109(1)(b) of the National Law requires a renewal application to include details of changes in an applicant's criminal history. The Commission says the deliberate provision of false and misleading information is more serious conduct than the failure to make the disclosures required by law. The Commission's counsel, Mr Aitken, submitted: "Failing to disclose is conduct by omission and non-compliance, but a false and misleading statement is positive conduct illustrative of a breach of proper and ethical standards. The overlap is of the background circumstances leading to the conduct, not the conduct complained of itself in each case." 1. The online renewal applications which Ms Achurch completed required her to answer the following question: "During your preceding period of registration, has there been any change to your criminal history that you have not declared to AHPRA?" 1. Ms Achurch answered "no" to the question in her 2014 and 2015 renewal applications. This answer was false and misleading. 2. Given the way the online registration process worked, it appears that Ms Achurch could not have applied for renewal without answering this question on each occasion. That is, it was not possible for her to simply fail to make the disclosures required by law, without making a false and misleading statement. 3. In 2014, Ms Achurch was asked in her renewal application: "Do you have any criminal history that you have not disclosed to AHPRA (other than that disclosed in the question above)?" 1. Ms Achurch (falsely) answered "no" to this question. 2. The Commission alleges in 2015 Ms Achurch was also asked this question in her renewal application and answered "no." In fact, in 2015, according to the print out of Ms Achurch's renewal application which is in evidence, Ms Achurch was not asked this question, but was instead asked, "Since your last declaration to AHPRA, has there been any change to your criminal history in one or more countries other than Australia that you have not declared to AHPRA?" She (correctly) answered "no." 3. Whilst the matter is finely balanced, we accept the Commission's submission that Ms Achurch's conduct in failing to provide details of her criminal history, and her conduct in providing misleading information, is different. The word "conduct" means, relevantly, "personal behaviour; way of acting" (Macquarie Dictionary Online). The contravention of s 109(1)(b) consists of a failure to provide certain information as required by law (one form of personal behaviour), whereas the conduct the subject of Complaint Three is the making of false and misleading statements to AHPRA (another kind of personal behaviour). It would be possible to engage in one of form of conduct but not the other. For example, a practitioner could answer "yes" to the question about a change in criminal history but fail to provide the full details of the change (thereby contravening s 109(1)(b)). Given that we have found that the conduct the subject of Complaint Three is different from that the subject of Complaint Two (and covered by s 139B(1)(b)), we do not need to decide whether s 139B(1)(l) applies only to conduct which is not covered by s 139B(1)(a) to (k). 4. "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]). 5. We consider that Ms Achurch engaged in improper and unethical conduct relating to the practice of nursing when she made the two false and misleading statements referred to above in her 2014 renewal application and the one false and misleading statement referred to above in her 2015 renewal application. The deliberate falsehoods constitute a breach of the standards of conduct that would be expected of a nurse and are contrary to moral precepts. We find that Ms Achurch is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Complaint Four: Otherwise not suitable to hold registration 1. Complaint Four is that Ms Achurch is not a suitable person to hold registration as a nurse, by reference to s 144(e) of the National Law. Complaints One, Two and Three and their particulars are relied upon and repeated to support this complaint, both individually and cumulatively. 2. The Commission also alleges, in support of Complaint Four, that Ms Achurch committed the further acts of supplying a prohibited drug which were admitted by her in a Form 1 on 7 October 2016. When the court was dealing with Ms Achurch for the principal offence of drug supply, the Commission claims that Ms Achurch admitted pursuant to s 33 of the Crimes (Sentencing Procedure) Act (in what is known as a "Form 1") to: 1. knowingly taking part in the supply of 27.7 grams of Methyl-amphetamine on 18 September 2014, contrary to s 25(1) of the Drug Misuse and Trafficking Act; 2. supplying 55.2 grams of Methyl-amphetamine on 21 October 2014, contrary to s 25(1) of the Drug Misuse and Trafficking Act; 3. knowingly taking part in the supply of 28 grams of Methyl-amphetamine on 13 November 2014, contrary to s 25(1) of the Drug Misuse and Trafficking Act. Is Ms Achurch "otherwise not suitable" to hold registration 1. Section 144 of the National Law provides: "The following complaints may be made about a registered health practitioner—" then sets out the types of complaints which may be made in (a) to (e). Paragraph (e) provides that one of the complaints which may be made is "[a] complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession." The matters on which the Commission relies which form the subject of Complaints One to Three are covered by s 144(a) and (b). On one view, the word "otherwise" in s 144(e) restricts the application of that paragraph to matters not covered by s 144(a) to (d). If this is the case, the subject matter of Complaints One to Three does not provide a basis for finding that Ms Achurch is "otherwise" not suitable to hold registration, pursuant to s 144(e). 2. There is a related question insofar as Complaint Four relates to offences said to be admitted by Ms Achurch in the Form 1. This is whether it is a complaint that Ms Achurch has been "made the subject of a criminal finding for an offence" within s 144(a). The question arises because the Commission alleges that Ms Achurch admitted the offences and the court took them into account in sentencing. The issue is whether, in doing so, Ms Achurch was the subject of a "criminal finding." If so, and if s 144(e) is limited to matters which are not the subject of s 144(a) to (d), then the Tribunal would not be permitted to take this into account for the purposes of a complaint under s 144(e). 3. The Tribunal sought submissions from the parties as to the construction of s 144(e) and its application to these proceedings, and as to whether the acts referred to in particular 2 of Complaint 4 were "the subject of a criminal finding for an offence" within s 144(a). It received submissions from the Commission but not from Ms Achurch. Construction of s 144(e) of the National Law 1. The first issue to consider is whether the word "otherwise" limits the operation of s 144(e) to complaints which are not complaints set out in s 144(a) to (d). 2. The Tribunal said in Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [60], that, "for the purpose of section 144, the suitability of the person to hold registration must be ascertained by reference to matters which are not covered by the preceding paragraphs." The practitioner, a dentist, had been the subject of a criminal finding for an offence, being possession of cocaine. The Commission stated that it did not rely on the fact that the dentist had been made the subject of a criminal finding for an offence, but it relied on the actual conduct of the dentist on the date of the criminal offence. There was evidence about his possession of cocaine which existed independently of any finding made in the course of the criminal proceedings and the Tribunal took this into account in determining that the respondent dentist was not a suitable person for registration as a dentist (at [61]-[62]). 3. The Tribunal took a similar approach in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [59]. The respondent medical practitioner had been found guilty of assault occasioning actual bodily harm and had been convicted of common assault, contravention of an Apprehended Domestic Violence order and stalking. The Commission relied upon these criminal findings and the underlying conduct surrounding the commission of each of the offences in relation to a complaint that the practitioner was "otherwise not a suitable person to hold registration in the practitioner's profession" under s 144(e). The Tribunal adopted the reasoning in Simpson. It concluded that s 144(e) may be established on evidence of the underlying conduct that led to the criminal charges and convictions but not on evidence of the convictions themselves (at [59]-[60]). 4. Mr Aitken, for the Commission, submits that Simpson and Haasbroek are merely persuasive and should not be followed. In his submission, the reading of the word "otherwise" adopted in those cases is unduly restrictive in the context of beneficial and protective legislation and it should be given a broad interpretation. Mr Aitken submits that "otherwise" can mean "a different way of viewing conduct" and that, in the context of s 144(e), it can refer to a complaint that the practitioner is otherwise, in other respects, in another manner, as an alternative, viewed in a different way, unsuitable to hold registration. He says that s 144(e) does not exclude the possibility that conduct captured by (a) to (d), described in another way, might amount to conduct demonstrative of unsuitability to hold registration. He submits that, to suggest that s 144(e) only captures conduct other than that captured by s 144(a) to (d) was to effectively limit s 144(e) to matters that might not amount to unsatisfactory professional conduct or professional misconduct. 5. Mr Aitken referred the Tribunal to Health Care Complaints Commission v Marsh [2016] NSWCATOD 155, in which the Commission made two complaints, that the respondent nurse had been convicted of a criminal offence (Complaint One) and that he was not suitable to hold registration as a registered nurse (Complaint Two). The nurse had been found guilty of murder. The Commission submitted, in that case, that the respondent's conduct in the murder established that that he was not a suitable person to hold registration as a nurse. It relied upon the seriousness, particular circumstances and planning of the murder, his lack of remorse, and the court's findings as to the future danger to the public. The Tribunal found both complaints to be established. It said (at [30]): "The Tribunal accepts that a nurse: (1) who "meticulously plans" an "extraordinarily cruel" and "terrible crime"; (2) who commits a murder described as being at the top of the range of the offence of murder by the trial judge and an "act of barbarity"; (3) in circumstances in which the victim was his supervisor and therefore the criminal offence was clearly related to the practice of the respondent's profession, (4) where the respondent "neither expressed remorse or shown contrition for the offence" and it was "plain that the offender has the real potential to violently harm a person who he perceives might seriously interfere with his plans, or who otherwise to his mind causes him significant distress", is not a suitable person to hold registration as a registered nurse." 1. The construction of s 144(e) does not appear to have been an issue in Marsh. However, the Tribunal proceeded on the basis that the circumstances of the crime could form the basis of a finding that a nurse was "otherwise" not a suitable person to hold registration as a nurse. This is consistent with the approach in Simpson and Haasbroek, that the underlying conduct surrounding the commission of an offence may be taken into account for the purposes of s 144(e), even though the finding of guilt may not be. 2. In Health Care Complaints Commission v Menz [2017] NSWCATOD 141, a nurse had been convicted of indecent assault. The Tribunal found the Commission's first complaint, that he had been convicted of an offence, proven. Complaint 2 alleged that the nurse was not a "suitable person to hold registration" as a nurse on the basis of each of the particulars listed in Complaint 2. These included that the nurse had engaged in the underlying conduct the subject of the conviction (grabbing a fourteen year old boy's testicles). The Tribunal considered whether he had in fact done so (given that he denied this) and found that he had. It took this and other proven particulars into account when determining that he was not a suitable person to hold registration as a nurse. 3. Again, the construction of s 144(e) does not appear to have been raised in Menz. However, the Tribunal in that case took into account the underlying circumstances of a conviction (as opposed to the conviction itself) in considering whether the person was "otherwise" not suitable within s 144(e). This is consistent with Simpson and Haasbroek. 4. The same approach (of considering the underlying circumstances of an offence for the purposes of s 144(e)) was taken in Health Care Complaints Commission v Jung [2018] NSWCATOD 53. 5. We are not persuaded by Mr Aitken's submissions that we should not follow the approach taken in Simpson and Haasbroek. It is true that these decisions are persuasive and not binding. However, we would be very slow to depart from a settled line of authority, particularly given that the presiding member in Haasbroek was Deputy President Boland (an Acting District Court Judge). The principle of comity should ordinarily operate so as to create consistency in Tribunal decisions (see, for example, Law Society of NSW v Webb [2018] NSWCATOD 55 at [15]). Further, far from being persuaded that this line of authority is wrong, we respectfully consider that it is correct. That is, we agree that the effect of the word "otherwise" in s 144(e) is that the matters in (a) to (d) may not be taken into account when determining whether a practitioner is suitable to hold registration under that provision. This is the natural meaning of the word "otherwise"; the suggestion that it could be read as "viewed in a different way" leads to a strained reading. The underlying circumstances of an offence may be taken into account as these do not form part of a complaint that a person has been made the subject of a criminal finding for an offence (within s 144(a)). Conduct the subject of Complaints One to Three 1. As already indicated, the Commission relies upon Complaints One to Three and the particulars to those complaints for Complaint Four. These are that Ms Achurch has been convicted of offences (Complaint One, National Law, s 144(a)) and that she is guilty of unsatisfactory professional conduct due to her contraventions of the National Law and due to engaging in improper and unethical conduct by making false and misleading statements (Complaints Two and Three, National Law, s 144(b)). The particulars are confined to setting out the particular offences (Complaint One), the particular contraventions of the National Law (Complaint Two) and the particular false and misleading statements made (Complaint Three). 2. We find that Complaints One to Three and their particulars may not be the subject of a complaint that Ms Achurch is "otherwise" unsuitable to hold registration under s 144(e). This is not a case like Haasbroek where the Commission expressly relied upon the conduct surrounding the commission of an offence in its particulars to a s 144(e) complaint. No such surrounding conduct was relied upon. As the conduct referred to in Complaints One to Three is the subject of s 144(a) and (b) it may not lawfully be the subject of Complaint Four. Conduct the subject of admissions 1. The conduct which Ms Achurch admitted to in the "Form 1" which was placed before the Court on 7 October 2016 would be covered by s 144(a) if it were properly described as "[a] complaint the practitioner has, either in this jurisdiction or elsewhere, been … made the subject of a criminal finding for an offence." This turns on whether the Court's reliance upon the admissions in the Form 1 in sentencing Ms Achurch amounted to "a criminal finding for an offence." The term "criminal finding" is defined in s 138(1), for the purposes of Part 8, to mean: "(a) a finding that an offence has been proved without proceeding to a conviction; or (b) a finding that an offence has been proved and the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period or on other conditions decided by the court." 1. The Commission submits that this definition picks up the sentencing approach for offences not resulting in convictions and resulting in conditional discharge (see Crimes (Sentencing Procedure) Act, ss 9 and 10). It submits that a "finding that an offence has been proved" by necessary implication refers to a finding by a court to the criminal standard; that is, a finding of guilt. Section 33 of the Crimes (Sentencing Procedure) Act, on the other hand, refers to an admission of guilt. 2. We accept these submissions. We do not consider that the court's taking into account an admitted offence, for the purposes of sentencing, is a "criminal finding" within the National Law. This is because it is not a "finding that an offence has been proved" for reasons given by the Commission. 3. This means that, so long as the complaint is not one covered by s 144(b), we can take into account the offences admitted by Ms Achurch in her Form 1 for the purposes of Complaint Four. Given our conclusion below, we have not had to decide whether the complaint is one to which s 144(b) applies. 4. The Form 1 is not in evidence. However, the transcript of the sentencing proceedings on 7 October 2016 is in evidence. In that transcript, the sentencing judge stated that Ms Achurch had asked the Court to take into account two offences of knowingly take part in the supply of prohibited drugs, one at Liverpool on 18 September 2014 and one at Liverpool on 13 November 2014. His Honour asked her whether she acknowledged her guilt in connection with each matter and she answered "yes." 5. The complaint refers to a further matter which is said to have been admitted by Ms Achurch on the Form 1, being supplying 55.2 grams of Methyl-amphetamine on 21 October 2014, contrary to s 25(1) of the Drug Misuse and Trafficking Act. There is no reference to this in the transcript of the sentencing proceedings and his Honour appears, from the transcript, to have only taken into account the admissions relating to drug supply on 18 September 2014 and 13 November 2014. There is reference in the transcript to a new Form 1 being filed, and the original Form 1 being defective. 6. We have examined the Certificate of Conviction and the Advice of Court Result dated 8 November 2016. Taken together, these indicate that the alleged offence on 21 October 2014 was taken into account on a Form 1. In addition, Ms Achurch has acknowledged responsibility for Complaint Four. Accordingly, we consider that the evidence established that she admitted the supply offence of 21 October 2014. 7. We find, on the evidence, that Ms Achurch: 1. knowingly took part in the supply of 27.7 grams of Methyl-amphetamine on 18 September 2014, contrary to s 25(1) of the Drug Misuse and Trafficking Act; 2. supplied 55.2 grams of Methyl-amphetamine on 21 October 2014, contrary to s 25(1) of the Drug Misuse and Trafficking Act; and 3. knowingly took part in the supply of 28 grams of Methyl-amphetamine on 13 November 2014, contrary to s 25(1) of the Drug Misuse and Trafficking Act. Is Ms Achurch unsuitable to hold registration due to twice supplying prohibited drugs? 1. Some assistance as to the meaning of the words "not a suitable person to hold registration" in s 144(e) of the National Law is provided by s 55(1) of the National Law, which is headed "Unsuitability to hold general registration" and provides for circumstances in which a National Board may decide an individual is not a suitable person to hold general registration in a health profession (see Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [21] and Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [64]). These include that: "(h) in the Board's opinion, the individual is for any other reason— (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely." 1. The meaning of the expression "not a suitable person to hold registration" was considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72]-[73], where it made the following remarks: "72 We agree with the submission made by the Commission that, in considering whether Mr Brush 'is a suitable person to hold registration', it is useful to have regard to the expression 'fit and proper person'. The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and takes their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). 73 While some overlap between the concepts of 'good character' and 'being a suitable person to hold registration' / 'fit and proper person' they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills." 1. Brush has been cited with approval in subsequent decisions, such as Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 at [116] to [118] (A/DCJ Boland presiding). We adopt this analysis, while bearing in mind that the text of s 144(e) must be our primary focus. 2. In Health Care Complaints Commission v Geary [2018] NSWCATOD 15 at [115], the Tribunal (K O'Connor, ADCJ, Deputy President, presiding) commented: "115 It is inherent in a finding that a person is not a 'suitable person to hold registration' that he or she must be removed from the profession. What we think is contemplated by this provision is an inquiry into the person's fitness in the sense of an inquiry going to the person's character and integrity. It would, we think, be necessary to demonstrate a fundamental deficiency of character so serious as to warrant in its own right exclusion from the profession. 116 In our view, introducing into disciplinary cases a separate complaint of lack of suitability may tend to stand in the way of appropriate resolution of cases where there is some preparedness to co-operate with and not impede the process, as has been seen here in the early and frank admissions made in this case from an early stage. 117 Practitioners, we acknowledge, have a duty to co-operate with and respond to disciplinary investigations and disciplinary proceedings brought against them. But it is not unknown for practitioners to disengage from the process or only give limited responses, especially in cases where there is evidence of mental ill health, and conditions such as depression. In our view, it will ordinarily be sufficient to deal with omissions of this kind through the spectrum of the professional misconduct/unsatisfactory professional conduct inquiry, and in the consideration of the appropriate disciplinary order." 1. Taking part in the supply of prohibited drugs and supplying drugs are serious (and criminal) matters. The conduct is not consistent with the community's expectations of the standard of conduct of a nurse (cf Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [61]). Nor is it conduct consistent with the qualities of "integrity, probity and scrupulosity" referred to in Brush. The prohibited drug supply occurred on two occasions and the supply on one occasion. Ms Achurch has been convicted of supplying a prohibited drug on two other occasions. Whilst we do not take these convictions into account per se in relation to Complaint Four, we do take into account the circumstance that the conduct which we are considering formed part of a pattern of conduct. 2. The question is whether Ms Achurch is now unsuitable to hold registration as a nurse. She has made the following statements in a letter provided to the Tribunal in February 2018: "I am currently serving an 18-month prison sentence for my crime in taking part in the supply or a prohibited drug. I am fully aware of my level of responsibility in participating in such a crime, I am eternally sorry and I am deeply ashamed of my actions. Throughout my incarceration I have continually processed the enormity of the consequences brought about by my actions…. I still have time to give back to the world, I want my mistake to be the catalyst for a new direction in my life focusing on positivity and healing." 1. In a separate letter dated February 2018, Ms Achurch describes herself as being "deeply remorseful, and sorry for my actions." Ms Achurch was not present at the hearing so that the Commission's counsel did not have an opportunity to cross examine her. However, it was not suggested that this expression of remorse was not sincere. We accept that Ms Achurch is remorseful and ashamed of her conduct, as she states. This is consistent with Achurch's pleas of guilty to two drug supply offences and her admission of the other drug offences. It is also consistent with her reply to the application for disciplinary findings which states that she accepts and acknowledges responsibility for the complaints made against her. 2. Ms Achurch has provided a reference to the Tribunal, directed to the presiding Magistrate in her criminal proceedings, from Nikki Buckhingham, who has known Ms Achurch since childhood. Ms Buckhingham expresses the opinion that Ms Achurch is honest and describes her drug charges and "extremely out of character for her." Ms Buckingham was not made available for cross examination. We give this reference limited weight as a result. 3. Another childhood friend of Ms Achurch provided a reference but her name has been obliterated in the copying of the reference and, for this reason, we do not take it into account. 4. The conduct of supplying and taking part in the supply of prohibited drugs is very serious, but it does not, in our view, demonstrate "a fundamental deficiency of character so serious as to warrant in its own right exclusion from the profession" when it is considered in the context of her present state of remorse (see Health Care Complaints Commission v Geary [2018] NSWCATOD 15 at [115]). The conduct occurred in late 2014. Just over four years has passed since that time. Whilst the passage of time is not in itself sufficient to demonstrate a change of character, taken with Ms Achurch's expressions of regret and her acceptance of responsibility for the complaints, it helps to demonstrate change. 5. We are not satisfied that the admitted offences in 2014 of themselves make Ms Achurch an unsuitable person to hold registration as a nurse, within s 144(e) of the National Law, in circumstances where she is remorseful for her actions. 6. We dismiss Complaint Four. Orders 1. We make the following orders: 1. The Tribunal, having found that the respondent has been convicted of offences in the State of New South Wales and that the respondent is guilty of unsatisfactory professional conduct, orders that: 1. the Health Care Complaints Commission is within 28 days of the date of this order to file and serve written submissions in respect of appropriate protective orders and costs; 2. The respondent is, within 49 days of the date of this order, to file and serve written submissions in respect of appropriate protective orders and costs; 3. The Health Care Complaints Commission is, within 7 days of receipt of the respondent's submissions, to file and serve written submissions, if any, in reply; 4. The proceedings are to be listed for a further half day of hearing to determine the outcomes of the proceedings on a date to be fixed by the Registrar. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 08 February 2019