Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Nelson [2019] NSWCATOD 22 Hearing dates: 11 December 2018 Date of orders: 12 February 2019 Decision date: 12 February 2019 Jurisdiction: Occupational Division Before: J Millbank, Senior Member D Beaumont, Senior Member R Roseby, Senior Member A Johnston, General Member Decision: (1) Pursuant to findings of unsatisfactory professional conduct and misconduct, under s149C(4)(a) of the National Law if the practitioner was still registered as an enrolled nurse the Tribunal would have cancelled his registration; (2) Pursuant to s149C(4)(b) of the National Law the practitioner is disqualified from being registered as an enrolled nurse or student nurse for a period of 2 years from the date of this decision; (3) Pursuant to s149C(4)(c) of the National Law, the Tribunal requires the Nursing and Midwifery Board to record the fact that had he been registered the Tribunal would have cancelled Mr Nelson's registration for a period of 2 years from the date of this decision; (4) Pursuant to s 149C(5A) of the National Law, the practitioner is prohibited from providing health services for a period of 2 years from the date of this decision; (5) The Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW); (6) A non-publication order under s 64(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of the Patient A and Person A listed in the schedule to the complaint. Catchwords: TRADES AND PROFESSIONS ─ nursing ─ mental health nursing ─ personal and sexual relationship with patient ─ failure to cease relationship when directed ─ deliberate deception in the course of investigation Legislation Cited: Health Practitioner Regulation National Law NSW 2009 (NSW) ('The National Law'); Health Care Complaints Act 1993 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169; Health Care Complaints Commission v BDX (No 2) [2015] NSWCATOD 135; Health Care Complaints Commission v CRF [2016] NSWCATOD 120; Health Care Complaints Commission v CSM [2016} NSWCATOD 125; Health Care Complaints Commission v CWY [2017] NSWCATOD 6; Health Care Complaints Commission v Fisher [2016] NSWCATOD 62; Health Care Complaints Commission v Von Marburg [2012] NSWMT 5; Health Care Complaints Commission v XC [2016] NSWCATOD 62 Texts Cited: Nursing and Midwifery Board of Australia, Code of Professional Conduct for Nurses in Australia (2015); NSW Department of Health Code of Conduct (2012) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Faron James Nelson (Respondent) Representation: Counsel: A Bonner (Applicant) E James (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Law Society of New South Wales (Respondent) File Number(s): 2018/00208908 Publication restriction: A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of Patient A and Person A listed in the schedule to the complaint. REASONS FOR DECISION Background 1. Mr Nelson obtained a qualification as an enrolled nurse in 2009. He first registered as an enrolled nurse in 2011. In 2014 he commenced work in the mental health ward of Coffs Harbour Hospital, having previously worked on the medical ward of the hospital, and prior to that in various other non-nursing roles at the same hospital. 2. The following facts are uncontested. Patient A, a 19 year old woman, was admitted to Coffs Harbour Hospital, in a suicidal state, in October 2014. She remained an in-patient at the hospital for over three months. During this time Mr Nelson was not allocated to Patient A as her primary care nurse. However during that period he spent considerable time with Patient A and they formed a personal relationship, or in Mr Nelson's words, 'a special bond'. At the time Mr Nelson was 41 and Patient A had recently turned 20. 3. On the day of her discharge from hospital on 23 January 2015, Patient A and Mr Nelson connected via Facebook and began communicating via Facebook Messenger and SMS. Shortly thereafter Mr Nelson invited Patient A to his home and over the following 11 or 12 days they saw each other repeatedly and a sexual relationship developed. 4. Patient A's family became aware of the relationship and were very concerned about it. On 27 January 2015 a member of Patient A's family notified the hospital, having taken the sensible precaution of gathering copies of all available electronic communications between Patient A and Mr Nelson, as well as other evidence such as photographs of Patient A's car parked outside Mr Nelson's residence. A manager from the hospital telephoned Mr Nelson that same day, telling him that a complaint had been made and the nature of the material on which it was based. The manager requested a copy of the communications and instructed Mr Nelson not to have contact with Patient A. Mr Nelson denied having any contact with Patient A since her discharge from hospital. 5. On 28 January 2015 Mr Nelson put in place a deception in order to continue the relationship with Patient A. He asked a young man over whom he was in a position of authority, Person A, to say that it was he who was Patient A's boyfriend, and that he had been using Mr Nelson's Facebook account to communicate with her. Mr Nelson then instructed Person A to connect to Patient A through Person A's own Facebook account, dictated various messages between Patient A and Person A and versed Patient A in what to say about how she had met Person A, what not to say about their own relationship, and so on. 6. Mr Nelson persisted in maintaining this rather implausible falsehood until late October 2018, including through an internal hospital investigation, Local Health District investigation, s 150 proceedings, and in a s 40 response to the HCCC in these proceedings. In a number of those communications Mr Nelson characterised Patient A as a manipulative liar whose mental health history meant she should not be believed. 7. Patient A maintained the fiction that she was involved with Person A instead of Mr Nelson until she was re-hospitalised in early February 2015. The acute incident of self harm and re-hospitalisation of Patient A was precipitated by conflict with her family which arose as a direct consequence of her continued attempts to maintain the deception created by Mr Nelson in her interactions with her family. 8. Patient A made a detailed statement to the hospital about what had occurred in her relationship with Mr Nelson on 18 February 2015. 9. Person A did not respond to multiple contact attempts from the hospital and Local Health District, then maintained the lie that it was he who was involved with Patient A in an interview with Local Health District investigators in November 2015. He did not respond to communications from the HCCC thereafter. 10. Mr Nelson resigned from the hospital in March 2015 and was advised by the Local Health District in April 2016 that, following their investigation, he would have been terminated had he still been employed. 11. A section 150 hearing was convened by the Nursing and Midwifery Council in August 2016, leading to the imposition of the condition from August 2016 that the practitioner not work as an enrolled nurse. In July 2017 Mr Nelson failed to renew his registration. 12. The complaint before this Tribunal was filed in July 2018. Complaint 1, in detailed particulars, addresses the practitioner's unprofessional conduct in the course of the relationship with Patient A. Complaint 2 is that these matters individually and cumulatively amount to professional misconduct. 13. In August 2018 Mr Nelson sent the Tribunal two letters, from his treating GP and treating psychologist, respectively, by way of an application to have his name suppressed based on their concern for his mental health. An interim order was made to do so until the issue could be determined at hearing. 14. Having received assistance from the NSW Law Society Pro Bono Scheme, Mr Nelson filed a reply to the proceedings dated 23 October 2018 through Mr Griffin SC, in which he admitted all particulars and both complaints. 15. At the hearing the practitioner was represented by Ms James of Counsel, pro bono, assisted by Ms McIntosh. The Tribunal records its gratitude for their contribution, and that of Mr Griffin. Issues 1. The Tribunal was independently satisfied all of the particulars were proved to the Briginshaw standard and that the conduct amounts to professional misconduct. The hearing focused primarily on Stage 2 considerations. 2. The issues facing the Tribunal were: 1. Appropriate protective orders; 2. Whether the practitioner's name should be supressed. Evidence 1. The HCCC peer expert, Ms Martin gave brief oral evidence to supplement her written report. In particular Ms Martin addressed an error in her written report in which she had mistaken the length of time that the practitioner had been a registered enrolled nurse. 2. Ms Martin noted that the 'guidance' on professional boundaries provided by the Nursing and Midwifery Board of Australia's Code of Professional Conduct for Nurses in Australia, and the NSW Department of Health Code of Conduct applies to all nurses at all stages in their careers. In her view nurses in a mental health setting need to be 'even more careful' because mental health patients are more vulnerable than the general patient population. 3. Ms Martin was strongly critical of Mr Nelson's conduct even bearing in mind the relatively short period of practice he had as a registered enrolled nurse at the time of the relevant complaint. She noted the clear vulnerability of Patient A and was particularly critical of the fact that the events occurred immediately upon her discharge from hospital, at a time when she was still a patient of the service as an out-patient. Ms Martin stated: Personal and professional boundaries are a routine topic of discussion as part of clinical practice within mental health….This failure to maintain professional boundaries was again displayed with contact with [Patient A] so soon after her discharge from an acute inpatient stay. This is a vulnerable time for a vulnerable young woman and the behaviour of an older man in position of authority having contact, supplying alcohol and engaging in or encouraging an intimate relationship would have place[d] additional stressors on [Patient A] and is unacceptable. 1. It was Ms Martin's view that neither the relative inexperience of the practitioner nor his own mental health difficulties lessened Mr Nelson's responsibility for the conduct. In her view the appropriate response of a health professional so placed was to seek guidance from a supervisor about the situation and if necessary take leave from work to seek assistance. 2. Ms Stoker, the practitioner's treating psychologist, gave evidence by telephone. Ms Stoker treated the practitioner at irregular intervals since 2009. Having regard to the extent to which her previous letters and reports to disciplinary proceedings were tailored to assist the practitioner and inaccurately reflected her knowledge of him and treatment history with him, the Tribunal has determined that her evidence is of limited assistance and gives it little weight. We do, however accept Ms Stoker's evidence at the hearing that, over the past 9 years the practitioner had undertaken treatment irregularly, had been inconsistent in his attendance and engagement and had a number of periods of personal instability in which his 'life turns chaotic.' 3. The evidence was uncontested that Mr Nelson had suffered disadvantage and past trauma, and that he experienced on-going difficulties with his own mental health and personal circumstances. At the time of the events complaints of, Mr Nelson was experiencing a number of personal stressors and was, by his own admission, drinking heavily and not taking his prescribed medication. He described himself as 'very switched off' through that period and stated that, in addressing the matters in the complaint, he had really only 'switched on' very recently, including through hearing the evidence of Ms Martin in these proceedings concerning the issue of power imbalance between a health professional and a mental health patient. 4. The practitioner acknowledged frankly that his own conduct has been wrong and unethical, but insisted that he had not known this to be so at the time of the events. He described himself as 'very raw, very green', new to nursing and to the mental health ward, saying: I hardly knew anything about mental health, I was learning as I was going. I had only been there six months. At the time I thought once you left work you were on your own time. 1. We find that this self-characterisation does not sit well with the swift and calculated deception that Mr Nelson put in place as soon as he was made aware by the hospital that they were looking into his conduct. 2. Mr Nelson emphatically stated that at the time of the events he had no actual knowledge of aspects of Patient A's specific vulnerabilities and that he had not read her medical records. However he was well aware of the length of time she had spent in the acute mental health unit and that she had a history of self harm. Moreover, in his August 2016 letter to the s 150 proceedings the practitioner asserted the 'lack of credibility' of Patient A and referenced knowledge of Patient A's clinical history as well as her behaviour within the hospital which he stated he had acquired through staff 'handover' meetings, adding: The conclusion [of the inquiry] states that the alleged person is more credible but nursing staff from the mental health inpatient unit and I am sure medical records would disagree with this. 1. These statements indicate that while the practitioner may not have had full knowledge of Patient A's history, he did have some knowledge of it. 2. Mr Nelson referred to the 'bond' he had with Patient A and more than once to how they had 'so much in common'. When asked by the Tribunal what it was that he and Patient A had in common, he replied it was 'mental health' and 'medication'. It is a poor reflection on both the practitioner's past conduct and his current level of insight that he was so aware of his own suffering and ill health but still seemed unable to reflect that a young woman in the setting in which he found her would be in an extremely fragile state. Likewise it was telling that Mr Nelson referred to his attitude at the time of events to being 'on his own time' having left work, but did not reflect upon whether Patient A, having left hospital the day before, could possibly be considered to be recovered and well in terms of her state of health. 3. Mr Nelson presented as someone who is very focused upon, even consumed by, his own physical and mental frailty. In the course of the day he repeatedly took his own pulse, clutched his chest and stomach, and answered a variety of questions concerning the complaints by diverging into lengthy narratives of his own suffering, or of witnessing trauma involving others, in both the recent and distant past. 4. Mr Nelson described himself as drinking heavily over a prolonged period, despite being on a variety of medication for which alcohol is plainly contra-indicated. He volunteered that in the recent past he had passed out in a park from drinking, vomited blood and been taken to emergency by ambulance. He had seen his GP three weeks earlier for abdominal pain which was caused by drinking. In answer to a direct question from the Tribunal, the practitioner characterised himself as an alcoholic in the sense that he had both a mental and physical addiction to alcohol. He said that he accepted now that he needs to go to Alcoholics Anonymous, but has not yet done so. 5. Bearing in mind that there was no complaint of impairment before the panel, nor of lack of competence to practise, the Tribunal asked Mr Nelson whether, given his evidence of 'massive mental health issues' and serious alcohol dependence, he thought he was currently fit to practise. He first responded, 'I need work' and then, 'No.' 6. The practitioner expressed genuine remorse, even disgust, at his own behaviour. Although he did not attempt to deny the conduct or excuse it, there were a number of occasions on which he minimised it. For instance the practitioner repeatedly referred to the events complained of, which consisted of an inappropriate personal relationship for several weeks while Patient A was in hospital, and an improper sexual relationship over 11 or 12 days after she was discharged, as 'the incident' and, when pressed, stated that it was 'only 5 or 6 days' and 'more of a friendship'. The deception he put in place, in which he coached Patient A and Person A, he claimed 'was out of fear' and because he was affected by alcohol. Yet that deception was put in place not just to conceal the improper conduct, but to continue it. Likewise Mr Nelson said he didn't remember writing in submissions in the course of the investigations that Patient A was manipulative and a liar, but claimed it would have been because he was affected by alcohol. 7. Mr Nelson gave evidence that nursing was his dream and that he would love to return to it. He acknowledged that he was unsuited to nursing in a mental health setting. In the past he had worked in community based aged care and he would ideally like to work in an aged care setting in the future. He stated, 'I know I'm a good nurse.' 8. The letters submitted by Ms Stoker and the practitioner's GP concerning the practitioner's application to have his name supressed were supplemented by oral evidence from Ms Stoker and the practitioner himself. This evidence was to the effect that Coffs Harbour is a 'small community' and that the publication could have an adverse effect on Mr Nelson's mental health and wellbeing. Mr Nelson referred to incidents around the town in which he had felt people were talking about him and judging him. He was now reluctant to seek medical assistance from the hospital because staff there talked about what had occurred. Submissions 1. Ms Bonnor for the HCCC submitted that the conduct should be regarded as very serious given that it involved a gross violation of professional boundaries and an extremely vulnerable young patient. It was alarming that the practitioner, even taking into account the fairly brief period of his professional experience as a nurse, did not have any appreciation of the extent of the patient's acute vulnerability at the time the conduct commenced. 2. Of particular concern was the fact that the conduct continued in breach of a clear direction from a supervisor, and that this conduct, and the practitioner's response through the initial and subsequent investigations, was to perpetrate deception and to involve others in that deception. 3. Ms Bonnor submitted that the practitioner 'on one level' presented to the hearing with insight into his conduct and with frank admissions. However these admissions were very late, and the insight that he 'needed work' had not been attended with any action to date. These factors should give the Tribunal serious concern about the safety of the public if the practitioner were returned to practice in the near future. 4. The HCCC sought an order of deregistration with a non-review period of between two to four years. 5. The practitioner's position at the conclusion of the hearing was that he did not contest that the admitted conduct amounted to professional misconduct and that a deregistration order was appropriate in all the circumstances. 6. Ms James submitted that the actions of the practitioner were not predatory, but rather arose from a blindness to professional standards, his own mental ill health and in response to personal stressors that he was experiencing at the time. 7. Ms James submitted that the practitioner had made full admissions and acknowledged the objective seriousness of the conduct. In her submission the practitioner displayed genuine candour, contrition and 'nascent insight'. The practitioner's non-disputation of Patient A's account, and his acceptance of sanction should also be accepted as evidence of remorse. In her submission, the practitioner's evidence indicated the he was aware of what he needs to do to become a safe practitioner, it is just a question of how long he needs to do it. To prevent an application for review of the orders for four years would be an artificially long period; two years would be more appropriate. 8. Both parties required further time in which to seek instructions and frame submissions concerning potential prohibition orders regarding other health services in the event that the practitioner was removed from practice, specifically whether such an order would cover roles such as an Assistant-in-Nursing (AIN) or personal care in an aged care or community health care setting. It was noted that 'health services' is more broadly defined in the Health Care Complaints Act 1993 (NSW) s 4(1) than in the National Law s 5. Leave was granted for written submissions on this issue, and also on the question of the practitioner's application for a suppression of his name. Health Services 1. Ms Bonnor submitted that the definition of 'health services' in the HCC Act is the applicable definition for the purpose of these proceedings. This is by virtue of s 138(1) of the National Law, which is also a definitions section applying only to Part 8 of the National Law. Section 138(1) defines health services as having the meaning given in the HCC Act. 2. Part 8 of the National Law covers how complaints about performance and conduct are dealt with, and includes Subdivision 6 which establishes the disciplinary powers of the Tribunal. Section 149C(5) and (5A) provide the Tribunal the power to make a prohibition order in respect of a health practitioner if it has suspended or cancelled the practitioner and determined that they pose a 'substantial risk to the health of members of the public'. Such orders may prohibit the person from providing 'health services' or 'specified health services' either for a specified period of permanently. 3. The definitions in s 138(1) apply to Part 8 of the National Law and are intended to apply to proceedings of the Tribunal. This express provision for the purposes of Part 8 overrides the more generally applicable definitions in s 5. Hence, 'health services' in s 149(5) and (5A) have the meaning given in s 4(1) of the HCC Act. 4. 'Health service' is defined in the HCC Act as including, whether provided as public or private services: (a) medical, hospital, nursing and midwifery services,… (f) community health services, … (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g). 1. The HCCC submitted that the definition should be construed to include the role of AIN and personal care assistant for three reasons: first hospital and nursing services were clearly contemplated to cover a range of services associated with hospitals and nursing and to go beyond nursing in a strict sense; second community health services are not defined but should be understood to apply to a range of health related services in a variety of contexts outside of a hospital or medical setting; and third the reference to welfare services should be understood to refer to supporting or complementary services associated with other health services, such as personal care. 2. The HCCC submitted that the Tribunal should be satisfied that the practitioner poses a substantial risk to the health of members of the public based on the evidence before it, and drew particular attention to the practitioner's own admission of his present unfitness to practise and the clear evidence of his current and longstanding struggles with alcoholism and mental illness, each of which are long standing and inadequately treated. 3. The evidence also demonstrated that the practitioner had a history of non-compliance with medication and inconsistent engagement in treatment. The practitioner's anxiety and process of denial cannot fully explain his failure to appreciate the seriousness of the conduct over the past three years. Moreover, the deception and perpetuation of deception by him signifies a failure to understand the regulatory context within which his profession is practised, the public interest reasons for it, and the importance of health professionals complying with regulation. 4. Ms James agreed with the HCCC submissions on the definition of health service. She submitted that a period of less than 2 years was appropriate but did not make any submission specifically on the question of the range of services that a prohibition order could cover. Suppression of the practitioner's name 1. The HCCC submitted that the discretionary power in Schedule 5D Cl 7(1)(b)(iii) of the National Law which allows the presiding member of the Tribunal to direct non publication of a practitioner's name, and similar powers in s 64 of the CAT Act vested in the Tribunal, are to be exercised against a presumption in the statutory scheme that proceedings will be held in public and decisions and reasons will be published, as well as against the common law rule of open justice. 2. The reasons the statutory regime promotes publication of decisions include that the jurisdiction is protective of the public and that the community has an interest in knowing whether a practitioner has been charged with a disciplinary offence; and of the outcome especially where it is adverse. 3. Ms Bonnor submitted that the practitioner's evidence did not support displacing the presumption against publication. She noted that the few pervious cases in which suppression was ordered by reason of the practitioner's health involved situations in which the evidence showed that it was very seriously imperilled, such as where the practitioner was in the early stages of recovery from a major psychiatric illness including delusion: HCCC v CWY [2017] NSWCATOD 6, or where the likely risk included suicide: HCCC v XC [2016] NSWCATOD 62; HCCC v CRF [2016] NSWCATOD 120. In other cases it was concern to protect the identity of the patient that necessitated extending non-publication to the practitioner: HCCC v CSM [2016} NSWCATOD 125; HCCC v BDX (No 2) [2015] NSWCATOD 135. 4. The HCCC further submitted that supressing the practitioner's name could potentially undermine the operation of a prohibition order, in that prospective employers would be unable to identify that there was a prohibition order in place in respect of the practitioner. 5. In Ms James' submission publication of the respondent's name presented a real and tangible threat to his fragile mental health. Ms James relied partly upon the evidence of Ms Stoker as to the lack of regular treatment the practitioner had received but rested her submission more forcefully upon two spontaneous aspects of the practitioner's testimony, albeit that they were not given in response to questions about the suppression orders. These were that: the practitioner had a suicide prevention plan in place with his partner, and that he had wanted to 'end his life' when he finally realised that his conduct had been harmful to Patient A. In Ms James' submission this was sufficient to meet the high threshold required to justify a non publication order. 6. Ms James further submitted that there was no evidence to support any inference that publication of the practitioner's name was required for the prohibition order to be effective. The practitioner's deceptive conduct was in the past, his recent conduct was candid, and his concern was to return to the profession, such that disclosure of any such orders was clearly in his interests. Findings Misconduct and Deregistration 1. The Tribunal was independently satisfied that the conduct amounts to professional misconduct by reason of its inherent seriousness. Apparently minor boundary violations such as those involving Facebook contact are considered serious, because they were part of a process that led to gross violations, through Mr Nelson's pursuit of a social and sexual relationship with Patient A. 2. The sexual relationship was a violation of trust of a patently vulnerable young woman, and was an abuse of Mr Nelson's professional position. 3. The period of the relationship itself was brief, however it came to an end only because of the concerted efforts of Patient A's family to intervene and protect her, and the timely response of the hospital management. 4. We conclude that Mr Nelson's actions, both through the misconduct itself and in his contemporaneous and continued denials of it, acted to impede Patient A's recovery and were manifestly harmful to her. 5. The actions of the practitioner in creating a deception to maintain the relationship, and the abuse of his relationship with Patient A to involve her, and of his position of authority with Person A to involve him in that deception, are of very serious concern. The inherent calculation and dishonesty involved in this course of conduct undermines Mr Nelon's account of himself at that time as naïve and ill-considered. We find that it evinces a willingness to use others, including a patient, to achieve his own ends, with no consideration of the duties owed to them or the harm caused to them. It also marks a disregard for professional duties owed to his employer and to regulators. 6. Patient A was 20 years old, had just undertaken a prolonged period of hospitalisation and was discharged into the care of her family, with whom she was living. Mr Nelson coached and cajoled Patient A into lying to her family, and in doing so deliberately cut her off from her main support network at a time of intense need for such support. 7. It is also of concern to the Tribunal that Mr Nelson had more than once in the past course of the investigations invoked Patient A's status and history as a mental health in-patient in order to attempt to discredit her. We stress that while he did not do so at the hearing, this course of conduct over the preceding three years was one that did harm to the patient, to public safety and to the profession. In effect Mr Nelson claimed that he, as a professional, should be believed, and she as a mental health patient should not. In doing so Mr Nelson was drawing on, and contributing to, a culture of disbelief for victims of sexual abuse, and in particular those who are impaired by reason of mental ill health, cognitive impairment or disability – rendering such women, by reason of their health condition, even more vulnerable to abuse by others in the future. This is a gross abuse of position as a health professional. It is also the case that a health practitioner who falsely claims his or her professional status as a shield to claims of unethical conduct betrays their profession and undermines public confidence in it. 8. The Tribunal gives the practitioner credit for attending the hearing and for his belated, but fulsome, admissions. We accept that the practitioner is genuinely remorseful. However we retain reservations about the extent of his insight into his own conduct, and his ability to modulate his own emotions and conduct in order to perform satisfactorily as a health professional. While there is no complaint of impairment or of lack of competence to practise before the Tribunal, we must still record here our grave concerns about the practitioner's fitness to practise based upon his own evidence. 9. Having considered the seriousness of the conduct and the risk posed to the public by a practitioner with such presently limited internal resources and abilities, the Tribunal concludes that deregistration is the only appropriate order. 10. A period of deregistration before being permitted to reapply for registration is necessitated both by the need for a general deterrence message to the nursing profession concerning such a serious abuse of professional position, and by reference to the specific risk posed by the practitioner. 11. We determine that two years is the minimum period that the practitioner will require in order to take the steps needed to demonstrate that he is fit to practise. A two year period of deregistration, in conjunction with these reasons, also signals the seriousness with which sexual misconduct matters such as this are judged within the National Law. Prohibition Orders 1. The Tribunal accepts the HCCC submission that the applicable definition of health services for the purpose of any prohibition order is s 4(1) of the HCC Act. This is a broad definition, intended to cover a range of settings and services in which patients are treated or cared for by unregistered health practitioners, including community care and welfare services provided in association with nursing. 2. The purpose of prohibition orders is to protect patients when a suspended or deregistered practitioner has been identified as a substantial risk. A purposive approach to the interpretation of nursing services in this section must cover those who are not registered nurses and who are undertaking services in association with or in support of nursing, such as an assistant-in-nursing. Likewise community health services and welfare services, to have any meaningful application in the context of Part 8 of the National Law, must cover the provision of personal care services and roles such as personal care assistant whether undertaken in aged care homes, disability facilities, or in the homes of patients. 3. We find that the practitioner does pose a substantial risk to the health of members of the public at this time, by virtue of his inability to put the welfare of patients as his priority, his inability to take responsibility for his own health needs, and his very serious past violation of his professional responsibilities in lying to supervisors and investigators about his misconduct. A prohibition order is necessary to prevent the practitioner from working with vulnerable patients and aged care residents in roles such as AIN or personal care assistant until he has taken steps to remediate this risk. Name suppression 1. The National Law is weighted heavily towards information about disciplinary proceedings and outcomes being publicly available. Such openness advances the paramount object of protecting the health and safety of the public, and is also in the public interest. In HCCC v BDX (No 2) [2015] NSWCATOD 135 at [25] the Tribunal succinctly summarised these interests as follows: The public has an interest in knowing whether a practitioner has been charged with a disciplinary offence, and of the outcome especially where it is adverse. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons. Publicity also serves that end. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence. Decisions also provide a marker of what is unacceptable to other members of the profession. 1. Being part of a small community has not in past cases justified a non-publication order: see eg HCCC v Von Marburg [2012] NSWMT 5, nor has the distressing impact of public scrutiny, even where the practitioner has had ongoing substance abuse and/or mental health issues: eg HCCC v Fisher [2016] NSWCATOD 62; HCCC v Bainbridge [2018] NSWCATOD 169. 2. In HCCC v BDX (No 2) [at 16] the Tribunal noted that shame, embarrassment and concern for the impact on family members were unavoidable incidents of disciplinary proceedings which would rarely if ever justify the making of a non-publication order supressing the name of the practitioner. 3. In Bainbridge the Tribunal stated at [97-99]: 97. The starting point of disciplinary proceedings in this Tribunal is that they are public. The protection of the health and safety of the public is the paramount consideration under the National Law, and the approach of this Tribunal has consistently been that making proceedings available to the public enhances such protection. 98. Although we are concerned that publication of these proceedings poses a risk in terms of being an external stressor in circumstances where stress has been associated with relapse for the practitioner, this risk must be weighed against the public interest in having access to information about practitioners who have faced disciplinary sanctions or been found to have been impaired. 99. There was no evidence before the Tribunal to establish a heightened or specific risk to the practitioner from publication of these proceedings beyond that which would ordinarily follow from publication of a decision in which a practitioner is found to be impaired or have committed a disciplinary offence. 1. Likewise in this case, although we acknowledge that the practitioner has past and present challenges with substance abuse and mental health issues, the evidence before us is not sufficient to objectively establish a heightened or specific risk of such severity as to justify subjugating the public interest in openness in order to supress his name. Orders 1. Pursuant to findings of unsatisfactory professional conduct and misconduct, under s149C(4)(a) of the National Law if the practitioner was still registered as an enrolled nurse the Tribunal would have cancelled his registration; 2. Pursuant to s149C(4)(b) of the National Law the practitioner is disqualified from being registered as an enrolled nurse or student nurse for a period of 2 years from the date of this decision; 3. Pursuant to s149C(4)(c) of the National Law, the Tribunal requires the Nursing and Midwifery Board to record the fact that had he been registered the Tribunal would have cancelled Mr Nelson's registration for a period of 2 years from the date of this decision; 4. Pursuant to s 149C(5A) of the National Law, the practitioner is prohibited from providing health services for a period of 2 years from the date of this decision; 5. The Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW); 6. A non-publication order under s 64(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of the Patient A and Person A listed in the schedule to the complaint. ********** 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: 12 February 2019