Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Thomas [2019] NSWCATOD 163 Hearing dates: 4 July 2019 Date of orders: 23 October 2019 Decision date: 23 October 2019 Jurisdiction: Occupational Division Before: L Pearson, Principal Member S Hillsley, Senior Member V Gibson, Senior Member A Gray, General Member Decision: (1) The Respondent's registration as a nurse is cancelled from the date of this decision. (2) The Respondent is not to make any application for review of the cancellation of his registration for a period of five years from the date of this decision. (3) The Respondent is not permitted to provide any health services unless and until such time as he is registered as a Registered Nurse. (4) The Respondent is to pay the costs of the Health Care Complaints Commission, as agreed or assessed. Catchwords: TRADES AND PROFESSIONS – health practitioner – nurse – convictions – whether suitable person to hold registration Legislation Cited: Crimes Act 1900 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 186 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Health Care Complaints Commission v Bosanquet [2012] NSWDT 2 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr DWF [2019] NSWCATOD 78 Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 Lee v Health Care Complaints Commission [2012] NSWCA 80 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Sanosh Thomas (Respondent) Representation: Counsel: D New (Applicant) Solicitors: Health Care Complaints Commission (Respondent) Respondent (Self Represented) File Number(s): 2019/00045827 Publication restriction: Pursuant to cl 7 of Schedule 5D to the Health Practitioner Regulation National Law (NSW) an order is made prohibiting disclosure to any person or entity of the name of, and any particulars that may identify, Person A in the Schedule to the complaint. REASONS FOR DECISION 1. On 11 February 2019 the Health Care Complaints Commission (HCCC) applied to the Tribunal for orders under the Health Practitioner Regulation National Law (NSW) (National Law) against Mr Sanosh Thomas, a registered nurse. 2. The complaint is brought under s 144(a) and (e) of the National Law, and is: 1. Complaint 1: that the practitioner has been convicted of a criminal offence in New South Wales (s 144(a)); and 2. Complaint 2: that the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession (s 144(e). 1. The HCCC seeks the following orders: 1. Pursuant to s 149C(1) of the National Law, an order that the practitioner's registration be cancelled and that he is not permitted to apply for a review for a period of six years; 2. Pursuant to s 149C(5)(a) of the National Law, an order that the practitioner is not permitted to provide any health services unless and until such time as he is registered as a registered nurse; and 3. Pursuant to cl 13 of Sch 5D to the National Law, an order that the practitioner pay the HCCC's costs as agreed or assessed. 1. The practitioner consents to the first two orders, and opposes a costs order. Background 1. The practitioner was first registered in New South Wales in 2012, having completed the Bridging Program for Internationally Qualified Nurses at the Australian College of Nursing. 2. Between 2013 to 2015 the practitioner was employed on a casual basis as a registered nurse at a regional hospital. In 2014 Person A, a close family member of the practitioner, moved to Australia to attend high school under the care of the practitioner and his family. Between June 2014 and January 2015, the practitioner had sexual intercourse with Person A on several occasions at the family home. Person A was aged between 13 and 15 years old at the time of the sexual assaults. In August 2014, she became pregnant to the practitioner, and returned to her home country where she had an abortion. On her return to Australia, the practitioner continued to have sexual intercourse with Person A, until January 2015. 3. In June 2015 the practitioner disclosed to his wife what had happened, and in July 2015 they disclosed the matter to a priest. The matter was reported by the church to NSW Police. The practitioner voluntarily attended a police station at the request of NSW Police and was arrested and placed in custody. 4. The practitioner's registration was suspended under s 150 of the National Law on 10 September 2015. 5. In July 2016 the practitioner pleaded guilty to and was convicted of three offences under s 61J(1) Crimes Act 1900 (NSW) (Aggravated sexual assault – Victim under the age of 16 years) relating to Person A, committed between May 2014 and June 2015. Two further offences were taken into account on a Form 1, being one count under s 61J(1) of Aggravated sexual assault – victim under age of 16 years, and one count under s 61M(2) of the Crimes Act of Aggravated indecent assault – victim under age of 16 years. The practitioner was sentenced to an aggregate sentence of 6 years and 6 months with a non-parole period of 3 years and 6 months, to date from 31 July 2015. He was released to parole in January 2019. Tribunal proceedings 1. The evidence on which the HCCC relies (exhibit A1) includes: 1. NSW Police record of interview with practitioner (tab 8); 2. Agreed Statement of Facts (tab 15); 3. Report of Dr Stephen Allnutt, Forensic Psychiatrist, dated 14 April 2016 (tab 16); 4. Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia (tab 24). 1. The practitioner did not provide any documentary evidence or written submissions. At the beginning of the hearing, he made an application that the decision not be published. After hearing argument on, and refusing, that application, the Tribunal adjourned briefly to enable the practitioner to consider whether he wished to seek a further adjournment to obtain legal advice, having been provided earlier in the week with the HCCC's statement as to the orders it was seeking, and to discuss with the HCCC representative the issue of costs. The practitioner stated that he wished the hearing to proceed. The practitioner gave oral evidence, in which he admitted the facts as summarised in the Agreed Statement of Facts. 2. In his oral evidence, the practitioner confirmed that he is on parole until January 2022. As a consequence of his conviction, he cannot work in the health sector or government, and he has been trying to get other work. He does not intend to work as a nurse, because of his conviction. While on remand he could not do any courses, but read the Bible. Once he was in Long Bay he was able to work and study for a forklift licence; and he saw a psychologist and did a Real Understanding of Self-Help (RUSH) program. He sees his parole officer every month, and has seen a community services psychologist since being paroled. He made the decision to tell someone about what happened because he wanted to move forward from this. His wife is supporting him in every way and he wants the family to come together. 3. In cross-examination, the practitioner stated that he stopped having sexual intercourse with Person A in early 2015 because he realised he should not continue. He had sex with Person A while his wife was at work. When Person A was pregnant, they decided to tell her family it was a boy at school. He told the police the offences had happened when he was having work stresses, because he was working a lot of shifts. The practitioner was taken to the report of Dr Allnutt, forensic psychiatrist, who had assessed him before sentencing (ex A1, tab 16), and agreed that he had told Dr Allnutt that he had told his wife about the sexual intercourse in June 2015 after he had a panic attack in April 2015. That occurred when he was on a train from Sydney, he had gone to the hospital and been checked for a heart attack. He decided to tell his wife because he needed to be honest with her. The practitioner was asked about courses he had undertaken while in custody, and agreed that the RUSH program is not a sex offender program, but a self-help program to assist with reintegration after custody. His visits to the psychologist since he was paroled depend on the psychologist's availability, and he has seen the psychologist for about three hours. 4. The practitioner stated that the offences were a one off and it would never happen again, and that is why he reported it. The practitioner agreed that Person A had trusted him and she was in his care and had no other family locally. The practitioner agreed that he had failed to comply with his obligations under the Code of Conduct and is not a suitable person anymore to be a nurse, and he cannot work with children anymore. He has learned from his mistakes and knows his limitations. Discussion and findings 1. The complaints are brought under s 144 of the National Law, which relevantly provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. … (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 1. The onus or burden of proof is that of the HCCC. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). Due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, the standard of proof is the civil standard on the balance of probabilities. In Forster v Hunter New England Area Health Service [2010] NSWCA 106 Macfarlan JA (with whom McColl JA and Sackville AJA agreed) held: 22. In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid). 23. Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2). 1. The reference to Briginshaw is to the following passage in the judgment of Dixon J ((1938) 60 CLR 336 at 362): But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences. 1. In Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126]-[127] Leeming JA (with whom Basten and Gleeson JJA agreed), quoting Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, stated the approach to fact finding for a tribunal in which the rules of evidence are not binding: "[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove…. …neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT. 1. While the practitioner did not dispute the facts particularised in the complaints, he did not admit to the complaints in writing and the Tribunal must determine whether the complaints are established. Complaint 1 1. The Tribunal finds, based on the District Court records in evidence (ex A1, tab 20), that on 26 July 2016 the practitioner was convicted on three charges of Aggravated sexual assault – victim under the age of 16 years (DV) under s 61J(1) Crimes Act 1900. Complaint 1 is proven. Complaint 2 1. Complaint 2 is that the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 2. The term "not suitable" in s 144(e) is not defined. That is to "…ensure that bodies such as this Tribunal and the Boards charged with the important responsibility of ensuring high standards are maintained in registered professions are able to consider each case on its individual merits": Health Care Complaints Commission v Bosanquet [2012] NSWDT 2 at [103]. The approach to be adopted in considering s 144(e) was discussed in Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 in the following terms: 27. The expression "not a suitable person to hold registration" is not defined by the National Law. Section 55 of the National Law provides some guidance as to its meaning. Headed "Unsuitability to hold general registration", s 55 of the National Law states that a National Board may decide that an individual is not a suitable person to hold general registration, if, among other things: … (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (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. 28. The meaning of the expression "not a suitable person to hold registration" in s 144(e) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 (Brush) at [72]- [73]: [I]n considering whether [the practitioner] "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 take 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). 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. 29. That interpretation was cited with approval by the Tribunal (A/J Boland presiding) in Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 at [116]-[118] and by the Court of Criminal Appeal (Hoeben CJ, Johnson J and Latham J) in Jung v R [2017] NSWCCA 24 at [56]. 30. Section 144 of the National Law states: The following complaints may be made about a registered health practitioner: (a) A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) A complaint the practitioner is not competent to practise the practitioner's profession. (d) A complaint the practitioner has an impairment. (e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. (Emphasis added.) 31. We accept, as was argued on behalf of Mr Elshaimy, that having regard to the text and context, the expression "is otherwise not a suitable person" in s 114(e) should be interpreted as being a reference to the matters listed in the preceding four paragraphs. Adopting that approach, it falls to the Commission to establish that Mr Elshaimy is not a suitable person to hold registration in the profession of oral health therapy on grounds other than those listed in paragraphs (a) to (d) of s 144 of the National Law. The fact of his conviction is not relevant to the assessment of whether Mr Elshaimy "is otherwise not a suitable person". Nonetheless, the offending conduct which gave rise to that conduct remains relevant to that assessment. 1. In Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 the Tribunal held: 60. … On a plain reading, the words "or otherwise" must denote something other than the types of conduct or circumstances set out in s 144(a) to (d). We agree that the admissions of the criminal offences themselves are only relevant to s 144(a), and that the admission of unsatisfactory professional conduct is only relevant to s 144(b). However, it appears to us that s 144(e) may be established on evidence of the underlying conduct that led to the criminal charges and convictions. The factual circumstances of events which ground a criminal conviction or finding may, depending on their gravity, if established to the requisite standard, constitute a separate and distinct complaint to the admitted complaints brought under s 144(a) and (b). In other words, those circumstances, of themselves, may otherwise render a practitioner unsuitable for registration. 1. In considering whether complaint 2 is established, the Tribunal has had regard to the underlying circumstances of the offending conduct that led to the charges and convictions, and the admitted conduct on other occasions taken into account in the Form 1 offences. 2. The practitioner has accepted that the Agreed Statement of Facts (ex A1, tab 15) is accurate. That confirms, and the Tribunal finds, that the sexual intercourse which included penile-vaginal intercourse and oral sex occurred on several occasions from June 2014, when Person A was aged 13, to January 2015, while the practitioner's wife was at work. The practitioner was unable to recall exactly the number of times he engaged in sexual intercourse with Person A: however, that it was on more occasions than those that formed the subject of the charges on which he was convicted is reflected in the Form 1 offences taken into account in sentencing. The sexual intercourse continued after Person A returned to the practitioner's care after having had an abortion. The Tribunal finds, based on his evidence, that the practitioner did not disclose to Person A's family or to his wife that he was the person responsible for the pregnancy, instead blaming someone at her school, and that the sexual intercourse only ceased when the practitioner's wife went on maternity leave from work, and the wife's mother moved in to the family home. 3. In oral evidence the practitioner accepted that Person A had trusted him, and that she was in his care. The Tribunal concludes that the practitioner's conduct constitutes an abuse of his position of authority, and an abuse of the trust that Person A and her family placed in him. The practitioner took advantage of the situation, and the offending only stopped once other adults, namely his wife and mother in law, were present. He lied to his and Person A's family about the circumstances of Person A's pregnancy. That conduct was contrary to the expectations reflected in the Code of Professional Conduct for Nurses in Australia in Conduct Statements 8 and 9 that nurses take reasonable measures to establish a sense of trust in people receiving care and that vulnerable people including children are protected from sexual exploitation and physical harm, and further that unlawful and unethical actions in a nurse's personal life risks adversely affecting their personal and the profession's good reputation. 4. The Tribunal finds that the practitioner's conduct means that he is not a suitable person to hold registration as a nurse. Complaint 2 is proven. What protective orders should be made 1. Section 149C of the National Law relevantly provides the orders that may be made: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. … (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. The term "health services" as used in s 149C(5) is defined in s 5 of the National Law as follows: health service includes the following services, whether provided as public or private services— (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services. 1. The power to make any of the orders specified in s 149C is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held: 20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards. 1. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a), to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s 3A. 2. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: 35. 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 of 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 practise, 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. In considering whether the orders sought by the HCCC under s 149C(1), (5) and (7) of the National Law should be made, the Tribunal has had regard to the seriousness of the practitioner's conduct and what it says about his character and professional integrity; whether he has demonstrated any insight into the seriousness of his conduct and what steps he has taken to ensure that it will not be repeated; and whether there is any objective evidence as to the risk he may pose if registered, or if permitted to provide health services as defined in s 5 of the National Law. 2. The practitioner's conduct was serious, manifesting an abuse of the position of trust in which he was placed while his underage close relative was under his care. That conduct was completely incompatible with the high expectations as to lawful and ethical conduct both in the personal and professional life of a registered health practitioner. 3. The Tribunal accepts, as did the court, that the practitioner disclosed the offending. In his oral evidence to the Tribunal, the practitioner expressed remorse. However, the practitioner stated that he had decided to tell someone about what happened because he wanted to move forward from it, and he wants the family to come together; he did not tell Person A's mother the truth about Person A's pregnancy because of fear of what would happen; and he told his wife after the panic attack in April 2015 because he knew he had to tell someone. There was no indication in that evidence that the practitioner has any insight into the consequences of the offending for Person A's emotional or physical health, rather his concern is for himself and his family. There is no indication that the RUSH course, or consultations with the psychologist since being paroled, have helped the practitioner gain any insight into the seriousness of the conduct, his comment being that he has learned he needs to go back to a normal family life, and be truthful. 4. As to the potential risk posed by the practitioner, the Tribunal has had regard to the report by Dr Allnutt, who noted a background of childhood trauma of sexual abuse, and that the practitioner blamed work life stress as a reason for the offending. Dr Allnutt concluded that the practitioner had a low risk of future sexual recidivism, however recommended that he pursue sexual offender rehabilitation such as the CUBIT (Custody-Based Intensive Treatment) program if incarcerated or Forensic Psychological Services if in the community. The practitioner did not participate in sexual offender rehabilitation while in custody, and his efforts since then appear to have been directed to resuming his family life. 5. The Tribunal cannot be confident that the practitioner has sufficient insight into the seriousness of his conduct or has taken steps to demonstrate that he has reflected on his ethical and professional obligations. The Tribunal is satisfied that the purpose of protecting the public from the risk of future misconduct by the practitioner, and deterring similar misconduct of other practitioners, and upholding public confidence in the standards of the profession, can only be served by cancellation of the practitioner's registration. 6. The HCCC submits that a period of six years is required before the practitioner should be able to seek re-registration, starting with the period remaining on parole and continuing for a further three years as a reasonable period in which the practitioner can receive further psychological treatment beyond a period which he may be required to do so by his parole officer, and provide sufficient distance from the offences so as not to undermine public confidence in the profession. 7. In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA noted at [22] that the fixing of a period within which re-registration may not be sought has a twofold operation: it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession, while holding open the possibility that an application for re-registration thereafter will at least be considered. At [88] Payne JA held: The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order. 1. The Tribunal is satisfied that a period before re-registration can be sought is required, for the reasons given in Chen. The Tribunal agrees with the HCCC that the further period remaining under the head sentence must be taken into account in determining what that period should be. The parole conditions require the practitioner to "obey all reasonable directions" of his parole officer (ex A1, tab 22), and he has stated that he would do so. The Tribunal expects that if directed to undertake further courses or counselling, the practitioner would do so, however a period beyond supervision on parole is, as submitted by the HCCC, required for the practitioner to demonstrate that he has independently undertaken steps to minimise repetition of the conduct. The Tribunal considers that a period of five years from the date of these orders would meet those aims, and the objective of maintaining public confidence in the profession. 2. The Tribunal agrees with the HCCC that an order under s 149C(5) is warranted. The court found that the practitioner had good prospects of rehabilitation and was unlikely to re-offend (ex A 1, tab 19), and Dr Allnutt considered he was at low risk of future sexual recidivism. However, taking into account the breach of trust manifested in the conduct and the absence of any real insight into that conduct, the abuse of a position of authority for a child in his care, and the seriousness of potential harm that might arise if the practitioner were permitted to engage in provision of health services such as community health services, the Tribunal finds that the practitioner poses a substantial risk to the health of members of the public. For that reason, the Tribunal considers that an order prohibiting the practitioner from providing health services until such time as he can demonstrate the reformation of character required to be granted a re-instatement order so that he can be re-registered as a nurse is warranted. Costs 1. The HCCC seeks an order that the practitioner pay its costs of the proceedings. Clause 13 of Sch 5D of the National Law enables the Tribunal to make an order for payment of costs. The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282: 85. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".) 1. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. There is no disentitling conduct as on the part of the HCCC in its conduct of the proceedings. It is appropriate to order that the practitioner pay the costs of the HCCC. Non-publication order 1. The practitioner sought an order that the decision not be published, and that his name not be published. He comes from a small community and if there is publication, his wife will be affected in her employment. 2. The HCCC opposed the application, on the basis of the principle of open justice. There needs to be exceptional circumstances to make such an order. The primary concern is that information that might lead to the identification of Person A not be published. 3. Clause 7 of Schedule 5D 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)— (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published— (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the person presiding. … (4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (5) A person who contravenes a direction given under this clause is guilty of an offence. Maximum penalty— (a) in the case of a corporation, 150 penalty units; or (b) in any other case, 20 penalty units. 1. As discussed in Health Care Complaints Commission v Dr DWF [2019] NSWCATOD 78, exceptional circumstances are required to be established to depart from the principles of open justice normally applicable in health practitioner disciplinary proceedings. Disciplinary proceedings have as their ultimate purpose the protection of the public. As noted in Dr DWF at [75], the public and other members of the profession have an interest in knowing of such proceedings and their outcome, as well as the process involved and the standards applied; and that is particularly relevant in terms of the evidence necessary before any re-instatement applications are considered. In Dr DWF, the Tribunal had medical and psychiatric evidence of the impact on the practitioner and his wife, and was satisfied that when that evidence, together with the circumstances as to the publicity surrounding the criminal proceedings against him, was considered there were exceptional circumstances sufficient to depart from the principles of open justice. 2. There is no such evidence in this matter. The Tribunal accepts that the practitioner comes from a small community, and that there is a risk that publication of some of the detail of the complaints could identify Person A. The Tribunal did not consider it appropriate to make an order preventing publication of the decision, or the name of the practitioner; however, the terms of the order made on 12 April 2019 were varied to extend to publication of any particulars that might identify Person A. Orders 1. The Tribunal orders: 1. The Respondent's registration as a nurse is cancelled from the date of this decision. 2. The Respondent is not to make any application for review of the cancellation of his registration for a period of five years from the date of this decision. 3. The Respondent is not permitted to provide any health services unless and until such time as he is registered as a Registered Nurse. 4. The Respondent is to pay the costs of the Health Care Complaints Commission, as agreed or assessed. ********** 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: 23 October 2019