Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Kauser [2020] NSWCATOD 42 Hearing dates: On the papers Date of orders: 27 April 2020 Decision date: 27 April 2020 Jurisdiction: Occupational Division Before: O Shub, Senior Member B Clarke, Senior Member Dr S Schulz-Robinson, Senior Member R Leontini, General Member Decision: (1) The Respondent having been found guilty on a criminal charge of theft and larceny, is guilty of professional misconduct. (2) The Respondent is guilty of unsatisfactory professional conduct and professional misconduct in respect of the actions perpetrated by her. (3) Consequent upon the finding that the Respondent is guilty of professional misconduct, under s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), if the practitioner was still registered as a nurse the Tribunal would have cancelled her registration. (4) Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the Tribunal requires the National Board to record the fact that had the Respondent been registered the Tribunal would have cancelled the Respondent's registration for a period of 30 months from the date of this decision. (5) The Respondent shall not be entitled to apply for registration as a nurse for a period of 30 months from the date of this decision. (6) The Respondent be subject to a prohibition order which will prevent her from providing the following health services on a public, private or volunteer basis until she is registered as a nurse: (a) medical, hospital, nursing or midwifery services; (b) mental community health services; (c) health education services. (7) The Respondent shall pay the costs of the Applicant as assessed or agreed. Catchwords: PROFESSIONS AND TRADES – non registered nurse – criminal charge and conviction against nurse – theft and larceny Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes Act 1900 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 6 SR (NSW) 448, 461 Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Bakarich [2019] NSWCATOD 158 Health Care Complaints Commission v Cakan [2018] NSWCATOD 5 Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 Health Care Complaints Commission v DAC [2017] NSWCATOD 98 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Hanna [2018] NSWCATOD 113 Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151 Health Care Complaints Commission v King [2013] NSWMT 9 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 Health Care Complaints Commission v Moslemi [2020] NSWCATOD 2 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Shrimpton (No.2) [2019] NSWCATOD 48 Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 Health Care Complaints Commission v Skandaliaris [2018] NSWCATOD 199 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lindsay v Health Care Complaints Commission [2005] NSWCA 356 Prakash v Health Care Complaints Commission [2006] NSW CA 153 Re Dr Parajuli [2010] NSWMT 3 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Saville v Health Care Complaints Commission [2006] NSWCA 298 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Saeeda Kauser (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self Represented) File Number(s): 2019/00318500 Publication restriction: The names of Patient A, Patient B and Patient C are suppressed and may not be published. This decision has been amended. REASONS FOR DECISION 1. In 2009, the Practitioner completed an Advanced Diploma in Nursing, University of Leeds, United Kingdom. The Practitioner was first registered as a nurse in New South Wales in December 2011. The Practitioner worked as the Director of Nursing at Warringah Day Surgery from May 2016 until September 2017. From October 2017 until 19 March 2018, the Practitioner was employed as the Director of Nursing at the Sydney Skin and Vein Clinic in Chatswood ("the Clinic"). The Practitioner's employment at the Clinic was terminated on 19 March 2018. 2. A complaint was referred to the Tribunal in respect of various offences by the Respondent which are listed below. The Respondent being a Nurse previously registered under the Health Practitioner Regulation National Law (NSW) (National Law): COMPLAINT ONE … has been convicted of a criminal offence in New South Wales. PARTICULARS OF COMPLAINT ONE 1. On 13 November 2018, at Hornsby Local Court, the practitioner was convicted of: a. Dishonestly obtain property by deception under section 192E(1)(a) of the Crimes Act (NSW) in that between 12:01am and 11:59pm on 8 March 2018 at Forestville the practitioner did, by deception, provide Westpac credit card details online and dishonestly obtained property to the value of $10,746.71 by using a credit card belonging to Patient A. b. Dishonestly obtain property by deception under section 192E(1)(a) of the Crimes Act (NSW) in that between 12:01am and 11:59pm on 22 February 2018 at Brookvale did, by deception, provide Westpac credit card details online and dishonestly obtained property to the value of $25,327.97 by using a credit card belonging to Patient B; c. Dishonestly obtain property by deception under section 192E(1)(a) of the Crimes Act (NSW) in that between 12:01am and 11:59pm on 13 March 2018 at Forestville did, by deception, provide Westpac credit card details over the phone and dishonestly attempted to obtain life coaching sessions from "The Coaching Room" to the value of $3,135.00 using a credit card belonging to Patient C. 2. The practitioner was sentenced to an aggregate term of imprisonment of seven months to commence on 13 November 2018 and expiring on 12 June 2019. The court ordered that the term of imprisonment is to be served by way of an intensive correction in the community in the accordance with the Crimes (Administration of Sentences) Act 1999. The practitioner was also ordered to pay compensation of $230.00 payable to Patient A and $36,074.68 payable to Westpac Banking Corporation. Patient A 3. On 8 March 2018, Patient A attended the Clinic to undergo day surgery. The practitioner prepared Patient A for her surgery. 4. Whilst being prepared for surgery, Patient A went to use the toilet leaving her handbag unattended with the practitioner. The practitioner took $230.00 cash from Patient A's handbag without her permission and took a photo of Patient A's credit card on the practitioner's personal mobile phone. 5. The practitioner conducted 14 x successful online fraudulent transactions and 6 x unsuccessful fraudulent transactions totalling $12,126.07 between 8 March 2018 and 14 March 2018 using Patient A's Westpac Bank Visa Credit Card. Patient B 6. On 22 February 2018, Patient B attended the Clinic to undergo day surgery. The practitioner prepared Patient B for her surgery. 7. Whilst preparing Patient B for surgery, the practitioner requested Patient B place her personal belongings including a black purse and clothing into a trolley which the practitioner wheeled out of the room. 8. After her surgery Patient B took possession of her belongings and left the clinic. 9. On 8 March 2018, Patient B became aware that her Westpac Bank visa credit card was no longer inside her black purse as it normally was. Patient B accessed her Westpac Bank visa credit card account online which showed 55 x separate fraudulent transactions and 1 x unsuccessful fraudulent transaction amounting to $25,328.37. The first of these fraudulent transactions was on 22 February 2018 which was the day of Patient B's surgery. 10. On 10 March 2018, Patient B attended Narromine Police Station to report the 56 x fraudulent transactions on her credit card account. 11. On 15 March 2018, Patient B contacted the Clinic and left a message that she thought her credit card had been stolen during her surgery. That same day, the practitioner returned Patient B's call. The practitioner requested Patient B provide her with the police case number, the name of the investigating officer and the police station where she had reported the incident. Patient B did not provide correct details to the practitioner. 12. On 15 March 2018, the practitioner contacted Narromine Police Station, identifying herself as Patient B. The practitioner said words to the effect, "I found out my step-son had stolen the card from me, we will punish him accordingly. I do not want any formal action taken in relation to my step-son". The practitioner was not able to provide the correct case number to the police when requested. 13. Call charge records obtained from the practitioner's phone show her personal mobile number telephoned Narromine Police Station on 15 March 2018. 14. On 15 March 2018, the practitioner contacted the Westpac Bank Fraud hotline. She identified herself as Patient B and requested information about a fraud upon her credit card. The practitioner was unable to answer the questions asked by the Westpac Bank and was advised the Bank could not assist her over the phone. 15. Call charge records obtained from the practitioner's phone show her personal mobile number telephoned Westpac Bank Fraud hotline on 15 March 2018. Patient C 16. On 12 March 2018, Patient C attended the Clinic to undergo day surgery. Before her surgery a staff member took Patient C's belongings out of the surgical theatre and into the recovery room. 17. Whilst Patient C was having surgery, the practitioner accessed Patient C's handbag taking her National Australia Bank credit card number. 18. On 13 March 2018, Patient C discovered her National Australia Bank credit card was no longer in her wallet. 19. The practitioner made 1 x fraudulent transaction and was unsuccessful in a second fraudulent transaction totalling $3,138.50 on 13 March 2018 using Patient C's credit card. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B1)(b) and (l) of the National Law in that she contravened section 130(1) of the National Law and/or engaged in improper or unethical conduct relating to the practice or purported practice of nursing. PARTICULARS OF COMPLAINT TWO 1. The Practitioner failed to notify the National Board that she had been charged before a New South Wales Court with an offence punishable by 12 months' imprisonment or more within seven days of becoming aware of the fact on 27 April 2018 with the offences of: a. 78 counts of Dishonestly obtain property by deception under section 192E(1)(a) of the Crimes Act (NSW); b. 2 counts of Larceny under section 117 of the Crimes Act (NSW). 2. The Practitioner failed to notify the National Board that she had been convicted before a New South Wales Court with an offence punishable by 12 months' imprisonment or more within seven days of becoming aware of the fact on 13 November 2018 with the offences of: a. Dishonestly obtain property by deception under section 192E(1)(a) of the Crimes Act (NSW); b. Dishonestly obtain property by deception under section 192E(1)(a) of the Crimes Act (NSW); c. Dishonestly obtain property by deception under section 192E(1)(a) of the Crimes Act (NSW). COMPLAINT THREE is guilty of professional misconduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. PARTICULARS OF COMPLAINT THREE On 4 April 2018 at a section 150 hearing convened by the Nursing and Midwifery Council of NSW ("the Council") the practitioner misled the Council delegates in that she denied having any knowledge of or involvement in the theft of Patients A and B's cash and credit cards despite being directly responsible for the thefts. COMPLAINT FOUR is guilty of professional misconduct under section 139 of the National Law in that the practitioner has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT FOUR 1. Complaints One to Three and the particulars thereof are repeated and relied upon both individually and cumulatively. NATURE OF THE JURISDICTION 1. The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and to maintain proper standards in the profession of nursing and midwifery. 2. In Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 at 201‑202, the High Court said: "Although it is sometimes referred to as the penalty of disbarment it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view for the protection of those who require protection and from the professional point of view in order that abuse of privilege may not lead to loss of privilege." 1. As observed by Beston JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." 1. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to section 3A of the National Law. DECISION ON THE PAPERS 1. The matter came before a directions hearing at which time it was ordered that the hearing in this matter is dispensed with and that the matter will be determined by the Tribunal based upon the written submissions and other material lodged with and provided to the Tribunal. 2. The Tribunal had available to it a volume of documents served by the Health Care Complaints Commission which shall be accepted as Exhibit 1. 3. The documents provided to the Tribunal included statements of various witnesses which will be accepted by the Tribunal as the evidence of the relevant parties. 4. The Respondent has provided a letter to the Tribunal dated 15 October 2019 in which she states the following: "I discussed the following with HCCC's legal representative, Lucy Cannon, on 3 October 2019. I admit the complaint made against me by the HCCC. I have made some very bad decision and fully accept the consequences of my actions. I will accept any decision made by the Tribunal in my absence. Losing my nursing salary and having a criminal record has limited my employment opportunities. I am currently working as an administrative assistance, this and the already outstanding debt sees me in severe financial hardship. I explained to Lucy that I cannot afford to pay for any court fees as I am already in a lot of debt and struggling to keep my head above water with current expenses. During my criminal court proceedings I was assessed by a forensic psychologist who diagnosed me to be suffering from a mental condition, persistent depressive disorder (dysthymia). This was a shock for me to hear that I had been suffering from this most of my life and I didn't even know it. I started seeking treatment from a psychologist in July 2018 and continued to do under the Medicare Mental Health Care Plan. As far as I was aware I complied with all correspondence from the NMC, HCCC and AHPRA. I do apologise if I failed to do this. There was a lot going on for me during that time and I couldn't keep track of all the different correspondence from the different regulatory bodies. I chose to remove myself from the Nursing Register as I no longer wanted to practice as a nurse in any country. This has been a very big wakeup call and I am doing my best to rebuild my life from what I have left." THE ISSUES 1. In essence, therefore, the only real issues for the Tribunal are whether or not the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law, guilty of unsatisfactory professional conduct under section 139(1)(b) and (l) of the National Law and guilty of professional misconduct under section 139E of the National Law, and if so, what orders should be made in respect of those breaches. EVIDENCE OF PATIENT B 1. Patient B provided the investigating police with a statement in which she stated that she and her husband share a joint credit card account with Westpac. Associated with this account were two credit cards, one was in the possession of her husband and the other kept by her. She kept her card in the front pouch pocket of her black purse along with other miscellaneous cards. 2. At about 7:00am on 22 February 2018, Patient B's husband and Patient B attended the Sydney Skin and Vein Clinic where she was to undergo general surgery. 3. Prior to undergoing surgery she was introduced to a nurse, by the name of Saeeda Kauser (the Respondent) whose purpose was to prepare her for the operation. She requested Patient B's health card and Patient B pulled out all of her cards from the front pouch pocket of her black purse and provided her the number required. The Respondent requested that she place all her belongings into a trolley while she was seated in the pre‑theatre room. She placed her black purse and clothing into the trolley and recalls the Respondent wheeling the trolley out of the room while she remained in the room. 4. At about 11:30am, her surgery was complete and she noticed the trolley was next to her outside the theatre room in the recovery area. She took possession of her belongings and left the clinic along with her husband. 5. On 8 March 2018, Patient B's husband received a text message from Westpac advising of possible fraudulent activity on the Westpac credit card. She checked her black purse and noticed that the Westpac credit card was now missing. 6. She and her husband accessed the credit card online and noted that 55 fraudulent transactions that they had not made amounting to $23,271.72 appeared on the account. Patient B noticed a fraudulent transaction occurring on 22 February 2018 at the Immaun Thai Restaurant which is located in the same building as the Sydney Skin and Vein Clinic. 7. On 10 March 2018, Patient B attended the Narromine Police Station to report the incident, completed a fraud assessment sheet and provided it to the police. They provided her with a report. 8. On 15 March 2018, she contacted the clinic and spoke to the administration manager regarding the fraud. She suggested that the surgery room may be compromised. She was ready to transfer the call to the Respondent but Patient B indicated that she did not want to speak to the Respondent as she suspected that she may in fact be the person who was using the card. 9. At 9:48am on 15 March 2018, Patient B received a phone call from the Respondent. The Respondent requested the case file number, the name of the investigating officer and the station that it belonged to. Patient B provided the Respondent with the Westpac fraud case number, the name of the officer she had reported the matter to and the police station that he belonged to. 10. On 16 March 2018, Patient B contacted Surry Hills Police where she was informed that the investigation was being transferred. They indicated to her that the investigation had been closed after they received a call from her at 10:00am on 15 March 2018 stating that the card was used by her stepson and that she didn't wish to progress the matter. Patient B stated that she never made this call and didn't even have a stepson. 11. Patient B contacted Sydney Skin and Vein Clinic and spoke to Professor Kurosh Parsi, who is a phlebologist at the clinic. She spoke to him about the call to Narromine Police Station that was allegedly made by her. She told him about some of the fraudulent transactions that had been made such as executive training at the V Coaching Room and a gym membership at F45 Killarney Heights. He told Patient B that the Respondent had in fact spoken about purchasing those exact items. 12. One of the fraudulent transactions that occurred on the account was made at Doterra for approximately $337.95 which sells essential oils. Patient B contacted Doterra over the phone and they provided her with a receipt of the transaction via email. The receipt indicated that the goods were being sent to a person by the name of Saeeda Kauser at 2A Ryrie Avenue, Forestville NSW. There was a phone number attached to the receipt. Patient B made a supplementary statement in which she complained about the manner in which she was treated by the Respondent and in addition supplemented the fact that during the course of the investigation of her complaint to the police, she was trying to assist by following up on her visa statement and the merchants who had provided services on her credit card and learnt through one of the merchants that someone who identified as the Respondent had also tried to use another woman's card in addition to hers. Patient B notified the police and they have confirmed that there is a second victim. STATEMENT OF PATIENT A 1. Patient A indicated that on Thursday 1 March 2018 she sought treatment at the Sydney Vein and Skin Clinic in Chatswood. She was to be treated by Professor Parsi who owns the clinic. For the procedure she was required to be sedated and as such she was administered Midazolam. She stated that she was treated by three nurses, one of which was the Respondent. 2. Prior to surgery she put on a surgery gown, was given a bag to put her property into, and her understanding and experience is that whilst you are having surgery your property remains with you at all times. 3. On Thursday 8 March 2018, she sought a second treatment at the Sydney Vein and Skin Clinic in Chatswood. She was again to be treated by Professor Parsi. Again she was required to be sedated and the same pre‑surgeries were carried out by the nurses. Prior to being sedated, she was sitting on a lounge and asked the nurse, who she believes to be the Respondent, when to take her oral sedative. The nurse indicated that she should go to the toilet first and accordingly she left her property on the trolley. Her handbag was not inside the property bag that she was given as that was already full of other things. She recalls her handbag was hung over the trolley handle. She also had various things out of her bag at the time – a Kindle, glasses and some other things. She left her property there and walked the 3‑4 metres to a toilet room. 4. The Respondent stood holding the oral sedative next to the lounge and the trolley where her property was being stored whilst she left for the toilet. She returned to the holding area and the Respondent handed her the oral sedative which she drank. 5. After the procedure, Patient A was taken back to the recovery area along with the trolley containing her property. She then left the clinic. 6. In the evening of Thursday 8 March, she was feeling low, was in agony and went upstairs to rest and change her leg stockings. She unpacked her handbag while she was there. She opened her handbag and noticed that the internal zipper was open. She thought it strange as she never leaves that zipper open. 7. She went to put her Opal card back in her wallet which was inside her handbag and noticed that something looked wrong in her wallet. She saw that there was money missing from the wallet. She has two sides to her wallet and keeps different amounts of money on either side. One side was $50.00 emergency money and the other side has her hairdressing money which at the time was a $100.00 note. She also had other notes. All the notes from both sides were missing but the $100.00 note in the middle of the wallet was still there. She also noted when going to take her phone out of her bag that a post‑it note on which the clinic's wifi code had been written and provided to her earlier that day was missing. She discussed the missing money with her husband who indicated that she should call Professor Parsi. She stated that she was reluctant to do so as she didn't want to falsely accuse anybody or cause a fuss. 8. At 5:46pm, she texted Professor Parsi on the emergency number that he had provided her in case she needed to speak with him. She texted stating: "Dr Parsi, this is not an emergency just to inform you I will be ringing your practice manager tomorrow re approximately $200.00 taken from wallet and phone today while I was having my procedure." 1. The following morning she received a text from Dr Parsi which read: "That is very bizarre. Thank you for letting me know." 1. At about 10:35am, she received a phone call from a woman who said that she was Dr Parsi's senior nurse and asked her to tell her what had happened. A conversation ensued as to what had happened on that day with the caller indicating that the nurses were very insulted and asking her questions about where she may have been that day. 2. At the end of that conversation, Patient A reports, "I felt as though I was being made out to be crazy and felt that way. I now know that that telephone conversation was with the Respondent". 1. On or around 12 or 13 March 2018, she received a phone call from her husband. She was at work and he asked her about a $3,000.00 payment on their card for a coaching clinic in Sydney. She stated, "I didn't know anything about a coaching clinic. I looked in my wallet and could see that my credit card was still in my wallet. At the same time I was looking at a message sent to me by Westpac about a suspicious amount on my credit card. My husband rang the bank and went through our bank statement. There were about 19 transactions on my credit card which were not made by me. The total amount of the items that had been charged to my credit card of which I knew nothing was $9,022.00." 1. Patient A stated that she had a further treatment at the clinic on 19 March 2018 and after the treatment, Dr Parsi asked her and her husband to come into his office. They both went into this office and were joined by the office manager. Dr Parsi stated that "another lady has contacted him regarding a stolen credit card". He went on to tell Patient A that he had confronted the Respondent that morning and that she had denied stealing anybody's property. He then stated that they had let her go. STATEMENT OF PATIENT C 1. Patient C stated that on Thursday 1 March 2018 she sought medical treatment at the Sydney Vein and Skin Clinic in Chatswood. As part of the medical procedure she was sedated. Like any other normal day surgery, she was given a surgical gown and a little shopping trolley bag to put her personal belongings into. She recalls that her bag and property was with her at all times until she was taken into the actual procedure room. She does not recall what happened to her property during the procedure but there was no issue with it. She returned home after this first procedure. 2. At about 11:30am on Monday 12 March 2018, she returned to the clinic for a second procedure. She went through the process of changing into a surgical gown and placing of her belongings into a trolley bag. Her procedure was carried out between 2:00pm and 3:00pm. It was about this time when she was in the surgical theatre that she distinctly recalls seeing one of the nurses pick her bag of property and take it into a room away from her. The nurse stated that she was putting her things in the recovery room where they would be quite safe. 3. On this visit to the clinic, she recalls putting her handbag which contained her wallet inside the little trolley bag. She placed her clothing items on top of her handbag inside the trolley bag. She paid for the procedure before the surgery and did not notice anything missing from her wallet at the time that she paid for the surgery on Monday 12 March 2018. She used her Everyday Westpac card to pay for the surgery. She stated that she had recently received a new NAB credit card which was also stored in her wallet. She received a new NAB credit card as the date on her old NAB card had expired. 4. On Tuesday 13 March 2018 at about 11:00am, the day after her second surgical procedure, she went to get out the NAB card from her wallet as she wanted to make sure that one of her subscriptions was updated with the new credit card details. She discovered that the NAB credit card was not in her wallet as it should have been. She telephoned her husband at work to see whether or not he had the card but he indicated that he did not. She searched all over her desk at home but could not find the NAB credit card. 5. At about 2:30pm the same day, her husband phoned to say that he had looked up online to see what transactions had been made on the missing credit card. He saw a transaction for $3.50 from a coffee shop located at 9 Help Street, Chatswood. The Two Seasons Café is located next to the Sydney Vein and Skin Clinic which is located at 7 Help Street, Chatswood. She later found out that the transaction was made at 7:28am on Tuesday 13 March 2018. She indicated to her husband that she had not purchased a coffee at all and her husband immediately blocked the card for her. 6. On 14 March 2018, she rang the NAB Bank and was told there had been two further attempts on her missing/stolen credit card since it had been blocked, one of which was for around $8.00 and another which was for over $3,000.00 to the Coaching Room. 7. She instructed the bank to cancel the card and to send her a replacement card. 8. On Monday 9 April 2018, she attended the Sydney Vein and Skin Clinic and had a further consultation with Dr Parsi. At the end of the consultation Dr Parsi told Patient C that the patient immediately after her on 1 March had had money stolen. Before he even finished Patient C advised him that she had had a credit card stolen. 9. There are supportive statements from members of the clinic and statements by the investigating officers as to the conduct of the investigation and the charges brought against the Respondent which led to her conviction. It is not necessary for the purposes of this decision to record all the detail of those statements as they all support the evidence of the three patients. 10. The matter went to hearing in the Local Court at Hornsby. RESPONDENT'S EVIDENCE 1. The Respondent provided no evidence other than her letter dated 15 October 2019 but has admitted guilt and the breaches made by her. CRIMINAL HEARING 1. The Respondent was charged with fraud and larceny and found guilty on Tuesday 13 November 2018 in the Local Court at Hornsby. In dealing with sentence, the Magistrate notes fraudulent use of credit cards belonging to Patients A, B and C and in addressing sentence he indicated that when confronted by her employer, she denied everything. She lied about that. When confronted by the disciplinary authorities, she lied and denied about that as well. Each of these transactions would have involved communicating with people and being deceptive about what she was doing, pretending to be the legitimate purchaser and just going ahead. He stated that there were, therefore, a lot of steps in this. Perhaps in relation to the first incident, there was no evidence of any long term planning but what she was going to embark upon, there is a degree of execution involved in it. He indicated that it was, in his view, very hard hearted to do this to somebody who is there vulnerable at the day surgery and then follow it up by pretending to be this person making a large series of transactions, each involving a deceptive activity, lying to her employer, and lying to the disciplinary oversight people as well. He noted the matter having ended up in court, she had entered very early pleas of guilty. There were some negotiations over the charging, the charges and some matters going on a Form 1 but he gave significant credit for that full acceptance of responsibility at that point and going forward up to this point. 2. He made reference to her difficult background, both in her family and in relationships, in England. He noted the report regarding depression and regarded her behaviour as almost self‑destructive. 3. Looking at the up to date report in particular, an ICO report was requested but seems to have come forward as a general assessment report. The court has flexibility now under the new sentencing legislation in regard to that option of ICO without a specific ICO report. In some ways, the Community Corrections have their own assessment tools. They have assessed her as a low risk of reoffending and certainly that is an issue which is always difficult to assess. The Magistrate stated: "No doubt as all the glowing references have and the background there, one would have thought you would not have been doing any of this, so one might have assessed you as before the events as highly unlikely to do this kind of activity but this does show that there is another side to [the Respondent] where you will carry out this kind of activity." 1. The Magistrate went on to say that the amounts involved in this case are not at the low end, perhaps in the moderate range for the totals involved and certainly there are a number of activities involved in the offending behaviour. So this is not an isolated one or two-off event but a whole series of events albeit over a two or three week period. The Magistrate noted the submissions made on the Respondent's behalf, so regarded it as probably mid‑range for offences of this kind and there were a number of positive aspects. He proposed to deal with the matters taking into account the matters on Form 1, the larceny aspects. In the end result, the Magistrate stated that he would deal with the matters by way of an aggregate sentence of seven months to be served by way of an intensive corrections order. The indicative sentence, sequence 1 six months, sequence 51 six months, sequence 78 one month. In addition to that there will be 100 hours of community service work as part of the intensive corrective orders. He also made orders as to compensation to repay the amount of $36,074.68 within 28 days to Westpac and the cash taken from her handbag, the amount of $230.00, 28 days to pay that amount to Patient A. APPLICANT'S SUBMISSIONS 1. The Applicant has set out the background to this matter which is recorded above in this decision and has addressed various relevant issues as follows: The relevant principles 1. Part 8 of the National Law deals with complaints concerning health practitioners. The relevant principles include: 1. The protection of public safety and health is paramount; 2. The Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; 3. Public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; 4. Deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; 5. Protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; 6. The Tribunal's jurisdiction is primarily protective, not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; 7. It is unavoidable that protective orders may be incidentally punitive: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31]; 8. The Commission bears the burden of proof on the Briginshaw standard, requiring reasonable satisfaction on the balance of probabilities, having regard for the gravity and importance of issues to be determined: Lindsay v Health Care Complaints Commission [2005] NSWCA 356; 9. The Tribunal is not bound by the rules of evidence: Section 38(2) Civil and Administrative Tribunal Act 2013 and clause 2 of Schedule 5D of the National Law; 10. The Tribunal is subject to rules of procedural fairness: Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [75]. Legislative Framework 1. Section 144 of the National Law relevantly provides that a complaint may be made that a registered health practitioner has been convicted of an offence. 2. Section 139B(1)(c) of the National Law relevantly provides that unsatisfactory professional conduct of a registered health practitioner includes a contravention by the practitioner (whether by act or omission) of a condition to which the practitioner's registration is subject. 3. Section 139B(1)(I) relevantly provides that unsatisfactory professional conduct of a registered health practitioner includes any other improper or unethical conduct relating to the practice of the practitioner's profession. 4. Section 139E relevantly provides that professional misconduct of a registered health practitioner means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 5. There are three steps for the Tribunal when considering the Complaint: 1. First, the Tribunal must consider whether, on the evidence, the subject matter of the complaint is proven. The practitioner's admissions are relevant. The Tribunal may exercise its powers if it finds the subject matter of the complaint to have been proved or if the practitioner admits to it in writing. 2. Second, the Tribunal must consider whether to make any protective orders; 3. Third, the Tribunal must consider whether to make a costs order. 1. The Commission seeks findings under section 149 of the National Law that the subject matter of the complaints is proven and that the practitioner is guilty of unsatisfactory professional conduct and professional misconduct. 2. A non-publication order regarding the identity of Patient A, B and C is appropriate. Complaint One – criminal convictions 1. Complaint One is that, pursuant to section 144(a) of the National Law, the practitioner has been convicted of a criminal offence in NSW, namely convictions on 13 November 2018 for dishonestly obtaining property by deception, namely stealing credit card details from three patients and obtaining property in excess of $35,000 and attempting to obtain property over $3,000. 2. On 13 November 2018, at Hornsby Local Court, the practitioner was convicted of: 1. Dishonestly obtain property by deception under section 192E(1)(a) of the Crimes Act (NSW) in that between 12:01am and 11:59pm on 8 March 2018 at Forestville the practitioner did, by deception, provide Westpac credit card details online and dishonestly obtained property to the value of $10,746.71 by using a credit card belonging to Patient A. 2. Dishonestly obtain property by deception under section 192E(1)(a) of the Crimes Act (NSW) in that between 12:01am and 11:59pm on 22 February 2018 at Brookvale did, by deception, provide Westpac credit card details online and dishonestly obtained property to the value of $25,327.97 by using a credit card belonging to Patient B; 3. Dishonestly obtain property by deception under section 192E(1)(a) of the Crimes Act (NSW) in that between 12:01am and 11:59pm on 13 March 2018 at Forestville did, by deception, provide Westpac credit card details over the phone and dishonestly attempted to obtain life coaching sessions from "The Coaching Room" to the value of $3,135.00 using a credit card belonging to Patient C. 1. Under section 149C(1)(c), the Commission submits that the circumstances of the offences render the practitioner unfit in the public interest to practise the profession of nursing because of the dealings with Patients A, B and C as set out in all the evidence. 2. The practitioner admits the complaint. Complaint Two — failure to notify the National Board of charge/conviction 1. Complaint Two is that, pursuant to section 139B(1)(b) and/or (I) of the National Law, the practitioner is guilty of unsatisfactory professional conduct because she contravened section 130(1) of the National Law and/or engaged in improper or unethical conduct by failing to promptly notify the National Board that she had been charged and by failing to promptly notify that she had been convicted. 2. Section 130 of the National Law includes two separate obligations, an obligation to notify within seven days of being charged and then another obligation to notify within seven days of a criminal conviction. 3. On 27 April 2018, the practitioner was charged by police with the offences of: 1. 78 counts of Dishonestly obtaining property by deception under section 192E(1)(a) of the Crimes Act (NSW); 2. 2 counts of Larceny under section 117 of the Crimes Act (NSW). 1. Dishonestly obtaining property by deception is a criminal offence punishable by ten years' imprisonment (section 192E of the Crimes Act 1900). Larceny is a criminal offence punishable by five years' imprisonment (section 117 of the Crimes Act 1900). The practitioner was required to notify the Nursing and Midwifery Board ("the National Board") seven days after she was charged (section 130(1) of the National Law). The practitioner did not notify the National Board of her charge within seven days. 2. On 13 November 2018, the practitioner was convicted. The practitioner was required to notify the National Board seven days after her criminal finding. The practitioner did not notify the National Board of her conviction within seven days. 3. The purpose of the notification requirement is to allow the National Board to consider the nature of the charges and determine whether any action is required to protect the health and safety of the public. 4. Contravention of section 130 of the National Law amounts to unsatisfactory professional conduct pursuant to section 139B(1)(b). The Tribunal has often found unsatisfactory professional conduct for contraventions of section 130 by health practitioners: For example, see Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25, Health Care Complaints Commission v Bakarich [2019] NSWCATOD 158, Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173. 5. The practitioner's letter to the Tribunal says that "As far as I was aware I complied with all correspondence from the NMC, HCCC and AHPRA. I do apologise if I failed to do this. There was a lot going on for me during that time and I couldn't keep track of all the different correspondence from the different regulatory bodies". That is irrelevant. Once a contravention of a provision of the National Law has been established as a matter of fact, section 139B(1)(b) designates that contravention as unsatisfactory professional conduct so the Tribunal has no discretion: Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [23]-[27]. 6. In the alternative, failing to promptly notify the National Board of her charges and convictions amounts to unsatisfactory professional conduct pursuant to section 139B(1)(b) as it is conduct which is improper or unethical because: 1. The Code of Conduct provides that it is important that nurses are aware of their obligations under the National Law, including reporting requirements under section 130, and inform AHPRA of charges and convictions; 2. A nurse must act ethically not just in relation to the clinical component of their work but also in respect to their wider obligations including compliance with the relevant laws and notification procedures relating to criminal charges and findings: Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151 [53]. 3. Failing to promptly notify the National Board of her charges and convictions is akin to failing to notify the National Board of changes to criminal history in a registration renewal form. Providing false information about criminal history on a renewal form has been found to be contrary to moral precepts and amount to improper and unethical conduct relating to the practice of nursing: Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 [28]-[42]. Providing false information about criminal history on a renewal form has been found to be contrary to the ethical obligations to be honest and candid with the nursing registration authorities about criminal history which may impact upon nursing work and is unethical conduct: Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151 [56]. 1. The practitioner admits the complaint. Complaint Three — misleading the section 150 delegates 1. Complaint Three is that, pursuant to section 139B(1)(I) of the National Law, the practitioner is guilty of unsatisfactory professional conduct because she engaged in improper or unethical conduct relating to the practice of nursing because she misled the section 150 delegates by denying any involvement in the thefts from Patient A and Patient B. 2. During the section 150 hearing on 4 April 2018, the practitioner was asked questions about only two patients (Patient A and Patient B). At the time of the section 150 hearing, the practitioner had not yet been charged by police. The evidence to establish that the practitioner denied having any knowledge of, or involvement in, the thefts of Patient A and Patient B's cash and credit cards is: 1. The transcript of the section 150 hearing on 4 April 2018. 1. The meaning of improper or unethical conduct relating to the practice of nursing has been considered in a recent Tribunal decision about a nurse who used a patient's credit card for her own personal use – Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [67]-[69]: The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as 1. Not "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrne [1995] 193 CLR 501 at 514-515: see Health Care Complaints Commission v Phung (No. 1) [2012] 1 NSWDT at 68. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s. 1398(1)(I) stating at paragraphs 47 to 49: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited. 1. It is well established that lies to the Council can constitute improper or unethical conduct: See Health Care Complaints Commission v DAC [2017] NSWCATOD 98 at [102] and [120], Health Care Complaints Commission v Cakan [2018] NSWCATOD 5 at [136] and Health Care Complaints Commission v Hanna [2018] NSWCATOD 113 at [104] (lying to the Council's section 150 delegates) and Health Care Complaints Commission v XC [2015] NSWCATOD 9 at [103] (lying to the Medical Board and the Council appointed expert) and Health Care Complaints Commission v Skandaliaris [2018] NSWCATOD 199 at [110] (lying to the Council) and Health Care Complaints Commission v Moslemi [2020] NSWCATOD 2 at [30] (lying to the Council). Concealing information from the Councils' can also constitute improper or unethical conduct. 2. The Commission submits that the practitioner's conduct was improper because: 1. The practitioner misled the section 150 delegates appointed by the Council, including two members of the nursing profession; 2. The purpose of section 150 hearings is to protect the health and safety of the public by providing a mechanism to ensure that nurses are safe to practice; 3. The practitioner was given information before the commencement of the hearing so she was aware of the nature of the allegations; 4. The practitioner was told by the Chairperson at the start of the section 150 hearing "it's important that you provide complete and accurate information to the committee." 5. When asked to give her own account, the practitioner said words to the effect that her boss told her on 19 March 2018 about the allegation she had stolen a patient's credit card and "I was shocked ...I profusely deny these allegation...I didn't understand why he was, why he was coming after me with no, no proof with – like there's nothing, I haven't been charged with anything...my employer is not a very nice person and he is looking for a scape goat for whatever allegations are coming forward from this patient''. 6. The Commission submits that the practitioner therefore completely denied any involvement in the thefts from Patient A and Patient B notwithstanding that she was directly responsible; 7. The practitioner also mentioned that after the first reported theft she suggested installing patient lockers and after the second reported theft she prepared an information sheet for patients about valuables; 8. The Commission submits that the practitioner deliberately mentioned those steps to make her denials more plausible; 9. The practitioner said "I didn't go into her bag" and mentioned all the other persons who were present, including the doctor, anaesthetist, nurses and observers; 10. The Commission submits that the practitioner mentioned those other persons to insinuate that another person could be responsible for the thefts; 11. The practitioner said that she had a telephone conversation with the patient about the missing cash and asked her "Is there anybody else that could have had access to your purse?" 12. The Commission submits that the practitioner mentioned that to suggest that the patient could have lost the cash somewhere outside the clinic; 13. The practitioner claimed that she could not remember the patient who later called about credit card details being used at the nearby Thai restaurant; 14. The Commission submits that the practitioner mentioned that to imply that there was nothing memorable about when that patient attended the clinic; 15. The Chairperson gave the practitioner a final opportunity to tell the delegates anything they needed to know and she said "I'm a good person ... I always take pride in being a good nurse,"; 16. The Commission submits that the practitioner had a final opportunity to be honest about her involvement in the thefts but instead chose to make further statements designed to avoid conditions being placed on her registration; 17. After listening to the practitioner's denials, the delegates were satisfied that conditions on registration were not necessary to protect the public at that time, when the practitioner was registered with a recruitment agency and looking for work as a nurse; 18. The Commission invites the Tribunal to draw the inference that the practitioner lied about her conduct to the delegates so she could continue to seek work as a nurse. 1. In addition, the Commission submits that the practitioner's conduct was unethical because: 1. The Code of Conduct states that positive professional relationships are built on effective communication that is respectful, kind, compassionate and honest; 2. The practitioner failed to give a full and frank account to her nursing peers appointed as section 150 delegates; 3. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities and uphold the highest standards of honesty and integrity in their dealings with those authorities: Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at [81]. 4. The practitioner's conduct demonstrated a disregard for the section 150 delegates and the role of the Council; 5. The practitioner's lack of candour was apparently motivated by a desire to avoid the consequences of her behaviour and is not in conformity with standards of professional conduct. See, similarly, Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [72]‑[74]. 1. The practitioner admits the complaint. Complaint Four — professional misconduct 1. Complaint Four is that, pursuant to section 139E of the National Law, the practitioner is guilty of professional misconduct because she has engaged in one or more instances of unsatisfactory professional conduct sufficiently serious to justify suspension or cancellation. 2. The evidence which establishes Complaint Four is the evidence which establishes Complaints Two and Three. The particulars thereof are relied upon individually or cumulatively. 3. The Tribunal has found that stealing from patients and dishonesty can amount to professional misconduct. 4. For example, in a recent decision, the Tribunal found professional misconduct and cancelled the registration of a nurse who used a patient's credit card for her own personal use then lied about it: Health Care Complaints Commission v Shrimpton (No.2) [2019] NSWCATOD 48 at [13]‑[14]. The Tribunal stated that such conduct "strikes at the very heart of the integrity and ethical candour that the public are entitled to expect of the nursing profession. There was an absence of propriety, honesty and integrity in her practice. The gravity of her conduct in using the credit card of a frail and elderly patient extends to the surrounding circumstances and the breach of trust it involved." The Tribunal then stated that the subsequent deliberate decision to mislead, after having time to reflect on this decision showed that the "moral culpability is high because of the significant departure from acceptable standards." 5. The Commission submits that stealing from patients, particularly from vulnerable sedated patients, is recognised by the community as abhorrent. 6. The Commission submits that the practitioner's conduct amounts to professional misconduct because she: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 1. The practitioner admits the complaint. Findings 1. The practitioner has been afforded ample opportunity to participate in the proceedings. The Commission served the complaint on 11 October 2019 and the practitioner responded to it by letter to the Tribunal on 15 October 2019 indicating that she does not wish to participate. The Commission served the Commission's material on 4 December 2019 and the affidavit of Ms Cannon confirms service. The Commission served the proposed protective orders on 10 February 2020 and the email chain annexed to these submissions confirms service. On 25 March 2020, directions were made to give each party the opportunity to make written submissions and for the matter to be determined on the papers. 2. The Commission submits that having regard to the evidence and the admissions, the Tribunal should find that each particular in the Complaint is made out, that the subject matter of the complaint is proven and make findings of unsatisfactory professional conduct and professional misconduct. Protective orders 1. The Commission submits that it is appropriate for the Tribunal to make: 1. An order under section 149C(4) that the practitioner's registration is cancelled; 2. An order under section 149C(7) that an application for review may not be made until after 2 years (the non-review period). 3. An order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs. 1. There are several factors which are relevant in considering the appropriate protective orders: 1. The extent to which the practitioner took advantage of vulnerable patients; 2. The extent to which the practitioner was dishonest; 3. The lack of evidence of insight. A. Taking advantage of vulnerable patients 1. The Commission submits that, notwithstanding her experience and training, the practitioner took advantage of vulnerable patients when she must have known that it was legally and morally wrong. B. Dishonesty 1. In addition to misleading the section 150 delegates, mentioned above, there is extensive evidence of dishonesty. 2. The practitioner was deceitful in her dealings with multiple vendors when she used the patients' credit card details and passed them off as genuine. The practitioner made a total of 77 fraudulent transactions over a lengthy period of time. Each of these transactions would have involved communicating with vendors and being deceptive by pretending to be the legitimate purchaser, supplying the credit card details and proceeding with each transaction. 3. The practitioner was deceitful in her dealings with patients when they raised their concerns. On 9 March 2018, the practitioner contacted Patient A about her concerns, tried to placate her by saying that her belongings are always kept with her during surgery, tried to discourage her making a complaint by saying "You've put me in a really bad position, I've had to ask the nurses if they took your money, you made me really uncomfortable and the nurses are really offended" and tried to deflect attention by saying "Where else have you been?"... "Maybe someone from your work took it" ..."I can guarantee that nobody from here has taken your money". On 15 March 2018, the practitioner telephoned Patient B about the concerns she had raised, did not mention her own involvement and, under the guise of writing a report for the clinic, instead requested details about the investigating police. On 15 March 2018, the practitioner contacted Patient B's bank and pretended to be Patient B. 4. The practitioner was deceitful in her dealings with her employer when she denied the allegations. On 15 March 2018, the practitioner told her manager there was no need to be worried and that Patient B thought that she had lost her credit card elsewhere' and told her employer that Patient B refused to put the allegation in writing. On 19 March 2018, the practitioner had a meeting with her manager and her employer, denied any knowledge of the stolen care and said "No, I don't have access to anyone's credit card". 5. Rather than being deceitful to the patients and her employer, the practitioner should have apologized to the patients and been frank with her employer. The Code of Conduct requires that when a patient makes a complaint about an adverse event, nurses should: 1. acknowledge any distress experienced; 2. be open and honest; 3. act immediately to rectify the problem; 4. provide an apology and explanation; 5. report the incident; 6. provide access to information about how to make a complaint. 1. It is of particular concern that the practitioner was also deceitful in her dealings with police when she pretended to be a patient to thwart the police investigation. On 15 March 2018, the practitioner telephoned police, pretended to be Patient B, fabricated a story that her stepson had stolen the credit card and asked the police to stop their investigation. 2. The Commission submits that the practitioner's repeated dishonesty, including her poor response to the patient complaints, shows extremely poor judgment which is inconsistent with the professional responsibilities of a nurse. C. Insight 1. There is no evidence that the practitioner has insight into the seriousness of her conduct because: 1. The abovementioned lies to patients, her employer and police deflect attention away from her fraud and are evidence of her lack of insight; 2. In discussions for the purpose of the pre-sentence report, the practitioner said that her financial situation was desperate, said that at the time of her offences she was not being paid her agreed wages by her employer and she could not offer a cogent reason for her offending "I don't understand what logic I was using". 3. During the criminal proceedings, the practitioner apparently suggested she found a credit card on the ground, apparently in an attempt to minimise her conduct; 4. The practitioner was given the opportunity to make written submissions before the first section 150 hearing on 4 April 2018 but elected not to; 5. During the section 150 hearing, the practitioner said "I feel like it's quite unjust for me to be here to face these allegations"; 6. The practitioner was given the opportunity to make written submissions before the second section 150 hearing on 21 May 2018 but elected not to attend; 7. The practitioner was invited to make submissions to the Commission during its investigation but she declined to do so; 8. The Commission submits that the practitioner had an opportunity to demonstrate insight and remorse when investigated by the Commission by explaining whether she accepted the allegations and whether she had gained any understanding about the standards of practice and morality required of her as a nurse; 9. The practitioner chose not to participate in the proceedings so the Commission cannot cross-examine her; 10. As a result the Tribunal have limited measures by which to assess her level of insight and remorse, if any, into her conduct; 11. The practitioner chose not to rely on any character references (and one of her character referees withdrew her support during the criminal proceedings); 12. The practitioner's letter to the Tribunal says she has "made some very bad decisions" but contains no detail as to why she engaged in the conduct and no apology to the patients or her colleagues; 13. The practitioner's letter to the Tribunal focusses on the impact on herself (financial hardship, limited employment opportunities) but contains no reference to the impact on the patients or the profession; 14. The practitioner's letter to the Tribunal mentions that she has been diagnosed with persistent depressive disorder but she has not supplied any reports to allow the Tribunal to consider whether there is any link between her conduct and her condition; 15. The practitioner's letter to the Tribunal says that "this has been a very big wake‑up call" and she is continuing treatment with an unnamed psychologist but she has not supplied any treatment records so it is impossible to know whether she has gained any genuine insight during treatment. Cancellation 1. In relation to Complaint One, the Tribunal may cancel the practitioner's registration if the Tribunal is satisfied that the practitioner has been convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession. 2. In relation to Complaint Four, the Tribunal may cancel the practitioner's registration if the Tribunal is satisfied that the practitioner is guilty of professional misconduct, namely unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 3. The Commission seeks cancellation. 4. The relevant principles include: 1. The Tribunal has a discretion to make a cancellation order; 2. It is not necessary to make a finding that the practitioner is probably permanently unfit to practise before registration can be cancelled: Chen v Health Care Complaints Commission [2017] NSWCA 186 per Basten JA at [14] and [20] and per Payne JA at [67]-[69]; 3. Whether the conduct is sufficiently serious to warrant cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; 4. This requires an assessment of the gravity of the conduct found proved, and consideration of remorse and insight, if any, demonstrated by the practitioner: Health Care Complaints Commission v King [2013] NSWMT 9; 5. The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR at 638; 6. Cancellation may, in serious cases, be required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [64] (Santow JA) and [101] (Basten JA). 7. Asserted reformation of a practitioner's character is exceptional and requires clear proof: Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 6 SR (NSW) 448, 461. 1. The Commission submits that the practitioner's conduct is serious because it involved: 1. Stealing from three vulnerable patients sedated for day surgery; 2. Brazenly misusing patient credit card details for her own benefit (including purchases on the same day and in the same building as the clinic, purchases delivered to her home address, payment of traffic infringements for her own vehicle and strata payments for her own property) — Magistrate Reiss attributed the practitioner's conduct in using her own name to pay off her own accounts to a "over-competence about your ability to talk your way out of things"; 3. Making a large number of fraudulent transactions over a 2‑3 week period (and attempting to on-sell one purchased item) for financial benefit — in excess of $36,000; 4. Purchasing and attempting to purchase a number of high value luxury goods and personal items including flights, accommodation, breast enlargements, spa, water float, gym, life coaching; 5. Extensive dishonesty to many vendors, two patients, her manager and employer, the patient's bank, the police and the section 150 delegates — Magistrate Reiss described the dishonesty to the patient's bank and the police as high level audacity. 1. The Commission submits that a cancellation order is appropriate because of: 1. the seriousness of the conduct; 2. the need for specific and general deterrence; 3. the need to reinforce high professional standards; 4. the need to maintain public confidence in the profession; 5. the lack of evidence regarding insight. Non-review period 1. The Commission seeks a 2 year non-review period because: 1. given the gravity of the misconduct and the upholding of public confidence in the nursing profession requires that her conduct in its entirety be denounced as unacceptable and that a period of two years appropriately reflects that; 2. that time is needed to allow the practitioner a reasonable period to demonstrate rehabilitation and genuine insight; 3. that time is warranted to censure the practitioner's conduct as a serious and flagrant breach of the standards that the public have a right to expect of a nurse; 4. that time sends a strong message, to the practitioner and other practitioners, that such conduct cannot be condoned. 1. Noting that the Court of Appeal has cautioned against the use of comparative cases in fixing non-review periods (see Lee v Health Care Complaints Commission [2012] NSWCA 80 at [33]), the Tribunal imposed a three year non-review period in a similar matter (Health Care Complaints Commission v Shrimpton (No.2) [2019] NSWCATOD 48 at [13]-[14]). Costs 1. The Commission seeks costs under clause 13 of Schedule 5D of the National Law. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[46], the NSW Court of Appeal affirmed that costs are awarded to compensate the successful party and accepted that as a general rule, costs of proceedings before the Tribunal should follow the event. RESPONDENT'S SUBMISSIONS 1. The Respondent made no submissions other than those referred to in her letter dated 15 October 2019. DECISION AND REASONS 1. The matter was decided on the papers. Having read the evidence contained in the exhibits provided to the Tribunal, having heard the evidence of the Respondent and having taken account of the Applicant's submissions and the record of the criminal trial and conviction against the Respondent, the Tribunal is comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct and that she has been found guilty of a criminal charge. 2. The Tribunal is satisfied that the central issue in this case is whether the Respondent should be entitled to continue practising as a nurse and what disciplinary action would be appropriate in the particular circumstances of the matter. 3. In considering appropriate disciplinary findings, the Tribunal had regard to a number of factors. These included the transcript of the trial before the Criminal Court and the decision of the Magistrate in the criminal proceedings, information provided by the Respondent in respect of her behaviour and the complaint against her including her actions since the transgressions were identified and a charge was brought against her. 4. In coming to this conclusion, the Tribunal was faced with the fact that a series of breaches were made by the Respondent knowingly, she having been fully aware of the nature of her criminal behaviour and having lied in respect of significant issues relating to the breaches which she had knowingly undertaken and which she attempted to cover up. 5. The Tribunal was made aware of a diagnosis of depression in respect of the Respondent and was asked to consider that diagnosis as an explanation of her behaviour in this matter. While the Tribunal accepts that the Respondent might well suffer from some form of depression, it does not accept that this excuses her behaviour. 6. The Tribunal was satisfied that the theft and fraud perpetrated by the Respondent was not opportunistic or for some need of necessities but that the fraud perpetrated involved the purchase of some very extravagant items and was done on each occasion with thought and calculation. 7. The Tribunal was satisfied that the behaviour of the Respondent was calculated, committed upon the multiple occasions alleged against her, and that her covert actions attempting to deflect the suspicion or investigation by the police against her, was carried out in a full understanding of what she was aiming to achieve. 8. The Tribunal held the view that her behaviour was particularly offensive in that she was dealing with vulnerable patients who were undergoing surgery, the acts being perpetrated while the patients were unconscious and she showed a remarkable lack of understanding of the harm that she was doing to others. In fact, the Tribunal had the evidence of one of the patients who indicated that she lost trust in going to clinics and felt violated. 9. There was no doubt in the Tribunal's mind that all the allegations against the Respondent were true and, in fact, subsequently admitted by her. However, the Tribunal noted that the Respondent initially denied all the allegations against her and is satisfied that she thought she might get away with it. 10. In the circumstances, the Tribunal is satisfied that had the Respondent still been a registered nurse, it would have cancelled her registration and provided for a non‑review period and, therefore, provides in the order set out below for a non‑review period of 30 months which the Tribunal believes is appropriate and necessary to send a message to the profession and the public that the protection of the public and the standing of the profession are significant. It also allows the Respondent to do whatever may be necessary to achieve a result that on expiry of her non‑review period she will be in a position to make an application to continue to practice as a nurse should she decide to do so. 11. In respect of costs, the Tribunal believes that having regard to the very serious nature of the allegations against the Respondent and the charges brought against her, it was appropriate for the Applicant to make its application for a non‑review period as it would be inappropriate to leave the issue of a re‑application by the Respondent open at her discretion. The Tribunal, therefore, believes that it is appropriate to award the Applicant its cost of the conduct of this matter. 12. Accordingly, the Tribunal makes the following orders: ORDERS 1. The Respondent having been found guilty on a criminal charge of theft and larceny, is guilty of professional misconduct. 2. The Respondent is guilty of unsatisfactory professional conduct and professional misconduct in respect of the actions perpetrated by her. 3. Consequent upon the finding that the Respondent is guilty of professional misconduct, under s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), if the practitioner was still registered as a nurse the Tribunal would have cancelled her registration. 4. Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the Tribunal requires the National Board to record the fact that had the Respondent been registered the Tribunal would have cancelled the Respondent's registration for a period of 30 months from the date of this decision. 5. The Respondent shall not be entitled to apply for registration as a nurse for a period of 30 months from the date of this decision. 6. The Respondent be subject to a prohibition order which will prevent her from providing the following health services on a public, private or volunteer basis until she is registered as a nurse: 1. medical, hospital, nursing or midwifery services; 2. mental community health services; 3. health education services. 1. The Respondent shall pay the costs of the Applicant as assessed or agreed. ********** 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 Amendments 15 May 2020 - Final Orders revised 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: 15 May 2020