Health Care Complaints Commission v CSM [2016] NSWCATOD 125

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v CSM [2016] NSWCATOD 125 Hearing dates: 27 June 2016 Date of orders: 05 October 2016 Decision date: 05 October 2016 Jurisdiction: Occupational Division Before: A Britton, Principal Member S Kennedy, Professional Member A Flanagan, Professional Member B Smith, General Member Decision: (1) The Tribunal decided under s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) that if CSM were still registered as a nurse practitioner, the Tribunal would have cancelled his registration.

(2) CSM must pay the Commission's costs of the proceedings, as agreed or assessed. Catchwords: ADMINISTRATIVE LAW — Civil and Administrative Tribunal (NSW) — health practitioner — whether practitioner guilty of unsatisfactory professional conduct — whether practitioner guilty of professional misconduct — appropriate disciplinary orders where finding made that practitioner is guilty of professional misconduct

PRACTICE AND PROCEDURE — principles of open justice — whether appropriate to order the suppression of name of health practitioner

COSTS — principles applying to awarding costs under the Health Practitioner Regulation National Law (NSW) Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Fraser v Health Care Complaints Commission [2015] NSWCA 421 HCCC v Jamieson [2014] NSWCATOD 56 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Perceval [2014] NSWCATOD 38 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Merrilyn Walton v Alexander Sergevich Momot & anor (NSW Court of Appeal 17 April 1997) Ohn v Walton (1995) 36 NSWLR 77 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant ) CSM (Respondent) Representation: Counsel: L Thomas (Applicant)

Solicitors: Health Care Complaints Commission (Applicant) CSM (Respondent in person) File Number(s): 1620050 Publication restriction: Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW), the publication or disclosure of the name, address or any information which might tend to or lead to the identification of Patient A and CSM, is prohibited.

REASONS FOR DECISION 1. While working at a leading Sydney private psychiatric hospital (the Hospital) in 2014, former registered nurse CSM commenced an intimate relationship with a female patient, which lasted for about six weeks. On discovering the relationship, the Hospital suspended and later terminated CSM's employment. CSM has not worked as a nurse practitioner since that time. 2. The Health Care Complaints Commission (the Commission) has referred two complaints (the Complaints) about CSM to the New South Wales Civil and Administrative Tribunal (NCAT) for determination. The Complaints concern CSM's conduct in relation to the patient referred to above. The Commission contends that the conduct complained of constitutes both "unsatisfactory professional conduct" and "professional misconduct": ss 139B and 139E of the Health Practitioner Regulation National Law (NSW) (the National Law). 3. CSM admits the particulars of the conduct complained of and agrees that it amounts to unsatisfactory professional conduct and professional misconduct. He consents to "whatever disciplinary measures the Tribunal seeks to impose". He claims he has no intention of returning to nursing. 4. For the reasons that follow we have found that the conduct complained of occurred and amounts to unsatisfactory conduct and professional misconduct. We have decided to: (i) cancel CSM's registration as a nurse practitioner, and (ii) order that CSM pay the Commission's costs. 5. At the hearing, a non-publication order was made in respect of the identities of both the patient the subject of the Complaints and the respondent practitioner. Accordingly, in these reasons, we refer to each by pseudonym, respectively "Patient A" and "CSM".

Issues for determination 1. The key issues we must determine are: 1. Whether the particulars of the conduct complained of are proven; 2. If so, whether that conduct amounts to "unsatisfactory professional conduct"; 3. If so, whether some or all of that conduct amounts to "professional misconduct"; 4. If so, whether disciplinary orders should be made and, if orders are made, what they should be; 5. Whether CSM should be ordered to pay some or all of the Commission's costs. 1. The Commission bears the burden of proving the Complaints on the balance of probabilities. The allegations, if found proven, carry potentially serious consequences such as the practitioner's loss of livelihood. The evidence necessary in cases such as this must be sufficient to prove the complaints to the "reasonable satisfaction" of the Tribunal. The proper approach to applying the standard of proof was explained by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. 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.

Background 1. About eight weeks after being admitted to the Hospital, Patient A mentioned to her treating psychiatrist that she was having a relationship with a male member of staff. The psychiatrist informed the Hospital's Director of Nursing who in turn asked Patient A to identify the staff member. Patient A refused and according to the Director said: I don't want him to get into trouble…It was a warm gentle encounter. I'm in love with him and it was consensual. 1. Later that day Patient A disclosed that the staff member was CSM. 2. The Director then approached CSM and informed him that he had been suspended from employment. The following day the Director wrote to CSM and asked for a written response to a series of allegations made by Patient A, including that: 1. He had engaged in a relationship with Patient A while she was in the care of the Hospital. The relationship commenced with conversations and led to "lingering touches, kissing and cuddling which eventually led to sexual intercourse". 2. He had unprotected sexual intercourse with Patient A. 3. Throughout the course of the relationship, he had spoken to Patient A by phone and sent her a series of text messages. 4. He gave Patient A a copy of his roster, for the purpose of indicating when they would be able to see each other. 1. Five days later, CSM wrote to the Director admitting each of the above allegations. He wrote: I sincerely apologise to the [the Director, other staff of the Hospital and [Patient A] – I have let all of you down. I did have thoughts of trying to explain my conduct in this letter, but realise there is no justification of my actions for someone in my position. The shame and humiliation I feel knows no bounds. I have jeopardised my family relationships and livelihood and am devastated. If you need to clarify any maters in my response, I will be available at a mutually agreeable time. 1. A week later the Director wrote to CSM advising that his employment had been terminated. The Director wrote that this outcome is "particularly disappointing given the length and quality of your service to date". 2. The Director subsequently notified the Australian Health Practitioner Regulation Agency of CSM's conduct. 3. At the request of the Commission, the psychiatrist to whom Patient A made the initial disclosure prepared a statement dated 27 February 2015. He wrote that on the day she made that disclosure, Patient A told him: * She had begun to have an intimate relationship with CSM. It had been going on for some weeks. They had sex once; * When off duty CSM would call her and she would call him; * CSM was having a "difficult time in his marriage"; * "I like being treated nicely by a man…it is such a change from previous relationships"; * CSM was getting too intense and told her he loved her and wanted to have a future with her; she was uncomfortable with his profession of love; she saw it "as just an affair"; * Yesterday she spoke to CSM about ending the relationship and they fought; * She had strong feelings for CSM and was worried about his job and his wellbeing. 1. The psychiatrist wrote that Patient A previously had "issues with boundaries" and is particularly vulnerable when it comes to being provided care by an older man. In his opinion, while vulnerable, Patient A had not been a passive participant in the relationship.

Did the conduct particularised occur? 1. The particulars of the conduct identified under Complaint 1 are reproduced below. To avoid identifying Patient A and CSM the name of the hospital, dates and other details have been redacted. 1. Shortly after the first occasion the practitioner provided nursing services to Patient A on [xx], the practitioner failed to maintain proper professional boundaries in that he commenced an inappropriate intimate and personal relationship with Patient A. 2. Shortly after [the first occasion the practitioner provided nursing services to Patient A], the practitioner disclosed personal information about himself to Patient A including common interests such as mountain biking and the outdoors, details about his children and problems in his marital relationship. 3. The practitioner failed to maintain proper professional boundaries in that he initiated telephone contact with Patient A on [CSM] at 9:01pm with a telephone call lasting 22 seconds in circumstances where she was an in-patient under his care. 4. The practitioner failed to maintain proper professional boundaries when he provided Patient A with a handwritten copy of his roster for [a period spanning four weeks while Patient A was in his care]. 5. [For a period spanning four weeks while Patient A was in his care], the practitioner engaged in inappropriate telephone contact with Patient A in that he: 1. Initiated approximately 122 text messages and voice calls to Patient A; and 2. Received approximately 96 text messages and voice calls from Patient A. 1. On [xxx], whilst on duty, the practitioner engaged in sexual intercourse with Patient A at [the Hospital]. 2. On [xxx], the practitioner sent a text message to Patient A that was inappropriate in that it stated "I need to sleep goodbye no matter what you think of me I love you always". 3. After the practitioner had been suspended on [xxx] by [the Hospital], pending an investigation into a report made by Patient A to her treating psychiatrist that she was in a personal, intimate relationship with the practitioner, the practitioner continued to contact Patient A as follows: 1. Telephone call on [the day following CSM's suspension] at 10:14am for approximately 22 seconds; 2. Telephone call on [the day following CSM's suspension] for approximately 22 seconds; 3. Telephone call on [four days after CSM's suspension] at 8:58pm for approximately 20 seconds; 4. Telephone call on [four days after CSM's suspension] at 9:03pm for approximately 11 minutes; and 5. Text message on [four days after CSM's suspension] at 9:18pm. 1. In a Reply filed with NCAT, CSM admitted the particulars of the conduct identified under Complaint 1. 2. Since being suspended from the Hospital CSM has consistently admitted to having an intimate relationship with Patient A over a period of about six weeks. We are satisfied that CSM understood the nature of the conduct particularised in Complaint 1. In addition, we note there is ample evidence to support the particulars of the conduct complained of. 3. We are comfortably satisfied that the conduct identified under Complaint 1 occurred.

Expert opinion 1. At the request of the Commission, Registered Nurse Warren Shaw provided an opinion about CSM's conduct identified under Complaint 1. Specifically, he was asked to comment on whether that conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience to CSM, and if so, whether the departure from that standard was "significantly below" that standard. In addition he was asked to comment on whether that conduct invited his "strong criticism". 2. Mr Shaw is an experienced nurse practitioner having working as a registered nurse since 1983, including in a range of management roles. 3. In reports dated 20 June 2015 and 26 August 2015, Mr Shaw set out his opinion about the conduct the identified in Complaint 1. Mr Shaw wrote that there is an inherent power imbalance in the nurse practitioner-patient relationship, making the patient vulnerable to exploitation. He wrote that all nurses are expected to be aware of that power imbalance and a decision to enter an intimate relationship with a patient is "selfish, unethical and exploitative". 4. In Mr Shaw's opinion, the standard reasonably expected of a nurse practitioner is to maintain a professional and therapeutic relationship and not to attempt to develop "over-familiarity, friendship or intimacy" with a patient. He wrote that nurses are expected to be aware of the inherent power imbalance in the nurse-patient relationship and disclose "any deviation from the professional relationship" and seek guidance about how to "re-establish professional boundaries". 5. In Mr Shaw's opinion CSM's conduct in developing and maintaining an intimate relationship with Patient A fell significantly below the standard expected of a practitioner of CSM's experience and training. The departure from that standard invited his "strong criticism".

Does the conduct particularised in Complaint 1 amount to "unsatisfactory professional conduct"? 1. The Commission contends that the conduct described in each particular of Complaint 1 amounts to unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and 139B(1)(l) of the National Law. Sections 139B(1)(a) and 139B(1)(l) of the National Law state: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. …

Does the conduct outlined in each particular demonstrate that the judgment possessed, or care exercised by CSM fell significantly below the relevant standard? 1. To answer this question we must (i) identify the standard "reasonably expected" of a nurse practitioner of an equivalent level of training or experience to CSM (the relevant standard), and (ii) evaluate whether the conduct particularised demonstrates that the knowledge, skill or judgment possessed, or care exercised, by CSM in the practice of the his profession, fell "significantly below" the relevant standard. 2. While it is not stated in the Complaint, we understand the particular aspect of CSM's conduct on which the Commission relies, to be the judgment he possessed, and care exercised in relation to Patient A when engaging in the conduct complained of. 3. When the conduct the subject of the Complaints occurred, CSM was an experienced nurse having worked continuously as a registered nurse in mental health facilities for over two decades. 4. CSM does not challenge the central proposition put by the Commission and supported by the opinion proffered by Mr Shaw, that the standard reasonably expected of a practitioner of his level of training or experience is the maintenance of proper boundaries in the nurse-practitioner relationship. We accept that proposition and note that it is consistent with the code of practice covering nurse practitioners in NSW. See NSW Ministry of Health Code of Conduct, Policy Directives PD2005_626 and PD2012_018 and the Nursing and Midwifery Board of Australia, Code of Professional Conduct for Nurses in Australia of the Nursing and Midwifery Board of Australia. 5. Before considering each of the particulars, we make the following observations. First, the relationship lasted for just over six weeks. While the ending of the relationship was precipitated by Patient A's suspension from the Hospital, the evidence indicates that Patient A attempted to end the relationship the day before she disclosed the relationship to her treating psychiatrist. Second, leaving to one side the question of whether a person receiving treatment for a chronic psychiatric disorder sufficiently serious to warrant a lengthy hospitalisation, has capacity to make an informed decision about entering an intimate relationship with their treating health practitioner, the evidence indicates that the relationship between CSM and Patient A was consensual. Third, over the course of the relationship, CSM's violations of the boundaries of the nurse practitioner-patient relationship became progressively more serious. 6. The particulars identified in Complaint 1 fall broadly into three categories: commencing a personal and intimate relationship with and having sexual intercourse with Patient A (Particulars 1 and 4); having telephone and text contact with, and giving a copy of his roster to, Patient A (Particulars 3, 5, 6, 7 and 8), and; disclosing personal information to Patient A (Particular 2).

Particulars 1 and 4 1. These particulars contain the gravamen of the conduct complained about: commencing an intimate and personal relationship with Patient A (Particular 1) and, having sexual intercourse with Patient A on one occasion (Particular 4). 2. Identifying where the proper boundary lies in a health practitioner-patient relationship can sometimes be difficult to determine. However, engaging in an intimate relationship and having sexual intercourse with a patient clearly falls on the wrong side of the line. Having an intimate relationship with Patient A amounted to an abuse of trust by CSM and a breach of his obligation to give paramount consideration to the health, welfare and interests of Patient A. An aggravating feature of his conduct was, as he admits, that when the relationship commenced CSM was aware that Patient A was being treated for a long standing psychiatric disorder which in the past had resulted in multiple hospital admissions. Given his significant experience as a nurse practitioner specialising in the area of mental health, CSM knew, or ought reasonably to have known, that as a result Patient A was especially vulnerable and probably ill-equipped to make reasoned and informed decisions about the relationship that developed between them. 3. For these reasons, we are satisfied that CSM's conduct in commencing an intimate and personal relationship and having sexual intercourse, with Patient A, demonstrated that the judgment he possessed, and care exercised, in the practice of his profession was significantly below the relevant standard.

Particulars 3, 5, 7 and 8 1. Each of these particulars relate to telephone and SMS contact between CSM and Patient A. Particular 3 relates to a 22 second phone call, presumably a voice message left by CSM for Patient A. Particular 5 relates to a series of text messages exchanged between CSM and Patient A over a six week period. Particular 7 relates to a text message sent by CSM to Patient A apparently on the day she sought to end the relationship. And Particular 8 relates to phone calls made, and text messages sent, to Patient A throughout the period the Hospital was conducting an investigation into her disclosure about the relationship with CSM. 2. There was no clinical or therapeutic reason for CSM to communicate with Patient A by phone or text message on any of the occasions identified in these particulars. The communication was undertaken solely for the purpose of pursuing a personal relationship with Patient A. 3. Of this conduct, that identified in Particulars 7 and 8 was, in our opinion, the most serious. 4. The former relates to a text message sent by CSM to Patient A the day before she disclosed the relationship to her treating physiatrist – "I need to sleep goodbye no matter what you think of me I love you always".:. The message conveyed the meaning that CSM was extremely distressed at being rejected by Patient A. The sending of that message was not only a clear violation of the proper boundaries of the practitioner-patient relationship but demonstrated a significant lack of judgement by CSM given Patient A's state of mental health. Given his significant experience, CSM's decision to send an emotionally charged message in circumstances where Patient A had attempted to end the relationship demonstrated judgement falling significantly short of the relevant standard. 5. Particular 8 relates to contact initiated by CSM in the four days following his suspension from the Hospital. Whether, as CSM claims, the reason he made that contact was because he was genuinely concerned for Patient A's wellbeing, and not to undermine the Hospital's investigation, is not to the point. Whatever the reason, it demonstrated extremely poor judgement and a lack of care for the emotional impact continued contact would have on Patient A in circumstances where her disclosure had triggered his suspension from the Hospital. 6. Particular 4 relates to CSM's action in giving Patient A, a copy of his roster covering a four-week period. The inescapable inference is that he did so to make arrangements to liaise with CSM throughout this period. While in the scheme of things the giving of the roster was not especially egregious, nonetheless, in our opinion, it demonstrates that the judgment possessed and skill exercised by CSM fell significantly below the relevant standard. 7. We therefore find the conduct particularised in Particulars 3, 5, 6, 7 and 8 amounts to conduct that demonstrates that the judgment possessed, and care exercised, by CSM fell significantly below the relevant standard.

Particular 2 1. Particular 2 is in the following terms: Shortly after [the first occasion the practitioner provided nursing services to Patient A], the practitioner disclosed personal information about himself to Patient A including common interests such as mountain biking and the outdoors, details about his children and problems in his marital relationship". 1. Because this conduct has been described in general terms a practical problem arises in evaluating whether it amounts to unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and 139B(1)(l). While CSM admits to having disclosed the personal information referred to in Particular 2 and agrees that it constitutes unsatisfactory professional conduct, it is unclear what "personal information" he admits to having disclosed. 2. In Lucire v Health Care Complaints Commission [2011] NSWCA 99, the Court of Appeal commented at [42]–[46] on the difficulties presented where a complainant fails to identify the precise conduct relied upon in its pleadings. See also Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [27]–[31]; Fraser v Health Care Complaints Commission [2015] NSWCA 421 at [8]. Here we are being asked to decide whether disclosing personal information described as "common interests such as mountain biking and the outdoors, details about his children and problems in his marital relationship" constitutes conduct that demonstrates that the judgment CSM possessed, and care exercised, fell significantly below the relevant standard. That question cannot be answered at an abstract level and requires an evaluation of the nature of the personal information disclosed and the context in which the disclosure occurred. A throwaway line by a practitioner informing a patient that they had an interest in sport or was leaving work early to pick up children from school, while constituting a disclosure of personal information, does not necessarily demonstrate that the judgment they possessed, or care exercised, fell significantly below the relevant standard. On the other hand, disclosing intimate information about family members and personal interests may be suggestive of conduct that transgresses proper professional boundaries. 3. Given the failure to spell out the alleged disclosures made by CSM to Patient A and the context in which they were made, we are unable to properly evaluate whether that conduct demonstrates that the judgment possessed, or care exercised, by CSM fell significantly below the relevant standard. In reaching that conclusion we acknowledge that disclosing information about "problems in [CSM's] marital relationship" probably demonstrated judgment, or care that departed from the relevant standard. However, without further details about what it is that CSM is alleged to have disclosed about those problems, we are unable to properly evaluate the extent to which it departed from the relevant standard. 4. For these reasons we are not comfortably satisfied to the Briginshaw standard that the conduct described in Particular 2 constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(a). Nor, for broadly the same reasons, could we be satisfied that the conduct described in Particular 2 constitutes "improper" or "unethical" conduct within the meaning of s 139B(1)(l).

Summary 1. We are satisfied that the conduct described in each particular, except Particular 2, constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(a). Given this finding it is not necessary to also consider whether it constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(l).

Does the conduct described in Particular 2 if taken together with two or more of the particulars amount to unsatisfactory professional conduct? 1. The Commission pleads in the alternative that: "when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified". 2. Giving our findings set out above, this alternative characterisation is only relevant to Particular 2. 3. Whether the particulars identified in Complaint 1 can be conflated in the manner suggested by the Commission, was not argued before us and, given our ultimate conclusion, strictly speaking does not need to be determined. However, our preliminary view is that this alternative characterisation of Complaint 1 presents difficulties. 4. Deciding whether the conduct identified in Particular 2 amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(a), requires the Tribunal as a first step, to identify the subject conduct and the relevant standard, and then to assess whether the subject conduct departs from the relevant standard and if so, to what extent. While in this matter, each of the particulars relate to conduct which can loosely be described as relating to CSM's overall conduct towards Patient A, it does not necessarily follow that the conduct described in one, will be relevant to the assessment of the nature of the conduct in another. For example, it is difficult to see how CSM's conduct in having sexual intercourse with Patient A (Particular 4), and/or communicating with CSM by phone and text (Particulars 3,5, 7, 8), is relevant to an assessment of whether his disclosure of personal information about himself five weeks earlier demonstrates that the judgment he possessed, or care exercised, in making that disclosure fell significantly below the relevant standard or was improper or unethical. 5. Complaint 1 as framed requires us to decide whether the conduct particularised, rather than CSM's conduct at large, demonstrates judgement, and skill exercised, that significantly departs from the relevant standard. 6. We are not persuaded that the alternative characterisation can be used to address the shortcomings identified above about the general manner Particular 2 has been framed.

Does some or all of the conduct particularised in Complaint 1 amount to "professional misconduct"? 1. The Commission contends that the conduct particularised in Complaint 1 amounts to "professional misconduct", which is defined by s 139E of the National Law to mean: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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.

Is the conduct of a sufficiently serious nature to justify suspension or cancellation of CSM's registration? 1. In evaluating whether the conduct found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, the existence of any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases, but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638. 2. Especially relevant to the assessment of the gravity of the inappropriate conduct is Patient A's longstanding and severe psychiatric disorder. As CSM concedes, given her condition his actions in pursuing a personal and intimate relationship had the potential to not only undermine her treatment but to aggravate her condition. Having regard to these circumstances, we are comfortably satisfied that the breach is sufficiently serious to justify the suspension or cancellation of CSM's registration.

What, if any, disciplinary orders should be made? 1. Part 8, Division 3, Sub Division 6 of the National Law sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and to impose conditions on the practitioner's registration. Where, as in this case, the practitioner is found guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration or decide that it would have cancelled the practitioner's registration had they been registered. 2. In exercising its functions under the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration (s 3A of the National Law). 3. In Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD Wright J 31 at [88] summarised the principles underlying the purpose of orders made under Part 8, Division 3, Sub Division 6. (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve 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 - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].

Orders sought by the Commission 1. The Commission urges the Tribunal to: 1. Decide that if CSM were still registered we would have cancelled his registration: s 149C(4)(a) 2. Order that CSM be disqualified from being registered for a period of one to two years: s 149C(4)(b) 3. Order that CSM be prohibited from providing medical, hospital, nursing and community health services for a period of one to two years: s 149C(5). 1. CSM consents to the orders proposed and any other order the Tribunal considers appropriate. He states that he has no intention of either returning to nursing or working in an associated field. He claims that he hopes to re-join the work force at some stage but in an unrelated profession. He states that to this day he struggles to understand what caused him to act as he did in an otherwise unblemished nursing career. 2. Notwithstanding our finding that CSM's misconduct was sufficiently serious to justify a decision to suspend or cancel, or decide to cancel had the practitioner been registered, it does not follow that such order must be made. (See, HCCC v Jamieson [2014] NSWCATOD 56 at [100].) Cancellation and suspension are but some of the orders available to the Tribunal following a finding of guilty of professional misconduct. While the safety of the public is the paramount consideration, any disciplinary order must nonetheless be commensurate with the seriousness of the impugned conduct. In making an appropriate order, consideration must also be given to the probability of recurrence of that conduct and the nature and extent of any justifiably apprehended harm. 3. CSM adduced no evidence to support his claim that his relationship with Patient A was the only time he had acted inappropriately with a patient. We understand the reason for this was because he in effect had acquiesced to any order the Tribunal decided was appropriate. Nonetheless, contained in the material tendered by the Commission was some support for that claim. For example, in a statement dated 23 February 2015 the Director wrote that she was shocked to learn that CSM had been involved with a patient. She wrote that in the 11 years she had known CSM there had "never been an issue" with his care or treatment of patients; he was known to be "quiet, diligent and caring" and had never been the subject of complaints by staff or patients. The manager of the unit where CSM was working when he was suspended provided a statement to the same effect. 4. Given the seriousness of the impugned conduct, we have decided to declare that if CSM were still registered we would have cancelled his registration. 5. As over two years have passed since the offending conduct and CSM claims to have no intention of returning to nursing, we have decided that no useful purpose would be served in exercising the power to order that CSM be disqualified from being registered, for a specified period of time. We are mindful that in not exercising that power, there would be nothing to prevent CSM from applying for reregistration. This does not mean that his application would necessarily be successful. CSM would need to satisfy the relevant review body that there was no real and material risk that the offending conduct would be repeated.

Should the power to make a prohibition order be exercised? 1. Section 149C(5) of the National Law gives the Tribunal power to make a prohibition order: (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. 1. The term "health services" is broadly defined: see s 5 of the National Law. 2. As noted, the Commission seeks orders under s 149C(5) that CSM be prohibited from providing medical, hospital, nursing and community health services for a period of one to two years. 3. While not opposed by CSM, the precondition to exercising the power to make an order under s 149C(5) must nonetheless be satisfied. That power can only be exercised if we are satisfied that CSM poses a "substantial risk" to the health of members of the public. 4. We understand the Commission to contend that as CSM has not participated in any form of rehabilitation there is a "substantial risk" that the offending conduct will be repeated. The Commission has not provided any expert opinion, or other evidence, to support that contention. Apart from a repeating conduct of the type the subject of Complaint 1, we do not understand the Commission to suggest that CSM poses any other type of risk to the health of members of the public. 5. Section 149C(5) requires us to be satisfied, not just that CSM poses a risk to the health of members of the public, but that that risk is substantial. 6. Determining that issue involves an assessment of the probability of the offending conduct being repeated, having regard to the nature and incidence of that conduct, any evidence of rehabilitation, insight, contrition and/or factors that might predispose CSM to, or protect him against, repeating the conduct. That assessment is not amenable to scientific assessment. 7. The available evidence indicates that the offending conduct did not form part of a pattern of conduct; there is no evidence of any factor which might predispose CSM to repeating the conduct; from Day 1 CSM has expressed contrition for his conduct, which we accept as genuine. While there will always be some apprehension that a practitioner who has engaged in an inappropriate relationship with a patient might do so the future, on the available evidence we could not be satisfied to the Briginshaw standard that CSM poses a "substantial risk". It follows that the power to make a prohibition order cannot be exercised.

Reasons for making a non-publication order 1. As noted, at the hearing non-publication orders were made prohibiting the publication of the name of, and any information, picture or other material that identifies, or is likely to lead to the identification of Patient A and CSM. Both parties supported the making of the order in respect to Patient A. The Commission opposed CSM's application for a non-publication in respect of his name.

Submissions made by the parties 1. In support of his application, CSM asserted that unless a non-publication order was made in respect of him (i) there was a risk that Patient A might be identified, (ii) his wife and school age children would suffer acute embarrassment and shame, (iii) his marriage would probably come to an end, and (iv) his already precarious mental health would be likely to deteriorate further. 2. CSM argued that if his name were to be published in these reasons, there was a real risk that his former colleagues would be able to draw a link between his sudden departure from the Hospital and Patient A. He asserts that this would be likely to generate social media discussion amongst staff and, in turn, cause Patient A's husband and children to learn of the relationship. He claimed that she had disclosed to him that she had been the subject of domestic violence. 3. CSM testified that he had not disclosed to his family that he had a relationship with Patient A, or the real reason he had left the Hospital. He said he told his wife the reason he left the Hospital at short notice was because he could no longer cope working in the area of mental health. He claimed that if his wife, who is deeply religious, became aware that he had a relationship with a patient, she would leave him and this would have a damaging effect on their children. 4. He testified that since leaving the Hospital he has consistently experienced feelings of anxiety, depression and apprehension about the future, and these feeling have at times been overwhelming. He claims that each morning, when he wakes he thinks "what's the point" and were it not for his family, he probably "would not go on". He claims to have been unable to work except on a very occasional basis for a friend and then only for a few hours. 5. CSM stated that since leaving the Hospital he had attended crisis counselling on a regular basis. In support he tendered a letter from his counsellor, confirming that claim. He stated that he has also sought help from his priest. He claimed to hold the opinion that his condition is sufficiently serious to warrant being under the care of psychiatrist. He claimed this was not an option on account of the parlous state of the family's finances. 6. CSM claimed that if he had the money he would arrange to be admitted to a private psychiatric hospital. In addition, he claimed that the night before the hearing, he was in a "pretty bad state" and rang a 24-hour crisis line. He said he was informed that unless he was suicidal, he would not be admitted to a public hospital. 7. The Commission submitted that the reasons advanced by CSM do not support the making of a non-publication order. The Commission points out that in proceedings under the National Law reputational damage to a heath practitioner is generally not considered sufficient to displace the presumption in favour of open justice, citing in support Health Care Complaint Commission v Vo [2014] NSWCATOD 127 (Vo). The Commission pointed out that the conduct found proven in Vo involved much more salacious conduct than the conduct in this case. Nonetheless notwithstanding the damage and distress likely to be suffered by Dr Vo and members of his family as a result of disclosing the details of Dr Vo's misconduct, the Tribunal declined to make a non-publication order in respect of Dr Vo. 8. Citing Vo, the Commission submitted that "something special, exceptional, or out of the ordinary", must be established before the Tribunal can made a non-publication order. In Vo at [182], the Tribunal cited with approval the following passage from the judgement of Handley JA, with whom Priestley JA and Grove AJA agreed in Merrilyn Walton v Alexander Sergevich Momot & Anor (NSW Court of Appeal 17 April 1997): The general principle provided for in s 46(3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of the practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can made an order avoiding such result. 1. While conceding that the disclosure of CSM's identity is likely to cause CSM and members of his family to suffer embarrassment and loss, the Commission submits that this could not be said to constitute circumstances that are special, exceptional, or out of the ordinary. In addition the Commission points to the absence of any medical evidence to support CSM's claim of suffering significant symptomology, which would be likely to worsen, if his name were to be published in these Reasons.

Statutory framework 1. The combined effect of s 49(1) of the Civil and Administrative Tribunal Act 2013 (the Tribunal Act) and s 165K of the National Law is that proceedings before NCAT brought under the National Law are open to the public unless otherwise ordered. The power to order that a hearing be held in private can only be exercised if the Tribunal is satisfied that it is "desirable to do so in the public interest for reasons connected with the subject-matter of the proceedings or the nature of the evidence to be given": s 165K of the National Law. 2. Clause 7(1)(b)(iii) of Schedule 5D to the National Law provides that the person presiding in proceedings before the Tribunal may, if they think it is appropriate "in the particular circumstances of the case", direct that the name of nominated persons involved in the proceedings, including a registered health practitioner, not be published. The power to make an order under this provision vests in the presiding member of the Tribunal. Accordingly, the decision to make a non-publication order in this case was made by the presiding member, Principal Member Britton. In the interests of consistency, in these reasons the maker of the decision will be referred to in the plural. 3. In exercising the power to make an order under cl 7(1)(b)(iii) of Schedule 5D to the National Law, the presiding member must have regard to the norm of open justice established by ss 49(1) of the Tribunal Act and 165K of the National Law, together with the objects of the Tribunal Act, which include ensuring that the Tribunal is accountable and has processes that are open and transparent: s 3(f). The authorities have consistently emphasised that the power to depart from that norm must be exercised sparingly. 4. As noted by the Tribunal (Acting Judge K P O'Connor) in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [16], it is an "unavoidable incident" that a health practitioner the subject of proceedings brought under the National Law will often suffer a deep sense of shame and embarrassment and will be concerned about the impact of the proceedings on other members of their family. His Honour explained at [25] the rationale for disclosing the health practitioner's identity: Disciplinary proceedings and disciplinary orders have as their ultimate purpose the protection of the public. The public has an interest in knowing whether a practitioner has been charged with a disciplinary offence, and of the outcome especially where it is adverse. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons. Publicity also serves that end. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence. Decisions also provide a marker of what is unacceptable to other members of the profession.

Consideration 1. For two reasons, in combination, we have decided that the particular circumstances of this case warranted the making of a non-publication order in respect of CSM. 2. First, while not a foregone conclusion, in our view there is a material risk that the disclosure of CSM's identity might inadvertently enable Patient A to be identified. In reaching this conclusion we had note the relatively small size of the Hospital together with the fact that the facts of the Complaint reveals that Patient A was a member of the ward where CSM was rostered in the six weeks before his employment was terminated. Coupled with Patient A's history of multiple admissions to the Hospital and an associated hospital, in our view it is not implausible that staff, and possibly former patients of the Hospital, would be able to identify Patient A if CSM's name were to be published in these reasons. 3. We note that decisions of the Occupational Division of NCAT are unless otherwise ordered, published on websites maintained by NSW Caselaw and the Australasian Legal Information Institute. Each of these websites is freely accessible to members of the public. 4. While we have no information about Patient A's current circumstances, given her admission history the possibility cannot be excluded that she may return as an inpatient of the Hospital. In these circumstances, and given the severity of her psychiatric disorder, in our view, it would not be in her interests for her identity to be disclosed, even to a relatively small class of persons, such as staff and possibly patients of the Hospital. Indeed, in our opinion, it would be contrary to the public interest for a patient whose actions exposed misconduct by a treating practitioner, to then be subjected to the risk that his or her identity might be revealed to the public in subsequent disciplinary proceedings. 5. Second, we have concluded that, if his identity were to be disclosed in these proceedings, CSM's mental health is likely to be put at risk. We accept his claim that in the past 24 months he has struggled with persistent and significant symptomology. That claim is consistent with CSM's absence from the workforce since leaving the Hospital despite a history of continuous full-time employment since being registered as a nurse practitioner 25 years ago. In addition, it is consistent with CSM receiving regular crisis counselling since being terminated from the Hospital. Finally, it is consistent with his claim of making enquiries about whether he could be admitted to a psychiatric hospital for treatment. 6. In concluding that if his identity were disclosed, CSM's mental health is poor and likely to deteriorate, we have taken into account the absence of any independent medical evidence to support CSM's claim of significant symptomology and his prediction that his symptoms are likely to escalate if his identity were to be revealed. While he is not assisted by the lack of medical evidence, nonetheless, in our view, the available material is sufficient to support these findings. In reaching that conclusion we note that we found CSM to be a witness of truth who did not embellish or exaggerate his claims. In addition, we had regard to the fact that it is notoriously difficult to predict how an individual suffering from symptoms of depression and anxiety will react to external stressors. 7. Even though publicity generally disadvantages the subject health practitioners and their families, non-publication orders are seldom made in this jurisdiction. This is because of the overriding importance of justice being administered openly and in public and the recognition that disclosing the identity of health practitioners in this class of matters has, a deterrent effect amongst their peers. We accept that a cautious approach should be taken in this jurisdiction to the making of a non-publication order in respect of health practitioners. Nonetheless, we have decided that, in the circumstances of this case, the risk of disclosing Patient A's identity, and the risk of a further deterioration in CSM's mental health, represent special circumstances that warrants the making of a non-publication order in respect of CSM.

Should CSM be ordered to pay the Commission's costs? 1. The Commission seeks an order that CSM pay its costs in these proceedings. CSM opposes that order pointing out that from the outset he has admitted to the conduct the subject of the complaint, cooperated fully in in these proceedings and the Commission's investigation. In addition he claims that he lacks the capacity to pay the Commission's costs. 2. The power to award costs in proceedings where a complaint has been referred to NCAT for determination under the National Law is contained in cl 13 of Schedule 5D to the National Law: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner ... at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. ... 1. The Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) considered the exercise of the discretion to award costs and accepted at [42] that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event". See also Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]; and in relation to a similar but not identical costs provision, Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 (Lucire) and Ohn v Walton (1995) 36 NSWLR 77 at p 79. While as a general rule costs follow the event, factors may exist that militate against the recovery of costs by the successful party: Philipiah at [42]; Lucire at [48]–[52]. 2. The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. 3. The Commission was largely successful in these proceedings. We saw nothing to indicate that it conducted the proceedings in a manner that meant that costs were unnecessarily incurred. While as CSM points out he fully cooperated in these proceedings and the investigation conducted by the Commission, the authorities clearly indicate that, of itself, does not provide a proper basis to depart from the usual rule. Regrettably the fact that CSM lacks the capacity to meet a cost order is not relevant to whether the power to order costs should be exercised: Philipiah at [42]. 4. We order that CSM pay the Commission's costs of these proceedings, as agreed or assessed.

Orders 1. The Tribunal decided under s 149C(4)(a) of the National Law that if CSM were still registered as a nurse practitioner, the Tribunal would have cancelled his registration. 2. CSM must pay the Commission's costs of the proceedings, 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: 05 October 2016