GHT v Children's Guardian

[2025] NSWCATAD 16

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GHT v Children’s Guardian [2025] NSWCATAD 16

Hearing dates:

15 August 2024 & 18 October 2024, last submissions due 8 November 2024

Date of orders:

16 January 2025

Decision date:

16 January 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern, Senior Member
S Davison, General Member

Decision:

The Tribunal affirms the decision under review.

Catchwords:

ADMINISTRATIVE LAW – NDIS worker check clearance – risk of harm – mental health issues –

PROCEDURAL – non-publication orders

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Code Act 1995 (Cth).

Health Practitioners Regulation National Law NSW

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018

National Disability Insurance Scheme (Worker Checks) Act 2018 NSW

National Disability Insurance Scheme (Worker Checks) Regulation 2020

Cases Cited:

Council of New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84

FMZ v Children’s Guardian [2023] NSWCATAD 86

FPV v Children's Guardian [2023] NSWCATAD 59

FVD v Children's Guardian [2023] NSWCATAD 329

Okunwabusor v Children's Guardian [2023] NSWCATAD 199

Saba v Children's Guardian [2023] NSWCATAD 156

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GHT (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
C Wong (Applicant)
A Zheng (Respondent)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2024/00154689

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the disclosure of the applicant’s name, including any further identifying information as provided in connection with these proceedings, is prohibited. Pursuant to s 64(1)(c) of the CAT Act the disclosure of evidence given or matters in documents lodged with the Tribunal in relation to the applicant’s medical records or health conditions is prohibited.

REASONS FOR DECISION

Introduction

1. This is an application for review of a decision made by the respondent to refuse the applicant’s worker check clearance under the National Disability Insurance Scheme (Worker Checks) Act 2018 NSW (NDIS Worker Checks Act). An NDIS Worker Check clearance is required for anyone filling certain roles in relation to providing supports under the National Disability Insurance Scheme (NDIS). The NDIS is a national scheme to provide supports and funding to people with a disability. The scheme is principally legislated through the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

2. The applicant, GHT, has a background in nursing. He has a long-standing diagnosis of schizophrenia. On 29 March 2021, the applicant was granted an NDIS Worker Check clearance. At that time, he was working in aged care.

3. On 15 February 2023, the applicant was convicted of an offence of using a carriage service to make a hoax or threat by emailing the Department of the Prime Minister and Cabinet on multiple occasions in December 2022. The applicant appealed the sentence, as result of which he was discharged with no convicted recorded. The Court imposed numerous conditions relating to the applicant’s mental health treatment. The applicant was ordered to be of good behaviour for the duration of the order, which was two years.

4. There is no dispute that the applicant engaged in the activities of sending hoax or threatening emails following a deterioration in his mental health in late 2022 leading to an episode of psychosis. Following his arrest and pending his trial, the applicant was admitted to a public hospital for psychiatric assessment and treatment.

5. On 18 March 2024, the respondent issued to the applicant a notice of exclusion under the NDIS Worker Checks Act. Under the terms of the notice of exclusion, the applicant’s clearance was cancelled, and he was thereby unable to engage in NDIS-related work. On 19 March 2024, the applicant lodged a request for an internal review of the decision pursuant to s 53 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). The internal reviewer affirmed the cancellation decision. In summary, the internal reviewer was satisfied that the applicant posed a risk of harm to a person with disability because of the nature of his previous conduct, which was erratic and involved threats to public safety, the recency of the conduct, which at the time of the review was less than 18 months after the offending conduct, and the fact the conduct was repeated and was in the context of the applicant’s mental health condition.

6. The applicant applied to the Tribunal on 26 April 2024 for review of this decision pursuant to s 41 of the NDIS Worker Checks Act. The Tribunal exercises jurisdiction to review the decision pursuant to the ADR Act and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).

7. Directions were made for the conduct of the hearing and the proceedings were first listed before the Tribunal on 15 August 2024. The applicant gave oral evidence in support of his application for review, including about his medical treatment and the circumstances leading to his psychosis and the cancellation of his clearance. The proceedings were adjourned to 18 October 2024 for the purposes of obtaining oral evidence from the applicant’s former general practitioner, Dr David Baker.

8. At the commencement of the hearing, the applicant requested that non-publication orders be made under s 64(1)(a) of the CAT Act. The orders were opposed by the respondent. The Tribunal made the non-publication orders for the reasons outlined below. The Tribunal also made orders pursuant to s 64(1)(c) prohibiting the publication of the evidence given and information contained in the applicant’s medical records, which were tendered as exhibits in the proceedings.

9. Dr Baker gave evidence by videoconference on 18 October 2024 and closing submissions were made on this day. The respondent made submissions about evidence given by the applicant at the first hearing and directions were made for the respondent to file and serve transcript relating to the applicant’s oral evidence. The applicant was directed to file and serve any submissions addressing issues raised by the respondent having regard to the transcript. The applicant did not file or serve any further submissions.

10. The applicant is known by the pseudonym of GHT, and we have anonymised any references that may tend to disclose his identity.

11. We have affirmed the decision under review. Our reasons follow.

Statutory framework

12. The NDIS Workers Check Act provides for the screening of workers in connection with the operation of the NDIS. It is part of a national federated screening scheme designed to minimise the risk of harm to persons with disability by preventing workers that pose a risk of harm from working in certain roles in the NDIS. The NDIS worker screening regime has been brought into effect through Commonwealth, State and Territory legislation and policy (FMZ v Children’s Guardian [2023] NSWCATAD 86 at [16]).

13. The National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (Worker Screening Rules) are rules relating to the screening of workers employed or otherwise engaged by registered NDIS providers and members of the key personnel of registered NDIS providers. The Worker Screening Rules are made pursuant to s 73T of the NDIS Act. The preamble to the Worker Screening Rules relevantly provides:

These rules set out requirements relating to worker screening. They are an important element of the NDIS practice standards that seek to minimise the risk of harm to people with disability from the people who work closely with them.

While the primary responsibility for recruiting appropriate staff and providing a safe environment for people with disability rests with employers, a worker screening outcome is one source of information that can support employers in fulfilling this responsibility. The national policy for NDIS worker screening will be brought into effect through relevant Commonwealth, State and Territory legislation and policy. The NDIS Commissioner is responsible for working with all Australian Governments to develop and oversee the broad policy design for a nationally consistent approach to NDIS worker screening.

Worker screening is only one of a range of strategies that operate together to reduce risk of harm to people with disability. Providers must also implement additional policies, procedures and practices that assist in identifying and minimising risk of harm to people with disability. This includes promoting positive organisational cultures that do not tolerate abuse, neglect or exploitation; ensuring quality recruitment, selection and screening; and maintaining a focus on education and training.

14. Under cl 13 of the Worker Screening Rules, a registered NDIS provider that provides supports or services to a person with disability in a participating jurisdiction must only allow a worker to engage in a risk assessed role if the worker has a clearance.

15. Section 10B of the NDIS Act provides that the Minister may, by legislative instrument, determine a law of a State or Territory for the purposes of the definition of NDIS worker screening law in s 9, with the agreement of that State or Territory. The NDIS Workers Check Act is such a law. The “screening agency”, being the agency that implements and gives effect to the NDIS Workers Check Act, is the respondent (NSW Government Gazette (No 58), 27 March 2020).

16. Section 3 of the NDIS Workers Check Act provides:

The health, safety and well-being of people with disability and, in particular, protecting them from abuse, violence, neglect and exploitation is the paramount consideration in the operation of this Act.

17. Section 5 of the NDIS Workers Check Act sets out definitions for when a person, convicted of certain offences or with pending criminal proceedings in respect of certain offences, will be a “disqualified person” or a “presumptive disqualified person”.

18. A person who has been convicted of a “disqualifying offence” is a “disqualified person” and cannot be granted a clearance (ss 8(2)(a)). A person who has been convicted of a “presumptively disqualifying offence”, where that offence was committed by the person when an adult, or where there are pending criminal proceedings against a person for a disqualifying or presumptively disqualifying offence, and it is alleged to have been committed by the person when an adult, is a “presumptively disqualified person”. Section 15 provides:

For the purposes of a risk assessment of a presumptively disqualified person, it is to be presumed that the person poses a risk of harm to persons with disability unless there are exceptional circumstances that justify a determination that the person does not pose such a risk.

19. The National Disability Insurance Scheme (Worker Checks) Regulation 2020 (NSW) (the Worker Checks Regulation) prescribes certain offences as a “disqualifying offence” (reg 4) and as a “presumptively disqualifying offence” (reg 5). Generally speaking, disqualifying offences are serious offences such as murder, child abuse and serious offences where the victim is a child or vulnerable person. Presumptively disqualifying offences include manslaughter and unlawful death, drug offences, offences relating to national security and certain offences involving children or vulnerable people.

20. Section 7 provides that certain persons are not permitted to apply for clearance, as follows:

(1)  A person cannot apply for a clearance if:

(a)  the person has had a clearance refused or cancelled under this Act or a corresponding law because the person is a disqualified person, or

(b)  the person has made an application for a clearance under this Act or a corresponding law and that application is pending (whether or not the application is subject to an interim bar), or

(c)  the person currently holds a clearance under this Act or a corresponding law, unless the application is made no more than 3 months before the expiry of the current clearance, or

Note —

An application for a clearance cannot be made more than 3 months before the expiry of an existing clearance.

(d)  the person is subject to a 5-year ban on applying for a clearance as provided by this section following refusal or cancellation of a clearance, or

(e)  in the previous 12 months, an application by the person for a clearance under this Act or a corresponding law has been rejected because the person failed to comply with a requirement to provide information.

(2)  A person who has had a clearance refused or cancelled under this Act or a corresponding law is banned from applying for a clearance for 5 years following the refusal or cancellation, except in the following situations:

(a)  if the cancellation was at the request of the person,

(b)  if there has been a relevant change of circumstances for the purposes of the 5-year ban (as provided by subsection (3)),

(c)  if the refusal or cancellation was because the person is a disqualified person.

21. The last exception in s 7(2) recognises that a five-year ban does not apply to a disqualified person because such a person is permanently disqualified from reapplying for a clearance that has been refused or cancelled.

22. Section 7(3) provides:

Each of the following is a relevant change of circumstances for the purposes of the 5-year ban after refusal or cancellation of a clearance:

(a)  proceedings for an offence on which the refusal or cancellation was based are withdrawn or dealt with without conviction of the person for the offence,

(b)  a finding of guilt for an offence on which the refusal or cancellation was based is quashed or set aside,

(c)  a finding the subject of a risk assessment on which the refusal or cancellation was based is quashed or set aside or otherwise expressly or impliedly ceases to have effect,

(d)  any other change of circumstances that the Screening Agency considers should result in the person being permitted to make an application.

23. Part 3 contains the relevant provisions in relation to risk assessment.

24. Section 13 provides:

Nature of risk assessment

(1)  A risk assessment is an assessment and determination by the Screening Agency as to whether a person poses a risk of harm to persons with disability.

(2)  A reference in this Act to a risk of harm to persons with disability is to be interpreted in accordance with the following principles:

(a)  the risk of harm must be a real and appreciable risk of harm,

(b)  the risk of harm does not need to be likely or significant,

(c)  the risk of harm need not arise from recent events.

(3)  In this Act, harm includes but is not limited to the following:

(a)  personal harm, which means any detrimental effect on a person’s physical, psychological, emotional or financial well-being,

(b)  sexual harm, which means non-consensual or inappropriate conduct of a sexual nature with or towards a person (whether or not that conduct poses a risk of personal harm).

25. Sections 14 and 15 provide:

14   Requirement for risk assessment

(1)  A risk assessment of an applicant for or the holder of a clearance is required in the following circumstances:

(a)  if the applicant or holder is a presumptively disqualified person,

(b)  in circumstances prescribed by the regulations,

(c)  in such other circumstances as the Screening Agency may determine, either generally or in a particular case.

(2)  A risk assessment of an applicant for a clearance is required at the time of application if there are circumstances at the time of application that require a risk assessment.

15   Risk assessment of presumptively disqualified person

For the purposes of a risk assessment of a presumptively disqualified person, it is to be presumed that the person poses a risk of harm to persons with disability unless there are exceptional circumstances that justify a determination that the person does not pose such a risk.

(3)  A risk assessment of the holder of a clearance is required if the Screening Agency becomes aware that there are circumstances that require a risk assessment.

26. Section 16 sets out the matters to be considered in a risk assessment and provides:

The Screening Agency is to consider the following for the purposes of a risk assessment:

(a)  the nature, gravity and circumstances of any offence, misconduct or other event that resulted in or contributed to the requirement for a risk assessment in relation to the person (a relevant event), and how it is relevant to NDIS work,

(b)  the length of time that has passed since a relevant event occurred,

(c)  the vulnerability of any victim of a relevant event at the time of the event and the person’s relationship to the victim or position of authority over the victim at the time of the event,

(d)  the person’s criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour,

(e)  the person’s conduct since a relevant event,

(f)  all other circumstances in respect of the person’s criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work,

(g)  such other matters as the Screening Agency considers appropriate.

27. Relevant to the circumstances in this case, s 20 provides:

Cancellation of clearance

(1)  The Screening Agency must cancel the clearance of a person if the Screening Agency becomes aware that the person is a disqualified person or a risk assessment determines that the person poses a risk of harm to persons with disability.

(2)  The Screening Agency may cancel a clearance for any of the following reasons:

(a)  the Screening Agency is not satisfied that the person is or will be engaged to do NDIS work,

(b)  the clearance was granted pursuant to an application that was not valid,

(c)  the clearance was granted because of a mistake and should not have been granted.

(3)  If the Screening Agency proposes to cancel a clearance other than because the person is a disqualified person, the Screening Agency must notify the person in writing of the proposed cancellation and that the person may make a submission to the Screening Agency within the period specified in the notice.

(4)  The Screening Agency must consider any submission made by the person within the specified period before finally deciding whether to cancel the clearance.

(5)  The Screening Agency must notify the holder of a clearance in writing of the Screening Agency’s decision to cancel the clearance. Notice of the decision must set out the reasons for the cancellation and any right to seek a review under Part 6 (Review of decisions).

(6)  The Screening Agency may give written notice of the cancellation of a clearance to any person that the Screening Agency reasonably believes to be a notifiable person in relation to the holder of the clearance.

28. Section 41 provides that a person aggrieved by a decision to refuse, impose a bar, suspend or cancel a clearance may apply to the Tribunal for administrative review under the ADR Act.

29. Section 63(1) of the ADR Act provides that, in determining an application for an administrative review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it and may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision, relevantly the respondent (s 63(2)). In determining an application for the administrative review, the Tribunal may decide to affirm or vary the administratively reviewable decision or set aside the administratively reviewable decision and make a decision in substitution or remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal (s 63(3)).

Background

30. The applicant is a 52-year-old man. He was diagnosed with schizophrenia in 2008 and reportedly suffered his first psychotic episode in 2009 following breakup of a relationship. He has been a registered nurse in New South Wales since at least 2008 and was reportedly first registered in Queensland in 1994. At the time of the cancellation and the hearing, the applicant’s registration as a nurse was under review by the Australian Health Practitioner Regulation Agency (AHPRA) and the Health Care Complaints Commission (HCCC). There is also evidence, but little detail, that in 2012 the applicant was reported to AHPRA by his then employer, Chandos Nursing Home, for practising without providing evidence of his nursing registration. It is recorded that the applicant’s employment was terminated at this time but there is no evidence about any investigation undertaken by AHPRA or restrictions imposed on his registration at that time.

31. The applicant has a Diploma of Health Science (Nursing), conferred by the University of Sydney, in 1994. He has a Bachelor of Nursing, conferred by the University of Sydney, in 2012.

32. Between June and December 2022, the applicant sent 168 messages to the Department of the Prime Minister and Cabinet.

33. On 6 December 2022, the applicant used an online form to convey a bomb threat to the Prime Minister’s Department in a communication as follows:

Dear Prime Minister; Bomb planted: 25/12/2022 set for activation at Midday EAST Located; Level 2 CentrePoint Tower Sydney Australia Please remove immediately.

34. On 7 December 2022, the applicant was arrested and charged with using a carriageway service to make a hoax/threat in breach of s 474.16 of the Criminal Code Act 1995 (Cth). It is recorded in the police fact sheet dated 8 December 2022 that police attended the applicant's address because of concerns about his mental health and welfare. It is reported that when he was questioned about sending the emails, the applicant said that he was “just mucking around and having fun” and “it's not hurting anyone”. The applicant participated in an electronically recorded interview and, as recorded in the fact sheet, made full admissions of sending the forms to the Department of the Prime Minister and Cabinet through the website.

35. Following his arrest, the applicant was released on conditional bail and presented to the Sutherland Hospital, with police encouragement, to attend a mental health assessment. The applicant was treated in the hospital for several weeks and was discharged on 5 January 2023, in advance of his hearing on 11 January 2023.

36. The applicant was convicted of the offence under s 474.16 of the Criminal Code Act on 15 February 2023. The offence is in the following terms:

A person commits an offence if:

(a) the person uses a carriage service to send a communication; and

(b) the person does so with the intention of inducing a false belief that an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place.

Penalty: imprisonment for 10 years.

37. He was directed to enter into a Community Correction Order for 12 months pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

38. On 28 February 2023, the applicant filed a sentence appeal, which was listed for hearing on 30 May 2023. On 7 August 2023, the applicant’s sentence and conviction was quashed and orders were made under s 19B of the Crimes Act 1914 (Cth) that the applicant must comply with the following orders for a period of two years:

1. To be of good behaviour for the duration of the order;

2. To attend on his general practitioner monthly for the duration of the order;

3. To attend on Dr Todd Cash, psychiatrist, monthly for the period of the order;

4. To attend on his psychologist, Kathryn Humby, fortnightly for 12 months and then as deemed appropriate by her for the remaining duration of the order;

5. To continue to take his prescribed medication in accordance with medical advice for the duration of the order.

39. As a result of the successful appeal, no conviction was recorded. Under the provisions of section 19B, a Court may be satisfied that the charges are proven but decide, in the opinion of the Court and having regard to the mental condition of the person (relevant to the facts of this case), that:

...it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation.

40. Prior to his arrest and charges, the applicant’s then employer, Estia Health, sent a letter to the applicant regarding allegations made concerning the applicant's conduct during his employment. Estia Health raised concerns that the applicant had not consented to attend an independent medical examination relating to his mental health. In particular, Estia Health raised concerns about email correspondence sent by the applicant to the executive director of Estia Health over the weekend ending 16 October 2022.

41. Estia Health notified AHPRA about these matters on 14 November 2022 and on 28 November 2022, AHPRA held a hearing pursuant to s 150 of the Health Practitioners Regulation National Law NSW (the National Law). Section 150 allows a Council and, relevant to this case, the Nursing and Midwifery Council of NSW (the Council), to suspend or impose conditions on a registered health practitioner’s registration if the Council is satisfied that it is appropriate to do so for the protection of the health or safety of any person or if satisfied the action is otherwise in the public interest. On 9 December 2022, the Council imposed restrictions on the applicant’s registration, including a restriction that the applicant could not work as a registered nurse until he was reviewed by the Council.

42. The AHPRA documents provided to the Tribunal also record a breach by the applicant in 2012 where he was reported to be practising without providing evidence of a current registration. The outcome recorded that the applicant surrendered his registration at that time. There are otherwise no records of breach of the National Law by the applicant.

43. On 6 February 2023, the respondent notified the applicant that a risk assessment was going to be undertaken and, by notice dated 8 February 2024, the applicant was notified that the respondent was proposing to issue him with a notice of exclusion and suspension. In this notice, the respondent referred to an email from the applicant which, according to the respondent, stated that the applicant no longer wanted his NDIS Worker Check clearance. The email referred to is an email from the applicant sent on the same day that he was notified of the risk assessment, namely 6 February 23, to the following effect:

I do not want this Number anymore. I am not at risk of harming people with a disability.

44. The meaning of this email is not entirely clear, although it is apparent that the respondent took this to be a request by the applicant to cancel or revoke his clearance without undertaking a risk assessment. We are not confident this was the intended meaning of the email given the applicant has taken several steps to pursue a clearance through an internal review and merits review with the Tribunal. In any event, the respondent advised that it could not consent to a cancellation in circumstances where the respondent was proposing to undertake a risk assessment. The risk assessment proceeded, and the notice of proposed exclusion and suspension was issued.

45. By notice dated 18 March 2024, the respondent issued the applicant with a notice of exclusion. The applicant was notified he was not allowed to work in NDIS roles that required a clearance and that his exclusion lasted for five years. He was also notified that the exclusion was the result of the risk assessment undertaken by the respondent and that the respondent had determined the applicant posed a risk of harm to persons with disability. The applicant was notified that his clearance was revoked under s 20 of the NDIS Worker Checks Act. It is relevant to note that the revocation of the applicant’s existing clearance was referred to as an “exclusion” in the various notifications.

46. The reasons for the decision were to the following effect:

You were found guilty of use carriage service to make hoax threat in 2023, relating to an incident that occurred in 2022. You communicated a false bomb threat to a government agency.

You were also reported to the Australian Health Practitioners Regulation Agency in 2009, 2012 and 2022 for concerning conduct. Your conduct involved repeated acts of using electronic communication to interact with media, your employer and the government. Your interactions were reported to be of a threatening and unusual nature.

You have a diagnosis of schizophrenia. You are engaged with services and medication to manage your mental health.

Your conduct is relevant to an NDIS setting. People with vulnerability may have greater difficulty identifying, protecting themselves from, and reporting harmful behaviours committed against them or in their presence. Repetition of your behaviours has the potential to result in physical, emotional, or psychological harm to NDIS participants.

You submitted information to us and we have considered it. We accept you have been compliant with medical treatment as per Court orders. You remain under orders to engage with mental health treatment until 2025. You are subject to current restrictions on your nursing registration and ongoing mentoring by the Nursing and Midwifery Council. Given the recency of your behaviours, we do not consider your ongoing engagement with mental health treatment mitigates the risk of harm associated with your behaviours.

We are satisfied that you pose a risk of harm to people with disability. This is due to the psychotic nature of your condition, its duration (2008 to present), the nature of your associated behaviours (delusional, unpredictable), the repetition of your behaviours (one conviction, three complaints) and settings (employment, public platforms) of your conduct.

47. The respondent conducted an internal review. The cancellation decision was affirmed, and the decision was notified to the applicant on 12 April 2024.

48. While the Tribunal conducts a merits review of the decision based on the material available at the time of its decision and it is not bound by the findings of the original decision maker or the reviewer, it is useful to summarise the reasons for the decision made by the reviewer to identify the critical issues in dispute. The reviewer took into account further information provided as part of the review, including medical reports and correspondence with the applicant’s treating team.

49. The reviewer considered that the offences for which the applicant was charged and convicted were serious and, despite the fact that the applicant submitted he had no criminal record as a result of the sentencing appeal, the reviewer took into account the finding of guilt, the nature of offences and the conditions imposed by the Court. The reviewer accepted that the applicant's unmanaged psychotic condition was a contributing factor to his offending but noted that the applicant’s mental health related conduct was relevant to assessing risk of harm to persons with disabilities. The reviewer noted that there is a potential for erratic and dangerous conduct in the context of a psychotic illness and this may cause a person to inflict harm on those in their close proximity, including NDIS participants, who may have difficulty identifying, protecting themselves from, or reporting, harmful behaviour. The reviewer noted that the offending occurred in 2022 and was therefore recent. The reviewer also noted that the submission made by the applicant that he had a clear record in relation to his registration as a nurse should be given limited weight because there had been conditions imposed on his right to practise, including supervised practise and restrictions on undertaking night duty.

50. While the reviewer acknowledged that the applicant had engaged with his mental health practitioners regularly and reportedly had not experienced symptoms of schizophrenia since early 2023, the reviewer did not consider the length of time of the engagement since the offending to be sufficient to mitigate the risk of harm associated with his previous conduct. The reviewer also noted that the applicant remained subject to Court orders until 6 August 2025, which require regular engagement with mental health practitioners and adherence to medication. Taking all of these matters into account, the reviewer was satisfied that the applicant posed a risk of harm to persons with disability.

51. The applicant’s family resides in Queensland and there is evidence that the applicant has lived between Sydney and Queensland, for extended periods since he first obtained his nursing qualifications, to study and work. At the time of the hearing, the applicant was residing in Queensland with his family. He has been working as an assistant in nursing since he returned to work after his admission to hospital in late 2022. At the time of the hearing, the applicant was registered as a nurse, but he has strict conditions on practice regarding supervision, which means that he has not worked as a registered nurse since being hospitalised in December 2022.

Outline of the evidence

52. The respondent provided a bundle of documents filed pursuant to s 58 of the ADR Act. These documents comprise material obtained by the respondent in relation to the applicant’s criminal history and his sentencing appeal, medical records, and reports and documents relating to complaints made about the applicant's conduct as a registered nurse. The respondent issued a summons to the applicant’s treating practitioners and further documents were filed and served relevant to the issues in dispute.

Medical evidence

53. The following is a chronological outline of the medical evidence and reports that were provided by the applicant and the respondent. These reports were variously addressed to AHPRA, the District Court and the Tribunal. They provide evidence of the applicant’s mental health and treatment over a period of time.

54. Dr Sharon Harding, consultant psychiatrist, who is based in Queensland and was treating the applicant before he relocated to Sydney for work, provided a referral report to Dr Chris Davis, from East Sydney Doctors, dated 4 March 2021. This report is important because it provides information about the applicant’s psychiatric history and treatment. The following is an extract from this letter:

I have encouraged [the applicant] to obtain a general practitioner locally in Sydney. I have seen [the applicant] for the past eight years after he initially presented with a psychotic episode. He had been working as a registered nurse at the time. His registration had been suspended and he was monitored by AHPRA for an extended period of time despite being well for several years. He has only returned to working as a registered nurse over the past couple of years and appears to have generally coped well with this. There have been no psychotic symptoms or any symptoms of mood disturbance. [The applicant] has been maintained on Olanzapine 15mg nocte. This has been complicated by weight gain. He has managed to lose weight with Jenny Craig but has been unable to sustain this weight loss.

Given that he has been well for several years I have been in the process of trying to reduce the medication hoping that this will assist with his weight loss. He is having some success with seeing a dietitian. At present his Olanzapine has been reduced to 7.5mg nocte. He appears to be tolerating this well with no breakthrough symptoms.

………..

On mental state examination today (24.02.2021), [the applicant] presents as bright and reactive. There is no thought disorder. There is no delusions. He is not suicidal. His cognition is normal and he presents quite well and with schizophrenia in remission.

55. Dr Atsumi Fukui, consultant psychiatrist, provided an independent health assessment for the applicant at the request of the Council. The report is dated 14 March 2023. Dr Fukui includes considerable detail in his report in relation to the applicant's psychiatric history. He notes that the applicant suffered his first psychotic episode during 2009 following the breakup of a relationship. The applicant was living in Queensland with his family at that time and told Dr Fukui that he was working long hours, seven days a week due to staff shortages while working as a casual nurse. He had a voluntary psychiatric admission to Nambour Hospital for a week under the care of psychiatrist, Dr Sharon Harding. The report notes that the applicant's symptoms were in remission after 12 months.

56. It is also recorded that the applicant attended Sydney University during 2011 to 2012 and converted his Diploma of Nursing to a bachelor’s degree. The applicant was working in an aged care facility in Waverley at that time. It is reported that, after this, the applicant worked for several years in Queensland. He was on a reduced dose of olanzapine from 2017 and maintained this dosage until 2019. The applicant returned to Sydney in 2019 and consulted his then general practitioner, Dr David Baker. Dr Fukui notes, presumably on instruction from the applicant, that he ceased taking olanzapine at that time because of side effects, including weight gain. It is noted in the report that the applicant said he thought Dr Baker said it was fine for him to cease taking this medication. This is a contested matter, which is considered later in these reasons.

57. According to Dr Fukui, leading up to the onset of his psychotic symptoms in December 2022, the applicant travelled to Moscow on a first-class ticket, which was out of character for him. It is reported that the applicant had sleeping difficulties and that, in late 2022, he started experiencing auditory hallucinations while working with Estia Health. The applicant denied that he was experiencing paranoia or that he ever said strange things to the residents in the nursing home. According to Dr Fukui, the applicant admitted that, in hindsight, there was an element of grandiosity in his emails and correspondence. He denied experiencing any thoughts of self-harm, suicidal ideation or thoughts of harm to others.

58. According to Dr Fukui, the applicant suffers from schizophrenia and his recent relapse is in remission following inpatient psychiatric treatment and the re-introduction of anti-psychotic medication. Dr Fukui recommended that the applicant enter the Council’s health programme for ongoing monitoring of his health condition. He opined that the applicant could resume working as a registered nurse with conditions on his registration.

59. Included in the respondent’s bundle is a report from the applicant’s treating clinical psychologist, Kathryn Humby, which was provided to the District Court as part of the applicant’s sentence appeal. The report is dated 15 May 2023. Ms Humby opines that the applicant’s mental illness was the primary causal factor in his offending. She notes that the applicant’s mental health has stabilised since resuming medication although “the possibility of some distorted thinking remains” and the applicant continues to require support with recognising symptoms of schizophrenia and support to maintain reasonable expectations of himself. She recommends that the applicant be discharged under the mental health provisions on condition that he undertake monitoring and treatment for the duration of his order. The conditions recommended by Ms Humby are reflected in the conditions imposed by the Court set out earlier in our decision.

60. According to letters dated 22 May 2023, 14 September 2023 and 12 October 2023 from Dr Graeme Jones, the applicant’s general practitioner in Noosa, he was of the opinion that the applicant’s psychiatric condition was stable and well managed with regular self-administered medication. Dr James opined on each occasion that the applicant was fit to return to full time nursing work, including overnight work.

55. In a short report dated 20 October 2023 addressed to AHPRA, Ms Humby noted that she sees the applicant fortnightly through telehealth reviews. She notes that the applicant had reported to her that he had not experienced symptoms of schizophrenia since early 2023 and was practising self-care and boundary setting strategies to continue in this trend. She opined that the applicant was currently fit to return to work in nursing, including overnight work.

56. Dr Todd Cash provided short reports to AHPRA dated 25 July, 14 September, 9 October and 6 November 2023, following a review on the day of each report. The reports were similar in content. Dr Cash is a consultant psychiatrist, based in Queensland, who was treating the applicant. He observed that the applicant remains well and was symptom free on maintenance medication for his schizophrenia. Dr Cash recommended that the applicant continue medication along the current lines and attend for regular review or monitoring with his general practitioner, Dr James, and Ms Humby or himself, if he returned to work. He opined that the applicant was fit to manage a return to full time work. Dr Cash also stated in the last two reports that overnight work should be manageable as the applicant does not experience side effects with his current medication.

57. The previous medical reports and letters were directed to the AHPRA supervision and monitoring or the District Court proceedings.

58. There were three reports provided by the applicant’s treating practitioners relating to the applicant’s request for a NDIS Worker Check clearance.

59. The first is a letter from Kathryn Humby dated 23 March 2024 addressed to the respondent. She notes that the applicant sees her fortnightly via telehealth for psychology, that he undergoes regular checkups and monitoring with his psychiatrist and general practitioner, and he reports that he strictly complies with his medication regime. Ms Humby also notes that the applicant reports he has not experienced symptoms of schizophrenia since early 2023 and is practising self-care and boundary setting strategies. She states that he is well monitored by family, colleagues and medical/allied health supports, as an added precaution. Ms Humby further states that the applicant “displays no behaviour that would pose a danger to those with a disability or vulnerable persons”. He is reportedly continuing to develop psychological flexibility and resilience and Ms Humby believes the applicant is currently fit to return to work in nursing, including overnight work.

60. The applicant’s general practitioner, Dr Graeme James, provided a letter dated 27 March 2024. The letter noted that the applicant had been compliant with his medication and had not developed any medication-related adverse effects. According to Dr James, the applicant has not displayed any psychotic symptoms, is insightful and aware of early signs of illness, and has not displayed any aggressive tendencies. Dr James opined that he did not consider the applicant a threat to NDIS recipients.

61. Dr Todd Cash provided a letter to the applicant’s lawyer dated 11 June 2024. The letter is in the following terms:

I understand that you are assisting the applicant in relation to his negotiations with AHPRA.

[The applicant] identifies current AHPRA restrictions (particularly the requirement for continuous, direct supervision by a fellow registered nurse) as a barrier to his return to the workforce as a registered nurse in aged care settings and hopes the restrictions can be eased.

I write at his request to confirm that [the applicant] has been seeing me regularly for management of his psychotic illness since July 2023, I have been providing certification regarding his treatment adherence to AHPRA and will be comfortable releasing copies of my clinical notes/correspondence to inform independent medico-legal assessment if required.

68. Because of the reference to AHPRA negotiations it is unclear whether Dr Cash understood his letter would be used in support of the current application for an NDIS Worker Check clearance. However, it is apparent that this letter was submitted by the applicant and his legal representative for this purpose.

69. Lynette Fane De Salis, principal psychologist in the same practice as Kathryn Humby, provided a detailed report dated 12 August 2024. It is apparent that this report was prepared for AHPRA. The report notes that the applicant has attended the clinic since 11 April 2023 for support of his mental health issues and “related legal difficulties”. Relevantly, Ms De Salis reports as follows:

With a diagnosis of Schizophrenia multiple episodes but in sustained remission, [the applicant] has presented over the course of his illness with 2 episodes that indicated deficits in his ability to communicate and interact with others, make judgments, focus, plan and prioritise. Over the past 16 years he has functioned at a high level of responsibility.

………………

A diagnostic evaluation resulted in a treatment plan to concentrate on [the applicant's] awareness of schizophrenic symptoms and strategies to manage his wellbeing and mental state. This was for [the applicant] to understand how periods of unwellness with schizophrenia may contribute to his unconventional behaviours and fluctuations in grandiosity, mood, paranoia and irritability and then intervene early.

70. Ms De Salis further reports:

Whilst [the applicant] continues to manage the chronicity (of) his mental health with medication, therapy tools and creating a work/life balance, his potential relapse from functioning baseline to unwellness will be avoided. The above variables continue to produce favourable therapeutic outcomes so that [the applicant] has the capacity to self-determine an manage his life situation, inclusive of nursing work commitments.

71. Ms De Salis recommends that the applicant be given the necessary AHPRA clearance to pursue his nursing career and that he be monitored in his current treatment plan.

Further relevant documentary evidence provided by the respondent

72. According to the registration details provided by AHPRA, the applicant is registered as a nurse, subject to conditions. It is also noted that his registration renewal date was 31 May 2024 (although the respondent advises it has an end date of 30 May 2025). The public conditions on the applicant’s registration recorded on the AHPRA register include the following:

1. To practise under indirect supervision in accordance with the Council’s regulatory supervision policy and to nominate a supervisor for approval by the Council within 14 days of commencing work or is supervised by the Council and to authorise the approved supervisor to provide written reports to the Council in monthly intervals, or as specified by the Council.

2. To practise no more than three shifts per week.

3. To practise no more than 8 hours per shift.

4. Not to undertake agency nursing.

5. Not to work night duty between 11:00 PM and 6:00 AM.

6. To forward evidence to Council within 14 days of conditions imposed that the practitioner has provided a copy of conditions to his nursing employer.

7. Within seven days of changing the nature or place of practice, the practitioner is to forward evidence to the Council that he has provided a copy of full conditions to the nursing employers.

8. To authorise the Council to exchange information with current and future persons and organisations at places where the practitioner works as a nurse in Australia.

73. There are further conditions recorded on the AHPRA register, referred to as private conditions, to the following effect:

1. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner.

2. To attend for treatment by psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner.

3. To provide a copy of the impaired registrant’s panel report and any subsequent reports and any other information relevant to his health and treatment to the practitioner appointed by the Council and to his treating practitioners.

4. To attend for review by the Council-appointed psychiatrist on a six-monthly basis or as otherwise directed by the Council.

74. Each of the above private conditions includes further details about the requirements for the treatment by the treating practitioner.

75. In response to a request for information from the respondent, HammondCare provided an email dated 8 March 2023 noting that the applicant was employed as a casual specialist dementia advisor registered nurse from 8 March 2021 to 30 December 2022, there was no information relating to any complaints, allegations or incidents relevant to the risk of harm or workplace investigations or findings or disciplinary action against the applicant. HammondCare noted that they were notified by the Council on 9 December 2022 that the applicant was unable to work as a registered nurse until they were advised otherwise, and that the applicant resigned from HammondCare shortly after this notification.

76. The respondent also provided criminal history records checks, which revealed that the applicant had no criminal record.

The applicant’s submissions to the respondent

77. In response to the respondent’s notification about the proposed issue of a notice of exclusion, the applicant sent an email to the respondent dated 9 February 2024. The applicant noted that he was not convicted of the crime mentioned and he did not receive a criminal record. He submitted that at the time of the offence he was overworked, and he had never any stage put any person with a disability at risk. The applicant enclosed various medical reports (referred to above), details of the Court advice on his appeal, and requested that the respondent reconsider its decision.

78. The applicant provided a submission to the reviewer as part of the internal review. This submission was made by email dated 28 March 2024. The applicant stated that as a dedicated and empathetic individual, he wanted to assure the respondent that he did not pose any risk to working with persons with disabilities and that he was committed to providing the support and care necessary to ensure their well-being and success. He was committed to upholding principles of treating people with dignity, respect and equality regardless of their abilities. He stated that he is confident that his compassion, dedication and commitment make him well suited for working with persons with disabilities. He noted that he did not have a criminal record and he had never been convicted of any criminal offence. He noted that his record with AHPRA was “clean” and he provided copies of letters from Dr Cash (dated 27 March 2024), Kathryn Humby (dated 22 March 2024) and Dr James (dated 27 March 2024). The content of these is set out above.

Summonsed documents

79. The respondent produced extracts of documents summonsed from Dr Baker and Dr Harding. A number of these documents related to the applicant’s treatment for HIV and are not relevant to the issues in dispute. The documents produced by Dr Harding included her handwritten clinical notes. The last clinical notes from Dr Harding are dated 7 September 2021. The notes record that the consultation was by FaceTime. It is recorded that the applicant was not experiencing paranoia or hallucinations, excess energy or grand plans. Dr Harding notes that the applicant reported he was coping on olanzapine 2.5mg.

80. According to documents produced by East Sydney Doctors, the applicant was a patient, initially with Dr Chris Davis and then Dr David Baker, from about 2021. He was receiving treatment for HIV and was on regular medication as part of this treatment. There is a treatment plan focussing on the applicant’s treatment for HIV, which refers to the applicant’s diagnosis of schizophrenia but does not include details of any treatment relating to the applicant’s mental health or diagnosis. There is no record in the material produced of anti-psychotic medications until January 2023. There is a record of a referral to Dr Jeremy O’Dea dated 23 February 2023 for opinion and management following the applicant’s psychosis at Christmas 2022 but there is no record of any report from Dr O’Dea. It was noted that the applicant has “very well controlled schizophrenia” and was on 15mg aripiprazole.

Oral evidence

81. The applicant provided a written submission to the Tribunal on 1 August 2024 which was in similar terms to his email submission to the respondent in relation to the internal review. He also gave oral evidence.

82. He told the Tribunal that he started working as a registered nurse in May 1994 at St Vincent's Hospital in Sydney. He said that he has always worked in aged care. The applicant said that at the time of the incident before Christmas 2022, he had been working in three different jobs. He was working in Engadine, had casual work at HammondCare in Miranda, and was doing part-time work with Estia Health in Blakehurst. The applicant said that he stopped working in early December 2022 because he had become unwell. Because he was working three jobs, he was also lacking in sleep. He stopped working after the police came to his home in December 2022.

83. The applicant said that when he came to Sydney, he attended the East Sydney practice. Dr David Baker became his general practitioner. He was not seeing a psychiatrist at that time because Dr Baker said that he did not need to see a psychiatrist as long as they saw each other regularly. The applicant said that he was on a low dose of olanzapine at that time, and he asked Dr Baker if he could go off the medication because of the weight gain and concerns about his cholesterol levels. The applicant said the Dr Baker said “that would be OK” so he stopped taking olanzapine and it was about four or five months later that he started to become unwell. This was in 2022.

84. There was confusion about when the applicant ceased taking olanzapine because both Dr Fukui and Kathryn Humby referred to the applicant ceasing olanzapine in 2019. Given that the applicant said he ceased taking his medication after discussion with Dr Baker, who did not become his general practitioner until 2021, it is more likely that the applicant ceased taking the olanzapine medication until sometime after 2021. This is also consistent with the report of Dr Harding, who stated that she was continuing to prescribe olanzapine, albeit at low dosages, as at March 2021. We also note that later in his evidence, the applicant said that he thinks he did not cease his medication until 2022. We accept this evidence, which is consistent with other information before the Tribunal.

85. The applicant said that there was one episode when he was on night shift during COVID restrictions when he was speaking with a friend and thought that he was speaking to himself. This was the only episode of aberrant behaviour that he can recall other than the incident that occurred in December 2022. There is no evidence about whether the applicant raised concerns or sought treatment at this time.

86. The applicant told the Tribunal that he admitted himself voluntarily to hospital for treatment after his arrest in December 2022 and, after his discharge from hospital and the first Court hearing, he returned to Queensland to live. He said that he returned to live with his family in Queensland because he found it very difficult to gain employment given the restrictions imposed by AHPRA. He said that he saw Dr James and Dr Cash monthly. He also saw Kathryn Humby every fortnight. The applicant told the Tribunal that one of the things that he had learned since being treated by these practitioners was that he needed to stay on his medication.

87. He said that the reason he had wanted to go off the medication was because he did not have auditory hallucinations and felt confident that he would be able to manage without medication. He said that he had been taking olanzapine from 2008 until he decided to cease taking this medication, at Dr Baker's suggestion, when he came to Sydney.

88. The applicant said that he knew that he was becoming unwell when he was working with Estia Health, and he consulted Dr Baker. Dr Baker did not recommend that he recommence taking olanzapine. He contacted Dr Baker when he was in hospital, but he did not see him at that stage and his next appointment with a general practitioner after he was discharged from hospital was with Dr James in Noosa.

89. The applicant also told the Tribunal that he had restrictions on his nursing registration as a result of the 2008 incident. He said that he was first registered in Queensland by the Queensland Nursing and Midwifery Board, however AHPRA imposed restrictions on him because of his psychotic symptoms in 2008. One of the conditions was that he had to see a psychiatrist regularly. It was also a condition that he had to regularly consult a general practitioner, who was Dr James. He believes that those restrictions were lifted in 2012. Despite this, he continued to consult with Dr James and Dr Harding. He moved to Sydney sometime in 2018 but continued to return to Queensland on a regular basis, for treatment and to visit his family. The applicant also said that even though he was working in Sydney, he continued to return to Queensland to obtain treatment from his psychiatrist and general practitioner because they had been his health practitioners for a long time. This ceased when the borders were closed in 2020 during COVID. He remained in Sydney from approximately 2021 because of the border restrictions. From that time, Dr Baker was the only medical practitioner who was treating him.

90. The applicant said that one of the reasons leading up to his correspondence with the Prime Minister’s Office was frustration about the lack of nurses during COVID. He agreed that he was thought disordered at the time and this was affecting his thinking. Lack of sleep was one of the reasons that he had become unwell. He also said that before the police came to speak to him, he was aware that he had been hearing voices. He said that he did not tell anyone because it happened so quickly. The applicant was asked why, when he was feeling unwell, he declined the request from Estia Health that he seek psychiatric assistance. He said that he was hearing voices but was embarrassed about it, and he felt that the best course of action was to resign, although he accepted that he did not resign for some weeks after this refusal.

91. When questioned about these matters and whether he consulted Dr Baker about this, the applicant's evidence was as follows (at pp29-30):

Q:   Recognising that you were feeling unwell, why did you decline the request that you seek psychiatrist assistance?

A:   I was embarrassed about - I was embarrassed about the letters that I had sent, so I thought the best - best course of action would be to resign.

Q:   But, you didn't in fact resign for another month?

A:   Correct. That's right.

Q:   During this period they placed you on paid leave? Is that correct?

A:   I think so, ma'am. I can't remember.

Q:   Can you turn to page 106?

A:   Correct. I spoke to my GP about what had been happening at work. He took a blood test to see if I was OK.

Q:   So, it's your evidence that you spoke to your GP. Did you disclose the nature of the emails you were sending at this time?

A:   I said that I had sent some emails to my boss that weren't quite clear and were a bit disjointed.

Q:   What do you believe your GP was testing your blood for?

A:   I'm not sure ma'am, he just he just took it - he just - I was just pointing out that my GP was looking after my care, that's all. So he was investigating if I was becoming unwell or not, that’s all.

Q;   But, your evidence is at this point of time, so over a period from 14 October to 4 November, so that three weeks has passed, you've been suspended from work, you're on paid leave and you say you're conscious, your evidence now is that you are conscious you are unwell but aside from asking your GP to run a blood test you didn't suggest to him that you obtain psychiatric assistance? Is that correct?

A;   The only psychiatric assistance I had received was through the Board and I told him about this but I hadn't received any other psychiatric assistance.

Q:   And you were actively declining offers made by your employer, Estia, to have you psychiatrically assessed and to have an independent medical assessment conducted?

A:   I did refuse. Yes

Q:   And you didn't attempt to make contact with Dr Harding in that period who had been your treating psychiatrist, your most recent treating psychiatrist?

A:   I think I did ring Dr Harding once to see if I could have a review by - with her but her secretary said she had no appointments available.

Q:   You didn't in this period ask Dr Baker for any psychiatric referral, you only asked him after you were already –

A:   After I came out of hospital. Correct.

Q:   So, in those circumstances do you accept that you didn't proactively attempt to halt or manage what you accept you knew to be apparent illness?

A:   I yeah. I do accept that. Like I said earlier, this is the first time I've ever had auditory hallucinations so the whole thing was very new to me but I try but I did try, I really did try to engage with Dr Baker. I'm sure I did. And -

92. On the issue of what action he would take if he experienced symptoms similar to those experienced in 2022, the applicant said that he would go straight to his doctors or straight to hospital to get an assessment and, since his family was there all the time, they could pick this up quite easily to assist him. The applicant was asked whether, if he were to locate to NSW, he would lose that family support. He agreed he would lose that support if he came to NSW although he did have some family in Kiama. He said that it was his intention to eventually move back to NSW because he was born in Sydney and loves Sydney, although he preferred to stay in Queensland to continue to see Dr Cash until August 2025. If he came back to Sydney, he would get a referral from Dr Cash to see a psychiatrist in Sydney. When asked about what supports he planned to put in place if he moved to Sydney, the applicant said that he had friends here although he accepted that those friends did not notice that he was unwell in 2022.

93. The applicant was questioned as to why he had not disclosed to the respondent the AHPRA restrictions on his registration and he said that he thought the respondent knew about this, despite the fact that he had made the submission that he had a clear record with AHPRA.

94. The applicant said that even though he had applied for, and obtained, an NDIS clearance in 2021, he had not worked with persons with a disability and he had obtained the clearance because this was requested by HammondCare at the time. However, the applicant works with older people with dementia who have a cognitive disability, and worked at HammondCare with persons with dementia for about two years. The applicant confirmed that he had been working as an assistant in nursing since his relocation back to Queensland.

95. Dr Baker gave evidence at the adjourned hearing. He said that the applicant was no longer a patient and he had last seen him on 15 May 2023. Dr Baker said that the key reason why the applicant was seeing him was for his HIV treatment, not his mental health issues. He was aware that the applicant was proposing to cease his anti-psychotic medication but could not recall discussing it with him and he did not advise or instruct the applicant to cease taking this medication. Dr Baker was asked about whether the applicant had ever raised mental health concerns with him. He said that the applicant had not raised any such concerns and, if he had, this would have been disclosed in his medical notes. There was no such reference and the issues raised related to the applicant's HIV treatment. Dr Baker stated that he was contacted by the Sutherland Hospital acute care team in December 2022 and that the applicant came to see him on 20 January 2023. The applicant told him that he had been admitted because had been sending emails but did not tell him that he had been arrested, nor did the applicant tell him that AHPRA had raised issues about his mental health or that there were conditions imposed on his registration. Dr Baker said that he ordered blood tests to be taken but this had to do with the applicant’s HIV treatment and not to do with any issues raised about the applicant's mental health.

96. Dr Baker said that after he became aware of the applicant’s admission to hospital for an episode of psychosis, he met with him on 23 February 2023 and decided to increase the applicant’s olanzapine medication to 20 mg. The last consultation with the applicant was on the 15 May 2023 when he told Dr Baker he was is planning to move to Queensland. Dr Baker told the applicant that he needed treatment from a psychiatrist in Queensland.

97. Dr Baker was asked whether he saw patients with psychiatric symptoms like the applicant had experienced. He said that he had experience in this in his practice. In such cases, he would recommend that any person with symptoms of mental illness have regular treatment with a general practitioner and psychiatrist and should not change their medication without advice.

Procedural issues

Non-publication orders

98. At the commencement of the hearing, the applicant requested that the Tribunal make non-disclosure orders over the applicant’s name in the circumstances of the case. The respondent opposed the orders, submitting that there was no confidential evidence or matter or any other good reason for a non-disclosure order in relation to the applicant. In this regard, the respondent relied on the decisions of the Tribunal in Saba v Children's Guardian [2023] NSWCATAD 156 at [90]-[97] and Okunwabusor v Children's Guardian [2023] NSWCATAD 199 at [83]-[87] about the importance of open justice. It is also submitted that the risk of embarrassment or humiliation is not enough (relying on Council of New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [45]).

99. Section 64(1) of the CAT Act provides that the Tribunal may restrict disclosures if “satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason”. This provision deals with non-publication of the name of a person (s 64(1)(a)) and publication restrictions on the broadcasting of reports or evidence given in proceedings, including the contents of a document lodged with the Tribunal (ss 64(1)(b) and (c)).

100. In Okunwabusor and Saba, the Tribunal was not satisfied in either case that there was anything confidential in the evidence that would lead the Tribunal to make a non-publication order in relation to the name of the applicant under s 64(1)(a). In EFA, the Tribunal continued the non-disclosure order because there was no need to disclose EFA’s name to “warn future prospective clients or solicitors” and there was evidence of a risk to the applicant’s mental health. In FPV v Children's Guardian [2023] NSWCATAD 59 at [108]-[116] the Tribunal noted the principles of open justice but also noted that there were differences in the position between a Court and a Tribunal and found there were additional matters, including the safety of the applicant and his family, that warranted upholding the existing non-publication order in the circumstances of that case.

101. Whether the Tribunal exercises the discretion to make non-publication orders under s 64(1) will depend on the facts in each case.

102. In this case, there is evidence that the applicant has a disposition to become unwell under stress and that he is sensitive about both his schizophrenia and HIV diagnosis. These reasons discuss the applicant’s HIV treatment in the context of the focus of the applicant’s medical treatment by Dr Baker. Neither schizophrenia nor HIV should be stigmatised, however we accept that these are matters where confidentiality should be maintained if an applicant is sensitive about these matters or has concerns and disclosure does not serve the public interest or some other regulatory purpose. For instance, there are non-disclosure provisions in the mental health legislation in New South Wales and we note that AHPRA made certain conditions about the applicant’s mental health treatment confidential. These matters go beyond “embarrassment”. The applicant’s diagnosis is outside his control.

103. Accordingly, the Tribunal determined to continue the confidentiality orders under s 64(1)(a) and made further confidentiality orders in relation to the applicant’s detailed medical records under s 64(1)(c) of the CAT Act.

104. It is also relevant to note that, given we have decided to affirm the decision under review and there are strict supervision orders in place by AHPRA, there is no need to disclose the applicant’s name as a matter of public record to ‘warn’ employers, patients and NDIS participants.

Adjournment request

105. At the end of the second day of the hearing, the applicant, through his lawyer, requested an adjournment of the proceedings so that he could obtain further evidence from Dr James and Dr Harding about the applicant’s mental health issues. The respondent opposed the application for an adjournment, noting that the applicant had been directed to provide all evidence on which he wished to rely by August 2024 but no further evidence had been provided.

106. As previously noted, the Tribunal had adjourned the proceedings at the end of the first hearing day to give the parties the opportunity to obtain further evidence about the circumstances leading to the applicant ceasing his long-standing medication in 2021 or 2022. The applicant did not provide any further evidence from those practitioners or from Dr James at that time and it was left to the respondent to issue summonses to Dr Harding and Dr Baker. The documents produced by Dr Harding and Dr Baker and the evidence of Dr Baker at the second hearing (referred to below), provided the Tribunal with more detailed evidence about this issue.

107. The documents produced by Dr Harding were included in the respondent’s supplementary tender bundle and include Dr Harding’s contemporaneous medical notes about the applicant’s treatment and what medication had been prescribed. There is no evidence that Dr Harding ceased the applicant's medication or that she corresponded with his doctors in Sydney about this. There is evidence that Dr Harding reduced his olanzapine dosage in 2021 but there is also evidence that the applicant continued to see her up until September 2021 and that Dr Harding was monitoring him on how he was coping with this reduction. Dr Harding’s last consultation with the applicant was in September 2021, before he ceased his medication.

108. The Tribunal refused the adjournment, noting that the applicant had been given sufficient opportunity to obtain any further evidence. Extensive medical evidence had already been provided, including the clinical notes of Dr Harding. Dr Todd Cash is the applicant’s current treating psychiatrist and medical reports from Dr Cash were included in the both the respondent’s and the applicant’s tender bundle. On the contentious issue of whether Dr Baker had suggested to the applicant that he cease the anti-psychotic medication, the Tribunal has had the benefit of the evidence of both Dr Baker and the applicant on this issue and has drawn its own conclusions. The most reliable evidence about him ceasing medication is the evidence at the hearing given by the applicant himself that he believed he ceased his medication in mid-2022, about four or five months before he started to notice symptoms in October 2022.

109. Accordingly, the Tribunal was not persuaded there was any forensic purpose relevant to the issues in dispute to adjourn the proceedings.

Consideration

110. There is no dispute that the applicant has not been convicted of a disqualifying offence or a presumptively disqualifying offence.

111. As such, the provisions of ss 8(1)(a) and 15 do not apply, and the relevant question for consideration is whether the applicant poses a risk of harm to persons with disability. There are no automatic bans or presumptions of risk. The risk of harm must be “real and appreciable”, and harm may include any detrimental effect on a person’s physical, psychological, emotional or financial well-being.

112. In making an assessment about whether the applicant poses a risk of harm, the Tribunal must consider the matters set out in s 16 of the NDIS Workers Check Act.

Submissions

113. The applicant submits that he should be granted a NDIS Worker Check clearance. While it is conceded that the offence for which he was charged was serious, the fact that he was released on appeal, pursuant to s 19B, on a recognisance without conviction, reflects the Court’s view that his offending was not serious in nature. It is also relevant that the applicant was unwell at the time he committed the offence and that he had ceased taking his medication. It is submitted that this was based on the instructions of his general practitioner, Dr Baker, and the fact that he was no longer on medication was not through any negligence on his own part. The applicant was employed as a specialised dementia advisor with HammondCare from 8 March 2021 to 30 December 2022 and there are no records of any complaints.

114. It is further submitted that the applicant’s conduct is clearly different from other cases where the refusals of NDIS Worker Check clearances have been upheld. It has been nearly two years since the relevant offending and the victim of the offending, namely the Department of Prime Minister and Cabinet, could not be described as a vulnerable victim. The applicant has no criminal history or any history of misconduct. Further, the applicant has engaged in regular treatment since the offending. It is submitted that the medical reports support the contention that the applicant poses little risk to vulnerable persons or persons with disabilities. He has been assessed as being fit to return to full time nursing by several of his treating practitioners.

115. The respondent submits that the Tribunal should dismiss the application for review. The NDIS Worker Check clearance provisions are similar in terms as those under the Child Protection (Working with Children) Act 2012 (NSW) and, as such, the Tribunal should be guided by the principles set out in those cases.

116. The applicant’s offending was erratic and disinhibited and occurred in the context of a psychotic episode when the applicant was not taking his anti-psychotic medication prescribed for his diagnosed schizophrenia. This conduct demonstrates the applicant's tendency to engage in erratic and disinhibited behaviour during a psychotic episode. This is likely to reoccur if the applicant discontinues his anti-psychotic medication and this gives rise to a risk that the applicants behaviour will cause emotional, psychological and physical harm to potential victims of his behaviour, including NDIS participants. The previous conduct of the applicant in his workplace also raises concerns. The applicant’s offending is relatively recent and the length of time that has passed is insufficient to ameliorate the risk posed by the applicant in connection with his mental health and criminal offending. He is currently being treated for schizophrenia.

117. To the extent the applicant relies on evidence that he is presently stable and not experiencing psychotic symptoms, it is relevant that the applicant remains subject to recognisance for a period of two years which will not expire until 6 August 2025. As such, it is submitted that the Tribunal cannot form a view as to the likelihood that his present stability will be maintained, or that he will continue to voluntarily take his anti-psychotic medication, after the expiration of the order. The respondent contends that the applicant has not, during a period when he has not been ordered to comply with treatment and medication, demonstrated that he is willing and able to comply with such a regime of his own accord. In summary, the respondent submits the evidence before the Tribunal reveals that the applicant poses a real and appreciable risk of harm to persons with disability. The history shows a concerning escalation of the applicant's behaviour during a period when he did not have the benefit of medication, to the point of criminal offending. This is a particular concern because if he was to be approved for a NDIS Worker Check clearance he would be entitled to work unsupervised with NDIS participants.

Findings of fact

118. The applicant is a registered nurse. He has a diagnosis of schizophrenia. He was registered from approximately 1994 in Queensland and from at least 2008 in New South Wales. He had his first reported psychotic episode in 2009, following which he voluntarily admitted himself as a psychiatric patient to hospital for a week. He was prescribed olanzapine as an anti-psychotic medication and was on this medication at various dosages from that time until he ceased taking the medication sometime in 2021 but more likely in 2022 until the medicine was restarted during his admission to hospital in December 2022.

119. While we found the applicant to be a credible witness, we do not accept the submission made by his representatives that the applicant was “instructed” to cease his medication by Dr Baker. The evidence of Dr Baker is that he first started treating the applicant in 2021. The main focus of the applicant’s consultations with Dr Baker was treatment for HIV. Dr Baker, and the Sydney practice that he works in, specialises in HIV treatment. Dr Baker was the applicant’s general practitioner from 2021 and there is evidence that he treated the applicant in relation his general health issues. However, the evidence from Dr Baker, which we accept and which is consistent with his clinical records, is that the applicant did not consult with him in relation to his mental health concerns prior to December 2022. To the extent there was any discussion between the applicant and Dr Baker regarding mental health issues before December 2022, it seems to have been limited and peripheral to other health issues being discussed.

120. It was not until the applicant presented himself to hospital and was admitted over Christmas 2022, and he was contacted by the hospital, that Dr Baker became aware of the applicant’s psychosis. The applicant’s evidence was that he “really did try to engage with Dr Baker”. However, his evidence in this regard was vague and evidence that Dr Baker ordered blood tests in response is not only inconsistent with Dr Baker’s evidence but seems an unlikely response from an experienced doctor where the patient is reporting mental health concerns, has a diagnosis of schizophrenia and has ceased taking his medication.

121. We accept that Dr Baker has experience in dealing with patients with mental health issues. This is, however, not his specialty and it is apparent this was not the focus of the consultations between the applicant and Dr Baker. We accept the evidence of Dr Baker that he did not “instruct” or advise the applicant to cease taking his anti-psychotic medication and note that the evidence of the applicant in this regard is to the effect that he asked Dr Baker if he could stop taking olanzapine because of weight gain and cholesterol concerns. The applicant says Dr Baker said that was “OK”. Dr Baker does not recall this.

122. We accept the evidence of Dr Baker that the applicant did not discuss concerns about his mental health at any time prior to his admission to hospital in December 2022. If there was a discussion about olanzapine, it may have been in the context of consultation about other health matters. The difficulty for Dr Baker was that when he first started seeing the applicant, the primary focus was on the applicant’s treatment for HIV and the applicant was also seeing other doctors in relation to his mental health. The applicant’s mental health issues, as reported by Dr Harding, appeared to be stable. The applicant saw Dr Baker regularly but there is no evidence in Dr Baker’s medical files that the applicant consulted with him or raised any concerns about his mental health until after his hospitalisation for acute psychosis in December 2022. There is no mention in his clinical notes that Dr Baker issued prescriptions for olanzapine or any other psychotropic medications. Dr Baker gave evidence that he ordered blood tests as part of the applicant’s HIV treatment.

118. In our view, the inference in the applicant’s written submissions that there was an omission, or some negligence, on the part of Dr Baker in this regard has not been substantiated. On the applicant’s own evidence, he did not disclose important matters to Dr Baker about his mental health issues and behaviour. Dr Baker was an experienced general practitioner and his medical records, and the evidence he gave at the hearing, indicated he was thorough and that he attempted to be proactive once he became aware of the applicant’s admission to hospital with acute psychotic symptoms. We accept that he did not instruct the applicant to cease taking olanzapine. This was a decision made by the applicant because of health side effects from the medicine. He may have mentioned this to Dr Baker, and it is possible that Dr Baker did not object, however the fact that he did not record this in his notes and does not recall the matter suggests that this was not a matter of significance for him at the time. This is consistent with the notion that the applicant did not raise mental health issues of concern with him, and Dr Baker had formed the view, wrongly as it turns out, that the applicant’s psychiatric condition of schizophrenia was stable and his symptoms were in remission. It is unclear whether Dr Baker believed that the applicant’s mental illness continued to be monitored by other clinicians, however we accept that he had no reason to be concerned, or to inquire about, the applicant’s mental health.

119. The applicant was born and spent many years in Sydney, although his parents moved to Queensland where he has lived for many years. There is evidence that the applicant has alternated between both locations and continued treatment with medical practitioners based in Queensland, relevantly, Dr Graeme James and Dr Sharon Harding. However, while living in Sydney, particularly during the COVID restrictions, the applicant was regularly seeing Dr Baker. We accept that he was not being actively monitored in relation to his psychiatric condition from at least September 2021 until admission to hospital in December 2022.

120. We accept that the applicant ceased taking his anti-psychotic medication, was not being regularly assessed by a mental health specialist, and was working long hours and apparently not sleeping, and this resulted in the applicant becoming mentally unwell in late 2022 to such an extent that he developed psychotic symptoms by early December 2022. Leading up to this episode of psychosis, even though the applicant became concerned that he was becoming unwell, he did not seek treatment for his mental health issues or raise these issues with Dr Baker. In October 2024, one of his employers, Estia Health, identified concerns about the applicants conduct and, in particular, his mental health. He was requested to attend an independent health assessment, which he declined.

121. The applicant was also working with HammondCare during this period and there are no reports of misconduct or concerns in relation to the work undertaken by the applicant at that time.

122. On 6 December 2022, the applicant sent communications to the government about a bomb and was arrested and charged on the following day. He admitted the conduct and was initially convicted of a federal offence, however the conviction was later quashed, with the District Court making an order that the applicant be of good behaviour on his own recognisance for a period of two years and no conviction was recorded. The Court also imposed strict conditions relating to the applicant’s medical treatment for the duration of the order, requiring regular attendances on, and treatment by, a general practitioner, psychiatrist and psychologist. The order also requires that the applicant is to take his prescribed medication in accordance with medical advice for the duration of the order. The order expires in August 2025.

123. We do not accept the submission of the applicant that the District Court quashed the convictions because it considered his offending was trivial and minor. The Tribunal has not been provided with any sentencing remarks by the District Court, however it is apparent from the orders that were made that the Court was cognisant of the applicant’s mental health issues, which clearly contributed to the offending. We accept that this is likely to have been the reason behind the s 19B good behaviour order, subject to conditions.

124. The applicant currently has restrictions on his practice as a registered nurse, which include supervision. He has not worked as a registered nurse since December 2022 and has been working as an assistant in nursing in Queensland. While working as a registered nurse, the applicant’s primary area of practice is in aged care. He is not worked with NDIS participants although he has extensive experience in working with people with dementia and cognitive impairment. The applicant’s registration as a nurse is subject to supervisory orders by AHPRA.

125. The applicant currently resides and works in Queensland but proposes, at some stage, to return to NSW to work. He has a close relationship with his immediate family, who live in Queensland, and does not have close family in NSW.

126. The applicant has had a diagnosis of schizophrenia for over 15 years and there is evidence that he has experienced long periods of stability with no evidence of psychosis or complaint. There was an episode of psychosis reported in 2008 and there is reference in the report of Dr Harding, but no other detail, that she had been treating the applicant for eight years, namely since 2012, following an episode of psychosis.

Section 16 considerations

132. The following are matters that must be considered for the purpose of making a risk assessment for the purposes of a NDIS Worker Check clearance.

Nature, gravity and circumstances of any offence or misconduct or other event that resulted in or contributed to the requirement for risk assessment and how it is relevant to NDIS work.

133. The applicant submits the offence was trivial and minor, there is no other misconduct of the applicant and the offence occurred during the applicant’s period of psychosis, which was contributed to by his long work hours, lack of medication and matters outside his control. It is submitted that the applicant has had long periods of stability and that the most recent medical reports suggest the applicant is stable and further episodes of psychosis are unlikely to occur.

134. The respondent submits that the maximum penalty for the offence to which the applicant was originally charged and convicted is imprisonment for 10 years. It is a serious offence and the applicant’s response, when initially questioned about this by police, was cavalier. The applicant’s criminal offending and his conduct in the workplace raises concerns about the applicant's conduct during periods of mental health instability. The circumstances in which the applicant’s past behaviour occurred did not directly involve NDIS work. However, should he become unmedicated and his behaviour go unchecked, the risk of harm when providing services to an NDIS participant would be elevated compared to dealing with the general public.

135. There is force in both submissions. We accept that the seriousness of the applicant’s criminal offending was somewhat ameliorated by the background to his offending, namely the applicant’s deteriorating mental health condition. In this regard the Courts, and apparently the police at first instance, treated the offending as a mental health issue rather than as a serious threat to the public. Despite this, we also accept the submission of the respondent that if the applicant does become unwell, and he engages in elevated or erratic behaviour, an NDIS participant may be adversely impacted by such behaviour. Because of their disability, an NDIS participant may be more affected than a member of the general public by such behaviour. That is, depending on the disability, an NDIS participant may not be as able to identify, and report, the mental health issue as a cause of the behaviour than someone without that disability.

136. We also accept the submission that an NDIS participant may be more exposed to the applicant's behaviour in the context of more limited oversight. Relevantly, there is potential for the applicant to be engaged to provide unsupervised NDIS supports to a participant in their home.

137. On balance, this consideration points towards a finding that the applicant poses a real and appreciable risk of harm to persons with disability. While the applicant has had a diagnosis of schizophrenia for over 15 years, with long periods of stability and without evidence of psychosis or complaint, much will depend on our assessment of the risk of the applicant suffering another psychotic episode, which is considered in more detail below.

The length of time that has passed since a relevant event occurred

138. The applicant submits that it has been two years since the relevant event occurred, there have been no incidents since then and the applicant has remained compliant with medication and treatment in that time. This suggests that the applicant does not pose the relevant risk of harm. In contrast, the respondent submits that over the past two years, the applicant has been subject to strict conditions imposed by the Court under s 19B of the Crimes Act. He has not been otherwise tested and has not demonstrated that he is willing and able to comply with a treatment and medication regime of his own accord. Notably, in 2021 or 2022, when the applicant ceased taking olanzapine, there was no support in place to assist him, nor did he seek to put one in place. This is an important consideration as the applicant will no longer be monitored by reason of the Court-imposed conditions after August 2025.

139. We accept that there is no evidence of mental health instability, which is the significant risk factor, since he was discharged from hospital in early 2023. We also accept that the applicant has been compliant with his medical treatments, however we note that he has been required to follow these treatments by Court orders. The applicant says that he will comply with treatments in the future and much was made, by both parties, about the circumstances leading to the applicant ceasing his medication.

140. As already noted, we do not accept that the applicant was instructed or advised to cease taking olanzapine or that he consulted with Dr Baker about this in a meaningful way. Despite this, we also accept that the applicant’s action in ceasing the medication was not irrational and that it was based on the fact that he was already on a low dosage and had been stable for many years. We accept that he was motivated by his weight gain that he was finding difficult to manage and that this is not an uncommon problem for people taking certain antipsychotic medications. However, the fact that the applicant was not more cautious in his approach in seeking proactive advice about the matter suggests that he may not have appreciated the risks and need for additional monitoring during this period. It is also significant that the applicant did not raise mental health concerns, which were apparent to him by October 2022, with Dr Baker or any other medical practitioner. Having insight in relation to the need for monitoring, particularly when a patient has been on antipsychotic medication continuously for many years and then ceases this medication, is a critical factor. Identifying early warning signs and acting on those quickly is also important because common features of psychotic episodes are paranoia and a lack of insight.

141. Accordingly, we do not consider that the time that has passed substantially ameliorates our assessment of the risk of harm in the circumstances of this case.

Vulnerability of any victim

142. We accept the submission of the applicant that the applicant’s victim, being a government department, was not vulnerable. This submission also appears to be accepted by the respondent, although the respondent submits that the applicant’s response to the police that he was “just having fun” and his actions were “not hurting anyone” suggest he did not fully appreciate the consequences of his actions and the impact they may have had on members of the public. While there is merit to this latter submission, on balance, we find that this is not a consideration which adds significant weight in favour of an assessment that the applicant poses a risk of harm to persons with a disability.

The applicant's criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour

143. The applicant focuses on the lack of a significant criminal history or history of misconduct in comparison with other cases where there has been significant criminal misconduct, such as in the case of FVD v Children's Guardian [2023] NSWCATAD 329. In that case, the applicant was found by the Tribunal to have a “sparse criminal history” and was on his own recognisance, without conviction, despite the fact that he was charged with four common assault offences. The respondent submits that it is not the criminal offending that is significant but rather the applicant’s mental health history which has resulted in the offending, and which reflects a pattern of concerning behaviour over a period of 12 years since 2012.

144. We accept that the applicant does not have a serious and repeated criminal history or history of misconduct. His criminal offending and the reported AHPRA incidents are isolated incidents resulting directly from the applicant's mental health issues at particular stages of his career. There is something of a ‘pattern’ but the incidents are not frequent or sustained. On balance, and when put in context, this history is not a consideration which weighs in favour of an assessment that the applicant poses a risk of harm to persons with a disability.

The applicant’s conduct since the relevant event

145. The applicant contends that he has engaged in treatment since the relevant event noting that, when he was discharged from hospital, he was agreeable to medications and mental health follow up on the background of good engagement and compliance. The applicant also refers to the psychological report provided by Kathryn Humby in 2023 (report dated 5 May 2023), which noted that at that time the applicant experienced few symptoms of mania or hypomania, did not have problems with alcohol and drug use, was not aggressive, generally has supportive connections with his family and friends, acknowledged the importance of personal responsibility and had a good treatment prognosis.

146. The applicant submits that he is currently compliant with his medication, sees his treating specialists regularly and therefore poses little risk to vulnerable persons or persons with disabilities. The applicant contends that this is further supported by the medical reports of Dr Fukui, Dr James, Dr Cash and Ms Lumby, who all opine that he is fit to return to his work as a registered nurse on a full-time basis.

147. The respondent notes that the applicant ceased work as a registered nurse in December 2022 and there is little evidence about the nature of his employment since this time. The respondent submits that the applicant's compliance with treatment must be viewed in the context that he has been closely supervised through Court orders. The respondent also submits that the applicant's correspondence with the respondent suggests that he is in denial about the consequences of his criminal behaviour and conduct, evidenced by him stating that he did not have a criminal record, he had a clean record with AHPRA and the reason for many issues that arose related to the fact that he was overworked due to the issues all nurses were facing because of the COVID pandemic. It is submitted that these inconsistencies in the applicant’s own account demonstrates a lack of engagement with reality and the severity of his own past conduct and, possibly, that he “deliberately sought to mislead” the respondent.

148. In reviewing the written submissions of the applicant addressed to the respondent at the time of the respondent’s risk assessment, it is apparent that he was seeking to advocate for his position and putting forward the most favourable construction on events. The applicant is correct when he says he does not have a criminal conviction, although it is not entirely accurate for him to say that he has a clean record with AHPRA. We do not find that the applicant intended to mislead the respondent, although we accept that the applicant does not appear to acknowledge the seriousness of the issues arising from the psychotic episode in late 2022. In this respect, we accept the submission of the respondent that this suggests the applicant does not have a full appreciation of the potential seriousness and the potential risk to NDIS participants if he again became unwell.

All other circumstances in respect of the applicant’s criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work

149. The applicant made no submissions addressing this consideration. The respondent submitted that the previous offending evidenced the unpredictable nature of the applicant’s past conduct which made the risk to NDIS participants particularly acute, giving their vulnerability.

150. In oral submissions, the respondent submitted that one of the most significant concerns was that the applicant would not be under the supervisory regime imposed by the Court after August 2025, any conditions imposed by AHPRA would not apply to work in the NDIS regime and this was highly relevant given NDIS participants were vulnerable and their care was often provided in the home unsupervised by others.

151. It is not clear from the respondent’s submissions, whether it is also asserted that the applicant would not be subject to any AHPRA restrictions when providing nursing services to an NDIS participant. This would not be the cases as AHPRA restrictions would apply across all arears of practice. Nor is it accepted that all NDIS participants are vulnerable or that they are equally vulnerable. We do accept, however, that some NDIS participants will be vulnerable because of their disability, that an NDIS Worker Check clearance would allow the applicant to work unsupervised in the homes of NDIS participants, and that a vulnerable NDIS participant may be at risk if the applicant had another psychotic episode.

Conclusions

152. When all the considerations referred to above are taken into account, we are satisfied on the balance of the evidence that the applicant poses a risk of harm to persons with disability. We are satisfied that the risk of harm is real and appreciable and note that is unnecessary for us to make a finding that the risk of harm is “likely” or “significant”. Despite this, we are not satisfied that risk of harm to persons with disability is likely, and we accept that, provided the applicant maintains his compliance with treatment, medication and monitoring, the risk of harm is low. However, we also accept the submissions of the respondent that if the applicant does become unwell and his mental health issues decline, any harm to persons with disability could be significant.

153. The evidence that the applicant has maintained a level of stability for many years before December 2022, despite his diagnosis of schizophrenia, weighs in his favour. Against this, there is evidence that the applicant has had a number of psychotic episodes, and these episodes arose in circumstances where he was either not medicated or was not being adequately monitored by mental health professionals. The most recent episode occurred when the applicant was away from the support of his family, he was not on medication and, even though he was aware that he was becoming unwell, he did not seek appropriate treatment.

154. At the present time, the applicant is being closely monitored by reason of the Court orders and we accept the submission of the respondent that the applicant is, thus far, untested about his compliance in the absence of those orders. We also accept the respondent’s submission that the applicant appears to be overly confident in his ability to remain well and to have insight about the risk to his mental health should symptoms return.

152. This is particularly relevant in context of an NDIS Worker Check clearance because an NDIS participant is potentially more vulnerable than the general population, in-home services to NDIS participants are often unsupervised, and any controls that AHPRA may put in place, or are currently in place through existing AHPRA conditions, will not apply in the NDIS setting if the applicant is not also undertaking nursing work. It may, however, be possible to reach a greater level of satisfaction about the applicant’s risk in the future, particularly if the applicant is able to maintain stability in his psychiatric condition in the absence of the compliance imposed by Court orders and AHPRA conditions. In this regard, we accept both the respondent’s submission that it is too early to tell whether the applicant will remain stable after the mandated conditions elapse, as well as the applicant’s submissions that he has strong prospects for stable health into the future.

153. The Tribunal’s decision does not preclude the applicant from reapplying for a clearance in the future if he is able to satisfy the respondent that there has been a relevant change of circumstances for the purposes of s 7(3)(d) of the NDIS Worker Check Act. In this respect, a key circumstance is likely to be the stability of his mental health after the expiration of Court orders and any AHPRA supervision conditions.

Orders

157. For the reasons set out above, the Tribunal affirms the decision under review.

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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

Decision last updated: 16 January 2025