NURSING AND MIDWIFERY BOARD OF AUSTRALIA and SA
[2021] WASAT 124
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: NURSING AND MIDWIFERY BOARD OF AUSTRALIA and SA [2021] WASAT 124
MEMBER: MR D AITKEN, SENIOR MEMBER
DR B DE VILLIERS, MEMBER
DR B JONES, SESSIONAL MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 15 SEPTEMBER 2021
FILE NO/S: VR 25 of 2020
BETWEEN: NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
SA
Respondent
Catchwords:
Disciplinary proceeding - Relevancy of conduct while not at the workplace - Fit and proper
Legislation:
Criminal Code (WA), s 220, s 440A
Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 31, s 35, s 38, s 41, s 138, s 196(1)(b)(iii), s 196(2)(a), s 196(4)(a), s 196(4)(b)
State Administrative Tribunal 2004 (WA), s 45(3)(a)
Surveillance Devices Act 1998 (WA)
Result:
Respondent found guilty of professional misconduct
Respondent reprimanded
Respondent disqualified from applying for registration as a registered health practitioner for five years
Category: B
Representation:
Counsel:
| Applicant | : | Z Timms |
| Respondent | : | Non-Appearance |
Solicitors:
| Applicant | : | Clayton Utz |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Medical Board of Australia and McCarthy [2020] WASAT 12 (S)
Minniti v Motor Vehicle Industry Board [2011] WASCA 275
Nursing and Midwifery Board of Australia and Hide [2019] WASAT 82
Panegyres v Medical Board of Australia [2020] WASCA 58
REASONS FOR DECISION OF THE TRIBUNAL:
Background
This is a disciplinary proceeding whereby the applicant seeks an order from the Tribunal for the respondent to be reprimanded; disqualified from applying for registration as a health practitioner for a period of not less than five years; and prohibited from providing, directly or indirectly, any health service for a period of not less than five years.
The proceeding originates from allegations that the respondent while he was a registered health practitioner behaved in a manner that constitutes professional misconduct and/or unprofessional conduct by him obtaining without authorisation intimate photographs of a minor in his household and made unauthorised video recordings of the same person when she was in the bathroom at around the age of 18. Her Honour Justice Pritchard had made an order on 2 March 2021 that no information that could identify the witnesses whose evidence gave rise to this proceeding may be disclosed, distributed or published in any way.
Issues to be determined
The following issues arise in this proceeding:
a)Was the respondent at all material times a registered nurse pursuant to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law)?
b)Did the respondent engage in the conduct as alleged?
c)Did the respondent, by engaging in that conduct, fail to adhere to Conduct Statement 3 and/or Conduct Statement 9 of the applicant's Code of Professional Conduct for Nurses in Australia (Code)?
d)Does the respondent's conduct constitute professional misconduct?
e)If the respondent's conduct constitutes professional misconduct, what is the appropriate penalty?
Decision on the documents
The respondent did not participate in the proceeding. Despite efforts to serve the application on the respondent, the applicant was unable to locate the respondent. Her Honour Justice Pritchard made orders on 2 November 2020 that the requirement to serve the application on the respondent pursuant to s 45(3)(a) of the StateAdministrative Tribunal Act 2004 (WA) is dispensed with since the applicant had made all reasonable attempts to effect service. The respondent therefore did not participate in the proceeding and did not contest the facts relied upon by the applicant nor did he oppose the disciplinary outcomes sought by the applicant.
Status of the applicant and respondent
The applicant is established pursuant to s 31 of the National Law and has the functions referred to in s 35 of the National Law, including the referral of matters concerning registered health practitioners, including registered nurses, to responsible tribunals in participating jurisdictions. At all material times the respondent held general registration as a registered nurse (Division 1) pursuant to the National Law. The respondent has not held registration as a registered nurse since 1 July 2017 after he failed to apply for renewal of his registration. The respondent was not at the time when the matter was determined a registered nurse. All the conduct which is the subject of this proceeding occurred whilst the respondent was a registered nurse. Although the respondent's registration has expired, disciplinary proceedings may be taken against him in relation to conduct that occurred whilst he was registered (s 138(2) of the National Law).
Allegations
It is alleged that the respondent, while he was a registered nurse, behaved in a way that constitutes professional misconduct by reason of the respondent:
a)engaging in the conduct referred to at para 12(a) of the application filed in the Tribunal by the applicant on 13 March 2020 (Application). The conduct relates to the unauthorized access of an iPad of a female child to view and copy intimate images; and/or
b)engaging in the conduct referred to at para 12(b) of the Application. The conduct relates to the installation of a recording devise to make unauthorized video recordings of an adult female in an intimate setting without her knowledge or consent; and/or
c)engaging in the conduct referred to above, and thereby failing to adhere to:
i)Conduct Statement 3 of the Code, which requires nurses to practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing; and
ii)Conduct Statement 9 of the Code, which requires nurses to maintain and build on the community's trust and confidence in the nursing profession.
The female is referred to in these reasons as the victim. The applicant's case is based upon the documentary evidence contained within the applicant's Bundle of Documents filed on 25 January 2021 and Supplementary Bundle of Documents filed on 16 February 2021. Those bundles were accepted into evidence and were not contested by the respondent.
Orders sought
If we find that the respondent behaved in a way that constitutes professional misconduct, the applicant submits that the following orders should be made:
a)The respondent has behaved in a way that constitutes professional misconduct (s 196(1)(b)(iii) of the National Law).
b)The respondent is reprimanded (s 196(2)(a) of the National Law).
c)The respondent be disqualified from applying for registration as a registered health practitioner for a period of five years (s 196(4)(a) of the National Law).
d)The respondent be prohibited from providing, either directly or indirectly, any health service for a period of five years (s 196(4)(b) of the National Law).
Evidentiary burden
The burden of proof to establish the facts upon which disciplinary actions is proposed to be taken, rests on the applicant. The standard of proof applicable in disciplinary cases before the Tribunal is the civil standard of proof, with the 'Briginshaw gloss' as articulated by Dixon J:
… The truth is that, when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. ... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.
The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences[.]
(Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at [361]. See also, Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9].)
The respondent does not admit any of the facts alleged by the applicant. Accordingly, the applicant must prove the facts that it alleges. We will consequently need to reach a state of reasonable satisfaction on the basis of clear and credible evidence that the allegations had occurred. It is noted that the respondent has not been convicted of criminal offences related to the incidents the subject of this proceeding.
Finding of fact
In light of the importance to protect the identity of the victim, we shall briefly summarise the facts as they appear from the witness statements that form part of the applicant's Bundle of Documents. Since those witness statements are not challenged we accept them and we are thereby satisfied that the applicant has discharged its evidentiary burden.
The facts of relevance to this proceeding can be summarised as follows: The respondent shared a house with the victim. The victim was the daughter of the partner of the respondent. The respondent accessed without the authorisation of the victim her ipad on which an intimate photo and video she had taken of herself were stored. The victim had kept the images for herself and did not distribute or share them. The respondent sent the images to his own device and stored them. The victim at the time of the photograph was around 13 years of age and at the time of the video was around 15 years of age. When the victim was around 18 years of age the respondent concealed without the approval of the victim a video recorder in her bathroom and made several recordings of her without her approval. Although we did not view or sight the photo and video recordings, we accept the evidence of Detective Senior Constable Coster and Detective Senior Constable Cooke who had viewed them and described what they had seen in their respective witnesses statements. The victim appeared in various stages of undress up to being naked.
We accept that the respondent had admitted when he was interviewed by Senior Constable Cooke that he had placed the recording device in the bathroom. We further find that when the police examined the mobile device of the respondent, they found the password of the victim's mobile telephone saved in his notes. We are therefore satisfied that it is more likely than not that the respondent had engaged in the activities as alleged by the applicant as are set out in para 38 of the submission of the applicant.
We note that the respondent denied the allegations when he was interviewed by the investigating officers, but we reject those denials.
Did the respondent fail to adhere to Conduct Statement 3 and/or Conduct Statement 9 of the Code?
The Code and Guidelines are issued by the applicant pursuant to s 38 of the National Law. The Code and the Guidelines are admissible in proceedings under the National Law as evidence of what constitutes appropriate professional conduct or practice in the profession (s 41 of the National Law).
Conduct Statement 3 of the Code provides that nurses should practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing. In 'Endnote' No 8 to the Code it is noted that the 'relevant laws':
… include the legislation and common law specific to nursing and the health system such as those regulating the conduct of nurses and poisons and therapeutic goods; but also include the many other general laws regulating areas including criminal conduct (such as assault and murder), privacy and negligence. (emphasis added)
We note that our role is not to make any findings as far as the criminal conduct of the respondent is concerned. The question for us is to determine whether the conduct of the respondent is inconsistent with the laws relevant to the nursing profession and the practice of nursing. Although the respondent has not been convicted of a criminal offence, we are satisfied that his conduct may have breached, if not the letter then the intent, of s 220 and s 440A of the Criminal Code (WA) and the Surveillance Devices Act 1998 (WA). In this regard we find that the respondent breached Conduct Statement 3 by having accessed the electronic device of the victim without her approval; having sent to himself and stored images of the victim that were of a private nature; and that he had placed a recording device in the bathroom of the victim and had made video recordings of her without her consent.
In addition to the breach of Conduct Statement 3, Conduct Statement 9 of the Code requires that nurses 'maintain and build on the community's trust and confidence in the nursing profession'. 'Explanation' note 2 that accompanies Statement 9 highlights that ‘unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession's good reputation and standing in the eyes of the public'. Such a loss of reputation may in turn diminish and 'jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and effective delivery of nursing care'. We find that the conduct of the applicant was unethical and that it may undermine the trust of the community not only in himself as a registered nurse but also in the nursing profession. Conduct Statement 9 is not limited to conduct that occurs in the context of the employment of a registered nurse. The scope of the standard is sufficiently wide for us to take into consideration the conduct of the respondent outside his place of employment but in a situation where respect for boundaries; dealing with the vulnerable; respect for privacy; and adherence to generally accepted ethical standards apply.
We therefore find that the respondent had failed to adhere to Conduct Statement 3 of the Code and Conduct Statement 9 of the Code albeit that the events did not take place while he was providing nursing care. Conduct Statement 9 clearly anticipates that we can take into account conduct that occurs outside the place of employment, and in this instance it is appropriate that we do so.
Does the respondent's conduct constitute professional misconduct?
We find that the respondent's conduct would be reasonably regarded as disgraceful or dishonourable by the respondent's professional peers of good repute and competency, and on that basis the conduct amounts to professional misconduct.
We make these finding for the following reasons:
Section 5 of the National Law defines professional misconduct as follows:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[.]
This definition is not intended to establish limits to the types of conduct that can be regarded as professional misconduct. We must ultimately assess the conduct of the respondent and determine if it falls with the broad scope of the definition. As was pointed out in the matter of Panegyres v Medical Board of Australia [2020] WASCA 58 at [152], professional misconduct includes conduct that can be 'reasonably regarded as disgraceful or dishonorable' by peers of the respondent of good repute and competency. Reference to the term 'fit and proper' gives us the widest scope of judgment to assess the conduct of the respondent (Minniti v Motor Vehicle Industry Board [2011] WASCA 275). The moral rectitude of the respondent must be assessed in light of all the facts of relevance to the proceeding.
We find that in light of the circumstances of the events within which the conduct occurred, the respondent has demonstrated himself not to be of sufficient moral integrity to be registered as a nurse. His conduct, albeit in private circumstances, erodes the trust the public would place in him and in the profession. He breached the trust and confidence of a vulnerable person and invaded her privacy within the context of the safety that a parental home should offer, for his selfgratification. The conduct clearly renders him not fit and proper to be entrusted with the duties of a registered nurse.
The conduct of the respondent to gain access to an electronic device of a child in order to send to himself images that she had privately made, is reprehensible; a serious breach of trust; and encroaching on her right to privacy. The public would rightfully be concerned if a person who displayed such conduct was allowed to register as a nurse and to deal with the public in intimate and private circumstances.
The secretive and unauthorized placing of a video recording device in the bathroom of the victim who formed part of his household for purposes of making recordings at a time when she was entitled to total privacy, is depraved conduct. A nurse deals with persons of all ages in the most vulnerable situations, and the respondent has clearly shown that he does not have the moral rectitude or integrity to be entrusted in such situations.
The failure of the respondent to maintain and respect personal boundaries negatively reflects on his character. The pattern of behaviour he exhibited would give rise to a serious breach of trust with the public if he were to be allowed to service their medical and care needs. It is not only his reputation that would suffer but also the reputation of his profession and colleagues.
Finally, the conduct of the respondent would be reasonably regarded as disgraceful or dishonourable by his professional peers in the nursing profession of good repute and competency (Nursing and Midwifery Board of Australia and Hide [2019] WASAT 82 at [36]).
For these reasons we find that the conduct of the respondent amounts to professional misconduct under s 5 of the National Law.
Appropriate penalty in light of the finding of professional misconduct
The respondent did not participate in this proceeding. We have nevertheless carefully and critically considered the submissions of the applicant in light of the evidence before us. We are, in general, in agreement with those submissions. We are satisfied that an appropriate disciplinary outcome based on the facts of this matter is as follows:
a)the respondent be reprimanded under s 196(2)(a) of the National Law; and
b)the respondent be disqualified from applying for registration as a health practitioner for a period of not less than five years from the date of the Tribunal's orders under s 196(4)(a) of the National Law.
It cannot be disputed that here is an obvious need to protect the public and to maintain public confidence in the nursing profession. This is done, inter alia, by ensuring that high professional standards are reinforced, transgressions are denounced, and disciplinary actions taken when necessary. The conduct giving rise to disciplinary action may be related to the place of work or conduct that is relevant albeit outside the workplace. Ultimately the public interest is the determinative factor whether conduct that took place outside the workplace is determined to be relevant and the severity weighted. In this case we have already accepted the relevancy of the respondent's conduct. We must give to the victim, the profession and the public a clear indication of our disapproval in order to ensure public confidence in the nursing profession is maintained, and to satisfy the need for general deterrence.
The penalty we impose takes into account that the conduct of the respondent was ongoing and took place over a long period. It commenced when the victim was a child and the final recording was made when she was around 18. The storing of these images by the respondent add to the seriousness of the breach of trust and the lack of his remorse and insight into his wrongdoing.
We note that the respondent has not previously been the subject of a disciplinary proceeding. We also note that he has not been convicted of any criminal offence arising from these events. The applicant has also informed us that the respondent had indicated that he does not intend to seek re-registration in the future as a nurse. Regardless of these mitigating circumstances, we are satisfied that the penalty sought by the applicant is appropriate and proportional to the circumstances.
The applicant seeks a penalty that comprises a disqualification of five years as well as being prohibited from providing a health service for a period of not less than five years. The applicant says a question arises whether those two sanctions can apply concurrently. In the matter of Medical Board of Australia and McCarthy [2020] WASAT 12 (S) at [77]-[80] the Tribunal found that those penalties cannot be imposed concurrently. We are satisfied that the disqualification of the respondent from applying for registration for a period of not less than five years is a suitable and appropriate outcome of this proceeding. Therefore, there is no need for us to consider the submission put by the application in regard to the question whether the penalties that arise pursuant to s 196(4)(a) and (b) of the National Law can be imposed concurrently.
We are satisfied that the following orders adequately reflect the seriousness of the conduct of the respondent, namely that the respondent is reprimanded (s 196(2)(a) of the National Law) and that he is disqualified from applying for registration as a registered health practitioner for a period of five years (s 196(4)(a) of the National Law).
Orders
1.The respondent has behaved in a way that constitutes professional misconduct pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (WA) Act 2010.
2.The respondent is reprimanded pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (WA) Act 2010.
3.The respondent be disqualified from applying for registration as a registered health practitioner for a period of five years from the date of this order pursuant to s 196(4)(a) of the Health Practitioner Regulation National Law (WA) Act 2010.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B DEVILLIERS, MEMBER
15 SEPTEMBER 2021
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