Nursing and Midwifery Board of Australia v AUGUSTIN (Occupational Discipline)
[2022] ACAT 54
•21 June 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NURSING AND MIDWIFERY BOARD OF AUSTRALIA v AUGUSTIN (Occupational Discipline) [2022] ACAT 54
OR 14/2021
Catchwords: OCCUPATIONAL DISCIPLINE – registered nurse – family violence incident – assault conviction – consent orders sought by parties – consideration of whether proposed orders are appropriate – professional misconduct appropriate characterisation – reprimand appropriate sanction – factors relevant to consideration
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 55, 39
Crime Act 1900 (ACT) s 26
Crimes (Sentence Administration) Act 2005 ss 85, 86
Health Practitioner Regulation National Law (ACT) ss 5, 130, 192, 193, 196
Subordinate
legislation cited:Code of Conduct for Nurses cl 1.2
Cases cited:Australian Investment and Securities Commission v Administrative Appeals Tribunal [2009] FCAFC 185
Council of the Law Society of the ACT v Davey [2019] ACTSCFC
Council of the Law Society of the ACT v Legal Practitioner 20214 [2022] ACAT 33
Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177Health Ombudsman v Field [2019] QCAT 243
Medical Board of Australia v Yeo [2019] VCAT 1928
Nursing & Midwifery Board v Gregory John Hogan [2018] TasHPT 3Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157
Tribunal: Senior Member K Katavic
Date of Orders: 21 June 2022
Date of Reasons for Decision: 21 June 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 14/2021
BETWEEN:
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND:
DILJO AUGUSTIN
Respondent
TRIBUNAL:Senior Member K Katavic
DATE:21 June 2022
ORDER
The Tribunal being satisfied that the respondent has behaved in a way that constitutes professional misconduct within the meaning of paragraph (c) of the definition of ‘professional misconduct’ in section 5 of the Health Practitioner Regulation National Law (ACT) (the National Law), the Tribunal orders by consent:
The respondent is reprimanded.
The Tribunal further orders:
The publication of the following matters contained in documents filed with the Tribunal or matters contained in documents received by the Tribunal is prohibited:
(a)The respondent’s wife’s name;
(b)The respondent’s child’s name;
(c)The respondent’s place of employment.
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
On 13 October 2021, the Nursing and Midwifery Board of Australia commenced disciplinary action in the tribunal against Diljo Augustin pursuant to section 193(1)(a)(i) of the Health Practitioner Regulation National Law (ACT) (the National Law) (the Application).
At all material times the respondent was registered with the respondent as a Registered Nurse (Division 1). He was first registered in Australia on 12 May 2009. He is employed at a hospital in the ACT.[1] He is married with one infant child. The couple have a second child due in May 2022.
[1] The parties agreed adopting this description of the respondent’s employer so as to avoid any identification of his wife.
The Application charged the respondent with failing to adhere to clause 1.2(c) of the Code of Conduct for Nurses (the Code) constituting professional misconduct within the meaning of paragraph (c) of the definition of ‘professional misconduct’ in section 5 of the National Law by engaging in conduct which is inconsistent with being a fit and proper person to hold registration in the profession, in that he committed an act of family violence against his domestic partner.
In response to the application, the respondent accepted he had engaged in professional misconduct as alleged. The parties filed with the tribunal, by consent, a statement of agreed facts, agreement that the respondent had breached the provision of the National Law, agreement as to the characterisation of the respondent’s conduct, and agreement as to proposed sanction for the purposes of the Tribunal making orders in accordance with their agreement (the Joint Submission).[2]
[2] Exhibits A and B
The following documents were filed in support of the proposed consent orders:
(a)Bundle of Tribunal Documents.[3]
(b)Respondent’s evidence.[4]
(c)Respondent’s letter to the applicant dated 26 November 2021.[5]
(d)Letter from Wayne Pash, counsellor dated 25 November 2021[6] and briefing letter dated 16 November 2021.[7]
(e)Certificates of Completion for training related to family violence and conflict awareness training completed between 14 and 21 March 2021.[8]
(f)Respondent’s hospital internal training records.[9]
[3] Exhibit C
[4] Exhibit R1
[5] Exhibit R2
[6] Exhibit R3
[7] Exhibit R4
[8] Exhibit R5
[9] Exhibit R6
Section 55 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) governs the making of orders by consent in circumstances where parties reach agreement, the agreed terms are reduced to writing, signed by the parties and lodged with the tribunal, and the tribunal is satisfied the proposed orders or decision would be within the tribunal’s power and appropriate to make. If so satisfied, the tribunal may, relevantly, make the proposed orders or decision without holding a hearing.
The matter was listed before me to hear the application for consent orders and to consider whether it was appropriate to make the proposed consent orders. I was also asked to make certain non-publication orders pursuant to section 39 of the ACAT Act, which I also deal with below.
I am satisfied as to the criteria in section 55(1) of the ACAT Act and make a decision under section 55(2) in accordance with the agreed terms without holding a hearing in relation to the Application.
Agreed facts relating to conduct
In the Joint Submission, the respondent agreed to the following facts which are substantially the same as set out in the Application.
On 25 June 2020, the respondent was charged with common assault under section 26 of the Crimes Act 1900.
The Australian Federal Police statement of facts indicated:
(a) The offending occurred between 11:00pm on 18 June 2020 and 1:00am on 19 June 2020 in the respondent’s premises. The respondent, his wife, his child and his mother-in-law were at the premises.
(b) The respondent was located in the master bedroom of the premises. The respondent’s wife was standing in the doorway and holding their 4-month old child in a feeding position at the time.
(c) The respondent became verbally aggressive towards his wife and began yelling at her.
(d) The respondent left the master bedroom, while doing so striking his wife with a closed fist, making contact with her right shoulder blade causing her to feel pain.
(e) On 24 June 2020, police were notified of the incident referred to above by the respondent’s sister-in-law.[10]
[10] Exhibit A, pages 1-2
On 2 July 2020, the respondent appeared before the Magistrates Court of the Australian Capital Territory (the Court) where he entered a guilty plea to the charge of common assault. This was the first occasion the matter had been before the Court.
On 28 July 2020, the Court found the respondent guilty of common assault and imposed sentences as follows:
(a)To be of good behaviour for a period of 12 months, with an obligation to comply with good behaviour obligations including the core conditions of the order under sections 85 and 86 if the Crimes (Sentence Administration) Act 2005.
(b)Not to assault, harass, threaten or intimidate the wife or child.[11]
[11] Exhibit C, T1A, page 3
The respondent notified the applicant of his conviction in accordance with section 130 of the National Law. The respondent also notified his employer, who subsequently notified the applicant on 6 August 2020.
At the time of the conduct particularised in paragraph 11 above, clause 1.2 of the Code provided that:
Nurses practice honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must: …
c. not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications on their registration.
The charge and agreed characterisation
The applicant referred the matter to the tribunal in the following terms:
Between 18 and 19 June 2020, the respondent engaged in professional misconduct within the meaning of paragraph (c) of the definition of professional misconduct in section 5 of the National Law by engaging in conduct which is inconsistent with being a fit and proper person to hold registration in the profession, in that he committed an act of family violence against his domestic partner.[12]
[12] Applicant’s application submission dated 13 October 2021, annexure A at [4]
‘Professional misconduct’ is defined at paragraph (c) of the National Law as:
professional misconduct, of a registered health practitioner, includes—
…
(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.
In the Joint Submission, the respondent accepted he had breached the Code and accepted that by reason of the conduct described above he had engaged in professional misconduct.
Domestic and family violence of any kind and no matter the degree has no place in our society. Perpetrators are to be held accountable. An important pillar of accountability and education is to recognise that engaging in such conduct has extended consequences for those holding professional registrations, such as the respondent does.
Rightly, acts of domestic and family violence committed by health practitioners can give rise to professional misconduct or unprofessional conduct under the National Law.[13] In Nursing & Midwifery Board v Gregory John Hogan[14] the tribunal concluded that at common law, professional misconduct includes conduct that would be regarded as disgraceful by members of the relevant profession of good reputation. Acts of domestic and family violence are disgraceful and therefore the respondent’s conduct is properly characterised as professional misconduct as reflected in the agreement reached between the parties.
[13] Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157 at [10] citing Nursing & Midwifery Board v Gregory John Hogan [2018] TasHPT 3; Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 and Health Ombudsman v Field [2019] QCAT 243
[14] [2018] TasHPT3 at [22]
The Tribunal agrees that the respondent’s conduct constitutes a breach of the Code and by its nature amounts to professional misconduct. I accept the respondent’s contrition in relation to his conduct, which I discuss in more detail later in these reasons, and acknowledge his unqualified acceptance of the characterisation of his conduct as professional misconduct.
Agreed sanction
The parties reached agreement as to sanction and proposed the respondent be reprimanded pursuant to section 196(2)(a) of the National Law. In the Joint Submission the parties made submissions as to the appropriateness of the proposed sanction. I deal with each submission below.
The respondent’s acceptance that his conduct amounted to professional misconduct
Both parties submitted the respondent had not sought to dispute the seriousness of his conduct and had readily accepted that his conduct amounted to professional misconduct. He did not cavil with that characterisation or that the agreed facts fell within the definition of professional misconduct.
I accept that the respondent’s attitude towards the characterisation of his conduct and early acceptance of the facts and characterisation support the appropriateness of the proposed reprimand.
The respondent’s evidence that the conduct was an isolated incident
The respondent submitted this was an isolated incident. In his disclosure to the applicant, he described having a good relationship with his wife but not with her family, particularly her mother and sister in the United Kingdom. His wife’s mother was staying in their family home at the time of the incident.[15]
[15] Exhibit C, T3, page 11
The respondent has no recorded history of violent behaviour. His colleagues report him to be a kind and compassionate person and easy to get along with.[16] He is actively engaged in his cultural community and has provided medical and other support to the elderly during the bushfire and COVID-19 crises.[17]
[16] Exhibit C, T3B, page 14
[17] Exhibit C, T3C, page 15
The respondent also told the applicant that he was very regretful of the incident and did not seek to justify it.[18] He later explained to the applicant that he had returned home tired and had purchased fast food which his wife started questioning him about. He described going to bed and asking his wife to leave him alone to sleep. She returned to the bedroom with their child some time later after the respondent fell asleep and questioned him again about the food he had purchased. The respondent says he asked his wife again to leave him alone and he became increasingly frustrated as they argued. He says he decided to leave the room through the doorway in which his wife and child were standing pushing her to the side as he did so.[19]
[18] Exhibit C, T3, page 12
[19] Exhibit R1, pages 5-6
Having regard to all of the evidence before the Tribunal, I accept the incident was an isolated one and is a factor relevant to the appropriateness of the reprimand.
The victim did not suffer any injury as a result of the conduct
The respondent submitted that his wife had not suffered injury. The submission was not intended to trivialise the matter but to illustrate that the respondent’s conduct was not at the higher end of the scale and distinguishable from the conduct in Nursing and Midwifery Board of Australia v GMR (GMR).[20] The respondent in GMR had assaulted his daughter with a wooden rolling pin for 20 minutes resulting in her being transported by ambulance for treatment for substantial pain, bruising and swelling to various parts of her body.
[20] [2020] VCAT 157
I agree the conduct in this case is not of the kind described in GMR and the victim in this case did not experience the same physical response as the victim in GMR. However, to say the victim suffered no injury is too high. Perhaps a more accurate description is that the respondent’s wife suffered no physical injury apart from some pain. The Tribunal does not know whether she experienced some mental injury. There is no evidence from the respondent’s wife before the Tribunal. To that end, I acknowledge that the family unit has remained together since the incident and the couple are now expecting their second child.
The practitioner in GMR received a reprimand and one-month suspension of his registration. I accept the respondent’s case can be distinguished from GMR and, while no less serious, the nature of the respondent’s conduct was not at the higher end of the professional misconduct scale.
The respondent has no notification history and promptly notified the applicant after he pleaded guilty to assault
The applicant submitted that the respondent had self-reported the incident to the applicant and his employer soon after his conviction. The applicant also noted the respondent pled guilty at the first opportunity and continuously cooperated with the applicant during its investigation. He has no notification history with the applicant.
I accept these factors relevantly weigh in favour of a reprimand.
The respondent has expressed deep and genuine remorse and has shown insight into his actions during the course of the applicant’s investigation and the tribunal proceedings
I have no doubt the respondent is deeply remorseful of his actions. This is documented multiple times in his various interactions with the applicant and the tribunal and by others.
In his disclosure to the applicant, he sincerely apologised for his actions and said “I am so regretful and sure that such thing will not happen ever again [in] my life”.[21] He went on to say:
I understand my professional commitment towards the community. Being a registered nurse I can reassure that I am a responsible health worker and that responsibility reflects in my every action.[22]
[21] Exhibit C, T3, page 11
[22] Exhibit C, T3, page 11
The respondent said that he apologised to his wife and demonstrated his remorse by undergoing anger management training with Everyman.[23] The applicant acknowledged the respondent took it upon himself to engage with Everyman and address his behaviour prior to being notified of the application being referred to the tribunal.[24]
[23] Exhibit C, T3, page 12
[24] Exhibit R1, page 8
He was asked by the applicant whether he thought what he did was relevant to the nursing profession. His response exemplifies his insight:
Yes. It’s a family violence. Which is a health issue. Nursing staff are in a unique position to provide a first line response. Early intervention can prevent serious harm. Nurses are committed to creating a safe environment that facilitates the disclosure of family violence and support the individual’s participation in decision-making. Nurses have the opportunity to detect family violence early and delivering timely, sensitive and effective care to reduce the impact on the individual, families, the community and the health care system. If I don’t understand the seriousness of the act I did I wont be able to detect family violence early and take care of the patients.
I work with vulnerable people who can be in any kind of emotion due to their situation which could be emotionally draining or confronting or even aggression towards staff. I am responsible to take necessary steps with the intention of best interests to the patients, their family and the people involved in a timely manner. If I cannot handle similar things at home I might not handle it at work either.[25]
[25] Exhibit R1, pages 11-12
I accept the respondent deeply regrets his actions and has shown genuine remorse and insight. This favours the appropriateness of a reprimand.
The respondent has completed education and undergone counselling with a focus on managing his anger
The respondent’s counselling and education was evidenced in the report prepared by Mr Pash a counsellor with Everyman[26] and various certificates and training records.[27]
[26] Exhibit R3
[27] Exhibits R5 and R6
Mr Pash detailed the respondent’s participation in the Preventing Violence, Managing Anger program offered by Everyman in August 2020. Due to COVID-19 restrictions and high demand for the program, the respondent was offered counselling instead and attended 13 sessions. Mr Pash described the respondent as having much insight into his conduct and expressing remorse and responsibility for his actions. He considered the respondent had successfully completed the program albeit through counselling instead and had expressed the ability to better manage his emotions, stress and conflict.
The respondent’s engagement with Everyman was voluntary and shortly followed his conviction.
The respondent’s successful completion of other training, particularly anger management and family violence education through his employer is also indicative of his insight into his behaviour and demonstrates his willingness to take responsibility for his action.
I agree this factor weighs in favour of a reprimand being appropriate.
Unprecedented workforce pressures on the nursing profession
The parties submitted that since the commencement of the COVID-19 pandemic, and particularly following the Omicron outbreak, the nursing profession has experienced unprecedented pressure on its workforce. The parties said that in those circumstances, there is a greater public interest in ensuring that hospitals are adequately staffed and having regard to the specific facts of this case, the imposition of a period of suspension was not considered necessary or appropriate.
While this factor is not overwhelmingly persuasive, I would not have concluded in the circumstances of this case that a period of suspension might otherwise have been warranted. The actions the respondent voluntarily took following the incident from self-notification to education and counselling indicate insight and remorse. It is against that background and the other factors that cause me to consider suspension was not necessary. Pressure on the workforce, whatever the circumstances, would not ordinarily be a factor for declining to impose a particular sanction should the conduct attract such a sanction.
Consent orders
In Council of the Law Society of the ACT v Legal Practitioner 20214[28], the tribunal commented on the tribunal’s task when considering consent orders and observed:
90. In my view, decisions involving orders made by consent should be used with much caution as comparators with seemingly similar cases – especially where there is no consideration as to why the tribunal found a proposed order to be appropriate. Also, even if there are sometimes some similarities, the facts and circumstances in one case invariably differ from the facts in another case. Also, many extraneous and unstated facts and circumstances might have led to the agreement about orders to be made by consent.
…
92. However, for the purposes of section 55 of the ACAT Act, the Tribunal’s task is not to determine the fine it would impose but to determine whether the agreed fine is “appropriate”. That needs to be determined according to all relevant circumstances…
[28] [2022] ACAT 33
In that case, the respondent correctly submitted that if the tribunal was not satisfied that the proposed order was “appropriate to make” the tribunal could not, and should not, make the order, in which case the application would need to proceed to hearing. The tribunal accepted that in response to an application under section 55 the tribunal does not have power to make an order that differs from an agreed order.[29] The tribunal went on to caution parties in future cases about contending that consent orders made in a past case are a good indicator about what orders would be appropriate in a later case.[30]
[29] Council of the Law Society of the ACT v Legal Practitioner 20214 [2022] ACAT 33 at [94]
[30] Council of the Law Society of the ACT v Legal Practitioner 20214 [2022] ACAT 33 at [97]
I echo those views in relation to the sanction agreed between the parties and orders made in this case. While I have expressed the view that in the circumstances of this case a reprimand only is appropriate, that is not be misunderstood as condoning or diminishing the seriousness of the respondent’s conduct or that in some way domestic or family violence should be dealt with lightly in a professional disciplinary context. Each case will turn on its own facts and circumstances. The public reprimand that this decision reflects is nonetheless a serious sanction with consequences for the respondent. It is the respondent’s attitude towards his conduct and engagement in this disciplinary process which favour a reprimand in this case being appropriate.
Non-publication order
Pursuant to section 39 of the ACAT Act, the respondent requested the Tribunal order the non-publication of the respondent’s wife’s name or place of employment and not publish the respondent’s place of employment. The respondent did not seek the non-publication of his name and accepted that as an ordinary part of the disciplinary process. It was not sought to protect him in any way. The request was premised upon maintaining the respondent’s wife’s privacy. Both are employed nurses working in hospitals in Canberra and naming the respondent and his wife’s place of employment may identify her which is unnecessary for the determination of the matter before the Tribunal.
Section 39 of the ACAT Act enables the tribunal to restrict access to information or require hearings to be held in private. This recognises that while the principle of open justice is fundamental to proceedings in courts and tribunals it is not without exception. The circumstances in which the Tribunal may so decide are set out in section 39(5) of the ACAT Act as follows:
(a) to protect the morals, public order or national security in a democratic society, or
(b) because the interests of the private lives of the parties require the privacy, or
(c) to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.
It has been held that a reality of open justice is that the identity of parties and material provided to a court or tribunal will be revealed or be publicly available. This may include information a party regards as private or otherwise be uncomfortable having in the public domain. A cogent reason by reference to the case would be required for the Tribunal to depart from the norm.[31]
[31] Australian Investment and Securities Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [75]
The circumstances of this case involve an already distressing situation for the respondent’s wife which does not warrant any exacerbation through the release of her name or details of the couple’s employment which may identify her and potentially cause further distress. I accept that non-publication in the manner sought limits any connection being made between the respondent and his wife. It is appropriate in the interests of maintaining the respondent’s wife’s privacy to order the non-publication of her name, her place of employment, the respondent’s place of employment and the name of their child.[32] I have extended the order to the respondent’s child’s name in the interests of completeness.
Conclusion
[32] As at the date of the incident and the hearing the respondent only had one child and therefore the non-publication is appropriately only in relation to that child.
A reprimand is not a trivial sanction. It is a strong censure against the respondent for falling below the standards expected of him.[33] The tribunal’s occupational discipline jurisdiction is a protective not punitive one, which must have a focus on the protection of the public, the maintenance of the reputational standards of the profession and deterrence.[34] Any sanction should reflect the minimum force necessary to achieve that protection.[35] This is the measure by which the tribunal assesses whether proposed consent orders are appropriate.
[33] Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157 at [38]
[34] See: Council of the Law Society of the ACT v Legal Practitioner 20214 [2022] ACAT 33 at [77] citing Council of the Law Society of the ACT v Davey [2019] ACTSCFC at [22]
[35] Medical Board of Australia v Yeo [2019] VCAT 1928 at [26]
For the reasons set out above, I am satisfied it is appropriate to make the orders as proposed by the parties and orders under section 39 of the ACAT Act described above.
………………………………..
Senior Member K Katavic
| Dates of hearing: | 28 April 2022 |
| Solicitor for the Applicant: | Ms F Taah, Australian Government Solicitor |
| Solicitor for the Respondent: | Mr T Maling, Elringtons Lawyers |