Nursing and Midwifery Board of Australia v Morrison (Occupational Discipline) - [2022] ACAT 92

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NURSING AND MIDWIFERY BOARD OF AUSTRALIA v MORRISON (Occupational Discipline) [2022] ACAT 92

OR 18/2021

Catchwords: OCCUPATIONAL DISCIPLINE – health professional – failure to appear in proceedings – serious criminal offending – meaning of underlying conduct – whether actions contravened required standards of practice – conduct not occurring in connection with professional practice – relevance of mental health to characterisation of conduct and sanction – amendment of publication orders in light of further materials received by the tribunal
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 8, 38, 39, 40, 56, 63
Health Practitioner Regulation National Law (ACT) ss 5, 130, 156, 193

Subordinate

Legislation cited: Code of Professional Conduct for Nurses in Australia 2013
Code of Conduct for Nurses 2018

Cases cited:Briginshaw v Briginshaw (1938) CLR 336
Chiropractic Board of Australia v Oorloff [2019] VCAT 2010
Health Ombudsman v Field [2019] QCAT 243
HCCC v Buksh [2013] NSWNMT 22
LCK v Health Ombudsman [2020] QCAT 316
Medical Board of Australia v Piesse [2022] VCAT 82
Medical Board of Australia v PYP [2021] VCAT 876
Morrison v Maher [2022] ACTSC 63
Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157
Nursing and Midwifery Board of Australia v Gaffney [2019] SAHPT 11
Psychology Board of Australia v Ferrero [2019] VCAT 1648
Psychology Board of Australia v Sullivan [2017] ACAT 104
Psychology Board of Australia v Fox (No.2) [2015] ACAT 25
Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160
Sudath v Health Care Complaints Commission [2012] NSWCA 171

Tribunal:Senior Member E Ferguson
Member L McGlynn

Date of Orders:  7 November 2022
Date of Reasons for Decision:      7 November 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 18/2021
BETWEEN:
NURSING AND MIDWIFERY BOARD OF AUSTRALIA

Applicant

AND:
SONNEY DOUGLAS LEE MORRISON
Respondent

TRIBUNAL:Senior Member E Ferguson
Member L McGlynn

DATE:7 November 2022

ORDER

The Tribunal orders that:

The respondent is reprimanded.
His registration is cancelled.
He is disqualified from applying for registration as a registered health practitioner until after 18 November 2029 (being ten years from date of his suspension).
He is prohibited from providing any health services unless and until he is registered as a health practitioner under the National Law in the future.
Pursuant to section 56(c)(iii) of the ACT Civil and Administrative Tribunal Act2008 (the Act), the Tribunal amends the Orders dated 18 February 2022 made in this matter under section 39 of the Act by revoking Orders 3 and 4 and substituting them with the following Order numbered “3”:
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 names of the primary victim; and the children of her and the respondent;
(b)     The primary victim’s place of employment;
(c)     The names of the civilian witnesses who provided information or who were interviewed by police in the criminal investigation.

………………………………..
Senior Member E Ferguson
For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

In the reasons below, a reference to ‘ACAT’ or tribunal refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the Members who heard the application.
On 17 December 2021, the Nursing and Midwifery Board of Australia (the Board) commenced disciplinary action (the Application or Referral) in the tribunal against the respondent pursuant to section 193(1)(a)(i) of the Health Practitioner Regulation National Law (ACT) (the National Law).
At all material times, the respondent was registered with the Board as a registered nurse.
On 19 November 2019, after being notified that the respondent had been charged with domestic violence offences and remanded in custody, the Board took action under section 156(1)(e) of the National Law and suspended his registration.
The respondent subsequently pleaded guilty to the charges and was convicted and sentenced in the ACT Magistrates Court of 31 offences, including family violence offences, against his ex-wife.
He appealed to the Supreme Court in respect to the severity of the sentence. On appeal, the Court accepted the withdrawal of his plea of guilty to one charge of stalking, and that charge was dismissed. On 1 April 2022, the Court set aside his sentence and re-sentenced him to a lesser period of imprisonment for the remaining 30 convictions of nine years, four months, and 26 days. The overall sentence expires on 20 September 2028.[1] He is eligible for parole after 25 December 2024.
[1]See Morrison v Maher [2022] ACTSC 63 at [183-184]
On the 11 April 2022, the Board filed an amended application for disciplinary action (the Amended Application) to reflect the decision of the Supreme Court and procedural orders made by the tribunal on the original application.
The offending conduct occurred while the respondent was a registered nurse in the ACT and spanned the period September 2011 to September 2020.

The Issues for determination

Under the National Law, the Tribunal must decide the following:
(a)is alleged the conduct proven; and
(b)to the extent it is:
(i) how should the conduct be characterised?[2]
(ii) what, if any orders are appropriate?[3]
[2] Health Practitioner Regulation National Law 2020 (ACT) section 196(1)
[3] Health Practitioner Regulation National Law 2020 (ACT) section 196(2)
The Board submitted that the conduct that is the subject of the respondent’s convictions, as well as the convictions themselves constitutes:
“professional misconduct” within the meaning of paragraph (c) of the definition of that term of the National Law, because the conduct is inconsistent with him being a fit and proper person to hold registration in the nursing profession; and further or alternatively,
“professional misconduct” within the meaning of paragraph (a) and/or (b) of the definition.[4]
[4] Amended notice of allegation dated 11 April 2022
In this decision, ‘the conduct’ refers collectively to the fact of the convictions and the conduct underlying those convictions. The underlying conduct for the purposes of these proceedings is that described in the police statement of facts relating to each of the charges of which the respondent is currently convicted.
The respondent disagreed with the Board’s submission that the convictions and the underlying conduct are inconsistent with him being a fit and proper person.

Summary of the decision

The Tribunal found that the respondent’s conduct that is the subject of criminal convictions and particularised in the Amended Notice of Allegations 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) (National Law) because it is inconsistent with the respondent being a fit and proper person to hold registration as a health practitioner.
The Tribunal also found that the convictions constitute unprofessional conduct within the meaning of ‘unprofessional conduct’ in section 5 of the National Law and which taken together amount to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience and accordingly also meet the definition of ‘professional misconduct’ within section 5.
In determining what disciplinary orders were appropriate to protect the public and the reputation of the profession in the eyes of the public, we had regard to a range of factors and in particular the serious nature of Mr Morrison’s offending.

The hearing

The Tribunal heard the Amended Application on 8 July 2022. The Alexander Maconochie Centre (AMC) advised the Tribunal on the morning of the final hearing that the respondent was unavailable to attend the hearing due to illness. The Board was represented by counsel. The Tribunal proceeded to hear the matter in the respondent’s absence as he had made clear beforehand that he had no intention of participating further in the proceedings.
Counsel for the Board corrected some obvious errors in the applicant’s documents, including the number of charges the respondent was convicted of. The corrections were acknowledged by the Tribunal and recorded on the transcript. After hearing oral submissions for the Board, we reserved our decision. The reasons for our findings and determinations are set out below. We will deal with the substance of the respondent’s complaint regarding the Victim Impact Statements (the VISs) first before turning to the substantive issues.
The Victim Impact Statements – a question of evidence
The Board adduced a transcript of the of the arraignment and sentencing hearing in the Magistrates Court which recorded the VISs of the primary victim and one of the respondent’s children being read to the Court.
On 16 May 2022, the parties appeared before a differently constituted tribunal for a directions hearing to prepare the matter for hearing (the directions hearing).
The respondent argued that the production of that material was inconsistent with statements made by the Board’s solicitors and the presiding member at the directions hearing at which he alleges:
It was clearly inferred that provided I did not contest the Police Statement of facts the VIS would not necessarily be adduced for my final ACAT hearing.[5]
[5] Supplementary final submission sent by the respondent to AMC Sentence Management Officer on 17 June 2022, forwarded to ACAT on 20 June 2022
Following the directions hearing, the respondent filed a response in which he admitted the alleged conduct for the purposes of these proceedings. Shortly thereafter, the Board adduced the transcript including the VISs.
By email dated 17 June 2022, the respondent informed the ACAT and the Board that he intended to take no further part in the proceedings due to what he described as being “double crossed”.
The Tribunal is not bound to apply the rules of evidence,[6] but it must afford procedural fairness to the parties before it.[7] The Tribunal can decide whether to admit evidence based on fairness and relevance to an issue in dispute, and if it does what weight to give it.
[6] ACT Civil and Administrative Tribunal Act 2008 section 8
[7] ACT Civil and Administrative Tribunal Act 2008 section 7
The respondent’s complaint in regard to the production of the VISs raises the question of whether either the Board or the tribunal gave an implied undertaking to the respondent that the VISs would not be either adduced or considered if he admitted the relevant conduct to the Tribunal and if so:
(a)should the Tribunal exclude from consideration that part of the transcript in which the VISs are read on the basis that it was unfairly adduced? and;
(b)is the respondent’s admission of the underlying conduct to the Tribunal, made after the alleged implied undertaking, reliable?
Background to respondent’s complaint
Before the directions hearing, the respondent had already filed lengthy submissions containing general assertions that the criminal charges, to which he pleaded guilty and was convicted, were based on lies.
Based on appalling advice from a Solicitor and based on the fact that I would never stress my [child] out by being cross examined in a court room, I pled guilty to all charges and the Police Statement of Facts which contained dozens and dozens of lies.[8]
[8] Respondent’s submissions filed 8 April 2022
However, he had not responded to the specific allegations set out in the notice of allegations attached to the Amended Application. The Board had not yet filed all the material upon which it intended to rely.
The directions hearing concluded with the tribunal making directions to prepare the matter for hearing including that:
1. The respondent must file and serve by 20 May 2022 a response to the Notice of Allegations provided with the amended referral to the Tribunal filed on 11 April 2022 indicating whether the R admits or denies each allegation and identifying any other fact he wishes to rely upon in answer to the charge of professional misconduct or unprofessional conduct or on the issue of penalty[9]
2. The applicant is to file and serve the following by 3 June 2022:
a.A written statement of any witness on whose evidence the applicant relies;
b.Any other material the applicant intends to rely upon at the hearing; and
c.A written submission.
[9] ACAT orders dated 16 May 2022 Order 1
The tribunal later amended the directions to extend time for compliance.[10]
[10] ACAT orders dated 31 May 2022
On 17 May 2022, the respondent, in accordance with the amended directions, provided a response to the particulars of the Amended Application in which he stated:
Agree, I plead guilty to and was convicted, of charges as set out in Notice ‘A-BB’. For the purpose of these ACAT proceedings, I admit to engaging in those behaviours /offences.[11]
[11] Response to amended notice of allegation filed 17 May 2022 at [ii]
He denied the Board’s assertion that the findings of guilt and the underlying conduct is inconsistent with him being a fit and proper person to hold registration in the nursing profession.[12]
[12] Response to amended notice of allegation filed 17 May 2022 at [iii]
As directed, the Board filed its bundle of materials dated 10 June 2022 comprising 788 pages, including the transcript of the arraignment and sentencing hearing in the Magistrates Court at which the VISs of both the primary victim and one of the children were read aloud to the Court and recorded. Also included were the police statement of facts for the 30 charges the respondent was convicted of setting out the factual circumstances of each offence.
On 14 June 2022, the Board filed its outline of submissions dated 10 June 2022.
On 17 June 2022, the respondent sent a letter by email to tribunal and the Board’s solicitors which he describes as his “final submission”, in which he refers to the Board’s Outline of Submissions filed on 14 June 2022 and reaffirms that, for the purpose of the proceedings in the Tribunal, he admits the conduct alleged:
I left unchallenged many untruths in the evidence levelled against me, and for the purposes of these proceedings and as stated in the in later section of this submission, admitted to engaging in those behaviours/offences as per the Police Statement of Facts relied upon in these ACAT hearings.[13]
[13] Respondent’s final submissions dated 17 June 2022 page 1
However, he takes issue with an assertion, made in the Board’s outline of submissions, that some of the conduct occurred in situations involving his children.[14]
[14] Applicant’s outline of submissions at [34]
On 17 June 2022, the respondent sent an email to supplement his final submissions (the respondent’s supplementary submission) to the Sentence Management Officer at AMC, and it was forwarded to ACAT on 20 June 2022 in which he said that at the directions hearing on 16 May 2022, he had strongly opposed the VISs of his ex-wife and child being adduced in evidence because the ex-wife’s statement contained lies and that of his child was written by their mother and was therefore “perverted evidence”.[15]
[15] Respondent’s supplementary final submissions dated 17 June 2022
The respondent goes on to say that “today, 20 June 2022” he received material to be relied upon by Minter Ellison (the Board’s solicitors) which included the VISs and accused Minter Ellison and the Tribunal of “double crossing” him and adds:
I am no longer willing to go along with this Tribunal, given that Minter Ellison and the ACAT President [sic] encouraged me to admit everything in return for those VIS not being submitted, my stand on those VIS is in principle that they are personalised against me.
The respondent took no further part in proceedings.
We note that the respondent’s supplementary submission was sent on 17 June 2022, the same day he sent his final submission and so conclude that his reference to 20 June is an error. We also note that the Board filed its materials, including the transcript containing the VISs, on 10 June 2022, but it is possible it was served with the Board’s outline of submissions on 14 June 2022. In any event, we are satisfied that the respondent had the transcript before 17 June 2022, being the day he sent both his final submission and his supplementary submission containing his complaint.
Did either the Board or the Tribunal give an implied undertaking to the respondent that the VISs would not be adduced considered if he admitted the underlying facts to the Tribunal?
Significantly the respondent does not go so far as to say that either the Board or the Tribunal gave an express undertaking that the VISs would not be adduced if he admitted the facts, stating instead:
It was clearly inferred that provided I did not contest the Police Statement of Facts then the VIS would not necessarily be adduced.
Today 20 June 2022 I received the material to be relied upon by Minter Ellison. Unsurprisingly the VIS are in those bundles, in the form of the ‘Transcript of Court Proceedings’
I am no longer willing to go along with this Tribunal, given that Minter Ellison and the ACAT President (sic) encouraged me to admit everything in return for those VIS not being submitted, my stand on those VIS is in principle that they are personalised against me.[16]
[16] Respondent’s supplementary final submission dated 17 June 2022
The Board produced the transcript of the directions hearing on the 16 May 2022 and submitted:
So, the point to make there is that the Senior Member makes, first of all, there is certainly nothing in the nature of an undertaking from the board not to seek to adduce those victim impact statements. And secondly, the Senior Member, although expressing a view about the possible relevance or otherwise of those statements, which I will address it in this hearing, makes it clear to Mr Morrison that he can’t ask the board to give undertakings in relation to evidence and that will be a matter for the Tribunal at the final hearing if there is a dispute about the relevance of those materials.[17]
[17] Transcript of directions hearing dated 16 May 2022 page 10
We find that the transcript of the directions hearing supports the Board’s assertion.
During the directions hearing the respondent expressed concern at the prospect of the Board adducing the VISs in evidence. The presiding Senior Member refused to make directions regarding what evidence the Board was allowed to adduce. The Senior Member observed that the evidence the Board needs to adduce would be determined by the respondent’s response to the specific allegations in the notice, which he was yet to provide.[18] The Senior Member said that the Board would not need to adduce evidence if an allegation was not disputed:
So everything turns on your answer to the allegations, it’s not a question of - I can’t properly ask the Board to give undertakings in relation to the evidence or anything like that. At the moment I can see no basis upon which the Board would be justified to place evidence before the tribunal and victim statements, or any of that material, if, in fact, the allegations that they have made are admitted.
[18] Transcript of directions hearing dated 16 May 2022 page 17
However, the Senior Member makes clear to the respondent that if the Board were to adduce the VISs then the respondent could challenge that evidence on the basis of relevance. The Board’s solicitor agreed that this approach was appropriate saying:
If the circumstances and responses filed that properly sets out Mr Morrison- what Mr Morrison is putting in dispute, we’ll be able to make a much better- informed decisions about the relevance of particular evidence.
In light of what was said at the directions hearing, the respondent may have hoped that by admitting the allegations he had avoided the VISs going before the Tribunal. However, the Senior Member gave no such assurance and made clear that if the material was adduced which the respondent objected to, he was free to challenge its admission and have its admissibility determined by the Tribunal.

The respondent has not sought to retract his admission or to formally object to the material. Instead, he chose not to participate further in the proceedings.
As no express or implied undertaking was given not to produce the VISs the respondent suffers no procedural unfairness as a result of them being put before this Tribunal. We considered the relevance of the VISs to the issues in dispute in this matter, which by, definition, do not include any relevant fact admitted by the respondent.

The conduct alleged

The convictions

The Amended Application included in the amended referral[19] contained particulars of the charges (as corrected at the Supreme Court hearing), including family violence offences against his ex-wife to which the respondent has pleaded guilty and is currently convicted of.[20]
[19] Amended referral to the amended notice of application filed 11 April 2022
[20] These are set out at Annexure A of amended referral; to amended notice of allegation filed 11 April 2022
The first offence, assault occasioning actual bodily harm was committed in September 2011. There are five offences at the end of 2016 including assault occasioning actual bodily harm on two occasions, possessing offensive weapon with intent and endangering life by choking and rendering the primary victim insensible. The offending continued throughout 2018 and into early 2019 including assault occasioning actual bodily harm on two occasions and non-consensual distribution of intimate images on one occasion.
The respondent and the victim separated in January 2019. In March 2019, he was charged with trespassing and damaging property, and the ACT Magistrates Court granted the victim an interim Family Violence Order (FVO). In March and April 2019, he contravened the FVO three times and trespassed on the victim’s premises.
On 27 April 2019, the respondent was arrested. While remanded in custody, he continued to attempt to contact the victim and committed ten more offences, including contravening, and attempting to contravene the FVO, perverting the course of justice, stalking and intentionally using a carriage service to harass. The last offence was committed in September 2020.
The underlying conduct
The Amended Notice of Allegations included at (iii) of the particulars:
The finding of guilt and the underlying conduct are conduct that is inconsistent with Mr Morrison being a fit and proper person to hold registration in the nursing profession.
The allegations in this matter refer to both the convictions and to the underlying conduct. Underlying conduct to a criminal conviction includes the factual circumstances of the offending which aggravate the seriousness of the offence, such as repeated offending or exposure of children to violence. Such factors are relevant both to sentence in criminal courts and to our consideration of whether the respondent is suitable for registration as a nurse.
Whilst the Tribunal is not a court of pleadings, we must afford parties procedural fairness. Extra care must be taken in occupational discipline cases where typically the regulatory body prosecuting the action is legally represented, and the practitioner is not. The practitioner’s reputation and capacity to practise their chosen profession is at risk. The purposes of the Notice of Allegations, like a statement of claim, is to give the respondent notice of the facts upon which the applicant will rely to establish their case so that the respondent has a proper opportunity to answer that case by evidence and argument.
The underlying conduct relied on by the Board is described in the police statement of facts in the Board’s bundle of documents filed on 10 June 2022 and expressly admitted by the respondent in his submission of 17 June 2022. It is apparent from the respondent’s submissions that he understood that the Board was relying on the police statement of facts to describe the factual circumstances of the offences. The contents of the statements of facts were well ventilated in the criminal proceedings and accepted by the Court both at first instance and on appeal. In the circumstances, it was not necessary for the Board to particularise the underlying conduct in its notice of allegations.
Is the underlying conduct admitted?
The respondent does not dispute that he pleaded guilty to and was convicted of the criminal charges as alleged. However, he submitted to ACAT that, “Holistically, the claims of my ex-wife were generally based on lies.”[21] However later, he told the Tribunal that, “for the purposes of the ACAT proceedings, I admit to engaging in those behaviours/offences … as per the police statement of facts relied upon in these ACAT proceedings.” In his letter to the Tribunal on 17 June 2022, he re-stated that position.[22]
[21] Respondent’s submissions filed 8 April 2022
[22] Respondent’s final submissions dated 17 June 2022
The NSW Court of Appeal in Sudath v Health Care Complaints Commission found the Medical Tribunal in determining an occupational discipline referral, erred in not allowing the practitioner to adduce evidence which was inconsistent with evidence and findings in earlier criminal proceedings in which he was convicted and on which the referral was based.
The court concluded, after reviewing relevant case law, that the practitioner was not estopped from challenging findings of fact on which his criminal convictions were based. We concur with its findings and adopted the same approach.
Mr Morrison is not estopped from challenging the findings of facts in the previous criminal proceedings. We must inquire into the underlying conduct put in issue before us and consider all the relevant evidence and material before us and make findings as to whether that conduct occurred.[23]
[23] Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [101]-[102]
However, we are not required to rehear the criminal proceedings which lead to this application. In Sudath, the court found that the medical tribunal was,
... entitled to receive as evidence before it, the certificate of conviction, the trial judge’s findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence before it and in the process of making findings of fact, it is entitled to give those matters significant weight.
A matter of particular pertinence in this case is that Mr Morrison did not challenge the factual basis of his convictions in the criminal proceedings and did not adduce new evidence in these proceedings to rebut those facts.
However, we do not need to conduct an inquiry into the underlying conduct unless it is in dispute. What is the Tribunal to make of the respondent’s inconsistent statements? Has he contested the factual basis for his convictions?
We are satisfied that the respondent made abundantly clear on numerous occasions that he intended the Tribunal to treat the underlying conduct as admitted, the one exception being the assertion that some of it involved his children.
Were children involved in the conduct?
The Board submitted that the offending conduct was “violent, cruel and demeaning to the victim … took various forms and took place in several different contexts, including situations involving children”.[24]
[24] Applicant’s Outline of Submissions filed 14 June 2022 at [34]
The respondent disputed that contention saying:
What I will not stand by and allow is any inference, insinuation or reference, as made by Minter and Ellison that at any time or in any situation did my offending behaviour occur in the presence or as stated ‘involve the [my]children’.[25]
[25] Respondent’s final submissions dated 17 June 2022 page 1
He went on to assert that there was absolutely no evidence in any of the final decisions of the Magistrates Court at first instance or Supreme Court on appeal to support that claim.[26]
[26] Respondent’s final submissions dated 17 June 2022 page 1
The Board referred the Tribunal to observations made by the Supreme Court judge that some of the respondent’s offences, directly involved the children while others indirectly involved the children through the creation of a climate of fear.[27]
[27] Applicant’s submissions in response dated 29 June 2022 at [2] – referencing Mossop J in Morrison v Maher [2022] ACTSC 63 at [105]
By way of example, his Honour[28] refers to the first offence arising in 2011 as described in the police statement of facts in which the respondent assaulted the victim by slapping, kicking and biting her. After the attack, the victim woke her two children and drove to a friend’s house who observed that the victim had black coloured eyes and was bleeding from the mouth. Later that day, she drove with the children to her brother’s house in Melbourne. Her brother took twelve photos of extensive bruising around her eye, on one ear, and on her chin and neck. Her neck also has swelling, finger marks, and petechiae. Both arms had finger marks in the form of bruising, and there was bruising on her stomach.
[28] Morrison v Maher [2022] ACTSC 63 at [37]-[39]
The children would have observed their mother’s obvious injuries even though it is not alleged they were present during the assault. We also note that the respondent directly involved one of his children in his contravention of FVO after he was taken into custody by attempting to send a message to the primary victim via the child.

Analysis and conclusion – conduct admitted or established

The underlying conduct as described in the statement of facts are admitted – the matter put in dispute by the respondent is whether that conduct “involves the children”. In our view, the admitted facts speak for themselves, and we concur with the comments of the sentencing courts and find that some of the offending conduct, described in the statement of facts, objectively involved the children.
While not critical evidence, the VISs of the child supports that conclusion because, as observed in the decision of the sentencing judge on appeal, the impact described in it is consistent with what would be expected from a long-term course of domestic violence offending.[29]
[29] [2022] ACTSC 63 at [104]
We are comfortably satisfied that the conduct particularised in the Amended Notice of Allegations has been established to the necessary standard, on the balance of probabilities, as set out in the decision in Briginshaw v Briginshaw.[30]

Characterisation of conduct

[30] [1938] HCA 34

Having found the alleged conduct proven, it is open to the Tribunal to make the following findings pursuant to section 196(1) of the National Law:
(a)that the respondent has no case to answer, and no further action is to be taken in relation to the matter (section 196(1)(a)); or
(b)that he has behaved in a way that constitutes unprofessional conduct as defined in section 5 of the National Law (section 196(1)(b)(ii)); and/or
(c)that he has behaved in a way that constitutes professional misconduct as defined in section 5 of the National Law (section 196(1)(b)(iii)).
‘Professional misconduct’ is defined in section 5 as follows:
Professional misconduct, of a registered health practitioner, includes—
(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.
‘Unprofessional conduct’ is defined in section 5 as follows:
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and relevantly includes—
…
(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession.
Professional misconduct – general
‘Professional misconduct’ includes any “behaviour of the part of a member of a profession that would reasonably be regarded as disgraceful or dishonest by members of that profession of good repute and competency.”[31] It includes, but is not limited to, the types of behaviour described at paragraphs (a), (b) and (c) of the statutory definition in the National Law. Paragraph (c) expressly includes:
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.
Not a fit and proper person
[31] Medical Board of Australia v Hocking [2015] ACAT 44 at [16]-[19] cited by applicant in applicant’s outline of submissions filed 14 June 2022 at [15]
‘Fit and proper person’ in the National Law includes:
…not only whether a person has the necessary honesty, knowledge and ability but also whether the person possesses sufficient moral integrity and rectitude of character to permit them to be accredited to the public as a person to be entrusted with the sort of work the relevant registration or licenses entails. The decision maker needs to make a value judgement and, in doing so, must make an assessment of the seriousness or otherwise of the particular conduct for evaluation. The same approach is to be taken in weighing matters in favour if the person. The tests must be applied in the context of what the person will be authorised to do if the relevant permission is given.[32]
[32] Psychology Board of Australia v Griersmith [2019] VCAT 52 at [67] cited by applicant in applicant’s outline of submissions filed 14 June 2022 at [16]
The Board submitted that both the convictions and the underlying conduct is inconsistent with the respondent being a fit and proper person to hold registration as a nurse and thus satisfied paragraph (c) of the definition of professional misconduct.
Findings of guilt by a court cannot, absent an express intent in the legislation to the contrary, be naturally construed as conduct of the practitioner. The relevant conduct for the purposes of paragraph (c) of the definition of professional misconduct is the conduct which is the subject of those convictions (the underlying conduct). The fact that in prior criminal proceedings the respondent pleaded guilty and was convicted of the charges simply goes to establishing whether the relevant conduct occurred or not.
By contrast it is the convictions themselves which are of primary importance to paragraph (c) of the definition of unprofessional conduct.

Conduct not in practice

The respondent disagreed with the Board’s submission that the findings of guilt and the underlying conduct are conduct that is inconsistent with him being a fit and proper person to hold registration in the nursing profession.[33]
[33] Amended referral to ACAT filed 11 April 2022 page 1 at (iii)
The respondent submitted that the conduct was limited to circumstances in the context of his relationship with his wife, who he described as his primary attachment figure, and did not affect his professional practice. He argued that his conduct did not breach particular professional standards which related to practice within the workplace, although he conceded that it did breach other standards which related to illegal conduct more broadly.[34]
[34] Respondent’s response to allegations filed 17 May 2022 page 2
Nurses are subject to a code of conduct which establishes a set of minimum professional standards expected of them and warns that contravention of those standards may result in disciplinary action. The code is an essential guide to acceptable conduct for members of the profession and provides examples of types of conduct which may constitute either professional misconduct or unprofessional conduct under the National Law.
At the time of the offences committed between 2011 and 28 February 2018, the applicable Code of Professional Conduct for Nurses in Australia[35] required, at Conduct Statement 9, that “Nurses maintain and build on the community’s trust and confidence in the nursing profession.”
[35] Nursing and Midwifery Board of Australia, Code of Professional Conduct for Nurses in Australia dated 7 March 2013, Applicant’s Bundle of Documents pages 754-762
The explanation of that statement included at point 2:
The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession’s good standing in the eyes of the public. If the good standing of either individual nurses or the profession were to dimmish, this might jeopardise the inherent trust between the nursing profession and the public necessary for the effective delivery of nursing care.
The potential consequences for the practitioner are clearly explained under the heading – ‘Purpose’:
A breach of the Code constitutes either professional misconduct or unprofessional conduct. For the purposes of this Code, professional misconduct refers to the wrong, bad or erroneous conduct of a nurse outside the domain of his or her practice; conduct unbefitting a nurse (e.g .sexual assault, theft, drunk and disorderly conduct on a public place)
At the time of the more recent offences the Code of Conduct for Nurses 2018[36] applied and provided at clause 1.2 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:
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.
[36] Nursing and Midwifery Board of Australia, Code of Conduct for Nurses dated 1 March 2018, Applicant’s Bundle of Documents pages 763-781
We do not accept the respondent’s argument that the conduct does not render him unfit to practise because it occurred in his personal life rather than at work.
The definition of ‘professional misconduct’ in section 5 of the National Law expressly includes conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, as do the professional standards applicable at the time of the conduct.
There are numerous examples of a court or tribunal finding that conduct involving family violence constituted professional misconduct notwithstanding that the conduct occurred outside the practitioner’s practice. Those cases recognise the harm done to public confidence in health services when individual service providers perpetrate family violence.
The following observations made by the tribunal in Medical Board of Australia v PYP, a case involving a medical practitioner who committed an act of family violence against his wife, apply equally to other providers of health services, including nurses:
Our community rightly expects that medical practitioners will not commit a crime of this nature. Conduct of this kind impacts on the standing of and the trust that the community holds in the medical profession.
Medical practitioners are and need to be seen by the community as people who are law abiding, trustworthy and safe to be in proximity to, and respectful, including of women.
An offence of this kind has particular resonance for medical practitioners who may be the first point of contact for a person who is themselves a victim of an act of family violence. This is because the public expects that they will be able to provide good medical care for those who are experiencing abuse and violence, as well as to identify and respond appropriately to the perpetrators of the same.[37]

The nature and seriousness of the offending

[37] Medical Board of Australia v PYP [2021] VCAT 876 at [30]-[32]

The Board correctly described the conduct as including by way of example:[38]
[38] Applicant’s outline of submissions filed 14 June 2022 at [4]
(a)Slapping, kicking, and biting the victim.
(b)Threatening and cutting the victim with a knife.
(c)Kicking and punching the victim on the back and face, causing injury and bleeding.
(d)Choking the victim until she lost consciousness.
(e)Forcing the victim to shave her head.
(f)Distributing sexually explicit images of the victim to the victim’s family friends and colleagues.
(g)Attending the victim’s residence while knowing he was not welcome.
(h)Stalking the victim with intent to harass.
(i)Contravening the family violence order.
(j)Attempting to pervert the course of justice.
(k)Otherwise stalking the victim and attempting to contact her in contravention of the family violence order.
The circumstances of each offence in the context of a course of conduct over many years are thoroughly analysed in the sentencing decisions of the criminal courts. It is not necessary for this Tribunal to go over the same terrain in detail in this decision.
The conduct spanned a period of nine years and persisted even after the respondent was arrested for breaching the FVO and remanded in custody. The victim suffered not only prolonged emotional ordeal, but also significant physical injury as a result of the respondent’s conduct. Some of the conduct occurred in circumstances involving the children. We concur with the comments of Mossop J:
The offending involves serious domestic violence offending. It is offending that is directed to the maintenance of control over the victim. It occurred in the context of a relationship in which physical and emotional tools were used to maintain that control. It occurred in the victim’s home. Some of the offences directly involved the children. Other indirectly involved the children through the creation of a climate of fear. The assessment of the offending must be made with due regard to that context.[39]

Mental health – relevance to characterisation

[39] [2022] ACTSC 63 at [105], applicant’s bundle of documents page 726

The respondent submitted that his diagnosed psychiatric disorders were a “causative or mitigating” factor in his offending.
The Tribunal had before it a substantial body of medical evidence relating to the respondent’s mental health, both before and after he was remanded in custody. The evidence taken as a whole paints a picture of chronic history of mental illness, with acute episodes, throughout his adult life. He suffered an acute mental health episode at time of his arrest in late April 2019.
We adopted the usual approach taken in disciplinary proceedings, that a psychiatric disorder may provide an explanation for the relevant conduct but is not an excuse for the conduct itself, although it may be taken into account in relation to sanctions, in mitigation.[40]
[40] Medical Board of Australia and Pharmacy Board of Australia v L [2019] VCAT 311
We return to the issue of the respondent’s mental health later in the context of mitigation.

Finding on whether fit and proper person under paragraph (c)

We were satisfied that the nature, severity, and persistence of the conduct demonstrated that the respondent lacked the empathy, insight and integrity of character required to continue to practise as a nurse and to maintain public confidence in the profession.
Accordingly, we find that the respondent’s conduct constituted professional misconduct within the meaning of paragraph (c) because it is inconsistent with him being a fit and proper person to hold registration as a nurse.

Professional misconduct under section 5 (a) and (b) – serious unprofessional misconduct

Section 5 of the definition of ‘professional misconduct’ also specifically includes:
(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;
To meet the criteria in (a) or (b), the relevant conduct must satisfy a two-step test – that is, it has to meet the less stringent standard of unprofessional conduct as defined in section 5, but also be sufficiently serious contravention to satisfy the definition of professional misconduct.
Step 1 – Unprofessional conduct
‘Unprofessional conduct’, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes, but is not limited to the types of conduct listed above.
The overarching definition of ‘unprofessional conduct’ in section 5 refers to “professional conduct” but it is clearly not limited to conduct in the course of the practitioner’s professional practice because it specifically includes at (c):
the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession.
Unlike paragraph (c) of the definition of ‘professional misconduct’, the words of paragraph (c) of the definition of ‘unprofessional conduct’ make clear that it is the conviction itself rather than the underlying conduct which, depending on the nature of the offence, may constitute unprofessional conduct.
The intended effect of paragraph (c) seems to be that the conviction is sufficient to conclusively establish the underlying conduct.
The bar for unprofessional conduct under (b) and (c) is relatively low – all that is necessary is that the nature of the offences, either individually or cumulatively, may affect the practitioner’s suitability to continue to practise the profession; and constitute professional conduct of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers. The bar is easily cleared, and we have already found that the respondent’s conduct is inconsistent with him being a fit and proper person to practise.
Further, we find his conduct satisfied the criteria for professional misconduct in that it was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. Indeed, it is below the standard reasonably expected from any registered nurse, let alone one of his considerable professional experiences. Accordingly, we found the conduct was unprofessional conduct of such a nature to qualify as professional misconduct.

Determination/sanction

Having found that the respondent engaged in professional misconduct, section 196(2) confers on us a discretion to make no disciplinary orders or one or more of the orders listed in that section.
Applicable principles
The primary purpose of disciplinary orders is not to punish the practitioner, but to protect the public and protect the reputation of the profession in the eyes of the public.
The following factors have been found relevant to making that determination:
(a)Nature and seriousness of the conduct.
(b)Any plea of guilty.
(c)The relative importance in the case of specific and general deterrence.
(d)Past disciplinary history.
(e)Evidence of character.
(f)Other mitigating factors such as medical or psychological evidence.[41]
The respondent’s circumstances
[41] See for example Chiropractic Board of Australia v Oorloff [2019] VCAT 2010 at [22]
The personal circumstances of the respondent, including his medical and psychiatric history, were considered by both the Magistrates Court and the Supreme Court for sentencing purposes.
The respondent is 46 years old. Prior to the convictions, which are the subject of these proceedings, he had no criminal history. He married the victim when they were both in their teens and they have two children. They separated in January 2019.
Despite an extremely difficult childhood and chronic mental health issues, he has achieved success in both his studies and career:
Despite his difficult childhood, … the offender had an 18 year career in various capacities in the Australian Defence Force, during which time he qualified as a psychiatric nurse. Throughout the period of his offending he worked in this capacity in highly challenging work environments. His registration to practice has now been cancelled.
He has not been the subject of any professional disciplinary action prior to this referral. He provided character references from three work colleagues who knew him through the time he committed the offences, and also socialised with him outside work who spoke of his professionalism and compassion.
As observed by both Courts, no weight can be given to these references given the nature and gravity of respondent’s offending. They only serve to demonstrate the effectiveness of the respondent’s public persona and how he appeared able to conceal his appalling behaviour at home and undermine confidence that, in the future, a potential to reoffend would be identified or deterred.
Mental health
The respondent submitted that he had been diagnosed with the following conditions which he contended were causative or mitigating factors in his offending:
BAD (Type 1), most recent episode with psychotic symptoms, current status in remission
Complex PTSD
Attachment disorder.[42]
[42] Respondent’s response to allegations filed 17 May 2022 page 2
The respondent portrayed the offences as isolated and out of character asserting that, apart from the assault occasioning actual bodily harm in September 2011, the assaults were confined between 2016 to 2018. He attributed his offending to his mental health disorders exacerbated by illicit drug use. He argued that he was acutely unwell during the period of his offending: “I became mentally ill, which led to me using an illicit drug, and reacted poorly within an extremely volatile relationship…”[43]
Relevance of mental health to sanction
[43] Respondent’s final submission dated 17 June 2022 page 2
The QCAT considered the relevance of a practitioner’s mental health in LCK v Health Ombudsman[44]. LCK had taken “up-skirting” videos of young women without their knowledge during a single visit to a shopping centre. The tribunal accepted, on the basis of expert evidence:
… that at the time of the offending the applicant’s capacity was impaired because of his major depressive illness with agitated features, particularly his capacity to control his behaviour and to know that he ought not to do what he did.[45]
[44] [2020] QCAT 316
[45] [2020] QCAT 316 at [13]
The Tribunal found that the applicant’s risk of re-offending was low because the offences occurred in a complicated and stressful set of circumstances which were unlikely to recur.
The Tribunal referred to the leading criminal law case of R v Verdins in which the Victorian Supreme Court considered the relevance of an offender’s mental health to the exercise of the court’s sentencing discretion.[46]
[46] R v Verdins [2007] 16 VR 299 at [32]
We concur with the tribunal’s view in LCK v Health Ombudsman (LCK) that to the extent that the purposes of sanctions in criminal and occupational disciplinary proceedings overlap the decisions such as R v Verdins are relevant to our considerations.
We accept the proposition that generally speaking, a mental disorder may lessen the moral culpability of an offender and so reduce the claims of general or personal deterrence upon the sanctioning discretion.
The Tribunal in LCK accepted the view previously expressed in a previous occupational discipline decision of QCAT that:
The existence of a psychiatric disorder which causes the conduct may be relevant if:
a)     The conduct would not have occurred had it not been for the cause.
b)     The conduct was an aberration, uncharacteristic of the way in which the legal practitioner would otherwise have acted.
c)     The cause has subsequently been removed.[47]
What was the nature and extent of the respondent’s psychiatric disorder, and to what extent did it cause his offending behaviour?
[47] R v Yarwood [2011] QCA 367
Mr Sutton was engaged to conduct a psychological assessment of the respondent and prepare an expert report for the criminal sentencing proceedings. He was briefed with reports from the respondent’s previous treating psychiatrists spanning his first diagnosis of bipolar disorder (BPD) as a teenager up to an including the treatment he received in custody where he has been under the care of the AMC Forensic Mental Health Service.
In these proceedings both parties produced copies of Mr Sutton’s report and the following material he referred to in it:
(a)28 November 2008 – Report of Dr Frank Spruce.[48]
(b)13 August 2009 – Report of Dr John Saboisky.[49]
(c)ACT Health notes relating to period after the respondent is incarcerated from 27 April 2019 to 11 May 2020, including the report of Dr Bree Wyeth dated 6 May 2019.[50]
[48] Applicant’s bundle of documents pages 437-438
[49] Applicant’s bundle of documents pages 439-440
[50] Described as ‘Doc 7’ and ‘Doc 5’ respectively and annexed to respondent’s final submissions dated 17 June 2022.
In addition, the Tribunal had before the following relevant documents:
(a)10 January 2018 – Report of Dr John Saboisky.[51]
(b)6 May 2019 – letter of referral from Dr Wyeth to a Sydney mental health clinic.[52]
(c)Two recent progress reports dated 11 March 2022 and 26 May 2022 from his treating psychiatrist at AMC.[53]
[51] Bundle of documents filed 1 July 2022; Sudath v Health Care Complaints Commission [2012] NSWCA 171
[52] Described as ‘Doc 4’ and annexed to respondent’s final submission dated 17 June 2022.
[53] Described as ‘Doc 3’ and ‘Doc 2’ respectively and annexed to respondent’s final submission dated 17 June 2022
On 6 May 2019, shortly after the respondent was remanded in custody, Dr Wyeth provides an updated summary of the respondent’s mental health status and treatment plan to the respondent’s solicitor for the purpose of a bail application in which she says that:
He [the respondent] has been assessed as having had an acute manic episode with psychotic features. By his report and collateral information from his usual private psychiatrist Dr John Saboisky this appears to be on the background of months of untreated hypomania.[54]
[the respondent] has a diagnosis of Bipolar disorder with symptoms dating back to his teenage years, he has been formally diagnosed and treated from his earlier adulthood. [the respondent] stopped taking his medication in recent months.
On restarting medication since in custody he made sound early recovery.
[54] Described as ‘Doc 4’ and annexed to respondent’s final submission dated 17 June 2022.
On the same day, in a referral to a Sydney mental health facility recorded in clinical notes, Dr Wyeth says:
While the ACT Magistrates Court will determine his legal culpability in due course there are indications from his self report and other information available currently that indicates his manic and psychotic symptoms in recent weeks and months contributed to his offending behaviour.
Mr Sutton concluded from review of history that the respondent has a longstanding diagnosis of BPD dating back to his teenage years and exhibited both depressive and manic symptoms/episodes at different times throughout his adult life. He was prescribed lithium for the condition in 2006 which “turned his life around”. He became addicted to methamphetamines after being introduced to them in 2016. When taken into custody and remanded at the AMC, the respondent was acutely distressed and displaying psychotic symptoms.
We found the test results and conclusions reported were helpful in determining the nature and extent of the respondent’s mental health issues and their relationship to his offending conduct.
Mr Sutton reported that the respondent has at various times been diagnosed with post-traumatic stress disorder (PTSD) and attachment disorder (2010); and suffered two concussive episodes in 1998. Mr Sutton found no evidence for disruption to cognition from traumatic brain injury.
Mr Sutton concluded that, at this point in time the respondent had “very severe comorbid depression” and anxiety disorder (both general and traumatic anxiety), with significantly elevated suicidal ideation:
a.     The manic component of the bipolar disorder was well controlled by his medication.
b.     The severe anxiety and depression is not currently managed. He remained a suicide risk.
c.      There are no current symptoms of psychosis and no current issues with illicit drugs.
d.     His severe levels of anxiety and depression, and dependence on relationships for his sense of self and identity, place him at risk of decompensation when such relationships are threatened.[55]
[55] Report of Tom Sutton dated 14 July 2020 pages 2-3. ‘Decompensation’ is a breakdown in an individual’s normal psychological defence mechanisms resulting in a progressive loss of normal functioning or worsening of psychiatric symptoms
Mr Sutton went on to say:
The psychopathologies, which are independent of any additional drug induced psychosis are permanent, have been present since adolescence, are biological, psychological and social, and are permanent disorders, always requiring management. They will impact, depending upon their fluctuating severity and management, cognition (memory, concentration, reasoning, processing information and speed).[56]
[56] Report of Tom Sutton dated 14 July 2020 at [3]
Mr Sutton was apparently asked to express an opinion on the relationship between the respondent’s mental health disorders and his history of offending, to which he responds:
4. In answer to your series of questions a) to1), I cannot comment on [the respondent’s] past state of mind in reference to each incident. I can say:
a.There was no impairment of reasoning arising from his history of traumatic brain injury, as there is no present evidence for sustained cognitive dysfunctions due to brain damage.
b.My current assessment shows (the R) is vulnerable to decompensation, including into manic episodes and psychosis. This is separate from methamphetamine use which also cause psychosis.[57]
[57] Report of Tom Sutton dated 14 July 2020 at [4]
The most recent progress reports adduced by the respondent confirm that the respondent continues to receive appropriate care at the AMC and his BPD continues to be well managed by medication.

Conclusion – relationship between mental health disorders and offending

According to the clinical and other evidence before the Tribunal, the respondent’s BPD and anxiety and depressive disorders are longstanding, but his symptoms fluctuate in severity depending on management and circumstances. However, there is no clear link between any particular incidence of offending, or his offending in general, and the respondent’s mental health or drug use. We note that he first offence a serious assault occasioning actual bodily harm previously referred to in this decision was unrelated to an identified psychiatric event.
The respondent committed nine offences whilst in custody, despite evidence that his acute symptoms settled quickly in response to treatment received in AMC.[58] These offences included persistent contraventions of the FVO, stalking and attempting to pervert the course of justice.
[58] See Dr Wyeth’s letter dated 6 May 2019
His Honour Mossop J reached the following conclusion from the totality of the evidence regarding the relationship between the respondent’s mental health and his offences:
In summary, the evidence establishes that the appellant suffers from bipolar disorder and that condition is well-treated with medication. It indicates that he has stopped taking his medications prior to his arrest. Precisely when this occurred is not disclosed. There is no expert evidence which indicates that particular offending behaviour was the result of the bipolar disorder or the taking of methamphetamine or other reasons. The evidence relating to the appellant’s mental health is not sufficient to establish on the balance of probabilities a causal link between that condition and his offending which would reduce his moral culpability. …. The evidence is, however a relevant and significant part of his subjective circumstances.[59]
[59] Morrison v Maher [2022] ACTSC 63 at [160]

The respondent did not produce any additional evidence which might call into doubt his Honour’s findings on the causal link between mental health and offending and we are comfortably satisfied on the balance of probabilities that there is none.

Specific deterrence

As a direct result of his offending, the respondent will spend at least five years in gaol and will suffer perhaps irreparable damage to his professional reputation and his closest personal relationships. If those consequences are not enough to deter him from repeating his conduct, then it is unlikely that any sanction available to this Tribunal will.
Notwithstanding the consequence already suffered by the respondent, we are concerned that there is still a significant risk that he will re-offend. We note that even after being arrested and remanded in custody he continued to offend, undeterred by the likely adverse consequences.
The respondent’s insistence that his conduct did not involve the children in submission made in July this year, in our view demonstrates a profound lack of insight into the impact of his conduct. Furthermore, as presented in respondent’s sentence hearing in the Supreme Court, the author of the pre-sentence report was of the opinion that the respondent had been assessed as having a high risk of general re-offending, the primary risk factors being illicit substance use and mental health.[60]

General deterrence

[60] Morrison v Maher [2022] ACTSC 63 at [143]

In considering the importance of general deterrence, the Tribunal looks at respondent’s conduct. Despite having occurred in the domestic rather than public domain, the conduct is so serious in nature and scale as to have the potential to undermine public confidence and trust in the nursing profession and the provision of health services generally.
It is necessary for the public to be assured that nurses, upon which they and their family depend to demonstrate high standards of care, are beyond reproach. The community deserves to expect that they are protected from any member of the profession, found behaving unprofessionally, and that they should be prevented from engaging in clinical practice where deemed appropriate. This establishes a strong expectation that adverse consequences will follow any such misconduct, by any member not upholding these professional standards.

The sanctions

The parties’ submissions

The Board submitted that it would be appropriate for the Tribunal to impose the following determinations:
1.       The [respondent] be reprimanded
2.       His professional registration is cancelled
3.       He is disqualified from applying for registration as a registered health practitioner for a period of 10 years from the date of the Tribunal’s order; or alternatively until after 20 September 2028 (being the last day of the sentence imposed in relation to criminal convictions); and
4.       He is prohibited him from providing any health services, either paid or on a voluntary basis, unless and until he is registered as a registered health practitioner under the National Law in the future.[61]
[61] Applicant’s submissions in reply dated 29 June 2022 at [5]
The respondent submitted that the following sanctions were appropriate in the circumstances:
1. That the suspension of his registration continue for a further period of 2 years and 6 months;
2. He be permitted to continue registration with strict conditions for a specified period:
a.That he remain under permanent psychiatric treatment; and if required
b.Constant drug testing until Board/AHPHRA for as long as the Board/APHRA thinks necessary.[62]
[62] Respondent’s response to allegations filed 17 May 2022 page 3
The determinations sought by both parties are within the discretion of the Tribunal to make under section 196(2) of the National Law. While the Tribunal had regard to the parties’ submissions it was required to exercise its discretion in determining the appropriate sanction having regard to the particular facts of this case.
Comparable cases
While each case turns on its facts, fairness requires that any sanctions imposed be proportionate and consistent with comparable cases. The Board drew our attention to a number of disciplinary cases involving practitioners who had been convicted of violent offences committed in their private life. Some resulted in custodial sentences. The offences were of varying degrees of seriousness, some involved family violence, some arose from a single incident, others were part of a pattern of offending. Some also involved other less serious misconduct such as failure to notify the regulator of the charges against them. We found the following cases useful for comparison.
(a)Chiropractic Board of Australia v Adrian Oorloff [2019] VCAT 2010:
A chiropractor has been reprimanded and disqualified from applying for registration for eight years for serious criminal offending, involving inciting a police operative to kidnap a former patient, and illegal possession of drugs and ammunition. Although the conduct was isolated the tribunal agreed with the trial judge that, this was serious and disturbing offending which carried marked elements of sophistication and persistence and caused very substantial victim impact.[63]
[63] [2019] VCAT 2010 at [36]
(b)Health Ombudsman v Field [2019] QCAT 243:
Involved a registered nurse arising from a single incident involving threatening his wife with a firearm. He had no criminal history at the time. He pleaded guilty and was convicted of four offences related to unlawful possession of two firearms and ammunition, discharging one of the firearms and threatening his wife with the other causing her to fear for her safety. He was sentenced to probation for 12 months in relation to the offences of threatening violence and dangerous conduct, he was not further punished with respect to the other two charges. The Tribunal found on the basis of the conduct and “limited evidence of insight or remorse” that he was not a fit and proper person to hold registration as a registered nurse. His registration at the time had been suspended for a period of three years. The tribunal cancelled his registration disqualified him from applying for registration for a period of one year.
(c)Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157:
Involved a registered nurse found guilty of common assault in relation to a single incident of family violence in which he repeatedly hit his 16-year-old daughter with a wooden rolling pin over a period of 20 minutes. As a result, she suffered pain, bruising and swelling to various parts of her body causing her injury and was taken to hospital by ambulance for treatment. The Tribunal reprimanded him and suspended his registration for one month.
(d)Medical Board of Australia v PYP [2021] VCAT 876:
A medical practitioner who hit his wife in the face and broke her nose was convicted of recklessly causing injury. The tribunal reprimanded him, and suspended his registration for six months.
(e)HCCC v Buksh [2013] NSWNMT 22:
A registered nurse had been convicted of sexual assault on three occasions on a 19-year-old victim in circumstances where she was heavily intoxicated. He was sentenced to a term of imprisonment of 12 years with an effective non-parole period of eight years. The Tribunal reprimanded him and disqualified him from applying for registration for ten years, dating from his suspension three years earlier.
(f)Nursing and Midwifery Board of Australia v Gaffney [2019] SAHPT 11:
A nurse pleaded guilty to aggravated unlawful detention. She was one of a number of offenders, her role being “far less serious” than that of the others but nevertheless serious. She was sentenced to two years and two months imprisonment, wholly suspended with a non-parole period of 14 months. The Tribunal reprimanded her and disqualified her from applying for registration for four years and six months.

Conclusion – sanction

The offending conduct in this case was towards the higher end of the range due to the nature, volume, and persistence of offences. We concluded that a significant period of disqualification was consistent with the range of outcomes in comparable cases.
We agree with the sentencing courts that there is at significant risk of reoffending. The respondent continued to flout the conditions the family violence order even after being arrested and remanded in custody. We are doubtful that he would comply with conditions placed on his registration.
Having found the respondent unfit to hold registration as a nurse, cancellation of his registration, rather than suspension, is appropriate. The serious, repeated, and persistent nature of the offending warrant a significant period of disqualification in order to protect the reputation of the profession and to deter other practitioners from engaging in similar conduct.
The respondent will not have practised in health services in Australia for nine years before he can apply for registration. Given such a lengthy lapse in practise, he would face significant hurdles to re-registration.

The original publication orders

On 18 February 2022, a differently constituted tribunal made the following orders which, prior to this decision, have not been varied or revoked:
1.       The matter is listed for a directions hearing at 2.00pm on 4 April 2022.
2.       The hearing of the application is to take place in private and closed to the public.
3.       The publication of:
(a) evidence given at any hearing of the application; or
(b) matters contained in documents filed with the Tribunal; or
(c) matter contained in documents received by the Tribunal;
that may identify witnesses or other relevant participants, except for the
respondent, is prohibited.
4.       There is no public access to the Tribunal file.
The Tribunal notes that the above orders are made pursuant to section 39(2) of the ACT Civil and Administrative Tribunal Act 2008

Submissions invited

On 28 September 2022, the Tribunal wrote to the parties asking them for written submissions on the issue of “whether the suppression orders, and the form of those orders, should be continued, removed or amended in the final orders.”
The Board made written submission arguing that the original orders should be continued without amendment. Mr Morrison made no submissions on the issue.

Changes in circumstances

The Board submitted that:
there has not been a change in circumstances since the time the Orders were made such that the Tribunal should revisit or revoke those Orders.
The Tribunal’s discretion to amend or revoke orders is found in Section 56 of the ACAT Act which relevantly provides:
56 Other actions by tribunal
The tribunal may, by order—
…
(c) amend or set aside a tribunal order if—
…
(iii) extraordinary circumstances make it appropriate to amend or set aside the order;
…
The original orders were made at an early stage of the proceedings before Mr Morrison had responded to the Board’s referral and before either party had made submissions and filed evidence. The only material before the tribunal was the original application with the Referral and Notice of Allegations annexed. It is prudent in such circumstances for the tribunal to take a precautionary approach to publication, particularly in matters such as this where the privacy of children or other vulnerable people is concerned, as it does not yet know what further material and information it will receive.
The Tribunal received the Board’s material, consisting of 788 pages, on 10 June 2022 and Mr Morrison’s documents, including medical reports and character references, on 17 June 2022.
The original publication orders applied to material not yet before the Tribunal. Only after receiving that material was the Tribunal in a position to finally determine whether, and to what extent, the information in it disclosed competing interests which outweighed the interest of open justice.
Access to the material to which the publication orders applied is a critical change in circumstances which warranted a reconsideration of whether those orders were still appropriate. After reserving our decision, we reviewed the orders and the parties’ submissions and decided it was appropriate to amend them pursuant to section 56(c)(iii) of the ACAT Act. The reasons for our decision are set out below.

The relevant legal principles

The principle of open justice is fundamental to the Australian legal system. It is well established that proceedings should be in public unless the public interest in restricting access to the proceedings, or information associated with them, significantly outweighs the public interest in open justice. These principles are reflected in sections 38 and 39 of the ACAT Act which provide:
38 Hearings usually in public
(1)The hearing of an application by the tribunal must be in public.
(2)However, this section does not apply to a hearing, or part of a hearing, if the tribunal makes an order under section 39 in relation to the hearing, or part.
39 Hearings in private or partly in private
(1)This section applies in relation to an application, or part of an application, if the tribunal is satisfied that the right to a public hearing is outweighed by competing interests.
Note See s (5) in relation to competing interests.
(2)The tribunal may, by order, do 1 or more of the following:
(a)direct that the hearing of the application, or part of the hearing, take place in private and give directions about the people who may be present;
(b)give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to the application of evidence given at the hearing, or of a matter contained in a document lodged with the tribunal or received in evidence by the tribunal for the hearing.
(3)The tribunal may make an order under subsection (2) on application by a party or on its own initiative.
(4)A person must not contravene an order under subsection (2) (b) or (c).
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(5)For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private—
(a)to protect morals, public order or national security in a democratic society; or
(b)because the interest 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.
Presidential Member Professor Spender explained the meaning of sections 38 and 39 in Psychology Board of Australia v Fox (No.2) as follows:
49. When interpreting sections 38 and 39 of the ACAT Act, the Tribunal notes that section 38 uses obligatory language by stating that the hearing of an application by the tribunal must be in public. Section 39 allows the tribunal to depart from the obligation in section 38 in certain specified circumstances. In interpreting sections 38 and 39, the Tribunal notes that open justice is a common law principle and it does not automatically apply to the tribunal, which is ‘a creature of statute’. Therefore the Tribunal’s task is to construe the relevant statutory provisions which confer the power, that is, sections 38 and 39 of the ACAT Act. It is certainly appropriate to construe these provisions by analogy with the common law even if the ACAT Act is the source of power. Sections 38 and 39 of the ACAT Act are similar to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which was described by the Full Federal Court in Australia Securities and Investments Commission v Administrative Appeals Tribunal as establishing a ‘norm’ that proceedings before the Administrative Appeals Tribunal (AAT) shall be in public. The Full Court continued:
This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 at 272 ; [1979] AATA 64; 2 ALD 33 at 55 ; [1979] AATA 64; 36 FLR 482 at 510 described the power in s 35(2) to depart from this norm as one to be exercised ‘sparingly’.
50. The Tribunal follows this reasoning, which is reinforced by the obligation of the tribunal to interpret the ACAT Act in accordance with the open justice principle stated in section 21 of the Human Rights Act. Section 21 of the Human Rights Act expressly applies to the tribunal by its reference to the forum being an ‘independent and impartial court or tribunal’. The word ‘court’ is defined in the Dictionary of the Human Rights Act to include ACAT. Section 30 of the Human Rights Act requires the Tribunal to interpret sections 38 and 39 of the ACAT Act in a way that is compatible with the express recognition of public hearings in section 21 of the Human Rights Act.
51. The Tribunal considers that the proper interpretation of sections 38 and 39 is that the tribunal is bound by the open justice principle and therefore must conduct its hearings in public unless an exception stated in section 39 of the ACAT Act is met…
The Federal Court of Australia in Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym)[64] considered whether the court had the power to make a pseudonym order under section 37AG(1)(a) of the Federal Court of Australia Act 1976 on the grounds that it was, necessary to prevent prejudice to the proper administration of justice; a similar legislative standard to that imposed at section 39(5)(c) of the ACAT Act.
[64] [2022] FCAFC 160
The Court stated that:
The Court may only depart from hearing a proceeding in open court in accordance with the principle of open justice where such a course is necessary so as to enable it to do justice. The paramount consideration as to the court’s power to prohibit or restrict publication, or exclude the public, in any particular situation is whether justice cannot be done in any other way: (citations omitted)[65]

Mr Morrison

[65] [2022] FCAFC 160 at [29]

The normal approach in occupational discipline matters is that the name of the practitioner be publicly available on the basis that the public interest in the information outweighs the practitioner’s right to privacy:
It is important for the public to be able to know whether the practitioner has had a complaint or notification made against them and the outcome of any disciplinary process, so that public confidence can be maintained.4 The National Law evinces a clear intention that there be full disclosure of information about health practitioners.5 Publication of the practitioner's name also serves the purposes of specific and general deterrence. Reputational damage to a health practitioner is not sufficient to displace the presumption in favour of open justice.6
In this case we were satisfied that there are no exceptional circumstances of the kind referred to in section 29(5) which warranted the suppression of Mr Morrison’s name. Indeed, the following circumstances referred to by the Board further support publication of Mr Morrison’s name:
(i) the Respondent has indicated that he may apply to practise again;
(ii) the Respondent's occupation as a nurse is mentioned in the published decisions of the Supreme Court and the Magistrates Court; and
(iii) the identification of the Respondent may assist in protecting the public, having regard to the seriousness of the allegations.

Who are “witnesses or other relevant participants”?

The original publication orders are directed to protecting the identity of witnesses or “other relevant participants”, except for the respondent. No witnesses gave evidence in these proceedings as the factual circumstances of the offending behaviour was largely uncontested. The central issue in these proceedings was how that behaviour should be characterised and what penalty, if any was appropriate.
The evidence before the Tribunal was largely that considered by the criminal courts in sentencing.
The following people, who could be broadly described as “relevant participants”, were referred to, but not necessarily identified by name, in the material before the Tribunal:
(a)The primary victim of Mr Morrison’s criminal offending.
(b)The children of the primary victim and Mr Morrison.
(c)The civilian witnesses who assisted police.
(d)Medical practitioners’ whose reports, communications, and clinical notes were adduced in evidence in both the criminal and these proceedings without redaction of identity, and who are referred to in this decision. Most of whom are also referred to by name in the reported decisions of the Magistrates and Supreme Courts.
(e)Officers of Australian Health Practitioners Regulation Agency (APHRA) who are identified in correspondence and file notes related to the initial notification and investigation.
(f)People who provide character references for Mr Morrison adduced in both the criminal and these proceedings.

The primary victim and the children

The Board submitted that:
(a) the publication or identification of the names of Mr Morrison’s family members, who are victims of serious domestic violence crimes, would likely cause distress and re-traumatisation. Their identities were not disclosed in the published decisions of the Magistrates Court or the Supreme Court;
Subsection 39(5) of the ACAT Act does not expressly provide for the private interests of people who are not parties to the proceedings, such as the victim and the children, to be considered as outweighing the public interest served by a public hearing. However, we are satisfied that the disclosure of their identities would prejudice the interests of justice given the real risk of causing further distress and trauma to them.[66] For similar reasons we have prohibited publication of the primary victim’s workplace, where one of the offences occurred.

The civilian witnesses who assisted police

[66] See Psychology Board of Australia v Sullivan [2017] ACAT 104

The Board submitted that:
(b) similarly, the identification of other relatives and persons connected to the criminal offences (such as the victim’s brother) could have the same effect;
The victim’s brother and one of her friends observed the victim’s condition, including some of her injuries, after the assault in September 2011. Both provided statements to the police which were incorporated in the Police Statement of Facts, but they were not required to give evidence in the criminal proceedings because Mr Morrison pleaded guilty to all charges. In the reports of the criminal proceedings, they were not identified by name.
We agree that protection from identification afforded to the victim and the children should extend to these two people who were close to the victim for the same reasons. Further, identification of these people, particularly the brother could assist also inadvertently assist identification of the victim and the children.
The Police Statement of Facts adduced in these proceedings identify a number of other potential civilian witnesses to the factual circumstances of the offending, some of whom provided statements and some who did not. Like the victim’s brother and friend, they were not called to give evidence in the criminal proceedings, and they were not identified in the reported decisions. There was no need to refer to them in these proceedings. However, we decided to expressly prohibit publication of their names to avoid inadvertently assisting the identification of the victim or the children.

Notifiers, witnesses, patients and other third parties

The Board submitted that:
7. Some of the circumstances in which it has been held appropriate for the Tribunal to supress the names of other persons in proceedings include:
…
(b)to provide confidentiality to notifiers, witnesses, patients and other third parties. This, in turn, enables regulatory bodies like the national health practitioner boards to fulfil their investigative functions by encouraging people to make appropriate notifications and give frank and honest evidence in investigations.9
It went on to say on paragraph 9(c):
the identification of other individuals could undermine the Board’s statutory functions, for the reasons explained in paragraph 7(b) above; and
The Board supported its contention by reference to paragraph 60 in Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 (Pertsinidis).
Pertsinidis involved an application to the NSW Civil and Administrative tribunal (NCAT) by a patient under the NSW Government Information (Public Access) Act 2009 for access to hospital records in relation to the investigation of a complaint made on her behalf. An issue in dispute was whether statements provided by staff members to assist the investigation should be disclosed to the applicant. The NCAT found a conclusive presumption of overriding public interest against disclosure of the documents pursuant under the Health Care Complaints Act 1993 and upheld the original decision to deny access. The decision is not binding on this Tribunal, and the NCAT’s reasoning did not assist us because the legislative test for balancing competing interests in Pertsinidis significantly differs from that applicable in this case.
The relevant question for us under section 39(5) is whether the right to a public hearing is outweighed by competing interests because the tribunal is satisfied that the application, or part of the application, should be kept private:
(c) to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.

Medical professionals

We referred earlier in this decision to the various reports, communications, and clinical notes from medical practitioners before the Tribunal. The documents were written by medical professionals who had treated Mr Morrison for his mental health issues, both before and after he was taken into custody. This body of evidence was critical to a central issue in this case, Mr Morrison’s mental health and its relationship to his offending.
Most of the documents consisted of clinical records of Mr Morrison diagnoses and treatment and as such its purpose was therapeutic. According to the website of the Australian Commission on Safety and Quality in Health Care, “…The primary purpose of clinical documentation is to facilitate safe, high-quality and continuous care.”[67] We consider it unlikely that a health professional would be constrained in fulfilling that purpose for fear that the records might be used in later legal proceedings.
[67] Australian Commission on Safety and Quality in Health Care, Documenting Information <>
The only material produced by medical practitioners the purpose of assisting the Board’s investigation was the mandatory notifications provided by two health practitioners, who had treated Mr Morrison whilst in custody. They each notified the Board that Mr Morrison had been arrested and was in custody, as required by section 130 of the National Law. Both consented to their names being provided to Mr Morrison to help him respond to the concerns they raised. Their notifications were filed with the Tribunal, with some personal details, but not their names, redacted. They would have not have reasonably expected anonymity but that did not deter them from fulfilling their statutory obligation.
Two reports were produced for the purpose of the criminal proceedings. Dr Wyeth provided an updated report and treatment plan for the purposes of a bail hearing. Mr Sutton’s report was produced to assist the criminal courts determine Mr Morrison’s sentence. Both should have expected to be identified in the criminal proceedings, and they were.
The most sensitive personal information contained in the medical records and reports before the Tribunal, was not the identity of the medical professionals who wrote them but the details of Mr Morrison’s medical history. He did not object to disclosure and in fact adduced many of the reports himself. Further, we note that, except for one of the notifiers and a second psychiatrist who treated Mr Morrison at the AMC, all of the medical professionals identified in the documents before the Tribunal have already been identified in the published decisions of the criminal courts.
We do not accept that identifying the names of the medical professionals referred to above would be likely to deter others from making appropriate notifications and giving frank and honest evidence in disciplinary investigations. There are no other exceptional circumstances in this case necessitating that the identity of medical professionals be kept private to avoid prejudice to the interests of justice.

Officers of APHRA

The Board’s submission was not specifically directed to protection of this class of person. The value of the material in which they are identified was simply to establish that a proper process was followed in response to the notifications. The phone numbers of the persons were redacted. The material was not contentious and was not relied upon in written submissions. There is no established general principle that the disclosure of identity of agency staff involved in investigations is contrary to avoid prejudice to the interests of justice. Accordingly, we are not satisfied that suppression of their identities is required by section 39(5).

Mr Morrison’s character referees

We see no reason to refer to the names of the three people who provided character references for Mr Morrison in this decision but as there are no exceptional circumstances of the kind referred to in section 39(5), we have not made orders supressing their identity.

The original closed tribunal order

Order 2, read in the context of the orders, applies to all hearings in these proceedings on or after the date of the order including the directions hearing on 16 May 2022 referred in this decision.
We have left Order 2 (re-numbered as Order 1) stand as it applies to tribunal events which have already occurred, and retrospectively changing the basis on which they were conducted would in our view be illogical.
This decision will be published in accordance with the Tribunal’s usual practice for Occupational Discipline matters. To the extent that our reasons refer to what transpired at hearings conducted in private, we rely on the provisions of sections 40(2)(a) and (4) and 63 of the ACT Civil and Administrative Act 2008 which permit the currently constituted members of this Tribunal to divulge this information because the information is divulged in relation to our function under the ACAT Act to provide reasons for our reserved decision.

Orders

The respondent is reprimanded.
His registration is cancelled.
He is disqualified from applying for registration as a registered health practitioner until after 18 November 2029 (being ten years from date of his suspension).
He is prohibited from providing any health services unless and until he is registered as a health practitioner under the National Law in the future.
Pursuant to section 56(c)(iii) of the ACT Civil and Administrative Tribunal Act2008 (the Act), the Tribunal amends the Orders dated 18 February 2022 made in this matter under section 39 of the Act by revoking Orders 3 and 4 and substituting them with the following Order numbered “3”:
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 names of the primary victim; and the children of her and the respondent;
(b)     The primary victim’s place of employment;
(c)     The names of the civilian witnesses who provided information or who were interviewed by police in the criminal investigation.

………………………………..

Senior Member E Ferguson
For and behalf of the Tribunal

Date(s) of hearing:

8 July 2022

Counsel for the Applicant:

Mr G Ayres

Solicitors for the Applicant:

Respondent:

Minter Ellison Lawyers

No appearance