Nursing and Midwifery Board of Australia v Roe
[2018] WASAT 92
•10 SEPTEMBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: NURSING & MIDWIFERY BOARD OF AUSTRALIA and ROE [2018] WASAT 92
MEMBER: PRESIDENT, JUSTICE J C CURTHOYS
MS L EDDY (MEMBER)
DR K JEFFRIES (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 10 SEPTEMBER 2018
FILE NO/S: VR 36 of 2018
BETWEEN: NURSING & MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
NICHOLAS ANDREW ROE
Respondent
Catchwords:
Nurse health practitioner - Professional misconduct - Breach of violence restraining orders - Fabrication and drug paraphernalia convictions - Failure to advise Board of convictions - Fit and proper person to hold registration in nursing profession - Global penalty - Reprimand - Disqualified from applying for registration - Practitioner to pay costs of Board's application
Legislation:
Criminal Code Act Compilation Act 2013 (WA), s 129(1)
Health Practitioner Regulation National Law (WA) Act 2010, s 4, s 5, s130, s 138, s 196
Misuse of Drugs Act 1981 (WA), s 7B(6)
Restraining Orders Act 1997 (WA), s 61(1)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)
Result:
Practitioner found guilty of professional misconduct
Practitioner reprimanded
Practitioner disqualified from applying for registration as a registered health practitioner for a period of 12 months
Practitioner to pay the Nursing and Midwifery Board of Australia's costs of the application
Category: B
Representation:
Counsel:
| Applicant | : | Ms E Ho |
| Respondent | : | Non-Appearance |
Solicitors:
| Applicant | : | Nursing and Midwifery Board of Australia |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54
Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62
Craig v The Medical Board of South Australia [2001] SASC 169
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Law Society of New South Wales v Walsh [1997] NSWCA 185
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)
Legal Profession Complaints Committee and Leask [2010] WASAT 133
Legal Profession Complaints Committee and Love [2014] WASAT 84
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Detata [2012] WASCA 2014
Legal Profession Complaints Committee v Lashansky [2007] WASC 211
Legal Profession Complaints Committee v Masten [2011] WASC 71
Legal Profession Complaints Committee v O'Halloran [2013] WASC 430
Medical Board of Australia and Myers [2014] WASAT 137 (S)
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
New South Wales Bar Association v Evatt (1968) 117 CLR 177
NOM v Director of Public Prosecutions (2012) 38 VR 618
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Quinn v Law Institute of Victoria [2007] VSCA 122
Re A Practitioner (1984) 36 SASR 590
Rejfek v McElroy (1965) 112 CLR 517
Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308
Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 16 March 2018, the Nursing and Midwifery Board of Australia (the Board) filed an application alleging that Mr Nicholas Andrew Roe had engaged in professional misconduct and/or unprofessional conduct and/or unsatisfactory professional conduct as defined under s 5 of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law). The basis for the allegations was that Mr Roe had failed to notify the Board of convictions and that he had been convicted of a number of offences.
Mr Roe has not been registered as a nurse with the Board since 5 September 2016. The Tribunal retains jurisdiction (s 138 of the National Law).
The Tribunal is satisfied that Mr Roe has had notice of these proceedings (Affidavit of Emily YuLin Ho dated 20 June 2018).
Mr Roe has not participated in these proceedings.
The Board filed a bundle of documents on 7 May 2018 pursuant to an order of the Tribunal made on 10 April 2018 (Exhibit A).
On 29 May 2018, the Tribunal made orders for filing of submissions and for the application be determined on the documents.
Since Mr Roe has not participated in the proceedings, it is appropriate that these reasons deal with both breach and penalty.
Unprofessional conduct
Section 5 of the National Law provides:
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
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of
(i)a condition to which the practitioner's registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner;
and
(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; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well‑being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation[.]
Professional misconduct
The first and second limbs of the definition of 'professional misconduct' incorporate the term 'unprofessional conduct.
The term 'professional misconduct' is relevantly defined in s 5 of National Law as conduct of a regulation health practitioner which 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.
(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;
The Board submitted:
5.Many vocational Acts require that a person be 'fit and proper' and where the person is convicted of an offence, it is usually said that the real question is not whether the person has been convicted of an offence, but whether his conduct has been such as to show that he should not remain as a member of his profession: Chan v the Nurses Board of Western Australia [2005] WASAT 115 at [73] (Chan) referring to Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; MacMillan v Pharmaceutical Council of Western Australia [1983] WAR 166 per Kennedy J at 173.
6.Convictions will be generally regarded as more serious in the statutory context if they are offences of dishonesty or are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them: Chan at [83], referring to Tavelli v Johnson, unreported; SCt of WA (Wheeler J); Library No 960693; 25 November 1996 at pages 79.
7.While the notion of 'fit and proper' was considered in the context outlined in paragraphs 5 and 6 above as to whether a practitioner ought to remain a member of the relevant profession, the commentary must be considered in the context of the definition of what constitutes professional misconduct for the purpose of section 5(c) of the National Law.
8.Professional misconduct in terms of section 5(c) of the National Law only requires a practitioner's conduct to be 'inconsistent with the practitioner being a fit and proper person to hold registration in the profession' (emphasis added)[.]
The Tribunal accepts the Board's submissions.
Unsatisfactory professional performance
The term 'unsatisfactory professional performance' is defined in s 5 of the National Law as meaning:
[T]he knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[.]
Section 196(1) of the National Law
Section 196(1) of the National Law provides:
(1)After hearing a matter about a registered health practitioner, a responsible tribunal may decide
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b)one or more of the following
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii)the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct;
(iv)the practitioner has an impairment;
(v)the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board that registered the practitioner information or a document that was false or misleading in a material particular.
Onus and standard of proof
The Board bears the onus of proof. In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9], the Tribunal stated:
The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
(See also Rejfek v McElroy (1965) 112 CLR 517 (Rejfek))
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.
The standard of proof required in a civil case where serious allegations are made was stated in Rejfek, where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed at 521 that:
The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved …
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.
In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:
… mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.
The Tribunal's findings below are made on the balance of probabilities applying the principles as set out in the authorities above.
The facts
Breach of Violence Restraining Orders
Mr Roe was convicted of the following charges under s 61(1) of the Restraining Orders Act 1997 (WA) on the following dates:
(a)three counts of breach of violence restraining order (VRO) on 15 April 2014; and
(b)one count of breach of VRO on 8 March 2016
(Exhibit A page 2, the VRO convictions).
The facts relating to the offending are set out in the Board's Bundle of Documents, Exhibit A at pages 4 to 15 and pages 32 to 35.
The evidence of the convictions appear in Exhibit A at page 2.
Failure to notify the Board of VRO convictions
Under s 130 of the National Law, a registered health practitioner is required to give the Board written notice when 'the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment'.
A person convicted under s 61(1) of the Restraining Orders Act 1997 is liable to a fine of $6,000 or imprisonment for two years or both.
The Board alleged that Mr Roe did not provide written (or any) notice to the Board within seven days of becoming aware of the relevant VRO convictions.
Although the Board provided evidence which proved the VRO convictions, the Board did not provide evidence to establish that Mr Roe had not informed it of his VRO convictions. Typically, a Board would provide evidence to the Tribunal that the Board had searched its records of correspondence. There was no such evidence.
Further, the Board did not provide a copy of its letter of 4 May 2017 to the Western Australia Police seeking information as to Mr Roe. This letter might have proved some basis for a finding.
In the absence of any such evidence, the Tribunal is not prepared to find that Mr Roe failed to advise the Board of the VRO convictions.
The fabrication and drug paraphernalia convictions
On 25 August 2016, Mr Roe was charged with the following offences:
(a)Three counts of unlawfully fabricating evidence with intent to mislead any tribunal in any judicial proceeding pursuant to s 129(1) of the Criminal Code Act Compilation Act 1913 (WA) (Charges 1 to 3); and
(b)Possession of drug paraphernalia in or on which there was a prohibited drug or prohibited plant pursuant to s 7B(6) of the Misuse of Drugs Act 1981 (WA) (Charge 4);
On 23 August 2017, in the District Court of Western Australia, Mr Roe:
(a)entered a guilty plea and received convictions in relation to Charges 1 to 3 (Fabrication Convictions) and Charge 4 (Drug Paraphernalia Conviction);
(b)was sentenced to a conditional suspended imprisonment order for a term of two years, suspended for two years; and
(c)was fined a total amount of $2,200.
(Exhibit A pages 87-89)
The statement of material facts was as follows:
In July 2015 the accused was ordered by the Family Court of Western Australia to undergo random urinalysis testing as a result of court proceedings relating to the accused children and his former partner.
The accused was ordered by the court to undergo the random urinalysis tests at the direction of the complainant, with the results of each test to be forwarded directly to the complainant by Clinipath Pathology. A condition of the order is the accused is to provide a urine sample at a collection centre within 24 hours of being requested.
The complainant in this matter is the solicitor for the accused former partner.
On 20 January 2016 the complainant requested the accused undertake a urinalysis test.
On 29 January 2016 the accused provided Clinipath Pathology laboratory reference [numbers] to the complainant.
The complainant became suspicious of the accused and subsequently conducted inquiries with Clinipath Pathology which identified that [the laboratory reference numbers] provided by the accused [were not urinalysis tests] conducted by the accused.
The complainant subsequently reported the matter to police[.]
(Exhibit A pages 45-50)
At about 12:40pm Thursday 25 August 2016 the accused was arrested in relation to an unrelated matter (Fabricating Evidence) at his home address … .
As a result of that matter Police executed a Criminal Investigation Act search warrant at the address.
During the search Police located seven glass smoking implements in the main living area of the address.
Police also located a further nine glass smoking implements in the accused bedroom.
The accused was spoken to regarding the implements and made full admissions to Police that he was the owner of the smoking implements[.]
(Exhibit A page 52)
Sentencing remarks for the fabrication and drug paraphernalia remands
In the course of his sentencing remarks Birmingham DCJ stated:
As I've said, by any measure it's a serious offence, it's in the same category as perverting the course of justice. It is an offence of a nature that would generally immediately call for a term of imprisonment to preserve the integrity of judicial proceedings.
…
The aggravating feature of the offending whilst the offences for which you have been convicted occurred on the one day as part of an affidavit was then being prepared by you for use in the Family Court, it was deliberate conduct. It involved the alterations of a number of documents over a period of time. The documents were attached to an affidavit that was to be used in Family Court when you were aware that the document was misleading as to its contents.
You were in essence intending to mislead not only your former partner and her solicitors but in essence the court in its execution of its duty. To that end it's a very serious offence.
…
Obviously illicit drugs have been a feature of your downward spiral and indeed hence the need for the urinalysis tests that were essential for your access to the children at the Family Court. By altering the results you were being able to conceal that you were then using drugs, which was regarded as a significant feature or factor as to whether or not you should have the opportunity to be with your children or custody with them at any time.
I'm sure you would accept and understand the extent to which those sorts of safeguards are important, particularly for your children.
…
I accept also that whilst they are serious offences, namely, breaches of a violence restraining order, they occurred in the context of your matrimonial dispute and you were dealt with by way of fines such as to register the relatively minor nature of that offending, and it's in the context of a bitter matrimonial dispute. But it does demonstrate a disrespect for court orders and the judicial process, as does your offending in this case.
…
The issue for me, however, is to balance your personal factors against the seriousness of the offending. I recognise that a sentence of imprisonment must be a sentence of last resort. There's no doubt, however, that the offences of this kind do warrant a term of imprisonment.
(Exhibit A pages 91-95)
Judge Birmingham's remarks are accepted by the Tribunal.
Unprofessional conduct
The Tribunal is satisfied that Mr Roe's convictions, although not occurring in connection with the practitioner's profession as a nurse, are inconsistent with Mr Roe being a fit and proper person to hold registration in the nursing profession.
The maintenance of accurate and honest records is an essential element of a nurse's profession. Accurate records are necessary to enable other health practitioners to treat patients properly.
The maintenance of proper records in relation to pharmaceuticals is another important nurse's duty. The failure to maintain proper records of pharmaceuticals or a falsification of such records is often associated with the abuse of pharmaceuticals by health practitioners.
Mr Roe's conduct in relation to the serious matter of providing evidence to the Family Court as explained in Judge Birmingham's sentencing remarks shows that Mr Roe is willing to falsify documents where it serves his interests.
The fact that Mr Roe was prepared to be dishonest in a matter before the Family Court shows a disregard for the law.
Mr Roe was also convicted of possessing drug paraphernalia. This is further evidence of Mr Roe's disregard for the law. It also raises concerns about his access to pharmaceuticals as a nurse.
The Tribunal also notes Mr Roe's convictions for breach of VROs. As Judge Birmingham noted, this also reflects a disregard for the law.
Mr Roe's convictions are serious. They reflect adversely on him.
Although not committed in the course of the performance of Mr Roe's duties as a nurse as explained above, the fabrication and drug paraphernalia convictions are so closely related to his duties as a nurse that they establish that his conduct is inconsistent with Mr Roe being a fit and proper person to hold registration in the nursing profession.
Mr Roe's convictions, the sentencing remarks and the statement of material facts establish that he has engaged in professional misconduct under the National Law.
General matters relating to sanctions
Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).
The dominant purpose of the disciplinary regulation of the medical profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 (Detata) at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).
The appropriate sanction is to be considered at the time of making the sanction and not by reference to the date of the conduct: Medical Board of Australia and Myers [2014] WASAT 137 (S) at [9].
Cancellation of registration
The jurisdiction of the Tribunal to cancel a practitioner's registration is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the medical profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
Where an order for cancellation of a practitioner's registration is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a medical practitioner: A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253 at [15].
A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or indefinitely unfit to practise (Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 (Darveniza) at [38]; Legal Profession Complaints Committee and Love [2014] WASAT 84(Love) at [17] - [18]; A Legal Practitioner (S) at [21] - [25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19] - [20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26] - [28]); Love at [17] - [18]).
Although serious dishonesty is an obvious example of where cancellation of a practitioner's registration is appropriate (Love at [18]), cancellation of registration is not necessarily confined to circumstances involving findings of dishonesty.
Suspension
Suspension is a less serious result and differs from cancellation of a practitioner's registration because suspension is for a specified limited period.
The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he/she lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)(A Legal Practitioner (S)) at [26]; Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]).
Penalty
Mr Roe does not hold registration under the National Law. He became unregistered effective on 5 September 2016 after he withdrew his application for renewal of registration.
The National Law provides that if a Tribunal finds that a practitioner has behaved in a way that constitutes professional misconduct under s 196(1)(b) of the National Law, it may amongst other things:
(a)caution or reprimand the practitioner: s 196(2)(a) of the National Law;
(b)require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner: s 196(2)(c) of the National Law; and/or
(c)disqualify the person from applying for registration as a registered health practitioner for a specified period or prohibit the person from using a specified title or providing a specified health service: s 196(4)(a) of the National Law.
Twelve matters for consideration
In determining an appropriate sanction, twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve mattersare:
1)Any need to protect the public against further misconduct by the practitioner (Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman)at 440C; NSW Bar Association vHamman (1999) NSWCA 404 (Hamman) at [77]).
2)The need to protect the public through general deterrence of other practitioners from similar conduct (Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 (Johnson) at [103]; Hamman at [77]).
3)The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S)) at [8]; Foreman at 444F; and Hamman at [77] and [79]), such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval (Craig v The Medical Board of South Australia [2001] SASC 169 at [64]; Johnson at [103]).
4)In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner (Johnson at [109]; Foreman at 445B 445G).
5)Whether the practitioner has breached any:
a)Act;
b)Regulations;
c)Guidelines or Code of Conduct, issued by the relevant professional body; and
d)whether the practitioner has done so knowingly.
6)Whether the practitioner's conduct demonstrated incompetence, and if so, to what level.
7)Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E442G; NewSouth Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 at [80]; Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 at 62 and 63).
8)The practitioner's disciplinary history (Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 at [93]);
9)Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 (Lashansky) at [31]-[52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Love at [9]).
10)The desirability of making available to the public any special skills possessed by the practitioner.
11)The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 (Paridis) at [30(5)]).
12)The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).
Analysis of factors
Factor 1 - Is there a need to protect the public against further misconduct by Mr Roe?
The Board submitted
34.[Mr Roe's] conduct the subject of the Fabrication Conviction and the Drug Paraphernalia Conviction did not occur in the practice of the nursing profession and [Mr Roe] is currently unregistered. However, [Mr Roe's] conduct the subject of the Fabrication Conviction and Drug Paraphernalia Conviction is very serious, relating both to possession of drug paraphernalia and dishonesty in the context of altering a document containing his urinalysis results attached to his sworn affidavit for use in Family Court proceedings.
35.The public is entitled to be protected against further similar conduct that, while not occurring in the practice of nursing, may reveal a defect in [Mr Roe's] character and therefore impact on the trust and confidence of [Mr Roe's] patients and/or fellow health practitioners may have in [Mr Roe] in the practice of nursing.
As noted above, the keeping of proper records and the proper use of drugs are essential elements of a nurse's duties. Mr Roe's convictions show that he cannot be relied upon to properly perform these duties because of his dishonesty and drug abuse. The Tribunal is satisfied that there is a need to protect the public against further misconduct. Mr Roe's breach of VROs further establishes a need for protection of the public, which includes his former partner, against apprehended violence.
Factor 2 - Is there a need to protect the public through general deterrence of other practitioners from similar conduct?
Similarly, health practitioners ought to be aware that the abuse of drugs when outside of the practice of the practitioner may impact on their registration under the National Law.
As the Board submitted:
[H]ealth practitioners ought to be aware that dishonesty, even outside of the practice of the profession, may impact on their registration under the National Law as it goes to whether [a practitioner] has the necessary qualities to uphold the standards of the profession.
Factor 3 - Is there a need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions?
Factors 2 and 3 have been dealt with together.
Factor 4 - Does the matter involve misleading conduct, including dishonesty and can the public and can fellow practitioners place reliance on the word of Mr Roe?
Mr Roe's conduct involves serious dishonesty. This allied with his disregard for the law establishes that the public and fellow practitioners cannot place reliance on his word.
Factor 5 - Was there a breach of an Act, Regulation, Code or Guidelines and has Mr Roe done so knowingly?
The convictions establish a number of serious breaches of the law. Mr Roe's conduct in relation to the fabrication convictions was especially calculated. Mr Roe breached those laws knowingly.
Factor 6 - Does Mr Roe's conduct demonstrate incompetence?
Mr Roe has not demonstrated incompetence in his practice of nursing.
Factor 7 - Was the incident isolated?
The incidents giving rise to these proceedings are isolated. However they reflect a persistent disregard of the law.
Factor 8 - Does Mr Roe have any disciplinary history?
Mr Roe does not have any prior disciplinary history.
Factor 9 - Does Mr Roe understand the error of his ways and assessment of any remorse and insight (or lack thereof)?
Mr Roe has not participated in these proceedings. There is no basis therefore to conclude that Mr Roe is remorseful. However, the Tribunal does note that Mr Roe pleaded guilty to the charges and this indicates some remorse.
Factor 10 - Are there any special skills possessed by the practitioner?
Mr Roe does not possess any special skills which would influence any penalty to be imposed.
Factor 11 – Mr Roe's personal circumstances at the time of the conduct and time of imposing the sanction
Although Mr Roe did not take part in the proceedings, his personal circumstances in relation to the fabrication convictions and drug paraphernalia convictions are set out by Judge Birmingham in his sentencing remarks (Exhibit A page 92-93). Whilst the sanction is to be determined as at the time of imposing the penalty rather than at the time the professional misconduct there is a basis for a lower penalty than might otherwise have been imposed having regard to Mr Roe's mental state at the time of the breach.
Factor 12 - Any other relevant matters
There are no other matters that are relevant.
Appropriate penalty
The Tribunal has imposed a global penalty because of the seriousness of the fabrication convictions. An separate penalty in relation to the VRO breaches is subsumed in the penalty for those convictions.
Mr Roe's registration has lapsed so cancellation and suspension cannot be imposed as a penalty.
Mr Roe will need to reapply for registration.
Nevertheless, the principles relating to cancellation and suspension offer some guidance to a suitable period before Mr Roe is able to reapply.
Mr Roe's conduct would have led to a cancellation of his registration. A suspension would not have been appropriate because the Tribunal is not satisfied that upon the completion of the period of suspension, Mr Roe would be fit to resume practice without the need to satisfy the Board that he is a fit for resuming practice.
Mr Roe should be disqualified from applying for registration for a period of 12 months from the date of this order. This penalty reflects the seriousness of his breach.
Mr Roe should also be reprimanded.
The Tribunal is not satisfied that Mr Roe should be fined in addition to a reprimand and disqualification period of his registration.
Costs
Section 87(1) and s 87(2) of the State Administrative Tribunal Act 2004 (WA) provide:
Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
In Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016]WASCA32, Murphy JA (Martin CJ and Corboy J agreeing) stated:
46The effect of s 87(1) of the SAT Act is, relevantly, that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.
…
51Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman (S)) at [30], the Tribunal stated:
Section 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.
Although the decision in Roberman (S) does not limit the discretion of the Tribunal in awarding costs, the public obligations of the Board to prosecute practitioners who breach the National Law is an important factor to be considered.
Mr Roe did not take part in these proceedings. Had he done so, the costs could have been avoided by early mediation.
The Tribunal is satisfied that it is fair and reasonable that the Board should be reimbursed for the costs it incurred
Orders
1.The Tribunal finds that pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (National Law) (WA) Act 2010, Mr Nicholas Andrew Roe has behaved in a way that constitutes professional misconduct.
2.Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (National Law) (WA) Act 2010, Mr Nicholas Andrew Roe is reprimanded.
3.Pursuant to s 196(4)(a) of the Health Practitioner Regulation National Law (National Law) (WA) Act 2010, Mr Nicholas Andrew Roe is disqualified from applying for registration as a registered health practitioner for a period of 12 months.
4.Pursuant to s 88(2) of the State Administrative Tribunal Act 2004 (WA) Mr Nicholas Andrew Roe is to pay the Nursing and Midwifery Board of Australia's costs and disbursements of the proceedings at the scale that applies to proceedings in the State Administrative Tribunal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUSTICE J CURTHOYS, PRESIDENT
10 SEPTEMBER 2018
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