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Supreme Court 23 February 2011

NSW HCCC v Moulds

[2011] NSWSC 65

Sexual offences
ADMINISTRATIVE LAW NURSES AND MIDWIVES TRIBUNAL ONE OCCASION CONDUCT "ONE OFF" AND OUT OF CHARACTER NURSE NO LONGER PRACTISING TRIBUNAL NOT BOUND BY FINDINGS OF COURT

Citation: NSW HCCC v Moulds [2011] NSWSC 65
Court: Supreme Court of New South Wales
Date: 23 February 2011
Judge: Adams J

Background

The Health Care Complaints Commission appealed a decision of the Nurses and Midwives Tribunal concerning a registered nurse and midwife who had been convicted in the District Court of two serious sexual offences against a 13-year-old boy. Both offences arose from a single incident in March 2006. The nurse pleaded guilty and served a term of imprisonment. Crucially, uncontradicted medical evidence established that at the time of the offences he had been suffering from undiagnosed hypomania and chronic depression, with disinhibited behaviour linked to inappropriate anti-depressant medication, and that this condition directly contributed to the offending.

The Commission brought three complaints before the Tribunal: that the nurse's convictions rendered him unfit to practise in the public interest; that he was not of good character; and that he suffered from an impairment likely to detrimentally affect his capacity to practise. The Tribunal found the first two complaints not proved, upheld the third, and imposed a one-year suspension together with monitoring requirements. The Tribunal declined to make a prohibition order, finding insufficient evidence that the nurse posed a substantial ongoing risk to the public.

The Commission appealed to the Supreme Court on the first and second complaints, arguing the Tribunal had applied the wrong legal test.

  • Whether the Tribunal erred in law by failing to apply the correct test when assessing whether the nurse's convictions rendered him unfit to practise nursing in the public interest
  • Whether the Tribunal failed to adequately consider the need to protect the public and maintain public confidence in the nursing profession
  • Whether the Tribunal wrongly assessed the nurse's "good character" in a general sense rather than in the specific context of fitness to practise nursing
  • Whether conduct amounting to a serious sexual assault on a minor necessarily disqualifies a nurse from remaining on the register

Decision

Adams J dismissed the appeal on both grounds. On the first complaint, the court found that the Tribunal had in substance applied the correct test. The Tribunal had considered the convictions, the circumstances of the offending, and the question of present fitness to practise, including the protection of the public and the maintenance of confidence in the profession. Its conclusion, that the offences were an isolated episode arising from a disordered mental state rather than a defect of character, was open to it on the evidence.

The court acknowledged that any sexual assault, particularly on a child, is ordinarily incompatible with the personal qualities required for nursing practice. However, Adams J emphasised that this observation is a starting point, not an endpoint. The Tribunal was required to assess whether the conduct rendered the particular nurse presently unfit, and the evidence supporting the conclusion that the offending was unpremeditated, non-recurring, and causally linked to an untreated mental illness was ample.

On the second complaint, the court rejected the Commission's submission that the Tribunal had evaluated only the nurse's general character without considering the specific context of fitness to practise. The Tribunal had found that the nurse had since been properly diagnosed and received effective treatment. The court also held that a nurse's need for ongoing psychiatric treatment or medication to prevent recurrence does not, of itself, mean the nurse is not currently of good character in the relevant sense. Fitness to practise and ongoing mental impairment are separate considerations addressed by different complaints.

The court noted that the Tribunal is not bound by the findings of the criminal courts and is entitled to reach its own conclusions on character and fitness from the evidence before it.

Orders Made

  • The appeal was dismissed with costs.

Key Takeaways

  • The Tribunal's finding that a nurse was of good character and fit to practise was open to it notwithstanding serious criminal convictions, where uncontradicted psychiatric evidence established the offending arose directly from an untreated mental illness rather than from a true defect of character.
  • A conviction for a serious sexual offence is a starting point for the fitness-to-practise inquiry, not a determinative answer. The Tribunal must assess present fitness in light of all the evidence, including the circumstances of the offending and any relevant medical material.
  • The Nurses and Midwives Tribunal is not bound by findings made in criminal proceedings. It may reach its own conclusions on character and fitness from the evidence tendered before it.
  • Establishing that a nurse requires ongoing psychiatric treatment or monitoring to prevent recurrence does not necessarily mean that nurse is not currently of good character within the meaning of the fitness-to-practise regime.
  • In dismissing the appeal, the Supreme Court confirmed that the third complaint (mental impairment) and the second complaint (good character) operate as distinct inquiries, and a positive finding on impairment does not automatically resolve the character question adversely to the nurse.

Legislation and Cases Referenced

Legislation:
- Nurses and Midwives Act 1991 (NSW), ss 44 and 67
- Crimes Act 1900 (NSW), ss 61J(1) and 61M(1)

Cases:
- HCCC v Schmich [2009] NSWNMT 19
- Health Care Complaints Commission v Karalasingham [2007] NSWCA 267