In Health Care Complaints Commission v Davies [2024] NSWCATOD 109 (26 July 2024) another NSW Paramedic’s registration was cancelled for sexually inappropriate conduct.   The gist of the allegation is that the defendant was on extended duty with St John Ambulance when he inappropriately touched and suggested sexual activity with a junior (17 year old) colleague. This was followed up with further unwelcome physical contact and sending y sending sexually explicit videos and photos in October and November 2020.

After these events the following occurred:

  • On 4 December 2020, after an investigation. St John Ambulance suspended Mr Davis and then on 16 December terminated his employment ([9]).
  • In March 2021 conditions were imposed on Mr Davies registration, first to the effect that he was not to practice as a paramedic, but they were then amended so that he was not practice in a clinical role ([2]).
  • In November 2021 Mr Davies was convicted in the Local Court (ie by a Magistrate) of the offence of ‘sexually touch another person without consent’ contrary to the Crimes Act 1900 (NSW), s 61KC(a). in June 2022 the District Court upheld an appeal from the Magistrate’s decision and the conviction was set aside ([3]). The reasons for the decisions in both of these courts have not been published (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)) so we cannot know the basis either for his conviction or the subsequent decision to reverse that conviction.
  • Mr Davies failed to notify the Paramedicine Board, when seeking to renew his registration that he had been suspended by St John Ambulance. He also failed to notify the Board, within 7 days, that he had been charged with the criminal offence related to his conduct ([9]).

The Health Care Complaints Commission alleged that Mr Davies behaviour to the victim, as well as his failure to notify the Board of his suspension and being charged, constituted professional misconduct ([10]) and they sought orders cancelling his registration ([47]).

As I say we cannot know why the District Court upheld the appeal from the Magistrate’s court. Before the NSW Civil and Administrative Tribunal (NCAT) Mr Davies admitted all the allegations and conceded his conduct did amount to professional misconduct. The only issue for NCAT was the penalty to be applied.

Mr Davies attempted to downplay his conduct arguing it occurred over a reliatiely short period of time and was at the low end of the offending scale. ‘While a departure from the standard of conduct reasonably expected by the community of health practitioners, it was not an egregious departure from that standard’ ([59]). He also argued that he had demonstrated remorse ([52]), had taken steps to address his behaviour ([85]) and the conduct in question did not directly relate to his skill and capacity as a paramedic ([60]).

The Tribunal considered Mr Davies submissions but determined cancelling his registration for 2 years was the appropriate outcome.  They said (at [71]) that the victim:

… made it abundantly clear that Mr Davies’ conduct was unwelcome. It understates its seriousness to characterise Mr Davies’ conduct from that point on as that of “a pest”. Mr Davies’ conduct was demonstrably unwelcome…

They continued (at [74])

It is no small matter for a health practitioner to fail to comply with their reporting obligations under by the National Law. To achieve a key objective of that scheme, the protection of the health and safety of the public, the national registration and accreditation scheme established by the National Law relies upon scrupulous adherence to those reporting obligations by health practitioners.

They accepted however that when he was suspended by St John Ambulance he had asked whether he was required to report that to either the Paramedicine Board and/or NSW Ambulance and was (wrongly) advised that he did not.  He did in fact self-report the convictions on 12 November 2021 and the Tribunal accepted (at [74]) that ‘his failure to comply with those [reporting] … is of a less serious nature’.  The reasons for the Tribunal’s decision are set out at [84]-[87]. They said:

In exercising the discretion to cancel Mr Davies’ registration, we have taken into account that, as a consequence of conditions imposed on his registration, Mr Davies has been prevented from working as a paramedic for several years. In those circumstances, arguably, a reprimand may be sufficiently protective of the public by denouncing Mr Davies’ misconduct and to underscore to him, the profession and the public of the standards expected of paramedics.

However, on the available material we could not be reasonably satisfied that there is no real and material risk that Mr Davies’ misconduct might be repeated. First, we do not agree, as contended by the Commission, that his evidence given in these proceedings demonstrates that Mr Davies lacks any insight into the extent to which his conduct was inappropriate and its impact on Person A. Nonetheless, we find his insight to be limited. Second, Mr Davies’ claim of having gained insight and being genuinely remorseful for his actions is not well supported by other evidence. There is scant evidence about the steps taken by Mr Davies to prevent a repeat of the impugned conduct. The only evidence of rehabilitation were answers given to questions asked by the Tribunal, in which Mr Davies said that he had been seeing a psychologist monthly for about 12 to 18 months from March 2021 and that counselling had assisted him to “unpack his false perceptions” of the events of 17 October 2020. Without a report from that psychologist or some other expert evidence, Mr Davies’ self-assessment that he has been assisted by that counselling can be given limited weight.

\We have decided not to exercise the power to impose a non-review period as urged by the Commission. If Mr Davies is able to obtain evidence of rehabilitation, he ought not be prevented from seeking review of the cancellation order. Our decision should not be taken to indicate that, in our opinion, Mr Davies might be able to obtain that evidence. As stated, on the available material we are not satisfied that there is no real and material risk of the misconduct being repeated, largely because of Mr Davies’ demonstrated lack of insight and a tendency to minimise his culpability for his egregious conduct towards Person A. Given the paucity of evidence of rehabilitation it is simply not possible to say when, if ever, Mr Davies will be able to establish that there is no real and material risk that the misconduct might be repeated.

Although we have decided to not impose a non-review period, it is to state the obvious that, to persuade a review body at some time in the future to exercise the power to make a reinstatement order, Mr Davies must prove to its satisfaction that he has developed the necessary insight and to have rehabilitated himself so that it can be confident that there is no real or material risk that the misconduct will be repeated. That is a substantial evidentiary hurdle for him to surmount and, because this jurisdiction is protective, it is appropriate that it be so.

Conclusion

The case is again a warning to paramedics:

  1. Conduct not directly related to one’s practice given that in this case there was no suggestion that he was not a good and competent paramedic, and the conduct was not directed to a patient, can still be considered, In any event this conduct occured whilst working for an ambulance service and involved conduct directed to a colleague. He was only in close proximity to that colleague because of his standing as a more senior and experienced mentor so it would be wrong to say this conduct was not related to his standing, if not his practice, as a paramedic.
  2. It is vital that paramedics comply with their obligations to report convictions and make appropriate disclosure when seeking to renew their registration.
  3. If anyone wants to make an argument, they need evidence. IN this case arguments about remorse and insight obtained by working with a mental health professional required some evidence – a report if not oral testimony – from that professional to support those claims.

And remember ([75]):

The jurisdiction exercised [by NCAT under the Health Practitioner Regulation National Law] is protective not punitive. The criminal justice system provides the forum for the latter when appropriate. As Basten JA explained in Prakash v Health Care Complaints Commission [2006] NSWCA 153, at [101] “[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order”.

In this case the Tribunal, for the reasons quoted above, felt that protection of the community required a further 2 years suspension but that Mr Davies could seek to review that decision if and when he had evidence that could satisfy a review body that he had taken effective steps to ensure that this conduct would not be repeated.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.