NSW HCCC v Moulds [2011] NSWSC 65 (23 February 2011)

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NSW HCCC v Moulds [2011] NSWSC 65 (23 February 2011)

Last Updated: 27 May 2011

Supreme Court New South Wales

Case Title:	NSW HCCC v Moulds
Medium Neutral Citation:	[2011] NSWSC 65
Hearing Date(s):	18 October 2010
Decision Date:	23 February 2011
Jurisdiction:
Before:	Adams J
Decision:	The appeal is dismissed with costs.
Catchwords:	ADMINISTRATIVE LAW - Nurses and Midwives Tribunal - appeal by Health Care Complaints Commission - nurse convicted of sexual intercourse without consent and assault with an act of indecency with child under 16 years and sentenced to imprisonment - one occasion - nurse suffering from bipolar illness at time of offences - conduct "one off" and out of character - nurse no longer practising -Tribunal not bound by findings of court - open to Tribunal to find that nurse of good character - appeal dismissed
Legislation Cited:	Nurses and Midwives Act 1991 ss 44 & 67
Cases Cited:	HCCC v Schmich [2009] NSWNMT 19 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
Texts Cited:
Category:	Principal judgment
Parties:	Health Care Complaints Commission (P) Denis Moulds (D1) Nurses and Midwives Tribunal of NSW (D2)
Representation
- Counsel:	Counsel: K Eastman (P) L Hagan, Solicitor (D1) No appearance (D2)
- Solicitors:	Solicitors: Karen Mobbs (P) Baker & Borthwick (D1) No appearance (D2)
File number(s):	2010/0036516
Publication Restriction:

Judgment

HIS HONOUR:

Introduction

1. The Health Care Complaints Commission appeals from a decision of the Nurses and Midwives Tribunal dismissing two of three complaints under the Nurses and Midwives Act 1991 against Mr Denis Moulds, a nurse and midwife registered under the Act. He was convicted on 6 July 2007 in the District Court of two sexual offences (arising out of the same incident) and served a term of imprisonment. The first complaint alleged that his convictions and the circumstances of the offences rendered him unfit in the public interest to practice nursing and/or midwifery. The second complaint alleged that he was not of good character. The third complaint was that he suffered from an impairment which detrimentally affected or was likely to detrimentally affect his mental capacity to practice nursing or midwifery. Of crucial importance in understanding the decision of the Tribunal is the uncontradicted medical evidence that, at the time of the offences - indeed, for a considerable preceding period - Mr Moulds was suffering (to oversimplify somewhat) from undiagnosed hypomania and chronic depression with disinhibited conduct consequential upon inappropriate anti -depressive medication and that this condition directly contributed to his offences.
   
2. The Tribunal found that complaints one and two were not proved but that complaint three was proved and ordered that Mr Moulds be suspended from practising as a nurse or midwife in NSW for a period of one year and should demonstrate to the Tribunal that arrangements were in place to monitor his mental impairments and meet the monitoring requirements. The Tribunal declined to make an order prohibiting him from providing any health service on the ground that there was insufficient evidence that he intended to offer some sort of health service, he having taken employment as a clerk in an office having nothing to do with the provision of medical services of any kind when he left prison. The Tribunal was not satisfied that Mr Moulds posed a substantial risk to the health of the public requiring a prohibition order to be made to protect the public from him.
   

The grounds of appeal

3. It is contended that the Tribunal erred in law "in failing to correctly apply the [appropriate] test to determine" whether the first and second complaints had been proved. The amended summons does not state what the suggested test should be and, to this extent, is defective since the error of law was not identified. Counsel for the Tribunal, in her written submissions, identified the contended for test as containing three elements: first, a conviction; secondly, the circumstances of the offence calling into question the nurse's fitness for registration; and, thirdly, determining the nurse's fitness to practice nursing in light of the need to protect the health and safety of the public and maintain confidence in the nursing profession.
   
4. It was submitted that the Tribunal did not consider, or adequately consider the protection of the public and the need to maintain public confidence in the nursing profession. Further, the Tribunal failed to consider whether the nurse's conduct was of such a personally disgraceful character as to disqualify him from membership of an honourable profession nor whether the impugned conduct was incompatible with the personal qualities essential for the conduct of nursing and, thus, whether the nurse was presently fit to practice.
   
5. So far as the second ground is concerned, this was essentially characterised as a failure to consider whether the nurse was "not of good character" in the context of fitness to practice nursing, in the sense (as I understand the written submissions) that, although the Tribunal evaluated the nurse's general character, it did not consider the impact of the circumstances of the offence on his character in respect of his fitness to practice nursing.
   

The Convictions

6. On 6 July 2007 in the District Court Mr Moulds was convicted of the following offences, which arose out of a single incident:
   

(i) sexual intercourse without consent, in circumstances of aggravation, namely that the victim was under 16 years of age (s 61J(1 ), Crimes Act 1900); and

(ii) Assault with an act of indecency, in circumstances of aggravation, namely that the victim was under 16 years of age (s 61M(1), Crimes Act 1900).

Mr Moulds pleaded guilty to both charges and was sentenced, in respect of the first offence, to a total sentence of three years and nine months with a non -parole period of 22 months commencing 6 May 2007 and, in respect of the second offence a total sentence of 18 months with a nine months non -parole period, to be served concurrently with the first sentence.

Proceedings before the Tribunal

7. Tendered to the proceedings were a number of psychologists' and psychiatrists' reports, correspondence between Mr Moulds and the Commission, what is described as the Police brief, together with clinical records and the reasons for sentence. No witness was called on the Commission's behalf, whilst Mr Moulds did not appear, either personally or by a legal representative. It appears that, at an earlier directions hearing, Mr Moulds made it clear that he would not seek to defend the allegations against him, did not intend to file any documentary evidence and would not attend the hearing. A document described as "Agreed Statement of Facts" was tendered to the Tribunal which had been sent to Mr Moulds and, although he did not sign it, he made some suggested changes, most of which were accepted by the Commission; those that were not accepted were insignificant. This agreed statement briefly sets out the history of Mr Moulds' changing mental condition, starting from around February 2004, his treatment and a summary of psychiatric opinion and concludes -
   

[22] Mr Moulds is currently 57 years old. Medically he suffers from chronic hypertension, gastro -oesophageal reflux and osteoarthritis of the hips. He states that primarily due to his age and medical conditions, he does not intend to return to the practice of nursing at any time in the future. [He is] now working fulltime [in a non -medical situation].

8. The Tribunal did not set out in its reasons for decision the circumstances of the offences except to note that they were committed between 12.30 and 1.30 pm on 24 March 2006 against a 13 year old boy in a public toilet block, were of a sexual nature, were related to the same event and were not premeditated, seeming to have arisen on the spur of the moment. I do not doubt, and it is not suggested that the Tribunal was not fully alive to the circumstances of the offences which it described as "serious in themselves". Its reasons concentrated on the extensive psychiatric material that provided significant insight into how Mr Moulds came to commit them. There was overwhelming evidence of Mr Moulds' otherwise good character.
   
9. In brief, the Tribunal concluded that the offences constituted an isolated episode not likely to be repeated and were rather an error of judgment than a defect of character. There was ample evidence justifying these conclusions.
   

The Circumstances of the Offences

10. It is clear that the Tribunal acted upon the basis that the description by the learned sentencing judge of the circumstances of the offences was correct for its purposes although, of course, it was not bound to do so. His Honour alluded to such an agreed statement of facts in dealing with some of the psychiatric evidence and it seems that such a document had been tendered that dealt also with the circumstances of the offences. (Regrettably, this document was not placed before the Tribunal.) The following account is taken from the sentencing judge's reasons, which do not suggest that they were controversial:
    

About 1.30 pm on 24 March 2006 the victim ... a 13 year old boy, attended the toilet block in a park ... While the victim was sitting on the toilet with his pants down, the offender forced his way into the cubicle occupied by the victim. The offender had his trousers on with the zipper undone and his penis exposed. After pushing his was into the cubicle, the offender reached down and touched the penis of the victim with his hand, the victim screamed and the offender inserted his penis in the victim's mouth as he sat on the toilet. The victim forcefully pushed the offender away and yelled that he was going to call the police. The offender left the cubicle, exiting the toilet block. The victim then ran from the toilet block screaming and crying ...

The offender was described by one of the apprehending witnesses as: "He seemed to be a bit lost or dazed and had walked in half a circle, changing his direction. He seemed to be sweating a lot, he seemed very nervous, looking at the ground, not knowing what to do."

11. His Honour noted that the crime was committed in a matter and in a place and time in close proximity to a number of adult witnesses and "could only be described as unusual, if not bizarre". There was no attempt to inveigle the boy or in some way to ascertain whether a sexual approach might be consented to and the assault continued (momentarily) with adults nearby even after the boy screamed.
    
12. When he was arrested, Mr Moulds said that he had done nothing to the boy. He said that he needed to go to the toilet, so he entered the block and pushed on a cubicle door but there was a young boy in there who yelled out at him so he went into the next cubicle, went to the toilet and then walked out. He told a psychiatrist who was asked to examine him for the purpose of the sentence proceedings that after he had come out of the cubicle and washed his hands the boy called to him and asked him if he wanted to be fellated, that he walked into the cubicle the boy closing the door behind him and that he remembered the boy asking him to kiss him on the lips and then fellated him for a short period. He told the doctor that he remembered sitting on the boy's lap for a moment and then that the boy said he was going to call the Police and left the cubicle. After that his memory as to what occurred was vague. In other reports the detail was added that the boy's claim that he was assaulted occurred when he refused to comply with a demand for money. In various slightly different iterations, this was the account given to the various doctors and during counselling sessions in prison. It is important, however, to observe that, as mentioned above, the judge's account was based on an agreed statement of facts and no attempt was made at the sentencing proceedings to gainsay the victim's account.
    
13. For completeness, I should mention that the sentencing judge "accepted that there is little likelihood of the offender re -offending, notwithstanding the incorrect history he has given to the doctors, provided he remains under psychiatric care and takes the medications that are recommended to him". His Honour accepted that Mr Moulds' remorse was genuine, placing in this respect no weight on the inconsistent history. (In fairness, I feel bound to say that the sentence imposed on Mr Moulds appears to me to have been harsh, indeed appellably so, but this is not presently material.)
    
14. The reasons of the Tribunal do not refer to Mr Moulds' accounts to the doctors. It seems clear that it acted on the basis of the sentencing judge's description of the circumstances. Counsel for the Commission submitted that the error made by the Tribunal was that the impact of the circumstances on the public interest and character elements of the Tribunal's consideration was ignored. As counsel put it, the Tribunal did not consider the circumstances of the offence but rather considered the circumstances of Mr Moulds. I now turn to those circumstances.
    

Mr Moulds' Circumstances

15. It is sufficient for present purposes to set out the psychiatric opinions referred to by the Tribunal and plainly accepted by it. The sentencing judge expressed some scepticism about the psychiatric opinions, since he considered that they were based to some extent upon the inaccurate accounts given by Mr Moulds of the circumstances of the offences. It is worth observing, however, that the crucial element of those opinions concerned the degree of disinhibition resulting from the undiagnosed bipolar illness combined with the effects of inappropriate medication. In this respect, the facts as accepted by the sentencing judge - upon which the Tribunal relied - demonstrated such irrational, risky and bizarre conduct as to provide convincing evidence of a very high degree of disinhibition and lack of judgment. The Tribunal was not bound to pay regard to, let alone adopt the sentencing judge's views about the cogency of the psychiatric evidence and, moreover, was in a far better position than was his Honour to evaluate it. Furthermore, it was not suggested to the Tribunal nor, for that matter on behalf of the Commission, that the material opinions were inaccurate or required any significant qualification.
    
16. After describing Mr Moulds' medical history as set out in the agreed facts the Tribunal referred to the assessments made by Dr Mary Jurek on 12 May 2006, Dr Ian Coyle on 3 April 2006 and 5 March 2007 and Dr Stephen Robinson, his treating psychiatrist who first saw him on 7 June 2006. The Tribunal summarised Dr Jurek's opinion as being that Mr Moulds "had been suffering from depression for two years prior to May 2006 and that he developed akathisia - leading to the conduct for which he was arrested - due to the fact that the Efexor prescribed for his depression was increased too quickly and to too high a level".
    
17. In respect of Dr Ian Coyle, the Tribunal referred to his second assessment as confirming "his view that Mr Moulds' sexually disinhibited behaviour displayed in association with the offence was a direct consequence of the anti -depression medication he was taking and that his disinhibition was associated with anti -depression emergent hypomania in undiagnosed bipolar patients, particularly Bipolar II patients". In respect of Dr Robinson the Tribunal said -
    

Mr Moulds was first seen by his treating psychiatrist, Dr Stephen Robinson, on 7 June 2006. Dr Robinson noted a clear history of depressive and hypomanic mood swings that had been uncontrolled for the two years prior to June 2006. He noted that the prescribed anti -depressant Efexor had caused adverse effects but that the mood stabiliser Epilim, which Mr Moulds had been prescribed since being in custody ... had prevented any re -emergence of hypomanic behaviour. It was Dr Robinson's opinion in April 2007 that Mr Moulds committed the offences during "an active phase of a bipolar illness complicated by a medication that was giving him adverse effects and an overuse of alcohol and with the pressure of a job situation with which he was not coping". Dr Robinson stated that "overwhelmingly the most important factor for Mr Moulds is to remain on mood stabilising medication supervised by a psychiatrist". Mr Moulds did not see Dr Robinson after April 2007 due to his incarceration.

18. The Tribunal also noted the attendance by Mr Moulds on the psychologist Ms Rhonda Murrey in September 2009 and a notation recorded in Mr Moulds' Offender Case Plan referring to his (then) stable mental health and employment. The Tribunal also noted the sentencing judge's acceptance of the psychiatric evidence that there was little likelihood that Mr Moulds would re -offend "provided Mr Moulds remained under psychiatric care and took medications that were recommended to him" as well as his Honour's references to the personal testimonials tendered on Mr Moulds' behalf dealing both with his general character and his interactions with children, in particular that there was no suggestion of any untoward conduct by him towards them and his Honour's conclusion that the offences were "totally out of character to the observations of many distinguished people within the local community".
    

The Tribunal's Consideration of the Complaints

19. I have already mentioned that the reasons of the Tribunal do not set out the circumstances giving rise to the convictions, noting that it is plain that the Tribunal's references to the circumstances in which the offences occurred were allusions to the account given in the sentencing judge's reasons. Although it would have been preferable for the Tribunal to have stated that it adopted that account (which was, of course, in a public document) the submission that the Tribunal did not consider those circumstances in coming to its conclusion is in my view untenable. The crucial question for the Tribunal was, of course, the significance of the convictions and the underlying undisputed circumstances. In that respect, it is scarcely surprising and, in my opinion, evidently essential that the Tribunal turn its attention to the substantial amount of material, especially the psychiatric evidence, that enabled an evaluation to be made of the moral turpitude involved in the offences and the impact of the entire evidentiary picture on the questions which were the Tribunal's responsibility to decide under the Act.
    
20. The submission made on behalf of the Commission that the Tribunal did not undertake such a consideration is also to my mind untenable. Firstly, in relation to complaint one, the Tribunal observed that, not only must Mr Moulds have been convicted, but that the circumstances of the offences should be taken into account in determining whether he was unfit in the public interest to practice nursing. (Although this element is stated in the form that "the circumstances of the offences may be taken into account in determining the fitness question" (emphasis added) it is clear that the Tribunal intended that the circumstances would be taken into account.) The Tribunal also referred to the possibility that there might be evidence "revealing the context of the nurse's ... lifestyle at the time of the ... offences that is an important factor contributing to the proof of the complaint". Noting also that the criminal offence could still be relevant, "even though it takes place in the private life of the nurse", the third element requiring consideration is the nurse's "unfitness in the public interest to practice nursing" bringing to bear the objects of the Act, "one of which is the protection of the health and safety of the public". The Tribunal, referring to HCCC v Schmich [2009] NSWNMT 19, specified the following considerations -
    

(1) The onus is on the HCCC;
(2) An order striking a nurse off a register or roll should only be made when the probability is that the nurse is permanently unfit to practise;
(3) The fact that the nurse has a conviction for a serious offence is not necessarily sufficient reason for an order striking them off the register or roll;
(4) The fact of conviction and imprisonment is, however, far from irrelevant and may be regarded as carrying a degree of disgrace itself;
(5) The Tribunal needs to consider the conduct involved in the conviction and see whether it is of such personally disgraceful character that the nurse should not remain a member of an honourable profession;
(6) The fact that the nurse pleaded guilty to the charge will usually be counted in his favour. However, it is appreciated that not all pleas of guilty necessarily show remorse;
(7) Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non -compliance with legal and civic obligations;
(8) The attitude of the professional association (or a peer reviewer) is of considerable significance; and
(9) The question is present fitness, not fitness as at the time of the crime.

21. It will be seen, therefore, that the Tribunal explicitly referred to the necessity of considering the conduct involved in the conviction, not only as to whether it was of such a personally disgraceful character as to be inconsistent with membership of an honourable profession, but also whether the conduct may be incompatible with the personal qualities essential for the conduct of practice as a nurse.
    
22. The Tribunal then went on to refer to the fact that Mr Moulds committed the two offences of a sexual nature against a child. This reference adverted to the two most critical elements of the offences and the circumstances in which they were committed. It then went on to set out other relevant material that was part of the circumstances of the offences, although in the sense that these matters described Mr Moulds' state of mind at the time they were committed and the history which led to that condition, as distinct from the physical events. It was not suggested, nor could it be, on behalf of the Commission that this material was irrelevant. Its significance for the purpose of dealing with the statutory questions was very much a question of judgment for the Tribunal and one for which it was peculiarly qualified to make.
    
23. It is clear that the Tribunal accepted the opinions of the psychiatrists to which reference has already been made together with the conclusion of the sentencing judge that the offence was totally out of character. Following the reference to the offences to which I have referred the Tribunal then went on to consider whether they constituted a "one off" event. The conclusion of the Tribunal that this was so is, of course, one of fact and not subject to appeal but (if I may respectfully say so) the evidence before the Tribunal that supported it was compelling. In short, the Tribunal found that Mr Moulds had been mentally unwell but not appropriately treated for some time, he had been depressed for three months, his medication which was inappropriate had been changed and he was faced with conflicting work related pressures. The Tribunal noted that there was no evidence of sexual deviance and the offences were not premeditated, having appeared to have arisen "on the spur of the moment". These conclusions were inevitable. Summing up the position the Tribunal considered that the offences were not likely to be repeated and, whilst "serious in themselves" and carrying "a degree of disgrace" and, "[g]iven the circumstances in which they occurred and what had happened since in terms of Mr Moulds' willingness to admit to the offences and the fact that he had been properly diagnosed and given effective treatment, the Tribunal was not comfortably satisfied that at the time of the hearing, Mr Moulds was unfit in the public interest to practice nursing".
    
24. It seems to me that the Tribunal brought the nature of the offences and their circumstances into account when deciding whether the complaint was proved. The submission made on behalf of the Commission that no such consideration was given is contrary to the very language of the Tribunal's reasons. Furthermore, the judgment in question was one very much within the expertise and experience of the Tribunal to make. It could not be said, in my view, that it was so unreasonable as to bespeak an error of law - and there is certainly no suggestion that the Tribunal erred in fact. Accordingly the appeal in respect of the Tribunal's determination of the first complaint must be dismissed.
    
25. In respect of the second complaint the Tribunal, again referring to HCCC v Schmich, set out the relevant matters to be considered when deciding this question. These matters were said to be -
    

(a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;

(b) the intrinsic seriousness of the misconduct qua fitness to practise nursing;

(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character;

(d) the motivation which may have given rise to the proven episode of misconduct,

(e) the underlying qualities of character shown by previous and other conduct; and

(f) whether the nurse's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude require of a nurse [sic].

26. It is not submitted on behalf of the Commission that the Tribunal erred in identifying these questions as material on the issue of good character, though the language of the first issue is not altogether apt to a case where the relevant distinction is between mental illness on the one hand and defects of character on the other. The conclusion of the Tribunal was stated as follows -
    

[48] While it is clear that Mr Moulds' conduct was intrinsically serious in relation to fitness to practise nursing, the Tribunal considered that it was in fact an error of judgment rather than a defect of character and also that it was an isolated episode. There was no evidence of malevolent motivation on the part of Mr Moulds. The evidence of his conduct prior to conviction and sentence showed good character, and, as Judge McLoughlin noted, his offences were "totally out of character to the observations of many distinguished people within the local community".

27. The reference to Mr Moulds' "conduct" as "intrinsically serious" is an unmistakeable reference to the circumstances of the offences as found by the sentencing judge. It is clear that, in substance, the Tribunal concluded that the offences would not have occurred had it not been for (to use lay terms) the defect in reasoning under which Mr Moulds was labouring by virtue of his psychiatric condition at the time. There was ample evidence justifying this conclusion. At all events, the issue is very much a matter of fact and degree and is fundamentally a question of fact not law, providing of course that the relevant questions are asked and the relevant evidence is considered.
    
28. I reject the submission made on behalf of the Commission that the Tribunal did not consider the relevant material. It was submitted on the Commission's behalf, in effect, that the Tribunal did not consider or adequately consider the clinical records and the report of psychologists about Mr Mould's participation in the sexual offender's therapy programme. The Tribunal mentioned and evaluated a submission made on behalf the Commission to the effect that Mr Moulds had not undertaken and did not propose to undertake appropriate psychiatric or psychological help. It referred to the reports of two prison psychologists who assessed Mr Moulds' risk of recidivism as "moderate" and a psychiatric report from Dr Coyle who assessed him as a low risk. Dr Coyle's opinion was set out in the reasons -
    

Mr Moulds showed no evidence of any socially deviant tendencies/sociopathic or psychopathic tendencies which are clearly associated with the risk of recidivism generally or in cases of sexual assault specifically.

29. It was very much a matter for the Tribunal to assess this material. It must be remembered that the assessment of risk of recidivism is a statistical exercise which gives little worthwhile information as to the likelihood in a particular case of repetition of the criminal conduct, an important caution to be borne in mind when evaluating such assessments which is discussed in some detail in the report of Rev Dr Powell.
    
30. Taking the overall material available in respect of Mr Moulds, including in particular the bizarre and isolated character of the assaults, it was very much open to the Tribunal to conclude that it was not satisfied that Mr Moulds was "currently not of good character".
    
31. Counsel for the Commission took me to evidence which, it was contended, demonstrated Mr Moulds' refusal to accept that what he did was wrong and "continued to blame the child victim" as itself a material matter that the Tribunal did not take into account and which was central to the public interest. Counsel referred to the final treatment report dated 7 July 2009 which concerned the Cubit Outreach course commenced by Mr Moulds on 13 October 2008 and completed on 12 June 2009. Mr Moulds had, as the report states, continued to claim that the victim was not hurt during the assault and to assert that he had asked for money from him. It was submitted that the conclusion in the report that Mr Moulds "emphasised his mental health issues and particularly that it was his understanding that the medication he was taking at the time of the offence disinhibited his behaviour [and that the] level of Mr Moulds' disclosure did not improve over the course of the programme and he was resistant to considering further his motivation to sexually offend against a young male" was relevant to the extent to which he was prepared to accept and understand what might have led to the circumstances of the offence and the offending behaviour.
    
32. Quite apart from the countervailing evidence that, even on his own account of events, Mr Moulds was remorseful for his conduct, though this was not (it seems, though this is certainly not clear) expressed in the prison therapy context, one of the major problems with the final treatment report is that, although it refers to the psychiatric reports which I have already mentioned, it does not suggest nor, indeed as it appears to me, even accept, that his psychiatric condition was even relevant to his commission of the offences, let alone as possibly providing even in part some explanation for his conduct. The references to "mental health issues" are all dismissive. The complete failure to deal with this plethora of material or, indeed, with the circumstances of the offences (except to point to the inmate's account as inconsistent with those found on sentence) substantially qualifies the utility of the author's conclusions. It is clear from the Tribunal's reference to the risk assessment that it considered the report and I do not think it is an error of law that its reasons did not contain any analysis of it. Nor do I accept that the criticisms made by the psychologists of Mr Moulds' attitude to the Cubit programme compelled the conclusion, as contended by counsel for Mr Moulds, that he was not of good character in the relevant sense.
    
33. In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Basten JA set out the legal principles relevant to considering the question of character for the purpose of suitability for professional practice (as it happened, in that case a doctor ([45] ff). Omitting specific references, the following points can be gathered from his Honour's discussion -
    
    • (1) Whether a person is of good character for the purposes of professional practice is a question of fact although a misapprehension on the part of a tribunal such as the Nurses and Midwives Tribunal as to the scope and operation of the phrase will involve an error in point of law.
      
    • (2) In relation to membership of a profession, those particular aspects of character which are relevant to the exercise of the professional functions in question must be considered.
      
34. It is particularly relevant, as it seems to me, to set out the following from his Honour's judgment -
    

[55] What must be demonstrated by reference to the reasons of the Tribunal is that it misunderstood the nature of the task on which it was embarked. The mere fact that others might make a different factual finding, or describe particular conduct with different epithets is insufficient to demonstrate error of law. However, the Commission's argument rises no higher in the present case. It is a disguised invitation to review an evaluative judgment undertaken by the Tribunal as to the seriousness of the misconduct and the inferences which should be drawn from it in relation to the respondent's character. It is an invitation which must be declined.

35. In the present appeal, counsel for the Commission in substance contended that, although the Tribunal referred to the risk assessment made by the prison psychologists, it did not take that into account in considering whether the Commission had established that Mr Moulds was not of good character in respect of the exercise of the profession of nursing, it seems because the existence of that risk would affect public acceptance of the propriety of the nurse remaining registered. The argument was also put that, because Mr Moulds did not show that he possessed insight into how the offences came to be committed, that also affected his character in a relevant respect. To my mind, neither of these arguments can succeed in the present case. Firstly, the Tribunal specifically referred to the risk identified by the prison psychologists but, evidently, preferred the opinion of Dr Coyle; at all events, there were good reasons for scepticism about the conclusion of the prison psychologists, as discussed above, to which should be added the findings that the offences were unpremeditated and "one off". In the circumstances, it was sufficient for the Commission to adopt the medical opinions and prefer its own conclusions (which coincided with those of the sentencing judge) without indulging in analysis of the prison psychologists' reports.
    
36. It is submitted on behalf of the Commission that the Tribunal did not consider whether the conduct of Mr Moulds was of such a personally disgraceful character as to mean that he should not remain a member of an honourable profession. As already explained above, it is clear that in fact the Tribunal did undertake this evaluation, in substance concluding that the circumstances in which the offences came to be committed arose from Mr Moulds' disordered mind at the time and were not truly reflective of his character. Of course, any sexual assault, especially on a minor, is incompatible with the personal qualities essential for the conduct of nursing practice. However, such a general observation is the starting point for considering whether in any particular case such conduct renders the person unfit, that is to say presently unfit. The submission that the Tribunal "did not consider present fitness in the context of this complaint" is plainly wrong.
    
37. So far as present fitness was concerned, the Tribunal found that Mr Moulds "had been properly diagnosed and given effective treatment", a finding which in my view was amply supported by the evidence. It is submitted that this finding is inconsistent with the finding that, at the time of the hearing, Mr Moulds was not under the care of a treating psychiatrist. However, this it seems to me was not relevant to the question whether he was relevantly of good character at the time of the hearing. The Tribunal considered Mr Moulds' psychiatric condition in connection with complaint three and found that he did suffer from a continuing impairment that required protective orders to be made. However, that a nurse requires psychiatric treatment and/or medication and other support in order to ensure that past problematical behaviour is not repeated does not mean - or at least necessarily mean - that he or she is not currently of good character in the relevant sense.
    
38. Accordingly, the appeal in respect of the Tribunal's determination of the second complaint is dismissed.
    

Conclusion

39. The appeal is dismissed with costs.
    

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