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Nursing and Midwifery Board of Australia v Roos  QCAT 231
Nursing and Midwifery Board of Australia (Applicant/Appellant)
Occupational Regulation matters
On the papers
Hon JB Thomas, Judicial Member
12 April 2016
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY MATTERS – offences of dishonesty against employer – former serious offences of dishonesty 12 years earlier and breach of undertaking to Board – professional misconduct – fitness for profession – whether current disciplinary sanctions adequate in such cases – whether reprimand necessary or appropriate when higher sanction involving suspension imposed – current level of prohibition of re-registration applied, but higher tariff suggested
Health Practitioner Regulation National Law 2009 (Qld) ss193B, 196(2), 196(4)
HCCC v Sohler  NSWNMT 18
Medical Board of Australia v Putha  QCAT 159
Medical Board of Australia v Vucak  QCAT 367
Nursing and Midwifery Board of Australia v Bartlett  VCAT 2014
Nursing and Midwifery Board of Australia v Morley  SAHPT 17
APPEARANCES and REPRESENTATION (if any):
Moray and Agnew, Solicitors
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
- The Nursing and Midwifery Board of Australia (“the Board”) referred this matter to QCAT pursuant to section 193B of the Health Practitioner Regulation National Law which is the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld). That Schedule will be referred to as “the National Law”. It applies to these proceedings.
- The reference was based upon the Board’s belief that the respondent nurse had behaved in a way that constitutes professional misconduct in that she had engaged in:
- Unprofessional conduct 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/or
- More than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and/or
- Conduct of the practitioner, whether occurring in connection with a practice of the health practitioner’s health profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
- Those allegations recite the three specified categories that appear in the National Law’s inclusive definition of “professional misconduct”.
- The parties have reached an agreed position in relation to the salient facts, and presented a joint submission concerning the imposition of a sanction for the conduct in question.
- It is, however, still necessary for the Tribunal to decide whether a ground for disciplinary action is established.
- The decisions and orders that may be made in these proceedings are prescribed in section 196(2) of the National Law.
- The conduct the subject of the present proceedings occurred in the course of the respondent’s employment with Queensland Health during a time when she had been seconded to the position of director of Nursing at Nanango Hospital in 2013.
- The respondent used, at Queensland Health’s expense and without authority to do so, a local taxi service to transport herself between her home, the Kingaroy Hospital and the Nanango Hospital. This was done in the context of Queensland Health having made available to her a government vehicle for work related travel.
- The conduct was the subject of criminal proceedings which culminated (on 20 June 2013) in the respondent pleading guilty to, and being convicted of, fraud under sections 408(1)(d) and 408(2)(b) of the Criminal Code 1899 (Qld). The complaint was that between 28 January 2010, and 4 March 2011, she used taxis on 15 occasions with total fares of $1,201.50 without authorisation.
- The respondent pleaded guilty to a selected significant charge, and the remaining charges were then not proceeded with. She was fined $500.00 and ordered to pay $175.70 restitution, and no conviction was recorded. The Magistrate is reported to have commented that “while it was not the most heinous of offences to come before the Court, public funds were for public use, not personal use”.
- The respondent had, however, on a previous occasion been convicted of considerably more serious criminal activity. She had been convicted on 22 March 2001 of three counts of stealing and four counts of dishonestly obtaining property in connection with her practice as a nurse while employed at Nambour General Hospital. Particulars included –
- On or about 23 December 2000 the respondent, whilst employed as a registered nurse at the Nambour General Hospital, removed a Myer card issued to Elizabeth Margaret Hudson from a locker room at the Nambour General Hospital without authority, and dishonestly applied the Myer card to her own use to obtain goods valued at $1,625.36.
- On or about 21 December 2000 the respondent, whilst employed as a registered nurse at the Nambour General Hospital, removed a Myer card issued by the Commonwealth Bank to Elizabeth Margaret Hudson from a locker room at the Nambour General Hospital without authority, and dishonestly applied the Myer card to her own use by misappropriating the sum of $800.00 from the Commonwealth bank account owned by Elizabeth Margaret Hudson.
- On or about 31 January 2001 the respondent, whilst employed as a registered nurse at the Nambour General Hospital, stole cash totalling $80.00 from Michelle Ruth Davison by removing the cash from the purse of Michelle Ruth Davison which was located in a locker room at the Nambour General Hospital.
- On or about 31 January 2001 the respondent, whilst employed as a registered nurse at the Nambour General Hospital, removed a visa card issued by the Westpac Banking Corporation to Michelle Ruth Davison from a locker room at the Nambour General Hospital without authority, and dishonestly applied the visa card to her own use by misappropriating the sum of $800.00 from the Westpac Bank Account owned by Michelle Ruth Davison.
- On that occasion, she pleaded guilty to three counts of stealing and four counts of dishonestly obtaining property. She was fined $1,000.00 and directed to pay restitution of $2,997.70. No conviction was recorded. A report from a clinical psychologist describing stressors following her marriage break up and her financial problems was presented in mitigation.
- Disciplinary proceedings ensued, and eventually on 24 October 2002, in lieu of making a positive disciplinary order the Board accepted an undertaking from the respondent that she would attend, at her own expense, a psychiatrist or psychologist at least twice per month for a period of 6 months.
- In July 2003, the respondent appeared again before the professional conduct committee, which found that there had been a breach of the undertaking. She was reprimanded. It was found that she had undertaken some counselling, but not at the frequency required.
- There followed approximately 12 years during which the respondent practised her profession without any relevant incident, until her conduct in 2013, which involved the unauthorised and unreasonable use of taxis.
- The evidence presented is clearly capable of supporting all three allegations of professional misconduct.
- In relation to her conduct in 2001, the respondent preyed upon her fellow workers and systematically defrauded them. In my view she was quite leniently dealt with in the disciplinary proceedings that followed.
- She then failed to honour her undertakings to the Board and was reprimanded.
- As to the subsequent misconduct in defrauding Queensland Health in 2012-2013, the evidence shows a pattern of dishonest conduct over an extended period. She claimed at the time (and now) that she believed she had verbal authority from her line manager to use the taxis. However in the course of the police investigation the manager denied giving such authority, indicating it was limited to late night callouts where she felt unsafe driving late at night between Kingaroy and Nanango. Further, she used fictitious names in relation to the use of the taxis, and her conduct clearly points to deceit rather than belief in authorisation. The evidence, including her plea of guilty, satisfies me to the required standard that this was cynical and dishonest conduct over an extended period.
- The overall picture is one which gives cause for concern as to the respondent’s character and fitness to practise as a nurse.
- The Board has submitted that her conduct overall is inconsistent with her being a fit and proper person to hold registration in the profession.
- Despite that submission, the Board has asked only for a prevention of reapplication for registration for a period of three years. At first glance, this seems inadequate.
- However, the precedent cases to which reference has been made, reveal suspensions (or their equivalent through prohibition of reapplication for specified periods such as two, three or four years) for very serious misconduct indeed.
- For example:
- Morley misused a patient's credit card (obtaining over $11,000.00), was convicted and given a suspended sentence, and then made successive applications for re-registration, each time certifying she had no criminal history. The consequential disciplinary sanction was a reprimand, with cancellation of registration and prohibition against registration for approximately three years and four months;
- Bartlett falsified timesheets and defrauded her employer of over $64,000.00, resulting eventually in a reprimand and cancellation of registration for two years;
- Sohler made false claims for overtime over 18 months by forging her supervisor's signature, and falsely altered clinical records with consequential potential for patient harm, resulting eventually in cancellation of registration for three years.
- These decisions reveal an approach that I would regard as surprisingly mild, given that the protection of the public and of the profession are the primary objectives of such proceedings.
- Perhaps this approach is guided by a realisation that the suspension of a nurse from the calling in which he or she is qualified is capable of producing severe, even crippling economic consequences, with further harm for society in several areas. Whatever the rationale, a pattern seems to have been set, and it is appropriate that this Tribunal endeavour to maintain consistency of approach in such matters.
- I am prepared to say however that the tariff in such matters seems to be too low. Speaking generally, repeated dishonesty (especially in a nurse who steals from or defrauds patients or colleagues) may show that person to be simply unsuitable to be a member of an honourable profession. In such a case it would be appropriate under the National Law (sections 196(2)(d), 196(2)(e), or 196(4) as the case may be) to make an order that would effectively prevent that person from re-entering the profession for a much longer time than that suggested in the cited cases. I leave for another day the question whether "the life of the respondent practitioner" is a "specified period" within the meaning of these words in sections 196(2)(d) and 196(4). At first glance I cannot see why not.
- A number of points were urged in mitigation by the respondent, including the 12 year gap between the first series of offences and the more recent lapse. She repeated former explanations and attempted mitigation of the conduct in question, such as her "very difficult divorce" and "mental and financial strain" preceding the first series of offences; the fact that she did undergo some counselling following her undertakings to the Board, and that she merely failed to do so often enough.
- The agreed proposal provides for a reprimand, disqualification from applying for registration for three years from the date of this order, and a further order that the respondent pay the applicant’s costs agreed in the sum of $6,000.00.
- I accept that this proposal is consistent with the level of current disciplinary orders in the nursing profession.
- The point was raised in submissions as to whether it is appropriate to include an order of reprimand along with an order that provides for suspension or cancellation. I can see no reason why such orders cannot be made together, but observe that a cancellation or suspension from registration or a prohibition against reapplication for registration itself implies a higher degree of reprimand from the Board. To that end, the inclusion of a reprimand may well seem pointless or unnecessary. That, however, is a matter for individual preference in individual cases.
- In the present matter no "early action" was taken by the Board concerning the continuation of her registration, and it remained in force until 2 July 2015 when it lapsed. She has not applied for any re-registration.
- It follows that neither suspension nor cancellation under section 196(2)(d) or (e) are available and that any order in relation to her registration must be governed by section 196(4).
- In these circumstances the appropriate orders will be:
- A finding is recorded under section 196(1)(b) of the Health Practitioner Regulation National Law Act 2009 (Schedule) that the respondent has behaved in a way that constitutes professional misconduct.
- The respondent is reprimanded.
- The respondent is disqualified from applying for registration for a period of three years from the date of this order.
- The respondent is ordered to pay the applicant's costs of and incidental to these proceedings agreed in the sum of $6,000.00.
Pursuant to the National Law ss 193 and 193B.
 National Law s 5.
 National Law s 196(1).
 Joint submissions on sanction filed 22 March 2016, para 14.
Nursing and Midwifery Board of Australia v Morley  SAHPT 17 (‘Morley’).
 Nursing and Midwifery Board of Australia v Bartlett  VCAT 2014 (‘Barlett’).
HCCC v Sohler  NSWNMT 18 (‘Sohler’).
Reference was made to the cases of Medical Board of Australia v Putha  QCAT 159 and Medical Board of Australia v Vucak  QCAT 367 at .
National Law s 178 et seq.
- Published Case Name:
Nursing and Midwifery Board of Australia v Roos
- Shortened Case Name:
Nursing and Midwifery Board of Australia v Roos
 QCAT 231
Hon J B Thomas, Judicial Member
12 Apr 2016