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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v ILM  QCAT 261
Occupational regulation matters
13 September 2019
On the papers
Judge Allen QC, Deputy President
Dr A Tuckett
Dr V Thorley
Mr J McNab
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – SANCTION – where the respondent was a registered nurse – where the respondent was convicted of criminal offences in relation to stealing Propofol from her employer – where the respondent was suffering from mental illness during the period of the offending conduct – where the respondent has received consistent treatment for her mental illness – where the parties are in agreement as to sanction – whether the sanction proposed is appropriate
Health Ombudsman Act 2013 (Qld), s 103, s 107
Health Practitioner Regulation National Law (Qld), s 5
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Medical Board of Australia v Fitzgerald  QCAT 425
Medical Board of Australia v Martin  QCAT 376
Nursing and Midwifery Board of Australia v Faulkner  QCAT 141
Nursing and Midwifery Board of Australia v Faulkner  QCA 97
Director of Proceedings, on behalf of the Health Ombudsman
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- The respondent obtained her Bachelor of Nursing degree in 2012. The respondent was a registered health practitioner as defined in s 5 of the Health Practitioner Regulation National Law (Qld) (“National Law”), holding general registration as a registered nurse between 2 May 2013 and 31 May 2017. She then held non-practising registration from 3 July 2017 to 31 May 2018, at which time her non-practising registration expired. The respondent has not held registration of any kind since the expiration of her non-practising registration on 31 May 2018.
- The Office of the Health Ombudsman received a notification from the respondent’s then employer on 24 May 2016. The notification contained an allegation that the respondent had stolen Propofol from her employer, as well as an allegation that she had an impairment. A disciplinary referral was filed in the Tribunal pursuant to s 103(1)(a) of the Health Ombudsman Act 2013 (Qld) (“HO Act”) on 29 June 2018. An amended referral was filed in the Tribunal on 21 January 2019, which did not pursue the impairment allegation. The matter ultimately proceeded by way of a statement of agreed facts and joint submissions of the parties.
- The statement of agreed facts sets out the background of the respondent’s offending conduct. The respondent was employed as a registered nurse in a private clinic on a part-time basis. Between 1 April 2016 and 24 May 2016, the respondent stole approximately 138 vials of Propofol from her place of employment. Propofol is a Schedule 4 Restricted Drug under the Standard for the Uniform Scheduling of Medicines and Poisons No. 10, as contained in the Poisons Standard March 2016 pursuant to the Therapeutic Goods Act 1989 (Cth). The respondent was able to obtain the Propofol, which was kept in a locked cabinet, as she had the access code to the safe in which the keys for the cabinet were kept.
- The respondent commenced maternity leave on 10 May 2016. While she was on maternity leave, the respondent attended at her place of employment on a number of occasions, to collect payslips which could otherwise have been sent to her by post. During this time, she continued to have the access code to the safe.
- On 23 May 2016, the access code to the safe containing the keys to the locked cabinet in which the Propofol was stored was changed. An audit was conducted which revealed that a number of vials of Propofol were missing and unaccounted for. The respondent contacted a staff member of her employer later that day, requesting the access code for the safe.
- On 23 May 2016, the respondent’s employer made a complaint to the Queensland Police Service.
- On 31 May 2016, a search warrant was executed at the respondent’s home address and the respondent was questioned by police and made admissions that she was suffering from depression, had commenced stealing Propofol from her employer in April, had stolen Propofol on 20 separate occasions and estimated that she had stolen in total 70 vials, and that she would use a syringe and needle to inject herself with up to 20ml of Propofol at a time on a daily basis. The respondent informed police that she used the Propofol for the purpose of attempting suicide. The respondent said that she was approximately eight to nine months pregnant at the time of the offending conduct and that she was not coping with the pregnancy.
- The respondent pleaded guilty in the Brisbane Magistrates Court on 10 October 2016 to one charge of stealing by as a servant, pursuant to s 398 of the Criminal Code. She was sentenced of 18 months’ probation and no conviction was recorded. She was further ordered to pay a sum of $900 in compensation to her previous employer.
- Following notification of the respondent’s then circumstances, the Australian Health Practitioner Regulation Agency (“AHPRA”) on 2 August 2016 advised the respondent that she would be required to undergo a health assessment. The health assessment was undertaken by Dr Nigel Prior on 8 September 2016. Dr Prior reported that the respondent had a very dysfunctional upbringing, had struggled with mental health problems, including during pregnancies and following giving birth, was receiving psychiatric treatment and suffering suicidal ideation. The respondent described her abuse of Propofol. Dr Prior opined that the respondent suffered from Bipolar Affective Disorder, type II (recently depressed), and a Substance Use Disorder (Benzodiazepines, Propofol).
- Subsequently on 1 December 2016, the National Board imposed conditions on the respondent’s registration, including that she:
- (a)must not practice as a nurse; and
- (b)must undertake treatment with a Consultant Psychiatrist and a Psychologist.
- The respondent was granted non-practising registration upon her own application on 3 July 2017, subsequently surrendering her general registration. She did not renew her registration, and the non-practising registration expired on 31 May 2018.
- The respondent was aged 31-32 years at the time of the conduct the subject of these proceedings. She was at that time eight to nine months pregnant. The parties agree that the respondent was suffering from a major depressive illness at the time of the conduct and stole the Propofol for the purpose of suicide. The respondent has a history of mental illness, including hospitalisation for treatment of anxiety, depression and benzodiazepine addiction and has been prescribed a variety of antidepressant and other medications. The respondent was being treated with alprazolam, oxycodone and venlafaxine during the period in which she was self-administering the Propofol.
- The parties agree, and the Tribunal readily finds, that the respondent has behaved in a way that constitutes professional misconduct.
- In relation to sanction, the parties jointly submit that the appropriate order is that the respondent be reprimanded pursuant to s 107(3)(a) of the HO Act. The Tribunal ought not depart from an agreed position as to sanction unless it falls outside a permissible range. A reprimand is not a trivial penalty, and amounts to a public denunciation of the respondent’s conduct recorded on the public register. The respondent’s failure to uphold professional standards deserves such denunciation. In light of the parties’ joint submissions, and the following considerations, the Tribunal accepts that the proposed orders as to sanction are appropriate to meet the protective purposes of sanction.
- The issue of whether the respondent suffers from an impairment is no longer before the Tribunal. More recent psychiatric opinion is encouraging as regards the respondent’s continuing recovery. The respondent has not practised as a nurse since 2016. Such circumstance would have been relevant had the applicant sought a further period of preclusion from practice. The applicant does not. Should the respondent apply for re-registration she will be required to satisfy AHPRA as to her fitness to practise. In all the circumstances, the Tribunal is satisfied that no orders for further preclusion from practice are necessary for protection of the public and that the orders for sanction proposed by the parties are appropriate.
- The Tribunal made a non-publication order on 30 November 2018, which prohibited the publication of documents filed in the Tribunal, evidence given before the Tribunal and orders made or reasons given by the Tribunal. At that time the referral alleged that the respondent had an impairment with consequent statutory constraints upon publication of proceedings. That is no longer the case. The joint submissions of the parties contend that the Tribunal ought to make a non-publication order in relation to the respondent’s name and medical records. The Tribunal is satisfied that such an order should be made pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009.
- Both parties have contended for an order that each party bear their own costs of the proceedings.
- Accordingly, the Tribunal orders:
- (a)Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent had behaved in a way that constitutes professional misconduct.
- (b)Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
- (c)Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the respondent’s medical records and of any other information that may enable the respondent to be identified is prohibited.
- (d)Each party bear their own costs of the proceeding.
- Published Case Name:
Health Ombudsman v ILM
- Shortened Case Name:
Health Ombudsman v ILM
 QCAT 261
13 Sep 2019