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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Corocher  QCAT 47
Occupational regulation matters
5 February 2020 (ex tempore)
5 February 2020
Judge Allen QC, Deputy President
Ms Mary Barnett
Ms Jennifer Felton
Mr Stephen Lewis
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was registered as an enrolled nurse – where the respondent was convicted of offences including multiple offences of dishonesty and was imprisoned – where the respondent dishonestly obtained money from vulnerable patients – where the respondent violated professional boundaries by accessing personal contact information of patients and contacting the patients – where the respondent showed no remorse for his offending – where the respondent’s conduct and criminal history of dishonesty shows a serious and repetitive pattern of serious dishonesty – whether the respondent should be permanently disqualified from registration as a health practitioner – whether the respondent should be permanently prohibited from providing any health service
Evidence Act 1977 (Qld), s 79
Health Ombudsman Act 2013 (Qld), s 73, s 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5
Craig v Medical Board of South Australia (2001) 79 SASR 545
Nursing and Midwifery Board of Australia v Jones (2017) SAHPT 4
C Wilson instructed by the Office of the Health Ombudsman
REASONS FOR DECISION
- The Director of Proceedings on behalf of the Health Ombudsman (“the applicant”) has referred a health service complaint against Shawn Corocher (“the respondent”) to the Tribunal pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (“HO Act”). The applicant seeks a finding that the respondent has behaved in a way that constitutes professional misconduct and consequent orders for sanction.
- The respondent is 42 years of age. He was first registered as an enrolled nurse on 8 October 2007. On 27 August 2012, the Nursing and Midwifery Board took immediate action to suspend the respondent’s registration and it remains suspended. On 31 August 2016, the applicant made an interim prohibition order, pursuant to s 73(1) of the HO Act, which prohibited the respondent from any employment in a clinical or non-clinical capacity relating to the provision of any health service. That interim prohibition order remains current.
- The referral relates to two categories of alleged professional misconduct. Firstly, the commission of criminal offences which resulted in the conviction of the respondent of criminal offences and his imprisonment and, secondly, instances of boundary violations.
- The criminal offending is particularised as the conviction of the respondent for breaches of bail conditions in 2012 and 2013, his conviction in the District Court at Bundaberg on 25 September 2014 for eleven counts of stealing, nine counts of fraud, and one count of attempted fraud, with respect to which the respondent was sentenced to a term of imprisonment of two years and nine months, and his conviction on 6 February 2015 in the District Court at Bundaberg of one count of fraud.
- All of the criminal offending occurred during 2010 to 2012 whilst the respondent was employed as an enrolled nurse at the Bundaberg Base Hospital, except for one of the breaches of bail, which occurred in 2013. The conviction of the respondent in the District Court at Bundaberg of the multiple counts of stealing and fraud occurred after a nine day trial, during which the respondent gave evidence denying his guilt. The sum of money obtained by the respondent as a result of those offences of dishonesty was close to $22,000. The respondent obtained that money by stealing the bank cards of patients in the emergency department of the Bundaberg Base Hospital whilst employed as an enrolled nurse at the hospital and tricking them into disclosing their PIN number for their bank cards. The sums of money taken from the victims was enough to empty their bank accounts.
- At the time of his sentence for those offences on 26 September 2014, the learned sentencing judge, her Honour Judge Bradley stated as follows:
The context was that you were working as a male enrolled nurse at the Bundaberg Base Hospital, generally in the emergency department and your victims were the elderly or infirm that came to seek treatment there. They came to the hospital at crisis moment in their lives because of acute sickness or injury. Your behaviour in stealing their cards – their banks cards – tricking them, in many cases, to give their PIN numbers to you and then withdrawing money from their accounts at ATMs constitutes gross dishonesty. Your job as a nurse was to take care of the welfare of these people. You failed miserably to do that and it was a gross breach of your professional ethics to commit these offences.
- Judge Bradley went on to refer to the obvious significant financial and emotional damage to the victims, noting the evident distress of victims when giving evidence during the trial. Her Honour went on to state:
The offending took place over a relatively lengthy period of time, between July 2010 and June 2012. So nearly two years. It involved 11 victims, so it was persistent behaviour. You have demonstrated a complete lack of remorse and empathy for your victims as someone who had nursed your victims, you would have been aware of the impact upon them of losing their money. But nevertheless, you cynically and callously took advantage of them in the most brazen and shameless way.
- The conviction of the respondent for the count of fraud in the District Court at Bundaberg on 6 February 2015 was after a plea of guilty to that offence. That offence involved the respondent befriending a 70-year-old woman who suffered from a neurodegenerative condition that affected her cognitive functioning. The respondent persuaded the victim to give him access to her bank ATM card and the respondent fraudulently withdrew approximately $43,000 between November 2011 and June 2012. For that offence, the respondent was sentenced on 8 September 2015 to a term of imprisonment of two years and six months.
- In his response filed in the Tribunal, the respondent stated that he admitted all the allegations in the referral, adding:
Have no recollections clearly. I am not able to clearly remember these.
- That constituted an admission of all of the facts of the convictions that have just been summarised. The applicant filed a Statement of Facts which included the details of that offending as have been summarised. In response to that statement of facts, the respondent stated:
It was with this decision that I would not Disagree with the Statement of Facts Given by the Health Ombudsman And I would rely on the QCAT Tribunal to make all decision on the outcome … I would like to State that I do not reject this Statement of facts and wish not to provide any further evidence regarding this matter.
- During his submissions before the Tribunal today, the respondent appeared to deny his guilt of the offences, or at least some of them.
- In addition to the clear admissions made in the course of proceedings by the respondent as to the facts of the offences for which he is convicted, s 79 of the Evidence Act 1977 (Qld) provides that the Tribunal can act upon the fact of those convictions as proof of the acts and the intention of the respondent required to prove guilt of those offences unless the contrary is proved. The respondent has not sought to prove to the contrary. The Tribunal is satisfied that the conduct alleged against the respondent by way of the commission of criminal offences is established to the satisfaction of the Tribunal.
- With respect to the allegations of boundary violations, such conduct involved the respondent, during the course of his employment at the Bundaberg Base Hospital, inappropriately accessing personal contact information of four young women who had attended the hospital for medical treatment and had been treated by the respondent and then contacting those patients without their consent. Such conduct occurred in April and May 2012. It involved the respondent improperly obtaining their contact telephone numbers and contacting them by way of voice calls and text messages, seeking further personal contact with them. It made the patients who received such contact uncomfortable and, in at least one instance, caused significant fear to the patient.
- Those allegations set out in the referral were, as noted earlier, admitted by the respondent in his response and the facts of such inappropriate access of their contact information and contact of the patients as set out in the applicant’s Statement of Facts were likewise not disputed in the respondent’s filed response to that Statement of Facts.
- Notwithstanding those admissions, in his oral submissions today the respondent denied the substance of those allegations of boundary violations.
- The Tribunal has before it police statements of the four patients and some supporting documents in relation to at least one of the patients, setting out the terms of text messaging. Given the admissions of the respondent in his filed material and the cogent evidence before the Tribunal to otherwise establish those facts that have been admitted, the Tribunal finds such facts proved to its satisfaction and such conduct established to its satisfaction.
- With respect to the characterisation of the conduct that has been proved to the satisfaction of the Tribunal, either category of conduct, that is, either the criminal offending or the boundary violations, would of themselves be properly characterised as professional misconduct. Clearly, the combination of such conduct should be characterised as professional misconduct. It meets the definition of “professional misconduct” in all three limbs of that definition in s 5 of the Health Practitioner Regulation National Law (Queensland). Pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
- In considering the matter of sanction, the Tribunal must be mindful that the main principle for administering the HO Act is that the health and safety of the public are paramount. Purposes of sanction are protective, not punitive, as has been noted in many previous decisions, often citing Craig v Medical Board of South Australia (2001) 79 SASR 545 at 553-555. The imposition of sanction may serve one or all of the following purposes:
- (a)preventing practitioners who are unfit to practise from practising;
- (b)securing maintenance of professional standards;
- (c)assuring members of the public and the profession that appropriate standards are being maintained and the professional misconduct will not be tolerated;
- (d)bringing home to the practitioner the seriousness of their conduct;
- (e)deterring the practitioner from any future departures from appropriate standards;
- (f)deterring other members of the profession who might be minded to act in a similar way; and
- (g)imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
- The first three of those purposes are particularly pertinent in this case. The course of criminal offending was not only quite protracted but demonstrated a very high level of calculation on the part of the respondent in his deceit and manipulation of vulnerable victims. It was a gross betrayal of the trust reposed in him by those victims as patients of the hospital and trust reposed in him by his employer, his profession and the public. It is an extremely serious example of professional misconduct. It is aggravated by the professional misconduct constituted by the boundary violations. Obviously, the Tribunal regularly has before it more serious examples of such boundary violations, but the misconduct by way of boundary violations was significant and is concerning not only because of the nature of the conduct but because of the complete absence of insight on the part of the respondent as to such departure from professional standards.
- The professional misconduct by way of the criminal offending must also be viewed in light of the prior criminal history of the respondent. The respondent has a relevant criminal history prior to his first registration as an enrolled nurse:
- (a)18 December 1996: larceny, obtaining benefit by deception and providing false information to a pawnbroker;
- (b)24 February 1997: larceny;
- (c)4 September 1998: three counts of unauthorised dealing with shop goods;
- (d)16 July 2001: three counts, namely forgery, uttering, and attempting dishonestly to obtain property from another;
- (e)19 September 2005: dishonestly obtaining property from another;
- (f)27 February 2006: stealing; and
- (g)18 June 2007: fraud.
- Matters of insight and remorse are relevant to the determination of sanction. In a written submission dated 19 August 2018, the respondent stated:
I will not keep the Tribunal Long with Long winded excuses or opinionated reasoning. During my time as a Nurse I was going through a rough time personally as well as emotionally. I resorted in making a clear mistake and at the same time ending a great career a career I loved and admired. My family was falling apart I had lost a child and My marriage was ending it was all too much. My remorse for my actions as a nurse is so significant, I cannot attend the local hospital without being emotional.
The Tribunal is to make a decision on my case and I will make it clear I do not wish to return to nursing nor will I, My future is uncertain and I understand that The tribunal Must give directions and make a decision regarding my future within the community but at the same time I ask that the tribunal see that there has been changes in my life and that I am remorseful of previous convictions held by me.
- Despite such protestations of remorse, it became quite clear during the respondent’s oral submissions today that, consistently with the way he conducted the trial of the majority of the criminal offences of which he was convicted, he has absolutely no remorse for his offending and, indeed, denies the fact of the offending. He has demonstrated a complete lack of insight into the seriousness of his misconduct and the effect of it upon his victims and the reputation of the profession. There is no evidence before the Tribunal of any steps taken by the respondent towards rehabilitation to address his behaviour.
- In those circumstances, the applicant submits that appropriate orders for sanction will include cancellation of the respondent’s registration and an indefinite disqualification from applying for reregistration. In support of that submission, the applicant has referred to the Nursing and Midwifery Board of Australia v Jones (2017) SAHPT 4 and submitted that the respondent’s conduct and criminal history of dishonesty shows such a serious and repetitive pattern of serious dishonesty that the Tribunal could not be satisfied that the health and safety of the public could be protected if he were to return to work in a health service, particularly given that the respondent’s offences were largely targeted at the elderly, infirm and vulnerable whilst in the course of his employment as an enrolled nurse.
- The Tribunal agrees. The protracted and serious criminal offending by the respondent in the course of his nursing duties, preying upon vulnerable patients under his care, constitutes such a gross departure from the standards expected of a member of a caring profession that it compels a finding that the respondent is not currently a fit and proper person to hold registration as a registered nurse. That conclusion is supported by a consideration of the respondent’s substantial prior criminal history of offences of dishonesty. The Tribunal finds that the respondent’s character is so indelibly marked by his misconduct that he could not ever be regarded as a fit and proper person to practise the profession of nursing. In those circumstances, appropriate orders for sanction will include the cancellation of the respondent’s registration and indefinite disqualification from applying for re-registration.
- The applicant also seeks a permanent prohibition order pursuant to s 107(4)(b) of the HO Act. Section 107(4)(b) provides that if the Tribunal decides to cancel the practitioner’s registration, the Tribunal may also decide to “prohibit the practitioner, either permanently or for a stated period, from…providing any health service or a specified health service”.
- The applicant submits that such an order is necessary to protect the health and safety of the public because of the prospect that the respondent could find employment as an unregistered health practitioner in a position such as an assistant in nursing or a personal carer. Such concern is not a merely theoretical one. Not only does the respondent hold some qualifications which would assist in obtaining employment in areas such as aged care or disability care, but he has, at least at some time since his release from prison, expressed an interest in obtaining such employment or further qualifications to assist in gaining such employment. Absent the order sought by the applicant, the respondent could obtain employment as an unregistered health practitioner and return to working with the elderly, infirm and vulnerable persons in facilities such as aged care or disability care facilities.
- For the same reasons that the Tribunal has determined that indefinite disqualification from registration as a nurse is necessary for the protection of the health and safety of the public, the respondent should be permanently prohibited from providing any health service in an unregistered capacity. Such prohibition should be a permanent one for the same reasons that the disqualification from registration is an indefinite one. No terms of a prohibition order narrower than a complete prohibition from providing any health service would suffice to address the risk presented by the respondent.
- The applicant has not sought any order for costs, and that should be reflected in the orders of the Tribunal.
- Accordingly, the Tribunal orders as follows:
- Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
- Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.
- Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a health practitioner indefinitely.
- Pursuant to s 73(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the interim prohibition order issued by the Health Ombudsman on 31 August 2016 is set aside.
- Pursuant to s 107(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service.
- Each party must bear the party’s own costs for the proceeding.
- Published Case Name:
Health Ombudsman v Corocher
- Shortened Case Name:
Health Ombudsman v Corocher
 QCAT 47
05 Feb 2020