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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Nursing and Midwifery Board of Australia v Burrows  QCAT 164
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Occupational regulation matters
27 May 2020
On the papers
Judicial Member D J McGill SC, assisted by Ms L Dyer, Ms S Harrop and Mr J McNab.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – Professional misconduct – conviction of historical sex offence – failure to notify charge or conviction – characterisation of conduct – sanction
Health Practitioner Regulation National Law (Qld) s 5, s 130, s 138, s 139, s 193B;
Health Ombudsman v Armstrong  QCAT 382
Health Ombudsman v GCV  QCAT 30
Health Ombudsman v Rissanen  QCAT 96
Medical Board of Australia v Wong  QCA 42
Nursing and Midwifery Board of Australia v Dibbs  QCAT 241
Nursing and Midwifery Board of Australia v FH  QCAT 675
Nursing and Midwifery Board of Australia v Tainton  QCAT 161
Psychology Board of Australia v GA  QCAT 409
Clayton Utz Lawyers for the applicant
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
- This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Practitioner Regulation National Law (Qld) s 193B. Under s 126 of the Health Ombudsman Act 2013, I constitute the Tribunal. I am sitting with assessors Ms Dyer, Ms Harrop and Mr McNab in accordance with the Act s 126; their function is to advise me in relation to questions of fact: s 127.
- The respondent is a registered health practitioner for the purposes of the National Law, being a registered nurse. The applicant alleges that the respondent behaved in a way that constituted professional misconduct, in that:
- (a)Ground 1: He was convicted in the District Court of an offence of indecent treatment of a child under twelve, with a circumstance of aggravation.
- (b)Ground 2: He failed to give notice of the fact of his having been charged with the offence.
- (c)Ground 3: He failed to give notice of the fact of his having been convicted of the offence.
- The parties have provided the Tribunal with a statement of facts, setting out those facts which are agreed and those which are disputed. The respondent, who has not been legally represented in these proceedings, admits, in relation to the first ground, the facts alleged, and that the conduct in question amounts to professional misconduct. In relation to grounds 2 and 3, however, he claims that this failure to notify was due to his ignorance of the legal position, which he submitted was no more than unsatisfactory professional performance. The parties have provided written submissions to the Tribunal, and the hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 s 32.
- The Tribunal accepts the agreed facts set out in the statement of facts. They, and some other information before the Tribunal, may be summarised as follows: The respondent was born in 1963 and is now 56. He was first registered as a Registered Nurse in 2001. In 1998, while he was visiting the family of the complainant, he indecently dealt with the complainant, who at the time was eight years old. She complained to her mother promptly, but the matter was not brought to the attention of police until 2016. The respondent was arrested in 2016, and was not released on bail for 26 days. At the time of his arrest, the respondent was employed at a hospital as a registered nurse. His employer advised the Australian Health Practitioner Regulation Agency (APHRA) of his arrest, and as a result the respondent’s registration was suspended. It remains suspended. The respondent did not notify the Board of his being charged with this offence, within seven days or at all.
- The respondent appeared in the District Court in July 2017 and pleaded guilty to the change of indecent treatment of a child under twelve, with a circumstance of aggravation. He was sentenced to imprisonment for two years, with the sentence suspended after he had served six months, with an operational period of two years. The respondent did not notify the Board of his being convicted of this offence, within seven days or at all. The sentencing judge took into account the respondent’s previous criminal history, which consisted of the following:
- (a)In 1981 (when he was eighteen) he was placed on probation for one year for breaking and entering a dwelling house with intent.
- (b)In 1989 he was fined $200 for possession of a dangerous drug.
- (c)In 1991 he was fined $150 for entering an enclosed yard without lawful excuse.
- (d)In 1994 he was placed on probation for three years after pleading guilty to offences of deprivation of liberty, unlawful assault and going armed in public. On appeal by the Attorney-General, the Court allowed the appeal, to the extent of ordering that the respondent perform 240 hours community service, and varied a condition of his probation. The Court took into account that the offences were committed after he had used amyl nitrite, that they were sexually motivated and that he had desisted when he realized the complainant had become distressed. He was under treatment from a psychiatrist at the time of sentencing, and at the time of the appeal, and the psychiatrist had expressed the view that he was quite unlikely to reoffend so long as he was compliant with his treatment. (In fact he reoffended in 1998, but apparently has not reoffended subsequently except for the following incident.)
- (e)In 2012 he was fined $500 for committing an indecent act in a public place, when he exposed his penis in the site of a female on a bus.
- The criminal history was disclosed when the respondent applied for registration as a Registered Nurse, except for the last offence, which was disclosed as required in 2012. In 2018, the respondent’s employment at the hospital was terminated. I assume he has not worked as a nurse since.
- The definition of “professional misconduct in the national law is as follows:
professional misconduct, of a registered health practitioner, includes—
- (a)unprofessional conduct by the practitioner 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
- (b)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
- (c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
- The applicant submitted that the relevant part is paragraph (c), relying on conduct not in connection with the practice of the respondent’s profession. It was submitted for the applicant that his conduct amounted to professional misconduct on this basis. The respondent did not dispute this characterization of the conduct. Sexual offending against a child would be readily characterized as falling within this part of the definition.
- I have been referred to a number of earlier decisions. In Queensland Nursing Council v Ringelstein  QNT 4, the respondent had been convicted of maintaining an unlawful sexual relationship with a child, which was characterized as conduct inconsistent with the type of conduct expected of a professional person in a position where there are vulnerable patients. The reasons of the Tribunal provide no details of the circumstances or criminal penalty, but reference to the sentencing remarks on QSIS reveal that the complainant was eight at the time, the offence covered about eight occasions, on most of which there was just touching outside clothing, and on the other two there was no penetration. Following a plea of guilty he had been sentenced to three and a half years imprisonment, suspended after fifteen months. He was precluded from registration for fifteen years, which sanction was unopposed.
- In Nursing and Midwifery Board of Australia v FH  QCAT 675, the respondent had been convicted of sexual offences against two nieces, then young adults, committed many years earlier while he was registered as a nurse in Victoria. There had been no subsequent offending. He had failed to disclose that he had been charged with these offences when applying to renew his registration. He was precluded from registration for eight years. It was noted that longer preclusion periods had been imposed because of sexual offences against minors, and that a period of five years would have been imposed but for the dishonesty in applying for renewal of his registration.
- In Nursing and Midwifery Board of Australia v Dibbs  QCAT 241 the respondent was convicted of maintaining an unlawful sexual relationship, and other sexual offences including rape, committed over a six year period while registered as a nurse and a midwife. He had surrendered his registration, and was disqualified from applying for registration for a period of ten years.
- More recently, in Health Ombudsman v GCV  QCAT 30, the Deputy President of the Tribunal, Allen DCJ, made a finding of professional misconduct where the respondent had been convicted of a number of serious sexual offences against his step-daughter while she was aged thirteen to sixteen. That offending was worse and more persistent than the offending in this case, and he had been sentenced to four and a half years imprisonment. His Honour said that he had “no hesitation in finding that the grave criminal offending … constituted professional misconduct.” The respondent was disqualified from applying for registration for nine years, and prohibited from providing any health service for nine years.
Characterisation of conduct
- There is however an issue which arises in this matter, as to whether the offending conduct amounted to professional misconduct on this basis. At the time the offence was committed, the respondent was not a registered health practitioner. The definition of “professional misconduct” in the National Law speaks of it as being “of a registered health practitioner”, and most parts of the definition necessarily relate only to conduct in the course of the practitioner’s profession.
- The wording of the first two paragraphs, and the first part of the third paragraph, appears to refer to conduct in connection with the practice of the profession, which can only occur while the practitioner is registered, and although literally the second limb of the third paragraph could be satisfied by conduct prior to registration, it would not at that time be the conduct of a registered health practitioner. That definition is picked up in Schedule 1 of the Health Ombudsman Act 2013.
- There are other provisions of the National Law which suggest that the definition is concerned with conduct when a registered health professional. Sections 138 and 139, dealing with the application of the Law to certain persons not now registered health practitioners, make the operation of the Law dependent on there being relevant “behaviour while registered” under the Law, or while registered under a corresponding prior Act. So if the respondent were not still registered, his behaviour in 1998 could not be a basis for dealing with him under this Act. More importantly, these sections suggest that the Act is concerned with behaviour of a practitioner while a registered health practitioner.
- Under earlier legislation, being convicted of a criminal offence of sufficient seriousness was itself grounds for disciplinary action. The current equivalent of this is in the definition of “unprofessional conduct” in s 5 of the National Law, which expressly includes: “(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practice the profession.” The conviction in this case occurred while the respondent was registered, the offence is one under another Act, and as explained in the decisions referred to earlier its nature affects the respondent’s suitability to continue to practice the profession. There was therefore unprofessional conduct as defined while the respondent was registered.
- The applicant submitted, in the alternative, that the conviction was within the definition of professional misconduct, in that it satisfied paragraph (a) of that definition. That does not obviously fit with the wording of paragraph (a), since the reference to “training and experience” suggests that the paragraph is concerned with conduct in the practice of the profession, but once one appreciates that the relevant “unprofessional conduct” was the fact of the conviction, it can be seen that the relevant issue is whether that conviction shows that the practitioner is substantially below the standard of fitness to practice reasonably expected of a registered health practitioner. In that way the conviction can be seen as falling within the definition of professional misconduct.
- Because of the seriousness of the conduct leading to the conviction, if it is capable of amounting to professional misconduct, the Tribunal should decide that it did. In these circumstances it is unnecessary to consider the applicant’s further alternative argument, that the conviction, taken with the failures to notify, together amounted to professional misconduct within paragraph (b) of the definition.
Failures to notify
- That leaves for consideration the failures to notify. The National Law s 130(1) relevantly provides that “A registered health practitioner … must, within seven days after becoming aware that a relevant has occurred in relation to the practitioner … , give the National Board … written notice of the event.” Subsection (2) provides that a contravention of this obligation “does not constitute an offence, but may constitute behaviour for which health, conduct or performance action may be taken.” The list of relevant events in subsection (3) includes that the practitioner is charged with an offence punishable by twelve months imprisonment or more, and that the practitioner is convicted of an offence punishable by imprisonment.
- The offence of which the respondent was charged, and later convicted, was an offence punishable by more than twelve months imprisonment. So there were contraventions of s 130(1) by the respondent because of his failure to notify the Board within seven days after each of these occurred. The definition of unprofessional conduct in s 5 expressly includes “a contravention by the practitioner of this law.” On the face of it therefore the respondent was in this way guilty of unprofessional conduct.
- The respondent submitted however that this should be characterised as no more than “unsatisfactory professional conduct”, bearing in mind the circumstances he was in at the time. He submitted that he was not aware at the time of the existence of these obligations. It is true that in 2012 he had notified the Board of his conviction then, which suggests that he should have been aware of this obligation in 2016, but there is the consideration that this time during the specified period of seven days the respondent was in custody, first having been remanded in custody following his arrest, and second, being in custody for some months following his sentencing. It is understandable that, in such circumstances, he would be pre-occupied with the difficulties of his situation, both for him and for his family, and would not be giving a lot of thought to matters such as this.
- The respondent had also raised, in earlier submissions, the difficulty in giving notice during the periods of incarceration. There may be something in that, although his case is rather than he was unaware of the need to give notice, and in his circumstances he was unlikely to come into contact with anyone or anything which would jog his memory. The applicant submitted that his position was analogous to that of a practitioner who had failed to disclose a charge or conviction when applying for renewal of registration, but that involves making a positive assertion to the Board which is to the knowledge of the practitioner false, introducing an element of dishonesty. It was this element which produced the adverse comments about such behaviour in FH (supra).
- In my opinion unless the failure to disclose is a deliberate attempt by the practitioner to deceive the Board, the position is not analogous to a dishonest misrepresentation as to the absence of any relevant charge or conviction. There is no reason to think that there was such a deliberate omission to disclose in this case, and I reject this aspect of the applicant’s submissions. In fact the Board was notified as a result of the actions of his employer, and fairly promptly suspended his registration. Presumably he was advised that this had occurred – he certainly should have been – and once he was aware of this, it is easy to believe that he then took the practical view that there was no need to advise the Board of a charge of which they were already aware. Since the suspension of his registration meant that thereafter he was not going to be practicing as a nurse anyway, there was no harm done by his failure to notify his conviction.
- None of these factors mean that the definition of unprofessional conduct was not satisfied by the failure to notify. Ignorance of the obligation does not excuse a failure to comply with it. Grounds two and three do amount to unprofessional conduct, as alleged by the applicant, although there is a good deal of force in much of what the respondent has submitted, in relation to the issue of sanction. I do not consider that his having advanced these submissions reflect adversely on his character, as the applicant submitted.
- In the other decisions referred to earlier the usual sanction in such a case has been to cancel the practitioner’s registration unless it had already been surrendered, and to disqualify the practitioner for a period from applying for registration as a health practitioner. Late last year the respondent sought to surrender his registration. It appears to me however that the effect of the National Law s 207 is that, while his registration is suspended, he cannot surrender his registration under s 137 because that section is not within Part 8 of the National Law, so he is taken under s 207 not to be registered. The applicant sought an order for cancelation, and that order is appropriate.
- With regard to the period of disqualification, the applicant sought a period of five to seven years. The respondent in his submissions to the Tribunal accepted that there would be a period of disqualification, and appears to have abandoned any desire to return to nursing. In any case, in the light of the earlier decisions a preclusion period is appropriate. The periods in the other cases ranged from eight years to fifteen years, but most involved worse examples of offending. In FH the complainants were adults, albeit young adults, but there were two of them, and the offending occurred on a number of occasions, and extended to penetration. By contrast the offending here involved a single occasion, and no penetration, but it did involve a child, who was young child, abused in her own home.
- There is also the factor that the offending occurred a long time ago, and since then there has been no sexual offence against a child, or any other serious sexual offence, and there is no suggestion that there was any sexual misconduct in the course of the respondent’s professional work. I do not regard the single, relatively minor offence in 2012 as manifesting a persisting tendency to reoffend, nor do I consider that the respondent is seeking to minimise the significance of that offending; rather I consider that the applicant is exaggerating its significance in its submissions. As stated by Chief Judge O’Brien in sentencing, the respondent has subsequently sought to address his offending conduct, and has shown remorse. References produced for his sentencing suggest that he was highly regarded in his work, in which he had achieved promotion. The time that has passed since the relevant offending is relevant to the question of sanction.
- In submissions in reply the applicant suggested that an absence of complaint about the respondent’s work as a nurse did not establish that no concerns existed. In circumstances where there was positive material about the respondent’s work as a nurse in the reference material provided for sentencing, and there is no material to the contrary, or supporting the existence of such concerns, before the Tribunal, I regard that submission as unjustified. It is not only unhelpful, it should not have been advanced. In the absence of evidence that there were concerns, it is appropriate to proceed on the basis that there were none.
- In all of the other cases, the period of disqualification ran from the date of the order, although in the circumstances the practitioner would not have been practicing for a period before then as well. In other situations, the Tribunal has taken such a factor into account, for example, by having regard to a period of de facto suspension when considering whether, and if so for how long, to suspend the registration of the practitioner. This approach has not been followed in the cases considered earlier, although it appears to me that in principle it should apply to these cases also. The practical effect is that the actual periods out of practice have been longer in these cases, and that must be taken into account.
- The applicant submitted that there should be a minimum period of disqualification of five years, on the basis of what was said in FH. In that case, the respondent was apparently continuing to practice as a nurse until he was sentenced, about eighteen months before the matter came before the Tribunal. The five year period mentioned by Kingham DCJ at  would have meant a period out of practice of six and a half years. As well, the preclusion period fixed was that proposed in joint submissions of the parties, which factor would have been taken into account by the Tribunal.
- In the present case, the matter has taken much longer to get before the Tribunal, and the respondent has already been unable to practice as a nurse since late 2016, about three and a half years. To impose now a period of disqualification which would produce the same time out of practice as in FH if the five year period had been adopted would mean a preclusion period of three years from the date of the order. In view of the fact that the offending in this case involved a young child, however, I consider that the appropriate course is to fix a period of disqualification of four years from the date of the order, which means seven and a half years away from practice. I do not consider that, in the circumstances of this case, the preclusion period should be extended because of the two failures to notify. I do not consider that they manifest an absence of insight from a professional perspective, and consider that there is a more obvious and understandable explanation. The period is long enough.
- The applicant also sought an order under s 196(4)(b)(i) that during the period of disqualification the respondent be prohibited from providing any health service. No particular argument was advanced in favour of such an order, although I note that such an order was made by the Deputy President of the Tribunal in GCV. That case however involved offending extending over a period of years, and more serious acts in the course of it, and it was relatively recent at the time the order was made. By contrast the circumstances here are quite different, and in view of the good service of the respondent over many years while he was practicing as a nurse, I do not consider that such an order is necessary in this case.
- The applicant also sought an order that the respondent pay its costs of the proceeding. There is however no basis on which a finding is justified that the respondent acted unreasonably in relation to this proceeding. It is true that the respondent sought to argue that grounds two and three of the reference amounted to no more than unsatisfactory professional conduct, but, in circumstances where the respondent did not have the benefit of legal advice, I do not consider that he acted unreasonably in doing so. The question is whether there are grounds to depart from the prima facie position established by the Queensland Civil and Administrative Tribunal Act 2009 s 100. I do not consider that there are.
- The decision of the Tribunal will therefore be:
- The Tribunal decides that, in respect of Ground 1 of the referral, the respondent behaved in a way that constituted professional misconduct.
- The Tribunal decides that, in respect of Grounds 2 and 3 of the referral, the respondent behaved in a way that constituted unprofessional conduct.
- The Tribunal cancels the registration of the respondent.
- The respondent is disqualified from applying for registration as a registered health practitioner for a period of four years from the date of this order.
- The parties bear their own costs of the proceeding.
R v Ringelstein, District Court at Ipswich, 16.2.06, Rackemann DCJ.
 National Law s 138(2), s 139(2). There are corresponding provisions under the Health Ombudsman Act 2013, s 21, s 22
 See for example Nursing Act 1992 s104A(g). This was the provision relied on in FH (supra) at .
 Health Ombudsman v Armstrong  QCAT 382 at . That case involved a failure to disclose a charge and a conviction in an application to renew. This was found proved, but it is not clear that it was regarded as a significant factor in imposing a sanction.
 See for example Health Ombudsman v Rissanen  QCAT 96, where the respondent was no longer registered, and no period of disqualification was imposed, in view of several years of little or no practice. See also Psychology Board of Australia v GA  QCAT 409 at , Nursing and Midwifery Board of Australia v Tainton  QCAT 161 at .
 Submissions paragraph 77(e).
 Medical Board of Australia v Wong  QCA 42 at .
- Published Case Name:
Nursing and Midwifery Board of Australia v Grant Burrows
- Shortened Case Name:
Nursing and Midwifery Board of Australia v Grant Burrows
 QCAT 164
Judicial Member D J McGill, Ms L Dyer, Ms S Harrop, Mr J McNab
27 May 2020