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Queensland Judgments
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  • Unreported Judgment

Director of Proceedings on Behalf of the Health Ombudsman v Lesley Penders

 

[2020] QCAT 147

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Penders [2020] QCAT 147

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

 

v

 

LESLEY PENDERS

(respondent)

APPLICATION NO/S:

OCR170-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC, assisted by Dr K Forrester, Ms C Elliot and Mr S Lewis

ORDERS:

  1. The Tribunal decides that the respondent behaved in a way that constituted professional misconduct. 
  2. The Tribunal reprimands the respondent.
  3. The parties bear their own costs of this proceeding. 

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – Professional misconduct – stealing prescription medication from employer – improper use of personal information – practitioner lost employment and not worked for over two years – insight and remorse – relevant medical issues – respondent reprimanded.

Health Ombudsman Act 2013 s 103(1)(a), s 104

Attorney-General v Bax [1999] 2 Qd R 9

Health Ombudsman v DeCelis [2019] QCAT 140

Health Ombudsman v Hardy [2018] QCAT 473

Health Ombudsman v Macdonald [2016] QCAT 473

Health Ombudsman v Mullins [2019] QCAT 339

Health Ombudsman v SNA [2019] QCAT 328

Medical Board of Australia v Blomeley [2018] QCAT 163

Medical Board of Australia v Martin [2013] QCAT 376

Pharmacy Board of Australia v Christie [2016] QCAT 291

Pharmacy Board of Australia v Dougherty [2014] SAHPT 6

REPRESENTATION:

 

Applicant:

Office of the Health Ombudsman

Respondent:

Hall Payne Lawyers.

APPEARANCES:

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

  1. [1]
    This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104.  In accordance with that Act, I am sitting with assessors Dr Forrester, Ms Elliot and Mr Lewis.[1] 
  2. [2]
    The respondent is a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld), being a registered nurse. The applicant alleges that the respondent engaged in professional misconduct, in that she obtained dishonestly a quantity of Schedule 4 medication through the use of her position as a nurse. 
  3. [3]
    The parties have provided the Tribunal with an agreed statement of facts.  The respondent, who has been legally represented in these proceedings, admits the grounds alleged, and that the conduct in question amounts to professional misconduct.  The parties have provided written submissions to the Tribunal,[2] and the hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 s 32. 
  4. [4]
    The Tribunal accepts the facts set out in the agreed statement of facts.[3]  They, and some other information before the Tribunal, may be summarised as follows:  The respondent was born in 1968 and is now 51.  She was first registered as a Registered Nurse in 2007, having obtained a qualification in nursing overseas in 1990.  At the relevant time she was employed on a casual basis as a Registered Nurse at a hospital.  While in that employment, over about four months in 2017 she had obtained about 500 Thyroxine tablets, either from an automatic dispensing machine (a Pyxis machine) or by removing them from the medicine fridge on a ward.  In the former case, she had entered details of a patient in the machine, but had not provided the tablets to the patient, and kept them herself.  In the latter case, she had used a swipe card provided by her employer to access the medication room on the ward, and then removed the tablets from an unlocked fridge in the room.   She had consumed the tablets at home, but stopped taking them in late July 2017.[4] 
  5. [5]
    Following an examination of dispensing and discrepancy reports during the relevant period, in September 2017 the respondent was interviewed by her employer, and she admitted to having taken the tablets.  Thereafter the employer did not allocate any shifts to the respondent.  The employer reported the matter to the applicant in October 2017, and the applicant referred the matter to AHPRA in May 2018.  In May 2019 the National Board imposed various conditions on the registration of the respondent, including that she undertake treatment from a General Practitioner and from a Psychiatrist.  The respondent has complied with the conditions.  She is currently not working as a nurse, but as a carer for people with disabilities on the NDIS. 
  6. [6]
    The parties have both submitted that the conduct in this case amounted to professional misconduct.  I am aware of the definition of professional misconduct in s 5 of the National Law, and agree that in the circumstances this conduct amounted to professional misconduct, particularly because of the features of dishonesty involved.  The tablets had been stolen from her employer, and where the dispensing machine had been used, personal information of patients had been used fraudulently.  That was conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience.[5] 
  7. [7]
    I have been referred to, or am aware of, a number of decisions of this and another tribunal where such conduct has been characterised in that way.  In Pharmacy Board of Australia v Dougherty [2014] SAHPT 6 the respondent stole 84 tablets of dexamphetamine sulphate the property of his employer over a period of close to 2 years.  At the time he had a drug problem, which he had been feeding in part in this way.  At the time of the hearing he was undertaking drug rehabilitation.  He was reprimanded and disqualified from applying for registration for a (backdated) period of 2 years.
  8. [8]
    In Pharmacy Board of Australia v Christie [2016] QCAT 291 a finding of professional misconduct was made when a pharmacist had several times over a number of years obtained various controlled, restricted and addictive drugs, including from his employer, by dishonest means, such as creating fictitious transactions.  He had had a long-standing problem with the misuse of prescription and other drugs, and had allowed his registration to lapse.  That respondent had been dealt with in a criminal court, and had obtained employment in a different field.  He was reprimanded, disqualified from applying for registration for 3 years, and ordered to pay the costs of the Board, fixed at $12,000. 
  9. [9]
    In Health Ombudsman v Macdonald [2016] QCAT 473 the respondent was a registered nurse who stole 11 boxes of a Schedule 4 medication from her employer.  This behaviour was said by the Tribunal to represent a significant breach of trust and an abuse of position, which necessarily undermined the confidence that the public must retain in the profession.  A finding of professional misconduct was made, and the respondent’s registration was suspended for 6 months.  That was an isolated incident, and the medication was obtained for the use of a relative.  The Hon J B Thomas QC, who constituted the Tribunal, said at [27]: “The stealing of the prescription drugs from an employer by a nurse represents a significant breach of trust and abuse of position which is not tolerable within the profession. It is simply conduct that nurses must not engage in. Such conduct necessarily undermines the confidence that the public must retain in the profession.”
  10. [10]
    In Health Ombudsman v Hardy [2018] QCAT 473 a nurse stole a prescription pad and used it to fabricate prescriptions to obtain Schedule 4 drugs over almost 18 months.  At the time she had mental health issues, but after obtaining treatment she was fit to return to practice by the time of the proceeding.  Conditions on her registration had been removed by the Board.  She had also been dealt with in criminal proceedings, cooperated in the proceedings and demonstrated remorse and insight.  She had been out of clinical practice for almost four years.  This was found to be professional misconduct and the respondent was reprimanded, but no suspension was imposed.[6] 
  11. [11]
    In Health Ombudsman v DeCelis [2019] QCAT 140 the respondent, a pharmacist, obtained cocaine for his own use by ordering it for his employer’s pharmacy, without any legitimate justification, and altering records to cover his tracks.  This occurred on a number of occasions over 7 months, and stopped when the respondent disclosed his conduct, quit his job and sought treatment.  He did not disclose to the Board when he was charged with offences, but did not renew his registration as a pharmacist, so that he had not been registered for over three years, a factor the Tribunal considered important.  A finding of professional misconduct was made, and the respondent was reprimanded.   
  12. [12]
    In Health Ombudsman v Mullins [2019] QCAT 339 the respondent nurse, who had various health problems, stole some prescription forms and used them to obtain opiates.  When this came to light she was dealt with in criminal proceedings, and lost her employment.  Her registration was subject to various conditions, being managed by AHPRA, and she had not practiced as a nurse for almost three years.  She had demonstrated remorse and insight.  This was found to be professional misconduct, and the respondent was reprimanded.   
  13. [13]
    In imposing a sanction, the health and safety of the public are paramount.  Disciplinary proceedings are protective, not punitive in nature.  Relevant considerations include both personal and general deterrence,[7] the maintenance of professional standards and the maintenance of public confidence.  Insight and remorse on the part of the respondent are also relevant to the assessment of the risk to the public,[8] and are shown here by the respondent.  It is also relevant that the respondent has not in fact practiced as a nurse since September 2017, so there has been a de facto suspension of her registration for two years eight months.[9]  It is also clear that the respondent has had various health problems, which are being managed now by her practitioners, and her fitness to practice is being supervised by AHPRA.  In all the circumstances, I do not consider that the proper protection of the public requires some period of suspension of her registration. 
  14. [14]
    The applicant has sought that the respondent be reprimanded, but that no other sanction be imposed.  The respondent agrees with that outcome.  This is a similar situation to a joint submission as to sanction.  The effect of a joint submission as to sanction was discussed by Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93] by reference to authorities, in terms with which I respectfully agree.  I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29] – [31].  I do not propose to depart from the outcome proposed by the parties.
  15. [15]
    Accordingly the orders of the Tribunal are:
  1. The Tribunal decides that the respondent behaved in a way that constituted professional misconduct. 
  2. The Tribunal reprimands the respondent.
  3. The parties bear their own costs of this proceeding. 

Footnotes

[1] Health Ombudsman Act 2013 s 126; see s 127 for their function. 

[2] The respondent has also filed an affidavit, signed on 10 December 2019.

[3] Except for one trivial point: Paragraph 6 refers to the respondent’s working as a carer for people with learning disabilities but the information in the affidavit is more plausible. 

[4] The medication was in fact inappropriate and harmful to her medical condition. 

[5] I was also referred to provisions of the Code of Professional Conduct for Nurses in Australia which were breached, but need not set these out in detail. 

[6] The decision in Health Ombudsman v SNA [2019] QCAT 328 is similar. 

[7] See Attorney-General v Bax [1999] 2 Qd R 9 at 17, concerning analogous provisions involving a legal practitioner. 

[8] Medical Board of Australia v Blomeley [2018] QCAT 163 at [142]. 

[9] Psychology Board of Australia v GA [2014] QCAT 409 at [39], Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 at [21]. 

Close

Editorial Notes

  • Published Case Name:

    Director of Proceedings on Behalf of the Health Ombudsman v Lesley Penders

  • Shortened Case Name:

    Director of Proceedings on Behalf of the Health Ombudsman v Lesley Penders

  • MNC:

    [2020] QCAT 147

  • Court:

    QCAT

  • Judge(s):

    Judicial Member D J McGill SC

  • Date:

    22 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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