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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Bailey  QCAT 161
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
CAROL-ANN LOUISE BAILEY
Occupational regulation matters
22 May 2020
On the papers
Judicial Member D J McGill SC, assisted by Dr K Forrester, Ms C Elliot and Mr S Lewis
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  2 Qd R 9
Health Ombudsman v Hardy  QCAT 473
Health Ombudsman v Jamieson  QCAT 172
Health Ombudsman v Macdonald  QCAT 473
Health Ombudsman v Mullins  QCAT 339
Health Ombudsman v SNA  QCAT 328
Medical Board of Australia v Blomeley  QCAT 163
Medical Board of Australia v Martin  QCAT 376
Office of the Health Ombudsman
Hall Payne Lawyers.
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 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.
- The respondent was a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld), being a registered nurse. The applicant alleges that while the respondent was registered she engaged in professional misconduct, in that she took a small quantity of pain killing medication from her employer.
- 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, and the hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 s 32.
- The Tribunal accepts the facts set out in the agreed statement of facts. They, and some other information before the Tribunal, may be summarised as follows: The respondent was born in 1966 and is now 54. She was first registered as a Registered Nurse in 1987. At the relevant time she was employed as a Registered Nurse at a hospital, where she had worked since 2010. In 1991 she injured her back at work, and subsequently underwent surgery on it. In 2006 she injured her shoulder while swimming, and later had surgery to treat this injury. In 2016 the respondent, while riding her bicycle to work, was involved in a collision. She injured her thumb, and jarred her back and neck. She later had surgical procedures to treat her injuries, including a thumb joint replacement.
- During 2016 the respondent returned to work but on restricted duties because of her injuries and their aftereffects. She continued to suffer pain from her injuries, and on four occasions between October and December 2016 she entered the medication room at the hospital and removed one Indocid tablet for her own use, to ease her pain and to enable her to complete her shift. This was not authorized by or on behalf of her employer. She was seen on security cameras, and after she was questioned and admitted taking the tablets, her employment was terminated. The respondent has not worked as a nurse (or at all) since then. In November 2017 the Board imposed conditions on her registration, the respondent surrendered her registration, and was granted non-practicing registration by the Board, but did not renew her registration, which expired in May 2018.
- The parties have both submitted that the conduct in this case amounted to professional misconduct, although they differ as to the basis on which that arises. I am aware of the definition of professional misconduct in s 5 of the National Law, and agree with the submission on behalf of the respondent that the better analysis is that it amounts to professional misconduct on the basis that it was four instances of unprofessional conduct which, when considered together, amounts to a course of conduct that is substantially below the standard reasonably expected of a registered health practitioner. I doubt though if it matters whether it is viewed in that way, or as one course of conduct, within paragraph (a) of the definition. I agree that this conduct amounted to professional misconduct, because of the element of dishonesty involved. That is consistent with the approach adopted in earlier cases, involving a nurse (or other health professional) stealing from an employer.
- In Health Ombudsman v Macdonald  QCAT 473 the respondent was a registered nurse who stole 11 boxes of a Schedule 4 medication from her employer. This was found to be professional misconduct, and the respondent’s registration was suspended for 6 months. Such behaviour was said 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. 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 :
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.
- In Health Ombudsman v Jamieson  QCAT 172 the respondent nurse took three packets of antibiotics from her employer. They were for her son, who had an abscess in the ear. She also failed to disclose the charge, at the time or when renewing her registration. She had subsequently surrendered her registration. The Hon J B Thomas QC said at :
The stealing of medical supplies by a nurse from his or her place of employment is a serious act of misconduct. The present case, which involves the taking of some fairly familiar antibiotics, does not raise quite the same level of concern as the taking of illicit drugs, or patently dangerous, habit-forming drugs. The respondent’s motivation (a desire to assist her son) is less concerning than the common motivations of the taking of various forms of prohibited drugs. But it was still an act of plain theft, and there was an intent to allow some of them to be taken without qualified medical supervision. While this conduct lies at the lower end of examples of this type of misconduct, it strikes directly at the proper provision of medical services, and I have no hesitation in concluding that such a theft may be characterised as professional misconduct.
- He concluded at : “… the present case is considerably less serious that Antley, and Macdonald. The proposal of the parties that the order consist of a reprimand, and that there be no order as to costs, seems reasonable, and to lie within the range of response indicated in other comparable tribunal cases.”
- In Nursing and Midwifery Board of Australia v Michie a nurse took from her employer a total of 24 tablets of a prescription analgesic over five occasions, to treat a medical problem she had. The Tribunal reprimanded the practitioner, and imposed conditions on her registration.
- In Health Ombudsman v Hardy  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.
- In Health Ombudsman v Mullins  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.
- All of these cases involved more serious conduct than that of the respondent, because although there were four occasions, each time only one tablet was taken, and it was prompted by a medical need for pain relief for which that was suitable medication. Because of the significance of the principle of not stealing medication from an employer, and because this involved a course of conduct, it is appropriate to characterize the behaviour as professional misconduct, as the respondent concedes, although it must lie at the bottom of the range of conduct covered by that description.
- 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, 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, and are shown here by the respondent. It is also relevant that the respondent has not in fact practiced as a nurse since December 2016, so there has been a de facto suspension of her registration for about three and a half years. It is also clear that the respondent has had various health problems, for which she has seen various practitioners. The burden of chronic pain could easily have affected her judgment. The Tribunal is not in this proceeding concerned with any question of impairment of the respondent.
- The parties both seek the same 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  QCAT 376 at  –  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  HCA 46, in particular at , and Medical Board of Australia v de Silva  QCAT 63 at  – . I do not propose to depart from the outcome proposed by the parties.
- Accordingly the orders of the Tribunal are:
- The Tribunal decides that the respondent behaved in a way that constituted professional misconduct.
- The Tribunal reprimands the respondent.
- The parties bear their own costs of this proceeding.
 Health Ombudsman Act 2013 s 126; see s 127 for their function.
 The respondent has also filed an affidavit, signed on 31 January 2020.
 Health Ombudsman v Antley  QCAT 472.
 Western Australian State Administrative Tribunal, File VR 89 of 2018, unreported.
 The decision in Health Ombudsman v SNA  QCAT 328 was similar.
 See Attorney-General v Bax  2 Qd R 9 at 17, concerning analogous provisions involving a legal practitioner.
 Medical Board of Australia v Blomeley  QCAT 163 at .
 Psychology Board of Australia v GA  QCAT 409 at , Nursing and Midwifery Board of Australia v Tainton  QCAT 161 at .
- Published Case Name:
Director of Proceedings on Behalf of the Health Ombudsman v Carol-Ann Louise Bailey
- Shortened Case Name:
Director of Proceedings on Behalf of the Health Ombudsman v Carol-Ann Louise Bailey
 QCAT 161
Judicial Member D J McGill SC
22 May 2020