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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Skobe  QCAT 196
Director of proceedings on behalf of the health ombudsman
Occupational regulation matters
5 May 2020 (Ex Tempore)
On the papers
Judicial Member John Robertson
Ms H. Barker
Dr K. Forrester
Mr M. Halliday
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was registered as an enrolled nurse – where the respondent was convicted of a one count of stealing which encompassed 29 separate occasions and was imprisoned – where the respondent dishonestly obtained money from vulnerable patients – where the respondent has provided no evidence of remorse for her offending – whether the respondent should be disqualified from registration as a health practitioner – whether the respondent should be prohibited from providing any health service
Health Ombudsman Act 2013 (Qld) s 107
Queensland Civil and Administrative Tribunal Act 2009 s 66
Medical Board of Australia v Jansz  VCAT 1026
Nursing and Midwifery Board v Roos  QCAT 231 Nursing and Midwifery Board of Australia v Morley  SAHPT 17
The Statement of Decision of the Health Care Complaints Commission (NSW) in respect of Ms Myrla Cruz delivered 18 August 2015
Director of Proceedings on behalf of the Health Ombudsman
This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- The applicant director referred these disciplinary proceedings to the Tribunal by application filed 26th of June 2019. The parties have filed joint submissions and agree on the orders to be made.
The respondent is a registered health practitioner, having first obtained general registration as an enrolled nurse on the 18th of September 2009. The respondent has not filed a response to the disciplinary referral but, as noted, has joined in the applicant’s submissions as to the appropriate orders and disciplinary response. She also signed an agreed statement of facts filed in the Tribunal’s registry on the 25th of June 2019. The disciplinary referral contains two allegations which are not disputed by the respondent.
Allegation 1 – Criminal Convictions and Particulars
- On 19 January 2018, the respondent was convicted on her own plea of guilty of one count of stealing, an offence contrary to s 398 of the Criminal Code, in the Hervey Bay Magistrates Court.
- On 3 August 2017, while on shift at a health facility, the respondent located a patient’s bankcard and PIN number, attended a shopping centre and completed a balance inquiry on the patient’s bank account.
- Later that day, the respondent attended at an ATM located in the shopping centre and used the patient’s card and PIN number to withdraw $1000 in cash.
- On 28 further occasions, the respondent withdrew cash on different dates with withdrawals ranging from $200 to $1000. The unlawful withdrawals occurred over an approximate two-month period from the 3rd of August 2017 until the 23rd of October 2017. The patient’s son noticed the unusual activity on his mother’s bankcard and took action to alert authorities.
- The total amount stolen from the patient was $23,700.
- On the 8th of November 2017, the respondent was arrested and charged with 29 counts of stealing pursuant to section 398 of the Criminal Code.
- On the 18th of January 2018, the prosecution amended charge 1 to cover the total period, being from the 2nd of August to the 24th of October 2017, and all stealing offences were included in the one stealing charge. The matter was then adjourned for sentence on the 19th of January 2018.
- On the 19th of January 2018, the respondent was convicted on her own plea of guilty of one count of stealing.
She was sentenced to two years imprisonment, to be released on parole on the 17th of April 2018. She was released on that date with conditions attaching to parole which were standard conditions imposed under the Corrective Services Act.
- Allegation 2 is directly related to allegation 1 and alleges that the respondent failed to provide written notice to the National Board when she was convicted of the offences as outlined in allegation 1 within seven days as required by s 130(1) of the National Law.
- The patient victim of the respondent’s persistent dishonest misuse of her bankcard from the 3rd of August 2017 to the 23rd of October 2017 was an 81-year-old female resident of an advanced care unit on the Fraser Coast where the respondent worked as an enrolled nurse. The patient’s son had noticed the frequent withdrawals and the respondent was identified by the facility manager as the person depicted on CCTV using the patient’s bankcard.
- After her conviction and then imprisonment on the 19th of January 2018, the respondent’s employment with the facility was terminated on the 23rd of January 2018. The Health Ombudsman imposed an immediate registration suspension on the 29th of January 2018; and an immediate prohibition order prohibiting her from providing any health service, paid or otherwise, in a clinical or non-clinical capacity. The orders and suspension remain in effect.
- Notwithstanding the parties are in agreement in relation to the facts and proposed findings and orders, the Tribunal is still required, pursuant to s 107 of the Health Ombudsman Act 2013 (Qld) (the Act), to decide whether the admitted conduct amounts to unsatisfactory professional performance, unprofessional conduct, or professional misconduct, and, if so, the appropriate orders to be made.
- The applicant carries the onus. The stand of proof is on the balance of probabilities governed by the principle in Briginshaw v Briginshaw. The Tribunal’s disciplinary jurisdiction is protective, not punitive, and the main principle for administering the Act is that the health and safety of the public are paramount.
- On the 18th of November 2019, the Tribunal made a non-publication order pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act, designed to protect the identity of the elderly victim and that order will remain in place.
- The joint submissions refer to a number of cases, both in Queensland and in other states. The conduct in allegation 1 amounts, in my opinion, to the more serious finding of professional misconduct, and the failure to notify the board of her conviction amounts to unprofessional conduct. The respondent’s conduct was persistent and involved a fundamental breach of trust in relation to a vulnerable, elderly patient in her care.
- At that stage, although the Health Ombudsman had been notified both by the facility manager and the police of the respondent’s conduct, and the Health Ombudsman had moved to suspend her registration and prohibit her from practising, she had not, as she now accepts in relation to allegation 2, notified the Nursing and Midwifery Board of Australia of the stealing charges, nor did she notify the board subsequently of her conviction, as required by section 130 of the National Law.
- The only reason advanced for her dishonesty in any of the material was in the Magistrates Court proceedings, and that was said to be financial need as a result, in part at least, arising out of a Family Court proceeding. She did plead guilty at an early stage and she has to some extent cooperated with the disciplinary proceedings, but she has never provided any further reasons or basis for her behaviour that may give the Tribunal comfort as to her future conduct if ever her registration was re-instated.
- Despite being invited to do so during the Health Ombudsman investigation, she has made no submissions on her behalf, nor did she give any explanation for her conduct to investigating police. In relation to the disciplinary response, it is relevant that she has effectively been prohibited from practising and/or had her registration suspended for a period now of approximately two and a-half years. There is no issue that in relation to allegation 2 and allegation 1 that cancellation of her registration is the appropriate response.
- As a general expression of principle – although referencing the conduct of a medical practitioner – in Medical Board of Australia v Jansz  VCAT 1026 (and equally applicable to the nursing profession), the Tribunal noted:
Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor’s further ability to practice once a period of suspension is served…
The determination of the Tribunal in this case must convey a strong message to other medical practitioners that the conduct in question involved a substantial and consistent failure to reach and maintain a reasonable standard of competence and diligence; and fell short of, to a substantial degree, the standard of the professional conduct observed by members of the medical profession of good repute or competency. In addition, it must convey to other patients that they will be protected from such conduct. These objectives are paramount, notwithstanding that the risk of repetition of the offending conduct may be minimal.
- The parties submit that cancellation is the appropriate sanction for the following reasons:
- (a)The seriousness of the conduct, with a significant departure from the professional standards, the breach of trust involving a vulnerable member of the community, is an aggravating feature such that it should be condemned by the Tribunal by way of significant sanction.
- (b)The conduct calls into question the respondent’s fitness to practice, as only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are entitled to be registered.
- (c)There is no adequate evidence before the Tribunal as to respondent’s true level of remorse and insight into the behaviour by way of mitigation, other than her plea of guilty and assisting in achieving an agreed position in these proceedings.
- (d)In the absence of such evidence, the Tribunal cannot be satisfied that after a defined period away from practice, she will be fit to return. If cancelled, and at a future time the respondent seeks to return to practice, she will at that time be required to demonstrate that she is a fit and proper person to achieve a registration.
- As to the appropriate time for her registration to be cancelled, the parties submit that the cases of Nursing and Midwifery Board v Roos  QCAT 231, Nursing and Midwifery Board of Australia v Morley  SAHPT 17, The Statement of Decision of the Health Care Complaints Commission (NSW) in respect of Ms Myrla Cruz delivered 18 August 2015 involved more serious conduct. In my opinion, that proposition is moot. It is always difficult to find exact comparable decisions, however, in my opinion the matters referred to in the paragraphs immediately above, and the persistence of the dishonesty with the particular vulnerability of the patient, along with the respondent’s limited insight into the nature of her professional obligations, calls for a significant period of cancellation.
- In those circumstances, the Tribunal makes the following orders:
- In respect of allegation 1, the respondent is found to have engaged in professional misconduct;
- In respect of allegation 2, the respondent is found to have engaged in unprofessional conduct;
- The respondent is reprimanded pursuant to s 107(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009;
- The respondent’s registration is cancelled pursuant to s 107(3)(e) of the Queensland Civil and Administrative Tribunal Act 2009;
- The respondent is disqualified from applying for registration as a registered health practitioner for a period of 18 months from today’s date pursuant to s 107(4)(a) of the Queensland Civil and Administrative Tribunal Act 2009;
- The order made by the Tribunal on the 18th of November 2019 pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 remains in place;
- An immediate registration action and interim prohibition order made by the Health Ombudsman effective 29 January 2018 be set aside pursuant to s 62(2)(a)(ii) and 73(2)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 respectively;
- The respondent is prohibited from providing any health service whether on a paid or voluntary basis, unless and until such time as she is re-registered as a nurse, pursuant to s 107(4)(b)(i) of the Queensland Civil and Administrative Tribunal Act 2009; and
- No order as to costs
- Published Case Name:
Health Ombudsman v Skobe
- Shortened Case Name:
Health Ombudsman v Skobe
 QCAT 196
Judicial Member John Robertson
05 May 2020