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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Joy  QCAT 202
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
KURTIS TRENT DANIEL JOY
Occupational regulation matters
22 June 2020
On the papers
Judicial Member D J McGill SC
Mr S Lewis,
Ms L Dyer and
Mrs F Petty.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – nurse stealing prescription forms from employer to obtain drugs and obtaining them by dishonest conduct – criminal conviction – professional misconduct –psychiatric conditions – respondent not practicing – sanction
Health Ombudsman Act 2013 s 103, s 104, s 107
Health Care Complaints Commission v Robertson  NSWNMT 5
Health Ombudsman v Antley  QCAT 472
Health Ombudsman v Hardy  QCAT 416
Health Ombudsman v HSK  QCAT 419
Health Ombudsman v Mullins  QCAT 339
Health Ombudsman v SNA  QCAT 328
Medical Board of Australia v Martin  QCAT 376
Nursing and Midwifery Board of Australia v Black  VCAT 1232
Office of the Health Ombudsman
Hall Payne Lawyers
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 the Act, I am sitting with assessors Mr S Lewis, Ms L Dyer and Mrs F Petty.
- 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, or in the alternative unprofessional conduct, in that, while registered, he was convicted of a number of offences arising from his having stolen prescription forms from his employer, and fabricating prescriptions which he used to obtain controlled drugs.
- The parties have provided the Tribunal with an agreed statement of facts, and an agreed bundle of documents. The respondent, who has been legally represented in this proceeding, provided a response to the referral, in which he admitted the allegations, and that the conduct amounted to professional misconduct, and made written submissions to the Tribunal supporting the relief sought by the applicant. The hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 s 32.
- The following facts are taken from the agreed statement of facts, or from documents in the agreed bundle. The respondent was born in 1990 and is now almost 30. He was first registered as a Registered Nurse in 2012. Between July 2016 and December 2017, he worked at a Brisbane hospital, although his employment was suspended in June 2017. On 4 August 2017 the respondent self-notified health issues to the applicant, which were referred to AHPRA. He advised that he had been suffering from depression for some times which had worsened, and he was currently an inpatient for treatment. On 2 November 2017 the respondent was charged with various offences relating to the use of fabricated prescriptions to obtain controlled drugs.
- On 9 November 2017 AHPRA was advised by his doctor that the respondent suffered from major depression, benzodiazepam dependence and some personality disorder traits. He was being medicated, and required further treatment. Since 28 December 2017 the respondent has held non-practicing registration. He does not currently work as a nurse.
- On 13 February 2018 the respondent pleaded guilty to thirteen charges, one count of stealing, one of abuse of office, one of fraud, one of attempted fraud, one of forging, one of uttering and seven charges of unlawful possession of controlled drugs. On 15 March 2018 AHPRA decided to take no action, on the basis that an assessment of his health would be made if the respondent applied for general registration.
- The applicant submitted that the conduct of the respondent amounted to professional misconduct. The definition of professional misconduct in the National Law s 5 includes
“(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.”
The definition of “unprofessional conduct includes being convicted of an offence under another Act “the nature of which may affect the practitioner’s suitability to continue to practice the profession.” The offences that the respondent was convicted of in this case satisfy that qualification. They involved a serious breach of trust by the respondent and misuse of his position as a nurse in order to obtain unlawful possession of addictive drugs. In my opinion, each offence was an instance of unprofessional conduct, and taken together, amounted to conduct substantially below the standard reasonably expected of a registered health practitioner of his level of training and experience. They therefore amounted to professional misconduct.
- That conclusion is not opposed by the respondent, and is consistent with a number of earlier decisions of this or another Tribunal: Health Ombudsman v Antley  QCAT 472; Nursing and Midwifery Board of Australia v Black  VCAT 1232; Health Care Complaints Commission v Robertson  NSWNMT 5; Health Ombudsman v Hardy  QCAT 416. As the applicant pointed out in submissions, it breached the Code of Conduct and Code of Ethics issued by the National Board.
- 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.
- In the present case, the respondent was suspended by his employer, and did not subsequently engage in clinical practice as a nurse. Later in 2017 he obtained non-practicing registration. For practical purposes, he has been away from nursing for almost three years. That is relevant in terms of any suspension of his registration. He has engaged with treatment to mitigate his mental health issues, and has cooperated with the police, the investigation and in this proceeding.
- It also appears that the relevant conduct is related to his mental health issues. This is significant, in two ways. First, it means that, in order to regain general registration, it will be necessary for the respondent to show that he has overcome or managed those problems so as to be fit to practice. Second, the involvement of mental health issues in the relevant conduct is relevant to the question of mitigation.
- In all the circumstances, the applicant seeks that the Tribunal reprimand the respondent, but does not seek any further sanction by way of suspension, or otherwise. That approach was supported in written submissions on behalf of the respondent, which also referred to the decisions of the Tribunal in Health Ombudsman v Mullins  QCAT 339 and Health Ombudsman v SNA  QCAT 328, as supporting the proposed outcome. The position is similar to one where the parties have made joint submissions. 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 -. Ultimately, it is a matter for the Tribunal to determine what sanction to impose.
- In view of the serious nature of the respondent’s conduct, a reprimand is appropriate, but in view of the matters discussed above, and noting that the respondent has no prior disciplinary history, I agree that no further sanction is appropriate.
- Accordingly the decision of the Tribunal is as follows:
- The Tribunal decides that the respondent behaved in a way which constituted professional misconduct.
- The respondent is reprimanded.
- The parties bear their own costs of this proceeding.
 Health Ombudsman Act 2013 s 126; see s 127 for their function.
 A later letter from his solicitor dated his admission to 24 July 2017. The letter also submitted that the respondent had not placed the public at risk, and forwarded references from a number of colleagues.
 Health Ombudsman v Antley  QCAT 472 at .
 Health Ombudsman v HSK  QCAT 419 at .
- Published Case Name:
Health Ombudsman v Joy
- Shortened Case Name:
Health Ombudsman v Joy
 QCAT 202
Judicial Member D J McGill SC
22 Jun 2020