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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Drinkwater  QCAT 203
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
Occupational regulation matters
26 June 2020
On the papers
Judicial Member D J McGill SC, assisted by Ms H Barker, Dr K Forrester and Mr K Murphy.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – nurse expressing desire to kill supervisor – nurse admitting to having planned to kill supervisor – conviction of serious weapons offences – failure to notify AHPRA of conviction – whether professional misconduct – nurse no longer registered – sanction – scope of prohibition order
Health Ombudsman Act 2013 s 103(1)(a), s 104, s 107
Briginshaw v Briginshaw (1938) 60 CLR 336
Health Ombudsman v Field  QCAT 243
Office of the Health Ombudsman
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 Ms H Barker, Dr K Forrester and Mr K Murphy. 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 the respondent engaged in professional misconduct, in that he had been convicted of firearms offences, and had made threats to cause harm to the Director of Nursing at the hospital at which he worked.
- The applicant has provided the Tribunal with a statement of alleged facts, two witness statements, an affidavit and other evidentiary documents. The respondent has not engaged with or taken part in these proceedings; he claims to be out of the country, and to have no interest in working in the future. The applicant has 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 applicant’s case is based on the following facts. The respondent was born in 1961, and is currently 58 years old. The respondent began to work as an enrolled nurse in 1992, and was first registered as a registered nurse in 1993. He was registered as a nurse during the period 1 July 2010 to 30 June 2019, but then did not renew his registration and is currently unregistered. It is still open for the Tribunal to deal with this referral. He was at the relevant time employed as a nurse at a hospital in a rural area, although he had been absent from work because of illness since 12 September 2013.
- On 2 February 2014 the respondent completed a form, which he sent to QSuper, on which he had written that the Director of Nursing (presumably at the hospital at which he had worked) was a bully and a control freak, and expressed a desire to strangle her. A copy of the form, apparently signed by the respondent and bearing that date, provided by QSuper to the applicant, was exhibited to the statement of its investigator.
- On 9 November 2014 the respondent sent an email to the Conduct Advisory Services within the Department of Health complaining about the Director of Nursing, alleging that she had divulged confidential information about a patient, had verbally attacked and abused the teenage children of staff members, and had taken home a Rural Retrieval Pack belonging to the hospital, which was valuable and contained drugs. A copy of the email, obtained from the hospital, is included in the material exhibited to the statement of the applicant’s investigator.
- In January 2015 the respondent’s employer retired him from his employment on medical grounds, having received a report from a psychiatrist that the respondent was suffering from psychiatric conditions, which were untreated because the respondent was unwilling to be medicated, and that as he was, he was unable to perform any of his duties. His condition was however treatable with medication, so his incapacity was not permanent, although it would remain so long as the respondent refused medication. A copy of the report provided by the psychiatrist was obtained from him by the applicant, and was exhibited to the statement of the investigator.
- On 23 February 2015 the respondent, during a telephone call to an employee of WorkCover Queensland, said that he had obtained snake venom and other items in order to kill the director of nursing, and had a plan to do so, but decided not to carry out the plan because he would have been jailed. This is the version given by that employee in an email to police sent four days later, a copy of which is among documents obtained by the applicant from WorkCover Queensland and exhibited to the statement of the applicant’s investigator. Also in the material was a statement from the employee concerned, confirming that she wrote the note and email, and giving her recollection of the conversation, which included the part set out in the email to the police.
- On 15 April 2015 the applicant suspended the registration of the respondent, and issued an interim prohibition order against him. The suspension was removed on 30 August 2018, but the same day the Nursing and Midwifery Board imposed conditions on the respondent’s registration, including that he not practice as a nurse. That condition remained in place until he failed to renew his registration.
- On 20 June 2016 the respondent was convicted in a Magistrates Court, on his plea of guilty, of two offences under the Weapons Act 1990. The first was that he had had unlawful possession of category R weapons, being two guns and seven silencers, and the second was that he had unlawful possession of category C weapons, being two rifles and one shotgun. Convictions were recorded, he was fined $5,000 and $2,000 respectively, and the weapons were forfeited. The respondent held licences under the Act, but they did not cover possession of weapons in these categories. A letter from the notifications manager for Queensland of AHPRA stated that a search of their databases showed no evidence that the respondent advised AHPRA of his conviction of these offences, as required by the National Law s 130. The inference I draw is that he did not advise AHPRA.
- In the course of the applicant’s investigations, the investigator sent an email to the respondent on 19 May 2017. On 22 May 2017 the respondent replied stating that he had been living in the Philippines for the last eighteen months, that he was retired for good, and that he had no desire to work in Australia ever again. The Australian Border Force advised on 6 June 2017 that as of 2 April 2009 a person with the name and date of birth of the respondent was listed as being Onshore, although they subsequently pointed out that he may have left Australia using an alias of which they were unaware. On 8 August 2019 the Deputy President made a direction for substituted service of the referral and certain other material on the respondent. The applicant has filed an affidavit deposing to having complied with that direction.
- The applicant framed its case on the basis of four allegations, as follows:
Allegation 1: The matters in allegations 2, 3 and 4 together amounted to professional misconduct within paragraph (b) of the definition in the National Law s 5.
Allegation 2: The convictions of the offences under the Weapons Act 1990 were unprofessional conduct in accordance with the definition is the National Law s 5, being “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.”
Allegation 3: The respondent had made three threats and a false complaint against the Director of Nursing at the hospital at which he had worked, which amounted to unprofessional conduct.
Allegation 4: The respondent had failed to notify AHPRA of his conviction, as required by the National Law s 130. This is unprofessional conduct by definition.
- The respondent was convicted of the offences under the other Act. The next question is whether the offence is of the required nature to satisfy the definition. Category R weapons includes machine guns and sub-machine guns or a gun capable of firing 50 calibre BMG cartridge ammunition, as well as military type weapons such as hand grenades, antitank rifles, mortars, artillery and flame-throwers, as well as silencers. Category C weapons are semiautomatic rifles or shotguns, or pump action shotguns, with limited magazines.
- Unlawful possession of category R weapons is among the most serious unlawful possession charges, carrying the highest maximum penalty of thirteen years imprisonment if ten or more weapons, at least five of which are category R weapons, are possessed, or seven years imprisonment otherwise. Possession of any category C weapon carries a maximum penalty of four years imprisonment. Clearly these are serious offences, and reflect badly on the character of any person committing them. It appeared from the record of the criminal proceeding that the respondent held a licence for other, less dangerous firearms, and as an armourer, so he ought to have been well aware of the licencing restrictions applicable, and the categorisation of weapons under the Regulation.
- There are other matters referred to in the applicant’s material which need to be treated more cautiously. Prior to the email of 9 November 2014, another employee at the hospital advised the Director of Nursing that the respondent and another person were planning to take the drugs from the Rural Retrieval Pack, and plant them at the Director’s residence, so as to get her into trouble. This was documented by the Director, who then looked for and could not locate the Rural Retrieval Pack. The other person identified by the informant was also referred to in the email from the respondent as a person who had witnessed the Director’s taking the Pack. This material is relied on to show that the respondent’s complaint was false, and that the respondent had sought in this way to harm the Director of Nursing.
- The statement of the Director as to what she was told is hearsay, and the information of the informant is hearsay on hearsay. It suffers from the further difficulty that it does not purport to recount just what was said by the respondent, and reads more like a conclusion drawn by the informant from something overheard by him. Although the Tribunal is not bound by the rules of evidence, these are serious matters, and should not depend on inexact proofs, indefinite testimony or indirect inferences. There is nothing in the material to show that there were any investigations of the respondent’s complaint, and if so, what was found. The respondent’s email was sent about three months later, and his intention could easily have changed in that time. Even the fact that the Director had not taken the Rural Retrieval Pack is dependent on inference. The applicant’s proposition that this was a false complaint by the respondent in order to harm the Director of Nursing does not have sufficient evidentiary support to justify drawing such an inference.
- The applicant referred to the statement by the respondent’s counsel during the sentencing hearing, that at work there was a culture of bullying by the Director of Nursing”, and the statement in the psychiatrist’s report that the respondent believed he had been picked on by the Director of Nursing, to support the inference that he had a grievance against her. The mere fact that he was unhappy with the treatment he had received, or believed he had received, from her does not support an inference of any specific wrongdoing by him directed against her. In any case, hostility towards the Director of Nursing is shown by his having expressed a desire to kill her, and by his having admitted to planning to kill her. This adds some context to the significance of his unlawful possession of dangerous weapons.
- Given the serious nature of the weapons offences, and with that context, I find that the offences were of such a nature that they may affect the suitability of the respondent to practice the profession. They therefore meet the definition of unprofessional conduct. I also consider that the statement about wishing to strangle the Director of Nursing, and the admission of having planned to kill her, were also unprofessional conduct, being conduct of a lesser standard than that which might reasonably be expected of the respondent by his professional peers. This was quite an inappropriate response, even if he had been bullied by her.
- Overall therefore the applicant has demonstrated five instances of unprofessional conduct. This, taken together, amounts to professional misconduct within paragraph (b) of the definition in the National Law s 5. In view of this finding, it is unnecessary to consider the alternative argument of the applicant, that the conviction of the weapons offences is itself conduct inconsistent with the respondent’s being a fit and proper person to hold registration in the profession.
- In relation to sanction, the applicant referred to the decision in Health Ombudsman v Field  QCAT 243, where the practitioner, a nurse, had been convicted of offences under the Weapons Act, and related offences under the Criminal Code, and the Explosives Act, and had failed to disclose this to the Board. As in this case, the practitioner refused to participate in the proceeding before the Tribunal. The conduct in that case was characterised as professional misconduct, the practitioner’s registration was cancelled, and a preclusion period of one year was ordered, on top of the three years suspension which had already occurred. In that case the offending conduct extended to domestic violence with a firearm, and the practitioner had admitted to a drinking problem, so that it was arguably a worse case. Nevertheless, it provides some guidance. It also shows that the period when the registration was suspended, and by analogy any time that the practitioner has not worked in his profession, is relevant in determining the length of any preclusion period.
- The respondent is no longer registered. In order to obtain registration again, it would be necessary for him to show, among other things, that he was a fit and proper person to obtain registration. It would also be necessary to show that any mental health problems were managed, so that they did not interfere with his ability properly to function as a nurse. It would be a matter for him to take the initiative on those matters, and it is impossible to forecast now, particularly without any assistance from him, when he might be able to do so. At the moment, such a thing does not look imminent. In those circumstances, the length of any preclusion period may be academic. As things stand, there is no evidence that the respondent would be fit to be registered now, and, unless there has been a significant change of which the Tribunal is unaware, it is reasonable to expect that it would take time for that to change. Viewed in that way, a preclusion period of two years appears reasonable.
- The applicant also seeks an order that he be prohibited from providing any health service until such time as he regains registration as a registered nurse. This is based on the proposition that, because of his conduct discussed above, he would be a risk to the public if providing any health service. Under the Health Ombudsman Act s 107(4)(b), because the respondent is not registered, it is open to the Tribunal to prohibited him, either permanently or for a stated period, from providing a specified health service, or any health service. The power to make a prohibition order under the former s 113 has been considered by the Tribunal in a number of cases, but the present power is not subject to the same limitations. Nevertheless, the cases suggest that there must be good reason for making such an order, and it remains subject to the overriding requirement that the Act be implemented in a way that best supports the health and safety of the public.
- The present case does not involve any action of the respondent which directly impacted on the health and safely of the public. Even the risk of misuse of the unlawfully possessed firearms did not affect the public as consumers of health services. There is however the concern expressed about the mental health of the respondent, and the evidence that he appeared to react badly to the behaviour of his supervisor. The fact that, for whatever reason, he reacted inappropriately in his former position gives rise to the risk that something like that could happen again in the future, and that as a result he could fail to follow instructions or guidance from a superior, in circumstances where this would lead to adverse consequences for the health service consumer. This is a risk the Tribunal should be concerned to avoid.
- It is necessary to bear in mind that there are some health services, as defined by the Health Ombudsman Act 2013, that do not require registration under the National Law. As well, given the absence of recent practice as a registered nurse, it would be difficult for the respondent to regain such registration, even if he were able to show that he was fit and proper to be registered. But there are alternatives, such as obtaining registration as an enrolled nurse, which would present fewer obstacles. The real issue, as to the risk to the health and safety of the public, would depend on whether he could show that he was a fit and proper person to be registered. In principle, if he can show that, he should not be prohibited from providing a health service as a registered health practitioner with other registration. On the other hand, there might be some risk to the public for him to provide a health service which did not require such registration.
- I propose to prohibit him from providing any health service until such time as he obtains registration as a registered health practitioner. This would not exclude him from providing a health service if he secured registration of some other kind.
- 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 respondent is disqualified from applying for registration as a registered health practitioner for a period of two years from the date of this decision.
- The respondent is prohibited from providing any health service until such time as he obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Qld) or a corresponding law of another state or territory of Australia.
- The parties bear their own costs of this proceeding.
 Health Ombudsman Act 2013 s 126; see s 127 for their function.
 His registration history is proved by a certificate of the Chief Executive Officer of AHPRA, under the National Law s 244.
 Health Ombudsman Act 2013 s 21.
 This was a fuller version than a note made on the day of the phone call, also in that bundle of documents, which recorded just “Worker states he collected certain items to kill employer. Worker decided not to because he would go to jail so went to GP.”
 Copies of the notices issued by the applicant are exhibited to the statement by the applicant’s investigator.
 The fact of the conviction, the plea and the sentence are proved by a Verdict and Judgment Record from the Magistrates Court. The details of the offending is proved by transcripts of the sentencing hearing and sentencing remarks.
 Weapons Categories Regulation 1997 s 4, s 8.
 A copy of the documentation is in the material exhibited to the statement of the investigator.
 The use of such a pack had been discontinued some time ago, and it ought to have been removed.
 Queensland Civil and Administrative Tribunal Act 2009 s 28(3).
 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
 The applicant relied on the absence of evidence that she did take it: submissions paragraph 50. But that is not evidence that she did not take it.
 Transcript of sentencing hearing p 11 line 20.
 Report of psychiatrist 19 November 2014 p 3.
- Published Case Name:
Health Ombudsman v Drinkwater
- Shortened Case Name:
Health Ombudsman v Drinkwater
 QCAT 203
Judicial Member D J McGill SC
26 Jun 2020