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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v RET  QCAT 204
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
Occupational regulation matters
22 June 2020
18 June 2020
Judicial Member D J McGill SC
Ms H Barker,
Dr K Forrester and,
Mr K Murphy.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – nurse stealing drugs from employer or obtaining them by dishonest conduct – criminal conviction – professional misconduct – medical and psychiatric conditions – self-medication – treatment obtained and conditions improved – working within conditions – whether suspension appropriate – whether additional conditions appropriate – whether non-publication order appropriate
Health Ombudsman Act 2013 s 103(1)(a), s 104
Queensland Civil and Administrative Tribunal Act 2009 s 66
Health Ombudsman v Antley  QCAT 472
Health Ombudsman v HSK  QCAT 419
Health Ombudsman v Macdonald  QCAT 473
Health Ombudsman v Mullins  QCAT 339
Health Ombudsman v NLM  QCAT 366
Nursing and Midwifery Board of Australia v Roe  WASAT 92
Legal Services Commissioner v Yarwood  QCAT 208
Legal Services Commission v XBV  QCAT 332
Medical Board of Australia v Martin  QCAT 376
Nursing and Midwifery Board of Australia v Mahon  VCAT 403
Nursing and Midwifery Board of Australia v Morey  QCAT 249
Nursing and Midwifery Board of Australia v Tan  SAHPT 1
R v Yarwood  QCA 367
N Townsend of the Office of the Health Ombudsman
J Sibley of Sibley 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 that Act, I am sitting with assessors Ms H Barker, Dr K Forrester and Mr K Murphy. 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 stole from her employer, or otherwise obtained dishonestly, a quantity of Schedule 8 medication through the use of her position as a nurse.
- 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 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, except that the Tribunal also received further oral submissions, by telephone, from the parties in relation to proposed conditions.
- The Tribunal accepts the facts set out in the agreed statement of facts, subject to one exception noted below. They, and some other information before the Tribunal, may be summarised as follows: The respondent was born in 1985 in Indonesia and came to Australia as a baby with her parents; she is now 35. She was first registered as a Registered Nurse in 2013, having obtained her qualification in nursing in that year. In December 2013 she was convicted on her plea of guilty of one count of dishonestly obtaining a financial advantage from her health insurer, and was released on a bond. In 2014 she attended a psychiatrist who provided a report to AHPRA. No conditions were placed on her registration. She saw a different psychiatrist in May 2014, who provided a report which is exhibited to her affidavit. It described her presentation as consistent with Post Traumatic Stress Disorder, which she attributed to abuse by her parents, and Major Depression, and said she was responding well to treatment, and that she was fit to practice as a registered nurse with no restrictions. She was to continue to see the psychiatrist over the next twelve months, and he expected a full recovery. The report made no mention of pain problems.
- In November 2017 the respondent was diagnosed with endometriosis. She said that at the time she was overwhelmed with pain, and began to self-medicate with morphine. At the time she was employed as a Registered Nurse at a suburban GP practice. Over various days between 1 December 2017 and 23 May 2018 she took a total of about 20 ampoules of morphine belonging to her employer from the lockable drug cupboard, and self-administered it at home. As well, on 10 May 2018 she fabricated a prescription in the name of a patient and signed it with the name of a doctor, and used it four days later to obtain five ampoules of morphine.
- On 17 May 2018, when a doctor had left a prescription for Norpsan patches, a pain relief medication, at the counter for a patient to collect, she took the prescription and had it dispensed. A few days later, however, when the matter was being investigated, she returned the patches to the surgery, and later admitted to the doctor that she had taken the prescription. She had also prepared, without authority, a Prescriber Bag Supplies Order Form on 21 May 2018, signed it in the name of one of the doctors, and submitted it to a pharmacy.
- Some of the conduct was notified promptly to the applicant by the employer. As well, the matter was reported to the police. On 5 July 2018 the Nursing and Midwifery Board of Australia suspended the respondent from practice as a nurse. On 6 September 2018, the respondent participated in a police interview during which she admitted all of the above conduct. She was subsequently charged with a number of offences, and she lost her employment. On 14 September 2018 a psychiatrist provided a report on the respondent to AHPRA, in which the respondent was diagnosed as suffering from Opiate Dependence and Benzodiazepine Dependence, and was regarded as fit to work subject to appropriate conditions. On 20 December 2018 the suspension from practice of the respondent was lifted, but the Board found that she had a health impairment, and as a result conditions were imposed on her registration which required her to practice under supervision, prevented involvement with certain drugs, required medical and psychological treatment, and drug testing. She has generally complied with those conditions.
- In January 2019 she was diagnosed with fibromyalgia. On 20 February 2019 she pleaded guilty in the Magistrates Court to four offences, one count of stealing, two of fraud, and one summary offence of imposition, and she was placed on a recognisance. In June 2019 she obtained her employment again as a nurse, at a different GP practice. On 13 February 2020 AHPRA reviewed her conditions, and removed a number of them. After this she changed employment, and remains employed as a nurse.
- The respondent suffers from a number of medical and psychological conditions. She has been diagnosed with back pain, endometriosis and fibromyalgia, and also suffers from anxiety, depression and post traumatic stress disorder. She had been taking the morphine to self-medicate. Since her conduct emerged, she has received intensive psychological and pain management therapy, and has been weaned off opiates. She has been assessed as medication compliant by her General Practitioner.
- Her treating psychologist provided a report dated 11 October 2018 to solicitors, presumably for use in the criminal proceedings. It recorded a diagnosis of Post Traumatic Stress Disorder, Major Depression and Generalized Anxiety Disorder, all caused by her traumatic childhood, with the depression exacerbated by chronic pain which had become worse since 2011, particularly from the endometriosis. This inhibited her judgment at the time of the offending. She had been treating the respondent since 29 May 2018, just after the relevant conduct, and spoke of the respondent also having seen a gynaecologist and Pain Management Clinic. The report records the opinion that the respondent was remorseful, and that the risk of reoffending was extremely low.
Position of parties
- In this proceeding, the applicant seeks a finding that the conduct of the respondent constituted professional misconduct, under either paragraph (a) or paragraph (c) of the definition in the National Law s 5. By way of sanction, the applicant seeks that the respondent be reprimanded, that her registration be suspended for six months and that conditions be placed on her registration, including a requirement that she undertake a course on ethics. The respondent accepted that the conduct occurred, that her conduct was professional misconduct under paragraph (a), and that she be reprimanded, and did not oppose the placing of conditions on her registration, but opposed the suspension. She sought as well that a non-publication order be made; such an order was opposed by the applicant.
- There have been a number of earlier decisions of the Tribunal in which, for a nurse (or other practitioner) to steal addictive drugs from an employer for the purpose of self-medication, or otherwise dishonestly obtain them through the use of a professional position, has been characterised as professional misconduct. Examples relied on by the applicant are Health Ombudsman v Macdonald  QCAT 473, Health Ombudsman v Jamieson  QCAT 172; Nursing and Midwifery Board of Australia v Morley  QCAT 249 and Health Ombudsman v Mullins  QCAT 339. As pointed out in the applicant’s submissions, this conduct breached provisions of the Code of Conduct issued by the Nursing and Midwifery Board of Australia. In the circumstances, I find that the conduct amounted to professional misconduct within paragraph (a) of the definition in s.5. In the circumstances, it is unnecessary to decide whether it also satisfied paragraphs (b) or paragraph (c) of the definition.
- 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. A list of factors which may, in a particular case, be relevant to this issue was given by the State Administrative Tribunal of Western Australia in Nursing and Midwifery Board of Australia v Roe  WASAT 92 at .
- In this case the conduct was serious and dishonest. It involved a number of actions over a period of about six months. When the missing patches came to the employer’s attention, the respondent initially denied involvement, but three days later admitted this conduct to her employer and returned the medication. When interviewed by police, she made full admissions to all of the conduct relied on, and she pleaded guilty to four criminal charges. She has cooperated in this proceeding, and generally complied with the conditions placed on her registration by the Board. The Board is in a position to assess whether and when the remaining conditions should be removed. In this way, any further risk posed by the respondent’s health is already being managed.
- For the respondent it was submitted that the entire process had given the respondent insight into her behaviour, and had been humbling and shameful. As well, having to practice under strict supervision, and with reporting requirements, had served as a constant reminder of the ethical standards required of a practitioner. The submissions included that the offending conduct was closely related to the respondent’s physical and mental health at the time, and that these were much better managed now, with no relapsing into offending behaviour. It was noted that the respondent had suffered a suspension in her registration already, of almost six months, and that she had been away from nursing after losing her employment for almost twelve months. She had since successfully reintegrated into the profession, so that any further suspension now would be unduly punitive, and unnecessary for the protection of the community.
Effect of mental health
- It was also submitted for the respondent that general deterrence was of less significance because of the respondent’s psychiatric problems at the time. Reference was made to R v Yarwood  QCA 367 at , . That decision involved the sentencing of a solicitor who had committed a large number of individual frauds on the Office of State Revenue over three years, in circumstances where there was evidence before the sentencing judge that he was at the time suffering from a major depressive disorder. The Court held that such psychiatric problems had the effect of reducing the moral culpability of the offending, and diminished the significance of general deterrence as a sentencing factor.
- In due course, Mr Yarwood came to be dealt with by the Tribunal: Legal Services Commissioner v Yarwood  QCAT 208. Although not appearing at the hearing, he made written submissions that the appropriate sanction should be a period of suspension until his suspended sentence of imprisonment had expired. He relied in his submissions to the Tribunal on extracts from the medical reports used when he was sentenced, and referred to the decision of the Court of Appeal. The Hon J B Thomas QC, who constituted the Tribunal, held that he was guilty of professional misconduct within a definition in the Legal Profession Act 2007 similar to the one in s 5 of the National Law. He said at  – :
The conduct in this case involved dishonest and fraudulent conduct over a prolonged period of time, squarely in the context of the legal practice in which Mr Yarwood was involved. Because of his knowledge as a legal practitioner, Mr Yarwood exploited weaknesses in the system and did so in circumstances where the opportunity arose because he was entrusted by the OSR as a self-assessor.
The nature of the offence was a very serious one, in the context of legal practice, and in circumstances involving exploitation of the system and a breach of the duties entrusted on a legal practitioner, both by clients and also the relevant government authority.
I find that the conduct of Mr Yarwood was such that he was not a fit and proper person to engage in legal practice. The conduct clearly falls within s 419 of the Act as being professional misconduct.
- The significance of the respondent’s psychiatric disorder was considered in the context of sanction. In relation to this, he said at :
The existence of a psychiatric disorder which causes the conduct may be relevant if:
- The conduct would not have occurred had it not been for the cause.
- The conduct was an aberration, uncharacteristic of the way in which the legal practitioner would otherwise have acted.
- The cause has subsequently been removed.
- In this context, he found that the relevant conduct was not caused by the psychiatric illness, and that on the evidence the respondent had not completely recovered from that illness. Accordingly he found that the respondent was not a fit and proper person to engage in legal practice, and his name was removed from the roll of practitioners: .
- It appears to me that the approach of the Tribunal in the occupational regulation proceeding to the existence of the psychiatric condition was different from the approach of the Court of Appeal in the application of criminal sentencing principles. The former approach was followed by the Tribunal in Nursing and Midwifery Board of Australia v Evans  QCAT 77 at , and in Health Ombudsman v HSK  QCAT 419 at , on the basis that a psychiatric disorder may provide an explanation for the relevant conduct but it is not an excuse, although it may be taken into account in mitigation. It is not submitted in this matter that the respondent has now overcome completely the difficulties she has faced, but it appears to be accepted that their future management can be left in the hands of AHPRA and the Board.
- In her affidavit the respondent spoke of the remorse and shame she had felt as a result of her actions, and of the treatment she has undertaken to wean off opiates and to manage her pain better, and to improve her mental health. She exhibited the report from a psychiatrist dated 15 May 2014 referred to earlier, but no other reports concerning her mental health, or pain management, although there are reports from a GP and from her psychologist in the bundle of agreed documents.
- The more recent report of the treating psychologist, dated 12 September 2019, spoke of the respondent’s commitment to her therapy, insight, remorse and regret. Her mood has improved significantly, and there is no addiction to pain medication. She is coping with her pain better, and has a number of coping skills and a more positive outlook on life.
- The applicant referred to a number of earlier decisions of this or another Tribunal. In Nursing and Midwifery Board of Australia v Mahon  VCAT 403 the practitioner had stolen one dose of morphine from her employer, and taken a number of oxycontin tablets meant for a patient, substituting other tablets. This was an aggravating feature not present here, where medication for a patient was not intercepted. She had not worked as a nurse for over two years and said she did not intent to return, and was reprimanded and disqualified from applying for registration for six months.
- In Health Ombudsman v Antley  QCAT 472 the practitioner had stolen blank prescription forms, forged prescriptions for Endone, and presented them for dispensing at pharmacies. She was dealt with for offences, lost her employment, was for a time subject to conditions which limited her employability and had ultimately resigned her registration, and did not participate in the hearing. Her mental health was said to be deteriorating, and she was found to lack insight. She had initially been evasive with investigators, and the Tribunal was unsatisfied about remorse. The Hon J B Thomas QC, who constituted the Tribunal, said at  that general and personal deterrence were highly relevant in such cases, and noted that the earlier decisions “show a fairly wide range of periods which might be regarded as appropriate for cancellation, suspension or postponement as a result of the offending conduct”, usually ranging from six months to three years: . At  he said: “General deterrence of such conduct is unlikely to occur unless loss of registration for at least twelve to eighteen months is known to be a probable consequence of such activity.” This was relied on by the applicant, although on the evidence the behaviour of the present respondent after the offending was very different in this case.
- In Health Ombudsman v Macdonald  QCAT 473 the practitioner stole eleven boxes of Seroquel from her employer, on one occasion, to provide to her niece. She had been dealt with criminally, and had conditions placed on her registration by AHPRA for two years which she had complied with, and engaged in various professional development. This was characterised as professional misconduct and her registration was suspended for six months, in accordance with a joint submission of the parties.
- In Nursing and Midwifery Board of Australia v Morey  QCAT 249 the practitioner stole fifteen ampules of Propofol and some equipment for administering it, two prescriptions for Oxazepam which she had dispensed, took a tablet intended for a patient and stole other medication. Using some of this medication, she attempted suicide. When investigated she was dishonest and misleading with her employer and AHPRA. She was dealt with criminally and pleaded guilty. When the Board took immediate action, she did not return to practice and did not renew her registration. She had also suffered from mental illness, and had undertaken treatment since the relevant conduct. She had cooperated in the proceeding, and there was a joint submission proposing a preclusion period of six months, which was adopted by the Tribunal.
- In Nursing and Midwifery Board of Australia v Tan  SAHPT 1 the practitioner on one occasion stole a significant quantity of insulin and associated equipment to provide to her father. She lost her job and was dealt with criminally where she pleaded guilty, cooperated with her employer and AHPRA, and completed a further course in relation to medication safety and ethics. Her registration was suspended for six months, notwithstanding a joint submission by the parties that it be suspended for three months, and she was reprimanded and required to undergo further ethical training.
- In Health Ombudsman v Mullins  QCAT 339 the practitioner stole a number of pre-authorised prescription sheets from her employer, and used them to obtain opiates and other pain relief medication. She suffered from painful medical conditions, and had been prescribed oxycodone following a fracture. She had found it effective generally, and sought to continue to use it. She had not practiced as a nurse since soon after the conduct, and had undertaken appropriate medical and psychological treatment for her condition. She demonstrated remorse and insight. Her registration was subject to conditions based on impairment, which were to continue, and no period of suspension was imposed, because of the conditions attaching to her registration which were sufficient to protect public health and safety: .
- The submissions for the respondent accepted the general applicability of these comparatives, and that ordinarily a period of suspension of four to six months would be appropriate, but submitted that in this case, because of the period during which her registration had already been suspended, and the positive indications since then, a further suspension now would be unduly punitive and could damage the rehabilitation of the respondent, and her reintegration into the profession. It was not necessary for the health and safety of the public.
- The fact that the respondent’s registration was suspended for a period is a relevant factor, as is the fact that she was not practicing as a nurse for a longer period around that time. On the whole, bearing in mind the evidence as to the treatment the respondent has received, and the continuing conditions imposed by AHPRA, her insight and remorse and behaviour since the relevant conduct, I do not consider that there is any further need for personal deterrence, and that the respondent can continue to practice without endangering the health and safety of the public. The only real issue is whether considerations of general deterrence, and the factors referred to in Antley (supra), mean that a longer period of suspension overall is required. I do not consider that that is the case. I accept that the fact that the respondent was suffering mental health issues at the time is relevant to the significance of general deterrence, and note that the period of suspension of six months already experienced is within the range established by the earlier decisions. Some of these cases are not as serious as the present case, but there are positive indications of rehabilitation in this case, and that is important, and should be encouraged. There was in fact a longer period out of the profession, of almost twelve months. The respondent’s registration will not be suspended further.
- There was no difference between the parties as to the content of the proposed conditions, which were essentially that the respondent undertake an ethics and legal responsibilities course approved by the Board, that she be mentored by a registered nurse for at least one year, and that she provide AHPRA with the contact details of a senior person to whom a copy of the conditions would be provided
- It is difficult to see how these proposed conditions fulfil any useful purpose, given the time that has passed since the relevant events, and since the respondent resumed work as a nurse, and the fact that AHPRA removed conditions providing for the respondent to work under supervision, when the conditions it had imposed were reviewed in February this year. If AHPRA considers that supervision is unnecessary, it is difficult to see that mentoring is. The usefulness of the ethics course is also not obvious, after so much time has passed, and bearing in mind the evidence that at the time of the offending the respondent’s judgment was clouded by her pain and mental health issues. On the evidence her mental health is now much better, and she has developed insight and coping mechanisms. The offending in this case is not associated with any ignorance of ethical requirements, so it is difficult to see that such a condition would contribute to the safety of the public.
- With regard to the proposed conditions, the submissions of the applicant and the respondent were the same. This is the equivalent of a joint submission. 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.
- The Tribunal gave the applicant the opportunity to make additional submissions addressing these concerns, but was not persuaded that any of the conditions were appropriate in the interest of protecting the public. The respondent will of course remain subject to those conditions imposed by AHPRA which were not removed earlier this year, unless and until it is satisfied that they can be removed or amended. The Tribunal will not impose additional conditions on the respondent.
- The remaining issue is the non-publication order. Section 66 of the QCAT Act authorizes a non-publication order if the Tribunal considers it necessary having regard to five specific matters, one of which is “(b) to avoid endangering the physical or mental health or safety of a person”. There is some evidence to support the proposition that this requirement is satisfied. In her affidavit the respondent expressed concern as to how her parents would react to knowledge about this proceeding, and the information it would reveal about her conduct, noting that she has family members who are also health professionals. She is particularly concerned about this because of her Post Traumatic Stress Disorder, said to arise from their treatment of her in the past.
- In her more recent report, the respondent’s treating psychologist expressed the opinion that the publication of the respondent’s name in this proceeding would be extremely stressful for her, and because of the fragility of her resilience, might cause her to relapse. As well, there is the risk that publicity could jeopardise the respondent’s employment, which is one of the factors keeping her stable, and in that way also risk her mental health. These opinions are plausible; if she is suffering mental health issues because of her parents’ past treatment, further hostility from them could have an adverse impact on her current mental health.
- I appreciate that the starting point is that the Tribunal operates in public, and the power to conduct all or part of a hearing in private should be strictly regulated: see Legal Services Commission v XBV  QCAT 332 at , where the Honourable P Lyons QC pointed out that the Tribunal had a broader power to constrain the open court principle than is available to courts generally. In that case there was evidence that the respondent had been receiving treatment from a psychiatrist and a psychologist for a major depressive disorder, and there was a risk of suicide. A non-publication order was made, but under another Act, as it concerned a legal practitioner. Reference was made to the decision of J v L & A Services Pty Ltd (No 2)  2 Qd R 10, where the open court principle was discussed. Under that principle, as applied in courts, it was said at p 45 that “information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other collateral disadvantage.”
- I am aware of cases where applications for non-publication orders have been refused, but in Health Ombudsman v NLM  QCAT 366 Sheridan DCJ made a non-publication order in a matter which, although not an impairment matter, involved an impairment of the practitioner which was closely bound up with the relevant misconduct. Her Honour referred to the statutory provisions for confidentiality in impairment matters, and said at  that they indicated that the legislature attaches importance to the need for privacy in matters relating to impairment, because there are good social policy reasons which justify a restriction on openness in the administration of justice. Accordingly it was held to be necessary in the interest of justice to make a non-publication order.
- The situation is similar in this case. There is evidence that at the relevant time the respondent had mental health problems, which were related to the offending conduct. I consider that the reasoning in NLM provides some support for a non-publication order. In all the circumstances, I am prepared to make a non-publication order.
- Accordingly the decision of the Tribunal is as follows:
- The Tribunal decides that, in respect of the matters alleged by the applicant, the respondent behaved in a way which constituted professional misconduct.
- The Tribunal reprimands the respondent.
- The parties bear their own costs of this proceeding.
- Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication is prohibited, to the extent that it would identify the respondent, or enable the respondent to be identified, of:
- the contents of a document or other thing produced to the Tribunal;
- evidence given before the Tribunal;
- any order made or reasons given by the Tribunal.
 Health Ombudsman Act 2013 s 126; see s 127 for their function.
 The respondent has also filed an affidavit, signed on 5 November 2019.
 This qualification was not included in the statement of agreed facts paragraph 9, although the submissions for the applicant refer in paragraph 50 to two occasions when the Board issued cautions for breaches of the conditions, and the respondent’s affidavit paragraph 38 admits that there were a small number of drug tests missed, “due to circumstances outside my control.” It is unsatisfactory for there to be agreed facts where it is common ground between the parties that the true facts are different.
 Advised by the respondent’s solicitor during the oral submissions.
 The endometriosis was diagnosed in November 2017: report p 5; and see statement of agreed facts para 14. Cf report of psychiatrist 14 September 2019 p 3: chronic pelvic pain from about December 2016, endometriosis confirmed by laparoscopy in November 2017.
- Published Case Name:
Health Ombudsman v RET
- Shortened Case Name:
Health Ombudsman v RET
 QCAT 204
Judicial Member D J McGill SC
22 Jun 2020