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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Brown  QCAT 220
Director of proceedings on behalf of the health ombudsman
Occupational regulation matters
19 May 2020 (Ex Tempore)
On the papers
Judicial Member Robertson
Ms C Elliott
Dr K Forrester
Mr S Lewis
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a registered nurse – where the respondent stole drugs and made false entries into drug registers – where the respondent made full admissions and pleaded guilty in the Magistrates court – where the parties agree to sanction – whether to grant a non-publication order
Health Ombudsman Act 2013 (Qld) s 107
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66
Cutbush v Team Maree Property Services (3)  QCATA 89
Health Ombudsman v HSK  QCAT 419
Nursing and Midwifery Board of Australia v Mahon  VCAT 403
Director of Proceedings on behalf 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
- On the 28th of June 2019, the applicant Director referred these disciplinary proceedings to the Tribunal, pursuant to s 103(1)(c) and s 104 of the Health Ombudsman Act (2013) (the Act).
- The applicant seeks as finding that the respondent, who was a registered nurse and health service provider at all material times, has behaved in a way that constitutes professional misconduct as defined by s 5 of the National Law. By way of disciplinary sanction, the applicant seeks an order pursuant to s 107(3) of the Act that the respondent be reprimanded. The respondent does not oppose the finding that she has engaged in professional misconduct, nor the orders sought by the applicant by way of sanction as set out in her lawyer’s submission filed on the 17th of January 2020.
- The respondent, in a submission filed after the 17th of January 2020, seeks a non-publication order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2019 (Qld) (the QCAT Act) based on a short report from her treating psychiatrist dated the 24th of February 2020. The applicant opposes the making of such an order, and I will deal with the application at the end of these reasons.
- The allegation of professional misconduct is founded on the statement of agreed facts filed jointly by the parties on the 10th of October 2019.
- At the time of the impugned conduct, the respondent was aged 31 years. She is now 37. She holds a Bachelor of Nursing, which she obtained in 2012. She was first granted registration by the Nursing and Midwifery Board of Australia (the Board) in February 2013.
- The practitioner has a disciplinary history, although it is related to and postdates the matters the subject of his referral. On the 26th of February 2016, the Board reviewed her health assessment status and imposed conditions on her registration, including requirements for ongoing monitoring and treatment, urine and drug-screening testing and hair follicle testing. On the 20th of July 2016, the Queensland Board Notification Committee decided that the practitioner had committed unprofessional conduct and cautioned her due to her delay in engaging with urine, drug-screening testing and hair follicle testing. The Committee acknowledged that the practitioner’s personal circumstances (mental health and financial hardship) had contributed to her non-compliance, and that she had otherwise maintained communication with AHPRA, explained the reasons for the delay and provided regular updates regarding her employment status.
- The practitioner did not renew her registration as a registered nurse in Division 1 on 31st of May 2017. On the 9th of July 2018, the practitioner applied to AHPRA for general registration as a registered nurse. AHPRA is yet to decide upon her application. The practitioner has held the following employment. From 11th February 2013 to the 16th May 2015 as a registered nurse at the Townsville hospital, and thereafter, until the 24th June 2015 as a nurse with a nursing agency, and employed at Prescare in Brisbane.
- The practitioner voluntarily ceased employment as a nurse upon first being notified of a complaint from PresCare. She has not sought or obtained employment as a nurse since. She is not currently practicing.
- The material contains a number of relevant medical reports, most relevantly for these proceedings, a report of consulting psychiatrist, Dr Nigel Prior, dated the 13th of November 2015, and a report from the respondent’s then treating psychiatrist, Dr McAuley, dated the 31st of July 2015. Both opine that, at all material times, the respondent had suffered from a major depressive disorder with borderline personality traits, and in Dr Prior’s opinion, a substance abuse disorder relating to opioids and benzodiazepine drugs.
- The respondent has cooperated extensively both with regulatory authorities and with the police investigation, which is at the heart of this disciplinary referral.
- On the 5th of September 2016, in the Brisbane Magistrates Court, she pleaded guilty to two charges of stealing as a servant and two charges of making a false entry in the record. The charges related to the two distinct period of employment referred to above initially as a registered nurse at Townsville Hospital, and then as a registered nurse with an agency who placed her with PresCare at Carina in Brisbane.
- On many occasions, between the 1st of January 2015 and the 16th of May 2015, whilst employed as a registered nurse at the Townsville Hospital, the respondent stole schedule 8 and schedule 4 drugs for her own use and made false entries in the relevant drug registers to conceal her dishonesty. On the 24th of June 2015 at a time when she’d been working as a registered nurse at PresCare Nursing Facility in Carina for only a period of four days, she stole two ampules of morphine sulphate, which she later self-administered, and, again, she falsified the controlled drug register to conceal her dishonesty.
- On the 14th of August 2015, she made full admissions to police in relation to both episodes of criminal behaviour. On the 5th of June 2016, after a large number of charges were incorporated into four, she pleaded guilty. His Honour Magistrate Quinn admitted her to probation for a period of 18 months, subject to a number of special conditions:
- (a)The practitioner take part in counselling and satisfactorily attend other programs as directed by an authorised Corrective Services officer;
- (b)The practitioner submit to all tests, examinations and assessments as required by an authorised Corrective Services officer;
- (c)The respondent continue in therapeutic treatment with Dr John McAuley;
- (d)The respondent authorise a Corrective Services officer to ensure compliance with the probation conditions;
- (e)The respondent submit to all drug screen tests as required by an authorised Corrective Services officer;
- (f)The respondent was not to seek or obtain employment in a medical practice, hospital or other health service provider or undertake voluntary work in any of those places unless disclosure of the probation order is made to her respective employer.
- His Honour exercised his discretion not to order a conviction. On the 5th of September 2016, the respondent, via her lawyer, gave written notice to AHPRA of her conviction and sentence. On the 1st of March 2018, she successfully completed the 18-month probation order. She committed no further offences during the order, reported as directed and continued engagement with her health professional. Queensland Corrective Services did not require her to undertake urine analysis testing.
- These disciplinary proceedings are protective in nature and not punitive. The paramount consideration always in proceedings of this nature is the health and safety of the public. It is only in the most exceptional circumstances would the Tribunal depart from the agreed position of the parties as to findings and sanction. That is especially so when the respondent is legally represented. In this case, the parties agree both with the finding of professional misconduct and the appropriate sanction.
- There is no doubt that the respondent’s conduct was very serious. In relation to the Townsville offences, she stole drugs and falsified registers for approximately four months. This included falsifications in the relevant registers, suggesting that patients had been administered these drugs when, in fact, they had not. As I noted earlier, she had only been working for four days when she committed the PresCare offences.
- Both episodes of offending involved a serious breach of trust, and both involved the theft of schedule 8, schedule 4 drugs and efforts by her calculated to hide her misconduct.
- Personal and general deterrence is almost always a relevant factor in proceedings of this nature. As against that, there has been lengthy delay in concluding these proceedings, during which the respondent has endeavoured to address the underlying contributors to her criminal conduct, including her mental health issues.
- The respondent has, over the intervening years, showed insight into her problems. However, it is important in recognising what is a serious departure from the Code of Conduct and Code of Ethics for the nursing profession; that the Tribunal marks its condemnation of such conduct, which is apt to undermine confidence in the profession, and to encourage other health practitioners with mental health and drug dependence issues to access treatment rather than engage in criminal misbehaviour of this kind.
- In relation to her mental health issues, in 2017, she disclosed for the first time that as an 18 year old member of the defence forces, she had been sexually assaulted on many occasions, and that when she complained to her superior officer, her complaint was dismissed and she was vilified. She started treatment in 2017 with another psychiatrist, Dr Janice Carter, who, in a number of reports to the regulator, confirms that the respondent continues to see her regularly and is compliant with her medication.
- Dr Carter’s diagnosis is that the respondent suffers from a long-term post-traumatic stress disorder and adjustment disorder with substance abuse disorder, which she ascribes as alcohol, and with anxiety and depression. She opines, as at the date of her report on the 20th of March 2019, that the respondent was fit to return to nursing.
- Dr Prior’s most recent report on the file is to the Board on the 8th of July 2019. He refers to the respondent’s engagement with Dr Carter, and to the fact that her mental health has improved significantly as a result of being able to talk about the sexual assaults. It appears that she has been accepted by the Department of Veteran Affairs as having a number of mental health conditions directly related to military service.
- One of the problems I have had is that Dr Carters’ reports are minimalist in content, which does not permit the reader to understand the basis of the various opinions she expresses. That is not to be critical of her. That seems to be her style. But both Doctors Prior and McAuley have provided reports which contain considerable and helpful factual detail to enable the reader to understand the historical and factual basis for the opinions that they express as experts.
- In his latest report, Dr Prior agrees with Dr Carter, that as well as the previous conditions he diagnosed, as a result of the information that he did not have earlier, the respondent shows signs of chronic post-traumatic stress disorder. As an example of my previous comments, Dr Carter’s opinion (apparently based on the respondent’s self-report) is that she has an alcohol abuse dependence disorder. Dr Prior, on the other hand, based on the history he reports from the respondent, both prior to and during her offending is that the substance abuse disorder related to opioids and benzodiazepine. This is completely consistent with her admitted criminal activity. He could find no evidence of alcohol dependence. Both doctors mention that she told them that she drank heavily whilst in defence forces, which is now approximately 20 years ago.
- At paragraph 15.8 of his latest report, Dr Prior opines that the respondent is now fit to return to work on a full-time basis with conditions. This is relevant to sanction. Her registration history is noted above. The applicant has referred the Tribunal to a number of previous decisions as a guide to the appropriate sanction. In my opinion, some statements made by the Tribunal in Nursing and Midwifery Board of Australia v Mahon  VCACT 403 at  are apt in this case:
…nurses have a vital role to play in ensuring that addictive painkilling drugs are available to the patients who need them, yet are not allowed to get into the wrong hands. They occupy a position of trust. It is important for the effective operation of the health system that the community have confidence that nurses are able to be relied upon to act as gatekeepers and deal with such drugs strictly in accordance with the law and the rules applicable to their use…
- In those circumstances, the Tribunal makes the following findings and orders:
- The Tribunal finds that the respondent has engaged in professional misconduct;
- The respondent is reprimanded;
- Each party bear their own costs.
- The respondent has applied belatedly for an order pursuant to s 66 of the QCAT Act that would prohibit the publication of information that may enable the respondent to be identified. The applicant opposes that application. The application requires consideration of the competing interests of the respondent as a nurse and as a private citizen, and the public interest as represented in the general principle that justice should be conducted openly.
- Section 66(2) provides the Tribunal with a discretion to make an order “only if (it) considered the order necessary”, having regard to five matters set out in subsections (a) – (d). The respondent, in a submission made on her behalf by her solicitor, submits that subsections (b) and (d) are engaged, namely:
- (b)to avoid endangering the physical and mental health or safety of a person; or…
- (d)to avoid the publication of confidential information…
- The application is based entirely on a further opinion expressed by Dr Carter, which is directed to the Deputy President of the Tribunal and is dated the 24th of February 2020. Dr Carter states:
It is my opinion that it would be detrimental to her psychological health to have publication of her name or identifying particulars in any published judgment of the Queensland Civil and Administrative Tribunal (QCAT). One of the symptoms of PTSD is reliving the traumatic experience. It is my opinion that the publication of her name would be a trigger to her symptoms. Her symptoms are under control with therapy but a triggering event would cause depression and its concomitants, as well as flash-backs. For her ongoing mental health, it would be in her best interest not to have her name or identifying particulars published.
- As can be seen from the quotation from the report, contrary to the submission made by her solicitor, Dr Carter does not opine in terms, that publication of her identifying particulars “carries a real risk of triggering a recurrence of her psychiatric illnesses, in particular, her depression and the flashbacks associated with her PTSD”.
- The leading authority on the exercise of the discretion still remains the judgment of Alan Wilson P (as his Honour then was) in Cutbush v Team Maree Property Services (3)  QCATA 89. That decision is authority for a number of general propositions:
- (a)The discretion is not to be exercised lightly, and only when the Tribunal considers it necessary (at );
- (b)The onus is on the party seeking the non-publication order to show special circumstances exist, which justify the making of the order (at ).
- In this case, the opinion of the treating psychiatrist, despite being quite categorical, is not supported by any relevant history taken from the respondent. As Dr Prior notes in his most recent report, although she is now psychologically well, she does experience nightmares about the sexual abuse approximately every six months. In my opinion, the respondent’s reliance on subsections (b) and (d) are, in effect, conflating the two sections into one argument, and that is that based on the opinion of Dr Carter, publication of the respondent’s identifying particulars would endanger her mental health.
- Her lawyer also refers to the sensitive nature of the Defence Force allegations. In my opinion, the long delay in finalising this disciplinary proceeding is also a factor that would impact on the discretion. It appears clear on the evidence, that once the respondent felt able to disclose the sexual assaults well after her offending and court appearance, her mental health has stabilised, and she is not abusing drugs. It is also relevant to note that the criminal proceedings in which she was engaged are open proceedings and that is also a factor that impacts on the discretion.
- Assessor, Mr Steven Lewis, helpfully pointed to a case in which he was involved assisting her Honour Judge Sheridan, who was then the Deputy President of the Tribunal, namely; Health Ombudsman v HSK  QCAT 419. I have read that judgment.
- Bearing in mind the need to balance of both the possibility of risk to her health with the public interest of having these proceedings held openly and the judgment openly available, as is the usual case, the circumstances here are distinguishable from those in HSK. HSK did not engage in serious criminal conduct. Rather, the conduct related to boundary violations by a registered nurse which occurred over the space of three days in relation to two former patients.
- The reasons for judgment do not refer to the non-publication order for obvious reasons. However, it is clear that the approach taken to the disciplinary response by the Tribunal was influenced by the fact that the respondent nurse had ceased taking her antidepressant medication within two weeks prior to the boundary violations and had experienced significant family and personal stressors at the time of the misconduct. In my opinion, that is quite a different case from this case, which involves very serious criminal behaviour. In my opinion, the respondent, based on the opinion of Dr Carter, which is not supported in her report by any explanation or relevant history, does not satisfy the onus and on her and the application is dismissed
- Published Case Name:
Health Ombudsman v Brown
- Shortened Case Name:
Health Ombudsman v Brown
 QCAT 220
19 May 2020