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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Britten  QCAT 217
Director of proceedings on behalf of the health ombudsman
verity eve britten
Occupational regulation matters
26 May 2020 (ex tempore)
26 May 2020
Judicial Member Robertson
Ms A Bains
Ms H Barker
Mr J McNab
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – Professional misconduct – unprofessional conduct – where registered nurse convicted of one count of stealing as a servant and three charges of possession of cannabis and one charge each of possessing utensils used to administer dangerous drugs and failing to properly dispose of syringes – where failure to notify the board within seven days of being charged with criminal offences – where plea of guilty and cooperation with the Health Ombudsman – characterisation of conduct – whether the respondent is disqualified from applying for registration.
Health Practitioner Regulation National Law (Queensland) s 5, s 130
Health Ombudsman Act 2013 (Qld) s 107
Director of Proceedings on behalf of the Health Ombudsman
Appeared on her own behalf
REASONS FOR DECISION
- On the 30th of April 2019, the applicant Director referred these disciplinary proceedings to the Tribunal pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (The Act).
- It is common ground that, at all material times, the respondent was registered under the National Law as a registered nurse with the Nursing and Midwifery Board of Australia; a health service provider within the meaning of s 8(a) (i) of the Act, and a health practitioner under the national law; and subject to Codes approved by the Board, including the Code of Professional Conduct for Nurses in Australia and the Code of Ethics for Nurses in Australia.
- The parties have signed and filed an agreed statement of facts dated the 18th of September 2019.
- The respondent was aged 32 years at the time of the conduct which forms the basis of these disciplinary proceedings.
- She has a Bachelor of Nursing degree, which she obtained in 2015. She was first granted general registration by the Board in November 2015. Apart from the current referral, she has no known notifications or disciplinary referrals. Her registration is currently suspended, and she is unregistered.
- The referral contains two allegations: the first of professional misconduct, and the second of unprofessional conduct.
- On the 18th of October 2018, the respondent pleaded guilty to one count of stealing as a servant, and three charges of possession of cannabis, and one charge each of possessing utensils used to administer dangerous drugs and failing to properly dispose of syringes. The first charge was the most serious, from the point of view of these disciplinary proceedings.
- At all relevant times, she was employed as a registered nurse at Bupa Aged Care facility at Rangeville, Toowoomba, and was working permanently on the night shift. Over a number of shifts, she stole 14 pills of Alepam. As a result of an anonymous tip-off, police executed a search warrant at her residence on the 18th of July 2018, and found a quantity of cannabis and implements used to administer it, and 14 used hypodermic needles and syringes, and other drug-associated paraphernalia. In her interactions with police, she denied taking the tablets over a period from the 13th to the 15th of July 2018 but admitted her conduct to the General Manager of the facility a few weeks later on the 26th of July. The Alepam tablets had been taken from bottles prescribed for and belonging to patients at the facility.
- The Magistrate fined the respondent the sum of $2000 and no conviction was recorded. The respondent had a relevant criminal history. She had very dated drug possession charges back to 2006 and she had a number of breaches of the conditions of a domestic violence protection order.
- On the 18th of July 2018, she was suspended from her employment, which was terminated on the 30th of July 2018. On the 16th of August 2018, the Board imposed conditions on her registration due to a possible health impairment, which included both mental illness and substance abuse.
- On the 27th of September 2018, the Board took immediate action and suspended her registration on the basis that she imposed a serious risk to persons.
- On the 26th of July 2019, she provided the Board with an undertaking not to practice. On the 29th of August 2019, the Board decided that she may have impairments that detrimentally affected or were likely to detrimentally affect her capacity to practice as a nurse.
- On the 29th of August 2019, the Board further decided to accept her undertaking not to practice and revoked the registration suspension imposed on the 27th of September 2018.
- She is presently unregistered, having failed to renew her registration on the 12th of October 2019.
- The respondent did not notify the Board within seven days of being charged with the four criminal offences on the 18th of July 2018, which is contrary to s 130(3)(a)(i) of the National Law, and which constitutes the basis for the allegation 2 of unprofessional conduct.
- Although the respondent did not file a written submission in the Tribunal, she has cooperated with the disciplinary proceedings and she has appeared today by telephone in person from her home in Perth, and has expressed her deep remorse for her conduct and has made no submissions in relation to the findings and orders sought by the applicant at paragraph 110 of the applicant’s submission. She did file a response to the disciplinary referral in which she admitted the two allegations and that she had therefore engaged in professional misconduct and unprofessional conduct.
- These proceedings are protective in nature and not punitive. The paramount consideration is the health and safety of the public. The applicant carries the onus of proof, which is subject to the civil standard, on a sliding scale depending on the seriousness of the facts to be proved.
- The respondent’s conduct in stealing prescribed medication from vulnerable patients involves a serious breach of trust, and represents a significant departure from the professional standards expected of nurses, and also breaches a number of the principles set out in the Professional Conduct and Code of Ethics referred to earlier. It is conduct that is apt to undermine public confidence in the profession and to bring it into disrepute.
- The respondent was clearly impaired at the time she committed the offences, and a good summary of her mental health and substance abuse history is contained in the report of consultant psychiatrist Dr Gemma Edwards-Smith to the Australian Health Practitioner Regulation Agency dated the 24th of January 2019.
- As the doctor notes, Ms Britten was first diagnosed with depression in late 2017 by her GP, and a mental health plan was put in place in January 2018. In March 2018, she took large quantities of antidepressant medication with suicidal intent. At the time of her police interview, although she did not admit to stealing drugs from her patients, she did later to the General Manager. Later, to the investigators from the regulator, she admitted using cannabis and injecting methylamphetamine. Urine and hair follicle screening from mid-2018 until the end of that year indicated that she was still ingesting cannabis and methylamphetamine, and some screens detected benzodiazepines, which may have been prescribed.
- The history she gave to the psychiatrist indicates a long history of use of cannabis, and eventually using intravenous methylamphetamine. At the time she spoke to the psychiatrist, she was living with her mother in Perth. She told the Tribunal today that she is now residing in Perth in Foundation House, which she described as a boarding house with a therapeutic component for women, and that she is having drug and alcohol counselling once a week. Her history indicates that she has sadly, been involved in a series of dysfunctional relationships with males characterised by domestic violence. She also gave the doctor a history going back to adolescence of mood swings and depression. Her use of benzodiazepines seems to have escalated after starting work at the aged care facility as a full-time night shift nurse in 2016.
- At the time of the consultation with the psychiatrist in January 2019, she was prescribed a number of antidepressants and diazepam 5 milligrams, which she said she took intermittently for anxiety. She was also then engaged with a local drug and alcohol service and a facility called Cyrenian House, which I infer deals with drug addiction and associated mental health issues in a therapeutic context.
- The doctor’s prognosis, as at the date of her report, was guarded. She noticed her long history of polysubstance abuse, including cannabis and methylamphetamine abuse and dependence in the context of a very complex underlying psychopathology. She opined that the respondent’s presentation was suggestive of borderline personality disorder with intermittent episodes of major depression, particularly triggered by relationship issues.
- There is no doubt that Ms Britten’s admitted criminal conduct, in particular, her theft of prescription medications from patients in the aged care facility while on night duty, amounts to professional misconduct as defined in all three limbs of the definition in s 5 of the National Law, and the failure to notify the Board within seven days of being charged with the four offences constitutes unprofessional conduct.
- I have already characterised the seriousness of her conduct above. Clearly, deterrence is an important factor to take into account, both personal and general. The respondent has not practiced as a nurse since her employment was terminated on the 30th of July 2018 and, as noted above, she did not renew her registration on the 31st of October 2019.
- She has shown some insight and remorse, both in cooperating with the criminal process and with these disciplinary proceedings, and in taking the trouble to appear and speak to the Tribunal and the assessors this morning. As against that, and by reference to the summary of the psychiatric report referred to above, she still abused drugs after being dismissed from her employment. In May 2019, she advised the regulator that she had commenced the rehabilitation course referred to by the psychiatrist but did not complete it and did not know if she would. She was still using cannabis. At that point, she was indicating that she had not given up her plan, at some stage, to return to nursing.
- The applicant has helpfully referred the Tribunal to a number of comparable cases. These can act as a guide, and support the submission made by the applicant that Ms Britten be disqualified from applying for registration for a specific period of time up to 12 months.
- In those circumstances, the Tribunal makes the following findings and orders:
- The Tribunal finds, in respect of allegation 1, that the respondent engaged in professional misconduct.
- The Tribunal finds, with respect to allegation 2, that the respondent engaged in unprofessional conduct.
- The Tribunal orders that the respondent be reprimanded.
- The Tribunal orders, pursuant to s 107(4)(a) of the Act, that the respondent is disqualified from applying for registration for a period of six months from today’s date.
- The respondent is prohibited from providing any health service, whether on a paid or voluntary basis, unless and until such time as she is registered as a nurse under s 107(4)(b)(i) of the Act.
- Each party bear their own costs.
- Published Case Name:
Health Ombudsman v Britten
- Shortened Case Name:
Health Ombudsman v Britten
 QCAT 217
Judicial Member Robertson
26 May 2020