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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v NPT  QCAT 267
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE hEALTH oMBUDSMAN
Occupational regulation matters
29 July 2020
On the papers
Judicial Member D J McGill SC,
Ms M Barnett,
Ms L Dyer
Professor M Lupton.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – Professional misconduct – stealing drugs from employer – criminal convictions – registration not renewed – sanction
Health Ombudsman Act 2013 s 104, s 107
Health Ombudsman v CSM  QCAT 55
Health Ombudsman v Jamieson  QCAT 172
Health Ombudsman v Macdonald  QCAT 473
Health Ombudsman v McGill  QCAT 399
Health Ombudsman v Mullins  QCAT 339
Health Ombudsman v Tu  QCAT 91
Nursing and Midwifery Board of Australia v Mahon  VCAT 403
Office of the Health Ombudsman
This matter was heard and determined on the papers pursuant to s32 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 Barnett, Ms Dyer and Professor Lupton. 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 has been convicted of offences involving theft of drugs from his workplace.
- The respondent has not been legally represented in these proceedings, and indeed has not engaged with the proceedings after filing a response, although he advised the applicant by email that he did not dispute anything, and accepted whatever the Tribunal decided. The applicant has provided the Tribunal with evidence by affidavit, and has provided written submissions to the Tribunal. The hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009, s 32.
- The Tribunal finds the following facts on the basis of the material placed before it by the applicant. The respondent was born in 1979 and is now 40. He was first registered as a registered nurse in 2015, having been previously registered as an enrolled nurse from 2011. At the relevant time, the respondent was working as a registered nurse at a regional hospital in Queensland. He had an injured back which was painful, for which he had been prescribed Tramadol. He found that in time that no longer helped him, and he began to take drugs from the hospital where he worked, and to self-medicate with them.
- During January and February 2018, the hospital reviewed drug safes in the peri-operative unit where he worked, and reported the matter to police, who interviewed the respondent on 26 February 2018. He admitted he had taken a quantity of cocaine from the drugs safe, and that he had taken a quantity of other drugs, mostly fentanyl, over a period of at least three weeks. To access the safe, two people had to use swipe cards issued by the hospital; the respondent used his card, and one which had been issued to his wife, who had previously worked in the unit on a casual basis. He then made false entries in the drug register for the unit, in respect of the drugs removed. Most of them were Schedule 8 drugs.
- The respondent was subsequently charged with four charges:
- (a)stealing as a servant;
- (b)obtaining or dealing with another entity’s identification information;
- (c)making a false entry in a record;
- (d)possessing dangerous drugs.
- On 19 September 2018 he pleaded guilty to those charges in the Magistrates Court, and a fine was imposed. No other criminal history was alleged, and it was acknowledged that as a result of the offending he had lost his employment at the hospital, and his marriage had come to an end. He was then engaged in other employment outside the health care system. The matter proceeded on the basis that in January 2018 the respondent took 80 Fentanyl 500 mcg ampules, and 2 or 3 Oxycodine and Codeine tablets, and that in February 2018 he took the following:
- (a)279 Fentanyl 500 mcg;
- (b)7 Oxycodone 10 mg;
- (c)1 Oxycodone 20 mg;
- (d)1 Remifentanil 2 mg;
- (e)3 Morphine 10 mg;
- (f)1 Morphine 30 mg;
- (g)11 Tramadol 100 mg;
- (h)1 Methadone 10 mg;
- (i)5 Alfentanil 1 mg;
- (j)1 Ketamine 200 mg;
- (k)24 Cocaine 100 mg;
- (l)5 Fentanyl 100 mcg.
- All of these except Tramadol are Schedule 8 drugs; Tramadol is a Schedule 4 drug.
- On 26 March 2018 the respondent surrendered his general registration, and obtained non-practising registration, although in May 2019 he failed to renew that registration, and has not been registered since. He has not worked as a nurse since February 2018, almost two and a half years.
- In January 2018 there was a referral to AHPRA of the question of whether the respondent had an impairment, following advice that on 11 January he had been admitted to hospital for opioid withdrawal. The offences involved drugs most of which were stolen after he was discharged on 15 January 2018. Following the surrender of the respondent’s general registration, when there was no longer a risk to the public from his practicing, AHPRA decided to take no further action in relation to any question of impairment of the respondent. The matter was referred to the Tribunal on 12 July 2019.
- I am aware of the definitions of professional misconduct and unprofessional conduct in s 5 of the National Law. The conviction of each offence amounted to unprofessional conduct by definition because of the element of dishonesty involved. The applicant submitted that in the circumstances the respondent’s conduct amounted to professional misconduct, as unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience, or in the alternative, as conduct of the respondent in the practice of his health profession that is inconsistent with his being a fit and proper person to hold registration in the profession. This conduct involved serious dishonesty and was directly related to his employment as a nurse, which gave him access to these drugs.
- This characterisation is consistent with earlier decisions of this and other Tribunals. In Health Ombudsman v Macdonald  QCAT 473 a registered nurse stole 11boxes of a Schedule 4 medication from her employer. It was an isolated incident, and the medication was obtained for the use of a relative. This was said by the Tribunal to represent a significant breach of trust and an abuse of position, which necessarily undermined the confidence that the public must retain in the profession. A finding of professional misconduct was made, and the respondent’s registration was suspended for 6 months. The Hon J B Thomas QC, who constituted the Tribunal, said at :
The stealing of the prescription drugs from an employer by a nurse represents a significant breach of trust and abuse of position which is not tolerable within the profession. It is simply conduct that nurses must not engage in. Such conduct necessarily undermines the confidence that the public must retain in the profession.
- In Health Ombudsman v Jamieson  QCAT 172 a nurse took a three packets of antibiotics from her employer for the use of her son, who had an abscess in the ear. She also failed to disclose that she faced a criminal charge, at the time or when renewing her registration, which she had subsequently surrendered. The Hon J B Thomas QC said at :
The stealing of medical supplies by a nurse from his or her place of employment is a serious act of misconduct. The present case, which involves the taking of some fairly familiar antibiotics, does not raise quite the same level of concern as the taking of illicit drugs, or patently dangerous, habit-forming drugs. The respondent’s motivation (a desire to assist her son) is less concerning than the common motivations of the taking of various forms of prohibited drugs. But it was still an act of plain theft, and there was an intent to allow some of them to be taken without qualified medical supervision. While this conduct lies at the lower end of examples of this type of misconduct, it strikes directly at the proper provision of medical services, and I have no hesitation in concluding that such a theft may be characterised as professional misconduct.
- More recently, in Health Ombudsman v McGill  QCAT 399 a nurse was convicted of 47 charges of stealing Schedule 8 drugs from his employer. He had previous notifications for using drugs stolen from his employer, and had surrendered his registration over four years before the hearing. The Deputy President characterised this as professional misconduct, being serious criminal conduct involving stealing significant quantities of Schedule 8 drugs, the repeated falsification of records, the depletion of drug supplies in the hospital, taking advantage of his employment as a nurse and breaching the trust placed in him, and misusing the names of colleagues, potentially implicating them in wrongdoing. He was reprimanded, but no further preclusion period was imposed.
- In Health Ombudsman v CSM  QCAT 55, a nurse was convicted of stealing as a servant and unlawful possession of restricted drugs, as a result of taking medication from her workplace. This was characterized as professional misconduct, and the respondent was reprimanded, but she had not been registered for almost two years, and did not intend to return to health care, and no preclusion period was imposed.
- In Health Ombudsman v Tu  QCAT 91 a nurse had been convicted of stealing diazepam from the hospital where he worked, had on another occasion taken syringes and medication from a hospital where he was working, and had also been convicted of possession of a quantity of methylamphetamine. This was characterized as professional misconduct. He was reprimanded, and disqualified from applying for registration for two years, taking into account the period since June 2017 that he had not worked as a nurse. That respondent also did not engage with the Tribunal proceedings. Other decisions were referred to in these cases, and I am also aware of the decisions in Nursing and Midwifery Board of Australia v Michie and in Health Ombudsman v Mullins  QCAT 339.
- In the circumstances I accept that the respondent’s conduct amounted to professional misconduct. It is then a question of what sanction to impose.
- 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 to the assessment of the risk to the public. The facts that the respondent made admissions to the police, and pleaded guilty to the charges, suggest remorse, but more recently nothing more has been shown by the respondent. It is also relevant that the respondent has not in fact practiced as a nurse since February 2018, so that he has been out of the profession for about two and a half years. He may well never work again as a nurse anyway.
- Apart from the decisions referred to above, the applicant referred to Nursing and Midwifery Board of Australia v Mahon  VCAT 403. A nurse with a good record took a vial of morphine from her workplace and, later, 4 to 6 Oxycontin tablets from a patient’s Webster pack, to self-medicate a painful knee. She had admitted the conduct to her employer and pleaded guilty to a criminal charge and had been prevented from practicing for two and a half years already. The Tribunal reprimanded her and disqualified her from applying for a further period of six months.
- In the present case, the applicant seeks that the respondent be reprimanded, and that a period of disqualification of six months be imposed, on the basis that the period the respondent has been out of nursing is insufficient, in view of the serious nature of his conduct, and in the absence of better evidence of insight and rehabilitation on his part. Given the nature of the dishonesty involved a reprimand is appropriate, and in the light of the outcomes in other matters, it is appropriate for the respondent to be out of the profession for three years overall. Accordingly, a period of disqualification of six months from the date of the order is appropriate.
- The applicant also seeks a non-publication order, in order to prevent the publication of information which would identify any patient of the respondent, or any family member of the respondent. An order of indefinite duration was made in these terms by the Deputy President on 26 August 2019, and in the circumstances, I agree that it should continue. It is by no means clear to me however that any further order on my part is required, since the existing order, not having been set aside or modified, would appear to continue to apply. If it were necessary for me to do so, I would make such an order, for the reasons for which the order was made by the Deputy President, but as presently advised, I regard it as unnecessary.
- The decision of the Tribunal is therefore:
- The Tribunal decides that the respondent behaved in a way that constitutes professional misconduct.
- The Tribunal reprimands the respondent.
- The respondent is disqualified from applying for registration as a registered health practitioner for six months from the date of this order.
- The parties bear their own costs of the proceeding.
 Health Ombudsman Act 2013 s 126; see s 127 for their function.
 See emails from the respondent exhibited to the affidavit of Bowman filed 12 December 2019.
 His treating doctor advised AHPRA that he held no serious concerns about the respondent’s returning to work: affidavit of Burgess filed 2 March 2020 Exhibits p 83.
 Western Australian State Administrative Tribunal, File VR 89 of 2018, unreported.
 See Attorney-General v Bax  2 Qd R 9 at 17, concerning analogous provisions involving a legal practitioner.
 Medical Board of Australia v Blomeley  QCAT 163 at .
 Psychology Board of Australia v GA  QCAT 409 at , Nursing and Midwifery Board of Australia v Tainton  QCAT 161 at .
- Published Case Name:
Health Ombudsman v NPT
- Shortened Case Name:
Health Ombudsman v NPT
 QCAT 267
29 Jul 2020