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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v King  QCAT 284
director of proceedings on behalf of the health ombudsman
andreana francesca king
Occupational regulation matters
13 May 2020 (ex tempore)
On the papers
Judicial Member J Robertson
Ms Mary Barnett
Ms Suzanne Harrop
Mr Stephen Lewis
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was convicted of one count of fraud by dishonest application of her employer’s property, and one count of stealing as a public servant and three counts of possession of dangerous drugs – where the respondent had no prior regulatory notifications in Queensland – where the respondent agrees her actions breached the code of ethics for nurses in Australia – where the respondent has shown remorse – whether suspension is an appropriate sanction
Health Ombudsman Act 2013, s 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5
Health Ombudsman v Mullins  QCAT 339
Medical Board of Australia v Jansz  VCAT 1026
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
- The respondent was first registered as a nurse on 14 September 2009 and she surrendered her registration on 28 May 2019. She was born in September 1965, so is now 55 years of age.
- Pursuant to s 107 of the Act the applicant asks the Tribunal to find that the respondent has engaged in professional misconduct and seeks to have her reprimanded pursuant to s 107(3)(a) of the Act, and pursuant to s 107(4), an order that she be disqualified from applying for registration for a period of six months from today’s date.
- The respondent has cooperated with police in relation to the criminal matters which are at the heart of these disciplinary proceedings, and with the regulator, and in these proceedings in which she has filed a short response to the applicant’s submission, I infer that the only issue she has is with the reprimanded to which I will return later. The parties have filed an agreed statement of facts.
- Relevantly, the respondent was employed as a registered nurse at the Cairns Base Hospital from June 2010 until 24 January 2017 when her employment was suspended.
- As a result of a search warrant executed on her premises, and in particular her bedroom, on 21 January 2017 by the Queensland Police Service, the respondent was charged with offences of dishonesty and drug offences which involved (in summary) the theft of prescription pads from her employer, the subsequent forgery of doctors’ signatures, and the misuse of patient information so that the forged prescriptions were in the names of patients for whom the drugs were not prescribed, which she then used to obtain various forms of Benzodiazepine which she used herself. She told police in a recorded interview that she was addicted to Benzodiazepines.
- She explained to police in an interview on 5 February 2017 that she went to various pharmacies around Cairns to fill prescriptions and would include other medications to avoid coming under suspicion. She told police that her conduct had started in mid-2015 and had escalated to forging stolen prescriptions and obtaining medications approximately three times a week at the time the police executed the search warrant. During the search police found 122 forged prescription sheets containing stolen patient details that she had used fraudulently to obtain the medications.
- On 28 April 2017 in the Magistrates Court she was convicted of one count of fraud by dishonest application of her employer’s property, one count of stealing as a public servant which offences covered the period 22 July 2014 to 23 January 2017, i.e., a longer period than she had estimated in her interview, and three counts of possession of dangerous drugs. She was placed on probation for two years and convictions were recorded.
- She had never been previously been subject to any regulatory notification in Queensland until her self-notification of the criminal offences to the office of the Health Ombudsman on 30 January 2017, which in turn referred her notification to the Australian Health Practitioner Regulation Authority (AHPRA). She was suspended from her employment on 24 January 2017 and her employment was terminated on 18 August 2017.
- Upon notification to AHPRA, the committee of the Board of Nursing and Midwifery suspended her registration and required her to undergo a health assessment.
- In October 2006 when she was employed as a registered nurse in New Zealand, she self-referred to the relevant professional body her then addiction to benzodiazepines which lead to conditions being imposed on her registration. When she applied for registration in Queensland in 2009 the relevant professional body obtained these details from New Zealand and the respondent was required to undergo a psychiatric evaluation which was undertaken. As a result, the conditions on her registration were lifted.
- Throughout the period of offending she had more or less the one general practitioner who has provided various reports during the course of his treatment, and that material reveals that the doctor was prescribing what he himself describes as very large amounts of Oxazepam and Temazepam and refers to various severe stressors such as her mother’s death in early 2015 and her half-brother’s suicide in mid-2014.
- The health assessment referred to earlier resulting from the AHPRA condition was undertaken by consultant psychiatrist Dr Jill Redden, and her report dated 22 April 2017 is before the Tribunal. Not surprisingly, although noting that at that stage the respondent was not prescribed Benzodiazepines and was in the early stages of withdrawal, Dr Redden noted that she has a significant substance use disorder that is likely to detrimentally affect her capacity to practice her profession. She sets out in her report a number of stringent conditions that in her opinion would need to be imposed if the respondent was ever re-registered.
- The applicant has the onus of proving the allegation of professional misconduct and the applicable standard is the civil standard subject to the principle in the High Court decision in Briginshaw v Briginshaw. These proceedings are protective in nature and not punitive. The primary focus of any disciplinary proceedings is the protection of the health and safety of the public.
- The respondent’s conduct was very serious. It involved systematic fraud over a long period, of the respondent’s employer to feed a very significant and protracted addiction to Benzodiazepines. Despite the extraordinary level of her drug use including drugs prescribed legally by her general practitioner, she appears from the material not to have shown any signs of clinical malfunction so as to alert her superiors to her addiction. This is despite the fact that the authorities knew of her previous Benzodiazepine addiction in New Zealand. That she was able to function quite well is demonstrated by the sophistication of her misconduct in filling prescriptions to avoid suspicion in multiple pharmacies, and using the names of other patients to obtain the drugs, forging the signatures of various medical practitioners without their consent and keeping her room locked when she was not there. Her actions involved a very serious breach of trust whereby not only did she steal from her employer, she also misused confidential patient information to complete the prescriptions and forged doctors’ signatures. She appears to have kept her chronic addiction to Benzodiazepines from her regular general practitioner for a lengthy period of time.
- She agrees that by her actions she has breached both the code of professional conduct for nurses in Australia and the code of ethics for nurses in Australia. A breach of these codes is a relevant matter for the Tribunal to consider in deciding if the proved conduct amounts to professional misconduct; and these codes are designed to define the standards and ethics expected of a health practitioner by the public and by the profession.
- A number of previous decisions of the Tribunal, for example, Health Ombudsman v Mullins, are quite similar, although I would regard this case as a little more serious. As in most of the cases it is noted that deterrence and denunciation are important because of the need to protect the public and to ensure that health practitioners who engage in such conduct risk serious disciplinary consequences. A proportionate disciplinary response is also required to uphold the justifiable respect and confidence that the profession has in the community.
- I am satisfied that the agreed conduct amounts to professional misconduct. The respondent does not dispute that her behaviour amounts to professional misconduct and she does not dispute the disqualification period of six months as proposed by the applicant in its submission. She does, however, dispute the submission that she should be reprimanded pursuant to s 107(3)(a) of the Act.
- I agree with Assessor Harrop that her submission is confusing. She states:
I have been asked to respond to the final submissions before you. I have little left to say that has not already been conveyed. I have agreed to the loss of my registration for six months however I do not agree with placing a reprimand on my registration should I ever decide to regain it.
I have already been without work in this field for an overall period of close to three years. I have never harmed a patient or put them in jeopardy in any way, so what is to be gained for the public I do not know. I honestly do not see myself ever nursing again, it is far too difficult to regain registration. The information before you states that I intend to return to clinical practice but I don’t believe I ever will. There are too many obstacles to overcome and now to have a reprimand on my registration is just another impediment to deal with when I already have so many.
- It does appear that after her arrest the respondent did engage appropriately with the ATODS Allied Health in Cairns, and her own doctor formulated a mental health plan, and she has seen a psychologist during her interactions with ATODS Allied Health. In her submissions she implies that she is still being treated but there is no evidence to that effect. The material reveals that despite significant engagement with ATODS and treatment by her own general practitioner who prescribed other drugs other than Benzodiazepine nonetheless the respondent, on the evidence, has not been rehabilitated. Unfortunately, in 2019 she went to New South Wales where she again forged scripts and was convicted in that State. It was following that incident that she surrendered her registration on 28 May 2019. The relapse, as evidenced by the exact same behaviour, and given her long history of Benzodiazepine addiction, does not auger well for her future rehabilitation and her future return to the profession.
- The material from ATODS, and in particular a report dated 2 August 2018, under the hand of a senior clinical psychologist, indicates that she had engaged with the service from January 2017, and had maintained abstinence from any ilicit substance use. The psychologist opined that the trauma treatment plan would be completed within three to six months.
- In Medical Board of Australia v Jansz, the medical practitioner respondent was reprimanded in addition to the imposition of a suspension from practice. There, the Tribunal stated:
In our view, a reprimand will have the salutary effect of underscoring the seriousness of the doctor’s misconduct and serve as a warning to other practitioners that his actions and omissions were seriously wrong and fell significantly below professional standards. A reprimand serves as an acknowledgment to members of the public that the doctor’s conduct fell significantly below those standards.
- In my opinion, having regard to the reasons set out above, and applying the principle in Jansz, this is a case which calls for a reprimand. It is inevitable, as I inferred above, given her long history of dependence on Benzodiazepines, and the serious nature of her criminal conduct to feed that dependence, and the response of the regulator and the Boards, together with the opinion of Dr Redden, that any registration in future will have significant conditions attached if she chooses to reapply.
- She has shown remorse and a willingness over several years to address her addiction but unfortunately that remorse has to be read down in the light of her relapse by undertaking exactly the same conduct in New South Wales in April 2019. In those circumstances the Tribunal orders as follows:
- In respect of Allegation 1, the respondent is found to have engaged in professional misconduct;
- The respondent is reprimanded pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld);
- The respondent is disqualified from applying for registration as a registered health practitioner for a period of six months from the order, pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld); and
- Each party is to bear their own costs.
- Published Case Name:
Director of Proceedings on behalf of the Health Ombudsman v Andreana Francesca King
- Shortened Case Name:
Health Ombudsman v King
 QCAT 284
Judicial Member Robertson
13 May 2020