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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Thackray  QCAT 282
Director of Proceedings on behalf of the Health Ombudsman
leesa chae thackray
Occupational regulation matters
3 June 2020 (ex tempore)
On the papers
Judicial Member J Robertson
Ms Harriet Barker
Ms Mary Barnett
Mr Bradley Thomas
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where respondent was convicted of one count of stealing and six counts of fraud – professional misconduct – where respondent fully cooperated with the Tribunal and criminal justice process – whether sanction appropriate
Health Ombudsman Act 2013 (Qld) s 58, s 107
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66
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 31 May 2019, the applicant director referred these disciplinary proceedings to the Tribunal, pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act). The referral proceeds on the basis of an agreed set of facts. The respondent has fully cooperated with the Tribunal and, indeed, with the criminal justice process, which led to her entering pleas of guilty in the Richlands Magistrates Court on 26 September 2017 to one count of stealing and six counts of fraud. It is that offending that underpins the referral and the allegation that her conduct constitutes professional misconduct as defined in s 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
- On 28 June 2019, the Deputy President of QCAT, his Honour Judge Allen QC made a non-publication order pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), designed to prohibit publication of any identifying material relating to the patients of the respondent. That order will continue in force.
- At all material times, the respondent was a registered health service provider within the meaning of s 8(a)(i) of the Act, an enrolled nurse registered with the Nursing and Midwifery Board of Australia (the Board); a health practitioner under the National Law and employed as an enrolled nurse working at the Aged Care Residential Home ACare.
- On 12 May 2017, she stole six prescriptions from various patients at the home. The prescribed drugs included Endone, Fentanyl patches and Panadeine Forte. Between 15 April 2017 and 8 June 2017, she presented the prescriptions to various pharmacies and dishonestly obtained the prescribed medication for herself.
- As part of the same course of conduct, but not the subject of any criminal convictions, she took two further prescriptions, one of which she presented to a pharmacy on 26 May 2017, and the other on 29 June 2017, in order to obtain opioid medication for herself. She was successful on one occasion but not the other.
- I infer from the material that it was as a result of an investigation undertaken by the facility, consequent upon this last infraction, that led to the respondent’s conduct being exposed. On 4 July 2017, following a workplace investigation, the residential manager of the facility notified the Office of the Health Ombudsman of the respondent’s conduct.
- The respondent has no history, otherwise, of any other notifications. She is currently 37 and was 33 at the time of the conduct. It is accepted that at the time of the conduct, the respondent was suffering from chronic pain relating to a number of distressing medical conditions. A report of psychiatrist, Dr Jill Reddan, commissioned by the relevant Committee of the Board, concluded that the respondent has a lengthy history of opioid dependence, likely due to a complex interaction between her abdominal and back pain, and possibly some somatoform pain disorder; and that she was continuing to take prescribed oxycontin, so continued to be opioid dependent. In Dr Reddan’s opinion, which was provided in 2017, if managed correctly, her opioid dependency would not preclude her from providing a health service, provided that appropriate and stringent conditions were placed on her registration.
- On 21 November 2017, the Office of the Health Ombudsman informed the respondent of its intention to take immediate action under s 58(1) of the Act by suspending her nursing registration. It also indicated its intention to make an immediate protection order. The respondent did not respond to the Health Ombudsman when requested and, ultimately, her registration was suspended on 30 December 2017 and she was prohibited from providing any form of health service.
- On 5 January 2018, the respondent advised AHPRA that she was surrendering her registration, which she did so. She is currently not registered, and all the previous orders made by the Health Ombudsman, as a consequence, have been revoked. On 26 August 2019, in her response to the reference, the respondent admitted that her conduct set out in the disciplinary referral, amounted to professional misconduct. She has also agreed with the sanction proposed by the applicant.
- Nevertheless, it is still for the Tribunal to decide if the conduct, as agreed, is professional misconduct, as defined in s 5 of the National Law. It is only if the sanction agreed is not within the bounds of an appropriate disciplinary response, that would cause the Tribunal to depart from the agreed position of the parties. That necessarily, would only occur in exceptional circumstances.
- These proceedings are protective in nature and not punitive. The conduct, as admitted, was serious. It involved a serious breach of trust of not only her employer, but also of her vulnerable patients in the facility. Her conduct was contrary to a number of principles set out in the applicable codes propagated by the Board for professional practice and ethics for nurses and midwives.
- It is a sad case, as her opioid addiction, the genesis of her offending, is directly linked to a number of distressing medical conditions, some of which she has suffered from for some time.
- She has shown remorse and insight in her dealings with the criminal justice system and her cooperation with the regulator, and in the facilitation of these disciplinary proceedings.
- In deciding the appropriate sanction, the Tribunal must regard the health and safety of the public is paramount. The respondent has effectively not practiced as an enrolled nurse since her offending was discovered. Her voluntary surrender of her registration is indicative of insight and remorse and a factor to be considered in relation to protecting the public.
- Nevertheless, deterrence, more of the general variety, in this case, is an important factor for the Tribunal to take into account so as to discourage such conduct, which is apt to undermine public confidence in the profession. The respondent has not, for some time, given any information to either the regulator or the Tribunal as to her present situation regarding her opioid addiction. The latest evidence about that is from a submission she made to the Office of the Health Ombudsman in January 2018 when she was seeking to have the prohibition order lifted. Nonetheless, the sanctions that I intend to impose can adequately respond to the need to give effect to the paramount principle set out above.
- Clearly, although she has expressed an intention not to practice as a nurse again, if she does apply for registration in the future, the Board will focus, obviously, on her impairment and require evidence that she has appropriately overcome that before considering registration. In those circumstances the Tribunal orders:
- Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
- Pursuant to s 107(3) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
- The parties pay their own costs of these proceedings.
- Published Case Name:
Director of Proceedings on behalf of the Health Ombudsman v Leesa Chae Thackray
- Shortened Case Name:
Health Ombudsman v Thackray
 QCAT 282
Judicial Member Robertson
03 Jun 2020