Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan
[2015] QCAT 283
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- Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan[2015] QCAT 283
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Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan[2015] QCAT 283
Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan[2015] QCAT 283
CITATION: | Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan [2015] QCAT 283 |
PARTIES: | Nursing and Midwifery Board of Australia (Applicant) v Wimon Seijbel-Chocmingkwan (Respondent) |
APPLICATION NUMBER: | OCR260-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Deputy President O'Callaghan Assisted by Dr Kim Forrester Dr Jane Truscott Mr Brad Taylor |
DELIVERED ON: | 17 July 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – CONVICTION OF OFFENCE – where registrant nurse convicted of multiple assaults and attempted murder – where failed to advise Board of an assault – where declared a violent offender – where registrant nurse incarcerated – where registrant disqualified from applying for registration as a registered health practitioner for a 10 year period Health Practitioner Regulation National Law Act 2009 (Qld), s 5, s 130, s 138, s 193 Nursing and Midwifery Board of Australia v Carol [2011] QCAT 264 Nursing and Midwifery Board of Australia v FH [2010] QCAT 675 Medical Board of Australia v Martin [2013] QCAT 376 Queensland Nursing Council v Dodd [2010] QDC 220 R v Siejbel-Chocmingkwan [2014] QCA 119 |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). |
REASONS FOR DECISION
- [1]The Nursing and Midwifery Board of Australia has referred this matter to the Tribunal under s 193 of the Health Practitioner Regulation National Law Act 2009 (Qld) (‘National Law’). It considers that Wimon Seijbel-Chocmingkwan has behaved in a way that constitutes unprofessional conduct and professional misconduct.
The Conduct
- [2]Wimon Seijbel-Chocmingkwan admits the following facts:
- She was registered as:
- (a)an enrolled nurse on 2 May 2008; and
- (b)a registered nurse on 5 January 2010.
- Her registration lapsed on 5 August 2011.
- On:
- (a)16 September 2010 she was:
- (i)convicted of five offences of assault occasioning bodily harm and two offences of common assault which were perpetrated by her between 1 November 2009 and February 2010, and
- (ii)sentenced to six months imprisonment for each of the assaults occasioning bodily harm and three months imprisonment for each of the common assaults to be served concurrently and the parole release date was that day;
- (b)24 June 2013 she was:
- (i)convicted of attempted murder which was perpetrated by her on 5 November 2010 and sentenced to 10 years imprisonment. The conviction was declared a conviction for a serious violent offence:
- (ii)convicted of dangerous operation of a motor vehicle which was perpetrated by her on 5 November 2010 and sentenced to one years imprisonment to be served concurrently with (i).
The conviction was declared a conviction for a serious violent offence.
- On 6 October 2010 she notified the Board that she had been convicted of assault in the Magistrates Court, Ipswich on 16 September 2010.
- [3]Wimon Seijbel-Chocmingkwan is currently incarcerated and her registration has lapsed. Proceedings can still be taken in relation to her behaviour while registered as if she was still registered under the National Law.[1]
- [4]The Board submits and Wimon Seijbel-Chocmingkwan agrees that her conduct in 2010 and 2013 that resulted in the convictions is:
- inconsistent with Wimon Seijbel-Chocmingkwan being a fit and proper person to hold registration in the profession; and
- constitutes professional misconduct.
- [5]Professional misconduct is defined in the National Law[2] as relevantly including conduct of the practitioner, whether occurring in connection with the practice of the health practitioners profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
- [6]As the Board noted[3] the nature of the crimes of which Wimon Seijbel-Chocmingkwan was convicted are of extreme personal violence. She assaulted her daughter in the name of family discipline, tried to kill her estranged husband with her motor vehicle and stabbed her husband’s new partner.
- [7]In relation to the conviction for the attempted murder and dangerous operation of a motor vehicle the Court of Appeal on Wimon Seijbel-Chocmingkwan’s appeal commented:
… the fact remains that the applicant formed a murderous intent, and then acting on it by a vicious, determined, persistent attack with a knife, and attempted strangulation. There seems little reason to doubt that, but for the intervention of a neighbour, the applicant would have persisted, and maybe succeeded in killing Tieu. No remorse has been evident, even now. The result was to cause serious physical and psychological harm to the victim.[4]
- [8]The Tribunal is in agreement with the parties that the conduct the subject of the criminal convictions is inconsistent with Wimon Seijbel-Chocmingkwan being fit and proper to hold registration in the nursing profession. Whilst the conduct did not occur in the practice of her profession the conduct is incompatible with the characteristics, attributes, and ethical standards required in such profession.
- [9]The Board also submits that Wimon Seijbel-Chocmingkwan’s conduct in October 2010 where she notified the Board that she had been ‘convicted of an assault’ (when in fact she had been convicted of seven assaults) constituted ‘unprofessional conduct’.
- [10]
… professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes:
- (a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention
- [11]The Board says (and Wimon Seijbel-Chocmingkwan accepts) that in not disclosing all of the convictions to the Board she acted in breach of s 130 of the National Law which requires a practitioner to give notice to the Board of a conviction of an offence.
- [12]We accept that Wimon Seijbel-Chocmingkwan acted in breach of s 130. She did not notify the Board of all the convictions for assault. In doing so her conduct constitutes unprofessional conduct.
Sanction
- [13]The parties have jointly proposed orders for consideration by the Tribunal.
- [14]As has been acknowledged in previous occupational regulation tribunal decisions[6] where parties have agreed on a proposed sanction, the Tribunal ought not to depart from the proposed sanction unless it is outside the permissible range of sanction for the relevant conduct.
- [15]The sanction proposed by the parties is that Wimon Seijbel-Chocmingkwan be precluded from applying for registration for 10 years from the date of the order.
- [16]The parties have referred the Tribunal to three cases in consideration of the appropriateness of the proposed sanction.
- [17]In Queensland Nursing Council v Dodd[7] a practitioner unlawfully wounded his former lover with a syringe containing suxamethonium chloride which he had stolen from his employer. He was convicted and sentenced to 18 months imprisonment. He had lied to police and the Board about the circumstances giving rise to the events. The Court ordered a preclusion period of not less than seven years.
- [18]In Nursing and Midwifery Board of Australia v FH[8] a nurse had 17 year old convictions for sexual offences which were not connected to his practice as a nurse. He had made false statements in his application for renewal of his registration. He was precluded from applying for registration for eight years.
- [19]In Nursing and Midwifery Board of Australia v Carol[9] the nurse had injected the patient with morphine against her treating practitioners direction, falsely accounted for the drug and thereafter purpetrated oral rape upon her. The nurse was diagnosed with a bi-pola effective disorder. The Tribunal precluded the nurse from applying for registration for eight years.
- [20]We note and accept the parties submission that Wimon Seijbel-Chocmingkwan’s conduct can be regarded as more serious than that of the practitioners in these cases. It is also noted that the Mental Health Court found her fit to stand trial and that she has been declared a violent offender by the Supreme Court.
- [21]It is accepted that 10 years preclusion is a lengthy period. It will mean that Wimon Seijbel-Chocmingkwan will not have practiced for at least five years and will need to show evidence of completion of assessment or supervised practice approved by the Board before being able to be registered.[10] This is appropriate in our view. The purpose of disciplinary proceedings is not punative, instead, the sanction imposed is intended to uphold professional standards and maintain the public confidence in the profession. The sanction proposed will fulfil this purpose.
- [22]The Tribunal is satisfied that the sanction of preclusion of 10 years is an appropriate sanction for the conduct which has been admitted by Wimon Seijbel-Chocmingkwan.
- [23]The parties also propose an order that Wimon Seijbel-Chocmingkwan pay the Board’s costs of and incidental to the proceedings as agreed or assessed within 28 days of agreement or assessment.
- [24]We accept the cost order is appropriate.
- [25]We make orders in terms of the joint submissions.
Footnotes
[1]National Law s 138(2).
[2]Section 5.
[3]Joint Submission at [24], p 5.
[4]R v Siejbel-Chocmingkwan [2014] QCA 119 at [89].
[5]National Law s 5.
[6]Medical Board of Australia v Martin [2013] QCAT 376.
[7][2010] QDC 220.
[8][2010] QCAT 675.
[9][2011] QCAT 264.
[10]Nursing and Midwifery Board Recency of Practice Registration Standard.