Health Ombudsman v Antley[2016] QCAT 472

The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).

REASONS FOR DECISION

Jurisdiction

1. [1]
   This is a disciplinary referral concerning the conduct of a registered nurse.
2. [2]
   The matter is within the Queensland Civil and Administrative Tribunal’s (“QCAT”) original jurisdiction under s 9 and s 10(b) of the QCAT Act.  The enabling act that confers jurisdiction is the Health Ombudsman Act 2013 (Qld) (“HO Act”), s 103(1)(a) of which empowers the director of the Health Ombudsman to refer a complaint to QCAT, and s 94(1)(b) and s 104 of which confirm QCAT’s original jurisdiction on such a referral.
3. [3]
   The respondent surrendered her registration on 12 April 2016, but s 21(2) of the HO Act allows a complaint against such a person to be dealt with as if that person were still registered.
4. [4]
   The orders that QCAT may make upon such a referral are contained in s 96 and s 106 – 111 of the HO Act. 

Conduct of Proceedings

5. [5]
   The referral was filed in QCAT on 23 December 2015, following which the respondent obtained legal representation and a compulsory conference was held with the respondent and her lawyer. Subsequently the respondent’s legal representative withdrew.  The respondent found difficulty in complying with directions and timeframes, citing the stress of proceedings, a relapse of post-traumatic stress disorder, depression and other mental health issues.
6. [6]
   The respondent however agreed with a “statement of agreed and disputed facts” and concurred in the filing of an agreed bundle of documents on 2 September 2016. The facts that she disputed are few in number and not of a kind that need to be resolved in order to deal with the issues involved in the litigation.
7. [7]
   She suffered deteriorating mental health issues, and on 29 September 2016 her general practitioner outlined her mental state and expressed her wish to no longer participate in the proceedings.  In her doctor's view she had the requisite capacity to make such a decision. Further directions where then given by the Deputy President.
8. [8]
   The matter is now proceeding without further participation by the respondent.  Section 93 of the QCAT Act has been complied with and the Tribunal must now hear and decide the matter. 

The charges

9. [9]
   Six charges have been brought.  All except charge 5 allege professional misconduct and alternatively unprofessional misconduct.  Charge five alleges unprofessional conduct only.
10. [10]
    Shortly stated, the charges are:

1. Charge 1 – on or about 15 July 2014 the respondent stole at least two blank authority prescriptions, the property of Dr Stephen Fanning, from the premises of her employer;
2. Charge 2 – on or about 16 July 2014 the respondent forged an authority prescription, the property of Dr Fanning, for Endone, a drug of dependence under Schedule 8 of the Standard for the Uniform Scheduling of Medicines and Poisons, and obtained the drug using that prescription from Chemist Warehouse Sandgate;
3. Charge 3 – on or about 18 July 2014 the respondent attempted to obtain Endone using a forged script;
4. Charge 4 – on or about 18 July 2014 the respondent forged an authority prescription for Endone 5mg 20 tablets and obtained the drug from Good Price Pharmacy, Deagon;
5. Charge 5 – the respondent failed to notify the National Board that she had been charged with criminal offences punishable by 12 months imprisonment or more; and
6. Charge 6 – the respondent failed to disclose that she had forged an authority prescription and obtained the drug using that prescription to the Queensland Police Service, her employer, the Australian Health Practitioner Regulation Agency, Dr Fredrick, Dr Chung and Dr Doucas.

11. [11]
    The HO Act adopts the definitions of professional misconduct and unprofessional conduct that are contained in the Health Practitioner Regulation National Law Act 2009 (“National Law”), Schedule 1, s 5.
12. [12]
    The limbs of the definition of "professional misconduct" relied on are that the respondent:

    1. Engaged in unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and/or
    2. Engaged in conduct that is inconsistent with the practitioner being a fit and proper person to hold registration.
13. [13]
    The limb of the definition of “unprofessional conduct” relied on is that she engaged in conduct of a lesser standard then that which might reasonably be expected of the health practitioner by the public or the practitioner professional peers. 

Relevant facts and circumstances

14. [14]
    The respondent is a 39 year old nurse who graduated with a Bachelor of Nursing from QUT Brisbane in 1998.
15. [15]
    She obtained considerable experience in haematology, having performed work in the United Kingdom between 2001 and 2006, and at the Royal Brisbane Hospital Bone Marrow Transplant Unit from 1999 to 2001 and from 2007 to 2012.
16. [16]
    Having been made redundant from that unit in 2012 she found other nursing work and in due course commenced work as a registered nurse at ICON Cancer Care, Wesley Hospital on 7 April 2014.
17. [17]
    Soon after this, on 18 April 2014, she committed the offending behaviour that is the subject of these proceedings.
18. [18]
    Investigation established that she stole a script pad from Dr Fanning, forged 10 prescriptions for Endone and presented them at three different pharmacies.
19. [19]
    The original complaint was made by a pharmacist who suspected misconduct in relation to the presentation of the prescriptions, and was under a duty to report it.  It was a mandatory complaint to the office of the Health Ombudsman under s 142 of the National Law.
20. [20]
    Her employer dismissed her on 23 July 2014.
21. [21]
    A police investigation ensued during which the respondent told a series of untruths which were qualified or changed each time she was confronted with evidence that showed the situation to be otherwise.
22. [22]
    She was charged with one count of fraud under s 408C(1)(d) of the Criminal Code and one count of stealing under s 398 of the Code.  On 11 August 2014, she pleaded guilty in the Sandgate Magistrates Court and was fined $500.  She was given the benefit of non-recording of the convictions.
23. [23]
    Following dismissal by her employer in July 2014 she found employment through a deputising agency, working shifts at various locations, always with a colleague present.
24. [24]
    On 8 October 2014 the Nursing and Midwifery Board of Australia (“Board”) took "immediate action" by imposing conditions upon the respondent, including that she provide reports from her employer every three months, that she not practise so as to be in charge of a shift, that she notify the Board about her engagements, that she attend for urine drug screening under the National Urine Drug Screening Policy, that she provide written reports by her treating psychiatrist and GP every three months, and that all costs and expenses relating to those terms be borne by her.
25. [25]
    She continued to work under those conditions, albeit with some difficulty and frustration, until 12 April 2016, when on the advice of her lawyer, she surrendered her registration as a nurse.
26. [26]
    Her medical practitioner, Dr Doucas, stated that she had never previously showed signs of substance abuse or drug dependency, and he thought she would be unlikely to reoffend.
27. [27]
    Her explanation for taking the drugs was that she intended to self-medicate to manage severe pain from a diagnosed condition. The existence of a significantly painful condition was supported by medical practitioners who were treating her.
28. [28]
    She has no history of notifications to the Australian Health Practitioner Regulation Agency (“AHPRA”) prior to being charged with these offences, and has advised that she had no adverse disciplinary action whilst practicing in the United Kingdom.
29. [29]
    She is currently unemployed and has enrolled in a Diploma of Counselling at an institute, which she commenced on 4 April 2016.

Discussion

30. [30]
    The primary offending conduct is listed in charges 1 to 4. But first it is convenient to mention charges 5 and 6.

Charge 5 – duty to report conviction

31. [31]
    Charge 5 alleges a breach of a statutory duty to report criminal charges and convictions. The point of the statutory provision^[1] is to enable the professional board to consider circumstances that might bear on the fitness of a registered member to practise.  Such a charge is secondary to the original misconduct that grounds the relevant charge and conviction, and whilst failure to report may justify a finding of unprofessional conduct, its usual effect is to add a relatively minor aggravation to the totality of the conduct that has to be considered. Having regard to the confused state that the respondent has shown throughout the conduct of these proceedings, that should be the effect of charge five in the present matter.

Charge 6 – duty of candour

32. [32]
    Charge number 6 raises problems.  I have concluded that it is so broad that it would be unsafe for this Tribunal to make a separate finding of professional misconduct based upon it.  In reality it is a charge that she failed to turn herself in to the police, to her employer, to AHPRA and to her doctors by making voluntary disclosures of her conduct to all those persons.
33. [33]
    In support of charge 6, Counsel for the applicant Health Ombudsman referred to the codes by which nurses agree to practise,^[2] and contended that the respondent was under an ethical obligation to disclose acts relevant to her practice, citing Re Hampton.^[3]  That however was a case concerned with a duty founded upon a particular occasion, namely upon an application by a person to the Court for admission as a solicitor. In that situation a special level of candour and disclosure has always been necessary.
34. [34]
    The submission continued that the respondent was guilty of providing misleading answers and information in the course of the investigation and of continuing to breach her duty of candour in her dealings with police, her employer and the health assessment process undertaken by AHPRA, and the Board and her treating practitioners. However charge 6 was not formulated with respect to any occasion or situation. There is only a broad allegation of failure to discharge the positive duty to make a voluntary confession to all of the named agencies and law enforcement authorities.
35. [35]
    Whilst nurses are under a duty to observe a high level of candour in their dealings with their professional board and other regulatory agencies, charge 6 assumes far more extensive duties than this. 
36. [36]
    It also lacks proper particulars. It is true that the evidence reveals discrepancies in the versions of events given by her, and that she frequently made incorrect statements and false denials.  But these instances of alleged lack of probity were not particularised in charge 6, or elsewhere.  It is not uncommon for particulars of this nature to be specified in charges, as for example when practitioners attempt to cover up their misconduct and who provide false information to their board, thereby aggravating the situation, and revealing a separate level of misconduct.  An example of this is Psychology Board of Australia v Wakelin.^[4]  However, charge 6 fails to do this.
37. [37]
    If acts of this kind are to be relied on as amounting to professional misconduct or unprofessional conduct they need to be identified or particularised so that procedural fairness may be accorded.^[5]  The only charge of this kind that has been particularised in the present case is charge 5, which relies on the respondent's failure to observe a specific statutory duty to report her charges and convictions to the Board.^[6]  That charge has been adequately proven.
38. [38]
    But apart from that, the only relevance of the false statements and self-excusing behaviour during her response to these matters is to demonstrate a lack of remorse and to confirm the impression that at no stage has she come to terms with her offending behaviour.
39. [39]
    Those last mentioned considerations may be highly relevant to the issue of sanction,^[7] but they do not support a separate charge.

Mental health problems

40. [40]
    Mental health problems were mentioned by the respondent, including bipolar disorder, and her condition was said to be deteriorating.  Such matters are often two-edged in cases of this kind, especially when fitness to practise is an issue. However, in the present matter there is little point in assessing her present fitness or prognosticating when she may be mentally healthy enough to be safely re-registered.  It is not an issue raised by the charges nor is it relied on as excusing her conduct.  Such issues may be matters for the Board in its capacity as a registering authority when and if any future application is made for registration.  It is enough to note that she has significant problems on this score, and that they are not raised as an excuse for her conduct.

Lack of Insight

41. [41]
    The evidence suggests little insight or remorse. Rather, it suggests confusion and instability.  Even the urine testing conditions, which should have been seen by her as a necessary rehabilitative step if she were to remain in practice, appear to have caused her to feel scrutinised and to deteriorate mentally.  Her letter of 7 April 2016 still seeks to excuse herself to some extent. Her surrender of registration on 8 August 2016 was reluctant, and  the result of legal advice to minimise further  proceedings and liability.

Main offending conduct

42. [42]
    The basis of the case consists of her acts of stealing, forgery and obtaining of illicit drugs.  Conduct of this kind is totally unacceptable for any practising nurse, and it plainly satisfies those portions of the definition of professional misconduct with which she has been charged.

Deterrence

43. [43]
    The protection of the health and safety of the public, and the maintenance of public trust in the profession are basic considerations.  Principles of general and personal deterrence are highly relevant in a case such as this.
44. [44]
    Nurses must know that the almost certain consequences of such conduct include not only loss of registration for a significant period, but disgrace through the recording of their misconduct on a public register, and that they may never practise again unless they can persuade the accreditation authority that they will not relapse into like conduct.

Range of sanction

45. [45]
    Some comparative cases were cited, including Black,^[8] Robertson,^[9] and Mahon.^[10] Of these, Mahon seems the most helpful.  The respondent in that case stole a vial of Morphine from her workplace for self-administration and also stole four to six boxes of Oxycontin tablets from a patient.  Mahon showed some insight into her offending conduct.  The tribunal observed that had she not already been prevented from practising for two and a half years, a six month prohibition from practice would have been insufficient.
46. [46]
    The cases show a fairly wide range of periods which might be regarded as appropriate for cancellation, suspension or postponement as a result of the offending conduct. They usually range from six months to three years. This may now be discerned from a large number of cases.
47. [47]
    The applicant submits that there should be a disqualification from applying for registration for nine months from the date of this order.
48. [48]
    The applicant further submits that this is an appropriate case for the inclusion of a reprimand along with a disqualification. As observed in Roos,^[11] although cancellations and suspensions imply a higher degree of sanction than a reprimand from the Board, there is no reason why they cannot be made together. In such a situation the inclusion of a reprimand may well seem pointless or unnecessary, but that is a matter for individual preference in individual cases. The present case seems an appropriate one for the inclusion of a reprimand with the postponement for reapplication.
49. [49]
    In relation to the period of disqualification, the respondent's voluntary cancellation of registration means that she has already been deprived of registration for more than seven months.
50. [50]
    General deterrence of such conduct is unlikely to occur unless loss of registration for at least 12 to 18 months is known to be a probable consequence of such activity.  It follows that the proposed sanction tends to be on the light side.  But taking into account the fact that seven months registration has already been lost, it falls within the proper range.  With the benefit of advice from the assessors, I am prepared to order the suspension proposed, and to include a reprimand in the order.

Costs

51. [51]
    The applicant Health Ombudsman seeks an order that the respondent nurse pay his costs in this matter.
52. [52]
    Helpful submissions have been made on behalf of the applicant, but I have not had the benefit of adversarial submissions. The following observations may therefore need reconsideration in a future case with the benefit of full argument.
53. [53]
    Set out hereunder are the reasons that have persuaded me in the present matter that the parties must bear their own costs.
54. [54]
    Society has changed markedly from the time when professional groups voluntarily enforced their own ethical standards on their members, and when the State took no part in the process.
55. [55]
    Substantial changes have also occurred since the time when the Courts first became involved in professional discipline cases. Since at least the time of Dr Allinson's case,^[12] the courts applied the system of costs that applied generally to civil cases, with costs generally following the event. A protective attitude developed in relation to professional authorities that brought such cases to the Court, and almost as of course an erring practitioner would be ordered to pay the professional authority's costs. It even became common for the costs of investigation to be added in to the cost of the actual litigation.
56. [56]
    Understandably those practices^[13] and attitudes continued when tribunals started to exercise similar functions, especially when there was an express and unfettered power given to the Tribunal to order costs in such cases. That initially was the position when the National Law was brought in in 2009, s 195 of which gave the Tribunal the power to "make any order about costs it considers appropriate."
57. [57]
    Section 195 was repealed in 2013 when the HO ACT wrought extensive changes to the administration of the law applicable to health practitioners across the board, including many amendments to the National Law. This legislation also centralised the control of disciplinary proceedings concerning health practitioners in the Office of the Health Ombudsman.
58. [58]
    My initial impression as to the repeal of s 195 was that this must have been an unintended blunder by those who drafted the legislation.^[14] But on reflection such an impression was quite unjustified. The proper assumption is that it was intended and deliberate, and that those responsible for the legislation (Parliament) recognised that considerable change had occurred since the prevailing practices and principles in relation to costs in such matters had developed. The introduction of a further entity, the Health Ombudsman, into the process was a further relevant factor justifying a different approach to the question of costs in such matters.
59. [59]
    The result of the legislation is that the parties must each pay their own costs unless the "interests of justice require"^[15] a costs order to be made against a party. This is the approach that has been laid down for QCAT from its inception,^[16] and the consequence of the repeal of s 195 is to make that approach applicable to health disciplinary matters too.
60. [60]
    The application of similar legislative provisions for costs was considered by the Court of Appeal in Tamawood,^[17] a commercial (building) case in the former Commercial and Consumer Tribunal, in which Keane JA observed:

In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome.

61. [61]
    The observations were general, and the statutory framework was similar to those now applicable to QCAT. Consideration is therefore necessary as to whether there are "countervailing considerations" in the present case.
62. [62]
    This is not a commercial case. It is in QCAT's disciplinary jurisdiction relating to health workers.
63. [63]
    The main objectives and guiding principles of the disciplinary acts governing health providers, are to provide for the protection, health and safety of the public (see more fully s 3 and s 4 of the National Law, and HO Act, s 4). An express object of the QCAT Act is "to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick". Section 4 mandates that the Tribunal must "ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice".^[18]
64. [64]
    Different factors may well operate in commercial litigation to make it in the interests of justice to order costs against the losing party to those in cases in the disciplinary jurisdiction concerning health workers. The objectives of the two classes of litigation are entirely different, and so too may be the criteria that help to determine whether it is in the interests of justice to make a costs order.
65. [65]
    The nature of the disciplinary jurisdiction itself has also markedly changed. Persons who are now subject to this disciplinary regime include not only "health practitioners" but also all "health service providers".^[19] The latter term means any person who provides a health service, and "health service" is widely defined.^[20] The majority of persons covered by the legislation are employees on wages, many of whom (nurses included) exist on relatively low incomes. This is a far cry from the time when the only recognised "professionals" subject to disciplinary proceedings were mainly upper income earners.
66. [66]
    Further, the quantum of costs in such proceedings appears to have escalated under the influence of factors such as the increasing complexity of the statutory schemes that regulate the health industry, increasing bureaucratic control, an increase in the number of bureaucracies involved in such proceedings, and other internal litigation factors, including the proliferating usage of copying machines.
67. [67]
    In my experience costs assessments of $40,000 and above are not uncommon.
68. [68]
    The majority of persons who are now subject to proceedings of the present kind would find such an award quite crippling. In most such cases (including the present), the practitioner's registration is or has been cancelled or postponed, and any employment within the practitioner's field of expertise has been to some extent hampered by conditions which may cause them to seek employment outside their field of qualification. Whenever there is a cancellation or postponement, he practitioner will continue to be economically disadvantaged for a further period.
69. [69]
    One cannot help noticing the marked discrepancy between the sanction that criminal Courts impose on such a practitioner for an offence which grounds the disciplinary action, and that which a civil Tribunal imposes on the practitioner when it makes a costs order. This simply highlights the apparently disproportionate consequences of a disciplinary costs order. In the present matter the Magistrates Court punished the respondent by fining her $500. Sitting as a non-punitive Tribunal I am now asked to make an order that would have astronomically larger effect. In all such cases tribunal members solemnly recite that this jurisdiction is not "punitive", merely "protective",^[21] but the practical effect of a costs order often belies this.
70. [70]
    This, along with the imposition of what is regarded as an appropriate sanction, may bring about a grossly disproportionate result having regard to the practitioner's overall conduct.
71. [71]
    It is possible to reach the view that a disproportionate result, such as that described above, is not in the interests of justice.
72. [72]
    In the common law courts the capacity of a losing party to pay was generally disregarded as irrelevant. However, the former approach has been statutorily replaced with a discretion where the starting place is that the parties will bear their own costs unless the interests of justice otherwise require. A crippling or punitive effect of such an order upon a party is in my opinion capable of being a relevant factor in determining whether it is in the interests of justice to make such an order.
73. [73]
    Having seen the size of the files that have been generated I have little doubt that a costs order would be likely to impose such a burden on the respondent nurse.
74. [74]
    Many cases in this jurisdiction, including the present one, are not typical examples of adversarial litigation. Commonly, there is a respondent who accepts that he or she has transgressed and cannot avoid undesirable consequences. Commonly by the time a referral is made to QCAT the respondent is attempting to cooperate with a view to minimising the consequences, and, conscious of the benefit of showing a cooperative attitude is ready to accept the minimum sanction that the Board or Health Ombudsman is willing to negotiate. But costs continue to multiply because the Board or Health Ombudsman must prove its case to QCAT. Even consensus at a compulsory conference will not suffice. It is still necessary for QCAT to assemble a four member tribunal, consisting of a judicial member^[22] and three qualified assessors,^[23] and for copies of all relevant material to be supplied to all those persons. Even when the parties have agreed that the matter may be determined on the papers, those persons must meet to conduct the hearing. The present case is such a case.
75. [75]
    Even in a relatively simple uncontentious matter like the present, costs tend to escalate to such an extent that the overall result of a costs order may seem plainly unjust.
76. [76]
    Factors favouring a costs order may well exist when a respondent protracts the litigation by mounting an unmeritorious defence or by needlessly complicating the litigation. But the present case is not of that kind.
77. [77]
    There will also be cases where it will be desirable to place some limitation or cap upon an award of costs, or to expressly limit costs to a particular aspect or issue in the litigation. QCAT's discretion to award costs is a wide one, and the QCAT Act encourages the Tribunal to fix the costs itself.^[24] I have in another case expressed the view that the discretion "is an extremely wide one and is to be exercised robustly".^[25] In the present case, if I were otherwise inclined to make an award of costs, there would need to be some limitation on the costs, because the applicant Health Ombudsman failed in relation to charge number 6, and substantial submissions were addressed to that issue. Further, other issues such as to the present fitness of the respondent to practise were raised, which do not arise for consideration in this case. However, I do not see this case as one requiring an order for costs, even limited costs, against the respondent.
78. [78]
    The applicant's submissions include the statement that registrants' fees are paid to AHPRA with "a percentage" paid to the Health Ombudsman on ministerial direction on an annual basis, and that, like the Boards, the Health Ombudsman's disciplinary functions are funded by registrants' fees.
79. [79]
    This seems a rather long bow to draw. The submission was no doubt an attempt to stand the applicant Health Ombudsman in the shoes of the relevant professional board so that the Health Ombudsman would be accorded the same sympathetic approach that was traditionally accorded to boards. However, I am not satisfied that the Health Ombudsman does stand in those shoes, and for reasons stated above, the law, practice and circumstances have changed so substantially that I do not think that professional boards should any longer be regarded as in a favoured position vis a vis a practitioner when costs issues are to be decided.
80. [80]
    The matters mentioned in the above discussion satisfy me that circumstances have substantially changed since there was a virtually automatic "costs will follow the event" approach in matters of this kind, and that there are sufficient countervailing circumstances to suggest it would not be in the interests of justice to require the respondent nurse to pay the Health Ombudsman's costs of these proceedings. These include:

    1. The disproportionate and punitive effect of making a costs order in this case;
    2. The historical and legislative changes which have occurred in both the composition of practitioners in the health industry, to its administration and regulation, and to the legislation which this Tribunal is now subject. One consequence of these factors is the tendency for costs orders to become oppressive;
    3. The conduct of the litigation. The respondent did not join issue concerning her guilt of professional misconduct, or conduct the litigation in such a way as to cause the cost of the litigation to be increased;
    4. The multiplication of bureaucracies in the process, and the fact that the applicant Health Ombudsman which seeks the costs order does not fully stand in the shoes of a professional board;
    5. The nature and objectives of the disciplinary jurisdiction; and
    6. The probability of such an order being a crippling burden in this case.
81. [81]
    The relevant statutory provisions only permit me to make an order requiring the respondent to pay the applicant's costs "if the Tribunal considers the interests of justice require it to make the order".^[26]
82. [82]
    I do not consider that the interests of justice require me to do so.
83. [83]
    Although no positive order is necessary, it is desirable that an order be made that the parties must bear their own costs for the proceedings, to signify that the issue of costs has been dealt with.

Orders

84. [84]
    The Tribunal makes the following orders:

1. Under s 107(2) of the HO Act, findings are made that:

1. (a)
   the respondent has behaved in a way that constitutes professional misconduct as alleged in charges 1, 2, 3 and 4, in that she engaged in unprofessional conduct that is substantially by the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience;
2. (b)
   the respondent has behaved in a way that constitutes unprofessional conduct as alleged in charge 5; and
3. (c)
   the respondent has no case to answer in relation to charge 6, and no further action is to be taken in relation to that matter.

2. The respondent is reprimanded;
3. The respondent is disqualified from applying for registration as a registered health practitioner for nine months from the date of this order; and
4. The parties must pay their own costs of these proceedings.