Health Ombudsman v Macdonald
[2016] QCAT 473
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- Unreported Judgment
- Health Ombudsman v Macdonald[2016] QCAT 473
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Health Ombudsman v Macdonald[2016] QCAT 473
Health Ombudsman v Macdonald[2016] QCAT 473
CITATION: | Health Ombudsman v Macdonald [2016] QCAT 473 |
PARTIES: | Health Ombudsman (Applicant) |
v | |
Dorothy Macdonald (Respondent) |
APPLICATION NUMBER: | OCR043-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 22 November 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Hon J B Thomas AM QC, Judicial Member Assisted by: Dr Jane Truscott Mr Andrew Ian Urquhart Mr Trevor Leslie Jordan |
DELIVERED ON: | 19 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where respondent practitioner stole restricted drugs from her employer and was subsequently convicted of an offence relating to the conduct – where it is alleged and admitted that the practitioner engaged in professional misconduct – where a statement of agreed facts and joint proposal on sanction are submitted – whether the practitioner engaged in professional misconduct – whether the proposed sanction is appropriate Barker v Queensland Health Department [2016] QCAT 230, considered Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403, considered Nursing and Midwifery Board of Australia v Antley [2016] QCAT, considered Health Ombudsman Act 2013 (Qld), s 96(1), s 103(1)(a), s 107 |
REPRESENTATIVES: | |
APPLICANT: | Office of the Health Ombudsman for the applicant |
RESPONDENT: | Lawler Magill for the respondent |
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
Jurisdiction
- [1]This is a referral by the Health Ombudsman of complaints concerning the conduct of a registered nurse. The referral is made under s 103(1)(a) of the Health Ombudsman Act 2013 (Qld) (“HO Act”).
- [2]The conduct in question occurred in August 2013. The respondent stole restricted drugs from her employer and was subsequently convicted of an offence relating to that conduct.
- [3]The original notifications concerning her conduct were given to the Australian Health Practitioner Regulation Agency (“AHPRA”) in August 2013 which referred them to the Health Ombudsman in September 2014 under s 310(3) and s 310(4) of the Health Practitioner Regulation National Law Act 2009 (Qld) (“National Law”).
- [4]Those notifications are deemed to be complaints under the HO Act,[1] and they have now been referred to QCAT.
- [5]The HO Act is the enabling Act that confers jurisdiction upon QCAT to proceed with the referral under s 9 and s 10 of the QCAT Act. This means that this Tribunal is exercising its original jurisdiction under those sections.
- [6]The orders that may be made are those mentioned in s 96(1) and s 107 of the HO Act.
The charges
- [7]All charges stem from the respondent's stealing of a restricted drug in August 2013. Each charge alleges professional misconduct.
- [8]The particulars of the respective charges are:
- Charge 1 – On 1 August 2013 the respondent stole 11 boxes (110 tablets) of Seroquel (the drug Quetiapine), a restricted drug in Schedule 4 of the Poisons Standard 2013 under the Health (Drugs and Poisons) Regulation 1996 (Qld) from her employer;
- Charge 2 – On 16 January 2014 the respondent was convicted of unlawful possession of restricted drugs;[2] and
- Charge 3 – the respondent intended to supply said drugs to her niece.
Facts
- [9]The respondent is a registered nurse 63 years of age, and has been registered for approximately 40 years.
- [10]On 1 August 2013, whilst working as a nurse at Q-Medical Centre, Woodridge, the respondent took without authority or permission of her employer 11 boxes (110 tablets) of Seroquel from the drug cupboard at that centre.
- [11]Three days later the respondent was a passenger in a car being driven by her husband when the car was stopped for a random breath test. A search of the car revealed a plastic bag containing the Seroquel.
- [12]Seroquel is an atypical antipsychotic drug used to treat conditions such as bipolar disorder, recurrent major depressive disorder, generalised anxiety disorder and schizophrenia. It is only available with a doctor's prescription. It may interact with other medicines and can have significant adverse side-effects. It is a schedule 4, prescription only, restricted, non-PBS drug,[3] and the quantity taken would have been of appreciable value.
- [13]Police seized the drugs and arrested the respondent. She claimed the medication belonged to her, and that it was for her daughter.
- [14]After being detained she changed her version, alleging that the Seroquel was for her niece who did not have a prescription, and admitting that she had taken the drugs from her employer's cupboard without permission.
- [15]She subsequently telephoned her employer's principal (Ms Preston), claiming that her niece had been prescribed Seroquel, and that she took the drugs because her niece could not afford to buy the drug and she did not want her niece to suffer from withdrawals. She said she intended to give them to her niece the next time she visited.
- [16]During subsequent investigations, she stated that she would have supplied the full quantity (11 boxes) to her niece at the one time.
- [17]There may be some doubt about the truthfulness of the admissions, as respondent, when required to provide the name of her niece to the Nursing and Midwifery Board of Australia (“the Board”), declined to do so, inter alia, claiming privilege against self-incrimination. This apparently frustrated further investigation. Consequently, whilst one may be sceptical about her story, neither the Board nor the Health Ombudsman is in a position to suggest any other explanation. This version then is the basis upon which this Tribunal is to consider the question of appropriate sanction.
- [18]The police charged the respondent with unlawful possession of restricted drugs, and with stealing as a clerk or servant. The latter charge was subsequently withdrawn on the basis that her employer did not wish to pursue the charge. She was convicted in the Pine Rivers Magistrates Court on 16 January 2014 under s 204 of the Health (Drugs and Poisons) Regulation 1996, and released upon entering into a recognisance of $500 conditioned that she be of good behaviour for a period of 12 months, with no conviction recorded.
- [19]She remained employed by Q-Medical.
- [20]On 11 September 2014 AHPRA notified the respondent of proposed "immediate action" through imposition of conditions on her registration, including requirements of supervised practice, regular reports and notification to employers of relevant conditions.
- [21]Over the ensuing two years she complied with AHPRA's obligations, took part in staff training exercises, attended education sessions on a wide range of topics and engaged in continuing professional development.
- [22]She then sought a review of the conditions, and on 12 November 2015, the Board's Committee removed the restrictions.
- [23]On 22 July 2016 she resigned from her employment with Q-Medical with whom she had by then been employed for six years. She is currently unemployed.
- [24]The respondent has no other disciplinary history or recorded criminal history.
Discussion
- [25]The parties have agreed upon orders that they regard as appropriate. However, it is necessary for the tribunal to determine, pursuant to s 107 of the HO Act, whether a recognised ground for disciplinary action is established, and to be satisfied that the proposed orders are appropriate.
- [26]The joint submissions include reference to codes and guidelines, and in particular, to the Nursing and Midwifery Board of Australia’s Code of Ethics for Nurses in Australia, the Code of Professional Conduct for Nurses in Australia and the International Council of Nurses Code of Ethics for Nurses.
- [27]It is not necessary to resort to those codes in order to determine that the conduct in question was unprofessional, and substantially below the standard reasonably to be expected of a registered health practitioner of equivalent level of training or experience. 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.
- [28]The respondent admitted that she would have supplied the full quantity (11 boxes) to her niece at the one time. This suggests an element approaching recklessness in the manner in which she claimed she intended to deal with the drug. A nurse's ability to deal appropriately with drugs is an integral part of the practice of nursing.
- [29]The combination of charges reveals professional misconduct within the appropriate definition. The three charges are really three separate aspects or consequences of the one transgression or misadventure.
- [30]So far as charge 2 is concerned, the respondent notified the Board of the criminal charge within 25 days of being charged and pleaded guilty. She subsequently cooperated with the applicant in achieving early resolution of the proceedings.
- [31]She showed good faith and competence in her compliance with the conditions that were imposed upon her at work over a 26 month period. This supports the view that she now has some insight into her offending behaviour.
- [32]
- [33]In Mahon, the nurse stole a vial of Morphine from her workplace for self-administration. She also stole 4 to 6 Oxycontin tablets from a patient pack, replacing them with crystal tablets. Each time she removed such a tablet, the patient was denied the analgesic benefit. The nurse was reprimanded and disqualified from applying for registration for six months. It was noted that the six month period would have been insufficient had the practitioner not already been prevented from practicing for two and a half years before the hearing.
- [34]The respondent's conduct and circumstances are less troubling then those of Antley, in which the practitioner was disqualified from applying for registration for nine months, having already suffered seven months loss of registration in consequence of her conduct. She was additionally reprimanded but was not ordered to pay costs. The conduct in question in the present case involves overall a single transgression. Its seriousness has already been noted as including elements of dishonesty and irresponsibility.
- [35]The respondent has indicated her consent to an order being made for costs against her, which will result in a very heavy financial burden.
- [36]The orders to which the parties have agreed are in my view, with the benefit of consultation with the assessors, within an acceptable range.
Orders
- [37]The following orders will be made:
- A finding is recorded that the respondent on 1 August 2013 and on 16 January 2014 was guilty of professional misconduct in that she engaged in unprofessional conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level.
- The respondent’s registration is suspended for a period of six months from the date of this order.
- The respondent is to pay the applicant Health Ombudsman’s costs of the proceedings as agreed, or as assessed by a costs assessor agreed to by the parties, or in default of such agreement as appointed by the Health Ombudsman, on the standard basis of the District Court scale of costs.
Footnotes
[1] HO Act, s 36 and National Law, s 146.
[2] The court order (a s 19 good behaviour recognisance) was made on 16 January 2014. In the absence of disadvantage of the respondent the charge will be treated as amended to allege the correct date and order.
[3] Schedule for Poisons Standard 2013 under the Health (Drugs and Poisons) Regulation 1996 (Qld).
[4] Barker v Queensland Health Department [2016] QCAT 230.
[5] Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403.
[6] Health Ombudsman v Antley [2016] QCAT.