The Health Ombudsman v Jamieson
[2017] QCAT 172
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- Unreported Judgment
- The Health Ombudsman v Jamieson[2017] QCAT 172
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The Health Ombudsman v Jamieson[2017] QCAT 172
The Health Ombudsman v Jamieson[2017] QCAT 172
CITATION: | The Health Ombudsman v Jamieson [2017] QCAT 172 |
PARTIES: | The Health Ombudsman (Applicant) v Stepheny Eliza Jamieson (Respondent) |
APPLICATION NUMBER: | OCR228-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Hon J B Thomas AM QC, Judicial Member Assisted by: Mr Michael Halliday Ms Ibi Patane Ms Jocelyn Toohill |
DELIVERED ON: | 5 June 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where respondent practitioner stole three boxes of antibiotics from her place of employment – where the practitioner used the antibiotics to treat her son’s recurrent medical condition – where the respondent was convicted of 1 count of stealing as a servant in the Magistrates Court in relation to that conduct – where no conviction recorded in respect of that charge – where respondent failed to notify the National Board of that charge – where respondent made a false declaration when renewing her registration in respect of that charge – where respondent believed she did not need to disclose the charge as no conviction was recorded – whether the practitioner engaged in professional misconduct or unprofessional conduct – whether reprimand is an appropriate sanction – whether an order as to costs should be made Health Ombudsman Act 2013 (Qld) ss 97, 103(1)(a), 104, 107 Health Practitioner Regulation National Law Act 2009 (Qld) ss 5, 130(1), 130(3)(a)(i) Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 10, 16, 32 Health Ombudsman v Antley [2016] QCAT 472 Health Ombudsman v Macdonald [2016] QCAT 473 |
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
Jurisdiction
- [1]This is a disciplinary proceeding against a former registered nurse.
- [2]The incident that led to the proceeding occurred in 2014 when the respondent stole three boxes of antibiotics at Herberton Hospital where she worked.
- [3]The proceeding is a referral under section 103(1)(a) of the Health Ombudsman Act 2013 (‘HO Act’) by the Health Ombudsman director of proceedings. This means that it is a proceeding in QCAT’s original jurisdiction under the QCAT Act.[1]
- [4]Section 97 of the HO Act requires the Tribunal to be constituted by a judicial member, and division 6 of the QCAT Act requires assessors to be appointed to assist the Tribunal.
- [5]The decisions in orders that may be made are those stated in sections 107(2) and 107(3) of the HO Act.
Charges
- [6]There are three charges, the first being of professional misconduct, and the other two of unprofessional conduct.
- [7]Charge 1 is particularised as follows.
- On 15 July 2014, the respondent stole three boxes of antibiotic medication from her place of employment, namely the Herberton Hospital.
- On 5 August 2014, the respondent pleaded guilty in the Atherton Magistrates Court to 1 charge of stealing by clerks and servants.
- The respondent was sentenced, without recording a conviction and entered into a recognisance in the sum of $2,000, conditioned to be of good behaviour for a period of 2 years.
- [8]Charge 2 is that the respondent failed to notify the National Board in accordance with sections 130(1) and 130(3)(a)(i) of the Health Practitioner Regulation National Law Act 2009 (Qld) (‘National Law’), namely that on 15 July 2014 the respondent was charged with one offence of stealing by clerks and servants, contrary to section 398.6 of the Criminal Code Act 1899 (Qld).
- [9]Charge 3 is that on or about 28 March 2015, the respondent made a false declaration on her online application for registration renewal, in that she declared that the information that she provided in her renewal form was true and complete. The respondent ticked “no” to the question “since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?” knowing that she had been charged and convicted for the offence stated above. In this context, it is noted that criminal history is defined in section 5 of the National Law to include every charge made against a person for an offence and every plea of guilty or finding of guilt by a court.
- [10]The applicant Health Ombudsman also seeks a finding that “the respondent’s conduct in respect of all charges amounts to professional misconduct as defined in limb (b) of the definition of that term in section 5 of the National Law in that she engaged in more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience."
- [11]In short, the totality of the charges is relied on, if necessary, to justify a finding of professional misconduct.
Facts
- [12]The respondent is 67 years old, having been born on 19 October 1949.
- [13]The respondent was registered as a registered nurse and a registered midwife between September 1970 and May 2016, when she surrendered her registration. She has not sought registration since.
- [14]The respondent has a long history (46 years) of registered practice, during which the present complaint is the only recorded notification incident.
- [15]The respondent’s more recent employment history includes work as a registered nurse with the Cairns and Hinterland Hospital and Health Service since January 2003.
- [16]In November 2011, the respondent was employed on a causal basis, stationed at the Atherton and Herberton Hospital, and she was so employed at the time of the relevant incident on 15 July 2014.
- [17]The respondent’s employment was quickly terminated following an internal investigation, and she surrendered her registration on 13 May 2016.
- [18]The respondent is currently employed as an unregistered health practitioner in the position of patient care assistant through Mediserve Nursing Agency in Darwin.
- [19]In relatively recent times (since about 2003) the respondent has revealed aberrant conduct in that she has committed a succession of minor thefts.
- On 6 March 2003 she stole a pack of Maltesers from a Cairns Woolworths store and was charged and convicted of a regulatory offence and fined $75, with no conviction recorded.
- On 5 November 2005 she stole office equipment worth $90, three packs of Fuji film, shoes and jewellery from the Cairns Shopping Centre. She pleaded guilty in the Cairns Magistrates Court to four charges of stealing and was placed on 12 months’ probation and ordered to pay restitution of $5.98.
- [20]The present matter is a further example of stealing. On 15 July 2014, she stole three boxes of antibiotic medication from the Herberton Hospital. She was in due course convicted of an offence of stealing as a servant, and on 5 August 2014 was sentenced without recording a conviction and entered into a recognisance of $2,000 to be on good behaviour for a period of 2 years.
- [21]At 8:15 am on 15 July 2014, the respondent approached another nurse at Herberton Hospital and asked her to open a room known as the drug cupboard. The nurse opened the cupboard and asked what she was looking for. The respondent took hold of the nurse's arm saying, “You don’t want to see this” and walked her out the door.
- [22]The respondent then took three boxes of antibiotics, namely one packet of amoxicillin (500 mg), one packet of staphylex (500 mg), and one packet of cephalexin (500 mg).
- [23]The other nurse reported the matter, and the police were called. The respondent voluntarily took part in a recorded interview and made admissions. She said that she took the antibiotics for her 25-year-old son who had developed an abscess on his right ear and was on the same antibiotics when he had come to the hospital for treatment. He did not complete the course, and then told her that the abscess had returned, but that he did not want to go back to the hospital.
- [24]The respondent stated that she was going to see her son’s doctor, but when she came up to the hospital she did not wait, and just took it. She was sorry that she took the antibiotics because she had let people and herself down.
- [25]Following the incident, she failed to notify the National Board of the fact that she had been charged or convicted. Her explanation is that she did not realise that she had to notify the Board of the finding of guilt, as there was no conviction recorded.
- [26]Subsequently, on 28 March 2015 when the respondent forwarded an online application for renewal of registration, she answered “no” to the question “since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?” Again, her explanation is that she did not realise that she had to declare the finding of guilt, as there was no conviction recorded.
Discussion
- [27]The stealing of medical supplies by a nurse from his or her place of employment is a serious act of misconduct. The present case, which involves the taking of some fairly familiar antibiotics, does not raise quite the same level of concern as the taking of illicit drugs, or patently dangerous, habit-forming drugs. The respondent’s motivation (a desire to assist her son) is less concerning than the common motivations of the taking of various forms of prohibited drugs. But it was still an act of plain theft, and there was an intent to allow some of them to be taken without qualified medical supervision. While this conduct lies at the lower end of examples of this type of misconduct, it strikes directly at the proper provision of medical services, and I have no hesitation in concluding that such a theft may be characterised as professional misconduct.
- [28]Charges 2 and 3 allege unprofessional conduct through contravention of section 130 of the National Law and of a subsequent incorrect statement concerning the court proceedings that had been brought against the respondent.
- [29]The respondent’s answer to those charges is that she did not realise she had to declare those details, because no conviction had been recorded.
- [30]Breaches of this kind place a burden on administrators such as professional boards, but it is also true that the legal fiction engaged in by courts when they declare that no conviction is recorded, produces fairly widespread misunderstandings both among the offenders in whose favour of such orders are made, and in the public generally. That particular process and its consequences are rarely fully understood by lay persons.
- [31]In the present context, where a health practitioner is filling out a form relating to registration or enquiry by a Board, each case must be individually assessed with a view to ascertaining the practitioner’s attitude or motivation. Possible gradations may sometimes be inferred, such as whether the practitioner acted cynically, recklessly, carelessly, in genuine ignorance, or whether the practitioner may reasonably have simply misunderstood his or her obligations.
- [32]In the present case, there is no good reason to disbelieve the respondent’s claim that she did not realise she was required to notify the charge and declare the relevant finding of guilt. In my view, charges 2 and 3, in this particular case amount, at most, to minor aggravations of the principal charge, charge 1.
- [33]Those charges, however, reveal a contravention of the National Law, and show an unduly casual attitude to obligations in this area. They are sufficient to justify findings of unprofessional conduct.
- [34]With the benefit of consultation with the assessors, I consider that the conduct in charge 1 amounts to professional misconduct within the definition of that term in the HO Act which adopts the definition in the National Law. It is therefore not necessary to resort to the other charges in order to make a collective finding of conduct amounting to professional misconduct.
Sanction
- [35]The respondent’s registration has now lapsed, and she works as an unregistered health practitioner as a patient care assistant, through an agency in Darwin. She states that she has no intention of applying for registration as a registered nurse or midwife. Eleven months of voluntary non-registration have now passed.
- [36]The respondent has demonstrated appropriate remorse and cooperation. She is now 67 years of age. The offence was a single act of aberrant behaviour in a long nursing career.
- [37]Noting the details of the offence, the present case is considerably less serious than Antley,[2] and Macdonald.[3] The proposal of the parties that the order consist of a reprimand, and that there be no order for costs, seems reasonable, and to lie within the range of response indicated in other comparable tribunal cases.
Findings and orders
- [38]The following orders will be made –
- A finding is recorded that the respondent on 15 July 2014 engaged in professional misconduct and that she 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;
- The respondent is reprimanded;
- It is ordered that there be no order for costs.