The Health Ombudsman v John Christopher Riek
[2017] QCAT 173
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- Unreported Judgment
- The Health Ombudsman v John Christopher Riek[2017] QCAT 173
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The Health Ombudsman v John Christopher Riek[2017] QCAT 173
The Health Ombudsman v John Christopher Riek[2017] QCAT 173
CITATION: | The Health Ombudsman v John Christopher Riek [2017] QCAT 173 |
PARTIES: | The Health Ombudsman (Applicant) v John Christopher Riek (Respondent) |
APPLICATION NUMBER: | OCR124-16 |
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: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where respondent practitioner stole schedule 8 medication from his employer – where the respondent was convicted of 1 count of stealing as a servant in the Magistrates Court in relation to that conduct – where respondent earlier diagnosed with ADD, major depressive disorder and generalised anxiety disorder – where evidence and submissions dealt with whether respondent impaired in practising due to suffering from a substance abuse disorder – where impairment due to substance abuse disorder not an element of any charges brought by Health Ombudsman – whether the practitioner engaged in professional misconduct or unprofessional conduct – whether Tribunal should have regard to impairment due to substance abuse disorder – whether reprimand, suspension or disqualification an appropriate sanction – whether an order as to costs should be made Health Ombudsman Act 2013 (Qld) ss 36, 96, 103, 107 Health Practitioner Regulation National Law Act 2009 (Qld) Divisions 1-4, schedule 1 Health Care Complaints Commission v Akhurst [2016] NSWCATOD 70 Health Ombudsman v Antley [2016] QCAT 472 Health Ombudsman v MacDonald [2016] QCAT 473 Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403 |
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
- [1]This is a referral by the Health Ombudsman of a notification concerning the conduct of a registered nurse. The referral is made under section 103(1)(a) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).
- [2]The relevant misconduct consisted of the respondent stealing a drug (Fentanyl) from his employer, the Princess Alexandra Hospital, and self-administering some of it. He was subsequently convicted in September 2013 of stealing as a servant.
- [3]The notification which originated these proceedings is to be treated as a complaint.[1] It was referred to the health Ombudsman on 4 November 2014.
- [4]The Health Ombudsman referred the matter to QCAT on 9 August 2016.
- [5]The orders that may be made in this matter are those referred to in section 96(1) and section 107 of the HO Act.
The Charge
- [6]Only one charge was formulated, consisting of a recital of the respondent’s original misconduct and of subsequent events and consequences. The relevant details are:
- On 13 July 2013, whilst on duty as a registered nurse, the respondent stole schedule 8 medication, namely 20 micrograms (mcg) of Fentanyl from his employer, the Princess Alexandra Hospital, Brisbane;
- He then intravenously self-administered the 20 mcg of Fentanyl in the hospital bathroom, resulting in a loss of consciousness;
- The respondent had removed the 20 mcg of Fentanyl from a syringe containing 100 mcg of Fentanyl that had been prescribed to a patient;
- The respondent replaced the stolen Fentanyl from the syringe with 20 mcg of saline fluid;
- As a result of the substitutional saline for Fentanyl, the patient was deprived of the prescribed amount of medication for pain relief;
- On 4 September 2013, the respondent was convicted in the Brisbane Magistrates Court on 1 charge of stealing by clients and servants, contrary to section 398.6 of the Criminal Code Act 1899 (Qld). The respondent was placed on a probation order for a period of 12 months and no conviction was recorded.
Facts
- [7]The respondent was born on 21 December 1980. In due course he was diagnosed as suffering from attention deficit disorder (‘ADD’).
- [8]In 1996, his father died, and he suffered depression and anxiety for which he received psychiatric treatment.
- [9]In 2002, he obtained an aged care work certificate and was working for Health Call Wesley Mission Care, providing home care services.
- [10]It was noted, in 2003, that he still needed anti-depressant medication, but no longer needed anti-anxiety medication.
- [11]By 2010, he still required psychiatric treatment, and was consulting with Dr Chung whose comprehensive report details the respondent's psychiatric history.
- [12]On 8 February 2012, at age 32, the respondent became a registered nurse, and he obtained temporary full time employment with Queensland Health, on a 12 month Transition to Professional Practice Program, as a registered nurse at Princess Alexandra Hospital.
- [13]In December 2012, the review period was extended to July 2013 following his poor attendance record.
- [14]In February 2013, he was informed that his contract would not be extended beyond July. His wife was, at that time, pregnant with twins which were born prematurely in April 2013, and who came home on 12 June 2013.
- [15]It was in the following month, on 13 July 2013, that the incident giving rise to these proceedings occurred. The details stated in the charge are all proven.
- [16]The respondent was promptly suspended from employment and his contract was terminated.
- [17]In the month following the termination of his employment, the Nursing and Midwifery Board of Australia (‘the Board’) accepted undertakings from the respondent in relation to his registration, and required him to undergo a health assessment. He undertook to work only under the supervision of a senior registered nurse with specified reporting conditions.
- [18]In the following month, on 4 September 2013, he pleaded guilty in the Magistrates Court to stealing as a servant, and a 12 month probation order was made, with no conviction recorded.
- [19]Following medical examination by Dr Prior, issues were raised as to whether he was suffering from a substance abuse disorder. Health assessment reports were obtained by the Board, and on 2 April 2014, by way of “immediate action” under the Health Practitioner Regulation National Law Act 2009 (‘National Law’) his registration was suspended.
- [20]On 21 August 2014, the Australian Health Practitioner Regulation Agency (AHPRA) notified the Office of the Health Ombudsman of its belief that the respondent’s conduct constituted professional misconduct. AHPRA also communicated that they had formed the reasonable belief that the respondent had an impairment, as defined by the National Law, and that he was unfit to practise and would pose a serious risk to public safety if allowed to practise the profession.[2]
- [21]Almost two years then elapsed before the Office of the Health Ombudsman referred the matter to QCAT. Some investigation of the respondent's condition occurred during this time, but it seems to have been inconclusive. When the Health Ombudsman referred the matter, it proceeded only with the allegations concerning misconduct, and did not allege impairment as a ground.
- [22]The respondent did not at any stage concede that he was suffering from a substance abuse disorder, but he admitted himself to the Toowong Private Hospital in May-June 2014 for review. On 9 July 2014, the respondent accepted that a return to clinical nursing may not be appropriate for him. By December 2015, he appears to have been still hopeful of a favourable report on the substance abuse question, but no suitable supervision or drug testing has occurred.
- [23]More recently, Dr Chung’s report of 11 November 2016 contains admissions of recurrent usage of recreational drugs.
- [24]His report states:
“Unfortunately Mr Riek’s new girlfriend and friends have been using substances. Mr Riek has also, as a result of social pressure, indulged in the use of MDMA, Cocaine and Cannabis. In the long term this will impact on his mood and anxiety symptoms adversely.”
- [25]Notwithstanding this, in Dr Chung's opinion he does not currently fulfil the criteria for substance use disorder, as the pattern of his drug use is not sufficiently consistent and sustained.
- [26]Following the suspension of the respondent’s registration, renewal was not sought, and his registration expired on 31 May 2016. In fact, he has not worked as a nurse since his suspension in 2013 following the relevant misconduct.
- [27]Notwithstanding the omission of "impairment" as an issue in the referral, the respondent's overall psychiatric health has been substantially canvassed in these proceedings, both in the statement of agreed facts and the joint submissions. It is also extensively dealt with in the medical report of Dr Chung, which was obtained and presented by the respondent's solicitors. The difficulty occasioned by this will be mentioned in later discussion.
- [28]Dr Chung's explanation of the respondent's action in taking the Fentanyl in 2013 is that it was a wrong decision to manage an acute anxiety attack in the context of stressful work place events.
- [29]His primary diagnosis of the respondent's condition is major depressive disorder, generalised anxiety disorder and attention deficit disorder.
- [30]The respondent's recent history shows that he is now divorced, has a new partner, but lives with his mother and that he does most of the house work. He has returned to University to study for a Bachelor of Science degree in neuroscience, in the hope that it will lead to a research career.
- [31]Significantly, Dr Chung’s prognosis for the respondent is guarded. He states:
He tends to have a chronic history of depression and anxiety. He has personality vulnerabilities as a result of early loss of his father and early onset of depressive and anxiety illness. It is likely that Mr Riek’s depression and anxiety disorders will remain chronic and that he will be subject of relapses of his conditions if exposed to a significant amount of psychosocial stress.
- [32]The Joint Submissions contain the following statement:
The respondent submits that, because of his mental health issues, he does not ever intend to practice as a registered nurse and the applicant has agreed to the proposed orders on that basis.
The relevant proposed orders are a reprimand, along with "a finding that a suspension of 3 years would have been appropriate in this case.. taking into account that the respondent has been subject to an effective suspension for over 3 years.."
Professional misconduct
- [33]It is first necessary for the Tribunal to determine, under section 107 of the HO Act, whether a recognised ground for disciplinary action is established, and whether it amounts to unsatisfactory professional performance, unprofessional conduct or professional misconduct.
- [34]The conduct described in the charge has been adequately proved. The respondent’s conduct plainly falls short, to a substantial degree, of the standard of professional conduct expected of a person in his position, that is to say of a health practitioner of an equivalent level of training and experience. The stealing of fentanyl, which is a schedule 8 “prescription only” controlled drug from an employer by a nurse represents a significant breach of trust and abuse of position which is not tolerable within the profession.[3]
- [35]The fact that a patient was thereby deprived of prescribed medication only aggravates the matter.
- [36]I find that the conduct described in the charge amounted to professional misconduct in that the respondent engaged in unprofessional conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
Sanction
- [37]The proposed sanction is a reprimand, recognising that the respondent has already incurred a virtual suspension of 3 years, following the Board's imposition of conditions and subsequent suspension on his registration on 2 April 2014.
- [38]Cases to which reference was made include Health Ombudsman v MacDonald [2016] QCAT 473, Health Ombudsman v Antley [2016] QCAT 472, Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403 and Health Care Complaints Commission v Akhurst [2016] NSWCATOD 70.
- [39]A difficulty has been created by the applicant's failure to make a formal charge of impairment. The parties, however, appear to have called evidence, admitted facts, made submissions and conducted the litigation as if it was in issue.
- [40]But no amendment was sought to bring it into issue as a formal charge. Further, the applicant Health Ombudsman did not seek to rely upon the respondent's impaired condition to justify an increase of sanction as, for example, by contending that his serious chronic disorders and vulnerability to stress render him unsuitable for registration, so that it would be appropriate to disqualify him from applying for registration indefinitely or for a lengthy period.
- [41]In the absence of formal amendment, it would be unfair to treat this as an "impairment" case in which the fitness of the respondent for work in this profession was directly in issue.
- [42]It is in the interest of neither the parties, nor the public, that the matter now be adjourned and further submissions be received on amendment, and the matter re-litigated with further costs incurred. The parties have agreed on an outcome, and I propose to examine whether that outcome is acceptable in the circumstances.
- [43]As litigated, the psychiatric evidence is two-edged. It tends to provide at least a partial explanation of the respondent’s behaviour. However, it also tends to suggest that, for as long as he continues to suffer from such disorders with a real risk of recurrence, any continuation of nursing is unacceptable. Once that evidence is properly admitted, it is available for all relevant purposes, including assessment of appropriate sanction for the charge that has been made.
- [44]In the present matter, the applicant Health Ombudsman did not seek to rely upon the impaired condition for an increase of sanction. The low level of the proposed sanction suggests that the applicant's statement that he has no intention of reapplying for registration has been taken at face value.
- [45]The function of the Tribunal is to deal with the charges that are presented and to impose a sanction proportionate to the conduct that is alleged and proved. In a case of the present kind, the Tribunal does not perform the function of a Registration Board to whom an applicant may apply in the future. If this respondent changes his mind and seeks readmission, it is to be expected that his suitability and fitness will be closely examined by the relevant registration authority.
- [46]The evidence in this case provides a partial psychiatric explanation of his misconduct, but at the same time, it reveals considerable problems in any continuation of nursing work. Overall, it is difficult to see how this factor could ultimately have a mitigating effect upon the sanction.
- [47]For the above reasons I hold serious doubts as to whether a mere reprimand is an adequate response, even taking into account the three-year period of non-registration, and note that the existing range of available sanction might well have permitted the addition of a future suspension period.
- [48]However, the following factors make it desirable that the proposed orders be made:
- The respondent’s open assertions and admissions that he is not suitable for future practice in this profession, and his statement of intention not to reapply, and the evidence available to any future registering authority, including the medical evidence;
- The availability of a wide range of response in cases of this kind;
- The fact that the impaired condition of the respondent was not an issue of the charge that was laid;
- Substantial delay in referral of the complaint; and
- The fact that the parties after serious negotiation are prepared to abide by the proposed sanction.
Orders
- [49]There will be a finding of professional misconduct in that the respondent engaged in unprofessional conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. There will also be an order of reprimand.
- [50]The applicant Health Ombudsman made a claim during these proceedings for costs against the respondent, but that claim was eventually withdrawn. To ensure that no future applications are made on this issue, and, to signify that this issue is now closed, it will be specifically ordered that there be no order for costs.