Nursing and Midwifery Board of Australia v Simone Margaret Morey
[2017] QCAT 249
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- Unreported Judgment
- Nursing and Midwifery Board of Australia v Simone Margaret Morey[2017] QCAT 249
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Nursing and Midwifery Board of Australia v Simone Margaret Morey[2017] QCAT 249
Nursing and Midwifery Board of Australia v Simone Margaret Morey[2017] QCAT 249
CITATION: | Nursing and Midwifery Board of Australia v Morey [2017] QCAT 249 |
PARTIES: | Nursing and Midwifery Board of Australia v Simone Margaret Morey (Respondent) |
APPLICATION NUMBER: | OCR079-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Deputy President O'Callaghan Assisted by: Ms M Barnett Mr M Halliday Mr J McNab |
DELIVERED ON: | 18 July 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the registrant misappropriated drugs intended for a patient for personal use – where the registrant misappropriated restricted drugs and paraphernalia and attempted suicide – where the registrant presented and had filled forged prescriptions – whether conduct amounts to professional misconduct – whether the registrant should be precluding from re-applying for registration – whether the registrant should pay the costs of the proceeding Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102(3) Health Practitioner Regulation National Law (Queensland), s 5 Health Practitioner Regulation National Law Act 2009 (Qld), Schedule (as in force 1 July 2010), s 195 Health (Drugs and Poisons) Regulation 1996 (Qld), s 146, s 162, s 204 Alroe v Medical Board of Australia [2016] QCAT 440 Chinese Medicine Board of Australia v Garvin [2015] QCAT 244 Health Ombudsman v Antley [2016] QCAT 472 Lee v Medical Board of Australia (No 2) [2016] QCAT 321 Medical Board of Australia v Martin [2013] QCAT 376 Medical Board of Australia v Rall [2016] QCAT 229 Medical Board of Australia v Wong [2017] QCA 42 Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 |
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]In early 2014, Simone Morey was employed as a registered nurse in a Toowoomba Hospital. She concedes that certain conduct which she engaged in at this time can be found to constitute professional misconduct. That conduct included misappropriating medication (including medication intended for a patient), and taking and presenting forged prescriptions for her own use.
Background
- [2]In May 2014, APRHA received a complaint about Ms Morey which included a number of allegations concerning missing drugs and inadequate clinical performance. The Nursing and Midwifery Board (“the Board”) resolved to take immediate action against Ms Morey in relation to this conduct. A few days prior to this resolution by the Board, a further incident had occurred. Ms Morey had attempted suicide using drugs she had taken from the hospital.
- [3]Following the suicide attempt, the police seized the drugs from her home and also located hospital prescriptions for other drugs which were suspected to be forgeries. This further information resulted in the Board making a further decision to take immediate action against Ms Morey to ensure that she did not return to practice without Board approval.
- [4]Ms Morey did not renew her registration and, consequently, her name was removed from the Board’s register on 3 July 2014.
- [5]A police investigation took place and Ms Morey was charged with stealing in relation to the theft of the drugs used in her suicide attempt. In July 2015, she pleaded guilty and was ordered to enter into a recognisance in the sum of $500 on the condition of good behaviour.
- [6]In June 2016, the Board referred the matter to the Tribunal to consider whether Ms Morey had behaved in a way that constituted professional misconduct as defined in the Health Practitioner Regulation National Law (Queensland) (the National Law).[1]
- [7]Following a compulsory conference held in the Tribunal in January 2017, the parties have produced a statement of agreed facts. They also jointly propose what they consider to be an appropriate sanction.
- [8]Whilst noting Ms Morey’s acceptance that her conduct amounted to professional misconduct, it is still a matter for the Tribunal to consider and determine.
- [9]The issues for determination are:
- Whether Ms Morey has engaged in professional misconduct;
- If so, what is the appropriate sanction?
- The appropriate order as to costs.
The conduct – is it professional misconduct?
- [10]
- On 27 March 2014 in the presence of another nurse she pretended to administer half a tablet (7.5mg) of Oxazepam to a patient, instead keeping it in her hand. She intended to keep the tablet and take it herself at a later time. The other nurse told Ms Morey that the tablet had not been administered. Ms Morey purported to look for the tablet before dropping it from her hand to the ground. The other nurse then picked it up and reported the incident. Ms Morey acknowledges this conduct was in breach of the Health (Drugs and Poisons) Regulation 1996 (Qld) (the Regulation).[3]
- On 2 April 2014, she took without authority 15 ampoules (200mg in 200ml) of the restricted drug, Propofol, and other paraphernalia (needles, syringes, cannulas and wipes) from the hospital. It was these drugs that Ms Morey injected herself with in an attempt to suicide in May 2014. She concedes this conduct contravened the regulations.[4]
- In or around April 2014 to May 2014, Ms Morey took two prescriptions for 25 tablets of Oxazepam (30mg), with four repeats each (a total of eight repeats) which she knew were forged from the hospital for her own use.
- Ms Morey presented the forged prescriptions to pharmacies and had them filled on at least five occasions between April and July 2014. She concedes this conduct was in breach of the regulations.[5]
- Ms Morey engaged in dishonest and misleading behaviour in relation to the conduct in correspondence to her employer, the hospital, and to APRHA, including denial of attempting to misappropriate the half tablet of Oxazepam and failing to provide an honest and complete explanation of how she came to be in possession of the forged scripts.
- [11]It is not difficult to conclude (and Ms Morey accepts) that this conduct amounts to professional misconduct as defined in the National Law. The conduct is clearly a significant breach of trust as an employee and as a nurse. It is inconsistent with the Board’s code of conduct.[6] Her acts of stealing drugs, failing to administer to a patient and using the forged prescriptions are dishonest and abhorrent to good nursing practice. The conduct is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[7]
What is the appropriate sanction?
- [12]The parties have provided a joint submission proposing that a sanction of a six month preclusion from applying for registration be imposed. They also agree a reprimand should be imposed.
- [13]Notwithstanding the joint submission, it is for the Tribunal to determine the appropriate sanction. It has been accepted in previous occupational regulation decisions that, where the parties have agreed on a proposed sanction, the Tribunal ought not depart from the proposed sanction unless it is outside the permissible range.[8]
- [14]It is well-settled that the purpose of disciplinary proceedings is not to punish the registrant, but to protect the health and safety of the public and to maintain the public trust and confidence in the profession.[9] General deterrence and personal deterrence of the registrant are also relevant considerations.[10]
Comparative cases
- [15]The Board and Ms Morey have referred the Tribunal to a number of comparable decisions relating to the theft and use of drugs and forged prescriptions.[11]
- [16]In most of these cases, the practitioner was no longer registered and the sanction involved a preclusion period of six months to two years. It is not clear in some of the cases how long the registrant had been unregistered before the sanction was imposed.
- [17]The decision of this Tribunal in Health Ombudsman v Antley [2016] QCAT 472 is comparable. In that case, a nurse stole 10 prescriptions for Endone and presented them at three different pharmacies.
- [18]In that case, Judicial Member Thomas noted that the nurse’s voluntary cancellation of registration had the result that she had already been deprived of registration for seven plus months at the time of the hearing. The agreed sanction was a further preclusion of nine months from the date of the order. Judicial Member Thomas commented:[12]
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.
- [19]In that case, taking into account the fact that seven months registration had already been lost the Tribunal considered the further proposed nine months fell within the proper range. Judicial Member Thomas also thought it appropriate to include a reprimand in the order.
- [20]The Tribunal accepts that the attempted theft of the medication intended for a patient, the misappropriation of drugs for her own use and the use of prescriptions known to be forged is conduct totally unacceptable for a practising nurse. The conduct breached a number of the code of conduct statements. It also amounts to a significant breach of the trust between herself and her employer.
- [21]It is also noted that in her correspondence to the hospital, Ms Morey denied the now conceded allegations of attempts to misappropriate for her own use the half tablet of Oxazepam which was to be dispensed to a patient. She also concedes she failed to provide an honest explanation as to how the forged prescriptions came to be in her possession.[13]
- [22]It is clear that her behaviour, in order to serve the purpose of deterrence and ensuring public safety and confidence warrants a period of exclusion.
- [23]As Ms Morey is unregistered, the order must encompass a period of preclusion from application for registration.
- [24]There are mitigating factors:
- Mr Morey’s substance abuse and attempted suicide using the misappropriated drugs indicate that at the time of the improper conduct, Ms Morey was suffering from mental illness. Her submissions provided to the employer hospital and to the Board outline a history of mental illness and treatment programs undertaken by Ms Morey since the relevant conduct and the associated criminal proceedings.[14]
- Despite her early failing to disclose the truth to the Board she has in these proceedings made early admissions and her participation in the joint statement of agreed facts and joint submissions on sanction has obviated the need for the Board to prove its case and the Tribunal to conduct an oral hearing.
- This course of action also indicates remorse and insight on Ms Morey’s part.
- [25]As referred to earlier, Ms Morey has not been registered since July 2014. In line with the decision in Antley this should be taken into account in any preclusion period.
- [26]If the Tribunal were to adopt the proposed exclusion period of a further six months this would lead to a significant period of being out of practice, in line with comparative cases and reflective of the serious nature of her conduct.
- [27]The Tribunal accepts the proposed sanction of a further preclusion of six months as appropriate. It adequately addresses public protection and confidence and deterrence.
- [28]It is also appropriate as both the Board and Ms Morey suggest that Ms Morey be reprimanded.
What is the appropriate costs order?
- [29]When the National Law was introduced in 2009, s 195 of that legislation provided that ‘the responsible tribunal may make any order about costs it considers appropriate for the proceedings’.[15]
- [30]The approach taken in referrals of disciplinary matters under that statutory regime was that costs effectively followed the event. The disciplined practitioner was generally ordered to pay the Board’s costs, failing some sufficiently countervailing circumstances.
- [31]The rationale expressed was that the Board’s costs are funded by the members of the profession and that professionals of good standing should not bear the burden of costs of disciplinary action in relation to the unprofessional conduct of others.
- [32]The unfettered discretion afforded to tribunals under s 195 was removed by the introduction of the Health Ombudsman Act 2013 (Qld). It repealed that provision of the National Law.
- [33]The consequence is that the issue of costs in disciplinary referrals and reviews is governed by the QCAT Act which does not provide the unfettered discretion previously available.
- [34]The starting point in s 100 of the QCAT Act is that each party bears their own costs. The Tribunal has limited discretion to make a costs order if it considers the interests of justice require it.
- [35]Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters it may have regard to in considering whether the interests of justice require a costs order, including whether a party is acting in a way that unnecessarily disadvantages another party, the complexity of the proceedings, the strengths of the claims made by the parties, the financial circumstances of the parties and anything else the tribunal considers relevant.
- [36]
[W]hether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
- [37]The Board refers the Tribunal to a number of previous costs decisions in this jurisdiction. It comments that recent decisions indicate a shift from the previous position that professional boards would be given favourable consideration in relation to a costs application absent countervailing factors. They have requested the Tribunal:
Provide guidance as to whether the Tribunal has now adopted a broad view that professional boards should not be regarded as in a favoured position when costs issues are to be decided absent countervailing circumstances.
- [38]I note first that it is a matter for each Tribunal constituted to determine the matter to make its decision on any costs application. When regard is had to the authorities referred to by the Board, any perceived change in ‘approach’ reflects the change to the legislative boundaries now applicable to consideration of costs applications in this jurisdiction.
- [39]
- [40]In that case, Judicial Member Thomas reiterates that previous tribunal decisions had recognised that it is undesirable that professionals of good standing bear the costs burden associated with the unprofessional conduct of others.
- [41]He noted the change in the law by the OHO legislation and commented that the considerations which applied in previous cases may (my emphasis) lead to determinations in individual cases that it is in the interests of justice to require a costs order. However, as those proceedings (because of the time of the referral) were being dealt with under the repealed legislation he did not have to determine the issue.
- [42]The next case referred to is Judicial Member Thomas’ decision in Lee v Medical Board of Australia (No 2).[19] In that matter, the practitioner sought tribunal review of a decision of the relevant board to impose conditions on his registration.
- [43]The proceedings were ultimately withdrawn by Dr Lee.
- [44]Judicial Member Thomas in that matter noted, again, that upon the removal of s 195 from the National Law, the costs provisions in the QCAT Act applied. He was required to consider the Board’s claim for costs in that context.
- [45]He commented that the ultimate question was whether it is in the interests of justice to make a costs order and that a wide range of circumstances had to be considered in answering that question. On the issue on the impact of the new costs regime on the relevance of the Board’s role and the impact on professionals of good standing, he said:
The repeal of s 195 of the National Law does not make those considerations irrelevant: it merely means that they are now to be evaluated in the context of a determination of whether a costs order is in the interests of justice.
…
It is of course only one of many factors and may be outweighed by other more telling factors, but for what it is worth, it weighs in favour of the Board.[20]
- [46]
- [47]Antley is not dissimilar to the current proceedings. In that case, the conduct of the nurse included stealing, forging and filling prescriptions for controlled drugs. The parties reached agreement with respect to the facts and the proceedings were determined by the Tribunal on the papers.
- [48]Judicial Member Thomas confirmed the starting point was that each party bore their own costs unless the interests of justice require an order, and noted that in the absence of “countervailing considerations” each party was to bear their own costs.[22]
- [49]He did not consider that the previous consideration applying to professional boards was in itself sufficient to place the boards in a favourable position vis-à-vis a practitioner in relation to the issue of costs.[23]
- [50]He said in that case there were circumstances which weighed against the interests of justice requiring a costs order in favour of the Board. They included:
- The disproportionate and punitive effect of making a costs order in that case;
- 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 the Tribunal is now subject;
- The conduct of the litigation. The respondent in that case did not join issue concerning her guilt of professional misconduct,[24] or conduct the litigation in such a way as to cause the cost of the litigation to be increased.
- [51]There have been two other relevant decisions on this issue since Antley.
- [52]The Tribunal’s decision of Alroe v Medical Board of Australia.[25] In that case, the applicant doctor successfully reviewed the Board’s deemed refusal of his application for specialist registration. The doctor sought a costs order against the Board arguing that the interests of justice require the order.
- [53]The Tribunal determined that in that case a costs order was appropriate against the Board. Relevantly the Tribunal noted:[26]
The QCAT Act is the sole determinant of whether, when and how much costs should be ordered in favour of a party to tribunal proceedings and it would be wrong to fetter the discretion by assuming in advance what the interests of justice call for where the Board or similar body is a party.
- [54]
Absent any finding of unreasonableness, there could not have been a basis for departing from the default position, according to s 100, that each party bear its own costs.
- [55]In summary, the change in the legislative test for awarding of costs in the jurisdiction means that a costs order will only be made if the interests of justice require it. The factors to be considered are those referred to in s 102, including the financial position of the parties, and the conduct of the parties in the proceeding. Further, as noted in Antley, the changes to the regulatory body and to the categories of practitioners the subject of regulation (including allied health professionals), mean that the fact that proceedings are referred by a Regulator and disciplinary orders are made is not in itself a determining factor as to costs. That circumstance in itself will not ‘point so compellingly to a costs award so as to overcome the strong contra-indication against cost orders in s 100’.
- [56]While Ms Morey initially disputed some of the allegations, her conduct in these proceedings in accepting the consequences of her actions has meant that the proceedings have not been as extensive or protracted as otherwise might have been the case.
- [57]
- [58]The circumstances which may weigh in favour of a costs order are that the proceedings were referred by the Board and that Ms Morey has been disciplined. Having regard to the matters in Ms Morey’s favour, the interests of justice in this case do not require a costs order in favour of the Board.
- [59]It is appropriate that the parties bear their own costs.
Footnotes
[1]Health Practitioner Regulation National Law (Queensland), s 5.
[2]Statement of Agreed and Disputed Facts, filed 5 April 2017.
[3]Specifically s 146, s 162 and s 204 of the Regulation.
[4]Specifically s 146, s 162 and s 204 of the Regulation.
[5]Specifically s 204.
[6]Applicant’s Submissions on Sanction, filed 19 April 2017, [25](b).
[7]National Law, s 5.
[8]Medical Board of Australia v Martin [2013] QCAT 376, [91]; citing Compare Australian Competition and Consumer Commission v Colgate Palmolive Pty Ltd [2002] FCA 619.
[9]Health Ombudsman v Antley [2016] QCAT 472, [43]; Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191, [55].
[10]Chinese Medicine Board of Australia v Garvin [2015] QCAT 244, [9].
[11]Applicant’s Submissions on Sanction, filed 19 April 2017, [24] (adopted in the Respondent’s Submissions as to Sanction and Costs, filed 8 May 2017, [10]), referring to Health Ombudsman v Antley [2016] QCAT 472; Nursing and Midwifery Board of Australia v Mahon (Review and Regulation) [2014] VCAT 403; HCCC v Kahli Bard [2013] NSWNMT 15; HCCC v Flynn [2009] NSWNMT 1; Nursing and Midwifery Board of Australia v Black (Review and Regulation) [2015] VCAT 1232; Nursing and Midwifery Board of Australia v Brocklehurst [2011] QCAT 71; The Pharmacy Board of Australia v Chrenowski [2011] SAHPT 26; Health Care Complaints Commission v Victoria Lau [2001] NSWPHT 2; Pharmacy Board of Australia v Dougherty [2014] SAHPT 6.
[12]At para [50].
[13]Applicant’s Submissions on Sanction, filed 19 April 2017, [27](a) and (b).
[14]Applicant’s list of documents, 7-10, 19, 31.
[15]Health Practitioner Regulation National Law Act 2009 (Qld), Schedule (as in force 1 July 2010), s 195 (since repealed).
[16][2010] QCAT 412.
[17]Ibid, [29].
[18][2016] QCAT 229.
[19][2016] QCAT 321.
[20]Lee v Medical Board of Australia (No 2) [2016] QCAT 321, [48]-[49].
[21][2016] QCAT 472.
[22]Ibid, [59]-[61].
[23]Ibid, [79].
[24]Health Ombudsman v Antley [2016] QCAT 472, [80].
[25][2016] QCAT 440.
[26]Alroe v Medical Board of Australia [2016] QCAT 440, [27].
[27][2017] QCA 42.
[28]Ibid, [35].
[29]Affidavit of Luke Timothy Forsyth sworn 24 August 2016, [2].
[30]Ibid, [4].