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The Health Ombudsman v Chambers[2017] QCAT 362

The Health Ombudsman v Chambers[2017] QCAT 362

CITATION:

The Health Ombudsman v Chambers [2017] QCAT 362

PARTIES:

The Health Ombudsman

(Applicant)

v

Joanne Elizabeth Chambers

(Respondent)

APPLICATION NUMBER:

OCR229-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Deputy President O'Callaghan (at the time of the hearing)

Assisted by

Dr Kim Forrester

Dr Wayne Sanderson

Dr Mary Sidebotham

DELIVERED ON:

23 October 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. In respect of charge one, the Respondent behaved in a way that constitutes professional misconduct.
  2. In respect of charge two, the Respondent behaved in a way that constitutes unprofessional conduct.
  3. In respect of charge three, the Respondent behaved in a way that constitutes professional misconduct.
  4. In respect of all the charges, the Respondent behaved in a way that constitutes professional misconduct.
  5. The Respondent is reprimanded.
  6. The Respondent is to pay a fine of $2000.
  7. The parties bear their own costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – Professional Misconduct – where registered nurse intoxicated at work – where registered nurse failed to notify the Board of conviction – where parties jointly proposed sanction

Australian Health Regulation National Law (Queensland)

Health Ombudsman Act 2013, s 103, s 104

Health Care Complaints Commission v Stewart [2012] NSWNMT 12

Health Care Complaints Commission v Stewart [2015] NSWNMT 145

The Health Ombudsman v Antley [2016] QCAT 472

Medical Radiation Technologist Board of Queensland v Sanderson [2012] QCAT 107

Psychology Board of Australia v Cameron [2015] QCAT 227

Ooi v Medical Board of Queensland [1997] 2 Qd R 176

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. [1]
    Joanne Chambers has been a registered nurse since 2002. The conduct and criminal proceedings relating to this matter occurred in March and April 2015.
  2. [2]
    The Health Ombudsman has referred this matter to the Tribunal pursuant to sections 103(1) and 104 of the Health Ombudsman Act 2013 (the HO Act). The Ombudsman considers that Ms Chambers has engaged in professional misconduct within the meaning of section 5 of the Australian Health Regulation National Law (Queensland) (the National Law), and asks that disciplinary orders be made against her. The following charges are referred:

Charge 1: That she engaged in unprofessional conduct that is substantially below the standard reasonable expected of a registered health practitioner, and further or in the alternative, that she engaged in conduct inconsistent with being a fit and proper person to hold registration, as a result of pleading guilty to one offence against s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) and one offence against s 790(1) and (2A) of the Police Powers and Responsibilities Act 2000 (Qld), being convicted and fined $1,800 and disqualified from driving in respect of the first offence, and sentenced without recording conviction to 60 hours of community service in respect of the second offence.

Charge 2: That she engaged in unprofessional conduct in that she failed to notify the National Board of her convictions, in accordance with s 130 of the National Law.

Charge 3: That she engaged in unprofessional conduct that is substantially below the standard reasonable expected of a registered health practitioner, and further or in the alternative, that she engaged in conduct inconsistent with being a fit and proper person to hold registration, by contravening the Code of Professional Conduct for Nurses in Australia and the Code of Ethics for Nurses in Australia.

  1. [3]
    The HO also submits that if a finding of unprofessional conduct is made with respect to two or more charges, a separate finding of professional misconduct can be made as there is more than one instance of unprofessional conduct that, when considered together, amounts to conduct substantially below the standard reasonably expected.
  2. [4]
    Ms Chambers and the Ombudsman have filed a statement of agreed facts, and a joint submission on proposed sanction for consideration by the Tribunal. The parties consented to the matter proceeding to a hearing on the papers.

The Conduct

  1. [5]
    Ms Chambers admits the following facts (summarised from the agreed statement):
    1. Between 13 September 2010 and 20 March 2015 she was employed as a Registered Nurse at the Hospital in question.
    2. At approximately 7:15am on 2 March 2015 Ms Chambers attended the Hospital where she worked to commence duties as part of the anaesthetics team. She scrubbed up for surgery and entered the surgical theatre. She had a conversation with the anaesthetist where she appeared loud, and the anaesthetist told the ‘scrub nurse’ that she appeared drunk.
    3. The ‘scrub nurse’ confronted Ms Chambers, who left and could not be found for approximately 20 minutes.
    4. Ms Chambers was found asleep in a recovery room by the clinical operations manager Jackie Emery. Jackie Emery stated that the practitioner’s pupils were dilated and that she was loud and abusive. Another staff member called the police as Ms Chambers was increasingly agitated and aggressive.
    5. At approximately 9:20am, police attended and spoke with the practitioner who was dressed in her operating scrubs. Police observed that the practitioner had glassy eyes and smelled of alcohol. When questioned by police, the practitioner was erratic with her answers and changed her mood several times.
    6. Ms Chambers told police that she drank the night before and finished drinking at about 2:00am, but stated that she had not consumed any alcohol that day.
    7. Police examined her car and observed it to be parked on a slight angle however had no other signs of damage.
    8. When directed to provide a breath specimen and attend the Bundaberg Police Station, Ms Chambers became non-compliant and began swearing and pulled away from police in an aggressive motion. Police then told her to stop resisting but due to her conduct it was necessary for the police to put Ms Chambers to the ground and place her in handcuffs.
    9. Ms Chambers was taken to the Bundaberg Police Station for further questioning. She told police that she had consumed a one litre bottle of wine the night before. She told police that she suffered from depression and took prescription medicine daily, which she took in the morning before she left home at around 6:30am and arrived at work at around 7:00am. Ms Chambers stated that the medication must have reacted with the alcohol from the night before.
    10. Ms Chambers provided a breath specimen which when analysed revealed a blood alcohol reading of 0.260 grams of alcohol per 210 litres of breath. Ms Chambers was subsequently arrested and released on her own undertaking to appear in the Bundaberg Magistrates Court on 10 April 2015.
    11. At a meeting on 19 March 2015 with hospital representatives, Ms Chambers was provided with a show cause letter. Ms Chambers expressed that she was truly sorry and that her home life had issues and that she couldn’t change it and had to live with it. She stated that she felt humiliated and that the police were nasty to her. She stated that alcohol was not the problem, but that she was on a mental health plan and seeking a psychologist. She admitted that she felt suicidal.
    12. At a meeting the following day with a hospital representative, Ms Chambers provided a response to the show cause notice. They discussed another incident where Ms Chambers made a complaint about another practitioner. She also explained that she was struggling working 12 hour shifts. She also raised concerns as to why her husband was not contacted when the incident occurred. After the meeting, the show cause response was given to the chief executive officer of the hospital for consideration.
    13. At 5:00pm, Ms Chambers was contacted by a hospital representative and advised that her employment had been terminated and that a letter would be sent to her outlining this. She was upset and angry, and after some discussion called the representative a ‘fucking bitch’ before ending the call.
    14. On 20 March 2015, the chief executive officer of the hospital issued a notice of termination which was sent to Ms Chambers.
    15. On 24 March 2015, Ms Chambers’ husband attended the hospital to collect her belongings, and stated that Ms Chambers had not been drinking before leaving the house on the morning of the incident; instead she drank whilst sitting in the car park prior to coming into the hospital.
    16. David Chambers also stated that his wife struggled with the 12 hour shifts and that she had asked for a change on a number of occasions. He said that she would often come home in tears.
    17. On 10 April Ms Chambers pled guilty in the Bundaberg Magistrate’s Court to two charges – an offence against section 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) for driving under the influence of liquor, and an offence against section 790(1) & (2A) of the Police Powers and Responsibilities Act 2000 (Qld) for assault or obstruct a police officer in a public place while adversely affected by an intoxicating substance.
    18. In relation to sentencing, Ms Chamber’s legal representative submitted that she had no previous criminal history, that she was diagnosed with post-natal depression after maternity leave in 2012, that she reported intermittent excess alcohol use in 2013 and received medication for anxiety, panic attacks, depression and stress-related alcohol abuse. It was submitted that prior to the conduct in question she had been depressed and anxious, had been working 12 hours shifts and wasn’t seeing her family as much as she wanted.
    19. The magistrate took into account, as well as other factors, the fact that Ms Chambers had embarked on a course of rehabilitation and that her dependence on alcohol stemmed from anxiety and depression which had started from postnatal depression.
    20. Ms Chambers was convicted and fined $1,800 and disqualified from driving in respect of the driving while intoxicated offence, and sentenced without recording conviction to 60 hours of community service in respect of the obstruction offence.
    21. Ms Chambers did not notify the National Board of these convictions.
  2. [6]
    In April 2015 the HO referred a part of the complaint relating to Ms Chamber’s impairment to the Australian Health Practitioner Regulation Agency (APHRA). On 8 October 2015 the Nursing and Midwifery Board (the Board) imposed the following conditions on Ms Chamber’s registration:
    1. She provide the Board with evidence that she notify her employers of the conditions imposed;
    2. She only practice under the supervision of another registered practitioner;
    3. She provide the Board with details of her treating general practitioner;
    4. She attend for treatment by an Advanced Medicine Specialist, or Psychiatrist;
    5. She undergo breath-alcohol testing;
    6. She undertake monthly Carbohydrate Deficient Transferrin, Liver Function Testing and Mean Corpuscular Volume Testing.
  3. [7]
    In June 2015, in compliance with the conditions on her registration, Ms Chambers was assessed by Dr Jill Reddan, psychiatrist. Dr Reddan’s report stated that Ms Chambers said that on the evening of 1 March 2015 she consumed a few glasses of wine, but ceased around midnight, and that she drank three gulps of Cinzano in the hospital car park before entering the building.
  4. [8]
    In her report dated 8 July 2015 Dr Reddan opined that:
    1. Ms Chambers minimised her conduct as she considered she was treated poorly by her workplace, despite acknowledging being abusive.
    2. Although acknowledging drinking to excess, Ms Chambers still lacked a full appreciation of the effects of her alcohol use on the day in question. It was not a matter of Ms Chambers not being aware of how intoxicated she was as a result of the previous night’s drinking, but a deliberate decision to consume alcohol after arriving at work but before entering the building.
    3. There was no evidence Ms Chambers was alcohol dependent as at 2 March 2015. Although she had a history of alcohol abuse, an impairment did not explain her conduct that morning.
    4. Ms Chambers has an impairment or condition or disorder, namely Alcohol Abuse, which was in remission that is likely to detrimentally affect her capacity to practice her profession as a registered nurse if she should commence drinking again.
    5. It is likely that Ms Chambers developed an Adjustment Disorder with Depressed Mood after the birth of her daughter but this is likely to have resolved well before March 2015.
    6. Ms Chambers was safe to return to the practice of nursing, but there should be conditions on her registration in order to protect the public safety.
  5. [9]
    Ms Chambers has been compliant with the conditions. She has been employed as a nurse in a medical practice since October 2015. The National Board removed the conditions from Ms Chamber’s registration in November 2016.
  6. [10]
    Under the National Law, professional misconduct is defined as:
    1. unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
    2. 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 or experience; and
    3. conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
  7. [11]
    The parties jointly submit:
    1. in relation to Charge 1, that the conduct the subject of the finding of guilt was so interconnected with Ms Chambers practice as a registered nurse that it fell substantially below the standard reasonably expected of a registered health practitioner and amounts to professional misconduct;
    2. in relation to Charge 2,  that the conduct is unprofessional conduct;
    3. in relation to Charge 3, that the conduct breaches the Code of Professional Conduct for Nurses in Australia (the Code of Conduct) and the Code of Ethics for Nurses in Australia (the Code of Ethics) and as a result amounts to professional misconduct; and
    4. the conduct considered as a whole amounts to professional misconduct.
  8. [12]
    The Tribunal accepts the parties’ submission that Joanne Chambers engaged in professional misconduct in respect of all charges.

Sanction

  1. [13]
    The parties have agreed proposed orders for the Tribunal’s consideration.
  2. [14]
    Although the Tribunal must consider the appropriate sanction regardless of the parties agreement, it has been previously acknowledged in decisions of the Tribunal that where an agreed proposed sanction is within the permissible range of sanctions in the circumstances of the case, the Tribunal ought not depart from the agreed proposal.
  3. [15]
    The parties propose that Joanne Chambers be reprimanded and be fined $2,000.
  4. [16]
    The parties have referred the Tribunal to a number of cases in consideration of the appropriateness of the proposed sanction.

Working while affected by Alcohol

  1. [17]
    In Sanderson’s case,[1] a medical radiation technologist consumed a one-litre cask of wine at work and was missing for three hours during her shift. She had been dependent on alcohol throughout her adult life, was suffering personal stressors, and in the months leading up to the incident had been drinking daily before and during work.
  2. [18]
    Since the incident the practitioner sought rehabilitation, and had allowed her registration to lapse for more than two years. In consideration of this, the Tribunal reprimanded the practitioner, prohibited her from reapplying for registration for 9 months, required a report from a psychiatrist before re-entry into the profession, and placed stringent conditions on her registration for a period of 12 months – that she remain abstinent from alcohol, continue psychiatric treatment, undergo testing, not practice as a sole practitioner, be subject to supervision, authorise her psychiatrist and supervisor to report to the board, and bear the cost of compliance with the conditions.
  3. [19]
    The parties agree this case is comparable as the Respondent in this matter was suffering from personal stressors, including post-natal depression and long working hours, which impacted on her familial relationships and quality of life. Further, the Respondent has no prior notifications with the Board and has successfully continued treatment for her alcohol abuse.
  4. [20]
    In the case of Health Care Complaints Commission v Stewart [2015] NSWNMT 145, the practitioner was a dental officer who had been suspended for a period of time and had conditions placed on his registration to abstain from alcohol, after returning to work he breached those conditions when he consumed alcohol at his place of work.
  5. [21]
    The practitioner indicated he was under extreme stress at the time, his marriage broke down and his father was ill and died. The Tribunal accepted that the practitioner seemed to have insight into his problem, and through seeking treatment was dealing with it positively.
  6. [22]
    The Tribunal found that the practitioner had engaged in professional misconduct, and that he suffered from an impairment. The Tribunal imposed conditions on the practitioner’s registration, namely that he abstain from alcohol, practice under supervision, obtain approval prior to changing the nature of his practice and that he not practice more than 16 hours per week. The Tribunal further imposed conditions that he continue treatment with his GP, psychiatrist, psychologist and undertake breath-testing before work.
  7. [23]
    The parties agree that this case is comparable as Ms Chambers was suffering significant stressors in her life and is continuing rehabilitation. They agree it is distinguishable as Ms Chambers in this case has not breached conditions already placed on her registration.
  8. [24]
    In Health Care Complaints Commission v Stewart [2012] NSWNMT 12, a registered nurse who was intoxicated at the workplace also breached conditions placed on his registration by failing to undergo CBT testing and attend weekly Alcoholics Anonymous meetings. The Tribunal was satisfied that the conduct constituted professional misconduct, and that the practitioner suffered a current and continuing impairment.
  9. [25]
    Accepting a psychiatric report to the effect that he suffered from a moderate-level depressive illness exacerbated by stressors, the Tribunal accepted the practitioner’s full admissions to be a show of genuine contrition and a degree of insight. However, the Tribunal considered the lack of preparation for the hearing as indicative of unwillingness to address the issues raised.
  10. [26]
    The Tribunal imposed a 12 month prohibition on the practitioner obtaining agency work, and imposed conditions on his registration, namely requiring treatment for alcohol-related problems, reporting on that treatment, CDT testing and reporting those results, and informing employers of the 12 month prohibition.
  11. [27]
    The parties agree that this case is comparable as the Respondent similarly was intoxicated at work.[2] They agree the case is distinguishable in that the Respondent did not breach conditions on her registration.

Failure to notify of a relevant event

  1. [28]
    In Antley[3] the practitioner failed to notify the Board that she had been charged, and subsequently found guilty, of an offence punishable by imprisonment. The Tribunal found that a failure to notify was unprofessional conduct and an aggravating factor to the main conduct. The parties agree this is comparable to the failure to notify in this case.
  2. [29]
    In Psychology Board of Australia v Cameron [2015] QCAT 227, a registered psychologist failed to notify of a conviction for serious traffic offences, and failed to declare the conviction on a renewal for registration form. The Tribunal found the failure to notify was less serious than the failure to declare on the renewal form, and both constituted unprofessional conduct. The Tribunal reprimanded the practitioner and ordered her to pay costs, observing that ‘a reprimand was not a trivial penalty and that it had the potential for serious adverse implications to a professional person’. The parties agree this case is comparable.

Consideration

  1. [30]
    Ms Chambers has, as found above, engaged in professional misconduct in respect of charges 1 and 3 and collectively. The cases which have been referred to the Tribunal establish a range of sanctions, from reprimand through to a period of prohibition from re-applying and conditions on the practitioner’s registration.
  2. [31]
    Here the parties have come to agreement on all relevant aspects of the case and have proposed a sanction in the lower range. They submit this is appropriate taking into consideration Ms Chamber’s expressions of regret, her compliance with the conditions on her licence, and her seeking rehabilitation.
  3. [32]
    The Tribunal agrees these considerations, applying the comparable cases, support a finding that the proposed sanction is appropriate. The purpose of these disciplinary proceedings and of the sanction is not to punish Ms Chambers, but to protect the public, uphold the standards of practice and maintain public confidence in the profession.[4]
  4. [33]
    The Tribunal accepts that general and personal deterrent are relevant considerations when determining the appropriate sanction in each case.  It is also accepted that consideration needs to be balanced against any mitigating factors in the practitioners favour.  Ms Chamber’s insight and remorse are relevant mitigating factors.
  5. [34]
    It is apparent on the evidence that, at the time of the incident and at the time of her health assessment by Dr Reddan, she had lacked insight into her behaviour and did not have a full appreciation of her alcohol use.
  6. [35]
    She also minimised her conduct by arguing that she had been treated poorly by her work place.
  7. [36]
    However, as submitted by the parties, since that time she has continued rehabilitant treatment and continued to work as a registered nurse in compliance with the conditions on her registration.
  8. [37]
    She has demonstrated remorse in that she participated in a recorded interview with police and pled guilty to the criminal charge.
  9. [38]
    We also note the other mitigating factors raised by the parties, including that she has co-operated with the OHO in reaching an early resolution of these proceedings.
  10. [39]
    We note that she would, if suspended from her current employment, suffer financial hardship.  Alternatively if she continues to work she would be in a position to pay the fine of $2,000 over a 12 month period.
  11. [40]
    In this regard, the tribunal commends the parties and in particular the OHO on the sensible approach taken to reaching agreement that reprimand and a fine is the appropriate sanction.  Ms Chambers has been fortunate to have found employment with a supportive organisation where she has been able to rehabilitate whilst given the opportunity to continue to work as a nurse and maintain her skills.  It is appropriate in all those circumstances that that situation not be interrupted.     

Costs

  1. [41]
    The parties have also agreed an order as to costs, namely that the parties bear their own costs.
  2. [42]
    We accept this is an appropriate costs order.
  3. [43]
    We make orders in the terms proposed in the joint submissions.

Footnotes

[1] Medical Radiation Technologist Board of Queensland v Sanderson [2012] QCAT 107.

[2] The parties also point to a similarity in that the Respondent failed to notify the National Board of findings of guilt – however, in Stewart’s case the Tribunal found that ground unsubstantiated.

[3] The Health Ombudsman v Antley [2016] QCAT 472.

[4] Ooi v Medical Board of Queensland [1997] 2 Qd R 176 at 177.

Close

Editorial Notes

  • Published Case Name:

    The Health Ombudsman v Chambers

  • Shortened Case Name:

    The Health Ombudsman v Chambers

  • MNC:

    [2017] QCAT 362

  • Court:

    QCAT

  • Judge(s):

    Acting Deputy President O'Callaghan

  • Date:

    23 Oct 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Health Care Complaints Commission v Stewart [2012] NSWNMT 12
2 citations
Jump To
Cite 1 - [2012] NSWNMT 12
Cite 2 - [2012] NSWNMT 12
Health Care Complaints Commission v Stewart [2015] NSWNMT 145
2 citations
Jump To
Cite 1 - [2015] NSWNMT 145
Cite 2 - [2015] NSWNMT 145
Health Ombudsman v Antley [2016] QCAT 472
2 citations
Jump To
Cite 1 - [2016] QCAT 472
Cite 2 - [2016] QCAT 472
Medical Radiation Technologists Board of Queensland v Sanderson [2012] QCAT 107
2 citations
Jump To
Cite 1 - [2012] QCAT 107
Cite 2 - [2012] QCAT 107
Ooi v Medical Board of Queensland[1997] 2 Qd R 176; [1996] QCA 530
2 citations
Jump To
Cite 1 - [1997] 2 Qd R 176
Cite 2 - [1997] 2 Qd R 176
Psychology Board of Australia v Cameron [2015] QCAT 227
2 citations
Jump To
Cite 1 - [2015] QCAT 227
Cite 2 - [2015] QCAT 227

Cases Citing

Case NameFull CitationFrequency
Medical Board of Australia v Davis [2018] QCAT 2152 citations
1

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