Health Ombudsman v Barber[2017] QCAT 431

REASONS FOR DECISION

Background

1. [1]
   On 9 August 2016, the Health Ombudsman referred to the Tribunal disciplinary proceedings against the practitioner, Mr Barber.  The referral was made pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act).  The allegations in the referral arose from two separate notifications made to the Health Ombudsman, namely:

   1. A written self-notification made by Mr Barber dated 12 January 2015; and
   2. A written notification made on behalf of Mr Barber’s employer, West Moreton Mental Health and Specialist Service, dated 5 February 2015. 
2. [2]
   There are three separate allegations set out in the referral.  In summary, it is alleged that:

   1. Mr Barber engaged in professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) by trafficking in cannabis over two separate periods and possessing cannabis (Charge 1);
   2. Mr Barber engaged in unprofessional conduct within the meaning of s 5 of the National Law by: 

1. Failing to give the Nursing and Midwifery Board of Australia (the Board) written notice in accordance with ss 130(1) and 130(3)(a)(i) of the National Law that he had been charged with offences punishable by 12 months’ imprisonment or more; and
2. Failing to give the Board written notice in accordance with ss 130(1) and 130(3)(a)(ii) of the National Law that he had been convicted of offences punishable by imprisonment (Charge 2);

and

3. Mr Barber engaged in unprofessional conduct within the meaning of s 5 of the National Law by providing false information on his application for renewal of registration to the Board in failing to notify the Board of his charges in that application (Charge 3). 

3. [3]
   There are no factual issues in dispute between the parties, the parties having filed a statement of agreed facts on 5 December 2016.  The issue for determination by the Tribunal is the appropriate level of sanction; specifically, whether Mr Barber’s registration should be suspended. In order to determine the appropriate level of sanction, it is necessary to consider the details of the offending conduct, in particular his criminal offending as it is that offending which is said to amount to professional misconduct and forms the basis of the submissions by the Health Ombudsman that Mr Barber must be suspended. 

Charge 1 – The Criminal Offending

4. [4]
   Mr Barber was charged with the following offences (criminal offences):

   1. One count contrary to s 5 of the Drugs Misuse Act 1986 (Qld) – Trafficking in a dangerous drug (cannabis) between 1 September 2012 and 1 October 2012 (count one);
   2. One count contrary to s 5 of the Drugs Misuse Act 1986 (Qld) – Trafficking in a dangerous drug (cannabis) between 1 March 2013 and 12 September 2013 (count two); and
   3. One count contrary to s 9 of the Drugs Misuse Act 1986 (Qld) – Possessing a dangerous drug (cannabis) on 12 September 2013 (count three).
5. [5]
   Those charges arose in the following way.  At approximately 11:45pm on 12 September 2013, detectives who were patrolling the streets in Spring Hill stopped Mr Barber to have a conversation with him.  Mr Barber immediately volunteered to police that he had “just dropped two ounces of weed in the gutter” and that he had more cannabis in his vehicle.  The police subsequently seized 60 grams of cannabis from Mr Barber’s car as well as a large clip seal bag of cannabis from the gutter. 
6. [6]
   Mr Barber voluntarily attended Brisbane City police station, where he subsequently made full, voluntary admissions to selling cannabis over two separate periods. 
7. [7]
   Mr Barber admitted to originally starting to sell cannabis in September 2012 after one of his friends who sold cannabis went overseas and left him with a mobile phone so that the business could continue.  Mr Barber and a friend shared the phone, using it to connect with customers.  Mr Barber and his friend sold cannabis for four weeks. 
8. [8]
   Mr Barber began selling cannabis again in March 2013 after reconnecting with a supplier.  A conservative estimate of the total profit made by Mr Barber over both trafficking periods is approximately $6,216. 
9. [9]
   On 13 June 2014, Mr Barber was convicted on his own pleas of guilty of the criminal offences.  He was sentenced to two years and four months’ imprisonment in respect of counts one and two, and 12 months’ imprisonment in respect of count three.  The sentences were to be served concurrently and Mr Barber was released immediately on parole. 
10. [10]
    In proceeding to sentence Mr Barber, the learned District Court Judge made remarks which are relevant to the Tribunal’s determination of the appropriate level of sanction.  To Mr Barber’s credit, his Honour noted: 

    1. Mr Barber’s cooperation was very high in relation to the criminal investigation of the matter and he would not have been dealt with on at least one count but for his voluntary admissions;^[1]
    2. Mr Barber’s cooperation in the court proceedings by, inter alia,  entering into an early plea of guilty at the committal stage;^[2] 
    3. Mr Barber’s antecedents and references disclosed that he was otherwise of good character;^[3] and 
    4. Mr Barber’s progress in disassociating himself from drugs, evidenced by three drug tests conducted in April and May of 2014 which showed that he was clean of drugs.^[4]
11. [11]
    Nevertheless, his Honour noted the seriousness of the charges and the fact that Mr Barber had not engaged in the criminal behaviour to fuel a drug habit but rather to profit from wholesale supply in order to pay off a credit card debt.^[5]  Mr Barber’s offending was said by his Honour to show a degree of persistence which reflected the seriousness of his conduct.^[6] 

Charges 2 and 3 – Contraventions of the National Law

12. [12]
    Under s 130 of the National Law, where a practitioner is charged with an offence punishable by 12 months’ imprisonment or more, or the practitioner is convicted of an offence punishable by imprisonment, the practitioner must provide written notice to the Board within seven days after becoming aware of the charge or conviction. 
13. [13]
    Mr Barber has admitted that he did not notify the Board within seven days of being charged with the criminal offences or within seven days of being convicted for those offences in accordance with his obligations under s 130 of the National Law.^[7] 
14. [14]
    Mr Barber also failed to declare that he was charged with the criminal offences on his application for registration renewal which Mr Barber submitted to the Australian Health Practitioner Regulation Agency (AHPRA) on 30 May 2014. 
15. [15]
    The application for registration renewal relevantly asked:

    1. During your preceding period of registration, has there been any change to your criminal history that you have not declared to AHPRA?; and 
    2. Do you have any criminal history that you have not disclosed to AHPRA (other than that disclosed in the question above)?^[8] 

Mr Barber answered “No” to each of these questions.

16. [16]
    “Criminal history” is defined in the application form to include, inter alia, “every charge made against the person for an offence.” 
17. [17]
    In his affidavit, Mr Barber stated, in relation to Charge 2, he was not aware at the time he was charged with the offences that he was required to disclose the fact of the charges to any person.  He asked the criminal solicitors whom he had engaged to represent him whether he needed to tell anyone of the offences and was advised not to tell anyone of the offences.^[9] 
18. [18]
    Mr Barber stated that he was also not aware of his obligations to disclose the convictions to AHPRA.  Upon being informed of his obligations in January 2015, Mr Barber immediately notified AHPRA of his convictions.^[10] 
19. [19]
    In relation to Charge 3, Mr Barber states that he was not aware of the extended definition of “criminal history” used by the application for registration renewal form.  Again, in his affidavit Mr Barber deposes to having contacted his criminal solicitor and enquired whether he had a criminal history.  He was informed that he did not have a criminal history as he had not yet been convicted.^[11] 
20. [20]
    Mr Barber has accepted that it was his obligation to be properly appraised of his professional obligations and that he failed in this regard.  However, Mr Barber stated in his affidavit that his wrongdoing in relation to Charges 2 and 3 had arisen out of ignorance and not dishonesty.  At the hearing, counsel for Mr Barber submitted that Mr Barber’s failure to disclose his criminal history in his application for renewal of registration could be best described as inadvertence and unawareness of his obligation rather than any attempt to dishonestly conceal those matters.  The Health Ombudsman accepted that there was no degree of dishonesty or deliberateness but rather described the conduct as reckless. 
21. [21]
    The Tribunal accepts there is no evidence to suggest that Mr Barber knowingly failed to comply with his professional obligations under Charges 2 and 3. 

Categorisation of Conduct

22. [22]
    Mr Barber admitted his conduct in respect of Charge 1 amounted to professional misconduct as defined under s 5 of the National Law, which provides:

professional misconduct, of a registered health practitioner, includes—

1. (a)
   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. (b)
   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. (c)
   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.

23. [23]
    The use of the word “includes” in the definition indicates that the definition of professional misconduct under s 5 is not an exhaustive one and that professional misconduct can include conduct which does not fall within the examples listed in the definition.^[12] 
24. [24]
    A dispute arose as to which sub-paragraph of the definition Mr Barber’s conduct in respect of Charge 1 should be categorised.  Mr Barber admitted his conduct amounted to professional misconduct under s 5(a) but did not accept, as was submitted by the Health Ombudsman, that his conduct fell under s 5(c); that is Mr Barber did not admit to his conduct being inconsistent with him being a fit and proper person to hold registration as a nurse. 
25. [25]
    Despite the dispute, there was no suggestion from either party that any particular consequence flowed from the Tribunal finding that the conduct was inconsistent with Mr Barber being a fit and proper person to hold registration.  The Health Ombudsman did not seek a finding that Mr Barber, at the time of the hearing, was not currently a fit and proper person to hold registration as a nurse.  
26. [26]
    As there can be no doubt, and there was no dispute, that the conduct giving rise to Charge 1 amounts to professional misconduct, it is not necessary to decide under which paragraph of the definition the conduct in respect to Charge 1 falls. 
27. [27]
    In addition to the admission in respect to Charge 1, Mr Barber admitted his conduct in respect of Charges 2 and 3 amounted to unprofessional conduct, being conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.^[13]  Given the admissions made by Mr Barber and the submissions of both parties, the Tribunal is satisfied that the conduct in respect of these charges amounts to unprofessional conduct. 

Submissions on Sanction

28. [28]
    Having determined that Mr Barber has behaved in a way that constitutes professional misconduct and unprofessional conduct, the Tribunal may make any of the orders contemplated by s 107(3). 
29. [29]
    The Health Ombudsman submitted that Mr Barber’s registration should be suspended for a period of three months, stating that a reprimand does not adequately achieve the purpose of these disciplinary proceedings.  Counsel for Mr Barber submitted the appropriate order is a reprimand and not a suspension. 
30. [30]
    In written submissions, the Health Ombudsman stated, “Principles of specific and general deterrence are highly relevant in this case.”  The Health Ombudsman submitted that disapproval of Mr Barber’s conduct:   

…must be expressed by a suspension as a general deterrence to others and to indicate to the profession and the public that such conduct is a serious departure from the standard expected of nurses in the nursing profession. 

31. [31]
    At the hearing, counsel for the Health Ombudsman submitted that, not only was a suspension necessary to protect the public by deterring the respondent and other health practitioners from engaging in like conduct, but also to uphold the standard of practice and maintain public confidence in the nursing profession. 
32. [32]
    Counsel referred the Tribunal to the decision of Deputy President Kingham DCJ in Pharmacy Board of Australia v Thomas, and in particular to the passage where her Honour stated, “[I]f a member of the profession commits a criminal offence punishable by imprisonment, this reflects on the reputation of the profession and may damage public confidence in it.”^[14] 
33. [33]
    Counsel for Mr Barber submitted the standards of the profession can be upheld by findings of professional misconduct and unprofessional conduct together with the imposition of a formal reprimand. 

Approach to Sanction

34. [34]
    In considering the appropriate sanction, the Tribunal must be mindful that the main principle for administering the HO Act is that the health and safety of the public are paramount.^[15]  The jurisdiction being exercised by the Tribunal is protective, not punitive.^[16] 
35. [35]
    It has been accepted that protection of the public has various aspects.  In Craig v Medical Board of South Australia, it was said, 

The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable.^[17] 

36. [36]
    The order may be directed to remind the practitioner as to the seriousness of their departure from professional standards and so as to deter them from any further departure.^[18]  It is however, not just confined to the erring practitioner, but extends to orders to secure the maintenance by other members of the profession of proper professional standards and to emphasise to them that certain types of behaviour are not acceptable professional conduct.^[19]  Such orders also act to assure the public that appropriate standards are being maintained within the profession so as to maintain the confidence of the public in the high standard of the profession.^[20] 
37. [37]
    In Health Care Complaints Commission v Do, a case referred to by the Health Ombudsman, it was expressed as: 

The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.^[21]

Conduct of Mr Barber

38. [38]
    Mr Barber accepts that his conduct was unlawful and serious.  This insight has to be taken into account alongside the extensive level of co-operation he has shown in both the criminal proceedings and in these proceedings. 
39. [39]
    After coming into contact with the police, he fully co-operated and disclosed his wrongdoing.  In fact, but for the voluntary admissions made by Mr Barber to the police, he would not have been dealt with on at least one of the counts of trafficking. 
40. [40]
    In being sentenced for his criminal offending, Mr Barber was entitled to the benefit of the principles stated by the High Court in AB v The Queen.^[22]  Hayne J had there said: 

An offender who confesses to crime is generally to be treated more leniently than the offender who does not.  And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known.^[23]

41. [41]
    Mr Massy submitted that those principles are apposite to the present case because, without the benefit of Mr Barber’s admissions, the Tribunal would not be dealing with his conduct to the full extent admitted. 
42. [42]
    It is certainly relevant that Mr Barber fully co-operated in these disciplinary proceedings by making admissions as to the level of misconduct, albeit that the Health Ombudsman says the admission as to professional misconduct was only made late in these proceedings. 
43. [43]
    Whilst Mr Barber had been a user of cannabis at the time of the offending, by the time of sentencing in June 2014, Mr Barber had disassociated himself from illicit drug use.  There was no suggestion that he had been at any time addicted or impaired as a result of that use.  His motive for selling cannabis was said not to be to fuel his drug habit but rather to pay off his credit card debt. 
44. [44]
    There was no suggestion his criminal offending had any connection with his practise as a registered nurse.
45. [45]
    It was a requirement of Mr Barber’s parole that he undertake regular drug screening to ensure he was not using illicit drugs.  Mr Barber confirmed in his affidavit that he passed all screening tests and that his period of parole was successfully completed.^[24] 
46. [46]
    Mr Barber has voluntarily participated in rehabilitation by regularly attending on a psychiatrist.  It has been indicated to the Tribunal that this treatment will be ongoing. 
47. [47]
    Mr Barber has expressed his embarrassment and shame in respect of his actions and unreservedly apologised.^[25] 
48. [48]
    Since his conviction, Mr Barber has undertaken a significant amount of further education and training, including a Masters of Mental Health Nursing.  A substantial amount of his further study related to the effects of and treatment of substance abuse. 
49. [49]
    Mr Barber has remained employed with his employer since his offending.  After informing his employer of his convictions and offences, he was the subject of an investigation and for a period of six months during the investigation he was removed from clinical duties and re‑deployed to a non-clinical role.  He resumed clinical duties on 7 July 2015; however, he was only permitted to work day shifts.  He was unable to undertake any shift work, which created a financial penalty against him. 
50. [50]
    On 15 September 2016, he received a promotion to the position of Clinical Nurse, Mental Health Community and Acute Services Inpatients Units at a major hospital.^[26] 

Comparative Cases 

51. [51]
    In its submissions, the Health Ombudsman referred the Tribunal to a number of cases where a nurse had been convicted of trafficking illicit substances. 
52. [52]
    The Health Ombudsman referred in particular to the previous Tribunal decision of Nursing and Midwifery Board of Australia v Brereton.^[27]  The practitioner in Brereton was involved in the production of methylamphetamine, a serious drug of dependency; the conduct therefore involved more serious conduct than Mr Barber’s conduct.  Further the practitioner’s addiction led to an acknowledged impairment, making any real comparison with the facts here difficult.  The circumstances of both practitioners was so different. 
53. [53]
    In Nursing and Midwifery Board of Australia v Mundy,^[28]  the practitioner had pleaded guilty to and been convicted of one count of trafficking in amphetamines and one count of trafficking in cannabis.  The practitioner had also pleaded guilty to three further summary offences of possession of a prescription drug and possession of a controlled drug and equipment.  On the date of her arrest for the trafficking offences, the practitioner was found in possession of three ampoules of diazepam which had not been prescribed to her, a small quantity of methylamphetamine and a glass pipe used for smoking methylamphetamine.  
54. [54]
    The practitioner admitted she had made “grave mistakes” and was “deeply remorseful” for her actions.  Except for a period of seven months, she continued to work as an anaesthetics nurse during most of the period of the court hearings.  At the time of the hearing, she was no longer involved with those associated with her offending and was prepared to undergo drug testing as required.  The practitioner had also undertaken a period of counselling.  The Tribunal noted that at no time had the conduct affected her professional life.  The practitioner was suspended for a period of three months, with conditions applying to her registration on her return to work.   
55. [55]
    Counsel for the Health Ombudsman submitted that the criminal conduct in Mundy was less serious than the current case, as the practitioner in Mundy had only trafficked in methylamphetamine and cannabis for a one month period, whereas Mr Barber had trafficked in cannabis over a seven month period.  Furthermore, the practitioner in Mundy did not engage in the trafficking conduct for a commercial purpose. 
56. [56]
    Counsel for Mr Barber submitted that there were a number of aggravating features present in Mundy which are not present in the current case.  Firstly, the conduct had a closer connection with her work as an anaesthetics nurse.  On at least one occasion, the respondent arranged a drug deal in the vicinity of her workplace.  She was also in possession of a drug which bore a direct connection with her practice as an anaesthetics nurse.  Secondly, the practitioner had a history of unprofessional conduct and substance abuse issues in the workplace.  The practitioner had previously been found guilty of unprofessional conduct; while at work, she had collapsed after self-injecting a potent synthetic narcotic analgesic which had not been prescribed to her.  Finally, while the practitioner in Mundy had pleaded guilty to the charges, the practitioner was not charged on the basis of admissions. 
57. [57]
    Reference was made by both parties in oral argument to the case of Nursing and Midwifery Board of Australia v Quinlivan.^[29]  The practitioner was charged with and convicted of trafficking in and cultivating cannabis.  He pleaded guilty to both charges and was sentenced to one year and ten months’ imprisonment, suspended on a good behaviour bond of $500, and fined $2000.  In circumstances similar to the present case, the practitioner made full and free admissions and pleaded guilty at the first opportunity.  Likewise, there were no questions raised regarding the practitioner’s competence or ability to work as a nurse.  The practitioner had continued to work as an enrolled nurse at all material times.  He had fully disassociated himself with cannabis and had, to the date of the hearing, complied with his good behaviour bond.  The practitioner was censured for his behaviour.
58. [58]
    As was submitted by the Health Ombudsman, the precise circumstances of the offending conduct are not discernible from the published reasons; though as submitted it must be less serious as the respondent received a sentence of one year 10 months whereas Mr Barber received a sentence of two years and four months.  It is further said that the practitioner in Quinlivan was immediately upfront in disclosing the charge to her employer. 
59. [59]
    Whilst it is difficult to necessarily draw any precise analogy, from the facts, Quinlivan can be considered to be within the range of the current case.  Relevantly, as submitted by counsel for Mr Barber, the decision indicates that a reprimand is not necessarily inappropriate for offences of this kind. 
60. [60]
    Finally, the Health Ombudsman referred to the conduct in relation to charges 2 and 3 and submitted that conduct was an aggravating feature that should be taken into account.  In referring to past authorities, it was accepted here that there was no degree of dishonesty involved in Mr Barber’s non-reporting. 

Consideration 

61. [61]
    There is no suggestion in this case that Mr Barber is not fit to practice or that conditions should be placed upon his registration.  The seriousness of the conduct which led to the criminal charges has no doubt been brought home to Mr Barber by the criminal justice system.  As he acknowledges, that experience together with the investigations by the Health Ombudsman and by his employer and changes in the status of his employment for a time are all constant reminders to him not to transgress.^[30]  
62. [62]
    The conduct occurred some four years ago and since then, as submitted by his counsel, “he has done everything the he possibly could have to make amends for that conduct”. 
63. [63]
    Mr Barber fully co-operated with the police by making voluntary admissions without which he would not have been charged on at least one of the counts of trafficking and the Tribunal would not be dealing with his conduct to the full extent admitted. 
64. [64]
    Mr Barber’s conduct in these proceedings and in the criminal proceedings demonstrates a remarkable level of insight and remorse, indicating that there is little chance of re-offending.  He has sought professional help at the hands of a psychologist and psychiatrist to address his own issues which led to his offending and in that sense it is not disputed that he has fully rehabilitated.  He has also undertaken master studies in mental health nursing and continues to work with those with mental health issues. 
65. [65]
    As observed by the Supreme Court of Victoria in Peeke v Medical Board of Victoria, a reprimand is not a trivial sanction and has the potential for serious adverse implications.^[31]  As noted by Deputy President Horneman‑Wren DCJ in Pharmacy Board of Australia v Hung, “a reprimand is a matter of public record which would be viewed seriously by the professional’s colleagues who could be expected to think less of the practitioner because of it.  That is, it affects the practitioner’s reputation and may have significant implications on his or her career prospects.”^[32] It is a public denunciation of the professional conduct which is recorded on the public register.^[33]

Conclusion 

66. [66]
    The Tribunal considers that a period of suspension is not necessary.  There is nothing to indicate that a period of suspension is necessary to deter Mr Barber from any further transgressions.  He has displayed insight into his misconduct.  He has co-operated with the authorities, he is in stable employment and has taken significant steps to rehabilitate himself.  The obligations of the Tribunal to emphasise the importance of maintaining professional standards and of general deterrence are able to be dealt with by the imposition of a reprimand together with the findings by the Tribunal of professional misconduct and unprofessional conduct.

Orders

67. [67]
    Accordingly, the Tribunal orders that:

    1. In relation to Charge 1, pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal finds the Respondent has behaved in a way that constitutes professional misconduct.
    2. In relation to Charges 2 and 3, pursuant to s 107(2)(b)(ii) of the HO Act, the Tribunal finds the Respondent has behaved in a way that constitutes unprofessional conduct.
    3. Pursuant to s 107(3)(a) of the HO Act, the Respondent is reprimanded.
    4. The applicant is to file submissions on costs by 4:00pm on 10 January 2018.
    5. The respondent is to file submissions on costs by 4:00pm on 24 January 2018.
    6. The applicant is to file submissions in reply, if any, by 4:00pm on 31 January 2018.