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Health Ombudsman v Armstrong[2018] QCAT 382

Health Ombudsman v Armstrong[2018] QCAT 382

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Armstrong [2018] QCAT 382

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

MAREE JOSEPHINE ARMSTRONG

(respondent)

APPLICATION NO/S:

OCR050-16; OCR134-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

29 November 2018

HEARING DATE:

22 March 2018

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan, Deputy President

Assisted by:
Mr J McNab
Ms N Brook
Mr G Lawrence

ORDERS:

  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Ms Armstrong has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), Ms Armstrong’s registration is cancelled, effective from 14 January 2019.
  3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), Ms Armstrong is disqualified from applying for registration for a period of two years, commencing on and from 14 January 2019.
  4. The Health Ombudsman is to file in the tribunal and serve on Ms Armstrong any application for costs and written submissions in support by 4.00 pm on 21 December 2018.
  5. Ms Armstrong is to file in the tribunal and serve on the Health Ombudsman any written submissions in response to any such application by 4.00 pm on 18 January 2019.
  6. Any application for costs will be determined on the papers.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the practitioner was charged and convicted of obtaining a financial advantage for self relating to overpayments from Centrelink which arose due to the practitioner underreporting her income – where, as a result of that conviction, the practitioner breached a peace and good behaviour bond – where the practitioner failed to disclose the charges and convictions to the Nursing and Midwifery Board of Australia – where the practitioner failed to declare that there had been a change in her criminal history on her application for registration renewal – where the practitioner provided a fraudulent medical certificate in support of an application to vacate a compulsory conference – whether the practitioner engaged in professional misconduct or unprofessional conduct – whether the registration of the practitioner should be cancelled

CONSTITUTION – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – RECOGNITION OF STATE LAWS, RECORDS AND JUDICIAL PROCEEDINGS – whether the Health Ombudsman is a valid entity under the Australian Constitution

Australian Constitution, s 106, s 107, s 109

Criminal Code Act 1995 (Cth), s 135

Health Ombudsman Act 2013 (Qld), s 103(1)(a), s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5, s 130

Health Ombudsman v Antley [2016] QCAT 472

Health Ombudsman v Barber [2017] QCAT 431

Nursing and Midwifery Board of Australia v Hundy [2013] QCAT 691

Nursing and Midwifery Board of Australia v Williams [2013] QCAT SAHPT 1

Nursing and Midwifery Board of Australia v McKenzie [2011] QCAT 338

Nursing and Midwifery Board v Roos [2016] QCAT 231

APPEARANCES & REPRESENTATION:

 

Applicant:

L J Marshall of the Office of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    These proceedings arise from two separate disciplinary matters referred on behalf of the Health Ombudsman against the respondent, Ms Armstrong, pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (HO Act).   The first referral was filed on 14 April 2016 and amended on 22 March 2018.  A second referral was filed on 28 June 2017.
  2. [2]
    Pursuant to s 104 of the HO Act, QCAT is the responsible tribunal with jurisdiction to hear and decide the matters.

Background Facts

  1. [3]
    Ms Armstrong was first registered with the Nursing and Midwifery Board (the Board) as a nurse on 26 February 2004 and currently holds general registration as a registered nurse.  Ms Armstrong commenced working for Queensland Health in varying roles from 2000.
  2. [4]
    Ms Armstrong worked as a registered nurse at the Rockhampton Base Hospital from 15 March 2004.  At the time of the conduct the subject of the first referral, Ms Armstrong was working in the coronary care unit at that hospital.
  3. [5]
    Ms Armstrong was incarcerated for a 10-week period between 14 August 2013 and 23 October 2013.  She was suspended with pay by Queensland Health on 29 October 2013 and was suspended without pay on 25 November 2013 pending the outcome of her criminal history check.  Ms Armstrong resigned on 9 December 2013.
  4. [6]
    On 1 November 2014, Ms Armstrong commenced working as a registered nurse with Blue Care, working at its Capricorn Aged Care Facility, Yeppoon.  As at the date of hearing, Ms Armstrong continues to work in that position. 

The First Referral (OCR050-16)

  1. [7]
    Four charges are the subject of the first referral.  The charges arise from Ms Armstrong having been convicted of offences of obtaining a financial advantage under s 135 of the Criminal Code Act 1995 (Cth). Those offences resulted from a failure by Ms Armstrong to fully declare income from her employment with Queensland Health while receiving Parenting Payment single benefits from Centrelink. 
  2. [8]
    The four charges can be summarised as:
    1. (a)
      Charge 1 – Ms Armstrong was convicted in the Magistrates Court, on her own plea of guilty, on 14 August 2013, for the offence of obtaining a financial advantage for self in the period 16 August 2007 to 17 November 2010 resulting in a total overpayment of $22,560.70;
    2. (b)
      Charge 2 – The conviction of Ms Armstrong for having received the overpayment referred to in charge 1 resulted in a failure by her to comply with a condition of discharge or release imposed as a result of a previous conviction, namely, a peace and good behaviour bond;
    3. (c)
      Charge 3 – Contrary to s 130 of the Health Practitioner Regulation National Law (Queensland) (National Law), Ms Armstrong failed to notify the Board that:
      1. she had been served with a complaint and summons on 23 March 2012 charging her with the offences of receiving a financial benefit for self; and
      2. she had been convicted and sentenced in the Magistrates Court on 14 August 2013; and
    4. (d)
      Charge 4 – In completing her online renewal of registration application on 21 May 2012 and 26 June 2014, contrary to s 135 of the National Law, Ms Armstrong lied in relation to changes to her criminal history arising from the service of the complaint and the convictions in the Magistrates Court.
  3. [9]
    The previous conviction referred to in charge 2 was for the same offence of receiving overpayments from Centrelink.  On 5 October 2007, Ms Armstrong had been convicted, on her own plea of guilty, of receiving overpayments in an amount of $9,674.42 in the period 29 April 2004 to 12 October 2005.  For that offending, Ms Armstrong had been released on a recognisance of $1,000.00 on condition that she be of good behaviour for two years.  Ms Armstrong was also required to pay reparation of $7,849.63[1] and a pecuniary penalty of $750.00.  At the sentencing hearing on 5 October 2007, the Director of Public Prosecutions referred to Ms Armstrong having previously received overpayments from Centrelink totalling $1,926.00 between 1997 and 2005, all of which had been repaid.
  4. [10]
    Following the conviction on 5 October 2007, Ms Armstrong notified the then Queensland Nursing Council (QNC) of her conviction.  Ms Armstrong entered into an undertaking with the QNC on 26 October 2007; though the actual date on which the undertaking became operative seems a little unclear.  As a condition of the undertaking, Ms Armstrong was required to satisfactorily complete an education programme within six months focusing on “how decisions and actions in personal life do have a nexus and reflect upon nursing practice and the public’s perception of the nursing profession.”
  5. [11]
    There was some delay in Ms Armstrong undertaking the educational program with notification of the successful completion of the education program not being confirmed by the program provider to the QNC until 4 September 2008.
  6. [12]
    At the sentencing hearing on 14 August 2013, resulting in the conviction the subject of charge 1, one charge in relation to a further overpayment of an amount of $12,279.05 was withdrawn, though Ms Armstrong was nevertheless required to repay the full amount of the alleged overpayment. 
  7. [13]
    In relation to the overpayment the subject of charge 1, Ms Armstrong was sentenced to a maximum term of imprisonment of nine months to be released after serving 10 weeks upon giving security by recognisance of $1,000.00 and being required to be of good behaviour for two years.  As a result of this conviction, Ms Armstrong was convicted for the offence of breach of the earlier good behaviour bond, being the subject of charge 2.  For the breach offence, Ms Armstrong was fined $1,000.00. Convictions were recorded.

The Second Referral (OCR134-17)

  1. [14]
    The second referral alleges that Ms Armstrong provided a fraudulent medical certificate, dated 28 October 2017, to the tribunal in compliance with the direction for a medical certificate to be provided in support of her application for the adjournment of the compulsory conference which had been listed in the tribunal on 28 October 2016.

Professional Misconduct

  1. [15]
    It is alleged that as a result of the conduct, the subject of the four charges in the first referral and the conduct the subject of the second referral, Ms Armstrong has engaged in professional misconduct.  The conduct is alleged to be both substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience under the first limb of the definition of “professional misconduct” in the National Law and inconsistent with the practitioner being “a fit and proper person to hold registration” under the third limb of the definition.[2]
  2. [16]
    In the alternative, it is alleged in relation to the conduct the subject of the four charges in the first referral and the conduct in relation to the second referral that the conduct in respect of each of the charges is unprofessional conduct.

The Preliminary Point

  1. [17]
    A direction was made following a compulsory conference on 10 February 2017 that:

Whether or not the tribunal is properly constituted under the Constitution of Australia and whether the tribunal has jurisdiction to hear and determine this proceeding, shall be determined as a preliminary point.

  1. [18]
    Delays occurred in the filing of any submissions in support of the preliminary point, and ultimately the Tribunal proceeded on the basis that the preliminary point would be determined as part of the substantive proceedings. 
  2. [19]
    The following submissions and materials were filed in relation to the preliminary point by Ms Armstrong:
    1. (a)
      the response to the first referral in which Ms Armstrong made submissions to the effect that the matter could properly be categorised as constitutional, dated 1 July 2016;
    2. (b)
      an email enclosing submissions on the preliminary point annexing a flow chart disputing the validity of QCAT and the Health Ombudsman, dated 31 May 2017;
    3. (c)
      an email enclosing further submissions in response to the Health Ombudsman as well as various articles and flowcharts, dated 27 July 2017;
    4. (d)
      an email enclosing further submissions on the preliminary point, dated 18 August 2017;
    5. (e)
      an email requesting the vacation of hearing date and documentation in relation to the preliminary point, dated 20 September 2017;
    6. (f)
      an email in respect of the preliminary point, dated 3 October 2017; and
    7. (g)
      an email in respect of material relevant to the preliminary point, enclosing a copy of a royal assent and the flowchart detailing the validity of the Health Ombudsman, dated 15 December 2017.
  3. [20]
    The following material was filed by the Health Ombudsman in response:
    1. (a)
      submissions on the preliminary point, dated 14 June 2017;
    2. (b)
      submissions in response to Ms Armstrong’s application dated 20 September 2017 requesting the vacating of the hearing date, dated 25 September 2017.
  4. [21]
    The main argument which can be distilled from the various submissions filed by Ms Armstrong is that the tribunal and Office of the Health Ombudsman are not valid entities under the Australian Constitution and are therefore not capable of bringing or determining disciplinary proceedings against her.  Ms Armstrong’s focus became the validity of the Office of the Health Ombudsman and she did not continue to press for a finding of invalidity of the tribunal.
  5. [22]
    In her submissions, it is said that “under King Edward VII court” Queen Victoria appointed Edmund Barton as Governor-General for the Commonwealth, and that Edmund Barton then appointed himself first prime minister of Australia.  It is contended that everything done by Barton under his prime ministership was invalid, because “he was of the King’s court and not an Australian citizen”.  It is submitted that Barton thus had an “allegiance to a foreign power” in breach of the Constitution. It is then said all of the following Governor-Generals have also become invalid as they are aware of the deceit of Sir Edmond Barton, and their acts in turn becomes an act of high treason.
  6. [23]
    It is also argued that no letters patent were passed under the great seal to constitute the Governor-General to give him royal assent to separate the power of his laws of state inconsistent with the laws of the Commonwealth.  The argument appears to be that any laws purporting to create the Health Ombudsman were invalid as “only federal laws apply under the Federal Commonwealth of Australia Constitution 1901”. 
  7. [24]
    Ms Armstrong was also not satisfied that letters patent had accompanied the royal assent of the Health Ombudsman Bill 2013 (Qld), nor that it had been signed by the Governor-General as required (rather, it was signed by a ‘clerk of Parliament’); and also raised an issue with the Bill having been stamped with the United Kingdom seal.
  8. [25]
    There is little merit in attempting to address each argument made by Ms Armstrong, which demonstrate a fundamental misunderstanding of the Commonwealth and State Constitutions, and can only be described as misguided and ill-informed. 
  9. [26]
    The Health Ombudsman was created by an Act of the Queensland Parliament in 2013.  Assent was given to the Act by the then Governor of Queensland (Her Excellency Penelope Wensley AC) on 29 August 2013, as appears by a document tendered to the Tribunal by the Health Ombudsman.
  10. [27]
    The Constitution of the Commonwealth of Australia, by s 106 and s 107, maintains the states and their powers.  The State has broad legislative power under its constitution to pass laws including laws in relation to health.  The State had full power to enact the HO Act. 
  11. [28]
    By s 109 of the Commonwealth Constitution, a State law could be rendered invalid or inoperative to the extent of an inconsistency with an existing federal law.  No such inconsistency is suggested here.  
  12. [29]
    The validity of the HO Act cannot be affected by anything done or not done by the first Prime Minister of the Commonwealth, who, incidentally, was born in Australia at a time when the United Kingdom would not have been regarded as a foreign power and who was in fact never appointed Governor-General.
  13. [30]
    The preliminary point fails.

The Substantive Hearing

Conduct of the proceedings

  1. [31]
    In the conduct of the first referral proceedings before the Tribunal, the focus of Ms Armstrong’s response was the issue raised in the preliminary point.  That focus impacted her engagement in these proceedings.
  2. [32]
    Nevertheless, in her material, Ms Armstrong did provide a response to the draft statement of facts which had been provided to her by the Health Ombudsman in an unsigned letter dated 21 June 2016.  Ms Armstrong identified, by reference to the paragraph numbers of the draft statement of facts, which facts she disputed and gave a more detailed explanation of her position.
  3. [33]
    In the course of oral hearing, whilst maintaining her position disputing the legitimacy of the Health Ombudsman, Ms Armstrong referred to matters which she had previously stated in her defence.  In particular, the oral statements made during the course of the hearing by Ms Armstrong are consistent with statements made in a letter dated 7 April 2014 from Ms Armstrong to Ms Reynolds, senior investigator with the Australian Health Practitioner Regulation Authority (AHPRA), and in a letter dated 9 April 2015 from Ms Armstrong to Mr Massey, principal investigation officer with the Health Ombudsman’s office.  It is also consistent with her letter of resignation dated 8 November 2013.

First Referral Proceedings

Charges 1 and 2

  1. [34]
    In relation to charges 1 and 2, the Health Ombudsman simply relies on the fact of the conviction for social security fraud and breach of good behaviour bond as a result of the conviction.  The Health Ombudsman relies on the verdict and judgment record dated 14 August 2013, annexed to the affidavit of Ms Rosemary Anne Kent, as Queensland State Manager of AHPRA.[3] 
  2. [35]
    Ms Armstrong does not dispute that record.  It is clear on the face of that record that the matter proceeded by way of a plea of guilty by Ms Armstrong to the primary charge.  Ms Armstrong did not challenge the accuracy of the statement of facts and particulars prepared by the Director of Public Prosecutions for the purposes of the sentencing and the summary of facts in relation to the breach offence, also annexed to the affidavit of Ms Kent.[4]
  3. [36]
    Rather, the evidence proffered by Ms Armstrong gives an explanation for her offending and that evidence is more appropriately considered when determining sanction. 
  4. [37]
    The Tribunal finds the particulars of charges 1 and 2 proven. 

Charge 3

  1. [38]
    In relation to charge 3, the Health Ombudsman alleges that Ms Armstrong failed to notify AHPRA of a relevant event within seven days as required by s 130 of the National Law, the relevant events being the service of the complaint and summons on her on 23 March 2012 and her conviction on 14 August 2013. 
  2. [39]
    In support of this charge, the Health Ombudsman relied on the affidavit of Ms Alexandra Ritchie and the annexures to that affidavit being email communications between AHPRA and the Office of the Health Ombudsman.  In an email dated 23 March 2016, Christine McKeay of AHPRA stated, “There is no other information the practitioner has provided that is not in Pivotal.”[5]  Based on the material before the Tribunal, it is clear Ms Armstrong had not made any disclosures in completing her online applications as to any changes in her criminal history, although AHPRA had been informed of her conviction by Ms Hoey, as Executive Director of the Rockhampton Base Hospital.  The evidence provided by AHPRA did not confirm, however, that no notification had been provided by Ms Armstrong to AHPRA at the time of the service of the complaint and summons.
  3. [40]
    In her initial response to her employer by letter dated 8 November 2013, Ms Armstrong says that when the court case first began, she told her line manager, Ms Leanne Wall, being the nurse unit manager of the coronary care unit, of what was happening, as well as “the AHPRA board”.[6]  In subsequent interactions with AHPRA and the Health Ombudsman, Ms Armstrong’s position was that she had told Ms Wall at the very beginning of the court case and had asked Ms Wall whether there was anyone else she should contact.  She says Ms Wall told her there wasn’t.   She says Ms Wall failed to notify Ms Hoey as she was required to do.[7]
  4. [41]
    At the oral hearing, Ms Armstrong said that she could recall notifying AHPRA within days of being served with the complaint and summons.  Ms Armstrong maintained that she knew her responsibilities of notifying AHPRA and that she clearly recalls doing so.  The Tribunal does not accept that Ms Armstrong notified AHPRA.
  5. [42]
    By reference to previous correspondence between Ms Armstrong and the QNC at the time of her earlier offending, it is clear Ms Armstrong at that time appreciated the need for notification to the relevant regulator.[8]
  6. [43]
    In relation to her conviction, Ms Armstrong says on the day she went to prison, she had asked her good friend, Mr Cameron, to notify Ms Wall of her whereabouts and to notify AHPRA.  In her letter to the Health Ombudsman dated 21 June 2016, Ms Armstrong refers to having given Mr Cameron instructions to notify both.  At the oral hearing, Ms Armstrong said it would have been impossible for her to make contact with AHPRA from prison.  However, she does not refer to having made any attempts to do so. 
  7. [44]
    Unfortunately, Mr Cameron is now deceased.  The Tribunal was, however, provided with copies of email communications between Mr Cameron and Ms Reynolds of AHPRA.  From those communications, it does appear Mr Cameron accepted that Ms Armstrong requested that, if she was incarcerated, he notify Ms Wall of her incarceration and the length of the incarceration.  He did not accept that Ms Armstrong asked him to contact AHPRA or the Board about the charges or the conviction.[9] 
  8. [45]
    Ms Armstrong had a clear obligation to notify and clearly did not notify the regulator of the service of the complaint and summons, nor of her convictions. 
  9. [46]
    The Tribunal finds the particulars of charge 3 proven.

Charge 4

  1. [47]
    The Health Ombudsman alleges that Ms Armstrong lied in completing the online renewal of application forms in May 2012 and June 2014.  It is alleged that Ms Armstrong failed to declare the change in her criminal history resulting from the service of a complaint and summons on her in March 2012 and the convictions in August 2014. 
  2. [48]
    The Health Ombudsman relied on the affidavit of Ms Rosemary Anne Kent and the annexure to that affidavit, being the printout of the respondent’s renewal applications. 
  3. [49]
    In the online renewal application bearing a received dated of 21 May 2012, Ms Armstrong declared “No” in answer to the following questions:
  1. During your preceding period of registration, has there been any changes to your criminal history that you have not declared to AHPRA?
  1. Do you have any criminal history that you have not disclosed to AHPRA (other than that disclosed in the question above)?[10] 

Ms Armstrong had been served with the complaint and summons on 23 March 2012, two months prior to completing the online renewal of application form.

  1. [50]
    Then, in completing the online application form on 26 June 2014 for the registration period 1 June 2014 to 31 May 2015, Ms Armstrong again declared “No” in answer to the same two questions.  In that preceding 12-month period, Ms Armstrong had been convicted of social security fraud on 14 August 2013 and had spent 10 weeks incarcerated as a result of that conviction.
  2. [51]
    With respect to the failure to declare the service of the complaint and summons, Ms Armstrong again refers to the conversation with her line manager, Ms Wall.
  3. [52]
    With respect to the notification of the conviction, she says that she had asked Mr Cameron to notify AHPRA and AHPRA had already been told by the then Executive Director of the Rockhampton Base Hospital and that meant she was not required to make a declaration.  She says they already knew.[11]
  4. [53]
    The obligation on Ms Armstrong in completing her online application is very clear.  In relation to her conviction on 14 August 2013, the question is directed to declarations that she had made to AHPRA.  Even if the Tribunal had accepted the evidence of Ms Armstrong of having asked Mr Cameron, Ms Armstrong had never taken steps herself to make any declaration to AHPRA.  Ms Armstrong had a clear obligation to declare her conviction and she did not.
  5. [54]
    In terms of her obligation to have made a declaration in relation to the service of the complaint and summons, the requirement is to declare changes to the criminal history of the applicant.  In ordinary usage, there may be an argument that a person’s criminal history does not change by virtue of the service of a complaint and summons, but rather upon a conviction and at the time of completing the online application dated 21 May 2012, Ms Armstrong had not been convicted. 
  6. [55]
    However, pursuant to the terms of the National Law, criminal history is defined in very broad terms to include “every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this law.”[12]
  7. [56]
    It is unclear on the material before the Tribunal as to whether the online application form makes it clear that the term “criminal history” is to be interpreted in that very broad sense.
  8. [57]
    Nevertheless, ignorance of the law is no excuse.  Ms Armstrong had an obligation to disclose the complaint and summons served on 23 March 2012 and she did not do so.
  9. [58]
    The circumstances of this failure may be a relevant factor for the Tribunal to consider in terms of sanction, but that does not change the nature of the legal obligation.
  10. [59]
    The Tribunal finds the particulars of charge 4 proven.

Second Referral Proceedings

  1. [60]
    The Health Ombudsman alleges that Ms Armstrong falsified a medical certificate for the purpose of vacating the compulsory conference which had been set down in the first referral proceedings.  The Tribunal had directed the parties attend a compulsory conference on 28 October 2016 at 2.00 pm.
  2. [61]
    On the morning of the conference, Ms Armstrong telephoned the Office of the Health Ombudsman and requested the vacation of the conference because, she said, her daughter had hurt herself and had an ultrasound booked for 2.00 pm that day.[13]
  3. [62]
    On vacating the conference, a direction was made requiring the filing of a medical certificate stating why she could not attend the compulsory conference.[14]  Ms Armstrong filed a certificate contained on the letterhead of the Total Health Medical Centre signed by Dr Krasser and dated 28 October 2016 which stated, “In my opinion Maree Armstrong, mother of [Ms Armstrong’s daughter] will be unable to attend court because of illness of [Ms Armstrong’s daughter].  28/10/2016 to 28/10/2016.”[15]
  4. [63]
    The evidence before the Tribunal included an affidavit of Dr Krasser and confirmed that neither Maree Armstrong nor Ms Armstrong’s daughter were seen by Dr Krasser on 28 October 2016 and that Dr Krasser had not signed a medical certificate on 28 October 2016.
  5. [64]
    At the oral hearing, though not before, Ms Armstrong accepted that the certificate she filed in compliance with the Tribunal direction was false.[16]  She accepted, in falsifying the certificate, she had created the false letterhead and had inserted Dr Krasser’s signature on to the certificate.
  6. [65]
    The Tribunal finds the particulars of the referral proven.

Categorisation of conduct

  1. [66]
    The primary offending conduct is the conviction forming the basis of the particulars of charge 1.  It was that conviction which led to the breach offence giving rise to the particulars of charge 2.
  2. [67]
    The basis of that offending involves social security fraud.  Conduct of that kind is totally unacceptable for any practising nurse and it plainly satisfies the definition of “professional misconduct”. 
  3. [68]
    The failures to notify (charge 3) are secondary to the original misconduct in charges 1 and 2 of the first referral proceedings.  Whilst secondary, a failure to report may justify a finding of unprofessional conduct on its own, but its usual effect would be an aggravation to the totality of the conduct that has to be considered. [17]
  4. [69]
    The failure to make full declarations in the completion of the online application forms (charge 4) likewise can be treated as unprofessional conduct on its own.[18] On behalf of the Health Ombudsman, it was submitted that a finding of professional misconduct in terms of charge 4 could be made, given that there were two or more instances of unprofessional conduct.  In the circumstances of this case, the Tribunal considers that it is appropriately viewed as an aggravation to the totality of the conduct that the Tribunal is being asked to consider. 
  5. [70]
    Lastly, the falsification of the medical certificate, on any view, must be independently regarded as professional misconduct.  As submitted on behalf of the Health Ombudsman, the conduct in creating a false certificate is particularly egregious conduct and the dishonesty in those circumstances must constitute professional misconduct.

Sanction

  1. [71]
    Having found Ms Armstrong’s conduct amounts to professional misconduct, the Tribunal must consider the appropriate orders to be made in the exercise of its powers under s 107 of the HO Act.
  2. [72]
    The Health Ombudsman submits, having regard to the totality of this matter, the appropriate sanction is cancellation of the practitioner’s registration with a disqualification period of two years.
  3. [73]
    Ms Armstrong’s position is that she has been adequately dealt with in the criminal justice system for her misconduct and that no further sanction should be imposed.  She says that the principles of double jeopardy should prevent her being further dealt with for the same offending. 
  4. [74]
    The function of this Tribunal is quite separate to the role of the court in the criminal justice system.  It is true that Ms Armstrong has already been dealt with for her breaches of the criminal law and been punished accordingly.  This Tribunal is now inquiring into her conduct as a member of the nursing profession.  The fact of her having been dealt with in the criminal justice system does not prevent her as a professional from being dealt with by her professional body.  In any event, Ms Armstrong has only been dealt with in the criminal justice system in relation to charges 1 and 2 of the first referral proceedings, but not otherwise. 
  5. [75]
    The primary purpose of disciplinary proceedings, as distinct from any criminal proceedings, is to ensure that, as a member of a profession, she “adheres to the high standards expected of a member of the profession.”[19]  In imposing any sanction, the guiding principle for the tribunal is that the health and safety of the public are paramount.[20]  In contrast to the jurisdiction for criminal offending, the jurisdiction is protective, not punitive.[21]
  6. [76]
    In the exercise of its protective jurisdiction, the tribunal must consider issues of personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence in the profession.[22]
  7. [77]
    Central to any determination of sanction must be an assessment of the ongoing risk posed by the practitioner and the likelihood of the practitioner reoffending.  The degree to which the practitioner has acquired insight into their conduct will be relevant to that assessment as will evidence of rehabilitation. 
  8. [78]
    Matters which may be regarded as aggravating the conduct or mitigating its seriousness will need to be considered.[23]
  9. [79]
    In making its submissions as to sanction, the Health Ombudsman referred to the ongoing repeated dishonesty by the practitioner and the significant lack of insight and remorse into her behaviour.  Following her conviction in relation to Centrelink offences in 2006, Ms Armstrong then committed further like offences within the period of her good behaviour bond.  The Health Ombudsman referred to the fact of Ms Armstrong having committed the further offences while undergoing an education program intended to reinforce that decisions and actions in personal life do have a nexus to a person’s practice and the public’s perception of the profession.  Her offending conduct in respect of the further offences while undergoing such a program, it was said, showed a blatant disregard for her professional ethics and demonstrated significant disrespect for her profession and the regulatory system. 
  10. [80]
    The Health Ombudsman submitted that, despite pleading guilty and being convicted of the criminal offences, Ms Armstrong continues to blame Queensland Health when the evidence shows that she was not affected by the Queensland Health payroll issues.[24]
  11. [81]
    In her submissions, Ms Armstrong relies on the fact that at no stage have her dealings with patients or her colleagues ever come into question and it has never been suggested she ever placed them in any danger.  Ms Armstrong says she was forced to do what she did because she was either being incorrectly paid by Queensland Health or not being paid at all for the work that she had performed.  Ms Armstrong says she was affected by the whole payroll debacle.  Ms Armstrong says she had to misappropriate funds from Centrelink “to survive by keeping a roof over my head, and food on the table for my children.”[25]
  12. [82]
    In unsigned letters to AHPRA dated 7 April 2014 and an unsigned letter to the Health Ombudsman dated 21 June 2016, Ms Armstrong asserted that she was unable to work for a period in 2008 whilst being treated for thyroid cancer, for a period after March 2009 whilst recovering from a broken right foot, in 2009 after she tore two of her tendons in her left shoulder at work, whilst waiting for three broken toes in her foot to heal following another accident at work and whilst recovering from a dislocated shoulder and damage to her right AC joint following a car accident on the way to work in October 2011.  No documents supporting any of those statements, not even the work-related ones, were supplied to the Tribunal.  It is unclear whether or not the statements were made in the criminal proceedings where they would have been relevant, if true.
  13. [83]
    Ms Armstrong continued to maintain that had she been provided with the pay slips she had requested from Queensland Health then she would have been able to prove her innocence. 
  14. [84]
    Ms Armstrong further maintained that it had never been made clear to her that she had to include in declarations to Centrelink payments received for sick leave, annual leave or from superannuation. 
  15. [85]
    Ms Armstrong also maintained that she had asked others to notify the regulator at the time of her incarceration and that she could not be held responsible for their failures. 
  16. [86]
    Whilst her initial reaction was one of annoyance, Ms Armstrong did apologise at the hearing for the falsification of the medical certificate and said that she did understand that what she did in that regard was wrong.  She said at the time she was suffering from a “panic attack, anxiety and depression”.  She said everything just got “got completely out of control”.  Again, no documents were provided to the Tribunal in support of those statements.

Comparative cases

  1. [87]
    In support of its position, the Health Ombudsman referred to a number of cases involving Centrelink fraud.  The Health Ombudsman referred in particular to the decisions of Nursing and Midwifery Board of Australia v Hundy;[26] Nursing and Midwifery Board of Australia v Williams[27] and Nursing and Midwifery Board of Australia v McKenzie.[28]  The Health Ombudsman also referred to a decision in the matter of Nursing and Midwifery Board v Roos,[29] a 2006 decision involving repeated dishonesty by a nurse, albeit not in relation to Centrelink fraud.
  2. [88]
    In terms of the decisions referred to, particular reliance was placed by the Health Ombudsman on the South Australian decision in Williams.  Ms Williams was an enrolled nurse who had engaged in Centrelink fraud for a relatively lengthy period of 17 months between 2007 and 2008.  The amount of the overpayment was significantly less than that of Ms Armstrong, being an amount of sum $10,000.00 in total.  Ms Williams was convicted and sentenced to six months imprisonment which was suspended on her recognisance to be of good behaviour.  Like Ms Armstrong, Ms Williams did not accept responsibility for her offending and, in the case of Ms Williams, blamed Centrelink.  In the case of Ms Williams, there was also evidence of the giving of a false and misleading explanation about her conduct to board officials and to false assertions by Ms Williams of her being the holder of a diploma in nursing.  Like Ms Armstrong, Ms Williams’ conduct was largely outside of the normal course of nursing practice. 
  3. [89]
    In Williams, the tribunal commented that “the conduct manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of nursing practice.”[30]  The tribunal there commented that the Centrelink conduct on its own would render her liable to be regarded as not a fit and proper person to be a nurse but when combined with the other grounds considered that she definitely was not a fit and proper person.  Ms Williams’ registration was cancelled and she was prohibited from reapplying for registration for a period of two years. 
  4. [90]
    In contrast to Ms Armstrong, the tribunal in the case of Ms Williams observed that Ms Williams was remorseful.  As the tribunal has noted, with the exception of the falsification of the medical certificate, Ms Armstrong has shown no remorse for her behaviour, nor willingness to accept responsibility for it. 
  5. [91]
    Reliance was also placed by the Health Ombudsman on the decision of the tribunal in Roos.  Whilst Roos was not a case of Centrelink fraud, it involved a number of acts of dishonesty by the practitioner in using taxi vouchers for travel to and from work and the use of fictitious names when using the vouchers.  In total, the amount involved was only $1,200.50.  Of particular significance to the facts here, Ms Roos, like Ms Armstrong, had pre-existing criminal convictions involving dishonesty.  Those convictions, unlike Ms Armstrong’s, were some 12 years old.  Nevertheless, the tribunal found the overall picture in Roos to be one which gave cause for concern as to “the respondent’s character and fitness to practice as a nurse”.[31]

Discussion

  1. [92]
    The Tribunal accepts that the evidence demonstrates a long history of dishonest conduct.  Despite her initial prosecution for Centrelink-related offences in 2006, Ms Armstrong persisted in her behaviour.  Ms Armstrong offended for a second time resulting in a breach of her good behaviour bond.  Despite her pleas of guilty to the second offending, in these proceedings she still refuses to accept the responsibility for any wrongdoing.  Ms Armstrong continues to seek to blame the “payroll debacle” within Queensland Health.  She continues to maintain that had she been provided with the pay slips as requested she would have been able to prove her innocence.  However, in these proceedings, it became clear that by that she meant at best that she would be able to prove that she was not being paid in a timely manner for work done, rather than being able to prove that she had not received any overpayments from Centrelink.  These statements of Ms Armstrong are not supported by any evidence. 
  2. [93]
    Very significantly, whilst undertaking the education program as a term of the undertaking entered into with the then QNC resulting from her first offending, she was committing further offences of the same type.  In these proceedings, she continues to refuse to accept responsibility for her offending and continues to fail to recognise the connection between decisions made and actions taken in her personal and how this reflects on her professional life. 
  3. [94]
    The only issue in respect of which Ms Armstrong shows any appreciation of wrongdoing was the falsification of the medical certificate.  Given the evidence before the Tribunal, it was difficult for her to attempt to do otherwise.  The steps taken by Ms Armstrong in the preparation of that certificate, however, give a disturbing insight into the levels of deception to which she is prepared to descend in order to protect her own position.
  4. [95]
    It is the repeat behaviour of Ms Armstrong, particularly while undertaking an education program directed to correcting that very same behaviour, and the refusal by Ms Armstrong to accept responsibility for her behaviour and to continue to blame others that suggests Ms Armstrong to be a person who is “simply unsuitable to be a member of an honourable profession”.[32]
  5. [96]
    By way of mitigation, like in Roos, Ms Armstrong points to financial strain.  Additionally, it would be fair to observe that it would appear that Ms Armstrong has had a series of very unfortunate life events which had placed particular strain on her. 
  6. [97]
    However, even in these proceedings, Ms Armstrong continued to show an unwillingness to accept responsibility for her conduct which suggests an underlying character flaw which she has not recognised and certainly not sought to deal with.  The Tribunal is not satisfied that she is not at risk of reoffending.

Conclusion

  1. [98]
    The Tribunal considers that it is appropriate Ms Armstrong’s registration should be cancelled and that, in the circumstances, she be precluded from reapplying for two years.  As Ms Armstrong is currently employed in her capacity as a registered nurse, and given the passage of time since the matter was heard, it is desirable that her cancellation commence on a date which will permit appropriate arrangements to be made.  The Tribunal has power to make an order for a decision to take effect on a future date.  In recognition of the fact that Ms Armstrong lives and works in a more remote area, and so as to enable appropriate arrangements to be made to find a replacement given the time of year, the Tribunal will delay the commencement date of the cancellation.
  2. [99]
    The registration of Ms Armstrong at any future time will be a matter for the Board.  At the time of reapplying, Ms Armstrong will need to satisfy the Board that she is entitled to be registered including that she has currency of practice and is a fit and proper person to be registered.
  3. [100]
    As requested by the Health Ombudsman at the hearing, an order will be made permitting the filing of an application and submissions for the making of an order for costs. 

Orders

  1. [101]
    Accordingly, the Tribunal orders that:
  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Ms Armstrong has behaved in a way that constitutes professional misconduct.
  1. Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), Ms Armstrong’s registration is cancelled, effective from 14 January 2019.
  2. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), Ms Armstrong is disqualified from applying for registration for a period of two years, commencing on and from 14 January 2019.
  3. The Health Ombudsman is to file in the tribunal and serve on Ms Armstrong any application for costs and written submissions in support by 4.00 pm on 21 December 2018.
  4. Ms Armstrong is to file in the tribunal and serve on the Health Ombudsman any written submissions in response to any such application by 4.00 pm on 18 January 2019.
  5. Any application for costs will be determined on the papers.

Footnotes

[1]By the date of sentencing, this amount together with the payments already made would result in the repayment of the full amount of $9,674.42.

[2]National Law, s 5.

[3]Affidavit of Rosemary Anne Kent, dated 22 November 2017, p 7-8.

[4]Ibid, p 20-24.

[5]Affidavit of Alexandra Louise Ritchie, dated 22 November 2017, p 2-3.

[6]Affidavit of Joanne Elizabeth Chapman, dated 13 November 2017, p 3.

[7]Affidavit of Rosemary Anne Kent, dated 22 November 2017, p 45.

[8]Affidavit of Rosemary Anne Kent, dated 22 November 2017, p 122.

[9]Ibid, p 32.

[10]Ibid, p 78.

[11]Affidavit of Rosemary Anne Kent, dated 22 November 2017, p 45; Transcript of Proceedings, Health Ombudsman v Armstrong (Queensland Civil and Administrative Tribunal, OCR050-16;OCR134-17; Judge Sheridan, Mr McNab, Ms Brook, Mr G Lawrence, 22 March 2018) p 1-106, l 10 (M Armstrong) (Transcript of Proceedings).

[12]National Law, s 5.

[13]Transcript of Proceedings, p 1-70, l 22 (L Marshall).

[14]Tribunal directions dated 28 October 2016 and 2 December 2016.

[15]Affidavit of Dr Cornelia Petra Krasser dated 23 May 2017.

[16]Transcript of Proceedings, p 1-105, l 22-33

[17]Health Ombudsman v Antley [2016] QCAT 472, [31].

[18]Health Ombudsman v Barber [2017] QCAT 431, [27].

[19]Ha v Pharmacy Board of Australia [2002] VSC 322, [89].

[20]HO Act, s 4(1). 

[21]Clyne v NSW Bar Association (1960) 104 CLR 116; NSW Bar Association v Evatt (1968) 117 CLR 177, 183; Medical Board of Australia v Dolar [2012] QCAT 271, [30]. 

[22]HCCC v King [2013] NSWMT 9. 

[23]Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S), [35]. 

[24]Affidavit of Joanne Elizabeth Chapman dated 13 November 2017, p 5.

[25]Ibid.

[26][2013] QCAT 691 (Hundy).

[27][2013] QCAT SAHPT 1 (Williams).

[28][2011] QCAT 338 (McKenzie).

[29][2016] QCAT 231 (Roos).

[30][2013] QCAT SAHPT 1, [18].

[31][2016] QCAT 231, [20].

[32][2016] QCAT 231, [27].

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Maree Josephine Armstrong

  • Shortened Case Name:

    Health Ombudsman v Armstrong

  • MNC:

    [2018] QCAT 382

  • Court:

    QCAT

  • Judge(s):

    Sheridan DCJ

  • Date:

    29 Nov 2018

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
Clyne v NSW Bar Association (1960) 104 CLR 116
1 citation
Jump To
Cite 1 - (1960) 104 CLR 116
Ha v Pharmacy Board of Victoria [2002] VSC 322
1 citation
Jump To
Cite 1 - [2002] VSC 322
Health Care Complaints Commission v King [2013] NSWMT 9
1 citation
Jump To
Cite 1 - [2013] NSWMT 9
Health Ombudsman v Antley [2016] QCAT 472
2 citations
Jump To
Cite 1 - [2016] QCAT 472
Cite 2 - [2016] QCAT 472
Health Ombudsman v Barber [2017] QCAT 431
2 citations
Jump To
Cite 1 - [2017] QCAT 431
Cite 2 - [2017] QCAT 431
LEGAL PROFESSION COMPLAINTS COMMITTEE and A LEGAL PRACTITIONER [2013] WASAT 37
1 citation
Jump To
Cite 1 - [2013] WASAT 37
Medical Board of Australia v Dolar [2012] QCAT 271
1 citation
Jump To
Cite 1 - [2012] QCAT 271
New South Wales Bar Association v Evatt (1968) 117 CLR 177
1 citation
Jump To
Cite 1 - (1968) 117 CLR 177
Nursing and Midwifery Board of Australia v Hundy [2013] QCAT 691
2 citations
Jump To
Cite 1 - [2013] QCAT 691
Cite 2 - [2013] QCAT 691
Nursing and Midwifery Board of Australia v McKenzie [2011] QCAT 338
2 citations
Jump To
Cite 1 - [2011] QCAT 338
Cite 2 - [2011] QCAT 338
Nursing and Midwifery Board of Australia v Roos [2016] QCAT 231
4 citations
Jump To
Cite 1 - [2016] QCAT 231
Cite 2 - [2016] QCAT 231
Cite 3 - [2016] QCAT 231
Cite 4 - [2016] QCAT 231
Nursing and Midwifery Board of Australia v Williams [2013] QCAT SAHPT 1
3 citations
Jump To
Cite 1 - [2013] QCAT SAHPT 1
Cite 2 - [2013] QCAT SAHPT 1
Cite 3 - [2013] QCAT SAHPT 1

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v Chaffey [2020] QCAT 542 citations
Health Ombudsman v Kong [2020] QCAT 2812 citations
Health Ombudsman v Niem Quoc Tang [2020] QCAT 1652 citations
Health Ombudsman v Russell [2021] QCAT 1883 citations
Nursing and Midwifery Board of Australia v Dunjey [2024] QCAT 962 citations
Nursing and Midwifery Board of Australia v Grant Burrows [2020] QCAT 1642 citations
1

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