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- Unreported Judgment
Health Ombudsman v HPT QCAT 114
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v HPT  QCAT 114
Occupational regulation matters
22 March 2019
16 November 2018
is prohibited to the extent that it could identify or lead to the identification of the respondent.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent had been convicted of various criminal offences – where false information had been provided in the application for registration and in a renewal application – where there had been failures to notify the Board of further charges – where the respondent had an impairment at the time of offending – where the respondent admitted professional misconduct – whether agreed sanction between the parties is appropriate – whether period of disqualification from re-applying for registration is necessary
Health Ombudsman Act 2013 (Qld), s 4, s 103, s 107
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Health Practitioner Regulation National Law (Queensland), s 5, s 130, s 144, s 146, s 225, s 226
Health Care Complaints Commission v Do  NSWCA 307, cited.
Medical Board of Australia v Martin  QCAT 376, cited.
Medical Board of Australia v Fitzgerald  QCAT 425, cited.
APPEARANCES & REPRESENTATION:
M Price, counsel instructed by the Office of the Health Ombudsman
E Smythe, solicitor instructed by Roberts & Kane
REASONS FOR DECISION
- This is a referral by the Health Ombudsman of a complaint concerning the conduct of an enrolled nurse, made under s 103(1)(a) of the Health Ombudsman Act 2013 (HO Act). The referral was filed in the tribunal on 20 December 2017.
- The charges in the referral relate broadly to the respondent having been convicted of various criminal offences, having provided false information to the Nursing & Midwifery Board of Australia (Board) in her application for registration as an enrolled nurse and in her renewal application in failing to disclose that she had been convicted of criminal offences and having failed to notify the Board as required under s 130 of the Health Practitioner Regulation National Law (Queensland) (National Law) that she had been charged with and convicted of criminal offences.
- The matters alleged in the referral arose from a health service complaint made on 3 June 2015. The health service complaint was in the form of a voluntary notification falling within s 144 and s 146 of the National Law.
- The parties filed a statement of agreed facts and joint submissions, in which it was submitted the appropriate orders the Tribunal should make were:
- (a)in relation to each charge, a finding of unprofessional conduct;
- (b)in relation to the conduct as a whole, a finding of professional misconduct;
- (c)that the respondent be reprimanded; and
- (d)that the respondent be precluded from applying for registration as a registered health practitioner for a period of three months from the date of this decision.
- The parties sought no orders as to costs.
Relevant facts and circumstances
- On 14 March 2014, the respondent was granted general registration as an enrolled nurse. Prior to this, the respondent had worked in the health sector since 2002 in various roles; firstly as a carer, and then as an assistant in nursing at various nursing homes and retirement villages.
- Upon being granted registration, the respondent went from being an assistant in nursing to an enrolled nurse at an aged care facility where she was then working and had been working since 2013.
- Her employment records indicate a number of work related incidents in 2015 and 2016 including a period of absence from work without a proper medical certificate. One of the absences from work was in fact due to a period of incarceration as a result of criminal offending.
- The respondent received two disciplinary sanctions between 2015 and 2016 and her employment was ultimately terminated on 15 July 2016 as a result of conduct regarding the administration of medication. At the time of either the disciplinary sanctions or termination of employment, her employer did not make any notification to the Board (or the Australian Health Practitioner Regulation Agency (AHPRA)) or the Health Ombudsman in relation to the conduct of the respondent.
- AHPRA and the Health Ombudsman were notified of a complaint by letter dated 3 June 2015 from the Queensland Health Police Liaison Unit of the Queensland Police Service. The court briefs in relation to the charges against the respondent were provided. On the basis of the information received the notifications committee of the Board decided to require the respondent to undergo a health assessment, it being said that the committee had formed a reasonable belief of the potential existence of a health impairment. The committee noted at the time that no complaint had been received from the respondent’s employer.
- Health assessment reports were obtained. The report dated 20 November 2015 concluded that the respondent “shows evidence” of “alcohol dependence (in sustained remission)” and “depressive disorder [not otherwise specified].” The Board concluded that the respondent was suffering from an impairment and on 1 December 2016 the Board imposed conditions on the respondent’s registration including a condition that the respondent not practise as an enrolled nurse until approval had been received from the Board.
- The Board’s investigation into the conduct giving rise to the respondent’s employment being terminated led to the respondent being formally cautioned by the Board as a result of a decision taken on 29 June 2017. By the time that conduct was being considered by the Board, the respondent had not worked as a health care worker since the termination of her employment in July 2016.
- The respondent’s renewal of registration was due on 31 May 2017. The respondent did not seek at that time to renew her registration and as a result her registration lapsed.
Conduct the subject of the referral
- The office of the Health Ombudsman conducted its own investigation into the conduct of the respondent including an interview with the respondent on 7 April 2017. The investigation revealed the extent of the respondent’s conduct which had led to court appearances and convictions and her non-disclosures in applying for her registration and in her applications for the renewal of her registration.
- By reference to the nine charges the subject of the referral, the conduct can be summarised as:
- (a)Charge 1 - On 19 February 2014, the respondent provided false information in her online application for registration as an enrolled nurse. She answered “no” to the question on the application form “Do you have a criminal history in Australia?”, in circumstances where, on 14 October 2013, she had pleaded guilty to and was convicted of driving over the general alcohol limit but not over the middle alcohol limit, with a conviction being recorded;
- (b)Charge 2 - On 12 January 2015, the respondent was convicted of a criminal offence. That conviction related to conduct on 17 November 2014, where the respondent was charged with being in charge of a motor vehicle while over the middle alcohol limit but not over the high alcohol limit, after she was discovered sitting in her parked car with the lights on and motor running. She was fined $800 and was also disqualified from holding a licence for eight months;
- (c)Charge 3 - The respondent failed to notify the Board of the conviction referred to in charge 2 as required by s 130 of the National Law;
- (d)Charge 4 - On 16 February 2015, the respondent failed to notify the Board within seven days of being charged with an offence relating to having on 8 February 2015 driven without a licence while disqualified from holding a licence and driven when over the general alcohol limit but not over the middle alcohol limit;
- (e)Charge 5 - On 17 February 2015, the respondent failed to notify the Board within seven days of being charged with an offence relating to having on 9 February 2015 driven without a licence while disqualified from holding a licence, and driven when over the no alcohol limit while unlicensed;
- (f)Charge 6 - On 10 May 2015, the respondent failed to notify the Board within seven days of having been charged with an offence relating to having driven on 1 May 2015 without a licence while disqualified from holding a licence and of being in breach of a bail condition;
- (g)Charge 7 - On 15 May 2015, the respondent pleaded guilty to and was convicted of six criminal offences under the Transport Operations (Road Use Management) Act 1995 (Qld) and the Bail Act 1980 (Qld), relating to the charges brought as detailed in charges 4, 5 and 6;
- (h)Charge 8 - The respondent failed to notify the Board of the criminal convictions the subject of charge 7 as required by s 130 of the National Law; and
- (i)Charge 9 - On 31 May 2015, the respondent provided false information in her online application for the renewal of her registration as an enrolled nurse, in that she stated that there had not been any change to her criminal history, despite the convictions outlined in charge 7 above.
Categorisation of Conduct
- The primary offending conduct of the respondent is contained in charges 1 and 9, and, 2 and 7.
- The conduct the subject of charges 1 and 9 relates to the respondent having provided false information in her initial application for registration in February 2014 and in her online renewal application lodged on 31 May 2015. To the questions asking if the respondent had any criminal history, the respondent answered negatively, despite knowing in February 2014 that she had been convicted of one offence on 14 October 2013 and despite knowing in May 2015 that she had been convicted of multiple criminal offences.
- The parties have agreed that the conduct in providing false information in completion of her registration applications amounts to unprofessional conduct. In their joint submissions, the parties make reference to a previous tribunal decision where it has been accepted that such conduct amounts to unprofessional conduct. Such admissions by the respondent are appropriately made.
- Further, the parties have agreed that the conduct, giving rise to the convictions of the criminal offences, the subject of charges 2 and 7, constituted unprofessional conduct. At the time of filing the referral, the Health Ombudsman had alleged that the conduct the subject of the criminal convictions as detailed in charge 7 amounted to professional misconduct and that her overall conduct meant that she was not a fit and proper person to hold registration.
- At the hearing, leave was granted to the Health Ombudsman to file an amended referral so as to delete any reference to an allegation that the respondent’s overall conduct meant that she was not a fit and proper person to hold registration.
- The Health Ombudsman proceeded on the basis that the conduct the subject of the convictions fell within the definition of unprofessional conduct contained in s 5 of the National Law, namely “the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession.”  The joint submissions comment that it is well established that criminal conduct by a practitioner may constitute either unprofessional conduct or professional misconduct depending on the nature of the offending. In referring to previous decisions of health disciplinary tribunals, it was said that professional misconduct is typically found in cases involving violence, dishonesty or stealing.
- As the Tribunal has previously commented, the failures to notify the subject of charges 3, 4, 5, 6 and 8 should be treated as secondary to the primary misconduct and should be treated as an aggravation of the totality of the conduct to be considered by the Tribunal.
- Given the totality of the conduct, it is unnecessary for the Tribunal to reach any concluded view as to how the conduct the subject of the convictions should be treated for the purposes of the definitions in the National Law. The parties have agreed that the totality of the conduct as detailed in charges 1 to 9 amounts to conduct substantially below the standard reasonably expected of a registered health practitioner and amounts to professional misconduct. The Tribunal agrees and accordingly, finds the totality of the conduct the subject of charges 1 to 9 amounts to professional misconduct within sub-paragraph (b) of the definition in s 5 of the National Law.
- The Tribunal, having found that the respondent has behaved in a way that constitutes professional misconduct, must decide the appropriate sanction to be imposed.
- Protection of the public includes protection from similar conduct by this practitioner and other practitioners and upholding public confidence in the standards of the profession. Denouncing the conduct will operate as both specific and general deterrence.
- Considerations as to whether the practitioner presents any ongoing risk will be central. The degree of insight and evidence of rehabilitation will be relevant. 
- Given the circumstances of this case, and the underlying health conditions the respondent was suffering at or around the relevant time, the steps taken by the respondent subsequent to the conduct the subject of the charges will be critical.
- It is accepted in the joint submissions that the respondent’s health issues contributed to, but do not excuse, her poor decision making in committing the offences. The criminal offending occurred during the period between August 2013 and May 2015. The respondent speaks in terms of that period being a “very dark time” in her life.
- In the statement of agreed facts it is accepted that the respondent has not consumed alcohol since 26 March 2015. The health assessment report obtained by the Board and dated November 2015 commented that by her own assertions the respondent had been sober for over seven months. The report speaks in terms of the respondent’s past alcohol dependency.
- The report refers to the respondent continuing in outpatient psychiatric care and to the respondent receiving psychotherapy and pharmacotherapy for her depressive condition.
- The report concluded that the respondent’s impairment does not explain her workplace conduct or performance issues. As the respondent had already been dealt with by the Board in relation to that conduct, appropriately that conduct is not the subject of any charges in the referral.
- The references provided by the respondent speak in glowing terms of the contributions the respondent is making in her new role as a medical receptionist at an indigenous health centre, a position she has held since July 2018. The centre is located in a dry community in the Northern Territory. The reference given by a social worker with the Flying Doctor service refers to the extremely difficult time in her life and the deep remorse that the respondent feels for her past actions.
- It is relevant that the respondent has been compliant throughout these proceedings, making full admissions when interviewed. As her lawyer said in oral submissions, she “really did fall on [her] sword immediately with all of these charges”. She says the respondent accepts the behaviour was unacceptable and says she has always been very humiliated and quite ashamed by the circumstances she found herself in.
- In terms of the offending conduct, it is clear that at that time she had no support network at all and felt completely alone, as evidenced by the behaviour that saw her drinking alone in her car across the road from where she lived with her parents. She had been forced to move to the city following her separation from her husband, in circumstances where she had spent a large part of her life in the country and felt more at home in the country.
- At the time of the filing of the joint submissions in May 2018, the position agreed by the parties had been that, in addition to a reprimand, the respondent should be disqualfied for a period of three months from the date of the Tribunal’s decision from re-applying for registration. It was accepted that, at that time, the respondent “had spent roughly a year without registration.”
- By the time the matter was heard by the Tribunal in November 2018, it had been 18 months since the respondent allowed her registration to lapse. In oral submissions, the Health Ombudsman maintained the position that a period of disqualification was necessary; notwithstanding the five month period which had elapsed since the filing of the joint submissions and the period between the hearing and the delivery of the Tribunal’s decision.
- When questioned, the highest the submission was put on behalf of the Ombudsman was that there were issues of general deterrence. Otherwise, on the basis of comparative authorities, there seem to be acceptance that a period of 18 months without registration was an appropriate period in all the circumstances. On behalf of the respondent it was submitted that, by the time of the oral hearing, the respondent had spent sufficient time without registration and that a period of disqualification from re-applying was not necessary.
- On the basis of the evidence before the Tribunal, the Tribunal raised a question as to the extent of the respondent’s rehabilitation. The statement of agreed facts and the joint submissions made reference to the “significant steps to address her alcohol dependance”. It was accepted that the respondent had not consumed alcohol since 26 March 2015.
- In terms of her “depressive condition”, there is the discussion in the health assessment report in November 2015 which concluded that her condition had stabilised and that she is in regular ongoing treatment and compliant with treatment. The report concluded that she is safe to practise as an enrolled nurse. There is no evidence before the Tribunal of any relapse and there is the comment in the reference provided by the social worker with the Flying Doctor service in November 2018, who currently works with the respondent, of the respondent showing no signs of depression or anxiety. The reference makes it clear that the writer is aware of the past health issues of the respondent.
- There was no suggestion by the Health Ombudsman of any ongoing impairment.
- The Tribunal is of the view that the imposition of a reprimand, together with the finding of professional misconduct for the totality of the misconduct, sends a clear message of denunciation in terms of the behaviour. A reprimand is not a trivial penalty. Upon any subsequent grant of registration, the fact of the reprimand will become a matter of public record and will remain on the practitioner’s registration until the National Board “considers it is no longer necessary or appropriate for the information to be recorded on the Register”.
- The Tribunal does not consider any additional sanction is required to be imposed.
- The parties jointly submitted that each party should bear their own costs.
Non- Publication Order
- A joint application was made at the oral hearing for a non-publication order to be made in relation to the health assessment report. The health assessment report was obtained as a result of the committee of the Board forming a belief that the practitioner may have an impairment. The Tribunal has made a non-publication order in relation to the report.
- There are references to the report, and to the conclusions reached in the report as to the underlying health conditions of the respondent, in the record of proceedings. The transcript of the oral hearing and these reasons contain such references.
- In those circumstances, the Tribunal considers that in order to retain the non-publication status of the report, it is necessary to extend the terms of the non-publication order. The Tribunal considers, at this stage of the proceedings, the only practical order is to extend the non-publication order so as to protect the identity of the respondent. These reasons have therefore been de-identified.
- The parties will be given liberty to apply to further vary the terms of the non-publication order, and the consequences which flow from it, including the de-identification of these reasons. Any such application must be made within 14 days of the date of this decision.
- If no application is made within 14 days, this decision will be further published in this form. If an application is made, then this decision shall not be further published until such application is determined.
- Accordingly, it is the decision of the Tribunal that:
- Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
- Pursuant to s 107(3) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
- Until further order, pursuant to s 66(1) of Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
- (a)the contents of a document or thing filed in or produced to the tribunal;
- (b)the hearing before the tribunal; and
- (c)any order made or reasons given by the tribunal,
is prohibited to the extent that it could identify or lead to the identification of the respondent.
- Any application to vary the terms of the non-publication order must be made by 5 April 2019.
- This decision including the reasons for the decision shall not be published other than to the parties until 14 days after the making of this decision.
- If an application is made to vary the terms of the non-publication order, this decision including the reasons for the decision shall not be published other than to the parties until such application is determined.
- Each party bears their own costs.
Exhibit 2, Tab 13, pg 263.
Nursing & Midwifery Board v Mberi  QCAT 451.
Sub-paragraph (c) of the definition of unprofessional conduct, National Law, s 5.
See, for example, Nursing & Midwifery Board of Australia v Seijbel-Chocmingkwan  QCAT 283; Health Care Complaints Commission v Hutchinson  NSWCATOD 151; Nursing & Midwifery Board of Australia v McKenzie  QCAT 338.
HO Act, s 107(3).
See, for example, Medical Board of Australia v Martin  QCAT 376 and Medical Board of Australia v Fitzgerald  QCAT 425.
Medical Board of Australia v Fitzgerald  QCAT 425, .
 See, for example, Clyne v NSW Bar Association (1960) 104 CLR 116; NSW Bar Association v Evatt  HCA 20; (1968) 117 CLR, 183; Medical Board of Australia v Dolar  QCAT 271, .
HO Act, s 4(1).
Health Care Complaints Commission v Do  NSWCA 307, .
Medical Board of Australia v Blomeley  QCAT 163, .
Exhibits 4 and 5.
See, for example, Medical Board of Australia v Grant  QCAT 285, ; Medical Board of Australia v Jones  QCAT 362, .
National Law, s 225.
National Law, s 226(3).
- Published Case Name:
Health Ombudsman v HPT
- Shortened Case Name:
Health Ombudsman v HPT
 QCAT 114
Judge Sheridan, Dr K Forrester, Mr J McNab, Mr K MacDougall
22 Mar 2019