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- Unreported Judgment
The Health Ombudsman v Kiley QCAT 19
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
The Health Ombudsman v Kiley  QCAT 19
THE HEALTH OMBUDSMAN
Occupational regulation matters
19 February 2019
5 December 2018
Ms Ibi Patane
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY MATTERS – where the respondent nurse made and presented fraudulent medical certificates– where the respondent was charged with and convicted of 3 counts of fraud in relation to those acts – where the respondent failed to notify the Nursing and Midwifery Board of Australia of the charges and the convictions and other relevant events – where the respondent made a false declaration in completing her online renewal of registration application- where the respondent voluntarily surrendered her registration – where the respondent admitted that her conduct in making and presenting the fraudulent medical certificates amounted to professional misconduct – where the parties reached an agreed position as to sanction– whether the sanction proposed is appropriate
Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 109, s 130, s 226
Health Care Complaints Commission v Do  NSWCA 307
Medical Board of Australia v Fitzgerald  QCAT 425
APPEARANCES & REPRESENTATION:
Mr Harwood of the Office of the Health Ombudsman
REASONS FOR DECISION
- On 29 March 2018, the Health Ombudsman referred to the Tribunal disciplinary proceedings against Ms Kiley. The referral was made pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (HO Act).
- There are three charges the subject of the referral. In summary, it is alleged that:
- (a)Charge 1 – On 19 May 2017, Ms Kiley pleaded guilty to and was convicted in the Southport Magistrates Court of three counts of fraud in relation to fraudulently creating and presenting medical certificates to her employer on three occasions; and
- (b)Charge 2 – Contrary to s 130 of the Health Practitioner Regulation National Law (Queensland) (National Law), Ms Kiley failed to notify the Board of having been charged and of her criminal convictions; and
- (c)Charge 3 – In completing her online renewal of registration application on 1 June 2017, contrary to s 109 of the National Law, Ms Kiley falsely answered questions in relation to changes to her criminal history arising from the charges and the convictions in the Magistrates Court.
- It is alleged in the referral that as a result of the conduct the subject of charge 1, Ms Kiley has engaged in professional misconduct, or in the alternative, unprofessional conduct and in relation to the conduct the subject of charges 2 and 3, unprofessional conduct, as those terms are defined in the National Law.
- Ms Kiley has admitted all charges and the matter has proceeded before the Tribunal by way of a statement of agreed facts and joint submissions on sanction.
Relevant facts and circumstances
- Ms Kiley was first registered as an Enrolled Nurse on 17 June 2013. She held general registration with the Board until she voluntarily surrendered her registration on 22 December 2017.
- At the relevant time, Ms Kiley was working at the Gold Coast University Hospital (the Hospital) in the Renal Home Therapies unit, a position she had held since 31 October 2016. Her position was terminated on 13 September 2017 as a result of the conduct the subject of this referral.
- Between 18 and 20 January 2017, Ms Kiley was absent from work. Upon her return, Ms Kiley used a work computer to fraudulently create a medical certificate from Pacific Pines Medical Centre which stated that she had a medical condition and was unfit for work during those days. Ms Kiley then emailed the certificate to her nurse unit manager with a request for that leave to be taken as paid annual leave. Absent the medical certificates, Ms Kiley had insufficient sick leave, and may have had to take those days as leave without pay.
- Ms Kiley proceeded to engage in this process two more times. She took sick leave from 31 January to 2 February 2017 and 15 March to 17 March 2017.
- At a meeting with her nurse unit manager on 21 March 2017 to discuss Ms Kiley’s significant sick leave over the past months, Ms Kiley was requested to provide original copies of her medical certificates.
- On 27 March 2017, the Hospital noticed that the certificates which Ms Kiley had provided appeared different to the ones which Ms Kiley had emailed. Pacific Pines Medical Centre was then asked by the Hospital to verify two of the certificates. Pacific Pines Medical Centre notified the Hospital that the two medical certificates which had been provided to them were fraudulent and that Ms Kiley had not attended the centre on the relevant dates.
- On 20 April 2017, the Hospital emailed the third medical certificate to Pacific Pines Medical Centre and were notified by the centre that it was also fraudulent.
- The Queensland Police Service (QPS) were notified by the Hospital of these events. On 29 April 2017, Ms Kiley was interviewed by QPS and made full admissions to having created the three false medical certificates on her work computer. Ms Kiley was charged with three counts of fraud and issued with a notice to appear in the Southport Magistrates Court.
- On 8 May 2017, the Office of the Health Ombudsman (OHO) were notified of the charges against Ms Kiley.
- On 19 May 2017 at the Southport Magistrates Court, Ms Kiley pleaded guilty to and was convicted of the three counts of fraud. She was released on a good behaviour bond in the sum of $750 for a 9 month period with no conviction recorded.
- On 26 May 2017, Ms Kiley was required to attend an interview at the Hospital, following notification to the Hospital of the bringing of the charges. Ms Kiley again made full admissions. In the interview notes, there is reference to Ms Kiley having advised of a history of depression and expressing regret for having made and supplied the false certificates.
- On 1 June 2017, Ms Kiley applied to the Australian Health Practitioners Regulation Authority for annual renewal of her registration as a nurse. In the online application form, Ms Kiley was asked if there had been any changes to her criminal history in the last 12 months. Ms Kiley answered ‘no’ despite knowing this to be incorrect.
- In her correspondence with the Hospital, Ms Kiley explained that she had suffered a “flare up” of her depression following the recent passing of her grandmother who had raised her. She explained that there were some days when she “could not get up, let alone see a doctor”.
- Ms Kiley stated that she had previously dealt with her condition in an acceptable manner, “taking regular medication, exercising, eating health[y] etc.”
- Ms Kiley explained that her earning capacity was integral to the financial stability of her family. She had been financially supporting her husband through university for the last five and a half years and at the same time was also raising a 10 year old daughter. She had not been able to replace her home computer because they were living on the bare minimum. This explained the use by her of the work computer.
- Ms Kiley stated that she finds her diagnosed depressive condition extremely embarrassing, feels ashamed and finds it difficult to discuss with other people. She believes it is a sign of weakness and that the shame of admitting this to her employer is what stopped her from applying for sick leave through the legal process.
- Since the misconduct, Ms Kiley emphasised her commitment to dealing with her depression and has begun working closely with a doctor and a psychologist.
- The Hospital, whilst accepting Ms Kiley’s explanation, stated that “her actions had irreparably damaged the trust” between her and the Hospital. Ms Kiley has not worked as a nurse since her termination by the Hospital.
- Ms Kiley did not notify the Board, as required by s 130 of the National Law, both of the fact that she had been charged nor of her convictions.
Categorisation of Conduct
- The primary offending conduct is the conviction resulting from the creation and use of the fraudulent medical certificates.
- That conduct as particularised in charge 1 involved a breach of trust and dishonesty. Conduct of that kind is unacceptable and amounts to a breach of the Code of Professional Conduct for Nurses in Australia. Ms Kiley has admitted her conduct amounted to professional misconduct, as that term is defined in s 5 of the National Law.
- The failures by Ms Kiley to notify The Board of matters subject of charge 2 and the failure to make full disclosure in the online application the subject of charge 3 are both secondary to the primary misconduct. Whilst secondary, as submitted by the parties in their formal submissions, failures to report and failures to make a full declaration on the completion of online application forms has been treated previously as unprofessional conduct. However, for the purposes of determining sanction, the conduct the subject of charges 2 and 3 should be treated as an aggravation of the totality of the conduct that has to be considered.
- Having found that the practitioner has behaved in a way that constitutes professional misconduct and unprofessional conduct, the Tribunal must decide the appropriate sanction to be imposed in accordance with s 107 of the HO Act.
- The determination of sanction is a discretionary matter for the Tribunal, notwithstanding any agreement reached between the parties. Where the parties have reached an agreed position, such as here, that agreement should only be disturbed if it “falls outside the permissible range of sanction for the conduct”. The agreement reached between the parties was the imposition of a reprimand. It was accepted that Ms Kiley had voluntarily surrendered her registration in December 2017, 12 months prior to the hearing.
- Protection of the public includes protecting the public from the misconduct in question as well as similar conduct by other practitioners and upholding public confidence in the standards of the profession. Denouncing the misconduct “operates as a deterrent to the individual concerned, as well as to the general body of practitioners”.
- In the circumstances of this case, it is relevant that once confronted Ms Kiley made full admissions to both her employer and the QPS and was immediately regretful for her conduct. It is accepted that the escalation of her depressive disorder was a contributing factor to her offending. Whilst her condition is not an excuse for her misconduct, it helps explain it and is relevant in considering the likelihood of reoffending. It is accepted that Ms Kiley, following the misconduct, sought help for her condition and that her condition is now being properly managed.
- It is accepted that Ms Kiley’s actions subsequent to her misconduct are to her credit and indicative of a level of insight and remorse. Ms Kiley ultimately voluntarily surrendered her registration and she has remained unregistered since. She is currently employed outside the health field and she says presently has no intention to reapply for registration.
- Originally, the Health Ombudsman suggested that lack of intention by Ms Kiley to return to a career in health was a factor in determining sanction but ultimately submitted that it did not impact on the total sanction proposed and agreed.
- The joint position reached between the parties was that a reprimand was the appropriate sanction. The Tribunal accepts the agreed sanction and, in the circumstances, considers that Ms Kiley is entitled at any time to re-apply for registration. Her re-registration is a matter to be determined by the Board on such terms as it considers appropriate.
- 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 Health Ombudsman made no application for costs and submitted that the appropriate order was that each party bears their own cost.
- Accordingly, it is the decision of the Tribunal that:
- Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), Ms Kiley is found to have behaved in a way that constitutes professional misconduct.
- Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), Ms Kiley is reprimanded.
- Each party bears their own costs.
Psychology Board of Australia v Cameron  QCAT 227; Health Care Complaints Commission v Hutchison  NSWCATOD 151; Nursing & Midwifery Board v Mberi  QCAT 451.
 See, for example, Medical Board of Australia v Martin  QCAT 376; Medical Board of Australia v Fitzgerald  QCAT 425.
Medical Board of Australia v Fitzgerald  QCAT 425, .
 HO Act, s 3(1)(a), s 4(1).
 See, for example, Clyne v NSW Bar Association  104 CLR 186; NSW Bar Association v Evatt  HCA 20; Medical Board of Australia v Dolar  QCAT 271, .
 Health Care Complaints Commission v Do  NSWCA 307, .
 See, for example, Medical Board of Australia v Grant  QCAT 285, ; Medical Board of Australia v Jones  QCAT 362, .
 National Law, s 226(3).
- Published Case Name:
The Health Ombudsman v Kiley
- Shortened Case Name:
The Health Ombudsman v Kiley
 QCAT 19
Judge Sheridan, Ms Ibi Patane, Ms Fiona Petty, Mr Stephen Lewis
19 Feb 2019