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- Unreported Judgment
Health Ombudsman v Le Garde QCAT 260
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Le Garde  QCAT 260
KYLIE LOUISE LE GARDE
Occupational regulation matters
23 August 2019 (ex tempore)
23 August 2019
Judge Allen QC, Deputy President
Dr V Thorley
Dr K Forrester
Ms H Barker
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the practitioner was a registered nurse – where the practitioner was charged and convicted of criminal offences – where the practitioner failed to disclose the charges and convictions to the Nursing and Midwifery Board of Australia – where the conduct came to light by way of an anonymous tip – where the practitioner has a history of illicit drug use for which conditions were imposed by the Nursing and Midwifery Board of Australia on her general registration – where there was non-compliance with the conditions imposed – where the respondent applied for and was granted non-practising registration – where the parties agree as to the characterisation of the conduct as professional misconduct – where the applicant submits that the respondent’s registration should be suspended for a period of six months – where the respondent submits that the period of non-practising registration should be viewed as a de facto suspension and the imposition of a further period of suspension would be punitive – whether the Tribunal should impose a period of suspension
Health Ombudsman Act 2013 (Qld), s 103, s 107
Health Practitioner Regulation National Law Act 2009, s 5, s 109, s 130
Craig v Medical Board of South Australia  79 SASR 545
Nursing and Midwifery Board of Australia v Camm  SAHPT 3
Nursing and Midwifery Board of Australia v Curnow  SAHPT 1
Nursing and Midwifery Board of Australia v Smith  SAHPT 4
- This is a referral of a health service complaint against the respondent by the applicant pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (“HOA”). The applicant alleges that the respondent registered nurse engaged in professional misconduct by reason of her committing a criminal offence unrelated to her practice as a nurse and by failing to notify the Australian Health Practitioner Regulation Agency (“AHPRA”) of being charged and convicted of that offence in contravention of sections 109 and 130 of the Health Practitioner Regulation National Law Act 2009 (“National Law”).
- There is no dispute between the parties as to the relevant facts, including the facts alleged to constitute professional misconduct, and both parties submit that the conduct should be characterised as professional misconduct. The parties both submit that the respondent should be reprimanded. The parties disagree as to whether any further order by way of sanction is required. The applicant submits that the respondent’s registration should be suspended for a period of six months. The respondent submits that a suspension of her registration should not be ordered.
- The respondent was born on 11 April 1978. She obtained a Bachelor of Nursing degree in 2000 and was first registered as a registered nurse on 15 August 2000. The respondent has a relevant prior disciplinary history. On 29 November 2006, the respondent pleaded guilty to an offence of shoplifting and was fined. On 12 July 2007, the respondent submitted an online application to AHPRA for annual renewal of her registration as a registered nurse and failed to declare a change in her criminal history. On 2 May 2008, the Queensland Nursing Council determined to take no further action in relation to the respondent’s failure to declare a change in her criminal history.
- The conduct alleged and admitted by the respondent to constitute professional misconduct has been particularised by the applicant in the form of three charges. Charge 1 relates to the conviction of the respondent in the District Court at Mackay on 11 September 2012 of one count of burglary and commit an indictable offence contrary to s 419(4) of the Criminal Code. On 10 February 2012, the respondent was party to a serious criminal offence of burglary and theft of money, drugs and jewellery. Although not physically involved in the burglary and theft, the respondent provided considerable assistance to her co-offenders, who broke into the victim’s residence and stole money, drugs and jewellery. On 14 February 2012, the respondent made full and frank admissions to police during an interview. It seems that the majority of the stolen property was located. The respondent entered a plea of guilty to the offence in the District Court at Mackay on 10 September 2012. Judge Griffin SC sentenced the respondent to two years imprisonment with immediate release on parole.
- Charge 2 relates to a breach of s 130 of the National Law. Section 130(1) of the National Law provides that a registered health practitioner must, within seven days after becoming aware that a relevant event has occurred in relation to the practitioner, give the National Board established for the practitioner’s health profession written notice of the event. In s 130(3)(a), relevant event is defined to mean, relevantly:
- (i)the practitioner is charged ... with an offence punishable by 12 months imprisonment or more; or
- (ii)the practitioner is convicted of or the subject of a finding of guilt for an offence ... punishable by imprisonment.
- Thus, pursuant to s 130(3)(a)(i) of the National Law, the respondent was required to notify the Board within seven days that, on 14 February 2012, she had been charged with a criminal offence punishable by 12 months imprisonment or more, namely, burglary and commit indictable offence. The respondent failed to notify the Board within seven days, that is, by 21 February 2012, or at all. Pursuant to s 130(3)(a)(ii) of the National Law, the respondent was required to notify the Board within seven days that on 11 September 2012 she had been convicted of a criminal offence punishable by 12 months imprisonment or more. The practitioner failed to notify the Board within seven days, that is, by 18 September 2012, or at all.
- Charge 3 relates to false statements by the respondent on renewals of her registration, contrary to s 109(1) of the National Law, which provides that:
An application for renewal of registration must include or be accompanied by a statement that includes the following —
(b) details of any change in the applicant’s criminal history that occurred during the applicant’s preceding period of registration.
- Criminal history is defined in s 5 of the National Law as including not only every conviction of a person for an offence and every plea of guilty or finding of guilt by a court of the person for an offence, but also in subparagraph (c) of the definition:
every charge made against a person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.
- On 21 April 2012 and 25 May 2013, the respondent submitted online applications to AHPRA for annual renewal of her registration as a registered nurse. On both those dates, the online application form contained the question:
“Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?”
- On both occasions, the respondent answered, “No”, to that question. The respondent’s answer in the registration renewal submitted on 21 April 2012 was false, as the respondent had been charged with a criminal offence on 14 February 2012. The respondent’s answer in the registration renewal submitted on 25 May 2013 was false, as the respondent had been convicted of a criminal offence on 11 September 2012.
- The charge, as originally particularised by the applicant, also alleged contraventions of s 109(1) of the National Law on three subsequent occasions, in 2014, 2015 and 2016, by way of answers, “No”, to the same questions upon application for renewal of registration in those years. Counsel for the applicant has brought to the attention of the Tribunal as a matter of fairness to the respondent that such answers may not have been, strictly speaking, false, and, in those circumstances, the applicant has not sought to rely upon those answers as particulars of charge 3. The Tribunal accordingly does not proceed to find that the respondent’s answers upon applications for re-registration in 2014, 2015 and 2016 comprised conduct which is part of the professional misconduct alleged against the respondent.
- Likewise, for reasons of fairness, the applicant has not sought to rely upon the respondent’s failure to disclose her criminal convictions by way of response to any other question in those years as constituting particulars of the professional misconduct. The Tribunal accordingly does not rely upon the respondent’s conduct in those years upon her applications for renewal of registration as constituting conduct that is part of the professional misconduct. The fact that the respondent has, however, accordingly failed to advise AHPRA of her criminal convictions at an earlier time than it was discovered is not irrelevant when considering an appropriate sanction.
- As mentioned earlier, the respondent does not dispute that her conduct amounts to professional misconduct. The Tribunal readily finds that the conduct alleged against the respondent and admitted by her should be found to constitute professional misconduct.
- In considering the matter of sanction, the Tribunal must be mindful that the main principle for administering the HOA is that the health and safety of the public are paramount. Purposes of sanction are protective, not punitive. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia  79 SASR 545 at -, the imposition of sanction may serve one or all of the following purposes:
- (a)preventing practitioners who are unfit to practise from practising;
- (b)securing maintenance of professional standards;
- (c)assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
- (d)bringing home to the practitioner the seriousness of their conduct;
- (e)deterring the practitioner from any future departures from appropriate standards;
- (f)deterring other members of the profession who might be minded to act in a similar way; and
- (g)imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
- The respondent’s misconduct only came to the attention of authorities by way of an anonymous tip to AHPRA on 29 April 2016. The respondent subsequently admitted her failure to notify the Board of the change to her criminal history and, in a statutory declaration, stated:
“I acknowledge my failure to notify the National Board or AHPRA of the conviction. I did not report the conviction because I was fearful that I – that had I reported the conviction, it would jeopardise my ability to continue working in the profession.”
- The respondent also disclosed, at that time, that she was a former user of methylamphetamine. Following receipt of that information, the Board, on 23 September 2016, decided to require the respondent to undergo a health assessment. On 10 February 2017, the Board imposed conditions on the respondent’s registration, limiting the practitioner to practising only in places approved by AHPRA, requiring the respondent to undertake alcohol and drug testing and attend for treatment with treating practitioners, and general conditions requiring notification of such conditions to her employer.
- The respondent’s compliance with such conditions was problematic. On 7 September 2017, the Board cautioned the respondent for failing to attend for testing in accordance with the conditions, providing positive results for medications not declared nor prescribed or approved by a treating practitioner and consumption of amphetamines. On 19 October 2019, the respondent was further cautioned by the Board in relation to her consumption of cannabis in July 2017 and for providing a dilute urine drug screening test result in the same month. On 9 November 2017, the Board imposed additional conditions on the respondent’s registration requiring her to practise under the supervision of another registered health practitioner. On 28 December 2017, the Board suspended the respondent’s registration following further non-compliance with drug and alcohol screening restrictions, namely, testing positive for methamphetamine in November 2017, and failing to attend for urine drug screening testing on occasions in November and December of 2017.
- On 14 December 2018, after considering the respondent’s application for non-practising registration received on 12 October 2018, the Board revoked the suspension imposed on the respondent’s registration and granted the practitioner non-practising registration. The respondent continues to hold non-practising registration.
- It seems the respondent has continued to struggle with her substance abuse issues. On 24 May 2018, the respondent was charged with an offence of driving under the influence of methamphetamines. The respondent notified AHPRA of that conviction and one of possession of a utensil or pipe on 16 May 2018 as part of her application for non-practising registration.
- To the respondent’s credit, there is evidence of substantial efforts towards addressing substance abuse issues and real efforts towards rehabilitation since June 2018. The respondent has provided a statement in which she states that, at the beginning of June 2018, she moved with her children to her parents’ residence to enable her to permanently resolve her drug addiction problem. The respondent’s stepfather has confirmed the efforts by the respondent towards rehabilitation, and the support provided to her to that end by her parents. Both the respondent and her stepfather state that the respondent has not used amphetamines or any other illicit drug from about June 2018, and the respondent has provided a certificate showing a clean drug test dated 1 February 2019.
- The applicant does not seek a finding of impairment as the respondent’s impairment is a matter that was being managed by the Board during the period of her general registration, and should the respondent apply for general registration again, the Board will no doubt consider the respondent’s health and request information and/or require the respondent to undergo a further health assessment. When the applicant does seek to return to nursing and obtain general registration to enable that, the Board is likely to require the respondent to satisfy stringent fitness to practise tests. The respondent does wish to return to nursing. In recent times she has undertaken further studies, but is not experienced in any field other than nursing.
- There is nothing before the Tribunal to suggest that the respondent’s impairment impacted upon her carrying out her nursing duties whilst in employment, and the professional misconduct is not related to her clinical practice. In all the circumstances, any issues of protection of the public by way of an assessment of the respondent’s fitness to practise will be determined by the Board at a subsequent date. There is no need for a suspension of registration for any immediate protective purpose.
- The applicant submits that an order for suspension of registration is appropriate for purposes of general and personal deterrence in that it would act as a general deterrence to other nurses and the respondent, and send the message that criminal conduct will not be tolerated by the profession, and neither will failures to notify the Board of criminal charges and convictions. The applicant contends that an order for suspension of registration is appropriate to maintain public confidence in the profession and maintain the reputation of the profession.
- The respondent submits that any suspension of her registration would be unnecessarily punitive, given that she has, she says, upon the suggestion of AHPRA, relinquished her general registration and had non-practising registration since late 2018. The respondent submits that such a period should be regarded as a de facto suspension from practice which should be given much weight in determining whether any further period of suspension is required.
- For my part, I see much force in the submissions to the contrary on behalf of the applicant that the past period of preclusion from practice was really by reason of the respondent’s impairment, and her inability and/or unwillingness to comply with conditions upon her registration directed towards the issue of her impairment. I would not regard the period of non-practising registration as being equivalent to a de facto suspension of practice. Whilst some regard should be had to such period of time during which the respondent has been unable to practise her profession, it has less significance than in those cases where such preclusion from practice is as a direct consequence of the conduct, and only for that conduct, for which sanction is being imposed.
- The legal representatives for both parties have made reference to decisions of other tribunals and, in particular, the Health Practitioners Tribunal of South Australia in broadly comparable cases. The solicitor for the respondent has sought to distinguish such cases by comparisons of the criminal conduct of the respondent in this matter with the criminal conduct which was involved in those other cases. In my view, there is little to be gained by comparison of the facts of different types of criminal conduct in those other cases. They do provide some assistance by way of providing examples of cases where serious criminal conduct and consequent punishment falling short of sentences involving actual custodial sentences, coupled with failures to advise the Board of such changes in criminal history, have been dealt with by other tribunals. Even if one was to regard the criminal conduct the subject of those cases, Nursing and Midwifery Board of Australia v Camm  SAHPT 3, Nursing and Midwifery Board of Australia v Smith  SAHPT 4, and Nursing and Midwifery Board of Australia v Curnow  SAHPT 1, as being more serious than the criminal conduct of the respondent, the overall seriousness of the professional misconduct in those cases is at least broadly equivalent to that of the respondent. In each of those cases there was a belated notification by the respondent of the changes to their criminal history, whereas in the respondent’s case there were repeated instances of false statements regarding criminal history and a very lengthy period of non-disclosure of the charge and conviction.
- Based upon those broadly comparative cases and the sanctions imposed in those cases, the applicant submits that a period of suspension of six months is warranted in this case. The Tribunal accepts that submission. The criminal conduct of the respondent was serious, and her persistent failure to disclose such matters is a serious example of a failure of her statutory obligations in that regard, and a serious example, in the Tribunal’s view, of professional misconduct. No period of suspension less than that sought by the applicant would properly meet the protective purposes of sanction.
- Accordingly, the Tribunal orders;
- pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013, the Tribunal finds the respondent has behaved in a way that constitutes professional misconduct;
- pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded;
- pursuant to section 107(3)(d) of the Health Ombudsman Act 2013, the respondent’s registration is suspended for a period of six months; and
- each party must bear the party’s own costs for the proceeding.
- Published Case Name:
Health Ombudsman v Kylie Louise Le Garde
- Shortened Case Name:
Health Ombudsman v Le Garde
 QCAT 260
23 Aug 2019