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Health Ombudsman v Kennedy[2019] QCAT 319

Health Ombudsman v Kennedy[2019] QCAT 319

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Kennedy [2019] QCAT 319

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

MARIANNE RUTH KENNEDY

(respondent)

APPLICATION NO/S:

OCR078/18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 October 2019

DATE OF DECISION:

16 October 2019

DATE OF REASONS:

7 November 2019

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms H Barker

Ms M Barnett

Mr N Muller

ORDERS:

  1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct;
  1. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;
  2. Pursuant to s 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the decision of the Health Ombudsman to take immediate registration action on 4 March 2015 is set aside;
  3. The respondent is to file any material she wishes to rely on in relation to the issue of costs within 14 days of this decision; and
  4. The applicant is to file any material he wishes to rely on in relation to the issue of costs within 14 days of receipt of the respondent’s material.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – SANCTION – where the respondent is a registered nurse – where the referral charged, and the respondent admitted, a range of misconduct in relation to misappropriation of Schedule 8 and Schedule 4 drugs, contravention of a condition, and a failure to notify the Board of a relevant event – where the respondent disputed a charge of placing a patient at risk of harm – where the applicant was unsuccessful in proving the charge of placing a patient at risk of harm to the requisite standard of proof – where the parties agreed as to the characterisation of the admitted conduct – where the parties agreed as to the imposition of a reprimand – where the applicant submitted that the Tribunal ought to cancel the respondent’s registration and disqualify the respondent from applying for registration for up to six months – where the respondent submitted that the cancellation and disqualification was unnecessary in circumstances where the respondent had been subject to a de facto suspension for 4 ½ years, she had taken significant steps towards rehabilitation and there was no evidence she posed a present risk to the safety of the public – whether the Tribunal ought to cancel registration and order a period of disqualification

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

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

Briginshaw v Briginshaw (1938) 60 CLR 336

Craig v Medical Board of South Australia (2001) 79 SASR 545

Healthcare Complaints Commissioner v Flynn [2009] NSWNMT 1

Healthcare Complaints Commission v Turner [2016] NSWCATOD 163

Health Ombudsman v Riek [2017] QCAT 173

Medical Board of Australia v Davis [2018] QCAT 215

Medical Board of Australia v Holding [2014] QCAT 632

Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403

Psychology Board of Australia v Cameron [2015] QCAT 227

APPEARANCES &

REPRESENTATION:

Applicant:

M Nicholson instructed by the Director of Proceedings, on behalf of the Health Ombudsman

Respondent:

B Mumford instructed by Hall Payne Solicitors

REASONS FOR DECISION

  1. [1]
    The Director of Proceedings on behalf of the Health Ombudsman (“applicant”) referred to the Tribunal a health service complaint against Marianne Ruth Kennedy (“respondent”) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (“HO Act”). The applicant sought a finding that the respondent had engaged in “professional misconduct” and/or “unprofessional conduct” within the meaning of those terms in section 5 of the Health Practitioner Regulation National Law (Qld) (“National Law”). The respondent denied one particular of the conduct alleged against her but did not contest a finding of professional misconduct. The parties differed as to the appropriate orders for sanction that would follow a finding of professional misconduct.
  2. [2]
    After a hearing on 16 October 2019, the Tribunal made the orders above. These are the reasons of the Tribunal for making those orders.

The respondent’s background

  1. [3]
    The respondent was born on 10 November 1966, is aged 52 years, and was aged 47 to 48 years at the time of the conduct the subject of the referral. The respondent was first registered as a registered nurse and midwife on 5 February 1988. She subsequently obtained qualifications in advanced neonatal nursing and a Bachelor of Nursing degree. The respondent’s relevant employment history is as follows:
    1. (a)
      25.08.2008–14.02.2014 - employed by the Mater Hospital as a registered nurse;
    2. (b)
      24.07.2014–18.12.2014 - employed by a nursing agency as a registered nurse working at the following locations:
      1. 21.19.2014–18.12.2014 - at the Gold Coast University Hospital;
      2. 27.10.2014–4.11.2014 - at the Sunnybank Private Hospital;
    3. (c)
      27.12.2014–16.01.2015 - employed as a registered nurse by the Greenslopes Day Surgery.

Previous notification history

  1. [4]
    The Australian Health Practitioner Regulation Agency (“AHPRA”) previously dealt with three notifications relating to the respondent. On 8 January 2014, the Director of Nursing and Midwifery Services of the Mater Hospital notified AHPRA that the respondent had been stood down, effective from 4 January 2014, pending an investigation regarding medications. On 29 January 2014, AHPRA received a notification from the respondent that she was on leave with pay for inappropriate conduct regarding schedule 8 drugs. The respondent admitted taking schedule 8 drugs (two ampoules of Fentanyl) and using them for personal use. On 18 February 2014, the Nursing Director of the Mater Hospital notified AHPRA of an incident concerning an ampoule of Fentanyl discovered in the respondent’s work locker.
  2. [5]
    On 26 March 2014, the Queensland Notifications Committee of the Nursing and Midwifery Board of Australia (“the Committee”) required the respondent to undergo a health assessment in relation to two of the three notifications. On 23 April 2014, the Committee decided to take no further action in relation to the third notification as the subject matter of the notification had already been dealt with adequately by the Nursing and Midwifery Board of Australia (“the Board”) in respect of the other two notifications.
  3. [6]
    On 30 April 2014, the respondent appeared before the Brisbane Magistrates Court and pleaded guilty to a charge of stealing as a clerk or servant. The offence related to the respondent’s conduct on 29 December 2013 in stealing five 500 microgram ampules of Fentanyl from the drug safe in the children’s recovery ward of the Mater Hospital when the respondent was not on duty. The respondent was ordered to pay a fine of $1,500 with no conviction recorded. Prior to the criminal convictions the subject of these disciplinary proceedings, this plea of guilty to a charge of stealing as a clerk or servant was the respondent’s only prior criminal history.
  4. [7]
    On 2 May 2014, the respondent attended a health assessment with Dr Frank New, psychiatrist. Dr New subsequently provided a health assessment report diagnosing the respondent with a substance abuse disorder (namely Fentanyl). On 18 December 2014, the Committee decided that the respondent had an impairment and decided to impose conditions on the respondent’s registration which included a prohibition on the respondent dealing with schedule 8 drugs and opioids and requirements that she attend for urine drug screening and provide a specimen of hair for drug analysis as required by the Board.

Conduct

  1. [8]
    The conduct alleged by the applicant has been particularised in an amended referral notice in the form of seven “charges”. In respect of charges 1, 3, 4 and 5, the applicant alleges that the respondent engaged in professional misconduct or, in the alternative, unprofessional conduct. In respect of charges 2, 6 and 7, the applicant alleges that the respondent engaged in unprofessional conduct. The respondent does not dispute the facts of the charges or the alleged characterisation of her conduct except that she denies one particular aspect of charge 4 and denies charge 5. The particulars of the charges may be summarised as follows.

Charge 1 – Misappropriation of schedule 8 medication

  1. [9]
    On 3 November 2014, the respondent dishonestly took a quantity of Fentanyl from her employer, the Sunnybank Private Hospital. On 3 November 2014, the respondent was working a day shift in a recovery unit at the Sunnybank Private Hospital. The respondent used the keys to the schedule 8 drug safe to open the safe without a second registered nurse present and took two 500 microgram ampules of Fentanyl from the safe. Two intact 500 microgram ampules of Fentanyl were later found on a shelf in a recovery bay hidden behind a stack of sheets.

Charge 2 – Accessing schedule 8 drug safe without authority

  1. [10]
    On 3 November 2014, the respondent inappropriately accessed the schedule 8 drug safe of the recovery unit of the Sunnybank Private Hospital without a second authorised person present. Such charge is constituted by the same facts as charge 1 with the respondent’s conduct contravening the applicable hospital policies with respect to dealing with schedule 8 drugs and the applicable provisions of the Code of Professional Conduct for Nurses in Australia.

Charge 3 – Misappropriation of schedule 4 medication

  1. [11]
    On 15 January 2015, the respondent, whilst on duty as a registered nurse, dishonestly took Midazolam from her employer, the Greenslopes Day Surgery. On 15 January 2015, the respondent was working as a registered nurse, caring for patients in the recovery room of the Greenslopes Day Surgery. The respondent left the recovery room, entered the operating theatre, took one box containing five vials of 5 milligrams of midazolam and placed the box of midazolam in her bag.

Charge 4 – Criminal conviction: stealing as a servant (Fentanyl)

  1. [12]
    On 21 August 2015, in the Brisbane Magistrates Court, the respondent was convicted on pleas of guilty of two indictable offences of stealing as a clerk or servant.
  2. [13]
    On 18 December 2014, the respondent was working in the special care nursery at the Gold Coast University Hospital. The respondent borrowed the access card of another registered nurse on the pretext that she had not yet collected her own card and used this to access a drug safe and remove one box containing 500 microgram ampules of Fentanyl from the drug safe. The matter was referred to the Queensland Police Service and the respondent ceased work at the Gold Coast University Hospital on 18 December 2014.
  3. [14]
    On 16 January 2015, the respondent was employed as a registered nurse to care for patients in the recovery room at the Greenslopes Day Surgery. The respondent entered the operating theatre when it was unattended and took a 3 ml syringe of Fentanyl from a tray on the anaesthetist’s table. It was alleged by the applicant, but denied by the respondent, that she replaced such syringe with a 3 ml syringe containing a clear fluid. On the same occasion, or later the same day, the respondent took a second 3 ml syringe containing Fentanyl from the tray on the anaesthetist’s table. The theatre nurse and practice manager confronted the respondent, whose employment was terminated, and the matter was referred to the Queensland Police Service.
  4. [15]
    On 29 January 2015, the respondent was interviewed by the Queensland Police Service and denied having taken Fentanyl from the Gold Coast University Hospital or from the Greenslopes Day Surgery. On 29 January 2015, the respondent was charged with criminal offences relating to her stealing Fentanyl from the Gold Coast University Hospital and the Greenslopes Day Surgery. On 21 August 2015, the respondent pleaded guilty to two offences of stealing as a clerk or servant in respect of one box containing five 500 microgram ampules of Fentanyl from the Gold Coast University Hospital and two 3 ml syringes of Fentanyl from the Greenslopes Day Surgery. A conviction was recorded and the respondent was placed on 12 months probation.

Charge 5 – Place a patient at risk of harm

  1. [16]
    It was alleged that on 16 January 2015, the respondent placed an unknown patient at risk of harm by substituting a syringe of clear fluid for a syringe of Fentanyl which she had stolen from the operating theatre at the Greenslopes Day Surgery. The respondent denied such conduct.

Charge 6 – Contravention of condition

  1. [17]
    On 16 January 2015, the respondent, by reason of her conduct at the Greenslopes Day Surgery with respect to the two 3 ml syringes of Fentanyl, contravened a condition imposed on her registration by the Board on 18 December 2014, which prohibited her from obtaining or possessing any schedule 8 drug.

Charge 7 – Contravention of National Law: failure to notify the Board of a relevant event

  1. [18]
    Pursuant to sections 130(1) and 130(3)(a)(i) of the National Law, the respondent was required to notify the Board within 7 days that on 29 January 2015 she had been charged with two offences of stealing as a clerk or servant but failed to do so.

Disputed issue of fact

  1. [19]
    It may be seen that there was a disputed issue of fact relating to charges 4 and 5 and the events of 16 January 2015 that fell to be resolved by the Tribunal. Whilst the respondent admitted stealing syringes of Fentanyl during the course of her duties at the Greenslopes Day Surgery on 16 January 2015, she denied replacing one of the stolen syringes of Fentanyl with a syringe of clear fluid.
  2. [20]
    The applicant bore the onus of proving such allegation on the balance of probabilities, bearing in mind those considerations stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363:

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

  1. [21]
    The Tribunal considered the affidavit evidence and testimony of three witnesses: Vicki Anne Brumley, Anne-Maree Carne and the respondent.
  2. [22]
    Ms Brumley deposed that she was the practice manager at the Greenslopes Day Surgery on 16 January 2015. In her affidavit affirmed on 31 October 2018, MsBrumley deposed as follows (paragraph numbers removed):

Sometime in the late morning on 16 January 2015, [the theatre nurse] told me that Marianne Kennedy had requested from [the theatre nurse] to have a break as she was inundated. The operating theatre was left unattended. I observed the theatre from the CSSD, which is the sterilising room, with [DL], scrub nurse. I saw Marianne Kennedy go to the trolley where there was a syringe containing Fentanyl that had been drawn up for the next patient. I saw Marianne Kennedy pick up the syringe containing Fentanyl, check it, put it in her pocket and replace it out of the other pocket with a syringe containing a clear fluid. I told Dr Anne-Maree Carne what I had observed and walked back in with Dr Anne-Maree Carne to the operating theatre. When I went back into the theatre I saw an unmarked syringe in the tray with the cannula. The syringe contained a clear fluid.

  1. [23]
    Ms Brumley also deposed to the accuracy of the contents of a Queensland Police Service statement of a witness made by her on 7 May 2015, which stated relevantly as follows (paragraph numbers removed):

On the 16th January 2015 sometime in the late morning I had a conversation with [the theatre nurse] she told me something (that KENNEDY had asked her to have a break, so she was leaving the theatre unattended). I observed that no other person was in the theatre after [the theatre nurse] had left. I observed a syringe of Fentanyl was left in the operating theatre in the injection tray. I observed through an opening in the door KENNEDY enter the theatre, walked around the operating table and straight to the anaesthetist table. I clearly observed KENNEDY who was about 5 feet away from the door and I had nothing obstructing my view, pick a syringe containing fentanyl off the table and lifted it into the air. KENNEDY looked into the syringe, KENEDY [sic] placed it into her right pocket then took something from her left pocket and placed it into a kidney dish on the left hand side of the table. KENNEDY has no reason to be in the theatre and no reason to touch any object on the injection tray. KENNEDY then left the room and entered the first recovery room. The Fentanyl is not used in the recovery rooms. Later again that day KENNEDY approached the theatre nurse… and asked her to have a break. I had a conversation with [the theatre nurse] and she told me something (she was approached by KENNEDY saying she was busy and needed a break and could you have a break). As a result of this conversation with [the theatre nurse] I went back to the theatre and observed through a gap in the door, KENNEDY again entering the surgery theatre, heading straight to the anaesthetist table. KENNEDY picked a syringe containing fentanyl off the table and placed it into her pocket.

  1. [24]
    In her police statement, Ms Brumley goes onto describe confronting the respondent about what she had seen.
  2. [25]
    In her testimony during the hearing, Ms Brumley confirmed the truth of the contents of her affidavit. She confirmed that the “trolley” referred to in her affidavit and the “anaesthetist table” referred to in her police statement were the same item of operating theatre furniture. She described the positioning of the trolley on the far side of the operating theatre from the doorway through which she observed the respondent. She described the top of the trolley as holding three kidney dishes, each containing multiple syringes of Fentanyl, Midazolam and Propofol respectively, at the left-hand side of the trolley. Her evidence was to the effect that the stolen syringe of Fentanyl was taken from amongst a number of syringes of Fentanyl contained in the kidney dish closest to the left-hand side of the trolley as she observed it and that the syringe containing a clear fluid was placed into the same kidney dish containing a number of remaining syringes of Fentanyl. She gave evidence that because of earlier suspicions regarding the respondent the syringes of Fentanyl had earlier been marked with a black dot but that she did not afterwards check the syringes to attempt to identify the substituted syringe of clear fluid by looking to see if one of them was not so marked. Cross-examination as to her opportunity to observe the actions of the respondent did raise a question as to whether her view of the respondent’s hand actions would have been at least partly obscured by the body of the respondent. When cross-examined about the second occasion of the respondent stealing a syringe of Fentanyl described in her police statement, Ms Brumley said that she did not recall such a second occasion and believed that the police officer taking the statement may have made a mistake in that regard.
  3. [26]
    Dr Anne-Maree Carne was employed as a sedationist for procedures in the operating theatre at the Greenslopes Day Surgery on 16 January 2015. In her affidavit sworn on 29 October 2018, Dr Carne deposed as follows (paragraph numbers removed):

My usual practice of preparing to administer sedation for a procedure in theatre is to draw up drugs that I am going to need for that procedure in a disposable tray. I have two trays: one for the drugs and one tray for the cannula and alco-wipes. These trays are placed on a trolley. On 16 January 2015, I followed my usual practice and drew up the drugs needed for the procedure. That is, I prepared one 3ml syringe containing Fentanyl, one 5ml syringe containing Midazolam and one 20ml syringe containing Propofol and placed these three syringes in one tray, with a cannula and alco-wipe placed in the other tray on the trolley. The cannula is kept on a separate tray to the drugs and one cannula, once inserted at the commencement of a procedure, is then used for each of the three syringes. Sometime in the late morning on 16 January 2015, I was in the theatre with [the theatre nurse] when Marianne Kennedy came into the theatre and asked [the theatre nurse] for a break. The drugs at that time were drawn up in the three respective syringes and ready for the procedure for the next patient which was about to occur when Marianne Kennedy came into the theatre and asked for a break. This procedure was delayed so that Marianne Kennedy could have a break. [The theatre nurse] and I went out of the theatre. Vicki Brumley told me that when [the theatre nurse] and I left the theatre, she had watched the theatre from the scrub room and saw Marianne Kennedy go to the trolley, take something and put something back in. Marianne Kennedy was working as a nurse in the first recovery ward on 16 January 2015. There was no need for Marianne Kennedy to be in the operating theatre and there was no need for her to go to my trolley. When I went back into the theatre, I saw that the 3ml syringe containing Fentanyl was now a 3ml syringe in my tray which had the cannula and alco-wipe in it. It is not my usual practice to have a syringe containing Fentanyl or any drug in the tray with the cannula and alco-wipe as I keep these two trays separate. I did not move the 3ml syringe containing Fentanyl from where I had originally placed it with the Midazolam and Propofol on the drug tray. I observed the 3ml syringe that was now in the tray with the cannula and alco-wipe. It had a clear fluid and I cannot recall whether it had a black dot or other mark. I was aware from (the theatre nurse) that she had marked syringes of Fentanyl with a black mark prior to procedures in or around 16 January 2015. I recall there was no testing done on the 3ml syringe to determine its contents. I discarded the 3ml syringe.

  1. [27]
    In her testimony during the hearing, Dr Carne maintained that her description of events in her affidavit was true. In particular, she maintained her description of the layout of syringes of medication at the time of the incident in question. She maintained that there were only one syringe each of Fentanyl, Midazolam and Propofol on one tray when she left the theatre and that, upon her return, the syringe of Fentanyl was no longer in that tray but that there was a syringe of clear fluid on the tray containing the cannula and alco-wipe. She was quite certain that there were not three trays of medications each containing multiple syringes of each of the three medications.
  2. [28]
    In her affidavit affirmed on 21 February 2019, the respondent deposed as follows (paragraph numbers removed):

I admit that I took two syringes of Fentanyl from the anaesthetic tray in the operating theatre at the Greenslopes Day Surgery during the course of my shift on 16 January 2016 [sic], however, I deny that:

  1. (a)
    I replaced these syringes with syringes containing saline; or
  1. (b)
    I replaced the contents of the syringe with saline.

The operating theatre is about 4-5 metres wide. It is a square room and there are three doors on one side of the theatre. The doors lead to:

  1. (a)
    a corridor;
  1. (b)
    the recovery ward; and
  1. (c)
    the CSSD room.

When I took the Fentanyl, I walked from where I was working in the recovery ward, through the doors into the operating theatre and then back out through these doors. After I walked in through the recovery ward doors, the operating table would have been in front of me with the trolley containing the medical instruments and the medication on the other side of the table, against the wall opposite the doors. I walked around the operating table to the trolley that was placed against the wall. I do not recall whether I held the syringe of Fentanyl up to the light, as Ms Brumley describes, but I did put it into my pocket. I then turned to walk out the doors to the recovery ward. I did not take a syringe into the operating theatre in my pocket. I did not open a cannular [sic] while I was in the operating theatre or place a cannular [sic] on a syringe while I was in the operating theatre, nor did I take a syringe into the operating theatre that had a cannular [sic] attached to it. I remember taking the syringes and walking out. I did not spend long in the operating theatre – I wanted to get out as quickly as, at that stage, I did not want to be caught.

  1. [29]
    In her testimony during the hearing, the respondent gave evidence of the setup of medications on the anaesthetist’s table in terms more consistent with the evidence of MsBrumley than that of Dr Carne. The respondent gave evidence that there were three trays, each containing multiple syringes of Fentanyl, Midazolam and Propofol respectively. She estimated that there were fifteen 3 ml syringes of Fentanyl in the tray from which she took two syringes of Fentanyl. She gave evidence that she took those two syringes on the one occasion of entry to the operating theatre.
  2. [30]
    During cross-examination, the respondent admitted that she had lied when she previously denied stealing Fentanyl. She was cross-examined about the following statement in her affidavit:

The first time I was aware that I was alleged to have swapped the Fentanyl for the saline was when I received the referral notice, as it was not a feature of the QPS charges.

  1. [31]
    She was taken to the contents of a letter from the Office of the Health Ombudsman to the respondent dated 4 March 2015 which contained such an allegation.
  2. [32]
    The theatre nurse was not called as a witness. A brief interview of the theatre nurse by an Office of the Health Ombudsman investigator was in evidence but neither party submitted it aided in resolution of the factual dispute.
  3. [33]
    There was nothing about the demeanour of the witnesses during their testimony which provided any substantial benefit to the Tribunal in resolving the contested issue of fact.
  4. [34]
    The respondent’s credit was diminished by her earlier false denials of having taken any syringe of Fentanyl. The claim in her affidavit that she first became aware of the allegation of having swapped the Fentanyl for another substance when she received the referral notice[1] was inconsistent with the allegation having been brought to her attention in the letter from the Office of the Health Ombudsman dated 4 March 2015.
  5. [35]
    The respondent’s testimony that she took two syringes on one occasion rather than one each on two occasions was inconsistent with the contents of a statement of agreed and disputed facts signed by a solicitor on behalf of the respondent on 27 September 2018. However, little terms upon that in circumstances where such allegation of fact was based upon the contents of the police statement of MsBrumley, later not adhered to by Ms Brumley in her testimony, and where there will always be scope for miscommunication between solicitor and client in the preparation of a document such as the agreed statement of facts.
  6. [36]
    In all the circumstances, whilst the Tribunal had doubts as to the credibility of the respondent, the Tribunal could not safely conclude that the respondent was so lacking in credit that her sworn denials should be disregarded.
  7. [37]
    The Tribunal’s resolution of the contested issue of fact did not ultimately, however, turn upon any finding as to the respondent’s credibility, but rather the lack of probative force in the applicant’s evidence to the contrary.
  8. [38]
    The evidence of DrCarne as to the layout of medications was inconsistent with the evidence of both Ms Brumley and the respondent on such matter. Dr Carne’s evidence was that there would have been only one syringe of Fentanyl available to be misappropriated by the respondent on any one occasion she entered the operating theatre. Dr Carne’s evidence was that the single syringe of Fentanyl had been moved by someone (the respondent, on the applicant’s case) from the tray it had been left with the other two syringes of other medications and that a syringe had been placed by someone (the respondent, on the applicant’s case) on another tray holding the cannula and alco-wipes. Ms Brumley’s statement in her affidavit (see paragraph [22] of these reasons) that “(w)hen I went back into the theatre I saw an unmarked syringe in the tray with the cannula” is consistent with Dr Carne’s evidence. But in her testimony (see paragraph [25] of these reasons), Ms Brumley described the respondent placing the substituted syringe in the same tray from which she had taken a syringe of Fentanyl. That is quite inconsistent with her affidavit evidence and with Dr Carne’s evidence. Both Ms Brumley and the respondent gave evidence that there were multiple syringes of Fentanyl on a tray on the anaesthetist’s table at the time Ms Brumley says the respondent took one syringe of Fentanyl and the respondent says she took two syringes of Fentanyl. That is irreconcilably inconsistent with the evidence of Dr Carne that there would have been only one.
  9. [39]
    Both parties submitted that the evidence of Dr Carne ought to be preferred on such matters, given that she was the practitioner with the responsibility for preparing and administering such medications.
  10. [40]
    Acceptance of Dr Carne’s evidence on such matter must lead to a finding that Mr Brumley is not correct in her testimony when she says she saw a syringe of Fentanyl taken from one tray and another syringe substituted by being placed on the same tray. It would mean that both Ms Brumley and the respondent are not correct when they describe multiple syringes of Fentanyl on a tray. It would necessarily diminish the reliability of Ms Brumley’s eyewitness evidence which is relied upon by the applicant as direct evidence of the disputed act of substitution.
  11. [41]
    The applicant would be left to rely upon the evidence of Dr Carne’s observations (supported to some extent by the contents of Ms Brumley’s affidavit) as establishing circumstantial facts from which the Tribunal would infer the act of substitution, that is, the apparent movement, and likely substitution, of a single syringe of Fentanyl. However, there is a lack of evidence to establish that the syringe found by Dr Carne on the tray with the canulla and alco-wipes did not contain Fentanyl. There is no evidence that the syringe found was not marked with a black dot so as to support an inference of substitution. An acceptance of the evidence of Dr Carne would not lead the Tribunal to be satisfied to the requisite standard that an act of substitution occurred.
  12. [42]
    Further, the Tribunal was not satisfied that the evidence of Dr Carne as to the number and placement of syringes of Fentanyl and other medications could safely be preferred to that of Ms Brumley and the respondent to the contrary. Rather, the Tribunal was left with serious doubts as to the reliability of the varying accounts and found it unable to reach a concluded view as to which account should be preferred.
  13. [43]
    Given the significant inconsistencies between the evidence of the witnesses, the Tribunal could not safely conclude on the balance of probabilities that the disputed allegation was made out. A conclusion that the respondent deliberately substituted another substance for Fentanyl, thus placing the health of a patient at risk, is of such a nature as to significantly aggravate the seriousness of the respondent’s professional misconduct. It would significantly affect the sanction to be imposed for such professional misconduct. Given the gravity of the consequences flowing from such a finding, the Tribunal could not be reasonably satisfied, on the “inexact proof, indefinite testimony, or indirect inferences” available from the evidence adduced by the applicant, that such a finding should be made.
  14. [44]
    It is for these reasons that the Tribunal did not find that the respondent substituted another syringe containing clear fluid for one of the syringes of Fentanyl she misappropriated. Charge 5 was not proved as a particular of the respondent’s professional misconduct.

Characterisation of conduct

  1. [45]
    There was no dispute between the parties as to the characterisation of the remaining charges as professional misconduct and unprofessional conduct. The Tribunal accepted the submissions of the parties in that regard and decided pursuant to s107(2)(b)(iii) of the HO Act that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

  1. [46]
    The parties agreed that the respondent should be reprimanded. The applicant submitted that further orders should be made, cancelling the registration of the respondent and disqualifying her from applying for registration for a period of up to six months. The respondent submitted that the Tribunal would not make orders cancelling the registration of the respondent or precluding her from practice for any period.
  2. [47]
    On 4 March 2015, the applicant decided to take immediate registration action and suspended the respondent’s registration. The respondent’s registration remained suspended from that time until the date of the Tribunal’s orders. The respondent’s registration, during periods of its suspension and subsequently, has been subject to conditions imposed by AHPRA in light of the impairment of the respondent.
  3. [48]
    The applicant stressed the aggravating feature of the repeated instances of dishonest behaviour on the part of the respondent, notwithstanding a then current investigation into the issue of her impairment. The applicant submitted that considerations of general deterrence and personal deterrence should lead the Tribunal to cancel the respondent’s registration. The applicant referred to and relied upon the following cases, in particular, in support of such a submission:
    1. (a)
      Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403;
    2. (b)
      Health Ombudsman v Riek [2017] QCAT 173;
    3. (c)
      Healthcare Complaints Commission v Turner [2016] NSWCATOD 163; and
    4. (d)
      Healthcare Complaints Commissioner v Flynn [2009] NSWNMT 1.
  4. [49]
    The Tribunal has considered those decisions and the parties’ submissions regarding them in reaching its decision as to sanction.
  5. [50]
    The applicant submitted that the respondent did not voluntarily withdraw herself from practice in recognition of her own misconduct but was prevented from practising by the immediate action taken by the applicant on 4 March 2015. The applicant accordingly submitted that the full period between the suspension of the respondent’s registration on 4 March 2015 and the hearing before the Tribunal should not be taken into account as a period of de facto suspension when determining sanction. The applicant submitted that, even if full regard was had to a period of four and a half years de facto suspension of registration, a cancellation and further preclusion of practice of sixmonths, resulting in an effective overall period of five years preclusion from practice, would be appropriate.
  6. [51]
    The respondent submitted that there is no evidence that she currently presents a risk to the public in the practice of her profession and refers to evidence as to the successful steps she has taken towards rehabilitation, including successfully addressing her substance abuse disorder. She submitted that any further period of preclusion from practice would be unnecessary and punitive.
  7. [52]
    In considering the matter of sanction the Tribunal must bear in mind that the main principle for administering the HO Act is that the health and safety of the public are paramount.[2] The purposes of sanction are protective, not punitive. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia (2001) 79 SASR 545 at 553-555, the imposition of sanction may serve one or all of the following purposes:
    1. (a)
      preventing practitioners who are unfit to practise from practising;
    2. (b)
      securing maintenance of professional standards;
    3. (c)
      assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
    4. (d)
      bringing home to the practitioner the seriousness of their conduct;
    5. (e)
      deterring the practitioner from any future departures from appropriate standards;
    6. (f)
      deterring other members of the profession who might be minded to act in a similar way; and
    7. (g)
      imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
  8. [53]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.[3] A reprimand is a matter of public record affecting the reputation of a practitioner.[4] The respondent’s misconduct involved a gross breach of the trust expected of her by the public, her employers and her colleagues. The respondent’s conduct deserved denunciation by the Tribunal.
  9. [54]
    Upon a suspension of her registration being lifted, the respondent’s registration will be subject to conditions already imposed by AHPRA in light of the underlying factors that led to her misconduct. There is nothing to suggest that she presents any immediate risk to the public if she was to return to practice. No immediate protective purpose would be served by a cancellation of her registration and a further preclusion from practice.
  10. [55]
    There is no good reason why the respondent should not be regarded, for the purposes of determining sanction, as having been effectively precluded from practice for a period of 4 ½ years as a consequence of her conduct. That is a significant factor to be taken into account in determining whether any further preclusion from practice is required to address considerations of denunciation and personal and general deterrence.
  11. [56]
    The cases referred to by both parties did not support an effective preclusion period of the length of five years. They did support a conclusion that a period of 4 ½ years preclusion from practice more than sufficiently addresses considerations of denunciation and personal and general deterrence in the circumstances of this matter.
  12. [57]
    The Tribunal was mindful that the respondent, not having practised for more than four and a half years, was at a point where she will find it difficult to satisfy registration requirements regarding recency of practice. An order for cancellation of the respondent’s registration and further preclusion from practice would have placed almost insurmountable obstacles in the way of the respondent’s return to practice. Such orders would be both unnecessary and punitive. For those reasons, the Tribunal declined to make such orders.

Footnotes

[1] The original referral notice was dated 29 March 2018.

[2] HO Act, section 4.

[3] Psychology Board of Australia v Cameron [2015] QCAT 227.

[4] Medical Board of Australia v Holding [2014] QCAT 632, [39] and see also Medical Board of Australia v Davis [2018] QCAT 215, [62].

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Marianne Ruth Kennedy

  • Shortened Case Name:

    Health Ombudsman v Kennedy

  • MNC:

    [2019] QCAT 319

  • Court:

    QCAT

  • Judge(s):

    Allen DP

  • Date:

    16 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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