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- Unreported Judgment
Health Ombudsman v SNA QCAT 328
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v SNA  QCAT 328
Occupational regulation matters
30 October 2019 (ex tempore)
On the papers
Judge Allen QC, Deputy President
Ms A Bains
Dr K Forrester
Dr A Tuckett
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the applicant instituted disciplinary proceedings against the respondent in relation to conduct that involved the respondent stealing prescription forms from her employer, filling them out, and using them to obtain various medications over a 21-day period – where the respondent had previously been legitimately prescribed the same medications which she obtained using the stolen prescription forms – where the respondent had chronic health issues – where the respondent made full and frank admissions from the commencement of investigations into her conduct and is remorseful – where the respondent has sought and received ongoing treatment – where the respondent’s registration has lapsed - where the parties agree as to the facts – where the parties agree as to the 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 5
The Director of Proceedings, on behalf of the Health Ombudsman
Hall Payne Lawyers
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- The Director of Proceedings on behalf of the Health Ombudsman (“the applicant”) has referred a health service complaint about SNA (“the respondent”) to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (“HO Act”). The applicant seeks a finding that the respondent has behaved in a way that constitutes professional misconduct within the meaning of section 5 of the Health Practitioner Regulation National Law (Queensland).
- The parties are agreed as to the relevant facts, including the conduct alleged, and that such conduct should be characterised as professional misconduct, and have made joint submissions as to the appropriate orders for sanction.
- The respondent was born on [redacted] and is currently aged 44 years, and was 38 when the alleged conduct commenced. The respondent was first registered as a registered nurse on 4 December 1996. She has no previous notifications on her registration history. The respondent has worked as a nurse since she was 22 years of age and has no other qualifications or relevant work experience. From January 2008 until September 2014, the respondent was employed as a registered nurse in the emergency care centre of a Southeast Queensland private hospital.
- The conduct alleged to constitute professional misconduct occurred during the course of August 2013. The respondent suffered an injury to her right ankle in about 2007. Following that injury, she underwent multiple occasions of surgery in an attempt to stabilise the ankle, including bone grafting surgery in September 2013. All such surgeries were unsuccessful in remediating the respondent’s condition and, ultimately, the respondent had her ankle fused in June 2018. Prior to the ankle fusion surgery, the respondent was prescribed and would rely on up to eight tablets of Panadeine Forte per day in order to manage her chronic and acute pain.
- In addition to suffering the chronic pain as a result of her ankle injury, prior to and at the time of the alleged conduct the respondent was suffering from significant and longstanding health issues that contributed to her vulnerability to the addiction that underlay her conduct. At that time, the respondent was being prescribed Panadeine Forte, Diazepam, Seroquel and Sertraline, amongst other medications. In particular, she was prescribed a script for Panadeine Forte by a medical practitioner working in the same emergency care centre.
- The conduct alleged against the respondent, which is admitted by the respondent, is as follows. Sometime in August 2013, whilst on duty as a registered nurse at the hospital, the respondent stole blank prescription pages from a prescription pad designated to the same doctor who had previously prescribed her with Panadeine Forte. At the time, the prescription pad was kept in an unlocked drawer in the doctor’s area in the emergency department at the hospital. During August 2013, the respondent forged eight prescriptions using the stolen prescription pad pages, six for 500 milligram paracetamol/300 milligram Codeine (Panadeine Forte) and two for Diazepam (Valium).
- The respondent presented the forged prescriptions to two different pharmacies on five different days over the course of a 21-day period in August 2013, and fraudulently obtained 160 Panadeine Forte tablets and 100 Valium tablets and attempted to obtain a further 80 Panadeine Forte tablets. By such conduct, the respondent breached section 204 of the Health (Drugs and Poisons) Regulation 1996 and the provisions of the Code of Professional Conduct for Nurses in Australia and the Code of Ethics for Nurses in Australia.
- The parties both submit that such conduct should be characterised as professional misconduct. The Tribunal accepts that it should be so characterised and finds, pursuant to section 107(2)(b)(iii) of the HO Act, that the respondent has behaved in a way that constitutes professional misconduct.
- On 12 September 2013, as a result of the conduct, the respondent was placed on sick leave by her employer. On 14 September 2014, the respondent’s employment with the hospital was terminated. The respondent has not been employed as a registered nurse since such termination of employment, with the exception of two shifts performed for a nursing agency in about February or March 2018. The Nursing and Midwifery Board of Australia has since managed the issue of the respondent’s health impairment by imposition of conditions upon her registration, which continued up until the expiration of the respondent’s registration on 31 May 2019. The respondent did not seek to renew her registration at that time, having no intention of returning to the profession in the foreseeable future. The respondent would face very real difficulties in returning to practice in the future, now lacking recency of practice as a result of her not having 450 hours of practice within the past five years. No doubt if the respondent sought and achieved registration in the future, consideration would be given by the Nursing and Midwifery Board as to any need for conditions to address any concerns at that time.
- From the time that her conduct came to light in late August or early September 2013, the respondent has cooperated with the investigation into her conduct. She made early and frank admissions. She has not sought to minimise or justify her conduct, which she acknowledges is serious. The respondent clearly recognises the significant level of trust that was placed in her as a registered nurse and that she breached not only her employer’s trust, but also the trust the general public has in the nursing profession, when she stole the prescription pages and obtained the restricted drugs with forged prescriptions. It is worth noting again that the respondent did have genuine medical problems requiring pain relieving medication of the kind she obtained under the prescriptions she forged. It should also be noted that there is no evidence to suggest that her conduct resulted in any actual or potential risk of harm to patients.
- Since the time of the conduct, the respondent has continued to struggle with significant health and personal difficulties. To her credit, she has sought and continued with appropriate treatment to address such difficulties. The respondent has voluntarily not sought work in the nursing profession in that period in order to properly manage her mental and physical health issues.
- The parties jointly submit that a reprimand would satisfy the protective purposes of sanction in this matter. A reprimand is not a trivial penalty and has the potential for serious adverse implications. It acts as a public denunciation of the conduct and is a matter of public record, affecting the reputation of a practitioner. The parties submit that, in all the circumstances, a period of preclusion from practice is not necessary. Should the respondent seek practising registration with the Board in the future, she will need to overcome the Board’s requirements in terms of recency of practice and satisfy the Board that she is a fit and proper person to hold registration in the profession.
- In determining an appropriate sanction for the respondent’s misconduct, the health and safety of the public are paramount. The purpose of the disciplinary proceedings and any sanction imposed is protective, not punitive. The determination of sanction remains a discretionary matter for the Tribunal, notwithstanding any agreement between the parties. However, the Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside the permissible range of sanction.
- The Tribunal accepts that a reprimand is the appropriate order by way of sanction in this matter. The respondent’s misconduct was a serious breach of her professional and legal obligations and involved a gross breach of the trust expected of her by her employer and the public. The respondent’s conduct deserves denunciation by the Tribunal.
- Both parties submit that there would be no reason for the Tribunal to depart from the ordinary position that the parties bear their own costs of the proceedings, and that will be reflected in the orders of the Tribunal.
- Accordingly, the Tribunal orders:
- 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;
- Pursuant to section 107(3)(a) of the of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded; and
- Each party must bear the party’s own costs for the proceeding.
- Published Case Name:
Health Ombudsman v SNA
- Shortened Case Name:
Health Ombudsman v SNA
 QCAT 328
30 Oct 2019