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- Unreported Judgment
Health Ombudsman v McGill QCAT 399
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v McGill  QCAT 399
andrew charles mcgill
Occupational regulation matters
4 December 2019 (ex tempore)
On the papers
Judge Allen QC, Deputy President
Dr K Forrester
Mr M Halliday
Mr S Lewis
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – SANCTION – where the respondent is a registered nurse – where the applicant instituted disciplinary proceedings against the respondent as a result of criminal conduct involving the theft of drugs – where the respondent’s conduct involved activities designed to cover up the theft – where the respondent’s attempts at covering up the theft included actions which could have, but did not, result in harm to a patient – where the respondent has a relevant notification history – where the respondent has been subject to a de facto period of suspension of approximately four years – where the respondent’s conduct ought to be characterised as professional misconduct or unprofessional conduct – whether the respondent should be subject to any further preclusion from practice
Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5
Healthcare Complaints Commission v Flynn  NSWNMT 1
Health Ombudsman v Kennedy  QCAT 319
Health Ombudsman v Riek  QCAT 173
Nursing and Midwifery Board of Australia v Mahon  VCAT 403
The Director of Proceedings, on behalf of the Health Ombudsman
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
- This is a referral of a health service complaint against Andrew Charles McGill (“the respondent”) pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (“HO Act”) by the Director of Proceedings on behalf of the Health Ombudsman (“the applicant”). The applicant alleges the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction. The applicant alleges in the alternative that the respondent has engaged in unprofessional conduct. The respondent has admitted that he engaged in unprofessional conduct but has not admitted that he has behaved in a way that constitutes professional misconduct.
- The respondent was first registered as a registered nurse on 16 February 1998. The respondent has a previous notification history which is relevant to issues of sanction. In 2008 the respondent, in the course of his employment, misappropriated opiate medication and falsified drug registers. As a consequence, his employment was terminated and, in 2009 and 2010, the Nurses Board of Victoria imposed conditions on his registration directed towards the respondent’s drug dependence. The Nurses Board of Victoria did not refer the respondent’s conduct to police at that time.
- On 29 April 2010 the respondent applied for registration as a registered nurse in Queensland. On 4 May 2010, the Queensland Nursing Council granted the respondent conditional registration and imposed conditions which mirrored those that had been imposed by the Nurses Board of Victoria. Those conditions were removed by the Queensland Nursing Council in or around November 2011.
- On 15 March 2012 the respondent notified the Australia Health Practitioner Regulation Agency (AHPRA) that he had taken morphine from the hospital where he was then employed and had relapsed in his use of morphine. The respondent had been stealing morphine from his employer over an extended period of time. On 16 March 2012 the Nursing and Midwifery Board of Australia (“the Board”) took immediate action against the respondent and removed his ability to administer drugs. On 17 April 2012 the respondent provided undertakings to the Board addressed towards the issue of his drug dependence. On 10 May 2012 the respondent pleaded guilty in the Magistrates Court at Townsville to stealing as a person in the public service and was ordered to be subject to probation for a period of 18 months with a requirement that he submit to medical, psychiatric or psychological assessment as directed and urinalysis testing and participation in therapeutic intervention to address illicit drug use as required. No convictions were recorded.
- On 24 November 2014, the respondent commenced employment as a registered nurse in the paediatric ward of the Mater Hospital, Townsville. On 28 October 2015, staff in the paediatric ward noticed anomalies in the controlled drug register, including the fact that three ampoules of morphine were missing. Further investigation revealed that one of the morphine ampoules had been signed out of the register to a patient who had already been discharged earlier that day and another entry showed that morphine had been signed out twice for a nine month old patient. Checks with the patient’s mother revealed that the child did not receive any morphine. Further inquiries revealed numerous discrepancies in the register, suggesting the theft of morphine and the falsification of records. Police were contacted.
- On 30 October 2015 the respondent attended an interview with the Executive Director of Nursing and denied any wrongdoing. He was suspended on pay pending further investigation of the matter. On 16 November 2015 the respondent surrendered his registration to AHPRA.
- On or about 16 December 2015 the respondent was charged by police with offences of stealing and possessing dangerous drugs. On 24 August 2016 the respondent appeared in the Magistrates Court at Townsville and pleaded guilty to 47 charges of stealing drugs and 47 charges of possession of a dangerous drug, with those offences occurring between 6 and 28 October 2015. The respondent was sentenced to three months imprisonment on each charge, to be served concurrently, wholly suspended for 18 months. Convictions were recorded. Submissions made to the sentencing magistrate indicated that, at the time of sentence, the respondent was working full-time as an administration officer and had enrolled in university to study law. There was evidence that he had been seeing a psychologist/counsellor at the university student wellbeing service.
- The term, “unprofessional conduct” is defined in s 5 of the Health Practitioner Regulation National Law (Queensland) (“National Law”) as “professional conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner’s professional peers” and is stated to include, amongst other things, “the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practice the profession”.
- The term, “professional misconduct”, is defined in s 5 of the National Law as including “unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience”.
- The meaning of “substantial” was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2)  SASCFC 167 at 110:
…it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner. In the context of this appeal, “substantial” connotes a large or considerable departure from the standard required. This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.
- The respondent’s conduct was a large and considerable departure from the standard expected of a registered health practitioner of his level of training and experience. The features demonstrating the extent of such departure include:
- (a)The respondent engaged in serious criminal conduct involving the theft of significant quantities of schedule 8 controlled drugs from his employer.
- (b)The respondent breached the trust placed in him by the nursing profession and his employer and took advantage of his employment as a registered nurse to steal as an employee.
- (c)Whilst there was no evidence that the respondent’s conduct, in fact, deprived any patients of their analgesic medication, the respondent’s conduct included the depletion of morphine stocks to the point where there were no ampoules of morphine left, and his creation of false records of administration of drugs to patients, in particular the nine month old patient, at least had the potential to compromise patient safety by false information becoming part of their clinical history.
- (d)The respondent created false entries in the drug register on 47 occasions. The respondent also created false entries on patient medication charts. Nurses and other health practitioners trust their colleagues to make accurate records in a patient’s medication chart about drugs administered to patients. Employers trust their employees to make accurate records in dangerous drug registers and patient medication charts to demonstrate compliance with the strict requirements placed upon them in relation to the use of schedule 8 controlled drugs. Patients place trust in nurses and health practitioners to make an accurate record of the drugs administered to them to ensure that they receive optimum care and that their safety and care is not compromised.
- (e)The respondent falsified drug registers using the names of colleagues and so not only betrayed the trust of those colleagues but demonstrated a wilful disregard for the potential ramifications that his conduct might have upon those colleagues.
- The Tribunal does not hesitate to decide, pursuant to s 107(2)(b)(iii) of the HO Act, that the respondent has behaved in a way that constitutes professional misconduct.
- The applicant, in written submissions dated 5 April 2019, submits that the respondent should be reprimanded and, further, should be disqualified from applying for registration for a period of six months to 12 months.
- There is no question that the respondent’s conduct deserves denunciation by way of a reprimand. The issue to be determined is whether there should be any order disqualifying the respondent from applying for registration for a period of time.
- 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.
- In considering appropriate orders for sanction, it is very relevant that, since the surrender of the respondent’s registration on 16 November 2015, the respondent has been unable to practice as a registered nurse for a period of a little over four years. The applicant submits, and the Tribunal accepts, that it is open to the Tribunal to treat such period of preclusion from practice as a de facto suspension which should be taken into account when considering whether any further preclusion from practice is required.
- The Tribunal has very little information as to the respondent’s circumstances since the time of his sentence in 2016. The only material that the respondent has placed before the Tribunal consists of two character references. The referees speak very highly of the character of the respondent and his active involvement in community activities. There is no material as to the respondent’s health and any steps he may have taken to address substance abuse issues. However, the applicant has not referred the aspect of any health impairment of the respondent to the Tribunal. The issue of any health impairment is one to be addressed by the Board if there should be any future application by the respondent for reregistration. If the respondent was to apply for registration as a nurse, he would be required to meet all of the Board’s standards, including recency of practice, he would need to demonstrate that he is a fit and proper person, and he would need to address any issues relating to any impairment. In those circumstances, there is no immediate protective purpose to be achieved by any further preclusion from practice. The purposes of any further preclusion from practice would be for reasons of general deterrence.
- The applicant has referred to a number of comparative decisions: Healthcare Complaints Commission v Flynn  NSWNMT 1, Nursing and Midwifery Board of Australia v Mahon  VCAT 403, and Health Ombudsman v Riek  QCAT 173. The Tribunal has also had regard to the decision of the Health Ombudsman v Kennedy  QCAT 319. Those cases do not support a conclusion that a further preclusion from practice is required to meet the protective purposes of sanction.
- In circumstances where a further preclusion from practice might, for reasons of requirements of recency of practice, effectively prohibit the respondent from seeking reregistration as a nurse, any further preclusion from practice may carry an undue punitive effect. In those circumstances, the Tribunal concludes that further preclusion from practice is not required to address the paramount purpose of protection of public health and safety. In all the circumstances, bearing in mind the effective preclusion from practice of the respondent of over four years, a reprimand is sufficient to meet the purposes of sanction. It must be borne in mind that a reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person. It is a matter of public record which will remain on the register until the Board chooses to remove it.
- The applicant has not sought any order for costs and the orders of the Tribunal should reflect that the ordinary position as to costs will apply.
- Accordingly, the Tribunal orders as follows:
- Pursuant to s 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 s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
- Each party must bear the party’s own costs for the proceeding.
- Published Case Name:
Health Ombudsman v McGill
- Shortened Case Name:
Health Ombudsman v McGill
 QCAT 399
04 Dec 2019