Exit Distraction Free Reading Mode
- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Batley  QCAT 225
Director of Proceedings on behalf of the health ombudsman
julie ann batley
Occupational regulation matters
26 May 2020 (ex tempore)
On the papers
Judicial Member Robertson
Ms A Bains
Ms H Barker
Mr J McNab
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where respondent stealing drugs from patient in course of her employment – where a conviction was not recorded – professional misconduct – driving with methylamphetamine in her system – where respondent was found in possession of small amount of methylamphetamine – where respondent did not engage with the Office of the Health Ombudsman or the Tribunal – whether sanction appropriate
Drugs Misuse Act 1986 (Qld)
Health Practitioner Regulation National Law Act 2009 (Queensland)
Health Ombudsman Act 2009 (Qld)
Transport Operation Road Management Act 1995 (Qld)
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
- On the 26th of June 2019, the applicant Director referred these disciplinary proceedings to the Tribunal, pursuant to s 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act).
- At all material times, the respondent was registered as an enrolled nurse (Division 2) with the Nursing and Midwifery Board of Australia (the Board); a health service provider within the meaning of s 8(a)(i) of the Act; and subject to the various registration standards, codes and guidelines developed by the Board as to what constitutes appropriate professional conduct and standard for nurses, including the Code of Conduct and the Code of Ethics for Nurses in Australia.
- The referral relates to the respondent’s conviction by her own pleas of guilty in the Magistrates Court at Rockhampton on the 16th of November 2018 to 18 offences. The details of her offending is summarised in allegation 1 in the disciplinary referral as an annexure to that referral.
- On three occasions (2nd of May 2018, 15th of June, and 17th of August), she was intercepted by police and found to be driving with methylamphetamine in her saliva. On the 2nd of May, she was found to be in possession of a box of Lyrica, (50-milligram), which is a prescription medication. She had stolen this medication from a patient in the course of her employment as an enrolled nurse at the Rockhampton Base Hospital. Lyrica contains the restricted drug pregabalin.
- She was also found in possession of a syringe. This incident formed the basis of the 2nd May charges namely ; driving with the dangerous drug methylamphetamine in her system, one charge of stealing as a servant, one charge of possession of the restricted drug pregabalin and one count of possession of a syringe. On the 15th of June 2018, she was intercepted at a random alcohol and drug testing site and again found to have methylamphetamine in her system, which she admitted to police she had used that day. On the 17th of August 2018, she was again intercepted by police for a licence check and found to have methylamphetamine in her system, and she was also found in possession of a small clipseal bag that contained a small quantity of that drug. These incidents form the basis of two further driving charges under the Transport Operation Road Management Act (the TORUM), and one charge of possession of a dangerous drug under the Drugs Misuse Act.
- On the 6th of October 2018, she was intercepted in the early hours of the morning by police and was detained; her car was searched and a red wallet was located which contained a set of silver digital scales and a red straw which had white powder residue on the end of it. This led to the last of the eight charges dealt with on the 16th of November 2018, under the Drugs Misuse Act of possession of utensils used to commit a drug offence.
- The Magistrate placed her on probation for 20 months, ordered her to perform 80 hours unpaid community service, fined her $500 and disqualified her from holding or obtaining a driver’s licence for a period of six months. He did not record convictions.
- The Magistrate was referred to the respondent’s criminal history, which contained a number of old drug offences from 2006 and 2007.
- Her date of birth is the 9th of August 1980, so at the time of the Rockhampton offences, she was 38. She did cooperate with the criminal justice process by pleading guilty at an early stage, but she has chosen not to engage with the Office of the Health Ombudsman or in these proceedings. As a result, the background to her offending can only be gleaned from what her solicitor told the Magistrate. He told him that his client had been the victim of ongoing domestic violence at the hands of her male partner, which only ceased when he was imprisoned. Very little was said to the Magistrate in relation to what was obviously a serious substance abuse problem, apart from mention of some engagement with Drug ARM, which was not supported by any written material.
- Her registration history is relevant. I can infer that she or her employer referred the charges on the 2nd of May 2018 to the Health Ombudsman as it referred her possible health impairment to AHPRA, which advised the Office of Health Ombudsman on the 26th of June 2018 that as a result of immediate action taken on the recommendation of the Queensland Board Immediate Act, the registration of the respondent had been suspended. On the 31st of January 2019, the Board imposed a condition on the respondent’s registration prohibiting her from practicing as a nurse. She did not renew her registration on the 31st of May 2019. Prior to that, she had failed to attend a number of health assessment appointments arranged by the regulator and, as noted earlier, she has not participated at all in these proceedings, despite being served with all relevant documentations.
- These disciplinary proceedings are protective in nature and not punitive. The safety and health of the public is the paramount consideration.
- In my view, it is appropriate to consider the totality of the respondent’s criminal and traffic misconduct in determining whether her conduct as proved amounts to professional misconduct. Throughout the period of the offending, she clearly had a significant substance abuse problem relating to the intravenous use of the dangerous drug methylamphetamine, and she was using the dangerous drug cannabis. Her actions in stealing restricted drugs from a patient in the hospital involved a serious breach of trust, both of the patient and her employer. Her addiction was such that after being charged with serious offences on the 2nd of May, she was not deterred from reoffending.
- I am satisfied that having regard to the totality of her criminality, her falls substantially below the standards reasonably expected of an enrolled nurse. For a nurse to steal drugs prescribed for a vulnerable patient in a hospital setting, and to use and drive a motor vehicle while under the influence of illicit drugs such as methylamphetamine, is in direct conflict with a number of the principles set in the Codes of Practice and Ethics approved by the Board. The conduct when viewed in it’s totality constitutes professional misconduct by reference to the definition in s 5 of the National Law.
- Deterrence is an important consideration in cases like this, so as to discourage nurses from
- (a)abusing the trust of patients and employers by stealing drugs, particularly restricted drugs from the workplace, and
- (b)from using dangerous drugs which is mostly likely to lead to impairment and impact on the health and safety of the public.
- The respondent initially showed remorse and some insight by pleading guilty, but sadly her failure to engage since with the regulators and in these proceedings does not give the Tribunal confidence that the level of risk that she presented at the time of her offending has been ameliorated. As she has not renewed her registration, the Board will obviously consider the issue of risk as an important consideration in considering her application if she does seek to be registered again.
- In those circumstances, the Tribunal makes the following findings and orders:
- The Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct pursuant to s 107(2)(b)(iii) of the Act,
- The respondent is reprimanded under s 107(3)(a) of the Act, and
- No order as to costs.
- Published Case Name:
Health Ombudsman v Batley
- Shortened Case Name:
Health Ombudsman v Batley
 QCAT 225
Judicial Member Robertson
26 May 2020