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Health Ombudsman v Robertson QCAT 283
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Robertson  QCAT 283
Director of proceedings on behalf of the Health ombudsman
Occupational regulation matters
13 May 2020 (ex tempore)
On the papers
Judicial Member J Robertson
Ms Mary Barnett
Ms Suzanne Harrop
Mr Stephen Lewis
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was convicted of driving under the influence of alcohol, stealing a script pad, and unauthorised stealing of shop goods, and trespass – where the respondent failed to inform the National Board within 7 days of the of the relevant event – whether professional misconduct – whether Tribunal should depart from joint submissions of parties
Health Ombudsman Act 2013
Health Practitioner Regulation National Law (Queensland)
Health Ombudsman v SNA  QCAT 328
Legal Services Commissioner v Fellows  QCAT 337
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
- These disciplinary proceedings were referred by the director applicant to the Tribunal on 19 December 2019. The proceedings relate to admitted actions by the respondent in 2015, which lead to convictions for various offences in that year and in 2016. There is no issue that at all material times the respondent was a registered nurse with the Nursing and Midwifery Board of Australia (the Board) and a health service provider within the meaning of s 8(e)(i) of the Health Ombudsman Act 2013 (the Act); and a health practitioner under the Health Practitioner Regulation National Law (Queensland) (National Law).
- She also accepts that, contrary to s 131 of the National Law, she failed to notify the Board of various convictions within the prescribed time.
- Her registration was suspended on 20 October 2015 until 20 December 2016, and from 19 December 2016 she was registered subject to the condition that she must not practice as a registered nurse until she received the Board’s approval. Her registration expired on 13 February 2017. She has not practised as a registered nurse since these matters came to the attention of the authorities.
- The respondent completed a Bachelor of Nursing from QUT in 1997 and prior to the offending and behaviour the subject of this referral had no previous notifications to the Board or relevant regulator.
- Her offending conduct, as agreed by her, is set out in paragraphs 15 to 18 of the agreed statement of facts:
“15. On 9 December 2015 the respondent was convicted of one count of did drive U.I.L. (motor vehicle) and was fined $1120 pursuant to the Transport Operations (Road Use Management) Act 1995, section 79(1)(a). Particulars:
- (a)On 23rd September 2015 the respondent was under the influence of alcohol or liquor and was in control of a motor vehicle;
- (b)The respondent was involved in a motor vehicle accident with two other vehicles and had a blood alcohol reading of 229 milligrams of alcohol per 100 mls – millilitres of blood.
- On 14 January 2016 the respondent pleaded guilty, was convicted, and fined $400 for the offence of stealing by clerks and servants pursuant to section 389.6 of the Criminal Code Act 1899. Particulars:
- (a)On or about the 21st of August 2015 the respondent stole a script pad which was the property of Queen Elizabeth (II) Jubilee Hospital in Metro South Health;
- (b)The respondent was charged with the offence of stealing by clerks and servants on the 17th of September 2015.
- On 10th of May 2016 the respondent was fined $600 for the offence of unauthorised dealing with shop goods (maximum $150) pursuant to section 5 of the Regulatory Offences Act 1985 (QLD). Particulars:
- (a)On 19th April 2016 the respondent attempted to unlawfully remove beauty products from Myer and David Jones.
- On 8th of November 2016 the respondent pleaded guilty, was convicted and entered into a recognisance of $400 for the offence of trespass – entering or remaining in yard or place for business pursuant to section 11(2) of the Summary Offences Act 2005 (QLD). Particulars:
- (b)On the 17th of May 2016 the respondent was issued a banning notice preventing her from re-entering any Myer store located in Queensland;
- (c)On the 6th of October 2016 the respondent entered the Myer store where the initial banning notice was issued.”
- Although described in the agreed statement of facts as “criminal offences”, only one, namely the theft of a script pad from her employer on 21 August 2015, can truly be described as a criminal offence. The other offences are properly characterised as traffic or regulatory offences.
- It is what she did with another prescription pad, presumably unlawfully obtained from her employer, set out in paragraphs 21 to 23 of the agreed facts, which is in fact criminal conduct which she frankly admits but for which she was never convicted. On 29 occasions between 27 May 2015 and 27 August 2015 she forged prescriptions in her own name using the provider numbers of medical practitioners without their consent.
- At all material times she was abusing codeine medication and alcohol due in part to a dysfunctional marriage, and she stole prescription pads to obtain Endone, antidepressants and Valium. Her conviction of high-level drink driving on 14 January 2016 and shoplifting and breaching a banning notice from Myer were all associated with her emotional and mental health problems.
- The parties have made joint submissions as to the appropriate orders to be made and as to the appropriate disciplinary response. The respondent admits that her conduct described above amounts to professional misconduct and/or unprofessional conduct.
- Notwithstanding the joint submissions and the admissions of the respondent, the Tribunal nevertheless must still decide, pursuant to s 107 of the Act, whether or not the respondent has behaved in a manner that constitutes professional misconduct, and/or unprofessional conduct, and in that event what the appropriate disciplinary response should be.
- The Tribunal is satisfied that the respondent’s conduct as described above and set out in allegations 1, 2 and 3 of the referral constitutes professional misconduct as defined by s 5 of the National Law. The Tribunal is also satisfied that the respondent has behaved in a way that constitutes unprofessional conduct as alleged in allegations 4, 5, 6, 7 and 8 of the referral.
- In deciding what sanction to impose the Tribunal must regard the health and safety of the public as paramount and that proceedings of this nature are protecteive and not punitive in nature.
- In behaving as she did, and in not reporting her criminal charges to the Board as required, the respondent relevantly breached applicable codes and guidelines approved by the Board, including the code of professional conduct for nurses in Australia, the Nursing and Midwifery Board of Australia and the code of ethics for nurses in Australia.
- Personal and general deterrence are almost always factors to be reflected in the sanction imposed, not only to protect the health and safety of the public, but also to send a message to other professionals that to behave in this way is apt to bring the profession into disrepute and to lower public respect for what is an essential and noble profession.
- An assessment of the ongoing risk imposed by the practitioner is always a factor that must be considered by the Tribunal.
- The respondent has filed an affidavit in these proceedings sworn on 18 November 2019 which I have read. She has cooperated with authorities more or less from the start of the investigations, and has cooperated with these disciplinary proceedings. Early on when the theft of the prescription pad was discovered, she did not admit to her supervisor that she had misused the prescription pad which was clearly not true. In her affidavit she refers to a history of postnatal depression, social anxiety disorder and severe depression. She frankly admits that, prior to the events the subject of these proceedings, on three occasions from 2013 to 2014, she was admitted to a detox facility for codeine and alcohol abuse. She discloses a dysfunctional marriage plagued by domestic violence, both physical and verbal, over a 10-year period. She is now divorced from her former partner.
- She also discloses that as a result of a fracture in May 2015 she was prescribed Endone by a medical practitioner to which she became addicted. She admits that by September 2015 she was having what she describes as a complete breakdown.
- I accept that she is deeply remorseful; that she is regularly seeing a psychiatrist and in addition, a specialist doctor who is described as an addiction specialist and has prescribed Suboxone to treat her addiction. She states in her affidavit at paragraphs 36 – 38:
“36. I currently hold employment as a casual food and beverage attendant. In my current role, I work up to 40 hours a week. I have been employed by my current employer since March 2019.
- While I am hopeful of returning to nursing at a point in the future, I acknowledge that I will have to satisfy ARPRA I am medically fit to be able to work as a nurse.
- I am also likely to experience issues with recency of practice given the length of time that I have been away from the profession.”
- The delay in finalising these disciplinary proceedings is also a factor relevant to the appropriate disciplinary response. In Legal Services Commissioner v Fellows, it was noted by QCAT that:
...the true significance of delay as a mitigating factor is not so much that the respondent has been under a cloud for so long as the application remain unresolved, it is that the Tribunal is afforded an opportunity to see what the practitioner has done (or not done) to modify his or her professional behaviour over the intervening period (see the discussion on this point in the context of sentencing for criminal offences in R v L; Ex Parte Attorney-General for Queensland  2 Qd R 63). To the point, the practitioner’s behaviour over the period of the delay may serve to aggravate, mitigate or have no effect on the end sanction. Here, for the reasons that immediately follow, the delay operates in his favour.
- In my view, the mitigating factors set out in the joint submissions at paragraph 37 are factors that operate in favour of the respondent in relation to these proceedings. The applicant in the joint submissions has provided the Tribunal with a number of comparable cases. I need only refer to one.
- In Health Ombudsman v SNA, the practitioner stole blank prescription pages from a prescription pad at the hospital at which she worked, and forged eight prescriptions over a 21 day period, in order to obtain over 160 tablets and 100 tablet of Panadeine Forte and Valium respectively. The Tribunal acknowledged that the practitioner was suffering from significant and longstanding health issues that contributed to her vulnerability to the addiction that underlaid her conduct. The respondent had sought and continued with appropriate treatment to address such difficulties and did not seek work in the nursing profession in that period in order to properly manage her mental and physical health issues. At the date of hearing, SNA had not practised for over five years. The Tribunal found that the practitioner engaged in professional misconduct and ordered that the practitioner be reprimanded.
- In my view that case is of considerable assistance to the Tribunal in formulating appropriate orders. It is most unusual for the Tribunal to depart from orders that have been agreed to by the parties, and there are none of the unusual or exceptional matters that would come into play to cause the Tribunal to depart from the principle in this case. In reaching the decision as to the appropriate sanction to be applied I have the joint support of all my assessors. The Tribunal therefore orders as follows:
- Under section 107(2) of the Health Ombudsman Act 2013 (QLD), findings are made that:
- (a)The respondent has behaved in a way that constitutes professional misconduct as alleged in allegations 1, 2 and 3 of the referral, in that she engaged in conduct is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience;
- (b)The respondent has behaved in a way that constitutes unprofessional conduct as alleged in allegations 4, 5, 6, 7 and 8 of the referral;
- Pursuant to s 107(3) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
- The parties must pay their own costs of these proceedings.
- Published Case Name:
Director of Proceedings on behalf of the Health Ombudsman v Colleen Robertson
- Shortened Case Name:
Health Ombudsman v Robertson
 QCAT 283
Judicial Member Robertson
13 May 2020