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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Haack  QCAT 285
Director of Proceedings on behalf of the Health Ombudsman
mandy louise haack
Occupational regulation matters
3 June 2020 (ex tempore)
On the papers
Judicial Member J Robertson
Ms Harriet Barker
Ms Mary Barnett
Mr Bradley Thomas
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where respondent stole drugs from patient in course of her employment – where a conviction was not recorded – professional misconduct – where the respondent did not notify the Board within 7 days of the relevant event – where the respondent fully cooperated with the Board – whether sanction appropriate
Health Ombudsman Act 2013
Health Practitioner Regulation National Law (Queensland)
Health Ombudsman v Jamieson  QCAT 172
R v Yarwood  QCA 367
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 applicant director referred these disciplinary proceedings to the Tribunal on 31 July 2019, pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act). The parties have filed an agreed statement of facts, and although each has filed submissions, both agree as to the appropriate characterisation of the respondent’s admitted conduct and the sanction to be imposed.
- As a matter of principle, this Tribunal will only depart from the agreed position of the parties where the sanction proposed falls outside the range of appropriate disciplinary responses to the proved conduct. This reflects the important public policy principle, particularly relevant in proceedings of this nature, which are protective and not punitive, that to depart from an agreed position of the parties to resolve the proceedings, particularly here where the respondent is legally represented by solicitors who regularly practice in this jurisdiction, is to inappropriately discourage proper negotiations between parties, leading to an agreed position, and to conversely encourage unnecessarily prolonged and expensive litigation, which is not in the public interest.
The agreed facts
- At all relevant times, the respondent was a registered nurse. She obtained a Bachelor of Nursing in 2002. She was 54 years of age at the time of the agreed conduct, the subject of these proceedings, and is now 56 years of age. She was a health practitioner, and a health service provider, pursuant to the relevant definitions in s 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
- The respondent was contracted through a nursing agency on a casual basis. On 22 November 2018, she was contracted to work a shift as a registered nurse at the Princess Alexandra Hospital in the mental health unit and she was assigned to care for one patient with complex needs.
- The disciplinary referral contains three allegations. Allegation 1 relates to the unauthorised removal of an amount of hydroxyo-B12 injections, one milligram, from the medication room in the North wing of the hospital at approximately 1.50 pm on 22 November 2018, which she placed in her left pocket. She had no authority to give out or remove any medication whilst working at the hospital. At approximately 2.09 pm on the same day, she re-entered the medication room and removed three Lorazepam two-milligram injections, which she placed in the right pocket of her jacket.
- The medication room is a secure room, accessible only by swipe card, and protected by CCTV. It was inevitable that her actions would be discovered. The discrepancy in the drug register was discovered later that day, and the CCTV was viewed, which clearly showed the respondent misappropriating the drugs.
- She was charged in January 2019, and on 15 May 2019, she pleaded guilty to one count of stealing as a servant, and one count of possession of a dangerous drug. She was placed on a 12-month good behaviour bond, fined $350, and no convictions were recorded.
- Allegations 2 and 3 can be considered together. Contrary to s 130 of the National Law, she did not give notice to the Nursing and Midwifery Board of Australia (the Board) of the charges within seven days, that is by 10 January 2019, and she did not give the required notice of the sentence orders to the Board by 22 May 2019.
- The respondent has cooperated fully with the regulator and in the resolution of these proceedings, and she pleaded guilty at an early stage. She has not worked as a nurse since December 2018 and she did not renew her registration, which expired on 31 May 2019. Pursuant to s 21(2) of the Act, the Tribunal can deal with the matter in relation to her conduct while a registered health practitioner as if she was still registered.
- At the time of her Court appearance, the respondent had a very dated prior criminal history, which clearly had no relevance in the Magistrates Court hearing in 2019 and has no relevance in these proceedings.
- In the event that her re-registration application is being considered by the Board, and these reasons are before the Board, it is relevant to note that in relation to the two incidents of shoplifting in 1998, these are regulatory offences, and to the extent to which the orders recorded suggest that a conviction was recorded, this would be incorrect as a matter of law, as there is no power for a Court to record a conviction where a person pleads guilty to a regulatory offence. In other words, at the present time, she has never had a conviction recorded in any of the proceedings referred to in the criminal history, including the proceedings the subject of allegation 1.
- As noted in the agreed facts, apart from the referral, the respondent has never been subject to any regulatory or disciplinary notifications.
- The respondent filed an affirmed affidavit in these proceedings on 10 February 2020. She explains that she has been treated for anxiety and depression since 1997 when she was diagnosed with postnatal depression, which I infer was after the birth of the fourth of her five children.
- She was registered as an enrolled nurse in October 1991 and worked in that capacity over a number of years. After her registration as a registered nurse, she worked as a casual registered nurse at the Rockhampton Base Hospital between 2002 and 2015. She says that she was suffering from severe depression and anxiety on 22 November 2018, having relocated to Brisbane to be closer to members of her family and separated from her treating doctor in Gladstone.
- In her affidavit at paragraph 27, she states:
I had no reason to steal the vitamin B12 injections and did not inject them. Although I have been prescribed with lorazepam in the past, I took an injectable form of it and I have a phobia of needles. I did not use either of the injectable medications and when I returned home, I flushed the lorazepam down the toilet and disposed of the vitamin B12 injections.
- She says that she has now returned to Gladstone and re-established contact with her treating doctor, Dr Gregory. Annexed to her affidavit is a note from him, dated 21 November 2019, which relates to her good character but does not refer to her mental health or his treatment of her. As she ascribes her misconduct to mental illness, obviously, when the Board is considering any application for re-registration, it will have to be satisfied that she is not impaired by reason of mental health or illness, to the extent that she was prepared to steal drugs, which she says she did not use and had no need to use. Her affidavit and her actions since discovery of her misconduct shows significant remorse and insight; however, there is at this stage, little corroborating evidence to support the contention that she was severely impaired by mental illness at the relevant time.
- Clearly, her conduct was entirely out of character and her explanation may be entirely accurate. But as I have noted, this will be a matter for the Board to consider at the time it considers her application for registration. Otherwise, I agree with her submission that there is no evidence before the Tribunal that would sustain a finding that the respondent presents now as a risk to the health and safety of the public.
Characterisation of the conduct
- I agree with the applicant that the conduct involved in allegation 1, involving stealing drugs from the hospital where she was employed, is serious, however, it falls at the lower end of this type of conduct, having regard to the nature of the drugs taken, and that it occurred within a very short time frame, namely, during one shift. As it proved, her conduct would inevitably be discovered, as it was, which perhaps demonstrates that she was not in a proper state of mind at the time.
- In Health Ombudsman v Jamieson  QCAT 172, the respondent engaged in professional misconduct, having taken three boxes of antibiotics on a single occasion from the Herberton Hospital where she worked. The Tribunal stated (at ):
The stealing of medical supplies by a nurse from his or her place of employment is a serious act of misconduct. The present case, which involves the taking of some fairly familiar antibiotics, does not raise quite the same level of concern as the taking of illicit drugs, or patently dangerous, habit-forming drugs…Whilst this conduct lies at the lower end of examples of this type of conduct, it strikes directly at the proper provision of medical services, and I have no hesitation concluding that such a theft may be characterised as professional misconduct.
- The parties jointly submit that the conduct set out in allegation 1 amounts to professional misconduct, as defined in s 5 of the National Law. In relation to allegations 2 and 3, these breaches should be regarded as a minor aggravation of her professional misconduct in committing the acts of theft and not be subject to any separate and distinct timings of unprofessional conduct. That is the approach contended before by the applicant which is both sensible and fair.
- As noted earlier, the respondent’s own behaviour since being charged is demonstrative of both remorse and insight. Clearly, deterrence is a factor to be considered almost always when professional conduct by a registered health practitioner is proved. As noted earlier, the evidence of her mental illness at the time comes only from the respondent. I accept that it is not contested, but there has been no opportunity for the Board to have her assessed, nor does her own treating general practitioner refer to her mental illness or its relationship with obvious out of character conduct. For that reason, I do not think that the principle commonly applied in criminal sentencing, as enunciated in paragraph 18-22 of the respondent’s lawyer’s submissions by reference to such cases as R v Yarwood  QCA 367, has much application here, given the lack of medical opinion evidence.
- In this case, there was no suggestion of any actual or potential harm to any patient, indeed, as referred to previously, her employment that day was confined to the care of one high-needs patient and she had no authority to administer drugs, but such conduct is, by its very nature, apt to undermine public confidence in the profession and to bring it into disrepute. As against that, the respondent’s own conduct since her conduct was discovered is encouraging and is indicative of steps taken to address the underlying causes of her behaviour, and as I have noted earlier, shows significant insight.
- In these circumstances, the order of the Tribunal will be as follows:
- The respondent has engaged in professional misconduct;
- The respondent is reprimanded;
- Each party bear their own costs.
- Published Case Name:
Director of Proceedings on behalf of Health Ombudsman v Mandy Louise Haack
- Shortened Case Name:
Health Ombudsman v Haack
 QCAT 285
Judicial Member Robertson
03 Jun 2020