Nursing and Midwifery Board of Australia v Sellen
[2020] QCAT 318
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- Nursing and Midwifery Board of Australia v Sellen[2020] QCAT 318
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Nursing and Midwifery Board of Australia v Sellen[2020] QCAT 318
Nursing and Midwifery Board of Australia v Sellen[2020] QCAT 318
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing and Midwifery Board of Australia v Sellen [2020] QCAT 318 |
PARTIES: | NURSING AND MIDWIFERY BOARD OF AUSTRALIA (applicant) |
| v |
| ELIZABETH ROBYN SELLEN (respondent) |
APPLICATION NO/S: | OCR280-19 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 3 September 2020 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC Assisted by: Dr Kim Forrester Ms Carolyn Ashcroft Mr Stephen Lewis |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – Professional misconduct – assault apart from work as a nurse – criminal convictions – registration not renewed - sanction Health Ombudsman Act 2013 s 104, s 107 Chiropractic Board of Australia v Oorloff [2019] VCAT 2010 Health Ombudsman v Carter [2019] QCAT 52 Health Ombudsman v HCG [2020] QCAT 166 Health Ombudsman v Le Garde [2019] QCAT 260 Nursing and Midwifery Board of Australia v Carroll [2011] QCAT 264 Nursing and Midwifery Board of Australia v FH [2010] QCAT 675 Nursing and Midwifery Board of Australia v Hogan [2018] TASHPT 3 Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan [2015] QCAT 283 Psychology Board of Australia v GA [2014] QCAT 409 Queensland Nursing Council v Dodd [2010] QDC 220 |
REPRESENTATION: |
|
Applicant: | Clayton Utz Lawyers |
Respondent: | T Ryan instructed by Hall Payne Lawyers |
APPEARANCES: | 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
- [1]This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Practitioner National Law (Queensland) (National Law) s 193B(2). In accordance with that Act, I am sitting with assessors Dr Forrester, Ms Ashcroft and Mr Lewis.[1] The respondent was a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld), being an Enrolled Nurse. The applicant alleges that the respondent engaged in professional misconduct, in that she assaulted an acquaintance, causing her serious injury.
- [2]The applicant and the respondent, who has been legally represented in these proceedings, have each provided written submissions to the Tribunal. There is also a statement of agreed facts, and an agreed bundle of documents, and two affidavits by the respondent before the Tribunal. The parties are in agreement about a number of matters, but differ as to the sanction proposed. The hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 s 32.
- [3]The agreed facts, and other material before the Tribunal, may be summarized as follows: The respondent was born in 1974 and is now almost 46. She was first registered as an Enrolled Nurse in 2009. At the relevant time she was employed as an Enrolled Nurse by a hospital in a county area, where she had worked for about five years.[2] On 5 March 2014 an altercation occurred between the respondent and another woman, after which the respondent followed the other woman to her home. They had known each other for some years, and had formerly been friends, but the relationship had broken down.[3] The respondent went into the other woman’s kitchen, grabbed her around the throat and pushed her against a wall, then after releasing her, grabbed her arm and shoulder and propelled her across the kitchen, causing her to strike things there, and to fall heavily to the floor, as a result of which she suffered a fractured hip.
- [4]In September 2014 the respondent was charged with entering a dwelling with intent, common assault and unlawfully doing grievous bodily harm. The respondent self-notified the charges on 8 October 2014. After being charged, she was for a time suspended by the hospital, but returned to work in February 2017.[4] In early November 2017 the respondent undertook to the Board not to practice as an enrolled nurse, which undertaking was accepted, because of an unrelated health matter.
- [5]On 7 February 2018 she pleaded guilty to the three charges in the District Court. She was sentenced to terms of imprisonment of which the longest was two years and six months for the third charge, to be served concurrently and suspended after ten months, with an operational period of three years. The sentencing judge noted that the complainant was slightly built, and was, to the respondent’s knowledge, suffering from osteoporosis. As a result of the injury, she required surgery, and suffered a lot of pain, and was left with serious physical and psychological consequences. He accepted that the conduct was out of character for the respondent. As a result of her conviction, her employment was terminated by the hospital. In April 2018 she changed to non-practicing registration, which was not renewed in 2019, and she has been unregistered since 31 May 2019. The matter was referred to the Tribunal on 16 August 2019.
- [6]In her affidavits the respondent has provided information about her background, and some information as to how the offending came about, and its consequences for her. She has expressed remorse, and explained how the sentence of imprisonment affected her, including damaging her family life, which fortunately has since improved. She also explained that she would like to be able to support an organization assisting women adjusting to life after prison, in providing health checks for them. She also spoke of having controlled her anxiety and depression with medication prescribed by her GP. Since leaving prison, she has not been able to obtain employment, and has limited finances. There has been no further offending.
- [7]The respondent claimed that she was suffering anxiety and depression at the time of the offending, and that that contributed to the offending, but there is no expert evidence supporting the proposition that any mental health issues were a cause of the offending. There is authority that any mental health difficulties of a practitioner are not an excuse for professional misconduct, but can be relevant to sanction.[5] That her mental health has improved reduces the need for personal deterrence, and I am prepared to accept that that is the position with the respondent. The applicant submitted that, in the absence of supporting medical evidence, this evidence should be treated with caution, but there is no good reason to reject the respondent’s evidence of this, and in any case this is not a matter of great significance.
- [8]The applicant alleged and the respondent agreed that the respondent’s conduct amounted to professional misconduct. I am aware of the definition of professional misconduct in s 5 of the National Law; the applicant relied on paragraph (c) of the definition. It occurs to me that the conviction of each offence fell within paragraph (c) of the definition of unprofessional conduct in the National Law, so that it may be that paragraph (b) of the definition was satisfied. As the applicant pointed out in submissions, the conduct was a breach of the Code of Conduct for Nurses, issued by the Nursing and Midwifery Board of Australia. Given the serious nature of the offending, and the attitude of the respondent, it is unnecessary to consider the issue of characterization further, and the Tribunal decides that the conduct of the respondent amounted to professional misconduct.
- [9]In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include both personal and general deterrence,[6] the maintenance of professional standards and the maintenance of public confidence. There have been cases where health practitioners who have committed offences of violence outside the context of their work have been dealt with for professional misconduct. The offending in this case was serious because of the serious injury suffered by the complainant, although it may be noted that the respondent was not convicted of intentionally causing grievous bodily harm. This was an isolated incident, regarded by the sentencing judge as out of character for the respondent, and that conclusion seems justified by the absence of other offending, or any other indicia of a violent disposition. Insight and remorse on the part of the respondent are also relevant to the assessment of the risk to the public.[7] There is evidence of these here, in the affidavits of the respondent. It may be noted that she did self-notify when charged, and the plea of guilty to the criminal charge does suggest remorse.
- [10]The applicant submitted that the respondent’s claims of insight should be treated with caution, in view of her having initially disagreed with much of the information contained in the statement of facts on the basis of which she was sentenced. More recently she has not sought to dispute this. This is a difficult situation for someone in the position of the respondent. I expect that it is sometimes the case that a statement of facts prepared for sentencing will be the result of a pragmatic compromise negotiated between counsel, rather than necessarily corresponding exactly with either the defendant’s position, or what really happened. It is appropriate for the Tribunal to proceed on the basis that the factual basis of the sentence was correct, but the fact that a practitioner at one time seeks to dispute matters of detail does not necessarily mean that she does not accept that her conduct was wrongful, or that she is not remorseful for the offending. In the circumstances of this case, I am prepared to accept the respondent’s evidence of insight and remorse.
- [11]Indeed, the applicant has repeatedly questioned the evidence of the respondent on the basis of an absence of independent objective support. But the respondent has not been cross-examined on her affidavit, the content of the affidavit is not inherently implausible, and there is no evidence to contradict it. In those circumstances there is no proper basis for the Tribunal to reject it.
- [12]The applicant submitted that the appropriate sanction included a disqualification from registration for a period of three to four years from the Tribunal’s order. The respondent submitted that the disqualification period should end on 1 March 2021, which would be a period of just over three years from when she was sentenced, or twenty-one months from when she ceased to be registered. The applicant relied on the serious nature of the offending conduct, which was expressed in a number of different ways but is really the same point, the need to protect public confidence in the nursing profession, and the contravention of the Codes of Conduct, as well as what was said to be an absence of genuine insight and remorse, and what was characterized as a failure to admit to the conduct until recently, neither of which I accept as significant.
- [13]The respondent submitted that it was relevant that the offending was not connected with her employment as a nurse, that it was out of character, that it did not involve a weapon and that she acted alone, that she had no prior disciplinary history and had self-notified the charges, all of which are correct. The respondent submitted that she had already been significantly punished for the offending, which is true, although the applicant submitted that this was not relative because the Tribunal’s function was protective rather than punitive. There is however some overlap, in that personal and general deterrence are common to both systems, and the extent of the punishment suffered by the respondent must be relevant to personal deterrence, and of some significance in terms of general deterrence. The respondent submitted, and I accept, that she had shown insight and remorse for the offending, which is also relevant to personal deterrence.
- [14]The respondent submitted that the time when her employment was suspended, from 20 November 2014 to 5 January 2017, because she had been charged with these offences should also be taken into account, as time away from nursing. She took no other employment at this time, and was still receiving her pay. The applicant submitted that, because she was still getting paid, and this was not a suspension by the Board, she should not get credit for it.
- [15]The respondent relied on Health Ombudsman v Le Garde [2019] QCAT 260, where a nurse had been convicted of burglary, unrelated to her work as a nurse, for which she was sentenced to imprisonment for two years, suspended forthwith. The nurse had also had conditions placed on her registration because of an impairment, which were not complied with, and as a result her registration was suspended. Twelve months later, she was granted non-practicing registration, and sought to have this period of about eight months taken into account. The Deputy President of the Tribunal said at [25]:
I would not regard the period of non-practising registration as being equivalent to a de facto suspension of practice. Whilst some regard should be had to such period of time during which the respondent has been unable to practise her profession, it has less significance than in those cases where such preclusion from practice is as a direct consequence of the conduct, and only for that conduct, for which sanction is being imposed.
- [16]The period of preclusion from practice was not taken into account because it related to the impairment, not the offending, the conduct leading to the sanction. By contrast, in this case the period of inability to practice because of the suspension was because the respondent had been charged with the offences which are the relevant conduct. This case meets his Honour’s test.
- [17]The respondent also referred to Health Ombudsman v Carter [2019] QCAT 52, where a nurse assaulted a patient in her care, and as a result was convicted of an offence; she also lost her job, and had not worked as a nurse since, for a period of over three years, and had surrendered her registration. In that case the parties jointly submitted that no period of preclusion was required because of the time she had already been effectively excluded from the profession: [10]. The Tribunal did not depart from that position.
- [18]The applicant referred to Psychology Board of Australia v GA [2014] QCAT 409, where the Tribunal took into account the fact that for a period the practitioner had voluntarily ceased work as a psychologist. The Hon J B Thomas AC said at [40]:
It will not always be appropriate to regard voluntary cessation of practice as equivalent to a de facto suspension, as a practitioner might take a convenient holiday and seek to obtain benefit from it. But in the circumstances of the present case there would appear to have been a genuine self-imposed discipline that has been conscientiously followed, which has been subject to surveillance by the Board.
- [19]What occurred here was not a “convenient holiday” or something of that nature, and was a direct consequence of the conduct. The fact that the respondent was paid would be relevant for the purposes of punishment, but not for the purpose of protection of the community. In the circumstances of this case, it is appropriate to have regard to that period of suspension.
- [20]The applicant referred to a number of earlier decisions. In Nursing and Midwifery Board of Australia v FH [2010] QCAT 675 the practitioner had been convicted in July 2009 of sexual offences, including rape, committed about twenty years earlier over a three year period against two nieces who were then young adults. He had surrendered his registration two months after conviction, and the Tribunal imposed a preclusion period of a further eight years. The reasons do not disclose whether he worked as a nurse up to the trial, but if so, this came on top of 16 months unregistered or not practicing.
- [21]In Queensland Nursing Council v Dodd [2010] QDC 220 a nurse had assaulted a former partner with a syringe of a paralysing drug he had stolen from his work, although without injecting any of it, for which he was sentenced after trial to eighteen months imprisonment.[8] The Nursing Tribunal had cancelled his registration, and prohibited him from reapplying until he had satisfied a list of eight conditions, although no specific preclusion period was imposed. On appeal I imposed a preclusion period of seven years from the date of the Tribunal’s order, taking into account the preclusion periods imposed in a number of other decisions of the Tribunal, none of which involved offences of violence. I noted that there were then no really comparable decision, and the period was determined without any useful guidance from earlier decisions.
- [22]In Nursing and Midwifery Board of Australia v Carroll [2011] QCAT 264 the nurse had injected morphine into a young female patient, contrary to the direction of the treating doctor, and while she was under its influence, had raped her. He was no longer registered, having been sentenced to five years imprisonment for the rape, and a preclusion period of eight years from the date of the decision was imposed by the Tribunal, as well as other sanctions. He had then been unregistered, or had had his registration suspended for two years nine months. That was a much worse case: Kingham DCJ, the then Deputy President, described it as one of the most serious ethical breaches that might occur: [18].
- [23]In Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan [2015] QCAT 283 the practitioner had been convicted of serious offences of violence, including attempted murder, for which she was sentenced to ten years imprisonment, with a serious violent offence declaration.[9] The Tribunal endorsed a joint submission for a preclusion period of ten years, on top of a period of almost four years since her registration had lapsed. That was also a much worse case than the present.
- [24]In Nursing and Midwifery Board of Australia v Hogan [2018] TASHPT 3 the practitioner, who had committed a total of twenty-one offences of assault in the context of domestic violence, had his registration suspended for three months. The applicant submitted that this was an outlier, and there is force in that.
- [25]In Chiropractic Board of Australia v Oorloff [2019] VCAT 2010 the practitioner had been convicted of inciting to kidnap, trafficking in methylamphetamine and unlawful possession of various drugs and ammunition, and was sentenced to six years and three months imprisonment with a non-parole period of four years and three months.[10] A preclusion period of eight years from the date of the order was imposed, taking into account that he already had at least four years and four months when he was unregistered or not practicing.
- [26]Earlier this year I dealt with the matter of Health Ombudsman v Jones [2020] QCAT 166, where a medical practitioner had been convicted of assault occasioning bodily harm and wilful damage, both domestic violence offences, and sentenced to twelve months imprisonment, suspended after two months. Renewal of his registration had been refused by the Board. There were significant psychiatric issues and other evidence in mitigation. I did not depart from a joint submission that a preclusion period be imposed until 10 December 2020, which was two years since the Board had refused registration, and two years and three months since he had ceased to practice on being imprisoned.
- [27]Overall my impression is that substantial preclusion periods have been imposed for serious sexual offences, and for sufficiently serious offences of violence, although less serious offences of violence produce shorter preclusion periods. In this case, the effect of a period of three years from the date of the order, sought by the applicant, would mean a total time away from the profession of over seven and a half years, taking in account both the earlier period of suspension of employment, and the period since conviction. On the whole I regard that as too severe in the circumstances. The respondent’s submission produces a total time away from the profession of a little over five years, not much less than the lower period sought by the applicant if adjusted to take into account the period of suspended employment. In all the circumstances, I accept the respondent’s submission as to the length of the preclusion period.
- [28]The applicant originally also sought an order for costs, but in response to the respondent’s submissions, accepted that each party should pay their own costs. That is appropriate.
- [29]Accordingly, the decision of the Tribunal is:
- The Tribunal decides that the respondent has behaved in a way that constituted professional misconduct.
- The Tribunal reprimands the respondent.
- The respondent is disqualified from applying for registration as a health practitioner before 1 March 2021.
- The parties bear their own costs of this proceeding.
Footnotes
[1] Health Ombudsman Act 2013 s 126; see s 127 for their function.
[2]The respondent in her affidavit claimed that in this employment she suffered bullying and racial discrimination, which put her under a lot of stress.
[3]The respondent in her affidavit said that this occurred because of the conduct of the other woman. It is not possible for the Tribunal to determine the rights and wrongs of this.
[4]The Statement of Agreed Facts says 2016, but there is a letter from the hospital of 5 January 2017 which shows that this was an error.
[5] Legal Services Commissioner v XBN [2016] QCAT 471 at [76] - [82]; Nursing and Midwifery Board of Australia v Evans [2016] QCAT 77 at [35]; Health Ombudsman v HSK [2018] QCAT 419 at [28].
[6]See Attorney-General v Bax [1999] 2 Qd R 9 at 17, concerning analogous provisions involving a legal practitioner.
[7] Medical Board of Australia v Blomeley [2018] QCAT 163 at [142].
[8]As it happens, by the same judge who sentenced the present respondent.
[9]The effect of this was that she had to service at least 80% of the sentence before parole.
[10] DPP v Oorloff [2016] VCC 1561.