Health Ombudsman v Holznagel
[2020] QCAT 337
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- Health Ombudsman v Holznagel[2020] QCAT 337
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Health Ombudsman v Holznagel[2020] QCAT 337
Health Ombudsman v Holznagel[2020] QCAT 337
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Holznagel [2020] QCAT 337 |
PARTIES: | Health ombudsman (applicant) v denise holznagel (respondent) |
APPLICATION NO/S: | OCR286-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 9 September 2020 (Ex Tempore) |
HEARING DATE: | 9 September 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member J Robertson Assisted by: Ms Harriet Barker Ms Suzanne Harrop Dr Anthony Tuckett |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent is a registered nurse – where the referral alleges professional misconduct – where the respondent was employed as a nurse in private hospital – where the respondent plead guilty to one count f stealing as a clerk and servant, one count of unlawful possession of restricted drugs, and one count of possessing dangerous drugs – where the Magistrates Court did not record convictions and the respondent was fined $1200 – where the respondent did not provide the board written notice as required after being charged – whether such conduct should be characterised as professional misconduct – where the offending could be regarded as out of character – what sanction should be imposed Health Ombudsman Act 2013 Health Respondent Regulation National Law (Queensland) Nursing and Midwifery Board of Australia v Mahon (Review and Regulation) [2014] VCAT 403 HCCC v Flynn [2009] NSWNMT 1 Health Ombudsman v Jamieson [2017] QCAT 172 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Mr C Wilson instructed by Director of Proceedings on behalf of the Health Ombudsman |
Respondent: | Ms E Bassingthwaighte of Hall Payne Lawyers |
REASONS FOR DECISION
- [1]The Tribunal is dealing with a further amended disciplinary referral filed by the applicant director on 15 April 2019 pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act).
- [2]The respondent was born on 25 August 1958. She obtained a Bachelor of Nursing Science from James Cook University in 2004.
- [3]She was first registered as a registered nurse on 26 June 2000.
- [4]She currently holds general registration as a registered nurse in division 1 with the Nursing and Midwifery Board of Australia (the Board) pursuant to the Health Respondent Regulation National Law (Queensland) (the National Law).
- [5]It is common ground that at all relevant times the respondent has been registered under the National Law as a registered nurse; was a health service provider within the meaning of section 8(a)(i) of the Act, being a health practitioner under the National Law; and was subject to the registration standards, codes or guidelines developed by the Board as to what constitutes appropriate professional conduct or practice for the nursing profession, including the code of professional conduct of nurses in Australia (code of conduct) and code of ethics for nurses in Australia (code of ethics) in accordance with section 41 of the National Law.
- [6]The respondent worked at the Townsville Private Clinic (TPC) from 13 July 2015 until 5 April 2016.
The relevant conduct
- [7]On 24 October 2016 at the Townsville Magistrates Court the respondent pleaded guilty to and was convicted of three criminal offences.
- [8]On 23 March 2016 the Queensland Police Service executed a search warrant at the respondent’s residence at Hermit Park, Townsville.
- [9]The police asked the respondent whether she had any drugs to declare and she advised that she only had Valium and blood pressure medication.
- [10]As part of the search for the property, police found a bag in the wardrobe of the master bedroom. Inside the bag were vitamin bottles that contained a blister pack of 25 temazepam 10 milligram tablets; three blister packs containing a total of 28 diazepam five milligram tablets; a blister pack of six diazepam two milligram tablets and a box of Allersoothe, 25 containing 25 promethazine 25 milligram tablets, prescribed to “Trevor Moore”, a former patient of TPC. The respondent claimed ownership of the drugs. She initially told the police during the search that she found the Allersoothe 25 on the road outsider house. She told police that the temazepam was hers, but she had had it for a long time and she did not have a prescription for it at the time. She did not have a prescription for the diazepam at the time.
- [11]The respondent later told police during the search that she found the drugs in a bag in the corner of the TPC car park after her shift the previous night and had intended to return the drugs on her next shift.
- [12]At 1.00 pm the respondent went to the TPC and met with the CEO, Mr Patrick McGurrin. She told him that she had found the drugs in the TPC carpark after her shift the previous night and had intended to return them on her next shift, but the police had executed a search warrant that morning and confiscated them.
- [13]Evidence from the facility’s CCTV footage of 22 March 2016 shows the respondent walking directly to her car and getting in without stopping to pick up anything.
- [14]Ultimately, she was charged with three offences. On 24 October 2016 she pleaded guilty to the following criminal offences:
- (a)one count of stealing by clerks and servants, an offence pursuant to section 398.7 of the Criminal Code, in relation to the Allersoothe only;
- (b)one count of unlawful possession of restricted drugs pursuant to section 204 of the Health (Drugs Poisons) Regulation in relation to the Allersoothe; and
- (c)one count of possessing dangerous drugs pursuant to section 9 of the Drugs Misuse Act in relation to the diazepam and temazepam.
- (a)
- [15]The court ordered that the respondent be fined the sum of $1,200 and no conviction was recorded.
- [16]Her conviction for those three offences is the subject of charges 1 and 2 in the further amended application for referral. However, charge 2 relates to an allegation which the respondent accepts, but she was not convicted of dishonestly obtaining the three blister packs containing a total of 28 diazepam five milligram tablets and a blister pack of six diazepam two milligram tablets.
- [17]Charge 3 in the further amended referral relates to a breach of 130 of the National Law. The respondent failed to give the Board written notice as required within seven days, namely, on 8 April 2016, that she had been charged with the offences, a number of which were punishable by more than 12 months imprisonment and therefore a “relevant event” for the purposes of the section.
- [18]The conduct the subject of the referral is admitted by the respondent.
Characterisation of the conduct
- [19]The respondent admits that the conduct the subject of allegations 1 and 2 in the referral amounts to professional misconduct as defined in section 5 of the National Law, and that the failure to notify the Board when charged constitutes unprofessional conduct as defined in that same section.
- [20]The Tribunal is satisfied, by reference to the behaviour itself, and by reference to a number of the authorities relied on by the applicant in its submission, namely, Nursing and Midwifery Board of Australia v Mahon (Review and Regulation) [2014] VCAT 403; and HCCC v Flynn [2009] NSWNMT 1, that the admitted conduct amounts to professional misconduct. The respondent also accepts by her conduct in relation to the criminal offences and her conduct in relation to charge 2, that that conduct was substantially below the standard expected of registered nurses by reference to the code of conduct and code of ethics which is made relevant by section 41 of the National Law.
- [21]A number of cases referred to by the applicant in its submission are directly comparable. In Health Ombudsman v Jamieson [2017] QCAT 172 the respondent engaged in professional misconduct having taken three boxes of antibiotics from Herberton Hospital where she worked. The Tribunal stated:
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 damaging...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 in concluding that such a theft may be characterised as professional misconduct.
- [22]In all those circumstances, I am satisfied that the admitted conduct considered globally amounts to professional misconduct.
Sanction
- [23]The purposes of these proceedings is protective and not punitive. Medical Board of Australia v Jansz [2011] VCAT 1026 sets the relevant principles that apply in a case such as this.
- [24]The paramount principle, as set out in section 4 of the Act, is that the health and safety of the public is paramount. Determinations by way of disciplinary sanction are intended to maintain proper ethical and professional standards for the protection of the public, and also for the protection of the profession in the sense of its stature and integrity in the eyes of the public. A sanction can be achieved by specific or general deterrence, that is a sanction that will dissuade other practitioners who may be minded to conduct themselves in a similar way, that they will be dealt with by the regulator and the Tribunal and open themselves up to findings of professional misconduct.
- [25]Sanctions are also designed, particularly in relation to the protective feature, to facilitate the rehabilitation of the practitioner. In this case the respondent has done much to satisfy the Tribunal that she is substantially rehabilitated. She has shown considerable remorse. She has suffered considered shame, a personal ordeal and financial difficulty, and this undoubtedly has impressed upon her the nature of her conduct, and the consequences of behaving in this way.
- [26]On 5 April 2016, the respondent’s employment as a registered nurse with TPC was terminated as a result of the police charges. From that date until July 2017, she was unemployed. During that period she was subject to conditions imposed on her registration by the Board which restricted her ability to supply, administer or dispense and access Schedule 4 drugs.
- [27]On 17 June 2017, she applied to the Board for a review of those conditions.
- [28]From July 2017 to December 2017 she worked as a support worker with the Endeavour Foundation, providing respite care to consumers from a very young age to 65 years of age.
- [29]On 5 October 2017 the Board removed the conditions of the respondent’s registration.
- [30]Since January 2018 she has been employed as a registered nurse in aged care at the Good Shepherd home in Townsville. As noted earlier, throughout the period since the termination of her employment from TPC, she has not been subject to any notifications or any suggestion of misconduct. It is also very relevant to note that prior to that she had served commendably as a registered nurse in a number of capacities without a single notification.
- [31]This conduct could be regarded as completely out of character and probably related to her personal circumstances at the time.
- [32]Her insight and remorse is also demonstrated by her cooperation in the criminal process. Although it has to be said that her explanations to her CEO and her explanations to the police were not completely consistent, she nevertheless, without legal advice pleaded guilty at the earliest possible stage.
- [33]The submission filed on her behalf with the various attachments indicates that since the conditions were imposed on her registration she has done much to address her personal issues, and she has also undertaken a number of educational programs that the applicant agrees does not require the imposition of any further conditions to that effect on her registration at this time.
- [34]In any event, the Tribunal would have concluded that given the lapse of time and her period of impeccable employment since, effectively July 2017, it would not have been appropriate and probably would have been punitive to impose the types of conditions that the applicant initially sought. It is commendable that the parties have approached the matter in a common-sense way and in a fair way in reaching the agreement that they did.
Orders
- [35]In those circumstances, the Tribunal orders:
- Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 that the respondent has behaved in a way that constitutes professional misconduct; and
- Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent be reprimanded; and
- The parties bear their own costs of the proceedings.