Health Ombudsman v Martin[2020] QCAT 350

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104.  In accordance with the Act I am sitting with assessors Ms J Felton, Ms L Dyer and Mr S Lewis.^[1]
2. [2]
   The respondent is and was at relevant times a registered nurse, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld). The applicant alleges that the respondent engaged in professional misconduct in that, while registered, she obtained prescription medication, including opiates, by forging prescriptions using her access to the system at the hospital where she worked.   
3. [3]
   The parties have provided the Tribunal with an agreed statement of facts, and an agreed bundle of documents.  The respondent has been legally represented in this proceeding, and the parties have each provided submissions to the Tribunal.  There are no factual matters in dispute.   An affidavit by the respondent, sworn on 12 February 2020, was also before the Tribunal. 
4. [4]
   The Tribunal accepts the facts set out in the agreed statement of facts.  They, and some additional information before the Tribunal, may be summarised as follows:  The respondent was born in 1970 and is now 50.  She was first registered as a registered nurse and a midwife in 2006; she had previously qualified, and worked as a nurse and as a midwife, in the UK.  From 2015 to 2018 she worked as a midwife at a provincial hospital.  She has had a long standing problem with concern over her weight and body image, since diagnosed as Bulimia Nervosa, which she kept secret from her family and which went untreated.  Her hobby was horse-riding, as a result of which she suffered orthopaedic injuries, including a broken foot in 2018.  This was very painful, and she was prescribed Endone for it. 
5. [5]
   Between 10 August 2016 and 1 June 2018 she forged twelve prescriptions to obtain Duromine, and one to obtain Endone, using a prescription book and doctor’s stamp from the hospital where she worked.  On 25 occasions she was able to obtain the drugs sought; on the last occasion the pharmacy checked and discovered that the script was not genuine, so it was not filled, and the matter was reported to the police.  Duromine is used to promote weight loss, and she took it as part of her Bulimia, to avoid gaining weight.  On 19 June 2018 police attended her premises with a warrant, and the respondent handed over the stamp and a quantity of prescription forms.  During a field interview, she made extensive admissions.  She was charged with a total of 77 offences, as follows:

13 counts of stealing by a public servant;

12 counts of forging;

26 counts of uttering a forged document;

25 counts of fraud;

1 count of attempted fraud.

6. [6]
   On 2 November 2018 she pleaded guilty to all the charges in a Magistrates court, and was placed on probation for two years.  No convictions were recorded.  No previous convictions were alleged, and she has had no prior disciplinary matters.  In November 2018 she resigned from her then employment, although subsequently a disciplinary declaration was made, which will affect future employment. 

7. [7]
   In her affidavit, the respondent said that, after the police search, she felt suicidal.  She presented to a hospital, not the one where she worked, and was briefly admitted.  She was then referred by her GP to a psychologist and later to a psychiatrist, whom she has continued to see subsequently, and was seen for inclusion in an eating disorders programme, which she began in October 2018, and completed six months later.^[2] 
8. [8]
   Reports from the psychiatrist, a psychologist and a forensic psychologist were tendered when she was before the court.  The psychiatrist diagnosed Bulimia Nervosa, and Major Depressive Disorder.  The psychologist reported that treatment to date had focused on stabilizing the depression and anxiety, that the respondent was compliant with treatment, and was making progress.  Because the Bulimia was of long standing, it was going to be difficult to treat, and an intensive support programme was recommended.  The respondent was ashamed of her behaviour and remorseful, and was regarded as unlikely to reoffend. 
9. [9]
   The forensic psychologist recorded more background details, and that the respondent had been treated with antidepressants in 2012 after the end of her marriage, but had not revealed her eating disorder at that time.  She was receiving treatment for all conditions, had a good support network in place, and is unlikely to reoffend. 
10. [10]
    AHPRA also became involved, and in early December 2018 the respondent gave an undertaking to the Board to attend a psychologist and a psychiatrist for treatment, and to provide details of the treating practitioners and other information to AHPRA, including employment information.  She remained unemployed until June 2019, when she was employed briefly at a rural hospital, after which she was again unemployed. 
11. [11]
    In May 2019 she applied to have the undertaking revoked, and an independent medical assessment was obtained from a psychiatrist, who reported that the respondent was fit to practice, and could safely practice, she had insight into the cause of her offending, and was remorseful.  She had completed the intensive eating disorders programme, was eating normally and was feeling much healthier.  The treating psychologist also reported that the respondent no longer had symptoms of Bulimia, was continuing treatment to cement her recovery and had nothing causing concern about her fitness to practice.  A report was obtained from the treating psychiatrist, but it is not in the material.  In November 2019 the Board revoked the undertaking.  The respondent remained unemployed to the time of her affidavit, because of the absence of any recent reference, but the submissions for the respondent indicate that she resumed work as a nurse in March 2020.   
12. [12]
    The respondent’s affidavit also deposes to the serious adverse effects the offending has produced on her life, and supports the existence of remorse for the offending, and insight into the origin of it.  She remained on an antidepressant, and was feeling quite well.  She had complied with the requirements of the probation order to that point, and there is nothing to suggest any subsequent failure, although it is continuing.  She has undertaken, on her own initiative, an ethical decision making course. 
13. [13]
    The applicant alleges that the respondent’s conduct the subject of the referral amounted to professional misconduct.  The respondent accepts that characterization. I am aware of the definition of professional misconduct in the National Law s 5, and that there have been earlier decisions of the Tribunal that misuse of a health practitioner’s position to obtain medication dishonestly amounts to professional misconduct.^[3]  In this case the conduct extended over a fairly long period, and some opiates were obtained, although most of the drugs were less dangerous.  The situation was similar to self-medication, although in this case she was treating a condition which did not exist, but which she thought existed because of an eating disorder.  As set out in the submissions of the applicant, the conduct breached the Code of Conduct issued by the Nursing and Midwifery Board of Australia.  Because of the element of dishonesty, it is appropriate to characterize the conduct as professional misconduct. 
14. [14]
    In imposing a sanction, the health and safety of the public are paramount.^[4]  Disciplinary proceedings are protective, not punitive in nature.^[5]  Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[6]  Insight and remorse on the part of the respondent are also relevant.^[7]  What matters is the fitness to practice of the respondent at the time of the hearing.^[8] 
15. [15]
    The submissions of both parties support the same sanction, namely that the respondent be reprimanded, but that no other sanction be imposed.  This is similar to a joint submission as to sanction, the effect of which was discussed by Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91]-[93] by reference to authorities, in terms with which I respectfully agree.  I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29]-[31].  Ultimately, it is a matter for the Tribunal to determine what sanction to impose. 
16. [16]
    The respondent was away from the practice of nursing for about sixteen months because of the offending, so there has been some practical suspension already.^[9]  The underlying cause of the offending was the respondent’s untreated eating disorder, which has since been treated appropriately.  She has made a good recovery, and is now regarded by the Board as fit to practice, a matter of significance in terms of the safety on the public.  There has been no recurrence of offending and the risk of reoffending is said to be low.  The respondent has demonstrated remorse and insight into her conduct.  She cooperated with the police investigation, pleaded guilty to the charges and cooperated in this proceeding. 
17. [17]
    The Tribunal was referred to some earlier decisions.  In Health Ombudsman v Antley (supra) a nurse had stolen prescription forms and forged prescriptions which were used to obtain Endone, to treat a real, painful condition.  The respondent was no longer registered, and had not practiced for a period of seven months.  She had initially not been frank with the police investigation, and did not engage with the proceeding, giving rise to doubts about her remorse.  She was reprimanded, and disqualified from applying for registration for a further nine months. 
18. [18]
    In Health Ombudsman v Hardy (supra) a nurse had obtained Schedule 4 medication by the use of fraudulent prescriptions over a period of almost eighteen months.  She had left nursing, and had not practiced for about four years, and because of this no suspension was considered necessary.  She had for a time been placed in the health impairment programme, but she was later removed from it as being stable, and fit to return to employment as a registered nurse.  She was reprimanded, but no suspension was imposed.   
19. [19]
    In Health Ombudsman v Mullins [2019] QCAT 339 a nurse stole a number of prescription forms and over a period of about four weeks obtained a large quantity of opioids.  She had lost her job, and conditions had been placed on her registration.  She was reprimanded, but no suspension was imposed.  Overall, these decisions support the sanction proposed by the parties. 
20. [20]
    In view of all the circumstances of this matter, I consider that it is appropriate to impose a sanction in line with that proposed in the joint submissions.  I acknowledge that a reprimand is not a trivial penalty.^[10]  Accordingly the decision of the Tribunal is as follows:

1. The Tribunal decides that the respondent behaved in a way that constituted professional misconduct.
2. The respondent is reprimanded.
3. The parties bear their own costs of the proceeding.