Health Ombudsman v ADV[2020] QCAT 364

REASONS FOR DECISION

1. [1]
   These disciplinary proceedings were referred to the Tribunal by Application filed by the applicant on 29 March 2019. The application contains 2 allegations. The first relates the respondents’ convictions on her own plea of guilty to seven offences in the Southport Magistrates Court on 8 December 2017. The applicant alleges that as a registered nurse at all relevant times, the respondent has therefore engaged in professional misconduct as defined in the Health Practitioner Regulation National Law (Queensland) (the National Law).^[1] The second allegation is that the respondent failed to provide written notice to the Nursing and Midwifery Board of Australia (the Board) within seven days of her conviction;^[2] and has therefore engaged in unprofessional conduct as defined by the National Law.^[3]
2. [2]
   In her response filed 28 November 2019, although challenging a lot of the material in the Hearing Brief (HB), the respondent does not dispute the fact of her convictions on 8 December, or that she failed to notify the Board of those convictions within the relevant period.
3. [3]
   In her submission however,^[4] the respondent commences by stating “I am not guilty of the offenses (sic) alleged by OHO.”
4. [4]
   At a directions hearing in December 2019, the parties agreed that these disciplinary proceedings be heard on the papers. The Tribunal therefore has not had the opportunity to have challenged evidence tested if indeed that is necessary and/or relevant to determine the application.

The Agreed Facts

5. [5]
   The parties have filed a limited statement of agreed facts.^[5]
6. [6]
   The respondent is currently 49 years of age and was 47 at the time of her convictions.
7. [7]
   She is a highly qualified nurse with tertiary qualifications in nursing and many post graduate certificates related to her profession, some of which she has acquired since the commission of the offences the subject of the convictions.
8. [8]
   She was first registered as a nurse in Australia on 10 October 2001. She states that she was a registered nurse in New Zealand from 1994. The applicant does not dispute her qualifications,^[6] but observes that the respondent has not provided supporting evidence in this regard. Nothing turns on this in my opinion.
9. [9]
   The respondent has no prior history of notifications.
10. [10]
    At all relevant times she worked as a Registered Nurse (RN) at the Coronary Investigation Unit at the Prince Charles Hospital, an Anesthetic Assistant at the Wesley Hospital and at the Opioid Detoxification and Treatment Centre, Tweed Heads dispensing and supervising methadone.^[7]
11. [11]
    On 28 September 2017, the police executed a search warrant at the respondent’s home address and seized a large quantity of dangerous drugs and restricted drugs, and also non-schedule drugs and utensils.^[8]
12. [12]
    The officers noted that the medication found appeared to be packaged in a similar way to medication dispensed in a hospital.^[9]
13. [13]
    Although not part of the agreed facts, the photographs taken by police during the search,^[10] on the advice of the assessors, confirms the impression gained by the searching police officers at the time.
14. [14]
    On 8 December the respondent pleaded guilty to four counts of possessing dangerous drugs, one count of unlawful possession of restricted drugs, one count of unlawful possession of suspected stolen property and one count of possessing utensils for use.
15. [15]
    A count of stealing as a public servant was withdrawn and no evidence was offered.
16. [16]
    The respondent was placed on a good behaviour bond for 12 months and no convictions were recorded.
17. [17]
    I will return to details of the charges later in these reasons and to submissions made at the hearing on her behalf by her lawyer.

Is the respondent attempting to go behind her convictions?

18. [18]
    At the hearing, the respondent appeared on her own behalf and on occasions, appeared to accept the validity of the convictions,^[11] but at other times, appeared to take the opposite course.
19. [19]
    She does not dispute the accuracy of the transcript of the Magistrates Court proceedings,^[12] and the Verdict and Judgment Record is part of the Agreed Bundle of Documents.^[13]
20. [20]
    The transcript shows clearly that each of the seven charges were read out to the respondent in person and she pleaded guilty.
21. [21]
    The respondent now seems to blame her lawyer for not representing her instructions accurately but she lodged no appeal and has never criticized him in the multiple documents she has filed in these proceedings until, in oral argument, I read out a submission made on her behalf,^[14] that she seemed to criticize the lawyer.
22. [22]
    She has never disputed her convictions in the many documents she has filed and, in any event, section 79 of the Evidence Act 1977 is a complete answer to any suggestion that the fact of her convictions is not admissible in these proceedings which are civil in nature.
23. [23]
    Section 79 is in these terms:

79 Convictions as evidence in civil proceedings

1. (1)
   In this section –

civil proceeding does not include an action for defamation.

convicted means a finding of guilt for an offence, on a plea of guilty or otherwise, and whether or not a conviction was recorded.

3. (2)
   In any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in that proceeding, that the person committed that offence.

3. (3)
   In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.

3. (4)
   This section applies –

1. (a)
   whether or not a person was convicted upon a plea of guilty; and

2. (b)
   whether or not the person convicted is a party to the civil proceeding.

What is disputed by the respondent

24. [24]
    Although probably irrelevant to the Tribunal’s role given the admissions of fact made by the respondent, I have decided to briefly deal with a number of issues that are strongly disputed by the respondent and which are (a) relevant to the issue of insight and remorse and (b) marginally relevant to the proof of the convictions. As discussed below, any health impairment is not part of the referral and is being managed by AHPRA and the Board.
25. [25]
    She does agree that she self-admitted to the Robina Hospital on 3 October 2017 which was very close to the execution of the search warrant on her premises. Although she is the co-owner of the premises, it is clear that a number of other people were living there at the time as tenants or invitees including her co-accused and former partner (the other co-owner although the evidence does not reveal the nature of the tenure); who pleaded guilty to a number of similar charges on the same day.
26. [26]
    She also agrees,^[15] that following, that admission she was assessed as being unfit to work. She strongly disputes the notes taken by other health practitioners during her admission to Robina and I will come to that later.
27. [27]
    On 17 November 2017, the Australian Health Practitioner Regulatory Authority (AHPRA) accepted an undertaking by the respondent that she not practice as a registered nurse in the health profession. OHO and AHPRA had become involved soon after 3 October as a result of mandatory notifications made by a medical practitioner from Robina, the police and the Director of Nursing at TPCH where she was working at the relevant time.
28. [28]
    On 21 June 2018, AHPRA imposed conditions on her registration which were effectively similar to the terms of her undertaking and which prevented her working as a registered nurse either in a clinical of non-clinical role, however she was permitted to practice in an administrative capacity.
29. [29]
    The conditions were relaxed somewhat on 11 December 2019, which included pre-existing conditions about practicing only at places approved by the Board, an inability to handle Schedule 8 drugs other than when directly observed by another registered health practitioner, and having a supervisor.
30. [30]
    As at the date of the hearing on 9 September, as far as the Tribunal was aware this position pertained. The agreed facts state that the respondent has not worked as a nurse since 3 October 2017.^[16] It was the respondent who advised the Tribunal during the hearing in fact the conditions on her registration had been significantly relaxed by the Board on 13 August 2020, and this was confirmed by counsel for the applicant who undertook to forward that day a copy of the conditions to QCAT. These conditions were forwarded to QCAT after the hearing and confirm the respondent’s submissions. It is axiomatic that the Tribunal should have had this information prior to the hearing. It appears that the respondent is now working as a registered nurse.
31. [31]
    As noted earlier, the respondent, in many communications and documents filed, and in her oral submissions to the Tribunal disputes the accuracy of notes recorded as a result of her admission to Robina Hospital on 3 October.^[17] Without descending into the detail recorded in some of those documents (because of the limited relevance of this issue); in summary, she denies ever stating to health care professionals at Robina that she stole medications (although this is recorded in the notes associated with the charge of stealing was dropped by the police); that she worked while under the influence of illicit or non-prescribed medications; that she used such drugs; that she was a long term user of dangerous drugs in particular marijuana; that she has insight into drug use but enjoys it too much to quit – to name a few of the disputed notes.
32. [32]
    The notes are in evidence as an annexure to the affidavit of the HO Investigator Kellie Elizabeth Tinson.^[18] The respondent does agree that the admitting triage nurse^[19] correctly recorded her presenting condition as “anxiety and depression…very tense. Thoughts of self- harm but denies plans or intent.” In her own words,^[20] she states: “By 3 October 2017 I self-admitted myself to Robina Hospital. I was totally overwhelmed with depression, anxiety, trauma, suicidal ideation, ptsd.”
33. [33]
    Despite what appears to have been a very serious mental health episode, she now says that at least three health service providers (the ED Registrar, the ED Staff Specialist and the Clinical Nurse from the hospital’s Alcohol and Other Drugs Review Unit), have all made false records of what they say she said to them at the time. It is not suggested that any of these practitioners had any connection with the respondent apart from treating her. Her justification for what I find to be baseless allegations is summarized in her submission. “I did inform hospital staff of the police raid and pending court case. The hospital became biased and made the notification. It was only alleged by them that I had behaved in a (sic) improper manner.”
34. [34]
    The respondent’s submissions on this issue are inherently improbable and the Tribunal does not accept them as a matter of fact.^[21]
35. [35]
    This finding is supported by the submissions made on the respondent’s behalf on 8 December. In her presence, the solicitor told his Honour:

In 2013, her father died and she became very depressed. Through that depression, she developed a dependency on prescription drugs, and obviously also illegal substances.

Dr Prior

36. [36]
    The respondent has also made a number of significant criticisms of a personal and professional nature against Dr Prior. He is a consultant psychiatrist and his report dated 5 February 2018.^[22] In the agreed facts it is stated,^[23] that after accepting the respondent’s undertaking not to practice as a registered nurse, AHPRA directed her to attend an independent medical assessment. Dr Prior’s report is directed to the Board, but I infer that he conducted the medical assessment. She criticizes him for relying on the Robina records as being an accurate record of the history she gave various health professionals. For the reasons set out above, in my opinion, he was entitled to do that. She also criticizes him for suggesting that her report that her use of opiates and cannabis only began in 2017. As noted above, based presumably on her instructions and in her presence, her lawyer told the Magistrate that her drug use issues were linked to her father’s death in 2013.

Characterisation of her Conduct

37. [37]
    The applicant has the onus of proof to the standard established in Briginshaw v Briginshaw.^[24] Relevantly, “professional misconduct” is defined as “unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience”.^[25]
38. [38]
    The Code of Professional Conduct for Nurses in Australia and the Code of Ethics for Nurses are admissible as evidence of what constitutes appropriate professional conduct for the profession.^[26] Despite what the respondent appears to believe in her many submissions and in her statement, the applicant is not alleging that she did anything that compromises the safety of any patient. The allegations in the referral relate only to her pleas of guilty to drug offences on 8 December 2017. The Code of Professional Conduct refers to the requirement that “Nurses maintain and build on the community’s trust and confidence in the nursing profession.”^[27] Convictions for drug offences is apt to undermine that trust. In a similar vein, the Code defines professional misconduct for the purposes of the Code as “wrong, bad or erroneous conduct of a nurse outside his or her practice”.^[28]
39. [39]
    For a very experienced nurse, who has practiced in very demanding areas such as treating drug addicted patients to herself commit drug offences could reasonably be found to be in breach of the Code.
40. [40]
    At the hearing, the applicant did not pursue any reliance of the decisions set out in the written submission, and instead, relied on a recent decision of the Deputy President of QCAT his Honour Judge Allen QC.^[29] The respondent in that case was a registered nurse but with a lot less experience than the respondent. His conduct could be classified as a little more serious, in that he pleaded guilty to 2 episodes of low level drug offending, and returned positive drug tests for an illicit drug during the period he was under APRHA imposed conditions. His Honour had no trouble in classifying Brown’s conduct as professional misconduct. The applicant in that case sought a period of suspension but his Honour imposed a reprimand.
41. [41]
    In the circumstances, I am satisfied to the requisite standard, that the proved conduct amounts to professional misconduct. In relation to Allegation 2, I am satisfied that the practitioner believed that as APRHA was involved by the time of the court appearance, her notification obligations had been met. She did not know that she was required to notify the Board which is no defence. However, in those circumstances and given her complex issues at the time of the court hearing, I intend to find the allegation proved but to make no additional finding of unprofessional conduct. Rather the finding will be factored into the overall finding of professional misconduct in relation to Allegation 1.

Sanction

42. [42]
    The paramount principle is the protection of the health and safety of the public.^[30]
43. [43]
    It is well established that in the exercise of its protective jurisdiction, it is appropriate for the Tribunal to take into account the maintenance of professional standards, the preservation of public confidence in the profession and to deter the respondent and other registered nurses from engaging in such conduct.^[31]
44. [44]
    The purpose of these proceedings is protective and not punitive.^[32]
45. [45]
    Insight and remorse are important. On the evidence, the respondent has been an exemplary practitioner until this notification. She was clearly very unwell at the time. Since her undertaking to APRHA, she has done a great deal to address the complex issues behind her conduct. This is reflected in the gradual relaxation of conditions on her registration by AHPRA who are the responsible body for the regulation of her health issues. The most recent health assessment before the Tribunal,^[33] from her own treating psychiatrist who last saw her in October 2019 is that her depression is in remission, and the only drugs prescribed that are detected in Urine Drug Screens “since 2018” include methadone (which she takes for back pain); and cannabis oil and cannabinol capsules which are also prescribed for back pain.
46. [46]
    She has a very complex personal history which may explain her unjustified criticisms of other health care providers, the OHO and APRHA itself despite what appears to be a fair and benign approach to her case following her court hearing. She has also misunderstood and been overwhelmed by the regulatory response to her offences, as well as these proceedings. The Tribunal can understand how this can occur however nothing done by the regulators is properly amenable to justifiable criticism in this respondent’s case. Despite appearing by telephone, she struck me, and also the assessors, as being highly intelligent and a very good (if misguided) advocate in her own cause.
47. [47]
    I agree that the appropriate response in the circumstances here is a reprimand. It adequately reflects the protective nature of the Tribunal’s role and is a significant and salutary response which appropriately serves as a warning to other health practitioners that her actions were seriously wrong and fell below professional standards; and is apt to discourage others from engaging in such conduct.^[34]

Non-publication Order

48. [48]
    Towards the end of the hearing, at the disciplinary hearing on 9 September, the matter of a non-publication order was raised. The Tribunal only had an application filed by the respondent on 4 December 2019 for an order prohibiting the publication of her name, or identity details. It also had a report from the respondent’s treating psychiatrist dated 14 October 2019 that did not address s 66(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
49. [49]
    Counsel for the applicant was not aware of the application initially and that the respondent informed the Tribunal that she believed the matter had been resolved by a decision of the Tribunal.
50. [50]
    An order made on 13 December 2019 was then located and a copy provided to the Tribunal. It was made pursuant to section 66 and prohibited publication of any information that could identify the respondent as she had told the Tribunal.
51. [51]
    Directions were then made about the filing of further submissions and material.
52. [52]
    Since then, The Judicial Member has seen a transcript of the proceedings before Judge Allen QC on 13 December 2019 and a shorter report from the psychiatrist also dated 14 October 2019 and a submission from the respondent dated 4 December 2019 at 1.32 pm which was sent to Ms Zora Valeska.
53. [53]
    At the hearing, Mr Dupree on behalf of the applicant did not object to the order being made, but did say “there may be submissions made at the hearing”
54. [54]
    His Honour, after making the order, informed the parties that his order “may be subject of further consideration at a final hearing of the matter”
55. [55]
    In those circumstances, the applicant has advised the Tribunal that it will not seek to vary that Order which will remain in effect. That is the appropriate and principled response in the circumstances.
56. [56]
    The Tribunal orders:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 the respondent has behaved in a way that constitutes professional misconduct;
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded;
3. No order as to costs.