Health Ombudsman v Bassmann[2020] QCAT 395

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Tribunal is dealing with an amended referral by the applicant director, pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act) filed on 7 November 2019.
2. [2]
   It is common ground that at all relevant times, the respondent was registered under the Health Practitioner Regulation National Law (Queensland) (National Law) as a registered nurse with the Nursing and Midwifery Board of Australia (the Board); a health service provider within the meaning of s 8(a)(i) of the Act, being a health practitioner under the National Law; and subject to the registration standards and codes of conduct and ethics promulgated for the nursing profession, including by the Board, which documents are evidence of what constitutes appropriate professional conduct and practice by nurses.^[1]
3. [3]
   The respondent has cooperated extensively with both the disciplinary process and the regulators. There are a number of facts in dispute, however, the parties agree with the characterisation of the relevant conduct and with the sanctions.

Background

4. [4]
   The respondent was born on 28 April 1987, so 30 years old at the time of the conduct subject of the referral.  He is now 33 years of age. 
5. [5]
   In December 2008, he completed a Bachelor of Nursing Science at the James Cook University in Townsville. In January 2009, he obtained registration as a registered nurse. On 21 January 2009, he commenced with the Cairns and Hinterland Hospital and Health Service (the hospital) as a graduate nurse. He successfully completed the graduate program, and from 2009 to 2013, he worked as a registered nurse in the hospital emergency department. From 2013 to 2017, he worked as an acting clinical nurse consultant, and from February 2017 to June 2017, he worked as the acting nurse unit manager in the general medical ward at the hospital.
6. [6]
   In 2013, he was diagnosed with Bipolar Affective Disorder, for which he has received psychiatric and medical treatment, to which I will refer later. Outside his professional career, the respondent was an elite weightlifter and in April 2017, he suffered a knee injury, which prevented him from continuing to train with the aim of qualifying for the Australian weightlifting team in the 2018 Commonwealth Games. This was very stressful for him. He was also having a number of other serious personal problems in this period with his relationship with his wife, and this included financial issues. It was recommended that he take Panadeine Forte for his knee pain and he began using some of his wife’s Valium, which together he found relieved his pain and dulled his emotional distress and assisted with sleeping.
7. [7]
   It is accepted that he developed a dependence on this medication and did not seek prescriptions for either Panadeine Forte or Valium from any of his treating doctors.  Instead, he accessed both drugs from the hospital, which lead to these proceedings.
8. [8]
   On 27 June 2017, the respondent self-referred himself to the Office of Health Ombudsman (OHO) by telephone, in which he stated that he had been stealing Schedule 6 drugs (especially Panadeine Forte), from his place of work for six months. On 28 June 2017, in an email from the complaints officer at OHO at 11.13 am, the respondent confirmed that the account taken by the officer in a file note of the telephone call on 27 June 2017 was true and accurate. He now disputes this; however, in my opinion, it is not necessary for the Tribunal to resolve this dispute, given the approach taken by the applicant in the amended referral.

The Relevant Conduct 

9. [9]
   The parties have filed separate statements of agreed facts. The only facts that are in dispute relates to the timeline, and that the practitioner diverted medication intended for patients.
10. [10]
    The applicant in its submission does not allege that the practitioner did this or that he falsely interfered with records to conceal his misconduct. This is surprising, but the Tribunal is bound by this concession.
11. [11]
    The simple focus of the referral and the facts that upon which the Tribunal will proceed, are admitted by the respondent and that is as part of his professional responsibility he was required to access medications during the course of his employment through use of a Pyxis machine, which is an electronic drug storage device that requires user authentication before the selected medicines are dispensed. 
12. [12]
    The practitioner, as part of his role as the acting nurse unit manager, accessed various medications through Pyxis to administer medication to patients; assist other nursing staff in the administration of patients; and undertake reconciliations of the medications stored in Pyxis.
13. [13]
    The report obtained by the Director of Pharmacy at the hospital detailed that between 13 April 2017 and 16 June 2017, the practitioner had removed:

    1. (a)
       Ninety-five paracetamol-codeine 500 mg-15 mg tablets;
    2. (b)
       Two hundred and sixty-six paracetamol-codeine 500 mg-30 mg tablets;
    3. (c)
       Six diazepam 2 mg;
    4. (d)
       180 diazepam (Valpam 5 mg) tablets;
    5. (e)
       Two Tramadol 100 mg tablets;
    6. (f)
       Thirty-three tramadol 50 mg capsules.
14. [14]
    Amongst the medication that was withdrawn for proper purposes, the practitioner withdrew sheets of Panadeine-Forte, diazepam and tramadol, which he misappropriated for his personal use.
15. [15]
    The practitioner admits he misappropriated the following quantities of medication for his own personal use:

    1. (a)
       Eighty-five tablets of paracetamol-codeine 500 milligrams-15 mg;
    2. (b)
       Two hundred and four tablets of paracetamol-codeine 500 mg-30 mg;
    3. (c)
       One hundred and thirty-eight tablets of Valpam five mg;
    4. (d)
       Twenty tablets of Tramadol 50 mg.

Characterisation of the Conduct

16. [16]
    The conducted admitted above, in particular his admission to misappropriation ( which involves dishonesty), a quantity of paracetamol-codeine and Valpam and tramadol for his own use between 30 April 2017 and 16 June 2017 during the course of employment and whilst acting in a senior position clearly constitutes:

…unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.^[2]

17. [17]
    The admitted conduct also breaches the Board’s Code of Professional Conduct for nurses in a number of respects. 
18. [18]
    In Health Ombudsman v Jamieson [2017] QCAT 172, the respondent engaged in professional misconduct, having taken three boxes of antibiotics from the 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 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 in concluding that such a theft may be characterised as professional misconduct.

19. [19]
    The respondent, through his experienced lawyers, does not dispute that his conduct amounts to professional misconduct. It certainly was conduct that is more serious in nature, given his seniority and the types and quantity of drugs that he misappropriated, than the conduct referred to in Jamieson. The Tribunal finds to the relevant standard that the conduct of the respondent constitutes professional misconduct.

Sanction

20. [20]
    Proceedings of this nature are protective in nature and not punitive.
21. [21]
    The respondent’s suspicious behaviour in relation to his use of the Pyxis machine was first detected on 16 June 2017. In his affidavit affirmed on 30 March 2020 and filed on 21 April 2020, he frankly admits (as is confirmed in the statement of agreed facts) that he took Panadeine Forte and Valium from the general medicine ward without authority and for his own personal use. When spoken to his superior about the issue on 22 June 2017, he immediately made admissions and told Mr Croker that he had developed an addiction to these drugs over “the past eight months”.
22. [22]
    Although his admissions do not quite fit with his contention in his affidavit that he commenced taking Panadeine Forte after he injured his knee in April 2017, for present purposes, that is of little moment.
23. [23]
    Although it is not clear, it can be assumed that the respondent ceased work at the hospital soon after 16 June. Certainly, after his conversation with Mr Croker on 22 June 2017, he took various forms of leave that he had approved up to 13 October 2017. On 10 July 2017, the OHO referred the health aspect of the respondent’s circumstances to the Australian Health Practitioner Regulation Agency (AHPRA).  The respondent continued his regular psychiatric consultations and GP visits, and commenced psychological treatment including undergoing cognitive behavioural therapy.
24. [24]
    On 13 December 2017, the respondent entered into an undertaking with the Board not to practice as a nurse, which took effect from 28 December 2017. In 2018 and 2019, the Board firstly imposed conditions on his registration, which were varied on 29 March 2019 and have been varied again since.
25. [25]
    The Tribunal has before it the second and third reports of consultant psychiatrist Dr Prior, respectfully dated 1 March 2018 and 12 September 2019.
26. [26]
    In the earlier report Dr Prior notes, on the basis of information provided by the respondent, that he had been under a number of stressors leading up to his self-notification to OHO, and, after injuring his knee:

…sought analgesia of Panadeine Forte…took one of his wife’s diazepam five mg tablets and felt good and much relieved of anxiety. He then began to take Panadeine Forte and diazepam from ward supplies over a two to three month period, escalating to the degree that he was dependent on these for the psychotropic effect.

27. [27]
    He informed Dr Prior that he had been off opiates until November 2017, when he suffered renal colic and took Panadeine Forte. His GP referred him to the emergency department where he had morphine administered and he thought also oxycodone.  Since then, he has not knowingly taken any further opiates.
28. [28]
    Dr Prior referred to a hair sample taken on 1 February 2018, which was positive to codeine and oxycodone, which Dr Prior opines is “consistent with his history”.
29. [29]
    In that report, Dr Prior confirmed that the respondent showed evidence of bipolar affective disorder with stable mood and appropriate medication and treatment, and substance abuse disorder (opiates, benzodiazepines) in the early stages of remission.
30. [30]
    For this report, Dr Prior had access to a report dated 8 December 2017 from the respondent’s then treating psychiatrist.
31. [31]
    For his report dated 12 September 2019, Dr Prior had access to reports from the respondent’s treating psychiatrist, his general practitioner and his psychologist and his supervisor (as required by the conditions on his registration at that time). Dr Prior notes (as he did in his earlier report) that after the respondent self-notified to OHO, he self-referred to the alcohol and drug service in Cairns and was detoxified from the drugs, which involved him incurring withdrawal symptoms.
32. [32]
    By the time of his interview with the respondent on 10 September 2019, to prepare his report of 12 September 2019, Dr Prior noted that the respondent was diligently maintaining his treatment schedule with all three professionals. He noted that the respondent had commenced a measured return to work, subject to the Board conditions. He opined that his mood disorder was stable and well managed. He also opined that the respondent showed no evidence of ongoing use of opiates or benzodiazepines, and that his substance abuse disorder was in sustained remission;  confirmed by clear urine and hair sample tests, apart from prescribed dexamphetamine, which is prescribed for a further condition mentioned in that September report, namely ADD/ADHD.
33. [33]
    From the point of view of the respondent’s impairment, Dr Prior’s latest report is very positive and concludes:

I would advise that if Mr Bassmann continues to have positive reports from his treating psychiatrist, GP and supervisor over the next 12 months, that consideration could be given to discharging him from these conditions.^[3]

34. [34]
    There is therefore strong evidence the respondent has developed significant insight into the causes of his misconduct.
35. [35]
    In December 2019, the respondent resigned from the Cairns Hospital and relocated to Tasmania and now works as a registered nurse at Royal Hobart Hospital.
36. [36]
    He has cooperated with his employer, the regulators and with the disciplinary proceedings before the Tribunal.
37. [37]
    Deterrence is a significant factor in the Tribunal’s orders by way of sanction, once professional misconduct has been proved. Personal deterrence is perhaps of little relevance to this respondent, because of the steps he has taken to address the underlying causes of his misconduct.
38. [38]
    The cases referred to by the parties suggest that a reprimand is the appropriate sanction in this case. A reprimand is not a trivial penalty and can have serious adverse implications for a professional health provider. It also serves as a public denouncement of the conduct, which is apt to discourage health practitioners from dishonestly removing restricted medicines in the course of their employment. 
39. [39]
    In those circumstances, the Tribunal makes the following findings and orders:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct;
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;
3. Each party to the proceedings bears their own costs of the proceedings.