Health Ombudsman v Tooth[2020] QCAT 463

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   The applicant has referred these disciplinary proceedings to the Tribunal by application filed on 31 January 2019. The respondent was, at all relevant times, a registered nurse (Division 1) holding general registration with the Nursing and Midwifery Board of Australia (the Board).
2. [2]
   It is common ground, that at all relevant times, she was a health service provider within the meaning of s 8(a)(i) of the Health Ombudsman Act 2013 (the Act); subject to the requirements of the Health (Drugs and Poisons) Regulation 1996 (the Regulation), as an authorised person; subject to the Codes and/or Guidelines approved by the Board as to what constitutes appropriate professional conduct or practise for the nursing profession, including the Code of Professional Conduct for Nurses in Australia and the Code of Ethics for Nurses in Australia; and employed as a registered nurse as the Princess Alexandra Hospital Woolloongabba Queensland (the hospital).
3. [3]
   In her response to the referral filed on 17 April 2018, the respondent admits the conduct the subject of the referral, and she accepts (with the benefit of legal advice) that her conduct constitutes professional misconduct as defined in s 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
4. [4]
   The parties have filed a statement of agreed facts^[1] and agree as to the appropriate sanction slot. The only divergence is that the respondent submits that it is not necessary for the Tribunal, in the exercise of its protective function, to impose conditions on her registration as submitted by the applicant (the education conditions).  The full set of conditions are set out in paragraph 56(c) of the applicant’s submission, but in summary, the conditions would require the respondent to complete a minimum of six hours in a program or programs of education directed at ethical and legal responsibility of registered nurses generally, and specifically, in relation to medication management, within six months of her receiving approval from the Board of the program or programs to be undertaken.

Background 

5. [5]
   The respondent was born on 20 July 1982, so she is currently 37 years of age. 
6. [6]
   She obtained a Bachelor of Nursing in 2006, and commenced work as a graduate nurse at the Princess Alexandra Hospital in 2007. She first obtained registration with the Board on 12 December 2006. 
7. [7]
   From 15 January 2007 to 6 November 2017, she was employed at the hospital in the neuroscience unit as a registered nurse. 
8. [8]
   As a result of two anonymous complaint letters to the hospital in June 2017, the hospital made a notification to the office of the Health Ombudsmen. At around about the same time, the hospital notified the Queensland Police Service. The allegations in the letter accused the respondent of stealing from the hospital and using fentanyl, a schedule 8 drug. 
9. [9]
   Police executed a search warrant at the respondent’s home on 10 August 2017, and located a quantity of schedule 4 drugs, and an unscheduled drug, which all were prescription drugs and the property of the hospital. No schedule 8 drugs were located.
10. [10]
    On 17 August 2017, the respondent was suspended from her employment on full pay.
11. [11]
    On 24 October 2017, she was asked to show cause why her employment should not be terminated.
12. [12]
    On 6 November 2017, the respondent resigned from her position. She did not work as a registered nurse again until she commenced casual work in that capacity at a general practice clinic in April of 2019.
13. [13]
    On 5 September 2017, health and performance issues relating to the respondent’s handling of schedule 8 drugs were referred to the Australian Health Practitioners Regulation Authority (AHPRA).  On 4 January 2018, the relevant committee of the Board, required the respondent to undergo a health assessment.
14. [14]
    On 18 June 2018, Dr Sue Splatt, consultant psychiatrist, produced a health assessment report relating to the respondent after consulting with her on 6 June 2018. Dr Splatt noted that the respondent had admitted to changing her practice from the hospital guidelines when drawing up medications due to problems with her vision;  noted that the hair, blood and urine test provided by the respondent did not contain any evidence of substance misuse or abuse; and concluded that the respondent did not have an impairment that detrimentally affected or was likely to detrimentally affect her capacity to practice professionally.
15. [15]
    On 31 January 2019, the committee decided to take no further action in respect of the notification.

The Relevant Conduct

16. [16]
    During the search of the respondent’s premises on 10 August 2017, the following drugs were located: 

    1. (i)
       Ondansetron Kabi 4mg/2ml vials, ondansetron 4mg and ondansetron AN; 
    2. (ii)
       DBL heparin sodium (5000 in 0.2ml) vial;
    3. (iii)
       Stemetil, 12.5mg/1ml vials and stemetil 5mg;
    4. (iv)
       DBL promethazine hydrochloride 50mg/2ml vial;
    5. (v)
       Amoxycillin, 500mg;
    6. (vi)
       Curam Duo Forte;
    7. (vii)
       Cephalex, 500mg;
    8. (viii)
       Somac, 40mg;
    9. (ix)
       Endep, 25mg;
    10. (x)
        Alprim, 300mg;
    11. (xi)
        Pregabalin, 75mg;
    12. (xii)
        Dexmethsone, 4 milligrams.
17. [17]
    During the search, the police also located Bisacodyl, 10mg, an unscheduled drug. 
18. [18]
    The drugs set out above were prescription drugs and the property of the hospital. 

19. [19]
    The respondent did not have a prescription for the drugs in her possession, nor did she suggest that she had one.
20. [20]
    On 12 August 2017, the respondent was issued with a notice to appear in the Brisbane Magistrates Court on the 12th of September 2017.

21. [21]
    On 12 August 2017, the respondent was charged with stealing prescription medication, the property of the hospital, and unlawfully possessing restricted drugs.
22. [22]
    The relevant Verdict and Judgment record in the Tribunal hearing brief in relation to the stealing charge identified that the drugs were stolen from the hospital by the respondent between 1 January 2017 and 10 August 2017. The information provided to the Tribunal does not contain any information as to precise dates during this period when the drugs were stolen by the respondent from the hospital. The dates on which the respondent stole the drugs for the hospital are therefore not known.
23. [23]
    Unfortunately, the Tribunal has not been provided with a transcript of the proceedings in the Magistrates Court or of the Magistrate’s sentencing remarks. This is also relevant to the competing arguments about issues such as insight and remorse, to which I will return later.
24. [24]
    On 20 September 2017 in the Brisbane Magistrates Court, the respondent pleaded guilty and was convicted of stealing as a servant and unlawful possession of restricted drugs.  She was fined $2,200 and no convictions were recorded. 
25. [25]
    Prior to the conduct, the subject of these proceedings, the respondent had no criminal history.

Characterisation of the conduct

26. [26]
    The applicant has the onus of proving that the admitted conduct constitutes professional misconduct. Clearly, the admitted stealing of prescription drugs, the property of her employer, the hospital, by a registered nurse is “unprofessional conduct…that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience”.^[2]
27. [27]
    In Health Ombudsmen 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 effect may be characterised by professional misconduct.

28. [28]
    The statutory definition in s 5 of the National Law derives from the common law, and has been expressed thus since commencement of the National Law: “The registrant’s conduct needs to be, to a high degree, below the standard expected of a registrant with equivalent training and experience…”.^[3]
29. [29]
    The respondent, with the benefit of legal advice from experienced lawyers, admits that her conduct amounts to professional misconduct.
30. [30]
    The Tribunal finds that the conduct set out in allegation 1 of the referral constitutes professional misconduct.

Sanction

31. [31]
    The parties agree that the respondent should be reprimanded. Proceedings of this nature are protective and not punitive in nature.^[4] In exercising its disciplinary jurisdiction under the Act, the Tribunal must regard the health and safety of the public as paramount.^[5]
32. [32]
    It is only if the sanction agreed to by the parties falls outside the range for appropriate orders in the particular case before it, would the Tribunal depart from the orders by way of sanction agreed by the parties.
33. [33]
    The parties diverge on the need for the imposition of the education.
34. [34]
    The respondent has filed an affidavit in these proceedings.^[6] In effect, her argument is that the deterrent effect engendered by her participation and cooperation in the criminal proceedings and in the disciplinary proceedings is demonstrative of the development of insight, and “where any gap that may have existed in the respondent’s understanding of the ethical obligations and/or legal responsibilities of registered nurses at the date of the conduct  has since been addressed” by that participation and cooperation.
35. [35]
    In her response to the show cause notice from her employer on 29 January 2017, the respondent contends that she took the medications by mistake^[7], and that she did not tell the police that she “stole” the medications.
36. [36]
    This has to be seen in the context of her plea of guilty to two criminal offences only nine days earlier on 20 September 2017, one of which involves stealing the drugs over an extended period. “Stealing” is defined in section 391 of the Criminal Code as “fraudulently” converting to the offender’s use property of another. “Fraudulently” includes taking property “with intent to permanently deprive the owner” of the property stolen.
37. [37]
    As indicated before, the Tribunal, unfortunately does not have the transcript of the hearing before the Magistrate on 20 September 2017, so is not in a position to see how her conduct was characterised by her lawyer.
38. [38]
    The Tribunal does, however, have the relevant police documentation and verdict and judgment record.  The QP9’s, are usually read into the record by the police prosecutor.  In relation to the charge of stealing prescription medication, the property of the hospital, the relevant record does record that as each item was located, it was identified by the respondent as a prescription medication for which she didn’t have a prescription, and “that she had stolen from her place of work at the PA Hospital”.  That same record notes that “admissions made to stealing the drugs”, were “digitally recorded” during the search.
39. [39]
    It is clear that the show cause notice from the hospital related to other allegation (in addition to the admitted conduct) which involved allegations of not following hospital procedure in relation to the management of schedule 8 drugs, and other alleged failures to comply with hospital procedure. The Tribunal confines its conclusion on sanctions only to the allegation in the referral as proved.
40. [40]
    In her response to the show-cause notice prepared on her behalf by the Queensland Nurses and Midwives’ Union^[8], in relation to the offences, she denies admitting to stealing and raises the issue of mistake, and said she was shocked by the charges. On her behalf, it is stated “that she was shocked and embarrassed about the action taken by the police”. As noted earlier, this response was shortly after she had pleaded guilty to stealing as a servant and unlawful possession of the drugs. 
41. [41]
    In her affidavit, she sets out her personal history, which bespeaks a very difficult, dysfunctional and sad upbringing as a child, particularly in relation to her father’s physical and mental abuse most frequently directed at her intellectually disabled brother to whom she was obviously very close.
42. [42]
    The evidence before the Tribunal indicates that the respondent was the subject of another notification to AHPRA in 2011, again, as a result of an anonymous complaint in relation to her handling of schedule 8 drugs, which was dismissed as being not supported by any evidence. The contents of her affidavit indicate that, shockingly, in that same year, 2011, her older brother died at 36 of multiple sclerosis and her youngest sister died of diphtheria within six weeks of each other. Her parents, she describes as alternative, did not believe in vaccinations.
43. [43]
    In that affidavit, she is still attempting to justify her conduct, however, she has come a long way in accepting, as she admits, that her conduct amounts to professional misconduct. The applicant submits that, in relation to her affidavit, her statements, particularly those from paragraphs 23 to 38 demonstrate a lack of insight.
44. [44]
    Not surprisingly, given her childhood history, she has suffered from a number of physical and mental health medical conditions.
45. [45]
    During the period that she was not working, she did not undertake any courses in ethics or drug management, nor have there been any notifications since she went back to work in 2019 in a general practice setting.
46. [46]
    She states^[9] in her affidavit:

1. [81]
    I know, with absolute certainty, that I will not engage in similar conduct for the following reasons:

1. (a)
    My conduct in 2017, was largely the product of my ignorance and/or a failure to stop and think about what I was doing;

2. (b)
    I’m no longer ignorant or naïve as to what is required of me in terms of my conduct as a nurse, and the legal definition of this conduct as “stealing”;

3. (c)
    The consequences following from such conduct – including the loss of my employment, the conviction and crime, and the criminal proceeding, and the issues that it has caused for my registration – have been so severe, that I do not ever want to be in that position again.

1. [82]
    I feel deeply ashamed of myself that I jeopardised a career that I loved and from which I derived personal and professional fulfilment, in order to obtain a couple of tablets of antinausea medication.

47. [47]
    In my view, she has done everything that she can to address her underlying health issues. 
48. [48]
    Dr Splatt, in her report to AHRPA dated 18 June 2018, concludes as follows:

Ms Tooth is a 35 year old – 35 year single registered nurse who has a history of depression and anxiety in her early adult life on the back of a prejudicial childhood characterised by physical and mental abuse and lack of formal education.  At interview, Ms Tooth showed no evidence of a depressive illness and reported having been stressed by the AHPRA investigation.  Her depression is in remission on Zoloft, 100mg. 

Ms Tooth’s notification to AHRPA about possible fentanyl misuse has not been proven.  There is no evidence of substance misuse in her pathology test or prescription history. 

She does report mistakenly taking home various schedule 4 drugs in her pockets, but no schedule 8 drugs were amongst these.  She also reports not following the correct procedure with respect to fentanyl ampoules because of her eyesight. 

In answer to your specific question:

1. Ms Tooth does not have physical or mental impairment, disability, condition or disorder (including substance use or abuse), that detrimentally affects or is likely to detrimentally affect her capacity to practice int eh profession.

She remains under the care of her long-term general practitioner, and is currently prescribed the following medications:

Zoloft 100mg mane; 

Levothyroxine, 50mgs alternating with 75mgs; 

Diazepam, 5mg prn; 

Nitrazepam, spelt n-i-t-r-a-z-e-p-a-m, 5mg prn; 

Panadeine Fort 500mg/13 milligram 1-2 tablets prn; 

Saxenda, 6mg, 1ml

49. [49]
    In my view, when the applicant’s history is read as a whole, and despite some efforts in her most recent affidavit to understate the seriousness of her conduct, her health conditions and her prejudicial childhood are likely to explain what, to an otherwise good and decent person and a competent nurse, what was inexplicable, and that is, that she engaged in dishonest conduct.  I am not satisfied that she demonstrates a lack of insight or remorse, and having regard to particularly the medical report of Dr Splatt, the risk, as assessed by her in relation to this respondent in relation to his respondent is very low. 
50. [50]
    I agree with the applicant that it is highly unlikely that the imposition of the education courses, which are not onerous, would adversely affect her present employment, or prejudice her future employment.  The small number of hours could be performed outside of her present working hours, and the Board is most likely to be flexible in its approach, given that it has taken a positive and supportive approach to the respondent’s registration. She is obviously dedicated to her profession, and the completion of such an education course would be more likely, in my opinion, to enhance her future employability, particularly in the hospital system, rather than detract from it. The Tribunal is satisfied that she shows appropriate insight and remorse, but that she would benefit from undertaking the course proposed by the applicant by the imposition of the education condition.  It is not at all a reflection on her dedication or her professional skill, nor is it punitive, as suggested by her lawyers.
51. [51]
    In those circumstances, the orders will be as follows:

1. The Tribunal finds, pursuant to section 107(2)(b)(iii), that the respondent has behaved in a way that constitutes professional misconduct; and
2. Pursuant to section 107(3)(a) the Act, the respondent is reprimanded; 
3. Pursuant to section 107(3)(b)(i), the Tribunal orders that the following conditions be imposed on the respondent’s registration:
   1. (a)
      The practitioner must undertake and successfully complete a program of education, approved by the Nursing and Midwifery Board of Australia (the Board), and including a reflective practice report, in relation to:

      1. (i)
         Ethical and legal responsibilities of registered nurses; and

      1. (ii)
         Ethical and legal responsibility of registered nurses in relation to medication management.
   2. (b)
      Within one month of the notice of the imposition of these conditions, the respondent must, on the approved form, nominate for approval by the Board and education course, assessment, or program (the education) addressing the topics required above.  The practitioner must ensure:

      1. (i)
         The nomination includes a copy of the curriculum of the education

      1. (ii)
         The education consists of a minimum of six (6) hours, including the required topics and any formal assessments required.
   3. (c)
      The practitioner must complete the education within six (6) months of the notice of the Board’s approval of the education
   4. (d)
      Within 28 days of completion of the education, the practitioner must provide to AHPRA:

      1. (i)
         Evidence of successful completion of the education.

      1. (ii)
         A reflective practice report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to these conditions and how the practitioner has incorporated the lessons learned in the education into the practitioner’s practice.

      1. (iii)
         Evidence of having undertaken and successfully completed the formal assessment component of the education.
   5. (e)
      Subdivision 2, division 11, part 7 of the National Law applies to these conditions.
   6. (f)
      For the purposes of subdivision 2, division 11, part 7 of the National Law, that a review period for the conditions is twelve (12) months. 
4. No order as to costs.