Health Ombudsman v Ferguson[2020] QCAT 464

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant referred these disciplinary proceedings to the Tribunal on 29 March 2019 pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act).
2. [2]
   The applicant alleges that the respondent has engaged in professional misconduct and submits that he should be reprimanded.

Background

3. [3]
   At all material 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 section 8(a)(i) of the Act being a health practitioner under the National Law; and subject to the registration Standards, Codes and Guidelines approved by the Board as to what constitutes appropriate professional conduct or practice for the nursing profession including the Code of Professional Conduct for Nurses in Australia; and the Code of Ethics for nurses in Australia.
4. [4]
   The respondent was born on 19 March 1974 so is presently 46. He first obtained registration with the Board in Australia on 30 January 2012.
5. [5]
   The respondent was employed as an enrolled nurse at the Mater Health Services between February 2012 and May 2013. On 1 July 2017, his employment with the hospital was terminated.
6. [6]
   He has been employed at the child protection forensic medical service clinic (Queensland Health) since June 2018.

The Relevant Conduct

7. [7]
   The conduct relates to two episodes of criminal offending involving the theft of Fentanyl (a Schedule 8 drug) from the hospital, his employer, and falsifying records to conceal his theft of the drug. The two episodes which constitute allegations 1 and 2 in the referral, are interrelated and can be considered as one course of conduct between 9 October 2016 and 21 December 2016, when the respondent was employed as an enrolled nurse at the hospital.

In relation to allegation 1, on 21 December 2016, between 6.20 pm and 8.20 pm, the respondent used a swipe card to enter the secure drug dispensary room located on level 9 (north) at the hospital. He then used a key to open the injectable drug cabinet and removed five ampules of Fentanyl. Each ampule contained 200 mgs of Fentanyl.

8. [8]
   The respondent also made several false entries in the stock register to record that the Fentanyl had been legitimately administered to hospital patients, and he also removed entire pages from the register.
9. [9]
   At approximately 8.30 pm, hospital staff conducted an audit of the drugs contained at the level 9 drug dispensary room and discovered that the Fentanyl was missing and that the stock register had been altered. The Director of Nursing was contacted and subsequently a complaint was made to Queensland Police.
10. [10]
    Police subsequently conducted an investigation and were provided with the name of four staff members, including the respondent, who were on duty at the time of the theft of the fentanyl.
11. [11]
    On 23 December 2016, the respondent contacted Dutton Park Police Station and informed police staff that he had stolen the fentanyl from the hospital.
12. [12]
    On 26 December 2016, police attended the respondent’s residential address and conducted an interview with him. During the interview, the respondent admitted to stealing the five ampules of fentanyl from the locked injectable cabinet. He said that he had injected all five ampules of fentanyl in the staff toilet during his shift on 21 December 2016. He admitted to stealing drugs from the hospital since July 2016 and had been injecting the drugs daily. He indicated that he falsified entries in the stock register, as well as removing pages, to conceal his theft of the drug.
13. [13]
    The respondent was issued with a notice to appear in relation to one count of stealing as a servant and one count of fraudulently falsifying records. He appeared in the Brisbane Magistrates Court on 7 March 2017 and pleaded guilty to the two offences. With respect to both offences he was fined a total of $500 and convictions were not recorded.
14. [14]
    In relation to allegation 2, as a result of the respondent’s theft of Fentanyl, the hospital conducted a full audit of two controlled drug registers which were used in ward 9 at the hospital.
15. [15]
    The audit identified that between 9 October 2016 and 20 December 2016 the following listed drugs had been removed without authority:

    1. (a)
       172 ampules of fentanyl (100 micrograms);
    2. (b)
       87 ampules of fentanyl (500 micrograms);
    3. (c)
       Eight ampules of hydromorphone (two mg);
    4. (d)
       56 ampules of morphine (10 mg);
    5. (e)
       44 ampules of morphine (30 mg);
    6. (f)
       28 ampules of morphine (five mg);
    7. (g)
       One ampule of pethidine (100 milligram);
    8. (h)
       Five ampules of pethidine (500 mg).
16. [16]
    The audit also revealed that some pages of the drug registers had been removed. Discrepancies were also discovered in the two registers, including non-sequential dates and times, dates being overwritten and amended, and entries being crossed through. The hospital policy requires that two people be required to sign for the drugs when they were required for patients. The audit revealed similarities between the first and second signatories.
17. [17]
    The respondent was identified as a person of interest by police and he attended the Dutton Park Police Station on 2 May 2017 and participated in a formal interview. During his interview with police the respondent admitted to stealing the drugs identified in the audit of the controlled drugs registers from ward 9. He advised he initially accessed residual amounts of drugs that were not being used on patients which then escalated to him stealing full ampules of drugs. He advised that he would administer the drugs by subcutaneous injections in his stomach and consume it either in the hospital staff toilets or at home. He advised that the stolen drugs were for his personal use.
18. [18]
    He admitted to signing for the drugs in the drugs register by himself. He confirmed that he falsified entries in the registers by recording that drugs had been administered to patients when in fact he had stolen the drugs. He also admitted to removing entire pages from the registers.
19. [19]
    At the conclusion of his interview the respondent was issued with a notice to appear with respect to one count of stealing as a servant between 9 October 2016 and 20 December 2016 and one count of fraudulently falsifying records between the same dates. On 11 August 2017, he appeared in the Brisbane Magistrates Court with respect to both offences and entered pleas of guilty. He was sentenced to 12 months’ probation for both offences and convictions were not recorded.
20. [20]
    The applicant, in its submission, acknowledges that there is no evidence that the respondent’s conduct deprived any patients of their treatment or pain management.

Characterisation of the Conduct

21. [21]
    The applicant has the responsibility of proving that the respondents admitted conduct amounts to professional misconduct. The theft of controlled drugs of addiction from a locked injectable cabinet in the respondent’s place of work clearly is unprofessional conduct by him in that it amounts to conduct that is substantially below the standard reasonably expected of an enrolled nurse of equivalent level of training or experience^[1].
22. [22]
    Health Ombudsman v CSM [2020] QCAT 55 (CSM) involved a registered enrolled nurse who stole schedule drugs from her hospital employer. The Tribunal found that her conduct, which led to convictions for one count of stealing as a servant and one count of unlawful possession of restricted drugs, amounted to professional misconduct as defined in both paragraphs (a) and (c) of section 5 of the definition of “professional misconduct” in the National Law. The respondent’s conduct here is more serious, as he stole an extraordinary quantity of drugs, predominantly schedule 8 drugs, and falsified records to disguise his dishonesty. The admitted conduct clearly constitutes professional misconduct and the Tribunal finds accordingly pursuant to section 107(2) of the Act.

Sanction

23. [23]
    These proceedings are protective in nature and not punitive. The paramount underlying purpose behind orders made by way of sanction by the Tribunal in disciplinary proceedings is the protection of the health and safety of the public.
24. [24]
    The respondent has shown significant insight and remorse, and an awareness of his serious substance addiction and depressive disorder that underpinned his misconduct. Since December 2016, he’s been an outpatient at Biala, Alcohol and Drug Services.

The material before the Tribunal contains a number of reports from his treating psychiatrist at the Service over the years, and a number of reports from his general practitioner. His present treating psychiatrist, Dr David Storor, has provided a report to the Tribunal^[2] in which he confirms that, as at 18 July 2019, the respondent’s diagnosis is of Opioid Dependence which is in sustained remission on agonist therapy; and Major Depressive disorder in remission. He is presently prescribed Suboxone, 4 mg daily, Venlafaxine, 225 mg daily, and Mirtazopine, 30 mg daily, and Dr Storor notes that the respondent is compliant with treatment on the opioid replacement program; and that there is no evidence of opioid or other substance abuse.

25. [25]
    In his most recent updates to the Australian Health Practitioners Regulatory Authority (AHPRA) (on the Tribunal file), Dr Storor confirms that as at March 2020 the respondent is making good progress and is compliant with his treatment.
26. [26]
    In a case such as this assessment of risk is an important aspect of the disciplinary response.
27. [27]
    On 3 January 2017 the respondent advised AHPRA that he had been charged with criminal offences and a health assessment was conducted.
28. [28]
    On 4 July 2017, Dr Jill Reddan, consultant psychiatrist, reported that the respondent had an Opioid Use Disorder which related to his sustained abuse of codeine. In addition, Dr Reddan determined that he had an Alcohol Abuse Disorder. On 8 February 2018, Dr Reddan provided a supplementary report advising that the respondent’s alcohol abuse disorder appeared to be in remission.
29. [29]
    On 10 May 2018 the Board determined that the respondent had a health impairment, and imposed conditions on his registration to mitigate the risk he posed upon returning to work. The conditions prohibited the respondent from accessing any medication listed in schedule 4 or 8 if that medication contained Codeine or Benzodiazepine substances unless supervised. He was also required to continue to seek treatment for his substance abuse with his treating specialist and undergo regular drug testing.
30. [30]
    On 28 May 2019, the respondent filed an application to remove the conditions on the basis that his Opioid Substance dependence was being effectively treated. In response, the Board commissioned a further report from Dr Reddan. In her report dated 25 October 2019, Dr Reddan opined that the respondent remained impaired as his Opioid Use Disorder was not in remission and that this was likely to detrimentally affect his capacity to practice. She recommended that despite the respondent making significant progress with respect to his treatment, the conditions remain in place. She commented that the respondent continued to be dependent on Buprenorphine, and that he had not developed skills necessary to manage the triggers to further opioid use which were “almost certainly going to occur if he (was) entrusted with the administration of opiates to patients and which may occur spontaneously or with minimal triggers”.
31. [31]
    She opined that the respondent was fit to practice as an endorsed enrolled nurse but required ongoing monitoring by the Board. She also recommended that if the respondent was required to administer opiates that this should be done under the direct supervision of a registered nurse. On 26 May 2020, the Board reviewed the respondent’s application to remove the conditions on his registration. Based on the updated report from Dr Reddan, the Board determined that the respondent had a continuing health impairment and that the conditions would remain in place. The Board did reduce the frequency of his urine drug screening.
32. [32]
    The authorities as cited by the applicant, including CSM, involve conduct by either registered nurses or enrolled nurses that is subjectively less serious than the conduct here.
33. [33]
    I agree with the applicant that the respondent’s repeated theft of controlled drugs from his employer was a serious instance of professional misconduct that would normally warrant the cancellation and a further period of suspension of his registration for the purpose of specific deterrence (to deter him from repeating the misconduct) and general deterrence, to deter others in the profession against engaging in such misconduct.
34. [34]
    I also agree with the applicant that the need for general and specific deterrence are of less significance, when taking into account that the respondent’s offending conduct was explicable in part by his opioid addiction and major depressive disorder which is now being appropriately managed through medical treatment. In terms of general deterrence, the protection of the public and the upholding of professional standards can be sufficiently addressed through the imposition of a reprimand given that effectively the respondent was suspended from practice for 10 months. Such a response would also acknowledge the effective management of the respondent’s impairment by the Board through the implementation of restrictive conditions that mitigate the risk that he poses to the public, and it also acknowledges his insight and commitment to his treatment.
35. [35]
    In the circumstances the Tribunal accepts the submission made by the applicant that cancellation or further suspension of the respondent’s registration is unwarranted and that a reprimand is appropriate. As observed in Peeke v Medical Board of Victoria [1994] VSC 7 at page 6; followed in Health Ombudsman and DeCelis [2019] QCAT 140 at [13], a reprimand is not a trivial penalty and has the potential for serious adverse implications. In Medical Board of Australia v Jones [2012] QCAT 362 the Tribunal observed that a reprimand was not trivial as it was a public denunciation of the professional conduct which is recorded on the public register of practitioners.
36. [36]
    In the circumstances the Tribunal makes the following orders and findings:

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