Health Ombudsman v Fletcher[2020] QCAT 478

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Tribunal has before it an amended disciplinary referral filed on 15 May 2020 by the applicant pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act).
2. [2]
   At all material times Lynette Joy Fletcher (the respondent) was registered under the Health Practitioner Regulation National Law (Queensland) (National Law) as an enrolled nurse; a health service provider within the meaning of section 8(a)(i) of the Act, being a health practitioner under the national law, namely an enrolled nurse; and employed as an enrolled nurse at the Rockhampton Base Hospital.
3. [3]
   The applicant alleges that as a result of the respondent’s conviction on 28 June 2019 of eight criminal offences; her failure to comply with section 130(1) of the National Law by not giving notice to the Nursing and Midwifery Board of Australia (the Board) on or before 14 January 2019 that she had been charged with the relevant offences; and by making a false declaration to the Australian Health Practitioner Agency (AHPRA) when seeking a renewal of her registration; the respondent has behaved in a way that constitutes professional misconduct as defined in section 5 of the National Law. The parties this morning by leave have filed a joint submission relating to relevant findings and sanction and there are no factual issues in dispute, nor are there any disputes in relation to the findings to be made by the Tribunal and the disciplinary response by way of sanction.

Background

4. [4]
   The respondent was born on 4 December 1961. She has a Diploma in Nursing Care and was first registered with the Board as an enrolled nurse in 1999. Her registration remains current; and she is now working as a case worker working with prisoners, important work that obviously gives her some satisfaction. She has not worked as an enrolled nurse since on or about 6 December 2018.

The Relevant Conduct

5. [5]
   On 28 June 2019 the respondent appeared in the Rockhampton Magistrates Court before his Honour Magistrate Clarke and pleaded guilty to seven breaches of the Criminal Code 1899, and one breach of the Police Powers and Responsibilities Act 2000. The first count was a charge of stealing bankcards, the property of a patient between 15 August 2018 and 14 September 2018; and there were then six counts of fraud relating to her dishonest use of those cards in that period. As noted above, she also pleaded guilty to one summary offence of failing to provide identifying particulars to police.
6. [6]
   It is common ground^[1] that during the period set out in the charge of stealing, the respondent stole bankcards from the wallet of a patient in the Geriatric and Rehabilitation Ward of the Rockhampton Base Hospital. It is also common ground that she was employed as an enrolled nurse in that ward on 4 August 2018, and that the wallet had been kept in a locked drawer in a table beside the patient’s bed. The patient’s daughter noticed unusual transactions on her mothers’ bankcards on 5 September 2018, and police became involved. Although it’s not clear, it can be inferred that the respondent accessed the locked drawer by using a key that she and other professional staff had as part of her duties to access patient medication in that ward. The respondent did not participate in an interview with police, but CCTV evidence clearly showed her using the stolen cards on a number of occasions to purchase goods and services. The total value of goods fraudulently obtained was $227.47.
7. [7]
   On 28 June 2019, the respondent was represented by counsel instructed by her present lawyers. Full restitution was tendered that day by way of cheque.
8. [8]
   From what counsel told his Honour^[2], the respondent has had a very challenging life. Despite that, she has always been a very hard worker and she has always wanted to be a nurse.
9. [9]
   The barrister referred to her complex medical history but did not suggest that at the time of the offending she had little or no memory of it because of the medication she was then taking. The barrister did tender, as part of an earlier report from the GP, a certificate from her General Practitioner, Dr Richmond, a copy of which is in the hearing brief which does suggest that at the time of the offending, the respondent was taking an extraordinary array of prescribed medication and also non-prescribed medication such as various vitamin supplements.
10. [10]
    Annexed to the respondent’s original and amended response to the referral and amended referral is a report from Dr Richmond dated 13 June 2019 which was tendered by her barrister as an exhibit in the court proceedings.
11. [11]
    Relevantly, the doctor informed his Honour:

I have been Lynette’s GP since 2017 and she has attended Gracemere Medical Centre since 2016. I know Lynette well, she has seen me at least monthly for over two years. Lynette has a number of complex chronic medical problems which, until June 2018, were relatively stable and did not impact severely on her day to day life.

Since June 2018 her health has declined significantly; she has had both public and private hospital admissions related to this in the last 12 months. She is bothered daily by chronic headaches and has had trouble with her short-term memory and cognition in general. She has been under the care of Dr Mark Hendricks (Physician, Rockhampton) and Dr Heather Wisby (Rheumatologist, Brisbane). Despite many investigations and various trials of treatment – the cause for Lynette’s symptoms remain unclear and are ongoing. I have recently referred Lynette to Dr Dhiraj Saina (Physician with special interest in memory loss, Rockhampton) and Jo Storey (Psychologist); we hope their assessment may be helpful.

I understand Lynette has been charged with receiving a credit card and using this for subsequent purchases. This behaviour strikes me as bizarre and out of character for Lynette. I’m highly suspicious that her current medical problems are in some way implicated in this behaviour. I am hopeful that with further specialist assessment and investigations, there may be some clarity of diagnosis and subsequent treatment for Lynette.

12. [12]
    No specialist assessments have been produced to the regulator or the Tribunal so the GPs opinion, which is guarded, in any event, has to be seen in that light. It is not supportive of any significant medical reason  that may explain the conduct. It can be accepted on the basis of the material placed before the Magistrate that the conduct by the respondent was completely out of character.
13. [13]
    The respondent had no prior criminal history, and no prior notification history. His Honour imposed a fine of $1, 250 in respect of the seven counts involving dishonesty and made compensation orders. He fined the respondent $100 with respect to the contravention of direction charge and he exercised his discretion not to record  convictions.
14. [14]
    On 1 August 2019 the Office of the Health Ombudsman referred to AHPRA the issue of the respondent’s health impairment. That, of course, related entirely to any health impediment that may affect her ability to practise as a nurse. As a consequence, the respondent was seen by a clinical neuropsychologist, and it is accepted as part of the agreed factual matrix, that the respondent does not have a cognitive impairment that would detrimentally, or would be likely to detrimentally affect her capacity to practise as an enrolled nurse. That report forms part of the agreed bundle of documents.^[3] The only reference to the issue of her cognitive capacity at the time of the offending, is this statement:

With respect to the credit card issues, Mrs Fletcher claimed the card may have been planted in her bag and then accidentally used at a time when she had significant cognitive and health issues.

15. [15]
    In accordance with the respondent’s response to the amended referral, she admits all three allegations set out in the amended referral and she concedes that her conduct amounts to professional misconduct.

Characterisation of the Conduct

16. [16]
    The applicant has the responsibility of proving that the admitted conduct constitutes professional misconduct, to the standard mandated by the High Court in Briginshaw v Briginshaw^[4]. In my opinion and in accordance with the joint submission filed on behalf of the parties today, the conduct of the respondent, when viewed either separately in relation to allegation 1 or as a matter of totality in relation to all three allegations, clearly satisfies the definition of “professional misconduct” in section 5(a) and (b) of the National Law.
17. [17]
    I agree, as does the applicant, with the respondent’s lawyer’s submission that this is a case in which the characterisation should be of the totality of her conduct by reference to the Health Ombudsman v Hardy [2018] QCAT 416.
18. [18]
    In that case the practitioner was employed as a registered nurse in a hospital. She was charged with one count of stealing and 18 counts of fraud and later charged with a further 93 counts of fraud. These related to the stealing of a prescription booklet and presenting fraudulent scripts to a pharmacy to obtain medication. The practitioner was also charged with two charges which are identical to allegation 2 and allegation 3 that the respondent now faces, in that Ms Hardy failed to notify the Board of her suspension from employment or of having been charged with offences punishable by 12 months imprisonment and/or her subsequent convictions; and in completing her online renewal of registration application, she had falsely answered questions in relation to changes in her criminal history. In its finding, the Tribunal (at [28]) stated:

The failures to notify the subject of charges 2 and 3 are secondary to the primary misconduct. Whilst secondary, as submitted by the Health Ombudsman, failures to report and failures to make declarations on the completion of online application forms can be treated as unprofessional conduct. However, for the purposes of determining a sanction, the conduct the subject of charges 2 and 3 should be treated as an aggravation or the totality of that conduct that has to be considered.

19. [19]
    This was also the approach taken by the Tribunal in Health Ombudsman v Cash [2020] QCAT 49.
20. [20]
    In that case, the practitioner stole a credit card from a patient and resident of the aged care facility where she was employed on a casual basis as an enrolled nurse. The practitioner spent a total of $88.18 in three transactions on the card, before booking a cruise holiday valued at $2,394. The practitioner cancelled the cruise soon after booking and obtained a full refund to the card. The practitioner pleaded guilty to one count of stealing and four counts of fraud. The practitioner was also alleged to have contravened section 130 of the National Law. At the time of the hearing, she had been unregistered for about three years.
21. [21]
    The Tribunal categorised the criminal conduct as professional misconduct and agreed with the parties’ joint submission that the failure to notify the Board of the charges was unprofessional conduct, saying:

It is conduct that should be regarded as aggravating the professional misconduct of the respondent and thus encompassed within the ultimate finding of professional misconduct.

22. [22]
    Cash and Hardy, although factually different, are both informative of the need for the Tribunal to approach characterisation of proved criminal misconduct in a consistent way.
23. [23]
    The conduct of the respondent in this case is serious as she concedes. The conduct occurred in the direct course of her employment as an enrolled nurse and it involved calculated acts of dishonesty. It was not an isolated incident, multiple purchases were made over a number of days. The patient was elderly and in the care of the geriatric and rehabilitation unit. She was vulnerable. She was not able to detect the theft which was identified by her daughter. In acting as she did, and which she now accepts, the respondent breached both the trust that was expected of her from her vulnerable patient and the trust of her employer. Leading up to the joint submission filed this morning, the respondent, at times, showed some lack of insight by tending to explain her conduct on a number of different occasions in a different way. In my view, however, ultimately with the filing of the joint submissions today it can be accepted that she has appropriate insight into the nature of her misconduct and is appropriately remorseful.
24. [24]
    As a registered enrolled nurse, the respondent was subject to the Code of Conduct for Nurses promulgated by the Board which is admissible as evidence of what constitutes appropriate professional conduct for the health profession^[5]. As a nurse with considerable experience prior to the relevant conduct, she must have been aware of her obligations under the Code. Stealing from a vulnerable patient and failing to notify the Board as required by section 130 of the National Law; and falsely declaring no change in her criminal history in her application for renewal, is conduct that fundamentally breaches the Code of Conduct.
25. [25]
    The applicant has proved to the requisite standard that the conduct in allegation 1 constitutes professional misconduct which is aggravated by the conduct proved in relation to allegations 2 and 3.

Sanction

26. [26]
    The purpose of these disciplinary proceedings is protective and not punitive. The approach of the Tribunal is governed by the fundamental principle that the health and safety of the public is paramount.
27. [27]
    It is relevant that the respondent has not practised as a nurse since her employment was ended in early December 2018 and she is now working as a case worker with prisoners.
28. [28]
    It follows, therefore, that she has not been employed as a nurse for a considerable period of time. As from 9 August 2019, her registration was subject to conditions imposed by the Health Ombudsman. There is no suggestion that she had sought to obtain employment as an enrolled nurse since cessation of her casual employment at Rockhampton Base Hospital.
29. [29]
    She has obtained employment in another sector which she seems to be enjoying. The applicant submits that “some allowance” should be made for the period out of practice, but that it should not be viewed as voluntary cessation of practice resulting in a de facto suspension indicative of insight and remorse. In light of the joint submission filed this morning, I proceed on the basis that the period that she has not been practising is relevant to the appropriate sanction and is indicative of insight and remorse.
30. [30]
    She has co-operated in the criminal proceedings and with the regulator and in these proceedings. Apart from this conduct, she was otherwise a competent nurse and a person of good character.
31. [31]
    Therefore, specific deterrence has a role to play here but general deterrence is the more relevant principle to ensure that, through its orders, the Tribunal can emphasise that conduct of this nature cannot be tolerated; so as to protect the public and, also, the standing of what is a noble profession such as nursing, particularly in the mind of the public.
32. [32]
    The authorities relied upon by the parties lead me to conclude that in addition to a reprimand, a short period of suspension as agreed by the parties of three months is called for. Cash is quite a comparable case. However, the respondent practitioner in that case had spent three years out of practice as a nurse which the Tribunal regarded as, “A very relevant consideration as to the appropriate sanction for the respondent’s conduct”.
33. [33]
    The applicant also appropriately seeks an order pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) to protect the identity of the patient the subject of the criminal offending.
34. [34]
    In those circumstances the Tribunal makes the following findings and orders:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act, in respect of the conduct the subject of allegation 1, together with the conduct the subject of allegations 2 and 3, the respondent has engaged in professional misconduct;
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act, the respondent is reprimanded;
3. Pursuant to section 107(3)(d) of the Health Ombudsman Act, the respondent’s registration is suspended for three months from today’s date;
4. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act, the immediate registration action imposed by the Health Ombudsman effective 9 August 2019 is set aside;
5. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
   1. (a)
      the contents of a document or other thing produced at the Tribunal;
   2. (b)
      evidence given before the Tribunal; and
   3. (c)
      any order made or reasons given by the Tribunal,

is prohibited to the extent that it could identify or lead to the identification of any patient of the respondent or any family member of that patient; and

6. The parties bear their own costs of the proceedings.