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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Quinn  QCAT 156
benjamin mark quinn
Occupational regulation matters
13 May 2021 (ex tempore)
13 May 2021
Judge Allen QC, Deputy President
Ms L Dyer
Mr S Lewis
Ms P Hall
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a registered nurse – where the respondent has a prior disciplinary history – where the respondent pleaded guilty to possessing dangerous drugs and stealing two ampoules of morphine – whether such conduct should be characterised as professional misconduct or unprofessional conduct – what sanction should be imposed – whether the respondent should be reprimanded or cautioned
Health Ombudsman Act 2013, s 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5
Briginshaw v Briginshaw  60 CLR 336
Fittock v Legal Profession Conduct Commissioner (No 2)  SASCFC 167
Health Ombudsman v Britten  QCAT 217
Health Ombudsman v CSM  QCAT 55
Health Ombudsman v Gillespie  QCAT 54
Health Ombudsman v Henson  QCAT 72
Health Ombudsman v Jamieson  QCAT 172
Health Ombudsman v McGill  QCAT 399
Health Ombudsman v McGuinness  QCAT 1
Health Ombudsman v Montalvo  QCAT 317
Health Ombudsman v Tu  QCAT 91
Nursing and Midwifery Board of Australia v Morey  QCAT 249
Pharmacy Board of Australia v the Registrant  QCAT 515
Pharmacy Board of Australia v Thomas  QCAT 637
Psychology Board of Australia v Cameron  QCA 227
C Templeton of Counsel, instructed by the Office of the Health Ombudsman
REASONS FOR DECISION
- This is a referral of a matter against Benjamin Mark Quinn (respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The applicant seeks that the Tribunal make disciplinary orders against the respondent pursuant to section 107 of the HO Act.
- In particular, the applicant submits that the Tribunal would decide that the respondent has behaved in a way that constitutes professional misconduct, and that the Tribunal would reprimand him. The respondent contends to the contrary, submitting that the Tribunal would instead decide that he has behaved in a way that constitutes unprofessional conduct and that he would be cautioned.
- The applicant bears the onus of proof. It must satisfy the Tribunal of the matters which it contends; that is, the characterisation of the respondent’s conduct as professional misconduct and the appropriate orders for sanction to the standard identified by the High Court in Briginshaw v Briginshaw. In deciding this matter referred under the HO Act, the Tribunal must have regard to the paramount principle of the health and safety of the public as the main consideration in reaching its determination.
- The respondent was first registered as a registered nurse on 4 January 2006. He is 36 years of age and was 28 years of age at the time of the conduct the subject of the referral.
Allegation 1 – conviction for Queensland criminal offence
- Between 15 February 2014 and 15 April 2014, the respondent was an agency registered nurse contracted to work at the Murray Island Primary Health Care Clinic. Allegations of theft of medication led to police executing a search warrant for the respondent’s residence. During the execution of the search warrant on 15 April 2014, police located the following drugs and other items:
- (a)three and a-half 2 mg Diazepam tablets;
- (b)eight 5 mg Diazepam tablets;
- (c)five 2 mg Diazepam tablets;
- (d)3 mg Diazepam tablets;
- (e)one 20 mg Ozmep tablet;
- (f)four 4 mg Ondansetron tablets;
- (g)crushed pill residue;
- (h)a tourniquet;
- (i)a plastic container marked “nitrazepam”, containing 22 tablets;
- (j)discarded medicine boxes and blister packs, including one discarded box of Codapane Forte in another person’s name;
- (k)two used morphine vials in a plastic container; and
- (l)a plastic vial containing five tablets, two of which were Diazepam.
- The respondent was charged with one count of stealing as a servant and one count of possessing dangerous drugs. An audit of the schedule 8 and designated restricted schedule 4 medications at the health care clinic revealed no discrepancies in quantity or evidence of tampering. The charge of stealing was discontinued.
- On 8 July 2014, the respondent pleaded guilty to one count of possessing dangerous drugs in the Magistrates Court at Brisbane. He was fined $380 and no conviction was recorded.
Allegation 2 – conviction for Tasmanian criminal offence
- Between January and December 2013, the respondent was employed by Ambulance Tasmania, and worked in various locations on the northwest coast of Tasmania, performing duties as a paramedic. On 14 September 2013, anomalies were discovered in the Drugs of Addiction Register kept by Ambulance Tasmania at the Mersey Hospital. Further investigations, including a viewing of video surveillance, indicated the respondent had probably removed two ampoules of morphine from the secure storage area. Further investigations into other entries made by the respondent in the Drugs of Addiction Register were followed by admissions by the respondent to stealing narcotics for his own use. The respondent was charged by Tasmanian police with a number of offences.
- On 7 August 2015, the respondent pleaded guilty to one count of stealing two ampoules of morphine, to the value of $2.52. All other charges were dismissed. No conviction was recorded, and the court ordered that the matter be adjourned for 24 months on condition that the practitioner be of good behaviour and appear for conviction and sentence if called to do so.
Characterisation of conduct
- The applicant contends that the conduct of the respondent underlying his criminal convictions should be characterised as professional misconduct. The applicant refers to a number of decisions of the Tribunal in which convictions of health practitioners for offences of stealing and/or possessing dangerous drugs have resulted in findings of professional misconduct.
- The respondent refers to the definitions of “unprofessional conduct” and “professional misconduct” in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) and the statement by the Tribunal in Pharmacy Board of Australia v the Registrant:
Accordingly, regard must be had to the words of the National Law. The words ‘substantially below’ is the relevant threshold for misconduct. The word substantial is defined as, ‘of a considerable size or value’ in Collins Concise English Dictionary. The word substantially is defined as, ‘to a great or significant extent’ on the Oxford Dictionary’s website. It is evident from these definitions that to establish misconduct in a professional respect it must be shown on the evidence that the registrant’s conduct was more than just below the standard expected. The registrant’s conduct needs to be shown to be, to a high degree, below the standards expected of a registrant with equivalent training and experience.
- The respondent accepts that his conduct falls within the meaning of unprofessional conduct, but submits that it does not rise to the level of professional misconduct. The respondent made submissions comparing the facts and circumstances of cases referred to by the applicant with the circumstances of his own offending. He submits that the extent of dishonest conduct in the matter of Pharmacy Board of Australia v Thomas is much more serious than the offence of stealing of which the respondent was convicted. He points to the extent of offences of dishonesty and possession of a dangerous drug in the matter of Health Ombudsman v McGill as being much more serious than his case. He submits that the decision of Health Ombudsman v CSM is of a limited precedential value because the respondent in that matter was not legally represented and did not participate in the proceedings.
- In reply, the applicant submits that merely because the criminality in some of the authorities relied upon by the applicant may be considered more serious than the case of the respondent, does not then mean that the respondent’s criminal conduct should be characterised as unprofessional conduct. Professional misconduct is broad enough to include varying degrees of serious misconduct, and when assessing the seriousness of the respondent’s conduct, a finding of unprofessional conduct would not adequately capture the seriousness of the total conduct, nor the degree of departure from the standard of behaviour expected of a registered nurse.
- Whether conduct of a practitioner should be characterised as professional misconduct or unprofessional conduct depends upon a consideration of the particular facts and circumstances and an application of the terms of the respective definitions in section 5 of the National Law. “Unprofessional conduct” is defined in section 5 of the National Law as “professional conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner’s professional peers” and is stated to include, amongst other things, the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practice the profession.
- “Professional misconduct” is defined in section 5 of the National Law as including, in limb (a) of the definition:
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.
- “Professional misconduct” is further defined in section 5 of the National Law, in limb (b) of the definition, as:
more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
- The meaning of “substantial” was also considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2):
… it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner. In the context of this appeal, “substantial” connotes a large or considerable departure from the standard required. This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct…
- In deciding whether conduct should be characterised as “unprofessional conduct” or “professional misconduct”, the Tribunal is required to make a judgment as to the degree of departure from the standard reasonably expected of the practitioner by the public or the practitioner’s professional peers. In making such a judgment in this case, I have been greatly assisted by the views expressed by the assessors.
- Determination of whether the respondent’s conduct should be characterised as professional misconduct or unprofessional conduct does not depend on a quantitative comparison of conduct in other cases involving convictions of practitioners for offences of dishonesty or possession of dangerous drugs. What is required is a qualitative determination in the circumstances of the particular case.
- The respondent’s conduct was a large and considerable departure from the standard of conduct required of a registered nurse of his training and experience. As regards to the offence of possession of a dangerous drug, registered nurses are entrusted with the management of restricted drugs, and it is of utmost importance that they deal with all drugs, especially those requiring lawful prescriptions, and in particular, drugs of dependence, with absolute propriety, whether it be in the course of carrying out their nursing duties or otherwise in the course of their personal life.
- The offence of stealing dangerous drugs from the respondent’s employer was a deliberate and serious departure from the standards expected of a registered nurse. Although it did not occur in the course of the respondent’s practice as a registered nurse, but as a paramedic, such conduct was not completely removed from health practice.
- In my view, the conduct of the respondent meets the definition of “professional misconduct” in both limbs (a) and (b) of that definition in section 5 of the National Law.
- Pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
- It must be recognised that the purpose of sanction in this jurisdiction is protective, not punitive, in nature. In the exercise of that protective jurisdiction, it is appropriate for the Tribunal to take into account the importance of the maintenance of professional standards, the preservation of public confidence in the nursing profession, and the need to deter the respondent and also other health practitioners from engaging in like conduct.
- As mentioned earlier, the respondent was first registered as a registered nurse on 4 January 2006. He is 36 years of age and was 28 years at the time of the conduct. The respondent obtained a Bachelor of Nursing in 2005, an Associate Degree in Paramedic Studies in 2010, and a Master’s degree in nursing in 2013. In 2013, he completed a remote area emergency nursing course. He has been accepted into the School of Dentistry of James Cook University.
- The respondent worked as a health practitioner full time from 2006 to 2015, including:
- (a)from 2006 to 2008: employment as a hospital graduate nurse and emergency nurse;
- (b)from 2008 to 2010: an internship with the Tasmanian Ambulance Service;
- (c)from 2010 to 2012: as a hospital nurse and as a paramedic; and
- (d)from 2012 to 2015: as a remote area nurse providing nursing services in remote locations in Northern Territory and Queensland.
- The respondent does have a prior disciplinary history. On 18 September 2014, conditions were placed upon his registration after allegations involving the misuse of restricted drugs. On 5 March 2015, the respondent’s registration was suspended due to his breach of those conditions. On 13 April 2017, the respondent was the subject of a finding of professional misconduct by the Tasmanian Health Practitioners Tribunal. He was reprimanded, and conditions were placed upon his registration that would take effect on his return to practice. The respondent’s registration expired on 31 May 2017 and he has not returned to practice as a registered nurse or paramedic since his suspension in March 2015.
- Since June 2019, the respondent has been employed by Life Without Barriers, a disability support service, initially as a disability support coordinator, and now as project manager and acting operations manager. The respondent has expressed a strong wish to return to nursing.
- The respondent was diagnosed in December 2017 with a chronic moderate polysubstance use disorder. Since March 2018 until late last year, he has regularly attended a clinical psychologist in relation to addiction relapse prevention. Between 29 January and 15 November 2018, the respondent also attended the Alcohol, Tobacco and Other Drugs Service (ATODS) for assistance to manage his behaviour. The respondent also attended ATODS for assistance during 2020. The respondent’s treating psychologist since March 2018 has provided a letter in which she refers to his psychological treatment from 2018 to 2020. She states that the respondent is well engaged in treatment and shows a great commitment to change, has continued development of insight into anxiety issues and his past use of substances as a form of emotional numbing, and has been trained in exercises to address such issues.
- A letter from a clinical nurse of ATODS confirms the respondent’s engagement with that service during periods from January 2018 to January 2019, September 2019 and February to June 2020. The clinical nurse states that the respondent has remained well engaged, insightful and dedicated to his recovery.
- An email from the operations manager of Life Without Barriers confirms that the respondent was open as to his criminal history when obtaining employment as a disability support coordinator with that service. The operations manager is of the opinion that the respondent has demonstrated insight and is keen to be proactive in managing himself to prevent any relapse. The respondent has obviously impressed his employer, having progressed to the position of program manager with the service.
- The applicant has referred again to Health Ombudsman v CSM and Health Ombudsman v Jamieson as well as Health Ombudsman v McGuinness, Nursing and Midwifery Board of Australia v Morey, Health Ombudsman v Tu, and Health Ombudsman v Montalvo, in support of the submission that the respondent should be reprimanded rather than cautioned.
- In his submissions, the respondent sought to demonstrate that the conduct in those matters was more serious than and distinguishable from his conduct, demonstrating that conduct of a more serious nature and degree might warrant a reprimand, but that the appropriate sanction in his case is a caution.
- The applicant submits that a caution is not a sanction that would adequately capture the seriousness of the total conduct of the respondent, the degree of departure from the standard of behaviour expected of a registered nurse of his training or experience, nor address the aspect of public confidence in the profession of nursing.
- Mitigating factors in the respondent’s favour include his obviously genuine remorse for his conduct and the admirable efforts he has taken towards his own rehabilitation since the time of the conduct. He has postponed any attempt to obtain re-registration and return to nursing until conclusion of these proceedings. Delays in the progress of the proceedings which are not the fault of the respondent has meant that there has been a considerable delay in the determination of the matter before the Tribunal. The respondent refers to the period of some seven years that has passed since the conduct, and I do regard that as a mitigating factor.
- The applicant quite properly concedes that considerations of personal deterrence are not of high importance, given the effluxion of time since the conduct and the respondent’s efforts towards rehabilitation during that period of time. The applicant submits, however, that a caution would not adequately address those considerations of denunciation and general deterrence relevant to the protective purposes of sanction.
- In considering the competing submissions of the parties, it is important to note that a reprimand is not a trivial penalty, and has the potential for serious adverse implications to a professional person. If the respondent does successfully obtain re-registration as a health practitioner, such a reprimand remains on the public register until such time as the Board considers it appropriate to remove it.
- Obviously, the applicant does not submit that any further preclusion from practice is required to meet the protective purposes of sanction. Before the respondent could be re-registered as a health practitioner, he will be required to satisfy the Board as to his fitness to practice, and address considerations of recency of practice. Once these proceedings are concluded, hopefully the respondent will take steps to do just that.
- In my view, a caution would not adequately address the protective purposes of sanction. For the same reasons that the respondent’s conduct should be characterised as professional misconduct, its seriousness is such that it requires denunciation by the Tribunal by way of a reprimand.
- Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.
  60 CLR 336.
 Health Ombudsman v CSM  QCAT 55; Health Ombudsman v McGill  QCAT 399 and Health Ombudsman v Jamieson  QCAT 172. See also Health Ombudsman v Henson  QCAT 72 and Health Ombudsman v Britten  QCAT 217.
  QCAT 515 at .
  QCAT 637.
  QCAT 399.
  QCAT 55.
  SASCFC 167 at .
  QCAT 55.
  QCAT 172.
  QCAT 1.
  QCAT 249.
  QCAT 91.
  QCAT 317.
 Psychology Board of Australia v Cameron  QCA 227 at .
 Health Ombudsman v Gillespie  QCAT 54.
- Published Case Name:
Health Ombudsman v Quinn
- Shortened Case Name:
Health Ombudsman v Quinn
 QCAT 156
Judge Allen QC, Deputy President
13 May 2021