QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral of a health service complaint against AER (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 alleges that the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction. The parties have jointly filed and rely upon a statement of agreed facts and there are no factual issues in dispute. The parties also agree as to the characterisation of the conduct and appropriate orders by way of sanction.

Background

2. [2]
   The respondent is 39 years of age and was first registered as a registered nurse in 2011. At the time of the conduct the subject of the referral, the respondent was employed as a registered nurse at a Brisbane public hospital where he had worked from 2012.

Conduct

3. [3]
   On 26 December 2017, a patient was admitted to the hospital. He had with him on admission one box of 20 tablets of Endone which was signed into the patient’s controlled drug book and locked in the controlled drug cupboard.
4. [4]
   On 28 December 2017, the respondent told a colleague that he had left his swipe card in the drug room and asked if he could borrow his colleague’s card. His colleague lent the respondent her swipe card and the respondent used it and his own swipe card to access the controlled drugs cupboard. The respondent removed the patient’s box of Endone tablets and placed the box in his pocket. The respondent folded the relevant page over in the controlled drugs book, so the box of Endone would not be included in regular controlled drug orders. Later that day, the respondent placed the box of Endone in his locker at the nurses’ station and subsequently took the drugs home for his personal use.
5. [5]
   On 3 January 2018, the patient was discharged. His box of Endone was unable to be located and he was discharged without that medication. On or about 7 January 2018, the respondent brought the patient’s medication box, into which he had placed 20 Endone tablets, with him on his shift. He placed the box in an envelope and left it on the nursing unit manager’s desk, claiming untruthfully that he had found the box of Endone under or behind the medication fridge.
6. [6]
   During a night shift on 17 January 2018, the respondent and another nurse accessed the drug cupboard to sign out one Endone tablet for administration to a patient. On the way to deliver the medication to the patient, the respondent replaced the Endone tablet in the medication cup with a 500 milligram Paracetamol tablet from his pocket and placed the Endone tablet intended for the patient in his pocket. On inspecting the medication cup, the other nurse noticed and pointed out to the respondent that the medication in the cup was not Endone, whereupon the respondent produced the Endone tablet form his pocket and gave it to the other nurse. The patient did ultimately receive his Endone medication.

Characterisation of conduct

7. [7]
   The applicant submits and the respondent does not dispute that the respondent’s conduct should be characterised as professional misconduct. The respondent’s conduct was contrary to the terms of applicable professional codes of conduct, the provisions of the criminal law and legislation governing the dispensing of schedule 8 drugs, as well as the policies and procedures of his employer. It constituted a gross breach of the trust reposed in the respondent by his employer, fellow staff, patients and the public.
8. [8]
   The respondent’s conduct was conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience. The Tribunal readily accepts the submissions of both parties that the respondent’s conduct should be characterised as professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
9. [9]
   Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

10. [10]
    The respondent was stood down from his employment on 17 January 2018.^[1] His resignation from that employment was effective from 1 June 2018.
11. [11]
    On February 2018, the Health Ombudsman took immediate action against the respondent pursuant to section 58 of the HO Act. Conditions were imposed on the respondent’s registration, including prohibiting him from engaging in any role which required direct or indirect clinical patient contact and from accessing any controlled drug. Those conditions were in place for a period of approximately 11 months before they were removed by the Health Ombudsman on 9 January 2019.
12. [12]
    The conditions imposed by the immediate action, in the context of the respondent’s work experience being solely in clinical practice, effectively amounted to a suspension of the respondent’s ability to work as a registered nurse. The respondent did not work as a registered nurse, or at all, between being stood down from his employment and July 2019. During that period, the respondent re-trained in lobotomy but was unable to obtain employment.
13. [13]
    In the meantime, the Health Ombudsman had referred the health aspect of the matter to the Australian Health Practitioner Regulation Authority (AHPRA).
14. [14]
    On or about 5 March 2018, the respondent engaged in treatment with Dr Nigel Prior, a psychiatrist who provided a report to AHPRA, as did his locum, Dr Greg Appel.
15. [15]
    On 21 May 2018, AHPRA required the respondent to undergo a health assessment. On 7 July 2018, Dr Jill Redden, a psychiatrist, provided a health assessment report to AHPRA, opining that the respondent had an impairment as defined in the National Law: specifically, opiate dependence and alcohol abuse, both in remission. Dr Redden recommended conditions be imposed on the respondent’s registration.
16. [16]
    On 21 December 2018, the Nursing and Midwifery Board (the Board) imposed conditions on the respondent’s registration, requiring continuing psychiatric treatment, supervised handling of opiates and participation in drug and alcohol screening. Those conditions remain in place.
17. [17]
    Such restrictions no doubt contributed to the respondent’s inability to immediately obtain nursing employment after the immediate action conditions were removed by the Health Ombudsman on 9 January 2019. The respondent was eventually able to obtain part-time employment in July 2019 as a registered nurse and has continued to maintain that employment.
18. [18]
    The respondent’s treatment under Dr Prior included attendance at the Damascus Unit Drug and Rehabilitation Program as an inpatient, day patient and outpatient. The respondent continues to be engaged in appropriate treatment with Dr Prior.
19. [19]
    The applicant acknowledges that the respondent has demonstrated insight and remorse regarding his conduct, including in a letter to his employer on 27 March 2018. The respondent cooperated in the Health Ombudsman investigation and in these disciplinary proceedings before the Tribunal.
20. [20]
    Given the respondent’s demonstrable remorse and insight and the Board-imposed conditions managing his health, this is not a case where the consideration of specific deterrence is a significant factor, nor is it the case that orders for sanction must serve an immediate protective purpose by any preclusion from practice or ordering conditions on the respondent’s registration.
21. [21]
    The purposes of sanction are protective, not punitive. The maintenance of professional standards and public confidence in the profession are important considerations. It is necessary for the Tribunal to denounce the respondent’s serious professional misconduct and make it clear that such conduct is unacceptable in the nursing profession.
22. [22]
    A reprimand is not a trivial penalty. It has the potential for serious adverse implications to a professional person. Even if the Tribunal was to make a non-publication order in relation to the respondent’s identity, the fact of the reprimand will remain a matter of public record against his name on the register and will remain so until such time as the Board considers it appropriate to remove it.
23. [23]
    I should note that both parties jointly submitted that a reprimand sufficiently address the protective purposes of sanction in the particular circumstances of this matter. The Tribunal will not ordinarily depart from orders jointly submitted by the parties unless it determines they fall outside a permissible range of sanction.^[2]
24. [24]
    Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.

Non-publication order

25. [25]
    The respondent seeks an order pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) prohibiting publication of the identity of the respondent, any family member of the respondent and any patient or family member of any patient of the respondent.
26. [26]
    Section 66(1) and (2) of the QCAT Act provide as follows:

1. (1)
   The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order –

1. (a)
   the contents of a document or other thing produced to the tribunal;

2. (b)
   evidence given before the tribunal;

3. (c)
   information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.

2. (2)
   The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary –

1. (a)
   to avoid interfering with the proper administration of justice; or

2. (b)
   to avoid endangering the physical or mental health or safety of a person; or

3. (c)
   to avoid offending public decency or morality; or

4. (d)
   to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or

5. (e)
   for any other reason in the interests of justice.

27. [27]
    Section 66(2) of the QCAT Act provides for the circumstances in which a non-publication order may be made. The Tribunal may make an order ‘only if the tribunal considers the order is necessary’ to avoid one of the specified consequences, or is necessary ‘for any other reason in the interests of justice’.
28. [28]
    The onus lies on the parties seeking the non-publication order to satisfy the Tribunal of its necessity. In Medical Board of Australia v Waldron [2017] QCAT 443 at [81]-[82], Deputy President Sheridan DCJ observed:

The wording of s 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers it necessary. The phrase, “in the interests of justice”, whilst not defined and generally considered to confer a broad discretion, must be interpreted subject to those limitations.

The discretion given to the Tribunal by s 66 has been described as being “underpinned by the principle of open justice which aims to ensure not only the court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts”. The onus is on the applicant to show special circumstances exist which justify the making of the order.^[3]

29. [29]
    The applicant submits that the discretion to make a non-publication order in the terms sought arises within the terms of section 66(2)(b) of the QCAT Act because non-publication of the identity of the respondent is necessary to avoid endangering the respondent’s mental health.
30. [30]
    The respondent refers to a report from the respondent’s treating psychiatrist, Dr Nigel Prior dated 30 November 2020. The respondent’s solicitors requested Dr Prior to provide a report:

…as to whether the offending conduct was closely bound with his health impairment and whether the publication of the respondent’s identity may endanger the respondent’s mental health including if the publication of relevant events carries a significant risk of causing relapse of currently well-controlled mental health conditions.

31. [31]
    Dr Prior, in response, opined:

I consider that the conduct of misappropriating a Schedule 8 drug Oxycodone intended for a patient and misappropriating a box of Oxycodone tablets belonging to a patient are closely bound with [the respondent]’s health impairment.

When I initially assessed him on 5 March 2018, I considered that he had a Substance Use Disorder involving opiates, a Substance Use Disorder involving alcohol which was in remission, and a Generalised Anxiety Disorder. I consider that these conditions had arisen in the context of multiple psychosocial stressors in part relating to he and his wife’s difficulties successfully falling pregnant, difficulties associated with parenthood, having to work shift work, dealing with a stressful work-related environment, a past history of back pain, self-medication of back pain with over-the-counter opiates and subsequently this escalating to a Substance Use Disorder involving the opiates, becoming dependent on them.

I considered that if it was not for his health-related conditions of the Generalised Anxiety Disorder, chronic back pain and difficulties managing psychosocial stressors due to the Anxiety Disorder it is unlikely that he would have engaged in the behaviour subject of the matters before QCAT.

…I consider that it is likely that publication of his identity is likely to cause a deterioration in his mental state. It is likely that it will case an escalation in symptoms associated with the Generalised Anxiety Disorder. However, I do not consider that it is likely to result in a relapse of the Substance Use Disorder as he has had prolonged sobriety of almost three years, and has negotiated multiple life stressors without relapse of the Substance Use Disorders.

32. [32]
    The respondent relies upon Dr Prior’s opinion that publication of the respondent’s identity is likely to cause a deterioration in his mental health as it is likely to cause an escalation in symptoms associated with his generalised anxiety disorder.
33. [33]
    The applicant opposes the orders sought and submits that Dr Prior’s opinion falls short of the evidential basis required to base a finding that a non-publication order is necessary to avoid endangering the mental health of the respondent. In the applicant’s submission the risk to mental health has not been sufficiently identified or articulated, nor has the nexus between the publication of the respondent’s identity and the potential detriment.
34. [34]
    I do not accept the applicant’s submission to that effect. Doctor Prior expresses a likelihood that publication of the respondent’s identity would cause an escalation of symptoms associated with the respondent’s generalised anxiety disorder. In my view, that is sufficient to base a finding that the non-publication of the respondent’s identity is necessary to avoid endangering his mental health. The pre-condition for the exercise of the discretion to make a non-publication order pursuant to section 66(2)(b) of the QCAT Act exists.
35. [35]
    The respondent also submits that the pre-condition for the exercise of the discretion to make a non-publication order pursuant to section 66(2)(d) of the QCAT Act also exists in this matter. Given the opinion of Dr Prior that the conduct would not have occurred but for the respondent’s impairment, the respondent refers to the reasons of Judge Sheridan in Health Ombudsman v CLT (No 2)^[4] regarding the making of a non-publication order in circumstances where there is a close connection between the offending conduct and the respondent’s impairment:

Pursuant to s 98 of the Health Ombudsman Act 2013 (Qld) (HO Act), a hearing for an impairment matter is not open to the public, unless otherwise ordered. Further, s 273 of the HO Act provides that the Health Ombudsman must not publish information that the Health Ombudsman considers it would be inappropriate to publish and the act gives as an example reference to the impairment of a health practitioner where that was a ground on which immediate action was taken. Further, s 226 of the Health Practitioner Regulation National Law Act (Qld) (National Law) enables the Board not to disclose the full terms of conditions imposed following a finding of impairment.

These provisions indicate the importance which the legislature attaches to the need for privacy in matters relating to the impairment of practitioners. There is good social policy reasons for that approach which justifies a restriction to openness in the administration of justice. Clearly, the aim of the legislative regime is to encourage impaired practitioners to fully disclose their condition without fear that it might prejudice their otherwise good standing in the community. In those circumstances, permitting the disclosure of such information would be contrary to the public interest.

Here, the references in the disciplinary proceedings to the reports of the respondent’s treating practitioner, obtained by AHPRA through the impairment process, was because the practitioner’s impairment was intertwined with the misconduct….

In terms of issues at general deterrence, the publication of the decision and reasons, de-identified, still serves as an important reminder to the profession and the public of the consequences of misconduct, even in circumstances where that misconduct is intertwined with an impairment.

36. [36]
    It seems to me that those reasons are also quite apt to this case.
37. [37]
    The Tribunal’s discretion to make a non-publication order is thus enlivened pursuant to section 66(2)(b) and (d) of the QCAT Act. In considering whether such discretion should be exercised to prohibit publication of the identity of the respondent it is appropriate to take into account that, ordinarily, such an order would diminish the effect of a reprimand and thus diminish the considerations of deterrence and denunciation which such an order for sanction is designed to address. However, as noted earlier, both parties submit that specific deterrence does not loom large in all the circumstances of this matter.
38. [38]
    I accept the submission on behalf of the respondent that publication of reasons in this matter, albeit anonymised, does depict a cautionary tale for other practitioners, and in that way go to meeting considerations of general deterrence.
39. [39]
    Notwithstanding the principles of open justice and the public interest in details of disciplinary proceedings being publicly available in this matter, in all the circumstances, I consider it appropriate to make a non-publication order in the terms sought by the respondent.
40. [40]
    Pursuant to section 66 of the QCAT Act, publication is prohibited of:

    1. (a)
       the contents of any document or thing produced to the Tribunal; and
    2. (b)
       the orders made and reasons given by the Tribunal; and
    3. (c)
       evidence before the Tribunal:

to the extent that it could identify, or lead to the identification of, the respondent, any family member of the respondent, any patient or former patient of the respondent, or any family member of any patient or former patient of the respondent, save as is necessary for the parties to engage in this proceeding or any appeal therefrom, or for the applicant to advise AHPRA of the outcome of this proceeding.