Health Ombudsman v Russell[2021] QCAT 188

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against Anne Russell (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 findings that the respondent has behaved in a way that constitutes professional misconduct and unprofessional conduct, and seeks orders for sanction.
2. [2]
   In this matter the parties have jointly filed and rely upon a statement of agreed facts and there are ultimately no factual issues in dispute. The parties also agree as to the characterisation of the conduct the subject of the referral and jointly submit as to appropriate orders by way of sanction.
3. [3]
   The respondent is 52 years of age and was first registered as an enrolled nurse on 16 September 2008.

Conduct

4. [4]
   The conduct the subject of the referral did not occur in the course of the respondent’s practice as an enrolled nurse. The referral particularises seven allegations.
5. [5]
   Allegations 1 and 2 relate to the respondent’s conviction for criminal offence, and the remaining allegations relate to the respondent’s failure to give the Nursing and Midwifery Board of Australia (Board) notice of relevant events in contravention of section 130 of the Health Practitioner Regulation National Law (Queensland) (National Law) and by false statements as to her criminal history upon applications for renewal of registration as an enrolled nurse.
6. [6]
   Allegation 1 relates to the respondent’s conviction for the offence of obstructing police and two traffic offences committed on 14 June 2010. On that date the respondent gave the police, during the course of a traffic stop, a name other than her own when asked her name. She did that because she was aware that she did not then hold a current drivers licence. That same date she was issued with a notice to appear in relation to one charge of obstructing police contrary to section 790 of the Police Powers and Responsibilities Act 2000 and also two traffic offences, being contraventions of section 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 and section 78(1) and (3) of the Transport Operations (Road Use Management) Act 1995. The respondent pleaded guilty to those offences in the Magistrates Court at Holland Park on 13 August 2010. With respect to the offence of obstructing police, the respondent was fined $250. She was fined $330 in relation to the offence of disobeying the speed limit and $1,500 with respect to the offence of driving without a licence whilst disqualified by a court order. Convictions were recorded in relation to all three offences and the respondent was disqualified from holding or obtaining a drivers’ licence for a period of two years.
7. [7]
   Allegation 2 relates to the respondent’s conviction on her own plea of guilty on 12 October 2015 in the Magistrates Court at Brisbane on two counts of “general dishonesty – obtaining a gain” contrary to section 135.1(1) of the Criminal Code (Cth).
8. [8]
   Between 28 September 2009 and 3 January 2013, the respondent misrepresented her circumstances to the Department of Human Services, Centrelink, and as a result obtained $35,956.94 in parenting payments (single) to which she was not entitled to receive. Between 14 January 2013 and 22 October 2013, the respondent misrepresented her circumstances to the Department of Human Services, Centrelink, and as a result obtained $9,500.44 in Newstart allowance payments, which she was not entitled to receive. The respondent reported to Centrelink that she had earned $12,995.40 in income during the relevant periods when she had, in fact, earned $151,437.61 in income during the relevant period. The underreporting by the respondent of her income during those periods was detected by data matching with the Australian Taxation Office. The respondent intentionally misrepresented her true circumstances on 107 occasions in order to continue to obtain benefits.
9. [9]
   The respondent was sentenced to six months’ imprisonment to be served as an intensive correction order. The respondent was also made subject to a reparation order in the sum of $45,457.38. The respondent subsequently successfully completed the intensive correction order and continues to comply with the terms of the reparation order.
10. [10]
    Allegations 3 and 4 relate to false statements by the respondent on occasions of renewal of her registration during the years from 2011 through to 2016. On each of the occasions when the respondent submitted online applications to the Australian Health Practitioner Regulation Agency (AHPRA) for annual renewal of her registration as an enrolled nurse, the respondent answered in the negative two questions inquiring as to whether she had a criminal history. The answers given on those occasions during the years 2011 to 2014 were false in that the respondent had been charged and convicted with those offences the subject of Allegation 1 and had not previously advised AHPRA of that fact. The answers given during those occasions in 2015 and 2016 were likewise false for that reason, but also because of the respondent having been charged and convicted with the offences the subject of Allegation 2.
11. [11]
    Allegations 5, 6 and 7 relate to the respondent’s failure, in contravention of section 130 of the National Law, to respectively advise the Board within seven days that on 13 August 2010 she had been convicted of offences punishable by imprisonment, on 23 June 2015 had been charged with two offences punishable by 12 months imprisonment or more and on 12 October 2015 had been convicted of offences punishable by imprisonment.
12. [12]
    The respondent did not advise AHPRA of any such matters prior to her online application for renewal of registration in 2017 in which she advised of being charged with the offences the subject of allegation 2. Such disclosure led to an investigation by the Board and a referral to the office of the Health Ombudsman.

Characterisation of conduct

13. [13]
    Both parties submit that allegations 1 and 2 should be characterised as professional misconduct and that allegations 3 to 7 should be characterised as unprofessional conduct.
14. [14]
    The Tribunal has previously discussed the process of characterising conduct as professional misconduct or unprofessional conduct in many decisions.^[1]
15. [15]
    Allegation 1 is arguably a borderline case upon which minds could differ as to whether the conduct should be characterised as professional misconduct or unprofessional conduct. It is unlikely the traffic offences alone would be characterised as professional misconduct but, in combination with the dishonesty associated with the offence of obstructing police, the Tribunal accepts the submissions of the parties that the conduct the subject of allegation 1 should be characterised as professional misconduct.
16. [16]
    With regards to Allegation 2, conduct of a similar nature has been characterised as professional misconduct in decisions of this and other Tribunals.^[2]
17. [17]
    The respondent’s dishonest conduct was deliberate and protracted. It involved 107 false declarations over a period of four years. The respondent’s dishonesty resulted in her obtaining overpayments in excess of $45,000. The conduct was clearly a substantial departure from the standard reasonably expected of an enrolled nurse of the respondent’s level of training and experience. It is conduct which clearly meets each limb of the definition of “professional misconduct” in section 5 of the National Law.
18. [18]
    Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides, in relation to each of Allegations 1 and 2, that the respondent has behaved in a way that constitutes professional misconduct.
19. [19]
    In relation to Allegations 3 to 7, such conduct has been previously characterised by this Tribunal as unprofessional conduct.^[3]
20. [20]
    The number of instances of the false statements on renewal of registration and the failure to notify of relevant events is such that a finding of professional misconduct as defined in limb (b) of the definition of “professional misconduct” in section 5 of the National Law is arguably open. However, the Tribunal should not lightly depart from joint positions submitted by the parties unless clearly inappropriate.^[4]
21. [21]
    And the Tribunal is prepared to accept that such instances of the conduct may appropriately each be characterised as unprofessional conduct.
22. [22]
    Pursuant to section 107(2)(b)(ii) of the HO Act, the Tribunal decides, in relation to each of Allegations 3, 4, 5, 6 and 7, that the respondent has behaved in a way that constitutes unprofessional conduct.

Sanction

23. [23]
    The purposes of sanction in this jurisdiction are protective, not punitive. In the exercise of the protective jurisdiction it is appropriate for the Tribunal to consider the maintenance of professional standards, issues of general and personal deterrence and maintenance of public trust and confidence in the profession.
24. [24]
    Given the demonstrable remorse of the respondent and the time that has passed since the conduct and the absence of allegations of any misconduct in the course of her practice of nursing, considerations of personal deterrence do not loom large in consideration of an appropriate sanction.
25. [25]
    The respondent has been employed by the same nursing agency for the past 13 years and her employer and colleagues, despite knowledge of the conduct the subject of these proceedings, speak very highly of the respondent’s performance and skills as an enrolled nurse and of her character. The fact that the respondent has been able to hold and maintain that employment for so long, despite personal challenges and her employer’s knowledge of the conduct the subject of these proceedings, is very telling as to the respondent’s performance as an enrolled nurse and the high regard in which she is held by her employer and professional colleagues.
26. [26]
    Other mitigating factors include the respondent’s admissions and pleas of guilty in the course of the criminal prosecutions and her cooperation with the proceedings before this Tribunal.
27. [27]
    The applicant also very fairly concedes that the delay between the referral of the matter to the Office of the Health Ombudsman and the conclusion of proceedings before the Tribunal should also be regarded as a mitigating factor.^[5]
28. [28]
    There is obviously no need that any orders for sanction address any immediate protective purpose for patients the subject of the respondent’s care. The relevant considerations for sanction in this matter are considerations of denunciation, general deterrence, maintenance of professional standards, and upholding public trust and confidence in the profession.
29. [29]
    The professional misconduct and unprofessional conduct of the respondent does require denunciation by the Tribunal.
30. [30]
    Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.
31. [31]
    The applicant has referred to a number of decisions of this and other Tribunals in support of a submission that appropriate orders for sanction would include an order for suspension of the respondent’s registration for a period of six to 12 months.^[6]
32. [32]
    Both parties jointly submit that, in all the circumstances of this matter, a suspension of the respondent’s registration for a period of six months would appropriately address those protective purposes of sanction referred to earlier in these reasons.
33. [33]
    As earlier mentioned, the Tribunal should not lightly depart from an agreed position of the parties and the Tribunal accepts the submissions of the parties as to appropriate orders for sanction.
34. [34]
    Pursuant to section 107(3)(d) of the HO Act, the respondent’s registration is suspended for a period of six months.
35. [35]
    The respondent has a strong desire to continue to work in the nursing profession and, indeed, is well advanced in her studies in a Bachelor of Nursing degree and is hopeful of becoming a registered nurse.
36. [36]
    The respondent’s current understanding is that an order for suspension of her registration as an enrolled nurse will not preclude her from continuing her studies towards obtaining the degree of Bachelor of Nursing and ultimately registration as a registered nurse. The Tribunal hopes that the suspension will not preclude the respondent continuing with her studies. Obviously, once eligible to apply for registration as a registered nurse, her fitness to practise as such will be a matter for the Board in accordance with her then circumstances.

Costs

37. [37]
    Both parties have submitted that each party should bear their own costs and, there being no reason to depart from the normal position pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal orders that each party bear their own costs of the proceeding.