Health Ombudsman v YCB[2021] QCAT 265

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral of a health service complaint against YCB (respondent), pursuant to sections 103 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 a finding that the respondent has engaged in professional misconduct and orders for sanction. The parties are agreed as to the facts constituting the conduct the subject of the referral, that it should be categorised as professional misconduct, and that the appropriate order, by way of sanction, is that the respondent be reprimanded. Notwithstanding the agreement of the parties, the Tribunal is required to determine those matters.
2. [2]
   The respondent is in her late 30s and was in her early 30s at the time of the conduct the subject of the referral. The respondent was first registered as a registered nurse in December 2003. At relevant times, the respondent was employed as a registered nurse in a Southeast Queensland public hospital. In mid-2013, the respondent commenced leave from her employment by reason of her mental health and received income protection payments. The respondent remained employed at the time of the conduct the subject of the referral, but was on leave for significant periods of time. Subsequent to the conduct the subject of the referral, the respondent remained on leave before surrendering her registration in mid-2016.
3. [3]
   The conduct the subject of the referral did not occur in the course of the respondent’s practice as a registered nurse. The conduct related to the respondent’s commission of serious drug offences and a traffic offence.
4. [4]
   In August 2015, the respondent pleaded guilty in the Supreme Court of Queensland to offences of trafficking in dangerous drugs, namely methylamphetamine and cannabis, between April and August 2014; possessing dangerous drugs, namely MDMA, in August 2014; possessing dangerous drugs, namely methylamphetamine, in August 2014; possessing dangerous drugs, namely cannabis, in August 2014; possessing things used in the commission of drugs offence and utensils and property suspected of being the proceeds of an offence, all in August 2014. In September 2015, the respondent was sentenced for the offences in the Supreme Court of Queensland to a series of concurrent periods of imprisonment with the effective total sentence being four years imprisonment, wholly suspended for four years.
5. [5]
   In February 2016, the respondent was convicted of a traffic offence in the Magistrates Court, being that, in October 2015, she drove a motor vehicle while methylamphetamine was present in her saliva. She was fined $600, and her driver’s licence was disqualified for a period of two months. Such offence constituted a breach of the suspended sentences imposed in September 2015, and in August 2016, the respondent was dealt with for such breach of suspended sentence and the operational period of her suspended sentences was extended by six months. That operational period has now expired without any further breaches by the respondent.
6. [6]
   Although the conduct of the respondent in the commission of drug offences did not impact directly on patients, it was conduct quite inconsistent with the expectations of the public and other members of the profession that nurses exercise the utmost care in their dealings with drugs, both professionally in the context of legislation governing prescribed drugs, but also by avoiding serious illicit drug offending contrary to the criminal law. Such conduct was exacerbated by the subsequent traffic offence also involving illicit drugs.
7. [7]
   The conduct of the respondent fell well below the standard of conduct expected of members of the nursing profession in their personal life and, obviously, had the real potential to affect public confidence in the members of the nursing profession. If a member of the profession commits a criminal offence punishable by imprisonment, this can reflect adversely on the reputation of the profession and may damage public confidence in it.
8. [8]
   Both parties submit that the conduct of the respondent should be characterised as “professional misconduct” as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) and the Tribunal concurs. 
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.
10. [10]
    Disciplinary proceedings are protective, not punitive, in nature. Protection of the public has various aspects. In the exercise of the protective jurisdiction, it is appropriate for the Tribunal to consider the maintenance of professional standards and issues of general and personal deterrence. These are the relevant issues in the case of determining sanction of the respondent.
11. [11]
    The respondent surrendered her registration in mid-2016 so as to address her underlying mental health issues, including drug dependence, acknowledging that she was not fit to practise nursing at that time. The respondent has not sought to resume her nursing career since. She has, however, continued to take appropriate steps to address her mental health issues, and continues to receive treatment from her general practitioner, psychologist and psychiatrist. She now has stable accommodation and family support and is self-employed outside the health profession. Issues of personal deterrence assume little significance in such circumstances.
12. [12]
    Likewise, immediate protection of the public, by way of any further preclusion from practice, is not required in circumstances where, if the respondent does seek to return to nursing, she will need to satisfy the Nursing and Midwifery Board of Australia of her fitness to practise.
13. [13]
    In these circumstances, both parties submit that an appropriate order by way of sanction is a reprimand. The conduct of the respondent does require the denunciation of the Tribunal. It should be noted that a reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person. It is a public denunciation of the respondent’s conduct.
14. [14]
    Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.
15. [15]
    It is now seven years since the conduct the subject of the referral. The conduct occurred in the context of the respondent suffering serious mental health issues, including drug dependence. She was completely cooperative with criminal proceedings upon being charged and pleaded guilty to all offences. She has now completed the operational period of those suspended sentences. The respondent voluntarily surrendered her registration so as to address her mental health and drug dependence issues. Commendably, she has continued to address those issues, despite suffering relapses, including requiring in-patient treatment.
16. [16]
    The respondent has also cooperated in relation to the proceedings before the Tribunal, notwithstanding that the conduct of proceedings before the Tribunal has been delayed through no fault of either party by the respondent’s health, meaning that she was unable to engage in proceedings for periods of time, including during in-patient hospital admissions. The respondent, to her credit, has appeared upon the hearing of this matter, and expressed her great remorse for her conduct and the loss of her nursing career. She has also expressed her concern that publication of the proceedings may have a negative effect upon her mental health. Given the material that is before the Tribunal, the Tribunal does find that identification of the respondent in any orders or reasons of the Tribunal might endanger her mental health. Given all the circumstances of the matter, including the time that has elapsed since the conduct  the subject of the referral, and the effect that publication of the respondent’s identity might have upon her ability to conduct her business, it is also contrary to the interests of justice that such publication occur. In all these circumstances, the applicant quite properly does not oppose the making of non-publication order.
17. [17]
    Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:

    1. (a)
       the contents of a document or thing filed in or produced to 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 identity or lead to the identification of the respondent, save as is necessary for the office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).

18. [18]
    Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal except by a Judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff at the Tribunal Registry or the parties to this proceeding.