Health Ombudsman v McAndrew[2021] QCAT 266

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is the referral of a health service complaint against Nathaniel Scott McAndrew (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 application alleges that the respondent has behaved in a way that constitutes professional misconduct and seeks the following orders by way of sanction:

   1. (a)
      the reprimand of the respondent;
   2. (b)
      the cancellation of the respondent’s registration as a registered nurse;
   3. (c)
      the disqualification of the respondent from applying for re-registration for a period of 12 to 18 months; and
   4. (d)
      an order that, until such time as the respondent is registered as a nurse, he be prohibited from providing certain health services, which can be summarily characterised as those involving patient contact.
2. [2]
   The respondent initially engaged in the proceedings before the Tribunal, filing a response, taking part in a compulsory conference, and agreeing to a statement of facts. But despite being served with a copy of the hearing brief, and given notice of the hearing, he has not taken up the opportunity to make written submissions or appear at this hearing. That has the unfortunate consequence that the Tribunal has not been informed as to the respondent’s current circumstances or been able to reach conclusions as to the respondent’s current insight and health.
3. [3]
   The respondent is 32 years old. He was initially registered as a registered nurse in December 2009. He has not been the subject of previous notifications to the Australian Health Practitioner Regulation Agency and has no other criminal convictions than those forming the basis of this referral.
4. [4]
   At the time of the conduct, the respondent was employed as a registered nurse at John Flynn Private Hospital where he had been employed since 2010. Between December 2017 and January 2018, the respondent stole credit cards from seven patients in the coronary care unit of the hospital in the course of his employment as a registered nurse. The respondent removed credit cards from the bedside drawers of the patients, utilising the access he had to such drawers, which contained patient medication as well as patients’ personal belongings. The respondent then used those credit cards to make multiple purchases of mostly under $100, presumably to facilitate such purchases without requiring the use of a PIN. The total amount involved was over $2,000.
5. [5]
   On 31 January 2018, police attended the hospital, interviewed the respondent and escorted him from the hospital. A search of the respondent’s premises the same day, as well as revealing some evidence of his offences of dishonesty, also led to police finding the respondent in possession of steroids and a vial of tadalafil, all obtained without prescription.
6. [6]
   On 13 December 2019 in the Magistrates Court at Coolangatta, the respondent pleaded guilty to seven counts of stealing, eight counts of fraud, one count of possession of dangerous drugs and one count of unlawful possession of restricted drugs. He was ordered to pay a fine in the sum of $3,000 with no convictions being recorded.
7. [7]
   The respondent’s theft from extremely vulnerable patients constitutes a gross breach of trust of those patients, his employer, his professional colleagues, and the public. Such conduct was exacerbated by the drugs offences. The public expects that nurses will comply strictly with regulations governing the use of prescribed drugs in both their professional and private lives. The Tribunal is satisfied that the conduct is properly characterised as “professional misconduct” as defined by each of the limbs of the definition of that term in section 5 of the Health Practitioner Regulation National Law (Queensland).
8. [8]
   Pursuant to section 7(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
9. [9]
   The purposes of sanction in this jurisdiction are protective, not punitive. The main consideration for the Tribunal in determining orders of the sanction is the health and safety of the public.^[1]
10. [10]
    As stated in many authorities, often citing Craig v Medical Board of South Australia,^[2] the imposition of sanction may service one or more of various purposes including:

    1. (a)
       preventing practitioners who are unfit to practise from practising;
    2. (b)
       securing the maintenance of professional standards;
    3. (c)
       ensuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
    4. (d)
       bringing home to the practitioner the seriousness of their conduct;
    5. (e)
       deterring the practitioner from any future departures from appropriate standards;
    6. (f)
       deterring other members of the profession who might be minded to act in a similar way; and
    7. (g)
       imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
11. [11]
    The respondent’s gross departure from professional standards deserves the denunciation of the Tribunal. Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.
12. [12]
    The respondent was suspended, and then terminated, from his employment soon after being charged with the offences the subject of the referral. The Health Ombudsman received notification of the respondent having been charged on 2 February 2018. After an investigation and an opportunity for the respondent to make submissions, on 16 April 2018, the Health Ombudsman took immediate action to suspend the registration of the respondent. His registration remains suspended.
13. [13]
    Given that the respondent has not placed any material before the Tribunal as to his current circumstances, the Tribunal cannot be satisfied that he is currently fit to practise. In those circumstances, a cancellation of registration, rather than any further suspension of registration, is required to meet the protective purposes of sanction. The respondent should not be permitted to return to practice until such time as he has satisfied the Nursing and Midwifery Board of Australia of his fitness to practise.
14. [14]
    Pursuant to section 107(3)(e) of the HO Act, the Tribunal cancels the respondent’s registration.
15. [15]
    The question then arises whether, as the applicant contends, the respondent should be disqualified for a period of time from applying for re-registration. In considering that question, the fact that the respondent has to date been suspended for a period of over three years is relevant.
16. [16]
    Comparative cases^[3] support the submission by the applicant that the conduct of the respondent could attract a total period of preclusion from practice in the range of four to five years. Thus, as further contended by the applicant, a period of disqualification from applying for re-registration in the range of 12 to 18 months. That is having regard to the objective gravity of the respondent’s offending, and before turning to the significant mitigating factor of the contribution of the respondent’s mental illness to his conduct.
17. [17]
    During the respondent’s sentencing in the Magistrates Court, the learned sentencing Magistrate had regard to a report of Dr Jeremy Butler, psychiatrist. The Tribunal has also had the benefit of the lengthy, detailed, and well-considered report dated 25 July 2019. It relevantly concludes as follows:

As beforementioned, although I don’t believe that Mr McAndrew was deprived of any of the three capacities with reference to the stealing and fraud charges, I do believe that, more than likely, he was significantly impaired in his ability to control his behaviour and to know that he ought not commit the act. I believe that his offending behaviour was out of character and, more than likely, would not have occurred if he had not been suffering from an unstable bipolar disorder at the time. Additionally, I believe that the prescription of Sertraline in August 2017 provided the basis of his subsequent mood instability and significantly contributed to his use of psycho-stimulants. Therefore, I believe that a prescription antidepressant, provided and taken in good faith, indirectly contributed to the stealing and fraud offending in December 2017 and January 2018.

Mr McAndrew has expressed significant feelings of regret and remorse pertaining to his offending. His shame has contributed to the development of social anxiety disorder which he will require assistance to overcome.

…

In my opinion, Mr McAndrew has suffered from a Bipolar 1 Disorder, characterised by episodes, mania, hypomania, and mixed-affective episodes. I believe that the prescription of Sertraline destabilised his mood and contributed to psycho-stimulant misuse, which caused additional destabilisation. I believe that his symptoms are now relatively in remission and that he is receiving appropriate treatment. As beforementioned, I believe that he has also developed a social anxiety disorder informed by shame and guilt linked to his offending. I don’t believe that he requires in-patient treatment.

I don’t believe that Mr McAndrew has a personality disorder or is psychopathic.

…

In my opinion, if Mr McAndrew continues to comply with treatment and abstains from illicit psycho-simulants, his risk of reoffending in a similar manner is low.

18. [18]
    The causative contribution of mental illness to the respondent’s conduct reduces, but does not eliminate, the significance of the consideration of general deterrence in determination of sanction.^[4] The significance of the contribution of the respondent’s mental illness to his conduct is such that, taking into account the period of over three years during which he has been suspended from practice, no further preclusion from practice is required to meet the protective purposes of sanction. The Tribunal declines to make an order disqualifying the respondent from applying for re-registration.
19. [19]
    The next issue requiring consideration is whether or not to make the prohibition order sought by the applicant. Given the lack of information as to the respondent’s current circumstances and health, it is appropriate that, at least for some time, he be prohibited from providing health services until such time as he satisfies the Board of his fitness to practise and obtains re-registration as a registered nurse. The purpose of such an order is to protect vulnerable patients if the respondent was to seek employment, for example, as an assistant in nursing in a nursing home, and practise in such a setting without the oversight of the Board.
20. [20]
    The question arises, though, whether there should be a cap to the period for which such an order would operate. If the respondent were not to seek to obtain re-registration as a nurse, but at some time seek to utilise his experience and skills as an unregistered health practitioner, should a prohibition order operate to prevent him from doing so indefinitely?
21. [21]
    In answering that question, the factor of the contribution of mental illness to the respondent’s conduct is important. The conduct and the respondent’s antecedents do not suggest an underlying character issue by way of a propensity to dishonesty.^[5] Rather, the material before the Tribunal suggests that the respondent engaged in out-of-character offending because of his mental illness at the time. The material before the Tribunal, albeit no more recent than 2019, does show subsequent remorse and insight of the respondent. It demonstrates that he sought and continued appropriate treatment to address his mental health issues, at least up until 2019. Although there is no material since 2019 as to the respondent’s continued treatment and mental health, one can reasonably infer that the salutary deterrent effect of the criminal proceedings and these proceedings, and the orders made by the Tribunal, would operate to deter the respondent from allowing himself to be in such a situation again.
22. [22]
    In all circumstances, a prohibition order, limited in time only by the possibility of the respondent obtaining re-registration as a registered nurse, may well have an unduly punitive effect and go beyond what is required to meet the protective purposes of sanction.
23. [23]
    Balancing all relevant factors, the potential period of the operation of a prohibition order should be capped at five years. It would not extend that long should the respondent, at an earlier time, satisfy the Board of his fitness to practise and obtain re-registration as a nurse. Given that the primary purpose of the prohibition order is to meet considerations of general deterrence, rather than restriction of the nature of practice by the respondent, the scope of the prohibition should not be limited as contended for by the applicant.
24. [24]
    Pursuant to section 107(4)(b) of the HO Act, the respondent is prohibited, until such time as he obtains registration as a registered health practitioner, or until the expiration of a period of five years from the date of this order, from providing any health service.
25. [25]
    The applicant also seeks an order, pursuant to section 62 of the HO Act, setting aside the decision of the Health Ombudsman to take immediate registration action by suspension of the respondent’s registration.
26. [26]
    Section 62(2) of the HO Act provides that a decision of the Health Ombudsman to take immediate registration action in relation to a registered health practitioner:

…continues to have effect until the earlier of the following happens –

1. (a)
   QCAT sets aside the decision –

1. (i)
   on application by the practitioner for a review of the decision; or

2. (ii)
   on referral of the matter to QCAT by the director of proceedings on the Health Ombudsman’s behalf;

2. (b)
   the Health Ombudsman revokes the suspension or removes the conditions (whichever is relevant) under section 65.

27. [27]
    It is difficult to see how, notwithstanding the terms of section 62(2), that the decision of the Health Ombudsman to suspend the respondent’s registration could continue to have effect now that the Tribunal has cancelled such registration. Nevertheless, there is no harm in making the order sought. Pursuant to section 62 (2)(a)(ii) of the HO Act, the Tribunal sets aside the decision of the Health Ombudsman to suspend the respondent’s registration dated 16 April 2018.