Health Ombudsman v Edwards[2021] QCAT 305

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (“the Act”) s 103(1)(a), s 104.  Under s 126 of the Act, I constitute the Tribunal, and am sitting with assessors Ms F Banwell, Ms M Gunn and Mr M Halliday in accordance with the Act.^[1] 
2. [2]
   The respondent was at the relevant time a registered nurse, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (“the National Law”). The applicant alleges that the respondent engaged in professional misconduct, in that she has been convicted of one count of stealing contrary to the Criminal Code s 398.  The Tribunal has been provided by the applicant with material about the matter, and submissions in writing.  The respondent is legally represented, and has provided submissions in writing and filed two affidavits.  The parties have provided an agreed statement of facts for the proceeding.

Background

3. [3]
   From the agreed statement of facts, and other material before the Tribunal, the relevant facts, which the Tribunal accepts,  appear to be as follows.  The respondent was born in July 1961, and is now 60 years old.  She was first registered as a registered nurse in 1982, and at the relevant time she was working as a registered nurse at a private hospital, where she had worked for over twenty years.  Prior to this matter, she had no notifications or disciplinary matters.  In the last three years, however, she received certain treatment from that hospital which she regarded as unfair.  The Tribunal is not in a position to investigate the rights and wrongs of this, and merely notes that at the time of the relevant incident she was not happy in her work, and feeling bullied. 
4. [4]
   On 20 March 2020, the respondent was supposed to be providing a patient with one Endone tablet.  She had followed the procedure for obtaining such a tablet for a patient, and was proceeding to the patient when she was intercepted by a supervisor, who discovered that the tablet she was taking to give to the patient was not Endone, but a basic painkiller.  The respondent was not able to explain the substitution.  The employer drew the inference that she had taken the Endone tablet.  She was relieved of her duties, and the next day she resigned from her position at the hospital.  She has not worked since. 
5. [5]
   On 29 May 2020, the applicant took immediate registration action against the respondent and suspended her registration.  She subsequently underwent a health assessment by a psychiatrist nominated by AHPRA, who regarded her as fit to practice. Her registration remains suspended. 
6. [6]
   The police were notified by the hospital, and in due course the respondent was charged with one count of stealing, in respect of the Endone tablet.  On 28 August 2020, the respondent pleaded guilty in a Magistrates Court to that offence, and was fined $1,500.  No criminal history was alleged, and no conviction was recorded. The respondent did not report to the Nursing and Midwifery Board that she had been charged with stealing, as required by the National Law s 130.  On 24 September 2020, the Board cautioned her in relation to this.  That omission does not form part of the referral. 
7. [7]
   The respondent has retained her union membership, and has undergone some continuing professional development.  She would like to return to nursing, but in a less stressful position than that with her previous employer. 

Medical Evidence

8. [8]
   The respondent attended a health assessment by a psychiatrist nominated by AHPRA, and a report was provided dated 10 July 2020.  The respondent was said to have had a Major Depressive Disorder in remission, and an Adjustment Disorder, with mixed anxiety and depressed mood.  This suggests that to some extent the respondent had mental health difficulties at the time of the behaviour resulting in the conviction.  The psychiatrist did not consider that she had a relevant substance use disorder, and regarded her as fit to practice without conditions.   
9. [9]
   When speaking to the psychiatrist the respondent categorically denied that she had taken the Endone tablet.^[2]  She has however since then pleaded guilty to the charge of stealing, and agreed with the statement of facts which sets out the circumstances leading to an inference that she committed the offence.  That statement does not contain an admission of having taken the tablet, but she has not put before the Tribunal evidence or submissions disputing that she committed the offence.  The respondent has also provided reports from her General Practitioner and a Psychologist she has been seeing, and both are positive about her mental health since ceasing employment.    

Characterisation of conduct

10. [10]
    The applicant submitted that the conduct reflected in the conviction amounted to professional misconduct.  The conviction is within the extended definition of unprofessional conduct in the National Law, and because of its nature, involving a misuse of the employer’s property and a failure of care for the patient, it was an example of such conduct that fell substantially below the conduct expected of a registered nurse of an equivalent level of training and experience.  It is unnecessary to consider whether it otherwise satisfied the definition. 
11. [11]
    Such a conclusion is consistent with a number of decisions of the Tribunal dealing with cases  of nurses who have stolen medication from their employers.   For example, in Health Ombudsman v Macdonald [2016] QCAT 473 the respondent was a registered nurse who stole 11 boxes of a Schedule 4 medication from her employer. This behaviour was said by the Tribunal to represent a significant breach of trust and an abuse of position, which necessarily undermined the confidence that the public must retain in the profession. A finding of professional misconduct was made, and the respondent’s registration was suspended for 6 months. That was an isolated incident, it did not involve Schedule 8 drugs, and the medication was obtained for the use of a relative. The Hon J B Thomas QC, who constituted the Tribunal, said at [27]:

The stealing of the prescription drugs from an employer by a nurse represents a significant breach of trust and abuse of position which is not tolerable within the profession. It is simply conduct that nurses must not engage in. Such conduct necessarily undermines the confidence that the public must retain in the profession.

12. [12]
    Other cases include Health Ombudsman v Jamieson [2017] QCAT 172 at [27], and Health Ombudsman v Montalvo [2020] QCAT 317, where a number of earlier decisions are summarised.  As the applicant pointed out in submissions, the conduct was a breach of the Code of Conduct for Nurses, issued by the Nursing and Midwifery Board of Australia. This is something which can be taken into account under the National Law s 41.  The relevant conduct in Count 1 of the referral constituted professional misconduct. 

Sanction

13. [13]
    In imposing a sanction, the health and safety of the public are paramount.^[3] Disciplinary proceedings are protective, not punitive in nature.^[4] Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[5] Insight and remorse on the part of the respondent are also relevant.^[6]  The fitness to practice of the respondent is to be assessed at the time of the hearing.^[7]  A number of factors relevant or potentially relevant to sanction were identified in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55]. 
14. [14]
    The applicant seeks that the respondent be reprimanded, and that is appropriate.  The applicant also seeks that the registration of the respondent be suspended for a period of three to six months.  The respondent in submissions did not oppose this course, but urged the Tribunal to apply sensible moderation to the lower level of the proposed range. 
15. [15]
    The applicant relied on three decisions of Tribunals in support of the proposed sanction.  In Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403, a nurse stole one vial of morphine and about 5 Oxycontin tablets from her employer, the latter from a Webster pack, substituting similar tablets.  She had not worked for 2 ½ years, and did not intend to return to nursing, and was disqualified from applying for registration for six months.  This conduct was more serious than the present, and there was no evidence of mental health issues. 
16. [16]
    In Health Ombudsman v Montalvo [2020] QCAT 317, a nurse over ten days took six ampules of morphine and two ampules of fentanyl from her work, seeking to cover her tracks with false entries in the drug records.  She pleaded guilty to one charge, for which she received a sentence of two months’ imprisonment, suspended forthwith; other charges were then dropped.  She lost her job and had not renewed her registration, and did not take part in the Tribunal proceedings. In 2016 she was taking prescription medication for a medical condition, and one day when she had run out of her own supply she stole from her employer one such tablet, to take; for this she was cautioned.  A preclusion period of six months was imposed, on top of twenty months unregistered and 28 months away from nursing.  Because of the quantity taken, the falsification of records and the previous conduct, this was a significantly worse case.  There was no evidence of mental health difficulties, and little evidence of insight or remorse, just her self-notification and plea of guilty. 
17. [17]
    That case was said to be more serious conduct than in Health Ombudsman v Antley [2016] QCAT 472, where a nurse stole blank authority prescription forms from her employer, and used them to obtain Schedule 8 drugs, to self-medicate a real and painful medical condition. She had voluntarily cancelled her registration, and did not participate in the hearing, having deteriorating mental health issues, which were not relied on as an excuse: [40].  The Hon J B Thomas QC, who constituted the Tribunal, said at [46] that a large number of cases indicated a range of six months to three years for cancellation, suspension or postponement as a result of such conduct.  She was disqualified for nine months, on top of over seven months since she cancelled her registration. 
18. [18]
    In Health Ombudsman v CSM [2020] QCAT 55, an enrolled nurse was found with syringes, needles, broken vials labelled Diazepam and Serenone, and unlabelled broken vials, a box of Toradol ampoules labelled in another person’s name, and four empty boxes of Tramadol, in a kitchen bin.  She pleaded guilty to one count of stealing as a servant, and one of unlawful possession of restricted drugs, and was placed on probation.  There was evidence she had significant mental health issues at the time, which were apparently continuing although she had not engaged with the proceeding.  She had allowed her registration to lapse, and had no intention of returning to health care work, having been away from nursing for about eighteen months.  No preclusion period was imposed.  The evidence of mental health problems was stronger in that case, but the offending was more serious, because of the quantity stolen, although it did not involve interception of patient medication. 
19. [19]
    There are other examples where a nurse who has been away from the profession for some time following stealing from an employer has not had any preclusion period or suspension imposed: Health Ombudsman v Jamieson [2017] QCAT 172; Health Ombudsman v Hardy [2018] QCAT 473; Health Ombudsman v Mullins [2019] QCAT 339; Health Ombudsman v Bailey [2020] QCAT 161; Health Ombudsman v Baumann [2021] QCAT 68.  All of these involved a longer period away from nursing than in the present case, but the real question is, what period away from nursing overall is appropriate in order properly to fulfill the purposes of a disciplinary proceeding in the circumstances of this case. I agree with the approach in Antley (supra) that what matters is, generally, total time away from the profession rather than the duration of a specific sanction.^[8] 
20. [20]
    The serious aspects of this matter are the criminality, the breach of trust, the involvement of a Schedule 8 drug which is subject to special restrictions,^[9] and the interception of presumably necessary medication for a patient, which is a significant failure of patient care.  Also relevant is the denial to the psychiatrist of committing the offence,^[10] although she did subsequently plead guilty to the charge.  On the other hand, this was an isolated incident, involving only one tablet; the respondent did plead guilty to the charge, and has subsequently undertaken relevant CPD courses, so as to show remorse and insight; she was at the time suffering from mental health problems which may well have interfered with her judgment, which problems have since resolved and she has been assessed as fit to practice;^[11] and that she has been away from nursing for about eighteen months, for most of which her registration has been suspended. 
21. [21]
    Ordinarily, general deterrence would be a significant factor in a case of stealing medication.  In the present case, the involvement of mental health problems reduces the significance of this aspect, and the fact that she lost her employment resulting in substantial financial loss, as well as the significant fine imposed, serve to show the cost of such conduct to her, apart from any sanction imposed by the Tribunal.  In view of her many years of service without previous disciplinary issues, and the evidence of improvement in her mental health, personal deterrence is not of great significance. 

Conclusion

22. [22]
    I have had the benefit of the assistance of the assessors in this matter.  In all the circumstances of this matter, I consider that eighteen months away from nursing is long enough to amount to a sufficient sanction.  The suspension imposed by the applicant under s 156 should be lifted, and otherwise the respondent should be reprimanded.  Accordingly, the decision of the Tribunal is that:

1. The conduct of the respondent in the respect alleged in the referral was professional misconduct.
2. The respondent is reprimanded.
3. The suspension of the registration of the respondent imposed by the applicant on 29 May 2020 is lifted. 
4. The parties bear their own costs of this proceeding.