Nursing and Midwifery Board of Australia v Williams
[2021] QCAT 307
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- Nursing and Midwifery Board of Australia v Williams[2021] QCAT 307
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Nursing and Midwifery Board of Australia v Williams[2021] QCAT 307
Nursing and Midwifery Board of Australia v Williams[2021] QCAT 307
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing and Midwifery Board of Australia v Williams [2021] QCAT 307 |
PARTIES: | nursing and midwifery board of australia (applicant) v marlene verna williams (respondent) |
APPLICATION NO/S: | OCR279-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 29 September 2021 |
HEARING DATE: | 16 September 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC, Assisted by: Ms Fiona Banwell Ms Michelle Gunn Mr Michael Halliday |
ORDERS: |
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CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – conviction of criminal offence not involving work as a nurse – significance of offending – mitigating circumstances – professional misconduct – effect of suspension on others – sanction Health Practitioner Regulation National Law (Qld) s 193B(2), s 196 Health Care Complaints Commission v Cecil [2020] NSWCATOD 121 Health Ombudsman v Baumann [2021] QCAT 68 Health Ombudsman v DeCelis [2019] QCAT 140 Health Ombudsman v Marlin [2020] QCAT 142 Health Ombudsman v Tooth [2020] QCAT 463 Medical Board of Australia v Zhao [2021] VCAT 1053 Nursing and Midwifery Board of Australia v Abdulkadir [2020] VCAT 1446 Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 Nursing and Midwifery Board of Australia v Underwood [2020] VCAT 1376 Psychology Board of Australia v Cameron [2015] QCAT 227 |
APPEARANCES & | |
Applicant: | Ms K Reid, instructed by Clayton Utz Lawyers. |
Respondent: | Self-represented |
REASONS FOR DECISION
- [1]This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Practitioner Regulation National Law (Qld) (“the National Law”) s 193B(2). Under s 126 of the Health Ombudsman Act 2013 (Qld), I constitute the Tribunal, and am sitting with assessors Ms F Banwell, Ms M Gunn and Mr M Halliday in accordance with that Act.[1]
- [2]The respondent was at the relevant time a registered nurse, and hence a registered health practitioner for the purposes of the National Law. The applicant alleges that the respondent engaged in professional misconduct, in that she has been convicted of one count of supplying a dangerous drug within a correctional facility, contrary to the Drugs Misuse Act 1986 (Qld) s 6(1)(e) and (2)(d), and one count of giving a prohibited thing to a prisoner, contrary to the Corrective Services Act 2006 (Qld) s 128(1)(c). It is also alleged that she failed to give written notice of having been charged, and of her conviction, as required by the National Law, s 130.
- [3]The Tribunal has been provided by the applicant with material about the matter, and submissions in writing. The respondent is not legally represented, and has provided submissions in writing and orally, and cooperated in the proceeding. The parties have provided an agreed statement of facts for the proceeding.
Background
- [4]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 March 1957, and is now 64 years old. She was first registered as a registered nurse in 1978, and at the relevant time she was working as a registered nurse for a regional health service, where she had worked for many years. Prior to this matter, she has had no notifications or disciplinary matters.
- [5]On or about 12 August 2017, the respondent visited her adult son at a correctional facility where he was an inmate. While there she passed to him a quantity of tobacco, and about 1.3 grams of cannabis. This was observed by a correctional officer, who intercepted them and located the material. Once challenged, the respondent cooperated with the officers, and subsequently cooperated with the police, taking part in a recorded interview and providing police with a signed statement.
- [6]On 24 July 2019, the respondent appeared before the District Court and pleaded guilty to both charges. For supplying cannabis within a correctional facility she was imprisoned for four months, less than the usual sentence in such circumstances, which was suspended immediately with an operational period of twelve months. For the other offence, a conviction was recorded but she was not further punished. The sentencing judge said that the supply of cannabis was a very serious breach of prison security, and noted as mitigating features that she had pleaded guilty at a very early time, had facilitated the administration of justice by cooperating with the authorities by providing relevant information, had no criminal history, had shown remorse, and had provided supporting references. He also noted that she suffered from chronic back pain, and had been diagnosed with anxiety and depression prior to the offending. During the hearing he commented that it was “a sad case of a woman who’s worked her whole life, never been in trouble, being prevailed on by her children to do something that she probably regrets.” The prosecutor endorsed that summary.
- [7]Defence counsel submitted that she had been pressured into committing the offence, and in submissions to the Tribunal the respondent stated that this extended to her then home being vandalized, so that she had to relocate for fear of further action against her. As a result of the offending, she lost her employment late in 2017, although about a month later she obtained alternative employment, at an aged care facility in a rural area, where she has worked ever since. Her registration has not been suspended, and remains current. In her response to the referral, she said that she just wanted to be able to work until she retired, apparently at age sixty-five, which is now less than one year away.
- [8]As to the failure to notify, the respondent did not notify AHPRA in writing of being charged with these offences, and of being convicted of them, within the time required by s 130. She did however advise the Health Ombudsman of the charges by telephone eight days after being charged, and by her solicitor advised AHPRA of the conviction in writing nine days after it occurred, two days late. Clearly this was not a case of deliberately concealing these matters, and I regard these as only technical breaches of that provision.
Characterisation of conduct
- [9]The applicant submitted that the conduct reflected in the convictions amounted to professional misconduct. The convictions are within the extended definition of unprofessional conduct in the National Law, and because of the serious nature of the drug offence, reflected in a sentence of imprisonment, they were together 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. There are many cases where conviction of criminal offences has been characterized as professional misconduct, although the Tribunal was not referred to an example involving this particular offence. It did not occur in the course of her work as a nurse, and was not an offence of dishonesty, but because of its seriousness the relevant conduct in Count 1 of the referral amounted to professional misconduct.
- [10]The failure to comply with the National Law was also within the definition of unprofessional conduct in the National Law, so the conduct in Count 2 of the referral constituted unprofessional conduct.
Sanction
- [11]In imposing a sanction, the health and safety of the public are paramount.[2] Disciplinary proceedings are protective, not punitive in nature.[3] Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.[4] Insight and remorse on the part of the respondent are also relevant.[5] The fitness to practice of the respondent is to be assessed at the time of the hearing.[6] 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].
- [12]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 opposed this course, and asked to be allowed to continue to work until she reached retirement age.
- [13]The applicant relied on a number of previous decisions, some of which involved stealing from an employer, usually to obtain Schedule 8 or Schedule 4 drugs. In two of these the practitioner’s registration had been suspended, or not maintained, so that there was a significant time away from the profession already, and the practitioner was just reprimanded: Health Ombudsman v Baumann [2021] QCAT 68 (nurse); and Health Ombudsman v DeCelis [2019] QCAT 140 (pharmacist). In Health Ombudsman v Tooth [2020] QCAT 463, a similar case, the nurse was reprimanded and subject to conditions for further education and a reflective practice report. In Nursing and Midwifery Board of Australia v Underwood [2020] VCAT 1376 a practice nurse stole money from her employers to spend on gambling; she had allowed her registration to lapse, she was reprimanded, and a preclusion period of just under six months was imposed.
- [14]In Health Ombudsman v Marlin [2020] QCAT 142, disused prescription medication was taken with the idea of applying it for veterinary use, although it was not accepted for that, and was just left at home. There was significant time away from nursing, and no sanction as such was imposed. Other matters involved nurses stealing from vulnerable elderly patients: Nursing and Midwifery Board of Australia v Abdulkadir [2020] VCAT 1446, where credit card details were used dishonestly and a prohibition order for two years was made; and Health Care Complaints Commission v Cecil [2020] NSWCATOD 121, where a purse and a wallet were stolen, and her registration was cancelled and a preclusion period of two years was imposed.
- [15]The applicant submitted that these were offences of dishonesty, but I do not think that is correct. The respondent did something prohibited by law, so it was criminal conduct, but it was not an offence like stealing or fraud. The fact that she succumbed to family pressure to commit the offences shows poor judgment but strong maternal attachment, rather than a more general propensity for unlawful conduct which would place in doubt her fitness to practice. This is consistent with her absence of prior criminal history, and of prior disciplinary history. In the circumstances I consider she is fit to practice.
- [16]The fact that these offences were committed in response to pressure also reduces the need for re-education in ethics. In any case, imposing a condition for further education would be of little relevance in view of her limited time left in the workforce. She has shown remorse by her cooperation with police and early plea of guilty, and her cooperation in this proceeding. The breaches of s 130 were technical, and not indicative of an attempt to conceal her position.
- [17]The offending, particularly the drug offence, was serious, as the sentencing judge said, although his assessment of her criminality was reflected in a head sentence shorter than usual for such an offence. There are a number of mitigating factors. The offences did not involve her work as a nurse; they were committed in response to family pressure; there was a high level of cooperation with police, and an early plea of guilty, showing remorse; the respondent has cooperated in this proceeding; she had some mental health issues at the time; and she has otherwise no criminal or disciplinary history. She lost her long-standing employment as a result of the offending, and will soon reach retirement age.
- [18]Apart from that, I understand that, in the situation currently prevailing in the community, there is a severe shortage of experienced nurses, particularly acute in the aged care area, particularly in rural areas. This was not disputed by the applicant; indeed, the situation in rural aged care was described as a crisis. The respondent said that she was the only registered nurse working at the facility apart from an older nurse who did only paperwork. The assessors tell me that if her registration were suspended so that she was unable to work there, enrolled nurses and assistants in nursing working there would not be able to work, as they can work only under the supervision of a registered nurse, and in those circumstances there was a real risk that the facility would have to close.
- [19]The applicant referred me to the decision in Medical Board of Australia v Zhao [2021] VCAT 1053. In that matter, which involved a medical practitioner engaging persistently in inappropriate prescribing of potentially harmful medication, counsel argued that, if a suspension of registration was otherwise appropriate, it would be more appropriate to impose a fine “so as not to put at risk those patients who rely upon the respondent, particularly in this difficult time of COVID-19.” [152]. This was rejected by the Tribunal as without merit, on the basis that it had “no evidence of any special skills or expertise which would not otherwise be available, in her absence; and … no evidence of any service to her clients, either specifically or generally, which could not be provided by other medical practitioners.” [153].
- [20]In the case of a medical practitioner in an urban area, where existing patients could easily find an alternative practitioner, such an approach is understandable. Current circumstances may well not have impacted so much on the availability of medical practitioners as of nurses, particularly of experienced nurses. The respondent’s current employment, and the shortage of rural aged care nurses, are uncontroversial. Some additional detail was provided by the respondent at the hearing, which in the circumstances the applicant could not answer, but the assessors regarded her statements as plausible and consistent with their understanding of the situation, and in the circumstances I am prepared to give it some weight. Zhao is distinguishable on the facts.
- [21]If a practitioner is providing services which have some particular value to the community or a particular part of it, I consider that that is a factor which can be taken into account in relation to sanction. As well, it has been said that a reprimand is in itself a significant sanction.[7] In this matter, I do not consider that it is in the public interest to deprive the community of the respondent’s services at this time when there is no reason to be concerned about the quality of her work as a nurse. In all the circumstances I do not consider that the health and safety of the public are best served by suspending the respondent’s registration.
- [22]I have had the benefit of the assistance of the assessors in this matter. Accordingly the decision of the Tribunal is that:
- The conduct of the respondent in the respect alleged in Count 1 of the referral was professional misconduct, and in the respect alleged in Court 2 of the referral was unprofessional conduct.
- The respondent is reprimanded.
- The parties bear their own costs of this proceeding.
Footnotes
[1] Health Ombudsman Act 2013 (Qld), s 126. For their function, see s 127.
[2]The National Law s 3A.
[3] Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 at [122].
[4] Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Health Ombudsman v Kimpton [2018] QCAT 405 at [79].
[5] Medical Board of Australia v Blomeley [2018] QCAT 163 at [140] – [143].
[6] Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [31].
[7] Psychology Board of Australia v Cameron [2015] QCAT 227 at [25]; Health Ombudsman v Baumann [2021] QCAT 68 at [18].