Health Ombudsman v OOD[2021] QCAT 388

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against OOD (respondent), pursuant to section 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Office of the Health Ombudsman (applicant).
2. [2]
   The applicant alleges that the respondent has behaved in a way that constitutes professional misconduct and seeks orders by way of sanction. The respondent has admitted the allegations in her Response and the parties have filed a Statement of Agreed Facts. The referral contains a single allegation related to the respondent’s plea of guilty in the Supreme Court of Queensland^[1] to 12 offences under the Drugs Misuse Act 1986 and one offence under the Weapons Act 1990.

Background

3. [3]
   The respondent is 40 years old and was 37 years old at the time of her criminal conduct. She obtained a Bachelor of Nursing and a Bachelor of Midwifery in 2014.
4. [4]
   The respondent was first granted registration by the Nursing and Midwifery Board of Australia (the Board) on 22 December 2014. She held general registration both as a Registered Nurse in Division 1 and as a Midwife, pursuant to the Health Practitioner Regulation National Law (Queensland) (National Law).
5. [5]
   The respondent was employed as a registered nurse in Wynnum between 4 April 2016 and 17 June 2018, and later as the practice manager at that clinic. She resigned from her position as the practice manager on 17 June 2018, prior to her criminal conduct. She also notified the Australian Health Practitioner Regulation Agency of her conduct in December 2018, and again in February 2020.
6. [6]
   The respondent has been, and remains, unregistered since 2 July 2020 after failing to re-register as either a registered nurse or a midwife.
7. [7]
   The Tribunal^[2] is able to deal with the respondent’s admitted conduct in these proceedings “as if (she) was still  registered health practitioner.”

Conduct

8. [8]
   On 13 December 2018, the police executed a search warrant at the unit the respondent shared with her then partner DDD.
9. [9]
   Police found a quantity of drugs and drug paraphernalia in that unit. This included:

   1. (a)
      Three clip seal bags containing 2.8 grams, 1.74 grams and 0.22 grams of a crystalline substance. The total amount of pure methylamphetamine within this substance was 3.455 grams. The purity of the substance ranged between 67.6% to 75.7%. (Count 1 – Methylamphetamine exceeding 2 grams)
   2. (b)
      Forty brown tablets marked with a “Rolls Royce” emblem. The total weight of the tablets was 8.023 grams, of which 2.792 grams was pure 3,4-Methylenedioxymethamphetamine (MDMA). The purity of those tablets was 34.8%. (Count 2 – MDMA exceeding 2 grams)
   3. (c)
      A clip seal bag containing 0.239 grams of pure heroin. (Count 3 – Heroin)
   4. (d)
      A box of OxyContin tablets: five sealed blister packs labelled “OxyContin 80mg” containing a total of 22 round green tablets (consistent with the pharmaceutical product OxyContin stated to contain oxycodone, an opioid medication used for pain management). There was no label or prescription present for the OxyContin. (Count 4 – Oxycodone)
   5. (e)
      Two plastic containers containing baked goods (three batches of 22, 23 and 1 piece respectively) which all contained tetrahydrocannabinol, and a yellow container holding 0.363 grams of a brown oil that also contained tetrahydrocannabinol. (Count 5 – Tetrahydrocannabinol)
   6. (f)
      A purple pencil case, containing hundreds of unused clip seal bags, heat-sealed plastic bags, weights, measuring spoons, empty capsules and multiple mobile phones. (Count 6 – Possessing a thing for use in connection with supplying a dangerous drug)
   7. (g)
      A glass coil condenser. (Count 7 – Possessing a relevant thing)
   8. (h)
      Six mobile telephones and an iPad. The search warrant ordered that a specified person give a police officer access to a device and give him or her the necessary information to access the device. The respondent refused to provide the passcode for her electronic devices. (Count 9 – Contravening an order about information necessary to access information stored electronically)
   9. (i)
      Eight unused glass pipes in vacuum sealed bags as well as a used glass pipe. (Summary Charge 1 – Possessing utensil or pipe etc for use)
   10. (j)
       Glassware in kitchen and laundry cupboards. (Summary Charge 2)
   11. (k)
       A knife concealed as a black bank card, inside the respondent’s purse. (Summary Charge 3)
10. [10]
    While the arresting police officer was inspecting one of the respondent’s telephones, he observed two notifications from Australia Post regarding two parcels awaiting collection from a parcel locker. Police later executed a search warrant at that post office and obtained two parcels, both addressed to the respondent.
11. [11]
    Both parcels were seized and inspected, and each was found to contain a clip seal bag. Their contents were analysed and found to contain dangerous drugs. One bag contained 6.954 grams of a substance in which methylamphetamine was detected. The total amount of pure methylamphetamine was determined to be 5.166 grams, a purity of 74.3%. (Count 10 – Methylamphetamine exceeding 2 grams)
12. [12]
    The other clip seal bag contained 3.570 grams of a substance in which ketamine was detected. (Count 11 – Ketamine)
13. [13]
    The respondent was arrested and taken to the Brisbane City Watchhouse. She declined being interviewed by police and was issued with a notice to appear. She was subsequently granted bail, and spent no time in pre-sentence custody.
14. [14]
    The respondent was convicted and sentenced on the basis that:

    1. (a)
       The drugs were possessed for a commercial purpose and belonged to her then partner and co-offender; but
    2. (b)
       The respondent knew of the existence of the drugs and their location within both the unit and the Australia Post locker; and
    3. (c)
       She accessed those drugs and had access to them.
15. [15]
    Her co-offender was convicted in the Supreme Court of Queensland on 5 November 2019 but his sentence was not used for comparative purposes.
16. [16]
    On 13 February 2020, the respondent pleaded guilty to, and was convicted of the ten indictable offences and three summary offences.
17. [17]
    The respondent was sentenced to a head sentence of two years’ imprisonment but was ordered to be released on parole immediately.
18. [18]
    A serious drug offence certificate was issued in respect of Count 1.
19. [19]
    In sentencing the respondent as a party to the offending of her then partner DDD who was the principal offender, Burns J referred to her becoming addicted to methylamphetamine under her partner’s influence. He was described by his Honour as “a very violent and controlling man”, and that she “was there to do his bidding.”^[3] He also referred to the fact that the respondent had been the victim of domestic violence. His Honour’s remarks go a long way to explain why an otherwise decent law abiding professional nurse and midwife should sink so low.

Characterisation of the Conduct

20. [20]
    The applicant contends that the admitted conduct constitutes “professional misconduct” as defined in either of the first two limbs of the definition of that term in the National Law.^[4] The applicant has the onus of proving the allegation. The respondent has filed an affidavit in these proceedings^[5] in which she refers to her decision not to seek re-registration in May 2020 as a consequence of which she has been unregistered since 2 July 2020.^[6]
21. [21]
    Clearly her convictions in the Supreme Court of drug offences, in particular Counts 1 and 2, albeit on the basis of the party provisions of the Criminal Code and as a result of the influence of DDD, who was violent and controlling towards her, constitutes “conduct that is substantially below the standard reasonably expected of a registered health practitioner”.
22. [22]
    Health Ombudsman v Hills [2020] QCAT 516 involved a dentist who was convicted of cultivating cannabis in what was described as a reasonably sophisticated hydroponic set up. His offending is perhaps less serious because there was no allegation of commerciality and he was using cannabis to assist his sleep apnoea.
23. [23]
    The relevant features of the Respondent’s conduct demonstrating it being substantially below the expected standard include:

    1. The seriousness of the conduct itself, as demonstrated by:
       1. The criminal nature of the conduct;
       2. The maximum sentences which attached to the various offences, including 25 years imprisonment for counts 1, 2 and 10;
       3. The quantity and variety of drugs located;
       4. The commercial purpose attaching to the possession of the dangerous drugs;
       5. The harmful nature of the dangerous drugs found in her possession;
    2. The extent and seriousness of the departure from the required standard of conduct.^[7]
24. [24]
    By virtue of section 41 of the National Law, the Board’s Code of Conduct for Midwives is admissible in proceedings of this nature as evidence of what constitutes appropriate professional conduct or practice for the health profession.
25. [25]
    Relevantly, the Code provides^[8] that midwives “..should not engage in unlawful behaviour as it may ….damage the reputation of the profession.” It further provides that midwives must not participate in unlawful behaviour and understand that unlawful behaviour may be viewed …. as professional misconduct and have implications for their registration.
26. [26]
    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.

Sanction

27. [27]
    Proceedings of this nature are protective and not punitive in nature. The paramount principle that informs the exercise of the Tribunal’s discretion to make orders by way of sanction against a health practitioner who has behaved in a way that constitutes professional misconduct is the health and safety of the public.^[9]
28. [28]
    The respondent has taken significant and commendable steps to address her drug addiction and personal traumas including the effects of the domestic violence she suffered at the hands of DDD. Burns J referred to her considerable efforts at the date of sentence to rehabilitate and address the underlying causes of her conduct;^[10]which she updates in her affidavit.^[11]
29. [29]
    There is no doubt that she is genuinely remorseful for her conduct, has significant insight, and has taken steps to further advance her education.
30. [30]
    She is completing further postgraduate studies in counselling, alcohol and drug studies, including a Graduate Diploma of Counselling Alcohol and Drug Studies, with plans to complete this by June 2022. She has also completed short courses in parenting. She states in her affidavit that she wants to be able to learn from her experiences, in conjunction with her knowledge of nursing, and positively support others with substance use issues.
31. [31]
    The Applicant seeks, amongst other orders, that the Respondent be reprimanded and that she be disqualified from applying for registration for the remainder of her criminal sentence (i.e., until 13 February 2022).
32. [32]
    When considering sanction in circumstances involving a criminal conviction where the sentence has not yet been satisfied, it is appropriate to have regard to the position which the practitioner would occupy were he or she to apply afresh for registration.
33. [33]
    The decision of Council for the Regulation of Health Care Professionals v General Medical Council and Fleischmann^[12] was an appeal from the Professional Conduct Committee (“the Committee’’) of the General Dental Council and the Committee’s decision to suspend Mr Fleischmann’s registration for twelve months. Mr Fleishmann was a dentist convicted of twelve counts relating to various indecent images of children of varying ages. Mr Fleishmann was sentenced to a Community Rehabilitation Order for three years, was ordered to remain on the Sex Offender’s Register for five years and was prohibited from unsupervised access to children under 16 years. It was a condition of the order that he participate in a sex offenders’ treatment programme.
34. [34]
    In Fleischmann, Newman J described the effect of the Committee’s decision:

"Since Mr Fleischmann had been sentenced to a Community Rehabilitation Order for a period of three years from December 2003 (with conditions), it followed that, if he was suspended for the maximum period of twelve months, he would be able to resume his practice before he had satisfied his sentence. In the words of Sir Thomas Bingham in Bolton v Law Society (1994) 1 WLR 512, 518 F-G, this would be before he had "... paid his debt to society".^[13]

35. [35]
    Newman J stated a general principle for cases of this type:

"I am satisfied that, as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for the payment of a fine. The rationale for the principle is not that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned If the reputation of the profession is to be maintained."^[14]

36. [36]
    The rationale for this general rule was described by reference to a practitioner applying for registration:

"The requirement that an applicant for registration be of "good character" secures the need for the public to be protected by the maintenance of high standards and the high reputation of the profession which has to be served at the stage of an application for registration as well as in disciplinary proceedings. The protection of the public will not be served by the application of a different standard at erasure from that which is applied when considering registration.

"I recognise that the variety of circumstances presented by individual cases must be weighed but, where grave and serious offences are under consideration, personal factors, such as character, previous history and the practitioner's livelihood as a dentist, will invariably be insufficient to produce a result different from that which would have applied had the individual been an applicant for registration."'^[15]

37. [37]
    A similar approach has been used in Australia, as seen in the decision of Pharmacy Board of Australia v Kozanglu.^[16] In that case, on 23 April 2015, the practitioner was sentenced in respect of trafficking offences to three years imprisonment, suspended after nine months on the proviso that he be of good behaviour for three years. At hearing, the Tribunal imposed a three year period of disqualification, stating:

“In July 2016, Mr Kozanoglu had approximately 18 months remaining of his sentence, which was to end in March 2018. The three-year disqualification includes this period and a further 18 months.

“It would have been incongruous to allow Mr Kozanoglu to apply for registration while he was serving a period of suspended sentence. It could not be said that he could meet the test of being a fit and proper person for registration while still under sentence. Therefore, the 18 months to run from the end of his sentence was an appropriate length of disqualification."^[17][18]

38. [38]
    I agree with the applicant, by reference to the approach taken in similar Tribunals in other States in similar factual circumstances, that any period of disqualification from applying for registration should be co-extensive with the respondent’s remaining term of imprisonment. I agree, that it would be incongruous, and inconsistent with important principles of deterrence and maintenance of public confidence in the profession, to permit her to apply for registration while she is still on parole for serious drug offending.
39. [39]
    As she is not registered sanctions such as suspension and cancellation are not available. Ordinarily, such serious conduct would attract a period of suspension, but, as the applicant submits, this is an unusual case in which the context in which she offended is very relevant.
40. [40]
    Relevantly, in comments made for the attention of this Tribunal, His Honour Justice Burns emphasised during his sentencing remarks the basis upon which Respondent was sentenced:

“So far as your career as a nurse is concerned, may I say this: it seems to be assumed that that career is over and that you have no way of continuing giving your convictions for these offences. But I think the authority responsible for that decision should, with respect, pay close attention to the factual basis upon which I have sentenced you today. At all relevant times, you were addicted to methylamphetamine. You were introduced to that drug and to some substantial degree, prevailed upon by your then partner to use it. That resulted in an addiction, a problem that is essentially a medical condition which has legal consequences. You have been dealt with today on the basis that none of the drugs found in your possession were yours. Although, of course, you had access to some of it and used some of it because of your addiction. You have taken admirable steps since then to address your addiction and, no doubt, will continue to do so.

“It would be a most unfortunate consequence of all of this if your convictions for these offences meant that you could never return to that profession. I suspect that as someone who works so hard to obtained qualifications as a nurse and a midwife, and had a passion that role, you were an excellent nurse and midwife and you can be one again.”^[19]

41. [41]
    Additionally, the Respondent has been unregistered for approximately twelve months in circumstances where it would be appropriate to treat that period as a de facto period of disqualification.^[20]
42. [42]
    I agree with the applicant that in all the circumstances of this case, it is highly unlikely that the respondent will repeat her offending behaviour. It is also relevant to sanction that, by her own actions, she has effectively precluded herself from the practice of her profession, which she clearly loved, for almost a year.
43. [43]
    I agree with the applicant, by reference to the cases referred to in its submission^[21], that ordinarily, conduct of this nature would justify a suspension of between 3 and 6 months.

Costs

44. [44]
    The orders of the Tribunal will reflect the default position pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Orders

45. [45]
    For the reasons set out above, the Tribunal makes the following orders:

    1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the Respondent has behaved in a way that constitutes professional misconduct.
    2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Respondent is reprimanded.
    3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the Respondent is disqualified from applying for registration until 13 February 2022.
    4. Each party to the proceeding is to bear the party’s own costs for the proceeding.