Health Ombudsman v McDowell[2021] QCAT 402

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against Robert Steven McDowell (respondent), pursuant to sections 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 parties have agreed on a statement of facts and there are no factual issues in dispute. The relevant conduct related to the respondent’s conduct at his place of employment leading up to his plea of guilty to one count of stealing as a servant in the Brisbane Magistrates Court on 11 February 2020.

Background

3. [3]
   The respondent is 43 years old and was 41 years old at the time of his conduct. He obtained a Diploma of Higher Education (Child Branch) in 2001, qualifications in Paediatric Emergency Nursing from the College of Nursing in 2010, and a Masters in Clinical Nursing in 2013. He has completed a Certificate IV in Training and Assessment, and is presently enrolled in a psychology degree at James Cook University. His earlier training in nursing was in the United Kingdom.
4. [4]
   The respondent was first granted registration by the Nursing and Midwifery Board of Australia on 21 October 2004.
5. [5]
   Between March 2005 and November 2016, the respondent was employed in the emergency department of a Sydney hospital.
6. [6]
   The respondent has a prior notification in respect of similar conduct that occurred in 2016 in New South Wales.
7. [7]
   On 21 August 2017, the Nursing and Midwifery Council of New South Wales imposed conditions on his registration. These conditions were removed on 9 March 2018.
8. [8]
   On 11 September 2018, the respondent applied for non-practising registration. On 3 January 2019, the Australian Health Practitioner Regulation Agency (AHPRA) wrote to him confirming that the Board accepted his application.
9. [9]
   Between 9 April and 13 August 2018 he held at different times two positions in a major Brisbane Children’s Hospital. One of those positions, which he held from 23 April, was as a registered nurse.

Conduct

10. [10]
    On about 13 August 2018, an informant reported a discrepancy in the fentanyl records in the Emergency Department. A subsequent audit of the records identified a total of 124 suspect entries of fentanyl during the period 1 April 2018 to 13 August 2018.
11. [11]
    All of the 124 suspect entries were made using:

    1. (a)
       False patient names;
    2. (b)
       Names of patients who did not require fentanyl; or
    3. (c)
       Names of patients who were not admitted at the time of the register being completed.
12. [12]
    The respondent admitted to:

    1. (a)
       Taking ampoules of fentanyl from both the Emergency and Short Stay Units at the  Children’s Hospital;
    2. (b)
       Taking the schedule drugs to self-medicate for his depression and suicidal thoughts;
    3. (c)
       Making false entries – in the form of fake names and fake signatures – in the drug books to conceal his conduct; and
    4. (d)
       Engaging in the above conduct multiple times over a period of months.
13. [13]
    In the applicant’s Tribunal submission,^[1] the conduct is particularised as:

    1. involved making false entries for fentanyl during 9 April 2018 and 13 August 2018;
    2. involved a total of 124 false entries;
    3. the entries used either:
       1. false patient names; or
       2. names of patients that did not require fentanyl; or
       3. names of patients that had already been discharged;
    4. the entries involved fake signatures;
    5. the fentanyl was taken from both the Emergency Department and Short Stay Unit;

…

Registration Status and Notifications

14. [14]
    On 17 August 2018, the respondent was suspended from both of his positions at the major Brisbane hospital due to the conduct the subject of the criminal convictions. He resigned from both positions on 21 November 2018.
15. [15]
    On 19 August 2018, the respondent self-notified the Australian Health Practitioner Regulation Agency (AHPRA) about his conduct.
16. [16]
    On 22 August 2018, a nurse at the major Brisbane hospital made a notification to the applicant regarding the respondent’s conduct.
17. [17]
    On 11 September 2018, Dr Dhingra, consultant psychiatrist at the Royal Brisbane and Women’s Hospital (RBWH), made a notification to the applicant in which they provided details of the respondent’s conduct and the treatment being received by the respondent.
18. [18]
    On 11 September 2018, the respondent applied for non-practising registration. On 3 January 2019, AHPRA wrote to the respondent to confirm that the Board had accepted the respondent’s application for non-practising registration.
19. [19]
    Since 3 January 2019, the respondent has held non-practising registration as a Registered Nurse in Division 1.

Criminal Charges and Conviction

20. [20]
    The respondent was charged by Queensland Police Service with one count of stealing by clerks and servants on 6 September 2019.
21. [21]
    On 11 February 2020, the respondent pleaded guilty in the Brisbane Magistrates’ Court to one count of stealing by clerks and servants, pursuant to section 398.6 of the Queensland Criminal Code.
22. [22]
    No conviction was recorded and the respondent was sentenced to:

    1. (a)
       Probation for a period of two (2) years including submission for assessment and treatment as authorised, and submission to drug testing; and
    2. (b)
       Unpaid community service of 240 hours to be performed within one (1) year.
23. [23]
    The applicant filed this disciplinary referral on 31 July 2020, and on 30 November 2020 the respondent filed a Response to the disciplinary referral admitting the allegations and particulars.

Characterisation of Conduct

24. [24]
    Both parties in this matter agree that the respondent has behaved in a way that constitutes professional misconduct.
25. [25]
    Section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) defines “professional misconduct” as follows:

professional misconduct, of a registered health practitioner, includes—

1. (a)
   unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
2. (b)
   more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
3. (c)
   conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

26. [26]
    I agree with the applicant that the admitted conduct is serious in nature, involving the stealing of fentanyl from a major Brisbane hospital and the making of false entries over a period of four (4) months. The respondent’s admitted behaviour constitutes professional misconduct under each limb of the statutory definition.
27. [27]
    In  Health Ombudsman v Jamieson,^[2] the Tribunal noted that “the stealing of medical supplies by a nurse from his or her place of employment” is always a serious act of misconduct, even when the drugs stolen were not “illicit or patently dangerous, habit-forming drugs”.^[3]
28. [28]
    Pursuant to section 41 of the National Law, the Code of Conduct for Nurses is admissible in these proceedings as evidence of what constitutes appropriate professional practice for a health practitioner. I do not understand the respondent to be contesting that his admitted conduct breaches principles in the Code to do with honesty, compliance with relevant legislation, and the responsibility to maintain nurses’ own health.^[4]
29. [29]
    Health Ombudsman v CSM^[5] and Health Ombudsman v Ferguson^[6] are further examples of where stealing drugs (particularly from the workplace) has been held to constitute professional misconduct.
30. [30]
    Accordingly, the Tribunal decides, pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

31. [31]
    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.^[7]
32. [32]
    The respondent has no prior criminal history, and his disciplinary history is detailed above.
33. [33]
    The respondent has a history of both a major depressive disorder and a substance use disorder. He has sought and received treatment for a Dysthymic disorder and major depressive disorder, in addition to treatment for his opioid and alcohol dependency.
34. [34]
    He has filed an affidavit in these proceedings,^[8] in which he sets out his personal circumstances including working in other occupations since his employment was suspended. He explains that the Certificate IV, which he completed in July 2020, was to assist in a business he had established designed to teach children various safety techniques including teaching CPR to both parents and children. He states however, that in October 2020, Blue Card Services revoked his Blue Card, which he is contesting in this Tribunal, but the business venture is on hold pending the outcome of that challenge. He has commenced a post-graduate diploma in psychology through James Cook University, and has undertaken a suicide prevention course which he is using, along with his 18 years of emergency nursing experience, in a business called “The Mind Compass” which he hopes will provide him with employment into the future.^[9] Although he says he does not intend to practice in a hospital again as a nurse, he nevertheless has hopes of open registration to add “credibility” to the work he hopes to undertake through this business.^[10]
35. [35]
    In his affidavit, which is not challenged, he frankly sets out his mental health history which commenced with a diagnosis of chronic depression/Dysthymia first diagnosed in 2016.^[11]
36. [36]
    It is not necessary to recite some of the distressing factors that underpin his mental health issues,^[12] suffice to say that he admits taking fentanyl from his workplace in Sydney and, on 16 October 2016, attempting to suicide by over-dosing on the drug. This I infer, is the basis of the earlier notification, which did not result in charges being preferred, but which related to conditions being placed on his registration as referred to in [7] above. As a result of this he sought treatment from a number of mental health professionals referred to on [68] of his affidavit.
37. [37]
    In that affidavit, he describes how in 2018, after his family had moved to Brisbane and he was employed at the Childrens Hospital, he began to disengage from his health practitioners and this led to the behaviour the subject of the referral. He describes his in-patient treatment after being admitted to the Psychiatric Emergency Centre at RBWH  on 17^th August 2018, to discharge on the 5^th September 2018, and his steps to rehabilitate and avoid the circumstances that lead to his stealing fentanyl for his own use in 2018.^[13]
38. [38]
    At the hearing before the Magistrate on 11 February 2020, it appears that the Magistrate had before her at least some reports from some of the professionals who have seen him over the years, but these were not marked as exhibits, however, copies of these reports are in the Tribunal file as part of the court file.^[14]
39. [39]
    With respect to her Honour, her sentencing remarks^[15] are very confusing, although it does seem reasonable to assume that she did not regard the respondent’s mental health conditions at the time of the offending as reducing his moral culpability or undermining the general utility of personal and general deterrence. She does not say this but refers at various times, both in her remarks and in discussion with Counsel, to the case of R v Verdins^[16] which sets out a series of principles which may inform the sentencing process when a court is dealing with a person who has a mental illness. Those principles have been adopted in this State in R v Yarwood.^[17]
40. [40]
    As I say, the remarks are very difficult to follow, but the Magistrate also took into account other mitigating factors such as his co-operation and early plea of guilty and that he had previously been unconvicted of any offence.
41. [41]
    At [17] of his Tribunal submissions, the respondent’s solicitor does submit that his mental health is a mitigating factor, in the sense that his moral culpability is reduced and his case is therefore not a suitable vehicle to express principles of general deterrence, having regard to those two reports, one from a clinical psychologist dated 22 January 2020, and the other from Dr Dhingra dated 31 January 2020, a clinical psychiatrist, who treated him when he was admitted to the RBWH in August 2018. I agree with her Honour that there is nothing expressed in that evidence that addresses issues such as reduced moral culpability. His self- reporting of the earlier incident suggests it occurred over a 2 week period whilst working in Sydney, and the psychologist reports,^[18] (obviously from the history given to him by the respondent) that he (the respondent) had “a past history of recreational use of multiple substances from his mid-teens”. In Dr Dhingra’s report, he states :

“Mr McDowell had a tendency to minimize substance abuse and its impacts, and to attribute all of his behaviour to mood disturbance. He intended to reduce his alcohol…He did not see a risk of opiod use in the future provided there was no ready access.”

42. [42]
    In cross-examination today, Mr Templeton questioned the respondent about paragraph [63] of his Tribunal affidavit,^[19] in which he states (in relation to the Sydney incident), “On the night shift of 16 October 2016, I took fentanyl and attempted suicide by overdose in the toilet at my work.” A fair reading of that paragraph would suggest that he only used fentanyl once, but he frankly admitted to Mr Templeton that after this apparent suicide attempt, he took fentanyl from his workplace over a two-week period 10-15 times, which he self-administered at home.
43. [43]
    The respondent’s conduct here was protracted and involved falsifying records to conceal his stealing of controlled drugs for his own use. Clearly, his mental health is a factor to consider, but I am not able to say that for that reason, his moral culpability was reduced and that the case is not an appropriate vehicle for principles of general deterrence. This is particularly so when this was not the first time he had taken controlled drugs from his workplace, although the first occasion did not result in any criminal proceedings for obvious reasons. Of importance, in my view, are the extensive and commendable steps he has taken since August 2018 to address the underlying causes of his misconduct. This is an important component in accessing the risk he now poses to the health and safety of the public. I agree with his lawyer, that his steps to rehabilitate, which are not contested by the applicant, demonstrate insight and remorse at a quite high level.
44. [44]
    I agree that the respondent’s conduct over such an extensive period had the potential to harm patients (although there is no specific evidence of harm to any patient); and had the potential to place patients at risk because of a depletion in the supply of fentanyl. He was able to undertake this dishonest conduct involving quite significant deception over a lengthy period of time despite his mental health conditions.
45. [45]
    I agree with the applicant that the proved behaviour here is very serious.^[20] It is similar to that in Ferguson in which the Tribunal observed (at [33]) that “repeated theft of controlled drugs from his employer was a serious instance of professional misconduct that would normally warrant the cancellation and a further period of suspension of his registration…”.
46. [46]
    In Mr Mumford’s submission filed on behalf of the respondent, and in support of the argument that no period of suspension is required to reflect specific and general deterrence, a number of cases are discussed. I agree that Ferguson is comparable. In that case, no period of suspension was ordered; however, the respondent there was impaired by mental illness at the time of the relevant criminal offences, and the Tribunal had before it up to date reports as to the progress she had made in dealing with these conditions, and, at the time of the hearing she was no longer registered. Of more importance, this was her first instance of this type of behaviour.
47. [47]
    Health Ombudsman v NPT^[21] involved the theft by a registered nurse over approximately three (3) weeks of a large quantity of controlled drugs from the drug safes of the hospital in which he then worked. The respondent had not engaged with the Tribunal, and was no longer registered. It is fair to say that the quantity and type of drugs stolen exceed the quantity taken here; however, the offending time period was greater in this case and, again, NPT did not have the previous notification.
48. [48]
    It is relevant to sanction that the respondent has not practised as a registered nurse since August 2018. The present situation is that he has non-practising registration. It follows that there has been no registration suspension or action directly relating to the proved misconduct. The only issue joined between the parties is whether or not there is a need to impose a period of suspension. Both agree that a reprimand, which is not a trivial penalty, is appropriate.
49. [49]
    In my view, the need to have regard to general deterrence, particularly to send a message to health practitioners that such conduct will not be tolerated, and to maintain confidence in the nursing profession, does require the Tribunal to denounce the conduct by the imposition of a short period of suspension of 6 months. Because this conduct was the second time he had behaved in a similar way, specific or personal deterrence is also relevant. The respondent seems now to have insight, and to be diverting his career path away from any situation where he might have access to controlled drugs.
50. [50]
    The Tribunal makes the following orders:

    1. A finding that the conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld).
    2. An order pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld) that the respondent is reprimanded.
    3. An order pursuant to section 107(3)(d) of the Health Ombudsman Act 2013 (Qld) that the respondent is suspended for a period of six (6) months.
    4. No order as to costs.