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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Balfour  QCAT 51
AINSLIE KATHARINE BALFOUR
Occupational regulation matters
22 February 2021
29 May 2019
Judge Allen QC, Deputy President
PROFESSION AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the respondent was an unregistered health worker in aged care – where the respondent provided voluntary care to a vulnerable patient – where the respondent misappropriated MS Contin from the patient for her own use – whether the respondent poses a serious risk to persons – whether the Tribunal should make a prohibition order
Health Ombudsman Act 2013 (Qld), s 7, s 8, s 103, s 104, s 113, s 320G
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100
REASONS FOR DECISION
- The Director of Proceedings on behalf of the Health Ombudsman (applicant) has referred a health service complaint against Ainslie Katharine Balfour (respondent) to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). At relevant times the respondent was an unregistered health practitioner. The applicant seeks that the Tribunal decide, pursuant to section 113(1) of the HO Act, that because of the respondent’s health, conduct or performance, she presents a serious risk to persons and that the Tribunal make a prohibition order pursuant to section 113(4) of the HO Act.
The applicant and her conduct
- The respondent is in her mid 50’s.
- Between 2007 and 2012, the respondent was employed as a home care worker by an aged care provider. During her employment, the respondent befriended a client, a disability pensioner then in his late 60’s (the patient). After the respondent ceased employment with the aged care provider, she undertook voluntary home care work for the patient for nearly two years. The respondent cooked, cleaned, and otherwise assisted the patient, including by collecting the patient’s weekly Webster pack medication for him. The patient was prescribed regular medication including MS Contin. The patient had limited cognitive capacity due to brain injury and dementia. The respondent was aware that aspirin was contraindicated for the patient due to the risk of further brain injury or death.
- Over a period of about four months in 2013 the respondent removed MS Contin tablets from the patient’s Webster packs and replaced them with aspirin tablets, knowing that the aspirin would be taken by the patient and that he would be deprived of effective pain relief. The respondent took the MS Contin tablets for her own use.
- The respondent’s misconduct was discovered when the patient attended the dispensing pharmacy enquiring about the efficacy of his medication and the pharmacist observed evidence of tampering with seals of the patient’s Webster pack and substitution of aspirin tablets for MS Contin. The pharmacist contacted police.
- Police searched the respondent’s home two days later and located MS Contin tablets, syringes containing morphine, a complete Webster pack in the patient’s name with a commencement date the following day containing aspirin tablets and a receipt for the purchase of aspirin tablets. The respondent told police she had been addicted to morphine for a couple of years after being prescribed morphine for a shoulder injury. She admitted to replacing the patient’s MS Contin tablets with aspirin tablets during the previous five weeks. She said she would reduce the morphine to a liquid form for use by syringe.
- The respondent was charged with offences of fraud, possessing dangerous drugs and failure to take precautions in respect of a syringe. She later pleaded guilty to the offences in the Magistrates Court and was fined and ordered to perform community service. Convictions were recorded.
- During an interview with the Office of the Health Ombudsman in 2015, the respondent sought to cast blame for the misappropriation of drugs upon a former partner and denied tampering with the Webster packs herself.
- The respondent did not maintain such denial in these proceedings and admitted all the particulars of the allegations against her.
- The respondent was registered as a student nurse from 2012 to 2015 and enrolled in a nursing course in 2012 and 2013. She is no longer registered as a student and has never been registered as a health practitioner. The respondent has not worked as a carer since 2014 and it is no longer her ambition to be a registered nurse. At the time of the hearing the patient informed the Tribunal she had been working the past five year as a chef and had no interest in returning to any role in health care. She also indicated she had been abstinent from drugs for four years.
- In providing voluntary home care to the patient, the respondent provided a “health service” within the meaning of section 7 of the HO Act and was thus a “health service provider” as defined in section 8(a)(ii) of the HO Act. The respondent was not a registered health practitioner and thus the applicable powers of the Tribunal are to be found in the repealed Part 10, Division 4 of the HO Act, in particular, section 113.
- Section 113(1) of the HO Act provides as follows:
QCAT must decide if, because of the health practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons.
- Section 113(4) provides as follows:
If QCAT decides the practitioner poses a serious risk to persons, it may make an order (a prohibition order)−
- (a)prohibiting the practitioner, either permanently or for a stated period, from providing any health service or a stated health service; or
- (b)imposing stated restrictions on the provision of any health service, or a stated health service, by the practitioner.
A serious risk?
- The term, “serious risk”, is not statutorily defined. It takes its ordinary meaning in its statutory context. The word, “serious”, is defined in the Macquarie Dictionary as:
of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind.
- It is helpful to consider the following:
- (a)the nature of the risk;
- (b)the likelihood of it eventuating; and
- (c)the seriousness of the consequences if the risk eventuates.
- The nature of the risk is that the respondent, in providing care to a vulnerable patient, might exploit the power imbalance between carer and patient to the detriment of the patient.
- It is difficult to assess the likelihood of that occurring if the respondent was to return to providing health care to vulnerable persons. However, her misconduct was calculated, prolonged and callous. Her willingness to gratify her own needs at the expense of the patient’s need for pain relief and her willingness to place the patient’s health at risk demonstrates a flaw of character incompatible with that required of a health care worker. Whilst there is some evidence of the respondent’s rehabilitation and her co-operation with these proceedings suggests contrition, I regard the defects of character revealed by the respondent’s past behaviour so significant as to establish a continuing risk.
- As shown by the detriment suffered by the patient and the risk caused to his health, the seriousness of the consequences to another patient if the risk eventuated could be grave.
- In all the circumstances, the Tribunal decides that, because of her conduct, the respondent poses a serious risk to persons.
A prohibition order?
- In these circumstances, the Tribunal should exercise the discretion to make a prohibition order pursuant to section 113(4) of the HO Act.
- There is no basis for finding that the risk presented by the respondent will have reduced to an acceptable level after the passage of a period of time. Accordingly, any prohibition should be permanent. There is no basis for concluding that imposition of restrictions pursuant to section 113(4)(b) would properly address such risk. I have considered whether the respondent should be prohibited from providing a stated health service or services: for example, aged care services. That would not protect all vulnerable patients potentially at risk. In all the circumstances, I have concluded that a permanent prohibition on provision of any health service is appropriate. I note that the respondent did not oppose an order in those terms.
- The applicant did not seek costs and the orders of the Tribunal will confirm that the default position as to costs pursuant to s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) applies.
 Now repealed, but still applicable to these proceedings because of the transitional provisions in section 320G of the HO Act.
 Counsel for the applicant made detailed and helpful submissions as to why that was the case and why, notwithstanding the respondent’s registration as a student nurse at the time of her misconduct, the Tribunal was not required to, and should exercise its discretion not to, deal with the respondent pursuant to the provisions of the HO Act that might apply to a health service complaint in relation to a formerly registered student. I accept those submissions. Given that the respondent did not oppose the Tribunal proceeding as it has, and given the subsequent repeal of Part 10, Division 4 of the HO Act, it is neither necessary nor useful to canvass those submissions further.
- Published Case Name:
Health Ombudsman v Balfour
- Shortened Case Name:
Health Ombudsman v Balfour
 QCAT 51
Judge Allen QC
22 Feb 2021