Health Ombudsman v Baumann[2021] QCAT 68

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral of a health service complaint against Narelle Joy Baumann (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of the Proceedings on behalf of the Health Ombudsman (applicant).  The applicant alleges, in the referral filed 30 April 2020, that the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction. The respondent admits, in her response to the referral, that she engaged in the conduct in question.
2. [2]
   In this matter, the parties have jointly filed and rely upon a Statement of Agreed Facts, and there are no factual issues in dispute. The parties also agree as to the characterisation of the conduct and appropriate orders by way of sanction.

Background

3. [3]
   The respondent is 51 years old and was aged 47 and 48 years old at the time of the conduct.
4. [4]
   The respondent was first granted registration as an endorsed enrolled nurse on 1 July 2009 and from that time worked as an endorsed enrolled nurse at the Bundaberg Base Hospital until 24 April 2018, when she resigned her employment in response to an investigation into her conduct the subject of this referral.
5. [5]
   The respondent suffered a work injury in 2013 and suffered chronic moderate pain thereafter. As a result she was prescribed Endone and other analgesia such as Panadeine Forte and Tramadol. She had been taking these medications to manage her pain for a long period of time. These were prescribed by her treating practitioners up to and during the time of the conduct subject to the referral.

Conduct

6. [6]
   The respondent worked in the Emergency Department of the Bundaberg Base Hospital. In the often busy work environment of the Emergency Department, strict procedures for the dispensing of restricted drugs were sometimes not followed by nursing staff. For example, on occasions, the respondent was not accompanied to a patient’s bedside by a registered nurse and supervised when dispensing Schedule 8 drugs. A work culture of trust in fellow nursing staff was relied upon to fill the gaps in adherence to strict requirements of supervision of staff. The respondent abused the trust of her employer and fellow nursing staff and took advantage of the lack of adherence to strict requirements of supervision by misappropriating Schedule 8 medication for her own use.
7. [7]
   On 9 March 2018, the Nurse Unit Manager of the Emergency Department became aware that the Schedule 8 medication, Endone, had been signed for but not dispensed to a patient by the respondent. An internal investigation identified discrepancies between medication log books and patient records and revealed that the respondent, between October 2017 and late March 2018, had stolen Endone from Emergency Department supplies. The respondent had made fraudulent entries in numerous Schedule Medicine Registers during the same period. The theft occurred on 18 occasions with the respondent stealing a total of 48 x 5mg tablets of Endone.
8. [8]
   There is no evidence, and it is not contended by the applicant, that any patient was consequently deprived of necessary analgesia by the respondent’s diversion of drugs to her own use.
9. [9]
   On 18 December 2019, the respondent pleaded guilty in the Magistrates Court at Bundaberg to one count of false entry in record, contrary to section 430(a) of the Criminal Code 1899 (Qld) (Criminal Code) and one count of stealing by clerks and servants, contrary to sections 391 and 398.6 of the Criminal Code. The respondent was sentenced by a 15 month probation order including conditions for medical, psychiatric and/or psychological assessment and treatment and drug and alcohol testing. No convictions were recorded.

Characterisation of the Conduct

10. [10]
    The respondent’s conduct was contrary to the terms of applicable professional codes of conduct, the provisions of the criminal law and legislation governing dispensing of restricted drugs. It constituted a gross breach of the trust reposed in the respondent by her employer, fellow staff and the public. The respondent’s conduct was conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience and inconsistent with the respondent being a fit and proper person to hold registration in the profession.
11. [11]
    Both parties submit, and the Tribunal readily accepts that the respondent’s conduct should be characterised as “professional misconduct” as defined in section 5 of the Health Practitioner Regulation National Law (Queensland).
12. [12]
    Pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

13. [13]
    The respondent surrendered her registration as an enrolled nurse on 24 November 2018 after the applicant commenced an investigation into her conduct. She has had some subsequent employment as a personal care worker. She is currently studying and hopes to obtain a Bachelor of Nursing degree later this year. She wishes to rejoin the nursing profession.
14. [14]
    Both parties agree, and the Tribunal accepts, that the respondent’s surrender of registration should be regarded as a voluntary cessation of practice as a result of her conduct and the subsequent period of over 2 years 3 months preclusion from practice as a de facto suspension of registration as a consequence of her conduct. That is a significant factor when considering whether any further preclusion from practice is required by way of sanction.
15. [15]
    The purpose of sanction is to protect the public, not punish the practitioner. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,^[1]the imposition of sanction may serve one or all of the following purposes:

    1. (a)
       preventing practitioners who are unfit to practise from practising;
    2. (b)
       securing maintenance of professional standards;
    3. (c)
       assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
    4. (d)
       bringing home to the practitioner the seriousness of their conduct;
    5. (e)
       deterring the practitioner from any future departures from appropriate standards;
    6. (f)
       deterring other members of the profession that might be minded to act in a similar way; and
    7. (g)
       imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
16. [16]
    Mitigating factors in the respondent’s favour include:

    1. (a)
       Prior to the conduct, the respondent had no disciplinary or criminal history;
    2. (b)
       The conduct occurred in the context of drug dependence as a result of chronic pain from medical conditions;
    3. (c)
       The respondent voluntarily withdrew from practice in light of her conduct and in recognition that she needed to rehabilitate herself before being fit to rejoin the profession;
    4. (d)
       The respondent suffered financially, socially and emotionally as a consequence of the loss of nursing employment;
    5. (e)
       The Tribunal accepts evidence that the respondent is genuinely remorseful for her conduct;
    6. (f)
       The respondent has clearly demonstrated insight into the wrongness of her conduct in her affidavit evidence and has undertaken counselling and completed relevant education courses; and
    7. (g)
       The respondent has co-operated in the conduct of the proceeding before the Tribunal.
17. [17]
    The respondent’s current fitness to practice, including her mental health and drug rehabilitation, will be considered by the Nursing and Midwifery Board of Australia (Board) upon any application for re-registration. I note the opinion of a clinical psychologist that the risk of the respondent re-offending is low. The period of the respondent’s preclusion from practice will have had a salutary deterrent effect. No further preclusion from practice is necessary for an immediate protective purpose or for the purpose of specific deterrence. The respondent’s past period of preclusion from practice means that a finding of professional misconduct and a reprimand adequately address considerations of general deterrence, denunciation and protection of the integrity and reputation of the profession. Any further period of preclusion from practice would be punitive.
18. [18]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.^[2] It is a public denunciation of the respondent’s conduct and a matter of public record. It will be recorded on the Register until such time as the Board considers it appropriate to remove it.^[3]
19. [19]
    Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

Costs

20. [20]
    The parties agreed that there should be no order for costs and, there being no reason to depart from it, the orders of the Tribunal will reflect the default position pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).