Health Ombudsman v McCarthy[2021] QCAT 79

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against Preshenti McCarthy (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.
3. [3]
   On the morning of the hearing, the respondent advised the Tribunal that she was unable to personally appear at the hearing because of parental responsibilities. She did not seek any adjournment of the hearing but advised the Tribunal she wished the hearing to proceed in her absence. The respondent did not take up an offer to appear at the hearing by telephone and the hearing proceeded in her absence.

Background

4. [4]
   The respondent was born in South Africa and is currently 47 years of age. She completed a Diploma in General Nursing and a Diploma in Nursing in South Africa in 1999. She first registered as a nurse in Australia on 11 January 2002. She was employed as a registered nurse in various Brisbane hospitals from 2004 until November 2017.
5. [5]
   In February 2013, the Australian Health Practitioner Regulation Agency (AHPRA) was notified about an incident in November 2012 when the respondent misappropriated medication from her workplace at the time. This included 14 x Stilnox, 2 x fluoxetine and 2 x paracetamol tablets. The notification came from the respondent’s employer, but the respondent also self-notified and enclosed a report from her treating psychiatrist at the time who diagnosed prescribed medication abuse and an adjustment disorder with mixed anxious and depressed mood.
6. [6]
   In July 2013, the Nursing and Midwifery Board of Australia (Board) imposed conditions on the respondent’s registration, requiring her to attend treatment with a general practitioner and psychiatrist, be supervised when dealing with certain prohibited drugs and undergo regular drug testing.
7. [7]
   In March 2014, a psychiatrist’s health assessment of the respondent determined that she had a substance abuse disorder in relation to benzodiazepines and other mental health issues.
8. [8]
   A further health assessment in June 2015 assessed that the respondent’s mental health disorders were in remission.
9. [9]
   In September 2015, the Board was satisfied that the respondent’s mental health issues were in remission such that she no longer posed a risk to the public. The Board removed the conditions on her registration.

Conduct

10. [10]
    The conduct to which these proceedings relate occurred in January 2017 during the course of the respondent’s employment as a registered nurse at the Prince Charles Hospital. The facts of the conduct are admitted by the respondent.
11. [11]
    The respondent completed a night shift from 10:45 pm on 3 January 2017 until 7:15am on 4 January 2017 (the shift). During the shift, she was assigned care of patients in Acute Beds 5 and 6 and the ‘ISO’ (isolation room) of the emergency department.
12. [12]
    During the shift, Patient A was admitted to the emergency department suffering from abdominal pain. He arrived in Acute Bed 6 at approximately 3:41 am. Patient A had with him a small bag containing his personal belongings.
13. [13]
    The respondent consulted with Patient A in Acute Bed 6 between 3:43 am and 4:01 am on 4 January 2017. During the consultation (at approximately 3:48 am), the respondent closed the curtains around Acute Bed 6.
14. [14]
    The respondent asked Patient A what medications he had brought with him to the hospital. Patient A told the respondent his medications were in the bag he had brought with him. With Patient A’s consent, the respondent looked through his bag on several occasions to confirm and record what medications he had brought with him.
15. [15]
    On one of those occasions, the respondent removed cash in the sum of $720 from Patient A’s bag and hid it on her person. The cash was clipped together with a bulldog paper clip.
16. [16]
    The respondent then asked Patient A details of his next of kin. Patient A requested the respondent pass him his bag so he could retrieve these details from his mobile phone. The respondent passed the bag to him. On opening his bag, Patient A accused the respondent of removing cash from the bag, which the respondent denied.
17. [17]
    The respondent left the cubicle, saying she would contact security, and entered a small room nearby called the ‘pan room’. The respondent hid the $720 in cash in a container on a shelf in the pan room.
18. [18]
    The respondent then located her Team Leader and returned to Patient A’s cubicle approximately 10 minutes later, along with another colleague, to discuss Patient A’s allegation.
19. [19]
    For the remainder of her shift, the respondent was deployed by her Team Leader to another part of the hospital. Despite this, at approximately 7:19 am and 7:20 am on 4 January 2017, the respondent returned to Patient A’s cubicle and said words to the following effect:

    1. (a)
       “I’m gonna take legal action against you because you have smeared my name in the hospital as a thief”; and
    2. (b)
       “I notice one of your meds is Valium, that’s what they give schizophrenics”. (The respondent did not believe that Patient A suffered from schizophrenia.)
20. [20]
    Patient A was discharged from hospital on 7 January 2017.
21. [21]
    On 9 January 2017, a nursing assistant found $720 cash in the pan room, clipped together and located in a container on a shelf.
22. [22]
    On 10 February 2017, the respondent was charged with the offence of stealing.
23. [23]
    On 14 November 2017, the respondent was convicted on her own plea of guilty to one count of stealing under section 398 of the Criminal Code (Qld). She was sentenced placed on a good behaviour bond and entered into a recognisance in the sum of $800.00. No conviction was recorded, and prior to this the respondent had no other criminal history.

Subsequent employment and registration history

24. [24]
    On 16 March 2017, the respondent was suspended from duty on full pay by her employer, the Metro North Hospital and Health Service (MNHHS).
25. [25]
    The respondent applied to renew her registration in May 2017 and disclosed that she had been suspended from her employment as a result of the stealing allegation.
26. [26]
    As a result, and in light of her previous health issues, the Board required the respondent to undergo a health assessment. The respondent was assessed as having a substance use disorder and taking medication not prescribed, but as safe to practise with conditions.
27. [27]
    On 3 November 2017, the MNHHS accepted the respondent’s resignation.
28. [28]
    The respondent continued hospital nursing through agencies.
29. [29]
    In March 2018, the Board resolved to renew the respondent’s registration with conditions requiring her to be supervised (indirectly) by another registered practitioner, undergo drug testing, and to be treated by a general practitioner.
30. [30]
    In June 2018, the respondent applied to, and did, transition to non-practising registration.
31. [31]
    On 12 April 2019, the respondent failed to renew her registration and became unregistered. On 30 May 2019, AHPRA received an application for general registration transfer from the respondent. As at the date of hearing, that application remained subject to consideration by the Board, following a health assessment of the respondent, and subject to any orders of the Tribunal in these proceedings.

Investigation and referral

32. [32]
    This is yet another matter where there has been unexplained and inordinate delay in the investigation and referral of a health service complaint by the applicant.
33. [33]
    The MNHHS notified the applicant of the respondent’s conduct by letter dated 16 January 2017.
34. [34]
    The applicant received details of the charge against the respondent and the alleged facts from the Queensland Police Service by letter dated 1 March 2017.
35. [35]
    As noted earlier, the respondent was convicted on her own plea of guilty on 14 November 2017.
36. [36]
    It would be fair to say that by late 2017, the applicant had a watertight case of the respondent’s misconduct.
37. [37]
    The respondent was interviewed by the applicant’s investigators on 16 July 2018.
38. [38]
    On 28 September 2018, the applicant decided to refer the matter to the Director of Proceedings for consideration under section 103 of the HO Act.
39. [39]
    On 31 January 2020, the Director of Proceedings, on behalf of the applicant, referred the matter to the Tribunal.
40. [40]
    As to why it could possibly take more than 16 months for the Director of Proceedings to decide, pursuant to section 103(1)(a) of the HO Act, to refer the matter to the Tribunal, the only explanation proffered on behalf of the applicant is that there was a significant backlog of matters with the Director of Proceedings at that time.
41. [41]
    Fortunately, this is not a matter where the inordinate delay has worked a significant injustice on the respondent. In the interim, her registration was restricted by reason of conditions directed to her health and by her own decision to transition to non-practising registration. The respondent has not suffered a de facto suspension of her registration significant in determining any period of preclusion from practice by way of sanction.^[1]
42. [42]
    The respondent in her response filed 31 March 2020 denied the allegations in the referral, stating:

I did not take the patients money, I pleaded guilty as I did not have the finance to defend myself. I did not threaten the patient.

43. [43]
    The respondent subsequently admitted the alleged conduct when she signed an agreed statement of facts on 13 July 2020.

Characterisation of the Conduct

44. [44]
    The applicant submits that that the respondent’s conduct should be characterised as professional misconduct.

45. [45]
    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.

46. [46]
    Contrary to her professional and ethical responsibilities under applicable codes of conduct and ethics, the respondent breached the trust of her employer and the patient in her care, a patient vulnerable by reason of his illness and admission to the emergency department of the hospital. She exploited the consequent power differential for her own dishonest purposes. She later threatened the patient and made disparaging comments about his mental health. Her conduct was disgraceful.
47. [47]
    The Tribunal has no hesitation in finding that the respondent’s deplorable conduct constitutes “professional misconduct” according to each of the limbs of the definition of that term in the National Law. The respondent’s theft from her vulnerable patient and the respondent’s subsequent verbal abuse of the patient each constitute serious examples of professional misconduct. Her conduct is inconsistent with fitness, at that time, to hold registration.
48. [48]
    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

49. [49]
    In determining an appropriate sanction, the main consideration is the health and safety of the public.^[2] 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,^[3] 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.
50. [50]
    The applicant submits that the respondent should be reprimanded and disqualified from applying for registration for a period of 12 months.
51. [51]
    By email on 12 October 2020, the respondent submits as follows:

Kindly accept my apologise (sic) for my late respond (sic), I was ignorant of the fact that I was meant to make a response. I am deeply sorry for all the trouble that my actions have caused and I have been trying sincerely to make up for my wrong doings. Having not worked since May 2018, I have committed myself to voluntary work via the Lions Club. I have been taking care of a couple of children twice a week for the last 2 years, and I have accepted no payment for this. I volunteer my time at the school tuckshop once a week.

Could I please ask that it be considered that my license not be suspended for 12 months, as I cannot afford to be out of work for much longer, and having being (sic) out of the practical setting in nursing, might prove difficult in obtaining my license again. Could I kindly make a suggestion and offer to pay a sum of money, if this would help in me retaining my license, or that a shorter period be considered instead, or a shorter period and a sum of money be paid in lieu of the 12 months suspension.

52. [52]
    Apart from such limited expression of remorse, the respondent has provided no evidence of rehabilitation by way of education or treatment. As recently as 31 March 2020, in her response filed in the Tribunal, she denied the conduct the subject of the referral. She has demonstrated only limited insight as to the wrongness of her behaviour.
53. [53]
    The respondent has not provided evidence of capacity to pay a substantial fine and the fact of her unemployment suggests otherwise. In any event, a fine would not be an appropriate response to the seriousness of the respondent’s misconduct. The protective purposes of sanction require that the respondent suffer a period of preclusion from practice as a consequence of her misconduct.
54. [54]
    The applicant referred to comparable cases of Nursing and Midwifery Board of Australia v Hissey,^[4] Health Ombudsman v Fletcher,^[5] Health Ombudsman v Cash,^[6] Health Practitioner’s Tribunal of South Australia v Morley,^[7] and Nursing and Midwifery Board v Sotingco (Review and Regulation),^[8] when submitting that a period of preclusion from practice of 12 months was appropriate.
55. [55]
    The Tribunal accepts that no lesser period would adequately meet the protective purposes of sanction in this matter.
56. [56]
    Pursuant to section 107(4)(a) of the HO Act, the Tribunal decides to disqualify the respondent from applying for registration as a registered health practitioner for a period of 12 months.
57. [57]
    It will be for the Board to determine, upon any application for re-registration following that period of preclusion from practice, whether the respondent is fit to practise and whether any conditions should be imposed on her registration.

Costs

58. [58]
    The orders of the Tribunal with respect to costs will reflect the default position pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).