Health Ombudsman v Pidgeon[2022] QCAT 111

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Director of Proceedings on behalf of the Health Ombudsman (the applicant) referred this health services complaint against Danyon Michael Pidgeon (the respondent) to the Tribunal by referral filed on 28 June 2021.
2. [2]
   The applicant alleges that, as a result of the respondent’s pleas of guilty for criminal offences and/or regulatory offences in the Magistrates Court of Toowoomba on 29 April 2021, he has engaged in professional misconduct within the meaning of all three limbs of that concept as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
3. [3]
   The respondent has been legally represented. His solicitors filed a response to the referral on 19 August 2021 in which he admits to all relevant allegations of fact and that his conduct amounts to professional misconduct. The parties have filed an agreed statement of facts. There are no areas of factual dispute.
4. [4]
   In submissions filed by the parties, there is also agreement as to the characterisation of the conduct as professional misconduct as defined in all the three limbs of the definition in section 5 of the National Law, and the parties also agree as to the appropriate sanction. It is accepted that the Tribunal has an unfettered discretion in relation to the imposition of sanction but that, especially when parties are legally represented and have agreed as to sanction, the Tribunal in the exercise of that discretion should not readily depart from that agreement unless the sanction falls outside the appropriate range of disciplinary responses in the circumstances of the particular case.

Background

5. [5]
   The respondent was born on 25 October 1996. He is now 25 years of age.
6. [6]
   He obtained a Bachelor of Nursing from the Queensland University of Technology in 2018 and was first granted registration as a registered nurse by the Nursing and Midwifery Board of Australia (the Board) on 13 July 2018.
7. [7]
   At the relevant time the respondent was employed as a permanent fulltime registered nurse in the emergency department of the Toowoomba Hospital in the Darling Downs Hospital and Health Service.
8. [8]
   On 3 March 2021 the health service directed the respondent to take annual leave while the incident the subject of the criminal charges was investigated. On 24 March 2021 he was given notice to show cause why he should not be subject to disciplinary action.
9. [9]
   On 29 March 2021 he commenced personal sick leave and he remains employed by the health service on personal leave pending the finalisation of these disciplinary proceedings.
10. [10]
    He has no prior criminal history.

The Relevant Conduct

11. [11]
    The respondent was rostered to work a night shift on overtime at the Toowoomba Hospital on 2 to 3 March 2021. On 2 March 2021, while performing his duties as a registered nurse, he withdrew 100 micrograms of Fentanyl on two occasions. He forged the witness signature and made two false entries in the dangerous drugs register.
12. [12]
    On or around 3 March 2021 the respondent called a meeting with the nurse unit manager and the nursing director and made admissions to his employer as to his conduct on 2 March 2021. He subsequently cooperated with his employer and with the Queensland Police Service (QPS).
13. [13]
    On 4 March 2021 the QPS executed a search warrant at his home and during the search located two Sildenafil tablets, the trade name of which is Viagra. The respondent admitted he did not have a current and valid prescription for the tablets, saying that he had received them from a friend.
14. [14]
    On 29 April 2022 he pleaded guilty to one count of stealing as a servant, one count of forging and uttering, one count of possession of a dangerous drug, and one count of unlawful possession of a restricted drug under the Health (Drugs and Poisons) Regulation 1996.
15. [15]
    The Magistrate sentenced him on that day to nine months’ probation and exercised his discretion not to record a conviction.
16. [16]
    The respondent has not worked as a nurse since 2 March 2021.
17. [17]
    On 1 June 2021 the Health Ombudsman imposed conditions on his registration. In summary, the conditions limit his scope of practice by prohibiting him from accessing any schedule 8 control drug and schedule 4 restricted drug of dependency; and provide that he must only practice as a registered health practitioner at an approved place of employment and require him to be supervised by another registered practitioner when practicing as a registered nurse. Those conditions remain on his registration.

Characterisation of The Conduct

18. [18]
    As noted, the referral alleges that the respondent’s conduct amounts to professional misconduct within the meaning of section 5 of the National Law, being conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
19. [19]
    In a number of previous decisions, for example, Health Ombudsman v CSM [2020] QCAT 55 at [12]; “That the theft of medicines by a nurse from their employer in the course of practice constitutes professional misconduct.”
20. [20]
    In Health Ombudsman v Jamieson [2017] QCAT 172 the respondent engaged in professional misconduct having taken three boxes of antibiotics from the hospital where she worked. The Tribunal observed (at [27]):

The stealing of medical supplies by a nurse from his or her place of employment is a serious act of misconduct. The present case, which involves the taking of some fairly familiar antibiotics, does not raise quite the same level of concern as the taking of illicit drugs, or patently dangerous, habit-forming drugs.... While this conduct lies at the lower end of examples of this type of conduct, it strikes directly at the proper provision of medical services, and I have no hesitation in concluding that such a theft may be characterised as professional misconduct.

21. [21]
    In Health Ombudsman v Ferguson [2020] QCAT 464, the respondent stole schedule 8 controlled drugs from the hospital where he was employed as an enrolled nurse. The Tribunal characterised the conduct as professional misconduct, saying (at [21]):

The theft of controlled drugs of addiction from a locked injectable cabinet in the respondent’s place of work clearly is unprofessional conduct by him in that it amounts to conduct that is substantially below the standard reasonably expected of an enrolled nurse of equivalent level of training and experience.

22. [22]
    The Tribunal is satisfied to the requisite standard that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

23. [23]
    As has been noted on many occasions in this Tribunal and Tribunals with an equivalent jurisdiction in other states, proceedings of this nature are protective and not punitive in nature. Protection of the public has various aspects.
24. [24]
    In Craig v Medical Board of South Australia [2001] SAC 196; (2001) 79 SASR 544 the Full Court of South Australia stated (at [48]):

The public may be protected by preventing a person from practicing in a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable.

In the exercise of the protective jurisdiction, it’s appropriate for the Tribunal to consider the maintenance of professional standards and issues of general and personal deterrence. This in turn assists to uphold public trust and confidence in the profession.

25. [25]
    The respondent has filed two affidavits in these proceedings.
26. [26]
    Clearly the conduct was serious, involving the theft of schedule 8 drugs in the course of his employment, and attempting then to conceal his theft by falsifying records in the hospital’s drug register. His conduct involves a breach of his employer’s trust, and more generally the high level of trust placed in members of the profession that sits at the very heart of our healthcare system by the public.
27. [27]
    His conduct is obviously serious in that it involved behaviour which occurred in the direct course of his employment as a registered nurse in a public hospital:

    1. (a)
       deliberate acts of deception and dishonesty in stealing medication and attempting to conceal his actions by forging another signature.
    2. (b)
       on two occasions misappropriating a quantity of Fentanyl which is a schedule 8 controlled drug and a scheduled dangerous drug which has a high potential for misuse or dependence.
    3. (c)
       placing his own desires above his professional responsibilities; and
    4. (d)
       an abuse of his position at the hospital and a breach of his employer’s trust and the trust placed in nurses by the public and patients.
28. [28]
    In his affidavits, which are not disputed, he provided some background to this serious conduct which is clearly out of character for this young man who has no prior or subsequent criminal or regulatory history.
29. [29]
    In his affidavits he explained that the conduct had occurred at a time when he had only recently returned to work after six months of leave due to a significant shoulder surgery following a motorcycle accident on his way home from work when he was hit by a car. He says that due to financial pressure associated with his period of leave, he declined a gradual return to work and on the night of the conduct was working overtime. He says he was experiencing post-operative shoulder pain and becoming increasingly fatigued due to the physical pain and the hours of work.
30. [30]
    In explaining his decision to steal the Fentanyl the respondent says:

I felt as if I had no choice, due to my financial circumstances, other than to be at work and continue the overtime even though I was extremely exhausted and in pain. I thought that I could get some pain relief. I could get though (sic) the shift. It was with this thought in mind that I took the Fentanyl and placed it in my pocket.

31. [31]
    He also says in his affidavits that he was suffering from stress, anxiety and depression associated with childhood trauma. In his affidavit he annexes a report from his treating psychologist, Mr David Marshall. Mr Marshall says that the respondent had attended four sessions of counselling with him between 26 March 2021 and 19 October 2021.
32. [32]
    The psychologist says that the respondent presented with, “Mild symptoms of anxiety and stress, very little depression after completing the DASS-21 during the interview process.”
33. [33]
    The psychologist describes the respondent as having experienced, “quite a few instances of mild trauma relating to unpleasant childhood experiences” but does not go so far as to suggest a clear connection between the respondent’s offending and his mental health.
34. [34]
    The applicant fairly acknowledges that the respondent’s conduct since his misconduct demonstrates appropriate remorse and insight. This includes making admissions to his employer the following day after an initial denial, fully cooperating with the police and with the criminal process by pleading guilty, and cooperating with the disciplinary process, and in particular by admitting the allegation in the agreed statement of facts.
35. [35]
    In his affidavit filed in these proceedings he stated on a number of occasions how disappointed he is in himself for his actions and that he’s deeply regretful and remorseful for having engaged in the conduct and that he understands that his conduct fell below the standards expected of him by the code of conduct for nurses and that he has risked and damaged his personal professional reputation as well as the reputation of the nursing profession.
36. [36]
    Clearly in cases such as this, general deterrence is of significant importance.
37. [37]
    In Health Ombudsman v Keast [2020] QCAT 197, the Tribunal made the following observations in relation to deterrence:

Deterrence is always an important aspect of disciplinary proceedings such as this, because professionals in the position of the respondent, who has access to dangerous drugs in the workplace and then misuse those drugs, can also compromise the health and safety of patients and undermine the confidence the public has in the health system.

38. [38]
    Personal deterrence is of less significance in this case having regard to his attendance for psychological treatment and further education in ethics and he’s demonstrated insight into and remorse for his actions.
39. [39]
    The cases referred to by the parties in their respective submissions support their joint submission that the Tribunal should impose by way of sanction a reprimand. I need only mention two of those cases which in my opinion demonstrate that the jointly proposed sanction here is well and truly within the range of an appropriate disciplinary response to the professional misconduct proved in this case.
40. [40]
    Health Ombudsman v Ferguson [2020] QCAT 464 involved a practitioner who engaged in two episodes of criminal offending involving the theft of Fentanyl and other drugs from the hospital where he worked as an enrolled nurse. As with the respondent, the practitioner in this case made false entries in the drugs register and removed entire pages from the register to conceal his actions. When the conduct was first discovered he admitted to stealing the drugs for personal use and he pleaded guilty to stealing as a servant and fraudulently falsifying records.
41. [41]
    A subsequent order by the hospital discovered approximately 400 ampules of schedule 8 drugs missing. The practitioner admitted to stealing the drugs for personal use and again pleaded guilty to stealing as a servant and fraudulently falsifying records.
42. [42]
    The Tribunal considered Ferguson’s conduct in the context of his opioid addiction and major depressive disorder which were, at the time of the hearing, being appropriately managed through medical treatment. The Tribunal considered the need for general and specific deterrence were of less significance when taking into account the practitioner’s offending conduct was explained in part by his health issues. The conduct was characterised as professional misconduct and the practitioner was reprimanded.
43. [43]
    The applicant acknowledged fairly here that the conduct in Ferguson was objectively more serious, occurring across a three-month period during which the practitioner stole a large number of schedule 8 controlled drugs, compared to two ampules in this matter.
44. [44]
    Health Ombudsman v Martin [2020] QCAT 350 involved a registered nurse and midwife who stole a prescription book and a doctor’s stamp. Over a period of two years, she forged prescriptions and presented them at a chemist to obtain Duromine and on one occasion Endone for her own personal use. Her offending was uncovered when a pharmacist became suspicious and contacted the doctor whose stamp had been stolen.
45. [45]
    She pleaded guilty to 77 offences including 13 counts of stealing as a public servant, 12 counts of forgery, 26 counts of uttering a forged document, 25 counts of fraud, and one count of attempted fraud.
46. [46]
    She pleaded guilty and was sentenced to a period of probation and no convictions were recorded. That practitioner suffered from a number of severe mental disorders which underpinned her criminal behaviour, and AHPRA became involved, and she was out of practice as a nurse for some years. By the time of the disciplinary proceeding, she had been declared fit to practice by an independent psychiatrist.
47. [47]
    The Tribunal ordered that she be reprimanded, and she was not subject to any period of suspension. The respondent’s lawyers make the fair comment that the conduct in Martin was much more protracted, sophisticated, and involved a significantly higher number of criminal charges. As against that, there were the mitigating factors relating to Martin’s mental health disorders.

Orders

48. [48]
    That brief analysis of those two cases indicate that the sanction proposed by both parties here is appropriate and within the proper range. In those circumstances, the orders and findings of the Tribunal will be as follows:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), in respect to allegation 1, the Tribunal decides that 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 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action is set aside.
4. Each party to the proceeding is to bear the party’s own costs for the proceeding.