Health Ombudsman v Warren[2022] QCAT 124

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This proceeding is concerned with an application brought by the Health Ombudsman (applicant) concerning a previously registered nurse, Kaja Francesca Warren (respondent).
2. [2]
   At the hearing of this application (6 April 2022), the applicant was represented by Ms N Townsend. There was no appearance by the respondent despite her being aware of the allegations made by, and the relief sought by the applicant. That is not all that surprising in that the respondent has not practiced as a registered nurse since April 2016 and has told the applicant that she has no intention of returning to the profession. The respondent is now otherwise employed and has disengaged herself from these proceedings since 7 October 2021.
3. [3]
   While more will be said about these matters below, the allegations against the respondent can be summarised as follows:

Ground 1 - Conviction of criminal offences

The conduct the subject of the referral, is of a serious nature, involving a conviction for unlawful and indecent treatment of a child under 16 years of age. On 27 February 2016 the respondent was charged with one count of unlawfully and indecent treatment of a child under 16 years under section 210(1)(A) of the Criminal Code Act 1899 (Qld).

On 26 May 2017, the respondent pleaded guilty to one count of unlawfully and indecently dealing with a child under 16 years of age under section 210(1)(A) of the Criminal Code Act 1899 (Qld) in Gympie District Count.

On 7 November 2017 the respondent was sentenced to 12 months imprisonment wholly suspended. A conviction was recorded.

Grounds 2 and 3 – Breach of Bail conditions

The respondent breached the conditions of her bail on:

9 April 2016 (common assault).

24 October 2016 (failure to appear).

13 January 2017 (failure to appear).

On 19 October 2017 the respondent pleaded guilty to all three breaches of bail and was:

Sentenced to 3 months imprisonment, which was wholly suspended for the breaches on 9 April 2016 (this breach involved one count of common assault).

Fined $200.00 for each of the other two breaches that occurred on 24 October 2016 and 13 January 2017.

Ground 4 – False statements on renewal of registration

On 21 July 2017 the respondent failed to renew her registration and it lapsed.

On 27 June 2018 the respondent applied to renew her registration as a registered nurse.

The application for renewal contained a false statement.

The renewal contained the questions “since her last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?”. The respondent answered “No”.

The respondent has been charged in 2016 and 2017 with breaches of bail, and these chargers had not been disclosed to AHPRA.

Grounds 5 and 6 – Failure to notify

The respondent failed to notify the Board of a relevant event in breach of section 130 of the National Law that she had been charged with offences punishable by 12 months imprisonment on two occasions.

4. [4]
   The orders now sought by the applicant are:

   1. (a)
      A finding that the conduct of the respondent in ground 1 constitutes professional misconduct pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld);
   2. (b)
      A finding that the conduct of the respondent in grounds 2-6 constitutes unprofessional conduct pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld);
   3. (c)
      An order pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld) that the respondent be reprimanded.
   4. (d)
      An order pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld) that the respondent is disqualified from applying for registration for a period of four years.
   5. (e)
      An order pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld) that the interim prohibition order of the Health Ombudsman dated 23 May 2016, be set aside.
   6. (f)
      An order that the respondent is prohibited from providing a health service in a clinical or non-clinical capacity to patients under the age of 18 years until such a time as she obtains registration as a health practitioner.
   7. (g)
      No order as to costs.

The offending

5. [5]
   On 7 November 2017, the respondent was sentenced on her own plea of guilty in respect of one count of indecent treatment of a boy under the age of 16. The maximum penalty for that offence is 14 years. Having regard to a number of relevant matters, some of which will also be dealt with below, the sentencing judge imposed a sentence of 12 months, wholly suspended with an operational period of two years.
6. [6]
   The young boy was well known by the respondent and her then husband, who was also charged with a number of six offences involving the same boy. On the night in question there was a party at the house of the respondent and husband. All those in attendance were seriously adversely affected by alcohol including the boy. The particulars of the offending involving the respondent involved her being photographed in a number of sexualised poses. One of the more disturbing images involved the respondent on all fours wearing a beer maidens’ outfit with the boy, wearing only his underwear, squatting behind her with his crutch against the respondent’s buttocks and his hands cupped below her breasts.
7. [7]
   At the time of the offending, the respondent was 49 years of age and at the time of sentencing, 50 years of age. The boy was only 12 years of age at the time of the offending. Another disturbing feature of the offending, as was observed by the sentencing judge, included that the respondent’s husband was a registered sex offender. A matter about which the respondent was aware.
8. [8]
   Before going any further, prior to being sentenced, the respondent had prepared a form of statement meant to address the allegations made against her. Her then husband also swore a statutory declaration intended to paint the respondent in a favourable light. The Tribunal has placed no weight on those documents as they are clearly self-serving documents which, in any event, were overtaken by the guilty plea on an agreed schedule of facts.

The respondent’s mental health

9. [9]
   On 21 June 2017, Dr Greado, a consultant psychiatrist said of the respondent:

Ms Drake had been linked with the Toowoomba Mental Health Service since 27 January 2017 though her first presentation to public mental health services was in October 2015. She has been receiving treatment for the following psychological conditions

1. 1)
   Mixed anxiety depressive disorder
2. 2)
   Post-traumatic stress disorder (PCL-CV Score = 71 in March 2017)

Her current treatment plan includes the following:

1. 1)
   Voluntary case management Team 1 Community Mental Health service and Medical Officer reviews every three months or as required.
2. 2)
   Psychotherapy with a Psychologist organised through her GP and Mental Health Care Plan.
3. 3)
   Medication: Duloxetine 90mg daily.

Ms Drake has displayed commitment to engage with treatment while managing the stress of legal and financial issues related to the restriction that do not permit her to engage in her profession as a registered Nurse and trained Diabetic Educator. Her most recent admission to the mental health unit was in April 2017 in the context of suicidal ideation.

Ms Drake appears to be compliant with the current treatment plan.

10. [10]
    It would seem though that the respondent’s mental health issues pre-date October 2015. During sentencing, His Honour was informed of a number of attempts of suicide including one attempt as early as 2012 and another soon after the offending came to light.
11. [11]
    It can be readily accepted that at the time of the offending the respondent’s mental health was, at best, fragile. That of course provides no excuse for the criminal conduct on her part, but it was a relevant consideration during the sentencing proceeding and of course, the respondent’s mental health is an important consideration in the determination of this proceeding.

Discussion and consideration

12. [12]
    Proceedings such as this are protective rather than punitive in nature.^[1] The main principle for administrating this act is that the health and safety of the public are paramount.^[2] The meaning and effect of the term “personal misconduct” includes conduct outside of a practitioner’s professional role. Where such conduct is “inconsistent with the practitioner being a fit and proper person to hold registration in the profession.”
13. [13]
    It must be uncontroversial that the offence of indecent treatment of a child constitutes professional misconduct for the purposed of s 107(b)(ii) of the Health Ombudsman Act 2013 (Qld).
14. [14]
    It is the opinion of the Tribunal that the breach of bail involving the respondent being convicted on her own plea of guilty of conduct amounting to common assault, while falling short of professional misconduct, falls within the description of unprofessional conduct. Such conduct falls well short of the standard of conduct that might reasonably be expected of a health practitioner.
15. [15]
    As to the breaches involving the failure to report as required, they were far less serious in nature. It may be accepted that the excuses provided for the failures to appear are less than entirely convincing, that said, that conduct on its own might be thought to not amount to unprofessional conduct. On balance, the Tribunal has reached the conclusion that these two charges ought not be determined to amount to episodes of unprofessional conduct. In this regard the Tribunal also rejects the submission to the effect that these two charges ought, in some way, be seen as aggravating features of the more serious criminal offending.
16. [16]
    The providing of a false response, as the respondent did, to a question asked on her application for renewal of her registration, must be seen as an example of unprofessional conduct. There is no suggestion that it was anything other than a deliberate attempt to mislead. Further, there can be no reason for doubt that the request was for important information that could be relevant to the assessment of a person’s fitness to practice as a registered nurse. In this case, the information requested was critical to that assessment.
17. [17]
    Section 130 of the Health Practitioner Regulation National Law (Qld) (National Law) requires a health practitioner to, within 7 days, notify the relevant authority of a “relevant event”. This includes being charged with an offence punishable by 12 months imprisonment or more. The charge of indecent treatment was clearly a relevant event and it was not reported by the respondent. The same can be said in respect of the charge involving the allegation of common assault.
18. [18]
    A failure to report a relevant event within the seven days does not constitute an offence but it may constitute behaviour to which conduct, or performance action maybe taken. Given the seriousness of these allegations, in the context of the respondent being at the time, a registered nurse, that is the situation here.

Sanction

19. [19]
    As already referred to, sanctions are imposed by this Tribunal, not to further punish the practitioner but to protect, as far as it can, the safety of the public. Professional misconduct and/or unprofessional conduct is not limited to the event that occurred while the practitioner is acting in her professional capacity. The imposition of a sanction may also be necessary to act as a deterrent from further offending. That the respondent was sentenced in the criminal court to a period of imprisonment (albeit wholly suspended) need not mean that some form of moderation need to be adopted in determining what the appropriate sanction ought be. In Nursing and Midwifery Board of Australia v Faulkner,^[3] the Court of Appeal said:

…In general, the practitioner’s punishment under the criminal law is not a factor which should moderate the disciplinary sanction, because the purpose of that sanction is not to punish the practitioner, but to protect the public. It is recognised that the protection of the public extends beyond protection against further default by the particular practitioner to protection against similar defaults by other practitioners. There is a deterrent element involved in the protection of the public in this context. In that way, where a substantial punishment has been imposed on the practitioner under the criminal law for the misconduct for which the practitioner is to be disciplined, that punishment can be relevant. But its relative importance will obviously depend upon the facts and circumstances of the particular case.

20. [20]
    The Health Ombudsman relied on a number of “case comparatives”.^[4] It is necessary to only refer to the decision of this Tribunal in Nursing and Midwifery Board v Burrows to dispose of this matter. According to the Health Ombudsman, “the conduct in Burrows is of a similar nature as it involved a single instance.”
21. [21]
    There can be no doubt that the respondent’s criminal offending was very serious. To adopt the terminology of Allen QC DCJ in Health Ombudsman v DKM,^[5] her conduct was completely inconsistent with expectations and obligations of the nursing profession. It certainly warrants findings that it constituted professional misconduct and that the respondent be reprimanded and disqualified from applying for registration for a significant person of time.
22. [22]
    That said, the offending in Burrows was materially more serious that that in this case. Burrows was a registered nurse who was convicted of one count of indecent treatment of a child with circumstances of aggravation. The child was only 8 years old. In addition to the aggravating feature of the child being under the age of 12, it is tolerantly clear that, by reference to the sentence imposed, the conduct must have involved at least some physical contact of a sexual nature. Burrows was sentenced to two years imprisonment to be suspended after serving six months in actual custody. Burrows also had a dated criminal history involving five pervious convictions. The latest being in 2012 when he was fined for exposing his penis to a woman on a bus.
23. [23]
    In respect of the charge of indecent treatment, this Tribunal, unsurprisingly found that the conduct constituted professional misconduct. Burrows was also reprimanded. His registration was also cancelled, and he was disqualified from reapplying for registration for a period of four years from the date of the orders of the Tribunal. The net effect of that was that Burrows was prevented from being registered as a nurse for the best part of eight years.
24. [24]
    It was submitted that an aggravating feature in this case was the respondent’s lack of remorse. The Tribunal places little weight on that submissions as the sentencing remarks make it clear that the respondent’s lack of insight into the seriousness of the offending was likely, at least in part, able to be explained by her mental health.
25. [25]
    The applicant accepts that there has been a delay in having this matter disposed of. However, it says that would not be a significant consideration in the Tribunal for at least two reasons. First, relying on the observations of Doyle CJ in Craig v Medical Board of South Australia,^[6] the primary focus for the Tribunal is to decide what sanction the public interest requires. Second, at least as the submission is understood by the Tribunal, at least some of the delay can be attributed to the respondent’s on-going mental health issues.
26. [26]
    On balance, the Tribunal agrees that at the end of the day not much turns on the question of delay. However, it is not an insignificant factor that there has been no further offending of a similar nature on the part of the respondent.
27. [27]
    In all the circumstances of this case and the bearing in mind the sanctions imposed in Burrows, the Tribunal has reached the conclusions that the respondent ought to be disqualified for a period of three years from the making of these orders. By way of observation, it may be largely academic what the period of disqualification is. The respondent will never achieve re-registration until her mental health issues have been satisfactory resorted, and at least at this stage, she appears to have little, if any, intentions of returning to the nursing profession.
28. [28]
    For the reasons give, the findings and orders of the Tribunal are:

1. That in respect of ground 1 of the referral, the respondent behaved in a way that constituted professional misconduct.

2. That in respect of grounds 2 and 3 of the referral, the respondent behaved in a way that constituted unprofessional conduct but limited only to the breach of bail involving the assault.
3. That in respect of grounds 4, 5 and 6 of the referral, the respondent behaved in a way that constituted unprofessional conduct.
4. The respondent is reprimanded.
5. The respondent is disqualified from applying for registration as a health practitioner for a period of three years.
6. The respondent is prohibited from providing a health service in a clinical or non- clinical capacity to patients under the age of 18 years until such a time as she obtains registration as a health practitioner.
7. The interim prohibition order of the Health Ombudsman dated 23 May 2016 is set aside.
8. Each party is to bear their own costs of the proceeding.

Note: references to the Health Ombudsman should be to the applicant.