Health Ombudsman v Ndlovu[2022] QCAT 135

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This proceeding is concerned with an application by the health ombudsman seeking the following findings and orders: 

   1. (a)
      a finding that the conduct of the respondent in allegations 1 and 2 constitutes professional misconduct under the Health Ombudsman Act 2013 (Qld);
   2. (b)
      an order pursuant to 107(3)(a) of the Health Ombudsman Act 2013 (Qld) that the respondent is reprimanded;
   3. (c)
      an order pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled
   4. (d)
      an order pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld) that the respondent is prohibited from providing a health service in a paid or unpaid capacity in a clinical or non-clinical capacity until such time as she obtains registration as a health practitioner; and
   5. (e)
      that there be no orders as to costs.
2. [2]
   For the reasons that follow the findings and orders of the tribunal are: 

   1. (a)
      a finding that the conduct of the respondent in allegations 1 and 2 constitutes professional misconduct pursuant to 107(2)(b)(iii) or the Health Ombudsman Act 2013 (Qld); 
   2. (b)
      an order pursuant to 107(3)(a) of the Health Ombudsman Act 2013 (Qld), that the respondent is reprimanded; 
   3. (c)
      an order pursuant to 107(3)(e) of the Health Ombudsman Act 2013 (Qld), that the respondent’s registration is cancelled; 
   4. (d)
      an order pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld), that the respondent is prohibited from providing a health service in a paid or unpaid capacity in a clinical or non-clinical capacity until such time as she obtains registration as a health practitioner;  and
   5. (e)
      no orders as to costs.
3. [3]
   When this matter came on for hearing, the Health Ombudsman was represented by Ms Townsend.  There was no appearance on behalf of the respondent, either by her legal representatives or in her own capacity.  That is not entirely surprising, having regard to some of the matters that will now be addressed. 
4. [4]
   The applicant filed quite comprehensive written submissions.  None were filed on behalf of the respondent.  She did, however, file a response to the applicant’s referral for disciplinary proceeding.  In the applicant’s referral, the grounds for disciplinary action were stated as follows. At all material times the respondent was

   1. (a)
      registered under the Health Practitioner National Law 2009 (National Law) as a registered nurse with the Nursing and Midwifery Board of Australia; 
   2. (b)
      a health service provided within the meaning of section 8(a)(1) of the Act, being a health practitioner under the National Law; and
   3. (c)
      subject to the Registration Standards Code or Guidelines developed by the Board as to what constitutes appropriate professional conduct or practice of the nursing profession, including the Board, the Code of Professional Conduct for Nurses in Australia, the Code of Conduct for Midwives and the Code of Ethics for Nurses in Australia.
5. [5]
   The applicant alleges that with respect to allegations 1 and 2 that the respondent behaved in a way that constitutes professional misconduct within the meaning of section 5 of the National Law on the grounds that she engaged in conduct: 

(a) that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and/or

(b) engaged in conduct that is inconsistent with the respondent being a fit and proper person to hold registration. 

6. [6]
   There is a further ground argued in the alternative but it is unnecessary to deal with that to dispose of this matter. 
7. [7]
   In paragraphs 1 and 2 of the respondent’s reply on behalf of the respondent, it was said under the heading of Grounds for Disciplinary Action:

“In relation to paragraphs 2 and 3 of the referral, the respondent admits that with respect to allegations 1 and 2 she behaved in a way that constitutes professional misconduct within the meaning of section 5 of the National Law.  The respondent says further that she behaved in a way that constitutes professional misconduct as she engaged in:

1. (a)
   unprofessional conduct 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/or
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.”

8. [8]
   While the respondent admitted to having engaged in professional misconduct in respect to allegations 1 and 2 of the referral, she denied a number of particulars provided in respect of those allegations.  Allegation 1 was that between 13 March 2017 and 5 June 2017, the respondent contravened conditions imposed on her registration by the Board.  Allegation 2 was that between 3 April 2017 and 17 July 2017, the respondent made false and misleading statements to the Australian Health Practitioner Regulation Agency. That the respondent denied a number of particulars of the allegations in her response was largely overtaken by the filing of a statement of agreed and disputed facts.
9. [9]
   Uncontroversial facts are as follows. The respondent was born on 19 December 1980 and is currently 39 years of age.  She was 37 years of age at the time of the relevant conduct, which, as I have said, occurred between March 2017 and 17 June 2017.  The respondent in 2003, completed a Diploma of Nursing at the Health Professions Council of Zimbabwe, and in 2012 she completed a Masters of Nursing at the University of Southern Queensland.  She first obtained registration from the Nurses Council of Zimbabwe as a general nurse in January 2004.  She was first registered as a registered nurse in Queensland on 23 January 2006.  The respondent still currently holds registration as a nurse.
10. [10]
    In respect of her employment history, between 20 January 2004 and December 2004, the respondent practised as a registered nurse in a paediatric ward in Zimbabwe.  Between June 2005 to June 2006, she practised as a registered nurse in the general medicine and cardiac wards in New Zealand.  Between July 2006 and May 2009 she practised as a registered nurse at the Cairns Base Hospital.  Between July 2009 and July 2015, she practised as a registered nurse at Redcliffe.  Between 13 March 2017 and 29 May 2017, the respondent engaged in various shifts at the Lutheran Community Centre (LCC), where she practised as a registered nurse on a casual basis.  The respondent has not worked as a registered nurse since at or about 29 May 2017. 
11. [11]
    The respondent had what could only be described as an unsatisfactory notification history. 
12. [12]
    Under the heading Facts of the Conduct, it was said:

“The applicant alleges that the practitioner has admitted that the practitioner has behaved in a way that constitutes professional misconduct.  As a result of notification 00303604, 00304606 and 00361788, the Nursing and Midwifery Board of Australia imposed conditions on the practitioner’s registration.” 

13. [13]
    In relation to practice, the conditions imposed by the Board included conditions to the following effect: the practitioner must only practice as a registered nurse under the supervision (either direct or indirect) of a registered nurse who is senior to the practitioner, agrees to nomination, provides a detailed copy of their curriculum vitae and be approved in writing in advance by the Board.  Within 14 days from the commencement of employment, the practitioner is to provide to AHPRA details of any and all places of practice, together with confirmation from the practitioner’s supervisor that they have sighted these restrictions.  In relation to health, the conditions imposed by the Board included a condition to the following effect: the practitioner must attend for treatment by a psychologist of her own choice and must provide a report from the psychologist to the Board addressing the practitioner’s treatment at the end of each three months or whenever the Board or psychologist has concerns in relation to the practitioner’s health. Somewhat ironically, that particular condition ceased to be in force during the time the respondent practised as a registered nurse.  I say that it was somewhat ironic in the sense that the respondent’s mental health, particularly in respect of anxiety and depression, have caused her to assert that she was incapable of participating in these proceedings. 
14. [14]
    The false and misleading statements are set out in the statement of facts, which are uncontroversial.  The first allegation involved the respondent advising the Board that she was currently practising as a registered nurse in Dubai and had been doing so over a period of over the last six months.
15. [15]
    That statement was proved to be incorrect, and, in fact, the respondent had not worked in or travelled to Dubai at all.  Other false and misleading statements included the respondent advising various authorities that she was not working as a registered nurse when in fact she was doing so on a casual basis with the LCC.
16. [16]
    The particulars of the alleged false and misleading statements are set out in the application or referral for disciplinary proceedings and are as follows.  On 3 April 2017, the respondent stated that she was still working in employment in Dubai and not in Australia.  On 7 April 2017, the respondent provided a set of employer details which were dated 3 April 2017 in which she declared that she was employed as a registered health practitioner but was not practising in Australia.
17. [17]
    On 25 May 2017 the respondent stated that the Lutheran Hospital would like to employ her but she was waiting for her practising licence.  On 1 June 2017, the respondent stated that she was due to work at the Lutheran Hospital on Monday, 5 June 2017.  On 5 June 2017, she stated that her employment with that hospital had been terminated and she would no longer be working there.  On 9 June 2017, she stated that she did not work any days at that hospital, and on 15 June the respondent through her legal representative stated that she had not commenced work at that hospital.  And on 17 July 2017, again through her legal representatives, the respondent stated that she had notified that hospital of the conditions in her online application.
18. [18]
    The respondent denied two of those allegations. Namely those concerned with what occurred on 5 and 17 June 2017. That is, the allegations as particularised in paragraphs 2.2(e) and 2.2(g) of the applicant’s referral notice. But otherwise, the respondent admitted to the substance of all of the other six allegations made in respect of the providing of false and misleading statements.  Her denial of two of the eight allegations has little impact on the outcome of this proceeding in the opinion of the tribunal. That said though, the tribunal will proceed on the basis that those two allegations have not been proved.
19. [19]
    In her responses concerning the allegations, she admits that her statements at paragraphs 2.2(a) to (b) of the referral were false and misleading, as she was employed and practised as a registered nurse at the LCC on 23 occasions between 13 March 2017 and 29 May 2017.  She also went on to admit that the statement made in paragraph 2.2(f) of the referral was false and misleading, as she was employed and practised as a registered nurse at the LCC on 23 occasions between 13 March 2017 and 29 May 2017.
20. [20]
    As already referred to, there is no dispute that the respondent was in breach of her conditions to work as a registered nurse only under supervision.  That the parties agree that the conduct of the respondent amounted to professional misconduct is, of course, a relevant consideration.  It is, however, at the end of the day for the Tribunal to determine whether the respondent’s conduct was substantially below the standard which might reasonably be expected of a registered health practitioner in all the relevant circumstances.  In the Health Ombudsman v Tang^[1], the then Deputy President said:

The meaning of “substantial” was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commission (No 2) [2015] SASCFC, where it was said: “…it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner.  In the context of this appeal, ‘substantial’ connotes a large or considerable departure from the standard required.  This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct”.  In deciding whether conduct should be characterised as “unprofessional conduct” or “professional misconduct”, the tribunal is required to make judgments as to the degree of departure from the standard reasonably expected of the practitioner by the public or the practitioner’s peers.

21. [21]
    Here, the conduct of the respondent clearly falls within the meaning of “substantial”.  This was not a mere departure on the part of the respondent from what would be expected or reasonably expected from a practitioner.  It involved numerous breaches of her conditions and also, disturbingly, the consistent making of deliberate and false and misleading statements.  The tribunal is more than satisfied that the conduct of the respondent can properly be said to fall substantially below the standards that might be reasonably expected of a registered health practitioner.
22. [22]
    Accordingly, the tribunal is satisfied that the respondent is such, and the Tribunal is also satisfied that not only should there be a finding to that effect but there should be an order that the respondent be reprimanded.
23. [23]
    It is tolerably clear that the respondent has had an unfortunate history dealing with mental health issues, particularly anxiety and depression.  Thus, the conditions that she work only under supervision and attended treatment.  As has already been discussed, the condition that she attend treatment and that there be reporting in respect of those attendances had been cancelled while the respondent was still practising as a registered nurse.
24. [24]
    The respondent’s mental health issues are still a major concern.  On 3 August 2021, the respondent obtained a medical certificate from a Dr Chendume of Our Medical Home, North Lakes, that certified that she was suffering from depression/anxiety and was unfit to participate in the disciplinary process until 17 September 2021.  Then on, 16 November 2021, the respondent confirmed that she was still unable to participate in these proceedings due to her underlying health issues.  It is an unfortunate situation that as of today’s date neither the Health Ombudsman, the relevant authorities nor this tribunal have any further knowledge about the respondent’s mental health issues.
25. [25]
    It was said in the Legal Services Commission v Yarwood^[2] that even if the existence of a psychiatric disorder goes some way to explaining why conduct might have occurred, it need not excuse conduct which takes on the character of unsatisfactory professional conduct or professional misconduct. The mental health issues of the respondent, of course, provide some relevant background to what might have been an influencing factor in her conduct, but it certainly in no way provides an excuse. 
26. [26]
    It is uncontroversial that the most difficult aspect of this case is to decide whether the respondent’s registration as a nurse should be cancelled or suspended.  In Nursing and Midwifery Board of Australia v Fisher^[3], that tribunal said:

A failure to comply with a condition on registration is a very serious matter, as it suggests the practitioner is not willing to observe the law and act consistently with the requirements of the relevant registration body.  It is not open for a professional person to decide which conditions they choose to comply with or to disregard, restrictions which have been placed on their registration. 

27. [27]
    Typically, suspension from practice will be appropriate in circumstances where the tribunal can be sufficiently confident in the practitioner’s ability to practice without the risk to the public and patients once the period of suspension has been served.  On the other hand, in circumstances where the tribunal at the time of the hearing considers the practitioner is not to be a fit and proper person to hold registration, then cancellation will more often than not be the appropriate outcome.^[4]
28. [28]
    The applicant understandably contends for cancellation in this case given the seriousness of the respondent’s conduct, together with the uncertainty of her mental health. In this regard, the Health Ombudsman has referred the tribunal to three cases; Psychology Board of Australia v Wakelin^[5], Healthcare Complaints Commission v Moslemi,^[6] and Nursing Midwifery Board v INZ.^[7]  It is unnecessary to dwell on the first of those two cases. 
29. [29]
    The applicant contends that INZ is the most comparable factually.  The tribunal agrees, and would also note that that case also involved a practitioner who had suffered mental health issues.
30. [30]
    In INZ, the practitioner was subject to a number of conditions requiring supervision and the reporting of mental health issues and drug testing.  She breached those conditions on numerous occasions over time.  Her conduct was characterised as professional misconduct.  Notwithstanding that, her registration was suspended rather than cancelled.  However, there are a number of factors that were present in that case which are not present here.  First, the practitioner had already been under suspension for two years.  Second, and perhaps more importantly, there was persuasive evidence that at the time that she was again fit to return to practice.
31. [31]
    The tribunal intends to proceed on the basis that the respondent here has displayed a degree of insight into the seriousness of her conduct.  That is so by reference to the number of frank admissions she had made once the referral process had begun.  That said, as the tribunal has already pointed out, as late as 16 November 2021 the respondent had confirmed that she was still unable to participate in these proceedings due to her underlying mental health issues.  It would not be unreasonable to infer that those issues, be it anxiety and/or depression, as at the date of this hearing, 20 April 2022, are still present.
32. [32]
    Also, as was already been pointed out, the respondent has not appeared before the Tribunal and has not provided any reason for her failure to appear. That leaves the tribunal in the situation where it has no probative information as to what the current status of the respondent’s mental health might be. 
33. [33]
    There is another unfortunate aspect of this proceeding.  That is the delay in having this matter disposed of.  The relevant conduct ended in about mid-2017 here the matter is before the Tribunal some five years later.  It can be accepted that at least part of that delay can be attributed to the respondent’s mental health. That said though, that there has been such an extensive delay cannot be laid entirely at the feet of the respondent. 
34. [34]
    The tribunal would also note that the respondent has reapplied for registration as a practising nurse, which might indicate that she intends to return to that profession as a practising nurse. 
35. [35]
    After some consideration, the tribunal has decided that given that the primary purpose of proceedings such as this is ensuring the health and safety of the public and to that end, send an appropriate message of both deterrence and denunciation, conduct such as this, together with the uncertainty surrounding the respondent’s current fitness to practice due to her mental health issues, leads the Tribunal to conclude that the balance falls in favour of cancellation rather than suspension. That is because at the time of hearing the tribunal, on the material it has before it, is not satisfied that the respondent is a fit and proper person to practice as a registered nurse. That said though, the tribunal has reached the conclusion that it would be an unnecessarily punitive outcome rather than a protective outcome to prohibit the respondent from applying for re-registration as a nurse for a period of 12 months. 
36. [36]
    Accordingly, the orders of the tribunal are as has been already expressed.