Health Ombudsman v ASK[2022] QCAT 174

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On the 21st of April 2021 the Director of Proceedings, on behalf of the Health Ombudsman (the applicant), referred two health complaints to the Tribunal pursuant to the Health Ombudsman Act 2013 (Qld) alleging that the respondent, a registered  enrolled nurse at all relevant times, had behaved in a manner that constitutes professional misconduct, by attempting to divert an Endone tablet, from a patient on the 23rd of September 2018, and actually diverting Endone from another patient on the 6th of November 2018, in circumstances in which the patients were under his care as a clinical nurse in a specialist unit at a  Gold Coast Hospital.
2. [2]
   In his response, filed on the 8th of August 2021, the respondent admits all factual allegations in the referral, and that his conduct may constitute professional misconduct as defined in all three limbs of the definition of that concept in section 5 of the Health Practitioner Regulation National Law (Qld) (National Law).
3. [3]
   In the respondent’s submissions, filed on the 16th of November 2021, under the hand of Ms S Robb of counsel, the respondent accepts the allegations made against him in the referral, and that his proved conduct can be properly categorised as professional misconduct.
4. [4]
   The parties have filed an agreed statement of facts.  The parties also agree on the appropriate disciplinary response by way of sanction.

Relevant background

5. [5]
   The respondent was born on the 2nd of July 1989.  He was 29 years old at the time of the alleged conduct.
6. [6]
   He has a Diploma of Nursing from the Gold Coast Institute of TAFE in 2009 and a Bachelor Degree in Nursing from Griffith University in 2011;  a Graduate Certificate in Health Professional Education from Griffith University in 2016;  and a Masters in Health Practice from Griffith University in 2016.
7. [7]
   He was granted registration with the Nursing and Midwifery Board of Australia (the Board) as an enrolled nurse on the 22nd of November 2010, and as a registered nurse on the 31st of January 2012.
8. [8]
   Apart from the current referral, the respondent has no prior conduct notification or any prior criminal history.
9. [9]
   His registration is currently subject to conditions.
10. [10]
    At the time of the alleged conduct, he was employed in the role of clinical nurse on ward C3 west at the Gold Coast University Hospital.
11. [11]
    He was working as a home care employer with RSL LifeCare from the 23rd of April 2021 to the 25th of August 2021 but now volunteers with his faith organisation in Brisbane and on the Gold Coast.

The relevant conduct

12. [12]
    The relevant conduct is detailed in a statement of agreed facts filed by both parties on the 6th of September 2021.
13. [13]
    In summary, on the 23rd of September 2018, whilst employed as a clinical nurse on a specialist ward at the hospital, the respondent attempted to misappropriate one tablet of Endone designated for a patient under his care and, whilst in the same role, on the 6th of November 2018, actually succeeded in dishonestly diverting a tablet of Endone from another patient.  On each occasion, his misconduct was detected by a nursing colleague who was present in accordance with the protocols in place in all hospitals for dealing with Schedule 8 drugs.

Regulatory action

14. [14]
    On the 11th of January 2019, the Health Ombudsman received a notification raising multiple concerns about the respondent’s conduct, including his management of Schedule 8 drugs.
15. [15]
    The Office of the Health Ombudsman commenced an investigation.  As a result of the investigation, on the 1st of February 2019, the Office of the Health Ombudsman imposed conditions on the respondent’s registration as a registered nurse, which included supervision by another health practitioner; and a condition that he is not to possess, supply, administer, handle, dispense, assess, or check any Schedule 8 or Schedule 4 restricted drug of dependency.
16. [16]
    On the 24th of April 2019 the Office of the Health Ombudsman varied the conditions on the respondent’s registration to include the conditions on the respondent’s registration as an enrolled nurse.
17. [17]
    The respondent has been unable to obtain work as an enrolled nurse during the period due to the restrictions on his registration.
18. [18]
    In the applicant’s submission, there is an acknowledgement that the respondent has undertaken education during the intervening period, however it can properly be described as the usual education for Compulsory Professional Development educational requirements to maintain registration and not specifically targeted education on ethics or drug administration.

Characterisation of conduct

19. [19]
    The parties agree that the admitted conduct of the respondent constitutes professional misconduct as defined in section 5 of the National Law.  In exercising its independent discretion, the Tribunal should not readily go behind the agreement of the parties if it is appropriate, having regard to the jurisprudence and relevant legislation especially, as here, the respondent is represented by lawyers with expertise in the disciplinary field.
20. [20]
    Although the respondent was not convicted of criminal offending in relation to his conduct, it clearly involved dishonest behaviour in his workplace, designed to deceive a nursing colleague who was there to ensure the proper protocols were observed in relation to the dispensation of Schedule 8 drugs to patients, for the purpose of obtaining those drugs for himself.  It also involved a significant breach of trust both his colleague, his profession, his employer and his patients.
21. [21]
     Health Ombudsman v Jamieson [2017] QCAT 172 involved a nurse who was found to have engaged in professional misconduct by stealing three boxes of common antibiotics from the hospital where she worked.  The Tribunal stated 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…Whilst 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.

22. [22]
    It is accepted by the respondent that his admitted misconduct breached a number of the values and principles promulgated in the Code of Conduct for Nurses to which he was subject at the relevant time and which, in proceedings such as these, are admissible as evidence of proper professional conduct by health practitioners.^[1]  Not surprisingly, the Code refers to the need for nurses to act with honesty and integrity, to comply with the general law, and to promote the health and wellbeing of people in their care.  These drugs were obviously prescribed to these patients, and by diverting or attempting to divert the tablets for his own use, the respondent was acting completely contrary to these principles and certainly not in a way that protects the health and safety of the public.
23. [23]
    The admitted conduct clearly is substantially below the standard reasonably expected of a nurse of an equivalent level of training or experience and constitutes professional misconduct.

Sanction

24. [24]
    These proceedings are protective in nature and not punitive.  The oft-quoted decision of the Victorian tribunal, the Medical Board of Australia v Jansz [2011] VCAT 1026, provides a useful guide for the approach to be taken by a tribunal in formulating an appropriate sanction in the case of health practitioners found to have behaved in a way which constitutes professional misconduct.
25. [25]
    In this case, the parties also agree as to sanction. The Tribunal should not substantially depart from that agreement provided that it falls within the range of appropriate sanctions for the relevant conduct or otherwise does not constitute exceptional circumstances.^[2]
26. [26]
    Clearly the conduct was serious for the reasons set out above.  The sanction should be designed to deter others who may be tempted to act dishonestly in relation to medication intended for patients, especially health practitioners in the workplace.  It should also be designed to encourage public confidence in the profession, which is apt to be undermined by such behaviour.
27. [27]
    Insight and remorse are important factors in proceedings such as this.  The respondent has filed an affidavit in these proceedings.^[3]  It is common ground that, is a result of the immediate registration action taken by the Office of the Health Ombudsman, the respondent has not worked as a nurse since the 5th of February 2019, that is just over three years.
28. [28]
    Although he initially denied his conduct when questioned by his employer, and only made full admissions with the filing of his response to the referral on the 8th of August 2021, he explains in his affidavit the very distressing personal circumstances which may have contributed to his misconduct.  In 2018 he says he was extremely stressed and anxious as a result of his personal circumstances.  His denials, he explains, were because of “I simply couldn’t come to terms with my own behaviour, the shame and disgrace to myself and my family”.
29. [29]
    The applicant fairly recognises that in the period that he has been away from his profession, the respondent has undertaken steps to address the underlying causes of his misconduct, by consulting monthly with a psychiatrist who diagnosed a depressive illness and who prescribed medication with which the respondent is compliant, and by undertaking further relevant education courses, including courses in medication safety in 2019, 2020 and 2021.  It can be accepted that the shame and disgrace he feels, as described in his affidavit, is genuine, and indicative of genuine remorse.  I accept the opinion of his treating psychiatrist relating to the cultural imperatives behind his feelings of shame, remorse and insight, which report is annexed to his affidavit filed in the Tribunal.
30. [30]
    It is also relevant that as a result of being unable to obtain employment as a nurse, he has suffered significant consequences, not only financial, but also public shame in the eyes of colleagues and with his family and his community.
31. [31]
    I agree with Ms Robb that the cases of Health Ombudsman v DKM [2021] QCAT 50 and Health Ombudsman v Haack [2020] QCAT 285 are analogous, and supportive of the parties’ agreed submission in relation to sanction.
32. [32]
    His unconditional cooperation with these proceedings, and his lack of any other regulatory history or any criminal history at all are also relevant factors.  The findings and orders of the Tribunal are as follows:

    1. (a)
       the Tribunal finds that the conduct of the respondent in allegations 1 and 2 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld);
    2. (b)
       Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld) the respondent is reprimanded;
    3. (c)
       Pursuant to section 107(3)(b)(i) of the Health Ombudsman Act 2013 (Qld) the respondent is to  complete specified education within six months in accordance with the attached set of conditions;
    4. (d)
       Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld) the immediate registration action is set aside;
    5. (e)
       no order as to costs.