Health Ombudsman v Hutchinson
[2022] QCAT 265
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- Unreported Judgment
- Health Ombudsman v Hutchinson[2022] QCAT 265
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Health Ombudsman v Hutchinson[2022] QCAT 265
Health Ombudsman v Hutchinson[2022] QCAT 265
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Hutchinson [2022] QCAT 265 |
PARTIES: | director of proceedings on behalf od the health ombudsman (applicant) v Natasha Rosalie Hutchison (respondent) |
APPLICATION NO/S: | OCR286-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 14 June 2022 (ex tempore) |
HEARING DATE: | 14 June 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member J Robertson Assisted by: Ms N French Ms D Layt Mr S Le Marseny |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where respondent as a registered psychologist obtained a large quantity of Schedule 8 and 4 drugs unlawfully for her own use – where she used a stolen identity to obtain some drugs from overseas – where the offending did not involve any patients – where the respondent was impaired with an opioid addiction – where Board was managing her impairment – where respondent had transferred to non-practising registration which she then surrendered – where Board would therefore have to assess her suitability to practise if she did seek to return to ordinary registration – where respondent pleaded guilty to a large number of offences and co-operated with the regulator and applicant in the conduct of these proceedings – where parties agree as to sanction Health Ombudsman Act 2013 (Qld) s 107 Health Practitioner Regulation National Law (Qld) s 5 Health Ombudsman v ADV [2020] QCAT 364 Health Ombudsman v Brown [2019] QCAT 2018 Health Ombudsman v McGuinness [2021] QCAT 1 Health Ombudsman v YCB [2021] QCAT 265 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On the 29th of September 2021 the applicant Director referred to the Tribunal a health services complaint against the respondent; at all relevant times a registered psychologist with the Psychology Board of Australia (the Board). The complaint relates to the respondent’s conviction on her own pleas of guilty to 30 offences variously under the Criminal Code, the Drugs Misuse Act 1986 (DMA), and the Health (Drugs and Poisons) Regulation 1996 (the Regulation) in the Magistrates Court of Maroochydore on the 30th of July 2021.
- [2]The parties have filed a statement of agreed facts and there are no factual disputes. The parties agree that the admitted conduct is appropriately characterised as professional misconduct pursuant to section 5 of the National Law. The matter was set down for hearing today as the parties were then in dispute over sanction. The respondent had transferred to non-practising registration, so as a matter of law, she remained a registered health practitioner under the National Law.[1] On the 13th June i.e a day before the hearing, the parties filed a joint submission in which they informed the Tribunal for the first time that the respondent had surrendered her non-practising registration, so their agreement that there should be some form of suspension could no longer stand, as section 107(4)(a) only permitted the Tribunal to disqualify her from applying for registration “..for a specified period”. Unfortunately, I had prepared reasons based on the written submissions which were based on the respondent being still registered, albeit as a non-practising psychologist, and the submissions of the parties relating to suspension under section 107(3) (d) of the Health Ombudsman Act 2013. At the request of the parties, as set out in the joint submission filed 13th June, the Tribunal agreed that the matter could proceed on the papers to save costs. As a result, and when the error was pointed out by the applicant upon receipt of the draft reasons, I have amended the reasons given ex tempore on 14th June to represent the fact that the respondent is no longer registered. The parties also agree that by way of sanction the respondent should be reprimanded. The parties also agree that the respondent should be disqualified from applying for registration for a period of 3 months pursuant to section 107(4)(a) of the HO Act. The Tribunal retains an overall discretion in relation to the issue of characterisation and sanction. However, in relation to sanction a Tribunal should not depart from an agreed sanction between parties, particularly when they are represented by lawyers, where orders proposed fall within the appropriate range for such conduct.
Background
- [3]The respondent is currently 37 years of age. She was first registered with the Board on the 18th of October 2011. She has no prior notification history with the Australian Health Practitioner Regulation Agency (Ahpra). Other than the convictions referred to the Tribunal, she has no criminal history.
- [4]At the relevant time, she was a director and psychologist at Spectrum Psychology Centre at Coolum Beach on the Sunshine Coach.
- [5]On the 13th of May 2020, the Health Ombudsman received an anonymous complaint alleging the respondent was using drugs, practicing while under the influence of drugs, doctor shopping, purchasing drugs from the “Dark Web” and other related matters. The Health Ombudsman referred the respondent’s health to Ahpra, but retained the conduct matter for investigation. On the 5th of June 2020, the Health Ombudsman was notified by the Queensland Police Service that the respondent had been charged with unlawful drug possession and fraud offences under the Criminal Code, DMA, and the Regulation.
- [6]On the 29th of June 2020, the Board took immediate action against the respondent and suspended her registration. The suspension was on the basis of the respondent’s use of opioids and other substances without adequate clinical management, the potential impact on her ability to practice, and the potential risk posed to clients.
- [7]The Board required the respondent to undergo a full health assessment which she did on the 21st of July 2020 with Dr Jill Reddan, consultant psychiatrist. Dr Reddan assessed the respondent as having an impairment (opioid dependence) and made recommendations around treatment and testing.
- [8]On the 27th of August 2020, having reviewed a report from the treatment program in which the respondent had engaged, and also further pathology results, Dr Reddan found the respondent safe to practice subject to conditions.
- [9]On the 5th of November 2020, the Board found the respondent had an impairment. It also determined the impairment could be adequately managed by undertakings given by the respondent to undergo hair drug screening and treatment (by a treating general practitioner and a practitioner experienced in the management of opiate dependence).
- [10]Given the risk posed by the respondent, it was considered adequately managed by the undertakings, and the Board revoked the immediate action. In April 2021, the respondent applied for and was granted non-practicing registration. At some later unspecified time she surrendered her non-practising registration, so is now not registered.
- [11]The respondent’s criminal proceedings were finalised on the 13th of July 2021, when she was sentenced in the Magistrates Court of Queensland at Maroochydore on her own pleas of guilty. The Health Ombudsman investigation concluded shortly thereafter, and the matter was referred to the applicant.
Relevant Conduct
- [12]On the 31st of July 2021, in the Magistrates Court of Queensland at Maroochydore, the respondent was convicted on her own plea of guilty of 30 offences under the Criminal Code, DMA, and the Regulation.
- [13]The offences concern the respondent’s obtaining and possession of a significant variety of restricted, controlled, and dangerous drugs, along with items including empty drug capsules, containers, and labels. The offences also involved her illegal purchases of some of those drugs and items from overseas, and the use of the identity of another person, with associated fraud, forgery, and dishonesty offences.
- [14]On the 2nd of June 2020, the Queensland Police had conducted a search at the home address of the respondent. Located during the search were 18 green Suboxone films 2 mg/0.5 mg and 41 blue Suboxone films 8 mg/2 mg (Suboxone films contain the dangerous drug Buprenorphine). The search also located 20 Actavis Diazepam 10 mg (contains the dangerous drug of Diazepam), 97 Valium ‘Roche 5’ mg which contains the dangerous drug Diazepam; two capsules of Ketamine, a dangerous drug; 17 Methadone AB-HP 40 mg and one Methadone 20 mg, (Methadone is a dangerous drug); 42 tablets of Oxycodone 80 mg, a dangerous drug; 11 tablets containing Alprazolam, a dangerous drug; 14 Kapanol Morphine Sulfate 100 mg which contains the dangerous drug Morphine; 49 Aspadol tablets 100 mg (which contains the Schedule 8 controlled drug Tapentadol); 15 blue and pink S489 70 mg capsules of Vyvanse 70 mg (which contains the Schedule 8 controlled drug Dexamphetamine); and 101 tablets identified as Dexamphetamine which is a Schedule controlled drug and a “specified condition drug”; 50 tablets containing Carisoprodol, a Schedule 4 restricted drug; 10 tablets containing Clonazepam, a Schedule 4 restricted drug; two tablets of Catapress 150 which contains Schedule 4 restricted drug Clonidine HCL; 21 Aciphex 20 mg which contains the Schedule 4 restricted drug Rabeprazole; 59 Zopicione tablets 7.5 mg, a Schedule 4 restricted drug; 23 Tamol-x 225 mg and 2 Tamol-XX 200 mg which contains the Schedule 4 restricted drug Tramadol; and 40 Modafinil tablets USP 100 mg which is a Schedule 4 restricted drug.
- [15]In respect of the Criminal Code and DMA offences, the respondent was released on probation for a period of three years with conditions including that she submit to medical, psychiatric or psychological assessment and/or treatment and urine analysis testing as directed by the person supervising the order, and in relation to the Regulation offences the respondent was fined $1000. The Magistrate exercised his discretion not to record convictions.
Characterisation
- [16]The applicant bears the onus of proof. The respondents’ convictions is on her own pleas of guilty and are admitted by her. The proved conduct clearly constitutes professional misconduct as defined in sections 5(a) and (b) of the definition of that concept in the National Law.
- [17]The Australian Psychological Association Code of Ethics (Code of Ethics) is admissible as evidence of what constitutes appropriate professional conduct of practice for members of the psychology profession pursuant to section 41 of the National Law.
- [18]The Code of Ethics expresses the responsibility of psychologists towards their clients, colleagues, the profession, and the community and society at large. It requires psychologists to avoid engaging in disreputable conduct that reflects on their ability to practice as a psychologist, or that reflects negatively on the profession or discipline of psychology.
- [19]“Conduct” is defined to include, inter alia, any act or omission outside of the practice of psychology which casts doubt on competence and ability to practice as a psychologist, or which harms public trust in the discipline or in the profession of psychology.
- [20]As the applicant notes in his submissions, comparable decisions involving examples of other health practitioners convicted of drug and related offences is conduct found by the Tribunal to constitute professional conduct for example, Health Ombudsman v McGuinness [2021] QCAT 1 (McGuinness); Health Ombudsman v YCB [2021] QCAT 265 (YCB); Health Ombudsman v ADV [2020] QCAT 364 (ADV); and Health Ombudsman v Brown [2019] QCAT 2018 (Brown).
- [21]The applicant has not located a decision specifically involving a psychologist convicted of such offences.
- [22]The fact that the conduct involved very serious offending including unlawful possession of schedule 8 and 4 drugs and other dangerous and restricted drugs, and the use of another person’s identity in the false authorisation form to collect packages from that person without his knowledge or consent, conduct that is unlawful under the Criminal Code, the DMA, and the Regulations, demonstrates this was not an isolated offending, was well planned, was designed to benefit herself, occurred over a considerable period of time, and constitutes a very substantial departure from standards reasonably expected of a psychologist of an equivalent level of training or experience.
- [23]Her conduct is inconsistent with public and professional expectations of how practitioners should deal with controlled and dangerous and restricted drugs. It is also inconsistent with the personal characteristics and ethical standards required of the psychology profession as embedded in the Codes of Ethics. It also indicates the significant potential for adverse impact on the reputation of, and trust in, the profession which such conduct creates in the eyes of the public.
- [24]The Tribunal has no hesitation in finding that the proved conduct constitutes professional conduct under (a) and (b) of the National Law definition in section 5.
Sanction
- [25]As is often noted, proceedings of this nature are protective and not punitive. The fundamental principle that informs the Tribunal’s discretion to impose orders by way of sanction on a health practitioner who has engaged in professional misconduct is the paramountcy of the health and safety of the public.
- [26]In deciding the appropriate sanction in a particular case, the Tribunal will consider factors that arise in the particular case including the nature and seriousness of the practitioner’s conduct; insight and remorse shown by the practitioner; the need for specific deterrence and general deterrence; evidence of rehabilitation and/or steps taken by the practitioner to prevent reoccurrence of the conduct; matters giving context to and/or explanation for the conduct, for example mental health issues; and other matters including past disciplinary history, police history, character evidence, periods of preclusion/non-practice, delay and the effluxion of time; and cooperation during criminal and disciplinary proceedings.
- [27]As set out in the relevant case law, any sanction then may serve one or more of these purposes including preventing practitioners who are unfit to practice from practicing; securing maintenance of professional standards; assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated; bringing home to the practitioner the seriousness of their conduct; deterring the practitioner from any future departures from appropriate standards; deterring other members of the profession who might be minded to act in a similar way; and imposing restrictions on the practitioner’s right to practice so as to ensure that the public is protected.
- [28]In relation to the present matter, the respondent’s conduct was very serious involving multi-faceted criminal conduct for the purposes of obtaining drugs for herself. Clearly, her impairment was the main reason for her offending. The Tribunal has not been provided with the material tendered before the Magistrate on the 13th of July of 2021, but it is reasonably clear from the Magistrate’s sentencing remarks that he imposed the orders he did on the basis that he was satisfied that the respondent then was on the road to recovery. The conduct was outside her professional role, and did not involve patients, however, that does not detract from the fact that it was serious and constituted professional misconduct.
- [29]In the present case by immediate registration action and her own choice of transferring to non-practicing registration, which she then surrendered, the respondent has not practiced now as a psychologist for approximately 20 months.
- [30]The respondent has shown some insight and remorse by her pleas of guilty in the criminal offending and her cooperation with these proceedings. I agree with the applicant that the Tribunal would have been greatly assisted by up-to-date material relating to the management of her impairment and her rehabilitation. That said, that simply means the Tribunal acts on the material before it. The protection of the public will be a matter for the Board if and when she applies to return to full practicing rights as a psychologist.
- [31]Given the agreements reached between the parties as to sanction, it is not necessary for me to analyse the cases referred to particularly in the applicant’s submission. However, I will refer to one matter which I do regard is of some assistance and that is the matter of Brown. Brown was a registered nurse convicted on charges of possessing dangerous drugs, restricted drugs and related offences and also two offences of breach bail condition. He was sentenced to undergo 18 months on probation with conditions for drug testing and counselling. Convictions were not recorded. He was subsequently charged with, and pleaded guilty to an offence of driving whilst a relevant drug was present in his system and shoplifting from a hardware store. He failed to notify Ahpra of his convictions and failed to make relevant declarations on his registration renewal.
- [32]The practitioner’s health was assessed and immediate action conditions placed on his registration by the relevant Board requiring a period of six months of clear drug- screening tests before he could practice. He did not return to practice. Approximately two years later he moved to non-practicing registration.
- [33]The Tribunal found that [23-25];
“It is appropriate that the respondent’s misconduct be denounced by the Tribunal by way of a reprimand. The only substantial issue in dispute is whether orders for sanction should also include an order for suspension of the respondent’s registration.
Both parties have noted that the issue of any health impairment of the respondent is not before the Tribunal. The applicant submits that the issue of health impairment is to be managed by the Board, and that if the respondent was to apply for practicing registration, he will be required to meet all the Board’s standards, including disclosure of criminal history, professional indemnity insurance, and recency of practice.
In that sense, any issues of protection of the public by way of an assessment of the respondent’s fitness to practice will be determined by the Board. In those circumstances, both parties submit that issues of rehabilitation are of no particular significance in consideration of sanction by the Tribunal. There is no need for a suspension of registration for an immediate protective purpose, nor, the applicant concedes, for purposes of personal deterrence”.
- [34]In that case the effective period of preclusion accepted by the Tribunal was four years. The practitioner’s cooperation in both the criminal and disciplinary proceedings was noted, along with the offences being at the lower end of the range of seriousness. In the circumstances, the Tribunal did not consider a period of suspension necessary and that a finding of professional misconduct and reprimand would meet the need to emphasise the importance of maintaining professional standards and general deterrence.
- [35]In relation to the present matter, the Board has been managing the respondent’s health impairment since June 2020. Following a health assessment it was satisfied she was fit to practice subject to conditions. The material received from the criminal proceedings indicated that as at July 2021 she was continuing with her rehabilitation. She has been criminally sanctioned, suspended by the Board, and moved to non-practicing registration in April 2021, which registration she subsequently surrendered. It is common ground that she received media attention with the associated shame in relation to her appearance before the Maroochydore Magistrates Court.
- [36]As the applicant notes, for those reasons specific deterrence does not loom large here although general deterrence in the sense of upholding professional standards and maintaining public confidence in the profession is a significant factor.
- [37]Brown involved a more comparable level of offending and criminal sanction, although in my opinion the offending by the respondent here was more serious, and significantly, she has only suffered a period of exclusion from practice of just under 15 months. I accept the applicant’s submission that some regard may be had to this period of time away from practice, though it is of less significance than in matters where the period is as a direct result of the conduct and only that conduct for which the disciplinary sanction is sought.
- [38]The cases referred to by the applicants support the submission that a suspension in the order of 18 months to two years would have been appropriate in this case, but given her period out of practice and the agreement of the parties, the Tribunal is satisfied that a period of disqualification from applying for registration of three months is within the appropriate range.
Orders
- [39]In those circumstances the findings and orders of the Tribunal are as follows:
- (a)pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;
- (b)pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;
- (c)pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a psychologist for a period of three months from today’s date; and
- (d)each party must bear their own costs in the proceedings.
- (a)
Footnotes
[1] Section 5 definition of “registered health practitioner” (b).