Health Ombudsman v DNE[2022] QCAT 269

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   At all relevant times, the respondent, was a registered nurse.  On the 31st of August 2021, the applicant Director referred a health service complaint to the Tribunal seeking findings that the respondent has behaved in a way that constitutes professional misconduct and the Director seeks disciplinary orders pursuant to section 107 of the Health Ombudsman Act 2013 (Qld) (the Act).
2. [2]
   The referral contains two allegations, the first relating to the respondent’s conviction in the District Court on his own plea of guilty to one count of aggravated indecent treatment of a child under 16 (under 12, under care) for which he was sentenced by a Judge of that Court to a 12 month intensive correctional order with a special condition that he submit to such medical and psychological treatment as may be directed by the Community Corrections officer.
3. [3]
   The second allegation relates to a failure by the respondent to comply with section 130(1) of the National Law, in that he did notify the Nursing and Midwifery Board of Australia (the Board) within the prescribed time after being charged with the offence.
4. [4]
   The respondent has been represented in these proceedings throughout by lawyers who are competent in this jurisdiction.  By his response filed on the 5th of November 2021, he admits both allegations and admits his conduct constitutes professional misconduct.  The only issues between the parties at this stage relate to the sanction.
5. [5]
   The parties agree that the respondent should be reprimanded and that his registration be cancelled.  They agree that he should be prohibited from reapplying for registration for a finite period of years but disagree as to the period.  The applicant seeks an additional order pursuant to section 107(4)(b)(i) of the Act that the respondent be prohibited from providing any health service within a period of five to six years.  Ms Robb submits that this order is not necessary in the circumstances of this case, and is not consistent with the authorities relied upon by the applicant.
6. [6]
   It should also be noted that a non-publication order was made on the 5th of October 2021 by his Honour Judge Allen QC, necessarily prohibiting the publication of any material from the Tribunal that could lead to the identification of the child victim.  As these reasons will disclose, that order covers the prohibition of the identification of the respondent’s name and despite the need for transparency and accountability in cases of this nature, the publication of his identity may identify the child which, in itself, constitutes an offence under Queensland law.

Background

7. [7]
   The respondent is 30 years old.  He obtained a Bachelor of Nursing from a University in 2017.  He was first granted registration as a registered nurse by the Board in 2018.  At the relevant time, the practitioner was employed as a registered nurse at a Hospital in the cardiac unit.  He has no prior criminal or disciplinary history.

The Relevant Conduct

8. [8]
   The parties have filed a statement of agreed facts.  The facts of allegation 1 are summarised appropriately in Ms Burgess’s trial submission.  In summary, the respondent resides with his de facto partner and her three year old daughter (the child).  He was in a stepfather relationship with the child, having cared for her since she was about three months old. 
9. [9]
   On a particular date, he was home alone with the child and caring for her while his partner was at work.  The child was asleep in the master bedroom and the respondent lay down next to her and took off his pants and began to masturbate.  The respondent kissed the child’s groin while masturbating.  The respondent’s partner returned home early from work to observe the respondent lying naked on the mattress, masturbating with his head between the child’s legs.
10. [10]
    The respondent attended the local Police Station that day and confessed to the offending.  In the interview with the police he explained that he came to engage in the act because it would be “more arousing” and the “orgasm would be better”.  He told police he had always found children attractive and “finds them clean and tidy” and “not dirty, like adults”.  DNA evidence found the presence of his saliva on the inside of the child’s underwear.
11. [11]
    Approximately 1 year later, he pleaded guilty to indecent treatment of a child under 16, under 12, under care (domestic violence offence) pursuant to sections 210(1)(a), 210(3), 210(4) and 564(3A) of the Criminal Code.  A few weeks thereafter, he was sentenced in the region’s District Court to 12 months imprisonment to be served by way of an intensive corrections order with conditions attached and, as a consequence, a conviction was automatically recorded for the offence.
12. [12]
    Allegation 2 relates to the respondent’s failure to give notice to the board that he had been charged with the offence which is contrary section 130(1) of the National Law.

Characterisation of the Conduct: 

13. [13]
    In considering the appropriate characterisation of the respondent’s conduct in allegation 1, the definitions in section 5 of the National Law are relevant:

Professional misconduct, of a registered health practitioner, includes;

(a) unprofessional conduct by the practitioner 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

… (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

Unprofessional conduct of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably expected of the health practitioner by the public or the practitioner’s professional peers, and including;

…(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession.

14. [14]
    The respondent agrees that his conduct in allegation 1 constitutes professional misconduct.  The joint position of the parties is supported by the authorities referred to in the submissions, for example, Nursing Midwifery Board of Australia v Burrows [2020] QCAT 164.  The respondent’s conduct here also constitutes a significant failure to comply with the Board’s Code of Conduct for Nurses (the Code of Conduct) which, by virtue of section 41 of the National Law, is admissible as evidence in proceedings of this nature as to what is appropriate professional conduct or practice for the nursing profession.
15. [15]
    The Code of Conduct requires nurses to practice honestly and ethically and not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession.  Relevantly, nurses must not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration.
16. [16]
    The gravity of the misconduct also means that the fact it was not related to the practice of his profession is irrelevant to the proper characterisation of the conduct, as is recognised in the definitions quoted above.
17. [17]
    In Health Ombudsman v Flute [2021] QCAT 189, the Tribunal considered convictions against a registered nurse which involved entering a dwelling house and committing an indictable offence; assault occasioning bodily harm whilst in company; and supplying dangerous drugs.  There was also a failure to notify the National Board of these charges, and that was also referred to the Tribunal.  The home invasion and offensive violence were described as allegation 1 in the referral, the supply dangerous drugs was described as allegation 3 and the failure to comply with section 131 of the National Law was described as allegation 2.
18. [18]
    Clearly, the convictions were of a different kind to the present matter, but the consideration of the characterisation of the conduct is apposite to this case.  The then Deputy President of QCAT, his Honour, Judge Allen QC, said (at [21]-[24] and [26]):

None of the conduct the subject of the referral occurred in the course of the respondent carrying out the practice of nursing, except insofar as Allegation 2 relates to her failure to fulfil the obligation imposed upon her as a registered health practitioner to notify her professional Board of the relevant event.

The definitions of “unprofessional conduct” and “professional misconduct” in section 5 of the National Law make it clear that such conduct may be constituted by conduct outside the practice of the health profession.  Health practitioners enjoy the benefits of registration and the obligations of such registration require them to conduct themselves with propriety, not only in the conduct of their profession, but also in their personal life.

The conduct of the respondent, the subject of allegations 1 and 3, fell well below the standard of conduct expected of members of the nursing profession in their personal life and obviously had the real potential to affect public confidence in the members of the nursing profession.  If a member of the profession commits a criminal offence punishable by imprisonment this can reflect adversely on the reputation of the profession and may damage public confidence in it.

The conduct the subject of allegation 1 is completely inconsistent with the obligations of nursing professionals, being members of a caring profession who are expected to help people and who the public reasonably expects to be people that they can trust not to hurt them.

...

The conduct of the respondent with respect to both allegations 1 and 3 readily fit the terms of the definition of “professional misconduct” in limbs (a) and (c) of that definition in section 5 of the National Law.

It is accepted that the respondent submitted conduct in relation to his failure to notify the board when he was charged when viewed in isolation amounts to the lesser characterisation of unprofessional conduct as defined in section 5 of the National Law.

19. [19]
    The Tribunal has no hesitation in characterising the respondent’s conduct in allegation 1 as professional misconduct and his conduct in allegation 2 as unprofessional conduct.  I agree with Ms Robb that, in effect, his failure to notify the Board in allegation 2 acts as a form of aggravation of the professional misconduct set out in allegation 1.

Sanction

20. [20]
    Proceedings of this nature are protective and not punitive in nature. The principle that underpins this Tribunal’s discretion to sanction health practitioners who have engaged in professional misconduct or unprofessional misconduct is that the health and safety of the public is paramount.
21. [21]
    Protection of the public has various aspects.  In the well-known case of Craig v Medical Board of South Australia [2001] SASC 196;  (2001) 79 SASR 545, the Full Court of the South Australian Supreme Court stated:

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

22. [22]
    It is appropriate for the Tribunal, in the exercise of its protective jurisdiction, to consider in this case the maintenance of professional standards by application of the principle of general deterrence, although personal deterrence still remains relevant.  This, in turn, assists to uphold public trust and confidence in the profession.
23. [23]
    The principles set out in Medical Board of Australia v Jansz [2011] VCAT 106 at [362]-[370] provide a useful guide to the approach in formulation of an appropriate sanction. These include the purpose of the disciplinary proceedings is to protect the public and not to punish the practitioner;  determinations are intended to maintain proper ethical and professional standards for the protection of the public, and also the protection of the profession, in the sense of maintaining its stature and reputation in the eyes of the community;  the objectives of a determination can be achieved by general deterrence, that is, deterrence of other practitioners minded to conduct themselves similarly, and by facilitation of rehabilitation on the part of the practitioner, and personal matters such as shame, and financial difficulty are of little relevance, save insofar as they contribute to the specific deterrence of the practitioner.
24. [24]
    The respondent’s conduct here is very serious indeed.  The offence itself is very serious.  It involved sexual offending against his stepdaughter, a three year old child who he had raised since she was a baby with her mother his partner.  It involved putting his personal sexual desires above the safety and wellbeing of his stepdaughter, and it constituted an appalling breach of trust, not only of the child, but also his partner, the child’s mother, who had entrusted him with her care.  His statements to police on the day about his motivations were disturbing, to say the least.  His criminal actions only ceased when he was unexpectedly interrupted by the child’s mother when she returned home from work early.  The seriousness of his conduct is also exemplified by his attempt to dissuade his partner from not reporting the conduct and offering to pay her money and rent if she did not report it, and as a general observation, the conduct itself is potentially extremely damaging to public confidence in the nursing profession.
25. [25]
    In sentencing the respondent to an intensive corrections order, the Judge acknowledged that the respondent had not been able to work as a nurse since the offending, saying, “It is highly unlikely you will be able to after conviction.”
26. [26]
    As I have stated, there is no issue here, having regard to the paramount principle, that general deterrence looms large as the applicable principle in this case.  It is not in issue that the respondent’s registration should be cancelled.  This necessarily involves a finding that he is presently not a fit and proper person to hold registration as a nurse.
27. [27]
    The respondent has effectively been out of practice since his registration was suspended on the 20th of April 2020; so a period of 27 months.
28. [28]
    At the earliest opportunity, he went to the police station and made full admissions to his conduct, including, as I have noted, some rather disturbing statements, suggesting then an unhealthy sexual interest in children.  He sought treatment with a clinical psychologist, Mr Schauer, within 10 days of the offending and had 15 sessions with him over 12 months.  Mr Schauer administered diagnostic tests which suggested initially severe symptoms of depression, anxiety and stress which had moderated significantly at the time of his last appointment.  Undoubtedly at that time, 10 days after the offence and having been charged with a serious offence, where he was, as he said, “terrified” of going to jail, no doubt, contributed to his severe symptoms as diagnosed by Mr Schauer.  Mr Schauer referred the respondent to his colleague, Robert Walkley, who is a forensic psychologist, who also provided a report both to the court and a copy of that report is in the hearing brief before the tribunal.
29. [29]
    Under the supervision of Mr Walkley, the respondent completed a six-step sexual offender treatment program (SOTP) over many hours which he found confronting and helpful.
30. [30]
    Mr Walkley agreed with his colleague that the respondent suffered from a depressive disorder, either persistent or major.  His period of clinical contact with the respondent was from the 30th of April 2020 to the 15th of July 2020, so contemporaneously with the respondent’s clinical contact with Mr Schauer.
31. [31]
    Both psychologists regarded the respondent at the time of his appearance before the sentencing Judge as being a very low risk of reoffending, although Mr Walkley opined (in accordance with his experience and as a result of clinical assessment using various tests):

“Perhaps more telling, Mr (DNE) conforms in many ways with a diagnosis of borderline personality disorder (BPD).  BPD is a pervasive pattern of instability, particularly in relationships …

As a disorder, it is thought to derive from attachment issues in the developmental stage of life.  This regularly precipitates fears of abandonment and rejection, and often then the sufferer engages in self-destructive and self-indulgent behaviours.  This appears likely to be the case of Mr DNE.

Such disorders are difficult to treat, lifelong illnesses which typically abate in the central decades of life.  Maturation and experience yields improved prognosis.

Prior to Mr DNE commencing the SOTP, he had little insight, little understanding of why he offended and he would prevent a repetition.

From the information gained during the SOTP, it seemed likely his early sexual experiences and eroticism that attached, then pervaded his adult sexuality.  This then allowed for a young, prepubescent female child to become an object of sexual gratification;  along the same lines as those early trysts with his female cousin that excited and aroused him as a young boy.

Furthermore, that these episodes went undetected, or if known about, not sanctioned or controlled in any way, this then led to the capacity of sexual boundaries – even the most stringent of boundaries – to have the requisite effect to moderate deviant sexual acts.”

32. [32]
    At the time of the sentence, her Honour was required by law to impose an actual component of custody, unless satisfied that there were “exceptional circumstances
33. [33]
    As Ms Robb notes, his counsel before the sentencing Judge told their Honour:

“At the time that he committed the offence, he was specialising in cardiac nursing.  He was suspended by the hospital where he worked as a result of the offending.  He had not been working with children at the hospital prior to his suspension.  He does not believe he will continue to pursue a career in cardiac nursing because he believes he is highly unlikely to obtain registration in the future.  He has been working in the building industry, and is working towards obtaining qualifications in plastering.”

34. [34]
    His counsel told their Honour that he was embarrassed and remorseful. The sentencing Judge observed in her sentencing remarks:

“Here, we have a very early plea, we have full and frank admissions made voluntarily, exceptional efforts of rehabilitation, having started 10 days after the offending, a low risk of reoffending, obvious remorse, coupled with your young age, loss of standing in the community, the loss of a seven-year relationship, unsurprisingly, a loss of the career that you had worked towards.  All those matters, in my view, do amount to exceptional circumstances.”

35. [35]
    All of these matters are relevant to the respondent’s insight and remorse, which is obviously high, and also to the issue of future risk. 
36. [36]
    The respondent has recently filed a report from registered psychologist, Dr Steve Morgan, who confirms that in accordance with the medical and psychological treatment condition imposed by the Judge as part of the 12-month intensive correction order, the respondent was referred to him for offence-specific treatment by Corrective Services in October 2021, and the respondent had attended all 10 sessions  that he was referred to in full, the last being on the 4th of April 2022.  This was only just prior to the expiration of the community correction order itself.  Dr Morgan states in his report:

“Mr DNE consistently attended treatment sessions in a punctual manner – despite challenges of attending the Office of Community Corrections (where most sessions occurred) and after a full day of work with – in a plastering role.  Over the entire span of attendance, he impressed as committed to the treatment process.  The focus of that time was to develop further insights into his offending/offending pathway, develop a risk-based approach, and to assist him in adapting to the catastrophic career, social, relationship, and general impacts of his offending. 

He impressed as consistently remorseful, accepting his offending without minimisation or distorted thinking, and expressed his commitment to exclusive future pro-social functions.  I believe that he has benefited from these further sessions as offered, and again note his effective participation in them – indeed, such as to allow confidence in his treatment gains and future life prospects.”

37. [37]
    I have considered all of the comparable decisions referred to in Ms Townsend’s very helpful submission:  namely, Health Ombudsman v GCV [2020] QCAT 30, Health Ombudsman v DKM [2021] QCAT 50, Nursing and Midwifery Board of Australia v Burrows (Burrows) [2020] QCAT 164 and Osteopathy Board of Australia v Ratliff (Review and Regulation) [2021] VCAT 658.
38. [38]
    I need only refer to one, as I regard it as the most comparable.  In Burrows, the practitioner was referred to the Tribunal in respect to his conviction of an offence of indecent treatment of a child under 12 with circumstances of aggravation and his failure to notify the Board of the charges or the conviction.
39. [39]
    He was an experienced registered nurse who, about 22 years prior to the hearing, indecently dealt with an eight-year-old child while visiting the child’s family.  The matter was only brought to the attention of the police in 2016, and the practitioner pleaded guilty and was sentenced to two years imprisonment, suspended after serving six months.  He was found to have engaged in professional misconduct in relation to the offence and unprofessional conduct in relation to the failure to notify the board.
40. [40]
    The Tribunal took into account a number of factors, including that the offending was historical and that there had been no sexual offences since.  The practitioner had sought to address his offending conduct and shown remorse;  and he had no desire to return to nursing at the date of hearing and had been suspended and unable to practice for three and a-half years. 
41. [41]
    In that case, the Tribunal cancelled the practitioner’s registration and fixed a disqualification period of four years from the date of the order, being seven and a-half years out of practice in total.  In her submission, Ms Robb seeks to characterise  Burrows as a more serious case.  She refers to the fact that he was sentenced to a period of actual imprisonment, and she states:

The criminal offending in Burrows occurred in the context of the respondent having a criminal history, including with a conviction in 2012 for committing an indecent act in a public place by exposing his penis to a woman on a bus, although Judicial Member McGill found this to be of little relevance.

42. [42]
    A reading of the case indicates that, in addition to that conviction, Mr Burrows had a number of previous convictions and one in 1994 which was particularly relevant.  In 1981, when he was 18, he was placed on probation for one year for breaking and entering a dwelling house with intent.  In 1989, he was fined $200 for possession of a dangerous drug.  In 1991, he was fined $150 for entering an enclosed yard without lawful excuse.  The most significant offence, however, was in 1994, when he was placed on probation for three years after pleading guilty to offences of deprivation of liberty, unlawful assault and going armed in public. 
43. [43]
    On appeal by the Attorney-General, the Court of Appeal allowed the appeal to the extent of ordering that the respondent perform 240 hours community service and varied the conditions of his probation.  The Court took into account that the offences were committed after he had used amyl nitrate; that they were sexually motivated and that he had desisted when he realised the complainant had become distressed.  He was under treatment from a psychiatrist at the time of sentencing, and at the time of appeal, and the psychiatrist had expressed the view that he was quite unlikely to re-offend so long as he was compliant with his treatment.
44. [44]
    As Judge McGill notes in his decision in Burrows at [5], in fact, he did re-offend in 1998, which was the index offence the subject of the disciplinary proceedings before the Tribunal.
45. [45]
    This Tribunal and others like it in other States have often commented on the need for consistency in the disciplinary response in matters involving criminal misconduct by health practitioners.  I agree with Ms Robb, however, that some degree of moderation is necessary because Burrows did serve an actual term of imprisonment, and there is insufficient detail in the judgment as to his actual offending.
46. [46]
    There remains the contested issue of whether there is a need to further prohibit the respondent from providing any health services for a finite period, pursuant to section 107(4)(b)(i) of the Act.  In discussions today, I don’t understand Ms Burgess to be pursuing that order, but necessarily I should deal with it.  I agree that such an order is not called for in this case. In her written submission Ms Burgess relied on the reasoning in the Victorian case of Osteopathy Board of Australia v Ratlifff (Review and Regulation) [2021] VCAT 658, where the practitioner, an osteopath, made submissions that he should not be prevented from providing unregistered health services because he wished to work as a masseur.  The Tribunal found that enabling as such:

…would undermine the effectiveness and reputation of the system for the regulation of the profession, if a practitioner who is disqualified from seeking registration as an osteopath for six years is able, and seen to be able, to work as a masseur.  That is, carrying out work which has many similarities to, and utilises many of the same skills, as osteopathy.  It would be seen as a backdoor way of overcoming orders for cancellation and disqualification.

47. [47]
    I agree with Ms Robb that that rationale does not transfer neatly so as to apply to the circumstances of the respondent in this case.  As noted earlier, his area of nursing was a specialised one.  There is no unregistered health service he could engage in that would utilise his specialised professional skills so that he could circumvent the effect of the cancellation of his registration.  His conduct since mitigates entirely against such a proposition.
48. [48]
    In Health Ombudsman v Franklin [2021] QCAT 186, then Deputy President of QCAT his Honour Judge Allen QC made the following observations in deciding not to make an order prohibiting the respondent from providing any health service, which I agree are apposite in this matter:

[30] There are often compelling circumstances indicating the necessity for such an order.  For example, where a nurse’s professional misconduct is of such a nature that the protective purposes of sanction require preclusion from practice not only as a registered nurse but as an unregistered health practitioner, such as an assistant in nursing, for the immediate protection of potential patients, because of the concern that the respondent might repeat the same type of misconduct in the course of their practice that resulted in the finding of professional misconduct and orders for sanction. For example, where the professional misconduct was constituted by the nurse committing criminal offences of a sexual nature or of dishonesty against patients under their care.

[31] In this case, as earlier mentioned, the most important purposes of sanction are to express the Tribunal’s denunciation of such conduct and to protect the reputation of the profession and to deter other health practitioners who might be inclined to engage in similar conduct. In circumstances where the respondent does not seem to present any clear risk of harm to patients who might come under his care and in circumstances where the respondent has professed an intention not to return to his profession, I am not satisfied that there is sufficient evidential basis for making the order sought by the applicant. In circumstances where sanction should go no further than what is required to meet its protective purpose, I am not satisfied that the tribunal should make such an order.

Orders

49. [49]
    In those circumstances, the orders and findings of the tribunal are as follows:

    1. (a)
       the conduct the subject of allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld);
    2. (b)
       the conduct the subject of allegation 2 constitutes unprofessional conduct, pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld); 
    3. (c)
       the respondent is reprimanded pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld);
    4. (d)
       the respondent’s registration is cancelled pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld);
    5. (e)
       the respondent is disqualified from applying for registration for a period of three years following today’s date, pursuant to section 107(4)(a) Health Ombudsman Act 2013 (Qld);
    6. (f)
       the immediate registration action is set aside, pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld); and
    7. (g)
       the parties bear their own costs of the proceeding.