Health Ombudsman v Sinton[2022] QCAT 270

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On the 30th of October 2020, the applicant Director filed a disciplinary referral in the Tribunal seeking disciplinary findings against the respondent arising out of her conviction for fraud in the Innisfail Magistrates Court on the 14th of July 2020, and her failure to comply with section 130(1) of the National Law by not advising the Nursing and Midwifery Board of Australia (the Board) within the prescribed time that she was charged with the offence on the 30th of October 2019, and convicted on the 14th of July 2020.
2. [2]
   The parties have filed a statement of agreed facts.  There are no factual matters in dispute.  The respondent, who was a registered nurse at all relevant times, has represented herself in these proceedings.  She has fully cooperated with the proceedings.  She has never contested the characterisation of her conduct as alleged by the applicant, nor does she make any submissions about the moderate and fair orders proposed by the applicant by way of sanction. 

Background

3. [3]
   The respondent, Ms Laura Angela Sinton, was born on the 21st of July 1960.  She was aged between 46 and 58 years at the time of the alleged conduct.  She obtained a Bachelor of Nursing from Charles Darwin University in 2013. 
4. [4]
   She was first granted registration as an enrolled nurse by the Board on the 13th of October 1984, and she was granted registration as a registered nurse by the Board on the 31st of July 2013.  She continues to hold general registration as both a registered nurse (division 1) and an enrolled nurse (division 2) pursuant to the National Law.  The expiry date of her current registrations is the 31st of May 2023. Apart from the current referral, the respondent has no prior conduct notification or criminal history.
5. [5]
   At the time of the conduct, the respondent was employed as a permanent casual registered nurse at Innisfail Hospital and part time as an administration officer in the oral health department at the Tully Hospital.
6. [6]
   She has also worked part time as a practice nurse with the Rankin Medical Centre in Innisfail and as a casual registered nurse at Warrina Nursing Home, Innisfail, which is an aged care facility.  She resigned from her position with both hospitals and the nursing home as a result of her conviction.  She has never been subject to any immediate registration action.
7. [7]
   She is currently working as practice nurse manager with Rankin Medical Centre.

The relevant conduct

8. [8]
   Between the 5th of March 2006 and the 3rd of March 2018, whilst working as an administration officer at the Tully Hospital Oral Health Unit, the respondent enabled members of her family and another person to receive free dental treatment.  She facilitated this in her role as an administrative assistant by entering false health care card details for three family members and the husband of another staff member.
9. [9]
   As a result, the four patients received free dental health care to the value of $13,898.62, and the respondent’s family received free dental health care of that sum to the value of $12,420.47.
10. [10]
    As part of her role as an employed administrative officer, it was her responsibility to confirm patient eligibility for public dental treatment before admitting them for treatment.  She was a senior staff member and an experienced administration officer and a trusted employee.  She was aware that her family members and friend were not eligible and did not have valid concession cards or concession cards at all.
11. [11]
    The respondent, although aware that family members were not eligible, noticed that the Cairns and Hinterland Hospital and Health Service had a culture where family members of staff themselves were provided dental services at no cost.
12. [12]
    The respondent made full restitution to the health service of $12,420.47, which was the cost of dental health services received by her family.
13. [13]
    On the 14th of July 2020, she pleaded guilty to one count of fraud pursuant to section 408C(1)(d) and (2)(b) of the Criminal Code Act 1989 (Qld) in the Innisfail Magistrates Court.  The magistrate recorded a conviction.  The respondent was sentenced to 12 months imprisonment and was released forthwith upon the condition that she be of good behaviour for a period of 18 months.
14. [14]
    In relation to the failure to notify of relevant events, pursuant to section 130 of the National Law, the respondent was required to notify the Board within seven days that on the 30th of October 2019 she had been charged with one offence which was punishable by 12 months imprisonment.  The respondent did not so advise the Board by the 6th of November 2019.
15. [15]
    Pursuant to the same provisions of section 130, she was required to notify the Board within seven days of her conviction on the 14th of July 2020, and she did not advise the board of that by the 21st of July 2020.

Characterisation

16. [16]
    It is accepted that the applicant has the onus of proof to the standard referred to in Briginshaw v Briginshaw (1938) 60 CLR 336.
17. [17]
    The respondent has never contested her conviction or her failures to comply with section 130(1) of the National Law.  Her plea of guilty and her acceptance of the facts underpinning her offending are clearly sufficient for the Tribunal to find that the conduct as alleged in the referral is proved.
18. [18]
    The various authorities referred to in Ms Townsend’s submission clearly establish that the conduct admitted by the respondent and the subject of her conviction constitutes professional misconduct as defined in section 5 of the National Law. 
19. [19]
    In Health Ombudsman v Chaffey [2020] QCAT 54, the respondent, a registered nurse, was convicted of social security fraud in relation to Centrelink benefits that was not associated with her work as a health practitioner.  The Tribunal found that the conduct was professional misconduct.  It stated:

“...serious criminal offending, including offences of dishonesty, is quite clearly capable of being caught by such definition and constituting professional misconduct.  Such conduct has the potential to not only affect the reputation of the individual practitioner, but adversely affect the reputation of the profession and the public confidence in members of the profession.”

20. [20]
    In Health Ombudsman v Lemon [2020] QCAT 266, the respondent was a registered nurse who was convicted of four counts of fraud when he assisted a co-offender to transfer funds from a trust account without the agreement of all trustees.  The Tribunal found that the conduct was professional misconduct.
21. [21]
    The respondent’s criminal conduct here was serious criminal offending being a conviction for fraud and dishonesty to gain a benefit and advantage as an employee, not for herself, but for her family.  It is clearly unprofessional conduct falling substantially below the standard reasonably expected of a registered nurse of similar experience and training.
22. [22]
    As a registered nurse, the respondent was at all relevant times subject to various codes and guidelines promulgated by the board over that period, including the Code of Conduct for Nurses.^[1]  Such instruments are admissible in proceedings of this nature pursuant to section 41 of the National Law as evidence of what constitutes appropriate conduct or practice for a health professional.  Clearly, the commission of fraud, albeit for the benefit of others, in her position of trust as an employee of a hospital service over a lengthy period of time offends many of the conduct statements in the Code of Conduct; for example, that nurses comply with the law and embody principles of integrity and honesty.  The Code also requires nurses to “abide by any reporting obligations under the National Law but”, which she did not by her admitted failure to comply with Section 130(1) of the National Law on two occasions. 

Sanction

23. [23]
    These disciplinary proceedings are protective in nature and not punitive.  As was stated in Craig v Medical Board of South Australia on [2001] SASC 196;  (2001) 79 SASR 554, the public may be protected by preventing a person from practicing a profession, by limiting the right of practice, or making it clear that the certain conduct is not acceptable. 
24. [24]
    Medical Board Australia v Jansz [2011] VACT 1026 is often quoted as a useful guide in how tribunals of this type approach and formulate an appropriate sanction and what principles should be taken into account in a particular case.  These include fundamentally the paramount principle that the health and safety of the public is paramount; and includes principles relating to determinations by way of sanction that are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining its stature and integrity in the eyes of the public.  These objectives can be achieved by reflection in the orders principle of specific deterrence and general deterrence, that is deterrence of other practitioners minded to conduct themselves similarly, and by facilitation of rehabilitation on the part of the practitioner. 
25. [25]
    Clearly the respondent’s conduct here was a serious breach of her professional obligations as she acknowledges. 
26. [26]
    After resigning her position from the hospitals and the nursing home she obtained employment as a practice nurse with Rankin Medical Centre. The respondents employer is aware of the conduct the subject of this referral and the conviction recorded.  Indeed he provided a reference at her appearance before the Magistrates Court which, similar to the other references placed before the court, suggests that this was completely out of character to this otherwise woman of impeccable background. 
27. [27]
    There is no suggestion that there are any health issues that contributed to her professional misconduct.  She certainly reported feeling stress and anxiety in the past three years directly related to the charges and the conviction which is not surprising.  I accept the applicant’s submissions that these issues are directly related to the criminal and disciplinary proceedings and are not relevant to the issue of sanction. 
28. [28]
    Insight and remorse are very important considerations for the Tribunal in imposing sanction.  In my opinion the respondent here has shown exemplary insight and remorse into her misconduct. 
29. [29]
    In her affidavit she sets out on a number of occasions her regret for her conduct and her remorse for letting her team down and, as she put it, “bringing her conviction into that environment”.  She also acknowledges that it has had a significant effect on not only her life but her family’s life and she made that clear through her lawyer before the Magistrate. 
30. [30]
    The applicant fairly acknowledges the exemplary nature of the character references tendered in the criminal hearing which refer to her expressions of remorse and regret for the conduct. 
31. [31]
    The applicant also notes that she completed a relevant course in January 2019, and as I noted before, has participated in the disciplinary process despite being self-represented which includes the filing of an agreed statement of facts which greatly facilitates the expeditious conclusion of the disciplinary proceedings. 
32. [32]
    Clearly general deterrence is of the utmost importance in a case of this nature. 
33. [33]
    In Nursing and Midwifery Board of Australia v Faulkner [2018] QCA 97 the Court of Appeal noted ;

“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 practitioner to the 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.”

34. [34]
    In this case the applicant proposes and the respondent agrees that she be issued with a reprimand. That proposed sanction, in the circumstances of this case, are supported by the cases outlined in Ms Townsend’s submission including Chaffey and Health Ombudsman v Niem Quoc Tang [2020] QCAT 165. 
35. [35]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.  A reprimand remains on the public record at the direction of the Board.  I accept the applicant’s submission that it is an appropriate sanction as a public denouncement of the respondent’s admitted conduct. 
36. [36]
    I also accept Ms Townsend’s submission that a reprimand in this case will also act as an appropriate deterrent to others generally and is a proportionate response given the insight shown by the respondent, her age, and the fact that there is no future risk that she will behave in such a way in the future. 

Orders

37. [37]
    In those circumstances, the Tribunal makes the following findings and orders; 

    1. (a)
       the Tribunal finds that the conduct of the respondent, the allegation 1 in the referral, constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld); 
    2. (b)
       a finding that the conduct of the respondent in allegation 2 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 is reprimanded; and
    4. (d)
       no order as to costs.