Health Ombudsman v Salvador[2022] QCAT 28

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 25 March 2021 the Director of proceedings, on behalf to the Health Ombudsman (the applicant) referred these disciplinary proceedings to the Tribunal, pursuant to sections 103 and 104 of the Health Ombudsman Act 2013 (the HO Act).
2. [2]
   It is common ground that the respondent was at all relevant times a registered nurse with conditional registration, subject to the standards, Codes and guidelines promulgated by the Nursing and Midwifery of Queensland (the Board) and a health service provider as defined in the Health Practitioner Regulation National Law (Queensland) (National Law).
3. [3]
   The parties have filed an agreed statement of facts.^[1] There are no factual issues in dispute.
4. [4]
   The respondent was 47 years of age at the time of the conduct the subject to the referral and he is 49 now.
5. [5]
   He was granted provisional registration as a registered nurse by the Board on 8 July 2019. His registration is subject to practical conditions from that date, requiring him to undertake clinical training as part of an approved re-entry to practice program. As at the time of filing the original submissions on 24 August 2021, he remained registered but has since surrendered his registration and I will refer to that later in these reasons.
6. [6]
   At the time of the impugned conduct, the respondent was working as a personal care assistant at a Nursing Home in Brisbane where he had been employed in that capacity since February 2016.
7. [7]
   He holds tertiary qualifications in nursing from the Philippines, a Certificate III in aged care work from TAFE in New South Wales in 2009, and a Bachelor of Nursing from the University of Tasmania which he obtained in 2012.

The relevant conduct

8. [8]
   Allegation 1 in the Referral relates to the respondents own pleas of guilty in the Southport Magistrates Court to three criminal offences, namely, one count of stealing on 29 March 2020, one count of fraud on 1 April and another count of fraud on 2 April 2020.
9. [9]
   He was ordered to pay restitution in the sum of $246.10, and to perform unpaid community service of 100 hours within 12 months and the Magistrate exercised his discretion not to record a conviction.
10. [10]
    Apart from this matter, the respondent has no other criminal or disciplinary history.
11. [11]
    On 29 March 2020, the respondent was working a shift at the nursing home. While in the staff room that morning, having his morning tea, he noticed a debit card on the floor. The card belonged to a resident who had died three days earlier. He picked up the card and placed it in his own wallet. On 1 April, he used the card twice to make purchases on his behalf, and on the following day he used the card on three further occasions. As a result, he dishonestly obtained goods to the value of $246.10.
12. [12]
    Although the plea before the Magistrate proceeded on the factual basis that the respondent had removed the card from the wallet of the deceased resident in his room, from his belongings which had not been collected by his family, these proceedings are on the factual basis set out above, that is, that he picked up the card from the floor of the tea room. In mentioning the facts to the Magistrate, the police prosecutor referred to CCTV footage, as identifying the respondent but that footage is not before the Tribunal.
13. [13]
    Allegation 2 in the Referral, which is not contested, is that the respondent did not notify the Board within seven days of being charged with the offences by police on 2 May 2020, and he did not notify the Board within seven days of his convictions on 14 July 2020. Both failures constitute a breach of section 130(1) of the National Law.

Characterisation of the conduct

14. [14]
    In his response to the referral filed on 30 May 2021, the respondent contended that the admitted conduct in allegation 1 did not constitute professional misconduct but constituted the less serious unprofessional conduct. There is no dispute between the parties that the conduct in allegation 2 constituted unprofessional conduct.
15. [15]
    By the time of the filing of his submissions by his solicitor with the Tribunal, his lawyers, appropriately in my view, concede that the conduct admitted in relation to allegation 1 constitutes professional misconduct. The respondent contends that the respondent’s conduct is caught only by sub-section (c) of the definition of professional misconduct in the National Law, whereas the applicant contends that it is caught by all three definitions.
16. [16]
    Section 5 of the National Law defines professional misconduct of a registered health practitioner to include:

    1. (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
    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 or experience; and
    3. (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. 
17. [17]
    In Health Ombudsman v Tang [2020] QCAT 165 at [16] the then Deputy President of QCAT his Honour Judge Allen QC wrote:

The meaning of “substantial” was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 at [110]:

…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.  The 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.

18. [18]
    In summary the respondent argues that his conduct does not satisfy the Fittock test because it was opportunistic, in the sense that it was not planned or protracted, and that his conduct was motivated by his need to support his family. In my view, his motivation in stealing the card and using it dishonestly over a period of days is not relevant to the proper characterisation of the conduct. I agree with the applicant that the admitted conduct clearly satisfies the so-called Fittock test, and falls within all three of the definitions of “professional misconduct” in section 5 of the National Law. My reasons for so concluding are as follows:

    1. (a)
       Although not involving theft from his employer, perhaps even more seriously, the theft of the debit card involved theft in the course of his employment, and of a debit card that he clearly knew belonged to one of the residents in his care who had recently died; 
    2. (b)
       The conduct involved a very serious breach of trust, not only that invested in him by his employer, but the trust of some of the most vulnerable people in his care and of their families; 
    3. (c)
       The conduct when viewed as a whole could not be fairly described as opportunistic, in that the respondent held onto the card for some days and used it on five occasions; 
    4. (d)
       Honesty, integrity, particularly when considered as an aspect of the paramount principle, are essential in health care providers, and in this case the conduct involved a clear breach of a number of the principles in the Code of Conduct for Nurses; ^[2]
    5. (e)
       The presiding Magistrate, albeit considering perhaps a more serious factual scenario, described the conduct as “vile, despicable, cold and calculating.”^[3]
19. [19]
    It is accepted that the applicant bears the onus of proof.^[4] The Tribunal is satisfied that the conduct admitted in relation to allegation 1 amounts to professional misconduct. Such a finding is consistent with other Tribunal cases referred to by the parties in their submissions, in which health care providers had engaged in similar conduct in relation to very vulnerable people in their care.^[5] The Tribunal is satisfied that the proved conduct alleged in Allegation 2 in the referral constitutes unprofessional conduct.

Sanction

20. [20]
    It is accepted that the purposes of proceedings such as these is protective and not punitive. The jurisdiction of this Tribunal to sanction health care providers who have engaged in professional misconduct and/or unprofessional conduct is informed by the principles set out in section 4 of the HO Act, and that is that the health and safety of the public are paramount. Clearly general deterrence looms large in a case such as this. Given the consequences to the respondent of his dishonesty, and his otherwise good record, personal deterrence is less relevant.
21. [21]
    He resigned from his role at the nursing home on 12 May 2020. On 15 June 2020, the Health Ombudsman imposed an interim prohibition order that meant that the respondent could only practise at approved locations and must notify employers of the circumstances.
22. [22]
    He pleaded guilty at a very early stage to the criminal charges, and although he declined to be interviewed by police, he did express his remorse to the police for his actions. He has also fully cooperated with these disciplinary proceedings.
23. [23]
    Insight is important in cases such as this, as it is relevant to the paramount principle that health care providers who have strayed admit and accept their wrongdoing and show understanding of their ethical and moral duties as a member of a health profession. The applicant fairly acknowledges this insight through his submission at paragraph 60 of the written submission filed on 10 August 2021. Both parties agree that a reprimand should be part of the appropriate response by way of sanction.
24. [24]
    The applicant, at the time of filing the original submission, also sought a period of suspension of registration which was then current.
25. [25]
    The respondent, in a very recent submissions filed with the Tribunal, advises that he surrendered his registration on 28 September 2021. As at the date of his lawyer’s submission, on 18 February 2021, he was working as a disability support worker, and this accords with paragraph 1 of his affidavit filed in these proceedings on 24 June 2021.
26. [26]
    In the most recent submission dated 14 February 2022, the solicitors for the respondent informed the Tribunal that he had surrendered his registration after speaking with AHPRA and pending the outcome of these proceedings.
27. [27]
    The applicant now submits that a period of six to 12 months disqualification from applying for registration is also appropriate as part of the overall sanction.
28. [28]
    Both Health Ombudsman v Cash [2020] QCAT 49 and Health Ombudsman v Fletcher [2020] QCAT 478 involved similar conduct, however, in both cases the respondents, who were quite experienced enrolled nurses, had not worked as such for some time.
29. [29]
    In Cash, a reprimand was imposed and no period of disqualification from applying for registration; and in Fletcher, a further period of three months suspension was ordered by the Tribunal, and that respondent had falsely completed her renewal declaration, stating that there had been no change in her criminal history.
30. [30]
    In his submission, the respondent contends that because of the imposition of the interim prohibition order on 15 June 2020, he is entitled to some allowance, in the sense that due to his own misconduct he is not allowed to practise as a nurse in the interim period. The difficulty with that submission is that although he was registered, his registration was conditional and subject to practice requirements. The Tribunal was informed today (see exhibit 1) that the respondent had completed the required clinical training through the Central Queensland University, although the document tendered is somewhat equivocal and the applicant really had not time to check the details.
31. [31]
    Because the respondent has always worked (since 2012 when he received his nursing degree) in aged and disability care-related employment, it is difficult to conclude that (unlike respondents in cases like Cash and Fletcher) he has been prevented from practising in his chosen profession by his own misconduct. I have concluded that although he had not completed the necessary clinical training to enable him to practise as at the date the interim prohibition order was imposed, some allowance should, nevertheless, be made, which cannot, for obvious reasons, be calculated in mathematical terms.
32. [32]
    Given that the respondent is no longer registered, protection of the health and safety of the public will clearly be a factor that will be considered by the Board when he does reapply for registration, as he says he intends to do.
33. [33]
    In my view, because of the quite unusual circumstances of this case, it is not necessary by way of sanction to reflect principles of denunciation, and general and personal deterrence, and to maintain the integrity of the profession in the eyes of the public, to impose what would be a short period of disqualification preventing him from applying for registration.
34. [34]
    It has often been said that a reprimand is not a trivial penalty and has the potential for serious, adverse implications for a professional person. It has been described as a public denouncement of the relevant practitioner’s conduct. In those circumstances, and bearing in mind that both parties agree that an order should be made under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 to prevent publication of any identifying material relating to the deceased patient and his family, I make the following orders:

1. The Tribunal finds that the conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013;

2. 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;
3. An order pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, that the respondent is reprimanded;
4. An order pursuant to section 73(2)(a)(ii) of the Health Ombudsman Act 2013 that the interim prohibition order imposed by the Health Ombudsman effective 15 June 2020 is set aside;
5. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
   1. (a)
      the contents of a document or other thing produced at the Tribunal;
   2. (b)
      evidence given before the Tribunal; and
   3. (c)
      any order made or reasons given by the Tribunal,

is prohibited to the extent that it could identify or lead to the identification of any patient of the respondent or any family member of the patient; and

6. No order as to costs.