Health Ombudsman v Walker[2022] QCAT 323

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Director of Proceedings, on behalf of the Health Ombudsman (the applicant) has referred disciplinary proceedings against the respondent, a registered nurse, to the Tribunal under sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (the Act), seeking findings and orders under section 107.
2. [2]
   The referral concerns the respondent’s conduct in stealing 70 diazepam tablets that had been prescribed to residents at the aged care facility where the respondent was employed as a registered nurse. 
3. [3]
   The respondent agrees and accepts that the findings and orders sought by the applicant are appropriate – that is, the referred and admitted conduct constitutes professional misconduct, that the respondent is reprimanded and that the immediate registration action is set aside and the parties bear their own costs.

Factual background

4. [4]
   The respondent was first registered as a nurse on the 1st of July 2010. 
5. [5]
   Between the 16th and the 29th of September 2020, she stole 70 diazepam tablets that had been prescribed to treat patients at the aged care facility with which she was then employed. 
6. [6]
   Her actions were identified after it was observed that diazepam was going missing 10 tablets at a time over a number of shifts.  An audit of the rosters revealed that the respondent was the only staff member that had worked on each occasion when the medication had gone missing. 
7. [7]
   On the 29th of September, the respondent resigned from the aged care facility. 
8. [8]
   On the 30th of September 2020, the relevant officer from the aged care facility made a notification about the respondent to the Health Ombudsman, and on the 20th of September 2021, the Health Ombudsman decided to take immediate action and suspend the respondent’s registration. 
9. [9]
   On the 19th of November 2021, the respondent entered a plea of guilty to one count of stealing as a servant in the Ipswich Magistrates Court.  She was sentenced to 12 months’ probation and no conviction was recorded.

Characterisation

10. [10]
    There is no dispute that the respondent’s conduct constitutes professional misconduct.  The joint position of the parties, is supported by many comparable decisions of this Tribunal.  In Health Ombudsman v Jamieson [2017] QCAT 172, the respondent engaged in professional misconduct, having taken three boxes of antibiotics from the Herberton 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…while this conduct lies at the lower end of examples of this type of misconduct, 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.

11. [11]
    In Health Ombudsman v Macdonald [2016] QCAT 473 (Macdonald), the respondent engaged in professional misconduct when she took, without authority or permission, 11 boxes of Seroquel from her place of employment.  In Health Ombudsman v Britten [2020] QCAT 217 (Britten), the Tribunal commented that the respondent engaged in professional conduct as defined in all three limbs of the definition^[1] when she stole prescription medication from patients in an aged care facility. 
12. [12]
    The respondent’s conduct occurred in her place of employment;  however, the stealing was not in the course of her directly providing medication to patients.  It was opportunistic.  Conduct similar to the respondent’s has been found in previous cases to amount to professional misconduct; this is in recognition that the honesty and integrity of nurses are fundamental requirements of the profession.
13. [13]
    At all relevant times, the respondent was subject to the Code of Conduct for Nurses, the provisions of which are admissible as evidence in these proceedings as to what constitutes professional conduct in practice.^[2]  By her actions, the respondent has breached many of the principles of the Code of Conduct, particularly those relating to honesty, integrity and the requirement of nurses to obey the law.
14. [14]
    Her conduct was substantially below the acceptable standard, given that she stole patient medication.  However, there is no evidence that her conduct deprived any patient of medication that was required or necessary, as has occurred in other cases. 

Sanction

15. [15]
    The relevant principles are gathered together by the Victorian Tribunal in Medical Board of Australian v Janz [2011] VCAT 106, and these principles have been accepted on many occasions by this Tribunal. 
16. [16]
    The principles include that the purpose of this disciplinary proceeding is to protect the public.  Determinations 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 stature and integrity of the nursing profession in the eyes of the public.  A determination should in no way be punitive.  The likelihood of recidivism can in particular cases be important.  The objectives of determinations can be achieved by specific deterrence, that is, deterring of the person concerned from further inappropriate conduct; by general deterrence, that is, the deterrence of other practitioners who are minded to conduct themselves similarly and by facilitation of rehabilitation on the part of the practitioner.  Personal matters such as shame, personal ordeal and financial difficulty are of little relevance, save insofar as they contribute to the specific deterrence of the practitioner. 
17. [17]
    The respondents’ actions here constitute a serious breach of her professional obligations.  Her conduct involved stealing 70 diazepam tablets prescribed to residents in the aged care facility at which she worked, over a period of two weeks.  The conduct was clearly deliberate.  It involved regularly taking a blister strip of 10 diazepam tablets directly from a locked cupboard or a locked medication trolley.  Diazepam is a medication that has a risk of being abused and generally habit-forming.  Her conduct involved a breach of trust and ethical responsibility to her patients and to her colleagues, members of the profession, and members of the public.
18. [18]
    The respondent resigned on the 29th of September 2020 and has not worked as a nurse since.  On the 20th of September 2021, her registration was suspended by immediate registration action taken by the Health Ombudsman.  She did not seek to review that decision and her registration remains suspended at the present time.  The applicant acknowledges that the respondent would like to return to nursing at some stage and in some capacity.
19. [19]
    In relation to important issues such as insight, remorse and future risk, the contents of the respondent’s sworn affidavit filed in these proceedings on the 26th of April 2022, are helpful and instructive. 
20. [20]
    In that affidavit she notes that she has not worked as a nurse since the 30th of September 2020.  She has been compliant with the terms of the probation order made on the 19th of November 2021.  She states that at the time she “stole the diazepam for her personal use” and that her husband was very unwell. She deposes to, “feeling more exhausted and helpless,” than she could remember.  She states that she self-medicated with diazepam for about two weeks, until she was caught, at which point she immediately resigned.  She did not deprive any patients of their medications.  She states in her affidavit that “the incident was an enormous wakeup call for me”, and she has since disclosed what had happened to her long-term GP, who placed her under a care plan and successfully adjusted her medication for depression, and she has also engaged with ATODS. As at the time of the swearing of her affidavit, her husband’s health had improved, and her own health had improved.
21. [21]
    As to her attitude to her conduct and the consequences of her actions, the respondent deposes:

I’m very sorry for my behaviour.  I have never been in trouble at work or with the law before.  I made a very bad decision in a weak moment when my thinking was compromised and I slid very quickly into a pattern of self-medication.  I’m extremely grateful that my bad decision-making did not transfer to bad chemical decision-making for my patients.  I also realise that this was more luck than good management on my part, and that I was fortunate to get caught quickly so I was able to address my problem without delay.

Again, I’ve always felt very privileged to be a nurse and to be able to help people.  I’m very aware that rights attach to privileges, and I abused that.  I would like to return to nursing at some stage and in some capacity.  I feel very ashamed and embarrassed by what I did.  I struggle with the thought of going back into nursing in Ipswich where I feel like everyone will know what I did.  My decisions placed an enormous pressure on my family, these are the daily consequences of my actions.

22. [22]
    Most of the comparable cases referred to by the parties, eg, Britten;  Health Ombudsman v Pidgeon [2022] QCAT 111;  Health Ombudsman v ASK [2022] QCAT 174, (which involved the theft of a schedule 8 and schedule 4 drugs from the workplace for personal use, similar to this case), involved practitioners who had been out of practice for some time at the time of the disciplinary hearing.  The applicant also refers to Macdonald, which involves conduct quite similar to the conduct here.  The respondent had stolen 11 boxes of Seroquel (a Schedule 4 medication) from her employer.  It was the respondent’s intention to supply the Seroquel to her niece.  In the criminal proceeding, she was placed on a good behaviour bond and no conviction was recorded.  She had remained employed and conditions placed on her registration which included supervised practice. 
23. [23]
    The Tribunal noted that although it involved one transgression, the conduct included elements of dishonesty and irresponsibility.  That practitioner was reprimanded, and her registration was suspended for six months. 
24. [24]
    General and personal deterrence are relevant considerations.  Personal deterrence is important in cases where the practitioner denies proven misconduct or demonstrates lack of insight into the appropriateness of their conduct, which is not the case here.  The sanction imposed should act to ensure the maintenance of accepted standards of professional confidence and to maintain public confidence in the health profession and in particular nursing. 
25. [25]
    In this case, the respondent has not worked as a nurse since the 29th of September 2020.  Her registration was suspended on the 20th of September 2021, and the reality is that, as a result of her conduct, she has not worked for a period of almost two years as at this date.  That can be contrasted with the period of six months suspension imposed in relation to the practitioner in the case of Macdonald, referred to earlier. 
26. [26]
    Having been convicted and sentenced in relation to her conduct, having not been able to practice as a result of her conduct for some two years, having addressed the circumstances in her personal life that precipitated her misappropriating the diazepam and having frankly disclosed the conduct and sought assistance to address her related health issues, the respondent no longer presents any risk of misappropriating medication if she returns to nursing.
27. [27]
    I agree with the parties that general and personal deterrence can be achieved in this matter by a finding of professional misconduct and a reprimand and by taking into account the period of time the respondent has been out of the profession as a result of her conduct.  I agree with the submissions made by both parties that no further time out of the profession is necessary to protect the community on denounce the respondent’s criminal and professional misconduct. A reprimand is not a trivial penalty. It serves as a public denouncement of the respondent’s conduct.

Orders

28. [28]
    In the circumstances, the orders of the Tribunal and the findings will be as follows:

    1. (a)
       a finding that the conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(d)(ii) of the Health Ombudsman Act 2013 (Qld) (the Act);
    2. (b)
       an order pursuant to section 107(3)(a) of The Act that the respondent is reprimanded;
    3. (c)
       an order pursuant to section 62(2)(a)(ii) of The Act that the immediate registration action is set aside; and
    4. (d)
       no order as to costs.