Health Ombudsman v Christie[2022] QCAT 429

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant’s disciplinary referral, filed on the 29 April 2022, contains one allegation, namely, that on 13 October 2021, the respondent was convicted of one offence, that on 13 October 2021, contrary to section 146(3) of the Health (Drugs and Poisons) Regulation 1996 (‘the Regulation’), she dispensed, issued or prescribed a restricted drug to a patient. 
2. [2]
   The respondent is a registered nurse (Division 1) and is currently registered until 31 May 2023. She admits the conduct the subject of the allegation. Indeed, she has admitted her conduct from when she was first confronted about it in her workplace. She made full and frank admissions to police and full admissions in her response to the referral which was filed on 20 June 2022.
3. [3]
   Through her solicitors, in the submission filed on 7 October, she admits that her conduct amounts to professional misconduct. The parties also agree that the appropriate disciplinary response is the imposition of a reprimand and the imposition of a set of conditions on her registration in terms of the schedule of conditions set out on the last page of the applicant’s written submissions filed with the Tribunal.
4. [4]
   Although the respondent pleaded guilty to the offence and was legally represented, as the agreed facts will reveal, in reality, she attempted to commit the offence as the restricted drug, namely, prescribed cannabis oil, was never given to the patient. The effect of that would be to render her liable to only half the maximum penalty of 60 penalty units. It is important to observe that she was convicted of a breach of the Regulation, and she was not charged with or convicted of a much more serious drug offence under the Drugs Misuse Act 1986, where the maximum penalties for offending can include imprisonment.
5. [5]
   The parties have filed an agreed statement of facts. There are no factual disputes between them.

Background

6. [6]
   The respondent is 30 years of age. Her date of birth is 30 June 1991. She was aged 30 at the time of the conduct.
7. [7]
   She obtained a Bachelor of Nursing Science with the University of the Sunshine Coast in 2011.
8. [8]
   She is employed as a registered nurse at the Sunshine Coast University Hospital. At the time of the alleged conduct, she was working as a registered nurse, acting up as a clinical nurse on the orthopaedic ward; and as a clinical nurse consultant of vascular surgery.
9. [9]
   On 30 March 2022, her employer imposed a reduction in her classification level and change of duties from a clinical nurse, grade 6, level 2, and a clinical nurse consultant, grade 7, level 2, to a registered nurse, grade 5, level 7; and a restriction from leadership roles for a period of not less than 12 months. These actions can be regarded as a significant penalty, both from the point of view of her professional reputation, and financially.

The conduct

10. [10]
    The respondent had been allocated a patient who had advised her that he had been unable to use cannabis while he was a patient in the hospital. He advised her that he was and had been for some time a significant user of cannabis. The patient asked if the hospital doctors would prescribe cannabis oil and the respondent advised him that they would not. She told him that when she purchased her home, during a cleanout, she had located a bottle labelled as cannabis oil and, if she could find this bottle at home, she would give it to him.
11. [11]
    The circumstances under which she reached that agreement are not clear. However, what is clear is that she was acting out of concern for the patient and not in her own interests. She was able to locate the bottle that was labelled “Cannabis Oil THC 1000mg”. She would not have been able to confirm that the contents of the bottle were as labelled, as it had not been prescribed to her, had not been purchased by her, and had been located at her home. 
12. [12]
    She took the bottle into the hospital and attempted to provide it to the patient by placing it under the heat lid of his meal where it was located by another nurse. She admitted her conduct immediately to the nurse who located the bottle and to the nurse unit manager.
13. [13]
    On 13 October 2021, she pleaded guilty to one count of dispense, issue, prescribe, purport to prescribe or sell a restricted drug under section 146(3) of the Regulation in the Caloundra Magistrates Court. 
14. [14]
    No conviction was recorded, and she entered into a recognisance of $500 on condition that she be of good behaviour and appear for conviction and sentence if called upon at any time within a period of four months. That penalty is one of the most lenient that can be imposed by a criminal court.

Characterisation

15. [15]
    The applicant alleges, and the respondent, with the benefit of legal advice from lawyers competent in this area of law, that her breach of the Regulation is unprofessional conduct that was substantially below the standard reasonably expected of a registered nurse of an equivalent level of training or experience.
16. [16]
    At all relevant times, she was subject to the applicable code of conduct for nurses, promulgated by the Nursing and Midwifery Board of Australian (‘the Board’), and her admitted conduct contravenes a number of the principles in that code, for example, that nurses practice ethically and not engage in unlawful behaviour, as it may affect their practice and/or damage the reputation of the profession; and nurses must embody integrity…(and) honesty…; …nurses promote health and wellbeing for people....
17. [17]
    In relation to all these principles, the respondent accepts that she found the cannabis oil when cleaning out her newly purchased home and it was labelled as set out above. It is clear that although her actions were motivated by compassion for the patient, she knew that he was a heavy cannabis smoker and that she could not have known if, in fact, the bottle contained cannabis oil.
18. [18]
    As a result, as she accepts, there was potential for harm as:

1. (a)
   the contents had not been prescribed to her or the patient; and
2. (b)
   if he had taken the contents he may have been harmed.

19. [19]
    Most, if not all, of the cases referred to by Ms Townsend in her helpful submission concern nurses who have either supplied dangerous or restricted drugs, or stolen drugs from patients or their employer. Probably the closest factually, albeit more serious, is Health Ombudsman v Gillespie^[1] where the respondent, a registered nurse, supplied temazepam to a 14-year-old through the child’s mother. It is a more complex case, in that the respondent there had been charged with other criminal offences relating to the child, but not in relation to the supply of the temazepam, which was then a schedule 4 restricted drug under the Regulation. The respondent does not appear to have ever been charged in relation to the supply of the drug to a child. The Tribunal regarded the respondent’s conduct as “a serious example of professional misconduct”.
20. [20]
    In my view, the respondent’s conduct here is less serious however I am satisfied that it amounts to professional misconduct as defined in section 5(a) of the Health Practitioner Regulation National Law (National Law). 

Sanction

21. [21]
    Disciplinary proceedings are protective and not punitive in nature. The Tribunal’s jurisdiction to impose orders by way of sanction for misconduct by health professionals is underpinned and informed by the paramount guiding principle and that is that the health and safety of the public are paramount.
22. [22]
    The parties are in agreement as to the sanction to be imposed here, and, although the Tribunal has an unfettered discretion to make orders by way of sanction, it should not depart from the agreement of the parties unless the orders proposed fall outside the permissible range. 
23. [23]
    The case law refers extensively to the factors that may be relevant in the circumstances of a particular case, which factors are usefully summarised in the well-known case of Medical Board of Australian v Jansz.^[2]
24. [24]
    I have referred already to the seriousness of the conduct. The respondent is an experienced nurse and was performing an extremely valuable role at the Sunshine Coast University Hospital at the time of her misconduct. 
25. [25]
    Although there is no evidence of any mental or psychological disorder, it can be accepted, as her lawyer informed the magistrate, that she was being truthful when she told police immediately after the event that she was suffering from stress and burnout. 

29. [26]
    Indeed, in her statement to police on 30 August 2021, she stated that her conduct occurred because she felt empathy for the patient. She also told police of an increased amount of personal and work stressors that impacted on her decision making, including caring for her father, who had early onset dementia, and associated poor health, until his death; working full time as a health care worker during the pandemic; managing two roles and role juggling; increased workload and working with employment related poor skills mix and being short staffed; taking on extra shifts and working shift work; being involved in an  accident on 22 March 2021; being unsuccessful in obtaining her dream job; purchasing her first home; moving house and cleaning and supporting her sister who, at that stage, had a newborn and assisting with child care with another child. 
30. [27]
    Her statement to police about work-related burnout in the context of the pandemic is strongly supported by the professional assessors who are assisting me in this matter. 
31. [28]
    Her lawyer, before the magistrate, informed her that the patient was in a COVID isolation room at the hospital after being flown up from New South Wales after suffering injuries in a shark attack. I accept, as did the magistrate, that the conduct was completely out of character. I am satisfied that her actions were motivated by compassion and probably caused due to the stressors that she related to the police.

29. [29]
    She expressed remorse immediately after her conduct was discovered. She made full admissions to the police. She has never attempted to justify or understate the serious nature of her conduct.
30. [30]
    She has no prior or subsequent disciplinary or criminal history. She has also suffered significant employment consequences. Her lawyer told the magistrate that immediately after the event, she was placed on administrative duties. As noted above on 30 March 2022, she was disciplined by her employer.
31. [31]
    General deterrence is important here to discourage other health practitioners from attempting to supply dangerous drugs or purported dangerous drugs to a patient, whatever the reason.
32. [32]
    Specific deterrence is less important here because of the consequences she has already suffered and the insight she has demonstrated, which leads me to the conclusion that she is highly unlikely to ever engage in similar conduct.
33. [33]
    Like the magistrate, I am satisfied that this highly trained and valuable member of the nursing profession engaged in an act of poor judgment for the reasons stated.  
34. [34]
    In Gillespie, the Tribunal imposed a reprimand. In Health Ombudsman v CSM [2020] QCAT 55 and Health Ombudsman v Ferguson [2020] QCAT 414, objectively more serious cases involving theft of medication and drugs from an employer, reprimands were imposed. As is often stated, a reprimand is not a trivial penalty as it represents a public denunciation of the misconduct which is recorded on the public register of practitioners.
35. [35]
    For those reasons, the findings and orders of the Tribunal are as follows:

1. A finding that the conduct of the respondent constitutes professional misconduct pursuant to section 102(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (the Act).
2. An order pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld) that the respondent be reprimanded.
3. An order pursuant to section 107(3)(b)(i) of the Health Ombudsman Act 2013 (Qld) that the respondent complete specified education within six months in accordance with the schedule of conditions attached to this order.
4. No order as to costs.