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Health Ombudsman v Andelkovic[2022] QCAT 96

Health Ombudsman v Andelkovic[2022] QCAT 96

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Andelkovic [2022] QCAT 96

PARTIES:

director of proceedings on behalf of the health ombudsman

(applicant)

v

Steve anDelkovic

(respondent)

APPLICATION NO/S:

OCR030-20 and OCR187-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 March 2022 (ex tempore)

HEARING DATE:

10 March 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Ms Sharyn Hopkins

Mr Stephen Lewis

Ms Margaret Ridley

ORDERS:

  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013, the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;
  2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded;
  3. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013, the respondent’s registration is cancelled;
  4. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013, the respondent is disqualified from applying for registration as a registered health practitioner until 25 April 2023;
  5. Pursuant to s 66(2)(a)(ii) of the Health Ombudsman Act 2013, the immediate registration action made by the Health Ombudsman effective 6 April 2018 be set aside; and
  6. Each party bears its own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where registered nurse defrauded a couple who were his friends over a period of years of over $100,000 – where he was convicted and sentenced to a term of imprisonment of 3 years and 6 months suspended after serving 10 months for an operational period of 4 years – where respondent also convicted of 3 offences involving violence and a threat to kill against his estranged wife – where he was sentenced to community based orders by another judge – where second episode of offending occurred after the first but before he was sentenced for the fraud – where parties agree as to the facts – where two referrals are before the Tribunal relating to each episode of offending – where the respondent failed to notify the Board when charged with the fraud – where he says he asked police to do that – whether conduct amounts to professional misconduct – where a psychiatrist at the direction of Aprha diagnosed the respondent as having a psychotic mental illness undiagnosed since he was 19 – where the doctor opined that the mental illness was not related to either episode of offending – whether respondent is now a fit and proper person to hold registration – whether the evidence supports a finding that he has insight into his offending and shows remorse for it – where operational period does not expire until 26th April 2023

Health Practitioner Regulation National Law (Qld) s 130

Health Ombudsman Act 2013 (Qld) s 66, 107

Briginshaw v Briginshaw (1936) 60 CLR 336

Council for Regulation of Healthcare Professionals v General Medical Council and Fleischmann [2005] EWHC 87

Ex parte Tziniolis Re The Medical Practitioners Act (1966) 67 SR (NSW) 448

Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177

Health Ombudsman v ANP [2022] QCAT 6

Health Ombudsman v Field [2019] QCAT 243

Health Ombudsman v Le [2020] QCAT 170

Health Ombudsman v OOD [2021] QCAT 388

Health Ombudsman v Skobe [2020] QCAT 196

McBride v Walton [1994] NSWCA 1999

Medical Board of Australia v Jansz [2011] VCAT 1026

Nursing and Midwifery Board of Australia v Bartlett (Correction) (Review and Regulation) [2013] VCAT 2014

Nursing and Midwifery Board of Australia v Gregory John Hogan [2018] TASHPT 3

APPEARANCES &

REPRESENTATION:

 

Applicant:

M Price, Principal Legal Officer at the Office of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    The Tribunal has before it for hearing today, two separate but related health service complaints against Steve Andelkovic (the respondent). 
  2. [2]
    The first disciplinary referral in time filed by the Director of Proceedings on behalf of the Health Ombudsman (the applicant) was filed on the 31st of October 2020.[1]  That referral contains two allegations: 
    1. (a)
      The first being that as a result of the respondent’s conviction on the 26th of April 2019, on his own plea of guilty in the District Court of Queensland at Beenleigh, he has behaved in a way that constitutes professional misconduct. 
    2. (b)
      The second allegation in the first referral is that he breached section 130(1) of the Health Practitioner Regulation National Law (Queensland) (National Law) by failing to notify the Nursery and Midwifery Board of Australia (the Board) within the required time of a relevant event, namely being charged with that offence. 
  3. [3]
    The second disciplinary referral filed by the applicant on the 28th of June 2021[2] relates to the respondent’s conviction in the same court, but before a different judge, on the 21st of May 2021, on his own pleas of guilty to one count of common assault (domestic violence offence), one count of using a carriageway to make a threat to kill, and one count of threatening violence. 
  4. [4]
    The applicant alleges that as a consequence, the respondent has engaged in professional misconduct. 

Background and Regulatory History

  1. [5]
    In relation to both matters, the parties have filed agreed statements of fact.[3] 
  2. [6]
    The respondent was born on the 15th of April 1973, so is presently 49.  The fraud the subject of the first referral occurred on various dates between the 23rd of June 2013 and the 4th of January 2017.  The respondent was 45 at the time of his sentence.  The three offences the subject of the second referral were committed in 2016, the 5th of February 2018, and the 14th of February 2018, and on each occasion, his wife was the victim of that offending.  The respondent was 48 when convicted and sentenced in the Beenleigh District Court on the 21st of May 2021. 
  3. [7]
    The respondent was a registered nurse throughout his offending.  He holds a Bachelor of Nursing from the Queensland University of Technology and was first registered as a registered nurse by the Board on the 2nd of December 2003.  He remains registered, however his registration was suspended on the 6th of April 2018, before it was due to expire on the 31st of May 2018.  On the 5th of April 2018, the Health Ombudsman decided to take immediate registration action and suspend the respondent’s registration which took effect the following day. 

The Relevant Conduct

First Referral

  1. [8]
    The victims of the offence of aggravated fraud were a married couple, who were close friends of the respondent.  For some years prior to the offending, the complainants had invested a significant sum of money in a company owned by the respondent which he told them bought and sold stocks and commodities and paid a fixed rate of interest to investors.  Their initial investment with interest was returned to them at their request prior to the offending.  Prior to the offending period, the respondent was guaranteeing returns of between 9 to 12 per cent per annum to investors.  Between June 2013 and August 2014, the complainant couple invested $170,000 with the respondent.  Subsequent forensic examination of relevant accounts indicated that he had transferred and used a considerable portion of their money for his own use.  This pattern continued as the complainants invested moneys during this period. 
  2. [9]
    He later admitted to the police when interviewed in May 2017, after the complainants had complained, that he was never authorised to use the complainants money for his own use.  In his interview with police on the 17th of May 2017, he blamed his ex-wife who is the victim in the second episode of offending, who he said “pressured” him to use the complainants’ money.  Throughout the period of the offending, and despite the respondent dishonestly appropriating a significant portion of the funds invested with him by the complainants, and despite the moneys which had been invested having been lost, he emailed the female complainant on a weekly basis, giving her updates which suggested that their investments were doing well. 
  3. [10]
    The scheme collapsed as a result of the complainants’ request to withdraw their $170,000 and alleged accrued interest of $27,133 in December 2016.  The respondent lied to them, suggesting that his accounts had been frozen as a result of his divorce proceeding.  The male complainant made a formal complaint to police on the 23rd of December 2016. 
  4. [11]
    On the 3rd of January 2017, the respondent telephoned the male complainant and admitted that he had stolen most of their money.  A few days later, he deposited $7059 into the complainants’ account, which was all that was left after his dishonesty and losses on the market. 
  5. [12]
    The sentence before the District Court on the 26th of April 2019 proceeded on the basis that the actual loss to the complainants (taking out what was a fictitious amount for interest) was $108,000.  A report of consultant psychiatrist Dr Varghese dated the 23rd of November 2018, obtained at the direction of Ahpra, was tendered before the judge.  He diagnosed the respondent as suffering from an undiagnosed form of schizophrenia since he was about 19. 
  6. [13]
    The judge sentenced the respondent to three years and six months imprisonment, which she suspended after he had served 10 months in actual custody, for an operational period of four years.  The effect of that sentence was that he was obliged to serve 10 months in prison, which he did, and the balance of the sentence that would then remain hanging over his head for a period of four years, namely, until the 26th of April 2023. 
  7. [14]
    The first referral contains the second allegation that the respondent contravened section 130(1) of the National Law, in that when charged with fraud on the 17th of May 2017, he failed to notify the Board.  In his response to the referral, he says he asked the police “to inform my workplace and professional body”. 

The Second Referral

  1. [15]
    In relation to the second referral, the conduct relates to the respondent’s plea of guilty to the charges of common assault, using a carriage service to make a threat to kill, and one count of threatening words by violence or conduct, which was dealt with in the District Court on the 21st of May 2021.
  2. [16]
    The respondent had:
    1. (a)
      On a date unknown between the 31st of May and the 31st of October 2016, struck the back of his wife’s leg with a bundle of rolled up advertisement catalogues, bruising her and causing her pain (count 1);
    2. (b)
      On the 5th of January 2018, he sent her a text message stating among other things that if she continued to “hijack” his super funds, “you will be dead” (count 2);
    3. (c)
      On the 14th of February 2018, the respondent attended the Loganholme Police Station and told a police officer that he wanted to kill his wife and told another that (amongst other things) he was going to kill his wife by stabbing her with knives (count 3).
  3. [17]
    In the Beenleigh District Court on the 21st of May 2021, he was sentenced to two years’ probation in respect of counts 1 and 3, and convictions were recorded.  In respect of count 2, the respondent was placed on a $500 two year good behaviour bond with no conviction recorded. 
  4. [18]
    As that offending occurred either contemporaneously with the last stage of the fraud; or after he was charged with that offence and before he was sentenced in the District Court on the 26th of April 2019, the second judge who sentenced him on the 21st of May 2021 was required to apply the principle of totality.  Put simply, the judge was required to proceed on the hypothetical basis that if all the offences had been before the first judge, what effect would that have had on the total sentence for all the offending. 
  5. [19]
    As noted earlier, the respondent is still subject to the operational period of four years imposed on the 26th of April 2019 for the aggravated fraud and the two-year probation period imposed on the 21st of May 2021. 

Characterisation of the Conduct

  1. [20]
    It is accepted that the Applicant has the onus of proof subject to the well-known principle enunciated in Briginshaw v Briginshaw (1936) 60 CLR 336.  In his response to the first referral,[4] the respondent admits the fact of his conviction for fraud.  In the statement of agreed facts,[5] he admits the relevant circumstances.  He also admits allegation 2, in that he did not notify the Board in writing within seven days of being charged with the offence of fraud.  He says (in his response when considered with the statement of agreed facts)[6] and in relation to what he said in submissions today, that when he was charged with the offence on the 17th of May 2017, he asked Detective Lauren McRobie, to notify the Board and/or Ahpra on his behalf.  Detective McRobie has filed an affidavit in these proceedings. [7] She was not required for cross-examination by the respondent. 
  2. [21]
    She interviewed him on the 17th of May 2017 in which he made full admissions to the aggravated fraud.  A transcript of that interview which was tape-recorded is before the Tribunal, [8]and, as Detective McRobie says in her affidavit, nowhere in that interview does the respondent mention advising the Board or Ahpra that he had been charged.  I can infer that he would have been charged after the interview.  She swears that she has no recollection of that request ever being made and she has checked with Constable Puia, who was her partner in the investigation, and he too has no such recollection.  In proceedings such as this, the tribunal is not bound by the rules of evidence. 
  3. [22]
    I think it’s highly unlikely that the respondent did ask police to notify Ahpra and/or the Board on his behalf.  In any event, as Mr Price submits on behalf of the applicant, section 130(1) provides for a mandatory disclosure obligation (by the use of the word “must”) on the registered health practitioner to give “written notice of the event”, in this case, being charged with an offence punishable by 12 months imprisonment or more.  I am satisfied that the applicant has proved allegation 2 in the first referral.
  4. [23]
    It is appropriate in this case to consider the respondent’s proved conduct as a whole.  As such, his conduct was clearly unprofessional conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.  Section 41 of the National Law renders admissible relevant codes and guidelines in proceedings of this nature as evidence of what constitutes appropriate professional conduct or practice for a health practitioner. 
  5. [24]
    Firstly, in respect of the first referral, fraud is obviously an offence of dishonesty.  The Code of Conduct for Nurses (the Code) consistently emphasises the importance of honesty in the nursing profession.  The Code discusses honesty generally under the heading “Domain:  Act with Professional Integrity”, where it states in paragraph 4, “Nurses embody integrity, honesty, respect and compassion.”  Honesty is a fundamental component of professional ethics.  Registered health practitioners owe a duty of good faith, candour and comprehensive disclosure.  Secondly, in respect of both referrals, the Code discusses lawful behaviour of nurses generally under the heading “Domain:  Practice Legally”, where it states, “Nurses respect and adhere to their professional obligations under the National Law, and abide by relevant laws.” 
  6. [25]
    The relevant features of the respondent’s conduct demonstrating it being substantially below the expected standard include: 
    1. (a)
      The serious nature of the fraudulent conduct itself as demonstrated by the criminal nature of the dishonesty, the significant amount of money defrauded, the significant breach of trust involving both a betrayal of a friendship and breach of a fiduciary duty; 
    2. (b)
      The planning and premeditation required and the level of sophistication involved;
    3. (c)
      The significant duration of the dishonesty occurring over a period of approximately three and a-half years, demonstrating that it was not an isolated incident or a mere error of judgment; 
    4. (d)
      The persistent and continuing nature of the dishonesty involving the use of sums as diverse as $800 and $50,000; 
    5. (e)
      The dishonest reporting about the performance of the invested funds, which prevented the complainants from making informed decisions about their money and perhaps mitigating their loss; 
    6. (f)
      The dishonest reporting of the performance of the $70,000 investment, which induced the complainants to invest a further $100,000, which additional sum then also became subject to the respondent’s fraud, mismanagement and dishonest reporting; 
    7. (g)
      The dishonest reporting of profits which misled the complainants about their investment and meant that the difference between their expected return and their actual loss was substantially larger than the amount of moneys actually defrauded; and
    8. (h)
      The significant impact of the offending upon the complainants as reflected in their victim impact statements tendered before the judge.
  7. [26]
    In relation to the second referral, the relevant features of his conduct demonstrating that it, together with the fraud, was conduct substantially below the expected standard, include:
    1. (a)
      The criminal nature of that conduct, the assault being committed in a domestic setting – all three offences being directed at or relating to his then wife, the objective seriousness of the threat, involving threats to kill and references to his wife’s family as alternative targets; and
    2. (b)
      The coercive nature of the email threat to his wife and the fear this threat induced in his wife which manifested itself by the modifications she made to her behaviour. 
  8. [27]
    The applicant also submits that section 5(c) of the definition of “professional misconduct” in the National Law is engaged in the circumstances of this case such that the conduct as proved is “inconsistent with (him) being a fit and proper person to hold registration in the profession”.
  9. [28]
    A useful list of factors for determining a person’s fitness to be a health practitioner was considered in McBride v Walton [1994] NSWCA 1999 at page 34.  These include:
    1. (a)
      Whether the misconduct can be satisfactorily explained as an error of judgment, rather than a defect of character;
    2. (b)
      The intrinsic seriousness of the misconduct in relation to the practitioner’s fitness to practice, in this case, nursing;
    3. (c)
      Whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner’s normal qualities and character;
    4. (d)
      The motivation which may have given rise to the proven episode of misconduct;
    5. (e)
      The underlying qualities of character shown by the conduct; and
    6. (f)
      Whether the practitioner’s conduct post the proved episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required in this case by a nurse. 
  10. [29]
    The respondent’s fraudulent conduct is inconsistent with his being a fit and proper person to hold registration in the profession:
    1. (a)
      The fraud should not be characterised as a mere error of judgment.  It was a deliberate and persistent course of conduct;
    2. (b)
      Although the conduct was not related to his practice as a nurse, it is intrinsically serious when related to his fitness to practise nursing as outlined above, given the importance of honesty in the profession; 
    3. (c)
      The conduct cannot be viewed as an isolated episode, and therefore cannot be seen as atypical or uncharacteristic of the respondent’s normal qualities of character; 
    4. (d)
      In relation to the fraud, the respondent’s motivation was greed rather than necessity, and involved lavish and extravagant spending of other people’s money; and
    5. (e)
      There is no evidence of any conduct by the respondent since his criminal conduct which demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards and moral rectitude required by the nursing profession, other than his cooperation in these and the criminal proceedings.  On the contrary, his further criminal offending since the fraud suggests that he cannot be trusted to uphold and observe those standards.
  11. [30]
    In Nursing and Midwifery Board of Australia v Bartlett (Correction) (Review and Regulation) [2013] VCAT 2014, the Tribunal was satisfied that the practitioner’s conduct fell within both paragraphs (a) and (b) of the definition of “professional misconduct” as defined in section 5 of the National Law.  The respondent, over approximately three and a-half years, falsified time sheets relating to her work as a registered nurse at Geelong Hospital.  As a result, she received overpayments amounting to $64,394.38.  She was convicted on her own plea of one count of obtaining property by deception and was sentenced to three months imprisonment wholly suspended.  In addition to falsifying her time sheets, she obtained references by false pretences for the purposes of the Magistrates Court prosecution which followed.  She then doctored two of them to replace the salutation “to whom it may concern” with “to the presiding magistrate”.  Those letters were never tendered.  She failed to notify the Board that her right to practise at Geelong Hospital had been withdrawn, and further failed to notify the Board of her conviction for the offence. 
  12. [31]
    The Tribunal noted (at [17] and [19]):

The theft of the substantial sum from her employer in the manner described above, over a long period, demonstrates a lack of good character…

And

…it is not conduct which is consistent with a practitioner being a fit and proper person to hold registration as a nurse.  Ms Bartlett’s conduct constitutes a significant breach of trust.  It undermines the community’s confidence in the nursing profession.  It is breach of fundamental ethical standards.

  1. [32]
    In my opinion, those comments are equally applicable in the present case. 
  2. [33]
    In Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177, a medical practitioner was alleged (among other allegations) to have come to the former matrimonial home to spend time with his children when a dispute occurred with a female.  He pushed her onto a bed causing injury to her throat and swore at her.  Commenting on this aspect of his conduct, the Tribunal stated (at [87]):

The practitioner’s conduct is of the kind which could be found to render him unsuitable to practice.  Violence, particularly against women, in a domestic situation is well recognised in the Australian community as abhorrent, but tragically it continues to occur. 

  1. [34]
    The respondent’s three further offences involving threats and violence, are also inconsistent with his being a fit and proper person to hold registration in the nursing profession.  The offences were committed on different occasions over a period of at least 15 and a-half months, suggesting that the conduct was caused by a defect of his character, rather than three separate errors of judgment.  The conduct is intrinsically serious in relation to his practice of nursing, particularly having regard to the elements of the Code referred to above.  The fact that there are three offences, and that each offence can be characterised by reference to violence, actual or threatened, means that they cannot be viewed as isolated episodes.  They therefore cannot be seen as atypical or uncharacteristic of the respondent’s normal qualities of character.  Of significant concern for a nurse amongst the underlying qualities of character demonstrated by this conduct is a lack of empathy. 
  2. [35]
    The Tribunal is satisfied that the proved conduct amounts to “professional misconduct” under both (a) and (c) of the definition of that concept in the National Law. 

Sanction

  1. [36]
    Proceedings of this nature are protective in nature and not punitive.  The principle that underpins the power of the Tribunal to sanction health practitioners who have behaved in a way that constitutes professional misconduct, is that the health and safety of the public is paramount.[9]  Consideration of personal and general deterrence, maintenance of professional standards and confidence in the nursing profession, assessment of ongoing risk which involves the degree to which the respondent has developed insight into his conduct, evidence of rehabilitation and other relevant matters that may arise in a particular case, are all potentially matters relevant to the issue of sanction.
  2. [37]
    The respondent did demonstrate insight and remorse in relation to the fraud matter, to the extent that he made admissions to the male complainant, full admissions to police, paid back a small amount of the large sum defrauded and pleaded guilty in the District Court.  As against that, in the police interview, he blamed his wife which is not consistent with the statement of agreed facts, in particular paragraph 43, where he accepts, for example, that he spent between $5000 and $7000 on an abdominoplasty for himself. 
  3. [38]
    At my request, Mr Price on behalf of the applicant, has obtained copies of the report of Dr Varghese tendered before her Honour in the fraud proceedings in Beenleigh, together with various reports of Dr Pant, his treating psychiatrist at the time, and Dr Pant’s email exchanges with Ahpra.  The Tribunal has also been provided with a decision taken by the Board on the 24th of October 2019, which related to the issue of a possible health impairment.  The Board, at that stage, decided to take no action essentially because (a) the respondent was incarcerated under the first sentence, and (b) further charges were outstanding. 
  4. [39]
    The health impairment issue is not relevant to these proceedings, except to the extent that his mental illness may reduce his moral culpability and affect sanction.  As the Board notes in its reasons, it may be appropriate for the respondent to undergo further medical assessment “to ensure that the Board has current, reliable information regarding his fitness to practise the nursing profession”.
  5. [40]
    As her Honour noted when sentencing the respondent on the 26th of April 2019, the report of Dr Varghese, which was before her, makes it clear that his previously undiagnosed “serious psychiatric illness best understood as schizophrenia”, was not related to either incident of offending.  As he notes, the offences “did not appear to be the product of psychotic thinking or psychotic experiences”. 
  6. [41]
    On the issue of insight, and in his history given to Varghese, the respondent went well beyond suggesting that his wife pressured him in relation to the fraud offending.  He accuses her of stealing from his super fund, and says he complained to local police about what he described as her alleged fraud.  All this is completely inconsistent with his own unconditional plea of guilty to all offending, and although her Honour did refer to his wife, any suggestion that she had anything to do with his long-term deliberate course of dishonest conduct is fanciful.
  7. [42]
    The respondent made similar allegations against his wife to Dr Pant.  According to Dr Pant, in his report dated the 4th of February 2019, the respondent was then responding to treatment but in the absence of any up-to-date material, it is difficult for the Tribunal to conclude that the respondent really does have genuine insight into his offending in particular, the aggravated fraud. 
  8. [43]
    It is also relevant that he cooperated with these proceedings by agreeing to statements of fact in both referrals, and he also appeared and represented himself today and made submissions.  In his submissions to me today, he says that he is not subject to any treatment by a psychiatrist at the present time and is not taking the medication  referred to in the report of Dr Pant.  It follows that there is no evidence before the Tribunal which tends to suggest that his character has been rehabilitated or reformed, or that he has developed any insight, other than his pleas of guilty in a criminal proceedings and his cooperation in these disciplinary proceedings. 
  9. [44]
    As was stated in Ex parte Tziniolis Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 and 461: 

Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing.  One cannot assume that a change has occurred merely because some years have gone by, and it has not been proved that anything of a discreditable kind has occurred.  If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.

  1. [45]
    Given the lack of such evidence, it cannot be said that the respondent does not pose an ongoing risk at the present time. 
  2. [46]
    In this case, there is a need for both specific and general deterrence. Despite his admissions and his general attitude to these proceedings, there remains a need for specific deterrence.  That is because of the duration and persistence of his dishonesty, the large sum fraudulently obtained, the greed motivating his conduct, and the fact that his deception only ended due to its discovery. 
  3. [47]
    Specific deterrence is also required to address the repeated offending towards or in respect of his then wife.  Additionally, any sanction should also be sufficient to deter other practitioners from engaging in similar conduct.  Offences of dishonesty and particularly violence or threats are inimical to the practice of nursing.  In the circumstances of this case, deterrence would be best achieved by cancelling his registration and disqualifying him from reapplying for registration for a significant period.
  4. [48]
    In Nursing and Midwifery Board of Australia v Gregory John Hogan [2018] TASHPT 3, a matter involving repeated instances of domestic violence committed by a registered nurse upon his former partner, the Chairperson stated (at [48]):

“…I take the view multiple convictions for assault against a practitioner’s partner is a very serious matter.  The public is entitled to be protected against further similar conduct that, even though it did not occur in the practise of nursing, may reveal a defect in the respondent’s character and therefore impact on the trust and confidence of his patients and/or fellow health practitioners in his practice of nursing.” 

  1. [49]
    The comparative decisions referred to by Mr Price in his submission suggest a sanction preventing the respondent from practising for a significant period is appropriate.  The difference between cancellation and suspension has been considered in a number of previous decisions.  In Medical Board of Australia v Jansz [2011] VCAT 1026, the Tribunal noted (at [427]):

“Cancellation of registration sends a clear message of unsuitability to practice.  Suspension may be thought to indicate confidence in the doctor’s further ability to practise once the period of suspension is served…”

  1. [50]
    In Health Ombudsman v Le [2020] QCAT 170, at [29] and [30] on page 7 and 8, the Tribunal stated: “In order to cancel the respondent’s registration, it is necessary for the tribunal to decide that the respondent is not a fit and proper person to be registered as a pharmacist.  That is to be decided as at the date of hearing.  The important distinction between suspension and cancellation of registration is that, in the latter case, it is necessary for the respondent on seeking registration to demonstrate that he is then a fit and proper person to be registered as a pharmacist…..A number of matters relevant to such findings were identified in Health Ombudsman v Field [2019] QCAT 243 at [36].  In this case, the persistence of dishonesty suggests a defect in a character rather than an error of judgment, and it was not an isolated incident.  In a number of cases, the respondent resorted to dishonesty when placed in a difficult position, and the dishonesty was at times intrinsically significant..” 
  2. [51]
    Health Ombudsman v Skobe [2020] QCAT 196 involved an enrolled nurse, who while on shift at a health facility, located an 81 year old female’s bank card and PIN, attended a shopping centre and completed a balance of the inquiry on the patient’s bank account.  She later used the card and PIN to withdraw $1000 from an ATM.  Over approximately two months, the respondent withdrew cash on 28 further occasions.  The total amount stolen was $23,700.  On the 19th of January 2018, she was convicted on her own plea of guilty to one count of stealing.  She was sentenced to two years imprisonment to be released on parole on the 17th of April 2018.  She also failed to provide written notice to the Board within seven days when she was convicted, in breach of section 130(1) of the National Law. 
  3. [52]
    At the time of the hearing, her registration had been suspended as a result of immediate registration action taken by the Health Ombudsman.  The parties in that case agreed as to the facts and the proposed findings and orders.  The Tribunal found that she had engaged in professional misconduct in respect of her criminal conviction, and unprofessional conduct in respect of her failure to notify the Board.  Among the orders made, the Tribunal reprimanded her, cancelled her registration, and disqualified her from applying for registration for a period of 18 months, and prohibited her from providing any health service until such times as she was re-registered as a nurse. 
  4. [53]
    The respondent’s conduct in this case is more serious than that of the practitioner in Skobe.[10] I agree with the submission made by Mr Price that the respondent’s conduct apart from the convictions the subject of the second referral, is somewhat approximate to that of the practitioner in Bartlett,[11] although that practitioner had several features in mitigation which are absent here, which operated in her favour.  In that case, the Tribunal reprimanded her, cancelled her registration, and disqualified her from reapplying for registration as a nurse or midwife for a period of two years. 
  5. [54]
    In the circumstances here, having regard to the authorities, the respondent’s total conduct warrants a period of disqualification of between four and five years.  Given the extent of his dishonesty and his relevant lack of mitigating features, I agree with the submission made by Mr Price that the period of disqualification should be towards the top of the range.  His registration has been suspended since the 6th of April 2018, a period of just under four years.  The Tribunal can take that period of preclusion from practice into account in determining the appropriate sanction. 
  6. [55]
    Mr Price has also appropriately referred the Tribunal to a decision of Health Ombudsman v OOD [2021] QCAT 388 in relation to the principle discussed by the Tribunal from [32] to [38]. 
  7. [56]
    As in the case, the Tribunal here is considering sanction in circumstances where as a result of a criminal conviction and an imposition of a term of imprisonment, the sentence has not been satisfied. In this case the operational period imposed by her Honour does not expire until the 26th of April 2023.  In OOD I referred to some comments of Newman J in Council for Regulation of Healthcare Professionals v General Medical Council and Fleischmann [2005] EWHC 87.  In particular, at paragraph 54 of that decision Newman J stated the general principle in these terms:

I am satisfied that, as a general principle, where a practitioner has been convicted of a serious criminal offence or offences, he should not be permitted to resume his practice until he’s satisfactorily completed his sentence.  Only circumstances which plainly justify a different course should permit otherwise.  Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for the payment of the fine.  The rationale for the principle is not that it can serve to punish the practitioner while serving his sentence, but that good standing in a profession must be earned if the reputation of the professional is to be maintained. 

  1. [57]
    I have also been referred to a more recent decision of the tribunal, namely, Health Ombudsman v ANP [2022] QCAT 6 which refers to OOD, but which involves quite different circumstances to that which pertain here.
  2. [58]
    In any event, the expiration of the operational period of the sentence imposed by her Honour in the 2019 sentence, is very similar to the appropriate period of cancellation that the Tribunal would have imposed by way of sanction in the circumstances of this case. 
  3. [59]
    In relation to costs, the interest of justice do not require an order requiring one party to pay the other’s costs.  The default position under the QCAT Act should apply with each party of the proceedings to bear their own costs of the proceedings.

Orders

  1. [60]
    In those circumstances, the Tribunal makes the following decision and orders:
    1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013, the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;
    2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded;
    3. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013, the respondent’s registration is cancelled;
    4. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013, the respondent is disqualified from applying for registration as a registered health practitioner until 25 April 2023;
    5. Pursuant to s 66(2)(a)(ii) of the Health Ombudsman Act 2013, the immediate registration action made by the Health Ombudsman effective 6 April 2018 is set aside; and
    6. Each party bears its own costs of the proceeding.

Footnotes

[1] Hearing Brief (HB) page 1-6

[2] HB pages 23-28

[3] First referral HB pages 11-12; Second referral pages 41-46

[4] HB page 7

[5] HB page 11

[6] HB page 19 para [54]

[7] HB page 251

[8] HB page 113

[9] Sections 3A of the National Law and section 4 (1) and (2)(c) of the HO Act

[10] [2020] QCAT 196

[11] Nursing and Midwifery Board of Australia (Correction) (Review and Regulation) [32013] VCAT 2014

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Andelkovic

  • Shortened Case Name:

    Health Ombudsman v Andelkovic

  • MNC:

    [2022] QCAT 96

  • Court:

    QCAT

  • Judge(s):

    Member J Robertson

  • Date:

    10 Mar 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1936) 60 CLR 336
2 citations
Jump To
Cite 1 - (1936) 60 CLR 336
Cite 2 - (1936) 60 CLR 336
Council for the Regulation of Health Care Professionals v General Dental Council & Anor [2005] EWHC 87
2 citations
Jump To
Cite 1 - [2005] EWHC 87
Cite 2 - [2005] EWHC 87
Ex parte Tziniolis Re The Medical Practitioners Act (1966) 67 SR (NSW) 448
2 citations
Jump To
Cite 1 - (1966) 67 SR (NSW) 448
Cite 2 - (1966) 67 SR (NSW) 448
Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177
2 citations
Jump To
Cite 1 - [2018] NSWCATOD 177
Cite 2 - [2018] NSWCATOD 177
Health Ombudsman v ANP [2022] QCAT 6
2 citations
Jump To
Cite 1 - [2022] QCAT 6
Cite 2 - [2022] QCAT 6
Health Ombudsman v Field [2019] QCAT 243
2 citations
Jump To
Cite 1 - [2019] QCAT 243
Cite 2 - [2019] QCAT 243
Health Ombudsman v Le [2020] QCAT 170
2 citations
Jump To
Cite 1 - [2020] QCAT 170
Cite 2 - [2020] QCAT 170
Health Ombudsman v OOD [2021] QCAT 388
2 citations
Jump To
Cite 1 - [2021] QCAT 388
Cite 2 - [2021] QCAT 388
Health Ombudsman v Skobe [2020] QCAT 196
3 citations
Jump To
Cite 1 - [2020] QCAT 196
Cite 2 - [2020] QCAT 196
Cite 3 - [2020] QCAT 196
McBride v Walton [1994] NSWCA 1999
2 citations
Jump To
Cite 1 - [1994] NSWCA 1999
Cite 2 - [1994] NSWCA 1999
Medical Board of Australia v Jansz [2011] VCAT 1026
2 citations
Jump To
Cite 1 - [2011] VCAT 1026
Cite 2 - [2011] VCAT 1026
Nursing & Midwifery Board v Hogan [2018] TASHPT 3
2 citations
Jump To
Cite 1 - [2018] TASHPT 3
Cite 2 - [2018] TASHPT 3
Nursing and Midwifery Board of Australia v Bartlett [2013] VCAT 2014
2 citations
Jump To
Cite 1 - [2013] VCAT 2014
Cite 2 - [2013] VCAT 2014

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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