Health Ombudsman v Peroumal[2022] QCAT 97

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 29 March 2021, the Director of Proceedings on behalf of the Health Ombudsmen (the applicant), referred these disciplinary proceedings against the respondent to the Tribunal.
2. [2]
   The applicant alleges that as result of the respondent’s conviction, on her own pleas of guilty, to one count of stealing and nine counts of fraud in the Magistrates Court of Queensland on 24 November 2020, she has behaved in a way that constitutes professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law). The applicant contends that the conduct falls within both (a) and (c) of the definition of “professional misconduct” in section 5, whereas the respondent contends that her conduct is caught only by section 5(a).

Background

3. [3]
   There are no factual disputes between the parties. The parties have filed a statement of agreed facts.
4. [4]
   On 11 August 2020, the Office of the Health Ombudsmen received a mandatory notification from the respondent’s employer in relation to her then alleged conduct involving stealing and using a resident’s card while employed at a Blue Care Aged Care facility.
5. [5]
   On 24 August 2020, the Health Ombudsmen served upon the respondent, a show cause notice of proposed immediate action, proposing to impose conditions on her registration.
6. [6]
   On 14 September 2020, the respondent, through her lawyers, provided written submissions to the Health Ombudsmen in response to the show cause notice. On 23 September 2020, the Health Ombudsmen decided to take immediate registration action and imposed conditions on the respondent’s registration. The conditions prohibited the respondent from practicing in any role requiring direct or indirect clinical patient contact.
7. [7]
   On 3 December 2020, the respondent, through her lawyers, made an application to vary the immediate action following her plea of guilty to the criminal offences and her sentencing. On 9 February 2021, the Health Ombudsmen decided to remove the conditions imposed on her registration, effective 5 February 2021.
8. [8]
   The respondent was born on 30 December 1975. She was 44 years of age at the time of the conduct. She obtained a Bachelor of Nursing from the University of Southern Queensland in 2014. She was first registered with the Nursing and Midwifery Board of Australia (the Board) on 18 March 2014, and currently holds registration as a registered nurse, (Division 1), with the Board.
9. [9]
   At the time that the statement of agreed facts was filed in July 2021, the respondent was employed at the University of Queensland on a casual basis, facilitating and assisting in the training of nursing and medical students. I am informed today by Ms Robb, on her behalf, that she is presently unemployed and on benefits and considering her future in the nursing profession.

The Relevant Conduct

10. [10]
    The complainant was an 87-year-old resident of the Blue Care aged care facility.
11. [11]
    On 26 June 2020, the respondent was working at the facility. She entered the complainant’s room, proceeded to her handbag, opened her wallet, and removed a Visa debit card, and left at the completion of her shift in possession of the Visa debit card. Over a period of just over three hours on the same day, she used the card to complete a number of transactions at various organisations. The total sum defrauded, as a result of the use of the Visa card on nine occasions, amounted to $589.73.
12. [12]
    She was identified by CCTV footage. She declined to participate in a record of interview in relation to the matter, I infer, on legal advice.
13. [13]
    On 24 November 2020, she pleaded guilty and was convicted by the Pine Rivers Magistrates Court of one count of stealing and nine counts of fraud. She was ordered to complete 40 hours of unpaid community service and to pay restitution in the amount of $589.73. The Magistrate exercised his discretion not to record a conviction.

Characterisation of the Conduct

14. [14]
    The applicant bears the onus of proof in accordance with the well-known principle in Briginshaw v Briginshaw [1938] 60 CLR 336.
15. [15]
    The conduct and the conviction are admitted here. The applicant is satisfied the onus of proving of the conduct. The stealing of an elderly resident’s debit card and then using it on multiple occasions to purchase goods for her own benefit on the same day, is clearly conduct that is substantially below the standard reasonably expected of a registered nurse of an equivalent level of training or experience as the respondent. As accepted by her in the statement of agreed facts, her conduct breached a number of sections of the Board’s Code of Conduct for nurses. It involved determined behaviour, that is, she entered the complainant’s room, proceeded to her handbag, opened her wallet and removed the card, which she retained until the end of her shift. She then used the card on nine occasions over a period of three hours on the same day.
16. [16]
    As the Acting Magistrate observed when sentencing the respondent, the conduct involved a serious breach of trust. Not only of the trust that the very vulnerable victim was entitled to expect from a nurse charged with her care, but also the trust of the facility and her employer.
17. [17]
    Health Ombudsman v Salvador [2022] QCAT 28, involved a less experienced nurse who found a debit card of a patient on the floor in the facility in which he worked. To his knowledge, the card belonged to an elderly male patient who had died three days earlier. His family had not had time to clear out his personal belongings.
18. [18]
    He used the stolen card over a period of two days to make purchases of $246.10. In that case, the parties agreed that the conduct did amount to professional misconduct. However, the applicant contended that it was caught by all three definitions in section 5, whereas the respondent argued that it was caught only by section 5(c).
19. [19]
    As I perceived the respondent’s argument here, although it is not vigorously pressed on her behalf by Ms Robb, by reference to her affidavit filed in these proceedings on the 1st of September 2021, it is contended that because of significant stress after a visit to her mother in the week leading up to 26 June 2020, and because of issues relating to the handover when she commenced her shift that day, she was anxious and under stress and she does not remember taking the resident’s card, “But accept that I did this”. She said in her affidavit that she then had $10,000 in savings at the bank.
20. [20]
    As I think Ms Robb inferentially concedes, there are difficulties in this contention. Her determined actions, which I have described earlier, do not, as a matter of common sense or experience, suggest a person who was acting unconsciously, or under some form of automatic state. Secondly, that was not what her lawyer told the Magistrate on her behalf during the sentence hearing on 24 November 2020. Thirdly, in a letter tendered that date to the Magistrate, she apologised to the elderly complainant and made no reference to having no memory of taking the card. Finally, there is no evidence of any mental health or other issue that might account for her alleged loss of memory.
21. [21]
    I agree with the applicant, by reference to what I said in Health Ombudsman v Fletcher [2020] QCAT 478, at [22], that this Tribunal should approach characterisation of proved criminal misconduct in a consistent way. I am satisfied here that the admitted conduct falls within the definition in subsection (a) of section 5 of the National Law and constitutes professional misconduct.

Sanction

22. [22]
    The purpose of these proceedings is protective and not punitive. The principle that the health and safety of the public is paramount informs the jurisdiction of this Tribunal to sanction healthcare providers who have engaged in professional misconduct.
23. [23]
    Relevant to the issue of sanction are considerations of personal and general deterrence, whether the respondent presents an ongoing risk to the public which, in turn, involves assessment of insight, and what steps she has taken to ensure that her misconduct does not reoccur. There is also a need to impose sanctions that are intended to maintain proper ethical and professional standards for the profession, and to maintain public confidence in the nursing profession, which rests at the heart of our community’s healthcare system.
24. [24]
    The applicant has referred to a number of relevant authorities in relation to the submission made that, as well as reprimand, a short period of suspension is called for in this case, particularly in regard to the need to maintain public confidence in the nursing profession, and to maintain proper ethical and professional standards.
25. [25]
    In Health Ombudsman v Fletcher, the practitioner, an enrolled nurse, stole bankcards from the wallet of a complainant in the geriatric and rehabilitation ward of the Rockhampton Base hospital. The wallet was kept in a locked drawer in a table beside the patient’s bed. The patient’s daughter noticed unusual transactions on her mother’s bank cards, and the police became involved. The practitioner used the stolen cards to purchase goods and services on a number of occasions, with a total value of $227.47. She was fined $1,250 for seven offences of dishonesty, and compensation orders were made. She was also fined $100 for contravening a police direction, and no convictions were recorded.
26. [26]
    The disciplinary referral to the Tribunal related to her convictions for the eight criminal offences, a failure to comply with section 130 (1) of the National Law, and for making a false declaration to the Australian Health Practitioner Regulation Agency (Ahpra).
27. [27]
    The Tribunal decided that the practitioner’s conduct, in respect of the stealing of the cards, constituted professional misconduct aggravated by the conduct proved in relation to allegations 2 and 3. The practitioner was reprimanded, suspended for three months and immediate registration action was set aside.
28. [28]
    The Tribunal made the following relevant comments:

[23]  …(the) conduct occurred in the direct course of her employment as an enrolled nurse and it involved calculated acts of dishonesty. It was not an isolated incident, multiple purchases were made over a number of days. The patient was elderly and in the care of the geriatric and rehabilitation unit. She was vulnerable. She was not able to detect the theft, which was identified by her daughter. In acting as she did, and which she now accepts, the respondent breached both the trust that was expected of her from her vulnerable patient and the trust of her employer … the respondent, at times, showed some lack of insight by attempting to explain her conduct on a number of different occasions in a different way. In my view, however, ultimately with the filing of the joint submissions today, it can be accepted that she has appropriate insight into the nature of her misconduct and is appropriately remorseful……….

[32]  The authorities relied upon on by the parties lead me to conclude that, in addition to a reprimand, a short period of suspension, as agreed by the parties, of three months is called for.

29. [29]
    The applicant also refers to Health Ombudsman v Cash [2020] QCAT 49. In that case, the practitioner stole a credit card of a resident of an aged care facility, where she was working on a casual basis as an enrolled nurse. She used the credit card to make three transactions, totalling $88.18, as well as booking a cruise holiday valued at $2,394, which was cancelled soon after and a full refund was credited to the card.
30. [30]
    The practitioner was convicted of one offence of stealing and four offences of fraud. A conviction was not recorded, and the practitioner was ordered to complete 40 hours of unpaid community service and pay compensation in the amount of $88.18. She also contravened section 130 (1) of the National Law, for failing to notify the Board of a relevant event as required. The Tribunal commented (at [14]):

The practitioner’s misconduct was a serious breach of her duty towards a vulnerable resident of the aged care facility. It was a gross breach of trust of her employer and that resident.

31. [31]
    The Tribunal acknowledged that, at the time of the hearing, the practitioner had not worked as a nurse for a period of about three years, of which about 20 months she was subject to the interim prohibition order, which was a very relevant consideration as to an appropriate sanction for the practitioner’s conduct.
32. [32]
    The Tribunal took into account mitigating factors, including the practitioner’s early pleas of guilty in respect of the criminal charges, her admission that her conduct amounts to professional misconduct and her cooperation in expediting the proceedings before the Tribunal. The Tribunal decided that the practitioner’s conduct constituted professional misconduct. The practitioner was reprimanded.
33. [33]
    Finally, the applicant refers to a Victorian case of Nursing and Midwifery Board of Australia v Sotingco (Review and Regulation) [2018] VCAT 1615. In that case, the registrant was a registered nurse working in a nursing home when she stole an elderly patient’s credit card and used it to buy online products to the value of $443. She also unsuccessfully attempted to buy online clothing to the value of $1,521.
34. [34]
    On 18 February 2017, she was charged with obtaining property by deception and attempting to commit an indictable offence. On 30 March 2017, the Board took immediate action and suspended her registration. On 15 June 2017, she pleaded guilty and was ordered to pay compensation and released subject to an undertaking to be of good behaviour for a period of 12 months.
35. [35]
    In sentencing, the magistrate said in part:

[18]  … nurses are in an inherent position of trust and power in comparison to the people that they care for and have an obligation to protect this position of trust. The practitioner has demonstrated a preparedness to engage in dishonest conduct and exploit the position of trust and responsibility for her own gain. The conduct occurred in a facility providing care to particularly vulnerable members of the community, especially elderly residents and patients. The particular conduct alleged amounts to serious criminal offences carrying a maximum length of imprisonment of 10 years … I think that it’s important to mark the fairly, almost sacred trust that people put in nurses in facilities like this …

36. [36]
    That respondent had taken proactive steps to advance her rehabilitation, including seeing a psychologist and completing an elder abuse prevention course.
37. [37]
    The Tribunal found that the practitioner engaged in professional misconduct. She was reprimanded, conditions were imposed on her registration and she was suspended for a further period of two months. On that occasion, the parties had agreed that because she had been out of practice for 18 and a half months, a further six months was appropriate.
38. [38]
    In arguing for a suspension, the applicant refers to features in all of those cases that are present here. That is, the exploitation of a frail, aged and vulnerable patient is conduct which strikes at the heart of public confidence in the profession. The submission is that a period of suspension is necessary to act as a strong general deterrent and uphold the reputation and standards of the nursing profession.
39. [39]
    Here, this respondent, on the evidence, did not work as a nurse after she lost her employment soon after 26 2020, but as from 23 September 2020 until 5 February 2021, she was subject to immediate registration action imposed by the Health Ombudsman. Since that date, she has been able to practice without restriction. As noted earlier, she has not returned to practice as a registered nurse, although she has worked at a university in a casual basis in relation to assisting students, but is no longer employed.
40. [40]
    Each case has to depend on its own facts. This respondent has expressed appropriate levels of remorse, and although she still obviously has trouble in accepting that she behaved in such a reprehensible way, in my view, she has, by her conduct both in relation to the criminal proceedings and in relation to the disciplinary proceedings, indicated that she has appropriate insight into her misconduct. In my view, a short period of suspension, in all the circumstances, is not appropriate and, in my view, is not inconsistent with the authorities to which I have referred.
41. [41]
    As can be seen by the material, in deciding to lift the conditions on her registration on 9 February 2021, the Health Ombudsman observed in relation to his reasons for decision that she had cooperated and demonstrated a level of remorse and contrition; she had been sentenced in relation to the charges and the subject criminal sanction, and there is evidence that the magistrate expressed a view that she was a low risk of reoffending. I adopt those remarks and agree with them. The Health Ombudsman considered that as at that date, she did not pose a serious risk, and for that reason he revoked the immediate registration action.
42. [42]
    It is also relevant the respondent has no previous or post disciplinary or criminal matters in her history. Although the magistrate’s comment that the offending involved some sort of “brain explosion”, maybe a rhetorical way of saying it was out of character, which it was, as I have noted earlier, there is no evidence to support any suggestion that she did not know what she was doing.
43. [43]
    In my view, the education conditions agreed between the parties as amended in Ms Robb’s final submission to reflect the fact that her client is not presently working as a nurse and does not intend, in the near future, to return to the profession, are appropriate along with a reprimand to reflect the principles relied upon by the applicant in contending for a short period of suspension. It has often been said in this Tribunal and Tribunals interstate that a reprimand is not a trivial penalty. It is a form of public denouncement of the practitioner’s misconduct. It serves as a public record which is apt to deter other healthcare practitioners who are of a like mind, and in my view, it has the effect in the circumstances of this case, along with the imposition of the conditions, in upholding the reputation of the profession in the eyes of the public. In my view, a suspension, in the circumstances of this case, would not contribute at all to protecting the health and safety of the public, and would be punitive.

Orders

44. [44]
    In those circumstances, the orders that the Tribunal makes are as follows:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the conditions in the attached schedule of conditions be imposed on the respondent’s registration.
4. Each party must bear their own costs of the proceedings.

45. [45]
    The schedule of conditions should be the schedule of conditions as set out at page 6 of the submission of Ms Robb dated 29 November 2021 as appears in the hearing brief.