Nursing and Midwifery Board of Australia v Hutchinson
[2023] QCAT 165
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- Nursing and Midwifery Board of Australia v Hutchinson[2023] QCAT 165
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Nursing and Midwifery Board of Australia v Hutchinson[2023] QCAT 165
Nursing and Midwifery Board of Australia v Hutchinson[2023] QCAT 165
[2023] QCAT 165
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
REID, Judicial Member
Assisted by:
MS ASHCROFT
MS BANWELL
MR LEWIS
No OCR 035 of 2022
NURSING AND MIDWIFERY BOARD OF AUSTRALIA Applicant
v
HUTCHINSON, Alison Jane Respondent
BRISBANE
THURSDAY, 23 MARCH 2023
JUDGMENT
- [1]JUDICIAL MEMBER: The Nursing and Midwifery Board seeks orders against the respondent, who is a well-qualified and experienced nurse, arising from her defrauding her car insurer. The matter is a little unusual in that there is no suggestion that the standards of her clinical practice were not appropriate.
- [2]The respondent, who is 39 years of age has been registered as a nurse since January 2009. She was, at the time of her misconduct the subject of these proceedings, a clinical nurse in the intensive care unit of the Cairns Base Hospital. Since completing her graduate degree, the respondent has completed post-graduate studies in emergency nursing, and intensive care unit nursing. She was, until very recently, employed in the ICU liaison role at the Royal Darwin Hospital. She told me during the course of the hearing that she had resigned from that position because if a suspension order were made, as the Board was here seeking, it would be a requirement of the public service in the Northern Territory that she be dismissed, and that might make her re-employment more difficult.
- [3]Consequently, she does not have a job, though it seems to me, reading between the lines, that she certainly has capacity to now go back and re-apply for her job at the Darwin Hospital. Whether that occurs is a matter for her and it does not seem, from what she said, that she has yet made up her mind about those matters.
- [4]In 2018, the respondent’s vehicle seems to have been damaged. She devised a plan to have it driven from Cairns to New South Wales, where it was secreted at a friend’s house. She then returned to Cairns, and some months later reported it stolen to police. This occurred on the 26th of February 2019. It was also, at that stage, reported as stolen to her insurer and she made a claim. Subsequently, her insurer paid a total of $19,945.76. They have since recovered the vehicle and sold it, recovering $10,421.76 and the balance has been repaid in full by the respondent.
- [5]As a result of a tip-off from police, they were able to ascertain the respondent’s dishonesty, and after initially denying her criminality, she was charged. She then quickly pleaded guilty and was sentenced on the 11th of December 2020 to a head sentence of 18 months’ imprisonment, suspended after three months with an operational period of three years. The circumstances of her offending are set out in the sentencing remarks of Magistrate Pinder.
- [6]After being advised of the matter by police, the Office of the Health Ombudsman advised AHPRA of that fact. Two days later, the respondent herself reported the matter to AHPRA as she had been advised to do by the hospital where she worked. The respondent was stood down without pay for three months during her incarceration, and after her release was - at least to me - somewhat unfathomably stood down on full pay from the 12th of March to the 22nd of October 2021. She then resigned.
- [7]It is of course important that those who are members of a profession behave in a way that does not bring discredit on their profession. This is important for confidence in the professional integrity of the profession, and its members. Only if - in this case - nurses act honestly that the health and safety of the public can be ensured. Dishonesty of nurses could have disastrous clinical effects. In this case, there is no suggestion that the respondent’s professional practice has been anything but competent. Indeed, her record of employment and promotions within that employment suggest otherwise.
- [8]Nevertheless, to behave as the respondent did was clearly professional misconduct pursuant to section 196(1)(b)(iii) and also section 5 of the National Law, as it was conduct that fell substantially below the standard reasonably expected of a registered nurse.
- [9]The respondent does not dispute that finding, nor does she oppose the imposition of a reprimand. What is in issue before me is whether the respondent should be suspended from practice for three months as the Board submits, and also the content of a program of education that she should undertake to ensure, so far as possible, her proper rehabilitation, and so to ensure the safety of members of the public.
- [10]The Board, in support of its submission for three months’ suspension, notes the proceedings are protective, not punitive. It notes the importance of both regulating the professional performance of the respondent herself, but also the protection of the public by way of deterrence to the profession as a whole. However, in none of the cases referred to in the applicant’s counsel’s submissions (see paragraph 35 thereof) was there any actual jail term imposed. In my view, a period of actual imprisonment will be a very powerful disincentive for her. So too will it have a significant general deterrent effect upon any who are aware of this decision.
- [11]So too, she ultimately lost her employment at the Cairns Base Hospital. She will have suffered, in my view, significant shame. She has, to her credit, returned to very meaningful employment, but in a different city. In my view, little utility would be achieved by suspending her further. She should continue with the important work she’s been doing in Darwin or elsewhere if that is where she chooses to work. This is especially so as she has no other criminal and no disciplinary or regulatory history. I do think a program of education is highly desirable.
- [12]The respondent submits to me that the offending occurred during a period of domestic abuse by her partner, making her engage in desperate misconduct. I am not provided with any evidence about that issue, and do not reply upon it. That is not to say either that I doubt its occurrence. I simply do not think I need make any determination about that in the absence of appropriate sworn evidence.
- [13]In the circumstances, the orders of the Court are:
- 1.The Tribunal finds that the respondent engaged in professional misconduct pursuant to section 5(a) and/or (c) of the National Law.
- 2.The Respondent is reprimanded.
- 3.The Respondent be subject to the following conditions:
- a.The Practitioner must undertake and successfully complete a program of education, approved by the Nursing and Midwifery Board of Australia and including a reflective practice report, in relation to her legal and ethical obligations and the consequences of breaching these.
- b.Within 28 days of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN24), nominate for approval by the Board an education course or program (the education) addressing the topics required. The Practitioner must ensure:
- i.the nomination includes a copy of the curriculum of the education; and
- ii.the education consists of a minimum of four hours and addresses the topics of legal and ethical obligations and the consequences of breaching these.
- c.The Practitioner must complete the education within six months of the notice of the Board’s approval of the education.
- d.Within 28 days of the completion of the education, the Practitioner must provide to Ahpra:
- i.evidence of successful completion of the education; and
- ii.a reflective practice report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner’s practice.
- e.Within 21 days’ notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each a current place of practice. In providing this form, the Practitioner acknowledges that:
- i.Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioners registration or confirm that the senior person has received a copy of the conditions from the Practitioner; and
- ii.The Practitioner will be required to provide the same form:
- 1.within seven days of the commencement of practice at each and every subsequent place of practice; and
- 2.within seven days of each and every notice of any subsequent alteration of these conditions.
- f.Pursuant to s 196(3) of the National Law, the review period for the conditions is 6 months from the date hereof.
- g.Part 7, Division 11, subdivision 2 of the National Law applies to these conditions.