Nursing and Midwifery Board of Australia v Burt
[2023] QCAT 396
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- Nursing and Midwifery Board of Australia v Burt[2023] QCAT 396
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Nursing and Midwifery Board of Australia v Burt[2023] QCAT 396
Nursing and Midwifery Board of Australia v Burt[2023] QCAT 396
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing and Midwifery Board of Australia v Burt [2023] QCAT 396 |
PARTIES: | NURSING AND MIDWIFERY BOARD OF AUSTRALIA (applicant) v KATHLEEN BURT (respondent) |
APPLICATION NO/S: | OCR042-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 4 October 2023 (orders) 16 October 2023 (reasons) |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member J Robertson Assisted by: Ms Fiona Banwell Ms Laura Dyer Mr Peter Davies |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was convicted of forgery and uttering pertaining to a passport application for her child – where the offences were isolated and occurred in the context of an acrimonious relationship breakdown with her husband – where the respondent misled the Board as to the extent of the forgery – whether the admitted conduct constituted professional misconduct – whether conditions on the respondent’s registration should be imposed with respect to her insight and remorse as well as general deterrence Health Practitioner Regulation National Law (Queensland), s 5 Health Ombudsman Act 2013 (Qld), s 196 Health Ombudsman v Lemon [2020] QCAT 266 Medical Board of Australia v Martin [2013] QCAT 376 Medical Board of Australia v Waldron [2017] QCAT 443 Nursing Midwifery Board of Australia v Hawthorne [2018] VCAT 890 Nursing Midwifery Board of Australia v Williams [2021] QCAT 307 |
APPEARANCES & REPRESENTION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On 21 August 2020, the respondent, a registered nurse, notified the Australian Health Practitioner Regulation Agency (Ahpra) that on 15 August 2020, she had been charged with criminal offences of forgery, uttering and producing false and misleading information on a passport application. On 15 February 2021, in the Magistrates Court at Chinchilla, the respondent was convicted on her own plea of guilty of one count of forgery and uttering and the other two charges then, before the Court, were dismissed.
- [2]She was placed on a three-year probation order with standard conditions and a special condition that she submit to medical psychiatric and/or psychological assessment and treatment as directed by an authorised corrective services officer. No conviction was recorded.
- [3]Ultimately, the Board referred disciplinary proceedings to the Tribunal. The matter proceeds on the basis of the amended referral filed by the Board on 2 December 2022, to which the respondent responded on 15 December 2022, in which she admitted (inter alia) that she had:
- forged the signature of her estranged husband on an Australian Child Passport application;
- knowingly submitted the fraudulent Australian Child Passport application at the Chinchilla Post Office, intending thereby to have issued to her child, PB, an Australian passport based upon the said fraudulent application; and
- provided a misleading statement to the Board in the submission via her legal representatives dated 8 March 2021, in that the submission suggested that the act of forgery committed by the respondent with respect to the Australian Child Passport application for PB, was limited to inadvertently inserting the wrong date on the application when in fact she had forged the signature of [her estranged partner] on the application.
- [4]The matter came on for hearing on 14 June 2023. At that stage, the parties had resolved their factual disputes and agreed that the respondent’s conduct was professional misconduct as defined by section 5 of the National Law.[1]
- [5]The parties also had agreed that a reprimand was appropriate by way of sanction, but they had different submissions about the need for a short period of suspension. A legal issue which concerned the status of allegation 2 in the amended referral, which had been raised in Ms Robb’s submission on behalf of the respondent, was no longer pressed.
- [6]As a result of an administrative error concerning the constitution of the Tribunal on that day, the matter could not proceed and ultimately was set for a hearing on 4 October 2023.
- [7]The parties have now fully resolved all their differences and are agreed as to sanction to include a reprimand and conditions to be placed on the respondent’s registration. As a consequence the Tribunal agreed to determine the matter on the papers with the benefit of a joint submission from the parties.
Background
- [8]The respondent is a registered nurse. She has worked in remote and regional health care for her entire career. She presently works as a nurse in a remote area of Western Queensland. At the relevant time she was employed as a registered nurse at Blackwater and Emerald Hospital.
- [9]Since the notification on 21 August 2020, she has continued to work as a nurse in Western Queensland.
Relevant Facts
- [10]The relevant conduct is set out in the agreed statement filed by the parties. However, in summary, with respect to allegation 1, the respondent has a child with her now estranged husband, and with whom at the relevant time she shared parenting responsibilities.
- [11]On a date between 1 January 2020 and 18 March 2020, the respondent forged her estranged husband’s signature on a passport application for the child. On 18 March 2020, the respondent submitted the passport application containing the forged signature at the Chinchilla Post office with the intention of having a passport issued for her child. The forgery was detected on 15 August 2020, and the respondent was charged with various offences including forgery and uttering.
- [12]On 15 February 2021, she was convicted on her own plea of guilty and the sentence set out above was imposed.
- [13]With respect to allegation 2, on 8 March 2021, the respondent caused her lawyers to provide a written submission to Ahpra which relevantly stated with respect to the child passport application:
Ms Burt instructs that she noticed the date was not inserted on (PB’s) passport form and … she inadvertently inserted the same date on both (PB’s) and (redacted) passport applications. However, vehemently denies that she forged his signature (on) the form.
Characterisation of Conduct
- [14]The parties agree that the admitted conduct in allegations 1 and 2 constitutes professional misconduct.
- [15]In respect of the conduct giving rise to allegation 1, the conduct was serious and carried with it a maximum sentence of three years imprisonment. The conduct was directly contrary to a number of provisions of the Code of Conduct for Nurses to which the respondent was bound, and in particular 1.2.c:
Nurses must not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct, and have implications for their registration
- [16]There is a long line of jurisprudence in this Tribunal which supports the joint submission of the parties, that the criminal conduct amounts to professional misconduct.
- [17]In Health Ombudsman v Lemon [2020] QCAT 266 at [8], Judicial Member McGill SC noted:
Although the conduct and the offending did not involve the respondent’s acting as a nurse, and was not connected with the practice of the profession, the element of dishonesty justifies the characterisation agreed by the parties. As pointed out in the submissions, this behaviour was inconsistent with provisions in the Code of Conduct developed by the Nursing and Midwifery Board of Australia.
- [18]The parties also agree that the admitted conduct in allegation 2 constitutes professional misconduct. Such conduct, designed to mislead a regulator, offends fundamental provisions in the Code of Conduct that state that honesty and integrity are core values for the profession.
- [19]There is a long line of jurisprudence that confirms the correctness of the parties’ joint submission in relation to allegation 2.
- [20]In Medical Board of Australia v Waldron [2017] QCAT 443, the Tribunal remarked at [39]:
There is no doubt, however, that dishonesty by practitioners in their dealings with registration boards is treated by the Tribunal as very serious behaviour. The conduct of Dr Waldron in falsifying records and giving false and misleading information to the investigators is in some respects an even more serious reflection on her character than her drug dependency.
- [21]The Tribunal is satisfied that the conduct set out at allegations 1 and 2 as admitted by the respondent constitutes professional misconduct as defined in section 5 of the definition of that concept in the National Law.
Sanction
- [22]The paramount guiding principle is that the health and safety of the public are paramount. The purpose of disciplinary proceedings is to protect not to punish.
- [23]Sanction in disciplinary proceedings is designed not only as a specific deterrent to the relevant practitioner, but also as a general deterrent to other practitioners, protecting the public from those who may consider behaving in a similar way. It is also designed to maintain public confidence in the nursing profession by promoting proper ethical and professional standards.
- [24]When determining sanction, the Tribunal will take into account the facts of each case. It may consider such factors as the nature and seriousness of the practitioner’s conduct, insight and remorse shown by the practitioner, the need for specific or general deterrence, any evidence of steps taken by the practitioner to mitigate the risk of reoccurrence of the conduct which is relevant to both insight and the Tribunal’s assessment of risk, mitigating factors such as evidence of matters that may give context to the conduct, and other matters including past disciplinary history, police history, character evidence, periods of preclusion and non-practise, and co-operation during disciplinary proceedings.
- [25]Clearly the respondent’s conduct in relation to allegation 1 was serious because it involved dishonesty. The Board accepts that the conduct occurred in the context of an acrimonious relationship with her estranged husband, but correctly notes the potential consequences of her actions were significant because it created a possibility of the respondent taking the child overseas without her estranged husband’s knowledge or consent. This was probably highly unlikely given that, soon after the actions of the respondent came to light, the estranged husband willingly signed his consent to the application for a passport for the child.
- [26]Clearly, as noted above in the quote from Waldron, any deliberate misleading of a regulator is serious conduct, and the Board in its submission notes that over a period of time the respondent sought to minimise her conduct and suggest it was a mistake rather than dishonesty.
- [27]Clearly her insight and remorse are relevant considerations for the Tribunal when it is considering appropriate orders.
- [28]The respondent has demonstrated insight and remorse in her approach to the criminal proceedings and to these disciplinary proceedings. The Board rightly points out her reluctance to accept that the act of forgery involved forging her former partner’s signature on the passport application, however, she finally resiled from that position in her amended response.
- [29]As against that, and as submitted by Ms Rob, the context is relevant to her apparent reluctance to admit what was an obvious fact, that is, the criminal conduct was entirely isolated; this highly capable and decent nurse has no prior criminal or disciplinary history; it was committed in the context of an acrimonious relationship breakdown and was conduct which would inevitably be discovered.
- [30]She now has full custody of her child and she appears to have a cordial relationship with her former partner.
- [31]As she states in her affidavit, the proceedings have had a profound salutary effect on her. She has fully complied with the conditions of the probation order.
- [32]I agree that the very unusual and specifically personal circumstances in which the offence was committed means that the relevance of general deterrence in this particular case is diminished.
- [33]I also agree with Ms Rob that a three-year probation order – the maximum that could be imposed by law – is aptly described as condign punishment, and that the experience of the respondent in these proceedings where, in her mind, her nursing credentials were under threat, mean that the extent it is necessary to deter other nurses who may be tempted to act in a similar way, general deterrence has been achieved.
- [34]In my view, this position does not detract from well-established principles set out in cases such as Nursing and Midwifery Board of Australia v Faulkner [2018] QCAT 97.
- [35]The condition to be imposed on her registration will also act as a deterrent to others; as will the reprimand, particularly given that the conditions and the reprimand will be registered on the public register.
- [36]I agree that the cases referred to by the parties in their submissions, such as a Lemon, Nursing Midwifery Board of Australia v Hawthorne [2018] VCAT 890, and in particular Nursing Midwifery Board of Australia v Williams [2021] QCAT 307, indicate that the agreed sanction proposed by the parties falls within the permissible range of sanction for the conduct. For that reason the Tribunal would not depart from the agreement: Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93].
Orders
- [37]The orders and findings of the Tribunal are as follows:
- pursuant to section 196(1)(b)(iii) of the National Law, the Tribunal decides that the respondent has engaged in professional misconduct within the meaning of section 5 of the National Law;
- pursuant to section 196(2)(a) of the National Law the respondent is reprimanded;
- pursuant to section 196(2)(b) of the National Law the conditions set out in Annexure A to the order are to be imposed on the respondent’s registration;
- pursuant to section 196(3) of the National Law the review period of 6 months will apply to the conditions;
- Part 7, Division 11, Subdivision 2 of the National Law applies to those conditions; and
- no order as to costs.
Footnotes
[1] Health Practitioner Regulation National Law (Queensland) (‘National Law’).