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Nursing and Midwifery Board of Australia v YGB[2023] QCAT 477

Nursing and Midwifery Board of Australia v YGB[2023] QCAT 477

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Nursing and Midwifery Board of Australia v YGB [2023] QCAT 477

PARTIES:

nursing and midwifery board of australia

(applicant)

v

YGB

(respondent)

APPLICATION NO/S:

OCR236-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 December 2023

Amended on 6 June 2025

HEARING DATE:

On-Papers Hearing

HEARD AT:

Brisbane

DECISION OF:

The Hon P J Murphy SC, Judicial Member

Assisted by:

Ms F Banwell, Nurse Panel Member

Ms H Barker, Nurse Panel Member

Mr J Walsh, Public Panel Member

ORDERS:

The Tribunal Finds:

  1. Pursuant to section 196(1)(b)(iii) of the National Law, YGB has engaged in professional misconduct within the meaning of section 5 of the National Law; and
  2. Pursuant to section 196(1)(b)(iv) of the National Law YGB has an impairment within the meaning of section 5 of the National Law.

The Tribunal Orders that:

  1. YGB be reprimanded under section 196(2)(a) of the National Law;
  2. The conditions set forth in Annexure A to these orders be imposed upon the registration of YGB pursuant to section 196(2)(b) of the National Law;
  3. The said conditions be subject to a review period of 12 months; and
  4. Part 7, Division 11, Subdivision 2 of the National Law applies to the conditions.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPINARY PROCEEDINGS – where the respondent is a registered nurse – where the respondent worked at a large Brisbane hospital – where the respondent removed schedule 8 drugs from the drug safe without authority or authorisation – where the respondent was caught on CCTV – where the respondent has not been charged with any offence – where the respondent gave an undertaking to the Board not to practice in lieu of suspension from practice – where the Board accepted the undertaking – where the parties agree the conduct is “professional misconduct” – where the parties agree the respondent suffers an “impairment” – where the parties agree on sanctions – where the Tribunal is required to decide for itself on the conduct and appropriate sanctions

Health Drugs and Poisons Regulation 1996 (Qld) s 67, 94, 175

Health Ombudsman Act 2013 (Qld) s 4

Health Practitioner Regulation National Law (Qld) ss 3, 3A, 4, 5, 125, 126, 127, 127A, 130, 196

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 62

Craig v Medical Practitioners Board [2001] SASC 169

Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASFC 167

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Ombudsman v Barber [2017] QCAT 431

Health Ombudsman v CSM [2020] QCAT 55

Health Ombudsman v DKM [2021] QCAT 50

Health Ombudsman v Ferguson [2020] QCAT 464

Health Ombudsman v Jamieson [2017] QCAT 172

Health Ombudsman V MacDonald [2016] QCAT 473

Health Ombudsman v Martin [2020] QCAT 350

Health Ombudsman v Pidgeon [2022] QCAT 111

Legal Services Commissioner v Madden (No 2) [2008] QCA 301

Medical Board of Australia v Dolar [2012] QCAT 271

Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822

APPEARANCES & REPRESENTATION:

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. [1]
    While working as a registered nurse at a large Brisbane hospital on 14 December 2020, YGB removed from the ward drug safe, and retained, a box of 16 Palexia 50mg IR tablets. She was neither authorised nor given permission to do so. Palexia IR is an opioid analgesic. It is a schedule 8 controlled drug. YGB’s actions were detected on CCTV.
  2. [2]
    On 31 December 2020, YGB was stood down from the hospital on full pay. On 18 March 2021 she gave an undertaking not to practise in lieu of a suspension from practice. That undertaking was accepted by the Board. She has not practised as a nurse since.
  3. [3]
    The applicant Board and YGB are agreed that her conduct, which has been the subject of an investigation and subsequent referral to this Tribunal, is “professional misconduct”. Additionally, it is agreed that YGB suffers an “impairment”.[1] The parties are also agreed on the sanctions which are said should flow from those findings.
  4. [4]
    Despite the parties’ agreement, the referral brings with it a requirement for the Tribunal to decide for itself how YGB’s conduct should be classified and, consequent upon that, what sanctions, if any, should be imposed. That inquiry was conducted “on the papers”.

What issues are controversial?

  1. [5]
    The facts underpinning the parties’ agreed position that YGB’s conduct amounts to professional misconduct are, with two exceptions, uncontroversial.

No offence is admitted

  1. [6]
    The parties’ joint submissions record the Board’s specific allegations that YGB “…misappropriated [schedule] 8 controlled drugs during the course of her employment…”[2] and “…unlawfully possessed a [schedule] 8 controlled drug contrary to section 94 of the Health Drugs and Poisons Regulation 1996 (Qld)” (in these reasons, “the Drugs Regulation”)[3]. Each is enumerated, in those terms, as a particular of professional misconduct.
  2. [7]
    YGB admits her conduct amounts to removing and retaining the relevant drugs. She does not suggest she had permission to remove and/or retain the drugs or that she was authorised to do so. However, she does not admit that an offence against the Drugs Regulation is occasioned thereby. She admits the conduct constitutes breaches of the Code of Conduct for nurses. 
  3. [8]
    There is no material before the Tribunal which suggests YGB has been charged with any offence against the Drugs Regulation. Section 94 creates an offence by reference to elements which include “possess” – a term with particular meaning in the context of criminal and other offences. In the absence of submissions directed to the meaning and interpretation of section 94, the evidence relied upon to sustain any such charge, and how the onus of establishing all elements of that offence to the requisite standard is discharged, I am not prepared to make any such finding. Allegation 3, as particularised, is not made out.
  4. [9]
    YGB does admit the particulars of Allegation 1 which is framed as her “misappropriating” the schedule 8 drug. The word “misappropriation” may also have broader connotations, including criminal offences that have the word or concept at their core. There is no evidence before the Tribunal that YGB has been charged with any criminal offence. The adoption by YGB of the expression “misappropriation” should not be taken in these proceedings as an admission of any possible criminal offences potentially emanating therefrom.
  5. [10]
    Establishing an offence is not central to establishing professional misconduct (although convictions for relevant offences can meet the definition of “unprofessional conduct”).[4] Absent reference to an offence or any connotations of the same, the conduct here is the taking and retention of a schedule 8 drug without permission or authorisation – facts which are admitted and, in any event, immediately apparent on the evidence.

Failure to notify the board is not admitted

  1. [11]
    The second controversial issue relates to the Board’s contention that YGB failed to notify the Board of a “relevant event” contrary to the obligation imposed by section 130 of the National Law.
  2. [12]
    The Board asserts that the failure by YGB to personally notify the Board that her endorsement to possess/handle/administer schedule 8 drugs had been removed is a breach of the obligation cast by that section and is, in turn, “professional misconduct”.[5] The factual foundation for that conclusion, and the conclusion itself, are challenged by YGB.
  3. [13]
    That issue is addressed later in these reasons.

Is removing and retaining the drugs “professional misconduct”?

  1. [14]
    “Unprofessional conduct” is defined in section 5 of the National Law as “professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers”. A non-exhaustive list of circumstances that meet the definition are given.
  2. [15]
    The more serious “professional. misconduct” is defined in the same section. It is “unprofessional conduct”, but of a type or degree which is “substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience”.
  3. [16]
    “Substantial” departure requires a “large or considerable departure from the relevant standard”. A number of considerations are relevant and “the tribunal is required to make a judgement as to the decree of departure from the standard reasonably expected of the practitioner by the public of the practitioner’s peers”.[6]
  4. [17]
    A number of tribunal decisions are cited by the parties in their joint submissions in support of the (perhaps trite) proposition that the unauthorised removal and retention of drugs from a ward drug safe during the course of employment constitutes unprofessional conduct that is a very considerable departure from the expected standard.[7]
  5. [18]
    I have taken account of the following matters:
    1. the drugs are Schedule 8 drugs;
    2. the conduct should be seen as serious and reprehensible by a nurse;
    3. the conduct constitutes a serious breach of the trust reposed in the nursing profession to handle drugs, particularly dangerous drugs, safely and for legitimate medicinal purposes;
    4. the conduct is a clear breach of the Code of Conduct for nurses; and
    5. the conduct strikes at the heart of the trust and confidence reposed in the nursing profession by the public.
  6. [19]
    Taken together, those circumstances reveal a very significant departure from the professional standards expected of nurses of YGB’s training and experience – a conclusion supported by comparable Tribunal decisions to which this Tribunal has been referred.
  7. [20]
    Those same circumstances indicate conduct that is equally inconsistent with YGB being a fit and proper person to hold registration as a nurse.[8]
  8. [21]
    There will be a finding that the conduct earlier described constitutes “professional misconduct” within the meaning of the National Law.

Does YGB have an “impairment”?

  1. [22]
    Section 5 of the National Law defines “impairment”, relevantly, as a person who:

… has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect:

for a registered health practitioner or an applicant for registration in a health profession the persons capacity to practise the profession …

  1. [23]
    A consultant psychiatrist, Dr Nigel Prior, has prepared two health assessment reports, one on 22 June 2021, the other on 2 March 2023.
  2. [24]
    Each concludes that YGB has a Major Depressive Disorder, a Substance Abuse Disorder (alcohol, opiates, benzodiazepines), and Personality Disorder (mixed type, anxious, borderline traits). In his second report, Dr Prior opines that YGB’s major depressive disorder is in “remission on treatment”, as is her substance abuse disorder.
  3. [25]
    In that same report Dr Prior concludes specifically that YGB has conditions “which detrimentally affect, or are likely to detrimentally affect, her capacity to practise as a registered nurse”. He concludes that she “requires conditions on her registration in order to safely return to practise the profession”. Specific conditions are recommended and form the foundation of those adopted by the parties in their joint submissions as to sanction.
  4. [26]
    No evidence before the Tribunal questions Dr Prior’s assessment or opinions. I accept both; the matters referred to in the doctor’s reports appear to me to well justify the conclusions reached.
  5. [27]
    A finding will be made that YGB suffers from an “impairment” as defined.[9]

What sanctions are appropriate?

  1. [28]
    The parties contend jointly that appropriate sanctions are embraced by orders which can be summarised briefly as:
    1. A reprimand;
    2. The imposition of a number of conditions on YGB’s registration;
    3. A review of the conditions after 12 months; and
    4. An order that Part 7, Division 11, Subdivision 2 applies to the conditions[10].
  2. [29]
    The parties are agreed as to the conditions which should attach to YGB’s registration. As will be seen, the conditions are extensive and wide-reaching. In broad summary they require YGB:
    1. to give written notice of her intention to recommence practice;
    2. when practise recommences, to provide a copy of the conditions to a senior person under whom she works;
    3. to not access or deal with schedule 4 or schedule 8 medications unless directly supervised;
    4. to have her practice supervised by an appropriate health practitioner;
    5. to not work between 10:00pm and 7:00am;
    6. to undertake random urine and hair drug screening; and
    7. to attend a treating GP and authorise reports of that treatment to be provided.
  3. [30]
    I am cognisant that the purpose of sanctions is protective and not punitive. Punishment is not the aim of sanctions imposed by the Tribunal, although it may be an effect.[11] The health and safety of the public is the paramount consideration in imposing sanctions.[12]
  4. [31]
    Protecting the health and safety of the public includes preventing the same or similar conduct being perpetrated by the particular practitioner in the future.
  5. [32]
    A number of factors can be seen as relevant to that consideration. They include the past referral history and general character of the practitioner; whether there is genuine insight into the inappropriateness of the conduct and an appreciation of the importance of relevant ethical standards; whether there is genuine remorse (evidenced, for example, by acceptance of the conduct and co-operation with the inquiry); and personal circumstances including health or psychological issues.[13]
  6. [33]
    The health and safety of the public is also protected “… by making it clear that certain conduct is not acceptable”.[14]  The Act’s primary consideration also embraces “upholding public confidence in the standards of the profession …”. Denouncing misconduct “operates both as a deterrent to the individual concerned as well as the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice”.[15]
  7. [34]
    Within those broad principles, each case falls to be considered by reference to its own facts and circumstances.
  8. [35]
    Regard can and should be had to comparable cases with a view to ensuring that the sanction imposed on a particular individual is not out of step with protective sanctions imposed in similar circumstances, and as an attempt to maintain a measure of consistency in the role of sanctions in maintaining proper professional standards.
  9. [36]
    The Tribunal’s obligation to decide for itself what sanctions should be imposed should not be fettered, including by agreement reached between parties. However, an agreed position, particularly one reached between competent practitioners (as is the case here), should not readily be departed from “unless the sanction falls outside the appropriate range of disciplinary responses in the circumstances of the particular case.”[16] As will be seen, I consider the agreed range is appropriate.
  10. [37]
    I consider the following matters relevant to appropriate sanctions in this case:
    1. the matters enumerated earlier in these reasons, including the seriousness of the conduct, the breach of trust, and the need to uphold professional standards in the eyes of the public;
    2. YGB was suffering from a number of significant psychological conditions that impacted upon her judgment at the time the conduct took place;
    3. she continues to suffer from those conditions although treatment has resulted in remission of her Depressive Disorder and her Substance Abuse Disorder;
    4. no remorse has been expressed by YGB, but I consider that is likely to be related to her capacity for insight, which Dr Prior viewed as limited, but “improved”;
    5. YGB has not practised, pursuant to her own undertaking, for over 2.5 years (since March 2021);
    6. she has sought and received treatment for her psychological issues;
    7. she co-operated with the investigation; and
    8. she has no other disciplinary history.
  1. [38]
    I have also considered the earlier decisions of the Tribunal referred to in the parties’ joint submissions. The circumstances in both Ferguson and CSM[17] can be seen as more serious than the present case, both because of the nature and quantity of drugs involved and because of the significant attendant deception in each.[18]
  2. [39]
    In Pidgeon[19], a nurse stole Fentanyl on two occasions, forged the witness signature, and made false entries in the dangerous drugs register. His psychological issues are markedly less severe than the complex issues confronting YGB. General deterrence was stressed as an important factor in sanction. It is an important factor here. The nurse there had not worked for about 12 months prior to the Tribunal hearing; YGB has not worked for over 2.5 years. The nurse was reprimanded without further restriction.
  3. [40]
    The factors and evidence earlier outlined, and the comparable cases, suggest that the health and safety of the public is best predominated by reprimanding YGB and attaching stringent conditions to her registration.
  4. [41]
    The conditions suggested by the parties are extensive and wide-reaching. They seek to protect the public by providing a system of strict supervision and transparency, and restrictions on accessing and administering medication. The conditions also seek to encourage and support YGB’s continued treatment for the psychological conditions earlier referred to. I consider the conditions proposed by the parties to be entirely appropriate.

Is the failure to notify professional misconduct?

  1. [42]
    Section 130(1) of the National Law provides relevantly:

(1) A registered health practitioner … must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner …, give the National Board established for the practitioner’s health profession written notice of the event. 

  1. [43]
    “Relevant event” is defined in s 130(3) by reference to nine specified events. The relevant event particularised by the Board here is YGB’s failure notify the Board that her endorsement pursuant to section 67 and 175 of the Drugs Regulation had been cancelled.
  2. [44]
    Section 130(2) of the National Law provides relevantly:

A contravention of subsection (1) by a registered health practitioner … does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.

What are the circumstances of the failure to notify?

  1. [45]
    The removal and retention of the drugs occurred on 14 December 2020. However, it is not that event that is relied upon by the Board as the “relevant event” for the purpose of the s 130 notification. Rather, the Board relies upon the failure by YGB to notify of the cancellation of her endorsement by the Medicines Compliance and Human Tissue Unit (“MCHTU”)[20].
  2. [46]
    A mandatory notification to the Office of the Health Ombudsman (“OHO”) was made by the MCHTU. The notification indicated that, on 7 September 2022, YGB was issued with a notice cancelling her endorsements as a registered nurse.
  3. [47]
    It is an agreed[21] fact that YGB did not notify the Board personally. However, it is also an agreed fact that the MCHTU notified the OHO of the cancellation of the endorsement and that this occurred on 8 September 2021.[22] That notification occurred within the seven-day time limit contemplated by the section.

What are the parties’ assertions?

  1. [48]
    The parties have, with respect, commendably, attempted to reach agreement on all matters central to the Tribunal’s decision. That co-operation has resulted, again, commendably, in joint submissions. Equally, a hearing on the papers is designed to produce efficiency and expediency. A consequence though, is that assertions by each of the parties have not been tested or explored at a hearing.
  2. [49]
    The Board contends there is no evidence before the Tribunal that:

(a) [YGB] was unaware of her professional obligations under s 130;

(b) [YGB’s] lawyer provided her with advice presumably to the effect that she was not required to personally notify the [Board] of the cancellation of her endorsements and that the notification by the MCHTU was sufficient; and/or

(c) [YGB] relied on this advice.[23]

  1. [50]
    The Board’s contention at sub-paragraph (b) assumes – or, more accurately, presumes – something not founded on any asserted or agreed fact, namely the effect of advice that YGB may have been given by her lawyers. That is, the Board’s contention is that there is no evidence of a fact they have in any event presumed. The same is true of sub-paragraph (c).
  2. [51]
    The Board then goes on to assert, “… even if [YGB’s] assertions can be accepted, the obligation to notify the [Board] under section 130 of the National Law was one that could only be discharged by [YGB].”[24]
  3. [52]
    That proposition is said to be supported by the decision of the Tribunal in Health Ombudsman v DKM[25]. The Tribunal in that case concluded, “[t]he absence of advice from [the doctor’s] solicitor to do so in such circumstances does not excuse the [doctor] from his professional obligation [to comply with s 130].”[26] Yet , that ultimate finding does not appear to have been made in response to an assertion that the professional obligation can, as asserted by the Board here, “only be discharged” by the health practitioner.
  4. [53]
    The statement relied upon by the Board emerges in circumstances where contradictory sworn evidence was given by the doctor and where both of his claims were rejected by the Tribunal: “I regard the [doctor’s] false assertions to such effect as dishonest attempts to minimise his culpability for his own failure to comply with the statutory requirement”.[27]
  5. [54]
    If the Board’s assertion is taken at face value, it would appear to mean that a lawyer who was specifically instructed by a health practitioner to notify the Board in accordance with section 130, and who did so in writing and within time required, would nevertheless not discharge their client’s obligation to notify. I consider that a surprising conclusion and not one which immediately emerges as directed to the mischief to which the section is directed.
  6. [55]
    However, because the instant hearing was conducted on the papers and no further argument was advanced in respect of the relevant contentions, I prefer to express no concluded view as to whether a section 130 obligation can “only be discharged” by the health practitioner personally.
  7. [56]
    On 7 December 2021, some three months after the notification date required by section 130, YGB’s lawyers apologised on her behalf for her failure to notify. The Board says they “gave as a reason … that [YGB] was unaware of her obligations under section 130 …”.[28]
  8. [57]
    In the parties’ joint submissions (prepared on YGB’s behalf by her lawyers), YGB contends, “… she relied on the advice of her lawyer who’s [sic] failure to notify the Board on her behalf was an oversight in the circumstances as the MCHTU advised they would notify the Board, which they did on 8 September 2021.[29] That assertion is not contradicted by any evidence before the Tribunal.
  9. [58]
    In essence, YGB’s contention appears to be that, taken together, those circumstances should not amount to professional misconduct.

Is there professional misconduct?

  1. [59]
    “Unprofessional conduct” is defined in s 5 of the National Law as, relevantly:

"unprofessional conduct" of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes—

  1. a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and …
  1. [60]
    Even if it can be said that the failure to personally inform is a breach of the section 130 obligation, that fact alone does not amount to unprofessional conduct (and, axiomatically, cannot alone amount to professional misconduct).
  2. [61]
    Meeting the definition depends upon falling below the standard prescribed in the definition. Contravention of a provision of the National Law (such as section 130) can meet that definition, but it does not, by reason of that fact alone, necessarily do so. Meeting the definition is to be assessed by an assessment of the reasonable expectations of one (or both) of the groups identified within the section. The circumstances in which the conduct occurred including, if relevant, the circumstances in which a contravention occurred, are relevant to the inquiry and determination.
  3. [62]
    As has helpfully been pointed out by the nurse assessors assisting the Tribunal, at each annual application for registration, nurses are specifically directed to the requirement to notify relevant events. It may well be considered difficult for a registered nurse of YGB’s age and experience to avoid falling below the required reasonable expectations by reason of asserting merely that they unaware of their obligations.
  4. [63]
    In a similar vein, the nature of particular breaches of section 130 might see a practitioner struggle to avoid falling below the section 5 standard. The “dishonest attempts to minimise culpability” in DKM, above, might perhaps be an example as too might be attempts to obfuscate or avoid the obligation.[30]
  5. [64]
    Even if it can be said that YGB’s failure to personally notify was a contravention of section 130, the circumstances involved in that failure include judgment being exercised by a nurse with significantly compromised psychological functioning which impacted her actions (and inactions). The circumstances also include an apparently unchallenged assertion that the failure to notify was an oversight by her lawyers where “the MCHTU advised they would notify the Board”[31] and did so within 7 days of the relevant event.
  6. [65]
    It is not anywhere suggested that the failure to notify personally was actuated by any desire to obfuscate, avoid the statutory obligation, or impede the work of the Board. Consistent with the broad purposes of the National Law, of protecting the public and promoting and maintaining public confidence in the safety of services provided by, relevantly, nurses[32], notification was effected. In short, the underlying protective purpose to which section 130 is directed was met (albeit not personally by YGB).
  7. [66]
    An objective assessment of the reasonable expectations of a postulated group or groups is always open to debate. However, I am not persuaded that the groups contemplated by section 5 – the “public” and YGB’s “professional peers” – would, if fully appraised of the particular facts and circumstances, see the failure to notify personally as being of a lesser standard of behaviour than what might be reasonably expected.
  8. [67]
    Accordingly, I am not persuaded that unprofessional conduct is established by the failure to personally notify in this case. It follows that professional misconduct as particularised in Allegation 3 is not made out.
  9. [68]
    The following findings and orders should be made:

Orders

The Tribunal finds:

  1. Pursuant to section 196(1)(b)(iii) of the National Law, YGB has engaged in professional misconduct within the meaning of section 5 of the National Law; and
  1. Pursuant to section 196(1)(b)(iv) of the National Law YGB has an impairment within the meaning of section 5 of the National Law.

The Tribunal Orders that:

  1. YGB be reprimanded under section 196(2)(a) of the National Law;
  1. The conditions set forth in Annexure A to these orders be imposed upon the registration of YGB pursuant to section 196(2)(b) of the National Law;
  2. The said conditions be subject to a review period of 12 months; and
  3. Part 7, Division 11, Subdivision 2 of the National Law applies to the conditions.

ANNEXURE A TO ORDERS OF THE TRIBUNAL MADE ON 22 DECEMBER 2023

Notice of recommencing practice

  1. The Practitioner must give Ahpra written notice of her intention to recommence practice no less than 14 days before recommencing practice.
  2. For the purposes of these conditions, ‘practice’ is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a nurse. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a nurse in a direct non-clinical relationship with a patient, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the nursing profession.

General

  1. Within 14 days of recommencing practice, the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of the senior person, such as the Director of Nursing, Senior Manager, owner or equivalent (senior person) at each current place of practice. In providing this form, the Practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner’s registration or confirm that the senior person has received a copy of the conditions from the Practitioner. The Practitioner will be required to provide the same form:
    1. within seven days of the commencement of practice at each subsequent place of practice; and
    2. within seven days of each and every notice of any subsequent alteration of these conditions.
  2. All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense.

Restrictions on accessing and dealing with medications

  1. The Practitioner must not supply, administer, handle, dispense, access and/or check any medicine or poison listed in Schedule 4 or Schedule 8 of the Standard for the Uniform Scheduling of Medicines and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp and/or pharmaceutical items containing any active ingredient listed within Schedule 4 or Schedule 8 of the SUSMP unless directly supervised by another registered nurse.
  2. For the purposes of this condition, ‘directly supervised’ is defined as:
    1. The Practitioner must consult and follow the directions of the registered nurse in respect of the supply, administration, handling, dispensing, accessing and/or checking of medications and must be directly observed by the registered nurse who is present at all times.

Supervised practice

  1. The Practitioner must be supervised by another registered health practitioner (the supervisor) when practising as a registered nurse.
  1. For the purposes of this condition, ‘supervised’ is defined as:
    1. The Practitioner must consult with the supervisor who is always physically present in the workplace and available to observe and discuss the management of patients and/or performance of the Practitioner when necessary and otherwise at weekly intervals.
  2. Within 14 days of recommencing practice, the Practitioner must, on the approved form (HPN10), nominate a primary supervisor and at least one alternate supervisor to be approved by the Board.
  3. The Practitioner must ensure that each nomination is accompanied by an acknowledgement, on the approved form (HPNA10), from each nominated supervisor that they are willing to undertake the role of supervisor and are aware that Ahpra will seek reports from them.
  4. If no approved supervisor is willing or able to provide the supervision required, the Practitioner must cease practice immediately and must not resume practice until a new supervisor has been nominated by the Practitioner and approved by the Board.
  5. Within 14 days of recommencing practice, the Practitioner is to provide to Ahpra, on the approved form (HP10) acknowledgement that Ahpra may:
    1. obtain information from relevant authorities (such as but not limited to Medicare);
    2. obtain information and/or a report from the senior person at each place of practice on a quarterly basis, or otherwise when requested by the Board; and
    3. obtain a report from the approved supervisor on a quarterly basis, or otherwise when requested by the Board.
  6. Within 14 days of recommencing practice, the Practitioner is to provide to Ahpra, on the approved form (HPS10), acknowledgement from the senior person at each place of practice that Ahpra may seek reports from them.

Limitation on hours of practice

  1. The Practitioner must not practise between 10pm and 7am.

Undertake urine and hair drug screening

  1. The Practitioner must only take substances prescribed, approved, or administered by a nominated treating practitioner(s) and such nominated treating practitioner(s) must not be a relative, friend, professional colleague or in a contractual or financial relationship with the Practitioner.
  2. Within 14 days of recommencing practice, the Practitioner must commence random urine drug screening (UDS) and hair analysis for drug screening (hair analysis) in accordance with Ahpra’s protocol for UDS and hair analysis (the protocol) in force at the date these conditions are imposed and then as amended from time to time.
  3. The Practitioner must commence UDS and hair analysis at Group One frequency or as otherwise advised by Ahpra and must continue to attend at this frequency until the Board approves otherwise.
  4. Within 21 days of the notice of the imposition of these conditions, the Practitioner must provide to Ahpra:
    1. confirmation, on the approved form (HPF6), that they understand the requirements of the protocol as it pertains to urine and hair drug screening and they are aware of Ahpra’s monitoring of this condition; and
    2. the details, on the approved form (HPF6), of all current substances that have been prescribed or administered to or approved for them, along with the contact information of all prescribing practitioners who have, or are likely to, prescribe, approve or administer substances.

Attend treating practitioner

  1. The Practitioner must undertake treatment with a general practitioner and attend at a frequency determined by the general practitioner(s).
  2. Within 21 days of the notice of the imposition of these conditions, the Practitioner must provide the following to Ahpra:
    1. The contact details, on the approved form (HPF3), of all treating practitioners.
    2. Acknowledgement, on the approved form (HPF3), from the Practitioner that Ahpra may seek reports from the treating practitioner(s) on a quarterly basis, or otherwise when requested by the Board.
    3. Confirmation, on the approved form (HPNA3), from the treating practitioner(s) that they have seen a copy of the conditions on the Practitioner’s registration and are aware Ahpra may contact them to seek reports.

Footnotes

[1]In each case as defined in s 5 Health Practitioner Regulation National Law (Qld) (“the National Law”).

[2]‘Parties’ Joint Submissions on Findings and Sanction’, [2.3], (b)(1), “Allegation 2” (“Joint Submissions”)

[3]Ibid, (b)(3), “Allegation 4”.

[4]National Law (n 1) s 5, definition of “unprofessional conduct” (a) and (c).

[5]Joint Submissions (n 2), [2.3], (b)(2), “Allegation 3”.

[6]See, for example, Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASFC 167, [110].

[7]Health Ombudsman v Jamieson [2017] QCAT 172; Health Ombudsman v CSM [2020] QCAT 55; Health Ombudsman v Ferguson [2020] QCAT 464; Health Ombudsman V MacDonald [2016] QCAT 473.

[8]National Law (n 1) s 5, definition of “unprofessional conduct” (a) and (c).

[9]National Law (n 1) s 196(1)(b)(iv).

[10]This part of the National Law relates to requirements that might apply to changing or removing conditions attached to the order.

[11]See, for example, Legal Services Commissioner v Madden (No 2) [2008] QCA 301; Medical Board of Australia v Dolar [2012] QCAT 271, [30]. National Law (n 1), ss 3A, 4; Health Ombudsman Act 2013 s 4.

[12]Health Ombudsman Act, ss 4(1), 4(2)(c)

[13]See, for example, Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822, [43].

[14]Craig v Medical Practitioners Board [2001] SASC 169, [48].

[15]Health Care Complaints Commission v Do [2014] NSWCA 307, [35]. Health Ombudsman v Barber [2017] QCAT 431.

[16]Health Ombudsman v Pidgeon [2022] QCAT 111, [4].

[17]Each cited above (n 6).

[18]In that respect, see also Health Ombudsman v Martin [2020] QCAT 350.

[19]Pidgeon (n 15).

[20]National Law (n 1) s 130(3)(g).

[21]Statement of Agreed and Disputed Facts, [28].

[22]Statement of Agreed and Disputed Facts, [29].

[23]Joint Submissions (n 2), [6.4].

[24]Ibid [6.5].

[25][2021] QCAT 50.

[26]Ibid [29].

[27]Ibid.

[28]Joint Submissions (n 2), [6.3], (b).

[29]Joint Submissions (n 2), [6.3], (c).

[30]See Health Ombudsman v DKM [2021] QCAT 50.

[31]As cited above, (n 29).

[32]See, eg National Law (n 1) ss 3, 3A.

Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v YGB

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v YGB

  • MNC:

    [2023] QCAT 477

  • Court:

    QCAT

  • Judge(s):

    The Hon P J Murphy SC, Judicial Member

  • Date:

    22 Dec 2023

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
Craig v Medical Board of South Australia [2001] SASC 169
2 citations
Jump To
Cite 1 - [2001] SASC 169
Cite 2 - [2001] SASC 169
Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASFC 167
2 citations
Jump To
Cite 1 - [2015] SASFC 167
Cite 2 - [2015] SASFC 167
Health Care Complaints Commission v Do [2014] NSWCA 307
2 citations
Jump To
Cite 1 - [2014] NSWCA 307
Cite 2 - [2014] NSWCA 307
Health Ombudsman v Barber [2017] QCAT 431
2 citations
Jump To
Cite 1 - [2017] QCAT 431
Cite 2 - [2017] QCAT 431
Health Ombudsman v CSM [2020] QCAT 55
2 citations
Jump To
Cite 1 - [2020] QCAT 55
Cite 2 - [2020] QCAT 55
Health Ombudsman v DKM [2021] QCAT 50
3 citations
Jump To
Cite 1 - [2021] QCAT 50
Cite 2 - [2021] QCAT 50
Cite 3 - [2021] QCAT 50
Health Ombudsman v Ferguson [2020] QCAT 464
2 citations
Jump To
Cite 1 - [2020] QCAT 464
Cite 2 - [2020] QCAT 464
Health Ombudsman v Macdonald [2016] QCAT 473
2 citations
Jump To
Cite 1 - [2016] QCAT 473
Cite 2 - [2016] QCAT 473
Health Ombudsman v Martin [2020] QCAT 350
2 citations
Jump To
Cite 1 - [2020] QCAT 350
Cite 2 - [2020] QCAT 350
Health Ombudsman v Pidgeon [2022] QCAT 111
2 citations
Jump To
Cite 1 - [2022] QCAT 111
Cite 2 - [2022] QCAT 111
Legal Services Commissioner v Madden (No 2)[2009] 1 Qd R 149; [2008] QCA 301
2 citations
Jump To
Cite 1 - [2008] QCA 301
Cite 2 - [2008] QCA 301
Medical Board of Australia v Dolar [2012] QCAT 271
2 citations
Jump To
Cite 1 - [2012] QCAT 271
Cite 2 - [2012] QCAT 271
Medical Board of Australia v Griffiths [2017] VCAT 822
2 citations
Jump To
Cite 1 - [2017] VCAT 822
Cite 2 - [2017] VCAT 822
The Health Ombudsman v Jamieson [2017] QCAT 172
2 citations
Jump To
Cite 1 - [2017] QCAT 172
Cite 2 - [2017] QCAT 172

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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