Health Ombudsman v Fitzgerald
[2023] QCAT 520
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Health Ombudsman v Fitzgerald[2023] QCAT 520
Health Ombudsman v Fitzgerald[2023] QCAT 520
[2023] QCAT 520
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
ROBERTSON, Judicial Member
Assisted by:
MR DIXON
DR HARLEY
MRS RIGNEY
No OCR 150 of 2023
HEALTH OMBUDSMAN Applicant
v
FITZGERALD, Wendy Anne Respondent
BRISBANE
THURSDAY, 5 OCTOBER 2023
REASONS FOR DECISION
- [1]JUDICIAL MEMBER: On 20 June 2023, the Applicant Director filed a referral in the Tribunal which contained one allegation against the Respondent, who was a registered enrolled nurse at all relevant times. The allegation relates to the Respondent’s conviction in the District Court at Rockhampton on 5 April 2023 for supplying the dangerous drug buprenorphine in the Capricornia Correctional Centre on 3 September 2022. The respondent pleaded guilty to the charge and was sentenced by her Honour Judge Loury KC to a period of nine months’ imprisonment wholly suspended for an operational period of 18 months. As a matter of law, the sentence involved the recording of a conviction.
- [2]The Respondent has not participated in any meaningful way in these proceedings and has not appeared this morning. At a directions hearing on 18 August 2023, the Deputy President of the Tribunal, her Honour Judge Dann made orders and referred to an email which is on the Tribunal file from the Respondent dated 20 July 2023 which stated, in effect, that she would not be appearing at the hearing today. I have been informed by Ms Townsend, who represents the Applicant, that her office emailed the Respondent and they have received no further communication from her indicating any change of heart. The matter will therefore proceed in her absence.
- [3]Her approach to the disciplinary proceedings is probably explained by the fact that the Respondent, who was at the time of the offending a 63 year old enrolled nurse working at the Mater Hospital in Rockhampton, and registered since 24 May 1978, has obviously decided not to engage in any meaningful way in the investigation by the Office of the Health Ombudsman, or in these proceedings, which is indicated initially by the voluntary surrender of her nursing registration on 9 November 2022.
Relevant facts
- [4]The conduct the subject of the referral is of a serious nature, involving the supply of dangerous drugs to a prisoner within a correctional facility. On 3 September 2022, the Respondent, during a contact visit with a prisoner at Capricornia Correctional Centre, provided 30 Suboxone strips which contain the dangerous drug buprenorphine. The Respondent was observed on the CCTV to remove a package from underneath her facemask and hand the package to Mr Brett Crowley, a prisoner. The package was then placed by the prisoner into his mouth under his facemask.
- [5]The Suboxone had been delivered to her house, and there is no evidence that the Respondent obtained the Suboxone from her employment as a registered nurse. The Respondent had been visiting the prisoner for some years. He had been in prison at that time for 16 years for murder. He clearly manipulated her and abused her friendship and involved this woman of otherwise exemplary character in significant and serious criminal offending which has had a significant detriment both for her personally and professionally.
Characterisation
- [6]Health practitioners enjoy the benefits of registration, and the obligations of such require them to conduct themselves with propriety both in the conduct of their profession and their personal lifestyle. Criminal offending punishable by imprisonment can adversely affect the reputation of the profession and impair public confidence in it.
- [7]In Nursing and Midwifery Board of Australia v Williams [2021] QCAT 307 (‘Williams’), the respondent was convicted of one count of supplying a dangerous drug within a correctional facility and one count of giving a prohibited thing to a prisoner. The Tribunal commented that there are many cases where convictions for criminal offences have been characterised as professional misconduct, and because of the seriousness of the relevant conduct, it amounts to professional misconduct.
- [8]The same characterisation applies to the conduct of the Respondent in this case. She has by her conduct offended the relevant code of conduct and standards developed by the Nursing and Midwifery Board of Australia which, pursuant to section 41 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) are admissible in these proceedings as to what constitutes appropriate professional conduct or practice for an enrolled nurse.
- [9]Her actions offend many of the provisions of the code of conduct.
- [10]The Tribunal is satisfied to the requisite standard that the Applicant has proved that the conduct which is admitted by the Respondent by her plea of guilty is professional misconduct as defined in section 5 of the National Law.
Sanction
- [11]The principles relating to sanction in proceedings of this nature are well known. Disciplinary proceedings are protective and not punitive in nature.
- [12]The principles set out in Medical Board of Australia v Jansz [2011] VCAT 1026 have been applied many times throughout Australia, including in this Tribunal and provide a useful guide in the approach and formulation of an appropriate sanction. The principles include:
- a.the purpose of the disciplinary proceedings is to protect the public;
- b.determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity of the profession in the eyes of the public;
- c.determinations should in no way be punitive;
- d.the objectives of determinations by way of sanction can be achieved by specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct; and by general deterrence, that is, deterrence of other practitioners, are minded to conduct themselves similarly and by facilitation of rehabilitation on the part of the practitioner;
- e.personal matters such as shame, personal ordeal and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner.
- [13]In this case, the offending was very serious. Criminal conduct of this type is completely inconsistent with the fundamental obligations of health practitioners to abide by the law and not engage in conduct that is potentially severely detrimental to the reputation of the nursing profession.
- [14]Her actions constitute a serious breach of her professional obligations in that supplying drugs to an inmate in a correctional facility which were then destined, inevitably, for distribution inside a jail is very serious misconduct. The supply of drugs also undermines the system of discipline within a prison, and allowing drugs to enter the prison system makes it more difficult for those with drug addictions within wishing to abstain and to rehabilitate. The conduct also constituted a significant breach of trust to her employer, her colleagues, wider members of the profession and members of the public.
- [15]As noted earlier, the Respondent voluntarily surrendered her registration on 9 November 2022, which took effect from 2 December 2022. It can be inferred that she did this as a response to a Notice of Proposed Immediate Registration given by the Health Ombudsman on 1 November 2022.
- [16]After December 2022, the Respondent continued to work at the Mater Hospital in Rockhampton doing theatre stores which did not involve any patient contact or the ordering of medications for the theatre complex.
- [17]On 9 February 2023, the Health Ombudsman issued a Notice of Proposed Interim Prohibition Order, proposed to prohibit her from prescribing, possessing, supplying, administering, handling, dispensing or checking, including as emergency treatment, supplies or doctors’ bags, any schedule 8 substances and any monitored medicines.
- [18]On 31 March 2023, she resigned from her employment at Mater Hospital Rockhampton. The Respondent has not worked as a health professional since 31 March 2023.
- [19]Although the Respondent has made a decision not to participate in these proceedings, there is some evidence of insight. Her Honour Judge Loury, during her sentencing remarks, made a number of observations to the effect that she had pleaded guilty at the first available opportunity and that the conduct was out of character. She also noted that the Respondent was gullible and foolish because she chose to engage in this activity which involved a degree of planning. Her Honour also noted that the Respondent had accepted responsibility for her conduct and entered the plea of guilty, which, she noted, demonstrates remorse. Her Honour also noted that she was satisfied that the Respondent was unlikely to reoffend.
- [20]I accept the submission made on behalf of the Applicant by Ms Townsend that the Respondent has demonstrated limited insight into her offending conduct, and this is particularly evidenced by her failure to engage in the disciplinary referral process or in the investigation process, thus leaving many questions about her fitness to practice unanswered.
- [21]I also accept Ms Townsend’s submission that the Respondent appears to have some understanding of the broader impact of her actions and has gained some insight into her conduct by taking the attitude she did to the criminal proceedings.
- [22]I agree that given the circumstances of this case, specific deterrence is of less significance. However, general deterrence is of the utmost importance in this case to denounce the Respondent’s conduct and to demonstrate to other health practitioners that this type of conduct will not be tolerated.
- [23]Ms Townsend, in her helpful submission has referred to a number of cases. It is axiomatic that comparable cases are a guide only to the Tribunal, as each case must be decided on its own facts. The matter of Williams, and the matter of Health Care Complaints Commission v Lowe [2023] NSWCATOD 121 (‘Lowe’), and Health Ombudsman v OOD [2021] QCAT 388 (‘OOD’) give support for the proposed orders by way of sanction sought by the Applicant. For those reasons, the Tribunal makes the following findings and orders:
- pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘the HO Act’), the respondent has behaved in a way that constitutes professional misconduct;
- pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;
- pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration for a period of 18 months from today’s date; and
- there is no order as to costs.