Health Ombudsman v MBS[2023] QCAT 551

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The referral filed by the applicant on 30 November 2022 contains one allegation, which is not contested by the respondent, who is and was at all relevant times a registered nurse.  The respondent is currently 47 years old.  He holds a Bachelor of Nursing and was first registered with the Nursing and Midwifery Board of Australia (‘Board’) on 11 January 2007.  At the time of the conduct the subject of the referral he was employed on a casual basis at a private hospital on the Sunshine Coast.  He is currently employed as a registered nurse in the public system.
2. [2]
   The conduct underpinning the allegation is not contested.  The parties agree that the conduct constitutes professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’).  The parties agree that a reprimand is appropriate.  The applicant seeks a period of suspension of the respondent’s registration.  Primarily because of the accepted high degree of insight and remorse demonstrated by the respondent since the conduct, evidenced by his conduct since and steps taken to address the underlying causes of his unprofessional behaviour.  His lawyer submits that in the circumstances of this case, a period of suspension would be punitive despite the accepted need to reflect notions of general deterrence in cases of this nature.  There are no factual disputes between the parties.  They have filed an agreed statement of facts.

The Relevant Conduct

3. [3]
   On 14 July 2022 at the Magistrates Court at Caloundra, the respondent entered a plea of guilty to a charge of contravening a domestic violence order.  A charge of common assault was amended to include that it is a domestic violence offence pursuant to the Criminal Code Act 1899 (Qld).  The respondent also entered the plea of guilty to that amended offence and he was fined $1000 to be paid in 28 days; the Magistrate exercised the discretion not to record a conviction.
4. [4]
   The conduct the subject of the referral is of a serious nature involving a physical assault by the respondent on his daughter.  He was aged 45 years old at the time of the relevant incident and his daughter was six years of age.  She is the youngest of his four children, the older three being C, R, and J, and at that time the respondent shared parenting responsibilities with their mother, K. 
5. [5]
   Under a court order pursuant to the Family Law Act 1975 (Cth), the children stayed with the respondent every second weekend and for a five-day period during the school holidays.  On 15 January 2022, the day of the offence, the four children were staying with him at his residence on the Sunshine Coast.  On that date and in the context of the respondent losing his temper, he pushed the child’s head down towards where she had accidentally urinated on the carpet.  The statement of agreed facts amplifies in some detail the circumstances of the offence which I don’t intend to repeat today. 
6. [6]
   On 20 July 2020 a protection order was made in the Caloundra Magistrates Court naming the respondent as the respondent for the order and his ex-wife, K, as the aggrieved.  Their four children were named as persons to be protected under that order.  The common assault against the child constituted a contravention of the protection order. 

Characterisation

7. [7]
   It is accepted by the respondent that his conduct was substantially below the standard which might reasonably have been expected of a registered nurse of an equivalent level of training and experience.  That acknowledgement is justified.  Criminal offending involving unlawful conduct towards his young daughter in the presence of his three older children in the context of a domestic situation is clearly unprofessional and likely to adversely affect the reputation of his profession.  By his conduct, he also contravened various standards promulgated by the Board including the Code of Conduct for nurses^[1] which requires nurses to act lawfully and with integrity.  The Tribunal is satisfied that the admitted conduct amounts to professional misconduct.

Sanction

8. [8]
   The principles applicable to the imposition of sanction orders on health practitioners who have behaved unprofessionally are well-known.  Such orders are designed to protect the health and safety of the public and the reputation of the profession.  They are not designed to punish the respondent or to be punitive in effect.
9. [9]
   Since the incident the subject of the referral on 15 January 2022, the respondent has acted in a way that demonstrates significant insight into his conduct and remorse for it.  Although he has not been suspended from practise as a result of immediate registration action taken by the Health Ombudsman on 16 May 2022, which inter alia prohibited him from having contact with patients under 18 years of age, the Tribunal accepts that his work options for shifts have been limited and that he has suffered some financial detriment.  The applicant proposes and the respondent agrees that these restrictive conditions be removed today which is appropriate.
10. [10]
    Significantly, he has had no contact with his four children since the incident.  He has relinquished parenting rights solely to his ex-wife, K.  In the opinion of the Tribunal, that is and will remain a significant and powerful reminder of his conduct that day which he describes in his affidavit appropriately as deplorable.
11. [11]
    Since that time, he has engaged frequently with a psychologist.  For the purposes of the criminal proceedings his lawyer engaged Dr Donna Eshuys, who is a clinical psychologist who also practises extensively in the forensic area. 
12. [12]
    In her report to the Magistrate, she referred to a pre-existing adjustment disorder and anxiety which was related to the breakdown of the respondent’s marriage and the difficulties he perceived over coparenting issues with his ex-wife.  At the time she saw him on 29 May 2023, she opined that he was well and had considerable insight into what caused him to behave so inappropriately.  She opined that he presented as no risk to patients including children.  She recommended that he might benefit from cognitive behavioural therapy which he is prepared to do with his treating psychologist.
13. [13]
    He has no previous or subsequent criminal or disciplinary history.  He has undertaken a number of modules of education which are designed to address the underlying causes of the conduct and confirm the importance of complying at all times either professionally or in his private life with the standards and codes propagated by his profession.  At the time of his appearance before the Magistrate, his lawyer tendered references from nurses including a senior nurse and others who spoke highly of his character, his work ethic and insight into his obviously out of character behaviour towards his young daughter. 
14. [14]
    The cases relied upon by the applicant in support of the submission that a period of actual suspension is appropriate demonstrate the primary applicability of deterrence, that is general deterrence: to discourage other nurses from behaving like this in their private life and to protect the reputation of a profession which stands at the apex of the State’s health system.  It is in this area of the law, in this jurisdiction, that the principles are often confusing and blend with principles of sentencing, which obviously are to do with punishment. 
15. [15]
    A careful analysis of the truly comparable cases in my opinion does not support the need for a suspension in the circumstances of this particular case.  For example, the case of the Health Ombudsman V HCG^[2] is clearly distinguishable, as are other cases such as Medical Board of Australia v Kaularis,^[3] either because the conduct was subjectively more serious or other issues such as impairment were in play. 
16. [16]
    Health Ombudsman v Abela,^[4] involved a more serious assault on the practitioner’s 10-year-old child, which resulted in a term of imprisonment with a conviction recorded and what the Tribunal described as “a history of instances of violence, or at least matters that caused the domestic violence orders to have been made”.^[5]  In that case, a period of six months suspension was imposed, along with a reprimand.  It is also relevant to note that the respondent in that case was no longer working as a nurse and the Tribunal described the six-month suspension as the upper end of that which was contended for on behalf of the applicant.^[6] 
17. [17]
    Health Ombudsman v JTM,^[7] again, is a more objectively serious case involving the assault and injury of the respondent nurse’s partner in the presence of children while he was armed with a knife.  The respondent had a substance abuse disorder and adjustment disorder for which he was being treated.  JTM was reprimanded.  He was found to have taken significant steps to address the causes of his misconduct and shown insight and remorse.  His registration was suspended by the Health Ombudsman and subsequently revoked.  The applicant seeks to distinguish the case on that basis.  In my view, such an approach is problematical, as it tends to equate immediate registration action taken by the Regulator with the jurisdiction to impose disciplinary orders of this Tribunal.  Clearly, time out of practice is relevant to the formulation of a – an appropriate disciplinary response at this point, but each case has to be decided on its own peculiar facts. 
18. [18]
    Nursing and Midwifery Board Australia v GMR^[8] is of assistance.  The facts are generally comparable, but as is always the case, not exactly comparable.  The assault of the registered nurse’s 16-year-old daughter was with a wooden rolling pin that is a weapon, although he was not convicted of aggravated assault, nevertheless it was accepted that his daughter was taken to hospital with substantial pain, bruising and swelling as a result of the assault.  The Victorian Tribunal did not accept the joint submission which involved a three-month suspension, instead opting for one month. 
19. [19]
    For my part, in the circumstances of this case, with an otherwise competent and experienced professional who presents as no danger to patients, any period of suspension now, would tend to interfere with his rehabilitation and would tend to be punitive.  The consequences that have followed for him are sufficient to reflect the principles of general deterrence, along with the imposition of a reprimand which involves a public denouncement of his conduct that will remain on the Register for some time subject to the discretion of the Regulator. 
20. [20]
    In those circumstances, the orders and findings of the Tribunal will be as follows:

1. The conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’);
2. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;
3. Pursuant to section 62(2)(a)(ii) of the HO Act, the immediate registration action order – immediate registration action imposed by the Health Ombudsman on 16 May 2022 is set aside; and
4. No order as to costs.